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Capital Punishment Laws Across States

We will start with the most basic geography of capital punishment—states with and states without capital punishment. A total of 31 states have laws that permit the death penalty as a punishment for capital murder and 19 do not. The federal government and U.S. military also maintain capital punish- ment systems, although they rarely administer the death penalty. The federal government and military have executed three and zero people since 1976, respectively (DPIC, 2016a). Table 29.1 provides a reference for states with and without capital punishment laws.

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The content of capital punishment laws in the 31 states that allow the practice vary somewhat. The Supreme Court has laid out rather ambiguous guidelines for how states must go about administering capital punishment. In Gregg v. Georgia (1976) and accompanying cases, the Supreme Court established the framework for the so-called “modern era” of capital punishment. This framework contained two main criteria that state laws must meet in order to pass constitutional muster. First, the court required that capital punishment laws effectively narrow the class of death-eligible crimes to aggravated mur- der. This led states to pass death penalty statutes that specifi ed aggravating factors that would render a

Table 29.1 States With and Without Capital Punishment Laws.

Death Penalty States (31) Non-Death Penalty States (19)

Alabama Arizona Arkansas California Colorado 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 Wyoming

Alaska Connecticut Delaware Hawaii Illinois Iowa Maine Maryland Massachusetts Michigan Minnesota New Jersey New Mexico New York North Dakota Rhode Island Vermont West Virginia Wisconsin

Source: DPIC (2016b)



29 The Topography of Capital Punishment


defendant eligible for capital punishment. Second, the court required that states provide capital jurors with guidance on how to go about making sentencing decisions. Prior to the modern era, jurors were not offered guidance and were consequently administering death sentences arbitrarily ( Furman v. Georgia , 1972). Thus, states enacted sentencing guidelines that articulate what factors jurors must consider and how they must consider them when deciding whether to sentence defendants to death.

The court has historically been quite lenient in determining whether the laws in any given state meet these two criteria (Mandery, 2014). The Justices have not compelled a particular statute or set of statutes. Instead, the court has permitted states to enact and enforce a variety of laws so long as they seemingly narrow the applicability of capital punishment and provide some guidance for jurors’ sentencing deci- sions. This approach has created geographic variation in the content of states’ capital punishment laws. Thus, whether states proscribe the death penalty is not the only geographic distinction among capital punishment laws. Even among states that do permit the death penalty, there are differences—some subtle and some quite broad—in the legal framework used to apply the death penalty. The following sections describe the geography of guided discretion statutes in states’ capital punishment laws.

Variations in Guided Discretion Statutes

Guided discretion statutes ostensibly govern how jurors are to go about making sentencing decisions in capital cases. Understanding how they are used from state to state will require us to at least briefl y address several landmark U.S. Supreme Court cases on the subject. Other chapters will discuss these cases and their effects in much greater detail. Here we will cover only the aspects of the rulings most pertinent to understanding the different frameworks states use to apply capital punishment.

In Furman v. Georgia (1972), The Supreme Court ruled in a 5–4 decision that the death penalty was being applied in ways that confl icted with the Eighth Amendment’s prohibition against cruel and unusual punishment. Although each of the nine justices wrote their own opinion, the general implication that came out of decision was that the death penalty could be applied in a constitutional way provided that there were guidelines that would ensure some consistency regarding which capi- tal offenders (and offenses) would be sentenced to death. Political leaders in many states around the country were displeased with the court’s ruling and quickly began devising strategies to get their death penalty systems back. State legislators wrote new capital statutes that essentially created entirely new methods for applying the death penalty. Ultimately, fi ve different state frameworks were put before the Supreme Court to determine which, if any, would remedy the constitutional defi ciencies identifi ed in Furman . The new capital punishment systems created in North Carolina and Louisiana were rejected by the court because they mandated death sentences for all convicted capital murders ( Woodson v. North Carolina , 1976; Roberts v. Louisiana , 1976). The frameworks created in Georgia, Texas, and Florida were confi rmed and would go on to shape capital sentencing statutes throughout the country ( Gregg v. Georgia , 1976; Jurek v. Texas , 1976; Proffi tt v. Florida , 1976).

The capital sentencing scheme created in Florida has been adopted by a majority of death pen- alty states. In this scheme, the jury is presented with evidence of aggravating and mitigating factors. Aggravating factors are presented by the prosecution and are designed to act as evidence in support of the death penalty. Common aggravating factors include murder committed during the course of another felony, murder of multiple people, murder of young children, and especially heinous, vile, or depraved murder (DPIC, 2016j). Mitigating factors are presented by the defense and are designed to act as evidence in support of a life sentence. Mitigating factors are more varied than aggravators as they can include potentially any characteristic of the offender, victim, or offense that might make the defendant less deserving of the death penalty ( Lockett v. Ohio , 1978). Common mitigating factors include evidence that the offender is, or was at the time of the crime, mentally ill, that the victim provoked the offender, and that the offense was committed under duress. After the defense and pros- ecution present their cases, the jury is instructed that they must “weigh” aggravating factors against



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mitigating factors to arrive at their sentencing decision. Although the death penalty is never required, the implication of the weighing scheme is that if aggravating factors “outweigh” mitigating factors, the appropriate penalty may be death. As such, the states that retain this sentencing scheme fi rst devel- oped in Florida are commonly referred to as “weighing states.”

By also affi rming the capital sentencing statutes created during the same time in Texas ( Jurek v. Texas , 1976) and Georgia ( Gregg v. Georgia , 1976), the court tacitly acknowledged that other mechanisms can achieve the same constitutionally required goals of legitimacy and consistency in the application of the death penalty. These alternative schemes also rely on mitigating and aggravating factors, much like the Florida model. The main distinction is how juries take them into account in making sentencing decisions. In Georgia, for example, jurors must fi nd that one or more aggravating factors was proven beyond a reasonable doubt. If not, the defendant is not guilty of capital murder and is thus not eligible for the death penalty. In cases where the jury does fi nd the defendant guilty of capital murder, jurors may then consider mitigating factors and any other aggravating factors they encountered at the sen- tencing phase and decide whether to return a death sentence. States that have adopted this sentencing scheme are referred to as “non-weighing states” because the sentencing guidelines do not explicitly require jurors to counterweigh aggravating and mitigating factors (see Zant v. Stephens , 1983).

Texas is considered a non-weighing state, yet its scheme is somewhat different than Georgia’s. Capital jurors in Texas are presented with two “special issues” at sentencing. First, jurors must con- sider whether there is a probability that the defendant would commit “criminal acts of violence that would constitute a continuing threat to society.” This question is designed to tap whether jurors, after hearing the evidence, feel that the defendant would be dangerous in the future. If they answer is in the affi rmative, they are tasked with considering mitigating evidence that might reduce the defendant’s moral blameworthiness (Texas Code of Code of Criminal Procedure § 37.071).

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