The Death Penalty in America
Britain influenced America's use of the death penalty more than any other country did. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain. In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians.
Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father, or denying the "true God," were punishable by death. (Randa, 1997)
Those who did not support the death penalty found support in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria's 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. (Schabas 1997)
American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia's death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.
In the early part of the nineteenth century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carry them out in correctional facilities.
The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a "cruel and unusual" punishment and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court decided in Trop v. Dulles (356 U.S. 86) that the interpretation of the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop was not a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States had, in fact, progressed to a point that its "standard of decency" should no longer tolerate the death penalty. (Bohm, 1999)
According to data collected by the Federal Government, from 1930 to 2000, 4,542 persons were executed under civil (non-military) authority.
During the ten-year period from 1967-1977, however, punitive death took a holiday as a voluntary moratorium and the U.S. Supreme Court brought a temporary halt to executions.
Voluntary Moratorium: 1967-1972
Between 1967 and 1972, the U.S. observed what amounted to a voluntary moratorium on executions as the Supreme Court wrestled with the issue.While all but 10 states allowed the death penalty in the late 1960s and an average of 130 executions per year were being carried out, public opinion turned against the death penalty. Several other nations had dropped the death penalty by the early 1960s and legal authorities in the U.S. were starting to question whether or not executions represented "cruel and unusual punishments" under the Eighth Amendment. Public support for the death penalty reached its lowest point in 1966, when a Gallup poll showed only 42 percent of Americans approved of the practice.
In several cases not directly testing its constitutionality, the Supreme Court modified the application and administration of the death penalty. The most significant of these cases dealt with juries in capital cases. In a 1971 case, the Supreme Court upheld the unrestricted right of juries to both determine guilt or innocence of the accused and to impose the death penalty in a single trial.
Supreme Court Overturns Most Death Penalty Laws
In the 1972 case of Furman v. Georgia, 408 U.S. 153 (1972), the Supreme Court issued a 5-4 decision effectively striking down most federal and state death penalty laws finding them "arbitrary and capricious." The court held that the death penalty laws, as written, violated the "cruel and unusual punishment" provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment.
As a result of Furman v. Georgia, more than 600 prisoners who had been sentenced to death between 1967 and 1972 had their death sentences lifted.
Supreme Court Upholds New Death Penalty Laws
The Supreme Court's decision in Furman v. Georgia did not rule the death penalty itself to be unconstitutional, only the specific laws by which it was applied. Thus, the states quickly began to write new death penalty laws designed to comply with the court's ruling.
The first of the new death penalty laws created by the states of Texas, Florida and Georgia gave the courts wider discretion in applying the death penalty for specific crimes and provided for the current "bifurcated" trial system, in which a first trial determines guilt or innocence and a second trial determines punishment. The Texas and Georgia laws allowed the jury to decide punishment, while Florida's law left the punishment up to the trial judge.
In five related cases, the Supreme Court upheld various aspects of the new death penalty laws. These cases were:
Gregg v. Georgia, 428 U.S. 153 (1976)
Jurek v. Texas, 428 U.S. 262 (1976)
Proffitt v. Florida, 428 U.S. 242 (1976)
Woodson v. North Carolina, 428 U.S. 280 (1976)
Roberts v. Louisiana, 428 U.S. 325 (1976)
As a result of these decisions, 21 states threw out their old mandatory death penalty laws and hundreds of death row prisoners had their sentences changed to life in prison.
On January 17, 1977, convicted murderer Gary Gilmore told a Utah firing squad, "Let's do it." and became the first prisoner since 1976 executed under the new death penalty laws. A total of 85 prisoners - 83 men and two women - in 14 U.S. states were executed during 2000.
Current Status of Death Penalty
As of January 1998, 38 states and the federal government have death penalty laws in effect. As of 2000, the following states did not have death penalty laws: Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin.
• Detailed statistics on executions and capital punishment can be found on the Bureau of Justice Statistics Web site:
In 96% of the states where there have been reviews of race
and the death penalty, there was a pattern of either race-ofvictim
or race-of-defendant discrimination, or both. (Prof.
David Baldus report to the ABA, 1998).
• 98% of the chief district attorneys in death penalty states are
white; only 1% are black. (Prof. Jeffrey Pokorak, Cornell
Law Review, 1998).
• A comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times
among those defendants whose victims were white. (Prof. Jack Boger and Dr. Isaac Unah, University of North Carolina, 2001).
• A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who
killed blacks and over 4 times more likely than those who killed Latinos. (Pierce & Radelet, Santa Clara Law Review 2005).
• In 2005, the Supreme Court in Roper v. Simmons struck down the death penalty for juveniles. 22 defendants had been executed for
crimes committed as juveniles since 1976.
MENTAL HEALTH ISSUES
• Mental Retardation: In 2002, the Supreme Court held in Atkins v. Virginia that it is unconstitutional to execute defendants with
• Mental Illness: The American Psychiatric Association, the American Psychological Association, the National Alliance for the
Mentally Ill, and the American Bar Association have endorsed resolutions calling for an exemption of the severely mentally ill.
•There were 51 women on death row as of December 31, 2007. This constitutes 1.5% of the total death row population. 11 women
have been executed since 1976. "Death Penalty For Female Offenders" by Victor L. Streib, (January 18, 2008)
source Death Penalty Information Centre
Since 1973, 133 people in 26 states have been released from Death Row with evidence of their innocence.
Erroneous eyewitness testimony — whether offered in good faith or perjured — no doubt
is the single greatest cause of wrongful convictions in the U.S. criminal justice system.
In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination or both. (David Baldus, et al., In The Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998)).
The results of two new studies which underscore the continuing injustice of racism in the application of the death penalty are being released through this report. The first study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with time, nor is it restricted to a single region of the country. The other study identifies one of the potential causes for this continuing crisis: those who are making the critical death penalty decisions in this country are almost exclusively white.
From the days of slavery in which black people were considered property, through the years of lynchings and Jim Crow laws, capital punishment has always been deeply affected by race. Unfortunately, the days of racial bias in the death penalty are not a remnant of the past.
Sources: A thinking Reed, Barry Jones, AmnestyInternational USA, Death Penalty Information Centre.