Capital punishment, also referred to as the death penalty, has long been a feature of human society and has been used in the United States since the colonial era. Crimes punishable by death are called capital offenses. Under US constitutional law, states have the right to apply their own criminal statutes including capital punishment. The death penalty remains a controversial political and legal issue in the United States. Supporters of capital punishment argue that it deters crime and provides ultimate justice for crime victims, particularly murder victims. Opponents counter that it is an immoral and costly practice that is particularly vulnerable to racial bias. It also carries the risk of carrying out a wrongful execution. As of March 2021, the death penalty had been abolished in twenty-three US states and the District of Columbia. Governors had placed moratoriums on the death penalty in an additional three states.
Pros and Cons of Abolishing the Death Penalty
- The death penalty should be abolished because it violates the Eighth Amendment's protection against "cruel and unusual punishment" by the state.
- With little evidence that capital punishment deters crime, it is a costly and ineffective use of public resources.
- Abolishing the death penalty is the only way to prevent bias in its application and ensure that no person is executed by the government erroneously or unconstitutionally.
- Removing the option to seek the death penalty would be unconstitutional because the Fifth Amendment authorizes its application as long as "due process of law" has been followed.
- The death penalty provides immeasurable public benefit by discouraging people from committing capital offenses.
- Capital punishment enables the state to assert its authority over the people and serve in its role as the administrator of justice.
In addition to state laws, the federal government identifies over forty crimes to which the death penalty could be applied. These offenses involve murder, treason, or committing another crime that results in death, such as kidnapping or aircraft piracy. The US Department of Justice (DOJ) authorizes federal death penalty cases, which are prosecuted in federal court. In 2020, following seventeen years without carrying out the penalty, the federal government executed ten people. In January 2021 the federal government executed Lisa Marie Montgomery, the first woman to receive such a punishment from the federal government in sixty-seven years. Despite this surge in federal executions in 2020, state executions reached their lowest number that year since 1991.
In states that still enforce capital punishment, lethal injection is the primary method of carrying out executions. Though their use is rare, secondary execution methods permitted by individual state laws include electrocution, gas inhalation, hanging, and firing squad. Only three people in the United States have been executed by hanging since 1965, and only four people have faced a firing squad since 1960. For federal offenses, the government uses the methods of execution authorized by the state in which the court imposes the punishment. In cases handled in states that have abolished capital punishment, the federal judge can designate a death-penalty state to carry out the execution.
Several nonprofit organizations work to end the use of capital punishment. The National Coalition to Abolish the Death Penalty, the nation's oldest anti–death penalty nonprofit organization, was founded in 1976 and focuses on ending the practice through mass organization, providing legal assistance, and educating people about the death penalty. The Innocence Project, founded in 1992, focuses on providing legal services and DNA testing with the purpose of winning exoneration for wrongfully convicted prisoners. Exoneration occurs when a person's conviction is overturned. Between 1973 and 2020, 173 inmates on death row in the United States were exonerated.
Development of U.S. Death Penalty Laws
Arguments on both sides of the capital punishment debate draw support from the US Constitution. The Fifth Amendment outlines conditions for trying individuals accused of capital crimes and states that no person "shall be deprived of life … without due process of law." The government is granted the authority to execute a person if certain conditions—such as arrest, indictment, and trial—have been met. The Eighth Amendment, however, prohibits the government from enforcing "cruel and unusual punishment," which several lawsuits have used successfully to challenge certain applications of capital punishment.
Through the Crimes Act of 1790, also referred to as the Federal Criminal Code of 1790, lawmakers of the newly independent United States granted federal judges the authority to impose the death sentence. By the 1800s, federal law not only permitted capital punishment but required it in cases involving certain crimes. This created a problem for juries that found a defendant guilty but did not believe the offense warranted a sentence of death. With no legal ability to impose a punishment other than execution, some juries chose to hand down verdicts of not guilty, a trial outcome known as jury nullification.
Due in part to rising jury nullifications, which effectively allowed guilty criminals to be set free, state legislatures began to pass laws in 1838 that rejected mandatory application of the death penalty in favor of jury discretion in sentencing. The abolitionist movement to end capital punishment also influenced state legislatures. By the early 1900s, most states had adopted laws that allowed juries to apply either the death penalty or a sentence of life in prison.
Executions in the United States peaked during the 1930s at an average rate of 167 per year. Courts handed down death sentences fairly frequently until the 1960s when the practice began to face growing moral, legal, and political opposition. Critics cast doubt on its value as a crime deterrent and argued that the courts applied it inconsistently and unequally. Among other factors, scholars determined that the races of both the victim and the defendant often influenced sentencing. Despite comprising less than 15 percent of the US population, African Americans comprised more than half of the nearly four thousand people executed from 1930 to 1967. Facing increasing pressure to rule on the constitutionality of capital punishment law, an unofficial nationwide moratorium on, or suspension of, executions began in 1968.
The Supreme Court ruled in the 1972 case of Furman v. Georgia that the death penalty, as it was implemented, violated the Constitution. The court overturned the death sentence of William Furman, an African American man whose murder trial had lasted less than one day. Furman's death sentence was found to be "cruel and unusual punishment" that contravened the Eighth Amendment of the US Constitution. The court determined that the unequal and arbitrary application of the death penalty to African American defendants violated the Equal Protection Clause of the Fourteenth Amendment. The decision required states to develop consistent legal standards for capital punishment to ensure that sentences matched the severity of offenses and did not cause undue pain and suffering. From 1972 to 1976, thirty-five US states revised their death penalty laws.
On July 2, 1976, the Supreme Court handed down five decisions in cases that originated in Florida, Georgia, Louisiana, North Carolina, and Texas, collectively referred to as the July 2 cases, or by the name of the lead case, Gregg v. Georgia. All cases were related to ongoing state-level efforts to reform capital punishment laws. The court ruled that mandatory capital punishment laws were too rigid. However, the court also determined that the death penalty does not violate the Constitution, capital punishment serves as a practical deterrent, and retribution provides a justifiable basis for execution.
The court's rulings also indicated that inconsistent and racially biased death sentences could be prevented by holding two hearings: one to establish guilt and one, if found guilty, to determine sentencing. At sentencing hearings, the prosecution and the defense present information about the defendant's character and background; they also submit arguments for either stern or merciful treatment. Most states authorized a system of allowing the jury to decide the guilty party's punishment, though some allowed judges to make the decision or retain the right to overrule the jury. These decisions allowed the reinstatement of state death penalty laws. The federal government lifted its capital punishment moratorium in 1988, though it did not carry out another execution until 2001.
Resurgence in the Late Twentieth Century
After the unofficial moratorium on capital punishment ended with the executions of Gary Gilmore in Utah in 1977 and John Spenkelink in Florida in 1979, the execution rate remained low for an extended period. Death penalty cases were required to strictly adhere to due-process rules, and during the late 1970s, the Supreme Court handed down decisions that expanded defendants' rights in capital offense trials and ruled that capital punishment could not be imposed for the rape of an adult, a decision that essentially limited the death penalty to charges of murder, treason, and the rape of a child. In the 1980s, the court ruled that the death penalty could not be applied to offenders under the age of sixteen or those deemed mentally incompetent.
During the 1980s, more than half of all federal appeals in capital punishment cases resulted in death sentences being overturned. Further, many states did not carry out executions despite having legal authority to impose the death penalty. However, the nationwide execution rate began a slow but steady rise.
In McCleskey v. Kemp (1987), the US Supreme Court again confronted the issue of race and capital punishment. Warren McCleskey, a Black resident of Georgia, had been convicted of killing a white police officer during an armed robbery in 1978 and sentenced to death. McCleskey's attorneys argued that his Eighth and Fourteenth Amendment rights were violated because his race made it statistically more likely that he would receive the death penalty. McCleskey's attorney cited a 1983 study, commonly referred to as the Baldus study, which determined that African Americans in Georgia were 4.3 times more likely to receive death sentences for killing a white person than they were for killing another African American. Upon losing his Supreme Court appeal, McCleskey was executed by the state of Georgia in 1991.
In the years since the McCleskey ruling, opponents of capital punishment have continued to voice concerns about the role of racial bias in death penalty sentencing. The court's ruling is believed to have made proving racial discrimination more difficult. According to the National Association for the Advancement of Colored People (NAACP), incarceration rates of racial minorities skyrocketed in the decade following the McCleskey decision. As of January 2021, Black defendants accounted for 34.1 percent of all people executed in the United States since 1976 and over 40 percent of the country's death row population despite making up just over 13 percent of the general US population.
During the 1990s, the Supreme Court issued several decisions that upheld the constitutionality of capital punishment and limited defendants' opportunities to have their cases reviewed. The number of executions performed annually began a steady rise during this decade. A total of sixteen executions were carried out in the United States in 1989. In 1999 state governments carried out ninety-eight executions, the highest number since the 1976 reinstatement of the death penalty.
Twenty-First Century Developments
The 2001 execution of Timothy McVeigh, convicted for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, marked the first federal execution carried out since 1963, with Juan Raul Garza executed eight days later. After the execution of Louis Jones Jr. in March 2003, no federal executions were scheduled until July 2019, when William Barr, the US Attorney General under President Donald Trump, announced that federal executions would resume. The move provoked immediate debate, as public support for capital punishment had reached historic lows in many states and regions of the country. One year after the announcement federal executions resumed, and ten prisoners were executed by the federal government in the last six months of 2020. An additional four federal prisoners were executed in January 2021, during the last weeks of Trump's presidency. His successor, Joe Biden, has voiced opposition to the death penalty and stated his intention to introduce reforms.
Opponents of the death penalty have also focused their arguments on the mental capacity of those found guilty of capital offenses. The Supreme Court ruled in Atkins v. Virginia (2002) that executing people with intellectual disabilities violated the Eighth Amendment but left the definition of intellectual disabilities up to individual states. In Hall v. Florida (2014), the Supreme Court opined that Florida's system of using a defendant's intelligence quotient (IQ) as a strict cutoff in determining the presence or absence of intellectual disability was unconstitutional. A similar ruling was handed down by the court in Moore v. Texas (2017), which stated that the standards used to determine intellectual disability in Texas created an "unacceptable risk that persons with intellectual disabilities will be executed."
Between 2000 and 2020, with few exceptions, the number of state executions performed annually dropped each year, with the exceptions of 2017 and 2018. While eighty-five state executions were carried out in 2000, there were twenty-five in 2018 and twenty-two in 2019. Seven state executions took place in 2020, the lowest annual number of the twenty-first century.
In 2020 the rulings of the Florida Supreme Court in several cases reversed existing protections afforded to inmates sentenced to death. These rulings overturned existing standards for evidence and jury agreement when imposing the death penalty. The rulings followed the appointment of five members of the conservative Federalist Society to the court in under a year. Legal scholars have expressed concern that such judicial activism undermines the authority of the state legislature, federal courts, and the US Constitution.
Critical Thinking Questions
- What historical factors have spurred capital punishment reform in the United States?
- Under what conditions, if any, do you think a court should sentence a person to death? Explain your answer.
- In your opinion, should pharmaceutical companies have the right to refuse to sell drugs for executions? Why or why not?
Lethal Injection Controversies
A nationwide shortage of sodium thiopental, the barbiturate anesthetic used in lethal injections, emerged in 2009 after the only pharmaceutical plant in the United States approved by the Food and Drug Administration (FDA) to manufacture the drug announced it was stopping production. The shortage resulted in the postponement of several scheduled executions. States could only acquire the drug by importing it from abroad, sometimes improperly. European drug manufacturers objected to capital punishment procedures, and the European Commission banned the export of drugs used in lethal injection procedures in 2011. Some states attempted to circumvent regulations, resulting in the federal Drug Enforcement Administration (DEA) seizing drug supplies from prisons in Alabama, Georgia, Kentucky, South Carolina, and Tennessee.
Other states sought to carry out their scheduled executions using experimental combinations of drugs. Officials in Oklahoma were found to have made significant errors in an execution in 2014 after authorizing the use of untested drugs supplied by undisclosed sources. A grand jury determined in 2016 that state officials had committed a long list of oversights and avoidable mistakes in carrying out executions. Oklahoma attorney general Mike Hunter announced that the state would adopt nitrogen gas inhalation as its primary method of execution in March 2018, citing the difficulty in procuring the mandated drugs for lethal injection.
In 2017 officials in Arkansas came under criticism for expediting the schedule of eight executions by lethal injection before the state's supply of available drugs reached its expiration date. Critics accused Arkansas officials of carrying out executions in an "assembly line" fashion, and drug companies also objected to the state's use of a pharmaceutical formulation in lethal injections. Four of the eight inmates were ultimately executed, while four received stays of execution.
Concerns over botched executions using untested lethal injection methods reached the US Supreme Court, which handed down its decision in Bucklew v. Precythe in April 2019. The 5–4 ruling held that challenges to a state's method of execution due to claims of excessive pain must demonstrate that alternative methods exist that would cause less pain than the state-determined one. The majority decision reasoned that the constitutional prohibition against cruel and unusual punishment does not equate to a guarantee of a painless execution. The dissenting opinion argued that the defendant had, in fact, sufficiently demonstrated that the use of lethal injection in this case met the standards for an Eighth Amendment challenge previously established by the court itself.
During the novel coronavirus disease (COVID-19) pandemic, lawyers for federal death-row inmates Dustin Higgs and Corey Johnson argued that their clients, both of whom tested positive for COVID-19, should not be subject to lethal injection. The attorneys suggested that the combination of COVID-19 infection with the flooding of the lungs caused by pentobarbital, the drug used in their executions, would cause suffering that amounted to "cruel and unusual punishment." Like earlier appeals in defense of the men's lives, this argument proved ineffective. Both men were executed in Virginia in January 2021.
Two months after these executions, on March 24, 2021, Virginia Governor Ralph Northam signed a bill passed by the Democratic-majority state legislature that abolished the death penalty in the state. When he signed the bill, Northam referenced the disproportionate use of the death penalty against Black men in the state and the 170 prisoners sentenced to death row who had been exonerated after capital punishment was reinstated in the United States. Virginia became the first state in South to abolish the death penalty, leading some to believe others could follow. However, death penalty supporters decried the ban, arguing that judges should be able to decide if the death penalty is warranted based on the circumstances of each case.