Capital Punishment

CAPITAL PUNISHMENT

CAPITAL PUNISHMENT. The history of capital punishment in the United States provides a means of understanding the dynamics of change and continuity. Changes in the arguments for and against capital punishment are indicative of larger developments regarding the saving and taking of human life by the state. The death penalty, optional or mandatory, is invoked for "capital crime," but no universal definition of that term exists. Usually capital crimes are considered to be treason or terrorist attacks against the government, crimes against property when life is threatened, and crimes against a person that may include murder, assault, and robbery. Criminal law is complex and involves many legal jurisdictions and social values. The existing statutory law and the circumstances of any case can mitigate the use of capital punishment. The power of a jury to decide for or against capital punishment is the dynamic element in its history.

Arguments for and Against Capital Punishment

The arguments for the death penalty and for its abolition have remained fairly constant since the seventeenth century. Advocates for the death penalty claim that the practice is justified for several reasons: retribution, social protection against dangerous people, and deterrence. Abolitionists' response is that the practice is not a deterrent; states without the practice have the same murder rates over time as those with the law. Moreover, the imposition of the death penalty comes from many factors, resulting from cultural and social circumstances that might have demonstrated irrationality and fear on society's part. The result might be a miscarriage of justice, the death of an innocent person.

Religious groups have put forth several arguments regarding capital punishment. One argument states that perfect justice is not humanly possible. In the past God or his representatives had authority over life and death, but the people or their representatives (the state and the criminal justice system) have become God in that respect, an act of tragic hubris.

A secular argument against capital punishment is that historically the verdict for capital punishment has been rendered most frequently against the poor and against certain ethnic groups as a means of social control. Another argument claims that the death penalty is just an uncivilized activity.

The discovery of DNA provides an argument against capital punishment by stressing that the absence of a positive reading challenges other physical evidence that might indicate guilt. The finality of judgment that capital punishment serves is thus greatly limited. The fullest legal and judicial consequences are still evolving in American jurisprudence.

While these arguments whirl around the academy, the legal system, and public discourse, one method of understanding the issue is to examine its historical nature. Western societies in the seventeenth century slowly began replacing public executions, usually hangings, with private punishment. The process was slow because the number of capital crimes was great. By the nineteenth century, solitary confinement in penitentiaries (or reformatories) was the norm, with the death penalty reserved for first-degree murder.

History of Capital Punishment

Initially moral instruction of the populace was the purpose of public execution. As juries began to consider the causes of crime, the trend toward private execution emerged. In both cases the elemental desire for some sort of retribution guided juries' decisions.

Generally English law provided the definition of capital offenses in the colonies. The numbers of offenses were great but mitigating circumstances often limited the executions. The first execution of record took place in Virginia in 1608. The felon was George Kendall, who was hanged for aiding the Spanish, a treasonable act. Hanging was the standard method, but slaves and Indians were often burned at the stake.

Both the state and the church favored public executions in Puritan New England. Sermons touted the importance of capital punishment to maintain good civil order and prepare the condemned to meet his maker. He was a "spectacle to the world, a warning to the vicious." Over time the event became entertainment and an occasion for a good time; much later vicious vigilante lynchings served a similar purpose. Order had to be maintained.

The American Revolution sparked an interest in re-form of the death penalty as appeals for justice and equity became public issues. William Penn and Thomas Jefferson were early critics of capital punishment. The rebellion against Great Britain was more than a mere "political" event. Encouraged by Montesquieu's writings, Cesare Beccaria's Essay on Crime and Punishment (1764), and others, philosophers began the ideological critique of capital punishment. Benjamin Rush's Enquiry into the Effects of Public Punishments upon Criminals and upon Society (1787) was a pioneer effort toward reforming the method of executions.

For a time, events moved quickly in the young republic. Pennsylvania established the world's first penitentiary in 1790 and the first private execution in 1834. The adoption of the Bill of Rights in 1791 set the stage for the interpretative struggle over "cruel and unusual punishment [being] inflicted." John O'Sullivan's Report in Favor of the Abolition of the Punishment of Death by Law (1841) and Lydia Maria Child's Letters From New York (1845) were important items in antebellum reform. In 1847 Michigan abolished capital punishment. But the Civil War and Reconstruction pushed the issue off the national agenda for several years.

The Supreme Court

In 1879, the Supreme Court upheld death by firing squad as constitutional in Wilkerson v. Utah. By the end of the twentieth century Utah was the only state using that method. In 1890 in re Kemmler, the Supreme Court ruled death by electric chair to be constitutional. In a sense this case validated the use of private executions over public hangings. Enamored with the wonders of electricity, Gilded Age reformers believed this method was more humane. In 1947, the Supreme Court ruled in Louisiana ex rel. Francis v. Resweber that a second attempt at execution, after a technical failure on the first try, did not constitute cruel and unusual punishment. On humanitarian grounds, in 1921 Nevada passed the "Humane Death Bill" permitting the use of the gas chamber. The Supreme Court approved the bill and invoked Kemmler when Gee Jon appealed it. Jon then became the first person to die in the gas chamber on 8 February 1924.

With the rise of twentieth-century communications and the civil rights movement, public opinion slowly become more critical of execution. In a multitude of cases the issue was debated on two fronts: cruel and unusual punishment and the standard of due process and equity as stated in the Fourteenth Amendment. Furman v. Georgia (1972) created a flurry of legislative activity with its ruling that the administration of capital punishment violated both the Eighth and Fourteenth Amendments. Other cases, such as Gregg v. Georgia and Woodson v. North Carolina (1976), further confused the complex issue by once again allowing the constitutionality of capital punishment in some cases and not in others.

As membership on the Supreme Court changed, the prospect for the national abolition of capital punishment grew dimmer. Advocates of death by lethal injection came forward and claimed the method was humane, efficient, and economical. The Supreme Court has been hesitant to make a definitive statement as to whether or not capital punishment is constitutional. The result is a sizable body of cases dealing with due process. In 1995 the number of executions reached its highest level since 1957. The Society for the Abolition of Capital Punishment, established in 1845, was the first national organization to fight capital punishment. Their goal has yet to be reached.

BIBLIOGRAPHY

ABC-Clio. Crime and Punishment in America: A Historical Bibliography. Santa Barbara, Calif.: ABC-Clio Information Services, 1984. Excellent guide to the literature.

Brandon, Craig. The Electric Chair: An Unnatural American History. Jefferson, N.C.: McFarland, 1999. A candid narrative about the place of the "chair" in America.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books, 1993. First-rate account.

Lifton, Robert Jay, and Greg Mitchell. Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions. New York: William Morrow, 2000. The authors oppose capital punishment; however, the narrative regarding the conflicts among prosecutors, judges, jurors, wardens, and the public is informative.

Marquart, James W., Selfon Ekland-Olson, and Jonathan R. Sorensen. The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923–1990. Austin: University of Texas Press, 1994. A detailed and informative state study.

Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865. New York: Oxford University Press, 1989. A brilliant cultural analysis.

Vila, Bryan, and Cynthia Morris, eds. Capital Punishment in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 1997. With a chronology of events and basic legal and social documents, a basic source.

Donald K. Pickens

See also Crime ; Hanging ; Punishment .