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January 17, 2007

American DP history before McGutha

As I mentioned in class, one of my questions to begin our discussion of modern death penalty constitutional law is why it took nearly 200 years for the Supreme Court to seriously examine the constitutionality of the death penalty.  Of course, that question could (and perhaps should) lead to a broader examination of America's history with the death penalty since the nation's founding.

For general historical background on the death penalty, the Death Penalty Information Center has this reader-friendly overview of the history of the death penalty.  In addition, I wrote this introduction to an OSLJ symposium on capital punishment that highlights that "America's history with the death penalty has been a story primarily about, and directed by, legislative developments."

January 17, 2007 in Death penalty history | Permalink


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In class today, there was a brief discussion of the interplay between the death penalty and redemption and how this can lead religiously minded people to support the death penalty. I learned over the weekend of another slightly different, though intertwined, rationale given by some Christian groups. A friend of mine works for a non-profit, right to life organization and, upon hearing my description of this class, informed me that many, if not everyone, she works worth fully supports the death penalty, though they are completely against abortion. When asked if the rationale used to justify the different valuing of human life laid in the fact that the unborn are seen as “innocent,” while those on death row are thought to have “had their chance and failed” (often the reasoning I’m given for what I feel is a real tension for folks on the far religious right), she informed me that the actual reason she and many other right to lifers supported the death penalty was because they feel that life imprisonment causes a criminal to “harden his or her heart,” and thus be lost forever to God. The idea, as I understood it, was not that a death sentence would cause a person to go through the process of redemption, but that a life in prison would cause a criminal to become more “evil” (this isn’t the exact right term, but work with me) because prison is so rough and a life sentence causes hopelessness. Many of her workmates felt that the worst thing that could happen to the criminal was to be forever lost and the only way to prevent that was through the death penalty. Perhaps this is just the other side of the same coin of redemption, but I thought this was an interesting twist to a point that was made today and I was wondering if anyone else had thoughts.

Posted by: Tiffany L. | Jan 17, 2007 6:14:36 PM

For those interested in or not yet sated by the macabre aspects of the discussions thus far, I have the following observations:

1.) While I have frequently heard tell of the presence, for example, of three "buttons" for electrocutions and lethal injections ("poisonings") the purpose of which is to diffuse guilt among would-be executioners (and I wonder if this is necessary, as I understand also that there is generally no shortage of volunteer executioners, at least not for high profile executions), I am doubtful that any of the guns of the firing squad members is loaded with blanks. If they were, this is probably not effective in preventing knowledge of whether you're "the one", as the felt recoil would be markedly and noticably different for a blank versus a live round (felt recoil depends upon the mass of the bullet+podwer charge times its velocity/acceleration minus the mass of the firearm).

2.) With another member of the class, I rented Faces of Death parts 1-4 this weekend. I last watched these about 15 years ago, and my vivid recollections of the electrucution scenes in particular were at odds with my recent discovery that they were in fact faked. I must have been quite naive at age 19 - the scenes, and indeed most of the entire movie is obviously faked, based on my repeat viewing, and interviews with the writer/producer which are available on the web.

3.) Anyone with a very strong stomach and an insatiable morbid curiosity can find various apparently legitimate video clips of real Iraqi executions and tortures (including death by explosion, firing squad, and, yes, beheading by sword, in addition to severing of hands and tongues as torture, etc.) at www.ehowa.com by clicking on the link to "movies" at the top after entering the site and navigating through the pages of video clips until three clips marked with a skull and crossbones are found . Beware - not only is there [a large amount of] adult content/links on this site, but these videos are disturbingly graphic.

4.) According to a NYT correspondent who witnessed the video of the recent "botched" hanging in Iraq, the video was shown only once to dispel rumors of malicious intent, and after this singular viewing will be sealed and never shown again. I guess that remains to be seen.

Posted by: Scott A | Jan 17, 2007 10:50:06 PM

Here are the URLs of the www.ehowa.com videos which will allow you to bypass most of the "adult content" by which I mean adult female nudity thumbnails and links:




Posted by: Scott A | Jan 17, 2007 11:02:34 PM

This "deathpenaltyinfo" (http://deathpenaltyinfo.msu.edu/c/about/methods/firingsquad.htm) site purports to authenticate the use of the blank round, not rounds. Typically, there are 5-6 shooters and only 1 of them has a blank round. Scott A.'s point about felt recoil is accurate and may not actually result in the shooter of the blank nor the shooters of the actual rounds being fooled into self-doubt as to being one of, not THE, executors, but memory fades over time and people have tricked themselves into thinking less plausible beliefs. It's at least the proffered explanation.

Posted by: Ben D | Jan 17, 2007 11:21:22 PM


Sorry. That closed hyphen messed up the link.

Posted by: Ben D | Jan 17, 2007 11:26:56 PM

I stand corrected. The "diffusion of guilt gesture" is there, it just may not be so effective with firing squads, unless the gunmen are capable of a good deal of self-deceit. And I agree that most people are capable of a good deal of self-deceit. In fact, as a testament to people's need for self-justification and resolution of cognitive dissonance, one need look no further than the DPIC site's links to recordings of the peri-execution period and inmates' last words, which seem to follow a general trend of self-justification even just moments before they are killed.

By the way, this part of the site also states that no video images have ever been taken of a US execution, and this declaration is what led me to question the authenticity of the Faces of Death series....

Posted by: Scott A | Jan 17, 2007 11:51:55 PM

My suggestion for what to say when someone is getting lethal injection: "We are going to juice you" (since "juicing" in the sports world has received such a bad connotation and a players career can be "killed" with just one injection...ok, it's lame, but I tried)

Posted by: Tiffany L. | Jan 17, 2007 11:52:18 PM

To the original comment - I guess the Commandment now reads, "Thou Shalt Not Kill... Except Where it Will Save a Soul."

Facetious, of course; but I do find it ironic that a justification for death is that death has more redemptive power than life. I also find it disconcerting that such groups are so willing to transfer their religious confidence onto someone else. What if they're wrong? Or, working within the belief system, what if they throw the switch too soon and hasten a soul's descent into Hell?

Posted by: Brett T. | Jan 18, 2007 8:34:05 AM

I agree with Brett. I also find it sickening that such groups purport to justify inflicting death upon another with a belief system that the one being put to death does not even follow. How do they explain this when the criminal is not a religious Christian? Dying is redemption even if the person himself does not look at it as such? My guess is these groups use these justifications for the sole purpose of redeeming themselves. By claiming that such punishment actually redeems an individual, they themselves are not being condemned for being agreeable to the murder of another. As someone who does actually lean in favor of capital punishment, I would never be so vain as to think it is proper in light of how my religious beliefs view the situation with regards to the one upon whom death is being inflicted.

Posted by: Shoshana | Jan 18, 2007 1:00:23 PM

While reading the Death Penalty Information Center's history of the death penalty, I was struck by this paragraph:

"In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas chamber was constructed. (Bohm, 1999)"

The author doesn’t go into detail about the failed attempts to kill Jon in his sleep, but I’m assuming that the state at least gave some kind of warning to Jon that one day he might not wake up. However, reading that paragraph the first time, I imagined a situation where inmates were given no meaningful warning that they might be killed in the night, and I started to think about the dignity with which we treat those who are about to be executed. I feel that certainly someone should be given warning that they are about to die, so that they at least can reflect on their life one last time before it’s over.

But my inkling is that many who are in favor of the death penalty hope that those who are about to be executed will receive more dignified treatment than just a warning that they are about to die. Maybe this is why Bush was allegedly more upset about the heckling that Saddam Hussein experienced prior to his hanging than the botched execution of Saddam Hussein's half-brother. For those in favor of the death penalty, what sort of duty do we owe to the death row inmate in their last 5 minutes? Is it different than the argument that it makes no difference that lethal injections are not always painless? (http://sentencing.typepad.com/sentencing_law_and_policy/2007/01/do_execution_he.html)

Posted by: Katherine L | Jan 18, 2007 1:13:22 PM

I am intrigued by the 1/18 discussion of the execution of mentally retarded folks.

Mental retardation is generally defined as an IQ level less than 70 which is two SDs below the mean. Because the scores are normally distributed (that is, they have a bell-shaped distribution) this also means that IQs between 70 and 130 cover 95% of the IQs of the population and 2.5% fall below that level and 2.5% are above that level. Therefore, there are about 7.5 million people in the US who don't qualify for execution due to mental retardation.

The problem with this sort of statistical definition, rather than a functional definition (e.g., basing mental retardation on inability to function in a certain way, or on understanding certain basic concepts or rules) is that the level of functioning that meets the definition is dependent upon the mean IQ of the underlying population. Hence my question about whether the death penalty should be among the punitive possibilities in a society where everyone has an IQ below 70. Should the DP be available? Or do we reset the threshold ot 2SD below THAT population's mean? What is the justification for excluding people from execution based on a statistical principle that qualifies only the bottom 2.5% of the population?

To give another analogy: the average/mean IQ of Ashkenazi jews (and I'm not one so I'm not ringing my own bell here) is 115, or one SD above the all population mean. So, for that population, 2SDs below the mean is only 85, an IQ that almost 50 million people in the US have. Does that mean that a jewish population should only be willing to execute anyone above threshold of 85 rather than 70? Should a jewish society be more lenient regarding execution of the mentally retarded? Or should the mean and SD be readjusted to the jewish mean, to retain the exclusion of only the bottom 2.5% of the distribution?

Such are some of the many problems with a statistical definition rather than a functional definition for mental retardation.

Another problem is that performance on IQ tests has been increasing over the last few decades. This is not apparentl from scores, because each year, this "grade inflation" if you will is corrected by resetting the new scores around the new, higher mean. The result is that an IQ of 70 today implies a significantly higher level of functioning than an IQ of 70 40 years ago. So someone today with an IQ of 70 may ahve had, say, an IQ of 80 had he been tested with and had his results compared to a population from the 1960s.

So I guess we'll just arbitrarily exclude the bottom 2.5% of the population, regardless of functional capacity - or at least this seems to be the approach determined by the supreme court.

And does this imply that we should hold the more intelligent, the top 2.5% of the distribution (say, for example, a law professor) to a higher standard, punishing them more severely?

Posted by: Scott A | Jan 18, 2007 4:29:17 PM

Oh, and there are some wierd things in this link about firing squads:


The sandbags are almost certainly present to safely absorb projectiles from the rifles that either miss the condemned or fully penetrate him/(her?), NOT to absorb blood.

Moreover, a physician is hardly needed to "use a stethoscope to determine the location of the heart" as the location of the heart is highly invariant, and not likely to be better characterized by auscultation with a stethoscope.

So either these statements are inaccurate, or the procedure is misunderstood, or it was created without logical guidance (all of which I think are equiprobable). I'll see if I can find teh referenced articles to get to the bottom of it.

Posted by: Scott A | Jan 18, 2007 4:42:17 PM

In wikipedia,
it states that Gary Gilmore's brother examined his shirt worn during the execution and found 5 holes.
It appears that Utah does not have a specific procedure for a firing squad execution.

Is it possible that the officials only tell the executioners that there is a blank, when i n reality there is no blank???

Posted by: Scott A | Jan 18, 2007 5:05:07 PM

Or maybe they didn't kill Gilmore at all, and he's on an island somewhere?

Posted by: Scott A | Jan 18, 2007 5:06:04 PM

Professor Berman mentioned a mandatory system today and I think it is relevant to McGautha. In terms of a notice function, the "lawless" argument is compelling. In addition, mandating capital punishment for certain crimes would circumvent much of the aggravating/mitigating circumstances analysis that everyone seems to get hung up on (see Scott's comment re: the troubles of using standard deviation above).

Having a clean-cut "you kill-you die" approach would help prevent the perception of lawlessness (and arbitrary/discriminatory prosecutorial or jury decisions). But as soon as I consider a mandatory death penalty -- the whole concept of aggravating/mitigating circumstances immediately seems more important -->

McGautha killed a stranger during a robbery (assuming he was the killer based on testimony from third parties - he denied being the shooter).

Crampton shot his wife of four months in the face (while she was on the toilet) because he suspected that she was cheating on him.

Under a mandatory system, there is no need to even consider the differences. But I think the SCT is right in McGautha -- that it is impossible to articulate a consistently applicable framework for a discretionary system.

Posted by: Kate G | Jan 18, 2007 5:17:35 PM

I'm also not sure why mental retardation is anything other than a mitigating factor.

And this "evolving standards of decency" thing is cute, but wouldn't an evolving standard of decency be demonstrated by public opinion against rather than for the death penalty, and by state legislatures moving to abolish the DP?

I guess that Wisconsin is not evolving as regards its standards of decency. Barbarians.

Posted by: Scott A | Jan 18, 2007 8:05:31 PM

Tiffany's remarks about a Christian perspective regarding the death penalty and abortion, and the unique twist in their interrelatedness, were very interesting. I found this rather old (2000) Catholic observation/explanation of the interrelatedness and the struggle to reconcile views on the death penalty and abortion here: http://www.americamagazine.org/gettext.cfm?articleTypeID=1&textID=650&issueID=286.

Posted by: Larysa | Jan 20, 2007 2:36:19 PM

I am sure I am simultaneously misunderstanding and oversimplifying the mental retardiation death penalty issue, but I would be interested to learn more about any arguments that divert us from the IQ debate. For example, if it is true that a mentally retarded individual may function at the 5th grade level, what does that have to do with their mental state in either committing the aggravated crime or understanding punishment for committing such a crime? I would think that most of us learn the difference between right and wrong at its most basic, and the horror of committing wrongs that hurt/kill others, before we hit the 5th grade. So if an individual functioning at the 5th grade level is not able to write an in-depth analysis of a Tolstoy novel, what does that have to do with their understanding of right and wrong that had already developed?

Posted by: Larysa | Jan 20, 2007 2:44:45 PM

I may be incorrect, but I think "juicing" someone has been used in reference to electrocution. Perhaps "sticking it to someone" or "giving them a poke" would be ways to refer to administering lethal injections?

Posted by: Larysa | Jan 20, 2007 2:48:56 PM

Larysa - please forgive me if I'm putting words in your mouth... but did you just tacitly endorse the death penalty for 5th graders?

Posted by: Brett T. | Jan 22, 2007 12:31:43 PM

Another interesting historic work about the pre Furman days is
Rebel and a Cause by Theodore Hamm (Caryl Chessman and the Politics of the Death Penalty in Postwar California 1948-1974) (UC Press)

Posted by: ward | Feb 10, 2007 7:37:39 PM

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