The History of the Death Penalty

  Britain influenced America 's use of the death penalty more than any other country. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain . In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians. 

Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father, or denying the "true God," were punishable by death.

Colonial Times

The abolitionist movement finds its roots in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria's 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany .

American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia 's death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.

Also influenced was Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society. Rush challenged the belief that the death penalty serves as a deterrent. In fact, Rush was an early believer in the "brutalization effect." He held that having a death penalty actually increased criminal conduct. Rush gained the support of Benjamin Franklin and Philadelphia Attorney General William Bradford. Bradford, who would later become the U.S. Attorney General, led Pennsylvania to become the first state to consider degrees of murder based on culpability. In 1794, Pennsylvania repealed the death penalty for all offenses except first degree murder.

Nineteenth Century

In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the northeast. In the early part of the century, many states reduced the number of their capital crimes and built state penitentiaries.In 1834, Pennsylvania became the first state to move executions away from the public eye and carrying them out in correctional facilities. 

In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela , Portugal , Netherlands , Costa Rica , Brazil and Ecuador follow suit.

Although some U.S. states began abolishing the death penalty, most states held onto capital punishment. Some states made more crimes capital offenses, especially for offenses committed by slaves. In 1838, in an effort to make the death penalty more palatable to the public, some states began passing laws against mandatory death sentencing instead enacting discretionary death penalty statutes. The 1838 enactment of discretionary death penalty statutes in Tennessee , and later in Alabama , were seen as a great reform. This introduction of sentencing discretion in the capital process was perceived as a victory for abolitionists because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws had been abolished by 1963.

During the Civil War, opposition to the death penalty waned, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. The electric chair was introduced at the end of the century. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted this execution method.

Early and Mid-Twentieth Century

Although some states abolished the death penalty in the mid-Nineteenth Century, it was actually the first half of the Twentieth Century that marked the beginning of the "Progressive Period" of reform in the United States . From 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official. However, this reform was short-lived. There was a frenzied atmosphere in the U.S. , as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. As a result, five of the six abolitionist states reinstated their death penalty by 1920.

In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas chamber was constructed. (Bohm, 1999)

From the 1920s to the 1940s, there was a resurgence in the use of the death penalty. This was due, in part, to the writings of criminologists, who argued that the death penalty was a necessary social measure. In the United States , Americans were suffering through Prohibition and the Great Depression. There were more executions in the 1930s than in any other decade in American history, an average of 167 per year.

In the 1950s, public sentiment began to turn away from capital punishment. Many allied nations either abolished or limited the death penalty, and in the U.S. , the number of executions dropped dramatically. Whereas there were 1,289 executions in the 1940s, there were 715 in the 1950s, and the number fell even further, to only 191, from 1960 to 1976. In 1966, support for capital punishment reached an all-time low. A Gallup poll showed support for the death penalty at only 42%.

Challenging the Death Penalty

The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a "cruel and unusual" punishment, and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court had decided in 
Trop v. Dulles (356 U.S. 86), that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop was not a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States had, in fact, progressed to a point that its "standard of decency" should no longer tolerate the death penalty.

In the late 1960s, the Supreme Court began "fine tuning" the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence. 

The other 1968 case was Witherspoon v. Illinois (391 U.S. 510). In this case, the Supreme Court held that a potential juror's mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that the juror's attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment. 

In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was "beyond present human ability." 

Suspending the Death Penalty

The issue of arbitrariness of the death penalty was again be brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U.S. 238)). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty. 

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia 's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid. 

Reinstating the Death Penalty

Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall holding in Furman was that the specific death penalty statutes were unconstitutional. With that holding, the Court essentially opened the door to states to rewrite their death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness in capital sentencing. The states were led by Florida , which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina (428 U.S. 280 (1976)). 

Other states sought to limit that discretion by providing sentencing guidelines for the judge and jury when deciding whether to impose death. The guidelines allowed for the introduction of aggravating and mitigating factors in determining sentencing. These guided discretion statutes were approved in 1976 by the Supreme Court in Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida , Georgia , and Texas were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time. Another reform was the practice of automatic appellate review of convictions and sentence. The final procedural reform from Gregg was proportionality review, a practice that helps the state to identify and eliminate sentencing disparities. Through this process, the state appellate court can compare the sentence in the case being reviewed with other cases within the state, to see if it is disproportionate. 

Because these reforms were accepted by the Supreme Court, some states wishing to reinstate the death penalty included them in their new death penalty statutes. The Court, however, did not require that each of the reforms be present in the new statutes. Therefore, some of the resulting new statutes include variations on the procedural reforms found in Gregg.

The ten-year moratorium on executions that had begun with the Jackson and Witherspoon decisions ended on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah . Gilmore did not challenge his death sentence. That same year, Oklahoma became the first state to adopt lethal injection as a means of execution, though it would be five more years until Charles Brooks became the first person executed by lethal injection in Texas on December 7, 1982. 

Limitations within the United States

Despite growing European abolition, the U.S. retained the death penalty, but established limitations on capital punishment. 

In 1977, the United States Supreme Court held in Coker v. Georgia (433 U.S. 584) that the death penalty is an unconstitutional punishment for the rape of an adult woman when the victim was not killed. Other limits to the death penalty followed in the next decade. 

  Mental Illness and Mental Retardation 
In 1986, the Supreme Court banned the execution of insane persons and required an adversarial process for determining mental competency in Ford v. Wainwright (477 U.S. 399).  In Penry v. Lynaugh (492 U.S. 584 (1989)), the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment.  However, in 2002 in Atkins v. Virginia, (536 U.S. 304), the Court held that a national consensus had evolved against the execution of the mentally retarded and concluded that such a punishment violates the Eighth Amendment's ban on crual and unusual punishment.

 

  Race
Race became the focus of the criminal justice debate when the Supreme Court held in Batson v. Kentucky (476 U.S. 79 (1986)) that a prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for the strikes.

Race was again in the forefront when the Supreme Court decided the 1987 case, McCleskey v. Kemp (481 U.S. 279). McCleskey argued that there was racial discrimination in the application of Georgia 's death penalty, by presenting a statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The Supreme Court held, however, that racial disparities would not be recognized as a constitutional violation of "equal protection of the law" unless intentional racial discrimination against the defendant could be shown. 

  Juveniles
In the late 1980s, the Supreme Court decided three cases regarding the constitutionality of executing juvenile offenders. In 1988, in Thompson v. Oklahoma (487 U.S. 815), four Justices held that the execution of offenders aged fifteen and younger at the time of their crimes was unconstitutional. The fifth vote was Justice O'Connor's concurrence, which restricted Thompson only to states without a specific minimum age limit in their death penalty statute. The combined effect of the opinions by the four Justices and Justice O'Connor in Thompson is that no state without a minimum age in its death penalty statute can execute someone who was under sixteen at the time of the crime.

The following year, the Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen. (Stanford v. Kentucky, and Wilkins v. Missouri (collectively, 492 U.S. 361)). At present, 19 states with the death penalty bar the execution of anyone under 18 at the time of his or her crime.

In 1992, the United States ratified the International Covenant on Civil and Political Rights. Article 6(5) of this international human rights doctrine requires that the death penalty not be used on those who committed their crimes when they were below the age of 18. However, in doing so but the U.S. reserved the right to execute juvenile offenders. The United States is the only country with an outstanding reservation to this Article. International reaction has been highly critical of this reservation, and ten countries have filed formal objections to the U.S. reservation.

In the fall of 2004, in Roper v. Simmons, the United States Supreme Court will revisit its decision in Stanford and may declare the practice of executing defendants whose crimes were committed as juveniles unconstitutional.