Legal Landscape: The death penalty
Most of the discussion we hear about the death penalty concerns practices by state governments. States traditionally are responsible for policing, crime and prosecution, and most criminal trials are held in state courts.
The federal government has the death penalty too - for federal offenses. It has been used much less frequently. However, the interaction between the two levels has caused some controversy, especially as states began abolishing the death penalty.
The Federal vs. State Death Penalty
The Legislative Powers part of the Constitution (Article I) gives Congress the power to make laws relating to certain “federal” issues, or issues of national concern. Those powers are listed/enumerated in Article 1 (at Section 8) (and called the “Enumerated Powers”). The end of the list says that Congress, in addition, has the power to make any laws “necessary and proper” to carry out the rest of the laws (the “Necessary and Proper Clause”).
Because of the clauses above, the death penalty on the federal level is imposed in relation to crimes that are inherently federal. The Enumerated Powers include, for example (a nonexhaustive list):
crimes “committed on the high seas,”
“organizing, arming, and disciplining, the Militia” and
(the most expansive) regulating commerce with foreign nations, between the states and with Indian nations
The Tenth Amendment of the Constitution says that the States have all powers not specifically granted to the federal government. This is the concept of “Federalism.” Federalism is code for states’ autonomy (on all issues not-federal).
General powers of crime and punishment traditionally are state powers. This is most of what we think of as criminal law. Because police power is traditionally “local” or state-controlled, most often the death penalty is imposed by a state government. States must abide by the protections of the Constitution, the Bill of Rights, when they carry out the death penalty.
Protections in the Bill of Rights:
The Eighth Amendment protects individuals against “cruel and unusual punishment.” This applies to both the federal government and to state governments. Many individuals have challenged the death penalty using the 8th Amendment. See cases in the Judicial section.
The Sixth Amendment guarantees that a defendant has the right to have a jury decide the facts of the case instead of the judge. Ring v. Arizona is a Supreme Court case that applied this to the death sentence (see Judicial section).
The Fourteenth Amendment includes a right to Procedural Due Process. Procedural due process ensures fairness in the process by which someone's life, liberty or property rights may be taken away. It includes, for example, the right to a fair trial and the right to confront witnesses against you. In regards to the death penalty, due process concerns sometimes are considered under the 8th Amendment or the 6th Amendment.
Legislative Branch (congress)
The federal government conducts many fewer executions than the state governments. Since 1977, there have been 37 federal executions and 1453 by the states (reported by the Death Penalty Information Center).
We outline here the laws of the early federal death penalty and of the the modern federal death penalty.
The Early Federal Death Penalty:
The Crimes Act of 1790 was the first law allowing for the federal death penalty. Federal crimes that received the death penalty were treason, counterfeiting federal records, murder, disfigurement and robbery in federal jurisdictions or on the high seas.
In 1897, “An Act To reduce the cases in which the penalty of death may be inflicted” was passed. It narrowed the number of federal crimes that could qualify for the death penalty and also made a death sentence an option for juries rather than required. With this Act, the federal death penalty occurred much less frequently.
Expanded Federal Law Enforcement
Throughout the 20th century, social perception of the death penalty rose and fell. While some states abolished the death penalty, the federal government began inserting itself more into federal law enforcement. The goal (sometimes a political one) was to be tough on organized crime.
Conflict with States on Place of Execution
When the states started abolishing the death penalty and the federal government continued, a practical difficulty arose. If a person is sentenced to death for a federal crime in a state that does not conduct executions, where should the execution take place?
In the 1930s, the federal government, led by an Attorney General with a tough-on-crime political agenda executed someone for a federal crime in Michigan. Michigan was the first state that abolished the death penalty. Holding the execution in the state caused controversy. Today, there is a law directing that for federal law executions tried in a state without the death penalty, the judge should identify an executing state to impose the punishment. However the practice of trying someone with a potential death sentence in a state without the death penalty is still controversial because the federal government is essentially bypassing state law. See the discussion about Attorneys General in the Executive section.
Temporary Halt of Executions
Societal opposition to the death penalty reached a high in the 1960s. Activists led by the NAACP brought a series of legal challenges to the death penalty, which jammed up the courts and caused delays. The federal government conducted its last execution of the 20th century in 1963. In 1972, the Supreme Court ruled the death penalty, as it was applied in Georgia, was unconstitutional, but the Court did not explain exactly why. The decision left the death sentence unclear around the nation. See Furman v. Georgia (Judicial section). The federal government did not enact a law to reengage the death penalty until 1988.
The Modern Day Federal Death Penalty:
The Anti-Drug Abuse Act of 1988, the first death penalty law after years of nonuse, established the death penalty for intentional killing related to a “continuing criminal enterprise” or a major drug felony. The Act was passed during the “War on Drugs” and the process pronounced was intended to address the ruling in Furman v. Georgia (see Judicial section).
The Federal Death Penalty Act of 1994 established additional categories for which the death penalty can be imposed. These crimes fall into three categories: (1) homicide offenses; (2) espionage and treason; and (3) non-homicidal narcotics offenses. The Act also created procedures for carrying out the federal death penalty. This Act was part of the Violent Crime Control and Law Enforcement Act of 1994.
The Antiterrorism and Effective Death Penalty Act of 1996 validated the death penalty for a U.S. citizen found guilty of using a weapon of mass destruction. It also reformed (majorly limited) the process by which a citizen could appeal to a federal court on grounds that the state court had treated his case unfairly. This appeal, called habeas corpus, is used as a last resort for individuals on death row and has found serious errors in state capital cases.
The USA PATRIOT Improvement and Reauthorization Act of 2005 established new procedures for the death penalty for individuals convicted of terrorism.
For a complete list of federal offenses that qualify for the death penalty, see the Death Penalty Information Center.
Executive BrANcH (president and agencies)
The Department of Justice plays an important role in death penalty enforcement. That’s because attorneys in the DOJ represent the government against people accused of crimes. If a federal law allows for the death penalty (see Legislative section), the DOJ decides whether it will ask for the death penalty in a specific case.
The Attorney General, the head of the Department of Justice, leads the federal government in deciding the process determining when the death penalty will be sought and how aggressively.
Attorney General Janet Reno
In 1995, to address the new activity of the federal death penalty that had come with the Federal Death Penalty Act, then-Attorney General Janet Reno issued procedures for the Department of Justice to follow when seeking the death penalty:
The Death Penalty Protocol is a set of rules that the government follows in determining whether or not to seek the death penalty in a particular case. As first issued by AG Janet Reno, all cases in which a U.S Attorney decided to seek the death penalty would have to be approved by the Attorney General and a proper evaluation of the case would need to take place. As mentioned in the Legislative section, the federal death penalty could cause controversy if sought in a non-death penalty state. The Protocol under Janet Reno acknowledged the difference of states’ laws and ended up seeking the death penalty less often in states that had abolished the death penalty. The Protocol also permitted a plea deal to act as a work-around for a U.S. Attorney to avoid seeking the death penalty.
Attorney General John Ashcroft, a death penalty proponent who stepped in with George W. Bush in 2001, altered the Death Penalty Protocol to encourage its use. He places restrictions on plea deals that allowed U.S. Attorneys to get away from seeking the death penalty.
Attorney General Alberto Gonzales, also appointed by George W. Bush, made clear that the federal death penalty was to be applied with consistency around the nation. This again made it more difficult to avoid the federal government seeking the death penalty even in a state that had abolished it.
Attorney General Eric Holder, appointed by Barack Obama, was personally opposed to the death penalty. He questioned and ordered a review of its use, but he also approved federal prosecution of the death penalty in several cases. In 2015, Holder ordered a nationwide halt on the death penalty after an error of an execution in Oklahoma. He placed executions on hold until the Supreme Court could review the practice. The Court affirmed it (see Glossip v. Gross in the Judicial section).
Attorney General Jeff Sessions, appointed by Donald Trump, is an outspoken supporter of the death penalty. We have yet to see how he will enforce it on the federal level. Here is an article critical of his actions seeking the death penalty as Alabama’s attorney general.
Current Death Penalty Protocol. You can read the current rules here.
See this article by Tirschwell and Hertzberg for an account of the federal death penalty, which was instructive in creating this report.
Judicial Branch (federal courts)
Background on Death Penalty in the Supreme Court:
In Weems v. U.S. (1910), the Supreme Court ruled that the protection against cruel and unusual punishment means that “punishment for [a] crime should be graduated and proportioned to [the] offense.” The case was not a death penalty case, but it set out the proportionality rule.
In Furman v. Georgia (1972), the Supreme Court ruled the death sentence, given arbitrarily (without rational standards to determine when it should be imposed), violates the 8th Amendment’s prohibition of cruel and unusual punishment. Five of the Justices making up the majority believed that Furman’s case was one of those arbitrary/unjust ones, but they did not agree on exactly why. The justices wrote several concurrences and dissents. In Furman, a man committed murder during a robbery when he tripped and his gun went off, killing the victim. After Furman, states widely rethought and redefined their death penalty statutes. It was not until 1976, the next set of cases that the Supreme Court clarified the constitutionality of the death penalty.
In 1976, the Supreme Court decided the “Death Penalty Cases”:
Gregg v. Georgia
Proffitt v. Florida
Jurek v. Texas
Woodson v. North Carolina
Roberts v. Louisiana
After Furman, considering these cases together, the Court ruled to guide states as to what the constitution would permit in regards to the death penalty. It declared that the nation still supports the death penalty as a method of punishment, both for retributive purposes (to get back at someone who commits a most grievous affront to humanity) and for deterrent ones (concluding someone may consider the death penalty before committing a calculated murder although no empirical study showed this). The Court set rules on the trial decision process necessary to conclude in a sentence of death. State laws defining how a case may result in a death sentence must include a several-step process that adequately narrows an individual first into an offense eligible for consideration of the death penalty, and then into the type of person especially deserving of the worst type of punishment (some states use “aggravating factors” for this latter analysis).
More Recent Cases Setting Boundaries on the Death Penalty:
Death Penalty not Allowed for Individuals with Intellectual Disabilities:
In Atkins v. Virginia (2002), the Supreme Court ruled the death penalty is not valid for an individual with an intellectual disability. The Court acknowledged a lessened culpability for those individuals and said the standards of decency do not justify the penalty of death in such a case. The Court said that determining the proportionality of the punishment should be considered by the standards of today instead of the standards of when the 8th Amendment was enacted. Several later cases have considered how to determine whether someone has an intellectual disability that can qualify for this defense.
Death Penalty not Allowed for Juveniles:
In Roper v. Simmons (2005), the Supreme Court ruled the death penalty is not valid for juveniles. It violates the 8th Amendment because sentencing a juvenile to death was out of line with national standards of decency. The Court pointed to the number of states that disallowed it (30 at the time).
Death Penalty not Allowed for Rape Alone:
In Kennedy v. Louisiana (2008), the Supreme Court ruled the death penalty is not valid for an individual convicted of raping of a child where death was not caused and death was not the intended result. It violates the 8th Amendment because the sentence was not proportional to the crime. This decision means that a death sentence cannot be imposed on someone who did not commit murder.
Death Penalty Without Intending Murder Allowed if Involved in a Felony:
In Tison v. Arizona (1987), the Supreme Court ruled that the death penalty may be imposed for someone involved with a felony (present and aiding in the course of a felony) in which a murder occurred, regardless of whether that person caused or intended to cause the murder, as long as the person was substantially involved with the felony and exhibited a reckless disregard for human life. This rule is very controversial.
Jury Must Decide the Facts to Determine a Death Sentence:
In Ring v. Arizona (2002), the Supreme Court ruled a jury must decide on the facts, rather than a judge, to determine the imposition of the death penalty. Arizona argued that the judge should be able to decide “aggravating factors” to push the penalty to death, after a jury has decided the capital offence. But the Court disagreed. The right to have a jury decide such important facts is a guarantee of the 6th Amendment.
Manner of Execution:
Some Risk of Pain is Allowed.
In Baze v. Rees (2008), the Supreme Court ruled that lethal injection is permissible and does not constitute cruel and unusual punishment. The 8th Amendment bans punishments of torture, including “deliberate infliction of pain for the sake of pain.” This case challenged a lethal injection method of a three-drug process because administering the drugs has a potential for error and consequently the potential for pain. The Court ruled a method of execution is unconstitutional only if it has a “substantial risk of serious harm” or an “objectively intolerable risk of serious harm.” In short, the state must avoid unnecessary cruelty by trying to avoid pain and trying to ensure the process is quick but it does not need to adopt any proposed alternatives unless an alternative is tested (proven by study) to be equally effective and without its own concerns.
In Glossip v. Gross (2015), the Supreme Court affirmed a three-drug lethal injection process similar to the one in Baze above. The Court reasoned that because the death penalty is constitutional, “there must be a constitutional means of carrying it out.” It restated that some risk of pain is inherent in imposing a death sentence and the lethal injection method prevalent in many states today is the states’ best efforts at imposing a quick and painless death. The dissent by Justice Breyer suggested the Court revisit the issue of whether the death penalty is constitutional.
The Glossip opinion starts with a history of the methods of execution. For those interested in reading it, skim past the first four pages (the “Syllabus” which is the summary).
States define their own categories of crimes. In all states, murder has varying degrees, ranging from unintentional to intentional and horrific. The most severe kinds of murder are those for which the state may, within the limits of the U.S. Constitution, seek a death penalty.
Some states have banned the death penalty through their own State Constitutions. Michigan, the first state to abolish the death penalty, actually specifically stated so in its Constitution, while in other states, the courts ruled the death penalty violates the state’s constitution.
Some states have banned the death penalty by legislative acts.
Some states still use the death penalty.
See here to get state-by-state information (from the Death Penalty Information Center). Click around on this site, which has a lot of information about the death penalty.
The 31 states allowing the death penalty must follow Constitutional requirements. So any state laws (definitions of murder allowing the death penalty or procedures related to the death penalty) must not violate the limitations discussed in the Judicial section.
You can see a map of death penalty states here, along with state-specific information about methods of execution and recent laws relating to the death penalty (from the National Conference of State Legislatures).