STATUS: retentionist

Legal Framework

The death penalty is retained in 38 of the 50 states. Abolitionist states include Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin, as well as the District of Columbia.[1] The crimes that carry the death penalty vary from state to state.[2]

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STATUS: retentionist

Legal Framework

The death penalty is retained in 38 of the 50 states. Abolitionist states include Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin, as well as the District of Columbia.[1] The crimes that carry the death penalty vary from state to state.[2] Capital punishment is generally permitted for the crimes of murder or felony murder, and generally only when aggravating circumstances are present in the commission of the crime, e.g., if there are multiple victims, if a victim was raped, or if a murder was a contract killing. Capital punishment is permitted for some crimes other than murder, e.g., for sexually assaulting a child. Georgia, Louisiana, and Florida allow the death penalty as punishment for the sexual assault of a child. Oklahoma, South Carolina, and Montana allow the death penalty for individuals convicted of repeated sexual assaults against children. Montana allows the death penalty for a second rape conviction. Texas policy makers are considering a provision to allow for the death penalty for repeat sex offenders whose victims are children. No one convicted only of a sex offence has been executed since the death penalty was reinstated in 1976; in 2007, however, the Louisiana Supreme Court upheld a death sentence for one person for the rape of his step-daughter. The constitutionality of his sentence has not been reviewed by the US Supreme Court.

The death penalty is retained at the federal level. The United States Code identifies 42 crimes (38 homicide and four non-homicide) for which the death penalty may be used.

The Uniform Code of Military Justice provides for the death penalty as a possible punishment for 15 offences, many of which must occur during a time of war.

In March 2006, Congress enacted the USA Patriot Act Improvement and Reauthorization Act of 2005.(109th Congress: Bill H.R. 3199) The Act created a number of new offences, including some for which death is a potential punishment, and shortened the appeals process by expediting capital habeas corpus petitions in federal court. In addition, the Act clarifies appropriate death-penalty procedures for certain cases under the Controlled Substances Act, and expands on the regulations governing provision of counsel to defendants liable to the death penalty and who are unable to afford counsel. (The Controlled Substances Act (Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970) is the legal basis by which the manufacture, importation, possession, and distribution of certain drugs are regulated by the federal government of the United States)

The death penalty may be imposed in accordance with the military order establishing military commissions to prosecute individuals currently detained at Guantanamo Bay. (Military Commission Order No. 1, “Procedures for trials by military commissions of certain non-United States citizens in the war against terrorism”, 21 March 2002, Part 6 (g)) On 29 June 2006, the Supreme Court ruled that the military commissions were illegal under both military law and the Geneva Conventions.(Hamdan v. Rumsfeld, 548 U.S. ___ (2006); 126 S. Ct. 2749, 29 June 2006)

Legislation to abolish capital punishment was recently considered and subsequently defeated in Colorado, Kansas, Maryland, Missouri, Montana, Nebraska, New Hampshire, New Mexico, and South Dakota. Abolition bills remain under consideration in Arizona, Connecticut, Illinois, Kentucky, New Jersey, and New York.

Moratorium

There is no moratorium on executions in place at the federal level. At the state level, Illinois instituted a moratorium on the use of the death penalty in 2000. In January 2006, the New Jersey state legislature passed a one-year moratorium on executions by the state, making New Jersey the first state to pass a moratorium pertaining to the death penalty through legislation, rather than by executive order. In December 2006, the one-year moratorium ended, and in January a report by the New Jersey Death Penalty Study Commission recommended abolishing the death penalty. New Jersey has not executed anyone since restoring the death penalty in 1982.

Moratorium bills are under consideration in North Carolina, Oregon, Pennsylvania, and Texas. The Washington state legislature will consider a moratorium on executions in 2008. Capital punishment by lethal injection has been suspended in several states amid concerns about both the constitutionality of currently used lethal-injection protocols and whether the process is operating properly.

In June 2004, New York’s highest court, the Court of Appeals, held that the central provision of the state’s law on capital punishment violated the state Constitution,[3] and the state’s death penalty was overturned. Sustaining the court-ordered moratorium, in June 2006, members of the New York Assembly’s Codes Committee voted against a bill to reinstate the death penalty.

Method of execution

Although methods of execution vary from state to state, they include lethal injection, electrocution, the gas chamber, hanging, and shooting. The most common method of execution is lethal injection, which is either the sole method or a possible method of execution in all states except Nebraska, where the sole method of execution is electrocution. In 2006, 52 inmates were executed using lethal injection, and one inmate was executed by electrocution. All 26 executions that have taken place in the United States since January 2007 were carried out using lethal injection.

On 12 June 2006, the United States Supreme Court ruled in Hill v. McDonough that convicted individuals could bring civil rights challenges against lethal injection as a method of execution. Although the Court did not rule on the constitutionality of lethal injection as an execution procedure, it determined that convicted individuals who believed that the protocol most commonly used for lethal injections caused unnecessary pain and suffering could pursue a claim under a civil rights statute.

In December 2006, the governor of Florida suspended executions following a botched execution in which improper administration of the drugs in the lethal-injection protocol resulted in an execution that lasted about twice the usual time. In response to a request from the governor, a commission made 37 recommendations on lethal injection in the state. Florida says that it has followed the recommendations and will now resume executions. The Tennessee governor ordered a moratorium on executions in February 2007 pending a review by the Department of Corrections on the administration of death sentences. Lethal-injection protocols were subsequently revised in May 2007, and executions have resumed. Executions scheduled in 2006 were also suspended in Arkansas, California, Delaware, Maryland, and Missouri amid concerns about the practice of lethal injection. In Missouri, a district-court decision originally resulting in the suspension of executions was overruled in June 2007 by the Court of Appeal for the Eighth Circuit, which held that Missouri’s lethal-injection protocol does not violate the Eighth Amendment prohibition against cruel and unusual punishment.

In Nebraska, which uses electrocution as the sole means of carrying out the death penalty, the state’s Supreme Court stayed the execution of an inmate in May 2007 pending the Court’s determination of whether death by electrocution constitutes cruel and unusual punishment. Court hearings on electrocution are scheduled for September 2007.

Statistics

Death sentences

The civilian death-row population by mid-2007 was 3,350 (3,291 men and 59 women), down from 3,373 during the same period in 2006.

Executions

Recently, the death penalty has primarily been exercised at the state level; there have been no executions at the federal level since 2003. Similarly, since 1961, there have been no executions under the Uniform Code of Military Justice.

In 2006, 53 inmates were executed. Of these, 24 executions were carried out in Texas, four in Oklahoma, four in Virginia, four in Florida, four in North Carolina, one in South Carolina, one in Alabama, five in Ohio, one in Indiana, one in California, one in Nevada, one in Mississippi, one in Montana, and one in Tennessee. Executions continued to decline in 2006, dropping to their lowest level in 10 years. The number of inmates sentenced to death also declined in 2006, consistent with a pattern of decreasing death sentences since 2000.

From January to mid-July 2007, 30 inmates were executed. Of these, 18 executions were carried out in Texas, two in Oklahoma, one in Georgia, one in South Carolina, one in Alabama, one in Arizona, two in Ohio, two in Indiana, one in Tennessee, and one in South Dakota.

International Safeguards

Pregnant women and minors

Pregnant women cannot be executed under federal or state law.

At the federal level, individuals who were below the age of 18 at the time of the crime cannot be sentenced to death.(18 U.S.C. § 3591(a)(2)(D), 18 U.S.C. § 3591 (b)(2))

On 1 March 2005, the United States Supreme Court took a decision to abolish the death penalty for defendants who were under the age of 18 when they committed their crimes.(Roper v. Simmons, 543 U.S. (2005)) In Roper v. Simmons, the Supreme Court held that the execution of minors constitutes cruel and unusual punishment within the meaning of the Eighth Amendment to the Constitution. The Court found that a national consensus had emerged that such executions are a disproportionate punishment for juveniles, whom society views as categorically less culpable than adult criminals.

In July 2006, after having considered the second and third periodic reports submitted by the United States, the UN Human Rights Committee noted with concern reports that 42 states and the federal government had laws allowing individuals under the age of 18 at the time the offence was committed to receive sentences of life in prison without the possibility of parole, and that some 2,225 youth offenders were serving such sentences in US prisons. The Committee found that sentencing children to life sentences without the possibility of parole was not in compliance with Article 24 (1) of the ICCPR (provision on the protection of children).(Concluding observations of the Human Rights Committee: United States of America, advance unedited version, U.N. Doc. CCPR/C/USA/Q/3/CRP.4, 27 July 2006, para. 34)

Individuals suffering from any form of mental disorder

The United States Supreme Court has ruled that the execution of an insane person – somebody who is not aware of the impending execution or the reasons for it – violates the US Constitution.(Ford v. Wainwright, 477 U.S. 399 (1986)) Furthermore, the Supreme Court has also ruled that the execution of a mentally retarded person violates the Constitution.(Atkins v. Virginia, 536 U.S. (2002)) The American Association of Mental Retardation defines mental retardation as substantial intellectual impairment appearing at birth or during childhood that impacts on the everyday life of the individual, although definitions of mental retardation differ from state to state. However, there is no constitutional bar against the execution of individuals who are mentally ill but are not classified as “insane”, e.g., persons diagnosed with schizophrenia.

Fair-trial guarantees

By statute, Congress provides for the appointment of highly qualified counsel to represent federal capital defendants at all stages of a capital prosecution, from indictment through post-conviction review.(18 U.S.C. §§ 3005, 3599) In addition, the federal government provides counsel for state capital defendants when their convictions are reviewed in federal court.(18 U.S.C. § 3599) All death-penalty states have adopted procedures of their own to provide experienced, competent counsel to represent indigent capital defendants in state court.

The federal government maintains a system for carefully examining each potential federal death-penalty case, without consideration of the defendant’s race, to ensure that the federal death penalty is sought in a fair, uniform, and non-discriminatory manner nationwide.(18 U.S.C. §§ 3591-3598) Federal law specifically prohibits relying on a defendant’s race or national origin in deciding to seek or impose the death penalty, and the federal death-penalty statute additionally requires a sentencing authority to certify that the defendant’s race was not considered in deciding the defendant’s sentence. 918 U.S.C. § 3593.)

In its concluding observations on the periodic report of the United States in 2006, the Human Rights Committee observed that, despite the Committee’s previous concluding observations, the United States had extended the number of offences for which the death penalty is applicable. The Committee urged the United States to review federal and state legislation with a view to restricting the number of offences carrying the death penalty; to assess the extent to which the death penalty is disproportionately imposed on ethnic minorities and on low-income population groups, as well as the reasons for this; and to adopt all appropriate measures to address the problem. The Committee recommended that the United States place a moratorium on capital sentences, bearing in mind the desirability of abolishing the death penalty.(Concluding observations of the Human Rights Committee: United States of America, U.N. Doc. CCPR/C/USA/CO/3, 15 September 2006, para. 29)

In its concluding observations on the periodic report of the United States in 2001, the Committee for the Elimination of Racial Discrimination noted with concern that, according to the special rapporteur of the United Nations Commission on Human Rights on extrajudicial, summary, or arbitrary executions, there is a disturbing correlation between race, both of the victim and the defendant, and the imposition of the death penalty, particularly in Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. The Committee urged the state party to ensure, possibly by imposing a moratorium, that the death penalty is not imposed as a result of racial bias.(Concluding observations of the Committee on the Elimination of Racial Discrimination: the United States of America, U.N. Doc. A/56/18, 14 August 2001, para. 396)

In its concluding observations on the periodic report of the United States in 2006, the Committee against Torture noted with concern the allegations that the United States had established secret detention facilities that were not accessible to the International Committee of the Red Cross and that detainees were allegedly deprived of fundamental legal safeguards, including an oversight mechanism with regard to their treatment and review procedures with respect to their detention. The Committee considered the “no comment” policy of the state party regarding the existence of such secret detention facilities, as well as on its intelligence activities, to be regrettable.(Conclusions and recommendations of the Committee against Torture: United States of America, U.N. Doc. CAT/C/USA/CO/2, 25 July 2006, para. 17)

Foreign nationals

The Vienna Convention on Consular Relations provides that state authorities must inform foreign nationals without delay of their right to have their consulate notified of their detention.(Article 36 of the Vienna Convention on Consular Relations, 1963)

On 31 March 2004, the International Court of Justice (ICJ) ruled that the United States had violated its obligation to inform foreign nationals without delay of their right to have their consulate notified of their detention in 51 of the 52 cases of Mexican nationals brought before it by Mexico. (Case concerning Avena and other Mexican nationals (Mexico v. United States of America), 31 March 2004. The International Court of Justice made a similar ruling in the LaGrande case (Germany v. United States), 27 June 2001) The ICJ held that the United States should review the convictions and sentences in each case and determine whether the failure to provide consular notification caused actual prejudice to the defendant in the process of administration of criminal justice. On 28 February 2005, the US president issued a memorandum to the US attorney general affirming that the United States would comply with the ICJ judgement. (Mexico v. United States of America, 31 March 2004) The result has been a number of cases before US courts for review and reconsideration of the imposition of the death penalty.

On 13 May 2004, the governor of Oklahoma commuted the death sentence of a Mexican national, whose case was one of those before the ICJ, to life imprisonment without the possibility of parole. On 6 September 2005, the Oklahoma Court of Criminal Appeals found that the appellant had actually suffered prejudice by the failure to inform him of his rights under the Vienna Convention on Consular Relations, but only in the context of his capital sentence. In light of the governor’s granting of clemency and limitation of the appellant’s sentence to life without the possibility of parole, the court found that no further relief was required. (Torres v. State, 2005 OK CR 17, 120 P.3d 1184)

A final judgement is still expected in Medellin v. Texas, another death-penalty case mentioned in the ICJ decision. On 30 April 2007, the United States Supreme Court agreed to hear an appeal in this case. The US Government’s amicus brief urged the Court to overturn the Texas Court of Criminal Appeals’ decision barring reconsideration of the appellant’s conviction and sentence. The United States argued that the Texas court must follow the president’s determination and thereby fulfil the United States’ international obligation to comply with the ICJ decision.

On 28 June 2006, the US Supreme Court issued a decision in the cases of Sanchez Llamas and Bustillo involving breaches of the Vienna Convention on Consular Relations in the cases of two individuals sentenced to the death penalty. These cases were not covered by any of the existing ICJ decisions. Both cases involved failures to inform arrested or detained foreign nationals that they may request consular notification and access. The Court did not decide whether Article 36 of the Vienna Convention on Consular Relations was justiciable upon an individual complaint, but stated that, even if it was, exclusion of evidence was not an appropriate remedy for any failure to inform the detainee of his right to notify and request access to consular authorities. The Court pointed out that defendants have other alternatives for breaches of Article 36, such as diplomatic remedies. The Court also decided that the defendants could be procedurally barred from making Article 36 claims if they did not raise them at trial.

As of March 2007, there were 124 foreign nationals from 33 countries who had been sentenced to death in the United States.

Pardon or commutation

For federal death-row inmates, the president alone has the power to grant clemency. A petition for commutation of sentence should be filed no later than 30 days after the petitioner has received notification from the Bureau of Prisons of the scheduled date of execution. New guidelines also require that an inmate be given 120 days of notice of an execution date. The clemency process varies from state to state, usually involving the governor or a board of advisors, or both. In all cases, a formal petition for clemency must be filed. Under the Uniform Code of Military Justice, only the president has the power to commute a death sentence. Furthermore, no service member can be executed unless the president confirms the death penalty.

Since 2004, 10 inmates have had their death sentences overturned and were acquitted on re-trial or all charges were dropped, including two in 2005, one in 2006, and one in the first half of 2007. Since 2004, an additional eight people sentenced to death have had their sentences commuted on humanitarian grounds.

Relevant International Instruments

[1] Although New York’s highest court held in 2004 that the state’s death-penalty statute violates the state constitution and is therefore invalid, the statute technically remains on the books, and the legislature may revise the law and thereby reinstate the death penalty. One inmate remains on death row in New York. Accordingly, New York is technically one of the 38 states in the United States in which the death penalty is permitted, while, at the same time, the death penalty is prohibited under state law, and executions cannot currently be carried out.

[2] A complete list of capital crimes can be found at www.deathpenaltyinfo.org.

[3] The court found that the sentencing provisions were coercive because they required judges to tell juries in capital cases that, if they deadlocked and failed to reach a verdict during the sentencing phase of a trial, the judge would impose a more lenient sentence.

Updated: 2007

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