Introduction and Early Years
Capital Punishment is a punishment option of the federal government in more than two thirds of states in the United States. The method of execution overwhelmingly used is lethal injection, although various states also allow execution by the electric chair, firing squad, gas chamber, and hanging.
Proponents of the death penalty argue that the death penalty serves important functions of deterrence and retribution. Those who argue for abolition of the death penalty, however, argue that the risk of executing the innocent is too great, there is no evidence the death penalty deters crime more than life imprisonment, and complex capital cases are significantly more expensive than life imprisonment cases. Furthermore, Abolitionists argue that the death penalty is applied unfairly and arbitrarily to the poor and to people of color. Both sides also make arguments that focus on religious and moral foundations.
Historically and internationally, the death penalty has been used as a punishment for a wide variety of crimes. In North America around 1700, the colonists used the death penalty instead of prison as the main punishment for a range of serious crimes. With the adoption of prison as the normal punishment in the late eighteenth century, the death penalty’s use became more limited. Since the late 1970s, Capital Punishment has only been used in the United States in murder cases.
Although the United States retains Capital Punishment while much of the world has abandoned the punishment, the United States was initially one of the leaders in the death penalty abolition movement. The Territory of Michigan voted to abolish Capital Punishment for all crimes except treason in a law that took effect March 1, 1847, more than twenty years before Portugal became the first European country to abolish the death penalty. During the next century, other state legislatures dealt with the issue of whether to abolish Capital Punishment, but the U. S. Supreme Court only examined the death penalty in a few cases, such as Wilkerson v. Utah, where the Court upheld execution by firing squad, and In re Kemmler, where the Court upheld execution by electrocution.
Capital Punishment Developments in the Supreme Court
In the 1960s and 1970s, however, the courts began to take a closer look at Capital Punishment, and organizations like the NAACP Legal Defense and Education Fund organized strategies to attack the punishment on constitutional grounds. In 1971 in McGautha v. California, the Supreme Court rejected a constitutional challenge to the procedures used to impose the death penalty.
However, the following year, the Supreme Court held in Furman v. Georgia that the death penalty statutes in use at the time violated the Eighth and Fourteenth Amendments of the U.S. Constitution, in effect invalidating the death penalty’s use in the United States. There was no clear majority on the rationale for the result in Furman, but several Justices reasoned that the procedures used in capital cases at the time gave too much discretion to jurors in deciding whether to impose the death penalty, so that the sentences were arbitrary and often resulted in racial discrimination. Although Justice William J. Brennan, Jr. concluded that the death penalty was degrading to human dignity and Justice Thurgood Marshall also agreed that the death penalty was unconstitutional per se, other Justices’ written opinions left open the issue of whether the death penalty violates the constitution in all circumstances.
In 1976, the Court decided several cases that upheld the use of the death penalty and, along with Furman, laid the foundation for the modern use of the death penalty in the United States. In Gregg v. Georgia, the Court examined new Capital Punishment statutes that limited the discretion of jurors, and a Plurality held that these statutes did not violate the Eighth and Fourteenth Amendments. The Plurality, in an opinion written by Justice Potter Stewart, concluded that a statute with a list of factors for jurors to consider in Sentencing provided ‘‘clear and objective standards’’ and gave adequate guidance to the sentencer. On the same day, the Court upheld other states’ guided Sentencing statutes in Jurek v. Texas and Proffitt v. Florida. Subsequent cases, like Godfrey v. Georgia, clarified that capital Sentencing procedures must provide a way to distinguish the few cases that deserve the death penalty from those cases that do not.
At the same time as Gregg, the Court struck down death penalty statutes that automatically imposed the death penalty for certain crimes. In Woodson v. North Carolina, the Plurality concluded that in death penalty cases the Eighth Amendment requires consideration of the record and character of the defendant and the circumstances of the crime. Individualized Sentencing in capital cases is required, because there is an increased need for reliability because the death penalty is significantly different from all other punishments. The Supreme Court further emphasized the concern about individualized Sentencing in Lockett v. Ohio, where Ohio’s death penalty statute was struck down because it limited a capital jury from being able to consider factors presented to mitigate the sentence.
Thus, two important principles emerge from the Supreme Court’s Eighth Amendment Capital Punishment procedural jurisprudence: (1) Sentencing juries must be given clear and objective standards to determine who is eligible for the death penalty and to narrow the group of those executed from the group of all murderers; and (2) the Sentencing jury must be allowed to consider mitigating factors that include all aspects of a defendant’s character and record, as well as the circumstances of the offense. In 1994, Justice Harry A. Blackmun, who had voted to uphold the death penalty in Gregg, argued in dissent in Callins v. Collins that these two principles are incompatible and that the death penalty cannot be imposed fairly. Justice Blackmun concluded that ‘‘the death penalty experiment has failed’’ and then dissented from every case affirming a death sentence until retiring later that term.
In 1987 in another significant capital case, McCleskey v. Kemp, the Supreme Court considered evidence that the race of the defendant and the victim affects the determination of who receives the death penalty. The Court assumed the evidence was correct, including the statistics that showed that a defendant who kills a white victim is four times more likely to get the death penalty than a defendant who kills a black victim, but held that such racial disparities do not violate the constitution. Justice Lewis F. Powell, who wrote the majority opinion in McCleskey, noted after he retired that he regretted upholding the death penalty.
The Modern Death Penalty
Since the 1990s, there has been a growing concern about the use of the death penalty in the United States. In some recent decisions, the Supreme Court has narrowed the use of the death penalty. In the early twenty-first century, the Court reversed prior decisions in two significant cases. In Atkins v. Virginia, the Court held that it violates the constitution to execute mentally retarded individuals, and in Roper v. Simmons it held that it is unconstitutional to execute juveniles who commit their crimes while younger than eighteen years of age. In both of those cases, the Court reasoned that the Eighth Amendment required it to consider ‘‘evolving standards of decency’’ in American society, including recent political and public opinion changes, resulting in the Court reversing prior decisions.
One reason for the growing concern about the use of the death penalty has been the discovery that since Furman, more than 100 prisoners have been exonerated and released from death row. Developments in technology and DNA evidence have contributed to the new discoveries of innocence. Although some members of the Supreme Court stated in Herrera v. Collins in 1993 that a claim of innocence might not be the basis of a constitutional claim in itself, concerns about innocence have caused judges, legislators, and jurors to question the value of the death penalty. In 2003, Governor George Ryan of Illinois commuted the sentences of everyone on death row in that state because of recent discoveries of innocent people on death row. In 2000, he had imposed a moratorium on executions in that state for the same reason.
Although Court challenges since Furman have been unsuccessful in eliminating the death penalty in the United States, more than half of the countries in the world have abolished the death penalty, at least in practice, and the long-range trend around the world is to abolish the death penalty. For example, since the United States reinstated the death penalty in 1976, more than seventy countries have abolished the death penalty. During that time in the United States, however, there have been close to 1,000 executions and there are more than 3,000 men and women on death rows across the United States. Still, as noted previously, concerns about the use of the death penalty and the unfairness of the system in the United States have continued to grow. The death penalty is used significantly less than it was 100 years ago, leaving the question for the future of whether 100 years from now Capital Punishment will be used at all.
JEFFREY L. KIRCHMEIER
References and Further Reading
- Acker, James, Robert M. Bohm, and Charles S. Lanier, eds. America’s Experiment with Capital Punishment, 2nd ed. Durham, NC: Carolina Academic Press, 2003
- Death Penalty Information Center web site, https://www.deathpenaltyinfo.org
- Kirchmeier, Jeffrey L. ‘‘Aggravating and Mitigating Factors: The Paradox of Today’s Arbitrary and Mandatory Capital Punishment Scheme.’’ William & Mary Bill of Rights Journal 6 (1998): 2:345–459
- ———, Another Place Beyond Here: the Death Penalty Moratorium Movement in the United States, Colorado Law Review 73 (2002): 1:1–116 (article available at https://www.colorado.edu/law/lawreview/issues/summaries/73-1.htm)
- Zimring, Franklin E., and Gordon Hawkins. Capital Punishment and the American Agenda. New York, NY: Cambridge University Press, 1989
Cases and Statutes Cited
- Atkins v. Virginia, 536 U.S. 304 (2002)
- Callins v. Collins, 510 U.S. 1141 (1994)
- Furman v. Georgia, 408 U.S. 238 (1972)
- Gregg v. Georgia, 428 U.S. 153 (1976)
- Herrera v. Collins, 506 U.S. 390 (1993)
- In re Kemmler, 136 U.S. 436 (1890)
- Jurek v. Texas, 428 U.S. 262 (1976)
- Lockett v. Ohio, 438 U.S. 586 (1978)
- McCleskey v. Kemp, 481 U.S. 279 (1987)
- McGautha v. California, 402 U.S. 183, 196 (1971)
- Proffitt v. Florida, 428 U.S. 242 (1976)
- Roper v. Simmons, 125 S. Ct. 1183 (2005)
- Wilkerson v. Utah, 99 U.S. 130 (1879)
- Woodson v. North Carolina, 428 U.S. 280, 305 (1976)
See also Capital Punishment and the Equal Protection Clause Cases; Capital Punishment and Race Discrimination; Capital Punishment and Sentencing.html>ReSentencing; Capital Punishment and the Right of Appeal; Capital Punishment and Sentencing; Capital Punishment: Proportionality; Capital Punishment Held Not Cruel & Unusual Punishment under Certain Guidelines; Capital Punishment for Felony Murder; Capital Punishment Reversed; Capital Punishment: 8th Amendment Limits; Capital Punishment: Antiterrorism and Effective Death Penalty Act of 1996; Capital Punishment: Due Process Limits; Capital Punishment: Execution of Innocents; Capital Punishment: History and Politics; Capital Punishment: Lynching; Capital Punishment: Methods of Execution