The institute of the death penalty is one of the most acutely debated both from the point of view of criminal law science and practice and from the point of view of conformity with the principles of constitutional and international law. Despite the seemingly obvious tendency to limit the death penalty in the modern world, the issue of the use of capital punishment is not only relevant to modern public policy, law enforcement, and legal science but also reveals new aspects and interrelations with other areas of the legal system and public life. The complexity and inconsistency of state doctrine and legal practice regarding the death penalty is complemented by the extreme decentralization of North American federalism. The effect of these factors in combination with significant differences in the political, social, and legal traditions of different states leads to the extreme diversity of the practice of the death penalty institution in the modern United States.
Discrimination and Death Penalty in the USA
Considering the problem of death sentences as a starting point the easiest way to use the situation in the United States is due to the large amount of data available. According to Amnesty International, in 2013 the largest number of executions were in China (2,400 versus 39 in America), but the Chinese authorities do not provide detailed official information on this issue. In America, the highest form of punishment after a short ban was again resolved in 1976, and to date, 1,407 death sentences have been carried out. The death penalty is permitted in 32 states, with the state of Texas leading (524 executed). The record number of sentences was carried out in 1999 (98 cases), since then the number is constantly falling. According to surveys of the Pew Research Center, the death penalty is supported by 56% of Americans. In 2014, according to the Economist magazine, those sentenced to death were expected to execute an average sentence of 16.5 years, and it becomes more and more likely that the convicted person simply will not wait for execution. In 2011 in the USA, 3082 people were awaiting execution of the death sentence. Only 43 people were executed. 24 prisoners died a natural death, and 70 people achieved an acquittal. Thus, every year the chances of the person sentenced to death are 1 to 72, and they are constantly falling.
Along with the traditional arguments against the death penalty (the possibility of irreparable judicial error, immorality, cruelty, and considerable expenses of public funds), the indication of a stable and widespread violation of the constitutional principle of equal rights in the realization of such fundamental human rights as the right to life is becoming increasingly important. The problem of quality provision for modern jurisprudence has many aspects in the USA, including questions of gender, economic status, health, and age (Cochran et al., 1994). However, a fundamental imperative for the entire American legal system is to prohibit racial and national discrimination. In terms of race, support for the death penalty by white Americans is a characteristic indicator (68% vs. 26%) while there are significantly fewer supporters (40% versus 49%) among African Americans, Hispanic Americans are in an intermediate position (52% versus 42%) (Steiker & Steiker, 2015).The events of recent years demonstrate no less the urgency of the problem of ensuring racial equality in the United States of the 21st century.
Analysis of official statistics and the latest American scientific research reveals the main aspects of racial discrimination within the institution of the death penalty: the race of the victim of a crime, the race of a convicted person, the overwhelming majority of whites among federal and state prosecutors, jury members towards accused African Americans. The geographical limitations of the use of the death penalty in the United States should be noted as an important aspect. Despite the fact that the death penalty is provided for in 31 states, it is actually in a “sleeping mode” either due to formal judicial or legislative restrictions and temporary bans, or to actual moratoriums on the appointment, or execution of the death penalty in most of them.
Statistics on the use of the death penalty also shows a certain regionalization: since 1976, 1,170 sentences have been executed in the southern states: in Texas and Oklahoma, they counted 649 while 178 sentences were enforced in the states of the Midwest, in the western states, they were about 85, etc. At the same time, it is in the southern states (80% of the death penalty) that the highest homicide rate (5.5 per 100 thousand population) steadily holds while in the north-eastern states (1% of death sentences) – the lowest (4.5). If most states execute the majority of death sentences, the situation is completely different in two of them. By 2013, the state of California was 731 convicted to death. In the state of Pennsylvania, 198 people were convicted and 3 were executed during the same period. Such extreme polarization of the capital punishment use violates the principle of equality of citizens since it implies a legitimate restriction of the fundamental right to life with respect to citizens of only a few states, whereas in most of the others the death penalty is life imprisonment.
An additional factor causing the danger of open or latent discrimination is the fact that the absolute leaders in the use of the death penalty are the southern states with a rich tradition of racial segregation, lynching, and the cult of the whites of real Americans. In 2015, 60% of those executed were black or Hispanic, and only in 21% of executions, African-American was the victim of murder, whereas in the total number of murder victims, African Americans make up almost half. According to the U.S. Department of Justice, ethnic minorities make up 67% of all those sentenced to death under federal jurisdiction.
Despite the certain trends in limiting the death penalty, the modern legal regulation and application practice demonstrate the preservation of the negative aspects of this institution development. One of the most important problems remains the preservation of racial prejudice and consequently racial discrimination in this area. Minimal representation of racial minorities in the structure of the prosecutor’s office, courts, and jurors entails the formation of a special environment of “court as white space,” which leads to obvious disproportions in statistics of the ratio of white and color Americans as victims and sentenced to death the criminals (Radelet & Lacock, 2009). The Supreme Court, which is designed to ensure equal rights of citizens, could not take a principled position condemning all forms of discrimination in this area, choosing the tactic of restricting some of the glaring manifestations of injustice and cruelty of the death penalty. The similar symptoms of indecision and inconsistency are also characteristic of the legislation and judicial practice of some states. The lack of a systemic struggle against institutionalized forms of racial discrimination in the existential sphere of the use of the death penalty in the USA today makes this institution inconsistent with the basic principles of humanity, equality, and justice of the 21st century, which requires its abolition or the establishment of clear federal standards for its application.
The most important step in combating racial and national discrimination should be the unification of the use of the death penalty at the federal level. Such unification can be implemented in three forms: amending the U.S. Constitution, adopting a federal law, and changing the case law of the US Supreme Court. The first form is unlikely due to the lack of a national consensus on the use of the death penalty and a particularly complex procedure for changing the basic law of the country. The second form also involves significant public and parliamentary debates, but it is becoming more likely due to the receipt of a majority in both chambers of the congress by the republican party, traditionally more supportive of the death penalty. The main obstacle in this case is the decentralized nature of criminal and criminal procedure legislation in the United States, which calls into question the possibility of a complete solution of this problem at the level of federal legislation and almost inevitably require the involvement of the judiciary to confirm compliance of such legislation with the U.S. Constitution. At the same time, it should be noted that the fundamental problem of the death penalty use in the United States remains the lack of equality regime for residents of various states and representatives of various racial and national groups. This fundamental problem can hardly be solved in the conditions of maintaining significant decentralization in the system of criminal law regulation and systemic institutionalized differences in the legal status of different racial and national groups representatives (infeatures of African Americans and Latinos).
The Cost of Death Penalty
According to the Death Penalty Information Center, the death penalty costs between 1.5 and 4 times more than other forms of punishment (depending on the state). The first reason for the high cost of death sentences is the cost of legal proceedings as the courts are forced to conduct more thorough hearings in such cases. At the same time, it is obvious that the cost of any processes in which the death sentence is considered and not only those where it was finally rendered is growing. For example, New Jersey was the first state, which refused to use death penalty as a punishment in 2006; the high cost was precisely the reason for denial. The authorities estimated the cost of each death sentence to be 4.2 million dollars, which is probably why there have been no executions in this state since 1963 (Manzano, 2017).
Inefficiency and Anti-Humanity of Death Penalty
The question of how the death penalty helps to fight crime remains open. For example, according to a study of the crime rate in Singapore (the death penalty is allowed there) and Hong Kong (there is no death penalty), there is no difference between them. Another study showed that there is not much difference between the number of murders in the US states where the death penalty is prohibited and in the states where it is allowed (Ross, 2016). Of course, these data are not enough to extrapolate them to the situation as a whole, but it is also too early to draw far-reaching conclusions about the positive impact of the death penalty (Wanger, 2017). In addition, one should not ignore the imperfections of the judicial system: according to specialists, in the USA, up to 4% of death sentences can be false.
It is reliably known that a part of crimes is committed suddenly and situationally when the guilty person does not have time to think that he or she will be threatened in case of exposure. Others commit a crime while intoxicated and unable to assess the reality of punishment. Still others are counting on impunity. The fourth hope for weak work of law enforcement. Then, there are suicide bombers for whom death is the goal. It is possible to say that the death penalty does not reduce the level of crimes, no serious criminological research confirms that the death penalty (or the introduction of more severe punishments) leads to a decrease in crime. At the same time, the death penalty breeds cruelty in society and stirs up the illusion that crime can only be dealt with by deterrence measures. The problem of the death penalty is as follows: whether it exists or not, there are no special changes in the world (He Huaihong et al., 2015). Not only does this measure not improve the situation, it also increases the number of people killed.
Of course, the opinion of people motivated by fair anger cannot be ignored. However, the state cannot be emotionally, the state is a mechanism. The death penalty is not a means of resolving a conflict but a punishment, the main purpose of which is to fix and rehabilitate a criminal. If to look closely, the death penalty is more likely to be a situation of punishment for the sake of the process of punishment not for the sake of re-education. As for the religious side of the issue, the state takes away the possibility of repentance and a chance for a new righteous life where he or she will atone for his or her sin even if in prison. Here the death penalty also fails to fulfill the task as after death, correction is not possible.
In the case when an offender is caught, the death penalty does not affect the safety of citizens since an offender is in isolation. Execution of the criminal gives rise to the illusion that the society has “cleansed” and that the life of its members has become more secure. All this rather reminds not the defense of society but the removal of responsibility for the “defective” personality, which the same society brought up. Execution does not contribute to the fight against the social causes of the most serious crimes. On the contrary, it contributes to the development of the atmosphere of cruelty and bloodthirsty ruthlessness in society and creates new prerequisites and favorable conditions for even more terrible and cruel crimes (Sharp, 2005). Efficiency from the death penalty is not here either.
In addition, the conviction to death and execution of the sentence does not eliminate the causes of the crime, but, on the contrary, adversely affects other citizens, has a dehumanizing effect on society, and sometimes leads to committing the same crimes by way of imitation. Moreover, this process has a negative effect on the perpetrators, and the very existence of the institution of executioners is also a very ambiguous enterprise (Taylor, 1999). According to the religious approach, life is not granted to a person by the state; therefore, the state has no legal right to take it away (Steffen & Cooley, 2014). The list of resulting negative and contradictory consequences emanating from the death penalty can be continued for a long time (Gross et al., 2014). However, the most terrible in the practice of this measure are judicial errors that occurred and occur throughout the world.
Politics and Death Penalty
The death penalty is the most politicized measure of state coercion. The certain political decisions most often do not agree either with the criminal situation, or with historical experience, or with criminological ideas. Moreover, as the experience of many countries shows, the state of public opinion is not at all an indispensable condition for choosing a political decision. For all the differences in their motives, political decisions about the restoration, and even more so about the abolition of the death penalty often turn out to be very unpopular (Hood & Hoyle, 2009). The obvious political implications of the decisions made on the death penalty are particularly noticeable during election campaigns (USA). It is also obvious in connection with one or other major international initiatives and actions. In a word, political considerations even with the most acute conflicts with public opinion always turn out to be a priority and do not correspond either to scientific doctrines, nor to public attitudes or criminological realities.
The measures of social coercion have long been monopolized by the government whose bodies punished the criminals for their infringement or the taking of any of the possible human goods as property, honor, freedom, health and, finally, life. In other words, in the field of criminal punishment, the possibilities of state-coercive influence on criminals were not limited to anything. It is impossible not to emphasize that any socially dangerous act impinges, to a certain extent, on the interests of public authority, expressed in the inviolability of the rules for regulating public life established by it. Therefore, the criminal, undermining social foundations with his illegal actions, also challenges the supreme power. Consequently, the interference of the latter cannot be reduced to the level of an arbitrator resolving the dispute between the perpetrator and the victim. It must contain a direct answer to an individual who has rudely insulted power. Therefore, in the punishment there must always be a “state share,”which is the most important element of the “criminal and legal elimination of crime.” Otherwise, how can one explain the fact that the whole procedure of court proceedings in general and the imposition of punishment in particular is intended to convince citizens that no matter how serious and dangerous the society is for a crime, a criminal is too weak and insignificant compared to the state protecting the security of its law-abiding citizens.
The death penalty is contrary to international legal standards in the field of human rights. The imposition of a ban on the use of the death penalty in modern international law is associated with the adoption of the principle of respect for human rights and fundamental freedoms and the general recognition of the absolute right to life. The death penalty ban has already been recognized by many states. The world community also renounced the use of the death penalty for international crimes. The experience of most countries shows that the abolition of the death penalty, as a rule, leads to a decrease in its supporters, a rethinking of conservative views, and a general softening of manners. In the absolute majority of countries that have abolished the death penalty, these types of decisions are taking place well in advance of the corresponding changes in public consciousness. In order for the problem not to stand in a row of conflict-causing in relations between the population and the authorities, there is a need of skillful informational and explanatory work, which psychologically prepares the public consciousness to accept such type of political decisions.
Cochran, J. K., Chamlin, M. B., & Seth, M. (1994). Deterrence or brutalization? an impact
assessment of oklahoma’s return to capital punishment. Criminology, 32(1), 107. doi:http://dx.doi.org/10.1111/j.1745-9125.1994.tb01148.x.
Gross, S. R., O’Brien, B., Hu, C., & Kennedy, E. H. (2014). Rate of false conviction of
criminal defendants who are sentenced to death, Proceedings of the National Academy of Sciences, 111(20), 7230-7235. doi:10.1073/pnas.1306417111.
He Huaihong, Thornton, J., & Cheng Li. (2015). Social Ethics in a Changing China: Moral Decay or Ethical Awakening? Washington, DC: Brookings Institution Press.
Hood, R., & Hoyle, C. (2009). Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”. Crime and Justice,38(1), 1-63.
Manzano, M. (2017). The alarming cost of death penalty trial. The death penalty (pp. 26-28).
Retrieved from https://ebookcentral.proquest.com.
Radelet, M., & Lacock, T. (2009). Recent developments: Do executions lower homicide
rates?: the views of leading criminologists. The Journal of Criminal Law and Criminology (1973-), 99(2), 489-508. Retrieved from http://www.jstor.org/stable/20685045.
Ross, J. (2016). Key issues in corrections. Bristol: Bristol University Press.
Sharp, S. F. (2005). Hidden victims : The effects of the death penalty on families of the
accused. Retrieved from https://ebookcentral.proquest.com.
Steffen, L., & Cooley, D. (2014). The Ethics of Death: Religious and Philosophical Perspectives in Dialogue. Minneapolis: Augsburg Fortress.
Steiker, C., & Steiker, J. (2015). The American Death Penalty and the (In)Visibility of Race. The University of Chicago Law Review,82(1), 243-294.
Taylor, H. (1999). The death penalty, The Harris Poll. Retrieved from
Wanger, E. (2017). Fighting the Death Penalty: A Fifty-Year Journey of Argument and Persuasion. East Lansing, Mi: Michigan State University Press.