The History of Capital Punishment in America

By CTU Faculty

We’re celebrating the 225th birthday of the U.S. Constitution with a week-long blog series covering topics related to American freedom and democracy. In our third post, Richard Holloway, J.D., discusses the history of capital punishment in America.

CTU Criminal Justice Degree - Death PenaltyCapital punishment continues to be one of the most contentious debates in criminal justice today. Opinions on the subject are often passion-fueled and in some cases quite personal. As a result, the argument over the constitutionality of ending one’s life for the crimes they’ve committed will continue to well into the future. To fully understand the current state of capital punishment in the United States it helps to start at the very beginning. 

Early Capital Punishment
According to the Death Penalty Information Center, Captain George Kendall was the first person to be executed on American soil in 1608 for being a spy for Spain.  At that time, the death penalty was used for a number of crimes, including trading with Native Americans.  Colonial America was heavily influenced by Great Britain, and as was the case with many things, colonial America followed the death penalty trends in Great Britain.  In the early 1800’s, Great Britain eliminated over 100 of the crimes punishable by the death penalty.

Executions started to shift from outdoor public spectacles into correctional facilities in 1834 starting in Pennsylvania. Michigan, Wisconsin and Rhode Island were among the first states to abolish the death penalty in the late 19th century. Other states simply chose to shift from mandatory to discretionary death sentences for certain crimes.  In 1890, electrocution was used for the first time followed by cyanide gas in 1924.

A Period Change
What is often referred to as the “progressive period” began in the early 20th century when nine U.S. states either completely abolished the death penalty, or severely restricted its use.  It was short-lived. The 1930’s brought the not only the Great Depression but the highest number of executions in American history at a rate of 167 people per year.

By the 1950’s capital punishment had lost much of its popular support.  In the 1968 the U.S. Supreme Court decided two critical cases.  In the first case, United States v. Jackson, 390 U.S. 570 (1968) the Court ruled that it was unconstitutional for a federal kidnapping statute to require the death penalty be imposed by a jury.  This practice was causing defendants to waive their right to a jury trial in an effort to avoid the death penalty. In the second case, Witherspoon v. Illinois, 391 U.S. 510 (1968) the court held that prospective jurors could not be disqualified from service because of personal objections to the death penalty. It ruled that the only instance when a juror could be excluded would be if their opinion of the death penalty would affect their decision regardless of the defendant’s guilt or innocence.

In 1972, the U.S. Supreme Court effectively suspended the use of the death penalty when it decided the case of Furman v. Georgia, 408 U.S. 238 (1972) by ruling that it was a cruel and unusual punishment, in violation of the Eight Amendment to the Constitution. The decision in Furman did not technically eliminate the death penalty.  The ruling indicated that the particular statute in question (Georgia’s statute) was unconstitutional because of the discretion granted to the jury.  Several states immediately began working on new death penalty statutes that guided the jury’s process in deciding to sentence someone to death.  In 1976, three cases, Gregg v. Georgia, 428 U.S. 153 (1976), Jurek v. Texas, 428 U.S. 282 (1976), and Proffitt v. Florida, 428 U.S. 242 (1976), ultimately resulted in the reinstatement of the death penalty.  The Court held in these cases that the death penalty is constitutional under the 8th Amendment, and the Court approved the guided statutes that allowed for the introduction of aggravating and mitigating factors when deciding to impose the death penalty on a defendant.  Gary Gilmore was the first person executed after the reinstatement of the death penalty in 1977 in Utah by firing squad.

Since reinstating the death penalty, the U.S. Supreme Court has weighed in on multiple occasions about specific issues related to capital punishment and our criminal process.  The court ruled that executing the mentally retarded violates the 8th Amendment ban on cruel and unusual punishment in Atkins v. Virginia, 536 U.S. 304 (2002).  In Batson v. Kentucky, 476 U.S. 79 (1986), the court made it illegal for a prosecutor to stack the jury based on race (a common practice when prosecuting African Americans had been to eliminate all African Americans from the jury).  In Roper v. Simmons, 543 U.S. 551 (2005), the Court decided that it was cruel and unusual punishment to execute defendants who committed their crimes as juveniles.

Today, there are 33 states that still have the death penalty, along with the federal government and the U.S. military.  The states to most recently abolish the death penalty are Connecticut in 2012 and Illinois in 2011. 

A common concern regarding capital punishment is the fact that there is no single standard or process for deciding who should be put to death. Currently, each state makes its own decision about the death penalty, and the federal government has its own standards in place for imposing the death penalty.  It has been suggested that there should a single standard.  Under our current system of federalism – where the Constitution leaves much to the states to decide, it is unlikely that a true single standard will emerge without the U.S. Supreme Court setting that standard. 

Impacts Today
Today, 58 nations, including the United States still have the death penalty. Many of America’s allies, have chosen to eliminate the death penalty.  In 1999, the United Nations passed a resolution supporting a worldwide moratorium on executions, or to at least restrict the use of the death penalty.  The United States voted against the moratorium, instead siding with nations like China, Pakistan, Rwanda and Sudan, putting the U.S. on a short list with some of the world’s largest human rights abusers.  The Unites States is at the top of the list of westernized, “civilized” nations that still executes its citizens.

Without a doubt, there are strong opinions on both sides of the death penalty debate.  There are circumstances where even staunch abolitionists could find their values severely tested, such as in the case of James Holmes, the gunman in the July 2012 Aurora, Colorado shootings.  Many who have advocated abolition have changed their argument based on personal experiences as crime victims or because family members were victimized.  A strong argument against capital punishment is the overwhelming cost associated with executions. 

It is not a simple question to answer.  I will leave it to our elected officials and citizens to determine whether capital punishment is constitutional. However, for states considering such punishment, I advocate for a process that ensures the truth is found prior to the imposition of the ultimate sentence.  The principle that it is better to let 100 guilty go free before executing a single innocent person must remain at the forefront of our thinking when deciding to impose the death penalty, so we can be confident that the defendant received the full and equal protection of our Constitution.

Where do you stand on capital punishment? Do you believe it is a violation of or in agreement with the Eighth Amendment of the Constitution? 

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