Chapter 12 Outline

  • Why Does the United States Retain the Death Penalty?
    • As of 2014, only 58 of the 192 sovereign nations in the world (about 30%) retain the death penalty; the U.S. is the only Western democracy that still utilizes it
    • The U.S. government does not have the legal power to impose a nationwide abolition of capital punishment because, for the most part, the U.S. Constitution allocates power over criminal law to the states (unless the U.S. Supreme Court were to find capital punishment unconstitutional)
  • Federal Death Penalty
    • The federal government provides the death penalty for murder under a wider array of circumstances than any of the states, but despite these broader statutes, federal government executions are rare
    • The federal government suspended its death penalty in 1972 after the Furman v. Georgia decision; however, it was not reinstated post Gregg v. Georgia. Rather, the Anti-Drug Abuse Act of 1988 reinstated the death penalty in federal law in an effort to control drug trafficking
    • The Federal Death Penalty Act of 1994 (part of the Violent Crime Control and Law Enforcement Act of 1994) established constitutional procedures for imposition of the death penalty for 60 offenses under 13 existing and 28 new federal capital statutes.
    • The 60 offenses fall into three broad categories: 1) Homicide offenses, 2) espionage and treason, and 3) non-homicidal narcotics offenses. Almost all fall under the homicide offenses
    • S. citizens hold dual citizenship; that is, they are under the protection of two "sovereigns”— the United States, and the particular state in which they reside, and are responsible for behaving in accordance with the laws of both
    • An act defined as criminal by both national and state governments is an offense against both and may be punished by each because of the Doctrine of Dual Sovereignty
    • The 5th Amendment protects against double jeopardy by protecting defendants from being twice put in jeopardy “of life and limb” for the same offense
    • In states that don’t have the death penalty, the federal government can step in to prosecute
    • In the case of Ronell Wilson, who murdered two undercover police officers, his death penalty sentence in New York was overturned by its highest court so the Staten Island D.A. persuaded his federal counterpart to prosecute the case federally. Wilson was then charged federally and sentenced to death. He is currently on death row.
  • The U.S. Military Death Penalty
    • The Uniform Code of Military Justice(UCMJ) establishes a standard set of procedural and substantive criminal laws for the U.S. military services that is separate from civilian law and lists 14 capital offenses; the first 10 can be imposed at any time and the last four only during time of war.
    • The capital offenses are: 1) mutiny or sedition, 2) misbehavior before the enemy, 3) subordinate compelling surrender, 4) improper use of countersign, 5) forcing a safeguard, 6) aiding the enemy, 7) espionage, 8) improper hazarding of vessel, 9) murder, 10) rape, 11) desertion, 12) assaulting or willfully disobeying a superior commissioned officer, 13) lurking as a spy or acting as a spy, and 14) misbehavior of a sentinel or lookout
    • No military executions have occurred since 1961 when John Bennett was hanged at Fort Leavenworth for the rape and attempted murder of an 11-year-old Austrian girl
    • The U.S. Military suspended the use of the death statutes after the Furman decision and brought it back when several states reinstituted it
    • In S. v. Matthews, the Armed Forces Court of Appeals struck down the military’s death penalty as being unconstitutional in 1983
    • When members of the armed forces are accused of committing a crime or some infraction of the military code of justice they are subject to a court-martial. Depending on the offense, it can be a summary (one that does not require a judge and attracts minor penalties), special (one that mirrors a civilian criminal trial and carries more severe penalties) or general court-martial.
  • The U.S. Military’s Current Death Row Population
    • As of early 2015, only 6 inmates reside on death row in Fort Leavenworth, Kansas: Three African Americans, two Whites and a Palestinian-American
    • One of the inmates, Timothy Hennis, is the only person in U.S. history to have been tried three times for the same offense. He was arrested, tried and sentenced to death in a North Carolina state court in 1986, but won the right to a new trial in 1989 and was acquitted. Because he was in the military, the 5th Amendment does not prohibit a court martial for the same offense. He retired from the army in 2004, but was recalled to active duty in 2006 and arrested for three counts of murder due to DNA evidence that found his semen in the victim’s body. DNA technology was not available during his earlier trials.
  • The Death Penalty on the International Stage
    • In China, Iran, Iraq, Saudi Arabia and North Korea, the death penalty is applied swiftly, efficiently, and often cruelly for a variety of offenses that are considered minor in the U.S.
    • Of the countries that retain the death penalty, only 22 of them “officially” executed anyone in 2013; the official figures are not reliable according to Amnesty International
    • Indonesia, Kuwait, Nigeria and Vietnam resumed the practice of the death penalty after a hiatus of a few years
  • The Death Penalty in the Communist World
    • People’s Republic of China
      • China is the leader in the number of persons it executed in 2013
      • It is an authoritarian communist state governed by a single political party and is the most populous country in the world that operates under socialist law, which is a low-tolerance crime-control model
      • In China, the state and the individual are considered inseparable entities, and the notion of individual rights and procedural protections against state power are meaningless because each person theoretically is the state. Thus offenders have no rights of procedural protections
      • In 1996, the notion of the assumption of innocence was introduced, but the Chinese still stress voluntary confessions, contrition, and reintegration back into the community
      • Death eligible offenses include murder, rape, economic crimes committed by high-level officials, and counterrevolutionary offenses
      • According to the Chinese human rights organization Dui Hua based in the United States and Hong Kong, there were at least 4,000 executions in China in 2010, but because the actual number is a state secret, it may be many more
      • Scholars at the Law Institute of the Chinese Academy of Social Sciences estimated there were around 8,000 executions in 2005
      • Two types of death sentences in China: Delayed (a two-year suspension of sentence during which defendants must show that they are reformed) and immediate (carried out within seven days of a failed review of the penalty by Chinese Supreme People's Court when the court’s opinion is the defendant is beyond rehabilitation)
      • A person convicted of murder and certain kinds of rape or robbery is not eligible for a delayed sentence
      • China uses the same three-drug cocktail as the U.S. federal government and most U.S. states claiming that this switch in execution methods from a single shot at the base of the skull to lethal injection was motivated by humanitarian concerns, but some suggest it was motivated by economic gain
      • China has a highly profitable organs-for-transplant industry, and many bodily organs are “harvested” from executed prisoners and sold; thus, lethal injection gives the ability to better preserve criminals’ organs.
      • The cost of lethal injection is about $48 and a firing squad is $113, and death vans shuttle from town to town that are specially equipped to perform lethal injections and facilitates the speedy removal and quick delivery of undamaged organs
    • Democratic People’s Republic of Korea (North Korea)
      • North Korea is a communist dictatorship ruled by a single family (the Kim family) and scores the lowest on the democracy index with a score of 1.08
      • Almost all information coming out of North Korea comes either from government propaganda or from the lucky few who manage to escape to South Korea, thus, Amnesty International is not able to provide execution figures for this country
      • According to the NLCIHR, “The media reported a total of 95 executions in 2013, but the real number is likely much higher.” Even this minimal estimate still gives North Korea an execution rate almost 32 times higher than that of the United States
      • According to a South Korean newspaper, at least 80 people were publicly executed simultaneously in seven North Korean cities in November 2013 for offenses such as watching South Korean movies, possessing a Bible, sexual misconduct, and distributing pornography
      • The North Korean criminal code is extremely broad, vague, and dependent on the whim of government officials
  • The Death Penalty in the Islamic World
    • There are three key factors that distinguish Islamic law from common law: 1) it claims to be based on direct revelation from God and as such is unchangeable and binding on all people, Muslim and non-Muslim alike; 2) It is a religious system as opposed to the secular nature of common and socialist legal systems and requires total and unqualified submission to the will of Allah as it is laid out in the Qu’ran (Koran), Islam’s holy book; and 3) it neither requires nor finds it desirable to achieve uniformity of law.
    • Kingdom of Saudi Arabia
      • The Kingdom of Saudi Arabia is an absolute monarchy and ruled by the House of Saud where the Qu’ran functions as Saudi Arabia’s constitution and strict adherence is required
      • According to Amnesty International, “officially,” 79 people were executed in 2013, although it is suspected that many more secret executions occurred
      • The three categories of crime that carry the death penalty in Islamic countries are: 1) hudud crimes that have fixed punishments prescribed by the Qu’ran; 2) quesas crimes, which are crimes of retribution, “eye-for-an-eye;” and 3) ta’zir crimes, which are crimes that carry discretionary penalties.
      • The death penalty is prescribed for these hudud crimes: Adultery, highway robbery and apostasy. The evidentiary requirements to prove these crimes make it extremely difficult to gain convictions. Circumstantial evidence is not permitted, only direct evidence is used
      • Blacks nor women can be judges and there is no jury system; death penalty cases are tried before a three-judge panel known as the General Court
      • In murder cases, judges are bound by the wishes of victims’ families, who can demand execution or can “forgive” the defendant in exchange for blood money
    • Islamic Republic of Iran
      • Like Saudi Arabia, Iran is an Islamic state with a legal system based on the Qu’ran and Shari’a, but its law follows Shia Islam while the Saudi’s follow Sunni Islam
      • It is a theocratic authoritarian state with power concentrated firmly with the Islamic clergy
      • Because hadd crimes and their punishments are prescribed by the Qu’ran, there is little or any difference between Saudi and Iranian practices with respect to them. Iranians are more likely to be executed by hanging than beheading, however, and adulterers may be stoned to death
      • Amnesty International reports 369 executions in 2013, but according to IHR, there were at least 687 confirmed and 130 unconfirmed
    • Republic of Iraq
      • In 2013, Iraq led the world in the rate of executions, with a rate over 41 times higher than the U.S. rate
      • Lawyers are scarce in Iraq so the quality of the representation is poor, and lawyers who defend death-eligible defendants open themselves to threats and intimidation—lawyers have actually suffered detention, torture, and even death at the hands of various militias
      • Almost all death penalty convictions are the result of confessions that are often obtained through torture or the threat of torture so few cases actually go to trial
      • Death sentences are appealed to the Court of Cassation and both the president and the prime minister have the power to pardon a defendant. One appeal is allowed and must be heard 30 days after the verdict, but since lawyers are rarely available to defendants, it is risky. If the appeal fails or an executive pardon is not forthcoming, the death sentence must be enforced within 30 days of the final verdict.
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