Part II: History of the Death Penalty

Timeline

Eighteenth Century B.C. - First established death penalty laws.

Eleventh Century A.D. - William the Conqueror will not allow persons to be hanged except in cases of murder.

1608 - Captain George Kendall becomes the first recorded execution in the new colonies.

1632 - Jane Champion becomes the first woman executed in the new colonies.

1767 - Cesare Beccaria's essay, On Crimes and Punishment, theorizes that there is no justification for the state to take a life.

Late 1700s - United States abolitionist movement begins.

Early 1800s - Many states reduce their number of capital crimes and build state penitentiaries.

1823-1837 - Over 100 of the 222 crimes punishable by death in Britain are eliminated.

1834 - Pennsylvania becomes the first state to move executions into correctional facilities.

1838 - Discretionary death penalty statutes enacted in Tennessee.

1846 - Michigan becomes the first state to abolish the death penalty for all crimes except treason.

1890- William Kemmler becomes first person executed by electrocution.

Early 1900s - Beginning of the "Progressive Period" of reform in the United States.

1907-1917 - Nine states abolish the death penalty for all crimes or strictly limit it.

1920s - 1940s - American abolition movement loses support.

1924 - The use of cyanide gas introduced as an execution method

1930s - Executions reach the highest levels in American history - average 167 per year.

1948 - The United Nations General Assembly adopts the Universal Declaration of Human Rights proclaiming a "right to life."

1950-1980 - De facto abolition becomes the norm in Western Europe.

1958 - Trop v. Dulles. Eighth Amendment's meaning contained an "evolving standard of decency that marked the progress of a maturing society."

1966 - Support of capital punishment reaches all-time low. A Gallup poll shows support of the death penalty at only 42%.

1968 - Witherspoon v. Illinois. Dismissing potential jurors solely because they express opposition to the death penalty held unconstitutional.

1970 - Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials.

June 1972 - Furman v. Georgia. Supreme Court effectively voids 40 death penalty statutes and suspends the death penalty.

1976 - Gregg v. Georgia. Guided discretion statutes are approved and the death penalty is reinstated.

January 17, 1977 - Ten-year moratorium on executions ends with the execution of Gary Gilmore by firing squad in Utah.

1977 - Oklahoma becomes the first state to adopt lethal injection as a means of execution.

1977 - Coker v. Georgia. The death penalty is an unconstitutional punishment for the rape of an adult woman when the victim is not killed.

December 7, 1982 - Charles Brooks becomes the first person executed by lethal injection.

1984 - Velma Barfield becomes the first woman executed since the reinstatement of the death penalty.

1986 - Ford v. Wainwright. Execution of insane persons banned.

1986 - Batson v. Kentucky. Prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for his or her strikes.

1987 - McCleskey v. Kemp. Racial disparities not recognized as a constitutional violation of "equal protection of the law" unless intentional racial discrimination against the defendant can be shown.

1988 - Thompson v. Oklahoma. Executions of offenders age fifteen and younger at the time of their crimes is unconstitutional.

1989 - Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

1989 - Penry v. Lynaugh. Executing persons with "mental retardation" is not a violation of the Eighth Amendment.

1993 Herrera v. Collins. With the absence of other constitutional grounds, new evidence of innocence is no reason for a federal court to order a new trial.

1994 - President Clinton signs the Violent Crime Control and Law Enforcement Act expanding the federal death penalty.

1996 - President Clinton signs the Anti-Terrorism and Effective Death Penalty Act restricting review in federal courts.

1998 - Karla Faye Tucker and Judi Buenoano executed. 

November 1998 - Northwestern University holds the first-ever National Conference on Wrongful Convictions and the Death Penalty. The Conference brings together 30 inmates who were freed from death row because of innocence.

January 1999 - Pope John Paul II visits St. Louis, Missouri and calls for the end of the death penalty.

April 1999 - U.N. Human Rights Commission Resolution Supporting Worldwide Moratorium On Executions.

June 1999 - Russian President, Boris Yeltsin, signs a decree commuting the death sentences of all convicts on Russia's death row.

January 2000 - Illinois Governor George Ryan declares a moratorium on executions and appoints a blue-ribbon commission on capital punishment to study the issue.

2002 - Ring v. Arizona. A death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury.

2002 - Atkins v. Virginia. The  execution of "mentally retarded" defendants violates the Eighth Amendment's ban on cruel and unusual punishment.

January 2003 - Gov. George Ryan grants clemency to all of the remaining 167 death row inmates in Illinois because of the flawed process that led to these sentences.

June 2004 - New York's death penalty law declared unconstitutional by the state's high court.

March 2005
- Roper V. Simmons. The death penalty for those who commit crimes under 18 years of age is cruel and unusual punishment.

December 2007 - The New Jersey General Assembly votes to become the first state to legislatively abolish capital punishment since it was re-instated in 1976.

February 2008 - The Nebraska Supreme Court rules electrocution, the sole execution method in the state, to be cruel and unusual punishment, effectively freezing all executions in the state.

June 2008 - Kennedy v. Louisiana. Capital punishment cannot apply to those convicted of child rape where no death occurs.

March 2009 - Governor Bill Richardson signs legislation to repeal the death penalty in New Mexico, replacing it with life without parole.

March 2011 - Governor Pat Quinn signs legislation to repeal the death penalty in Illinois, replacing it with life without parole.

Limiting the Death Penalty

Creation of International Human Rights Doctrines

In the aftermath of World War II, the United Nations General Assembly adopted the Universal Declaration of Human Rights. This 1948 doctrine proclaimed a "right to life" in an absolute fashion, any limitations being only implicit. Knowing that international abolition of the death penalty was not yet a realistic goal in the years following the Universal Declaration, the United Nations shifted its focus to limiting the scope of the death penalty to protect juveniles, pregnant women, and the elderly.

During the 1950s and 1960s subsequent international human rights treaties were drafted, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. These documents also provided for the right to life, but included the death penalty as an exception that must be accompanied by strict procedural safeguards. Despite this exception, many nations throughout Western Europe stopped using capital punishment, even if they did not, technically, abolish it. As a result, this de facto abolition became the norm in Western Europe by the 1980s. (Schabas, 1997)

Limitations within the United States

Despite growing European abolition, the U.S. retained the death penalty, but established limitations on capital punishment.

In 1977, the United States Supreme Court held in Coker v. Georgia (433 U.S. 584) that the death penalty is an unconstitutional punishment for the rape of an adult woman when the victim was not killed. Other limits to the death penalty followed in the next decade.

  • Mental Illness and Intellectual Disability 
    In 1986, the Supreme Court banned the execution of insane persons and required an adversarial process for determining mental competency in Ford v. Wainwright (477 U.S. 399). In Penry v. Lynaugh (492 U.S. 584 (1989)), the Court held that executing persons with "mental retardation" was not a violation of the Eighth Amendment. However, in 2002 in Atkins v. Virginia, (536 U.S. 304), the Court held that a national consensus had evolved against the execution of the "mentally retarded" and concluded that such a punishment violates the Eighth Amendment's ban on cruel and unusual punishment.


  • Race
    Race became the focus of the criminal justice debate when the Supreme Court held in Batson v. Kentucky (476 U.S. 79 (1986)) that a prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for the strikes.

    Race was again in the forefront when the Supreme Court decided the 1987 case, McCleskey v. Kemp (481 U.S. 279). McCleskey argued that there was racial discrimination in the application of Georgia's death penalty, by presenting a statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The Supreme Court held, however, that racial disparities would not be recognized as a constitutional violation of "equal protection of the law" unless intentional racial discrimination against the defendant could be shown.

  • Juveniles
    In the late 1980s, the Supreme Court decided three cases regarding the constitutionality of executing juvenile offenders. In 1988, in Thompson v. Oklahoma (487 U.S. 815), four Justices held that the execution of offenders aged fifteen and younger at the time of their crimes was unconstitutional. The fifth vote was Justice O'Connor's concurrence, which restricted Thompson only to states without a specific minimum age limit in their death penalty statute. The combined effect of the opinions by the four Justices and Justice O'Connor in Thompson is that no state without a minimum age in its death penalty statute can execute someone who was under sixteen at the time of the crime.

    The following year, the Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen. (Stanford v. Kentucky, and Wilkins v. Missouri (collectively, 492 U.S. 361)). At present, 19 states with the death penalty bar the execution of anyone under 18 at the time of his or her crime.

    In 1992, the United States ratified the International Covenant on Civil and Political Rights. Article 6(5) of this international human rights doctrine requires that the death penalty not be used on those who committed their crimes when they were below the age of 18. However, in doing so but the U.S. reserved the right to execute juvenile offenders. The United States is the only country with an outstanding reservation to this Article. International reaction has been highly critical of this reservation, and ten countries have filed formal objections to the U.S. reservation.

    In March 2005, Roper v. Simmons, the United States Supreme Court declared the practice of executing defendants whose crimes were committed as juveniles unconstitutional in Roper v. Simmons.

     

    Additional Death Penalty Issues

    Innocence

    The Supreme Court addressed the constitutionality of executing someone who claimed actual innocence in Herrera v. Collins (506 U.S. 390 (1993)). Although the Court left open the possibility that the Constitution bars the execution of someone who conclusively demonstrates that he or she is actually innocent, the Court noted that such cases would be very rare. The Court held that, in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial. The Court also held that an innocent inmate could seek to prevent his execution through the clemency process, which, historically, has been "the 'fail safe' in our justice system." Herrera was not granted clemency, and was executed in 1993.

    Since Herrera, concern regarding the possibility of executing the innocent has grown. Currently, over 115 people in 25 states have been released from death row because of innocence since 1973. In November, 1998 Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty, in Chicago, Illinois. The Conference, which drew nationwide attention, brought together 30 of these wrongfully convicted inmates who were exonerated and released from death row. Many of these cases were discovered not as the result of the justice system, but instead as the result of new scientific techniques, investigations by journalism students, and the work of volunteer attorneys. These resources are not available to the typical death row inmate.

    In January 2000, after Illinois had released 13 innocent inmates from death row in the same time that it had executed 12 people, Illinois Governor George Ryan declared a moratorium on executions and appointed a blue-ribbon Commission on Capital Punishment to study the issue.

    Public Support

    Support for the death penalty has fluctuated throughout the century. According to Gallup surveys, in 1936 61% of Americans favored the death penalty for persons convicted of murder. Support reached an all-time low of 42% in 1966. Throughout the 70s and 80s, the percentage of Americans in favor of the death penalty increased steadily, culminating in an 80% approval rating in 1994. A May 2004 Gallup Poll found that a growing number of Americans support a sentence of life without parole rather than the death penalty for those convicted of murder. Gallup found that 46% of respondents favor life imprisonment over the death penalty, up from 44% in May 2003. During that same time frame, support for capital punishment as an alternative fell from 53% to 50%. The poll also revealed a growing skepticism that the death penalty deters crime, with 62% of those polled saying that it is not a deterrent. These percentages are a dramatic shift from the responses given to this same question in 1991, when 51% of Americans believed the death penalty deterred crime and only 41% believed it did not. Only 55% of those polled responded that they believed the death penalty is implemented fairly, down from 60% in 2003. When not offered an alternative sentence, 71% supported the death penalty and 26% opposed. The overall support is about the same as that reported in 2002, but down from the 80% support in 1994. (Gallup Poll News Service, June 2, 2004). (See also, DPIC's report, Sentencing for Life: American's Embrace Alternatives to the Death Penatly)


    Religion

    In the 1970s, the National Association of Evangelicals (NAE), representing more then 10 million conservative Christians and 47 denominations, and the Moral Majority, were among the Christian groups supporting the death penalty. NAE's successor, the Christian Coalition, also supports the death penalty. Today, Fundamentalist and Pentecostal churches support the death penalty, typically on biblical grounds, specifically citing the Old Testament. (Bedau, 1997). The Church of Jesus Christ of Latter-day Saints regards the question as a matter to be decided solely by the process of civil law, and thus neither promotes nor opposes capital punishment.

    Although traditionally also a supporter of capital punishment, the Roman Catholic Church now oppose the death penalty. In addition, most Protestant denominations, including Baptists, Episcopalians, Lutherans, Methodists, Presbyterians, and the United Church of Christ, oppose the death penalty. During the 1960s, religious activists worked to abolish the death penalty, and continue to do so today.

    In recent years, and in the wake of a recent appeal by Pope John Paul II to end the death penalty, religious organizations around the nation have issued statements opposing the death penalty. Complete texts of many of these statements can be found at www.deathpenaltyreligious.org.


    Women

    Women have, historically, not been subject to the death penalty at the same rates as men. From the first woman executed in the U.S., Jane Champion, who was hanged in James City, Virginia in 1632, to the present, women have constituted only about 3% of U.S. executions. In fact, only ten women have been executed in the post-Gregg era. (Shea, 2004, with updates by DPIC).


    Recent Developments in Capital Punishment

    The Federal Death Penalty

    In addition to the death penalty laws in many states, the federal government has also employed capital punishment for certain federal offenses, such as murder of a government official, kidnapping resulting in death, running a large-scale drug enterprise, and treason. When the Supreme Court struck down state death penalty statutes in Furman, the federal death penalty statutes suffered from the same conitutional infirmities that the state statutes did. As a result, death sentences under the old federal death penalty statutes have not been upheld.

    In 1988, a new federal death penalty statute was enacted for murder in the course of a drug-kingpin conspiracy. The statute was modeled on the post-Gregg statutes that the Supreme Court has approved. Since its enactment, 6 people have been sentenced to death for violating this law, though none has been executed.

    In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act that expanded the federal death penalty to some 60 crimes, 3 of which do not involve murder. The exceptions are espionage, treason, and drug trafficking in large amounts.

    Two years later, in response to the Oklahoma City Bombing, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996. The Act, which affects both state and federal prisoners, restricts review in federal courts by establishing tighter filing deadlines, limiting the opportunity for evidentiary hearings, and ordinarily allowing only a single habeas corpus filing in federal court. Proponents of the death penalty argue that this streamlining will speed up the death penalty process and significantly reduce its cost, although others fear that quicker, more limited federal review may increase the risk of executing innocent defendants. (Bohm, 1999 and Schabas, 1997)

    International Abolition

    In the 1980s the international abolition movement gained momentum and treaties proclaiming abolition were drafted and ratified. Protocol No. 6 to the European Convention on Human Rights and its successors, the Inter-American Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the United Nation's Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, were created with the goal of making abolition of the death penalty an international norm.

    Today, the Council of Europe requires new members to undertake and ratify Protocol No. 6. This has, in effect, led to the abolition of the death penalty in Eastern Europe, where only Belarus retains the death penalty. For example, the Ukraine, formerly one of the world's leaders in executions, has now halted the death penalty and has been admitted to the Council. South Africa's parliament voted to formally abolish the death penalty, which had earlier been declared unconstitutional by the Constitutional Court. In addition, Russian President Boris Yeltsin signed a decree commuting the death sentences of all of the convicts on Russia's death row in June 1999. (Amnesty International and Schabas, 1997). Between 2000 and 2004, seven additional countries abolished the death penalty for all crimes, and four more abolished the death penalty for ordinary crimes.

    Abolitionist and Retentionist Countries Graph


    The Death Penalty Today
    In April 1999, the United Nations Human Rights Commission passed the Resolution Supporting Worldwide Moratorium On Executions. The resolution calls on countries which have not abolished the death penalty to restrict its use of the death penalty, including not imposing it on juvenile offenders and limiting the number of offenses for which it can be imposed. Ten countries, including the United States, China, Pakistan, Rwanda and Sudan voted against the resolution. (New York Times, 4/29/99). Each year since 1997, the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium on executions. In April 2004, the resolution was co-sponsored by 76 UN member states. (Amnesty International, 2004).

    In the United States numbers of death sentences are steadily declining from 300 in 1998 to 106 in 2009.

    Presently, more than half of the countries in the international community have abolished the death penalty completely, de facto, or for ordinary crimes. However, 58 countries retain the death penalty, including China, Iran, the United States, and Vietnam all of which rank among the highest for international executions in 2003. (Amnesty International, 2010)

    Return to Index

    Return to Part I

     


    Sources

    Amnesty International, "List of Abolitionist and Retentionist Countries," Report ACT 50/01/99, Updated June 2004

    D. Baker: "A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997"; 10(3) Women and Criminal Justice 57 (1999)

    R. Bohm, "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," Anderson Publishing, 1999.

    "The Death Penalty in America: Current Controversies," H. Bedau, editor, Oxford University Press, 1997.

    K. O'Shea, "Women and the Death Penalty in the United States, 1900-1998," Praeger 1999.

    W. Schabas "The Abolition of the Death Penalty in International Law," Cambridge University Press, second edition, 1997.

    "Society's Final Solution: A History and Discussion of the Death Penalty," L. Randa, editor, University Press of America, 1997.

    V. Streib, "Death Penalty For Female Offenders January 1, 1973 to June 30, 2004," Ohio Northern University, 2003.

    Sources for additional information about the death penalty


    Resources

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    Law Review & Journal articles

    DPIC Reports