Capital Punishment

Capital Punishment. Since George Kendall's execution in Jamestown in 1608, about twenty thousand people have been legally put to death in America—more than seven thousand of them in the twentieth century. All thirteen colonies mandated public hanging for certain crimes against the state, person, or property. When the Bill of Rights was adopted in 1791, the Eighth Amendment's prohibition against “cruel and unusual” punishment was understood to outlaw torture and the intentional infliction of pain, not the death penalty itself. Over the next two centuries, however, the criminal law gradually reduced the number of crimes punishable by death while introducing other reforms that lowered the number of executions. In 1793, for example, Pennsylvania introduced a distinction between murder and manslaughter and limited the death penalty to offenders convicted of the former. By the 1830s, five states (Pennsylvania, New York, New Jersey, Rhode Island, and Massachusetts) had outlawed public executions, and in the 1840s states began to grant juries the discretion to impose life imprisonment in capital cases. In the early twentieth century, states further restricted capital statutes, eliminating horse thievery, cattle rustling, assaults, and, finally, rape. By 1977, only murder could result in capital punishment.

The number of executions began to drop in the 1950s, and the years from 1968 to 1976 saw a moratorium on executions. Executions resumed thereafter, although the average time served under death sentence grew to more than ten years, owing mainly to the expanding role of federal appellate courts. In 1990, the Supreme Court limited appeals to the federal courts by death row inmates.

The issue of deterrence long dominated the debate concerning capital punishment. By the late twentieth century, concerns about arbitrariness, racial discrimination, costs, and conviction of the innocent had taken center stage. In the 1972 case Furman v. Georgia, the Supreme Court temporarily ended the death penalty in America, deeming its application arbitrary and capricious. In response, thirty‐eight states and the federal government enacted new capital punishment laws designed to pass constitutional muster. These laws typically separated the guilt‐or‐innocence phase of the trial from the sentencing phase, mandated a statutory list of “aggravating” and “mitigating” factors to guide juries in capital trials, and required automatic review by state courts of all death sentences and convictions. Many scholars, however, believed that these reforms failed to eliminate arbitrariness, and that the administration of the death penalty remained no less inconsistent and arbitrary in the mid‐1990s than it had been in 1972.

Some scholars contended that capital punishment involved racial discrimination. In Equal Justice and the Death Penalty (1990), David C. Baldus and his associates demonstrated that the victim's race was a significant factor in predicting which convicted murderers received the death penalty. Killers of whites were 4.3 times more likely to be sentenced to death than killers of African Americans. In McCleskey v. Kemp (1987), however, the Supreme Court held that such statistical patterns were insufficient to prove violation of the Fourteenth Amendment's equal protection clause in specific cases; proof of intentional discrimination against a particular defendant had to be provided.

The cost of death‐penalty cases became an important issue as well, as the “super due process” requirements made the prosecution of capital cases extraordinarily expensive. In New Jersey, for example, capital trials cost about $750,000 in the 1990s, whereas noncapital murder trials cost around $50,000. Since only 15 percent of capital trials end in a death sentence, in 85 percent of the cases taxpayers pay the cost of both a capital trial and life imprisonment. Consequently, the cost of sending a single person to death row in New Jersey in the 1990s was a staggering $7.3 million.

Finally, the conviction of the innocent became an important issue in the late twentieth‐century debate over capital punishment. According to one study (Bedau and Radelet), 350 people in the twentieth century were wrongly convicted of offenses punishable by death, and 25 were actually executed. Further, this study found that many of the wrongful convictions were not good‐faith errors but resulted from conspiracies by the police, prosecutors, defense attorneys, judges, witnesses, and even jurors. The problems of human fallibility and malfeasance, neither of which can be effectively remedied, remained central in the continuing capital punishment debate as the twenty-first century dawned. The use of newly developed DNA techniques to exonerate a number of prisoners, including several on death row, deepened concerns about erroneous convictions and executions. In Atkins v. Virginia (2002), the Supreme Court barred the execution of a mentally retarded person. In 2004, the high court agreed to hear a case involving a young man sentenced to die for a murder committed when he was a minor. In such a case, the defense claimed, the death penalty violated the constitutional prohibition on cruel and unusual punishment.
See also Crime; Jurisprudence; Prisons and Penitentiaries; Racism.

Bibliography

William J. Bowers,, Glenn L. Pierce,, and and John F. McDevitt , Death as Punishment in America, 1864–1982, 1984.
Franklin E. Zimring and and Gordon Hawkins , Capital Punishment and the American Agenda, 1986.
H.A. Bedau and and Michael L. Radlet , Miscarriages of Justice in Potentially Capital Cases, Stanford Law Review 41 (Nov. 1987): 161–70.
David Baldus,, Charles Pulaski Jr.,, and and George G. Wentworth , Equal Justice and the Death Penalty: A Legal and Empirical Analysis, 1990.
Robert Johnson , Death Work: A Study of the Modern Execution Process, 1990.
Hugo Adam Bedau , The Death Penalty in America, 1997.

Richard Moran

; Updated by

Paul S. Boyer