Assignment 2
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Stohr4e_PPT_13.pptxChapter 13: Legal Issues in Corrections and the Death Penalty
Introduction: The History of Law in Corrections (1 of 11)
Winston Churchill believe civilizations judged by way they treat prisoners
The United States despises criminals, perhaps more than anybody else
Treatment while incarcerated becomes more pressing
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13.1: Discuss the evolution of law within the field of corrections.
Introduction: The History of Law in Corrections
Winston Churchill believe civilizations are judged by the way they treat their prisoners.
The United States despises criminals, perhaps more than anybody else in society.
Seen as evil misfits who prey on decent people.
Issues relating to how they are treated while incarcerated becomes more pressing as more are imprisoned.
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Introduction: The History of Law in Corrections (2 of 11)
Court system: only system capable of monitoring treatment of people under supervision
Attitudes have changed toward treatment of prisoners
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13.1: Discuss the evolution of law within the field of corrections.
The only system capable of monitoring treatment of people under supervision, other than CJ system itself, is the court system.
Court system attitudes have changed toward treatment of prisoners.
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Introduction: The History of Law in Corrections (3 of 11)
The Rule of Law
Rule of law: laws, not people, govern and no one is above the law
“The most important legal principle in the world”
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13.1: Discuss the evolution of law within the field of corrections.
The Rule of Law
Rule of law: The principle that laws, not people, govern and that no one is above the law.
Has been called “the most important legal principle in the world.”
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Introduction: The History of Law in Corrections (4 of 11)
The Rule of Law
Three irreducible elements
All organized societies recognize a set of fundamental values
Due process of law owed to all persons
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13.1: Discuss the evolution of law within the field of corrections.
The Rule of Law
According to Reichel (2005), has three irreducible elements.
A nation must recognize the supremacy of certain fundamental values and principles.
These values and principles must be committed to writing.
A system of procedures to hold the government to these principles and values must be in place.
All organized societies recognize a set of fundamental values they hold supreme.
Whether secular or religious.
Law is little more than words on paper if it is not respected by human actors.
The procedures designed to hold the government to its written principles are articulated by the concept of due process.
Due process of law is owed to all persons whenever they are threatened with the loss of life, liberty, or property at the hands of the state.
Instructs agents of the state on how to investigate, arrest, question, prosecute, and punish those suspected of crimes.
If the judiciary is corrupt, lax, or the puppets of politicians or public opinion, then the rule of law is likely to be ignored, particularly as it pertains to prisoners.
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Introduction: The History of Law in Corrections (5 of 11)
The Hands-Off Period: 1866–1963
Hands-off doctrine: court-articulated belief that judiciary should not interfere prisons
Ruffin v. Commonwealth (1871)
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13.1: Discuss the evolution of law within the field of corrections.
The Hands-Off Period: 1866–1963
Hands-off doctrine: An early American court-articulated belief that the judiciary should not interfere with the management and administration of prisons.
Doctrine rested on status of prisoners who experienced a sort of legal and civil death upon conviction.
Civil death statutes: Statutes in former times mandating that convicted felons lose all citizenship rights.
Civil death statutes were ironically justified by the Thirteenth Amendment, which abolished slavery, as “punishment” was listed as an acceptable exception to the prohibition of slavery.
Ruffin v. Commonwealth (1871):
Slavelike status of convicted offender defined.
State case, not binding on federal government, but recalled an earlier SCOTUS case.
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Introduction: The History of Law in Corrections (6 of 11)
The Hands-Off Period: 1866–1963
Pervear v. Massachusetts (1866)
Doctrine prevailed because courts saw agencies as part of executive branch
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13.1: Discuss the evolution of law within the field of corrections.
The Hands-Off Period: 1866–1963
Pervear v. Massachusetts (1866):
Court made plain the slave-like status of prisoners, ruling that they did not even enjoy the protections of the Eighth Amendment.
Convicts thus found themselves at the mercy of prison officials and fellow prisoners without any constitutional protection provided by judicial oversight.
Doctrine also prevailed because courts saw agencies as part of executive branch.
Did not wish to violate separation of powers doctrine.
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Introduction: The History of Law in Corrections (7 of 11)
The Prisoners’ Rights Period: 1964–1978
Prisoners retained modicum of rights
Incorporation process: Bill of Rights to state actions
Ex Parte Hull (1941)
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13.1: Discuss the evolution of law within the field of corrections.
The Prisoners’ Rights Period: 1964–1978
Convict as slave approach slowly gave way to approach by courts that prisoners did retain modicum of constitutional rights.
It was the business of the executive and legislative branches of state government to honor them.
States’ rights and fear of an overbearing federal government were more deeply felt concerns in the past.
Incorporation process: Federal courts began to apply the rights in the Bill of Rights to state actions only in the 20th century, before which the Bill of Rights only governed federal actions.
Ex Parte Hull (1941):
Court ruled inmates had right to unrestricted access to federal courts to challenge legality of confinement.
The beginning of the end of hands-off doctrine.
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Introduction: The History of Law in Corrections (8 of 11)
The Prisoners’ Rights Period: 1964–1978
Habeas corpus: requiring arrested person be brought before court
Bill of Rights: first 10 amendments to the U.S. Constitution
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13.1: Discuss the evolution of law within the field of corrections.
The Prisoners’ Rights Period: 1964–1978
Habeas corpus: Latin term meaning “you have the body.” It is a court order requiring that an arrested person be brought before it to determine the legality of detention.
Major issue in prisoner litigation has been the conditions of confinement.
Important concept in common law which has been called the “great writ.”
Formally codified into English common law by Habeas Corpus Act of 1679.
One of only three individual rights mentioned in the U.S. Constitution.
Coffin v. Reichard (1944) widened habeas corpus hearings to include conditions of confinement, but this had little impact for 20 years.
Bill of Rights: The first 10 amendments to the U.S. Constitution.
Formalized the other individual rights enjoyed by citizens of the United States.
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Introduction: The History of Law in Corrections (9 of 11)
The Prisoners’ Rights Period: 1964–1978
End of the hands-off period heralded by two cases
42 USC § 1983 suits
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13.1: Discuss the evolution of law within the field of corrections.
The Prisoners’ Rights Period: 1964–1978
The end of the hands-off period was heralded by two cases:
Jones v. Cunningham (1963) decision ruled prisoners could use a writ of habeas corpus to challenge conditions of confinement as well as legality of confinement.
Cooper v. Pate (1964) decision ruled that state prison inmates could sue state officials in federal courts under Civil Rights Act of 1871. This was initially enacted to protect Southern Blacks from state officials and ultimately codified as 42 USC § 1983.
42 USC § 1983 suits are also known as:
Section 1983 suits: A mechanism for state prison inmates to sue state officials in federal court regarding their confinement and their conditions of confinement.
Civil rights claim: A “Section 1983” claim that a person has been deprived of some legally granted right.
Cooper brought a flood of Section 1983 suits that threatened to drown federal courts.
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Introduction: The History of Law in Corrections (10 of 11)
The Prisoners’ Rights Period: 1964–1978
Holt v. Sarver (1969)
Federal courts became heavily involved in monitoring state prison systems
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13.1: Discuss the evolution of law within the field of corrections.
The Prisoners’ Rights Period: 1964–1978
Holt v. Sarver (1969):
The most serious petition of Section 1983 violations.
Led to a federal appeals judge declaring the entire prison system of Arkansas unconstitutional.
He placed the entire system under federal supervision.
Case gave birth to “conditions of confinement lawsuits.”
From then on, the federal courts became heavily involved in the monitoring the operation of state prison systems.
Vast majority of habeas corpus grievances today are about conditions of confinement.
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Introduction: The History of Law in Corrections (11 of 11)
The Deference Period: 1997 to Present
Deference period: partial return to the hands-off approach
Bell v. Wolfish (1979) was instrumental in the onset of the deference period
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13.1: Discuss the evolution of law within the field of corrections.
The Deference Period: 1997 to Present
Deference period: The period of time when there was a partial return to the hands-off approach. It refers to the courts’ willingness to defer to the expertise and needs of the authorities.
Necessary to place restrictions on rights that do not apply to non-offenders.
Courts must balance rights of offenders and legitimate needs and concerns of correctional authorities.
Prisoners’ rights must be secondary to the maintenance of institutional order and security and safety of inmates and staff.
Bell v. Wolfish (1979) was instrumental in the onset of the deference period:
“Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.”
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Application of the Amendments to the Constitution to Convicted Felons (1 of 10)
First Amendment
First Amendment: Guarantees freedom of religion, speech, press, and assembly
Cooper v. Pate (1964)
Muslim inmates’ right to halal diet
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Application of the Amendments to the Constitution to Convicted Felons
First Amendment
First Amendment: Guarantees freedom of religion, speech, press, and assembly.
Does not always apply in a prison setting.
Cooper v Pate (1964) was actually a First Amendment issue:
Court acknowledged such literature (like the Black Muslim literature denied to Thomas Cooper) may have incendiary effect, but ruled that Cooper’s right to free exercise of religion trumps what might result in security problems.
Two federal circuit courts came to opposite conclusions in 2008 regarding Muslim inmates’ right to a halal diet:
The Eighth Circuit Court ruled that denial of a halal diet did not place an undue burden on the inmate.
Ninth Circuit Court ruled in a different case that the refusal to supply a Muslim inmate with a halal diet impinged on his free exercise of religion rights.
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Application of the Amendments to the Constitution to Convicted Felons (2 of 10)
First Amendment
Restrictions inmates’ right to free speech
Freedom of expression can be limited
Right of assembly allows for attendance at religious services and for visitation
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
First Amendment
Restrictions on inmates’ rights to free speech can exceed those necessary to ensure safety and security.
Smith v. Mosley (2008) decision ruled that while filing a grievance is considered protected speech, the statements made within are not, and therefore imposition of sanctions is constitutionally permissible.
Freedom of speech or expression can be limited on moral or ethical grounds.
Inmates can write and publish their thoughts or sell personal memorabilia, but “notoriety-for-profit” statutes enacted by the federal government and most states forbid inmates from profiting monetarily from those activities.
Right of assembly allows for attendance at religious services and for visitation from friends and family.
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Application of the Amendments to the Constitution to Convicted Felons (3 of 10)
Fourth Amendment
Fourth Amendment: guarantees right to be free from unreasonable searches and seizures
Hudson v. Palmer (1984)
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourth Amendment
Fourth Amendment: Guarantees the right to be free from unreasonable searches and seizures.
What is reasonable inside is quite different than on outside.
Hudson v. Palmer (1984):
Court ruled that inmates have no Fourth Amendment protections since their prison cells are not “homes” of personal sanctuary deserving of privacy.
For all practical purposes, inmates have no Fourth Amendment protections.
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Application of the Amendments to the Constitution to Convicted Felons (4 of 10)
Fourth Amendment
Opposite-sex body searches present holdout of prisoners’ Fourth Amendment rights
Majority of search complaints filed by men
Most prisoner petitions dismissed by courts or grants of states’ motions
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourth Amendment
Opposite-sex body searches present the last holdout of prisoners’ Fourth Amendment rights.
One conflict is the equal employment claim of female corrections officers who want to work in male institutions where, because of their size and scope, promotion prospects are greater than they are in female prisons.
A frequent inmate claim is that cross-gender searches are “unreasonable” within the meaning of the Fourth Amendment.
Bennett (1995) noted that the great majority of cross-gender search complaints are filed by men.
Despite this fact, there are frequent complaints from female officers that some male inmates take every opportunity to expose themselves in their presence.
Of course, this does not mean that many inmates are not genuinely embarrassed and offended.
However, ever since the doors were opened in Hull, the filing of all sorts of complaints has become a sort of inmate hobby for some that relieves boredom, “pulls one over” on prison authorities, and may result in a ride into town to attend court.
Most prisoner petitions are dismissed by courts’ own evaluations (75%) or dismissed in grants of states’ motions (20%). Just 2% go to trial and less than 1% of complaints are ruled in favor of the prisoners.
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Application of the Amendments to the Constitution to Convicted Felons (5 of 10)
Fourth Amendment
Turner v. Safley (1987)
Balancing test: viewing opposite-sex inmates in embarrassing situations constitutionally valid if reasonably related to legitimate penal interests
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourth Amendment
Turner v. Safley (1987):
Court enunciated balancing test: courts must balance the rights of inmates against penological concerns of security and order.
Cases require a lesser standard of scrutiny and involve the issue of whether a prison regulation that impinges on inmates’ constitutional rights is reasonably related to penological interests.
According to the balancing test, viewing of opposite-sex inmates in embarrassing situations is constitutionally valid if it is reasonably related to legitimate penal interests.
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Application of the Amendments to the Constitution to Convicted Felons (6 of 10)
Fourth Amendment
Justifications for double standard of searches
Fraudulent tax returns and inmate privacy
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourth Amendment
Lower courts concluded that although female officers conducting or observing strip searches of male inmates is tolerated in emergency situations, similar observation and searches by male officers of female inmates are considered unreasonable. This double standard is justified on the grounds that:
Men do not experience loss of job opportunities if they are forbidden to frisk female inmates.
Intimate touching of a female inmate by a male officer may cause psychological trauma because many female inmates have histories of sexual abuse.
Raises the question of the possible legal validity of complaints about same-sex body searches if the complainant can show prior sexual abuse by a same-sex person.
Fraudulent tax returns and inmate privacy:
In 2004, more than 18,000 false tax returns were filed claiming $68.1 million in refunds.
Rose to nearly 45,000 filed in 2009 claiming $295 million in refunds.
Most of these frauds are caught by the Internal Revenue Service, but more than $39 million was lost in 2009 alone.
Some prisoners (such as those working in prisoner industries) earn income and thus must file annual income tax returns to the Internal Revenue Service, but because this income information is considered private, it is not subject to inspection.
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Application of the Amendments to the Constitution to Convicted Felons (7 of 10)
Eighth Amendment
Eighth Amendment: forbids cruel and unusual punishment
Hudson v. McMillian (1992)
Two ways Eighth Amendment protections can be denied
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Eighth Amendment
Eighth Amendment: Constitutional amendment that forbids cruel and unusual punishment.
Hudson v. McMillian (1992):
Court defined cruel and unusual punishment as punishment applied “maliciously and sadistically for the very purpose of causing harm.”
Inmate is responsible for proving punishment was so applied.
Eighth Amendment protections are denied not only when prison officials do something they shouldn’t to inmates, but also when they fail to do something they are obligated to do.
Inmates must be provided basic amenities of life.
Liability attaches for inmate-inmate assaults if officials display deliberate indifference to an inmate’s needs.
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Application of the Amendments to the Constitution to Convicted Felons (8 of 10)
Eighth Amendment
Wilson v. Seiter (1991)
Inmate medical care covered by concept of deliberate indifference
Lower mortality rate due to incarceration lowers the probability many risks
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Eighth Amendment
Wilson v. Seiter (1991):
Court defined deliberate indifference as occurring when prison officials know of, but disregard, an obvious risk to an inmate’s health or safety.
Two criteria exist for inmates to prevail in deliberate indifference suits: they must suffer an objectively serious deprivation or harm and prison officials must be aware of the risk that caused the alleged harm and fail to take reasonable steps to prevent it.
Seen as key decision favoring correctional agencies because of stringent proof requirements.
Inmate medical care is also covered by the concept of deliberate indifference.
Inmates are the only group of people in the United States with a constitutional right to medical care.
Medical needs of inmates in today’s prisons are as well addressed as those of the average free person of similar class background presenting with similar health problems.
Not all of this difference is attributable to the medical care inmates receive.
No one claims that such care is better than, or even equal to, the average level of medical care available to most people on the outside.
Lower mortality rate is most likely due to the fact that incarceration lowers the probability of being murdered, being exposed to drugs, having access to alcohol and tobacco, and other such risks.
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Application of the Amendments to the Constitution to Convicted Felons (9 of 10)
Fourteenth Amendment
Fourteenth Amendment: contains due process clause
Wolff v. McDonnell (1974)
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourteenth Amendment
Fourteenth Amendment: Contains the due process clause, which declares that no state shall deprive any person of life, liberty, or property without due process of law.
Wolff v. McDonnell (1974):
Court ruled that while inmates are not entitled to same due process rights as an accused but unconvicted person on outside, they are entitled to some.
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Application of the Amendments to the Constitution to Convicted Felons (10 of 10)
Fourteenth Amendment
Rights of inmates
Sandin v. Connor (1995)
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13.2: Identify issues and cases involving the First, Fourth, Eighth, and Fourteenth Amendments.
Fourteenth Amendment
Rights of inmates:
To receive written notice of an alleged infraction.
To be given sufficient time (usually 24 hours) to prepare a defense.
To have time to produce evidence and witnesses on their behalf.
To have the assistance of nonlegal counsel.
To have a written statement outlining the disciplinary committee’s findings.
Sandin v. Connor (1995):
Court clarified and trimmed back inmate rights.
Above due process rights are triggered only by any disciplinary action that may result in the loss of “good time,” which amounts to an extension of an inmate’s sentence.
Court also concluded disciplinary segregation is not an atypical hardship relative to ordinary hardships on imprisonment.
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Curtailing Prisoner Petitions (1 of 4)
Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA)
Curtailed prisoner access to courts
Passed in part to reduce clogging in court system
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13.3: State how and why prisoners’ petitions have been curtailed.
Curtailing Prisoner Petitions
Two Congressional Acts signed into law in 1996: Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
Both have severely curtailed prisoner access to the courts.
Both passed in part to reduce clogging in court system.
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Curtailing Prisoner Petitions (2 of 4)
Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA)
Acts “silencing the cells”
Intention of PLRA: free prisons and jails from federal court supervision
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13.3: State how and why prisoners’ petitions have been curtailed.
Two Congressional Acts signed into law in 1996: Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
Some claim that these acts are “silencing the cells.”
However, the number of lawsuits filed is still more than 12 times what it was during the 1960s.
Intention of the PLRA: to free prisons and jails from federal court supervision and to limit prisoners’ access to the federal courts.
Both intentions have largely succeeded.
States inmates cannot bring a Section 1983 (civil rights) lawsuit in federal court unless they first exhaust all available administrative remedies, such as filing a written grievance with the warden.
States inmates claiming to be unable to afford the required filing fee for the lawsuit may still need to pay a partial fee, which will be collected whenever money appears in their inmate accounts.
Jones v. Brock (2007) ruled that the exhaustion of administrative remedies was not required by the PLRA and that prisoners could bring civil rights lawsuits without the need to demonstrate they have exhausted all administrative remedies.
The opinion did not ignore the flood of frivolous suits but intimated that this concern was secondary to the genuine complaints prisoners may have.
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Curtailing Prisoner Petitions (3 of 4)
Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA)
AEDPA: about antiterrorism and death penalty
Supreme Court decisions upheld reforms
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13.3: State how and why prisoners’ petitions have been curtailed.
Two Congressional Acts signed into law in 1996: Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
AEDPA is mostly about antiterrorism and the death penalty rather than an act specifically designed to limit habeas corpus proceedings.
Passed in response to the bombing of the Murrah Federal Building in Oklahoma City.
Does not eliminate inmates’ rights to habeas corpus, but it does restrict its availability.
Limits successive petitions and judicial review of evidence.
May now apply only to inmates who have sought, but have been denied, state court remedies available to them.
Return toward initial understanding of habeas corpus.
A review of Supreme Court decisions on habeas corpus since the AEDPA found that they have upheld the reforms largely as intended by Congress. Benefits of upholding these reforms:
Frees up the federal courts to deal with pressing inmate issues that are really repugnant to the Constitution.
“Crying wolf” too often leads to the dismissal of genuine claims, and if the situation continued as it was before the 1996 reforms, the solution may just have been the return to a complete hands-off policy.
Saves taxpayers many millions of dollars fighting frivolous lawsuits that simply relieve the boredom of mischievous inmates.
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Curtailing Prisoner Petitions (4 of 4)
Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA)
Many states established internal mechanisms to deal with inmate concerns
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13.3: State how and why prisoners’ petitions have been curtailed.
Two Congressional Acts signed into law in 1996: Prison Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
Many states, aware that the courts could swing back to more active involvement, and of the high cost of defending lawsuits, have established internal mechanisms to more effectively deal with inmate concerns:
Outside mediators.
Creation of ombudspersons.
In a roundabout way PLRA and AEDPA have given inmates more immediate and local ways to make their grievances known.
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The Death Penalty and Public Opinion (1 of 8)
The death penalty most controversial issue in corrections today
Throughout history death penalty been considered a legitimate
Majority of public in favor
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
The Death Penalty and Public Opinion
The death penalty is the most controversial issue in corrections today.
Throughout much of our history death penalty been considered a legitimate, appropriate, and necessary form of punishment.
Clear majority of the American public still favors its retention.
[Insert Figure 13.2]
Support for the death penalty was greatest during the 1980s and 1990s, peaking in 1994 at 80%.
Public opinion is heavily swayed by the crime rate, so in times of higher crime more individuals support the death penalty.
29 states, the federal government, and the U.S. military retain the death penalty.
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The Death Penalty and Public Opinion (2 of 8)
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
The death penalty is the most controversial issue in corrections today.
Clear majority of the American public still favors its retention.
[Insert Figure 13.2]
Support for the death penalty was greatest during the 1980s and 1990s, peaking in 1994 at 80%.
Public opinion is heavily swayed by the crime rate, so in times of higher crime more individuals support the death penalty.
29 states, the federal government, and the U.S. military retain the death penalty.
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The Death Penalty and Public Opinion (3 of 8)
The death penalty most controversial issue in corrections today
21 states have abolished or placed moratoria on the death penalty
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
The death penalty is the most controversial issue in corrections today.
21 states have abolished it or placed moratoria on the death penalty.
Executions are down 75% since 1996, and only 7 states executed anyone in 2022.
Penalty retained by the democracies of the United States, Japan, and South Korea.
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The Death Penalty and Public Opinion (4 of 8)
| Number, Type, and Description of Methods of Execution in the U.S. | |
| Method of Execution | Executions, 1976 to 2022 |
| Lethal injection | 1,332 |
| Electrocution | 162 |
| Gas chamber | 11 |
| Hanging | 3 |
| Firing squad | 3 |
| Source: Adapted from Death Penalty Information Center (2022b). |
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
Methods of Execution Used in the United States
[Insert Table 13.1]
[Insert Figure 13.4]
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The Death Penalty and Public Opinion (5 of 8)
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
Methods of Execution Used in the United States
[Insert Table 13.1]
[Insert Figure 13.4]
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The Death Penalty and Public Opinion (6 of 8)
Legal Challenges to the Death Penalty
Many challenges revolve around Eighth Amendment
Furman v. Georgia (1972)
Decision in Furman v. Georgia led many states to change sentencing procedures
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
Legal Challenges to the Death Penalty
Many challenges to the death penalty revolve around the Eighth Amendment’s prohibition of cruel and unusual punishment.
Furman v. Georgia (1972):
Court narrowly ruled that the death penalty per se was not unconstitutional, but rather the arbitrary and discriminatory way in which it was imposed was.
Court argued that because death penalty is so infrequently imposed, it serves no useful purpose. When it is imposed, judges and juries have unbridled discretion in making life versus death decisions.
The decision in Furman v. Georgia led many states to change sentencing procedures.
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The Death Penalty and Public Opinion (7 of 8)
Legal Challenges to the Death Penalty
Some states introduced bifurcated hearings
Other states made death penalty mandatory for some murders
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
Legal Challenges to the Death Penalty
Some states introduced bifurcated (two-step) hearings:
The first hearing served to determine guilt (the trial).
The second served to impose the sentence after hearing aggravating circumstances (circumstances that increase the heinousness of the offense) and mitigating circumstances (circumstances that decrease culpability) to determine whether death was warranted.
Other states removed discretion (the Supreme Court’s main problem with it) and made the death penalty mandatory for some murders.
In Woodson v. North Carolina (1976), the Court ruled against mandatory death sentences, finding them excessive and unduly rigid.
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The Death Penalty and Public Opinion (8 of 8)
Legal Challenges to the Death Penalty
Gregg v. Georgia (1976)
Coker v. Georgia (1977)
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13.4: Discuss the legal and ethical issues surrounding the death penalty.
Legal Challenges to the Death Penalty
Gregg v. Georgia (1976):
Court upheld the constitutionality of the bifurcated hearing.
Coker v. Georgia (1977):
Court ruled that the death penalty for rape was unconstitutional.
Georgia statute authorizing death for rape under certain circumstances was deemed “grossly disproportionate” and thus repugnant to the Eighth Amendment.
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Does the Death Penalty Deter? (1 of 2)
Death penalty is unique
Only punishment required to demonstrate its deterrent effect
Impossible to count the times threat may have succeeded
Will the death penalty deter some individuals?
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13.5: Explain the difficulty in determining whether the death penalty is a deterrent.
Does the Death Penalty Deter?
Death penalty is unique.
Only punishment required to demonstrate its deterrent effect to validate its constitutionality.
It is taken for granted that penalties applied to other crimes have a general deterrent effect.
It is impossible to count the times the death penalty threat may have succeeded as we simply have no way of knowing if it would have succeeded.
“Will the presence of the death penalty deter some unknown number of individuals from committing murder?”
Applies only to the heinous kinds of murder for which the death penalty is an option.
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Does the Death Penalty Deter? (2 of 2)
Conflict generally between those who state it deters and those who state it does not
Brutalizing effect: assumption executions increase homicides
Difficult to tease out any deterrent effect
Committee on Deterrence and the Death Penalty (CDDP)
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13.5: Explain the difficulty in determining whether the death penalty is a deterrent.
The core of conflict is generally between those who state “conclusively” that it deters (mostly economists) and those who state just as “conclusively” that it does not (mostly sociologists).
Brutalizing effect: The assumption that executions, rather than deterring homicides, actually increase homicides following the executions.
Executions are perceived by some as saying that it is acceptable to kill people who have offended us.
Some of those who perceive the situation that way will act on that perception, and thus executions increase the number of homicides.
A belief of some criminologists and many sociologists.
Nearly all economists and most criminologists (81.2%) disagree or strongly disagree that the death penalty has a brutalizing effect.
Difficult to tease any deterrent effect out of the death penalty for a number of reasons:
Extreme rarity (2% to 6% of murders are tried as capital cases).
Only 15% of people sentenced to death since the death penalty was reinstated in 1976 have actually been executed, and the time between conviction and execution has ballooned to an average of 14.5 years in 2010.
Critics may recognize that although the death penalty is certainly severe, it is far from being certain or swift as required for a significant deterrent effect.
National Academy of Sciences convened a subcommittee (the Committee on Deterrence and the Death Penalty [CDDP]) of criminologists, sociologists, economists, and statisticians to try to reach a conclusion.
Examined results of all credible death penalty studies up to 2011 and concluded evidence is ambiguous.
This means that studies claiming either a deterrent or nondeterrent effect of capital punishment should not be used to justify policy judgments.
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Financial Costs and the Death Penalty (1 of 3)
Costs of capital cases from arrest to execution far exceed cost of pursuing LWOP
Death Penalty Information Center: major (partisan) source of information on the death penalty
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13.6: Discuss the financial cost/benefit ratio of the death penalty.
Financial Costs and the Death Penalty
Costs of capital cases from arrest to execution far exceed cost of pursuing LWOP sentence in same case.
Death Penalty Information Center: Major (partisan) source of information on the death penalty in the United States.
Cite a study stating that if the sentences of all prisoners on California’s death rows were commuted to LWOP, the state would save $170 million per year.
Also cite a Nevada study showing that a capital murder case costs from $170,000 to $212,000 per case more than the cost of a murder case in which the death penalty is not pursued due to:
Extensive investigations.
Expert witnesses.
High jury costs.
Deputy costs.
Huge attorney fees.
Seemingly endless appeals.
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Financial Costs and the Death Penalty (2 of 3)
American Civil Liberties Union (2012) reported in California there was $1.1 million difference in cost
People v. Saurez
People v. Franklin
Death penalty for Charles Ng cost $10.9 million
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13.6: Discuss the financial cost/benefit ratio of the death penalty.
The American Civil Liberties Union (2012) also reported that in California there was a $1.1 million difference between the least expensive death penalty prosecution and trial and the most expensive non–death penalty murder prosecution and trial.
People v. Saurez, a death penalty eligible trial, cost $1.8 million.
People v. Franklin, ineligible for the death penalty, cost $661,000.
Also reported that seeking the death penalty for serial killer Charles Ng cost an astounding $10.9 million.
The huge cost is mostly because Ng was in custody in Canada and fighting extradition.
Ng is extremely unlikely to be executed if precedent is any indicator.
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Financial Costs and the Death Penalty (3 of 3)
Average time on death row about 15 years
Since 1978 in California, only 13 actually executed
Professor Frank Zimring findings
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13.6: Discuss the financial cost/benefit ratio of the death penalty.
When appeals are exhausted, average time on death row is already about 15 years, during which time many of the inmates will die of other causes.
Of the hundreds of people on death row since 1978 in California, the Department of Corrections reports only 13 (9 were multiple murderers) were actually executed.
Professor Frank Zimring, quoted in Tempest (2005), suggests that:
We are paying for our own ambivalence about capital punishment.
We try to maintain the apparatus of state killing and another apparatus that almost guarantees that it won’t happen.
Cost for both sides of this conflict is then passed to the public.
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Disparity in Death Sentences (1 of 14)
Major concern: whether death penalty applied in racially discriminatory fashion
McCleskey v. Kemp (1987)
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Disparity in Death Sentences
Major concern among criminologists is whether death penalty is applied in racially discriminatory fashion.
African Americans have historically been convicted of capital crimes and executed in greater numbers than Whites as shown in statistics gathered by Robert Bohm (2012).
McCleskey v. Kemp (1987):
Attorneys offered as evidence a statistical study purporting to show that racial bias existed in death penalty cases in Georgia.
Reportedly showed that defendants who killed White victims were more likely to be sentenced to death than defendants who murdered Black victims.
Court ruled that statistical risk represents averages and does not establish that a specific individual’s death sentence violates the Eighth Amendment.
A study of past cases indicating average outcomes does not constitute evidence that McCleskey himself was denied due process.
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Disparity in Death Sentences (2 of 14)
Black defendants executed disproportionately
Must compare proportion of murderers on death row
Cannot make direct Black/White comparisons
Black homicide rate 12.7x White rate
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Black defendants are found to be executed disproportionately to their percentage in population (DPIC, 2013).
Claims cannot be validly evaluated by comparing percentages of each race executed or on death row with their proportion of the general population.
Must compare each race’s proportion of murderers with the proportion executed or on death row.
We cannot make direct Black/White comparisons between Uniform Crime Reports and DPIC statistics.
Because the Federal Bureau of Investigation places Hispanics and non-Hispanic Whites into a single “White” category (93% of Hispanics/Latinos are defined as White).
Steffensmeier, Feldmeyer, Harris, and Ulmer (2011) tell us that the Black homicide rate is 12.7 times greater than the White rate when Hispanics/Latinos are taken out of the White category.
Data concluded that “although they are overrepresented among death row populations and executions relative to their share of the U.S. population, blacks are underrepresented based on their arrests and convictions for murder” (Robinson, 2008).
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Disparity in Death Sentences (3 of 14)
Emerging consensus whites disproportionately more likely to receive a death sentence and to be executed
Kleck (1981) findings
Greenfeld and Hinners (1985) findings
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Seems to be emerging consensus that whites are disproportionately more likely to both receive a death sentence and to be executed compared to number of death-eligible homicides they commit.
Kleck (1981) found soon after Furman that:
From 1930 onward in the northern states, Whites were more likely to receive the death penalty.
Discrimination evidenced against Blacks in death penalty cases during earlier years in the South disappeared during later years.
Greenfeld and Hinners (1985) examined 1,405 prisoners under sentences of death and found:
15.8 per 1,000 White murderers were sentenced to death versus 11.6 per 1,000 Black murderers.
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Disparity in Death Sentences (4 of 14)
Emerging consensus whites disproportionately more likely to receive a death sentence and to be executed
Gross and Mauro (1989) findings
U.S. Department of Justice (2001) study reached same conclusion
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Seems to be emerging consensus that whites are disproportionately more likely to both receive a death sentence and to be executed compared to number of death-eligible homicides they commit.
Gross and Mauro (1989) looked at death sentences in more than 14,000 cases and concluded:
Whites received death sentences in 26.5% of the cases involving felony circumstances and in 1.4% of the cases with nonfelony circumstances.
17.2% of Blacks convicted in felony circumstances and 0.4% convicted in nonfelony circumstances received death sentences.
U.S. Department of Justice (2001) study of federal death-eligible cases reached the same conclusion.
In cases considered by the Attorney General, the AG decided to seek the death penalty for 38% of White defendants, 25% of Black defendants, and 20% of Hispanic defendants.
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Disparity in Death Sentences (5 of 14)
Blume, Eisenberg, and Wells (2004) findings
California, Nevada, and Utah
Tennessee, Mississippi, and Missouri
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Blume, Eisenberg, and Wells (2004) looked at data from the 31 states that sentenced 10 or more individuals to death from 1977 through 1999 and found:
In California, Nevada, and Utah:
Percentages of murders committed by Blacks were 33.8%, 30.2%, and 8.6% respectively.
Percentages of Blacks on death row in these states were 35.3%, 33.1%, and 10.5% respectively.
African Americans were thus overrepresented by narrow margins.
In Tennessee, Mississippi, and Missouri:
The percentages of murders committed by Blacks in those states were 60.4%, 77.7%, and 62.6%, respectively.
Percentages of Blacks on death row in those states were 33.3%, 59.0%, and 44.1%, respectively.
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Disparity in Death Sentences (6 of 14)
The Issue of Victim’s Race
Race issue largely become “victim-centered”
Very small fraction of all murders eligible for death penalty
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Issue of Victim’s Race
Race issue has largely become “victim-centered,” with understandings of bias moved from black defendants to black victims.
A very small fraction of all murders committed in a fashion that makes perpetrators eligible for death penalty:
Must be premeditated.
Particularly brutal.
Involve multiple victims.
Are committed during the commission of some other felony such as robbery or rape.
Involve the killing of a law enforcement officer during the commission of his or her duties.
Prior homicides are also relevant.
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Disparity in Death Sentences (7 of 14)
The Issue of Victim’s Race
Death penalty more likely when victims are White
Joseph Katz (2005): McCleskey v. Kemp
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Issue of Victim’s Race
Almost all studies do show that before controlling for aggravating and mitigating factors, killers of Whites are more likely to receive death penalty than those who kill Black victims.
Klein, Berk, and Hickman (2006) showed that, without controlling for case characteristics, the death penalty is more likely when victims are White.
However, racial disparities disappeared in all three studies when adjustments were made for the heinousness of the crimes.
Suggests no evidence of a race effect when examining just the race of the victim, the race of the offender, or the interaction between victim’s and defendant’s race.
Joseph Katz (2005) used the Georgia data used in McCleskey v. Kemp:
Found 141 cases that involved White victims and Black perpetrators among the sample of 1,082 homicide defendants.
67.1% of White-victim cases: the victim was killed during the course of a robbery.
7.4% of Black-victim cases: victim killed during the course of a robbery.
White victim was a stranger 70.6% of the time.
Black victim a stranger just 9.6% of the time.
White victim homicides showed a greater percentage of mutilations, execution style murders, tortures, and beaten victims, all of which increase the likelihood of a death sentence.
Cases with Black defendants and white victims more often involve the murder of a law enforcement officer, kidnapping and rape, and the other factors described above.
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Disparity in Death Sentences (8 of 14)
The Issue of Victim’s Race
Sharma, Scheb, Houston, & Wagers (2013): first-degree murder convictions in Tennessee 1976–2007
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Issue of Victim’s Race
Sharma, Scheb, Houston, & Wagers (2013) looked at all first-degree murder convictions in Tennessee from 1976 to 2007.
Prosecutors sought the death penalty for 76% of White defendants and 62.6% of Black defendants.
37.3% of White defendants received it versus 23.6% of Black defendants.
Prosecutors sought the death penalty in 64% of the cases in which the victim was White and in 33% of the cases in which the victim was Black.
Controlling for a variety of aggravating and mitigating factors, as well as demographic and evidentiary variables suggests that case characteristics are drastically more significant than racial characteristics in death sentencing.
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Disparity in Death Sentences (9 of 14)
Women and the Death Penalty
About 2% of all persons executed in the United States have been women
Does this indicate pro-female bias?
Chivalry Hypothesis
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Women and the Death Penalty
Only about 2% of all persons executed in United States capital punishment history have been women.
Just over 2% of the total death row population are women as of 2022.
Only 16 women, 12 White and 4 Black, have been executed since 1976.
Massively underrepresented as persons executed or on death row.
Does this indicate pro-female bias?
Women consistently commit only about 10% of all homicides each year.
Many homicides are committed against spouses and lovers in self-defense.
Bohm (2003) nonetheless estimated 4% to 6% of female murderers would receive death sentences if sexes were treated with absolute equality.
The Chivalry Hypothesis
Most obvious extralegal factor that leads to reluctance to impose death penalty on women.
Juanita Spinelli, a career criminal, ex-wrestler, and knife thrower, who murdered a 19-year-old gang member she feared would inform on her, was subject of a 1941 petition by male inmates of San Quentin prison.
Male inmates suggested executing Spinelli would be repulsive because of her sex and her status as a mother.
Karla Faye Tucker was a rock groupie, prostitute, and drug abuser convicted in 1984 of the pickax murder of a man and a woman when she was 23.
Even pro–death penalty sources protested Tucker’s execution.
Susan Smith in 1994 strapped her two young sons (aged 3 years and 14 months) into their car seats and rolled the car into a lake to reunite with a lover who objected to her children.
Viewed by the jury as a jilted victim “and loving mother with severe emotional issues,” which led to a life sentence rather than the death penalty.
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Disparity in Death Sentences (10 of 14)
Women and the Death Penalty
Evil Woman Hypothesis
If female murderers treated more leniently due to their sex, then men being discriminated against
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
Women and the Death Penalty
The Evil Woman Hypothesis
Counterpart to the chivalry hypothesis.
Avers females who defy traditional gender roles, often by being unattractive and “unladylike.”
Wanda Jean Allen and Aileen Wuornos, two women executed for their crimes, were lesbians.
Juanita Spinelli also deviated from form as she was “cold,” “evil,” and unattractive, as described by her prison warden.
If female murderers are treated more leniently due to their sex, then men are being discriminated against.
True equality will result in greater use of the death penalty in women.
Otherwise, women are being lumped in with juveniles and individuals with intellectual/emotional disabilities in a class human beings who are not fully responsible for their actions.
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Disparity in Death Sentences (11 of 14)
The Death Penalty and Mental Disability
Lifelong condition of impaired or incomplete mental development
Does not mean mentally disabled cannot be held responsible
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Death Penalty and Mental Disability
A lifelong condition of impaired or incomplete mental development with three criteria:
Significantly subaverage intellectual functioning (IQ of 70 or below).
Concurrent and related limitations in two or more adaptive skill areas.
Manifestation before age 18.
Does not mean that the mentally disabled cannot be held responsible for their actions.
Held to a lower level of culpability than persons operating at higher intellectual levels.
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Disparity in Death Sentences (12 of 14)
The Death Penalty and Mental Disability
Penry v. Lynaugh (1989)
Atkins v. Virginia (2002)
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Death Penalty and Mental Disability
Penry v. Lynaugh (1989):
Court ruled that the Constitution does not prohibit the execution of a mentally disabled person.
However, the jury should have been instructed to factor in Penry’s low IQ when deciding Penry’s sentence.
Atkins v. Virginia (2002):
Court overruled previous cases in this regard.
Court concluded that there was national consensus against executing mentally disabled.
They are less capable of evaluating the consequences of their crimes and are less culpable than the average offender.
Mentally disabled individuals are more prone to confess to crimes they did not commit and therefore are more prone to wrongful execution.
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Disparity in Death Sentences (13 of 14)
The Death Penalty and Mental Illness
Impermissible to execute mentally disabled, but can execute mentally ill
Legal issues courts need to resolve
Mental disability permanent cannot be faked
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Death Penalty and Mental Illness
Constitutionally impermissible to execute mentally disabled, but can execute mentally ill if they are not “presently insane.”
The primary legal issues the courts need to resolve with both mental deficiency and mental illness are the following:
Is this person competent to stand trial?
Did this person at the time of the crime have the requisite ability to form mens rea (guilty mind)?
Does this person’s mental condition warrant a more lenient sentence than would normally attach to this crime?
Mental disability is permanent cannot be faked because there is a long history documenting each case from early childhood.
Treatment may restore sanity to the mentally ill.
Mental illness can be faked.
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Disparity in Death Sentences (14 of 14)
The Death Penalty and Mental Illness
Ford v. Wainwright (1986)
Panetti v. Quarterman (2007)
Can state forcibly administer antipsychotic drugs to insane inmates facing execution?
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13.7: Analyze the disparities related to race, gender, and disability with regard to the death penalty.
The Death Penalty and Mental Illness
Ford v. Wainwright (1986):
Supreme Court held that the Eighth Amendment prohibits execution of the insane.
Insanity is an affirmative defense claimed by the defendant, so the burden of proof lies with defendants to prove they are mentally ill.
Retributive goals are served only if persons are aware of the punishment they are about to suffer and why they will suffer it.
Panetti v. Quarterman (2007):
Court developed what is known as the “rational understanding” test for determining competence for understanding why one is being punished.
Goes beyond the “mere awareness” standard for sanity set in Ford.
Means the condemned must have a sane, logical, and coherent grasp of why he or she is being executed to be executed.
Can the state forcibly administer antipsychotic drugs to insane inmates facing execution in the interest of rendering them competent for execution?
Washington v. Harper (1990) 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.”
The insane on death row must then choose between madness and execution.
For involuntary administration of antipsychotics, prison physicians must weigh the ethics of rendering someone “sane enough” to be executed.
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The Innocence Revolution (1 of 2)
Advances made by genomic and brain sciences revolutionized death penalty discourse
Arguments penetrated and influenced public opinion
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13.8: Describe the innocence revolution.
The Innocence Revolution
Huge advances made by genomic and brain sciences over past three decades have revolutionized death penalty discourse in the United States.
Abolitionist arguments used to center on legalities, morality, fairness, financial costs, and deterrence issues.
While these arguments are still made, the new and more powerful issue that now dominates abolitionist arguments is innocence.
These arguments appear to have penetrated and influenced public opinion far more than other arguments because guilt and innocence have substance and are far more easily grasped than other types of arguments.
Evidence of possible actual innocence was central in decisions:
Not to reinstate the death penalty in New York (2004).
The repeal of the death penalty in New Mexico (2009).
By Governor George Ryan to clear of Illinois’ death row before he left office (2003).
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The Innocence Revolution (2 of 2)
The Innocence Project founded by Barry Scheck and Peter Neufeld in 1992
DNA can support arguments for death penalty by providing “certainty” of guilt
Stohr, Corrections: The Essentials 4e
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13.8: Describe the innocence revolution.
The Innocence Revolution
The Innocence Project was founded by lawyers Barry Scheck and Peter Neufeld in 1992.
Has taken advantage of modern science to provide scientific and legal expertise for cases.
Justice For All Act (2004) boosted the visibility of this movement when George W. Bush signed it into law.
Subsection called the Innocence Protection Act grants federal inmates the right to petition a federal court for DNA testing to support a claim of innocence.
Funding allocated to encourage states to take measures to preserve organic evidence and to make DNA testing available to convicts claiming innocence.
Innocence Project has documented 365 DNA exoneration cases in the United States, including 20 death penalty cases, as of September 2022.
Despite all celebrations surrounding DNA exonerations, it can support arguments for use of death penalty by providing “certainty” of guilt.
If DNA can be used to exonerate the innocent with apparent certainty, it can be used to condemn the guilty with the same apparent certainty.
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