The history of the death penalty in the USA may be traced back to colonial times in the 1600’s. It is claimed that the first recorded death sentence and execution by firing squad was carried out in the British colony of Jamestown, Virginia in 1608.
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Captain George Kendall was executed in the British colony of Jamestown, Virginia in 1608 for spying for the Spanish government. Public hangings from the gallows took place during the 1600’s and most of the 1700’s.
Rules with regards to the death penalty varied from colony to colony. Crimes ranging from stealing food, trading with the Indians, witchcraft, and heresy, to the murder of masters by slaves or the murder of husbands by wives all warranted the death penalty. According to many colonies, the death penalty was to be viewed as a deterrent. It was only through the writings of European theorists such as Montesquieu, Voltaire, Bentham, and the English Quakers John Bellers and John Howard that the abolitionist movement took hold. The movement gained momentum when, in 1764, Italian jurist and philosopher, Cesare Beccaria, wrote an essay, On Crimes and Punishment. He claimed that there was no justification for a state to take a man’s life.
Later, when the Declaration of Independence was signed (1776), many of the signers, such as Dr. Benjamin Rush (Founder of the Pennsylvania Prison Society), Benjamin Franklin and Philadelphia’s Attorney General William Bradford, believed that the death penalty was not a deterrent for certain crimes and that it actually increased criminal behavior. It was in 1794 that Pennsylvania, the first state to consider degrees of murder, repealed the Death Penalty for all offenses except first degree murder.
The Nineteenth Century
During the early part of the nineteenth century, the move to abolish the Death Penalty was seen in many states as a result of the “Jacksonian era,” which condemned the use of the gallows and proclaimed a more humane treatment of criminals. Not only were the number of capital crimes reduced, but state penitentiaries were built. In 1834, Pennsylvania became the first state to move executions into correctional facilities and out of the public eye. Some states, such as Michigan, abolished the death penalty for all crimes except treason in 1846, while others, i.e. Rhode Island and Wisconsin, abolished the death penalty for all crimes. Many more states began to abolish the death penalty, but still administered capital punishment for capital offenses, such as those committed by slaves. A great reform and victory for the death penalty abolitionists was seen when Tennessee in 1838, and later Alabama, enacted discretionary death penalty statutes: the circumstances of the crime were to be taken into consideration. Opposition of the death penalty dwindled during the Civil War due to the conflict between the North and South. It did not take long before new methods of execution were developed, i.e. the electric chair, New York (1888).
The Twentieth Century
Some states tried to find a more humane method of execution than hanging or electrocution; therefore, lethal gas was given to a prisoner in the confines of a gas chamber in Nevada in 1924. With the Prohibition era of the 1920’s and the Great Depression of the 1930’s, leading criminologists claimed that the death penalty was a most needed social deterrent. More executions took place during the 1930’s in the US than during any other decade in American history. After World War II, many turned their backs on the death penalty as a result of the atrocities that had taken place during the war. During the 50’s and early 60’s, The American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund concentrated their efforts on tying up court cases by appealing death penalty cases. The 1950’s witnessed a decrease by about half the number of executions in the United States.
Challenging the Constitutionality of the Death Penalty
The legality of the death penalty was challenged in the 1960’s. At the time, it was suggested that the death penalty was unconstitutional under the Eighth Amendment and seen as “cruel and unusual” punishment, Torp vs Dulles (1958). From this period on, abolitionists challenged the Supreme Court at various trials, forcing it to adjust the arbitrary manner in which the death penalty was administered. During the late 60’s and 70’s, many court cases were brought before the Supreme Court which focused on the role of the jury and its discretion, recommendations, reservations or impartiality to the death penalty, U.S. v. Jackson (1968), Witherspoon v. Illinois (1968).
The Death Penalty is Suspended and Reinstated
The famous Furman v. Georgia (1972) court cases set the standard for many years to come in the USA.The Supreme Court concluded that giving the jury total discretion when deciding on the death penalty for murder was “cruel and unusual” punishment and in violation of the Eighth Amendment, especially if it did not fit the crime. On June 29, 1972, the Supreme Court voided forty death penalty statutes, thereby altering the sentences of 629 inmates on death row and suspending their sentences. Since not all death penalty laws were voided, the Supreme Court had given individual states in favor of the death penalty, i.e. Florida, the option of making new laws.
While some states tried removing all of the jury’s discretion by making capital punishment mandatory for those convicted of capital crimes, others tried limiting jury discretion through the establishment of sentencing guidelines. For example, the guidelines would allow for aggravating and mitigating factors to be introduced when sentencing. These guideline statutes were approved by the Supreme Court in Gregg v. Georgia (1976) .The new death penalty laws enacted in pro death penalty states such as Florida, Georgia and Texas were now constitutional; therefore, the death penalty was reinstated in these states.
Death Penalty Reinstated
Executions resumed with the execution of murderer Gary Gilmore, in front of a firing squad, on January 17, 1977 in Utah. Oklahoma adopted lethal injection as a means of execution the same year. Although the abolition of the death penalty was increasing in Europe, the US still retained it.
Limitations on Capital Punishment
From the 70’s and up to the 90’s, the Supreme Court held that certain crimes were not punishable by death and the death penalty was therefore considered unconstitutional and in violation of the Eighth Amendment. In the cases of crimes such as rape of female victims if they were not killed, crimes committed by the mentally challenged and crimes committed by juveniles under the age of sixteen, Thompson v. Oklahoma (1988), the death penalty was unconstitutional.
The Death Penalty and Juveniles
Although the execution of juveniles under the age of sixteen was considered unconstitutional in some states, restrictions still existed. In states lacking a minimum age limit in its death penalty statute, juveniles under the age of sixteen at the time the crime was committed could still be executed. In 1989, the Supreme Court maintained that the Eighth Amendment did not prohibit capital punishment for crimes committed by sixteen year olds, Stanford v. Kentucky, and Wilkins v. Missouri. In 1992, the United States ratified Article 6(5) of the International Covenant on Civil and Political Rights, which required that the death penalty would not be used on juvenile offenders under the age of eighteen. Nevertheless, while many other countries have no reservations to this article, the US still reserves the right to do so.
Another issue which the Supreme Court had to address in 1993,at the Herrera v. Collins trial, was the constitutionality of the execution of an accused who claimed actual innocence. The Supreme Court gave support to the possibility that the Constitution prohibits the execution of any persons who conclusively demonstrate his or her innocence. At the same time, the court held that as long as there were no other constitutional violations, “new evidence of innocence was not reason enough for a federal court to order a new trial”. Instead, the Court’s majority recommended that those who could prove their innocence seek executive clemency from the governor of the state. Nevertheless, seeking clemency was somewhat prohibited when the appeals process was changed due to the Anti-Terrorism and Effective Death Penalty Act of 1996. It became much more difficult for Death Row inmates to get a conviction overturned.Since then, the concern regarding the execution of innocent people has been the mainstay for anti-death penalty debates. The first official conference to bring this to public attention was the National Conference on Wrongful Convictions and the Death Penalty in Chicago, Illinois in 1998. Then, in 1999, a resolution was passed by the UN Commission on Human Rights (UNCHR). It called on all states that still upheld the death penalty to “progressively restrict the number of offenses for which it may be imposed with a view to completely abolishing it."
Worldwide pressure against the death penalty along with increasing expenditure on appeals and court cases may be some of the reasons why this decade has seen a radical decrease of public support for capital punishment. History has shown that time and circumstances change opinion. While there are many states that uphold capital punishment, battles for justice will continue to be fought in local and federal courts. For a more extensive historical overview on the death penalty see The Death Penalty Information Center.
Tasks and Activities
- Comprehension True and False
- What main changes to the death penalty are evident throughout history?
- How have the methods of execution changed over the decades?
- The only punishment for violent crimes resulting in murder is the death penalty.
- Capital punishment should never be used, no matter what the crime is.
- Sentencing in capital murder cases should be totally up to the discretion of the jurors.
Research and Class Presentation
- Click on US Historical Documents and look up the The American Bill of Rights . What rights are protected by the Bill of Rights, and what powers are limited?
- Which Amendment deals with the death penalty?
- Which Amendment deals with fair trials?
- Which Amendment deals with the death penalty and juveniles?
- Which Amendment deals with the death penalty and the mentally challenged?
- Click on UN - The Universal Declaration of Human Rights. Out of the 30 Articles of Human Rights,
- Which Article deals with the death penalty?
- Which Article deals with fair trials?
- Which Article deals with the death penalty and the mentally challenged?
Compare The American Bill of Rights to The UN’s Universal Declaration of Human Rights. Are there any differences between the two regarding capital punishment? Sum up your findings and present it in a short talk to the class.
Choose ONE of the following:
- Go online and research the Gary Gilmore trial of 1976. Write a report covering the trial and its outcome.
- Go online and research the Herrera v. Collins trial from 1993. Write a report covering the trial and its outcome.