The History of the Death Penalty
The History of the Death
'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
Jamestown colony of
in 1608. Kendall was executed for being a spy for
. 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.
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
American intellectuals as well were influenced by Beccaria. The first attempted
reforms of the death penalty in the
U.S. occurred when Thomas
a bill to revise
'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
to become the first state to consider degrees of murder based on culpability. In
repealed the death penalty for all offenses except first degree murder.
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,
became the first state to move executions away from the public eye and carrying
them out in correctional facilities.
became the first state to abolish the death penalty for all crimes except
Rhode Island and
abolished the death penalty for all crimes. By the end of the century, the world
would see the countries of
Costa Rica ,
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
, 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
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
. 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
, as citizens began to panic about the threat of revolution in the wake of the
Russian Revolution. In addition, the
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.
1924, the use of cyanide gas was introduced, as
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.
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
, 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.
the 1950s, public sentiment began to turn away from capital punishment. Many
allied nations either abolished or limited the death penalty, and in the
, 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
poll showed support for the death penalty at only 42%.
Challenging the Death
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
Trop v. Dulles
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
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.
1968 case was Witherspoon v. Illinois (391
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
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
'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
, 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
U.S. 262), and Proffitt v.
242), collectively referred to as the Gregg decision. This landmark
decision held that the new death penalty statutes in
Georgia , and
were constitutional, thus reinstating the death penalty in those states. The
Court also held that the death penalty itself was constitutional under the
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
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
. 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
on December 7, 1982.
Limitations within the
Despite growing European abolition, the
retained the death penalty, but established limitations on capital punishment.
In 1977, the United States Supreme Court held in Coker v. Georgia (433
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
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
279). McCleskey argued that there was racial discrimination in the application
'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.
In the late 1980s, the Supreme Court decided three
cases regarding the constitutionality of executing juvenile offenders. In 1988,
in Thompson v. Oklahoma (487
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
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
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
reserved the right to execute juvenile offenders. The
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
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.
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