Subject: Capital Punishment, 1989 CAPITAL PUNISHMENT 1989 United States Department of Justice Office of Justice Programs Bureau of Justice Statistics Capital Punishment 1989 October 1990, NCJ-124545 Full text with tables available from: BJS Justice Statistics Clearinghouse 1-800-732-3277 Box 6000 Rockville, MD 20850 This Bulletin marks the 60th annual capital punishment report issued by the Federal Government. Begun in 1930, this statistical series has provided detailed information on the characteristics of those receiving a death sentence as well as those persons executed. Machine-readable data covering all persons under a sentence of death at any time between 1973 and 1989 are available to the public through the BJS-sponsored National Archive of Criminal Justice Data. I would like to express appreciation to the many persons in State and Federal corrections agencies and offices of State attorneys general who make this annual report possible. Steven D. Dillingham, Ph.D. Director CAPITAL PUNISHMENT 1989 By Lawrence A. Greenfeld BJS Statistician Eight States executed 16 prisoners during 1989, bringing the total number of executions to 120 since 1976, the year that the U.S. Supreme Court reinstated the death penalty. Those executed during 1989 had spent an average of 7 years and 11 months awaiting execution. During 1989, 251 prisoners under sentence of death were received by State prison systems from the courts. Ninety-six persons had their death sentence vacated or commuted during the year, and 6 died while under a death sentence. At yearend, 34 States reported a total of 2,250 prisoners under sentence of death, a 6.2% increase over the number held at the end of 1988. One prisoner was under a death sentence for other than murder (an inmate admitted during 1986 for the capital rape of a child in Mississippi); the remainder had all been convicted of murder. The median time since the death sentence was imposed for the 2,250 prisoners was 4 years and 3 months. About 7 out of 10 offenders under sentence of death for whom criminal- history data were available had a prior felony conviction; about 1 in 11 had a prior homicide conviction. About 2 in 5 condemned prisoners had a criminal justice status at the time of the capital offense. Half of these were on parole; the rest were in prison, on escape from prison, on probation, or they had charges pending against them. The majority, 1,310 (58.2%), of those under sentence of death were white; 903 (40.1%) were black; 23 (1%) were American Indian; and 14 (0.6%) were Asian. Twenty-five (1.1%) of those under a death sentence were female. The median age of all inmates under a death sentence was nearly 34 years. About 58% of those under sentence of death were held by States in the South. Western States held an additional 21%; Midwestern States, 15%; and the Northeastern States of Connecticut, New Jersey, and Pennsylvania, just under 6%. Texas had the largest number of condemned inmates (304), followed by Florida (289), California (254), Illinois (115), and Pennsylvania (112). During 1989, 27 State prison systems received a total of 251 prisoners under sentence of death from courts. Florida (37 admissions), California (30 admissions), and Texas (29 admissions) accounted for more than 38% of the inmates entering prison under a death sentence during the year. The 16 executions in 1989 were carried out by 8 States: 4 each in Alabama and Texas, 2 each in Florida and Nevada, and 1 each in Georgia, Mississippi, Missouri, and Virginia. Eight of those executed were white males, and eight were black males.From the beginning of 1977 to the end of 1989, a total of 120 executions were carried out by 13 States. Of these, 71 (59.2%) were white, and 49 (40.8%) were black. Over the same period, 3,326 admissions under sentence of death occurred, of which 1,936 (58.2%) were white, 1,339 (40.3%) were black, and 51 (1.5%) were of other races. During the same years, 1,376 removals from a death sentence occurred as a result of dispositions other than execution (resentencing, retrial, commutation, or death while awaiting execution). Of those removed from a death sentence, 780 (56.7%) were white, 582 (42.3%) were black, and 14 (1%) were of other races. Capital Punishment in the Courts In Dugger v. Adams (decided February 28, 1989) the Supreme Court dealt with the question of defense counsel's failure, on direct appeal, to raise a concern under Florida law with the sentencing judge's inaccurate instructions to prospective jurors. The 1978 case arose as a result of the first-degree murder of an 8-year-old child. During jury selection the judge advised each prospective juror that the court and not the jury was responsible for sentencing and that the jury's recommendation for sentencing was merely advisory. Defense counsel did not object to these instructions, nor was the issue raised in subsequent State appellate proceedings, though such a claim could have been made based on State law. When Caldwell v. Mississippi was subsequently decided on June 11, 1985, concluding that a prosecutor's comments had misinformed a jury in a capital case about the role of appellate review, Adams filed a second appeal, under the eighth amendment, challenging the judge's instructions as having misinformed the jurors about their sentencing responsibilities. The Federal court held that the Caldwell claim was procedurally barred since it had not been raised in earlier appeals based on State law. The court of appeals, however, concluded that the legal basis had not been available at the time of direct appeal and found that the trial judge's instructions had violated the eighth amendment. The Supreme Court agreed with the district court and reversed the court of appeals, concluding that a procedural default barred review of the judge's instructions. Hildwin v. Florida (decided May 30, 1989) confronted the Supreme Court with the question of whether the sixth amendment's right to a jury trial extended to the specific determination and enumeration of aggravating factors. In this case, after a conviction for first-degree murder, a separate sentencing proceeding was held in which the advisory jury recommended a sentence of death. Under Florida law the court was required, in writing, to specify the findings (aggravating factors) leading to a sentence of death, but the same requirement was not imposed on advisory juries. The Supreme Court of Florida affirmed the death sentence and the four aggravating factors detailed by the trial judge, concluding that the sixth amendment did not require a specific advisory jury finding that sufficient aggravating circumstances existed to permit a death sentence. The High Court affirmed the Florida court rulings, noting that the sixth amendment did not guarantee a right to jury sentencing. The Supreme Court affirmed a reversal of a death sentence by the South Carolina Supreme Court in South Carolina v. Gathers (decided June 12, 1989). A prosecutor's closing arguments describing the personal qualities of the victim inferred from the victim's possession of a religious tract and voter registration card were found to be inappropriate and irrelevant to the circumstances of the crime. Murray v. Giarratano (decided June 23, 1989) involved a class action suit by Virginia's indigent death row inmates, asserting a constitutional right to counsel at the State's expense to pursue collateral post-conviction proceedings related to the convictions and sentences they had received. The Federal district court concluded that Virginia's provision of law libraries and "unit attorneys" was insufficient for the special needs of death row inmates for continuous assistance of counsel and meaningful access to the courts. This finding was affirmed by the court of appeals. A five-member majority of the Supreme Court reversed, concluding that neither the eighth amendment nor the due process clause required States to provide counsel for indigent death row inmates in post-conviction proceedings. The majority asserted that such proceedings are not a mandatory part of criminal justice, that there were adequate safeguards in the trial and appeal processes to assure fairness and reliability in conviction and sentencing, and that States should be given wide latitude in determining the nature of the legal assistance given in such proceedings. Penry v. Lynaugh (decided June 26, 1989) raised eighth amendment concerns related to instructions to a Texas jury on the consideration of mitigating evidence and of subjecting a mentally retarded offender to the death penalty. The defendant, who raped, beat, and stabbed a woman to death with a pair of scissors, was determined to be competent to stand trial though he was mentally retarded. A Texas jury found him sane and convicted him of capital murder. The sentencing jury was instructed to consider three special issues during the penalty phase: (1) whether the conduct was committed deliberately and with the reasonable expectation that death would result; (2) whether there was a probability that the offender would pose a continuing threat to society; and (3) whether the killing was unreasonable in response to any provocation by the victim. Defense counsel objected to the trial court's failure to define selected terms in these instructions and to indicate that mitigating circumstances, such as the defendant's mental retardation, should be considered. The jury voted yes on each of the three special issues, and the court imposed a death sentence. The death sentence was upheld by the Texas Court of Criminal Appeals, the Federal district court, and the court of appeals. The Supreme Court, however, concluded that (1) Texas juries must be given instructions, upon request, that allow them to give full consideration to mitigating evidence; (2) the instructions to the jury must indicate that the jury could consider the weight of the mitigating evidence, in this case the defendant's mental retardation and abused childhood, in determining the defendant's culpability for sentencing; and (3) the eighth amendment does not categorically prohibit the execution of capital murderers with the defendant's mental abilities since he had been found neither incompetent for trial nor insane. In Stanford v. Kentucky and Wilkins v. Missouri (both decided June 26, 1989) the High Court grappled with eighth amendment issues related to the age of capital defendants. In the Kentucky case the defendant was 17 years old at the time he robbed, raped, sodomized, and then murdered the victim. The Missouri case involved the robbery-murder of a conven- ience store owner, who was repeatedly stabbed after she begged for her life. The defendant was age 16 1/2 at the time of the crime. In both cases, juvenile court jurisdiction was waived, and the defendants were tried as adults. The Kentucky and Missouri appellate courts each affirmed the death sentences imposed after trial and sentencing, rejecting the claims of a right to treatment in the juvenile justice system and that execution of the offenders violated the eighth amendment. Petitions to the Supreme Court contended that the executions would be contrary to evolving standards of decency. The High Court affirmed the death sentences, concluding that (1) there was no common law tradition for prohibiting execution of those age 14 or older at the time of the capital crime and (2) there is no societal consensus or evolving community standard against the execution of those age 16 or 17 at the time of the offense because State laws authorize such executions and because there is no evidence that offenders of this age are less able to be deterred or less morally blameworthy than older offenders. In Powell v. Texas (decided July 3, 1989) the High Court considered whether information about future dangerousness, gathered during a psychiatric examination for competency to stand trial, could be subsequently entered as evidence at the penalty phase when the defendant had not been warned of his right to silence (fifth amendment) or counsel (sixth amendment) before the examination. The Supreme Court concluded that the State had violated the defendant's fifth and sixth amendment rights by not advising him that any self-incrimination during the psychiatric examination could be used against him at the sentencing stage and by failing to notify his counsel that the psychiatric examination would encompass questions of future dangerousness. Capital Punishment Laws At yearend 1989 the death penalty was authorized by the statutes of 36 States and by Federal statute. No jurisdiction's statutes were struck in whole or in part by State or Supreme Court decisions. No jurisdiction enacted new legislation authorizing the death penalty during the year. Statutory changes During 1989, 15 States revised statutory provisions relating to the death penalty. Six States added drug-related murders to the list of aggravating factors to be considered in the sentencing phase of a first- degree murder trial, and three States amended procedures to be used in the sentencing phase. By State, these statutory changes were as follows: Arkansas - added drug trafficking to the definitions of felony murder and revised language relating to multiple murders. Colorado - added use of an assault weapon to the list of aggravating factors. Illinois - added drug conspiracy, residential burglary, and having a preconceived plan as aggravating factors. Indiana - added drug trafficking; murders committed while in the custody of a sheriff or department of corrections employee or while on felony probation or parole; and battery, kidnaping and criminal confinement which resulted in the victim's death to the list of aggravating circumstances. Louisiana - added drug trafficking to the list of aggravating circumstances. Maryland - defined mentally retarded offenders and excluded them from receiving the death penalty. Missouri - provided a detailed description of how evidence is to be considered by judges and juries during the sentencing phase. Montana - added sexual assault of victims less than age 18 to the list of aggravating factors and enacted new descriptions of the procedures for selecting executioners and the handling of death warrants. Oklahoma - added new descriptions of the procedures to be used in first- degree murder sentencing proceedings and for consideration of evidence in sentencing proceedings after remand from an appeals court. Oregon - added a new jury instruction related to the consideration of mitigating circumstances and amended procedures to be used in the sentencing phase of an aggravated murder conviction after remand from an appeals court. Pennsylvania - added the murder of various public officials, drug activities, and victims less than age 12 to the list of aggravating factors. South Dakota - added drug offenses to the list of aggravating factors and changed the language relating to the agency responsible for conducting executions. Tennessee - replaced in their entirety the sections defining first- degree murder and the sentencing procedures to be used for first-degree murder. Virginia - added attempted robbery and attempted rape to the list of aggravating circumstances. Wyoming - added four additional aggravating factors (victims age 17 or younger or 65 or older, mentally or physically disabled victims, and selected felony murders) and revised the time permitted for automatic review. Method of Execution At yearend 1989 lethal injection (20 States) and electrocution (14 States) were the most common methods of execution authorized. Six States authorized lethal gas; three States, hanging; and two States, a firing squad. Nine States authorized more than one method - lethal injection and an alternative method - generally at the election of the condemned prisoner or based on the date of sentencing. Some States have stipulated an alternative to lethal injection, anticipating that it may be found unconstitutional. Each of the other four methods, previously challenged on eighth amendment grounds as cruel and unusual punishment, has been found to be constitutional. The method of execution for Federal offenders is that of the State in which the execution takes place. Automatic Review Of the 36 States with capital punishment statutes at yearend 1989, 34 provided for an automatic review of all death sentences. Arkansas and Ohio had no specific provisions for automatic review. The Federal death penalty statute, enacted in 1988, does not provide for automatic review after a sentence of death is imposed. While most of the 34 States authorized an automatic review of both the conviction and sentence, Idaho and Indiana require review of the sentence only. Typically the review is undertaken regardless of the defendant's wishes and is conducted by the State's highest appellate court. If either the conviction or the sentence is vacated, the case may be remanded to the trial court for additional proceedings or for retrial. It is possible that, as a result of retrial or resentencing, the death sentence may be reimposed. Minimum Age Nine States at the end of 1989 did not specify a minimum age at the time of the offense for which the death penalty may be imposed. In some States the minimum age is set forth in the statutory provisions that determine the age at which a juvenile may be transferred to criminal court for trial as an adult. Ten States and the Federal death penalty statute specify a minimum age of 18; the remaining States have indicated various ages of eligibility between 10 and 17. Prisoners Under Sentence of Death at Yearend 1989 A total of 34 States reported 2,250 prisoners under sentence of death on December 31, 1989, an increase of 133 or 6% over the count at the end of 1988. States with the largest number of prisoners under sentence of death were Texas (304), Florida (289), California (254), Illinois (115), and Pennsylvania (112). Although 36 States (covering 78% of the Nation's adult population) had statutes authorizing the death penalty, 2 of these reported no prisoners under sentence of death at yearend (New Hampshire and South Dakota). Of the 2,250 persons under sentence of death, 1,310 (58.2%) were in Southern States, 463 (20.6%) were in Western States, 345 (15.3%) were in States in the Midwest, and 132 (5.9%) were confined in the Northeastern States of Connecticut, New Jersey, and Pennsylvania. During the year the largest percentage increase in the number of prisoners under sentence of death occurred in Western States with 12.9% (an additional 53 offenders), followed by an increase of 6.5% (8 additional offenders) in the Northeast, an increase of 5.1% (64 additional offenders) in the South, and a 3.2% increase (8 additional offenders) over 1988 in the Midwest. Eight States reported a decline in the number of prisoners at the end of 1989, compared to a year earlier: Louisiana reported four fewer than in 1988; Indiana, Kentucky, Mississippi, and New Jersey each had three fewer; and Georgia, Nebraska, and New Mexico each reported one fewer. Nearly 99% (2,225) of those under a sentence of death were males, and the majority, 58.2% (1,310), were white. Blacks constituted 40.1% of those under sentence of death, and another 1.6% were American Indians (23) or Asian Americans (14). The race and sex of those under sentence of death at yearend 1989 were as follows: White Black Other Male 1,295 893 37 Female 15 10 0 The States reported a total of 156 Hispanics under a death sentence, 6.9% of the total. During the year, 21 Hispanics were received under sentence of death, 6 were removed from death row, and 2 were executed (1 each in Florida and Texas). The largest numbers of Hispanic prisoners under sentence of death on December 31, 1989, were in Texas (45), California (35), Florida (23), and Arizona (17). The median age of those under sentence of death was nearly 34 years. About 0.3% were under age 20, and 2.5% were 55 or older. The youngest offender under sentence of death was 18 years old (born July 1971); the oldest was 74 years old (born September 1915). About an equal percentage of the inmates under sentence of death, for whom information on education was available, had not gone beyond seventh grade (9.2%) or had attended some college (9.7%). The median level of education was 11th grade. Less than a third (29.1%) of the condemned inmates for whom data on marital status were available were married. Nearly half (45.6%) of those under sentence of death had never been married. The 25 women under sentence of death at yearend 1989 were held in 13 States (table 6). Alabama (5), Ohio (4), and Texas (3) held the largest numbers. Since 1977 one woman has been executed. Entries and Removals of Persons Under Sentence of Death During 1989, 27 State prison systems reported receiving prisoners under sentence of death. Florida reported the largest number (37), followed by California (30), Texas (29), and Alabama (20). Of the 251 prisoners received under sentence of death: - all were convicted of murder - 131 were white males, 109 were black males, 2 were American Indian males, 2 were Asian males, 2 were white females, and 5 were black females - 21 were Hispanics. Twenty States reported a total of 96 persons whose sentence of death was vacated or commuted or who were transferred to other jurisdictions. Florida (33), Illinois (8), Georgia (7), and Alabama (6) reported the largest numbers of such exits. Of the 96 persons whose death sentence was vacated, commuted, or removed during 1989: - 57 had their sentence vacated but their conviction upheld by a higher court - 34 had both their conviction and sentence vacated - 4 had their sentence commuted - 1 female inmate was removed from Indiana and transferred to Ohio under another death sentence. At yearend, 41 of the 96 were serving a reduced sentence (34 to life imprisonment, 6 to a sentence of more than 20 years, and 1 to a sentence of 20 years or less), 25 were awaiting a new trial, 22 were awaiting resentencing, 4 were released from prison as a result of commutation, and 1 was transferred to another State. The status of three cases was undetermined at the end of the year. In addition, 6 persons died while under sentence of death in 1989. Five of these deaths resulted from natural causes - one each in New Jersey, Illinois, Georgia, Kentucky, and California. One death was a suicide (Georgia). From 1977, the year after the Supreme Court reinstated the death penalty, through 1989, there were 3,326 admissions to State prisons under a sentence of death; 1,376 removals from a death sentence occurred over the same period as a result of appellate court decisions and higher court reviews, commutations, or death while under sentence; and 120 persons were executed. Among death-sentence admissions, 1,936 (58.2%) were white, 1,339 (40.3%) were black, and 51 (1.5%) were of other races. Among those removed from a death sentence other than by execution, 780 (56.7%) were white, 582 (42.3%) were black, and 14 (1.0%) were of other races. Of the 120 executed, 71 (59.2%) were white, and 49 (40.8%) were black. Criminal History of Inmates Under Sentence of Death in 1989 Among those under sentence of death at yearend 1989 for whom criminal- history information was available, 69% had a history of felony convictions. Among those for whom information on prior homicide convictions was available, 9.2% had a previous conviction for that crime. Among those for whom legal status at the time of the capital offense was reported, 41% had had an active criminal justice status: Half of these were on parole, while the rest had charges pending, were on probation, were prison inmates or escapees, or had some other criminal justice status. Excluding those with pending charges, more than 1 in 3 (34.5%) were already under sentence for another crime when the offense for which they were condemned occurred; in a number of States such status is considered an aggravating factor in capital sentencing. The criminal-history patterns were similar for whites and blacks, although higher percentages of blacks than whites had prior felony convictions, had prior homicide convictions, or were on parole at the time of the capital offense. Executions Since 1930, when data on executions were first collected by the Federal Government, 3,979 executions have been conducted under civil authority. (An additional 160 executions have been carried out under military authority since 1930.) Since the death penalty was reinstated by the Court in 1976, the States have executed 120 persons: 1977 - 1 1984 - 21 1979 - 2 1985 - 18 1981 - 1 1986 - 18 1982 - 2 1987 - 25 1983 - 5 1988 - 11 1989 - 16 A total of 13 States have carried out executions since 1977. During the period, 70 white males, 41 black males, and 1 white female have been executed. The largest numbers of executions occurred in Texas (33), Florida (21), Louisiana (18), and Georgia (14). In 1989 four executions were carried out in both Alabama and Texas, two each in Florida and Nevada, and one each in Georgia, Mississippi, Missouri, and Virginia. The execution in Missouri was the first by that State since 1965. Those executed in 1989 were all male, eight whites and eight blacks. Since 1977 a total of 3,746 offenders have been under a death sentence for varying lengths of time. There were 120 executions (3.2% of those at risk) and 1,376 removals (36.7% of those at risk) during this period. A slightly higher percentage of whites than blacks were executed (3.3% versus 3.2%), and blacks had a slightly higher removal rate by means other than execution (37.9% for blacks versus 36.1% for whites). For those executed since 1977, the average time between the imposition of the most recent sentence received and execution was 6 years and 7 months. For the 16 prisoners executed during 1989, the average time spent under a death sentence was 7 years and 11 months, about 1 year and 3 months longer than for those executed in 1988. Black prisoners executed in 1989 had spent an average of 9 years and 4 months awaiting execution; whites, 6 years and 6 months. The methods used for the 120 persons executed between 1977 and 1989 were: Executions, 1977-89 All races White Black Total 120 71 49 Lethal injection 42 32 10 Electrocution 72 36 36 Lethal gas 5 2 3 Firing squad 1 1 0 ----------------------------------------------------------------------- United States Bureau of Justice Statistics Bulletins are written principally by BJS staff. This Bulletin was written by Lawrence A. Greenfeld, corrections unit chief. Tom Hester edited this Bulletin. Marilyn Marbrook, publications unit chief, administered report production, assisted by Betty Sherman, Yvonne Boston, and Jayne Pugh. Data were collected and tabulated by Arlene Rasmussen and other staff of the U.S. Bureau of the Census under the supervision of Larry McGinn and Gertrude Odom. October 1990, NCJ-124545 The Assistant Attorney General, Office of Justice Programs, coordinates the activities of the following program offices and bureaus: Bureau of Justice Statistics, National Institute of Justice, Bureau of Justice Assistance, Office of Juvenile Justice and Delinquency Prevention, and Office for Victims of Crime