PEna de morte

Background Information on the Death Penalty

"The punishment of death is pernicious to society, from the example of barbarity it affords. Is it not absurd that the laws which detest and punish homicide should, in order to prevent murder, publicly commit murder themselves?"
- Cesare Beccaria (18th century Italian thinker)

A brief history of the death penalty in the western world

"There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice"
- Montesquieu (18th century French politician and philosopher)

The very first known codification of the death penalty can be found in the Sumerian Code of king Ur-Nammu (Mesopotamia, ca. 2100 BC) which stipulated that the crimes of murder, rape, robbery, and adultery must be punished by death. Three centuries later, the famous Code of King Hammurabi (Babylon) codified the death sentence for twenty-five different crimes. In the 7th century BC, the Draconian laws of Athens instituted the death penalty as the only sentence for all crimes, from the stealing of an apple from an orchard to murder with premeditation or treason. In those times, those found guilty of a (capital) crime were executed by crucifixion, drowning, burning at the stake, or impalement.

In the last two thousand years, the history of the death penalty in Western Europe has witnessed many ups and downs, with short periods of abolition, for example during the reign of William the Conqueror in 11th century England, and at the end of the 18th century in the Grand Duchy of Tuscany and in Austria, as well as periods with very high numbers of executions, most notably in 16th century England under the reign of Henry VIII, and later during the 18th century when 222 crimes, including cutting down a tree or stealing a rabbit, were punishable with death. Also, France saw a frenzied period of executions at the end of the 18th century during and just after the French Revolution (an estimated 40,000 were executed between 1789 and 1799), particularly during the "Reign of Terror," when the "Law of Suspects" was passed that made it possible to arrest and execute anyone whose conduct was deemed "suspect." In a nine-month period in 1793-1794, 16,000 were sent to the guillotine and at least as many died in prison. In some cities, the numbers of death sentences were so high that people were executed en masse with canon fire, because executions with the guillotine, one at a time, took too much time.

Throughout the Middle-Ages, offenses such as murder, sacrilege, theft, and (high) treason were liable to a death sentence, but during some periods heresy and a number of divergent opinions were considered capital offenses as well.

In the 19th century, most Western European countries applied the death penalty only to murder with premeditation and (high) treason, and at the end of that century Portugal and the Netherlands in Europe, and Venezuela, Costa Rica, Brazil, and Ecuador in Latin America were the first countries to abolish capital punishment (except for treason and collaboration in wartime).

After WWII, and after the United Nations adopted the Universal Declaration of Human Rights in 1948, the push for the abolishment of the death penalty grew strongly in Western Europe. In most countries, the last executions have been for treason, collaboration with the enemy, and war crimes in the years following the end of WWII, and several countries formally banned capital punishment soon
after. Although some nations like the UK, Ireland, Greece, Belgium, Spain, France, and Luxemburg still maintained the death penalty in their penal code for years or decades longer, executions became very rare occurrences. France was the last country in Western Europe to formally abolish the death penalty in 1977.

The Death Penalty in the United States of America

"An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by legalized murder."
- Coretta Scott King, widow of Martin Luther King, Jr.

The death penalty was introduced in the New World by the first European colonists. Sir Thomas Dale, founder of the Jamestown colony and first Governor of Virginia, instituted the Divine, Moral, and Martial Laws, under which a host of crimes, including such mild offenses as stealing grapes, killing a chicken, or trading with the Indians, were punished with public hanging.

By the second part of the 18th century, public hangings in notorious cases attracted crowds of up to 30,000 people. But under the influence of various European thinkers and philosophers, the end of the 18th century saw a profound religious and philosophical revival. Ideas about the dignity of human life, or the need for social reform and the necessity to end the vicious cycle of murder and revenge began to find ground in the United States. In particular, the ideas of Italian thinker Cesare Beccaria gave a strong impulse to the abolitionist movement, and eminent statesmen such as Thomas Jefferson and Benjamin Franklin embraced his views. There was a noticeable trend in society away from corporal punishment such as whipping, and the notion of extenuating circumstances such as age, insanity, and self-defence became more widely accepted. The state of Pennsylvania introduced the first formal reform of the law in 1790, taking sodomy, robbery, and burglary off the list of capital crimes, and four years later it formally codified the notion of degrees of murder severity, and only first degree murder (premeditated murder) remained punishable by death. This was both the result of a compromise with the Quaker community, which was opposed to the death penalty, and of the growing awareness of the times.

The Bill of Rights (the first ten Amendments to the United States Constitution) was introduced by James Madison in 1789 and became effective in 1791. The eighth amendment prohibits cruel and unusual punishment ("no excessive bail shall be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted"). Those six words would come to play an important role at different moments in the history of capital punishment in the United States (see below, and also "recent developments").

A few decades later, in 1834, Pennsylvania was the first state to ban all public executions, soon followed by all New England and Mid-Atlantic states (Kentucky was the last state to ban public executions, in 1936, when the last public hanging took place). Michigan was the first state to abolish the death penalty in 1846 for all crimes except treason, quickly followed by Rhode Island, Wisconsin, Iowa, Maine, and Colorado. The last three, however, reinstated it later on. The abolitionist ideas grew in popularity until the onset of the Civil War (1861-1865). After the Civil War, the public debate began to focus more on the civil rights issues, and the whole question of capital punishment moved to the background, and after a brief period of liberalisation at the beginning of the 20th century, a conjunction of social, intellectual, political, and economic factors led to a frenzy of death sentences and executions between 1920 and 1940, with an average of 167 executions per year in the 1930s.

This tendency reversed itself after WWII, and Alaska, Hawaii, Iowa, Maine, Massachusetts, West Virginia, Vermont, and New York joined Michigan, Minnesota, North-Dakota, Rhode Island, and Wisconsin in abolishing capital punishment. A Gallup Poll in 1966 showed that nationwide support for the death penalty had dropped to 42%. In 1972 the United States Supreme Court declared capital punishment unconstitutional ("cruel and unusual punishment"), thereby removing the sword of Damocles from above the heads of the 629 death row inmates at the time. But only four years later, that same Supreme Court reinstated the death penalty. All the states that had the death penalty before 1972, introduced it again, and the situation remained unchanged until December, 2007, when New Jersey abolished it.

As of August, 2008, 14 states, Puerto Rico, and the District of Columbia do not have the death penalty; 36 states, the Federal Government, and the U.S. Military do. However, it must be noted that New Hampshire, Kansas, and the U.S. Military have not carried out any executions since before 1972, and in January, 2003, the state of Illinois issued an executive clemency for all of its 167 death row inmates. Also, the New York Sate Supreme Court ruled in 2004 that the execution procedure in force in the state (lethal injection) was in violation of the state's constitution, and since no efforts have been made to find an alternative procedure, the state of New York has not applied capital punishment since that year. The same situation occurred in Nebraska: the Supreme Court of Nebraska ruled in 2008 that execution by the electric chair violates the state's constitution, and in the absence of an alternative procedure, Nebraska has no capital punishment anymore.

During the Clinton Administration, two Acts of Congress were passed and ratified by the president: the "Violent Crime Control Act" of 1994, which made 60 new federal crimes liable to the death penalty (including three that do not involve murder or the loss of human life), and the "Anti-Terrorism and Effective Death Penalty Act" (AEDPA) of 1996, which restricts access to new state hearings for claims of actual innocence for those sentenced to death, and imposes shorter filing deadlines for all habeas corpus claims. Possibly as a result of the AEDPA, the numbers of executions began to rise again until the year 2000. Since then, the trend reversed itself, but the numbers are still higher than before 1994. Only 2008 will probably end with fewer executions, due the de facto moratorium that lasted from September 25, 2007 through April 16, 2008 (see below "recent developments").

As of August, 2008, about 3,265 men and women are on death row in the United States, of which 360 are in Texas.

The situation in the world today

"There will be no lasting peace either in the hearts of individuals nor in any society until death is outlawed"
- Marcel Camus (20th century French author and philosopher)

Not a year passes by without at least one country abolishing capital punishment. Since the fall of the Iron Curtain in 1989, Eastern European countries have one by one renounced the death penalty. The Council of Europe demands that new members sign Protocol 6 of the European Convention on Human Rights at the earliest possible date. Protocol 6 prohibits the death penalty except in times of war. Although not all forty-seven member states have ratified Protocol 6 yet, no death sentence has been given or execution been carried out in those countries since they joined the European Council. For example, the death penalty is still codified in Russia, but no execution has taken place since 1996, and the government has issued an executive clemency for all its death row inmates (716) in June, 1999. The Ukraine, formerly one the world leaders in numbers of executions, signed Protocol 6 in 1999.

In the rest of the world, the countries with the most confirmed executions in 2007 were China (470), Iran (317), Saudi Arabia (143), and Pakistan (135). The real numbers are probably (much) higher, especially in China and in Iran, where the state tightly controls all new media, and where it is practically impossible for outside observers to have access to reliable information. Of all the fully developed countries, only Singapore, Japan, and the United States are still administrating the death penalty in 2008.

By 1984, 64 countries had abolished the death penalty, and by 1996, 100 countries had done so. As of February, 2008, well over half of all countries in the world have written capital punishment off their penal code.

The origins of lethal injection

"What is murder in the first degree? It is cruel, calculated, cold-blooded killing of a fellow human. It is the most wicked of crimes, and the State is guilty of it every time it executes a human being"
- William Randolph Hearst

The idea to replace death by hanging or the firing squad with a chemically induced form of execution was first suggested in 1888 by New York MD Julius Mount Bleyer in an article in the Medico-Legal Journal. He proposed to inject the condemned with six grains of morphine, in what he saw as a more humane, cheaper way to put someone to death, thereby also robbing the person of the potential hero status conferred by hanging. His idea did not find any following. Nearly half a century later, Nazi Germany developed the "T-4 Euthanasia program," one of seven methods to eliminate those deemed "unworthy of life."

In 1977, the Oklahoma State medical examiner, Jay Chapman, developed what has become known as "Chapman's Protocol," a three-step injection method that was approved by Dr. Stanley Deutsch, MD, then head of the Department of Anaesthesiology of the Oklahoma University Medical School. Although making use other chemicals than those used by the Nazis, the method is fundamentally the same, that is, the intravenous injection of chemicals that will induce death within minutes.

Following Chapman's protocol, once the prisoner has been placed on a gurney and is properly restrained, two intravenous (IV) tubes are inserted in his arms and wired through a wall opening leading to the "anteroom," where the executioner takes his place. A saline solution is flushed through the IVs. Then a three-step procedure follows:

1) An anaesthetic, usually sodium thiopental (widely known as "Pentothal"), a powerful barbiturate, will induce a deep sleep and general anaesthesia. With the proper dose, the critical concentration of the chemical in the brain will be reached within 30 seconds. Then, the saline solution flushes again through the IVs.

2) A paralysing agent, such pancurium bromide ("Pavulon"), tubucarine chloride, or succinylcholine is injected. These are all muscle relaxants that will induce the paralysis of the diaphragm and the lungs. It works within 1-3 minutes after injection. Then, once more, the saline solution is flushed through the IVs.

3) A toxic agent (not in all US states), such as potassium chloride, is injected in a lethal dose to induce cardiac arrest. A minute or two later, the prisoner will be declared dead.

Oklahoma was the first state, in 1977, to pass a law that replaced the electric chair with lethal injection to execute death row inmates. Texas followed suit later that same year and carried the first execution by lethal injection in 1988. Of the 1,119 executions carried out since 1976, 948 people have been executed by lethal injection, and 171 by other methods, mostly electrocution (as of August 15, 2008).

Recent developments

"It is a weak nation that finds it appropriate to execute its own citizens to uphold moral"
- Lars Von Trier, Danish film maker

The painless and humane aspects of the execution by lethal injection have been increasingly put into question by eminent MDs, especially since 2003, as extensively reported in the United States news media. Specialists (anaesthesiologists, neurologists, and biochemists) contend that death by this method is often excruciatingly painful and agonizingly long, due to several factors, such as the wrong dosage of the chemicals, incorrect protocol, and inadequate monitoring during the procedure.

Although the method seems foolproof and painless at first sight, and on paper, it has often led to many problems and has resulted in a cruel form of torture lasting for up to well over thirty minutes in some cases before a prisoner could be declared dead. Medical specialists have pointed out that several major flaws in the lethal injection method make it a "cruel and unusual punishment."

For example, the first chemical, the thiopental, is a so-called ultra-short acting barbiturate whose concentration in the brain will wear off by being redistributed to the entire body within 30-60 seconds after it has been injected. As soon as it begins wearing off, consciousness returns and the prisoner will suffer an excruciatingly painful death when the second chemical, the muscle relaxant, is flushed through the IVs, causing the paralysis of every muscle in the body, making it impossible for the inmate to communicate that he is conscious and in pain. The prisoner dies slowly suffocating. Even if the first chemical is still present in sufficient amounts in the brain when the muscle relaxant is injected, the danger exists that the muscle relaxant will actually dilute the thiopental, resulting in the same situation, i.e. the person regains consciousness and the anaesthetic effect disappears.

According to several specialists, the dosages actually used during executions are often unacceptably low, lower even than would be admissible during surgery.

Another factor that makes death by lethal injection a potentially horrifyingly painful way to die is the inexperience of the personnel administering the drugs. Not only are they not medically trained to administer such drugs, but they do not realize that each person needs specific doses of the drugs, according to various parameters such as body weight, general condition, condition of heart, lungs, etc, and that such a procedure should be monitored closely. The executioner is located in another room and cannot monitor the situation of the person being put to death, and is unable to assess whether the person has regained consciousness and experiencing severe distress.

The ethical problems surrounding medicated executions have been pointed out repeatedly in recent years. Whereas the American Medical Association says that a physician's position on the death penalty is a matter of personal view, he/she should not participate in an execution, except for certifying death - but only after someone else has declared the person dead. Most states do not require that a MD administer the drugs, but some do, which is in direct violation of the Hippocrates Oath ("first do no harm"). On the other hand, if no specialist, such as an anaesthesiologist, is present to control that the proper dosage of the chemicals is administered, and to monitor the whole procedure to ensure that the death row inmate is not regaining consciousness or in distress, there is no way to prevent "cruel and unusual punishment."

As more and more arguments are being brought forth supporting the contention that death by lethal injection is much less simple and pain free as originally believed, several executions, in various states, have been stayed, and, most recently, the United States Supreme Court agreed on September 25, 2007, to hear a lethal injection challenge arising from two Kentucky death row inmates, Baze and Bowling, in a case known as Baze v. Rees. Baze and Bowling argued that lethal injection constitutes "cruel and unusual punishment" and is therefore in violation of the United States Constitution's 8th Amendment (see above, "The death penalty in the United States"). Rees, Commissioner of the Kentucky Department of Corrections, had refused their petition in State Court, upon which Baze and Bowling appealed to the Supreme Court.

A few hours after the Supreme Court made the announcement of the upcoming hearing, Texas executed the last prisoner before a de facto (= existing in fact, whether by right or not, as opposed to de jure, existing by law or decree) moratorium on all executions became effective in all states with the death penalty, pending the Supreme Court's ruling on the matter. After the hearing in January, 2008, the Supreme Court ruled in favour of Rees by a vote of seven to two, on April 16, 2008, thereby upholding Kentucky's method of lethal injection. Several states resumed executing death row inmates a few weeks later. From May through August, 2008, twenty-one inmates have been executed by lethal injection, eight of them in Texas (where twelve more are scheduled to be executed before the end of the year).

Nebraska (electric chair) is the only state that does not use lethal injection as sole or alternative method of capital punishment. Twenty states use lethal injection as well as alternative methods (lethal gas, electrocution, firing squad, hanging), contingent on the prisoner's choice, or the dates of sentence or execution, or the unconstitutionality of the method at the moment of the execution. The other states have recourse to lethal injection only.

In recent years, other countries in the world have adopted lethal injection as their preferred method of execution, most notably China (1997), Guatemala, the Philippines (1999), Thailand (2003), and Taiwan (2005).

The case of Ernest Ray Willis

Ernest Ray Willis became the eighth person exonerated from Texas death row, on October 6, 2004, and the 120th person nationwide since 1973. Willis had been sentenced to death seventeen years before for allegedly setting a house on fire, thereby killing two people. United States district judge Royal Ferguson held later that the state had administrated medically inappropriate anti-psychotic drugs to Willis without his consent; that the sate had suppressed evidence favourable to Willis; and that Willis had received ineffective representation during both the guilt and the sentencing phases of his trial. He mandated the state to either free Willis or to try him again.

The District Attorney hired a new fire investigation expert to examine the evidence, and the expert's conclusion was that "there is not a single item of physical evidence in this case which supports a finding of arson" (San Antonio Express-News, October 5, 2004).

The State Attorney General's office decided then not to call for a new trial, and the prosecutors dropped all charges against Ernest Ray Willis. In his conclusion, District Attorney Ori White stated that Willis, "simply did not do the crime. I'm sorry this man was on death row for so long and that there were so many lost years." (Los Angeles Times, October 7, 2004).

Since Ernest Ray Willis' exoneration, nine more men have been freed from death row. The latest, as of August, 2008, are Glen Chapman (April 2, 2008) and Levon "Bo" James (May 2, 2008), both from North Carolina, after respectively 14 and 15 years behind bars.

Since 1973, 129 men and women have been freed from death row, whether because their conviction was overturned and they were acquitted at a re-trial or all charges against them were dropped, or because they were issued an absolute pardon by their governor on the basis of new evidence of innocence. They have spent an average of 9.5 years on death row.

But other innocent men and women did not have that luck and have been executed. And some are still on death row, and have been for years; some, like Roger McGowen in Texas, for over two decades.

"I shall ask for the abolition of the punishment of death until I have the infallibility of human judgement demonstrated to me"
- Thomas Jefferson

"As a victim, as a colleague, I stand before you to ask that you vote to abolish the death penalty, not so much because I want murderers to live, but because if the state kills them, that forever forecloses the possibility that those who are victims might be able to figure out how to forgive. We've lost enough already. Don't take that option for healing away, please"
- Robert Renny Cushing, whose father was murdered in 1988, speaking as member of the House of Representatives in New Hampshire in 1988.

Disclaimer: No information published on this web site implicates Mr. Roger McGowen's legal rights, as defined in the United States Constitution's 5th and 6th Amendments. Mr. McGowen has no access to this site, nor can he exercise any control over its content. This web site and all the information contained herein are supported by friends of Roger McGowen, and all the opinions, information, and content presented herein are solely theirs. All information presented on this web site has been obtained from the public domain.