Death Penalty

Few issues in criminal justice are as controversial as the death penalty. For most people who support the death penalty, the execution of killers (and people who commit other horrible acts) makes sense. Death penalty supporters frequently state that executions do prevent those executed from committing heinous crimes again and that the example of executions probably prevents most people who might contemplate committing appalling crimes from doing so. In addition, many death penalty supporters simply believe that people who commit such crimes deserve to die—that they have earned their ignominious fate.

For opponents, the death penalty issue is about something else entirely. For many opponents, the level of death penalty support in the United States is a rough estimate of the level of maturity of the American people. The not-so-subtle implication is that a mature, civilized society would not employ the death penalty. Opponents maintain that perpetrators of horrible crimes can be dealt with effectively by other means and that it makes little sense to kill some people, however blameworthy they may be, to teach other people not to kill. These opponents argue that although the perpetrators of terrible crimes may deserve severe punishment, that punishment need not be execution. This entry provides a brief history of the penalty’s development in the United States.

Death Penalty Background

The first person executed in what is now the United States was Capt. George Kendall, a councilor for the Virginia colony. He was executed in 1608 for being a spy for Spain. The fact that he was executed was not particularly unusual, because the death penalty was just another one of the punishments brought to the New World by the early European settlers.

Since Kendall’s execution in 1608, more than 19,000 executions have been performed in what is now the United States under civil (as opposed to military) authority. This estimate does not include the approximately 10,000 people lynched in the 19th century. Nearly all of the people executed during the past four centuries in what is now the United States have been adult men; only about 3 percent have been women. Ninety percent of the women were executed under local as opposed to state authority, and the majority (87 percent) were executed prior to 1866. About 2 percent of the people executed have been juveniles—that is, individuals who committed their capital crimes prior to their 18th birthdays. Most of them (69 percent) were black and nearly 90 percent of their victims were white.

Key Events

It is important to understand that all of the significant changes in the practice of capital punishment in the United States—culminating in its complete abolition in some jurisdictions—are the result of abolitionist efforts. Those efforts created (1) degrees of murder, which distinguish between murders heinous enough to warrant death and those murders that do not; (2) a reduction in the number of offenses warranting the death penalty (except for the federal government and some states since 1994); (3) the hiding of executions from public view; and (4) a decreased number of annual executions. Although abolition of the death penalty has been their unremitting goal, abolitionists have been far more successful in reforming its practice.

Degrees of Murder

Because of the efforts of Pennsylvania Attorney General and later U.S. Attorney General William Bradford and Philadelphia physician and signer of the Declaration of Independence Benjamin Rush, both early death penalty abolitionists, Pennsylvania became the first state in legal proceedings to consider degrees of murder based on culpability. Before this change, the death penalty was mandated for anyone convicted of murder (and many other crimes) regardless of circumstance. Neither Bradford nor Rush believed that capital punishment deterred crime, citing the example of horse stealing, which at the time was a capital offense in Virginia and the most frequently committed crime in the state. Because of the severity of the penalty, convictions for the crime were hard to obtain.

Limiting Death-Eligible Crimes

Pressure from abolitionists also caused Pennsylvania in 1794 to repeal the death penalty for all crimes except first-degree murder. Between 1794 and 1798, Virginia and Kentucky joined Pennsylvania in abolishing the death penalty for all crimes except first-degree murder; New York and New Jersey abolished the penalty for all crimes except murder and treason. Virginia and Kentucky, both slave states, confined the reforms to free people; slaves in those states were still subject to a long list of capital crimes. When New Jersey, Virginia, and Kentucky severely restricted the scope of capital punishment, they also appropriated funds for the construction of their first prisons; Pennsylvania and New York had established prisons earlier. Still, a half-century would pass before the first state abandoned capital punishment entirely.

Hiding Executions from the Public

Between 1800 and 1850, U.S. death penalty abolitionists helped change public sentiment about public executions, especially among many northern social elites. In 1800, public hangings were mostly solemn events regularly attended by members of all social classes and touted as having important educational value. But by midcentury, members of the upper classes were staying away from them because in their minds they had become tasteless, shocking, rowdy, sometimes dangerous, carnival-like spectacles. This view, however, may have been more a matter of perception than reality, as eyewitness accounts suggest that decorum at public executions had not changed that much. In any event, the elite began to view those who attended executions as contemptible rabble out for a good time and concluded that any educational value public hangings once had was being lost on the less respectable crowd.

Another problem with public hangings during this period was that attendees were increasingly sympathizing with the condemned prisoners, weakening the position of the state. Indeed, some of those who met their fate on the gallows became folk heroes. Increasing acceptance of the belief that public executions were counterproductive because of the violence they caused was yet another change. Stories were circulated about the violent crimes being committed just before or after a pubic hanging by attendees of the event.

For these reasons, Connecticut, in 1830, became the first state to ban public executions. Pennsylvania became the second state to do so in 1834. In both states, only a few authorized officials and the relatives of the condemned were allowed to attend. By 1836, New York, New Jersey, Massachusetts, Rhode Island, and New Hampshire had enacted similar policies. By 1860, all northern states and Delaware and Georgia in the South had shifted the site of executions from the public square to an enclosed jail yard controlled by the sheriff and deputies. By 1890, some states had moved executions to inside the jail or a prison building. The last public execution was held in Galena, Missouri, in 1937.

From Mandatory to Discretionary Capital Punishment Statutes

In 1837, Tennessee became the first state to enact a discretionary death penalty statute for murder; Alabama did the same four years later, followed by Louisiana five years after that. All states before then employed mandatory death penalty statutes that required anyone convicted of a designated capital crime to be sentenced to death. The reason for the change, at least at first and in the South, undoubtedly was to allow all-white juries to take race into account in deciding whether death was the appropriate penalty in a particular case. Between the Civil War and the end of the 19th century, at least 20 additional jurisdictions changed their death penalty laws from mandatory to discretionary ones. Illinois was the first northern state to do so in 1867; New York was the last state to make the change in 1963. The reason most northern states switched from mandatory to discretionary death penalty statutes, and another reason for southern states to do so, was to prevent jury nullification, which was becoming an increasing problem. “Jury nullification” refers to a jury’s knowing and deliberate refusal to apply the law because, in the given case, a mandatory death sentence was considered contrary to the jury’s sense of justice, morality, or fairness.

From Local to State-Authorized Executions

A major change took place in the legal jurisdiction of executions during the time of the Civil War. Before the war, all executions were conducted locally—generally in the jurisdiction in which the crime was committed. But on January 20, 1864, Sandy Kavanagh was executed at the Vermont State Prison. He was the first person executed under state as opposed to local authority. This shift in jurisdiction was not immediately adopted by other states. After Kavanagh, there were only about two state- or federally authorized executions per year well into the 1890s; the rest were locally authorized. That pattern would shift dramatically during the next 30 years. In the 1890s, about 90 percent of executions were imposed under local authority, but by the 1920s, about 90 percent were imposed under state authority. Today, all executions except those conducted in Delaware and Montana and by the federal government and the military are imposed under state authority.

States Abolish the Death Penalty

In 1846, the state of Michigan abolished the death penalty for all crimes except treason and replaced it with life imprisonment. The law took effect the next year, making Michigan, for all intents and purposes, the first English-speaking jurisdiction in the world to abolish capital punishment. The first state to outlaw the death penalty for all crimes, including treason, was Rhode Island in 1852; Wisconsin was the second state to do so a year later. Not until well after the Civil War did Iowa (in 1872) and Maine (in 1876) become the next states to abolish the death penalty. Legislatures in both states reversed themselves, however, and reinstated the death penalty in 1878 in Iowa and in 1883 in Maine. Maine reversed itself again in 1887 and abolished capital punishment and, to date, has not reinstated it. Colorado abandoned capital punishment in 1897 but restored it in 1901.

During the first two decades of the 20th century, six states outlawed capital punishment entirely (Kansas, 1907; Minnesota, 1911; Washington, 1913; Oregon, 1914; South Dakota, 1915; Missouri, 1917) and three states (Tennessee, 1915; North Dakota, 1915; Arizona, 1916) limited the death penalty to only a few rarely committed crimes, such as treason or the first-degree murder of a law enforcement official or prison employee. Tennessee also retained capital punishment for rape. In addition, 17 other states nearly abolished the death penalty or at least seriously considered abolition, some of them several times. The momentum, however, failed to last. By 1920, five of the states that had abolished the death penalty earlier had reinstated it (Arizona, 1918; Missouri, 1919; Tennessee, 1919; Washington, 1919; Oregon, 1920). No state abolished the death penalty between 1918 and 1957. In contrast, after World War II, most of the advanced western European countries abolished the death penalty or severely restricted its use.

Legal Decisions by the U.S. Supreme Court

Furman v. Georgia

On January 17, 1972, Furman’s lawyers argued to the Supreme Court that unfettered jury discretion in imposing death for murder resulted in arbitrary or capricious sentencing in violation of their client’s Fourteenth Amendment right to due process and his Eighth Amendment right not to be subjected to cruel and unusual punishment. Furman’s challenge proved successful and, on June 29, 1972, the U.S. Supreme Court set aside death sentences for the first time in its history. In its decision in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (all three cases were consolidated and are referred to here as the Furman decision), the Court held that the capital punishment statutes in the three cases were unconstitutional because they gave the jury complete discretion to decide whether to impose the death penalty or a lesser punishment in capital cases. The majority of five justices pointed out that the death penalty had been imposed arbitrarily, infrequently, and often selectively against minorities. A practical effect of Furman was the Supreme Court’s voiding of 40 death penalty statutes and the sentences of more than 600 death row inmates in 32 states. Depending on the state, the death row inmates received new sentences of life imprisonment, a term of years, or, in a few cases, new trials.

It is important to note that the Court did not declare the death penalty itself unconstitutional. It held as unconstitutional only the statutes under which the death penalty was then being administered. The Court implied that if the process of applying the death penalty could be changed to eliminate the problems cited in Furman, then it would pass constitutional muster.

The backlash against Furman was immediate and widespread. Many people, including those who had never given the death penalty issue much thought, were incensed at what they perceived as the Supreme Court’s arrogance in ignoring the will of the majority and its elected representatives. They clamored to have the penalty restored. Obliging their constituents, the elected representatives of 36 states proceeded to adopt new death penalty statutes designed to meet the Court’s objections. The new death penalty laws took two forms. Twenty-two states removed all discretion from the process by mandating capital punishment upon conviction for certain crimes (mandatory death penalty statutes). Other states provided specific guidelines that judges and juries were to use in deciding if death were the appropriate sentence in a particular case (guided discretion death penalty statutes).

Woodson v. North Carolina and Gregg v. Georgia

The constitutionality of the new death penalty statutes was quickly challenged, and on July 2, 1976, the Supreme Court announced its rulings in five test cases. In Woodson v. North Carolina and Roberts v. Louisiana, the Court voted 4–5 to reject mandatory statutes that automatically imposed death sentences for defined capital crimes. Justice Potter Stewart provided the Court’s rationale. First, Stewart admitted that “it is capricious to treat similar things differently” and that mandatory death penalty statutes eliminated that problem. He added, however, that it also “is capricious to treat two different things the same way.” Therefore, to impose the same penalty on all convicted murderers, even though all defendants are different, is just as capricious as imposing a penalty randomly. To alleviate the problem, then, some sentencing guidelines were necessary. Th us, in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida (hereafter referred to as the Gregg decision), the Court voted 7–2 to approve guided discretion statutes that set standards for juries and judges to use in deciding whether to impose the death penalty. The Court’s majority concluded that the guided discretion statutes struck a reasonable balance between giving the jury some direction and allowing it to consider the defendant’s background and character and the circumstances of the crime.

It is noteworthy that the Court approved the guided discretion statutes on faith, assuming that the new statutes and their procedural reforms would rid the death penalty’s administration of the problems cited in Furman. Because guided discretion statutes, automatic appellate review, and proportionality review had never been required or employed before in death penalty cases, the Court could not have known whether they would make a difference. Now, more than 30 years later, it is possible to evaluate the results. A large body of evidence indicates that the reforms have had negligible effects.

Coker v. Georgia and Eberheart v. Georgia

The Supreme Court has repeatedly emphasized that the death penalty should be reserved for the most heinous crimes. In two cases decided in 1977, the Court, for all intents and purposes, limited the death penalty to aggravated or capital murders only. Aggravated or capital murders are murders committed with an aggravating circumstance or circumstances. Aggravating circumstances (or factors) or special circumstances, as they are called in some jurisdictions, refer “to the particularly serious features of a case, for example, evidence of extensive premeditation and planning by the defendant, or torture of the victim by the defendant.” At least one aggravating circumstance must be proven beyond a reasonable doubt before a death sentence can be imposed. (To date, all post-Furman executions have been for aggravated murder.) The Court ruled in Coker v. Georgia that the death penalty is not warranted for the crime of rape of an adult woman in cases in which the victim is not killed. Likewise, in Eberheart v. Georgia, the Court held that the death penalty is not warranted for the crime of kidnapping in cases in which the victim is not killed. Traditionally, both rape and kidnapping have been capital crimes regardless of whether the victim died.

Lockett v. Ohio and Bell v. Ohio

One of the changes to death penalty statutes approved by the Court in Gregg was the requirement that sentencing authorities (either juries or judges) consider mitigating circumstances before determining the sentence. Mitigating circumstances (or factors), or extenuating circumstances, refer “to features of a case that explain or particularly justify the defendant’s behavior, even though they do not provide a defense to the crime of murder” (e.g., youth, immaturity, or being under the influence of another person). The requirement that mitigating circumstances must be considered has been the subject of several challenges. The first test was in 1978 in the cases of Lockett v. Ohio and Bell v. Ohio. In those cases, one of the issues was whether defense attorneys could present only mitigating circumstances that were listed in the death penalty statute. The Court held that trial courts must consider any mitigating circumstances that a defense attorney presents, not just those listed in the statute. The only qualification to this requirement is that the mitigating circumstance must be supported by evidence.

Pulley v. Harris

In Pulley v. Harris (1984), the Court decided that there was no constitutional obligation for state appellate courts to provide, upon request, proportionality review of death sentences. Since Pulley, many states have eliminated the proportionality review requirement from their statutes, whereas other states simply no longer conduct the reviews.

Lockhart v. McCree

In Lockhart v. McCree (1986), the Court ruled that prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial may be removed for cause. Stated differently, as long as jurors can perform their duties as required by law, they may not be removed for cause because they are generally opposed to the death penalty. To date, Lockhart v. McCree is the latest modification to the Court’s earlier Witherspoon decision. In Witherspoon v. Illinois (1968), the Court rejected the common practice of excusing prospective jurors simply because they were opposed to capital punishment. The Court held that prospective jurors could be excused only for cause. That is, jurors could be excused only if they would automatically vote against imposition of the death penalty, regardless of the evidence presented at trial, or if their attitudes toward capital punishment prevented them from making an impartial decision on the defendant’s guilt.

McCleskey v. Kemp

The most sweeping challenge to the constitutionality of the new death penalty statutes was McCleskey v. Kemp (1987), wherein the Court considered evidence of racial discrimination in the application of Georgia’s death penalty statute. Recall that in the Furman decision, racial discrimination was cited as one of the problems with the pre- Furman statutes. The most compelling evidence was the results of an elaborate statistical analysis of post-Furman death penalty cases in Georgia. That analysis showed that Georgia’s new statute produced a pattern of racial discrimination based on both the race of the offender and the race of the victim. In McCleskey, the Court opined that evidence such as the statistical analysis—which showed a pattern of racial discrimination—is not enough to render the death penalty unconstitutional. By a vote of five to four, it held that state death penalty statutes are constitutional even when statistics indicate they have been applied in racially biased ways. The Court ruled that racial discrimination must be shown in individual cases—something McCleskey did not show in his case. For death penalty opponents, the McCleskey case represented the best, and perhaps last, chance of having the Supreme Court again declare the death penalty unconstitutional.

Atkins v. Virginia

In Atkins v. Virginia (2002), the Court ruled that it is cruel and unusual punishment to execute the mentally retarded. A problem with the Atkins decision is that the Court did not set a standard for what constitutes mental retardation. That issue was left to the states to decide. Texas became the first to test the law when it pursued, successfully, the execution (in 2009) of Bobby Wayne Woods, a convicted murderer, who had an IQ of between 68 and 86.

Roper v. Simmons

In Roper v. Simmons (2005), the Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were under the age of 18 at the time their crimes were committed.

Baze v. Rees

In this case (2008) the Court ruled that execution by lethal injection did not constitute “cruel and unusual punishment” and therefore was acceptable under the U.S. Constitution.

Conclusion

Globally, the death penalty is trending toward abolition. As of this writing, more than half of the countries in the world—104 of them—have abolished the death penalty in law or practice. All of the major U.S. allies except Japan have abolished the death penalty. On the other hand, only 58 countries and territories have retained the death penalty and continue to apply it; 35 other countries retain it on paper but have not applied it in a decade or more.

In the United States, 14 jurisdictions do not have a death penalty, and among the 39 jurisdictions that do have one, only a handful use it more than occasionally and almost all of them are located geographically in the South. More than 70 percent of all post- Furman executions have occurred in the South. Still, executions are more concentrated than the 70 percent figure suggests. Five states—Texas, Virginia, Oklahoma, Missouri, and Florida—account for 65 percent of all post-Furman executions; three states—Texas, Virginia, and Oklahoma—account for 53 percent of them; Texas and Virginia account for 45 percent of them; and Texas alone accounts for 36 percent of them. Thus the death penalty today is a criminal sanction that is used more than occasionally in only a few nonwestern countries, a few states in the U.S. South, and two U.S. border states. This is an important point because it raises the question of why those death penalty—or more precisely, executing—jurisdictions in the world need the death penalty, whereas all other jurisdictions in the world—the vast majority—do not.

In the states noted previously, the death penalty has proved stubbornly resilient and will probably remain a legal sanction for the foreseeable future. One reason is that death penalty support among the U.S. public, at least according to the major opinion polls, remains relatively strong. According to a 2009 Gallup poll, for example, 65 percent of adult Americans favored the death penalty for persons convicted of murder, 31 percent opposed it, and 5 percent did not know or refused to respond (Gallup 2010). It is unlikely that the practice of capital punishment could be sustained if a majority of U.S. citizens were to oppose it. However, in no year for which polls are available has a majority of Americans opposed the death penalty (the first national death penalty opinion poll was conducted in December 1936).

The abiding faith of death penalty proponents in the ability of legislatures and courts to fix any problems with the administration of capital punishment is another reason for its continued use in some places. However, the three-decade record of fi ne-tuning the death penalty process remains ongoing. Legislatures and courts are having a difficult time “getting it right,” despite spending inordinate amounts of their resources trying.

Many people support capital punishment even though they are ignorant of the subject. It is assumed by abolitionists that if people were educated about capital punishment, most would oppose it. Unfortunately, research suggests that educating the public about the death penalty may not have the effect the abolitionists desire. Although information about the death penalty can reduce support for the sanction—sometimes significantly— rarely is the support reduced to less than a majority, and the reduction in support may be only temporary.

Two major factors seem to sustain death penalty support in the United States: (1) the desire for vindictive revenge and (2) the symbolic value it has for politicians and law enforcement officials. According to Gallup, 50 percent of all respondents who favored the death penalty provided retributive reasons for their support: 37 percent replied “An eye for an eye/They took a life/Fits the crime,” and another 13 percent volunteered “They deserve it.” The reasons offered by the next largest group of death penalty proponents (by only 11 percent each) were “Save taxpayers money/Cost associated with prison” and “Deterrent for potential crimes/Set an example.” No other reasons were given by more than 10 percent of the death penalty proponents (Gallup 2010).

The choice of “An eye for an eye” has been called vindictive revenge because of its strong emotional component. Research shows that the public supports the death penalty primarily for vindictive revenge. Those who responded “An eye for any eye” want to repay the offender in kind for what he or she has done. Research also shows that people who support the death penalty for vindictive revenge are generally resistant to reasoned persuasion. That is, they are less likely to change their position on the death penalty when confronted with compelling evidence that contradicts their beliefs.

Politicians continue to use support for the death penalty as a symbol of their toughness on crime. Politicians who oppose capital punishment are invariably considered soft on crime. Criminal justice officials and much of the public often equate support for capital punishment with support for law enforcement in general. It is ironic that although capital punishment has virtually no effect on crime, the death penalty continues to be a favored political silver bullet—a simplistic solution to the crime problem used by aspiring politicians and law enforcement officials. In sum, although the global trend is toward abolishing the death penalty, pockets of resistance in the United States remain and will be difficult to change.

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Bibliography:

  1. Acker, James R., Robert M. Bohm, and Charles S. Lanier, eds., America’s Experiment with Capital Punishment: Refl ections on the Past, Present and Future of the Ultimate Penal Sanction, 2d ed. Durham, NC: Carolina Academic Press, 2003.
  2. Bakken, Gordon Morris, Invitation to an Execution: A History of the Death Penalty in the United States. Albuquerque: University of New Mexico Press, 2010.
  3. Banner, Stuart, The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.
  4. Bedau, Hugo, and Paul Cassell, eds., Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford University Press, 2004.
  5. Bohm, Robert M., Deathquest III: An Introduction to the Theory and Practice of Capital Punishment in the United States, 3d ed. Cincinnati, OH: Anderson, 2007.
  6. Gallup, “Death Penalty.” 2010. http://www.gallup.com/poll/1606/death-penalty.aspx
  7. Haney, Craig, Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press, 2005.
  8. Sundby, Scott E., A Life and Death Decision: A Jury Weighs the Death Penalty. New York: Palgrave Macmillan, 2007.
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