History of the Death Penalty

NEW VOICES: Doubts About the Death Penalty Among American Founders

In a recent op-ed in the National Law Journal, historian John Bessler described the ambivalence among American founders toward the death penalty. He noted, "Although early U.S. laws authorized executions, the founders greatly admired a now little-known Italian writer, Cesare Beccaria, who fervently opposed capital punishment. They also were fascinated by the penitentiary system's potential to eliminate cruel punishments." Thomas Jefferson wrote, "Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death." James Madison, the father of the Constitution, was one of several founding fathers who sought to reduce the number of executions, saying, "I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it." Bessler concluded, "[T]he Founding Fathers were deeply ambivalent about capital punishment. Indeed, they embraced the principle of Montesquieu and Beccaria that any punishment that goes beyond what is 'absolutely necessary' is 'tyrannical.' In an era of maximum-security prisons and life-without-parole sentences, the death penalty can no longer be considered necessary."

Florida's Troubled History With the Death Penalty

A recent retrospective in the Fort Myers Florida Weekly on the state's death penalty traced some of the problems that have arisen since Florida resumed executions in 1979. During the execution of Jesse Tafero in 1990, six-inch flames shot from the prisoner’s head, and three separate jolts of electricity were required to kill him. Prison officials attributed it to “inadvertent human error.” In the execution of Pedro Medina in 1997, flames and smoke again spewed out from under the head gear. Ron McAndrew, the warden at the time, recently remarked, “For the next 11 minutes, instead of electrocuting this man, we burned him to death. We literally burned him to death.” Florida Supreme Court Justice Leander Shaw called such executions “barbaric spectacles” and said they were “acts more befitting a violent murderer than a civilized state.” Florida also has more exonerations (24) from death row than any other state. It is the only state that allows a jury to recommend a death sentence by a simple majority; most states require unanimity. The state's recent passage of the Timely Justice Act, designed to speed up executions, has raised concerns that it will reduce death row inmates' opportunities to prove their innocence.

NEW RESOURCES: Podcast Series on Each State's Death Penalty

DPIC has recently added four podcasts to our new series on important facts about the death penalty in each state. Seven state podcasts are now available: Michigan, Wisconsin, Maine, Minnesota, North Dakota, Alaska, and Hawaii. We expect to add new episodes each week, with two more coming tomorow (Oct. 17). The series has begun with states that have abolished the death penalty, and focuses on the developments leading to repeal in those states. The issues that brought those states to abolition are often similar to the ones states with the death penalty are facing today, including wrongful convictions, unfairness, and the methods of execution. We hope this new series will be an excellent resource for those interested in the diversity of positions states have taken on this key social question and for students researching their state's history. Our earlier series of podcasts, DPIC on the Issues covers a variety of topics related to the death penalty, including Innocence, Costs, and Lethal Injection. You can listen to all of our podcasts on our Podcasts page or by subscribing on iTunes.

BOOKS - CONSTITUTION DAY: "The Birth of American Law"

In The Birth of American Law: An Italian Philosopher and the American Revolution, historian John Bessler reveals the profound influence that the Italian thinker, Cesare Beccaria, had on the constitutional founders of the United States, including George Washington and John Adams. Beccaria's bestselling book, On Crimes and Punishments, argued against torture and the death penalty, saying only punishments proven absolutely necessary should be used. Bessler shows that the death penalty was more controversial at the writing of the constitution than is often assumed today. America did abandon England's Bloody Code and eventually most corporal punishment, but still retains capital punishment. Julie Silverbrook, executive director of The Constitutional Sources Project, said of the book, "John Bessler masterfully and comprehensively traces how Cesare Beccaria’s On Crimes and Punishments deeply affected early American views on crime and the proportionality of punishments for crime. Just as John Adams gifted Beccaria’s treatise to his sons, John Bessler has gifted Beccaria to a new generation of Americans."

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.

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