History of the Death Penalty

NEW RESOURCES: Podcasts on Individual States

DPIC is beginning a new series of podcasts based on the history of the death penalty in each state. The series will first present the states that have ended the death penalty. Three podcasts, featuring Michigan, Wisconsin, and Maine, are now available. These short audio clips summarize the history surrounding the repeal of the death penalty in those states, including famous cases, issues that spurred legislators to take action, and subsequent attempts at reinstatement of the death penalty. We hope this new series will be an excellent resource for students researching their state's history, and for anyone curious about how historical events shaped our present-day capital punishment system. Our earlier series of podcasts dealt with the many issues surrounding the death penalty. You can listen to these and all of our podcasts on our Podcasts page or by subscribing on iTunes.

LAW REVIEWS: The American Experiment with Capital Punishment

A recent law review article by Professors Carol and Jordan Steiker describes how the Supreme Court's attempt to closely regulate the death penalty has led instead to more unpredictability in its practice, especially with executions. Writing in the Southern California Law Review, the Steikers, of Harvard Law School and the University of Texas Law School respectively, note that, "[T]he shape of contemporary death penalty practice is in many respects less regular than the practice it replaced. ... Some death penalty jurisdictions execute a substantial percentage of those sentenced to death, whereas others carry out virtually no executions. Overall, we have largely replaced a lottery for death sentences with a lottery for executions, and the engine behind that change is regulation itself." As an example, the authors point to Texas and Virginia, which have been responsible for almost half (620) of the executions in the modern era. On the other hand, California and Pennsylvania, which have had more death sentences than Texas and Virginia, have carried out only 16 executions in the same time span. The Steikers conclude that the death penalty's arbitrariness may lead to its abolition: "regulation now appears to pose extraordinary problems for the continued retention of the death penalty."

BOOKS: "Gruesome Spectacles" Reveals the History of Botched Executions

A new book, Gruesome Spectacles: Botched Executions and America's Death Penalty, describes the history of flawed executions in the U.S. from 1890 to 2010. During that period, 8,776 people were executed and 276 of those executions went wrong in some way. Of all the methods used, lethal injection had the highest rate of botched executions--about 7%. Austin Sarat, the author of the book and a professor of jurisprudence and political science at Amherst College, described the evolution of new methods of execution: "With each development in the technology of execution, the same promises have been made, that each new technology was safe, reliable, effective and humane. Those claims have not generally been fulfilled." In an interview, Sarat was asked how the recent botched execution of Clayton Lockett might affect the public discussion on the death penalty. He replied, "This execution has happened at a time of national reconsideration of capital punishment. The death penalty is really declining. I’m tempted to say it’s dying in the United States. Public support is down, the number of death sentences over the last decade or so has been cut by two thirds, the number of executions is down by about 50 percent. More and more, Americans are focusing on the practical realities and worrying that while the death penalty might in some abstract way satisfy some people, when you look at how it’s actually administered, maybe it’s not worth the cost."

Furman v. Georgia Reenactment Raises Questions of Arbitrariness

The Georgia State Bar's constitutional symposium recently staged a reenactment of Furman v. Georgia, the U.S. Supreme Court case that led to the temporary suspension of the death penalty in 1972. Stephen Bright (pictured), president of the Southern Center for Human Rights, played the role of Anthony Amsterdam, who argued on behalf of death row inmates in two of the four cases that the Court decided in Furman. The roles of the justices were performed by Georgia Supreme Court Chief Justice Hugh Thompson, Georgia Court of Appeals Chief Judge Herbert Phipps and Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Bright argued that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment because it was applied rarely and randomly. The judges asked about many of the details of Furman's trial, noting that the entire trial took just six hours, and that blacks and Jews were excluded from the jury. The judges in the reenactment did not offer their opinions on the case, but the real Furman v. Georgia resulted in a 5-4 decision to suspend the death penalty, with some in the majority saying it was imposed arbitrarily and others saying the death penalty was unconstitutional in all cases.

DPIC Website To Be Archived By Library of Congress

The Death Penalty Information Center's website has been selected for inclusion in the archives of the U.S. Library of Congress. DPIC's materials will be part of the Library's historic collection of Internet resources on public policy topics, which will be made available to researchers at Library of Congress facilities, and may also be available on the Library's public access website at a later date. The Library's Web Archiving Team said, "Our web archives are important because they contribute to the historical record, capturing information that could otherwise be lost. With the growing role of the web as an influential medium, records of historic events could be considered incomplete without materials that were 'born digital' and never printed on paper." They noted that they consider DPIC's website "to be an important part of this collection and the historical record." We are honored for this designation.

Toobin on America's Ambivalence Toward the Death Penalty

Jeffrey Toobin, writing in The New Yorker, used the current scramble among states to procure the drugs for lethal injections as a paradigm of the much longer effort to make the death penalty palatable to the American public. "The story of the death penalty in this country," he wrote, "illustrates a characteristically American faith in a technological solution to any problem." However, Toobin concluded, technology can not cover up the broader problems of capital punishment: "The oxymoronic quest for humane executions only accentuates the absurdity of allowing the death penalty in a civilized society." He ended highlighting the declining public support for the death penalty, as well as the drop in executions and death sentences across the country.

Changing Views of Supreme Court Justices on the Death Penalty

Andrew Cohen, writing in The Atlantic, recently examined the evolution in thinking on the death penalty among Supreme Court Justices. Cohen noted that Justices John Paul Stevens (pictured), Lewis Powell, and Harry Blackmun all upheld new death-penalty statutes in Gregg v. Georgia (1976), thereby ushering in a return to capital punishment. All three, however, later said the death penalty under these statues was not being applied constitutionally. Justice Powell told his biographer, "I have come to think that capital punishment should be abolished." In a 1994 dissenting opinion, Justice Blackmun famously said, "I no longer shall tinker with the machinery of death." Justice Stevens sharply criticized the death penalty because of problems in the areas of wrongful convictions, racial bias, jury selection, and prosecutorial power. Cohen also noted the evolution in Justice Sandra Day O'Connor's views on the death penalty. However, he found no Justices who went from opposing the death penalty to supporting it.

Upon Nelson Mandela's Death, Recalling First Act of South Africa's Constitutional Court

When South Africa's Constitutional Court was created under then-President Nelson Mandela, its first act was to abolish the death penalty. Justice Arthur Chaskalson, President of the Court, announced its unanimous decision on June 7, 1995, stating, "Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional....Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be." Under apartheid, the death penalty had been applied much more often to blacks than to whites. Mandela, himself, faced the possibility of a death sentence in his 1962 trial for incitement.

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