Capital Punishment in the United States and Beyond

By Marcus, Paul | Melbourne University Law Review, December 2007 | Go to article overview

Capital Punishment in the United States and Beyond


Marcus, Paul, Melbourne University Law Review


[This article explores the controversial topic of capital punishment, with a particular focus on its longstanding application in the United States. The use of the death penalty in the US has been the subject of much criticism both domestically and internationally. The numerous concerns addressed in this article relate to the morality of the punishment, its effectiveness, the uneven application of the penalty, and procedural problems. The US Supreme Court has confirmed the constitutionality of capital punishment while striking down particular uses of the death penalty. The US is not, however, alone in executing convicted defendants. Capital punishment is still being used by other jurisdictions, some with more prevalent use than the US, such as the People's Republic of China and Singapore. However; as more nations abolish the death penalty, the question remains, why is capital punishment so widespread in the world?]

CONTENTS

I     Introduction
II    Judicial Rulings on the Death Penalty
III   Legislative Response
IV    The Current Situation
V     Attitudes towards Capital Punishment
VI    Concerns about Capital Punishment
         A The Moral Argument
         B Guilt or Innocence?
         C Procedural Fairness
              1 Assistance of Counsel
              2 The Involvement of Juries
         D Bias in the Process
              1 Race and the Death Penalty
              2 Geography and the Death Penalty
VII   Limitations on the Use of Capital Punishment in the United States
         A Only Homicides
         B The Mentally Retarded
         C Juveniles
VIII  The International Experience
         A International Agreements
         B Individual Nations
              1 People's Republic of China
              2 Australia
              3 Singapore
              4 Japan
IX    Why Does Capital Punishment Continue?

I INTRODUCTION

The death penalty has been a well-established, though highly controversial, practice in the United States for almost 400 years. The first execution of a criminal in the American colonies occurred in Virginia in 1622. (1) During most of the 20th century, the vast majority of states in the country permitted execution of convicted criminals. (2)

The practice dates back to early English common law, where virtually any person convicted of a felony offence faced a mandatory death sentence, (3) but the practice has always been much more widespread in the US than in the United Kingdom, which abandoned capital punishment in 1973. (4) For much of US history, capital punishment was extended beyond the crime of murder to include, among other offences, arson, burglary, armed robbery, rape, kidnapping, and possession of certain firearms in connection with crimes of violence. (5) The history of capital punishment in the US is centred almost entirely on state criminal justice systems, as opposed to the federal system. This is because virtually all major violent crimes which would give rise to a sentence of death occur within the states and not within the federal system. (6) An examination of the experience of the death penalty in the US is effectively one of male offenders, as female offenders account for a very small number of those who have been eligible for a capital punishment sentence. (7) Such an examination would also look to the various techniques involving the termination of an offender's life--from electrocution (started by New York in 1888) to hanging (the traditional form in most states in early US history), and from public shooting to the adoption of lethal gas and poisonous injections (beginning in 1924 when Nevada became the first state to use gas as an execution method). (8)

This article considers the US system of capital punishment. By also observing similar sentencing systems found elsewhere around the world, I ultimately hope to shed some light on the question of why the US and so many other nations retain the death penalty. …

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