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222 c h a p t e r s i x Capital Punishment in America t Where We Stand T hough the Eighth Amendment unequivocally bars ‘‘cruel and unusual punishments,’’ Americans are split over the propriety of capital punishment. Sixteen states and the District of Columbia have abolished capital punishment, but thirty-four states, plus the federal government and the U.S. military, still authorize death sentences. The majority of states— at least on the books—continue to make first-degree murder a capital crime, and Congress has made approximately sixty offenses death-eligible. Everything from genocide and using weapons of mass destruction to murdering a federal egg, meat, or poultry inspector is a capital crime. For example, the United States Code makes treason and espionage, as well as various homicidal acts and drug-related crimes, punishable by death. A murder-for-hire, a retaliatory killing of a witness or informant, or a murder by a drug kingpin or a federal prisoner can bring a death sentence, as can killings related to the smuggling of aliens, murders committed in a federal facility or an international airport, or killings committed as part of a carjacking or drive-by shooting. Aviation-, maritime-, and train-related deaths, as well as civil rights violations resulting in death, are also capital offenses, as are those acts causing deaths through kidnapping, hostage-taking, the transportation of explosives, or the destruction of government property. Federal law specifically makes the murder of a high-level government official, a correctional officer, or a federal law enforcement officer death-eligible. Thus, it is a capital crime to kill the President , the Vice President, a Supreme Court Justice, a member of Congress, an executive branch official, a foreign official, a federal judge or law enforcement officer, or a court officer or juror. As with typical state law provisions, federal jurors, for whatever offense, must weigh ‘‘aggravating’’ versus ‘‘mitigating ’’ factors before deciding whether to impose a death sentence, with Capital Punishment in America | 223 federal law providing that a jury cannot impose a death sentence unless the vote is unanimous.∞ In America, where the morality of executions is increasingly questioned, statistics show a clear divide between jurisdictions that authorize executions but rarely carry them out, and those that still actively, if capriciously, use statesanctioned killings. While federal law, for instance, makes dozens of crimes death-eligible, federal executions only rarely occur. Sixty federal prisoners now sit on death row, but the U.S. government, since 1976, has executed only three inmates—most memorably, Oklahoma City bomber Timothy McVeigh. Indeed, of all death penalty jurisdictions, only a few Southern states—mainly Texas—regularly execute offenders. Of the more than twelve hundred American executions carried out since 1976, the State of Texas, with more than 460 executions, accounts for more than one third of the total, making it far and away the nation’s execution capital. The Commonwealth of Virginia, with 108 executions since 1976, is a distant second in terms of executions, followed, in terms of the numbers, by seven other Southern states: Oklahoma, Florida, Missouri, Georgia, Alabama, North Carolina, and South Carolina. Kansas, New Hampshire, and the U.S. military, all of which still authorize executions , have not had one in more than three decades; five death penalty states— Connecticut, Idaho, Colorado, Wyoming, and South Dakota—have had only one execution each in the last thirty-five years; and nine other death penalty states—Tennessee, Utah, Maryland, Washington, Nebraska, Pennsylvania, Kentucky, Montana, and Oregon—have all seen fewer than eight executions apiece in that time frame.≤ Executions have become rare, and they are heavily and increasingly concentrated in the same geographic area—the South—that once spawned scores of extrajudicial lynchings. Though annual U.S. executions peaked at ninetyeight in 1999, they have trailed off since then, in part because so many American states rarely or never use them. There were 85 executions in 2000; 71 in 2002; 59 in 2004; and 53 in 2006. But that number declined to 42 in 2007 and fell even further, to 37, in 2008, as executions were put on hold while the U.S. Supreme Court, in Baze v. Rees, considered an Eighth Amendment challenge to lethal injection. Between 1950 and 1964, approximately 60 percent of American executions took place in the South, a percentage that has since risen substantially. In the last two decades of the twentieth century, the South’s share of executions rose to...

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