CHAPTER 2: DEATH PENALTY IN THE USA

Introduction

It is an issue that is very much discussed and debated while it has been abolished in
the UK or in France. It still exists in many of the States, but it does not mean that
most citizens agree with death penalty since it is a denial of personal liberties, and it
is cruel. In practice, the death penalty is an unfair and inequitable punishment in the
USA because it means that every citizen is not equal in front of the justice (depends
on the State). Many associations are pushing for the abolition of death penalty to
urge the people of the government to change things. But it is too difficult to abolish
it, they are trying to prevent it.

The federal supreme court is particularly conservative, they published an opinion in

“Furmen vs Georgia” in 1972 in which they did not want to abolish the death penalty
but rather that executions were too cruel and did not respect human rights. This
opinion was meaningful because although it could not abolish the death penalty,
they revealed that it was necessary to be careful and more respectful about human
rights.

However, since 1972 until now, things have only changed a little bit (some more
States decided to abolish it)
ex: decision of last spring by the State of Virginia to abolish the death penalty. It is
very symbolical because Virginia was the first colony and one of the first States of the
USA. It was also the first State where the death penalty was approved and used.

Nevertheless, for a period of 10 years (1969 to 1979), there was no execution in the
USA, which proves that there was a real debate and reflexion about the problem. In
1972, all the executions “waiting” and were replaced by life sentences. It was a good
occasion to abolish death penalty, but it did not happen. Somehow, some States tried
to adopt new ways of killing people, so as to make them more “human” (like the
Lethal injection). By developing those new ways of execution, some states resumed
the use of death penalty.

1. History of the death penalty

2. The death penalty today
3. The future of the death penalty: what may happen/can we be hopeful?
The first English settlers who came on the American territory at the beginning of the
17th century were mostly English people. In the 16 th and 17th centuries, death penalty
existed in the United Kingdom: it was a reality which they had encountered this
criminal culture in their original country. The first execution in America dated back to
1608 and took place in the colony of Jamestown (a British colony): Captain George
Kendall was arrested and executed because he was suspected of spying for the
Spanish. With the pilgrims, the death penalty was used in many cases and crimes
such as spying, murder, rape, etc. There was no framework, no constitution, except
tradition and English habits.

It is only a bit later, with the arrival of more migrants, that early elements of
legislation appeared. Those people escaped from England because they wanted to
escape the authority of the King. Their man motivation was not to reproduce the
same cruel things as the king of England. So, they ordered an Act of Law in 1612. This
act allowed death penalty, made it legal and it could be used in the cases mentioned
before and including trading with the Native Americans. The people of Virginia gave
a framework at the death penalty. By making it legal, it became more common
because it was considered as one possibility among other possibilities. Every colony
made it legal with a list of crimes, from the beginning with the settlement of migrants
and different colonies.

Today, 23 States have abolished death penalty, but it is still legal in 27. However, it is
not applicable everywhere, because some States have moratoriums, which means
that in the concerned State, executions are prevented (still exists but is not used).

Very soon, death penalty became an issue, and some abolitionist movements
appeared very early with the arrival of the quakers, because those people had already
contested the death penalty, they had reacted against the authority of the king and
the cruelty of the death punishment which let no possible renew in case of
miscarriage of justice. At that time, justice and also investigator procedure were not
precise, perfect nor objective. Miscarriages of justice were frequent.

The Quakers arrived as a second or third generation of migrants; they set the State of
Pennsylvania (because the first Quakers were William Penn) and they established
Philadelphia (city of brotherly love). Some leader as Thomas Jefferson tried to obtain
a vote in order to reduce the extent and the impact of death penalty, unfortunately,
this attempt failed by only one vote. It is a clear sign that the debate had already
started.

< C’EST HONTEUX!!!!! QUAK!!!

Pennsylvania, the signer of the Declaration of independence obtained the support
from Benjamin Franklin, Dr Rush campaigned very hard to repeal the death penalty
and in 1794, death penalty was repealed in Pennsylvania except for 1 st degree
murder.

In 1846, the first State the State of Michigan abolished the death penalty. A few years
later, the State of Rhode Island and then the State of Wisconsin. Many executions
were hanging. It was a “more human execution” because before they had other
executions like boiling to death; drawing; beheading or quartering. Another way to
execute came, in 1888, the electric chair: it was used for the first time, and it was
considered as technological, fast, and more human. Then came gas chambers in
Nevada in 1924. Lethal injections were introduced in1977.

The death penalty today is still a reality even though there are “only” 17 executions a
year.
In 2020, 10 executions were the result of federal decisions: serious crimes against de
federation of the USA. Originally, the list of crimes against the federation was really
long. It has been reduced but today, it still includes treason of the State; spying;
murder; drug-trafficking; attempting murder against a court officer or a justice
system member. The federal death penalty was abolished for a short time in 1972 but
it was restored in 1988 after 16 years of abolition, after a proposal of the NY senator
who asked to reintroduce death penalty at a federal level, because he judged it
necessary. In 1988, an Act was passed to restored it and in 1994, another Act was
passed in Congress, signed by President Bill Clinton: “the violent crime control law
enforcement”. The legal text was drafted by senator Joe Biden in order to strengthen
law against crime.
The federal supreme court has had the possibility to publish an opinion in order to
change the future of the federal death penalty, but it has never declared it
contradictory to the constitution. There was a case-by-case examination, but they
never made a conclusion, which means they consider it respectful of the constitution.
Several times, executions were suspended for more or less long time periods or
because of a lack of material. In June 2020, the supreme court allowed federal
executions if executed according to State rule. When some prisoners spent long time
imprisoned, this could last for many years. But with this decision of the supreme
court, executions became possible and some of them were made after long years
imprisoned.
In 6 months, 10 executions took place while Trump’s presidency. If he had been
reelected, we may think that the number of executions could have continue to
increase fast.
Since July 1st, 2021, a moratorium has been decided and this means that the death
penalty is suspended until there is a full examination of an issue.

The State death penalty:

Some States have decided not to use the death penalty for a certain time before they
abolish or keep it. Today, it has been abolished in 23 States (out of 50) however, the
situation is not definite: it may change in the future. Hopefully, more states will
abolish it; but it may be the opposite too, a State could bring it back after abolishing
it. We do not know if more or fewer states will have it abolished. Among the 27
States that have not abolished it, 3 have established moratoriums, which means that
it has not been abolished but it is not used as a punishment anymore. Mostly, the
States which have retained it are Southern States and very conservative middle-west
States. Those areas, apart from Texas, are not the most people areas of the USA: they
do not have the most numerous populations: they do not represent the majority of
American people. Many studies show that today, many people living in the USA are
against the death penalty.
Among the States which have abolished, 2 States were “early abolitionists”: the State
of Wisconsin and the State of Mane (Northern States): they abolished it in the 19 th
Century. Then, during that same time period, Michigan partly abolished it: they still
used it against treasons.
During the 20th Century, 9 other States abolished the death penalty.
In 2000, 12 states had abolished it (23 today). That means that since 2000, 11 more
States have abolished (4 states in the last 3 years): this is obviously a strong
acceleration of the process.
Despite the large support from the pro-death penalty movement, the abolitionist
movement is accelerating with real successes. People who support it are not ready to
change opinion and today, there is not strict punishment for the Supreme Court of
the USA.
Recently, one important and very symbolical state abolished: in Virginia.
A great number of procedures have started against the scheduling of executions,
ways of execution. Some states, which authorities have understood how critical the
subject is, are trying to find alternatives in order to be able to execute prisoners
despite the numerous controverses abut the lethal injection. Today, the lethal
injection is very criticized although it was formerly presented as an “ideal way” to
execute prisoners compared to the other systems (“more human”). But there have
been some examples where the executions were very painful for the prisoners and
that the drugs did not give the rights effects against pain. Some executions had to be
postponed.
The necessary drugs must be made and sold by private industries, that produced
drugs for medical aims. But some brand names are associated with death penalty.
That’s why they became more reluctant about providing these drugs and this leads to
a reducing of the number of executions and perhaps abolishment, due to difficulties
finding the drugs.
Some states are trying to put in practice alternative ways of execution (ex: very
conservative states as Mississippi, Utah, South Carolina, and Dakota).
The most conservative states, which represent a majority of the USA, have not made
changing decisions about the death penalty, that’s why we may think that it will
remain in the USA for a certain time.
However, the number of executions is decreasing (average number: 20 a year
including the federal executions). There is a hope that it can soon be decreased to 10
to 15 a year. It is still not an ideal situation: it remains unfair; but it shows that if it
seems nearly impossible to make things change, in reality they do change.

Conclusion/last part: the future of the death penalty in the USA

Today, pro-death penalty supporters are still demonstrating and fighting to preserve
death penalty, but there is also more and more pressure coming from abolitionist
states and people, who demonstrate and act for their rights. Although there is no
proof, we can say that there is an implicit majority of people who are against the
death penalty in the USA.
Recent changes and more international pressure, in particular by human rights
activist institution. Human rights are strongly defended at an international level; more
and more minds turn to the USA because people realize that this country is not an
example despite its power and influence in the world. It remains a worrying and
unfair situation.
For the states that still have death penalty, there are 2 situations:
- There is no decision of death penalty, no execution (death penalty is a
deterrent) = c’est une peine de dissuasion
- Death penalty is used by the courts but there is no execution (there are
prisoners in death row in these States, not knowing when or if it will take
place)

There is hope for other states to progressively reduce the executions and finally
abolish it one by one, however there are very few chances of a new constitutional
amendment against death penalty: it is a hard, arduous process, same as for the
ratification process (every member must say if they agree of disagree with a
maximum period of 7 years (very long period) to decide + it must get ¾ of positive
decisions among the members of the federation (50 members) which means there
must be 38 members who have to agree: it is very difficult to obtain)