A Continuing Conflict: A History Of Capital Punishment In The United States

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Capital punishment is the ultimate punishment deathadministered by the government for the commission of serious crimes. The word capital comes from the Latin word capitalis, meaning ''of the head.'' Throughout history societies have considered some crimes so appalling that the death penalty has been prescribed for them. Over time changing moral values and ideas about government power have limited the number and types of offenses deemed worthy of death. Many countries have eliminated capital punishment completely, dismissing it as an inhumane response to criminal behavior. The United States is one of only a handful of modern societies that still administers the death penalty. This distinction from this nation's peers is not easily explainable. It arises from a complicated mix of social, legal, and political factors that shape American ideas about justice and the role of government in matters of law and order.

Capital punishment enjoys popular support in the United States. Figure 1.1 shows the results of a poll conducted in June 2007 by the Gallup Organization. Approximately two-thirds (65%) of respondents favored the death penalty at that time, compared to 31% who opposed it. Nonetheless, the topic is rife with controversy. Proponents and opponents of the death penalty are passionate in their beliefs. People on both sides of the debate often use philosophical, moral, and religious reasoning to justify their positions. This makes capital punishment a highly charged issue in which emotional opinions can outweigh all other arguments.

The U.S. system of governance is based on the separation of federal and state powers. This means that individual states decide for themselves if they want to practice capital punishment. As of August 2007 the death penalty was approved by the statutes of the federal government (including the U.S. military) and thirty-eight states. (See Table 1.1.) The legality of capital punishment has historically hinged on the interpretation of the short, but monumental, statement that comprises the Eighth Amendment to the U.S. Constitution: ''Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'' Is capital punishment cruel and unusual or not? American society has struggled with this question since the founding of the nation and continues to do so in the twenty-first century.


Since the first European settlers arrived in North America, the death penalty has been accepted as just punishment for a variety of offenses. In fact, the earliest recorded execution occurred in 1608, only a year after the English constructed their first settlement in Jamestown, Virginia. Captain George Kendall, one of the original leaders of the Virginia colony, was convicted of mutiny by a jury of his peers and sentenced to death by shooting in Jamestown. In 1632 Jane Champion, a slave, became the first woman to be put to death in the new colonies. She was hanged in James City, Virginia, for the murders of her master's children.

The English Penal Code applied to the British colonies from the beginning and listed fourteen capital offenses. Actual practice, however, varied from colony to colony. In the early days of the Massachusetts Bay Colony, twelve crimes warranted the death penalty: idolatry (worship of an image, idea, or object), witchcraft, blasphemy (expressing disrespect for religious beliefs), rape, statutory rape (nonforcible sexual intercourse with a person who is under the statutory age of consent), kidnapping, perjury (lying under oath) in a trial involving a possible death sentence, rebellion, murder, assault in sudden anger, adultery, and buggery (sodomy). In the statute each crime was accompanied by a quotation justifying capital punishment from the Old Testament of the Bible. Eventually, arson, treason, and grand larceny were added.

Virginia's early statutes were even stricter, based on biblical morality and military laws developed in the Netherlands. First enacted by the Jamestown governor Sir Thomas Gates (d. 1621) in 1610, the Lawes Divine, Morall, and Martiall were expanded in 1612 by Sir Thomas Dale (d. 1619). Life in the colony was hard, and many of the laws were enacted in response to harsh necessities. Capital offenses included unauthorized trading with Native Americans, gathering vegetables or fruits from a garden without permission, and giving false testimony under oath. In addition, the laws held that ''he that shall rob the store of any commodities therein, of what quality soever, whether provisions of victuals, or of Arms, Trucking stuffe, Apparrell, Linnen, or Wollen, Hose or Shooes, Hats or Caps, Instruments or Tooles of Steele, Iron, etc. or shall rob from his fellow souldier, or neighbour, any thing that is his, victuals, apparell, household stuffe, toole, or what necessary else soever, by water or land, out of boate, house, or knapsack, shall bee punished with death.''

The Quakers, who settled in the mid-Atlantic region, initially adopted much milder laws than those who settled in the Massachusetts, New York, and Virginia colonies. The Royal Charter for South Jersey (1646) did not permit capital punishment for any crime, and there was no execution until 1691. In Pennsylvania William Penn's (16441718) Great Act of 1682 limited the death penalty to treason and murder.

Jurisdictions with and without the death penalty, August 2007
Jurisdictions with
a Death Penalty
Jurisdictions without
a Death Penalty
Federal governmentAlaska
AlabamaDistrict of Columbia
FloridaNorth Dakota
GeorgiaRhode Island
IllinoisWest Virginia
New Hampshire
New Jersey
New Mexico
New York
North Carolina
South Carolina
South Dakota

The methods of execution in the fledgling North American colonies could be especially brutal. M. Watt Espy and John Ortiz Smykla note in Executions in the United States, 16082002: The ESPY File (2005) that even though hanging was the preferred method, some criminals were burned alive or pressed to death by heavy stones. Probably the cruelest punishment was known as ''breaking at the wheel,'' wherein the executioner would snap all the offender's arm and leg joints with a chisel and then weave the extremities through the spokes of a large wheel like meaty ribbons. The prisoner would then be left outside to die of blood loss and exposure.

These executions were held in public as a warning to others, and often a festival atmosphere prevailed. Crowds of onlookers gathered near the gallows, and merchants sold souvenirs. Some spectators got drunk, turning unruly and sometimes violent. After the execution, the body of the convict was sometimes left hanging above the square in a metal cage.

David G. Chardavoyne describes a typical nineteenth-century execution scene in A Hanging in Detroit: Stephen Gifford Simmons and the Last Execution under Michigan Law (2003). One of only two executions in Michigan before the death penalty was outlawed there in 1846, Simmons was hanged in September 1830 for murdering his pregnant wife. Chardavoyne explains that at the time, ''public executions owed much of their continuing legitimacy to the use of ritual.'' The associated rituals could last for hours and included parading the condemned prisoner through the crowd with a coffin by his side and a noose around his neck, speeches by public officials and religious leaders denouncing the crime, and in some cases a repentance speech by the prisoner.

Over time, the colonies phased out the crueler methods of execution, and almost all death sentences were carried out by hanging. The colonies also rewrote their death penalty statutes to cover only serious crimes involving willful acts of violence or thievery. By the late 1700s typical death penalty crimes included arson, piracy, treason, murder, and horse stealing. Southern colonies executed people for slave stealing or aiding in a slave revolt. After the American Revolution (17751783), some states went further by adopting death penalty statutes similar to Penn-sylvania's. New York built its first penitentiary in 1796. With a place to house burglars and nonviolent criminals, the state reduced its capital offenses from thirteen to two. Maryland, Vermont, Virginia, Kentucky, Ohio, and New Hampshire all followed suit by constructing large jails and cutting their capital offenses to just a few of the worst crimes.


Even though the founders of the United States generally accepted the death penalty, many early Americans did oppose capital punishment. In the late eighteenth century Benjamin Rush (17461813), a physician who helped establish the slavery abolition movement, decried capital punishment. He attracted the support of Benjamin Franklin (17061790), and it was at Franklin's home in Philadelphia that Rush became one of the first Americans to propose a ''House of Reform,'' a prison where criminals could be detained until they changed their antisocial behavior. Consequently, in 1790 the Walnut Street Jail, the primitive seed from which the U.S. penal system grew, was built in Philadelphia.

Rush published many pamphlets, the most notable of which was Considerations on the Justice and Policy of Punishing Murder by Death (1792). He argued that the biblical support given to capital punishment was questionable and that the threat of hanging did not deter crime. Influenced by the philosophy of the Enlightenment (an intellectual movement in the seventeenth and eighteenth centuries), Rush believed the state exceeded its granted powers when it executed a citizen. Besides Franklin, Rush attracted many other Pennsylvanians to his cause, including William Bradford (17551795), the attorney general of Pennsylvania. Bradford suggested the idea of different degrees of murder, some of which did not warrant the death penalty. As a result, in 1794 Pennsylvania repealed the death penalty for all crimes except first-degree murder, which was defined as ''willful, deliberate, and premeditated killing or murder committed during arson, rape, robbery, or burglary.''

The Nineteenth Century

Rush's proposals attracted many followers, and petitions aiming to abolish all capital punishment were presented in New Jersey, New York, Massachusetts, and Ohio. No state reversed its laws, but the number of crimes punishable by death was often reduced.

The second quarter of the nineteenth century was a time of reform in the United States. Capital punishment opponents rode the tide of righteousness and indignation created by antisaloon and antislavery advocates. Abolitionist societies (organizations against the death penalty) sprang up, especially along the east coast. In 1845 the American Society for the Abolition of Capital Punishment was founded.


The leaders of the anti-death penalty movement first strove to put an end to public executions. They largely succeeded; in 1828 the state of New York passed a law allowing county sheriffs to hold executions in private. The law, however, was not mandatory, and no sheriff took advantage of it. In 1835 the New York legislature passed another law requiring that all executions be held within the prison walls. The law further required that twelve citizens be chosen to witness the hanging and report on the execution through the state newspaper. In 1830 Connecticut became the first state to pass a law prohibiting all public executions. The Pennsylvania, Rhode Island, New Jersey, and Massachusetts legislatures all followed suit. Maine outlawed public executions and put a temporary moratorium in place in 1835 after one public execution brought in ten thousand people, many of whom became violent after the execution and had to be restrained by the police.

In the late 1840s Horace Greeley (18111872), the founder and editor of the New York Tribune and a leading advocate of most abolitionist causes, led the crusade against the death penalty. In 1846 Michigan became the first state to abolish the death penalty for all crimes except treason (until 1963), making it the first English-speaking jurisdiction in the world to abolish the death penalty for common crimes. Common crimes, also called ordinary crimes, are crimes committed during peacetime. Ordinary crimes that could lead to the death penalty include murder, rape, and, in some countries, robbery or embezzlement of large sums of money. In comparison, exceptional crimes are military crimes committed during exceptional times, mainly wartime. Examples are treason, spying, or desertion (leaving the armed services without permission). The Michigan law took effect on March 1, 1847. In 1852 and 1853 Rhode Island and Wisconsin, respectively, became the first two states to outlaw the death penalty for all crimes. Most states began limiting the number of capital crimes. Outside the South, murder and treason became the only acts punishable by death.

Opponents of the death penalty initially benefited from abolitionist sentiment, but as the Civil War (18611865) neared, concern about the death penalty was lost amid the growing antislavery movement. It was not until after the Civil War that Maine and Iowa abolished the death penalty. Almost immediately, however, their legislatures reversed themselves and reinstated the death penalty. In 1887 Maine again reversed itself and abolished capital punishment. It has remained an abolitionist state ever since. Colorado abolished capital punishment in 1897, a decision apparently against the will of many of its citizens. At least twice, Coloradans lynched convicted murderers. In response, the state restored the death penalty in 1901.

Meanwhile, the federal government, following considerable debate in Congress, reduced the number of federal crimes punishable by death to treason, murder, and rape. In no instance was capital punishment to be mandatory.


Electricity had become widespread by the end of the nineteenth century. As a demonstration of how dangerous alternating current (AC) electricity could be, the Edison Company electrocuted animals in public demonstrations. The Edison Company, which manufactured direct current (DC) electrical systems, wanted to discredit Westinghouse Company, the manufacturer of AC electrical systems. However, instead of steering people away from AC systems, the effective demonstrations only served to inspire state executioners. New York became the first state to tear down its gallows and erect an electric chair in 1890. The chair was first used on William Kemmler in 1890. Other states soon followed.


At the start of the twentieth century, death penalty abolitionists again benefited from American reformism as the Progressives (liberal reformers) worked to correct perceived problems in the U.S. legal system. Between 1907 and 1917 nine states (Arizona, Kansas, Minnesota, Missouri, North Dakota, Oregon, South Dakota, Tennessee, and Washington) and Puerto Rico, a U.S. territory, abolished capital punishment. However, the momentum did not last. By 1921, of the nine states, just Minnesota and North Dakota remained abolitionist. The Prohibition Era (19201933), characterized by frequent disdain for law and order, almost destroyed the abolitionist movement, as many Americans began to believe that the death penalty was the only proper punishment for gangsters who committed murder.

The movement's complete collapse was prevented by the determined efforts of the famed Clarence Darrow (18571938), the ''attorney for the damned''; Lewis E. Lawes (18831947), the abolitionist warden of Sing Sing Prison in New York; and the American League to Abolish Capital Punishment (founded in 1927). Nonetheless, of the sixteen states and jurisdictions that outlawed capital punishment between 1845 and 1917, only sixMaine, Michigan, Minnesota, North Dakota, Rhode Island, and Wisconsinand Puerto Rico had no major death penalty statute at the beginning of the 1950s. Between 1917 and 1957 no state abolished the death penalty.

The abolitionist movement made a mild comeback in the mid-1950s, and the issue was discussed in several state legislatures. In 1957 the U.S. territories of Alaska and Hawaii abolished the death penalty. In the states, however, the movement's singular success in Delaware (1958) was reversed three years later (1961), a major disappointment for death penalty opponents.

Modest Gains in the 1960s

The abolitionists were able to recover during the civil rights movement of the 1960s. In 1963 Michigan, which in 1847 had abolished capital punishment for all crimes except treason, finally outlawed the death penalty for that crime as well. Oregon (1964), Iowa (1965), and West Virginia (1965) all abolished capital punishment, whereas many other states sharply reduced the number of crimes punishable by death.


Until the mid-twentieth century there was legally no question that the death penalty was acceptable under the U.S. Constitution. In 1958, however, the U.S. Supreme Court opened up the death penalty for reinterpretation when it ruled in Trop v. Dulles (356 U.S. 86) that the language of the Eighth Amendment (which states that criminals cannot be subjected to a cruel and unusual punishment) held the ''evolving standards of decency that mark the progress of a maturing society.'' Opponents of capital punishment believed the death penalty should be declared unconstitutional in light of the Trop decision (which did not specifically address capital punishment). The abolitionists claimed that society had evolved to a point where the death penalty was cruel and unusual by the established ''standards of decency.'' As such, the death penalty violated the Eighth Amendment of the Constitution.

Major U.S. Supreme Court decisions involving the death penalty, selected years 19722005
DecisionMajor effect
Furman v. Georgia19725 to 4The death penalty as administered by states at the time was deemed cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments
Gregg v. Georgia, Proffit v. Florida,
Jurek v. Texas
19767 to 2New death penalty statutes in Georgia, Florida, and Texas ruled constitutional
Woodson v. North Carolina19765 to 4Mandatory death sentences ruled unconstitutional
Coker v. Georgia19775 to 4The death penalty may not be imposed for raping an adult woman if the victim does not die
Godfrey v. Georgia19806 to 3State statutes must clearly define the circumstances that qualify a crime as a capital crime
Spaziano v. Florida19845 to 3Upheld as constitutional a judge's decision to impose a death sentence despite jury's recommendation of life in prison
Ford v. Wainwright19865 to 4Inflicting the death penalty on the insane ruled unconstitutional
Murray v. Giarratamo19895 to 4Defendants under sentence of death do not have a constitutional right to counsel during postconviction proceedings
Ring v. Arizona20027 to 2Only juries, not judges, can determine the presence of aggravating circumstances that warrant a death sentence
Atkins v. Virginia20026 to 3Inflicting the death penalty on the mentally retarded ruled unconstitutional
Roper v. Simmons20055 to 4Death sentences imposed against minors (i.e., those less than 18 years of age when crime committed) ruled unconstitutional

In 1963 Justice Arthur J. Goldberg (19081990), joined by Justices William O. Douglas (18981980) and William J. Brennan (19061997), dissenting from a rape case in which the defendant had been sentenced to death (Rudolph v. Alabama, 375 U.S. 889), raised the question of the legality of the death penalty. The filing of many lawsuits in the late 1960s led to an implied moratorium (a temporary suspension) on executions until the Court could decide whether the death penalty was constitutional.

In 1972 the high court finally handed down a landmark decision in Furman v. Georgia (408 U.S. 238), when it ruled that the death penalty violated the Eighth and Fourteenth Amendments (the right to due process) because of the arbitrary nature with which the death penalty was administered across the United States. The Court also laid down some guidelines for states to follow, declaring that a punishment was cruel and unusual if it was too severe, arbitrary, or offended society's sense of justice.

Before the late 1960s U.S. death penalty laws varied considerably from state to state and from region to region. Few national standards existed on how a murder trial should be conducted or which types of crimes deserved the death penalty. Specifically, Furman brought into question the laws of Georgia and a number of other states that allowed juries complete discretion in delivering a sentence. In these states, juries could declare a person guilty of a capital crime and then assign any punishment ranging from less than a month in jail to the penalty of death. Even though verdicts were swift, the punishments such juries meted out were frequently arbitrary and at times discriminatory against minorities.


Within a year of the Supreme Court's ruling in Furman, thirty-five states had updated their laws regarding the death penalty. Many of these new statutes were brought before the high court in the mid-1970s. By issuing rulings on the constitutionality of these state statutes, the Court created a uniform death penalty system for the United States. Table 1.2 provides a summary of the major cases decided by the Court dealing with the death penalty since 1972.

States amended their laws once again after the Supreme Court issued the new rulings. Every state switched to a bifurcated (two-part) trial system, where the first trial is used to determine a defendant's guilt, and the second trial determines the sentence of a guilty defendant. Generally, only those convicted of first-degree murder were eligible for the death penalty. Most states also required the jury or judge in the sentencing phase of the trial to identify one or more aggravating factors (circumstances that may increase responsibility for a crime) beyond a reasonable doubt before they could sentence a person to death. State legislatures drafted lists of aggravating factors that could result in a penalty of death. Typical aggravating factors included murders committed during robberies, the murder of a pregnant woman, murder committed after a rape, and the murder of an on-duty firefighter or police officer. In the mid-1970s the long appeals process for capital cases was also established.


With the Supreme Courtapproved laws in place, the states resumed executions. In January 1977 the nationwide moratorium ended when the state of Utah executed Gary Gilmore. Gilmore had been convicted of killing Ben Bushnell, a motel manager in Provo, Utah, on July 20, 1976. Authorities had also charged him with the July 19 murder of Max Jensen, a gas station attendant, in Orem, Utah. Gilmore received the death penalty for the Bushnell murder. He refused to appeal his case, demanding

that his sentence be carried out swiftly. Gilmore requested the state supreme court to grant his wish because he did not want to spend his life on death row. The court granted his wish, but interventions by Gilmore's mother, as well as by anti-death penalty organizations, resulted in several stays (postponement) of execution. These organizations were concerned that the defendant's refusal to appeal his case and the court's agreement to carry out his wish might establish a precedent that would hurt the causes of other inmates. After several suicide attempts, Gilmore was finally executed by firing squad on January 17, 1977.

Several other states reinstated the death penalty after the Supreme Court declared it constitutional. Oregon brought back the death penalty in 1978. In 1995 New York became the thirty-eighth state to reinstate the death penalty, ending its eighteen-year ban on capital punishment.

After the nationwide moratorium ended in 1977, the number of executions began to rise. Executions hit the double digits in 1984, when twenty-one people were put to death in the United States, and peaked in 1999, when ninety-eight inmates were executed. (See Figure 1.2.) The number of criminals put to death then dipped to fifty-three in 2006the lowest level in a decade. Overall, between 1976 and 2006, 1,057 people were put to death. Of course, these numbers were much smaller than the number of executions that occurred in the early part of the twentieth century. In 1938, for instance, 190 people were executed.

As shown in Figure 1.3, nearly five hundred people were on death row in 1977. The number climbed dramatically over the following decades, peaking at thirty-six hundred in 2000. It then began a downward trend, dropping to 3,250 in 2005. Figure 1.3 clearly shows the rarity with which executions are carried out in the United States, compared to the large number of people under the sentence of death. Between 2000 and 2005 the United States executed an average of 68 people per year, whereas the number on death row averaged nearly 3,450 per year. This constitutes an execution rate of approximately 2% per year.


The increase that began in the 1970s in the usage of capital punishment corresponded with rising homicide (murder) rates in the country. (See Figure 1.4.) According to data from the U.S. Department of Justice's Bureau of Justice Statistics, between 1964 and 1974 the homicide rate nearly doubled from 5.1 cases per 100,000 population to 10.1 cases per 100,000 population. In 1980 the rate peaked at its highest level in recorded history: 10.7 homicides per 100,000 population. After falling slightly in the early 1980s it surged again, reaching its penultimate (second-highest) level in 1991, when 10.5 homicides occurred for every 100,000 people. Since that time the rate has steadily declined. By 2000 it was 6.1 per 100,000 population.

The country also experienced a surge of homicides in the early 1930s, during the Prohibition Era. As mentioned earlier, this was a time when support for the death penalty strengthened around the country. As shown in Figure 1.2, the execution rate was historically high at that time approximately 167 executions per year.

Figure 1.5 compares the homicide rate and the number of executions conducted each year between 1960 and 2005. The number of executions increased dramatically between 1980 and 2000, apparently a response to the unusually high homicide rates that persisted through the early 1990s. Both values began to drop after the turn of the twenty-first century and evened out in the early 2000s.


Supreme Court decisions continued to redefine state death penalty laws well after the Furman opinion. In Ford v. Wainwright (477 U.S. 399, 1986), the Court ruled that executing an insane person constituted a cruel and unusual punishment and was thus in violation of the Eighth Amendment. Because a precedent did not exist in U.S. legal history about executing the insane, the justices looked to English common law to make this ruling. English law expressly forbade the execution of insane people. The English jurist Sir Edward Coke (15521634) observed that even though the execution of a criminal was to serve as an example, the execution of a madman was considered ''of extreme inhumanity and cruelty, and can be no example to others.''

In Atkins v. Virginia (536 U.S. 304, 2002), the Court held that executing mentally retarded people violates the Eighth Amendment's ban on a cruel and unusual punishment. The Court, however, did not define mental retardation but left it to each state to formulate its own definition. In Roper v. Simmons (543 U.S. 633, 2005), the Court decided that executing Donald Roper was cruel and unusual based on the fact that Roper was younger than eighteen when he committed murder. The majority reasoned that adolescents do not have the emotional maturity or understanding of lasting consequences that adults have and therefore should not be held to an adult standard or punished with a sentence of death.

In 1996 Congress passed and President Bill Clinton (1946) signed the Antiterrorism and Effective Death Penalty Act (AEDPA). The law applied new restrictions and filing deadlines regarding appeals by death row inmates. In 2000 state court interpretations of the AEDPA were examined by the Supreme Court, which ruled that the law is valid unless lower courts upheld rulings contradictory to precedents established by the Court.


In the 1980s and 1990s deoxyribonucleic acid (DNA) testing procedures advanced to the point where such evidence could be used in criminal cases. Across the United States, police suddenly had the ability to identify a suspect and place him or her squarely at the scene of a crime with a small sample of hair, blood, or other biological material. Because of the accuracy of DNA testing, DNA evidence could hold as much sway in a courtroom as an eyewitness or camera footage. States started collecting biological samples, such as blood and saliva, from criminal offenders and storing these DNA profiles in databases.

In 1994 Virginia became the first state to execute a person who was convicted as a result of DNA evidence. The defendant, Timothy Spencer, was convicted in 1988 for several rapes and murders he committed starting in 1984. Virginia also became the first state to execute someone based on a DNA ''cold hit'' when it executed James Earl Patterson in March 2002. (A cold hit is when DNA evidence collected at a crime scene matches a DNA sample already in a database.) In 1999 Patterson was in prison on a rape conviction when DNA from the 1987 rape and murder of Joyce Aldridge was found to match his DNA in the database. He confessed to the Aldridge crime in 2000 and was sentenced to death. Patterson waived his appeals to let his execution proceed as scheduled.

First Death Row Inmate Is Freed by DNA Testing

Not only has DNA evidence been useful in convicting felons but also it has been crucial in proving the innocence of falsely convicted criminals. Kirk Bloodsworth of Maryland was the nation's first death row inmate to be exonerated based on postconviction DNA testing. Bloods-worth was convicted for the rape and murder of a nine-year-old girl in 1984. He was sentenced to death in 1985. On retrial, Bloodsworth received two life terms. DNA testing in 1992 excluded him from the crime. In 1993 Bloodsworth was released from prison. In 1999 the state paid Bloodsworth $300,000 for wrongful conviction and imprisonment, including time on death row.

State and Federal Legislatures Enact Laws to Expand DNA Testing

The Innocence Protection Act of 2004 became law on October 30, 2004. The law laid down the conditions with which a federal prisoner who pleaded not guilty could receive postconviction DNA testing. If a trial defendant faced conviction, the act called for the preservation of the defendant's biological evidence. A five-year, $25 million grant program was also established to help eligible states pay for postconviction testing.

Many state legislatures have passed similar DNA testing legislation. The American Society of Law, Medicine, and Ethics (2006, http://www.aslme.org/dna_04/grid/index.php) maintains databases that list the relevant statutes and testing protocols on a state-by-state basis.


During the 1980s and early 1990s public opinion polls showed strong support for capital punishment. According to the Gallup Corporation (2006, http://www.gallup.com/poll/1606/Death-Penalty.aspx), this support reached its highest level in 1994 when 80% of Americans favored use of the death penalty for murderers.

During the mid-1990s support for capital punishment began to wane for a variety of reasons. The advent of DNA testing resulted in highly publicized cases of inmates being released from prison, and even from death row. Abolitionists seized on these opportunities as proof that the U.S. capital punishment system was flawed. In addition, studies were released indicating that racial biases were occurring in death penalty cases and raising questions about the fairness of the system. By the turn of the twenty-first century capital punishment had been abolished in Canada and nearly all of Europe, leading to intense criticism in the international press of the United States' reliance on the death penalty. Pope John Paul II (19202005) also condemned capital punishment. Two popular moviesDead Man Walking (1995) and The Green Mile (1999)raised questions about the morality of the death penalty.

Two particular death penalty cases also aroused passion about the morality of capital punishment. Karla Faye Tucker became a born-again Christian while on death row in Texas for the brutal 1984 slayings of two people. In the months leading up to her execution in 1998, she received widespread media attention and garnered support nationally and internationally for commutation of her sentence to life in prison. Her supporters included some unlikely allies: a handful of conservative-minded religious and political figures who believed that Tucker's religious conversion merited clemency (an act of leniency by a convening authority to reduce a sentence). Nevertheless, the Texas governor George W. Bush (1946) signed her death warrant. In 2005 the execution of Stanley ''Tookie'' Williams also garnered considerable public attention.

Williams received a death sentence for killing three people in 1981. At the time, he was a leading figure in the notorious and violent Crips gang in Los Angeles. During his decades on death row Williams became an outspoken critic of gangs and wrote books encouraging children to avoid gangs and violence. For his work he received nominations for the Nobel Peace Prize. His supporters included Hollywood celebrities who lobbied the California governor Arnold Schwarzenegger (1947) for clemency, arguing that Williams had redeemed himself while in prison. The governor refused, noting that Williams had never expressed remorse for his crimes.


In modern times, capital punishment has generally fallen under the states' purview. Each year, the federal government pursues the death penalty in far fewer cases than most states with death penalty statutes. The reason for this is simple: most crimes are state crimes. Generally speaking, the federal government is only involved in prosecuting a relatively small number of crimes; crimes that cross state boundaries, are committed on federal property, or that affect federal officials or the working of the federal government. The federal government, however, has been executing criminals since it was formed. In 1790 Thomas Bird became the first inmate executed under the federal death penalty. He was hanged in Maine for murder. The Death Penalty Information Center (DPIC) states in ''The Federal Death Penalty'' (2007, http://www.deathpenal_tyinfo.org/article.php?did=147 scid=) that between 1790 and 1963 the federal government put to death 336 men and 4 women. However, most of these executions took place early in U.S. history. Only thirty-four men and two women were executed between 1927 and 1963. On February 15, 1963, Victor Feguer was hanged in Iowa for kidnapping and murder. This was the last execution by the federal government until nearly forty years later.

Expansion of the Federal Death Penalty

In 1988 Congress enacted the first of several laws that broadened the scope of the federal death penalty. The Anti-Drug Abuse Act included a drug-kingpin provision, allowing the death penalty for murder resulting from large-scale illegal drug dealing. The act did not provide for the method of federal execution. In 1993 President George H. W. Bush (1924) authorized the use of lethal injection under this law. As of June 30, 2005, three inmates were under sentence of death pursuant to this law.

In 1994 the Violent Crime Control and Law Enforcement Act (also known as the Federal Death Penalty Act) added more than fifty crimes punishable by death. Among these federal crimes are murder of certain government officials, kidnapping resulting in death, murder for hire, fatal drive-by shootings, sexual abuse crimes resulting in death, carjacking resulting in death, and other crimes not resulting in death, such as running a large-scale drug enterprise. The method of execution will be the same as that used in the state where the sentencing occurs. If the state does not allow the death penalty, the judge will choose a state with the death penalty.

Antiterrorism legislation came about in the wake of the Oklahoma City bombing in 1995 and the September 11, 2001, terrorist attacks. In 1996 Congress passed the AEDPA. The act, signed into law on April 24, 1996, just after the first anniversary of the Oklahoma City bombing by Timothy McVeigh (19682001), was intended ''to deter terrorism, provide justice for victims, [and] provide for an effective death penalty.'' Another capital crime was added on June 25, 2002, as part of the Terrorist Bombings Convention Implementation Act of 2002. The law makes punishable by death the bombing of places of public use, government facilities, public transportation systems, and infrastructure facilities with the intent to cause death or serious physical injury or with intent to cause destruction resulting in major economic loss. The USA Patriot Act of 2001 and the USA Patriot Act Improvement and Reauthorization Act of 2005 expanded the list of terrorist acts deemed federal crimes that could be subject to the death penalty.

New Laws Lead to an Increase in Federal Capital Cases

In 1992 the Administrative Office of the United States Court established the Federal Death Penalty Resource Counsel Project (FDPRCP) to serve as a clearinghouse for information helpful to defense attorneys appointed in federal death penalty cases. According to Dick Burr, David Bruck, and Kevin McNally of the FDPRCP, in ''An Overview of the Federal Death Penalty Process'' (June 28, 2006, http://www.capdefnet.org/fdprc/contents/shared_files/docs/1__overview_of_fed_death_process.asp), between 1988, when the Anti-Drug Abuse Act was signed into law, to June 28, 2006, the U.S. attorney general authorized the government to seek the death penalty in 382 cases. One hundred ninety-two of the defendants were tried, of which three were executed. In 2006 sixty-two inmates were on trial or awaiting trial, and forty-four convicts were on death row in the federal penal system.

Federal Government Resumes Executions

McVeigh was sentenced to death for conspiracy and murder in 1997 for his bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, on April 19, 1995, which killed 168 people. McVeigh received an execution date of May 16, 2001. The U.S. attorney general John D. Ashcroft (1942), however, delayed the execution following the discovery that the Federal Bureau of Investigation(FBI)hadfailedtoturnovermorethanthree thousand documents to the defense and prosecution during the trial. McVeigh appealed for a second stay of execution, but the U.S. Court of Appeals for the Tenth Circuit denied his request, affirming a U.S. District Court's ruling that there was no evidence that the federal government intentionally hid the FBI files from the defense. On June 11, 2001, the execution was carried out.

Eight days later, on June 19, 2001, the Texas drug boss Juan Raul Garza became the second federal prisoner to be executed since 1963. He was the first person to be executed under the Anti-Drug Abuse Act of 1988 for murders resulting from a drug enterprise. Garza received the death sentence in 1993 for the 1990 murders of three associates.

Garza was initially scheduled to be executed in August 2000. In July 2000 President Clinton granted a four-month reprieve (a stay of execution for a short time to resolve an issue) to allow the Department of Justice to establish clemency guidelines by which a death row inmate could plead for his or her life after exhausting all appeals. Some critics noted that the Clinton administration, which had been running the government for seven years, should have previously taken the time to put in place a clemency protocol for capital cases. Others claimed the government could have applied to capital cases the clemency guidelines that it uses for noncapital cases. It should be noted that, even with no formal guidelines in place, Garza could have pleaded for clemency.

On September 13, 2000, Garza asked President Clinton to commute his death sentence to life imprisonment without parole. Garza's lawyer argued that the Department of Justice study of the federal death penalty system, released the day before, showed the federal capital punishment is ''plagued by systemic bias, disparity and arbitrariness.'' The defense counsel claimed that it would be unfair to put Garza to death because the federal death penalty discriminates against members of minorities and is administered unevenly geographically. (Of the eighteen men on federal death row at that time, sixteen were minorities, and six had been convicted in Texas.) Again, the president delayed the execution, this time to December 12, 2000. It took another six months for the U.S. government to carry out Garza's death penalty. The newly elected president George W. Bush, formerly the governor of Texas, refused to stay the execution, and Garza was executed June 19, 2001.

Louis Jones Jr., a retired soldier, was executed by the U.S. government on March 18, 2003. In 1995 Jones was convicted of killing a female soldier. He admitted kidnapping Tracie Joy McBride from an air force base in Texas. The federal government prosecuted Jones because his crime originally occurred at a U.S. military facility. As of November 2007, Jones was the last person to have been executed by the federal government.


The U.S. military has its own death penalty law: the Uniform Code of Military Justice (UCMJ) found under U.S. Code, Title 10, Chapter 47. Lethal injection is the method of execution. For crimes that occurred on or after November 17, 1997, the UCMJ provides the alternative sentence of life without the possibility of parole. As commander in chief, the president of the United States can write regulations and procedures to implement the UCMJ provisions. The military needs the president's approval to implement a death sentence.

The first U.S. soldier to be executed since the Civil War was U.S. Army private Edward Slovik. In 1944 he was charged with desertion while assigned to the European theater during World War II (19391945). Even though Slovik was just one of hundreds of U.S. soldiers who were convicted of desertion and sentenced to death, he was the only one executed. It is believed that, among other reasons, the military wanted to use his case as a deterrent to future desertions. Slovik died by firing squad on January 31, 1945, in France. Since then no other soldier has been executed for desertion. The last military execution occurred on April 13, 1961, when U.S. Army private John A. Bennett was hanged for the 1955 rape and murder of an eleven-year-old girl.

In February 2006 the military officially recommended to the president that the death penalty be carried out against two prisoners: Ronald Gray and Dwight Loving. Gray was convicted in 1988 of rape, sodomy, and multiple murders committed while he was stationed at Fort Bragg in North Carolina. Loving was convicted in 1989 for murdering two taxi drivers while he was stationed at Fort Hood in Texas. As of November 2007, President Bush had not acted on the recommendations and was under no legal time limit to do so. According to the DPIC, in ''The U.S. Military Death Penalty'' (January 1, 2007, http://www.deathpenaltyin_fo.org/article.php?did=180 ), there were nine men on military death row in 2007: six African-Americans, two white, and one Asian. All were convicted of premeditated murder or felony murder (murder that occurs during the commission of another serious crime, such as arson). The military's death row is located at the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

In July 2007 federal prosecutors announced their intention to seek the death penalty against a former soldier accused of committing atrocities against civilians in Iraq. Steven Green (1985) and four of his comrades were charged in connection with the rape and murder of a teenage girl and the murder of three of her family members. Green, the alleged ringleader of the group, was the only one of the five defendants to face the death penalty. As of November 2007, the other four soldiers had been convicted in military court and sentenced to prison terms. Green's case was brought in federal (not military) court, because he had already been discharged from the army when he was arrested in 2006.


The de facto moratorium on the death penalty in the United States from 1967 to 1976 paralleled a general worldwide movement, especially among Western nations, toward the abolition of capital punishment. Even though the United States resumed executions in 1977, most of the Western world either formally or informally abolished capital punishment.

As of 2007, among the Western democratic nations (with which the United States traditionally compares itself), only the United States imposes the death penalty. There are technical exceptions: for example, Israel maintains the death penalty in its statute books for ''crimes against mankind'' but has executed only Adolf Eichmann (19061962). As a Schutzstaffel officer, Eichmann was responsible for the murder of millions of Jews in Nazi-occupied Europe during World War II. Some countries still maintain the death penalty for treasonalthough no Western democracy has actually imposed it. One of the first acts of the parliaments of many of the east European countries after the fall of communism was to abolish capital punishment.

According to Amnesty International (AI), in ''Facts and Figures on the Death Penalty'' (http://web.amnesty.org/pages/deathpenalty-facts-eng), as of October 2, 2007, sixty-four countries and territories around the world continued to maintain and use the death penalty for ordinary crimes (crimes committed during peacetime). However, some of these countries had not actually implemented a death sentence for many years. The AI reports that there were at least 1,591 executions carried out in twenty-five countries in 2006. The vast majority (1,010) were in China. China, Iran, Pakistan, Iraq, Sudan, and the United States accounted for 91% of all known executions. The AI estimates that more than twenty thousand prisoners worldwide were under the sentence of death at the end of 2006.

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A Continuing Conflict: A History Of Capital Punishment In The United States

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