Journal of Social Issues, Vol. 50, No. 2, 1994, pp. 1-18

An Overview of the Death Penalty and Capital Trials: History, Current Status,
Legal Procedures, and Cost
Mark Costanzo Claremont McKenna College and Claremont Graduate School

Lawrence T. White Beloit College

Preparation of this article was facilitated by a grant to the first author from
the John Randolph Haynes and Dora Haynes Foundation. We are grateful to Phoebe
Ellsworth, Samuel Gross, Craig Haney, and three JSI reviewers for helpful
comments on an earlier draft of this article. Correspondence concerning this
article should be addressed to Mark Costanzo, Department of Psychology, Claremont
McKenna College, 850 Columbia Avenue, Claremont, CA 91711. Editorial duties for
this issue were fully shared. The editors' names are listed alphabetically on the
journal cover.

There are several reasons to expect that the issue of capital punishment will
continue to demand the attention of the public and the media. To provide
necessary background for the articles that follow, we present a brief history of
the death penalty in the United States and describe the American system of
capital jurisprudence. We also present a detailed examination of one issue that
frequently surfaces in discussions of capital punishment-the financial cost of
the death penalty and its attendant procedures. Finally, we briefly describe each
of the articles in this JSI issue. These articles examine the death penalty and
capital trials from the perspective of social science.

The value of the death penalty is passionately debated in homes, schools,
courtrooms, and the halls of Congress. The key arguments that fuel our continuing
national debate over capital punishment could recently be heard in the highest
court in the land. Arguing against the death penalty in an eloquent dissent,
Justice Harry Blackmun declared, "From this day forward, I no longer shall tinker
with the machinery of death" (Callins v. Texas, 1994). He described the execution
process in graphic terms: "Intravenous tubes attached to his arms will carry the
instrument of death, a toxic fluid designed specifically for the purpose of
killing human beings . . . no longer a defendant, . . . but a man, strapped to a
gurney and seconds away from extinction." Justice Antonin Scalia countered
Blackmun's statements by describing the brutal rape and murder of an ll-year-old
girl and declaring "How enviable a quiet death by lethal injection compared with
that!" Blackmun further argued that "the death penalty remains fraught with
arbitrariness, discrimination, caprice, and mistake," that "race continues to
play a major role in determining who shall live and who shall die," and that "the
death penalty, as currently administered, is unconstitutional." Scalia responded
that "If the people conclude that more brutal deaths may be deterred by capital
punishment; indeed, if they merely conclude that justice requires such brutal
deaths to be avenged . . . the Court's Eighth Amendment jurisprudence should not
prevent them." This JSI issue is devoted to an examination of social science
research on the death penalty and capital trials. The issues raised by Justices
Blackmun and Scalia-public opinion, deterrence, vengeance, and discrimination-as
well as other important matters-the cost of capital punishment, biases in capital
trials, the arguments made by attorneys in capital cases, and the decision-making
processes of jurors-are discussed in this journal issue. To provide background
and context for a discussion of these concerns, this introductory article traces
the history of the death penalty in the United States; describes the American
system of capital jurisprudence; provides a detailed examination of one issue-the
financial cost of the death penalty-that frequently surfaces in discussions of
capital punishment; and introduces the seven articles that follow.

A Brief History of the Death Penalty in the United States

Nearly four centuries have passed since the first documented execution on
American soil took place in 1608 (Schneider & Smykla, 1991). Early colonial laws
concerning capital punishment were borrowed from British law. Under British law,
more than 50 crimes were designated as capital offenses including vagrancy,
heresy, witchcraft, rape, murder, and treason (Hook & Kahn, 1989). Eventually,
the American colonies developed their own lists of capital crimes. These lists
varied widely. For example, Puritan-influenced Massachusetts Bay Colony listed
statutory rape, rebellion, adultery, buggery, idolatry, witchcraft, bestiality,
man stealing, and blasphemy as capital crimes. In contrast, Quaker influenced
South Jersey declined to adopt capital punishment in its original charter (Bedau,
1982; Hook & Kahn, 1989). Many early lists of capital offenses included acts that
threatened the prevailing social-economic order. North Carolina's list, for
example, included circulating seditious literature among slaves, inciting slaves
to insurrection, stealing slaves, and harboring slaves for the purpose of setting
them free (Bedau, 1982). Similarly, Virginia listed only five capital crimes for
whites, but 70 for blacks (Bowers, 1984).

Overview of Death Penalty and Capital Trials

Progress of the movement to abolish the death penalty has been slow and erratic.
In 1794, Pennsylvania restricted use of the death penalty to first-degree murder
and in 1834 became the first state to ban public executions (Paternoster, 1991).
A few states went even further. Michigan eliminated capital punishment for all
crimes except treason in 1846 (Bedau, 1982). Rhode Island and Wisconsin became
the first two states to eliminate capital punishment for all crimes in 1852 and
1853, respectively. However, most states that experimented with abolition later
reinstated the death penalty (e.g., Colorado, New Mexico, Ohio, and Oregon). At
present, 37 states and the federal government have statutes authorizing capital
punishment (Greenfeld, 1991).  (Alaska, Hawaii, lowa, Maine, Massachusetts,
Michigan, Minnesota, New York, North Dakota, Rhode Island, Vermont, West
Virginia, and Wisconsin do not have the death penalty.)

Throughout U.S. history, the number of death sentences and executions has always
been small when compared with the number of murders. Individuals convicted of
murder rarely are executed. The rate of executions reached a record high in 1938,
when there were 2.01 executions per 100 homicides in states with the death
penalty. It is estimated that less than 10% of capital homicides-those the legal
system considers to be the worst possible murders-result in executions (Bowers,
1984). As shown in Fig. 1, the annual number of executions was highest during the
1930s, peaking in 1935 when 199 people were put to death. Following the 1930s,
the number of executions declined steadily for three decades until they halted
for nearly a decade. Between June 3, 1967, and January 17, 1977, no one was
executed while the U.S. Supreme Court evaluated the constitutionality of the
death penalty. This de jure moratorium was aided by low levels of public support
for capital punishment (see Ellsworth & Gross, this issue), and there was
presumably little political will to carry out executions when the future of
capital punishment was in doubt. In Furman v. Georgia (1972), evidence of
"arbitrary and discriminatory" sentencing convinced the U.S. Supreme Court that
the death penalty, as then administered, violated the Eighth Amendment's
prohibition against "cruel and unusual punishment." In Gregg v. Georgia (1976)
and its companion cases, however, the Court decided that, by restructuring the
capital trial and guiding the discretion of jurors, death sentences could be
fairly applied (see Haney & Logan, this issue). The moratorium on executions
ended when convicted murderer Gary Gilmore halted further appeals on his behalf
and chose to be executed by a Utah firing squad. Since Gilmore's execution in
1977, more than 200 individuals have been executed-nearly 70% of them in four
southern states: Texas, Florida, Louisiana, and Georgia (White, 1991).

Four Trends

The evolution of capital punishment in this country has been marked by at least
four discernable trends. The first has been a dramatic reduction in the number
and types of crimes punishable by death. Statutory lists of capital crimes have
been steadily shortened so that, in most states, they now include only
first degree murder with "special circumstances." Circumstances that define a
murder as "death eligible" vary from state to state, but generally include the
following: (1) murder committed in the commission of a felony (e.g., robbery,
rape, or kidnapping), (2) multiple murder, (3) murder of a police or correctional
officer acting in the line of duty, (4) especially cruel or heinous murder, (5)
murder for financial gain, (6) murder by an offender having a prior conviction
for a violent crime, and (7) causing or directing another to commit murder.
Approximately 80% of capital cases involve defendants charged with the first
circumstance- murder during the commission of a felony, so-called "felony-murder"
(Amnesty International, 1987). 

A second trend has been the attempt to reduce the cruelty of executions by
replacing one execution technology with another (seemingly more humane)
technology. In the 1800s hanging was the most common means of execution. Hanging
was eventually replaced by electrocution, then lethal gas, and most recently,
lethal injection. Currently, 23 states use lethal injection, 12 use
electrocution, 7 use lethal gas, 3 use hanging, and 2 use a firing squad
(Greenfeld, 1992). In states that authorize more than one method, the particular
method generally is chosen by the condemned prisoner. Although each of these
changes in the method of killing was designed to make executions more humane,
questions have been raised about the "humaneness" of every method (Amnesty
International, 1987). 

A third trend has been the attempt by policy makers to ensure that death
sentences are imposed fairly and rationally. To make imposition of the death
penalty fairer, courts and legislatures have, at various times, enacted mandatory
death sentences for specified crimes, forbidden the practice of mandatory death
sentences, broadened the sentencing discretion of jurors, and narrowed the
sentencing discretion of jurors. In the opinion of many observers, efforts to
increase fairness have failed to produce a fair and rational system of capital
punishment (Luginbuhl & Burkhead, this issue). Offenders whose victims are white,
for example, and offenders who are sentenced in southern states are still much
more likely to be sentenced to death (Baldus, Woodworth, & Pulaski, 1990;
Paternoster, 1991). 

A fourth trend involves what might be called the sanitizing of executions. In the
1700s and early 1800s, executions were frequently held as public events witnessed
by hundreds of rowdy spectators (Hook & Kahn, 1989). A carnival atmosphere
prevailed, and the day's festivities often included several hangings. Execution
was swift, often occurring only days or weeks after conviction. In contrast,
today's executions are conducted late at night, using well-defined and
specialized procedures (Johnson, 1990; Trombley, 1992). These modern events are
witnessed by only a handful of observers (e.g., journalists, relatives of the
condemned prisoner, relatives of the victim) and occur, on average, eight years
and five months after conviction (Gross, 1993). Kroll (1993) has argued that this
well-intentioned regulation of our system of capital punishment (and even
euphemisms such as capital punishment) has had the secondary effect of enabling
people to psychologically distance themselves from the act of killing.

The Dealh Penalty Today

A cursory examination of recent trends-including the number of condemned
prisoners, recent Supreme Court decisions, the perception of public support for
executions, and the resumption of executions in some states-might lead us to
expect a dramatic rise in the rate of executions over the next decade. Figure 2
shows the steep rise in the number of persons under sentence of death from 1977
through the end of 1993. There are now more than 2800 convicted prisoners on
death row-more than at any time in U.S. history. (The demographics of death row
inmates do not mirror the US population-50.60% are White, 39.10% are Black, 7.28%
are Hispanic, 1.79% are Native American, and .75% are Asian. Only 1.27% are women
(Greenfeld, 1992).) Roughly 250 people are added to death row each year (Haas &
Inciardi, 1988), and in recent years, the U.S. Supreme Court has consistently
rejected legal challenges to the death penalty (Acker, 1993; Haney & Logan, this
issue). At least on the surface, public support for the death penalty remains
high-more than 70% of Americans say they favor some form of capital punishment
(Ellsworth & Gross, this issue). Finally, although some states have carried out
executions without interruption since 1977, the execution chambers of other
states are in use again after remaining idle for more than a quarter century. In
1992, Robert Alton Harris became the first person in 25 years to be executed by
the state of California and, in 1993, Wesley Alan Dodd became the first person in
29 years to be executed by the state of Washington. 

If these trends signal a dramatic rise in the number of executions in the United
States, we will see frequent accounts in the media of state-sanctioned hangings,
shootings, electrocutions, gassings, and lethal injections. Americans will be
forced to confront the death penalty as practice rather than as abstract
principle. However, partly owing to a reluctance to face the prospect of frequent
executions, some observers have argued that, despite current trends, the often
predicted surge in executions will never materialize. Gross (1993) argues that
there will probably be no significant increase in the pace of executions:

"Appearances to the contrary notwithstanding, the death penalty we have is pretty
much the death penalty we want. The costs of the process are mostly hidden from
view. Politicians and judges grumble about delays, but the system does produce
what the public demands: a widely available death penalty that is rarely carried
out. (p. 92)" 

Our current system of frequent death sentences but infrequent executions allows
us to preserve the symbolism of capital punishment without having to witness a

Even if the rate of executions remains slow and steady, politicians and those
seeking political office are likely to keep capital punishment in the forefront
of public debate. The issue of capital punishment can be easily and effectively
exploited for political gain. Indeed, it has been a key issue in recent
presidential elections and state gubernatorial races. Along with other symbolic
issues, a candidate's position on the death penalty has been used increasingly to
define candidates to voters. Politicians have enthusiastically embraced the death
penalty and have frequently proposed that its use be expanded to a host of new
crimes. As this article is being written, a new crime bill is making its way
through Congress. If passed in its current form, the bill will extend the federal
death penalty to 52 crimes (including murder of a poultry inspector or postal

Too often, declarations of support for capital punishment by politicians are
largely symbolic-intended to capitalize on legitimate public outrage over violent
crime and to portray the candidate as tough on crime. As Senator Dasschule of
South Dakota has observed, "We debate in codes, like the death penalty as a code
for toughness on crime . . . he who gets the code first wins" (Dewar, 1991, p.
Al). This cynical manipulation of capital punishment trivializes the public's
deep concern over violent crime in America. Unfortunately, the political debate
has bypassed a critical discussion of the costs and benefits associated with the
death penalty.

The American System of Capital Jurisprudence

Most of the articles in this JSI issue take legal issues and procedures as their
starting points. To provide the necessary legal background, this section presents
a succinct description of the procedures that characterize capital jurisprudence
in the American system. (Although there are significant variations in procedures
among the states, what we describe is typical.) 

When a defendant has been charged with a capital crime, a capital trial ensues.
Capital trials are unique in several respects. First, capital jurors must be
"death qualified." Death qualification occurs during jury selection. In addition
to routine questions about attitudes and personal experiences thought to be
pertinent to the case, prospective capital jurors are asked if they will be able
to consider a death sentence if the defendant is found guilty of a capital crime.
In 1985, the U.S. Supreme Court ruled that potential jurors whose beliefs
"substantially impair" their ability to impose a death sentence should be excused
from jury service (Wainwright v. Witt, 1985). Judges may also dismiss potential
jurors who, in the judgment of the court, exhibit attitudes that substantially
interfere with their ability to follow the law. From the pool of death-qualified
jurors, prosecuting and defense attorneys challenge and attempt to exclude jurors
who they perceive to be unsympathetic to their case. 

The structure of the capital trial is also unique. Capital trials are
"bifurcated" or split into two phases-a guilt phase and a penalty phase. If a
defendant is found guilty of a capital crime in the first phase, then an
appropriate sentence is selected in the second "penalty" phase. In the penalty
phase, jurors hear testimony pertaining to aggravating and mitigating factors
that bear on the circumstances of the offense or the character of the offender
(Costanzo & Peterson, this issue). Most states permit the sentencer to render a
verdict of death only if aggravating factors outweigh mitigating factors (White,
1991). In all but seven states, the jury makes the final sentencing decision. 
(1n Arizona, Idaho, Montana, and Nebraska, the judge alone makes the sentencing
decision. In Alabama, Delaware, Florida, and Indiana, the judge may override a
jury 's sentencing recommendation.)

Appellate review in capital cases is uniquely complex and elaborate.
Capital trials that culminate in a death sentence are automatically appealed to
the state supreme court. This direct appeal-circumventing all lower appellate
courts-is unique to capital cases. State supreme courts evaluate whether there
were legal or constitutional errors at trial, and some states provide for a
"proportionality review." In such reviews, the court determines if a particular
death sentence is consistent with sentences imposed in similar cases. If the
court affirms both the conviction and the sentence, the defendant can file a
petition for certiorari to the U.S. Supreme Court. This is a request for the case
to be heard by the high court based on issues raised in the direct appeal. The
Supreme Court rarely grants such requests because an important constitutional
issue must be at stake. 

If the defendant's direct appeal is unsuccessful, further state and federal
appeals are possible. These habeas corpus appeals can raise issues that go beyond
the trial record including newly discovered evidence, fairness of the capital
trial, impartiality of the jury, tainted evidence, incompetence of defense
counsel, and prosecutorial misconduct. If these appeals are denied by the trial
court, they may be filed with a district court of appeals. State habeas corpus
appeals can proceed to the state supreme court and, if denied, a new petition for
certiorari can be filed with the U.S. Supreme Court. 

After exhausting state appeals, a defendant can file federal habeas corpus
petitions. Appeals to federal courts must be confined to alleged violations of
constitutional rights. Such rights include the right to due process (Fourteenth
Amendment), the prohibition against cruel and unusual punishment (Eighth
Amendment), and the right to effective assistance of counsel (Sixth Amendment).
Federal appeals begin in a U.S. District Court and then, if denied, are taken to
a Circuit Court of Appeals. Finally, appeals may be made to the U. S. Supreme
Court on constitutional grounds. Though many forms of appeal are possible after
sentencing, only the automatic review by the state supreme court is mandatory.

When a sentence has been upheld by the state supreme court, an execution warrant
may be issued. The date of execution is generally set for not less than 30 days
after the warrant has been issued. If appeals are pending, the defendant must
apply for a stay of execution. Several warrants may be issued and several stays
granted before the defendant exhausts all appeals. The power to stay executions
and commute death sentences typically rests with a state's governor or a Board of
Pardons and Paroles (Amnesty International, 1987). When explaining their support
for or opposition to the death penalty, Americans refer to a variety of
issues-revenge, deterrence, arbitrariness, discrimination, and cost (see
Ellsworth & Gross, this issue). Because all but one of these issues-cost-are
discussed in the articles that follow, the next section addresses the comparative
costs of the death penalty or life imprisonment.

The Financial Cost of the Death Penalty

Many Americans support capital punishment because they believe it is cheaper to
execute a condemned prisoner than to imprison that person for the remainder of
his or her natural life (Ellsworth & Ross, 1983; Gallup & Newport, 1991). Indeed,
some capital jurors report that one of their reasons for imposing a death
sentence is the higher cost of life imprisonment (Costanzo & Costanzo, 1994). On
its face, this belief seems reasonable-surely by killing condemned prisoners we
save years or even decades of costs associated with maintenance. Despite the
intuitive appeal of the cheaper-to-execute notion, it is false. 

To be sure, the cost of life imprisonment without parole (LWOP)-the alternative
to a death sentence in most states-is very high. A full accounting of the cost of
LWOP must include construction, financing, and operation costs of a maximum
security cell. The current annualized costs of building and operating such a cell
are approximately $5000, and the cost of maintaining a maximum-security prisoner
is approximately $20,000 per year (Cavanaugh & Kleiman,1990). Taking into account
the average age of incarceration for someone convicted of homicide and the
average life expectancy for males in the U.S. Paternoster (1991) has estimated
that the total cost of LWOP ranges from $750,000 to $ 1.1 million. Actual costs,
however, may be substantially lower because of the value of prison labor:

"Offenders serving life without parole temms are, and could more extensively be,
employed in the institution itself or in prison industries. Inmates working in
the prison could perform many of the requisite maintenance and custodial duties,
thus reducing employment costs of the prison. Other inmates could be employed in
prison industries producing a commodity. These inmates are not paid the full
value of their labor so that the institution eams a profit from their work. This
directly helps to reduce the cost of the prison. In addition, inmates serving
life temms who work could have a portion of their wages deducted and used to
provide restitution for the families of their victims. In many ways, then,
murderers sentenced to life terms could help defray the cost of their own
imprisonment." (Patemoster, 1991, pp. 210-211)

The idea of imprisonment plus restitution appeals strongly to the American
public. In a series of recent surveys in several states (Bowers, 1993; Costanzo &
Costanzo, in press), respondents were asked to compare the death penalty to
alternative sentences. In each case, a majority of respondents preferred
sentences of LWOP to the death penalty if imprisonment included financial
restitution to the families of victims. 

Although the cost of LWOP is high, the cost of capital punishment is far higher.
It is estimated that California taxpayers could save $90 million annually by
abolishing the death penalty (Magagnini, 1988). In New York, the Department of
Correctional Services has estimated that reinstating the death penalty would cost
the state $118 million each year (Moran & Ellis, 1989).

Even the cost of trying and executing a single person is enormous. In Florida,
the average cost is $3.2 million (Von Drehle, 1988). In Wisconsin, the
Legislative Fiscal Bureau has estimated that reinstating the death penalty would
cost the state between $1.6 million and $3.3 million per execution (Associated
Press, 1993). In California, capital trials are six times more expensive than
other murder trials (Magagnini, 1988), and in Texas each capital case costs
taxpayers an average of $2.3 million-about three times the cost of imprisonment
in a maximum security cell for 40 years (Hoppe, 1992).

In the most carefully conducted investigation of cost to date, Cook and Slawson
(1993) collected data on cost for each phase of the legal process in North
Carolina. They found that, compared to first-degree murder cases in which the
death penalty is not sought, the extra cost of adjudicating a capital case
through to execution is $2.16 million. Of course, we spend time as well as money.
Both the California and Florida supreme courts spend nearly half their time
reviewing death penalty cases (Dieter, 1992). Clearly, any benefits Americans
receive from maintaining a system of capital punishment come at a high price.

Why the Death Penalty is So Costly

As explained above, capital trials are more complex and time-consuming than other
criminal trials at every phase of the legal process-pretrial, jury selection,
trial, and appeals. A competently conducted capital trial is preceded by a
thorough investigation of both the crime and the offender. Due to the added
dimension of the penalty phase, pretrial investigators attempt to locate and
interview anyone who may be able to offer testimony that can serve as mitigating
evidence (e.g., members of the defendant's family, friends, co-workers,
neighbors, and teachers). The personal history of the defendant is often
painstakingly reconstructed in order to explain the defendant's crime (Costanzo &
Peterson, this issue). Garey (1985) has estimated that investigations in capital
cases take three to five"times longer than noncapital investigations and
frequently take as long as two years to complete. The use of various
experts-mental health professionals, polygraphers, medlcal experts, forensic
scientists, and jury selection consultants-also add to the costs. Finally,
pretrial motions (i.e., requests) are numerous and complex. Capital cases
typically involve the filing of two to six times as many motions as noncapital
cases (Garey, 1985). 

The process of selecting jurors also takes longer in capital trials. Few
prospective jurors are able and willing to commit themselves to participating in
a trial that may last for many weeks. The requirement of death qualification
lengthens voir dire because, even when prospective jurors express distaste for
the death penalty, the defense can further question those jurors to demonstrate
that their distaste does not prevent them from carrying out their duties.
Attorneys in capital cases are usually allotted more peremptory challenges (juror
excusals that require no stated reason) and given greater latitude in questioning
potential jurors. In many states jurors are questioned individually so their
answers will not influence other potential jurors. Finally, it should be
remembered that jurors are being selected for both a guilt phase and a penalty
phase. As a consequence of these factors, jury selection takes about five times
longer in capital trials than in noncapital trials (Garey, 1985; Kaplan, 1983). 

Attorneys in capital cases must investigate and prepare for a charge of
firstdegree murder and other charges that qualify the offense as capital (e.g.,
rape or robbery). Because of the enormous work load, defense and prosecution
teams usually include two attomeys and numerous investigators (Paternoster,
1991). The efforts of the prosecution and defense teams are further complicated
by the necessity of formulating a guilt phase strategy that articulates with a
penalty phase strategy. Capital guilt phases consume 10-20 times as many labor
hours as noncapital cases (Kaplan, 1983), and capital trials as a whole generally
last three times longer than comparable noncapital trials (Spangenberg & Walsh,
1989). Most important, the extra costs associated with capital trials are
incurred not only when a defendant is sentenced to death but also when a
defendant is acquitted or sentenced to life imprisonment. Not all capital
offenders are sentenced to death-estimates range from less than 25% (Haas &
Inciardi, 1988) to only 10% (Bowers, 1984). Consequently, many of the dollars
spent to maintain a system of capital punishment are spent on the expensive
trials of defendants who are never sentenced to death. 

The elaborate appeals process for capital cases also is expensive. Cost estimates
for appealing a single capital case range from $170,000 (Spangenberg & Walsh,
1989) to $219,000 (Garey, 1985). Capital appeals generally cost more than
noncapital appeals because of the complexity of the legal issues, the number of
different issues that can be raised, and the availability of multiple avenues for
appeal. Because many appeals are successful and because the defendant's life is
at stake, there is ample incentive for pursuing appeals. When an appeal is
successful, the state must bear the cost of fighting the death sentence and the
cost of life imprisonment. Last, the price tag for capital punishment includes
the considerable expense of maintaining and operating death rows and execution

The true cost of the death penalty looms even larger when one considers what
economists call "opportunity costs" (i.e., the value of what could have been
purchased if X had not been purchased). Put differently, the tremendous sums of
money expended each year to maintain a system of capital punishment could be more
productively spent elsewhere-for example, on programs designed to prevent or
reduce crime. In recent years, many states have been forced to take extraordinary
steps to deal with shrinking budgets. Early intervention and education programs
have been cut, and violent offenders have been released early from prisons. Yet
capital punishment has been spared by budget cutters, perhaps because of its
power as a symbol in American society. As in other areas of public policy, by
focusing on punishing a few individual offenders, we may be diverting attention
and resources away from fundamental structural reforms that address the causes of
violent crime (Caplan & Nelson, 1973).

Can the System be Streamlined?

Why must our system of capital punishment be so elaborate, time-consuming, and
expensive? Clearly, our nation's system of capital punishment is expensive in
large part because it is so elaborate. Can the system be streamlined, thereby
reducing its overall financial cost? There are several answers to this question.
First, in fashioning a system of capital jurisprudence that passes constitutional
muster, the U.S. Supreme Court has repeatedly held that the punishment of death
is qualitatively different from all other punishments. The Court has ruled that a
sentence of death is unique because of its severity and irrevocability (Furman v.
Georgia, 1972; Gregg v. Georgia, 1976; Gardner v. Florida, 1977). This "death is
different" doctrine requires that capital defendants be entitled to the "super
due process" described above. As Justice O'Connor has observed,

"Among the most important and consistent themes in the Court's death penalty
jurisprudence is the need for special care and deliberation in decisions that may
lead to the imposition of that sanction. The Court has accordingly imposed a
series of unique substantive and procedural restrictions designed to ensure that
capital punishment is not imposed without the serious and calm reflection that
ought to precede any decision of such gravity and finality." (Thompson v.
Oklahoma. 1988, p. 856)

The unique procedural safeguards alluded to by Justice O'Connor include separate
guilt and penalty trials, great latitude in presenting mitigating evidence during
the penalty trial, automatic appeal to the state supreme court, and a greater
number and variety of opportunities for judicial review of a death sentence. 

	A second argument against streamlining the current system is that a substantial
number of capital convictions and death sentences are overturned on appeal. A
streamlined system presumably would allow some percentage of these cases to
"slip through" to the death chamber. Radelet and Vandiver (1983) found that 48%
of direct appeals to the Florida Supreme Court resulted in reversals of either
sentence or conviction. Baldus and his colleagues (Baldus et al., 1990) found
that the Georgia Supreme Court overturned 20% of the death sentences reviewed on
direct appeal. The South Carolina Supreme Court reversed 37% of death sentenc,es
and 29% of convictions for capital crimes (Paternoster & Kazyaka, 1990) Indeed,
Greenberg (1982) found that 61% of the capital defendants sentenced after
post-Furman reforms had either their conviction or their sentence overturned.
This rate of reversal is nearly 10 times higher than the rate of reversals for
noncapital cases. (There are many other possible explanations for the high rate
of reversals in death penalty cases . For example, more errors may occur at the
initial trial because public outrage and media attention create pressure for a
speedy conviction, because defense attorneys may be overworked or inexperienced
in capital cases, or simply because judges may be more willing to reverse due to
the severity of a death sentence.)

The success rate for capital habeas corpus petitions is similarly high. Mello
(1988) reported that federal appellate courts ruled for the capital defendant in
73% of habeas petitions, whereas the courts ruled for the defendant in only 6% of
noncapital cases. According to Mello, these reversals cannot be attributed to
trivial legal technicalities, rather they result from fundamental violations of
constitutional rights (e.g., ineffective assistance of counsel, jury misconduct,
and fabricated evidence). 

The enhanced procedural protections afforded the capital defendant are designed
to eliminate error-to ensure that only those guilty of the most egregious crimes
are sentenced to death. If errors have been eliminated, then perhaps the entire
system can be streamlined without increasing the risk of error. Unfortunately,
the available data suggest that even our current elaborate system permits
significant errors. 

The most troubling error in capital cases is the conviction, imprisonment, or
execution of an innocent person. Of course, our criminal justice system is far
from infallible and there is strong evidence that such extreme miscarriages of
justice do occur. In their ambitious study of wrongful convictions, Radelet,
Bedau, and Putnam (1992) identified 416 cases since 1900 in which an innocent
person was convicted of a capital crime. In more than two dozen cases the
condemned person came within days or minutes of being executed, and in another 23
cases the innocent person was executed. These figures probably underestimate the
incidence of "wrong-person" errors. It is impossible to know " . . . how many
other cases there may be in which good fortune, hard work, or unflagging courage
was absent and the erroneous conviction was never corrected or even identified
(except by the prisoner and a few supporters)" (Radelet et al., 1992, p. 272). 

These errors are especially disturbing because most were caused by factors that
remained uncovered by legal review. The three most common means of discovering
miscarriages of justice were confession by the actual perpetrator, perseverance
of a dedicated defense counsel, and publicity generated by concerned members of
the media. The four main sources of error were police error (coerced or false
confession, sloppy or corrupt investigation), prosecutor error (suppression of
exculpatory evidence, overzealousness), witness error (mistaken identification,
perjured testimony, erroneous testimony), and other errors (misleading
circumstantial evidence, incompetent defense counsel, exculpatory evidence ruled
inadmissible, inadequate attention to alibis, and conviction demanded by
community outrage (Radelet & Bedau, 1988). 

In sum, there is virtually no evidence to support claims that the death penalty
is cost effective. In fact, as we have seen, there is considerable evidence to
suggest the opposite: Society will save money if and when the death penalty is
abolished. Streamlining the system might save money, but the nonfinancial costs
associated with streamlining (e.g., violations of constitutional rights, more
executions of innocents) presumably are unacceptable to most Americans.

An Overview of This JSI Issue

The eight articles assembled here provide a broad social scientific perspective
on the death penalty and capital trials. Authors of these articles demonstrate
that many important questions about the death penalty can be tested empirically.
The approaches and perspectives of the authors are varied. Survey, experimental,
time-series, archival, and interview methodologies are used, and a variety of
scholarly perspectives-psychological, sociological, and legal-are represented.

The articles are divided into two sections: "The Death Penalty in Context" and
"The Capital Sentencing Trial." In the first section, four articles (including
this introductory overview) examine classic and contemporary questions about the
death penalty. In the second section, three articles examine socialpsychological
aspects of the process by which some defendants are sentenced to death. This
process-the penalty phase of the capital murder trial-has been the focus of
recent death penalty research, especially as conducted by psychologists.
Finally, a closing article discusses the Supreme Court's use of social science
evidence and identifies promising areas for future research. 

In the article that follows this introduction, Phoebe Ellsworth and Samuel Gross
provide a detailed analysis of Americans' attitudes toward the death penalty.
Using the best available survey data, they examine levels of public support for
capital punishment over the past 55 years, and for more limited periods of time,
the influence of various factors (e.g., crime rates) on death penalty attitudes.
Ellsworth and Gross also examine what people know about the death penalty, the
reasons people cite to support their positions, and the largely symbolic nature
of attitudes toward capital punishment. 

In the next article, William Bailey and Ruth Peterson present an up-to-date
summary of the scientific literature on the deterrent effect and discuss the
limitations that have plagued past empirical studies of deterrence. They present
a sophisticated time-series analysis of the relationship between the executions
of "cop killers" and rates of police killings. They also examine the
relationship between television news coverage of executions and the rate of
police killings. Bailey and Peterson conclude that there is very little evidence
that the death penalty serves as a deterrent to murder. 

The final article in the first section-by Craig Haney and Deana Logan- examines
how the U.S. Supreme Court has used (or failed to use) psychological research to
inform its decisions regarding the administration of capital punishment. Haney
and Logan examine the nature of the psychological data that have been introduced
in capital litigation and assess the Court's record in using and evaluating
those data. The authors explore several issues that are relevant to the
constitutionality of capital punishment: public opinion, the deterrent effect,
death qualification, and discriminatory imposition. 

An article by James Luginbuhl and Michael Burkhead opens the section on capital
trials. These authors examine sources of bias in the administration of the death
penalty. They argue that, despite substantial changes in capital trial
procedures, capital punishment is still administered in an arbitrary and
capricious manner. To support their argument, Luginbuhl and Burkhead present
empirical findings about the psychological impact of various courtroom
procedures (e.g., death qualification, the use of victim impact evidence, and
sentencing instructions). In addition to summarizing research findings on
several aspects of the capital trial, Luginbuhl and Burkhead set the stage for
the more sharply focused articles that follow. 

In the next article, Mark Costanzo and Julie Peterson report the findings of the
first social-psychological analysis of the closing arguments used by prosecution
and defense attorneys to persuade jurors that a defendant should be executed or
imprisoned for life. Attorneys in capital sentencing trials act as lay
psychologists-they construct arguments that seek to explain the defendant's
motivation and personal history, and attempt to appeal to commonsense notions of
justice and morality. Costanzo and Peterson use concepts and principles from the
research literature on persuasion and social cognition to illuminate attorney

In the final article focusing on the capital murder trial, Craig Haney, Lorelei
Sontag, and Sally Costanzo present one of the very first studies of actual
capital penalty deliberations. They report the findings of a series of
post-verdict interviews with capital jurors in two states (California and
Oregon) that use fundamentally different instructions to structure the nature of
the death penalty decisionmaking task. Their research raises fundamental
questions about the extent to which juror discretion has been guided in a fair
and meaningful way under the strictures of modern capital jurisprudence. 

In the closing article, Shari Diamond and Jonathan Casper discuss judicial
responses to social science evidence and, in particular, the Supreme Court's
response to social science evidence in death penalty cases. Diamond and Casper
consider a variety of explanations (e.g., changes in the Court's composition)
for why "the early promise of judicial interest in some types of social science
data has given way to a general lack of receptivity to such evidence in death
penalty decisions." They conclude with a call for further research, especially
on factors that affect juror decision making in death penalty trials (e.g., jury
comprehension of sentencing instructions). 

The death penalty itself and the capital trials that precede it are packed with
topics that have long intrigued psychologists and other social scientists-topics
such as attribution, persuasion, attitude-behavior correspondence, decision
making, prejudice, and group dynamics. More broadly, the legal rules and rituals
we construct to deal with individuals accused of the most egregious crimes
reveal our underlying values toward punishment, fairness, and revenge.


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