Capital punishment in the United States

Pre-Furman history

Executions in the United States from 1608 to 2009

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,^[10] who was executed by firing squad^[11] at the Jamestown colony for spying for the Spanish government.^[12]

The Bill of Rights adopted in 1789 included the Eighth Amendment which prohibited cruel and unusual punishment. The Fifth Amendment was drafted with language implying a possible use of the death penalty, requiring a grand jury indictment for "capital crime" and a due process of law for deprivation of "life" by the government.^[13] The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any states.

William Kemmler became the first person put to death by an electric chair, August 6, 1890

The Espy file,^[14] compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. From 1930 to 2002, there were 4,661 executions in the U.S., about two-thirds of them in the first 20 years.^[15] Additionally, the United States Army executed 135 soldiers between 1916 and 1955 (the most recent).^[16][17][18]

Early abolition movement

Three states abolished the death penalty for murder during the 19th century: Michigan (which has never executed a prisoner since achieving statehood) in 1846, Wisconsin in 1853 and Maine in 1887. Rhode Island is also a state with a long abolitionist background, having repealed the death penalty in 1852, though it was theoretically available for murder committed by a prisoner between 1872 and 1984.

Other states which abolished the death penalty for murder before Gregg v. Georgia include: Minnesota in 1911, Vermont in 1964, Iowa and West Virginia in 1965 and North Dakota in 1973. Hawaii abolished the death penalty in 1948 and Alaska in 1957, both before their statehood. Puerto Rico repealed it in 1929 and the District of Columbia in 1981. Arizona and Oregon abolished the death penalty by popular vote in 1916 and 1964 respectively, but both reinstated it, again by popular vote, some years later. Arizona reinstated the death penalty in 1918 and Oregon in 1978.^[19] Puerto Rico and Michigan are the only two U.S. jurisdictions to have explicitly prohibited capital punishment in their constitutions: in 1952 and 1964, respectively.

Constitutional law developments

Nevertheless, capital punishment continued to be used by a majority of states and the federal government for various crimes, especially murder and rape, from the creation of the United States up to the beginning of the 1960s. Until then, "save for a few mavericks, no one gave any credence to the possibility of ending the death penalty by judicial interpretation of constitutional law", according to abolitionist Hugo Bedau.^[20]

The possibility of challenging the constitutionality of the death penalty became progressively more realistic after the Supreme Court of the United States decided on Trop v. Dulles in 1958. The Supreme court declared explicitly, for the first time, that the Eighth Amendment's cruel and unusual clause must draw its meaning from the "evolving standards of decency that mark the progress of a maturing society", rather than from its original meaning. Also in the 1932 case Powell v. Alabama, the court made the first step of what would later be called "death is different" jurisprudence, when it held that any indigent defendant was entitled to a court-appointed attorney in capital cases – a right that was only later extended to non-capital defendants in 1963, with Gideon v. Wainwright.

Capital punishment suspended (1972)

In Furman v. Georgia, the U.S. Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment. The last pre-Furman execution was that of Luis Monge on June 2, 1967.

In a 5-4 decision, the Supreme Court struck down the impositions of the death penalty in each of the consolidated cases as unconstitutional in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The Supreme Court has never ruled the death penalty to be per se unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases, but did not exclude the possibility of a constitutional death penalty law. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Thurgood Marshall and William J. Brennan Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as cruel and unusual punishment.

The Furman decision caused all death sentences pending at the time to be reduced to life imprisonment, and was described by scholars as a "legal bombshell".^[4] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.^[21]

Capital punishment reinstated (1976)

U.S. Supreme Court seat in Washington, D.C.

Instead of abandoning capital punishment, 37 states enacted new death penalty statutes that attempted to address the concerns of White and Stewart in Furman. Some states responded by enacting mandatory death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder. White had hinted that such a scheme would meet his constitutional concerns in his Furman opinion. Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion.

On July 2, 1976, the U.S. Supreme Court decided Gregg v. Georgia^[22] and upheld 7–2 a Georgia procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole. The same day, in Woodson v. North Carolina^[23] and Roberts v. Louisiana,^[24] the court struck down 5-4 statutes providing a mandatory death sentence.

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. Although hundreds of individuals were sentenced to death in the United States during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

Supreme Court narrows capital offenses

In 1977, the Supreme Court's Coker v. Georgia decision barred the death penalty for rape of an adult woman. Previously, the death penalty for rape of an adult had been gradually phased out in the United States, and at the time of the decision, Georgia and the U.S. Federal government were the only two jurisdictions to still retain the death penalty for that offense.

In the 1980 case Godfrey v. Georgia, the U.S. Supreme Court ruled that murder can be punished by death only if it involves a narrow and precise aggravating factor.^[25]

The U.S. Supreme Court has placed two major restrictions on the use of the death penalty. First, the case of Atkins v. Virginia, decided on June 20, 2002,^[26] held that the execution of intellectually disabled inmates is unconstitutional. Second, in 2005, the court's decision in Roper v. Simmons^[27] struck down executions for offenders under the age of 18 at the time of the crime.

In the 2008 case Kennedy v. Louisiana, the court also held 5–4 that the death penalty is unconstitutional when applied to non-homicidal crimes against the person, including child rape. Only two death row inmates (both in Louisiana) were affected by the decision.^[28] Nevertheless, the ruling came less than five months before the 2008 presidential election and was criticized by both major party candidates Barack Obama and John McCain.^[29]

Repeal movements and legal challenges

In 2004, New York and Kansas capital sentencing schemes were struck down by their respective state highest courts. Kansas successfully appealed the Kansas Supreme Court decision to the United States Supreme Court, who reinstated the statute in Kansas v. Marsh (2006), holding it did not violate the U.S. Constitution. The decision of the New York Court of Appeals was based on the state constitution, making unavailable any appeal. The state lower house has since blocked all attempts to reinstate the death penalty by adopting a valid sentencing scheme.^[30] In 2016, Delaware's death penalty statute was also struck down by its state supreme court.^[31]

In 2007, New Jersey became the first state to repeal the death penalty by legislative vote since Gregg v. Georgia,^[32] followed by New Mexico in 2009,^[33][34] Illinois in 2011,^[35] Connecticut in 2012,^[36][37] and Maryland in 2013.^[38] The repeals were not retroactive, but in New Jersey, Illinois and Maryland, governors commuted all death sentences after enacting the new law.^[39] In Connecticut, the Connecticut Supreme Court ruled in 2015 that the repeal must be retroactive. New Mexico is the only state with remaining death row inmates and no present death penalty statute.^[40]

Nebraska's legislature also passed a repeal in 2015, but a referendum campaign gathered enough signatures to suspend it. Capital punishment was reinstated by popular vote on November 8, 2016. The same day, California's electorate defeated a proposal to repeal the death penalty, and adopted another initiative to speed up its appeal process.^[41]

On October 11, 2018, Washington state became the 20th state to abolish capital punishement when its state Supreme Court deemed the death penalty unconstituional on the grounds of racial bias.^[42]

Since Furman, 11 states have organized popular votes dealing with the death penalty through the initiative and referendum process. All resulted in a vote for reinstating it, rejecting its abolition, expanding its application field, specifying in the state constitution that it is not unconstitutional, or expediting the appeal process in capital cases.^[19]

Lethal injection era

The lethal injection room in Florida State Prison.

From 1976 to July 1, 2018, there were 1,477 executions, of which 1,302 were by lethal injection, 158 by electrocution, 11 by gas inhalation, 3 by hanging, and 3 by firing squad.^[49] The South had the great majority of these executions, with 1,207; there were 181 in the Midwest, 85 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 552 executions, over 1/3 of the total; the states of Texas, Virginia, and Oklahoma combined make up over half the total, with 777 executions between them.^[50] 3 executions have been conducted by the federal government, the last in 2003. Executions increased in frequency until 1999; 98 prisoners were executed that year. Since 1999, the number of executions has greatly decreased, and the 20 executions in 2016 were the fewest since 1991.^[6]

The death penalty was a notable issue during the 1988 presidential election. It came up in the October 13, 1988, debate between the two presidential nominees George H. W. Bush and Michael Dukakis, when Bernard Shaw, the moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied, "No, I don't, and I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime." Bush was elected, and many, including Dukakis himself, cite the statement as the beginning of the end of his campaign.^[51]

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act to streamline the appeal process in capital cases. The bill was signed into law by President Bill Clinton, who had endorsed capital punishment during his 1992 presidential campaign.

A study found that at least 34 of the 749 executions carried out in the U.S. between 1977 and 2001, or 4.5%, involved "unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner". The rate of these "botched executions" remained steady over the period.^[52] A study published in The Lancet in 2005 found that in 43% of cases of lethal injection, the blood level of hypnotics in the prisoner was insufficient to ensure unconsciousness.^[53] Nonetheless, the Supreme Court ruled in 2008 (Baze v. Rees) and again in 2015 (Glossip v. Gross) that lethal injection does not constitute cruel and unusual punishment.^[54]

Women's history and capital punishment

In 1632, 24 years after the first recorded male execution in the colonies, Jane Champion became the first woman to be lawfully executed.^[55] She was sentenced to death by hanging after she was convicted of murder in front of a grand jury.^[56] The second half of the 17th century saw the executions of 14 women and 6 men who were accused of witchcraft during the witch hunt hysteria and the Salem Witch Trials. While both men and women were executed, 80% of the accusations were towards women, so the list of executions disproportionately affected men by a margin of 6 (actual) to 4 (expected), i.e. 50% more men were executed than expected from the percentage of accused who were men.^[57]

Other notable female executions include Mary Surratt, Margie Velma Barfield and Wanda Jean Allen. Mary Surratt was executed by hanging in 1865 after being convicted of co-conspiring to assassinate Abraham Lincoln.^[58] Margie Velma Barfield was convicted of murder and when she was executed by lethal injection in 1984, she became the first woman to be executed since the ban on capital punishment was lifted in 1976.^[59] Wanda Jean Allen was convicted of murder in 1989 and had a high-profile execution by lethal injection in January 2001. She was the first black woman to be executed in the US since 1954.^[60] According to Allen's lawyers, prosecutors capitalized on her low IQ, race and homosexuality in their representations of her as a murderer at trial.^[61]

Aggravated murder

Aggravating factors for seeking capital punishment of murder vary greatly among death penalty states. California has twenty-two;^[62] New Hampshire has seven.^[63] Some aggravating circumstances are nearly universal, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.^[64]

Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies. In 2011, Texas raised this age from six to ten.^[65]

In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believe capital punishment is warranted. In California especially, an official commission proposed, in 2008, to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony).^[66] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.^[67]

Crimes against the state

The opinion of the court in Kennedy v. Louisiana says that the ruling does not apply to "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State".^[73]

Since no one is on death row for such offenses, the court has yet to rule on the constitutionality of the death penalty applied for them.

Treason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi, and Missouri). Vermont still has a pre-Furman statute providing the death penalty for treason despite removing capital punishment for murder in 1965.^[74] Large-scale drug trafficking is punishable by death in two states (Florida and Missouri).^[75] Aircraft hijacking is a capital crime in Georgia and Mississippi.

Decision to seek the death penalty

While judges in criminal cases can usually impose a harsher prison sentence than the one demanded by prosecution, the death penalty can be handed down only if the accuser has specifically decided to seek it.

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local "idiosyncrasies", suggesting they are not in keeping with the spirit of the Supreme Court's directive. This means that "the very types of unfairness that the Supreme Court sought to eliminate" may still "infect capital cases". Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances", making nearly all premeditated murders potential capital cases.^[77]

A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.^[78]

Sentencing

Of the 30 states with the death penalty, 28 require the sentence to be decided by a jury, and 28 require a unanimous decision by that jury.

The only state which does not require a unanimous jury decision is Alabama. In Alabama, at least 10 jurors must concur. A retrial happens if the jury deadlocks.^[79]

Nebraska is the only state in which the sentence is decided by a three-judge panel. If one of the judges on the panel opposes death, the defendant is sentenced to life imprisonment.^[80]

Montana is the only state where the trial judge decides the sentence alone.^[81]

In all states in which the jury is involved, only death-qualified veniremen can be selected in such a jury, to exclude both people who will always vote for the death sentence and those who are categorically opposed to it.

However, the states differ on what happens if the penalty phase results in a hung jury:^[82][83]

• In four states (Arizona, California, Kentucky and Nevada), a retrial of the penalty phase will be conducted before a different jury (the common-law rule for mistrial).^[84]
• In two states (Indiana and Missouri), the judge will decide the sentence.
• In the 22 other states, a hung jury results in a life sentence, even if only one juror opposed death. Federal law also provides that outcome.

The first outcome is referred as the "true unanimity" rule, while the third has been criticized as the "single-juror veto" rule.^[85]

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review.^[86] The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not.^[87] Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand.^[86] If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing.^[88] Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible.^[88] About 60 percent survive the process of direct review intact.^[89]

State collateral review

At times when a death sentence is affirmed on direct review, supplemental methods to attack the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final.^[90] Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review, which is often called state habeas corpus. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state.^[91] Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review.^[92] Most often, these are claims, such as ineffective assistance of counsel, which requires the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. Only around 6 percent of death sentences are overturned on state collateral review.^[93]

In Virginia, state habeas corpus for condemned men are heard by the state supreme court under exclusive original jurisdiction since 1995, immediately after direct review by the same court.^[94] This avoids any proceeding before the lower courts, and is in part why Virginia has the shortest time on average between death sentence and execution (less than eight years) and has executed 113 offenders since 1976 with only five remaining on death row as of June 2017.^[95][96]

To reduce litigation delays, other states require convicts to file their state collateral appeal before the completion of their direct appeal,^[97] or provide adjudication of direct and collateral attacks together in a "unitary review".^[98]

Federal habeas corpus

After a death sentence is affirmed in state collateral review, the prisoner may file for federal habeas corpus, which is a unique type of lawsuit that can be brought in federal courts. Federal habeas corpus is a type of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The scope of federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which restricted significantly its previous scope. The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling.^[99] According to Eric Freedman, 21 percent of death penalty cases are reversed through federal habeas corpus.^[93]

James Liebman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case, there was "a 40 percent success rate in all capital cases from 1978 to 1995".^[100] Similarly, a study by Ronald Tabak in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted".^[101] The different numbers are largely definitional, rather than substantive: Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.

A similar process is available for prisoners sentenced to death by the judgment of a federal court.^[102]

The AEDPA also provides an expeditious habeas procedure in capital cases for states meeting several requirements set forth in it concerning counsel appointment for death row inmates.^[103] Under this program, federal habeas corpus for condemned prisoners would be decided in about three years from affirmance of the sentence on state collateral review. In 2006, Congress conferred the determination of whether a state fulfilled the requirements to the U.S. attorney general, with a possible appeal of the state to the United States Court of Appeals for the District of Columbia Circuit. As of March 2016, the Department of Justice has still not granted any certifications.^[104]

Section 1983

If the federal court refuses to issue a writ of habeas corpus, the death sentence ordinarily becomes final for all purposes. In recent times, however, prisoners have postponed execution through another avenue of federal litigation; the Civil Rights Act of 1871 – codified at 42 U.S.C. § 1983 - allows complainants to bring lawsuits against state actors to protect their federal constitutional and statutory rights.

While direct appeals are normally limited to just one and automatically stay the execution of the death sentence, Section 1983 lawsuits are unlimited, but the petitioner will be granted a stay of execution only if the court believes he has a likelihood of success on the merits.^[105]

Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death.^[106] In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay. Further, the Court's decision in Baze v. Rees, upholding a lethal injection method used by many states, has narrowed the opportunity for relief through Section 1983.

Execution warrant

While the execution warrant is issued by the governor in several states, in the vast majority it is a judicial order, issued by a judge or by the state supreme court at the request of the prosecution.

The warrant usually sets an execution day. Some states instead provide a longer period, such as a week or 10 days to carry out the execution. This is designated to avoid issuing a new warrant in case of a last-minute stay of execution that would be vacated only few days or few hours later.^[107]

Among states

The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, has also the largest death row with over 700 inmates. Wyoming, which is the least populous state, has only one condemned man.

But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state of the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only 13 executions during the same period, and has carried out none since 2006.^{[110][111][112]}

Among races

African Americans made up 41% of death row inmates while making up only 12.6% of the general population. They have made up 34% of those actually executed since 1976. However, this is an under-representation relative to the proportion of convicted murderers; 52.5% of all homicide offenders between 1980 and 2008 were African Americans.^[113] According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.^[114]

Approximately 13.5% of death row inmates are of Hispanic or Latino descent, while they make up 17.4% of the general population.^[115]

Among sexes

As of October 1, 2016, the Death Penalty Information Center reports that there are only 54 women on death row. This constitutes 1.86% of the total death row population. 16 women have been executed since 1976,^[116] while 1442 men have been executed.^[117] 15,391 total confirmed lawful executions have been carried out in the US since 1608, and of these, 575, or 3.6%, were women. Women account for 1/50 death sentences, 1/67 people on death row, and 1/100 people whose executions are actually carried out. The states that have executed the most women are California, Texas and Florida. For women, the racial breakdown of those sentenced to death is 21% black, 13% Latina, 2% American Indian, 61% white and 3% Asian.^[116]

Offender-selected methods

In the following states, death row inmates with an execution warrant may choose to be executed by:^[118][119]

• Electrocution in Alabama, Arkansas, Florida, Kentucky, South Carolina, Tennessee and Virginia.
• Gas inhalation in Arizona and California.
• Firing squad in Utah.

In five states (Arizona, Arkansas, Kentucky, Tennessee and Utah), the alternative method is offered only to inmates sentenced to death for crimes committed prior to a specified date (usually when the state switched from the earlier method to lethal injection).

When an offender chooses to be executed by a means different from the state default method, which is always lethal injection, he/she loses the right to challenge its constitutionality in court. See Stewart v. LaGrand, 526 US 115 (1999).

The last executions by methods other than injection are as follows (all chosen by the inmate):

Backup methods

Depending on the state, the following alternative methods are statutorily provided in the event that lethal injection is either found unconstitutional by a court or unavailable for practical reasons:^{[118][119][133]}

• Electrocution in Florida, Kentucky^[134], Oklahoma, South Carolina and Tennessee.
• Gas inhalation in Alabama, California, Missouri, Oklahoma and Wyoming.
• Firing squad in Oklahoma and Utah.
• Hanging in New Hampshire.

Oklahoma is the only state allowing more than two methods of execution in its statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The nitrogen option was added by the Oklahoma Legislature in 2015 and has never been used in a judicial execution, though it is routinely used to give a painless death in animal euthanasia.^[135]

Three states (Oklahoma, Tennessee and Utah) have added back-up methods recently in 2014 or 2015 (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.^[136]

Some states such as Florida have a larger provision dealing with execution methods unavailability, requiring their state departments of corrections to use "any constitutional method" if both lethal injection and electrocution are found unconstitutional. This was designed to make unnecessary any further legislative intervention in that event, but the provision applies only to legal (not practical) infeasibility.^[137][138]

In May 2016, an Oklahoma grand jury recommended the state to use nitrogen hypoxia as its primary method of execution rather than as a mere backup, after experts testified that the method would be painless, easy and "inexpensive".^[139]

Federal executions

The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution.

The federal government has a facility (at U.S. Penitentiary Terre Haute) and regulations only for executions by lethal injection, but the United States Code allows U.S. Marshals to use state facilities and employees for federal executions.^[140][141]

Botched executions

One of the main arguments against the use of capital punishment in the United States is that there has been a long history of botched executions. University of Colorado Boulder Professor Michael L. Radelet described a "botched execution" as an execution that causes the prisoner to suffer for a long period of time before they die.^[166] This has led to citizens having the opinion that capital punishment is cruel and unusual punishment. The following is a short list of examples of botched executions that have occurred in the United States.

• William Kemmler was the first person executed in the electric chair in 1890. After being pronounced dead after 17 seconds, he was found to be still alive. A second current was passed through him, which was successful. The execution took 2 minutes.^[167]
• In Arizona, it took Joseph Wood 2 hours to die after being injected.^[168]
• In Alabama, the execution of Doyle Hamm was cancelled after the prison medical staff had failed to find a vein to insert the lethal injection needle. They attempted for 2 and a half hours and punctured Hamm's skin at least 10 times.^[169]
• In Florida, Jesse Joseph Tafero had flames burst from his hair during an electrocution.^[170]
• Wallace Wilkerson died after 27 minutes in pain after the firing squad failed to shoot him in the heart.^[171] Because of this, the constitutionality of the use of the firing squad was questioned. The Supreme Court of the United States affirmed that the firing squad did not violate the 8th Amendment in the case Wilkerson v. Utah (1879).^[172]
• In New Mexico, Thomas Ketchum was decapitated when his body fell through the trap door during his hanging.^[173]
• In Mississippi, Jimmy Lee Gray died after being in the gas chamber for 9 minutes. During the procedure, Gray thrashed and banged his head against the metal pole behind his head while struggling to breathe.^[174]

The Death Penalty Information Center has compiled a list of botched executions that have occurred since Furman v. Georgia. As of October 12, 2018 there were 51 examples on the list.^[175]

Sources

• Marian J. Borg and Michael L. Radelet. (2004). On botched executions. In: Peter Hodgkinson and William A. Schabas (eds.) Capital Punishment. pp. 143–168. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511489273.006.
• Gail A. Van Norman. (2010). Physician participation in executions. In: Gail A. Van Norman et al. (eds.) Clinical Ethics in Anesthesiology. pp. 285–291. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511841361.051.

Books

• Bakken, Gordon Morris, ed. (2010). Invitation to an Execution: A History of the Death Penalty in the United States. University of New Mexico Press
• Banner, Stuart (2002). The Death Penalty: An American History. Harvard University Press. ISBN 0-674-00751-4.
• Bessler, John D. (2012) Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. Boston, MA: Northeastern University Press;
• Blecker, Robert (2013). The Death of Punishment: Searching for Justice among the Worst of the Worst. St. Martin's Press;
• Delfino, Michelangelo and Mary E. Day. (2007). Death Penalty USA 2005-2006 MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-2-5; and Death Penalty USA 2003-2004 (2008). MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-3-2.
• Dow, David R., Dow, Mark (eds.) (2002). Machinery of Death: The Reality of America's Death Penalty Regime. Routledge, New York. ISBN 0-415-93266-1 (cloth), ISBN 0-415-93267-X (paperback) (Provides critical perspectives on the death penalty)
• Garland, David (2010). Peculiar Institution: America's Death Penalty in an Age of Abolition. Harvard University Press.
• Hartnett, Stephen John (2010). Executing Democracy, Volume 1: Capital Punishment and the Making of America, 1683-1807. East Lansing, MI: Michigan State University Press.
• Hartnett, Stephen John (2012). Executing Democracy, Volume 2: Capital Punishment and the Making of America, 1635-1843. East Lansing, MI: Michigan State University Press.
• Lane, Charles (2010). Stay of Execution: Saving the Death Penalty from Itself. Rowman & Littlefield Publishers.
• Megivern, James J. (1997), The Death Penalty: An Historical and Theological Survey. Paulist Press, New York. ISBN 0-8091-0487-3
• Osler, Mark William (2009). Jesus on Death Row: The Trial of Jesus and American Capital Punishment. Abingdon Press. ISBN 978-0-687-64756-9
• Prejean, Helen (1993). Dead Man Walking. Random House. ISBN 0-679-75131-9 (paperback)
  (Describes the case of death row convict Elmo Patrick Sonnier, while also giving a general overview of issues connected to the death penalty)

Journal articles

• Vidma, Neil and Phoebe Ellsworth. "Public Opinion and the Death Penalty" (Archive). Stanford Law Review. June 1974. Volume 26, pp. 1245–1270.
• Hoffmann, Joseph L. (2005). "Protecting the Innocent: The Massachusetts Governor's Council Report". 95 J. of Crim. L. & Criminology 561.