The Death Penalty - A Brief History

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.

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 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.

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.

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.

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.

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.