It will be useful to examine this topic by examining six eras of American history.
Almost all the American Colonies were established by England, and English penal law was naturally transported across the Atlantic. English law contained many capital offenses, all of which had a Biblical basis, although most also had a pragmatic basis in the protection of person and property. The first of the estimated more than 20,000 executions in American history took place almost as soon as colonization began—in 1608 in Jamestown. Part of the reason for the existence of the death penalty at the outset of colonial history was the absence of any other severe sanction. The idea of prisons for long-term incarceration had not yet been conceived.
Despite the common English influence, there were significant variations among the colonies concerning capital punishment. On one end of the spectrum stood two colonies strongly influenced by Quaker beliefs: West Jersey had no capital offenses, and Pennsylvania levied the ultimate sanction only for murder and treason. On the other end of the spectrum was Virginia, which authorized capital punishment for many of the same crimes (sometimes petty) as in England. And Puritan-influenced colonies like Massachusetts mandated capital punishment for crimes like adultery, sodomy, bestiality, witchcraft, and blasphemy. On average, the colonies each had about ten crimes at any given time for which death was the prescribed sanction, always including murder, and usually including rape, robbery, and arson.
The very early days of colonization manifested a trend that has continued throughout American history: the death penalty was much more prevalent in the South. This was largely due to the influence of slavery. As early as the 1600s southern colonies enacted Slave Codes to suppress any hint of revolt. Those codes prescribed the death penalty for many crimes for slaves that were not so punishable if committed by others.
The first significant abolitionist argument was put forth by Italian lawyer Cesare Beccaria in the 1763 essay On Crimes and Punishments. This tract was part of the Enlightenment movement in Europe that was inspired by scientific advances to attempt to supplant traditional Christian dogma with more rationalist discourse. Beccaria argued for extended incarceration with hard labor in lieu of death. The essay was translated into English in 1767 and became influential in America to some of the intellectual elite who were at the forefront of the American Revolution.
Among those influenced by Beccaria was Thomas Jefferson, who advocated scaling back severely on the use of capital punishment. Also influenced was Dr. Benjamin Rush, a Philadelphia physician who signed the Declaration of Independence, and who, through a tract written in 1787, became the first vocal abolitionist in the new country. Rush was an advocate for the new penitentiary movement, which aimed to reform criminals in an institutional setting. This movement was a manifestation of the Enlightenment, and its primary spokesperson was English rationalist philosopher Jeremy Bentham, who wrote extensively and in detail about how penitentiaries could secure the greatest happiness for the greatest number in society.
An important gain for abolitionists came in 1794 when Pennsylvania divided murder into two degrees, with only first-degree murder punishable by death. This measure was a compromise between the stillinfluential Quakers, who would have abolished capital punishment, and retentionist forces. Many other states soon embraced the division of murder into degrees.
By the first decade of the 1800s, the bloom of optimism about penitentiaries had wilted in the light of endemic bad administration and rampant recidivism. Thus, capital punishment continued unabated until the 1840s. Then a tide of abolitionism crested, fueled by religious liberals of Unitarian, Universalist, and Quaker beliefs and rationalist social reformers. This movement was closely affiliated with antislavery activism, since it was clear that capital punishment was inextricably intertwined in the South with the institution of slavery. In 1847, Michigan became the first English-speaking jurisdiction to effectively and permanently (so far) abolish capital punishment, followed by Rhode Island in 1852, and Wisconsin in 1853. However, by the 1850s, social activists began to direct most of their efforts against what they saw as the greatest evil afflicting the country: slavery. Then the Civil War supplanted everything else as a matter of national interest. The movement to abolish the death penalty would not become a major force again until the end of the century.
Two additional important developments occurred in the mid-1800s. First, from colonial days, executions had been carried out in public. But public executions sometimes led to rowdy behavior and even riots. So in 1834, Pennsylvania became the first state to execute a prisoner outside public view. This idea was quickly adopted by most other jurisdictions, although the trend would not completely prevail for a century —the last public execution was conducted in the mid-1930s.
The other important development during this era was according jurors sentencing discretion. Until 1841, juries were not called on to render a sentencing verdict—the mandatory penalty on conviction of a capital offense was death. But in 1841, both Tennessee and Alabama bestowed on the jury the power to choose between a death sentence and an alternative prison sentence. The motivation behind this change is obscure: the best guess is that it was designed to permit jurors to discriminate between black and white defendants. Whatever the reason, this idea was also adopted by many jurisdictions, although mandatory death sentencing for some crimes continued in some states until this practice was struck down by the Supreme Court in 1976.
Abolitionist sentiment lay largely dormant as the country struggled through the Civil War and Reconstruction. But around the turn of the century, the movement sprang back to life as part of the Progressive agenda.
By this era, it had become clear that there were two separate streams feeding the abolitionist movement, one religious and the other philosophical. Religiously, the movement was originally supported by ‘‘liberal’’ Christians who valued grace over judgment, and they have continued to be a strong force in the movement to the present. On the other hand, many ‘‘conservative’’ Christians supported capital punishment as legitimated by the Bible and continue that support to the present.
Philosophically, humanists, who believed flourishing of persons was the highest good, objected to the extinguishment of any human life. These reformers, too, have continued to be a strong force in the movement. These abolitionists fall on the ‘‘liberal’’ end of the political spectrum and often believe that life circumstances severely constrain the choices available to those who commit crimes; thus, full-scale responsibility is diluted to the point that these persons cannot deserve a punishment as severe as death. On the other side of the coin, political ‘‘conservatives’’ believe strongly in free will, and thus believe very bad criminals deserve very harsh punishment, which can include the death penalty.
The turn-of-the-century abolitionist movement bore fruit with abolition in nine states between 1907 and 1917. However, the Progressive movement was derailed by World War I, and by 1920 five of the nine states that had abolished the penalty had reinstated it (and two others reinstated it in the 1930s—only in Minnesota and North Dakota has abolition ‘‘stuck’’ until the present).
One important development during this era was the movement to alternatives to hanging as the method of execution. Hanging had proven to be an inexact science that too often resulted in suffering for the condemned, and vicarious suffering for the witnesses. Thus, in 1888, New York became the first jurisdiction to adopt the newly developed electric chair for executions. Fifteen states had followed suit by 1913 and many more by 1950, although hanging and the firing squad persisted in a couple of states.
The abolitionist movement experienced a four-decade period of relative dormancy after World War I. The most likely explanation is that world events—the economic boom of the 1920s, the Great Depression of the 1930s with its concomitant fear of crime, the Second World War and its aftermath, and theColdWar, simply drew attention and energy away fromthe death penalty issue. With relatively little public attention or protest, more than 5,000 people were executed during this period. (Of course, illegal lynchings, particularly of blacks, accounted for many additional deaths—indeed, it is estimated that in some years illegal lynchings outnumbered legal executions.) The year 1935 constituted the peak year inAmerican history for legal executions, with 199. Still, the execution rate per capita, and per homicide, declined steadily over these four decades.
The search continued for a more humane method of execution. In 1923, Nevada opted for the newly devised gas chamber as a superior alternative to either hanging or electrocution, and thereafter about a dozen other states did likewise.
Beginning in 1957, the moribund abolitionist movement began to gather steam. The abolitionist movement experienced its first lasting successes since North Dakota abolished capital punishment fortytwo years earlier: the Territories of Alaska and Hawaii abolished capital punishment shortly before they became states (Delaware abolished in 1958 but reinstated in 1961). Then in 1959, French philosopher Albert Camus wrote an influential polemic against the death penalty, and criminologist Thorsten Sellin published an empirical analysis in which he concluded that the death penalty had no deterrent effect above lengthy imprisonment. In 1960, the execution in California of Caryl Chessman brought the death penalty issue into high focus. Chessman had been sentenced to death for kidnapping but managed by various legal maneuvers to postpone his execution for eleven years, during which time he wrote several best-selling books from death row. Also, the country was experiencing relatively low crime rates. Meanwhile, the pace of executions slowed to a crawl, in large part because appellate review of death penalty cases was becoming relatively routine.
In the mid-1960s, death penalty opponents succeeded in effecting repeal in Iowa and West Virginia. But they also broadened their focus beyond state legislatures, where they had experienced only spotty success, to the courts. In a dissent in Rudolph v. Alabama (1963), Supreme Court Justice Arthur Goldberg hinted that more than one Justice was ready to hear arguments against the death penalty on constitutional grounds. In about 1966, the American Civil Liberties Union (ACLU) and the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People (NAACP) decided to bring court challenges to the death penalty. This coincided with the lowest ebb of American public sentiment in support of the death penalty—a mere forty-two percent in a 1966 Gallup Poll. (Ironically, this turned out to be a brief anomaly—by 1967, as the media was filled with news of a suddenly skyrocketing crime rate, ‘‘The Boston Strangler’’ [Albert DeSalvo] who killed at least thirteen women, and Richard Speck, who murdered eight student nurses in Chicago—death penalty support rose to fifty-three percent and continued climbing another twenty-five percent over the next three decades.)
The LDF decided in 1967 to provide representation to every death-sentenced inmate who had an execution date. This strategy soon tied up virtually every death penalty case that was approaching execution in constitutional challenges. An unofficial death penalty moratorium was affected.
The abolitionists’ first major Supreme Court victory came in Witherspoon v. Illinois (1968). Professor/ litigator Anthony Amsterdam on behalf the LDF convinced the Court that it was unconstitutional to permit the prosecution to strike every potential juror who expressed any scruples against the death penalty.
The retentionists had their day in the sun, though, in a pair of cases, McGautha v. California and Crampton v. Ohio (1971), in which the Court held that due process did not preclude giving juries unguided discretion to impose the sentence nor did it bar unitary trials in which the issues of guilt and punishment were tried together. Since these were two of the primary abolitionist challenges, the prospect for a major abolitionist victory that would stop capital punishment in its tracks seemed dim.
Yet in the next term, the Court agreed to hear essentially the same challenges but founded on the Cruel and Unusual Punishment Clause of the Eighth Amendment, rather than the Due Process Clause of the Fourteenth Amendment. And in a surprise decision in Furman v. Georgia (1972), the Court in a five to four vote held that the death penalty was so unpredictably administered that it violated the Eighth Amendment. The decision had the effect of invalidating the death sentences of every one of the more than 600 prisoners then under death sentences across the country and leaving no state with a constitutional death penalty scheme.
The Court had not held, though, that the death penalty was per se unconstitutional, only that it was not being assessed fairly. This left open the possibility that states could write new legislation that would pass constitutional muster. Many state legislatures hastened to do just that as the opinion polls showed support for capital punishment by far more than half of those polled.
Abolitionists challenged these new statutes, and in 1976 the Court decided that the Georgia statute defining death-eligible crimes via aggravating circumstances and providing for separate guilt/innocence and penalty determinations was constitutional in Gregg v. Georgia and so was the Texas statute defining a limited category of death-eligible crimes with a death sentence required if the jury found specified additional facts in Jurek v. Texas; but that the North Carolina and Louisiana statutes that made death the mandatory sentence for conviction of certain specified kinds of murder were held unconstitutional in Woodson v. North Carolina and Roberts v. Louisiana. The Supreme Court was now in the thick of the death penalty battle, where it has remained.
The highlights of Supreme Court death penalty jurisprudence after 1976 were that: (1) the death penalty was disproportionate to serious felonies other than murder—Coker v. Georgia (1977); (2) defendants must be permitted to present mitigating evidence on any aspect of their character, record, or the circumstances of the offense at the penalty phase—Lockett v. Ohio (1978); (3) the common ‘‘heinous, atrocious, or cruel’’ aggravating circumstance was unconstitutionally vague—Godfrey v. Georgia (1980); (4) competence of defense counsel was not judged by any higher standard in death penalty cases—Strickland v. Washington (1984); (5) even strong statistical evidence was insufficient to prove that the death penalty was administered in a racially biased manner—McCleskey v. Kemp (1987); (6) felony murderers who did not personally kill the victim could still be death-eligible if they acted with extreme reckless indifference to human life—Tison v. Arizona (1987); (7) that defendants must have been sixteen or older when they committed their crimes to be death-eligible—Stanford v. Kentucky (1989); and (8) mentally retarded offenders were not death-eligible—Atkins v. Virginia (2002).
Although abolitionists had significant, if mixed, success in the courts, they made little progress in legislatures during this era. Only one state abolished the penalty (Massachusetts), whereas four restored it (Kansas, New York, Oregon, and South Dakota). Furthermore, the federal government vastly expanded the list of federal death offenses, even though the number of federal death penalty cases remained a small slice of the death penalty pie. Public sentiment remained in the range of sixty-five percent to eighty percent support when asked a standard polling question like, ‘‘Do you approve of the death penalty for murder?’’ This figure overstated solid support, though, because when asked an alternative question like, ‘‘Do you prefer life without parole instead of the death penalty for murder?’’ support often slipped by more than twenty percentage points. Nonetheless, politicians during the 1970s through the present sensed that it was the kiss of death to oppose the death penalty, and even many Democrats, like Bill Clinton, gave it lip service.
In the late 1990s, though, the abolitionist forces found a fulcrum that seemed to move public opinion— the possibility of executing innocent persons. This issue came into stark relief in Illinois. There, journalism students showed that several convicts on death row were, in fact, innocent. Indeed, as many convicts had been released from death row for innocence as had been executed since the reinstatement of capital punishment after Furman. This prompted Governor George Ryan to impose a moratorium on executions and in 2002 to commute the sentences of all of the more than 160 death-sentenced inmates on the ground that the system under which they were convicted was intolerably riddled with error. The innocence issue, though, had the potential to be a bittersweet one for abolitionists: it seems perhaps more likely to lead to death penalty system reforms than to complete abolition.
During this era, as in all past eras, the death penalty continued to show great variation along regional lines. The vast bulk of executions occurred in the South, with Texas leading the way by a wide margin.
The search for a more humane mode of execution continued during this era. Lethal injection, developed in the 1970s, almost completely displaced other modes of execution.
Executions slowly increased, but court challenges to virtually every death sentence often resulted in reversals. Even for those inmates whose convictions and sentences were upheld, the average time from conviction to execution increased in many states to more than ten years. In the meantime, far more defendants were being sentenced to death than were being executed, so the population of death rows across the country increased to well over 3,000, even as the task of providing legal representation to the condemned became ever more daunting. Still capital punishment seemed firmly entrenched in the United States, particularly in certain regions of the country.
References and Further Reading
Cases and Statutes Cited
See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Due Process Limits; Capital Punishment: History and Politics; Capital Punishment Reversed; Capital Punishment and Race Discrimination; Capital Punishment: Eighth Amendment Limits