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Current International Practice
In the United States
Since the 1970s almost all capital sentences in the United States have been imposed for homicide. There has been intense debate regarding the constitutionality, effect, and humanity of capital punishment; critics charge that executions are carried out inconsistently, or, more broadly, that they violate the “cruel and unusual punishment” provision of the Eighth Amendment. Supporters of the death penalty counter that this clause was not intended to prohibit executions. In the 1972 case of Furman v. Georgia, the U.S. Supreme Court ruled that capital punishment as then practiced was unconstitutional, because it was applied disproportionately to certain classes of defendants, notably those who were black or poor. This ruling voided the federal and state death penalty laws then in effect but left the way open for Congress or state legislatures to enact new capital punishment laws, a process that began almost immediately.
In Gregg v. Georgia (1976), the court allowed capital punishment to resume in certain states; in 1977, Gary Gilmore, executed by a firing squad in Utah, became the first to die under the new laws. Today, 30 states and the federal government and military have the death penalty. In 1982, Texas became the first state to execute a prisoner using lethal injection; most executions now employ this method. By 2006, however, concerns over evidence suggesting that some persons had experienced extremely painful executions due to the poor administration of the standard three-drug procedure for lethal injections led several courts to review how the injections were conducted and set stricter standards for them. In 2008 the Supreme Court rejected a challenge to the constitutionality of the three-drug method for lethal injections on the grounds that it could cause extreme pain. Subsequently, obtaining drugs for the three-drug lethal injection (usually sodium thiopental, pancuronium bromide, and potassium chloride) became more difficult as pharmaceutical companies refused to sell drugs used for execution to the states, leading to the adoption of varied procedures using one or more drugs. In 2014 an execution in Oklahoma resulted in a widely publicized painful death, and prolonged executions occurred in Ohio and Arizona the same year. The gas chamber, hanging, the firing squad, and, most commonly, the electric chair are still used in some states; Florida's electrocutions, however, were heavily criticized following several grisly malfunctions, and in 2008 Nebraska's supreme court declared the electric chair to be cruel and unusual punishment. Texas leads all other states in the number of executions carried out, although it imposes the death penalty in murder cases less often than the national average.
In recent years, the Supreme Court has made it more difficult for death-row prisoners to file appeals, but it also sometimes has overturned death sentences or restricted their imposition. In 1988 the Court barred the execution of juveniles who were younger that 16 when they committed a crime; a 2005 decision extended this to offenders under the age of 18. In 2002 the Court barred the execution of mentally retarded offenders, overturning its 1989 ruling on the matter. Also in the same year the Court ruled that the death penalty must be imposed through a finding of a jury and not a judge. Since 2000, the number of death sentences imposed in the United States and the number of executions has declined; in many cases, a life sentence without parole is imposed instead of a death sentence.
Studies continue to show disparities in the imposition of capital punishment (it is most likely to be imposed if the victim was white and the defendant is black, but is least likely to be imposed if both victim and defendant are black), and criticism of the practice in the United States and abroad has been increasing markedly. The use of DNA fingerprinting to exonerate persons falsely convicted of rape and other crimes also has led to calls, in some instances by supporters of the death penalty, for the reexamination of the use of an ultimately irreversible sentence, and several states have appointed commissions to examine the issue. In 2002, in a surprising and controversial move, Illinois governor George Ryan commuted the sentences of all the state's death row inmates, saying that conviction errors and unfair imposition make capital punishment “arbitrary and capricious.”
See studies by W. Berns (1981), H. A. Bedau, ed. (1982), R. Berger (1982), F. Zimring and G. Hawkins (1987), R. Hood (1989), J. Jackson (1996), I. Solotaroff (2001), J. Jackson, Sr., et al. (2001), F. R. Baumgartner et al. (2008), D. Garland (2010), B. Jackson and D. Christian (2012), and E. J. Mandery (2013).
the most extreme measure of criminal punishment. In Soviet criminal law, capital punishment is regarded as a provisional, emergency, and exceptional measure of punishment, applied only when specifically indicated in the law. The law itself (Basic Principles of Criminal Legislation of the USSR and the Union Republics, 1958) stipulates the exceptional and provisional nature of capital punishment and does not include capital punishment in the general list of punishments.
Until it is completely abolished, capital punishment—in the form of execution by firing squad—may be applied under extraordinary circumstances for crimes against the state, such as treason against the homeland and espionage, for first-degree murder, for theft of state or public property on a particularly large scale, and for certain other grave offenses. During wartime, the death penalty is allowed in instances of avoidance of military service, refusal to carry out a superior’s order (insubordination), violent action against a superior, and desertion.
A special jurisdiction has been established to try cases involving crimes for which, according to law, capital punishment may be imposed. Such cases are tried by the Supreme Court of a Union republic or an ASSR, krai and oblast courts, the municipal courts of a number of cities (Moscow, Leningrad, Tashkent), and the courts of autonomous oblasts or national okrugs. In the armed forces, capital punishment may be imposed by sentence of a military tribunal of a district, fleet, army group, branch of the armed forces, or the Military Collegium of the Supreme Court of the USSR.
The law presents an exhaustive list of crimes for which the death penalty may be imposed, and not a single article of this particular part of the criminal code provides capital punishment as the sole measure of punishment. There is always an alternative: punishment by deprivation of freedom for a fixed term. Capital punishment is not applied to persons who were under 18 years of age at the time the crime was committed or to women who were pregnant at the time the sentence is to be carried out. There is a special procedure to allow the grounds for imposition of a death sentence to be examined by a special commission of the Presidium of the Supreme Soviet of a Union republic. The commission examines petitions for pardon, with the final decision on such petitions being taken by the Presidium of the Supreme Soviet of the appropriate Union republic. In cases tried by military tribunals, decisions on petitions are made by the Presidium of the Supreme Soviet of the USSR.
The death penalty is provided for by the criminal law of many contemporary capitalist countries for treason, espionage, murder, kidnapping for ransom, arson, robbery, and other crimes. In France and Japan, the death penalty may be imposed for many crimes. In Great Britain, capital punishment has been established for certain state crimes and piracy; the death penalty for murder was abolished in 1965, but several members of Parliament have insisted on the need to restore this form of punishment. In the USA, federal courts have not imposed capital punishment since several decisions involving the death penalty were overturned by the Supreme Court in 1972; for this reason, a number of states have adopted laws providing for the death penalty. In the bourgeois countries, capital punishment is carried out by means of a firing squad, hanging, or strangulation (the Spanish garrot). In the United States, the electric chair and the gas chamber are also used.
Certain countries in Western Europe, including Italy, the Federal Republic of Germany, and the Scandinavian countries, have abolished capital punishment, as have some Latin-American nations.