"A Continuing Conflict: A History of Capital Punishment in the United States." Gale Essential Overviews: Scholarly, Gale, 2016.
Capital punishment is the ultimate punishment—death—administered by the government for the commission of serious crimes. The word capital comes from the Latin word capitalis, meaning “of the head.”
Although capital punishment has long enjoyed popular support in the United States, the level of support has declined in recent decades. Gallup, Inc., conducts an annual poll concerning the death penalty. In U.S. Death Penalty Support Lowest since 1972 (October 26, 2017), Jeffrey M. Jones of Gallup indicates that 55% of those polled in October 2017 were in favor of capital punishment for people convicted of murder. The level of approval has dropped considerably since 1994, when it peaked at 80%.
Proponents and opponents of the death penalty are passionate in their beliefs. People on both sides of the debate often use philosophical, moral, and religious reasoning to justify their positions. Some view capital punishment as retribution (a justly deserved penalty for wrongdoing). Retributionists sometimes rely on historical moral teachings, such as the Bible. One often-quoted biblical phrase is “an eye for an eye,” which comes from the book of Exodus (or Sh'mot in the Torah) and is part of the religious laws that existed at the time the Bible was composed that clearly prescribed execution for murder. Death penalty opponents typically take an opposite moral viewpoint, arguing that execution is wrong and is more about revenge than retribution. Furthermore, they believe the capital punishment process is flawed by discrimination against the poor and people of color and that it has captured innocent people in its web. There are also practical issues associated with capital punishment, such as its financial costs and its effectiveness (or lack thereof) at deterring others from murdering. Opponents and advocates of the death penalty both complain about the legal appeals process that follows a death sentence. Opponents say the so-called safeguards are inadequate and mistake-prone; advocates say the process takes too long and delays the administration of just punishment for heinous crimes.
The US system of governance is based on the separation of federal and state powers. This means that individual states decide for themselves if they want to practice capital punishment. States with laws (or statutes) that allow death penalty sentences are said to have capital punishment by legislative authority. In other words, the state legislatures have enacted laws that permit the death penalty to be carried out under particular circumstances. However, laws are subject to court challenges regarding their constitutionality (their adherence to the strictures laid out in the US Constitution). Capital punishment laws are often challenged in court. Any laws ruled unconstitutional cannot be enforced until they are changed to be constitutional. In some cases, state legislatures have been unable or unwilling to pass revised statutes. As a result, a state can have death penalty laws on its books that are actually unenforceable.
As of January 2018, the federal government (including the US military) and 31 states had death penalty statutes that were in force for new capital offenses (Tracy L. Snell, “Prisoners Executed under Civil Authority in the United States, by Year, Region, and Jurisdiction, 1977–2014,” in Prisoners Executed, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 10, 2014). The other 19 states (Alaska, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin) plus the District of Columbia had either legislatively abolished capital punishment or did not have enforceable death penalty laws for new capital offenses. The situations in two of these states need further explanation. New Mexico abolished capital punishment in 2009 but retained death sentences for inmates sentenced prior to 2009. Delaware's capital punishment law was ruled unconstitutional in 2016; as of March 2018, however, the state's legislature was working to craft a new law that would pass constitutional muster.
Between 1953 and 2015, the number of inmates under the sentence of death in the United States grew from fewer than 500 to slightly less than 3,000. The number skyrocketed during the 1980s and 1990s before leveling off around the dawn of the 21st century and then declining. Fewer than 3,000 inmates were under the sentence of death at the end of 2015 (Snell, “Figure 2. Number of Persons under Sentence of Death, 1953–2013,” in Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014).
Throughout history societies have considered some crimes so appalling that the death penalty has been prescribed for them. Over time, changing moral values and ideas about government power have limited the number and types of offenses deemed worthy of death. Many countries have eliminated capital punishment completely, dismissing it as an inhumane response to criminal behavior. The United States is one of only about two dozen countries that still administer the death penalty. It has been abolished by all developed nations (excluding Japan) with which the United States is ordinarily compared. This distinction from the United States' peers arises from a complicated mix of social, legal, and political factors that shape American ideas about justice and the role of government in matters of law and order.
When the first European settlers arrived in North America, the death penalty was accepted as just punishment for a variety of offenses. In fact, the earliest recorded execution occurred in 1608, only a year after the English constructed their first settlement in Jamestown, Virginia. Captain George Kendall, one of the original leaders of the Virginia colony, was convicted of mutiny by a jury of his peers and sentenced to death by shooting in Jamestown. In 1632 Jane Champion, a slave, became the first woman to be put to death in the new colonies. She was hanged in James City, Virginia, for the murders of her master's children.
According to Society's Final Solution: A History and Discussion of the Death Penalty (Laura E. Randa, ed., 1997), capital law in the early colonies was based on English law, which prescribed the death penalty for hundreds of crimes in the 1700s. Actual practice, however, varied from colony to colony. The Quakers, who settled in the mid-Atlantic region, initially adopted much milder laws than those who settled in the Massachusetts, New York, and Virginia colonies.
The methods of execution in the fledgling North American colonies could be especially brutal. M. Watt Espy and John Ortiz Smykla note in Executions in the United States, 1608–2002: The Espy File (2005) that even though hanging was the preferred method, some criminals were burned alive or pressed to death by heavy stones. Probably the cruelest punishment was known as “breaking at the wheel,” wherein the executioner would snap all the offender's arm and leg joints with a chisel and then weave the extremities through the spokes of a large wheel like meaty ribbons. The prisoner would then be left outside to die of blood loss and exposure.
These executions were held in public as a warning to others, and often a festival atmosphere prevailed. Crowds of onlookers gathered near the gallows, and merchants sold souvenirs. Some spectators got drunk, turning unruly and sometimes violent. After the execution, the body was sometimes left hanging above the square in a metal cage.
David G. Chardavoyne describes a typical 19th-century execution scene in A Hanging in Detroit: Stephen Gifford Simmons and the Last Execution under Michigan Law (2003). One of only two executions in Michigan before the death penalty was outlawed there in 1846, Simmons was hanged in September 1830 for murdering his pregnant wife. Chardavoyne explains that at the time, “public executions owed much of their continuing legitimacy to the use of ritual.” The associated rituals could last for hours and included parading the condemned prisoner through the crowd with a coffin by his side and a noose around his neck, speeches by public officials and religious leaders denouncing the crime, and in some cases a repentance speech by the prisoner.
Over time, the colonies phased out the crueler methods of execution, and almost all death sentences were carried out by hanging. The colonies also rewrote their death penalty statutes to cover only serious crimes involving willful acts of violence or thievery. By the late 1700s typical death penalty crimes included arson, piracy, treason, murder, and horse stealing. Southern colonies executed people for slave stealing or aiding in a slave revolt. After the American Revolution (1775–1783), some states went further by adopting death penalty statutes similar to those of Pennsylvania, which in 1682 had limited its death penalty to treason and murder. New York built its first penitentiary in 1796. With a place to house burglars and nonviolent criminals, the state reduced its capital offenses from 13 to two. Other states followed suit by constructing large jails and cutting their capital offenses to just a few of the worst crimes.
Although the founders of the United States generally accepted the death penalty, many early Americans opposed capital punishment. During the late 18th century Benjamin Rush (1746–1813), a physician who helped establish the slavery abolition movement, decried capital punishment. He attracted the support of Benjamin Franklin (1706–1790), and it was at Franklin's home in Philadelphia, Pennsylvania, that Rush became one of the first Americans to propose a “House of Reform,” a prison where criminals could be detained until they changed their antisocial behavior. Consequently, in 1790 the Walnut Street Jail, the primitive seed from which the US penal system grew, was built in Philadelphia.
Rush published many pamphlets, the most notable of which was Considerations on the Justice and Policy of Punishing Murder by Death (1792). He argued that the biblical support given to capital punishment was questionable and that the threat of hanging did not deter crime. Influenced by the philosophy of the Enlightenment (a European intellectual movement during the 17th and 18th centuries), Rush believed the state exceeded its granted powers when it executed a citizen. Besides Franklin, Rush attracted many other Pennsylvanians to his cause, including William Bradford (1755–1795), the attorney general of Pennsylvania. Bradford suggested the idea of different degrees of murder, some of which did not warrant the death penalty. As a result, in 1794 Pennsylvania repealed the death penalty for all crimes except first-degree murder, which was defined as “willful, deliberate, and premeditated killing or murder committed during arson, rape, robbery, or burglary.”
Rush's proposals attracted many followers, and petitions aiming to abolish all capital punishment were presented in Massachusetts, New Jersey, New York, and Ohio. No state reversed its laws, but the number of crimes punishable by death was often reduced.
The second quarter of the 19th century was a time of reform in the United States. Capital punishment opponents rode the tide of righteousness and indignation created by antisaloon and antislavery advocates. Societies and organizations devoted to abolishing the death penalty sprang up, especially along the East Coast. For example, in 1845 the American Society for the Abolition of Capital Punishment was founded.
Prior to the 1830s, executions were mostly public (and festive) events that attracted large and sometimes unruly crowds. Maine outlawed public executions and in 1835 put into effect a temporary moratorium (suspension) of executions after one public execution brought in 10,000 people, many of whom became violent after the execution and had to be restrained by the police. Other states followed suit. According to Society's Final Solution, many capital punishment abolitionists were opposed to these measures. They believed that executions conducted in public would eventually arouse the revulsion of American society against capital punishment.
During the late 1840s Horace Greeley (1811–1872), the founder and editor of the New York Tribune and a leading advocate of many abolitionist causes, led the crusade against the death penalty. In 1846 Michigan became the first state to abolish the death penalty for all crimes except treason (until 1963), making it the first English-speaking jurisdiction in the world to abolish the death penalty for common crimes. Common crimes, also called ordinary crimes, are crimes committed during peacetime. Ordinary crimes that could lead to the death penalty include murder, rape, and, in some countries, robbery or embezzlement of large sums of money. In comparison, exceptional crimes are military crimes committed during exceptional times, mainly wartime. Examples are treason, spying, and desertion (leaving the armed services without permission). The Michigan law took effect in March 1847. In 1852 and 1853 Rhode Island and Wisconsin, respectively, became the first two states to outlaw the death penalty for all crimes. Most states began limiting the number of capital crimes. Outside the South, murder and treason became the only acts punishable by death.
As the Civil War (1861–1865) neared, concern about the death penalty was lost amid the growing antislavery movement. It was not until after the Civil War that Maine and Iowa abolished the death penalty. Almost immediately, however, their legislatures reversed themselves and reinstated the death penalty. In 1887 Maine again reversed itself and abolished capital punishment. It has remained an abolitionist state ever since. Colorado abolished capital punishment in 1897, a decision that was apparently against the will of many of its citizens. In 1901 the state restored the death penalty. Meanwhile, the federal government, following considerable debate in Congress, reduced the type of federal crimes punishable by death to treason, murder, and rape.
During the late 19th century the use of electricity came into favor as a new means of execution. According to Society's Final Solution, the Edison Company electrocuted animals in public demonstrations. In 1888 New York became the first state to tear down its gallows and erect an electric chair. Two years later the chair was first used on a convict named William Kemmler (1860–1890). Although electrocution was described as “clumsy, at best,” other states quickly embraced the electric chair for carrying out capital punishment.
At the start of the 20th century, death penalty abolitionists again benefited from American reformism as the Progressives (liberal reformers) worked to correct perceived problems in the US legal system. Society's Final Solution reports that by 1917 capital punishment had been abolished or limited to only a handful of serious crimes in nine states. Many of these states, however, reversed their decisions in the following decades. The Prohibition era (1920–1933), which was characterized by frequent disdain for law and order, almost destroyed the abolitionist movement, as many Americans began to believe that the death penalty was the only proper punishment for criminals who committed murder.
The movement's complete collapse was prevented by the determined efforts of Clarence Darrow (1857–1938), the “attorney for the damned”; Lewis Edward Lawes (1883–1947), the abolitionist warden of Sing Sing Prison in New York; and the American League to Abolish Capital Punishment (founded in 1927). Nevertheless, between 1917 and 1957 no state abolished the death penalty.
Society's Final Solution reports that the abolitionist movement made a mild comeback during the mid-1950s. In 1957 the US territories of Alaska and Hawaii abolished the death penalty. In the states, however, the movement's singular success in Delaware (1958) was reversed three years later (1961), a major disappointment for death penalty opponents. In 1963 Michigan, which in 1847 had abolished capital punishment for all crimes except treason, finally outlawed the death penalty for that crime as well. Oregon (1964), Iowa (1965), New York (1965), Vermont (1965), West Virginia (1965), and New Mexico (1969) all abolished capital punishment, whereas many other states sharply reduced the number of crimes punishable by death.
Until the mid-20th century there was legally no question that the death penalty was acceptable under the US Constitution. In 1958, however, the US Supreme Court opened up the death penalty for reinterpretation when it ruled in Trop v. Dulles (356 US 86) that the language of the Eighth Amendment (which states that criminals cannot be subjected to a cruel and unusual punishment) held the “evolving standards of decency that mark the progress of a maturing society.” Opponents of capital punishment believed the death penalty should be declared unconstitutional in light of the Trop decision (which did not specifically address capital punishment). The abolitionists claimed that society had evolved to a point where the death penalty was cruel and unusual by the established “standards of decency.” Under this reasoning, the death penalty violated the Eighth Amendment to the Constitution.
In 1963 Justice Arthur J. Goldberg (1908–1990) dissented in Rudolph v. Alabama (375 US 889), concerning a rape case in which the defendant had been sentenced to death. Joined by Justices William O. Douglas (1898–1980) and William J. Brennan (1906–1997), Justice Goldberg raised the question of the legality of the death penalty. The filing of many lawsuits during the late 1960s led to an implied moratorium on executions until the court could decide whether the death penalty was constitutional.
In 1972 the high court finally handed down a landmark decision in Furman v. Georgia (408 US 238), when it ruled that the death penalty violated the Eighth and 14th Amendments (the right to due process) because of the arbitrary nature with which the death penalty was administered across the United States. The court also laid down some guidelines for states to follow, declaring that a punishment was cruel and unusual if it was too severe, arbitrary, or offended society's sense of justice.
Before the late 1960s US death penalty laws varied considerably from state to state and from region to region. Few national standards existed on how a murder trial should be conducted or which types of crimes deserved the death penalty. Specifically, Furman brought into question the laws of Georgia and a number of other states that allowed juries complete discretion in delivering a sentence. Critics feared the punishments such juries meted out were arbitrary and discriminatory against minorities.
Within a year of the Supreme Court's ruling in Furman, most states updated their laws regarding the death penalty. Many of these new statutes were brought before the high court during the mid-1970s. By issuing rulings on the constitutionality of these state statutes, the court created a more uniform death penalty system for the United States.
States amended their laws once again after the Supreme Court issued the new rulings. Every state switched to a bifurcated (two-part) trial system, where the first trial is used to determine a defendant's guilt, and the second trial determines the sentence of a guilty defendant. Generally, only those convicted of first-degree murder became eligible for the death penalty. Most states also required the jury or judge in the sentencing phase of the trial to identify one or more aggravating factors (circumstances that may increase responsibility for a crime) beyond a reasonable doubt before they could sentence a person to death. State legislatures drafted lists of aggravating factors that could result in a penalty of death. Typical aggravating factors included murders with multiple victims, murders committed during other serious crimes (such as rape), and murders of on-duty police officers. The long appeals process for capital cases was also established during the mid-1970s.
With the Supreme Court–approved laws in place, the states resumed executions. In January 1977 the nationwide moratorium ended when the state of Utah executed Gary Gilmore (1940–1977). Gilmore had been convicted of killing Ben Bushnell, a motel manager, in Provo, Utah, on July 20, 1976. Authorities had also charged him with the July 19 murder of Max Jensen, a gas station attendant, in Orem, Utah. Gilmore received the death penalty for the Bushnell murder. He refused to appeal his case, demanding that his sentence be carried out swiftly. Gilmore requested the state supreme court grant his wish because he did not want to spend his life on death row. The court granted his wish, but interventions by Gilmore's mother, as well as by anti–death penalty organizations, resulted in several stays (postponements) of execution. These organizations were concerned that the defendant's refusal to appeal his case and the court's agreement to carry out his wish might establish a precedent that would hurt the causes of other inmates. After several suicide attempts, Gilmore was finally executed by firing squad in January 1977.
Several other states reinstated the death penalty after the Supreme Court declared it constitutional. Oregon brought back the death penalty in 1978. In 1995 New York became the 38th state to reinstate the death penalty, ending its 30-year ban on capital punishment. (It was effectively abolished again in 2004, when the New York Supreme Court ruled that the law violated the state constitution.)
After the nationwide moratorium ended in 1977, the number of executions per year began to rise. Executions hit the double digits in 1984, when 21 inmates were put to death in the United States, and peaked in 1999, when 98 inmates were executed. The number of inmates put to death then began to decrease, falling to 20 in 2016. These numbers were much smaller than the number of executions that occurred during the early part of the 20th century. In 1938 alone, for instance, 190 people were executed. Overall, between 1977 and 2017, 1,465 people were put to death. More than 400 people were on death row in 1977. The number climbed dramatically over the following decades, peaking at just over 3,600 in 2000. It then began a downward trend, dropping to 2,881 in 2015. These statistics clearly show the rarity with which executions are carried out in the United States, compared with the large number of people under the sentence of death. The number of executions that have taken place each year in the 21st century is in the double digits, even though thousands of inmates are under the sentence of death. (Tracy L. Snell, “Figure 2. Number of Persons under Sentence of Death, 1953–2013,” “Figure 4. Persons Executed in the United States, 1930–2013,” and “Figure 5. Advanced Count of Executions, January 1, 2014–December 31, 2014,” in Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014).
The increasing use of capital punishment during the 1980s and early 1990s was in part a response to rising homicide rates in the country. In the early 1960s the number of homicides committed each year began to soar dramatically. The homicide rate more than doubled from 4.6 cases per 100,000 population in 1962 to 10.2 cases per 100,000 population in 1980. After falling slightly during the early 1980s, it surged again, reaching its penultimate (second-highest) level in 1991, when 9.8 homicides occurred for every 100,000 people. Since then the rate has generally declined. It dropped to 4.4 cases per 100,000 population in 2014 and then increased to 5.3 cases per 100,000 population in 2016 (Snell, Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014; Alexia Cooper and Erica L. Smith, Homicide Trends in the United States, 1980–2008, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2011).
The United States also experienced a surge of homicides in the early 1930s, during the Prohibition era. As mentioned earlier, this was a time when support for the death penalty strengthened throughout the country, and the number of executions was historically high at that time (Snell, Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014).
US Supreme Court decisions continued to redefine state death penalty laws well after the Furman opinion. In particular, the court has ruled the death penalty to be unconstitutional for three groups of defendants: the insane, the intellectually disabled, and juveniles.
In Ford v. Wainwright (477 US 399 ), the US Supreme Court ruled that executing an insane person constituted a cruel and unusual punishment and was thus in violation of the Eighth Amendment. Because a precedent did not exist in US legal history about executing the insane, the justices looked to English common law to make this ruling. English law expressly forbade the execution of insane people. The English jurist Sir Edward Coke (1552–1634) observed that even though the execution of a criminal was to serve as an example, the execution of a madman was considered “of extream inhumanity and cruelty, and can be no example to others.”
In 1989 the Supreme Court held in Penry v. Lynaugh (492 US 302) that it was not unconstitutional to execute an intellectually disabled person found guilty of a capital crime. According to the court, there was no emerging national consensus against such execution. Just two death penalty states (Georgia and Maryland) banned putting intellectually disabled people to death. In 1988 Georgia became the first state to prohibit the execution of murderers found guilty but intellectually disabled. The legislation resulted from the 1986 execution of Jerome Bowden, who had an intelligence quotient (IQ) of 65. It is generally accepted that an IQ below 70 is evidence of intellectual disability. In 1988 Maryland passed similar legislation, which took effect in July 1989.
Between 1989 and 2001, 18 states outlawed the execution of offenders with intellectual disability. The federal government also forbids the execution of intellectually disabled inmates. In the Anti-Drug Abuse Act of 1988 the government permits the death penalty for any person working “in furtherance of a continuing criminal enterprise or any person engaging in a drug-related felony offense, who intentionally kills or counsels, commands, or causes the intentional killing of an individual,” but it forbids the imposition of the death penalty against anyone who is intellectually disabled who commits such a crime. In 1994 Congress enacted the Federal Death Penalty Act, which added more than 50 crimes punishable by death; it also exempted people with intellectual disability from the death sentence.
Although the Supreme Court had agreed to review the case of the North Carolina death row inmate Ernest McCarver in 2001 to consider whether it is unconstitutional to execute inmates with intellectual disability, the case was rendered moot when North Carolina passed a state bill banning such executions. In June 2002 the Supreme Court finally ruled on a case involving the execution of intellectually disabled convicts. In Atkins v. Virginia (536 US 304), the court ruled 6–3 that executing the intellectually disabled violates the Eighth Amendment ban against a cruel and unusual punishment. The court did not specifically define intellectual disability, leaving it to the states to set their own definitions.
The term juvenile varies under state criminal statutes. For example, some states consider people aged 17 years and younger to be juveniles, whereas other states define juveniles as those aged 16 years and younger. Literature on the death penalty typically considers “juvenile offenders” as people who were under the age of 18 years when they committed their crimes. According to Victor L. Streib of Ohio Northern University, in The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973–February 28, 2005 (2005), the first execution of a juvenile in the United States took place in Plymouth Colony, Massachusetts, in 1642. Streib estimates that between 1642 and 2003, 366 inmates who were juveniles during the commission of their crimes were executed in the United States. In “Executing Female Juveniles” (Connecticut Law Review, vol. 22, no. 1, Fall 1989), Victor L. Streib and Lynn Sametz note that only 10 of the executed juveniles were females.
According to the Death Penalty Information Center (DPIC), 22 inmates who were juveniles at the time of their crimes were executed between 1973 and 2003 (i.e., during the modern death penalty era). Texas executed 13 of these juvenile offenders, followed by Virginia (three) and Oklahoma (two). Georgia, Louisiana, Missouri, and South Carolina each executed one juvenile offender. One of the executed juveniles was 16 years old when he committed a capital crime; the other 21 juveniles were aged 17 years when they committed capital crimes.
In Roper v. Simmons (543 US 551 ), the court decided that executing Donald Roper was cruel and unusual based on the fact that Roper was younger than age 18 when he committed murder. The majority reasoned that adolescents do not have the emotional maturity or understanding of lasting consequences that adults have and therefore should not be held to an adult standard or punished with a sentence of death. All states with the death penalty subsequently changed their laws to prohibit death sentences for people under the age of 18 years.
Deoxyribonucleic acid (DNA) is a molecule that carries genetic information and hereditary material. During the 1980s and 1990s DNA testing procedures advanced to the point where such evidence could be used in criminal cases. Across the United States, police suddenly had the ability to identify a suspect and place him or her squarely at the scene of a crime with a small sample of hair, blood, or other biological material. States started collecting biological samples, such as blood and saliva, from criminal offenders and storing DNA profiles in databases.
In 1994 Virginia became the first state to execute a person who was convicted as a result of DNA evidence. The defendant, Timothy Spencer, was convicted in 1988 and sentenced to death for the rapes and murders of four women: Diane Cho, Debbie Davis, Susan Hellams, and Susan Tucker. Spencer was also suspected of killing at least one other woman. In 2002 Virginia became the first state to execute someone based on a DNA “cold hit” when it executed James Earl Patterson in March 2002. (A cold hit is when DNA evidence collected at a crime scene matches a DNA profile already in a database.) In 1999 Patterson was in prison on a rape conviction when DNA from the 1987 rape and murder of Joyce Aldridge was found to match his DNA profile in the database. He confessed to the Aldridge crime in 2000 and was sentenced to death. Patterson waived his appeals to let his execution proceed as scheduled.
Not only has DNA evidence been useful in convicting felons but also it has been crucial in proving the innocence of falsely convicted individuals. Kirk Bloodsworth of Maryland was the nation's first death row inmate to be exonerated (cleared) based on post-conviction DNA testing. Bloodsworth was convicted for the rape and murder of nine-year-old Dawn Hamilton in 1984. He was sentenced to death in 1985. On retrial, Bloodsworth received two life terms. DNA testing in 1992 excluded him from the crime. In 1993 Bloodsworth was released from prison. In 1999 the state paid Bloodsworth $300,000 for wrongful conviction and imprisonment, including time on death row.
The use of DNA as an evidentiary tool is a relatively new phenomenon. Many inmates on death rows around the country as of 2018 were convicted and sentenced decades ago, before DNA testing was common. The Bloodsworth case made clear that legal mechanisms needed to be established to allow post-conviction DNA testing, but change was slow in coming. The federal government did not pass such a law (the Innocence Protection Act) until 2004. All 50 states have also enacted legislation permitting post-conviction DNA testing; however, critics claim that the laws are too narrow in scope and include legal hurdles that are difficult to overcome.
During the 1980s and early 1990s public opinion polls showed strong support for capital punishment. As noted earlier, annual polling conducted by Gallup found support reached its highest level in 1994, when 80% of Americans favored use of the death penalty for murderers.
Beginning in the mid-1990s support for capital punishment decreased for a variety of reasons. The advent of DNA testing resulted in highly publicized cases of inmates being released from prison and even from death row. Abolitionists seized on these opportunities as proof that the US capital punishment system was flawed. In addition, studies were released suggesting that racial biases were occurring in death penalty cases, particularly that defendants who killed white victims were more likely to receive the death penalty than defendants who killed African American victims.
Another factor in the decline of death sentences was wider application of life sentences with no chance for parole. According to the DPIC, in “Year That States Adopted Life without Parole (LWOP) Sentencing” (2018), prior to the 1990s only 25 jurisdictions had life without parole sentences. They were joined by 22 additional jurisdictions during the 1990s and six more during the first decade of the 21st century. Texas, the most active state to carry out executions, added a life without parole option in 2005. As of March 2018, the federal and US military justice systems, the District of Columbia, and all states except Alaska had life without parole sentences.
The annual number of death sentences issued nationwide decreased dramatically from a peak of 330 in 1994 to 49 in 2015 (Snell, Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014). Of the 1,465 executions conducted from 1977 through 2017, the largest numbers occurred in the following states:
Together, these 10 states accounted for 1,225 executions, or 84% of the total.
By the start of the 21st century, capital punishment had been abolished in Canada and in nearly all of Europe, which led to intense criticism in the international press of the continued use of the death penalty in the United States. Pope John Paul II (1920–2005) also condemned capital punishment. Two popular movies—Dead Man Walking (1995) and The Green Mile (1999)—raised questions about the morality of the death penalty.
Three particular death penalty cases also ignited the debate about the morality of capital punishment. Karla Faye Tucker became a born-again Christian while on death row in Texas for the brutal 1983 slayings of Jerry Lynn Dean and Deborah Thornton. In the months leading up to her execution in 1998, Tucker received widespread media attention and garnered support nationally and internationally for commutation of her sentence to life in prison. Her supporters included some unlikely allies: a handful of conservative-minded religious and political figures who believed that Tucker's religious conversion merited clemency (an act of leniency by a convening authority to reduce a sentence). Nevertheless, George W. Bush (1946–), the Texas governor, signed her death warrant, and she was executed in February 1998.
The execution of Stanley “Tookie” Williams also garnered considerable public attention. Williams received a death sentence for the 1979 killings of four people during robberies: Albert Owens, Yen-I Yang, Tasi-Shai Yang, and Yee-Chen Lin. At the time of the murders, Williams was a leading figure in the notorious and violent Crips gang in Los Angeles, California. During his decades on death row he became an outspoken critic of gangs and wrote books encouraging children to avoid gangs and violence. For his work he received nominations for the Nobel Peace Prize. His supporters included Hollywood celebrities who lobbied the California governor Arnold Schwarzenegger (1947–) for clemency, arguing that Williams had redeemed himself while in prison. The governor refused, noting that Williams had never expressed remorse for his crimes. He was executed in December 2005.
The 2011 execution of Troy Davis, a Georgia death row inmate, captured widespread public attention and spurred anti–death penalty demonstrations around the world. Davis was convicted of the 1989 murder of Mark MacPhail, an off-duty police officer, and sentenced to death. Davis's conviction was based almost entirely on the testimony of seven eyewitnesses to the crime and two people who claimed that Davis confessed to them afterward. However, over subsequent years seven of these individuals issued recantations (official denials) of portions or all of their original statements.
Human rights groups and prominent public figures, including former president Jimmy Carter (1924–), advocated for Davis to receive a new trial. In 2009 the US Supreme Court ordered a US district court to hold an evidentiary hearing on the case. At the 2010 hearing the district court discounted the authenticity and evidentiary importance of the recantations and allowed the death sentence to stand. Davis exhausted his remaining appeals. As his execution date approached, hundreds of thousands of people signed petitions calling for him to be pardoned, but the request was denied by the Georgia State Board of Pardons and Paroles. Davis was executed in September 2011.
Davis's supporters believe that he was innocent or that sufficient doubt existed to justify overturning his death sentence. To them the case epitomizes the tragic shortcomings and irreversible nature of capital punishment. Death penalty advocates argue that Davis's claims of innocence were carefully considered by the legal system and ultimately rejected for lack of merit. They believe that his execution was just punishment for the horrific crime of which he was convicted.
The Great Recession of 2007 to 2009 spurred some states to reconsider the financial costs associated with administering the death penalty. In general, capital cases are costlier than noncapital homicide cases because they take much longer to proceed through the court system. Legal safeguards, such as automatic appeals, mean that judges, prosecutors, and defense attorneys spend more time on capital cases. Because the vast majority of capital defendants cannot afford to pay for their attorneys, these litigation costs are largely paid with tax dollars. In addition, there are extra expenses associated with housing death row inmates, because they are kept in specially designed facilities and receive much more intense supervision than do inmates not on death row.
In 2007 New Jersey abolished capital punishment and changed all existing death sentences to life sentences. In 2009 New Mexico eliminated the death penalty for new capital crimes; however, inmates already under the sentence of death retained those sentences. The state's governor abolished capital punishment due to concerns about racial bias in its administration and the growing number of exonerations. In 2011 Illinois abandoned the death penalty and resentenced all death row inmates to life in prison without the possibility of parole. Again, concerns about capital punishment's fairness and accuracy were driving factors. Connecticut (2012) and Maryland (2013) also abolished the death penalty for new crimes, but already-condemned prisoners remained under the sentence of death. By August 2015 all four death row inmates in Maryland had been resentenced to life in prison with no chance for parole. Also in August 2015 the Connecticut Supreme Court found that state's death penalty law to be unconstitutional and ordered the lower courts to resentence the 11 men then on death row in Connecticut to life in prison with no chance for parole.
In 2015 the Nebraska legislature voted to abolish capital punishment due in large part to cost considerations. Governor Pete Ricketts (1964–) vetoed the bill, but the legislature overruled his veto. The death penalty repeal did not last long. During the November 2016 elections, voters in Nebraska voted to reinstate capital punishment. A more surprising outcome occurred that month in California. Voters there rejected a ballot measure to abolish the death penalty and narrowly approved multiple changes to state law to speed up appeals, lower costs, and alleviate various legal hurdles associated with capital punishment in the state. These actions raised the possibility that California could begin executions again. The state has the largest number of prisoners under the sentence of death in the country, but it has not executed anyone since 2006 (Snell, Capital Punishment in the United States, 2013—Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014). It ceased executions after courts found its lethal injection protocol to be unconstitutional. All death penalty states have struggled with legal challenges of this type and have been forced to repeatedly tweak their protocols and take extraordinary measures to procure drugs for executions.
In 2016 and 2017 court decisions at the state and federal level forced Alabama and Florida to amend their capital punishment laws. Both states had allowed judges to override jury recommendations for life sentences and impose death sentences instead, but this practice was found to be unconstitutional. Delaware had also allowed the practice, but in 2016 the Delaware Supreme Court ruled the state's death penalty statute unconstitutional. As of March 2018, the state legislature had not rewritten the statute, effectively leaving Delaware without a death penalty.
Florida law had also allowed death sentences to be imposed via non-unanimous jury decisions. The Florida Supreme Court found this practice unconstitutional, and the law was subsequently amended. Dozens of inmates who had been sentenced to death under the old system became eligible for resentencing hearings.
The moratorium on the death penalty in the United States between 1967 and 1976 paralleled a general worldwide movement, especially among Western nations, toward the abolition of capital punishment. Although the United States resumed executions in 1977, most of the Western world either formally or informally abolished capital punishment.
As of March 2018, among the developed democratic nations (with which the United States traditionally compares itself), only the United States and Japan imposed the death penalty. There are technical exceptions: for example, Israel maintains the death penalty in its statute books for “crimes against mankind” but has executed only Adolf Eichmann (1906–1962). As a Schutzstaffel (SS) officer, Eichmann was responsible for the murder of millions of Jews in Nazi-occupied Europe during the Holocaust and World War II (1939–1945). Some countries still maintain the death penalty for treason, although no Western democracy has actually imposed it. One of the first acts of the parliaments of many of the east European countries after the fall of communism during the early 1990s was to abolish capital punishment.
Amnesty International reports in Death Sentences and Executions 2016 (April 2017) that 55 countries around the world continued to maintain and use the death penalty for ordinary crimes in 2016. Nevertheless, some of these countries had not actually implemented a death sentence for many years. In addition, the organization estimates that there were at least 1,032 executions (excluding China) carried out in 23 countries in 2016. China is believed to have conducted thousands of executions that year, but the exact number is a state secret. According to Amnesty International, the five countries with the highest number of executions in 2016 were China (1,000s), Iran (567+), Saudi Arabia (154+), Iraq (88+), and Pakistan (87+).
This in-depth article examines US state legislation that has impacted death sentencing in capital crimes. The analysis suggests that adequate provision of counsel by states in death penalty cases correlates to reduced imposition of death sentences.
This article traces the history of anti-death penalty arguments in three US states: Connecticut, Kansas, and Texas. The authors find that the rhetoric around abolition in these regions has been framed differently over time, with more recent arguments focusing on the relationship between wrongful convictions and executions.
This article examines the imposition of death sentences by geographic locale in the United States. While death sentences have fallen across the country since the 1970s, the majority of executions that have taken place are attributable to a relatively small number of counties. The author considers reasons for the decline in capital punishment, as well as how geographical variance impacts the debate over execution as a fair and just punishment.