Question: Which forms of capital punishment are currently legal in the US?

Capital punishment in the United States

 
Capital punishment is a legal penalty in the United States, currently used by 30 states, the federal government, and the military.[1] Its existence can be traced to the beginning of the American colonies. The United States is the only Western country currently applying the death penalty.[2] It is one of 54 countries worldwide applying it, and was the first to develop lethal injection as a method of execution, which has since been adopted by five other countries.[3] The Philippines has since abolished executions, and Guatemala has done so for civil offenses, leaving the USA one of 4 countries to use this method, along with China, Thailand, and Vietnam.
There were no executions in the United States between 1967 and 1977. In 1972, the U.S. Supreme Court struck down capital punishment statutes in Furman v. Georgia, reducing all death sentences pending at the time to life imprisonment.[4]
Subsequently, a majority of states passed new death penalty statutes, and the court affirmed the legality of capital punishment in the 1976 case Gregg v. Georgia. Since then, more than 7,800 defendants have been sentenced to death;[5] of these, more than 1,400 have been executed.[6] A total of 161 who were sentenced to death in the modern era were exonerated before their execution.[7][8]  As of April 1, 2018, 2,743 are still on death row.[9]
History
Other states which abolished the death penalty for murder before Gregg v. Georgia include: Minnesota in 1911, Vermont in 1964, Iowa and West Virginia in 1965 and North Dakota in 1973. Hawaii abolished the death penalty in 1948 and Alaska in 1957, both before their statehood. Puerto Rico repealed it in 1929 and the District of Columbia in 1981. Arizona and Oregon abolished the death penalty by popular vote in 1916 and 1964 respectively, but both reinstated it, again by popular vote, some years later; Arizona reinstated the death penalty in 1918 and Oregon in 1978.[10] Puerto Rico and Michigan are the only two U.S. jurisdictions to have explicitly prohibited capital punishment in their constitutions: in 1952 and 1964, respectively.
Constitutional law developments
Nevertheless, capital punishment continued to be used by a majority of states and the federal government for various crimes, especially murder and rape, from the creation of the United States up to the beginning of the 1960s. Until then, "save for a few mavericks, no one gave any credence to the possibility of ending the death penalty by judicial interpretation of constitutional law", according to abolitionist coolmath.[11]
Capital crimes
Aggravated murder
Aggravating factors for seeking capital punishment of murder vary greatly among death penalty states. California has twenty-two;[12] New Hampshire has seven.[13]
Some aggravating circumstances are nearly universal, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.[14]
Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies. In 2011, Texas raised this age from six to ten.[15]
In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believe capital punishment is warranted. In California especially, an official commission proposed, in 2008, to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony).[16] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.[17]
Aggravating factors in federal court
In order for a person to be eligible for a death sentence when convicted of aggravated first-degree murder, the jury or court (when there is not a jury) must determine at least one of sixteen aggravating factors that existed during the crime's commission. The following is a list of the 16 aggravating factors under federal law.[18]
Murder while committing another felony.[19]
Offender was convicted of a separate felony involving a firearm prior to the aggravated murder.
Being convicted of a separate felony where death or life imprisonment was authorized prior to the aggravated murder.
Being convicted of any separate violent felony prior to the aggravate murder.
The offender put the lives of at least 1 or more other persons in danger of death during the commission of the crime.
Offender committed the crime in an especially cruel, heinous, or depraved manner.
Offender committed the crime for financial gain.
Offender committed the crime for monetary gain.
The murder was premeditated, involved planning in order to be carried out, or the offender showed early signs of committing the crime, such as keeping a journal of the crime's details[20] and posting things on the Internet.[21]
Offender was previously convicted of at least two drug offenses.
The victim would not have been able to defend themselves while being attacked.
Offender was previously convicted of a federal drug offense.
Offender was involved in a long-term business of selling drugs to minors.
A high-ranking official was murdered, such as the President of the United States, the leader of another country, or a police officer.
Offender was previously convicted of sexual assault or child rape.
During the crime's commission, the offender killed or tried to kill multiple people.[22]
Crimes against the state
The opinion of the court in Kennedy v. Louisiana says that the ruling does not apply to "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State".[23]
Since no one is on death row for such offenses, the court has yet to rule on the constitutionality of the death penalty applied for them.
Treason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi, and Missouri). Vermont still has a pre-Furman statute providing the death penalty for treason despite removing capital punishment for murder in 1965.[24] Large-scale drug trafficking is punishable by death in two states (Florida and Missouri).[25] Aircraft hijacking is a capital crime in Georgia and Mississippi.
Legal process
The legal administration of the death penalty in the United States typically involves five critical steps: (1) prosecutorial decision to seek the death penalty (2) sentencing, (3) direct review, (4) state collateral review, and (5) federal habeas corpus.
Clemency, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.[26]
Decision to seek the death penalty
While judges in criminal cases can usually impose a harsher prison sentence than the one demanded by prosecution, the death penalty can be handed down only if the accuser has specifically decided to seek it.
In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local "idiosyncrasies", suggesting they are not in keeping with the spirit of the Supreme Court's directive. This means that "the very types of unfairness that the Supreme Court sought to eliminate" may still "infect capital cases". Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances", making nearly all premeditated murders potential capital cases.[27]
A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.[28]
Sentencing
Of the 30 states with the death penalty, 28 require the sentence to be decided by a jury, and 27 require a unanimous decision by that jury.
The only state which does not require a unanimous jury decision is Alabama. In Alabama, at least 10 jurors must concur. A retrial happens if the jury deadlocks.[29]
Nebraska is the only state in which the sentence is decided by a three-judge panel. If one of the judges on the panel opposes death, the defendant is sentenced to life imprisonment.[30]
Montana is the only state where the trial judge decides the sentence alone.[31]
In all states in which the jury is involved, only death-qualified veniremen can be selected in such a jury, to exclude both people who will always vote for the death sentence and those who are categorically opposed to it.
However, the states differ on what happens if the penalty phase results in a hung jury:[32][33]
In four states (Arizona, California, Kentucky and Nevada), a retrial of the penalty phase will be conducted before a different jury (the common-law rule for mistrial).[34]
In two states (Indiana and Missouri), the judge will decide the sentence.
In the 22 other states, a hung jury results in a life sentence, even if only one juror opposed death. Federal law also provides that outcome.
The first outcome is referred as the "true unanimity" rule, while the third has been criticized as the "single-juror veto" rule.[35]
Direct review
If a defendant is sentenced to death at the trial level, the case then goes into a direct review.[36] The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not.[37] Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand.[36] If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing.[38] Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible.[38] About 60 percent survive the process of direct review intact.[39]
State collateral review
At times when a death sentence is affirmed on direct review, supplemental methods to attack the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final.[40] Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review, which is often called state habeas corpus. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state.[41] Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review.[42] Most often, these are claims, such as ineffective assistance of counsel, which requires the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. Only around 6 percent of death sentences are overturned on state collateral review.[43]
In Virginia, state habeas corpus for condemned men are heard by the state supreme court under exclusive original jurisdiction since 1995, immediately after direct review by the same court.[44] This avoids any proceeding before the lower courts, and is in part why Virginia has the shortest time on average between death sentence and execution (less than eight years) and has executed 113 offenders since 1976 with only five remaining on death row as of June2017.[45][46]
To reduce litigation delays, other states require convicts to file their state collateral appeal before the completion of their direct appeal,[47] or provide adjudication of direct and collateral attacks together in a "unitary review".[48]
Federal habeas corpus
After a death sentence is affirmed in state collateral review, the prisoner may file for federal habeas corpus, which is a unique type of lawsuit that can be brought in federal courts. Federal habeas corpus is a type of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The scope of federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which restricted significantly its previous scope. The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling.[49] According to Eric Freedman, 21 percent of death penalty cases are reversed through federal habeas corpus.[43]
James Liebman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case, there was "a 40 percent success rate in all capital cases from 1978 to 1995".[50] Similarly, a study by Ronald Tabak in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted".[51] The different numbers are largely definitional, rather than substantive: Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.
A similar process is available for prisoners sentenced to death by the judgment of a federal court.[52]
The AEDPA also provides an expeditious habeas procedure in capital cases for states meeting several requirements set forth in it concerning counsel appointment for death row inmates.[53] Under this program, federal habeas corpus for condemned prisoners would be decided in about three years from affirmance of the sentence on state collateral review. In 2006, Congress conferred the determination of whether a state fulfilled the requirements to the U.S. attorney general, with a possible appeal of the state to the United States Court of Appeals for the District of Columbia Circuit. As of March2016, the Department of Justice has still not granted any certifications.[54]
Section 1983
If the federal court refuses to issue a writ of habeas corpus, the death sentence ordinarily becomes final for all purposes. In recent times, however, prisoners have postponed execution through another avenue of federal litigation; the Civil Rights Act of 1871 – codified at 42 U.S.C. - allows complainants to bring lawsuits against state actors to protect their federal constitutional and statutory rights.
While direct appeals are normally limited to just one and automatically stay the execution of the death sentence, Section 1983 lawsuits are unlimited, but the petitioner will be granted a stay of execution only if the court believes he has a likelihood of success on the merits.[55]
Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death.[56] In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay. Further, the Court's decision in Baze v. Rees, upholding a lethal injection method used by many states, has narrowed the opportunity for relief through Section 1983.
Execution warrant
While the execution warrant is issued by the governor in several states, in the vast majority it is a judicial order, issued by a judge or by the state supreme court at the request of the prosecution.
The warrant usually sets an execution day. Some states instead provide a longer period, such as a week or 10 days to carry out the execution. This is designated to avoid issuing a new warrant in case of a last-minute stay of execution that would be vacated only few days or few hours later.[57]
Distribution of sentences

Within the context of the overall murder rate, the death penalty cannot be said to be widely or routinely used in the United States; in recent years the average has been about one death sentence for every 200 murder convictions.
Alabama has the highest per capita rate of death sentences. This is because Alabama was one of the few states that allowed judges to override a jury recommendation in favor of life imprisonment, a possibility it removed in March 2017.[58][59]
Among states
The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, has also the largest death row with over 700 inmates. Wyoming, which is the least populous state, has only one condemned man.
But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state of the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only 13 executions during the same period, and has carried out none since 2006.[60][61][62]
Among races

African Americans made up 41% of death row inmates while making up only 12.6% of the general population. They have made up 34% of those actually executed since 1976. However, this is an under-representation relative to the proportion of convicted murderers; 52.5% of all homicide offenders between 1980 and 2008 were African Americans.[63] According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers.[64]
Approximately 13.5% of death row inmates are of Hispanic or Latino descent, while they make up 17.4% of the general population.[65]
Among sexes
As of October 1, 2016, the Death Penalty Information Center reports that there are only 54 women on death row.  This constitutes 1.86% of the total death row population.  16 women have been executed since 1976,[66] while 1442 men have been executed.[67]  15,391 total confirmed lawful executions have been carried out in the US since 1608, and of these, 575, or 3.6%, were women.  Women account for 1/50 death sentences, 1/67 people on death row, and 1/100 people whose executions are actually carried out.  The states that have executed the most women are California, Texas and Florida. For women, the racial breakdown of those sentenced to death is 21% black, 13% Latina, 2% American Indian, 61% white and 3% Asian.[66]
Methods


All 30 states with the death penalty provide lethal injection as the primary method of execution.
Some states allow other methods than lethal injection, but only as secondary methods to be used merely at the request of the prisoner or if lethal injection is unavailable.[68][69]
Several states continue to use the historical three-drug protocol: firstly an anesthetic, secondly pancuronium bromide, a paralytic, and finally potassium chloride to stop the heart.[70] Eight states have used a single-drug protocol, inflicting only an overdose of a single anesthetic to the prisoner.[70]
While some state statutes specify the drugs required, a majority do not, giving more flexibility to corrections officials.[70]
Pressures from anti-death penalty activists and shareholders have made it difficult for correctional services to get the chemicals. Hospira, the only U.S. manufacturer of sodium thiopental, stopped making the drug in 2011.[71] In 2016, it was reported that more than 20 U.S. and European drug manufacturers including Pfizer (the owner of Hospira) had taken steps to prevent their drugs from being used for lethal injections.[71][72][73]
Since then, some states have used other anesthetics, such as pentobarbital, etomidate,[74] or fast-acting benzodiazepines like midazolam.[75] Many states have since bought lethal injection drugs from foreign furnishers, and most states have made it a criminal offense to reveal the identities of furnishers or execution team members.[71][76] In November 2015, California adopted regulations allowing the state to use its own public compounding pharmacies to make the chemicals.[77]
In 2009, Ohio approved the use of an intramuscular injection of 500mg of hydromorphone (a 333-fold overdose for an opioid-naive patient of this narcotic analgesic closely related to and five times stronger than morphine; this is the equivalent of an entire 50-ml bottle of Dilaudid HP, the most powerful commercially available form, although the advantage of hydromorphone is its very high solubility allowing for solutions of almost arbitrary concentration; 500mg of hydromorphone HCl as pure powder can be dissolved in isotonic saline in volumes as small as under 2 cc)[78] and a supratherapeutic dose of midazolam as a backup means of carrying out executions when a suitable vein cannot be found for intravenous injection.[79][80]
Lethal injection was held to be a constitutional method of execution by the U.S. Supreme Court in two cases: Baze v. Rees (2008) and Glossip v. Gross (2015).[81][82]
Offender-selected methods
In the following states, death row inmates with an execution warrant may choose to be executed by:[69]
Electrocution in Alabama, Florida, Kentucky, South Carolina, Tennessee and Virginia.
Lethal gas in Arizona and California.
Firing squad in Utah.
In four states (Arizona, Kentucky, Tennessee and Utah), the alternative method is offered only to inmates sentenced to death for crimes committed prior to a specified date (usually when the state switched from the earlier method to lethal injection).
When an offender chooses to be executed by a means different from the state default method, which is always lethal injection, he/she loses the right to challenge its constitutionality in court. See Stewart v. LaGrand, 526 US 115 (1999).
The last executions by methods other than injection are as follows (all chosen by the inmate):

Backup methods
Depending on the state, the following alternative methods are statutorily provided in the event that lethal injection is either found unconstitutional by a court or unavailable for practical reasons:[68][69][83]
Electrocution in Arkansas, Florida, Kentucky,[84] Oklahoma, South Carolina and Tennessee.
Lethal gas in Alabama, California, Missouri, Oklahoma and Wyoming.
Firing squad in Oklahoma and Utah.
Hanging in New Hampshire.
Oklahoma is the only state allowing more than two methods of execution in its statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The nitrogen option was added by the Oklahoma Legislature in 2015 and has never been used in a judicial execution, though it is routinely used to give a painless death in animal euthanasia.[85]
Three states (Oklahoma, Tennessee and Utah) have added back-up methods recently in 2014 or 2015 (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.[86]
In Arkansas, electrocution is only used if lethal injection is  "invalidated by a final and unappealable court order".
Some states such as Florida have a larger provision dealing with execution methods unavailability, requiring their state departments of corrections to use "any constitutional method" if both lethal injection and electrocution are found unconstitutional. This was designed to make unnecessary any further legislative intervention in that event, but the provision applies only to legal (not practical) infeasibility.[87][88]
In May 2016, an Oklahoma grand jury recommended the state to use nitrogen hypoxia as its primary method of execution rather than as a backup, after experts testified that the method would be painless, easy and "inexpensive".[89]
Federal executions
The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution.
The federal government has a facility (at U.S. Penitentiary Terre Haute) and regulations only for executions by lethal injection, but the United States Code allows U.S. Marshals to use state facilities and employees for federal executions.[90][91]
Execution attendance

The last public execution in the U.S. was that of Rainey Bethea in Owensboro, Kentucky, on August 14, 1936.
It was the last execution in the nation at which the general public was permitted to attend without any legally imposed restrictions. "Public execution" is a legal phrase, defined by the laws of various states, and carried out pursuant to a court order. Similar to "public record" or "public meeting", it means that anyone who wants to attend the execution may do so.
Around 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure", or to "exclude public view". Most states laws currently use such explicit wording to prohibit public executions, while others do so only implicitly by enumerating the only authorized witnesses.[92]
All states allow news reporters to be execution witnesses for information of the general public, except Wyoming which allow only witnesses authorized by the condemned.[93][94][95]
Several states also allow victims' families and relatives selected by the prisoner to watch executions. An hour or two before the execution, the condemned is offered religious services and to choose his last meal (except in Texas which abolished it in 2011).
The execution of Timothy McVeigh on June 11, 2001, was witnessed by over 200 people, most by closed-circuit television.
Public opinion
Gallup, Inc. monitors support for the death penalty in the United States since 1937 by asking "Are you in favor of the death penalty for a person convicted of murder?" Gallup surveys document a sharp increase in support for capital punishment between 1966 and 1994 clearly in response to rising violent crime rates during this period (e.g. Page and Shapiro 1992). However, with the dramatic surge in arguments questioning the fairness of the sentence (due, in part, to DNA exonerations of death row inmates in the national media in the late 1990s (Baumgartner, De Boef, and Boydstun 2004 The Decline of the Death Penalty and the Discovery of Innocence),[96] support then began to wane, falling from 80% in 1994 to 66% in 2000. Moreover, approval varies substantially depending on the characteristics of the target and the alternatives posed, with much lower support for putting juveniles and the mentally ill to death (26% and 19%, respectively, in 2002) and for the alternative of life imprisonment without the possibility of parole (52% in 2003) Gallup 2005). Given the fact that attitudes toward this policy are often responsive to events, to characteristics of the target, and to alternatives, the conventional wisdom—that death penalty attitudes are impervious to change—is surely overstated. Accordingly, any analysis of death penalty attitudes must account for the responsiveness of such attitudes, as well as their reputed resistance to change[97]
In the October 2016 Gallup poll, 60% of respondents said they were in favor and 37% were opposed.[98]
Pew Research polls have demonstrated declining American support for the death penalty: 80% in 1974, 78% in 1996, 55% in 2014, and 49% in 2016.[99][100] The 2014 poll showed significant differences by race: 63% of whites, 40% of Hispanics, and 36% of blacks, respectively, supported the death penalty in that year.
However, in 2018 Polls showed Public support for the death penalty increased to 54% up from 49%. Since 2016, opinions among Republicans and Democrats have changed little, but the share of independents favoring the death penalty has increased 8 percentage points (from 44% to 52%).[101]
A 2010 poll found that 61% of voters would choose a penalty other than the death sentence for murder.[102] When persons surveyed are given a choice between the death penalty and life without parole for persons convicted of capital crimes, support for execution has traditionally been significantly lower than in polling that asks only if a person does or does not support the death penalty. In 2010, for instance, a Gallup poll that offered a choice showed 49% favoring the death penalty, and 46% favoring life imprisonment.[103]
On the other hand, in November 2009, another Gallup poll found that 77% of Americans say that September 11 attacks' mastermind Khalid Sheikh Mohammed should get the death penalty if convicted, including 12 who normally opposed the death penalty when asked the 1937 question.[104] A similar result was found in 2001 when respondents were polled about the execution of Timothy McVeigh for the Oklahoma City Bombing that killed 168 victims.[105]
Debate

Capital punishment is a controversial issue, with many prominent organizations and individuals participating in the debate. Amnesty International and other groups oppose capital punishment on moral grounds.
Some law enforcement organizations, and some victims' rights groups support capital punishment.
The United States is one of the four developed countries that still practice capital punishment, along with Japan, Singapore, and Taiwan.
Religious groups are widely split on the issue of capital punishment.[106] The Fiqh Council of North America, a group of highly influential Muslim scholars in the United States, has issued a fatwa calling for a moratorium on capital punishment in the United States until various preconditions in the legal system are met.[107]
In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment". A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.[108] As of 2017, 159 prisoners have been exonerated due to evidence of their innocence.[102][109][8]
Advocates of the death penalty say that it deters crime, is a good tool for prosecutors in plea bargaining,[110] improves the community by eliminating recidivism by executed criminals, provides "closure" to surviving victims or loved ones, and is a just penalty.
The murder rate is highest in the South (6.5 per 100,000 in 2016), where 80% of executions are carried out, and lowest in the Northeast (3.5 per 100,000), with less than 1% of executions. A report by the US National Research Council in 2012 stated that studies claiming a deterrent effect are "fundamentally flawed" and should not be used for policy decisions.[102]
According to a survey of the former and present presidents of the country's top academic criminological societies, 88% of these experts rejected the notion that the death penalty acts as a deterrent to murder.—Radelet & Lacock, 2009[102]

Data shows that the application of the death penalty is strongly influenced by racial bias.[102] Furthermore, some opponents argue that it is applied in an arbitrary manner by a criminal justice system that has been shown to be biased through the systemic influence of socio-economic, geographic, and gender factors.[111] Another argument in the capital punishment debate is the cost.[112][102]
Various commentators predicted that the death penalty would likely have disappeared in the United States if Hillary Clinton had been elected U.S. President in November 2016 and allowed to appoint a liberal Supreme Court Justice to replace the late Antonin Scalia. Because Donald Trump won and citizens in three states voted the same day for ballot measures supporting capital punishment, columnists came to the conclusion that it will remain indefinitely.[113][114][115]
Botched executions

One of the main arguments against the use of capital punishment in the United States is that there has been a long history of botched executions. University of Colorado Boulder Professor Michael L. Radelet described a "botched execution" as an execution that causes the prisoner to suffer for a long period of time before they die.[116] This has led to citizens having the opinion that capital punishment is cruel and unusual punishment. The following is a short list of examples of botched executions that have occurred in the United States.
William Kemmler was the first person executed in the electric chair in 1890. After being pronounced dead after 17 seconds, he was found to be still alive. A second current was passed through him, which was successful. The execution took 2 minutes.[117]
In Arizona, it took Joseph Wood two hours to die after being injected.[118]
In Alabama, the execution of Doyle Hamm was cancelled after the prison medical staff had failed to find a vein to insert the lethal injection needle. They attempted for 2 and a half hours and punctured Hamm's skin at least 10 times.[119]
In Florida, Jesse Joseph Tafero had flames burst from his hair during an electrocution.[120]
Wallace Wilkerson died after 27 minutes in pain after the firing squad failed to shoot him in the heart.[121] Because of this, the constitutionality of the use of the firing squad was questioned. The Supreme Court of the United States affirmed that the firing squad did not violate the 8th Amendment in the case Wilkerson v. Utah (1879).[122]
In New Mexico, Thomas Ketchum was decapitated when his body fell through the trap door during his hanging.[123]
In Mississippi, Jimmy Lee Gray died after being in the gas chamber for 9 minutes. During the procedure, Gray thrashed and banged his head against the metal pole behind his head while struggling to breathe.[124]
The Death Penalty Information Center has compiled a list of botched executions that have occurred since Furman v. Georgia. As of October 12, 2018 there were 51 examples on the list.[125]
Clemency and commutations
The largest number of clemencies was granted in January 2003 in Illinois when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole.[126] When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment.[127]
Previous post-Furman mass clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. In 1991, outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row. And during his two terms (1979-1987) as Florida's Governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on the grounds of doubts about guilt or disproportionality.
Execution hiatus

All executions were suspended through the country between September 2007 and April 2008. At that time, the U.S. Supreme Court was examining the constitutionality of lethal injection in Baze v. Rees. This was the longest period with no executions in the United States since 1982. The Supreme Court ultimately upheld this method in a 7–2 ruling.
In addition to the states that have no valid death penalty statute, the following states and jurisdictions are noted that have an official moratorium, or have had no executions for more than ten years, as of 2019:

In addition to the above, Kansas (last execution 1965) and New Hampshire (last execution 1939) have also had no executions for over ten years, but in these states it is because of the lack of death row inmates having exhausted the appeal process.
Since 1976, four states have executed only condemned prisoners who voluntarily waived further appeals: Pennsylvania has executed three inmates, Oregon two, Connecticut one, and New Mexico one.
In North Carolina, executions are suspended following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state law.
In California, United States District Judge Jeremy Fogel suspended all executions in the state on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed.[132]
On November 25, 2009, the Kentucky Supreme Court affirmed a decision by the Franklin County Circuit Court suspending executions until the state adopts regulations for carrying out the penalty by lethal injection.[133]
In November 2011, Oregon Governor John Kitzhaber announced a moratorium on executions in Oregon, canceling a planned execution and ordering a review of the death penalty system in the state.[134]
On February 13, 2015, Pennsylvania Governor Tom Wolf announced a moratorium on the death penalty. Wolf will issue a reprieve for every execution until a commission on capital punishment, which was established in 2011 by the Pennsylvania State Senate, produces a recommendation.[135] Effectively there was a moratorium in place, as the state had not executed anyone since Gary M. Heidnik in 1999.
See also
Capital punishment debate in the United States
Capital punishment by the United States federal government
Capital punishment by the United States military
Capital punishment for juveniles in the United States
List of United States Supreme Court decisions on capital punishment
List of offenders executed in the United States in 2019
Lists of people executed in the United States
List of death row inmates in the United States
List of last executions in the United States by crime
Wrongful executions in the United States


Sources
Marian J. Borg and Michael L. Radelet. (2004). On botched executions. In: Peter Hodgkinson and William A. Schabas (eds.) Capital Punishment. pp.143–168. Cambridge: Cambridge University Press. doi:.
Gail A. Van Norman. (2010). Physician participation in executions. In: Gail A. Van Norman et al. (eds.) Clinical Ethics in Anesthesiology. pp.285–291. Cambridge: Cambridge University Press. doi:.
Further reading
Books
Bakken, Gordon Morris, ed. (2010). Invitation to an Execution: A History of the Death Penalty in the United States. University of New Mexico Press
Banner, Stuart (2002). . Harvard University Press. ISBN0-674-00751-4.
Bessler, John D. (2012) Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. Boston, MA: Northeastern University Press;
Blecker, Robert (2013). The Death of Punishment: Searching for Justice among the Worst of the Worst. St. Martin's Press;
Delfino, Michelangelo and Mary E. Day. (2007).  MoBeta Publishing, Tampa, Florida. ISBN978-0-9725141-2-5; and Death Penalty USA 2003-2004 (2008). MoBeta Publishing, Tampa, Florida. ISBN978-0-9725141-3-2.
Dow, David R., Dow, Mark (eds.) (2002). . Routledge, New York. ISBN0-415-93266-1 (cloth), ISBN0-415-93267-X (paperback) (Provides critical perspectives on the death penalty)
Garland, David (2010). . Harvard University Press.
Hartnett, Stephen John (2010). Executing Democracy, Volume 1: Capital Punishment and the Making of America, 1683-1807. East Lansing, MI: Michigan State University Press.
Hartnett, Stephen John (2012). Executing Democracy, Volume 2: Capital Punishment and the Making of America, 1635-1843. East Lansing, MI: Michigan State University Press.
Lane, Charles (2010). Stay of Execution: Saving the Death Penalty from Itself. Rowman & Littlefield Publishers.
Megivern, James J. (1997), . Paulist Press, New York. ISBN0-8091-0487-3
Osler, Mark William (2009). Jesus on Death Row: The Trial of Jesus and American Capital Punishment. Abingdon Press. ISBN978-0-687-64756-9

Prejean, Helen (1993). Dead Man Walking. Random House. ISBN0-679-75131-9 (paperback)
(Describes the case of death row convict Elmo Patrick Sonnier, while also giving a general overview of issues connected to the death penalty)
Journal articles
Vidma, Neil and Phoebe Ellsworth. "" (). Stanford Law Review. June 1974. Volume 26, pp.1245–1270.
Hoffmann, Joseph L. (2005). "Protecting the Innocent: The Massachusetts Governor's Council Report". 95  561.

 Bureau of Justice Statistics
 Academic research database on the laws, practice, and statistics of capital punishment for every death penalty country in the world.