The first in a three-part series examining the death penalty in America.
In order to understand the death penalty in America, it’s important to look at its position in the nation’s history. The practice of putting an individual to death as punishment for a crime did not originate with the our New-World culture; in fact, it was as much a feature of the ancient justice systems (Babylonian, Greek, Roman) as it was of systems that directly influenced the development of the American laws and penalties (17th century Britain and 18th century France).
The history of the death penalty in America predates the history of the United States. The first state-sponsored execution in what were then the British Colonies occurred in 1608, with the death (by firing squad) of George Kendall, a suspected spy. In those early days, the crimes that merited capital punishment ranged from treason, as in Kendall’s case, to more minor offenses, including stealing grapes and killing chickens in Virginia (Thomas Jefferson himself introduced legislation to reform these Virginia laws, which also listed trading with Indians as grounds for execution). Just as today, the laws regarding the application of the death penalty varied from colony to colony.
As the United States came into existence in the late 1700s, a movement to reform and even eliminate the death penalty gained momentum. It was at this time that execution was ruled out for many less egregious offenses, and states began to codify degrees of murder. Many of the philosophical arguments against the death penalty that still resonate today first gained momentum in this post-colonial period, including the idea that capital punishment, far from being an effective deterrent, actually increases criminal conduct by creating a culture of brutalization. Dr. Benjamin Rush, a signer of the Declaration of Independence, and Benjamin Franklin each advanced this argument, which ultimately resulted in the new state of Pennsylvania abolishing the death penalty for all offenses except first degree murder.
The late 1700s also introduced the first and most persistent legal argument against the death penalty: the US Constitution. While the document does not explicitly allow or disallow capital punishment, the Fifth Amendment guarantees that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;… nor be deprived of life, liberty, or property, without the due process of law. Basically, this means that an individual cannot be subject to punishment without first being indicted, and that no punishment, including execution, can be handed down without proper indictment, trial, and conviction.
The most familiar argument, however, is based in the prohibition against cruel and unusual punishment outlined in the Eighth Amendment. The Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted. This ban on cruel and unusual punishment was cited by the US Supreme Court in 1972 in its decision in Furman v. Georgia, when it found that capital punishment (in a particular group of cases) to be unconstitutional. This resulted in a suspension of the practice in the United States from 1972 to 1976. Eleven states had already abandoned the death penalty by this time, but with Furman v. Georgia, the rest of the country was effectively compelled to halt executions.
This Supreme Court ruling was narrow, however, and by 1976 thirty-four states had sufficiently augmented their trial and sentencing rules to satisfy the Court’s constitutionality tests. On January 17, 1977, Gary Gilmore was sentenced to death by firing squad in Utah, resuming the death penalty era in the US.
The trend since 1972 has been toward a more restrictive death penalty. In the time between Furman v. Georgia and 1984, only 11 people were actually executed, thanks to a more liberal appeals process and other litigation tactics. Moreover, the Supreme Court has issued several rulings narrowing the constitutionality of capital punishment even further, often using the Eight Amendment as grounds. In 1977, the Court effectively barred the death penalty for any offense other than first-degree murder, treason and espionage. In 2002, the Court held that executions of mentally retarded individuals was unconstitutional according to the Eight Amendment. In 2005, the Court held the same for persons under the age of 18 at the time of the crime.
As a result of these restrictions – and due to other philosophical, popular, and technical factors – fourteen states and the District of Columbia have abolished the death penalty outright: Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. Four other states had their death penalty statutes declared unconstitutional by their state supreme courts: Nebraska, New York, Kansas and Massachusetts. Oregon has effectively suspended the death penalty following Gov. John Kitzhaber’s moratorium last month.
The death penalty continues to exist in this country, though its application has become more restrictive over the years. The framework of the US Constitution leaves open the possibility of effective suspension – or even abolition – of the practice under the Eighth Amendment, while individual states are taking their own approach to reducing or eliminating capital punishment.
In the next articles in this series, we’ll look at why some states are limiting their executions and actively reducing their death row populations, and why some states continue to rely on capital punishment as a cornerstone of their justice systems.
To read more about the history of capital punishment in the US, visit the following links: