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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

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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(*)

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.

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

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.

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(*)


















Federal Death Sentences

















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(*)

















































































































































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.

* 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

* 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

* 7

* 8

* 9

* 10

* 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

* 14

* 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:

* 17 Map from

* 18

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

* 20 Author: Julie Rérolle

* 21

* 22 Author: Julie Rérolle 2007

* 23 As of January 1, 2007,

* 24 Interview published in

* 25 See figure 7 on page 18

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