The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we hold that the state should not arrogate unto itself the right to kill human beings - especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, or when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties, and is inconsistent with the fundamental values of our democratic system. Therefore, through litigation, legislation, commutation and by helping to foster a renewed public outcry against this barbarous and brutalizing institution, we strive to prevent executions and seek the abolition of capital punishment.

INTRODUCTION
In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty? constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Furman v. Georgia, 408 U.S. 238) The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new capital punishment statutes written to provide guidance to juries in sentencing. These statutes typically require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." (Gregg v. Georgia, 428 U.S. 153). Subsequently 38 state legislatures and the Federal government have enacted death penalty statutes patterned after those the Court upheld in Gregg. In recent years, Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.

Executions resumed in 1977, and as of May 1997, over 3,200 men and women were under a death sentence and more than 360 had been executed.

EIGHT OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

• Capital punishment is cruel and unusual. It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment.
  
  
• Opposing the death penalty does not mean sympathy with convicted murderers. On the contrary, murder demonstrates a lack of respect for human life. For this very reason, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems.
  
  
• Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable - forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.
  
  
• The death penalty violates the constitutional guarantee of equal protection. It is applied randomly - and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated.
  
  
• Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to "guided discretion." Such changes in death sentencing merely mask the impermissible randomness of a process that results in an execution.
  
  
• The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgement, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective.¹
  Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.
  
  
• Capital punishment wastes resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and correctional personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime.
  
  
• A society that respects life does not deliberately kill human beings. An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems - the worst possible example to set for the citizenry. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

Two conclusions are inescapable: Capital punishment does not deter crime, and the death penalty is uncivilized in theory and unfair and inequitable in practice.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

Source: Death Penalty Information Center, Washington, D.C.

1) A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions.

• The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s have increased to about 300 per year,² this is still only about one percent of all homicides known to the police.³ Of all those convicted on a charge of criminal homicide, only 3 percent - about 1 in 33 - are eventually sentenced to death.⁴
  
  
• Mandatory death row sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v. North Carolina, 428 U.S. 280).
  
  
• A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts - with the attendant high risk of convicting the wrong person and executing the innocent.

2) Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

• When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Gangland killings, air piracy, drive-by shootings, and kidnapping for ransom are among the graver felonies that continue to be committed because some individuals think they are too clever to get caught.
  
  
• Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others. Furthermore, the death penalty is a futile threat for political terrorists because they usually act in the name of an ideology that honors its martyrs.
  
  
• Capital punishment doesn't solve our society's crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.
  
  
• Capital punishment is a useless weapon in the so-called "war on drugs." The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty - a remote threat at best - will avert murders committed in drug turf wars or by street-level dealers.

3) If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

• The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. During the early 1970's death-penalty states averaged an annual rate of 7.9 criminal homicides per 100,000 population; abolitionist states averaged a rate of 5.1.⁵
  
  
• Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. In Oklahoma, for example, reintroduction of executions in 1990 may have produced "an abrupt and lasting increase in the level of stranger homicides" in the form of "one additional stranger-homicide incident per month." Why? Perhaps because "a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes?. "⁶
  
  
• In adjacent states - one with the death penalty and the other without it - the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois - which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions.⁷
  
  
• On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is "no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment."⁸
  
  
• Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions.⁹ Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states."¹⁰

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Using methods pioneered by economists, three investigators concluded that capital punishment does deter murderers.¹¹ Subsequently, however, several qualified investigators independently examined these claims - and all rejected them.¹² In its thorough report on the effects of criminal sanctions on crime rates, the National Academy of Sciences concluded: "It seems unthinkable to us to base decisions on the use of the death penalty" on such "fragile" and "uncertain" results. "We see too many plausible explanations for [these] findings... other than the theory that capital punishment deters murder."¹³

Furthermore, there are clinically documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome - persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them.¹⁴

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence.¹⁵ Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court's ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death.¹⁶

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in twelve death row prisoners had a prior homicide conviction.¹⁷ But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer - a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman. Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A recent study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery."¹⁸ Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black.¹⁹

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 - 90 percent - were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks.²⁰

In recent years, it has been widely believed that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black.²¹ Of the 3,200 prisoners on death row in 1996, 40% were black. This rate is not so obviously unfair if one considers that roughly 50 percent of all those arrested for murder were also black.²² Nevertheless, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

An exhaustive statistical study of racial discrimination in capital cases in Georgia, for example, showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims."²³ In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case - an impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...."(481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful.²⁴

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded: "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process...."²⁵

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime. Furthermore, they lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person. Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color.²⁶ Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Both gender and socio-economic class also determine who receives a death sentence and who is executed. During the 1980s and early 1990s, only about one percent of all those on death row were women²⁷ even though women commit about 15 percent of all criminal homicides.²⁸ A third or more of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse.²⁹ Since 1930, only 33 women (12 of them black) have been executed in the United States.³⁰

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried."³¹ Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238).

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discriminatio