America’s not-so-popular Death Sentence

America’s not-so-popular Death Sentence

States and public opinion are moving in the direction of disfavoring the death penalty. The death penalty is, however, not unconstitutional, nor "unusual."

U.S. execution via electric chair, circa 1890. (Image via Wikipedia)

WASHINGTON, October 4, 2015 − Pope Francis lobbied to spare the life of Kelly Gissendaner, who was executed in Georgia early Wednesday morning. She planned the murder of her husband. The actual killer, Greg Owen, did not receive the death penalty, but a life sentence, following a plea agreement where he testified against Gissendaner.

The pope wrote a letter to the Georgia Board of Pardons and Paroles asking that Gissendaner’s sentence be commuted to one that would better express both justice and mercy. He has previously commented that the death penalty should never be used, “no matter how serious the crime committed.”

More than 90,000 people signed a petition urging Georgia Gov. Nathan Deal to halt the execution, claiming that Gissendaner had turned her life around in prison. Gissendaner had become a pastoral presence for many and a “prevention program” teacher for students.

Georgia is one of 31 states that have death penalty laws. Support for this punishment has declined. The number of states that had death penalty laws six years ago was 35.

Worldwide, only 37 countries that are UN members or have UN observer status (total 196) have the death penalty. The United States is one these countries.

Recent polls in the United States consistently show a decline in Americans’ favor for the death penalty.

Quinnipiac: Less Support for Death Penalty, Except Terrorism

Pew Research Center: National Polls Show Historic Declines in Support

Galllup: Death Penalty Support Remains Near 40-Year-Low

ABC News/Washington Post: Majority Support Life in Prison

CNN: Number Who Prefer Death Penalty on Decline

Public Policy Polling: Americans Oppose Executing Mentally Ill By 2-1 Margin

The Death Penalty Information Center says that 42 percent of Americans now favor the death penalty while 58 percent favor a punishment of life in prison for murders.

But for terrorism, 58 percent are in favor of death while only 36 percent favor life in prison. Specifically in the case of Dzhokhar Tsarnaev, the man convicted of the Boston Marathon bombing, the death sentence was approved by 62 percent with only 35 percent favoring life in prison.

Paula Cooper in 1985 murdered an elderly Bible teacher in Indiana. With three other girls, she knocked on the door of Ruth Pelke’s house, pretending to be interested in Scripture lessons. Cooper stabbed the 78-year-old widow 33 times with a 12-inch knife. Cooper pled guilty and was put on death row at the tender age of 16. At Cooper’s sentencing, a great deal of evidence was provided about her turbulent upbringing, and a psychologist offered “evidence of a major personality disorder.” The judge, while sentencing Cooper, also noted her traumatic childhood, but said the law gave him no choice. Cooper became one of the youngest juveniles in America on death row.

Cooper’s execution was vacated in 1989. The law on juvenile death sentences had changed, so Cooper’s life was spared, and she was given a 60-year sentence.

After “credits,” Cooper was released in 2013. She learned “a world” of new things, including how to use a cell phone, how to manage a household and how to write a check. She got a good job and was respected by co-workers and others, including her victim’s grandson. She got engaged.

This past May, Cooper took her own life. She was riddled with guilt and shame.

In her note to her fiancé, she wrote: “I said my prayer and asked God if it were OK and he said yes, he is mad, but understands. I can’t stay with this misery inside I fight every day, this voice that tells me I’ll never be happy.”

She also left a taped message: “I must have peace, peace of mind, peace in my heart… I don’t want people crying and having a lot of regrets feeling they could have did more,” she said. “There was nothing more anybody could do. It’s time.”

Cooper’s sister said Cooper thought about what she did constantly and that the crime weighed on her.

The debate about the death penalty provides many reasons for it to be forbidden. It does not deter. From racial skew to questions of true guilt to flawed and arguably “inhumane” administration, arguments against the death penalty are powerful and convincing.

Nonetheless, gut-reaction to horrific murders, multiple murders, mass murders and terrorism murders is often that the murderer “deserves to die.”

Despite the trend, despite the pope, and despite all arguments to the contrary, in fact there is nothing unconstitutional about the death penalty. The Fifth Amendment as ratified in 1791 provides for taking life, liberty or property if there was “due process of law.”  Whether “due process” happened does not address the existence of the law, but does provide argument about changing the law if it cannot, or routinely cannot, happen. The Eighth Amendment, also ratified in 1791, says that “cruel and unusual punishments” may not be inflicted.

United States Supreme Court Chief Justice John Roberts wrote in 2008, in the case of Baze v. Rees: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”

The death penalty may be cruel, but in the legal sense, it is not “unusual.” With 31 states carrying the punishment, it cannot be said that the punishment is unusual. Unusual means something that is markedly different than the norm. The abandonment of the death penalty by states, and public opinion polls show movement that someday might allow the use of the term “unusual,” but there is a long way to go before the term can be adequately applied.

There is no “high principle” that people may not be put to death. In war, by way of example, tens of thousands of people are killed and perhaps even more innocent people’s lives are risked.

Charles Krauthammer in his book “Things That Matter” argues that the death penalty is not “unjust.” He says “justice” is the most powerful argument in favor of the death penalty. He says that it is hard to think of any penalty other than death that would restore the moral order that was so brutally violated.

Krauthammer says that he is opposed to capital punishment because it violates the mark of civilization. “It is a mark of civilization to maintain order at the lowest possible level of official violence… even political correctness would admit that the less a society has recourse to official violence the more civilized it is… each (violence) abolition represents an advance of civilization… abolition of the death penalty represents a further advance.”

Paula Cooper’s conscience registered a vote in this debate.


Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website:

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