Chapter 8 Outline

Introduction

Issues surrounding the death penalty involve race, gender, age, and mental capacity

Race and the Death Penalty

When we speak of race in the United States we are almost always speaking of matters pertaining to African-Americans
Some scholars maintain that death penalty opponents raise the racial issue because they want to use race to center their arguments

Racial Disproportionality in Capital Punishment

African-Americans have historically been convicted of capital crimes and executed in greater numbers than Whites
In 1856, Virginia slaves could be convicted of 66 crimes carrying the death penalty while only murder carried the death penalty for Whites
The attempted rape of a White woman was a capital crime for Blacks until the mid-20^th century in seven Southern states
Although comprising about 11% of the population during the period examined, 50% of all people executed in the United States from 1800 to 2002 have been African-American
Between 1930 and 1980, 53% of persons executed were Black
A 1990 U.S. General Accounting Office report looking at 28 studies found that 75% of them found that Black defendants were more likely than White defendants to receive the death penalty
From 1910 to 1961, 133 Blacks and 36 Whites were executed in North Carolina; however, since 1984, 13 Blacks and 28 Whites had been executed
Black-on-Black murders are underrepresented on death row whereas Black-on-White murders are overrepresented

The Issue of Victim’s Race

Killers of Whites (regardless of the killer’s race) are more likely to receive the death penalty than killers of other racial groups
Homicide is overwhelmingly intraracial (Whites typically kill Whites and Black typically kill Blacks)
Intraracial homicide may be the primary reason Whites are more likely to receive the death penalty

Dueling Statisticians Redux

Baldus and his colleagues state that with zero or one aggravating factor and little risk of the death penalty, there was no racial discrimination regardless of the racial makeup of the victim/offender diyad
Similarly, with multiple aggravating factors (such as multiple victims, a prior homicide conviction, child victims, torture, and so forth), there was no discrimination and the risk of a death sentence was high regardless of the racial makeup of the victim/offender dyad
In a study by the U.S. Department of Justice, the death penalty was sought at lower rates for Blacks and Hispanics than for Whites (both in intraracial and interracial cases)
Jennings and his colleagues found that each death penalty case is different and race played no part in sentencing—aggravating and mitigating circumstances had to be considered in sentencing
Statisticians can skew the information (knowingly or unknowingly) based upon their personal beliefs of the death penalty making it difficult to reach conclusions of racial bias

Juveniles and the Death Penalty

According to Streib, 365 juveniles have been executed in the U.S.
From 1973 to 2003, 22 juveniles were executed in the U.S. with most occurring in the late 1990s and early 2000s
Linde states the spike in juvenile executions was a result of public outrage of the 15 to 19 age group having the second highest homicide rate
Scott Hain is the last juvenile to be executed in 2003 (lethal injection) for the conviction of carjacking, robbery, and murder (locked the couple in the trunk and burned them alive)
The first court for juveniles was established in 1899 in Chicago
Parens Patriae: Doctrine that confers the right of the states to intercede and act in the best interest of the child; the state, not the parents, have the ultimate authority over children
Eddings v. Oklahoma: 16-year-old Monty Lee Eddings was sentenced to death for shooting and killing an Oklahoma Highway Patrol Officer. The Supreme Court vacated his death sentence, ruling that in death penalty cases, the courts must consider all mitigating factors and the court did not consider Eddings had been raised in an abusive environment
Thompson v. Oklahoma: The Supreme Court used the “evolving standards of decency” principle and the death penalty for 15-year-old William Thompson was overturned. The justices drew the line at age 16 for the death penalty
Stanford v. Kentucky (1989): Kevin Stanford, age 17, repeatedly raped and sodomized a female cashier and shot her in the face and the back of the head. The Supreme Court ruled it was permissible to execute juveniles who were 16 or 17.
Taken together, the court cases Thompson v. Oklahoma and Stanford v. Kentucky, set the minimum standard age as 16 for the death penalty
In Roper v. Simmons (2005), the Court abolished the juvenile death penalty. Simmons was 17, kidnapped a woman and threw her over a bridge into a river where she drowned. This case lead to the commutation of 72 death row inmates who committed their crimes while juveniles

Women and the Death Penalty

First woman executed in territory that was to become part of the U.S. was Jane Champion in the Virginia Colony in 1632 for murdering her illegitimate infant child
First woman in the U.S. to be executed (hanging) by the federal government was Mary Surratt for being a conspirator in the assassination of President Abraham Lincoln
As of December 2014, 59 women are on death row
14 women have been executed since 1976

The Chivalry Explanation in Female Capital Cases

There is a chivalrous or paternalistic attitude about women that leads to a reluctance to impose the death penalty on them for the same crimes that men would receive the death penalty

The Evil Woman Explanation in Female Capital Cases

It appears that attractiveness and possessing feminine traits can play a part in the decision of the death penalty. Unattractive women who possess “manly” traits seem to receive the death penalty more often than attractive women

The Death Penalty and Mental Disability and Mental Illness

Two serial killers were arrested five months apart in the same year in Philadelphia Gary Heidnik was White and mentally ill (schizophrenic) and killed two women Harrison Graham was Black and mildly mentally retarded and killed seven women
Heidnik was executed in 1999 and Graham was given six death sentences, but were not to be carried out until his seventh sentence—life without the possibility of parole—was completed, which guaranteed he will never be executed
At the time of these convictions, the states were not constitutionally forbidden from executing the “mentally retarded”

Mental Disability

The primary legal issues the courts have to resolve with both mental deficiency and illness are: (a) Is this person competent to stand trial? (b) Did this person at the time of the crime have the requisite ability to form mens rea (guilty mind)? (c) Does the person’s mental condition warrant a more lenient sentence than would normally attach to this crime?
Mental disability is characterized by three criteria: Significantly subaverage intellectual functioning; concurrent and related limitations in two or more adaptive skill areas; and manifestation before age 18
In Penry v. Lynaugh (1989), the Supreme Court held that the although the jury should have been instructed that it could consider mental retardation a mitigating factor when deciding Penry’s sentence, the imposition of the death penalty on a mentally retarded defendant was not per se a violation of the 8th Amendment
Penry’s death sentence was commuted to life imprisonment in light of Atkins v. Virginia (2002)
In Atkins v. Virginia (2002), the Court concluded that because the mentally disabled are less capable of evaluating the consequences of their crimes, they are less culpable than the average offender; therefore, the Court ruled the “mentally retarded” cannot receive the death penalty

Mental Illness

It is constitutionally permissible to execute the mentally ill even though it is impermissible to execute the “mentally retarded”
The logic is that mental retardation is permanent and unalterable, while mental illness can be faked and sometimes managed with medication
In Jackson v. Indiana (1972), the Supreme Court ruled that it is constitutionally impermissible to commit a defendant for an indefinite period of time based on his or her incompetence to stand trial, and such defendants must either be civilly committed (committed by a non-criminal court) or released from criminal detention
The restorability of sanity became an issue in Ford v. Wainwright (1986) when Ford claimed a descent into insanity while on death row. The Court ruled that if Ford was currently mentally incompetent, he would still have to prove he was mentally ill. Ford died of natural causes while still on death row
In Panetti v. Quarterman (2007), Panetti was given the death penalty for killing his mother-in-law and father-in-law despite there being little doubt of Panetti’s mental illness. The Supreme Court ordered a stay of execution and remanded the case back to the Texas courts. In 2014, an appeals court issued a stay of execution, opening the door for his lawyers to again argue that the death penalty is unconstitutional in his case
In Washington v. Harper (1990) the Supreme Court ruled that in a prison environment, an inmate may be involuntarily medicated “if the inmate is dangerous to himself or others, and the treatment is in the inmate’s medical interest”