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Death Penalty (last updated January 11, 2003) (back to top)
Hundreds of people are sentenced to death each year in 38 states and in the federal courts, though the pace of new sentences far outpaces that of actual executions (71 were executed in 2002). Studies in recent years have drawn attention to errors in how capital punishment is applied and have shown that some people are wrongfully convicted, let alone improperly sentenced.
In particular, Illinois has become a bellwether state for capital punishment, due to several highly publicized cases in which 13 people were found over a 10-year period to be innocent of the crimes for which they were convicted and sentenced to death. On January 31, 2000, Illinois Gov. George H. Ryan declared a moratorium on all state executions until a commission could recommend changes in the application of capital punishment, which it did in April 2002. Three years later, on January 11, 2003, just before leaving office, Gov. Ryan took an even more dramatic move, commuting all Illinois death sentences to prison terms of life or less.
"Our systemic case-by-case review has found more cases of innocent men wrongfully sentenced to death row. Because our three-year study has found only more questions about the fairness of sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious – and therefore immoral – I no longer shall tinker with the machinery of death," Gov. Ryan said, quoting at the end Supreme Court Justice Harry Blackmun, who wrote in 1994 to explain why he would no longer support the death penalty.
Between 1930 and 1999, the state and federal governments of the United States executed more than 4,400 people. In 1999 alone, 98 people were executed while about 3,500 people remained on death row, according to the Department of Justice's Bureau of Justice Statistics; 85 people were executed in 2000, 66 in 2001, and 71 in 2002.
There was a brief, judicially-mandated moratorium throughout the United States in the mid-1970s. In 1972, the Supreme Court held that capital punishment, which was then typically administered as a mandatory punishment for certain crimes, violated the Eighth Amendment's prohibition of cruel and unusual punishment (read the actual text of the amendment here). However, at least 35 states and the federal government quickly enacted new capital punishment procedures. In 1976, the Supreme Court held that such statutes were constitutional as long as there were guidelines that examined the particular circumstances of each case before the death penalty was applied.
At the federal level, a de facto moratorium lasted longer. Before the June 2001 executions of Oklahoma City terrorist Timothy McVeigh and drug kingpin Juan Raul Garza, the federal government had not executed anyone since 1963. A federal district court ruled in July 2002 that the federal death penalty was unconstitutional because of the error rates associated with the application in other jurisdictions, but this decision was reversed by the Second Circuit Court of Appeals in December 2002. For more on the federal death penalty, go here.
Showing both the slow pace of capital punishment as well as errors resulting from the justice system, more prisoners sentenced to death between 1973 and 1999 actually had their convictions overturned than were executed, according to the Bureau of Justice Statistics. About twice as many had their death sentences overturned by a court than were executed.
Thirty-eight states have the death penalty (this includes Illinois). Twelve states (and the District of Columbia) do not. The following map shows which states do not have the death penalty (white), which states do (either shade of red), and which states had more than 100 prisoners sentenced to death as of December 31, 1999 (darkest red). Alaska and Hawaii are not pictured but neither has the death penalty.
Of those states that have the death penalty, 18 states banned the imposition of the death penalty on defendants who are mentally retarded (Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, Washington). The federal government has such a ban in place as well. On June 20, 2002, the Supreme Court ruled in a 6-3 decision (Adkins v. Virginia) that a national consensus had formed that the execution of the mentally retarded was cruel and unusual, and banned such executions in every state; only two states had banned such executions when the Supreme Court last considered the issue in 1989. However, the Supreme Court did acknowledge that there was still disagreement as to which offenders are in fact retarded, and left that definition to individual states.
For more background on Illinois, go here.
Sources: The Bureau of Justice Statistics, on-line here, has many resources available, including Capital Punishment 1999 bulletin, on-line here. Information on those states banning the imposition of the death penalty on mentally retarded defendants was taken from the Illinois Governor's Commission on Capital Punishment's April 15, 2002 report, which is available on-line here. Jodi Wilgoren, Governor assails system's errors as he empties Illinois death row, New York Times, January 12, 2003. The Supreme Court's 1972 decision declaring capital punishment as then applied unconstitutional was Furman v. Georgia, 408 U.S. 238 (1972) and its decision accepting new capital punishment procedures was Gregg v. Georgia, 428 U.S. 153 (1976); these cases are on-line via Findlaw.com. The Second Circuit Court of Appeals December 2002 decision upholding the Federal Death Penalty Act as constitutional is on-line here.
Death Penalty: Illinois (last updated April 15, 2002) (back to top)
Illinois has become a bellwether state for capital punishment, due to a moratorium on all state executions which was declared in the wake of several highly publicized cases in which 13 people were found over a 10-year period to be innocent of the crimes for which they were convicted and sentenced to death.
On January 31, 2000, Illinois Gov. George H. Ryan declared a moratorium on all state executions until a state commission could recommend changes in how capital punishment was applied in Illinois. "Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate," Ryan said at the time.
More than two years later, that commission made an extensive series of 85 recommendations such as changing investigative procedures, creating a forensic laboratory that was independent of police supervision, and providing better defense lawyers to indigent defendants. A majority of the commission said that it favored abolishing the death penalty in Illinois but made its recommendations to improve the application of capital punishment were it to be kept. Some highlights of the commission's April 15, 2002 report include:
- Require the videotaping of the entire interrogation of a suspect in a homicide case (supported by a majority; others thought this should be recommended, not mandatory). A majority of the commission also supported having all statements not recorded by a homicide suspect repeated to the suspect on tape, and having his or her responses recorded.
- Ensure that lineup procedures are conducted by someone who does not know who the actual suspect is (supported by a majority).
- Create an independent, state-run forensic laboratory that is operated by civilian personnel independent of police supervision or control (supported by a "significant majority").
- Reduce the number of eligibility factors from 20, so that the death penalty is reserved "for only the most heinous" murders (unanimously recommended by the commission, though the commissioners differed on what the final number of eligibility factors should be).
- Encourage state prosecutors to adopt written protocols for how prosecutors should determine whether or not to seek the death penalty.
- Improve the quality of defense counsel provided to indigent defendants.
- Change Illinois law so that defendants have the right to make a statement on his or her behalf at the sentencing phase (a statement in "allocution"), without being subject to cross-examination (unanimously recommended).
- Requiring that juries be told of alternative sentences in the event that the death penalty is not imposed (unanimously recommended).
- Ban the imposition of the death penalty for those defendants who are mentally retarded (unanimously recommended).
- Increase funding for defense counsel in death penalty cases.
In receiving the report, Gov. Ryan said that he would study the report and deliberate on its recommendations. "I owe it to everyone who believes in justice and to everyone touched by our justice system to reflect upon this Commission's findings," he said. "There are some who will be impatient, who will demand quick solutions, now that I have this report. But, our experience in Illinois with the capital punishment system has gained worldwide attention. What we do from this point forward may be an example to the rest of the country and the world."
The commission, which included both prosecutors and public defenders, was chaired by a former federal district judge who had also been a prosecutor, Frank McGarr. His co-chairs were former Senator Paul Simon and former United States Attorney for the Northern District of Illinois Thomas P. Sullivan. Former CIA and FBI Director William H. Webster served as a special advisor.
In the wake of the Supreme Court's 1972 moratorium on capital punishment as then applied, Illinois revised its death penalty laws in 1977, so that death was imposed when a first-degree murder involved one of seven eligibility factors which turned on who the victim was (such as a police officer or a witness against the murderer for another crime) or whether the murder involved the commission of other crimes. Over the years, the number of factors was increased to 20.
Since 1977, more than 250 people were sentenced to death under Illinois's death penalty statute. More than half of these cases were reversed at some point, though most of these reversals were reversed only as to the death sentence, and not to the underlying conviction.
Still, 13 men were released from death row over a 10-year period and actually found to be innocent of the crimes for which they were convicted and sentenced to death. According to the commission's April 15, 2002 report, "all 13 cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes. In some cases, the evidence was so minimal that there was some question not only as to why the prosecutor sought the death penalty, but why the prosecution was even pursued against the particular defendant."
Sources: The Governor's Commission on Capital Punishment is on-line here. Gov. Ryan's April 15, 2002 statement on receiving the commission's report is on-line via the State of Illinois' web site, on-line here.
Minimum Age for Death Penalty (last updated January 22, 2002) (back to top)
As of 1999, three states allowed the execution of criminals as young as 14 years old: Arkansas, Utah and Virginia. Mississippi law allows for the execution of 13-year-olds, but the state's Supreme Court has ruled that the federal constitution effectively does not allow for executions of anyone under 16.
Ten states, including Mississippi, effectively set a minimum age for execution of 16. Four more states set a minimum age of 17, though North Carolina does allow the execution of 14-year-olds if the murderer was already incarcerated for murder upon committing a subsequent murder.
Most states, including New York, set a minimum age of 18, as does the federal system.
Seven states do not specify a minimum age for execution.
The following map tracks the states by the minimum age of execution, with lower minimum ages reflected by deeper shades of red. States that do not set a minimum age are shown in yellow, and states that do not allow for capital punishment (including Alaska and Hawaii) are in white.
Source: Bureau of Justice Statistics, Capital Punishment 1999, on-line here.
A brief intro to the federal death penalty: history, procedure, and what is going on (back to top)
Before June 2001, the last time the federal government executed someone was in 1963.
Victor H. Feguer had kidnapped and murdered a young doctor, and because he had taken his victim from Iowa into Illinois before shooting him, and because he was in Alabama when he was finally arrested by the FBI, he came under federal jurisdiction and he unwittingly earned the dubious honor of being the last defendant to be executed by the federal government in the 20th century. He was 27 years old, and he was hung at 5:30 a.m. on February 15, 1963; it took more than nine minutes for him to die.
Geguer's execution was the only federal execution of the 1960s, and it was one of only 33 since 1930. By contrast, state governments had executed more than a hundred each year over that same time period.
Nine years later, in 1972, the United States Supreme Court held that capital punishment as then conducted was "cruel and unusual punishment" and thus unconstitutional; states responded quickly to find more structured policies, while the federal government did not bother until the 1980s.
Most violent crimes are handled at the state level, by state prosecutors. However, the federalization of crime since the 1980s has expanded the number of crimes that can be prosecuted at either the state or federal levels; it has also expanded the number of federal crimes that can be punished by death.
In 1988, the Drug Kingpin Act made the death sentence available for certain drug-related offenses, re-introducing capital punishment into the federal system. United States Attorneys (the lead federal prosecutor in each federal judicial district) could ask the Attorney General (the head of the Department of Justice) for approval to seek the death penalty; any US Attorney who did not want to use the death penalty simply would not ask. From 1988 to 1994, US Attorneys sought approval 52 times and received it 47 times; 20 cases actually went to trial.
In 1994, the Federal Death Penalty Act became law, adding 40 more federal capital crimes. Another four were added with the Antiterrorism and Effective Death Penalty Act in 1996.
To deal with the expanded range of capital crimes, the DOJ implemented a new "protocol" in 1995. Since then, US Attorneys must submit for review all cases where the death penalty could be sought, as well as their own recommendation as to whether it should be sought. A DOJ committee then makes a recommendation to the Attorney General, who makes the ultimate decision. From January 1995 to July 2000, US Attorneys submitted 682 cases for review, seeking authorization for the death penalty a third of time, and the Attorney General authorized the death penalty for 159 cases, 42 of which were tried by July 2000.
Of the 62 federal cases where prosecutors were authorized to seek the death penalty by July 2000, 57 were convicted of a capital offense. Of those convicted, 26 were sentenced to death; the other 31 were given other sentences. Of those 26 sentenced to death, only 19 were formally on death row as of July 2000.
Of these 19 people, 13 are black, 4 are white, 1 is Hispanic, and 1 is Asian. Six of the 19 were convicted in Texas, four in Virginia, and two in Montana.
The question of race - and to a lesser extent, geography - plays a strong role in the debate over capital punishment at the state and federal levels, or at least in its application. At the federal level, the DOJ protocol tries to eliminate racial consideration from its deliberations by barring US Attorneys from submitting any information about a defendant's race; defense counsel can and do occasionally submit such information to argue against the authorization of the death penalty. Still, critics such as Professor Rory Little have argued that race still influences the process in informal ways.
It may be worth noting this fact: of the 13 black defendants sentenced to death as of July 2000, 8 were convicted of a violent crime in which their victim was another black person.
While he did allow executions as a governor and supported capital punishment, President Bill Clinton used the question of racial disparities to delay the execution of Juan Raul Garcia, a convicted drug kingpin and three-time murderer from Texas, who was originally scheduled to be the first prisoner executed by the US government since Victor Feguer. Garcia was to be executed on August 5, 2000, but Clinton delayed the execution two times, pushing it back to June 2001.
The delay meant that Timothy McVeigh, convicted for the 168 deaths resulting from the 1995 Oklahoma City bombing, was the first prisoner executed by the US government when he was executed on June 11, 2001. Garza was executed eight days later.
Sources: The United States Department of Justice, Federal Death Penalty System: A Statistical Survey (1988-2000), published September 12, 2000, available online. Rory K. Little, The Federal Death Penalty: History and some thoughts about the Department of Justice's role, Fordham Urban Law Journal, March 1999 (26 Fordham Urb. L. J. 347).
The 19 federal defendants sentenced to die as of July 20, 2000 (back to top)
Of the 19 people who were sentenced to execution by the federal government as of July 2000, 13 are black, 4 are white, 1 is Hispanic, and 1 is Asian. Six of the 19 were convicted in Texas, four in Virginia, and two in Montana.
Of the 13 black defendants sentenced to death as of July 2000, 8 were convicted of a violent crime in which their victim was another black person.
All information below is taken from the Federal Death Penalty System: A Statistical Survey (1988-2000), published by the US Department of Justice on 9/12/00.
- Billie Allen (black), Missouri, "fatal shooting of bank guard during bank robbery" (1 victim, white). Convicted with Holder for killing same victim.
- George Battle (black), Georgia, "murder of prison guard" (1 victim, black)
- Brandon Bernard (black), Texas, "carjacking murder" (2 victims, white). Convicted with Vialva for killing same victims.
- David Chandler (white), Alabama, "murder-for-hire of suspected informant in narcotics case" (1 victim, white)
- Bountaem Chanthadara (other), Kansas, robbery and murder of the proprietor of a restaurant" (1 victim, other)
- Juan Garza (Hispanic), Texas, "murder by narcotics trafficker of three other traffickers" (3 victims, Hispanic)
- Orlando Hall (Hispanic), Texas, "kidnapping, sexual assault and murder of a 16-year-old female" (1 victim, black). Convicted with Webster for killing same victim.
- David Paul Hammer (white), Pennsylvania, "murder of a federal prison cellmate" (1 victim, white)
- Norris Holder (black), Missouri, "fatal shooting of a bank guard during bank robbery" (1 victim, white). Convicted with Allen for killing same victim.
- Cory Johnson (black), Virginia, "murders of suspected informants, rivals and others in connection with narcotics trafficking enterprise" (9 victims, black). Tried with Tipton and Roane for operating a continuing criminal enterprise.
- Daryl Johnson (black), Illinois, "gang leader who ordered the murder of a suspected informant and one other person" (2 victims, black)
- Louis Jones (black), Texas, "kidnapping, sexual assault and murder of a solider" (1 victim, white)
- Timothy McVeigh (white), Oklahoma, "use of weapon of mass destruction resulting in 168 deaths (including murder of eight federal law enforcement officials) in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City" (168 victims, various races)
- Jeffery Paul (white), robbery and murder on federal land in Arkansas (1 victim, white)
- James Roane (black), Virginia, "murders of suspected informants, rivals and others in connection with narcotics trafficking enterprise" (9 victims, black). Tried with Johnson and Tipton for operating a continuing criminal enterprise.
- Richard Stitt (black), Virginia, "three murders in connection with narcotics trafficking enterprise" (3 victims, black)
- Richard Tipton (black), Virginia, "murders of suspected informants, rivals and others in connection with narcotics trafficking enterprise" (9 victims, black). Tried with Johnson and Roane for operating a continuing criminal enterprise.
- Christopher Vialva (black), Texas, "carjacking murder" (2 victims, white). Convicted with Bernard for killing same victims.
- Bruce Webster (black), Texas, "kidnapping, sexual assault and murder of a 16-year-old female" (1 victim, black). Convicted with Hall for killing same victim.
Sources: The United States Department of Justice, Federal Death Penalty System: A Statistical Survey (1988-2000), published September 12, 2000, available online.
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