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Death penalty in the United States: an unbalanced practice

( Télécharger le fichier original )
par Julie Rérolle
Université Aix-Marseille 1 - M1 Langues Etrangères Appliquées 2007
  

Disponible en mode multipage

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The United States is a great country that has always stood up for democracy and helped when human rights were violated, so why is there still the death penalty? In the context of the infamous Angel Nieves Diaz's case in Florida, the execution of Saddam Hussein, the obligatory abolition of capital punishment for new members of the European Union, and the new article of the French Constitution proclaiming that no person can be convicted to the death penalty, the death sentence is a very current issue which divides people and arouses passionate debates. This is, after slavery, the most controversial topic and a strong differentiating factor between the European mindset and the American one. Indeed, while the European Union obliges its new members to abolish the death penalty, the United States continues to pronounce this sentence and execute people, making it one of the four countries to execute the most people in 2005 (94% of the 2148 executions in 2005 took place in China, Iran, Saudi Arabia and the United States).

Inside the country itself, the 51 States have very different judicial systems and trial processes, according to the party in power, the general local mentality, and the socio-historical context. Of these States, 38 administrations, the federal government, and the U.S. military still sentence people to death. Among those jurisdictions, there are substantial differences in the application. Based on this paper's findings, it appears that the South uses this sentence more frequently, and also more discriminatorily.

The State of Texas in particular has the highest number of executions and several specific cases which suggest that there is racial discrimination present in the determination of the sentence.

Besides the ethical debate about whether it is just to kill people, capital punishment also raises important concerns about miscarriages of justice, condemned yet innocent prisoners, equal representation, discrimination, and the role of the church and whether it has a deterrent effect or not. Such questions have caused significant debate among academic, legal, and political circles.

I chose this subject for many reasons. First of all, the subjects of social and racial discrimination have always been very near to my heart. My studies and personal experiences have opened my eyes to certain injustices in the world. This awareness has inspired me to fight against such inequity to the fullest extent of my ability. Having personally endured a life and death experience, I can now fully appreciate the value of human life. I simply cannot believe that someone or a group of people could end the life of another person - especially in the name of justice (that is to say, «in the name of the people»). In addition, I have seen many movies which confront the death penalty in the United States, which I have included as social references to study the various issues surrounding the issue. My research has made me increasingly interested in, and impassioned by this matter, driving me to attend the World Congress Against Death Penalty, in Paris from the 1st to the 3rd of February 2007. It allowed me to better understand the subject, and above all, to meet the people dedicated to the opposition to the death penalty. I am currently in contact with Colette Berthès, a French author and abolitionist activist, Bob Burtman, an American lawyer specializing in death penalty cases in North Carolina, and Sean Wallace, manager of the National Coalition to Abolish the Death Penalty (United States), where I will do an internship this summer. They have helped me considerably, for which I am extremely grateful.

Throughout the research and the writing of this thesis, I have realized how difficult it was to grapple with this topic, as this sensitive issue touches upon personal convictions, ideals and emotions concerning life and death. However, it also confronts ideas of religion, race, tolerance, and forgiveness, while at the same time challenging and questioning a steadfast United States judicial system.

I admit that being French and having strong political, social and humanist predispositions - even with the best will in the world - suggests a bias in this critique of American society and its application of the death penalty. Indeed, in composing this essay my previous convictions on the death penalty were reinforced. Nevertheless, it has also made me realize the importance of social movements and the power of the dissenting voice. By acknowledging at the start the possibility of bias, I have endeavored throughout the duration of this report to remain as objective and unbiased as possible.

This study is dedicated to examine the faults of the United States judiciary machine.

The first part will provide an outline of the death penalty in the United States in its historical context, and then briefly describe the current criminal law systems at the State and federal levels. Then, the second part will analyze geographical indicators concerning the application of the death penalty. Finally, the third part will examine in depth the case study of Texas, where it will highlight the drawbacks of the United States criminal law system in light of its unbalanced judicial system, and provide a hypothetical explanation for the geographical differences discovered between the separate State systems.

I. Death Penalty in the United States

A. Historical analysis of the death penalty in the United States

Death penalty has been applied in almost every civilization throughout history. Geography, culture, politics and history have varied its forms and the offenses for which it could be imposed. More precisely, this evolution of capital punishment has varied from country to country, following changes in history, social and political principles, as well as judicial and political systems. Then in 1786, when the Duke of Tuscany passed the first law abolishing the death penalty, the whole world started to question the legitimacy of such a sentence. This was the starting point of the international abolitionist movement, which accelerated throughout the twentieth century, until by the early 1980s almost every democratic country had abolished death penalty. By 2006, 97 countries had abolished capital punishment de jure (including 86 for all crimes and 11 for crimes of common right), 34 had abolished it de facto (by having not used it for 10 years) and 65 countries still had it in their laws and applied it1(*). Among these countries, the United States is the only developed, democratic country continuing to use capital punishment. Japan also sentences to death but executes fewer than six offenders per year, whereas in The United States yearly executions have exceeded 21 since 1983. U.S. execution frequencies are equivalent to those in authoritarian states such as China or Iran. What is more, 94% of the executions were carried out in four countries: China, Iran, Saudi Arabia and the United States.

1) First death penalty cases in the United States

The apparition of the death penalty in America dates back to the colonial period; it was introduced by the European settlers. Captain George Kendall was the first recorded person sentenced to death in 1608, in the colony of Virginia, for having been a spy for Spain. At that time, offenses and punishments varied according to the colony, as they vary from state to state today. In the New York Colony, for example, one could be sentenced to death for offenses such as hitting one's father or mother or for denying the `true God'. During the eighteenth century, with the Age of the Enlightenment, European philosophers and intellectuals influenced reforms of death penalty. The Italian scholar, Cesare Beccaria, laid the foundation of the modern conception of the rights of criminals in 1764 in Crime and Punishment. Herein, he provided the basis and the limits to the right to punish, and recommended that the sentence be proportional, or correspond to the crime. In the United States, the Declaration of Independence (1776) notably lists such fundamental rights as the right to life, freedom and the pursuit of happiness. The importance of these rights was confirmed in the Constitution, adopted in 1789, which guaranteed democracy, the separation of powers, and the individual liberties. The Bill of Rights, ratified in 1791, complemented the Constitution with the first ten Amendments. Among them are the Fifth Amendment, which defines the rights of the defendant during the criminal process and the trial; the Sixth Amendment, which provides the right to a fair and rapid trial; and the Eighth Amendment, which forbids any `cruel and unusual punishment'.

2) Evolution during the nineteenth century

From 1907 to 1917, six American states completely abolished death penalty and three limited it to very few, grave, and rare offenses. But the social unrest within the country and the context of World War I hardened the judicial system. Gradually, the six abolitionist states chose to reinstate death penalty, and there was a resurgence of executions between 1920 and 1940. As can be seen in the following graph2(*), the 1930s marked the decade with the highest number of executions, averaging 167 per year (a figure which dropped to129 in the 1940s, 71 in the 1950s, and fell yet again to only 191 in 16 years, from 1960 to 1976). According to the U.S. Department of Justice, this figure reached its peak in 1938 with the record figure of 190 executions, compared to 147 in 1937 and 160 in 1939.

Fig. 1) `Executions by Year 1608-2000'

3) Towards the national abolition?

Despite the continuing abolitionist movement, it was only in 1972, in the case of Furman vs. Georgia, that capital punishment was first fundamentally questioned in the United States. This particular case had to do with a man who had been accidentally killed. The defense put forward the argument of the unconstitutionality of capital punishment, on the basis that it violated the Eighth Amendment of the Constitution of the United States: «Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.» The defense further claimed that the existing statutes in Georgia were arbitrary, capricious and irrational, and that race appeared to be the single motivating factor separating those selected for capital punishment from those who were not. Their final criticism, of the `unitary trial' procedure in which the jury returns the verdict for guilt or innocence at the same time as the sentence, was also accepted and later changed. On these bases, the court finally declared that the statutes of the death penalty in the State of Georgia were unconstitutional. In making this decision this decision, taken 3 votes against 4, it was not so much the sentence that had been criticized, as its methods of application. Only two justices condemned the principle of the sentence itself, whereas one voted for censure because he did not consider it as discriminatory towards minorities. The two other justices judged that the death penalty was excessively arbitrary. The Furman case was, nevertheless, one of the principal cases in the 1972 Supreme Court's review, along with the Earnest Aikens, Elmer Branch, and Lucious Jackson cases3(*).

4) Suspension by the Supreme Court

Therefore, it was on the 29th of June 1972 that the Supreme Court first suspended capital punishment in the United States. This moratorium commuted de facto the sentence of 629 death row inmates to one of life imprisonment. As a quick reaction, some retentionist states enacted new statutes to end the arbitrariness of capital sentencing, yet retained capital punishment in the regime of the Furman decision. Thus, during the 1970s, thirty-four States created new death penalty statutes and six hundred people were sentenced to death. Notwithstanding, as the Supreme Court on the whole did not recognize these laws, there were no executions from 1972 to 1976.

The President at the time, Richard Nixon, who was a fervent advocate of death penalty, created a federal capital punishment bill that would restore death penalty for certain federal crimes. This bill included murder, kidnapping, treason and hijacking of planes.

5) The restoration

Under the pressure of both the States and the government, the United States Supreme Court restored the death penalty and its new statutes in 1976 in Gregg v. Georgia. In this case, the Court decided that the new statutes did not violate the Eighth Amendment and that these «guided discretion statutes» could end arbitrariness. This new law also changed the trip procedure so that the verdict of guilt or innocence would be separated from the sentencing. In addition, the jury would be required to consider aggravating and mitigating circumstances (or factors) in the second phase. An aggravating factor is any important circumstance, proved by the evidence presented during the trial (such as prior criminal conduct), which makes the harshest penalty appropriate in the judgment. On the contrary, a mitigating factor is any evidence regarding the defendant's character or background as well as the circumstances of the crime that could work to reduce a sentence. It includes parental neglect, abuse, poverty, good conduct, provocation by the victim. If at least one mitigating factor could be proven, such as the age of the defendant during the crime, or a mental or emotional disorder, then death penalty could not be imposed. In a case with no mitigating factors, but where there existed one or more aggravating circumstances, capital punishment would be automatic. Finally, according to this new law, the Supreme Court of Georgia would be required to review each capital sentence given for prejudice and arbitrariness. In the end, the Supreme Court maintained that the state of Georgia could constitutionally the execution of Gregg, and on the 2nd of July, 1976, the de facto moratorium was removed.

6) Evolution of the application of death penalty since 1976

a) Number of executions

Since the reinstatement of death penalty in 1976, its evolution has varied considerably from decade to decade. From 1976 to the end of the 1980s, the number of executions slowly increased. Then, there was a resurgence in the 1990s, reaching a peak of 98 executions in 1999. Since then, the general trend is toward a reduction, as is evident in the following spreadsheet.

Fig. 2) United States Executions by Year4(*)

1976 - 00

1984 - 21

1992 - 31

2000 - 85

1977 - 01

1985 - 18

1993 - 38

2001 - 66

1978 - 00

1986 - 18

1994 - 31

2002 - 71

1979 - 02

1987 - 25

1995 - 56

2003 - 65

1980 - 00

1988 - 11

1996 - 45

2004 - 59

1981 - 01

1989 - 16

1997 - 74

2005 - 60

1982 - 02

1990 - 23

1998 - 68

2006 - 53

1983 - 05

1991 - 14

1999 - 98

2007* - 15

Total: 1071

*From January to the end of April 2007

b) Number of sentences

If the number of executions has been decreasing since the early 2000s, because of modifications in the appeal process, the number of prisoners on death rows has not. As can be seen in the following diagram, the number of prisoners on death row has consistently increased since 1953. It reached a peak in 2000 with 3601 inmates on death row in the United States5(*). The figures for the 1st of January 2007 show that there are around 3,350 prisoners under sentence of death. This jump in death row inmates can be explained by the duration of the imprisonment (due to long trials and appeal processes) and also by the still significant number of inmates sentenced to death.

Fig. 3) Prisoners on Death Row, 1953-20056(*)

c) Evolution of the criminal process

There have been subsequent evolutions regarding the definition of capital offences, and the methods and the limits of their application. The two main debates concern the death penalty and its application in juvenile offenses, as well as those cases involving the mentally disabled. In June 2002, the Supreme Court case of Atkins vs. Virginia ruled that executing mentally handicapped persons was unconstitutional, citing the Eighth Amendment (that which prohibits "cruel and unusual punishments"). Since then, 16 states decided to forbid capital sentence in such cases. More recently, in Roper v. Simmons, in March 2005, the Supreme Court declared capital punishment unconstitutional for crimes committed before the age of 18. Before this, of the 38 retentionist states, nineteen of them along with the federal government had set a minimum age of 18, five of them a minimum age of 17, and the fourteen others a minimum age of 16. Since 1976, 22 inmates have been executed in seven different states (Texas, Virginia, Georgia, Louisiana, Missouri, Oklahoma, and South Carolina) for crimes they committed as juveniles.

Such advances suggest a trend towards national abolition. However, for the time being and due to history, there remains the federal judicial system of the United States, and in the people's mindset, a deep and unchanging disposition favorable to the death sentence.

B. Criminal Law in the United States

In order to fully understand the limits of criminal law in the United States (also known as penal law), it is necessary to briefly outline the process. We will focus our study on general criminal law, which is applied at the Federal level and at the State level.

1) Who sentences to death?

Certain State courts, the Federal Government, and the U.S. Military all sanction death penalty. At the Federal level, the Supreme Court (composed of nine justices) presides over criminal cases. It is also responsible for judiciary, administrative and constitutional domains, and only concerns itself with only 2% of the criminal domain. In relation to the Federal Government, the death penalty is reserved as a solution for a large range of offenses related to homicide, but also for treason, espionage, and trafficking in large quantities of drugs. The Military Court can only pronounce the capital punishment in fourteen rare cases of murder and, in times of war, for desertion. The majority of the cases of death penalty come from State courts. The Constitution of the United States specifies the connections between the Federal and State institutions. In addition, every State has its own Constitution and its own Supreme Court that is empowered to interpret it. Therefore, each State has its own judiciary system and criminal law, resulting in autonomy but also a great complexity of analysis. Later, this paper will touch upon the various offenses subject to death penalty, according to each State.

2) The United States judicial system

American law is determined by common law, which is based on jurisprudence, that is to say the decisions given by the different courts. During a trial, the court refers to previous cases in order to make their decisions. This contrasts with the codified system, characteristic of Roman Germanic law, which is organized by codes. A principal theoretical tenet of the American system is that the defendant is innocent until proven guilty. Also, juries are only supposed to convict if guilt is established «beyond a reasonable doubt». There are a multitude of cases, however, where that standard does not seem to apply. Nevertheless, the United States ratified several international charters concerning fundamental judicial rights, such as the Universal Declaration of Human Rights (1948), the International Pact about Civil and Political Rights (1996), the International Convention on the Elimination of All Forms of Racial Discrimination (1963). Thus the American criminal law is supposed to provide the `right to a fair trial' as a fundamental principle. It consists of ten fundamental rights including the right to equal treatment before the trial, the right to be judged by an independent and impartial court, the presumption of innocence, the right to choose a lawyer or to have a lawyer appointed by the court, the right to be judged quickly. The Equal Protection Clause of the Fourteenth Amendment of the Constitution also guarantees all individuals equality before the law.

3) The criminal law

In the United States, the Criminal Law defines the crime and determines the legal punishment for criminal offenses. It is based on four primary tenets: punishment, deterrence, incapacitation, and rehabilitation. It is assumed that by imposing punishments for crimes, society can achieve justice and a peaceable social order. Contrary to the French penal system, the defense is held to provide evidence in order to prove the innocence of the accused. In other words, the defense has the burden of proof: e.g. DNA tests, and the testimony of the witnesses. This system, as we will see in part III of the essay, can have drawbacks for deprived people who are not able to afford a good lawyer and are, thus, often poorly or unfairly represented. The prosecutor, who represents the general interest--that is to say, the state--is provided ample financial means for all that is necessary throughout the process of the trial. Indeed, given that Common Law is based on jurisprudence, having greater resources to search for previous cases is an important advantage during any given trial.

The United States system is based on the adversarial system, as opposed to the inquisitorial one. This system of law relies on the skills of opposing lawyers, where the judge is relegated to facilitating the debate during the trial and remains neutral.

a) At the state level

In the American criminal law system, at the state level, there are four different courts of Law. The lowest one is the Magistrate's Court. They are numerous, are each run by one magistrate, and are competent to give a verdict on petty offenses (for which one risks a 6 month stint in prison or a fine of $500 maximum) and misdemeanors (offenses incurring up to one year of prison or less than $1000). Above the Magistrate's Court, the Trial Court is responsible for felonies (the lowest class of crimes) and any appeals coming from the Magistrate's Court (where the facts and the law are re-examined). After, the Intermediate Appeals Court is responsible for any appeals from the Trial Courts (where the law only is examined). Finally, the highest authorities are the Supreme Courts, which are the final courts of appeal. It is substituted by the Intermediate Appeal Courts if a state does not have a Supreme Court.

Every State maintains its own court structure and in this way determines different offenses and punishments. In the following diagram, composed by the Criminal Law, Lawyer Source, a general outline of the criminal court system on the State level is presented. (Sometimes, a criminal case can also go directly to the Federal Supreme Court.)

Fig. 4) State Criminal Court System7(*)

COURTS OF LIMITED JURISDICTION
These are State courts which are responsible for hearing specific types of cases. Many criminal cases can begin at this level. Examples of these courts include: traffic court, juvenile court, family court, court of claims, municipal court, district court, tax court, and county court.

COURTS OF ORIGINAL JURISDICTION
These courts have original jurisdiction over many criminal and civil cases. These are often called Circuit Courts or Superior Courts

CIVIL AND CRIMINAL COURTS OF APPEALS
In these courts, the judges will review questions of law to determine whether or not the defendant received a fair trial. Usually the appeals court will uphold the decisions made in the original court. However, if an error occurred in the original trial or during sentencing, the appeals court may reverse or remand the case.

STATE SUPREME COURT
The State supreme court is the highest court on the State level. It is also called the court of last resort. The State supreme court often hears the appeals of legal issues.

The United States Federal Supreme Court decides only a fraction of the cases presented, which usually involve important questions about the Constitution or Federal law.

b) The jury

Concerning juries, it is necessary to dissociate the Grand Jury from the Little Jury. The Grand Jury is dedicated to judiciary accusation and investigation. In the Federal Grand Jury and in the State one, members are selected in the same way. First they are chosen by drawing lots, and then are elected accordingly. Some are excluded or exempted for reasons of social or physical handicap, or in case of particular professions on the basis of a precise, exacting questionnaire to fill out. Before the trial, both parties can decline an unlimited number of members, by providing good reasons, but also a limited number without specifying why. This process of selection will be addressed later.

The selection method of the Little Jury is the same but it does not have the same role or action. At the State level, the case includes either a Little Jury if the penalty is more than six months imprisonment or a $500 fine. A ¾ majority is required for the sentence, except in cases of capital punishment, where the decision must be unanimous. At the Federal level, the right to ask for both the Grand and the Little Jury is cited in the Fifth Amendment.

4) How is death penalty sentenced?

The paper will now focus on the process of the death sentence itself (in chronological order), beginning after the prosecution. The administration of the death penalty is divided into four steps: Sentencing, Direct Review, State Collateral Review and Federal Habeas Corpus. A fifth stage in the process has recently grown in importance: the Section 1983 Challenge. During the sentencing phase, if the defendant is convicted for a capital crime (which varies according to the jurisdiction), he must be found eligible for the death penalty according to any aggravating or mitigating factors. The sentencing authority then chooses between death penalty and life imprisonment. The second step, the direct review, is a legal appeal during which the appeals court decides whether the decision was legally taken. The decision can be affirmed (as happens in 60% of the cases), reversed, or the defendant can be acquitted. In the event of an affirmation on direct view, the decision is final, but if a prisoner receives their death sentence in a State-level trial a possible third stage remains: they can request implementation of a State Collateral Review. Most of the time, at this point, the defendant claims ineffective assistance of counsel, after which the court must reconsider any evidence. However, only a mere 6% of death sentences are ever overturned after State Collateral Review. Following this review, or for a federal death penalty, cases go directly to stage four: Federal Habeas Corpus. This step guarantees that State courts, through the previous two stages, have done their best to protect the prisoner's Federal Constitutional Rights. This is an important step as about 21% of cases are reversed through Federal Habeas Corpus. A recent important evolution has added a fifth and final round of appeal. Under the Civil Rights Act of 1871 -- codified in 42 U.S.C. § 1983 -- anyone is allowed to establish a lawsuit for the purpose of protecting his civil rights. Thus, a State prisoner can refer to the Section 1983 Challenge to question and dispute their judgment of death. Recently, in the Hill v. McDonough case, the United States Supreme Court approved the use of Section 1983 defense, deeming Florida's method of execution as `cruel and unusual punishment', which is clearly forbidden by the Eighth Amendment.

After a sentence has been finally proclaimed, the last chance is a pardon and clemency. For federal crimes pardons can only be granted by the President, as written in the Constitution. However, the governors of most states have the power to grant pardons or reprieves for offenses under state criminal law.

Finally, concerning death penalty itself, the American criminal system is based on the justice model, which means the court punishes the convict, `hurting him in his body and in his soul'8(*). This study will limit itself to homicide-related offenses that are linked directly to the subject. In the nineteenth century, states could impose death penalty for a multitude of crimes. They gradually reduced the offenses, so that since 1977 the only crime for which prisoners could be executed has been criminal homicide, although most jurisdictions do require additional aggravating circumstances. The differences existing between the jurisdictions will be discussed in part II) of the essay.

Most of the jurisdictions provide «life without parole» as an alternative sentence to death penalty; that is to say a life long sentence without possibility of release. On the contrary to the French equivalent--in which a prisoner may be released on the grounds of good behavior--in the United States, a prisoner sentenced to life imprisonment actually spends the rest of his life in jail, unless otherwise pardoned, or if a successful escape is carried out.

5) Time spent on death row and living conditions in prison

Fig. 5) Average Time from Sentence to Execution (in years)9(*)

There are at the moment more than two million people in United States prisons. With about 300 million inhabitants in the country, this rounds to about one person out of 150, 500 prisoners out of 100,000, compared to 98 in France.10(*)

With the general improvements of living conditions in prison, the international progressive movements for the defense of Human Rights and new abolitionist countries around the world have introduced new topics of debate about the conditions of imprisonment. One of these new topics is found in the United States, where death row inmates usually spend between 11 and 12 years between sentencing and the actual execution11(*). This duration has been increasing lately. As the graph Fig. 5 shows, the average time spent in death row was around 4 years until 1983, peaking at 12 years in 1999 and 2001. According to the article «Vigilantism, Current Racial Threat and Death Sentences», published in the American Sociological Review, the time spent on death row also varies from state to state: «Since 1972, mean state delays from first death sentence to execution ranged from about 4.5 years (Nevada) to about 16 years (California, Nebraska).»12(*) Some inmates have been on death row for more than 20 years. During this time, they are totally isolated from the rest of the prisoners, they are excluded from general prison activities, and they spend 23 hours per day in their cells. This situation is considered in itself as a «social death penalty» by the French Catholic association «Collectif Octobre 2001»13(*). This unnecessarily long duration is due to the process of appeal. During the eighteenth century, the time spent in death row could be measured in days or weeks. But, during the suspension of the death penalty from 1972 to 1976, numerous reforms were introduced to create a less arbitrary system. This has resulted in lengthier appeals, as mandatory sentencing reviews have become the norm, and continual changes in laws and technology have necessitated reexamination of individual sentences. Justice Stephen Breyer noted that the «astonishingly long delays» experienced by the inmates were largely a result not of frivolous appeals on their part, but rather of "constitutionally defective death penalty procedures.»14(*) Such delays have been criticized by the opponents of death penalty, who consider that all the methods of execution violate the Eighth Amendment of the Constitution, which forbids «cruel and unusual punishment». The unbearable and uncertain waiting on death row is also unconstitutional in itself for the same reason. To execute an inmate after they have spent several years in prison makes the notions of deterrence and fair punishment, the two main social goals of the death penalty, lose their meaning. In Jamaica, if a convicted person has been on death row for more than five years, his sentence is automatically commuted to life imprisonment. The Jamaican court system considers the death penalty to be a failed system as no inmate deserves to endure such a long period of waiting, which effectively doubles the punishment, and is seen as «inhumane and degrading». Similarly, in Uganda the maximum duration is three years.

This solitary confinement is effectively a second punishment, especially since they never know precisely when they will be executed. For some of them, this isolation and uncertainty result in a deterioration of their mental state. Psychologists and lawyers talk about the «death row phenomenon» to describe the living conditions in death row (isolation, uncertainty and duration) and the «death row syndrome» to talk about the psychological effects that result from it. The waiting, loneliness and uncertainty are a form of torture that often makes inmates suicidal, delusional and insane. In addition, since 2002 it is unconstitutional to execute a mentally handicapped person. If a death row inmate is considered as one, the Court has to reexamine his case.

C. Geographic analysis of abolitionist and retentionist States today

1) Retentionist jurisdictions

Federally, thirty-eight States still have death penalty. Geographically, this number includes the southern states15(*) of: Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, Tennessee, Kentucky, Virginia, Maryland, Delaware, plus California, Nevada, Arizona, New Mexico, Washington, Oregon, Idaho, Utah, Colorado, Montana, Wyoming, (for the western region), South Dakota, Nebraska, Kansas, Missouri, Illinois, Indiana, Ohio, (for the Midwest) and Pennsylvania, Connecticut, New York, New Hampshire, and New Jersey for the Northeast. The states of New York, South Dakota, New Hampshire, and New Jersey and Kansas for the majority situated in the Northeast have not had any executions since 1976. In 2004, the death penalty statute in the states of Kansas and New York was declared unconstitutional, although there is one man is still waiting on death row in the State of New York.

By using the division made by the US Census Bureau, we can notice that the four different regions (West, Midwest, Northeast and South) can be themselves characterized as retentionist or abolitionist states. Indeed, all eleven states classified in the Western region have death penalty statutes; and fifteen states out of sixteen of those in the southern region use this sentence as well. The Midwest and Northeast regions appear more inclined to retentionist practices, with seven out of twelve, and five out of nine, respectively. However, we will see further that, after having taken into account different parameters, the South is the primary region which can be considered as retentionist in the U.S.

a) Geographical analysis of the retentionist states

Fig. 6) Map of the Abolitionist and Retentionist States16(*)

On this map, showing the abolitionist and retentionist states, we can see that most of the states without the death penalty are situated in the Midwest and Northeast. We will come back to this geographical configuration later and try to analyze it.

On the following map, we can notice that the most progressive states on this issue and the recent evolutions on death penalty sentencing have been concentrated in the North. Such advances taken into account include the death penalty statutes being declared unconstitutional in 2004 in Kansas and New York. Former evolutions are seen in the states of South Dakota, Kansas, New York, New Hampshire and New Jersey, where there has been no execution since the reinstallation of capital punishment in 1976.

Fig. 7) Death Penalty Statutes in the United States17(*)

* Excluding Federal Government

The U.S. Government and U.S. Military also have death penalty written into their laws, but the number of prisoners sentenced to death or executed is not very significant. The U.S. Military has not had any executions since 1961; however 9 inmates remain waiting on military death row. The U.S. Government has authorized 48 prosecutions since 1990 and only 3 people have been executed under this jurisdiction. All three were executed under the administration of President George W. Bush (1994-2000), whose term in office has also seen federal death row more than double in size. Given that in total the Federal Criminal Court has prosecuted only 48 people in 15 years (in comparison with 884 at the States level), then the frequency has increased recently, as is evident on the table below. There are currently 44 prisoners on federal death row.

Fig. 8) Number of Federal Death Sentences 1990-200518(*)

Year

2005

04

03

02

01

00

99

98

97

96

95

94

93

92

91

90

Federal Death Sentences

6

10

2

5

2

2

1

5

3

4

2

0

5

0

1

0

b) Evolution since 1976

Between the reinstatement of death penalty in 1976 and April 1st, 2007, up to 1072 inmates have been executed--a figure that has grown within the first four months of 2007, when 15 inmates were executed. Even though 38 States have the capital sentence in their laws, 80% of the executions that have happened since 1976 have taken place in the southern states. Texas and Virginia alone account for almost half of the number of executions (with, respectively, 392 and 98 between 1976 and 2006, making for a total of 490 of the 1072 total), followed by Oklahoma, Missouri and Florida. Except for the case of Missouri, these states are all situated in the South.

Within the first four months of this year (2007), there were 15 executions in the country and 13 were carried out in Texas. The two others took place in Oklahoma and in Ohio. By comparing the figures concerning the executions since 1976 and in the recent years, on the spreadsheet above and in the appendix 4 «Executions by State'19(*), we can observe that the general trend has not significantly changed. Texas has always been, since 1976, the state where the number of executions has been the highest. The states of Virginia, Oklahoma and Florida are just behind Texas, gathering all together more than the half of the total (638 executions out of 1072).

Nevertheless, few states seem to change their attachment to death penalty. The state of Missouri (which was the fourth-most prolific state in this classification), seems to move toward a more progressive policy. Indeed, the last execution in the state took place in October 2005 and a moratorium on the executions was imposed in 2006 and has been renewed since. However, the state of Ohio, on the contrary, which was the thirteenth state concerning the number of executions since 1976, was on the second position after Texas for the 2006 figures.

The hypothesis of the South being more retentionist is and will be confirm further, taking into account the number of executions, the number of death row inmates, and further in the essay, with the example of the state of Texas, by using the judicial process.

c) A stricter application in the South?

Fig. 9 ) Executions By State20(*)

STATE

TOTAL EXECUTIONS

EXECUTIONS IN 2006

EXECUTIONS IN THE FIRST FOUR MONTH OF 2007

TEXAS

392

24

13

VIRGINIA

98

4

 

OKLAHOMA

84

4

1

MISSOURI

66

 

 

FLORIDA

64

4

 

NORTH CAROLINA

43

4

 

GEORGIA

39

 

 

SOUTH CAROLINA

36

1

 

ALABAMA

35

1

 

LOUISIANA

27

 

 

ARKANSAS

27

 

 

ARIZONA

22

 

 

OHIO

24

5

1

INDIANA

17

1

 

DELAWARE

14

 

 

CALIFORNIA

13

1

 

ILLINOIS

12

 

 

NEVADA

12

1

 

MISSISSIPPI

8

1

 

UTAH

6

 

 

MARYLAND

5

 

 

WASHINGTON

4

 

 

NEBRASKA

3

 

 

MONTANA

3

1

 

PENNSYLVANIA

3

 

 

U. S. FEDERAL GOVERNMENT

3

 

 

KENTUCKY

2

 

 

TENNESSEE

2

1

 

OREGON

2

 

 

COLORADO

1

 

 

CONNECTICUT

1

 

 

IDAHO

1

 

 

NEW MEXICO

1

 

 

WYOMING

1

 

 

TOTAL

1072

53

15

As we can see in this spreadsheet, established by the Death Penalty Information Center21(*), in 2006, 53 people were executed in 14 different States: 24 inmates were executed in Texas, 5 in Ohio, 4 in Florida, North Carolina, Oklahoma and Virginia, and 1 in Indiana, Alabama, Mississippi, South Carolina, Tennessee, California, Montana, and Nevada. Such figures clearly show that the southern states use death penalty significantly more than in other regions of the United States. Indeed, a majority of the jurisdictions (nine out of fourteen) where executions were carried out in 2006 are situated in the South: Texas, Florida, North Carolina, Oklahoma, Virginia, Alabama, Mississippi, South Carolina, and Tennessee. The others, Ohio, Indiana, Nevada, Montana and California, are exceptions and as such will not be issues of primary focus in this essay.

Fig. 10) Executions by Region*22(*)

 

This spreadsheet shows the number of executions (at the federal and State level) by state since 1976.

*including federal executions which are listed in the region in which the crime was committed

It is obvious, according to the diagram Fig. 10, that there are many more executions in the southern states. Indeed, 82% of the executions between 1976 and today took place in the South.

Not only are executions in the South more frequent, but the number of prosecutions there is much higher as well. California has the highest number of inmates on death row with 660 out of 3357 nationwide23(*), compared to 397 in Florida, and 393 in Texas. These figures will be analyzed and compare to the number of inhabitants in part two to show that the southern states are more severe and discriminatory in their prosecution. We will be able to see also that the example of California is not very relevant and that it is necessary to use the rate of inmates per inhabitant in order to yield legitimate and comparative numbers.

We will also try to explain that there exist historical, as well as economical reasons for such a strict application, and will analyze the example of the state of Texas to find proof of this particular form of judiciary process.

2) States with moratoria

Among the states with death penalty statutes, several have recently imposed a moratorium on executions. A moratorium is a temporary suspension of executions while a legislative study commission examines the death penalty judicial system. Death penalty trials and appeals are not suspended during the study, only executions. Recent events, such as the controversy relating to the humaneness (or lack thereof) of the lethal injection practice, have resulted in moratoria in various states. In most states, a governor can impose a moratorium unilaterally. Most of the time, a governor or a senator requests a moratorium on the grounds of the application of the death penalty, rather than for ethical reasons. The state legislatures, made up of a state house of representatives and state senate, can also pass moratorium laws. Both bodies must pass the same law for it to take effect, and the governor has the power to veto any law if he wants to. Courts cannot impose a moratorium but can declare specific laws unconstitutional or suspend executions pending resolution of problems that violate their respective state or federal constitutions. If that happens, the states can appeal to a higher court or change the laws to comply with the court's concerns.

Usually, during the moratorium, a commission is created to study precise aspects of the death sentence in order to determine the fairness or the constitutionality of it. Several states have currently placed moratoria on the executions so that the procedures of execution by injection can be reviewed. But as the debate nowadays is very sensitive, and incites more and more states to impose a moratorium, and as the average duration of a moratorium is three months, it is difficult to give a clear and faithful picture of the states currently holding a moratorium. We will focus on the important moratoria that were imposed recently and their explanations.

a) States where death penalty statutes were declared unconstitutional

In New York, the state's High Court ruled in the case of People vs. LaValle (June 2004) that the state's death penalty statute was unconstitutional. The defense argued that the death sentence had been improperly imposed on two grounds: first, one of the jurors had been unfairly biased from the beginning of the trial, and had expressed partiality towards assigning the death penalty to rapists and murderers; and second, the trial was essentially based on the defendant's declarations and on an eyewitness testimony. For these reasons the court overturned LaValle's conviction along with his pending death sentence.

In the state of Kansas as well, death penalty was considered unconstitutional in 2004, concerning the manner in which jurors should weigh death penalty arguments during sentencing phases. Kansas law provides that when juries find arguments for and against execution to be equal in weight, their decision should favor a death sentence. However, this was decided to be a violation of both the Eighth and Fourteenth Amendments of the US Constitution.

Thus, the states of New York and Kansas are currently the closest states to abolish death penalty. According to Sam Millsap, a former prosecutor who used to require death sentences but who now is an abolitionist; a moratorium is «a very encouraging movement toward abolition». «I believe that the death penalty will be abolished in the U.S. but it will be a slow process and a state-by-state process.»24(*)

b) Moratoria for general death penalty concerns

Since death penalty was reinstated in Illinois in 1977, 12 men have been executed. During that same period, 13 men were freed from death row. The ratio of miscarriage of justice is thus more than ½. In January 2000, this finding prompted the outgoing governor of Illinois, Republican George H. Ryan to impose a moratorium on every execution on a technical foundation:

We have now freed more people than we have put to death under our system - 13 people have been exonerated and 12 have been put to death. There is a flaw in the system, without question, and it needs to be studied... I will not approve any more executions in this state until I have the opportunity to review the recommendations of the commission that I will establish.

Just before leaving the office in January of 2003, he commuted 167 inmates' capital sentences to life imprisonment and pardoned 4 inmates. When Democrat Rod Blagojevich was elected governor in 2002, one of his first acts was an attempt to revoke some of Ryan's commutations but the moratorium remained.

In New Jersey, in December 2005, a report was released by a commission into the fairness and financial costs of the death penalty and alternatives to capital punishment. From its conclusions, in January of 2006, Governor Richard J. Codey placed a one-year moratorium on the executions in the state, where no inmate has been executed since 1963. This was the first time that a moratorium was instituted by the legislation, rather than by executive order, in the United States.

In the State of Maryland, Governor Parris N. Glendening placed a moratorium by executive order, on the 9th of May, 2002, to determine if racial prejudices could influence the sentencing of the death penalty. But the subsequent governor, Robert Ehrlich, resumed the executions in 2004.

c) Moratoria because of lethal injection issue

In Ohio, on the 3rd of May 2006, the execution of Joseph Clark reinforced the already existing debate on lethal injection. His execution lasted one and a half hour. At the beginning of the execution, Joseph Clark, condemned for several armed attacks, was screaming "It does not work!» His vein exploded and media witnesses reported that they heard "moaning, crying out and guttural noises» before he finally died.

Two years after Governor Ehrlich reenacted death penalty in Maryland in 2004, the State High Court ruled that executions would be suspended until the process of lethal injections is reviewed.

The case of Angel Nieves Diaz, executed on 13th December 2006, in Florida, renewed the debate on lethal injection. Indeed, the first of the three injections, dedicated to stop the prisoner from breathing, was not strong enough to cause the awaited effect. The execution lasted 34 minutes, whereas it is supposed to last from 10 to 15 minutes. Following this botched execution, Governor Jeb Bush suspended all executions on December 15, 2006, until a commission investigates and gives its report on the lethal injection procedure.

In January 2006, in a Letter to the California Assembly, a Commission ruled that the lethal injection was unconstitutional and imposed a moratorium:

Given that DNA testing and other new evidence has proven that more than 121 people who sat on death rows around the country were actually innocent of the crimes for which they were convicted, we agree that a temporary suspension of executions in California is necessary while we ensure, as much as possible, that the administration of criminal justice in this state is just, fair, and accurate.

U.S. District Judge Jeremy Fogel imposed a moratorium on the death penalty in the state of California on December 15, 2006, ruling that the implementation used in California was unconstitutional. State proposals are due in June 2007.

In Missouri, U.S. District Judge Fernando J. Gaitan, Jr. of the United States District Court for the Western District of Missouri in Kansas City suspended the state's death penalty on June 26, 2006. The state's lethal injection protocol was considered to be against the Eighth Amendment because the procedures for implementing lethal injections were too vague, and the state had no qualified anesthesiologist to perform lethal injections.

In North Carolina, there is a de facto moratorium in place following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under State and Federal law.

Very recently, on the 2nd of February 2007, Phil Bredesen, governor of Tennessee, placed a three-month moratorium on the executions in order to reconsider the methods of execution used in the state (lethal injection and electrocution.)

As can be seen, a moratorium is often imposed in the face of doubts concerning the methods of execution, or the fairness of a death sentence. During this suspension, an impartial commission is often asked to study the controversial aspect. However, some abolitionists contend that a moratorium is not enough. The states of Illinois and New Jersey seem to be moving towards abolishing the death penalty due to the resolute convictions of protest groups.

Despite the questions raised in progressive evolutions, the United States are far from universal abolition. Indeed, some states are regressing in this area: Montana, Connecticut, Mississippi and Tennessee resumed executions after a long period of de facto moratorium.

3) Abolitionist states

In total, thirteen jurisdictions have completely abolished death penalty from their law25(*): Alaska, Hawaii, Iowa, Michigan, Minnesota, North Dakota, Wisconsin, West Virginia, Rhode Island, Vermont, Massachusetts, Maine, and the District of Columbia. All these abolitionist states are situated in the North, firmly suggesting that this region is more progressive. This position can be explained by different factors: historical, economic, social or demographic. We will try to study this particular geographical division utilizing the characteristics of the South and the judiciary process in Texas as references.

II Geographical analysis of the application of death penalty

D. A different application in the law

Among the retentionist States, the criminal systems differ according to the type of offense, and the method and application of death penalty. To take this study further would require comparing the criminal law systems of to each jurisdiction in their entirety, however this paper will focus its analysis on the capital crimes and the various execution methods used, putting aside the different processes used during the trial and appeal phase.

1) Offenses subject to the death penalty

At the federal level, capital punishment can result from 42 offenses, including 38 related to homicide. However, some states have stricter laws that apply in other cases. As shown in the appendix on page 8126(*), crimes subject to the death penalty vary by jurisdiction. All the jurisdictions which use capital punishment (38 retentionist states, the U.S. Government and U.S. Military) designate the highest grade of murder as a capital crime. In addition, there are a growing number of states that allow the execution of convicted child molesters. In Oklahoma, a bill was enacted that permits the death penalty for anyone convicted of rape, forced sodomy, lewd molestation or rape of a child under 14 years of age. In addition, most jurisdictions require additional aggravating factors for homicide-related cases. Treason is also a capital offense in several jurisdictions. In California, for example, the death penalty also can be imposed for wrecking a train, high treason and committing perjury that results in death. Other capital crimes include: aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; train wrecking which leads to a person's death, and perjury which leads to a person's death in California; aircraft hijacking in Georgia and Mississippi; aggravated rape of a victim the under age of 12 in Louisiana; capital sexual battery in Florida; and capital narcotics conspiracy in Florida and New Jersey.

At the federal level, death penalty crimes include various degrees and types of murder as well as treason, espionage, large scale drug trafficking, kidnapping across State lines resulting in the victim's death, and attempting to kill any officer, juror, or witness in cases involving a continuing criminal enterprise.

Under U.S. Military law; there are 14 crimes subject to the death penalty. Some of them, such as desertion, are only applicable in times of war.

Despite the variety of capital crimes among the various criminal systems, no one has been executed for a crime which was not a homicide since the reinstatement of the death penalty in 1976. The last execution for a rape was in 1964.

1) The different methods of execution used

Five methods of execution are prescribed in the United States: the lethal injection (in most cases27(*)), the electric chair, the gas chamber (or lethal gas), hanging, and the firing squad.

a) Description

- Lethal injection

The procedure of lethal injection is the most common, and varies from state to state. However, in most jurisdictions, a combination of three drugs is used. The first is a barbiturate that makes the prisoner unconscious. The second one is a muscle relaxant that paralyzes the diaphragm and lungs. Finally, the third causes cardiac arrest. Each chemical is fatal in the amounts administered and the procedure is supposed to last between three and seven minutes after the first injection. Nevertheless, sometimes it can happen that a vein collapses or the injection cannot be properly inserted. Some states give an extra sedative injection to facilitate the insertion.

Lethal injection is considered as the most `humane' method, in comparison with the other methods, but it has been more and more criticized due to problems with the executions. For example, on May 3rd 2006, Joseph Clark was executed in Ohio in such inadequate conditions that the prison's authorities decided to close the curtain so that the witnesses would not see the results. The execution lasted one and a half hours instead of a few minutes. Just before this event, The Lancet, a British medical review, had published an article about the process used, claiming that «there was no assessment of the depth of anesthesia before the paralyzing agent and potassium chloride were injected.»28(*) According to the journal, in most cases the convicted dies «awake, paralyzed, unable to move, to breathe, while potassium burned through your veins». The article denounces the conditions with which prisoners convicted to death are executed as insufficient even for veterinarians to kill an animal.

«Data from autopsies following 49 executions in Arizona, Georgia and North and South Carolina, showed that concentrations of the drug in the blood in 43 cases were lower than that needed for surgery. Twenty-one prisoners had drug levels that were consistent with awareness.»29(*)

Another example the same year, on the 13th of December, 2006, with the execution of Angel Diaz in Florida, renewed the debate on the lethal injection method. It required 34 minutes and a second dose of chemicals. The extensive debates concerning this method of execution have contributed to a moratorium being declared in one pro-capital punishment state.

- Electric chair

The electric chair is the second most used method of execution. The procedure is generally divided into three different electrocutions. The first one lasts eight seconds, programmed at 2,300 volts, followed by 1,000 volts for 22 seconds, then 2,300 volts for eight seconds. If the offender is not pronounced dead, the execution cycle is then repeated from the beginning.

The most common problems encountered are burning parts of the body, and a failure to cause death despite repeated shocks. If it is seen as violent, the electric chair is still the second most commonly used method right up till 2006, in Virginia. In October 2001, the Supreme Court of Georgia claimed that the electric chair was a cruel and unusual punishment and forbade the method in the state.

- Lethal gas

For the lethal gas method, the inmate is strapped down on different parts of his body (chest, waist, arms, and ankles), and wears a mask. The room is equipped with metal containers where a sulphuric acid solution and cyanide pellets are placed. If the prisoners take a deep breath, they are unconscious within a few seconds. However, if they hold their breath, it can take much longer, and the prisoner usually goes into convulsions. Death usually occurs within 6 to 18 minutes of the lethal gas emissions caused by hypoxia, the cutting-off of oxygen to the brain.

For this method, the most common problems are the obvious agony suffered by the inmates and the length of time before they actually die. A federal court in California found this method to be a cruel and unusual punishment.

- Hanging

For execution by hanging, the "drop" must be tailored to the prisoner's weight, to deliver the precise force to the neck (1260 lbf² [pounds per square foot]) to ensure a quick death. The rope is then placed around the convict's neck. If properly done, the inmate dies by dislocation of the third and fourth cervical vertebrae, or by asphyxiation. If the rope is too long, the inmate could be decapitated, and if it is too short, the strangulation could take as long as 45 minutes. However, instantaneous death rarely occurs with this method.

- Firing squad

The last method, firing squad, which is the least used, is also the least precise and can last very long. The offender is bound to a chair and has a white cloth circle attached by Velcro to the area over the offender's heart. The chair is surrounded by sandbags to absorb the inmate's blood. The squad, made up of three to six shooters, fires simultaneously. One of them has blank rounds in his weapon but no one knows which member has them. The shooters aim at the chest, because it is easier to hit than the head, causing rupture of the heart, large blood vessels, and lungs, so that the inmate dies of hemorrhage and shock. Sometimes, the officer in charge gives the prisoner a pistol shot into the head to finish them off after the initial volley has failed to kill them.

b) The application of each method

The majority of retentionist states utilize the lethal injection method. Among the 38 States with death penalty statutes, 19 States and the federal government only authorize lethal injection as the sole method of execution and 18 others offer this method as an alternative method of execution, to be used depending on the inmate's choice, the sentence, or the unconstitutionality of the main method. Electrocution is the sole option in 10 States (Alabama, Arkansas, Florida, Illinois, Kentucky, Nebraska, Oklahoma, South Carolina, Tennessee, and Virginia). In the remaining 8 States, the gas chamber, hanging, or a firing squad are the alternatives to lethal injection. Execution by lethal gas is an alternative method in four States: Arizona, California, Missouri and Wyoming; while in New Hampshire and Washington hanging is an alternative. Finally, death by firing squad is an alternative method in Idaho and Oklahoma. Nebraska is the only State where electrocution is the sole method of execution.

Fig. 11) Methods of Executions and their Frequency Since 197630(*)

Lethal Injection

903

Electric Chair

153

Gas Chamber

11

Hanging

3

Firing Squad

2

Since 1976, lethal injection has been the method most commonly used, as displayed in the table above. Of the 1072 inmates executed since 1976, 903 were killed by lethal injection, representing more than 84% of the total. The electric chair has been the second most used method since 1976 (14% of the total), the last electrocution being in Virginia, in 2006. The gas chamber was last used in Arizona in 1999. Hanging and firing squad were carried out for the last time in 1996, in Delaware and Utah, respectively. Even if lethal injection has been questioned lately, it remains the least `inhumane' or at least the quickest and a priori less painful method, which explains why only a few prisoners have ever requested one of the alternative methods. Between the beginning of this year and the end of April 2007, all 15 executions carried out were done by lethal injection.

E. Regional analysis and first explanations

As we saw earlier, there have been many more executions and death row inmates in the south of the United States than in the north. As previously outlined, 392 of the 1072 executions were carried out in the single state of Texas, representing 36.5% of the total. Together, the states of the South gather 879, i.e. almost 82% of the total executions. The regions of the Northeast and West have the lowest number of executions, with only 69 since 1976, being 6.4% of the 1072 total. Such observations on geographical disparities date back from the beginning of the history of death penalty. How can such differences by region be explained? Many studies have been carried on to discover the reason. Before proposing the explanation of racial discrimination and the unbalanced criminal law (with the case study of Texas), let's have a look at the other ones that have been analyzed.

1) Is there a link between the Republican Party and the death penalty?

It is also important to recall that, even if we have a picture of the Republican Party as a very right-winger one, it «was born from a spontaneous revolution against slavery, [but] it proclaimed itself in favor of «law and order», that is to say in favor of a rigorous policy on the racial issue.»31(*) According to J.P Lassale, The Republican Party is influenced by «the «new right wing», and the religious fundamentalism which supports it. (...) Today, the Republican values correspond to the strongly conservative tendencies of American public opinion.»32(*)

Some studies have tried to establish a link between the political parties and the presence or absence of the death penalty as well as its application. Such investigations have been carried out to determine precisely why or why not the death penalty is employed. According to the conservatives, deterrence is the best antidote for crime:

The threat of the death chamber will save many innocent victims from criminal violence. But liberals believe that crime is caused by inequitable conditions (...), so they are skeptical about harsh sanctions. (...) We expect more death sentences where conservative values dominate.33(*)

Thus, a parallel can be done between the Republican Party, the most conservative one, and a strict application of the death penalty. Let's now try to analyze the facts.

Fig. 12) Party control, Governors as of January 200734(*)

At the beginning of the year 2007, 22 states were ruled by Republican governors and 28 by Democrat ones. Since 1975, the District of Columbia has been ruled by a popularly elected mayor and city council, but there is no governor. Adrian Fenty, the current mayor, is a Democrat. In 6 of the 13 jurisdictions which have no death penalty statutes, the party in office is Democrat (Iowa, Maine, Michigan, West Virginia, Wisconsin and the District of Colombia), and in the seven others, the Republican Party is governing. Within the 38 retentionist states, 16 are Republican and 22 are Democrat. Thus, we cannot conclude that there is a link between the Republican Party and the application of the death penalty.

Nevertheless, one can observe that among the states with the highest number of executions (see figure 9 on page 20) the majority of them are ruled by the Republican Party. Indeed, among the nine states most likely to execute (Texas, Virginia, Oklahoma, Missouri, Florida, North Carolina, Georgia, South Carolina, and Alabama), six are governed by a Republican political majority (Texas, Missouri, Florida, Georgia, South Carolina, Alabama).

There may be a link between the Republican Party and death penalty, considering where it is applied, but apparently, not concerning its presence or absence in the law. It would be interesting to continue this analysis of death penalty's conspicuity in the law, but we will stop it there in order to pursue another hypothesis.

2) The historical explanation for a stricter application in the South

Various studies also have been carried out to show the link between the more widespread application of the capital sentence in the southern states and the fact that they were pro-slavery before the American Revolution.

In the article `Vigilantism, Current Racial Treat, and Death Sentences', from The American Sociological Review, a group of scholars attempted to highlight the link between the slavery past of the southern States and the fact that they use the death penalty more strictly and more often. «The states that once had the highest lynching rates now appear to use the death sentence most often. (...) Death sentences [are] especially likely in states with the largest minority populations that also had a history of frequent vigilante violence.»35(*) They also explain the stricter application of death sentences in the south by what they call the `racial threat'. «Larger black populations produce increased votes for anti-minority candidates (...), who often support harsh punishments.»

In From Lynch Mobs to the Killing State, a collection of essays edited in 2006, Timothy Kaufman-Osborn makes an insightful and well-developed examination of the contention that pervasive racism in the criminal justice system renders the contemporary execution of African-American men as unjust as the historical lynchings that occurred throughout the United States. Ultimately, he uses the term «lynching» to describe the contemporary capital punishment, which «conceals as much as it reveals.» It is clear that some authors believe racism is a root cause of discrimination in the capital justice system.

Thus, racial discrimination seems to be at the origin of such differences of application of death penalty. In order to justify such a hypothesis, we will try to compare death penalty numbers to other figures, related to social, economic and racial parameters.

F. Comparison with other figures

As we have seen, the figures show that the southern states use the death penalty more often than the northern ones36(*). But it is necessary to use demographic, racial and economic parameters to prove any discrimination. This section will compare the death row population and the number of executions to the number of inhabitants by state before putting forward a hypothesis that the southern states use death penalty more readily or more discriminatorily. It will also analyze the composition of the prison population by race and compare the figures of the death row inmates to the inequality of income to provide evidence of a racial, social and economic discrimination. Finally, we will present the crime rates by region.

1) Demographic analysis

a) Proportion of death row inmates related to state population

According to the following spreadsheet, the overall number of death row inmates in the population of each State varies considerably, with disparities reaching 400%. This ratio between the death row population and the total population of each state is a better source of information with which to compare the number of death row inmates. Indeed, it permits to rationalize the number of inmates in California, which is the highest nationwide with 660 prisoners in death row, in comparison with the national average of 86.95. Due to the large population in California, when measured in terms of inmate proportionality, the state of California holds the 11th position. Conversely, the state of Alabama, which is less populous but counts only 195 death row inmates, occupies the first position of inmates per person. The State rate, 4.24 inmates per 100,000, is almost 4 times superior to the average of 1.14.

Fig. 13) Number of Inmates per 10.000 Inhabitants in 200637(*)

State

2006 Population (x 10,000)

# of death row inmates

Rate per 10.000 pop.

Alabama

459,9

195

0,424

Nevada

249,6

80

0,321

Oklahoma

357,9

88

0,246

Mississippi

291,1

66

0,227

Florida

1809

397

0,219

Delaware

85,3

18

0,211

North Carolina

885,7

185

0,209

Louisiana

428,8

88

0,205

Arizona

616,6

124

0,201

Pennsylvania

1244,1

226

0,182

California

3645,8

660

0,181

Tennessee

603,9

107

0,177

Texas

2350,8

393

0,167

Ohio

1147,8

191

0,166

South Carolina

432,1

67

0,155

Idaho

146,6

20

0,136

Arkansas

281,1

37

0,132

Georgia

936,4

107

0,114

Kentucky

420,6

41

0,097

Oregon

370,1

33

0,089

Missouri

584,3

51

0,087

South Dakota

78,2

4

0,051

Nebraska

176,8

9

0,051

Wyoming

51,5

2

0,039

Indiana

631,4

23

0,036

Utah

255

9

0,035

Kansas

276,4

9

0,033

Virginia

764,3

20

0,026

Connecticut

350,5

8

0,023

Montana

94,5

2

0,021

Maryland

561,6

8

0,014

Washington

639,6

9

0,014

New Jersey

872,5

11

0,013

New Mexico

195,5

2

0,010

Illinois

1283,2

11

0,009

Colorado

475,3

2

0,004

New York

1930,6

1

0,001

New Hampshire

131,5

0

0,000

Total

26115,9

3304

 

Average

687,3

86,95

0,114

It is interesting to notice that, aside from Nevada, the states where the number of death row prisoners per inhabitant is the highest are situated in the South (as Oklahoma, Mississippi, Florida, North Carolina...). Concurrently, this table also verifies that the majority of States where the proportion of inmates per inhabitant is the lowest are situated in the Northeast: New Hampshire, New York, Illinois, and New Jersey. This first comparison of the number of inmates per inhabitant of each state confirms the hypothesis that the southern states apply death penalty more freely than in the north.

b) Actual number of executions per inhabitant

The same comparison can be done taking into account the number of executions per inhabitant. Indeed, as shown in the following spreadsheet (figure 14), the states of Oklahoma, Texas, Delaware, Virginia, Missouri, Arkansas and South Carolina, all of whom are situated in the southern part of the country, are examples of states with a higher incidence of executions per inhabitant. It is important to relate the number of executions to the population because the measurement is much more relevant. Oklahoma, for example, which has only executed 84 prisoners since 1976, is the first state in term of execution rate per inhabitant, with 2.35 executions per 100,000 inhabitants.

Fig. 14) State Execution Rates (2006)38(*)

State

2006 Population (x 10,000)

Total # of executions

Rate per 10,000 pop.

Oklahoma

357,9

84

0,235

Texas

2350,8

388

0,165

Delaware

85,3

14

0,164

Virginia

764,3

98

0,13

Missouri

584,3

66

0,113

Arkansas

281,1

27

0,096

South Carolina

432,1

36

0,083

Alabama

459,9

35

0,076

Louisiana

428,8

27

0,063

Nevada

249,6

12

0,048

North Carolina

885,7

43

0,049

Georgia

936,4

39

0,042

Arizona

616,6

22

0,036

Florida

1809

64

0,035

Montana

94,5

3

0,032

Indiana

631,4

17

0,027

Utah

255

6

0,024

Mississippi

291,1

8

0,027

Ohio

1147,8

24

0,021

Wyoming

51,5

1

0,019

Nebraska

176,8

3

0,017

Illinois

1283,2

12

0,009

Maryland

561,6

5

0,009

Idaho

146,6

1

0,007

Washington

639,6

4

0,006

Oregon

370,1

2

0,005

Kentucky

420,6

2

0,005

New Mexico

195,5

1

0,005

California

3645,8

13

0,004

Connecticut

350,5

1

0,003

Tennessee

603,9

2

0,003

Pennsylvania

1244,1

3

0,002

Colorado

475,3

1

0,002

Kansas

276,4

0

0

New Hampshire

131,5

0

0

New Jersey

872,5

0

0

New York

1930,6

0

0

South Dakota

78,2

0

0

These tables were put together in order to take into account the number of executions of death row inmates per inhabitant of each state. In doing so, one notices the ostensible predisposition of the southern states to sentence an inmate to death, and to execute more liberally. The differences between the two spreadsheets can be explained by the different durations spent on death row due to different trial procedures, especially in appeal. For example in California the high number of death row prisoners is not enough on its own to denounce the criminal system, because as seen from the other table, it condemns and executes relatively less than other states.

It is also interesting to compare the death row population to the total population and the execution rate. If the classification of the state of Oklahoma in the two spreadsheets is almost at the same level (in 3rd and 1st position) provides a convincing snapshot of their position on the issue, relative to the other states, this is not the same for Texas. The state of Texas, which has a relatively low population on death row in comparison to the other retentionist states, is in second position for the number of executions per person. This dissimilitude can be explained by the fact that trials and appeal processes are very expeditious in this state. We will study the case of Texas in more detail in the third part of the paper.

The analysis of the differences among the retentionist States shows how difficult it is to deal with the United States capital sentence in its entirety, due to State by
State disparities. In order to try to analyze such discrepancies in the application of the death penalty, it is necessary to take into account other parameters such as the composition of the death row population, compared to the wider population, taking into account the race of the victims.

2) Racial analysis

a) The United States society, a heterogeneous composition

First of all, the composition of the population of the United States is extremely varied. Due to migration waves since the creation of the country, the population is often described as a `melting pot'. However, as can be seen in the following table Fig.15, the majority of Americans are white (75.1%). The black or African-American and Hispanic populations represent only 12.3% and 12.5% of the total, respectively. There is also 3.6% of Asian people as well as 5.5% of `some other race'. The phenomenon of the melting pot and the mixing of the different communities have resulted in 2.4% of inhabitants being considered as having `two or more races'.

Fig. 15) Population of the United States by Race and Hispanic Origin (2000)39(*)

Race and Hispanic or Latino

Number

Percent of Total Population

RACE

 

 

Total Population

281 421 906

100

One Race

274 595 678

97,6

White

211 460 626

75,1

Black or African American

34 658 190

12,3

American Indian and Alaska Native

2 475 956

0,9

Asian

10, 242,998

3,6

Native Hawaiian and Other Pacific Islander

398 835

0,1

Some Other Race

15,359, 073

5,5

Two or More Races

6 826 228

2,4

 

 

 

HISPANIC OR LATINO

 

 

Total Population

281 421 906

100

Hispanic or Latino

35 305 818

12,5

Not Hispanic or Latino

246 116 088

87,5

As shown in the following map, the repartition of the different communities varies geographically. The majority of the black population lives in the Southeast of the country. It is interesting to notice that the concentration of the African American community corresponds to the same areas where death penalty is most used (see figure 9 on page 20 `Executions by state'): Texas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, North Carolina and Virginia. We will see further that this repartition is somewhat echoed by the racial distribution of the prison population.

Fig. 16) Percentage of Black or African American (2000)40(*)

b) Death row, a demographic account

It is interesting to compare the composition of the national population (detailed in the previous spreadsheet) to the death row population (in the following pie chart). One notices that although the proportion of African Americans in the country is 12.3%, this minority is much more represented on death row41(*). Indeed, 42% of the total death row population is black i.e. 1397 inmates of the 3350 total nationwide. This difference also exists conversely for the white population: although they account for 75.1% of the population, only 45% of the death row population is white. This means that 0.004% of the black community in the United States is on death row in comparison to only 0.0007% for the whites and 0.001% for the Hispanics.

Fig. 17) Race of Death Row Inmates (2007)42(*) Fig. 18) Race of Defendants Executed

*including inmates sentenced by both the US Government and the US Military.

7 inmates were sentenced in more than one state, resulting in a total slightly higher than 3,344 when the individual states are combined.

By comparing the death row population (figure 17) and the race of the defendants executed (figure 18), one notices that the composition is very different. This must be the result of exonerations. Black people, then, are more often exonerated, because, as we will see further in this essay, trials involving African Americans, who are generally poorer, are unbalanced and expeditious, and the court appointed lawyers are not experienced or sometimes not even specialized in criminal law.

c) State by State composition of the death row population

Having shown that African Americans are over represented in the death row, this paper will now study the composition of the death row population State by State. As we have seen in figure 17, the repartition of black and white inmates is similar (45% of white and 42% of black) but the following spreadsheet shows that the repartition of the death row population by race varies significantly according to the State. Indeed, in 16 States (in bold in the following spreadsheet), the percentage of black people is above the national average, reaching 100% in the state of New York. Most of the States where the percentage of black inmates among the death row population is superior to the national average are situated in the south. Indeed, the States of Alabama (with 48% of black people in the death row), Arkansas (with 62%), Colorado (50%), Georgia (47%), Louisiana (63%), Mississippi (53%), North Carolina (57%), and Virginia (60%) all are situated in the Southeast and have a higher proportion of black people on death row.

Fig. 19) Death Row Populations by Race and by State (2007)43(*)

State

Total

Black

%

White

%

Hispanic

%

Asian + Native Amer.

%

Alabama

195

93

48%

100

51%

2

1%

0

0%

Arizona

124

13

10%

88

71%

20

16%

3

2%

Arkansas

37

23

62%

14

38%

0

0%

0

0%

California

660

235

36%

254

38%

136

21%

35

5%

Colorado

2

1

50%

0

0%

1

50%

0

0%

Connecticut

8

3

38%

3

38%

2

25%

0

0%

Delaware

18

7

39%

8

44%

3

17%

0

0%

Florida

397

139

35%

221

56%

35

9%

2

1%

Georgia

107

50

47%

53

50%

3

3%

1

1%

Idaho

20

0

0%

20

100%

0

0%

0

0%

Illinois

11

3

27%

5

45%

3

27%

0

0%

Indiana

23

7

30%

16

70%

0

0%

0

0%

Kansas

9

4

44%

5

56%

0

0%

0

0%

Kentucky

41

9

22%

31

76%

1

2%

0

0%

Louisiana

88

55

63%

30

34%

2

2%

1

1%

Maryland

8

5

63%

3

38%

0

0%

0

0%

Mississippi

66

35

53%

30

45%

0

0%

1

2%

Missouri

51

21

41%

30

59%

0

0%

0

0%

Montana

2

0

0%

2

100%

0

0%

0

0%

Nebraska

9

1

11%

5

56%

3

33%

0

0%

Nevada

80

29

36%

42

53%

8

10%

1

1%

New Jersey

11

6

55%

5

45%

0

0%

0

0%

New Mexico

2

0

0%

2

100%

0

0%

0

0%

New York

1

1

100%

0

0%

0

0%

0

0%

North Carolina

185

98

53%

72

39%

4

2%

11

6%

Ohio

191

96

50%

88

46%

3

2%

4

2%

Oklahoma

88

33

38%

48

55%

3

3%

4

5%

Oregon

33

3

9%

26

79%

2

6%

1

3%

Pennsylvania

226

137

61%

68

30%

19

8%

2

1%

South Carolina

67

38

57%

29

43%

0

0%

0

0%

South Dakota

4

0

0%

4

100%

0

0%

0

0%

Tennessee

107

43

40%

59

55%

1

1%

4

4%

Texas

393

161

41%

121

31%

107

27%

4

1%

Utah

9

1

11%

6

67%

1

11%

1

11%

Virginia

20

12

60%

8

40%

0

0%

0

0%

Washington

9

4

44%

5

56%

0

0%

0

0%

Wyoming

2

0

0%

2

100%

0

0%

0

0%

Considering the state of California, the following table extracted from a study44(*) carried out in 2005, shows that within the death row population of the State - the largest of the United States - the different communities are not represented in prison in the same proportions as in the whole State. Here, as in the south-east, the African American community is much more represented (36%) in comparison with the population (6.7%).

This raises the question of whether death sentencing rates for African Americans are disproportionate to the rate of involvement of African Americans in capital offenses. According to Human Right Watch, in twelve states, between 10% and 15% of adult black men are in jail.45(*)

Fig. 20) Racial Breakdown of California Death Row Inmates and State Population

 

Death Row Population (2005)

State Population (2000)

Race

Number

Proportion

Proportion

White

253

39%

27.1%

Hispanic

128

20%

32.4%

African American

233

36%

6.7%

Asian and others

34

5%

33.8%

d) Racial discrimination by function of the defendant and the victim

In order to discover if there actually is racial discrimination at work in the application of the death penalty, this paper will investigate the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of the death sentence.

«Of the 205 people executed for inter-racial murders in the USA, for example, 193 were black defendants charged with killing a white person, while only 12 were white defendants charged with killing a black individual.»46(*)

According to a study47(*) carried out by the Federal Bureau of Investigation, «in homicides where the race of the offender was known, 50.0 percent were black, 47.6 percent were white, and 2.4 percent were other races.» By comparing these rates to the composition of the death row population, we can see that 42% of death row inmates are black. It seems that death sentence is not given more quickly to black offenders.

One can also investigate the race of the victims in criminal cases.

The same study carried out California shows clear regional disparities in death sentencing, with counties in California that have a lower population density and a higher proportion of non-Hispanic whites in their populations to have the highest rates of death sentences. California leads the country in the number of homicides perpetrated (in 2001, there were 2,206 homicides in the state, followed by 1,332 in Texas, 986 in Illinois, 960 in New York, and 874 in Florida). Between 1980 and 1997, 37.6% of the homicide victims were Hispanic (while they represent 25.8% of the population), 29.4% were African Americans (for 7.4% of the population), 27.6% were white (43.2% of the population), and 5.4% were Asian or from another community (representing 23.6% of the population of the state). According to the study, African Americans are therefore more likely to be a victim of a homicide.

The victimization rate for African Americans in California is high, but not unusual. National estimates from the National Crime Victimization Survey in 2000 show that African Americans reported 34.1 instances of victimization from violent crime per 1,000 population, compared to 27.9 for Hispanics, 26.5 for whites, and 8.4 for Asians.

The study also found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than if a Hispanic had been killed.

Fig. 21) Race of Victim in Death Penalty Cases (2006)48(*)

 

About 80% of the murder victims in cases resulting in an execution were white, even though nationally `only' 49% of murder victims generally are white49(*).

According to a study established by the Death Penalty Information Center, while 14% of cases resulting to a capital sentence involve a homicide in which the victim was black, this figure rises by 79% when it involves a white victim. These figures could simply show that in a big majority of murder cases, the victim is white. But according to the Federal Bureau of Investigation, in 2004, only 49.8% of murder victims are white and 47.6 percent are black50(*). According to these figures, a murder involving a black victim results less often in the offender being sentenced to death. Indeed, in 47.6% of the homicides cases, the victim is black, whereas only 14% of the cases involving a black victim results to a death sentence. According to a study51(*) conducted in 2003 by Baldus and Woodworth, «cases involving black defendants and white victims are treated more punitively than cases with all other defendant/victim racial combinations». Another study shows that "the post-Furman remnants of racism are most apparent in cases involving black defendants and white victims."52(*) Such occurrences are even more obvious in rape cases. This phenomenon is called the `race-of-the-victim effect' by the General Accounting Office53(*). Thus, criminal courts are stricter in the application of the death penalty when the victim is white, which is in itself discriminative.

Justice should be equal towards each citizen, according to the 14th Amendment of the Constitution which stipulates, in Section 1, that a state government should not deny «to any person within its jurisdiction the equal protection of the laws.» This equal protection clause should protect individuals from arbitrary discrimination by government officials. Despite this Amendment, it is known that black Americans do not enjoy equal protection of the laws. In the past already, the 1896 Supreme Court decision in Plessy v. Ferguson exemplified the denial of equality to black Americans in its sanction of «separate but equal» treatment of people based on race. Both before and after Plessy, racial segregation was a firmly established fact of American life, with the separate facilities for blacks hardly ever equal to those provided for white Americans, in front of economic and social conditions, education, work and, of course, justice. According to the authors of `The Rope, the Chair and the Needle'54(*), black defendants are much more likely to be sentenced to death in interracial rapes than white rapists and black murderers who rape their victims before killing them are the most likely of any group to receive death penalty.

A comprehensive study55(*) of the death penalty in North Carolina also scrutinized all homicide cases that occurred in the state over a five-year period, from 1993 to 1997 in order to attempt to identify which homicides are more likely to end in the death sentence. Among the 3,990 homicide cases that took place during that period, 99 first-degree murder cases eventually received death sentences, and 303 first-degree cases received life sentences. The study, carried out in 2001, finally found that the chances of receiving a death sentence in North Carolina rose by 3.5 times among those defendants whose victims were white.

3) Economic influence concerning death penalty and its application

The following map demonstrates the inequality of income in the United States. It is interesting to compare this map to figure 16, `Percentage of Black or African Americans', on page 40, which shows that the areas where there is a concentration of the Black community correspond to those where the economic disparities are more important. This paper will not go further on this line of study but will consider that this population is the poorest of American society.

Figure 21 goes further still, highlighting links between States where economic disparities are the lowest, and where the death penalty has been abolished (see figure 7 `Death Penalty Statutes in the United States' on page 18). Indeed, most of the abolitionist states--such as North Dakota, Minnesota, Wisconsin, Iowa, Michigan, Rhode Island, Massachusetts and Vermont--which are situated in the Midwest and Northeast of the country, correspond to those where there are the fewest income inequalities. In Kansas and New York State, where there have been no executions since 1976, the level of disparity is considered as the `most equal' or at least `more equal'. In the same time, the map also shows that the region of the Southeast has a more unequal income distribution.

One could pose the hypothesis that economic inequalities are at the origin of a stricter application of death penalty due to a certain racism and conflict between the different communities which compose American society.

Fig. 22) Household Income Inequality in the United States (2000)56(*)

Many studies have proven that poor people coming from minority populations are more likely to be sentenced to death, resulting in an equally poor representation during the trial. Indeed, most of the time a poor defendant -- often from a minority -- cannot afford a lawyer and is represented by a lawyer appointed by the State. Not only do economic disparities create social unbalance, but they also create inequality before the justice system.

4) Criminal rate and deterrent effect

As we know from different studies, films and documentaries, the United States is an uncommonly violent country. As we can see below, the homicide rate is about three times higher than it is in most of the Western European countries. It is difficult to give a reason for such a figure.

Fig. 23) Murders in Europe and the United States57(*)

Film-maker Michael Moore has suggested that the omnipresence of arms in the country and the general mistrust and fear of the American citizens could be the source of this violence. In his documentary Bowling for Columbine (2002), he seeks the reasons for such high rates of violence and the legality of bearing arms. In 1997, 32,436 persons died because of a firearm, and 64,207 were injured. In the United States, death by firearms is the second cause of mortality after car accidents. «In Great-Britain, 19 people per year are killed; in France, they are 109; in the United States, 5285.»58(*)

The right to bear arms is almost a fundamental one, written in the United States Constitution in the Second Amendment «A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.» Organizations such as the National Rifle Association fervently defend this right and form a powerful firearm lobby.

In his book `Death penalty in the United States', André Kaspi, considered as the specialist on American society, proposes the explanation of drugs as a factor of violence. «Drug addicts with withdrawal symptom, looking for the necessary money to buy their daily dose, steal, burglarize and kill.»59(*) Kaspi also suggests that racism can explain the existing violence.

As shown in the following document60(*), the crime rate is much higher in the South than in any other region, with 6.2%, in comparison with 4.7%, the national rate. Economic disparities are a factor in the unbalance, confirming a link between relative poverty and crime.

Fig. 24) Murder and Non Negligent Manslaughter

United States total

Northeast

Midwest

South

West

Total

Rate

Total

Rate

Total

Rate

Total

Rate

Total

Rate

10,335

4.7

1,305

3.2

1,621

3.8

4,388

6.2

3,021

4.7

The following document established by the Federal Bureau of Investigation confirms that the South is the region of the country where there is the bigger number of property crimes as well as violent crimes. According to the institution, the South accounts for over 80% of executions. The Northeast, which has less than 1% of all executions, again had the lowest murder rate.

Fig. 25) Regional Crime Rates per 100,000 Inhabitants61(*) (2004)

The question of deterrence has been widely studied by organizations such as the National Coalition to Abolish the Death Penalty.

«The average murder rate per 100,000 people in U.S. states with capital punishment is about 8%, while it is only 4.4% in abolitionist states. (...) In California, between 1952 and 1967, there was an average of one execution every two months. From 1968 to 1991 there were no executions. The homicide rate was twice as high in the earlier period than it was in the latter. In New York, between 1907 and 1964, 692 executions were carried out. On average, over this 57 year period, one or more executions in a given month added a net increase of two homicides to the total committed in the next month.»62(*)

In 2000, The New York Times carried out a study63(*) on 10 of the abolitionist states. It appeared that the average murder rate in death penalty states was higher than the average rate in non death penalty states. «Wisconsin was the first state to abolish death penalty, in 1853. Twice less crimes are committed there, than in Texas, the state that account for the larger number of executions.»64(*)

In 1976, Canada has abolished death penalty and the murder rate declined slightly the following year (from 2.8 per 100,000 to 2.7) and since, the general trend is clearly downwards.

It seems that the existence of death penalty does not deter crime. We will not go further into this analysis of the effectiveness of death penalty as deterrent, but it is clear that the general trend is that the death penalty is not an effective tool for the judicial system.

III The case study of Texas

In order to analyze the faults of the judicial process in the South, we will use the case study of Texas to prove the hypotheses already proposed concerning an unbalanced criminal system. I chose the example of Texas as a case study for various reasons. First of all, from the perspective of a French person, the State of Texas is in large part a grand symbol of American society, and of its conservatism. One could consider this emblematic of «stereotypical America» and all the prejudices presupposed or included therein. The state of Texas is considered to be «the capital of executions»65(*) by Sam Millsap, former prosecutor who is now pro-abolition; and by A. Kaspi as, «the barbarous, sanguinary and unfair state, and the emblematic representation of the American society.»66(*) George W Bush, who was the governor of the State from 1995 to 2000, «boasts to be the champion of executions.»67(*) He openly associates himself with death penalty practices. Secondly, throughout my researches, readings, and studies, I noticed that Texas is very radical and strict in the application of death penalty. Indeed, it is rather obvious that their system of criminal law is less balanced and more biased than others.

G. General description of the State

1) Geography

With an area of 261,797 square miles (678,051 km²) and a population of 23.5 million inhabitants, the State is second-largest in territory, behind Alaska, and population, behind California. The State of Texas also has the longest common border which it shares with Mexico. The biggest cities are Austin (the capital), Houston, San Antonio, Dallas, Fort Worth and El Paso.

2) Demography

In 2005, the State had an estimated population of 23,507,783 inhabitants in 254 different counties. As in the rest of the U.S., the population of Texas grows considerably (by 12.5% per year) because of a positive birth rate, but also because of immigration from outside the United States (resulting in a net increase of 801,576 people pre year), and migration within the country (producing an increase of 451,910 people). As of 2004, 15.6% of the population is composed of foreign-born citizens (3.5 million people), including an estimated 1.2 million illegal immigrants (that is to say 1/3 of the foreign-born population in comparison with 5.4 percent of the total state population).

According to the 2005 US Census, 84% of the population of Texas is white, 12% is Black or African American and the 4% remaining finds its origins elsewhere. People from Hispanic origin account for 35% of the population; this number is also growing quite considerably with all the illegal immigration that takes place.

The majority of Texans live in urban areas. About half the State's population resides in either the Dallas-Fort Worth, or Houston, metropolitan area. Considering the vastness of the State, let's try to analyze the division of these different communities according to region: the east, north and center of Texas, is inhabited by white people of British, Irish and German descent, with a strong White Protestant heritage; African Americans are concentrated in Dallas and Houston, as well as in eastern parts of the state where the cotton plantation culture was most prominent before the American Civil War; and Hispanic people dominate the southern, south-central, and western regions, and comprise a significant portion of the residents in San Antonio, Houston, and Dallas. In this way, the composition of the population in urban Texas is diverse, to say the least.

3) Criminality

The Nation's most populated region, the South, accounted for 36.1 percent of the total population in 2004. Forty-three percent of estimated murders were reported here, topping out at 6,942. What is more, in 2004, the southern states tallied a rate of 6.6 murders per every 100,000 people, a 5.0% decline from the 2003 rate.

In the year 2000, Texas had a total Crime Index of 4,955.5 reported incidents per 100,000 people. This ranked the state as having the 8th highest total Crime Index in the U.S. In 2005, the state recorded 6.2 murders per 100,000 people, in comparison to the national rate of 5.668(*) (ranking 16th in the category of murder rate69(*)). After having reached a peak in 1980 with 16.9 murders per 100,000 inhabitants, this rate dropped to 5.9 in 2000; that is to say it was at its lowest in 40 years, and the rose again to 6.2 in 2005. If this rate shows a decrease in the 1980-2005 period, it is because of the population growth which occurred during this time. In fact, the number of murders continuously rose from 1960 to 1991, passing from 824 to 2,652 murders, and slowly fell to 1,407 murders in 200570(*).

In certain Texan cities, murder rates were much higher than the rate calculated for the state as a whole; that is to say that certain cities among others recorded much rates than others. In 2005, in Houston, there were 334 homicides, for a murder rate of 16.3 per 100,000 inhabitants. And Dallas had the highest homicide rate of the state, with 16.4.

It is difficult to give an explanation of such violence, whether speaking of Texas or even the country as a whole. As we have seen before, various explanations have been proposed: rampant bearing of firearms, drug use, or simply ethnic and racial tension.

H. Politics and justice

As we previously mentioned, each state has its own judicial system, criminal law, court structure, appeal system. Let's first study the political and court structure of the State.

1) The executive power

We will focus our analysis of the executive branch on the role it plays in the death penalty process. Concerning death penalty, the Governor can only overturn a death sentence upon the positive recommendation of the Texas Board of Pardon and Parole. The Governor may choose to ignore the Board's recommendation for clemency and carry out an execution just the same. However, the opposite is not possible--the Governor cannot commute or overturn a sentence if the Board does not recommend such. The only unilateral option the Governor has is to issue a 30-day stay of execution.

2) Court Structure of Texas

In the following document is presented the Court Structure of the State of Texas. In homicide cases, the trial starts in a District Court, and can then move to a Court of Criminal Appeal.

Fig. 26) Court Structure of Texas71(*)

I. Death penalty in Texas

The State of Texas lays the unfortunate claim of having the highest record of executions, with 392 since 1976. This number is far ahead of Virginia, the second on this list with 98 executions. Death penalty is one of the fundamental aspects of the Texas' criminal law. It is deeply rooted in the peoples' minds, as well as their collective conception of normal and correct justice. It is very rarely questioned by the Court but is increasingly discussed amongst intellectuals, journalists, and in different associations and NGOs (those which exist for the purpose of defending the rights of inmates, basic Human Rights and, more generally, social justice. The case of Texas, as we suggested before, is rather the most relevant case concerning the unbalanced judicial system of the United States.

Texas employs death penalty more often, with the largest number of executions, and an impressive number of death row inmates. In addition, their application of capital justice appears the least regulated than in any other state. Furthermore, while ethnic minorities are more heavily represented in Texas than in the national average, there are also more women in the Texan death rows. There have been 160 women sentenced to death in the across the country since 1976. The one state alone which has condemned the most is Texas, with 18. As of 2007, there are 51 women in death row awaiting execution, 10 of which reside solely in the state of Texas. In addition, since death penalty has been reenacted in the United States, 11 women have been executed, among which there have been 3 in Texas.

1) Texan governors and death penalty

In order to determine whether death penalty really is a more central point in Texas criminal law, let's study the policies of recent and past governors of the state.

Among the five last governors of Texas, two were from the Democrat Party: Mark White (from 1983 to 1987) and Anne Richards (1991-1995), and the three others were Republicans: Bill Clement (1987-1991), George W Bush (1995-2000) and Rick Perry (since 2000). Just the same, the number of executions has always been larger here than in any other state.

a) George W Bush

George W Bush executed more inmates than any other governor in modern American history in a sole mandate. During his four-year stretch, 153 inmates were executed, in comparison with 18 during Mark White's four-year mandate or 16 during that of Bill Clement.

George W Bush, now President of the United States, also succeeded in passing a very permissive law, authorizing rifles in public places--even schools and hospitals. In the mean time, as a governor, he had a very repressive attitude, in extending little or no hope at all to death row inmates for a possible pardon.

Karla Faye Tucker case

Karla Faye Tucker's case proved his fervent attachment to death penalty. Indeed, despite the interventions of the European Parliament, the Pope, the United Nations, the abolitionist organizations and some American conservative Christians, Governor George W Bush refused to pardon her.

Critics like Helen Prejean, in `The Death of Innocents: An Eyewitness Account of Wrongful Executions ', published December of 2004, argue that he failed to give serious consideration to clemency requests.

b) Current Governor Rick Perry

Perry supports death penalty as do a large majority of Texans. Governor Perry doesn't seem to take notice of the criticism coming from human rights organizations, and rarely uses his authority to dealy scheduled executions for one month.

Under Texas law, the Board of Pardon and Parole must make a recommendation to commute such a sentence, which the Governor is free to ignore, but, as has been already stated, the reverse is not true: if the Board does not make such a recommendation the Governor, then, cannot commute the sentence. The only power the Governor has is to issue one 30-day reprieve (of which, it is said, Perry has not taken advantage).

Frances Newton case

In 2005, Frances Newton's appeal for a commutation of her death penalty was declined, although some allege that there was insufficient evidence to convict. The Board of Pardon and Parole did not recommend a commutation, thus Perry could not do so himself, and chose not to grant the one-time reprieve.

2) Capital crimes in Texas

A bill making child rape a capital crime in some instances is currently under consideration of the state's Supreme Court.

But today, only homicides are capital crimes under Texas state law. This includes murder under nine different circumstances: murder of an on-duty public safety officer or firefighter; murder in the course of committing or attempting to commit a felony offense (such as kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terrorist threat); murder for remuneration (both the person who does the actual murder and the person who hired them); murder during prison escape; murder of a correctional employee; murder by a state prison inmate who is serving a life sentence for any of five offenses: murder, capital murder, aggravated kidnapping, aggravated sexual assault, aggravated robbery; murder while incarcerated with the intent to establish, maintain, or participate in a combination or in the profits of a combination; multiple murders; murder of an individual under six years of age; murder of a person in retaliation for, or on account of, the service or status of the other person (a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court).

Furthermore, under the Texas state law, a defendant can also be sentenced to death for a felony in which he/she was not responsible for the murder.

3) An alternative: Life Imprisonment

Under Texas state law, as in the majority of the retentionist states, there is an alternative to death penalty: life imprisonment. Among the 38 retentionist states, 35 offer «life without parole» (LWOP) which means that the inmate will never have the opportunity to be released from prison. In Texas, for offenses committed in 2005 or thereafter, any person found guilty of the offenses previously cited receives a minimum sentence of life imprisonment without parole. For offenses committed before to 2005, the minimum sentence is life with the possibility of parole after 40 calendar years.

4) The principal actors of the judicial machine

a) The District Attorney

Known under many different titles (County Attorney, District Prosecuting Attorney, Solicitor, DA, or Prosecutor), he holds the accusation, and then makes the decision to pursue a suspect or not.

In France, the prosecutor seeks the truth and has to show the evidences at charge and at discharge, whereas under United States law, he represents the general interest. This goes to say that in the U.S. a prosecutor is not allowed the same objectivity, as the defendant is accused of having committed a crime, and it is his job to prove it.

The prosecutor is elected by the people meaning that his campaign may very well resemble that of any other campaign model in the states: «In order to be elected, you have to satisfy the criteria that the majority defined, explicitly or implicitly.»72(*) If they are jurists, they are above all politicians, and so they are Republican or Democrat. Thus, a crime can be sanctioned differently according to the prosecutor.

According to Amnesty International, in New Orleans the DA requests death penalty three times more often when the inmate is black than when he is white, and even more frequently when the victim is white.

b) The judge

They have the capital role of designating a court appointed lawyer for poor defendants. This choice can be very deciding as to the outcome of the trial, as most of the time the lawyers elected appear not to be competent, to say the least. Judges tend to be former prosecutors likening the possibility of their being pro-death penalty.

The judges are elected in much the same way as are the DAs. This election provokes a central debate, as many cases claim that they, «...care more about their electors than about the defendants,»73(*) themselves.

c) The Jury

In Texas, there is the Little Jury which gives the verdict; it is composed of 12 members, and are charged with carrying out the verdict and the sentence. The members also have to determine a number of "special issues", including the "future dangerousness" question, or whether the defendant will pose a future danger to society if allowed to live (even in prison).

Most of the debates about the fairness of the criminal trials are about the Jury, its selection and its composition. According to Amnesty International, at least one in five of the African Americans executed since 1977 had been convicted by all-white juries74(*). Furthermore, In Colette Berthès's book, La machine à tuer, dealing with the case of Odell Barnes, the author denounces the composition of the jury: «The twelve jury members were white. Four black jurors were excluded: one because he was opposed to death penalty, the other three without any explanation»75(*).

The selection of the Jury is very controversial. There is first a list of American citizens, at least 18 years of age, who have been living in the area for a minimum of one year. This list is randomly composed; people can be excluded only for mental retardation, or in certain cases of physical handicap. At the second round, those selected are interviewed for days or even weeks by both the defense and the prosecution. The questions are precise and formidable, because each litigant desires to form a jury favorable of his or her respective cause. As we have seen before, both parties can decline an unlimited number of members, by providing reasons. However, there are also a limited number which can be denied without specifying why. Of course, if the accused is defended by a court appointed lawyer, the prosecution will be able easily to choose a death penalty-friendly jury. It is obvious that a jury must adhere to the law of the jurisdiction. Conversely, a jury could very well not support death penalty; that is to say that all state-appointed lawyers do not end up electing juries who are always in favor of capital punishment. According to Robert Bryan, the current defense of Mumia Abu Jamal, this system of jury selection is on of «the main issues to eliminate in the United States judicial system»76(*).

In 2003, the Supreme Court held that Miller-El should have been allowed to present evidence of race discrimination in jury selection during his federal appeals. In that case, the evidence of an historical discrimination by the prosecutor's office was particularly studied. "Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selection," Justice Anthony M. Kennedy wrote.

The Ronald Chambers case77(*)

Ronald Chambers, a black man, was condemned to death in 1976 for a murder committed during a robbery. This decision was reversed in 1986 due to discriminatory jury selection by the state. He was sentenced to death in another trial and to this day is still awaiting his execution.

5) Comparison of costs

It is hard to believe that problems of money can be discussed in death penalty cases in the sense that a human life is at stake. However, this argument is often used by members from both sides of the spectrum. Partisan groups like to pretend that Life without Parole costs more than death penalty ($3 million for LWOP compared to $1.9 million for death penalty78(*)). However, many studies have proven that executing an inmate costs more than keeping him alive in a cell.

In 1998, the Sacramento Bee demonstrated that Californian taxpayers spend $90 million a year on death penalty resources. According to an article79(*) from Dallas Morning News, published March 8, 1992, in Texas, a death penalty case costs an average of $2.3 million, or about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. Abolitionists maintain claims that death penalty costs taxpayers a great deal of money, and that this money should be spent differently. «If we take an average $2.5 million per inmate, and that we multiply it by [3350] (death row inmates), it makes a total of $[8,375] million, an amount which, according to experts, could be used more efficiently.»80(*)

In La peine de mort aux Etats-Unis, A. Kaspi details the expenditures resulting from a capital case in a District Court (in first instance). It includes about $20,000 for the prosecutor, about $500,000 for the lawyers, and the trial as a whole costs about $770,000 (to pay the witnesses' travel and housing, and security during the entire process...). Multiple appeal processes are even more expensive.

6) The Clemency process

a) In the United States

For Federal Death Row inmates, the President alone possesses the power to grant pardon. At the state level, there are five different processes. In 14 states, the governor has the sole authority of pardon; in 8 states, including Texas (plus Arizona, Delaware, Florida, Louisiana, Montana, Oklahoma and Pennsylvania), the governor must have the recommendation of clemency from a Board of Advisory Group. In 10 states, the governor receives a non-binding recommendation of clemency from a Board of Advisory Group, then, in three states, a Board of Advisory Group determines clemency all by itself. And, finally, in 3 states, the governor sits on a Board of Advisory Group that determines clemency.

Since 1976, 229 death row inmates have been granted clemency for humanitarian reasons. Ultimately, these cases have also included doubts as to the defendant's guilt, or conclusions of the governor regarding the death penalty process.

b) Clemency under Texas state law

In order to grant clemency, the State Governor must have the Board of Pardons and Paroles recommendation. The Governor has full discretion to either accept or reject the Board's recommendation on clemency. The Board of Pardon and Paroles is dedicated to give recommendation to the governor in order to grant executive clemency. It includes full pardons, conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves. Since death penalty has been re-enacted in Texas, in 1974, clemency has been granted only two times. This particular institution has been heavily criticized by different associations of defense.

The Leonel Herrera case81(*)

In 1992, Texas death row inmate Leonel Herrera uncovered startling new evidence of his innocence. Attorneys for Texas opposed his appeal to the US Supreme Court, arguing that late claims of innocence should be resolved by a clemency hearing. The Supreme Court agreed, finding that late evidence of innocence does not ordinarily entitle a defendant to a new legal hearing. "Clemency", the Court stated, "is the historic remedy for preventing miscarriages of justice". Three months later, Texas executed Leonel Herrera, after the Board of Pardons refused to convene a clemency hearing.

Unfortunately, the members have not enough time to look at every single case which passes (only 5 to 15 minutes are spent for each review). «There is no way 17 people can look at over 150,000 cases for parole, it's just not possible.»82(*) There is no face-to-face interview in the process. «How can anyone vote on whether a person is ready by reading 'paper'?» The major reason for denying parole is `Nature of the crime' which cannot be changed, whereas the nature of the inmate can. It would be more logical to consider the comportment of the inmate in the process of parole than simply reading a few figures and then advancing to the next stack of papers in need of analysis.

7) Reasons for high execution rates

a) Legal reasons

There are a variety of proposed legal and cultural explanations as to why Texas has more executions than any other state. First of all, we have seen that Texas' judges are elected by the people of the State, rather than being appointed by another, separate authority. As Texas' political tone is generally very conservative, judges find it advantageous to take a harsh position on crime in order to ensure reelection.

The quality of lawyers appointed by the court has often been found to be substantially low for capital cases in Texas. When the accused are unable to afford their own representation because of economic problems, they must resort to court-appointed lawyers. In the majority of these cases, state-selected lawyers have been proved nothing short of incompetent.

In addition, federal appeals in Texas, Louisiana and Mississippi are made to the United States Court of Appeals for the Fifth Circuit. Michael Sharlot, the dean of the University of Texas at Austin Law School, found the Fifth Circuit to be a "much more conservative circuit" and "more deferential to the popular will" than the Ninth (which exists in the Western states where appeals can be more easily overturned).

b) Cultural reasons

Aside from the «legal reasons» stated above, it has been argued that there are cultural reasons which may account for higher numbers of executions in Texas as well. In the book The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990, the authors purport that the execution rate in Texas is a symptom of the "cultural tradition of exclusion" in the South of the United States. Executing--just as lynching was in the United States colonial past--is a way to continue to "dehumanize" and "exclude" certain social groups. In addition, according to the authors of Vigilantism, Current Racial Threat and Death Sentences, there has been an inverse relationship between the number of executions and lynchings: as the number of lynchings declined, the execution rate went up.

J. Main debates on death penalty

Apart from the organization and the progress of the trial itself (which we examined earlier), death penalty arouses still, more, an impressive number of debates. On the contrary to the sort of arguments that could take place here in Europe, however, issues of discussion in the United States are not always ethical ones. Whether it is just or right to kill somebody, regardless of what he or she has done, is not often questioned. Indeed, there exist other debates pertinent to the subject and in the foreground of the matter. Nevertheless, those which are more frequently examined, and which ultimately cause the judicial ink to flow, are not always the «right ones» in terms of humanitarian interests and the great social good. We will discuss some of them--without the pretension of definitive answers or solutions.

1) Arbitrariness and discrimination

Does death penalty punish the worst of the worst offenders? Is a prisoner more likely to be sentenced to death because of his race or gender? Does the race of the crime victim affect the application of death penalty? These are the most frequent questions regarding death penalty. They divide the public opinion and provoke intense debates. As we have seen previously, if the African American community represents about 12% of the national population, they account for 42% of the current death row inmates. Other figures previously presented--such as the race of the victim, or economic disparities--show the existence of a racial, social and economic discrimination.

Such affirmations are regularly denied and refuted by pro-death penalty organizations. Nonetheless, studies have proven the existence of a racial bias strewn throughout the entire judicial process in Texas, as well as in many other states. Since 1976, those most likely to end up on death row, regardless of race, have come from the most disadvantaged segments of the population. In fact, it is only very rarely that murderers from privileged backgrounds receive death sentences. Indeed, 97% of the death row inmates are indigent.

In The Rope, the Chair and the Needle, authors Marquart, Ekland-Olson, and Sorensen denounce that: "In no case (in the post-Furman period in Texas) was an Anglo offender who killed an African-American victim charged with and convicted of capital murder."83(*)

In 1987, in McCleskey v. Kemp, the Supreme Court held that even if a defendant could show that racial prejudice had played a systemic role in capital sentencing in his state, racial discrimination did not violate the Constitution unless the defendant could prove that the state legislature or a decision maker had acted with discriminatory intent. Elsewhere, one of the main reasons why the former Governor Glendening instituted the Maryland moratorium on executions in 2002 was because of his concern about racial bias in Maryland's death penalty system.

2) Representation

Can a defendant be sentenced to death because of a bad representation? How can a poor inmate ensure a fair trial and adequate defense?

Representation during a trial--or lack thereof--is one of the most striking and crucial faults in the justice system today. The United States Supreme Court long ago decided that if a suspect was too poor, he could benefit from the services of a lawyer appointed by the court. But this extends only as far as the case for trial and the first appeal. Such a right does not exist in the post-conviction phase. There are lawyers who make it obvious to the jury that they have no belief in their clients, lawyers who fall asleep during trial, lawyers who do not prepare properly, and lawyers who are routinely denied the necessary funds to investigate the case.

The Calvin Burdine case

During Calvin Burdine's trial, the lawyer fell asleep as many as ten times during the trial. Appeals were first turned down on the grounds that the constitution does not say anything about the lawyer needing to be awake during the trial, and that the lawyer had not missed important parts of the trial.

In order to defend a case effectively, the defense counsel must invest hundreds of hours in preparation, hire investigators and experts such as mental health professionals and forensic scientists, and have a thorough knowledge of the highly specialized body of death penalty law. Competent representation at the different stages of a capital case--trial, appeal, and post-conviction review--requires specialized training, significant experience, and intense preparation that most court-appointed lawyers do not have.

Most of the time, court-appointed lawyers have not enough funds or time to prepare a good defense. There is no equality of arms between the prosecutors and the lawyers. Whereas prosecutors are paid by the government and have as much time as they need, the defense lawyer does not have a good salary. In addition, DNA tests have to be paid for by the defense and it is very expensive. Thus, a poor defendant cannot afford a good defense.

The movie, Last Dance, deals with a female death row inmate who is accused of two murders. Even when there is little to no doubt of her ultimate guilt, her lawyer, nonetheless, fails to bring to the table the only argument in her favor: her drug addiction.

3) The deterrent effect

Does the death penalty deter murder? Does it deter murder more than Life Without Parole? Both the retentionist and the abolitionist groups use the argument of deterrence in their favor. It is thus difficult to say whether the awareness of death penalty in the minds of a given populace deters people from committing murder; and, what is more, the figures that are available regarding this matter contradict themselves. However, many examples of new-abolitionist states or countries (such as Canada) prove that, following the abolition, the tendency of the homicide rate is not to rise, but, on the contrary, to drop. The states where death penalty is the most widely used (in the South for the majority) are those where the homicide rates are the highest84(*).

4) Miscarriages of justice and innocent in the death row

Are there innocent people on death row and why? Has an innocent person ever been executed? How might innocent people end up on death row? Have any death row inmates in the past been freed on this account?

Examples of miscarriages of justice such as Leonel Herrera's case (see on page 63) are many though, fortunately, are becoming fewer and fewer. The main causes for miscarriages of justice are: indigence of the death row inmates, inadequate or botched defense, drifts of the police or justice, false or lacking testimonies, racial harm.

The Randall Adams case

Randall Adams, whose case drew national scrutiny with the release of the documentary film The Thin Blue Line, was wrongly convicted and sentenced to death for the murder of a Dallas Police officer. Adams was freed after the real killer, David Harris, confessed on tape to the crime.

Since capital punishment was reenacted in the United States in 1976, 124 people have been released from death row after having been cleared--including 8 in Texas (after Florida and Illinois accounting 21 and 18 innocents respectively). According to the Innocence Project at Cardozo Law School, since 1976, one innocent person is freed for every seven people executed. Before 1998, there was an average of 2.96 releases per year. Since then, this figure has increased considerably, today reaching 7.6. The average time spent locked up for the freed inmates is 9.3 years.

Among the 124 released prisoners, 62 were black or African American, 49 were white, 12 were Hispanic, and one is from another race. These figures explain the difference between the percentage of black people in the death row population and the percentage of black inmates executed. They also show that while the number of exonerated African Americans is higher that those of other racial or ethnic groups, it does not necessarily mean that they are granted greater justice than the others: more of them are sentenced to death to begin with; and among those receiving capital punishment sentences, it implies that they are more easily sentenced to death despite actual innocence. This confirms yet again the existence of racial discrimination in criminal trials. And, off course, if some death row inmates of the past have been freed, this goes to say that still more may have been executed despite their being innocent. Indeed, many executions were carried out in spite of serious doubts concerning inmates' culpability.

5) DNA testing

In 15 out of 124 cases of freed or exonerated inmates, DNA testing has played a substantial role in establishing innocence. If DNA testing has been so instrumental in exonerating several inmates, we must wonder why all states do not allow it (or even demand it as an compulsory element of the process). It seems that under state law, it is difficult to obtain post-conviction DNA testing because of strict time limits on introducing newly discovered evidence. In many cases, the biological evidence has been either lost or destroyed.

6) The position of the Church

The Catholic Church used to favor death penalty but when Pope Jean Paul II arrived, it became the first international organization to oppose it. Nowadays, the majority of religious groups and spiritual leaders refute death penalty. However, the members of those groups are not always entirely opposed to it.

The majority of religious groups and spiritual leaders refute death penalty. However, members of these groups are not always opposed to it. In addition, the Bible and, more generally, the Church, have a paradoxical position on death sentence. The Bible states just the same that justice lies in the conviction: "An eye for an eye, a tooth for a tooth" (from Leviticus 24:20; also Exodus 21:24) and «thou shall not kill». Consequently, both sides of the debate, abolitionist and retentionist groups alike, fall back on the argument of religious justification as support or evidence of their side's respective morality.

The Catholic Church fights, above all, for the right to life (which explains its position on abortion) and for forgiveness. In the movie Dead Man Walking85(*) (1995), adapted and directed by Tim Robbins from the book of the same name by Helen Prejean, a sister struggles to save a death-row killer's life and tries to make him seen as a valuable human being.

The Christian Community Sant'Egidio is very active in the abolitionist struggle, notably helping local associations, or creating the project, «City for Life», which is a symbolic way for cities to participate in the fight. Every 30th of November, all around the world, 600 capitals and other big cities light their monuments in demonstration of their opposition towards death penalty. The date corresponds to the day when the Duke of Tuscany abolished death penalty. This was a landmark date, as it was the first time in history that a territory had collectively succeeded in abolishing death penalty.

7) Public opinion

Throughout history, American citizens have almost always favored death penalty. As shown on the following spreadsheet, the «no» has never reached a majority. Nevertheless, we have seen substantial variance concerning the number of death penalty supporters dating as far back as 1953. The figures have, nevertheless, always been above 50%, with the exception of the year 1957. The Rosenbergs' which took place during this time may be the reason why the public opinion dropped. Indeed, Julius and Ethel Rosenberg, American Communists accused of passing nuclear weapons secrets to the Soviet Union, were executed in 1953. Their story received international attention and across the country, the people were not in favor of their execution.

Elsewhere, support for death penalty has been stable at around 65% during the second part of the nineteenth century with a net increase in the 1990s. It reached 80% in 1994. Since then, the public opinion has stabilized at around 65%.

Fig. 27) Attitudes towards Death Penalty for Persons Convicted of Murder86(*)

Depending upon the exact question asked, 65 to 80% of adults today are in favor of death penalty. When asked, "Are you in favor of the death penalty for a person convicted of murder?" 67% of Americans favor death penalty; only 5% have no opinion at all. The remaining 28% are against capital punishment87(*).

But almost all public opinion pools demand simply whether the subject is in favor of or against death penalty. One exception was an ABC News/Washington Poll released on May 2, 2001. This particular survey offered alternatives to execution in their polling questionnaires. The results showed a public ambivalence towards the continuation of death penalty. When asked whether or not they supported death penalty, the public responded 63% in favor. But if Life Without Parole is offered as an option: 46% favored the death penalty; 45% favored life without any chance at parole.

According to the Death Penalty Information Center, it would be 47% of people who prefer death penalty and 48% who prefer LWOP. As we can see in the following pie chart, Americans are closely split between death penalty and Life without Parole.

Fig. 28) Support for Life Without Parole (2007)88(*)

In Texas, public opinion polls show that the support for death penalty is much higher than the national average: 73%. Such a rate could be explained by the same reasons that there is such an significant homicide rate in Texas, and more generally in the South. These explanations were previously presented in part II, C, 4.

It is interesting to note that, according to a poll taken by police chiefs (Figure 29), death penalty is considered a last resort as far as attempts to reduce violent crime. According to them, there are more efficient ways such as reducing drug abuse, amelioration of the economy, or even simplification of the judicial system.

Fig. 29) Police Chiefs Place Death Penalty Last in Reducing Violent Crime89(*)

8) Abolitionist movements and related institutions

Numerous social movements struggle at national and international levels to abolish death penalty in the United States and throughout the world as a whole. Abolitionist associations, institutions or even cities are involved in the struggle. They have different ambitions, as well as means of action, and have already made an important impact in past affairs. Sometimes, spontaneous social movements composed of people from different horizons rise up to protest. At each execution scheduled, people gather in order to make their grievances heard. Pro-abolitionists congregated in 1990 and 1997, when inmates had reportedly caught on fire during electric chair execution attempts. They came together again in 2000, when yet another inmate began to bleed from the nose. These movements lead to the abandonment of the electric chair as a means of capital punishment. It was replaced by lethal injection, considered as a solution, and at the same time more humane and more reliable. There are just the same many associations dedicated to providing adequate defense to death row inmates, seeking to guarantee social justice, and equality therein.

Some of the associations and NGOs ask for a simple and total abolition (like Amnesty International), others try to offer a good defense to defendants (the American Bar Association), and finally, some of them concentrate on information and communication in order to arouse people's awareness (National Coalition to Abolish the death Penalty, Ensemble Contre la Peine de Mort, Texas Coalition to Abolish Death Penalty). There are many associations dedicated to providing good defense to death row inmates, in order to guarantee social justice, and equality therein. Groups such as the American Bar Association struggle to ensure that persons facing capital punishment receive competent and adequately funded counsel, that trials and appellate review are fair and thorough, and that racial discrimination ceases to be a factor in the application of death penalty.

In The life of David Gale90(*), a popular and well-respected professor finds himself on death row for the rape and murder of a woman. He is executed and thereafter proved innocent, in order to demonstrate the faults of the judiciary machine.

Mumia Abu Jamal case

This case, considered as very political is the «second most symbolic case» after the Rosenbergs', according to their son. Mumia Abu Jamal, a black defendant, is seen as the `Voice of the voiceless'. In 1985, he was accused of the murder of a policeman in Philadelphia. Because he was a member of the Black Panthers and an aversive journalist, his case was botched and R Bryan, his principal lawyer denounced a `judicial offence and manipulation from the justice and the police'. Giordano, the police officer who played a big role in Mumia's case was known to be racist and he was convicted of corruption later. Twice in 1995 and 1999, international movements and media coverage helped to ensure the re-examination of Mumia's case. Consequently, his life was saved. After having spent more than 20 years on death row, Mumia had associations and NGOs aiding in the review of his case. The French city of Saint-Denis even nominated him as an `honor citizen' and named a street after him.

Educated movie-makers and journalists are often involved in the struggle and try to arouse people's awareness.

The European Union, which imposes abolition to the new members, is totally opposed to capital punishment and often urges the United States' government to abolish death penalty. They also created Protocol No. 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulates in the first article, «The death penalty shall be abolished. No one shall be condemned to such penalty or executed.»91(*)

Within the United Nations, the Office of the High Commissioner for Human Rights wrote a comment about the Right of Life, saying that «States parties are not obliged to abolish the death penalty totally, they are obliged to restrict the application (...) to the "most serious crimes" (...) [it] should be a quite exceptional measure..»92(*)

Conclusion

Death penalty is a difficult subject to deal with in its entirety. Each jurisdiction interprets differently when and how to employ it; it is thus difficult to draw definitive conclusions. Beyond personal convictions, prejudices, and vague assessments, the debate on death penalty brings to the forefront obvious facts about American society. The study at hand should have demonstrated that the southern states apply capital punishment more frequently, and in a more discriminatory fashion. The presented execution figures, along with those outlining the racial and ethnic composition of the death row population prove these hypotheses.

The example of Texas is unique and demonstrates on its own the faults inherent in an unbalanced system (due primarily to biased judiciary procedure). The use of death penalty in a country such as the United States is very controversial and arouses much criticism from all areas of the world. «A lot of nations removed death penalty from their legislations, but the United States is a young nation, and maybe, the experiment of death penalty has not been carried out until its term.»93(*)

However, current moratoria as well as recent changes such as the prohibition of executing mentally handicapped persons (2002) and minors (2005), provide hope and allow us to believe in a future national abolition. But is the abolition of death penalty conceivable in the United States, and if so, by which means?

The Federal Supreme Court is the most likely means to an end regarding any potential change of death penalty practices in the United States. New judges could enter the Supreme Court and bring along with them new ideas on this delicate and problematic issue.

If public opinion could adopt a less radical attitude, perhaps the Supreme Court would respond to this change in mentality and impose moratoria or pass abolitionist laws. A more efficient fight against criminal activity, for example, could help people to change their points of view concerning the system at hand. The current example of New York City, which became a model for the police of the entire world by successfully preventing delinquency, could set the stage again with attempts to decrease the use of death penalty. However, the media will have an important role to play in the change of the public opinion as well.

Unfortunately, such advancements are not to be expected in the near future. Indeed, in order to respond to one death penalty objective, that of dissuasion, several recent measures were taken in order to reduce the possibility of appeals given to death row inmates. Reducing the possibility of appeal has as its main purpose to accelerate executions.

The study of death penalty and its application reveals tremendously aspects of American society including: the concept of life and death, human nature, and forgiveness. It is a vast subject which allows a multitude of orientations of research.

Before anything else, it would be necessary to examine programs in the U.S. dedicated to preventing crime. More time and money should be spent in social en educational programs devoted to creating social and economic justice, as well as overall balance within the country. And as Victor Hugo said: «when you open a school, you close a prison.»

Conditions of incarceration, processes of rehabilitation, and programs dedicated to preventing relapse could also be an interesting subject of study. As for the moment, the system should focus rather on rehabilitating inmates, ensuring a lesser rate of inmate return. Furthermore, in order to reduce economic and social disparity, more time and money should be spent towards education, vocational training, treatments and social programs.

Aside from the aforementioned, there exists still the question of the deterrent effect, and the fact that it has been widely exploited by supporters. While those who back this concept believe firmly in its power to dissuade criminal activity, we find still that no research has been conducted to determine if the presence of executions might actually bring violence, encouraging crime.

Thus, being such a vast subject, it is in grave need of further study. Personally, the experience of having researched and written a critical analysis on this subject was very positive for me. Not only did I learn a great deal, but it was an opportunity for me to enrich my knowledge of a topic about which I already felt deeply, and in which I am soon to be involved. Furthermore, I enriched my pre-existing profound interest in humanitarian practices, and at the same time may have also found a future vocation in the process. It is in this way, nevertheless, frustrating not to be able to treat each and every aspect of this fascinating topic.

The issue of death penalty, with its southern roots so deeply sown within the culture and history of the United States, will surely be debated for many years to come.

Appendix:

1) Capital Punishment Laws in the World page 77

2) Number of Persons Under Sentence of Death, 1976-2005 page 78

3) Census Regions and Divisions of the United States page 79

4) Executions by State page 80

5) Capital offenses, by State, 2005 page 81

Appendix 1: Capital Punishment Laws in the World94(*)

Appendix 2: Number of Persons Under Sentence of Death, 1976-200595(*)

Year

Number of prisoners under sentence of death

1976

420

1977

423

1978

482

1979

593

1980

692

1981

860

1982

1,066

1983

1,209

1984

1,42

1985

1,575

1986

1,8

1987

1,967

1988

2,117

1989

2,243

1990

2,346

1991

2,465

1992

2,58

1993

2,727

1994

2,905

1995

3,064

1996

3,242

1997

3,328

1998

3,465

1999

3,54

2000

3,601

2001

3,577

2002

3,562

2003

3,377

2004

3,32

2005

3,254

Source: Capital Punishment 2005, December 2006, NCJ 215083

Appendix 3: Census Regions and Divisions of the United States96(*)

Appendix 4: Executions by State97(*)

Appendix 5: Capital offenses, by State, 200598(*)

Alabama. Intentional murder with 18 aggravating factors

Arizona*. First-degree murder accompanied by at least 1 of 14 aggravating factors

Arkansas*. Capital murder with a finding of at least 1 of 10 aggravating circumstances; treason.

California*. First-degree murder with special circumstances; train wrecking; treason; perjury causing execution

Colorado*. First-degree murder with at least 1 of 17 aggravating factors; treason

Connecticut*. Capital felony with 8 forms of aggravated homicide

Delaware*. First-degree murder with aggravating circumstances

Florida*. First-degree murder; felony murder; capital drug trafficking; capital sexual battery

Georgia*. Murder; kidnapping with bodily injury or ransom when the victim dies; aircraft hijacking; treason

Idaho*. First-degree murder with aggravating factors; aggravated kidnapping; perjury resulting in death

Illinois*. First-degree murder with 1 of 21 aggravating circumstances

Indiana*. Murder with 16 aggravating circumstances

Kansas*. Capital murder with 8 aggravating circumstances

Kentucky*. Murder with aggravating factors; kidnapping with aggravating factors

Louisiana*. First-degree murder; aggravated rape of victim under age 12; treason

Maryland*. First-degree murder, either premeditated or during the commission of a felony, provided that certain death eligibility requirements are satisfied

Mississippi. Capital murder; aircraft piracy

Missouri*. First-degree murder

Montana. Capital murder with 1 of 9 aggravating circumstances; capital sexual assault

Nebraska*. First-degree murder with a finding of at least 1 statutorily-defined aggravating circumstance

Nevada*. First-degree murder with at least 1of 15 aggravating circumstances

New Hampshire. Six categories of capital murder

New Jersey. Murder by one's own conduct, by solicitation, committed in furtherance of a narcotics conspiracy, or during commission of a crime of terrorism

New Mexico*. First-degree murder with at least 1 of 7 statutorily-defined aggravating circumstances

New York*. First-degree murder with 1 of 13 aggravating factors

North Carolina*. First-degree murder

Ohio*. Aggravated murder with at least 1 of 10 aggravating circumstances

Oklahoma. First-degree murder in conjunction with a finding of at least 1 of 8 statutorily-defined aggravating circumstances

Oregon. Aggravated murder

Pennsylvania. First-degree murder with 18 aggravating circumstances

South Carolina*. Murder with 1 of 11 aggravating circumstances

South Dakota*. First-degree murder with 1 of 10 aggravating circumstances; aggravated kidnapping

Tennessee*. First-degree murder with 1 of 15 aggravating circumstances

Texas. Criminal homicide with 1 of 9 aggravating circumstances

Utah*. Aggravated murder

Virginia*. First-degree murder with 1 of 13 aggravating circumstances

Washington*. Aggravated first-degree murder

Wyoming. First-degree murder

*As of December 31, 2005, 27 States excluded mentally retarded persons from capital sentencing. Mental retardation is a mitigating factor in South Carolina.

Bibliography:

o Books about death penalty in the world:

Association Hands Cain (2005). The Death Penalty Worldwide, 2005 report. Rome: Furura Grafica.

Normand, Marcel (1980). Que sais-je ? La peine de mort. Paris : Presse Universitaires de France.

Thibault, Laurence (1977). La peine de mort en France et à l'étranger. Saint-Amand: Gallimard.

o Books about politics in the United States:

Kaspi, André (1973). La vie politique aux Etats-Unis. Paris : Colin.

Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon.

Leon, Enrique (1998). Démocrates et Républicains aux États-Unis au XXe siècle, Partis politiques et groupes de pression. Paris : Colin

Lassale, Jean-Pierre (1997). Les institutions des Etats-Unis. Paris : La Documentation Française

o Books about death penalty in the United States:

Berthès, Colette (2000). La machine à tuer. Paris : Les arènes.

Cesari, Isabelle (2002). Les mineurs délinquants et la peine de mort aux Etats-Unis. Paris : Nicolas Philippe.

Taube, Michel (2001). L'Amérique qui tue. La peine de mort aux USA. Neuilly-sur-Seine : Michel Lafon.

Amnesty International (2003). Death by Discrimination - The Continuing Role of Race in Capital Cases

o Books about death penalty in Texas

Marquart, James W.; Ekland-Olson, Sheldon and Sorensen, Jonathan R. (1993). The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Houston: University of Texas Press

o Reviews

Baldus, David C; George Woodworth (2003). «Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research» Criminal Law Bulletin 194-226.

Jacobs, David; Stephanie, Kent; Jason, Carmichael (August 2005). «Vigilantism, Current Racial Threat and Death Sentences», American Sociological Review, pp. 657-677.

o Newspapers :

Liberation, (February 9, 2000), « Etats-Unis : on achève bien les innocents. »

Ø Websites :

http://en.wikipedia.org/wiki/Main_Page

o About statistics concerning politics and public opinion:

www.census.gov/: statistics about the American society

http://www.census.gov/prod/2001pubs/cenbr01-1.pdf US Census Bureau, Census 2000

http://www.cdc.gov/pcd/issues/2006/jan/images/05_0055_02.gif

o About death penalty in the world:

http://ohchr.org/ United Nations High Commissioner for Human Rights which gives a series of international decisions about human rights, including death penalty

www.peinedemort.org/ website of a French organization which shows the global situation about death penalty day after day

o About politics in the United States:

www.50states.com/ descriptions by state and by themes with different links to other websites

http://www.citypaper.net/articles/2007/04/12/sam-millsap

http://www.clarkprosecutor.org/html/death/usexecute.htm

http://www.prodeathpenalty.com

o About death penalty in the United States:

www.deathpenaltyinfo.org/: website of the Death penalty information center which gives information about the different laws and methods, figures and names of people executed and data on special topics.

http://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States brief presentation of the death penalty in the United States and its issues

http://www.fbi.gov Federal Bureau of Investigation

http://www.ojp.usdoj.gov/bjs/cp.htm

http://www.criminal-law-lawyer-source.com/

http://www.lpj-france.net/cours_droit.htm#peinedemort

o About death penalty in the Texas:

www.courts.state.tx.us/ official site of the judicial system of Texas

www.texasdefender.org/resources.htm website of a non-profit law firm the aim of which is to help improve the quality of representation

www.tcadp.org/facts.php the Texas coalition to abolish the death penalty

www.tdcj.state.tx.us/stat/deathrow.htm pro-abolition website of information about death penalty in Texas

o Websites of abolitionist associations:

www.abanet.org/about/ the American Bar Association is a voluntary lawyers association whose members assist lawyers and try to promote justice and improve the legal system

www.abolition.fr website of the very dynamic French association «Ensemble contre la peine de mort» which organized the 3d Congress against death penalty in Paris in February 2007

www.amnesty.org Amnesty International, the international organisation of defence of the human rights
www.handsoffcain.org the Italian abolitionist association «Hands off Cain» is for justice without vengeance

www.hrw.org/ Human Rights Watch is an association informing and fighting for the human rights and is very active about abolition ( http://www.hrw.org/doc/?t=usa_deathpenalty)

www.ncadp.org national coalition to abolish the death penalty

www.ncmoratorium.org/site/default.asp website of a group of associations in North Carolina which support a moratorium in the state

www.nodeathpenalty.org this website is a campaign to end the death penalty and it also gives information and figures

www.thejusticeproject.org/ association created by veterans of war who fight for justice throughout the United States

www.truthinjustice.org/ips.htm website which aim is to make people aware of wrongful convictions

www.worldcoalition.orgcoaljm00.html website which gathers NGOs and associations fighting for abolition all over the world

http://www.mcadp.org/images/dpmap.gif Coloradans Against the Death Penalty

http://www.revoltes.org/

o Websites of Catholic associations

http://www.collectif2001.org/article.php3?id_article=1

http://www.acat.asso.fr

Ø Filmography:

Beresford, Bruce (1996). Last dance.

Darabont, Frank (2000). The green mile.

Moore, Michael (2002). Bowling for Columbine.

Parker, Alan (2003). The life of David Gale.

Robbins, Tim (1995). Dead Man Walking.

* 1 See appendix 1 «Capital Punishment Laws of the World» on page 77

* 2 Source: `Executions in the U.S.: 1608-1987: The Espy File» and DPIC http://www.deathpenaltyinfo.org/article.php?scid=8&did=269

* 3 Aikens v. California in 1972 committed a white man convicted for rape and murder of a woman.

In Jackson v. Georgia and Branch v. Texas's cases, the defendants were black and convicted for rape.

* 4 Author: Julie Rérolle

* 5 See appendix 2 `Number of Prisoners Under Sentence of Death 1976-2005' on page 78

* 6 http://www.ojp.usdoj.gov/bjs/cp.htm

* 7 http://www.criminal-law-lawyer-source.com/

* 8 http://www.lpj-france.net/cours_droit.htm#peinedemort

* 9 http://www.deathpenaltyinfo.org/article.php?&did=1397

* 10 http://www.acat.asso.fr/execute/usa1.htm

* 11 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon. Page 77

* 12 Jacobs, David; Stephanie, Kent; Jason, Carmichael (August 2005). «Vigilantism, Current Racial Threat and Death Sentences», American Sociological Review, pp. 663

* 13 http://www.collectif2001.org/article.php3?id_article=1

* 14 http://www.deathpenaltyinfo.org/article.php?&did=1397

* 15 All along the essay, the division by region will be made according to the map `Census Regions and Divisions of the United States' published by the US Census Bureau. See appendix 3 on page 79

* 16 Map from the website Coloradans Against the Death Penalty: http://www.mcadp.org/images/dpmap.gif

* 17 Map from http://en.wikipedia.org/wiki/Image:Death_penalty_statutes_in_the_United_States.svg

* 18 http://www.deathpenaltyinfo.org/article.php?scid=29&did=147

* 19 See appendix 4 `Executions by State' on page 80

* 20 Author: Julie Rérolle

* 21 http://www.deathpenaltyinfo.org/article.php?scid=8&did=186

* 22 Author: Julie Rérolle 2007

* 23 As of January 1, 2007, http://www.naacpldf.org/content/pdf/pubs/drusa/DRUSA_Winter_2007.pdf

* 24 Interview published in http://www.citypaper.net/articles/2007/04/12/sam-millsap

* 25 See figure 7 on page 18

* 26 See appendix 5 `Capital Offence By State 2005' on page 81

* 27 See figure 11 on page 30

* 28 http://www.mcadp.org/LancetEditorial4_05.htm

* 29 http://www.handsoffcain.info/bancadati/index.php?tipotema=arg&idtema=9000520

* 30 http://www.clarkprosecutor.org/html/death/usexecute.htm

* 31 Leon, Enrique (1998). Démocrates et Républicains aux États-Unis au XXe siècle, Partis politiques et groupes de pression. Paris : Colin. Page 46

* 32 Lassale, Jean-Pierre (1997). Les Institutions des Etats-Unis. Paris : La Documentation Française. Page 42

* 33 Jacobs, David; Stephanie, Ken; Jason, Carmichael (August 2005). «Vigilantism, Current Racial Threat and Death Sentences», American Sociological Review. Page 661

* 34 Source: http://en.wikipedia.org/wiki/Image:Governors.PNG

* 35 Jacobs, David; Stephanie, Ken; Jason, Carmichael (August 2005). «Vigilantism, Current Racial Threat and Death Sentences», American Sociological Review. Page 657

* 36 See figure 10 on page 21.

* 37 http://www.deathpenaltyinfo.org/article.php?did=477&scid=8

* 38 http://www.deathpenaltyinfo.org/article.php?did=477&scid=8

* 39 US Census Bureau, Census 2000 http://www.census.gov/prod/2001pubs/cenbr01-1.pdf

* 40 http://www.cdc.gov/pcd/issues/2006/jan/images/05_0055_02.gif

* 41 Even if the figures concerning the national population and the death row population are not from the same dates, such conclusions can be done today, since the composition of the population of the United States has not drastically changed.

* 42 Both these pie chart were established by the Death Penalty Information Center http://www.deathpenaltyinfo.org/FactSheet.pdf

* 43 Source: http://www.deathpenaltyinfo.org/article.php?scid=5&did=184 Author : Julie Rérolle

* 44 http://www.deathpenaltyinfo.org/CaRaceStudy.pdf

* 45 http://www.hrw.org/backgrounder/usa/race/

* 46 http://www.mcadp.org/LancetEditorial4_05.htm

* 47 Federal Bureau of Investigation http://www.fbi.gov/ucr/cius_04/offenses_reported/violent_crime/murder.html

* 48 http://www.deathpenaltyinfo.org/FactSheet.pdf

* 49 http://www.fbi.gov/ucr/cius_04/documents/CIUS_2004_Section2.pdf

* 50 http://www.fbi.gov/ucr/cius_04/offenses_reported/violent_crime/murder.html

* 51 Baldus, David C; George Woodworth (2003). Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research 39 Criminal Law Bulletin 194-226.

* 52 Marquart, James; Sheldon, Ekland-Olson; Jonathan, Sorensen (1994). The Rope, the Chair, and the Needle: Capital Punishment in Texas. Austin: University of Texas. Page 184

* 53 «Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities», GAO-GGD (February 1990)

* 54 Marquart, James W.; Ekland-Olson, Sheldon and Sorensen, Jonathan R. (1993). The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Houston: University of Texas Press.

* 55 Carried out by Prof. Jack Boger and Dr. Isaac Unah, University of North Carolina, 2001

* 56 Data source: US Census 2000 http://www.carseyinstitute.unh.edu/images/photos/US_income_Inequal_5-15-2006_rev.jpg

* 57 Source: British Home Office http://www.deathpenaltyinfo.org/euusdeter.GIF

* 58 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris: Plon. Page 33

* 59 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon. On page 100

* 60 Source: http://www.fbi.gov/ucr/05cius/data/table_30.html author: Julie Rérolle

* 61http://www.fbi.gov/ucr/cius_04/images/content_images/2.16.gif

* 62 http://www.ncadp.org/html/fact5.html

* 63 "States With No Death Penalty Share Lower Homicide Rates", www.nytimes.com/2000/09/22/national/22STUD.html

* 64 http://www.revoltes.org/projetabolition.htm

* 65 Quote from the World Congress Against the Death Penalty, in Paris from the 1st to the 3rd of February 2007

* 66 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris: Plon. Page 9

* 67 Article « Etats-Unis : on achève bien les innocents. » in the French newspaper Liberation,published on February 9, 2000

* 68 http://www.fbi.gov/ucr/05cius/offenses/violent_crime/murder_homicide.html

* 69 http://www.disastercenter.com/crime/US_States_Rate_Ranking.html

* 70 http://www.disastercenter.com/crime/txcrime.htm

* 71 http://www.revoltes.org/TXprocedure.htm

* 72 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon. Page 108

* 73 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon. Page 113

* 74 Amnesty International (2003). «Death by Discrimination - The Continuing Role of Race in Capital Cases»

* 75 Berthès, Colette (2000). La machine à tuer. Paris : Les arènes. Page 66.

* 76 Quote from the World Congress Against the Death Penalty, in Paris, from the 1st to the 3rd of February 2007.

* 77 http://www.amnesty.be/doc/article9723.html

* 78 http://www.prodeathpenalty.com/DP.html#D.Cost

* 79 http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/030507dntexjessicacash.3ad569e.html

* 80 Kaspi, André (2003). La peine de mort aux Etats-Unis. Paris : Plon on page 206. The number of inmates has been updated for accuracy purposes.

* 81 http://www.ccadp.org/TX-clemency.htm

* 82https://www.prisonlegalnews.org/(S(nefh2sufchfpwi45dvcudc45))/includes/_public/_publications/recidivism/tdcj%202006%20criminal%20justice%20survey%20-%20public%20perceptions.pdf

* 83 Marquart, James W.; James, Ekland-Olson, Sheldon; Jonathan R, Sorensen (1993). The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Houston: University of Texas Press. Page 169

* 84 See figure 23 and 24 on pages 49 and 50.

* 85 Robbins, Tim (1995). Dead Man Walking

* 86 http://www.albany.edu/sourcebook/pdf/t2512006.pdf

* 87 According to Gallup Poll: October  9-12, 2006

* 88 http://www.deathpenaltyinfo.org/FactSheet.pdf

* 89 http://www.deathpenaltyinfo.org/FactSheet.pdf

* 90 Parker, Alan (2003). The Life of David Gale

* 91 http://conventions.coe.int/Treaty/en/Treaties/Html/187.htm

* 92 http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3?Opendocument

* 93 Cesari, Isabelle (2002). Les mineurs délinquants et la peine de mort aux Etats-Unis. Paris : Nicolas Philippe. Page 165

* 94 http://upload.wikimedia.org/wikipedia/commons/thumb/c/cb/Death_Penalty_World_Map.png/600px-Death_Penalty_World_Map.png

* 95 http://www.ojp.usdoj.gov/bjs/cp.htm

* 96 http://content.answers.com/main/content/wp/en/thumb/5/59/600px-Census_Regions_and_Divisions.PNG

* 97 http://www.deathpenaltyinfo.org/executionmap2006.gif

* 98 http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf






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