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Capital Punishment

Abstract and Keywords

Capital punishment, the administration of death as a legal sanction, is a criminal-justice response to a restricted class of criminal activities that involve the killing of another human being. As a legal process, capital punishment has been modified by several landmark U.S. Supreme Court decisions. Yet, it remains a controversial penalty with factors of race, gender, socio-economic status, mental health status of the defendant, and other extra-legal factors often attributed to the sentencing decision. Social workers are increasingly used as mitigation experts or in similar types of roles for the defense team. As a profession, social work opposes the use of capital punishment. The purpose of this entry is to provide an overview of the death penalty as it is currently practiced in the United States and to review current issues and controversies surrounding its administration.

Keywords: capital punishment, death penalty, homicide, mitigation

Introduction

There is a tremendous amount of information on capital punishment, or the death penalty, in many professional and academic fields, such as law, criminology, criminal justice, sociology, psychology, and medicine, as well as social work. Many in these fields debate the existence, justification for, process, use, and implications of capital punishment. Examples of research topics on capital punishment include investigating the impact of offender and victim race in sentencing (Baldus & Woodworth, 2003; Baldus, Woodworth, & Pulaski, 1990; Paternoster & Brame, 2006; Paternoster, Brame, & Bacon, 2008; Pierce & Radelet, 2005; Radelet, 1981; Radelet & Pierce, 2011; U.S. General Accounting Office, 1990), gendered effects (Stauffer, Smith, Cochran, Fogel, & Bjerregaard, 2006; Williams & Holcombe, 2004); the influence of offender drug and alcohol use (Bjerregaard, Smith, & Fogel, 2005; Bjerregaard, Smith, Fogel, & Palacios, 2010; Garey, 1998; Kremling, Smith, Cochran, Bjerregaard, & Fogel, 2007), and juror bias (Butler, 2007; Kavanaugh-Earl, Cochran, Smith, Fogel, & Bjerregaard, 2008; Luginbuhl & Burkhead, 1994). Other issues debated in the literature include ethical participation and/or roles in the process by certain professions (Annas, 2002), execution procedures (Denno, 2003), and public opinion about or attitudes toward capital punishment (Maggard, Payne, & Chappell, 2012). In addition, numerous websites provide the latest statistics about people on death row, the number of executions, and state-specific information. Among these, the Death Penalty Information Center (http://www.deathpenaltyinfo.org) is particularly recommended for providing factual and timely information about capital punishment topics at the state, national, and international levels.

Despite all that is written, discussed, and legally argued, capital punishment remains an established structure in the U.S. justice system. As reported by the Death Penalty Information Center (2013), the current status of capital punishment is that 32 states, the U.S. government, and the U.S. military have death penalty statutes. States that allow the death penalty are Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. The remaining 18 states and the District of Columbia have abolished the use of this sentence. Michigan was the first state to do so, in 1846, followed by Wisconsin (1853), and Maine (1887). The most recent was Maryland, in 2013; as of this writing, Delaware appears poised to abolish capital punishment.

Overview

The use of a death penalty for crimes committed in violation of stated community and legal standards can be traced back to the 18th century BCE, when the Code of King Hammurabi of Babylon identified 25 crimes for which the death penalty could be imposed. Excluded from this list at this early time was the crime of murder (Melusky & Pesto, 2011). The penalty of death was eventually permitted for the killing of another human, and the manner in which it was carried out was in concert with the prevailing laws of the land and community expectations. As colonization of new lands and territories occurred, the practice of using the death penalty for select crimes was employed throughout the globe. Although 140 countries have, as of 2013, abolished the use of capital punishment, the majority of countries in the world have capital punishment as a legal sanction within their criminal statutes (Death Penalty Information Center, 2013).

From a global perspective, the United States is the only industrialized Western country to still use capital punishment. It is joined by the major industrial countries of China, India, Japan, and Russia. The practice is also common in countries from which the United States typically seeks to distance itself, including North Korea, Cuba, and many countries of the Middle East. It has been argued that the position of the United States among this group sends a confusing message to the global community regarding the U.S. position on human rights (Hood, 2001; Hood & Hoyle, 2009; Jiang, Lambert, Wang, Saito, & Pilot, 2010; Johnson, 2011).

The Contemporary Practice of Capital Punishment in the United States

The initiation of a criminal charge for a crime that will be a capital-punishment case represents a complex interaction of legal, scientific, social, and ethical issues, to name just a few. The discretion given to state prosecutors to determine if a defendant will be charged with a capital murder, the quality of representation of the accused, and how jurors think about issues of crime can all impact the fate of the defendant (Johnson & Johnson, 2001).

The Supreme Court has been hearing challenges to capital punishment since its use in the newly formed nation (Melusky & Pesto, 2011). The system of laws and rights afforded to Americans continues to be at the heart of the legal challenges and public debate for or against capital punishment. The following discussion considers some of the Court’s decisions over the past several decades that have shaped the contemporary practice of capital punishment in the Unites States.

In the late 1960s, there was growing concern over how the process of who was charged with a capital crime and how sentencing determinations were made in capital punishment trials (White, 1984). At the heart of the concerns was whether this ultimate sanction was being administered in a fair and just manner (Steiker & Steiker, 2003). The growing concern about the fairness of capital punishment led to a number of legal challenges and a decline in the public support of the death penalty. The impact of this shift became particularly evident in 1968, the first year in the history of the United States in which there were no state-sanctioned executions (Bedau, 1982).

Also in 1968, in its ruling in Witherspoon v. Illinois, the Court significantly changed how capital jurors were selected and seated. Jurors for capital punishment cases must be “death-qualified,” a legal term specifying that the seated juror is free from religious convictions, personal experiences, or views that would impede their ability to make an impartial decision regarding the punishment of life or death. This ruling had significant implications for states with statutes that gave prosecutors the ability to dismiss a potential juror who had reservations about, but not unequivocal opposition to, capital punishment, thereby permitting prosecutors to “stack” the jury with pro-death-penalty jurors. The Court held that this practice was in violation of the Sixth Amendment, which affirms that those who are accused have a right an “impartial jury.” The implications of this ruling would reverberate to other states and continue to bring legal challenges to the practice of capital punishment.

This trend culminated in a decision four years later, in 1972. In the case of Furman v. Georgia (1972), the Supreme Court ruled 5–4 that the death penalty, as then practiced, violated provisions of both the Eighth Amendment, which prohibits cruel and unusual punishment, and Fourteenth Amendment, which prohibits punishments than are arbitrary and capricious. The majority of the Court determined that the sentence of death was applied in a selective manner against those who were poor, shunned by the majority population (that is, were of minority status), and represented by inadequate legal counsel (Lanier & Acker, 2004).

Beginning on June 29, 1972, all executions were stopped, and states had to suspend the use of capital punishment. This historical decision did not mean that capital punishment was forever banned, however. The essence of the Furman ruling was that states had to have objective criteria to guide the decision for a capital-murder case, and juries (or those who impose the sentence) must take in account the whole life and experience of the accused.

After the Furman ruling, a majority of states immediately began to revise their procedures for instituting capital punishment. In 1976, four years after the moratorium on executions, the Supreme Court approved capital punishment guidelines based on the cases of Gregg v. Georgia (1976), Jurek v. Texas (1976), and Proffitt v. Florida (1976; White, 1984). Collectively, these cases provided guidelines for the current, as of 2013, procedural processes for a capital-punishment case.

In this new procedural process, often called “post-Gregg,” the number of “death-eligible” offenses was narrowed to murder under specified conditions, now commonly referred to as capital murders. [NOTE: With passage of the Antiterrorism and Effective Death Penalty Act (1996), the U.S. federal government expanded death-eligible offenses beyond those of capital murder; see Steiker & Steiker (2003) for a discussion of this act and its implications.] This punishment was now designed to focus on the “worst of the worst.” The second result of the Court’s decision was that trials became bifurcated, that is, split into two distinct phases. In addition, the Court approved the process by which all cases with death-penalty sentences have an automatic appellate review to address concerns about procedural or other types of errors that could have influenced the final decision. Finally, the Court instructed states to conduct proportionality reviews of the charges for which death could be given to ensure sentencing fairness (also, see Coker v. Georgia). Cunningham (2006) suggests that these changes, taken together, reflected “themes of a restricted class of death-eligible offenses, an individualized determination of death-worthiness, and heightened standards of reliability” in the sentencing decision (p. 205).

The bifurcated-trial process is an important feature of the post-Gregg era, and it warrants further discussion. The first segment of the trial is the guilt or innocence phase, in which there is a determination of guilt or innocence of the defendant. If the defendant is found guilty, a penalty phase is conducted. At this point, the jury (usually the same one that determined guilt) considers the sentence of life in prison or death for the convicted. In a majority of states, the recommendation of the jury is final. There are, however, still a few states, most notably Alabama and Florida, that allow judges to make the final sentencing determination, although they are required to give weight to a recommendation from the jury. Alabama judges’ unique practice of frequently overriding jury decisions for life sentences in order to impose a death sentence has been the subject of legal critique (Equal Justice Initiative, 2011; George & Rabinowitz, 2013).

In the sentencing phase, the state must convince the jury that one or more statutorily designated “aggravating circumstances” was a feature of the crime. States vary considerably in the number and type of aggravating circumstances that make a murder case eligible for a death sentence. The burden is on the prosecution to establish that the case before the jury met those criteria and therefore justifies the imposition of a death sentence. According to Brody, Acker, and Logan (2001), aggravating factors typically focus on three sets of circumstances: victim characteristics (for example, the murder of a government employee, including peace officers, policy officers, federal agents, firefighters, judges, jurors, prosecutors, and defense attorneys), offender characteristics (for example, a homicide committed by an individual who has a prior capital conviction), or offense characteristics (for example, the murder was especially heinous, atrocious or cruel, or the offense was committed during the course of another felony).

Following the prosecution’s arguments advocating for the existence of aggravating circumstances, the defense is allowed to present mitigating circumstances—that is, factors or evidence regarding the character of the defendant—to be considered by the jury prior to a final sentence determination. Examples of common mitigating factors presented to jurors include that the crime was committed while the defendant was under the influence of a mental or emotional disorder, the age of the defendant at the time of the crime, that the defendant had no significant history of prior criminal activity, and other characteristics that can humanize the defendant. Unlike aggregating circumstances, which are specified and finite by state law, there is no limit to the number of mitigating statements that can be presented for jurors’ consideration during the sentencing phase (Garvey, 1998). While most states have statutes that specify that certain mitigating circumstances must be presented if there is evidence to support them, these factors tend to be rather limited in number. As a result of the 1978 Supreme Court decision in Lockett v. Ohio (1978), however, the defense may introduce any factors that it deems pertinent to the case. In Lockett, the Supreme Court concluded that in order to ensure individualized sentencing, defendants must have the ability to present any mitigating evidence relevant to their character, record, or the circumstances of the offense. Therefore, it is not uncommon for a defendant’s full life history, such as key life events, influences, and socio-environmental conditions that possibly contributed to the defendant’s criminal behavior, to be developed, explored, and presented to the jury (Haney, 2003).

A later clarification of how mitigating evidence was to be considered by the jury was decided by the Supreme Court in McCoy v. North Carolina (1990). In early statutes, some states required that the jury must agree unanimously for a mitigating factor to be considered in its sentencing decision. Ostensibly, even if only one juror failed to accept a mitigator as worthy of consideration, that factor was to be discarded as a consideration in the jury’s recommendation. The Supreme Court ruled against this requirement, reasoning that each juror should be allowed to consider all mitigating evidence that might affect his or her decision, and that hindering this process violated the spirit of Lockett. The impact of McKoy was to prohibit states from requiring jurors to unanimously agree on the existence of a mitigating factor, though it did not alter the requirement that juries’ acceptance of aggravating circumstances must be unanimous. The effect of the ruling was to increase even further the types of mitigating factors that the defense might wish to present to the jury, and some research indicates that the numbers of mitigating factors did increase after the McKoy decision (Kremling et al., 2007).

On the same day that the Supreme Court approved the new statutes of the three states mentioned, they also rejected capital-punishment systems in Louisiana (Roberts v. Louisiana, 1976) and North Carolina (Woodson v. North Carolina, 1976), because both states had created statutes that specified a mandatory death sentence upon a guilty verdict for certain types of murders. In these rulings, the justices dictated that an effective system of capital punishment should allow each case to be considered individually in light of the circumstances of the offense and the offender. The combined effect of these decisions seemed to signal the Court’s desire for a criminal-justice process of capital punishment that was at once more standardized and more individualized than previous systems, creating a format that was, by U.S. judicial standards, a unique one in which trial courts were to conduct death-penalty cases.

The first execution in the post-Gregg era occurred in January 1977, but the next one was not carried out until May 1979. A total of 1,325 executions were carried out post-Gregg as of mid-2013. As of October 2012, there were 3,146 individuals on death rows across the United States awaiting execution. Nearly half are concentrated in five states: California, Florida, Texas, Pennsylvania, and Alabama (Death Penalty Information Center, 2013).

Continuing Challenges

Although the Supreme Court upheld the constitutionality of the death penalty in the Gregg case, it continued to hear cases that challenged elements of these statutes as violating the Eighth and Fourteenth Amendments. In 1986, in Ford v. Wainwright, the Court determined that the Eighth Amendment protects the “insane” from being executed. In other words, the death penalty cannot be imposed upon those who are found to not be competent to understand what they are being executed for and when. The legal system, however, provides a more narrow definition of what constitutes “mental illness” than the psychiatric community does. Therefore, a defendant can suffer from a mental illness but still be eligible for the death penalty.

In 1987, the Supreme Court heard the case of McCleskey v. Kemp, in which the death-row defendant, Warren McClesky, used evidence from the research team of David Baldus that found a pattern of racial disparities in death sentencing in Georgia based upon the race of the victim (Baldus et al., 1990). The results indicated that defendants charged with killing white victims were significantly more likely to receive the death penalty than those charged with killing African Americans, holding constant a large variety of case factors. McClesky, an African American, contended that his sentence violated the Fourteenth (“equal protection clause”) and the Eighth (“arbitrary punishment”) Amendments, violations that had not been cured by Georgia’s post-Furman refinements. Although the Supreme Court conceded that the statistics presented on his behalf demonstrated sentencing disparities, they denied his claim, stating that he had not demonstrated that discrimination existed in his particular case. The race-of-victim effect, however, became a topic of scholarly attention, as did other proxy variables for understanding how the death penalty is applied. These include, but are not limited to, the race of the defendant, geography, legal representation, juror selection and bias, gender, and socio-economic status (Johnson & Johnson, 2001; Kavanaugh-Earl et al., 2008; Unnever, & Cullen, 2010).

Three years later, in 1989, in Penry v. Lynaugh, the Supreme Court ruled that the mentally retarded can be executed. The majority opinion offered as one of the reasons for affirming the decision was that the there was no national consensus on this issue. It was not until 2002, in Atkins v. Virginia, that the Supreme Court decided that executing those who are mentally retarded violated the Eighth Amendment (Duvall & Morris, 2006). An issue not addressed by the Supreme Court in that case is the definition of the terms mentally retarded or intellectual disability. This means that each jurisdiction can create its own definition of the term, which in turn means that, theoretically, the definition of mental retardation can vary from state to state. Most states adapt some version of that of the American Association on Intellectual and Developmental Disabilities, which defines mental retardation as “a disability characterized by significant limitations both in intellectual functioning and adaptive behavior as expressed in conceptual (e.g., language, money, time, self-direction), social (e.g., interpersonal skills, gullibility, social responsibility), and practical adaptive skills (e.g., activities of daily living and personal care, occupational skills). This disability originates before the age of eighteen” (American Association on Intellectual and Developmental Disabilities, 2013). In terms of intellectual functioning, most states set the required minimum IQ score around 70, although there is variation in this across states.

In 2005, in another challenge to the use of capital punishment, the Supreme Court declared that defendants under the age of 18 could not receive the death penalty, holding again that this practice violated the Eighth and Fourteenth Amendments (Fagan & West, 2005). In Roper v. Simons (2005), the majority opinion noted that the bulk of states do not allow the execution of a juvenile, the death penalty is seldom given to youths, and there was a national consensus against its use for youths. As with the Penry v. Lynaugh (1989) case, the Supreme Court reasoned the decision from a principle of using “evolving standards of decency that mark the progress of a maturing society.” Between 1976 and 2005, only 22 youths under the age of 18 were executed—in seven states; 13 were in Texas. In addition to examining the evolving standards of decency, the Roper v. Simons decision also recognized that juveniles’ immaturity influenced their ability to be classified as the “worst of the worst.” It was also asserted that juveniles were less able to escape the negative influences in their lives and that they were more susceptible to influences such as those asserted by peers, thus making them less culpable in the commission of their crimes.

To date, there has not been a challenge to the death penalty based on gender. Women are rarely sentenced to death, however. Since 1976, only 12 women have been executed by the state, while as of 2013, 61 women were on death row (Death Penalty Information Center, 2013). The executed women typically killed a significant other or a child. Only three women were charged with killing a stranger, but some of these women killed more than one person (Streib, 2003).

Method of Execution

As with challenges to the Supreme Court over who can be executed, so have challenges been made regarding the procedures for executing the condemned (Annas, 2002). Although some states allow a death-row inmate to choose his or her method of execution, all states currently utilize lethal injection. In the early 2010s, a number of different challenges were levied against this form of execution. These have revolved around the three-drug cocktail typically used in executions and the participation of physicians in the execution, which typically takes the form of administering drugs, monitoring vital signs, and giving advice. The main objection surrounds the use of drugs that paralyze inmates prior to their deaths. The claim is that the drug that stops the inmate’s heart causes extreme pain, and that because of the paralytic agent used in the procedure, the inmate is unable to communicate his or her pain. The legal assertion is that this unnecessary pain and suffering violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Supreme Court, however, has upheld this method of execution, stating that the drug protocol does not pose an unconstitutional risk of unnecessary and severe pain and suffering (Baze v. Rees, 2008). The Court did, however, leave open the door to future challenges by stating that it would address situations in which the lethal-injection protocol created a “substantial risk of serious harm” (Baze v. Rees, 2008).

The participation of physicians in executions places them in a situation in which their medical ethics collide with state law. The American Medical Association’s and the American Nurses Association’s codes of ethics prohibit doctors and nurses from participating in executions, allowing them only to pronounce the death, citing their oath to do no harm (Annas, 2002). Several states, however, require physicians to participate in executions. In some instances, for example in North Carolina, the state Medical Board adopted a policy that said doctors participating in executions could be sanctioned and that they could potentially have their medical licenses revoked. The North Carolina Supreme Court, by a narrow margin, overruled this policy (North Carolina Department of Corrections v. North Carolina Medical Board, 2009). The controversy has not subsided, as many doctors and the medical board still believe that such actions violate their ethical standards. Nevertheless, a physician can be available to provide a sedative to the condemned at his or her request and to certify the death. Only the American Pharmaceutical Association allows its members to voluntarily provide the drug(s) for the execution.

Public Support

Public opinion on the use of the death penalty has been collected by the Gallup Poll since the 1930s (Maggard et al., 2012). Researchers have consistently tried to examine attitudes toward capital punishment by looking at factors as such as demographic characteristics, regional patterns, neighborhood attributes, and the prevalence of crime in terms of proximal and distal experiences (Barkan & Cohn, 2010; Jacobs & Carmichael, 2004; Maggard et al., 2012). A profile of those who are more likely to support capital punishment has been described as:

Whites, males, the wealthy, Republicans, crime victims, persons fearful of crime, and those living in the western region of the United States [tend] to support capital punishment more so than Blacks, females, poor people, Democrats, persons who had not been a victim of crime, persons who were less fearful of crime and Southerners. (Boots, Cochran, & Heide, 2003, p. 553)

Among these variables, race has been found to be the most significant variable of influence regarding support for capital punishment, with whites being more supportive than other racial or ethnic groups (Cochran & Chamlin, 2006).

Supporters of capital punishment defend its use with suggestions of its “deterrence” impact, although there is no conclusive evidence of this effect (Durlauf, Fu, & Navarro, 2013; Kovandzic, Vieraitis, & Boots, 2009; Peterson & Bailey, 2003; Smith, 2000). In addition, support is often based on the belief of providing “retribution” for the crime (Jiang et al., 2010).

Finally, another stated reason for support of capital punishment is related to the cost of imprisonment for the defendant. Recent state reviews of the cost of capital trials compared to noncapital trials suggest that the cost to the taxpayer is substantially higher for capital trials [see Death Penalty Information Center (2013) for studies from a number of states]. The complexity of these cases, the cost of the required two lawyers for the defendant, the various motions and files of appeals in the case, the penalty phase, and the subsequent appeals motions, make a capital-punishment case significantly more expensive than a life-imprisonment judgment (Johnson, 2011).

Those who oppose capital punishment state that it is cruel and unusual punishment and suggest that it does indeed violate the Eighth and the Fourteenth Amendments (Johnson & Johnson, 2001). Furthermore, there is a risk of executing an innocent person. Not ensuring that the defendant has a fair and exhausted exploration of all facets of the case can lead to the ultimate injustice—the execution of the innocent. There is continued concern regarding extra-legal factors, which may influence who gets charged with a capital murder and ultimately assessed the death penalty (Unnever, & Cullen, 2010). In fact, there is much evidence that the administration and use of capital punishment is filled with discriminatory and other extra-legal factors contributing to the sentence determination (Acker & Bellandi, 2012; Johnson, 2011).

These arguments reflect a diminishing support for the use of capital punishment in public-opinion polls. While a majority of people still support the use of the death penalty, there has been a steady decline since the 1990s, when support peaked at 80 percent (in 1994). In late 2012, support for the use of the death penalty registered at 63 percent (Saad, 2013). Some researchers attribute this diminishing support to the advancement of forensic science and the use of DNA to re-evaluate the guilt or innocence of convicted death-row inmates (Acker & Bellandi, 2012). The Innocence Project, created by two prominent lawyers in 1992, began working on a variety of cases in which convicted individuals claimed their innocence, including cases of individuals on death row. By using the developing science of DNA analysis to re-examine evidence found in cases, a number of convictions were overturned, including those of some individuals on death row (Innocence Project, 2013). This has led many states to institute moratoriums on the use of the death penalty. Increasingly, there is less assurance that those who are condemned to die by the law of the state are guilty of the crime, but rather are participants in a process that includes judicial misconduct, false eyewitness statements, improper forensic science, and poor legal representation of those convicted (Fagan & West, 2005). Hence, the ability for renewed political action to address the concerns that the death penalty is applied in an “arbitrary and capricious” manner has been given support through these exonerations.

Mitigation and Jurors

The penalty phase of a capital-murder trial is a judicial procedure that can draw on the expertise of social workers, particularly in the role of mitigations expert. Mitigation experts are hired by the defense counsel to compile, interview, and investigate the scope and breadth of the social-biological-emotional life of the convicted defendant in order to present to the jury “mitigating” evidence for the continuation of the defendant’s life. Social workers are most often used as mitigation specialists assisting the defense counsel in the penalty phase of a capital-murder trial (Andrews, 1991; Hudson, Core, & Schorr, 1987; Reed & Rohrer, 2000; Schroeder, Guin, Pogue, & Bordelon, 2006). The foundation of the social work perspective—the person in the environment, and the familiarity with the macro and mezzo factors that influence human behavior—give social workers a unique edge in the preparation of this type of evidence. As noted by Haney (2003):

The presentation of mitigation requires the construction of an empathetic narrative, one that may include the broad sociological forces that constitute the larger context of the crime, the background and developmental history of the defendant and, in some cases, the deeper psychological issues that help to account for why a crime was committed by a specific defendant. (p. 471)

Other roles for social workers in capital-punishment trials include those of criminal-defense investigator, expert witness on specific topics, consulting specialist, advocate for the interests of the victims or survivors, or direct witness for the defendant. In all these roles, social workers must be familiar with the legal limits of their confidentiality rights and other Code of Ethics standards (Andrews, 2012).

Mitigation evidence typically can be categorized into the areas of “reduced culpability, general good character, and lack of future dangerousness” (Garey, 1998). What is presented as mitigation must carefully take into consideration how the jury will interpret the evidence, however. As some research has shown, some factors introduced in an attempt to gain jury sympathy may actually work against the defendant’s interests (Bjerregaard et al., 2010; Sacco, 1994).

Because jurors must make a decision regarding the life or death of another, the verbal instructions to them by the judge are another important element in the decision process. It has been documented that capital jurors often interpret the instructions that they hear from the judge regarding how to consider mitigating evidence and its influence in the penalty phase incorrectly (Bowers, 1995). This can be verified at the mandatory judicial-appeal process, and if judged to be a substantial influence to the decision, a change to the decision may be ordered or the case remanded for a retrial of the sentencing phase.

A few studies have sought to understand how jurors in capital cases “think” during this process and the influence this has on the sentencing decision. In the Capital Juror Project (Bowers, 1995), a random sample of 41 capital trials held in South Carolina up until 1993 were studied. Jurors from these trials (N = 153) filled out a 51-page instrument that asked about issues in both phases of the trial, including questions about experiences with the criminal-justice system, the defendant, the crime, counsel performance, juror background, and other factors regarding thoughts about capital punishment. The survey asked jurors to report on how they responded to a presented list of aggravation and mitigating circumstances. The results from this survey suggest that certain elements of the crime do act as more aggravating factors, leading jurors to be more likely to recommend a death sentence. Such factors include brutal murders, child victims, the perception that the defendant will continue to be dangerous in the future, and lack of remorse. Other factors have more effect for “mitigating” a life sentence. Some of these are those that speak to continued doubt that the defendant is guilty, mental capacity, age of the defendant, and life circumstances and experiences that were beyond the control of the defendant (Garey, 1998).

A major finding to emerge from the Capital Jury Project (CJP) was the discovery that jurors were confused by and often misinterpreted what they were required to do by the sentencing guidelines provided them. As some research indicates, these misunderstandings often led to errors that resulted in a death sentence being recommended (Blakenship, Luginbuhl, Cullen, & Redick, 1997; Bowers, 1996; Eisenberg & Wells, 1993; Luginbuhl & Howe, 1995). For instance, Bowers, Fluery-Steiner, and Antonio (2003) report that 44 percent of the jurors in the CJP believed they were required to impose a death sentence if they agreed that the crime had the aggravating factor of “heinous, vile, or depraved” (a version of the “cruel and heinous” circumstance), while 35 percent believed that a death sentence was required if the jury felt the defendant would present a future danger to society. Overall, 49 percent of jurors interviewed believed that if they found one or both of these aggravating circumstances to exist, they had no choice but to impose a death sentence. In fact, there is no circumstance in capital-murder trials in which a death sentence is mandatory, regardless of the aggravating circumstances present in the crime. An implication of this fundamental misunderstanding is that any evidence presented as mitigation was viewed as irrelevant, no matter how well it explained the defendant’s behavior. To reiterate, the CJP participants were incorrect in their beliefs—the presence of aggravating factors qualifies a defendant for a death sentence, but does not mandate that it be assessed. Nevertheless, the CJP research suggests that misunderstandings of this nature probably contributed heavily to the decisions reached by some juries.

Several studies have found that jurors’ misunderstandings are often linked to their frustration with the sheer complexity of the instructions accompanying sentencing guidelines (Haney, Sontag, & Costanzo, 1994). Courts often assume that legal terms, including aggravation and mitigation, are common sense and should be easily understood (Tiersma, 1995). Further, sentencing guidelines are available to jurors in printed form and are often read to jurors by the trial judge before they leave the courtroom to begin their sentencing deliberations. Once in deliberation, however, there are severe restrictions on the information and/or clarifications that can be provided, often leaving jurors in a state of confusion (Tiersma, 1995). The Capital Jury Project provides several other findings regarding the complexity of issues for and instructions to jurors in a capital murder case and the challenges that it presents to them.

Emerging Issues

One of the most influential issues to emerge in the first part of the twenty-first century is the realization that despite the “super due process” associated with capital trials, innocent persons have been convicted and sentenced to death. As of 2013, 142 persons were exonerated and released from death row (Death Penalty Information Center, 2013). For the time period 2000–2011, this averages to five exonerations per year. Florida, Illinois, Texas, and Oklahoma have all had 10 or more persons exonerated. The most common sources of these errors include eyewitness error, government misconduct, testimony by jailhouse snitches, and “junk science” (Death Penalty Information Center, 2013).

Another related issue facing the administration of the death penalty is that of the right to effective assistance of counsel. A growing amount of evidence suggests that capital defendants are often represented by attorneys who do not provide the constitutionally required level of competency. This is particularly relevant in capital cases, in which attorneys face many more procedural responsibilities. The Supreme Court has defined ineffective assistance of counsel as situations in which (a) the counsel’s performance fell below an objective standard of reasonableness and (b) the counsel’s deficient performance prejudiced the results of the trial (Strickland v. Washington, 1984). In the context of capital cases, issues frequently arise in the sentencing or penalty phase of the bifurcated-trial, and they often involve the presentation of mitigating evidence. The Supreme Court has held that failing to adequately investigate and/or present mitigating evidence can be deemed ineffective assistance of counsel (Wiggins v. Smith, 2003). Similarly, the Supreme has also held that an attorney’s failure to investigate a defendant’s dysfunctional childhood can constitute ineffective assistance of counsel (Florida v. Nixon, 2004; Wiggins v. Smith, 2003; Williams v. Taylor, 2000).

These cases highlight the importance of the role of a mitigation specialist in helping attorneys to reasonably investigate potential mitigation evidence in order to present an effective defense for their clients. Social workers are often seen as the best individuals to engage in this endeavor. As discussed earlier, mitigation specialists assist defense counsel in their investigations of their clients’ background. They gather information about the client’s life history, education, family background, mental health background, potential substance use or abuse, etc. Many times, defendants and/or their families are reluctant to talk about the issues that must be tackled (Cothern, 2000). Attorneys need individuals who are capable of not only coordinating an investigation that will involve multiple sources (for example, school, psychiatric, and agency records) and interviewing the appropriate individuals (for example, family, friends, co-workers, social service personnel, etc.), but also interpreting this information and helping to present it in a way that helps explain the defendant’s actions to the jury. As Lenamon (2010) states, a mitigation specialist should possess:

clinical and information-gathering skills … They have the time and ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital mental, or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case. (p. 2)

In response to many of the issues raised above, and to address the issue of racially biased death sentencing, some states have passed what are termed racial justice acts. Kentucky was the first state to pass a racial justice act, largely in an attempt address the concerns of racial bias raised in the McCleskey v. Kemp (1987) decision. The Kentucky Racial Justice Act, passed in 1998, states that no “person shall be subject to or given a sentence of death that was sought on the basis of race” (Ky.Rev.Stat.Ann. § 532.300). This legislation allowed for the introduction of statistical evidence to show racial bias, but the claim had to be made at the pre-trial stage (Vito, 2010). In 2009, North Carolina passed a Racial Justice Act (North Carolina Racial Justice Act § 15A-2010) that prohibited a sentence of death that was “sought or obtained on the basis of race” (Article 101; 2009–464, s. 1.). Under the auspices of this act, defendants were allowed to have their sentences reduced to life without the possibility of parole if they could demonstrate that “race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed” (N.C. Gen Stat. §15A-2010). Like the Kentucky statute, the North Carolina statute allowed for the introduction of statistical evidence to support claims of discrimination. But, it differed in that it allowed for post-conviction challenges—that is, a defendant could appeal his or her death sentence on the basis that it violated the Racial Justice Act.

The state also commissioned empirical studies of capital punishment in North Carolina. The results were interpreted to show that race played a role in the use of peremptory challenges in selecting a capital jury, in prosecutorial discretion to seek the death penalty, and in the sentencing phase, leading to killers of white victims being most likely to receive death sentences (Grosso & O’Brien, 2012). Almost all death-row inmates in North Carolina filed appeals based on the Racial Justice Act, and the Act was utilized to remove several inmates from death row, although not without controversy. In 2012 the Act was revised to restrict the use of statistics to only “the county or judicial district where the crime occurred, instead of the entire state or region” and that “statistics alone are insufficient to prove bias, and that the race of the victim cannot be taken into account” (NC Senate Bill 416/S.L. 2012–136). Although the governor vetoed the changes, the legislature overrode the veto. However, the Racial Justice Act was again repealed by the North Carolina legislature in 2013, and with a change of governor in the 2012 elections, the repeal was signed, thus removing it as a statutorily mandated option available to those receiving death sentences.

Combined, these emerging issues have contributed to declining support among the public for capital punishment. While the Supreme Court does not rely on public-opinion polls, the increased sophistication of measuring the attitudes of those in this country on this topic, and the ability to disseminate these findings quickly and widely, can influence states’ actions regarding halting pending executions and, in rare cases, having a defendant’s death sentence nullified. This has potentially significant relevance to the Supreme Court’s interpretation of the Eighth Amendment because it relies on statutory language from the states regarding what are considered to be “evolving standards of decency” (Boots et al., 2003). The possibility of halting the use of the death penalty, once seen as very unlikely, has growing support from many diverse constituents.

Other emerging issues regarding capital punishment will further add to the complexity of the debate regarding its future use in the United States. For instance, Giardino (2009) raised concerns about capital punishment being used a sentencing option for combat veterans who have returned from recent deployments. He argues that given the high number of returning soldiers with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) conditions (not all with confirmed diagnoses) and their prior military conditioning, combat-veteran defendants may have a diminished capacity that calls into question the appropriateness of this sentencing option. While Giardino notes that that the Supreme Court does not like “categorical” exclusions from capital punishment, such exclusions have been applied to juveniles and those with mental illness. Therefore, he argues that with appropriate legal guidance, the Supreme Court may hear arguments to remove a death-sentence option for those combat veterans who are charged with a capital crime who are suffering from PTSD or TBI. Certainly, this is an area for which social workers as mitigation experts may find increased neuropsychiatric evidence to use (Wortzel & Arciniegas, 2010).

Conclusion

It can be argued that capital punishment poses ethical challenges for social workers as members of a profession that values human rights, social justice, and the human condition (Morley, 2012). While the National Association of Social Workers has filed amicus briefs on behalf of capital defendants, the profession as a whole has not actively sought to end capital punishment. Yet, there is ample empirical evidence that the decision to charge a defendant with capital murder, the trial process of a capital case, and the processes by which the sentencing decision is made are all potentially filled with biases and discriminatory practices. These remain despite the Supreme Court’s many attempts to make the system of capital punishment both fair and equitable in its application. Knowing this, the social work profession should consider further advocacy practices and interventions to end death sentencing. As societal standards continue to evolve toward a new consensus of decency, this goal is possible, and it can be argued that it may be within sight.

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                                                                                                                                                                                  Further Reading

                                                                                                                                                                                  American Bar Association Supplementary Guidelines for the Mitigation Functions of Defense Teams in Death Penalty Cases: http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v36n03_CC1a-Guidelines.pdf

                                                                                                                                                                                  Death Penalty Information Center: http://www.deathpenaltyinfo.org

                                                                                                                                                                                  Innocence Project: http://www.innocenceproject.org/s