Death Penalty Throughout The History of United States

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In the early United States colonial era when Great Britain still ruled the colonies, executions were common and used as a deterrent to prevent people from committing crimes against the crown. After the Declaration of Independence was signed, Benjamin Franklin said that the death penalty did not deterrer people but increased criminal behavior. Later, in the Jacksonian era, a movement to abolish the death penalty was a common part of public discussion because the people of that era thought the death penalty was an inhumane punishment for criminals. After the turn of the twentieth century, states moved away from hanging and firing squads and towards the use of lethal injections. Later that century, states questioned the use of the death penalty – the chance of executing an innocent person, that the use of the death penalty was inhumane, and that the death penalty violated the eighth and fourteenth amendments. This paper will look at the history of the U. S. death penalty, what important cases have come out of the Supreme Court, where the death penalty is now along with how the use of the death penalty has decreased.

During the time of Britain’s King Henry VII in the sixteenth century, executions were very common. Around 72, 000 people were executed by Henry VII, by hanging, beheading, drawing, and quartering. Crime in Britain progressed the next two centuries with 222 crimes categorized as punishable by death. Crimes such as stealing and cutting down a tree resulted in death (“Part I: History of the Death Penalty”, n. d. ) America’s use of the death penalty was heavily influenced by Britain’s legal system since the European settlers that came to the New World brought social acceptance of capital punishment for crimes, and the beginnings of the country followed British laws (“Part I: History of the Death Penalty”, n. d. ) One of the first recorded executions was Captain George Kendall in Jamestown colony in the New World who was executed for spying for the Spanish in 1608. Virginia Governor, Sir Thomas Dale developed a statute that allowed executions for seemingly minor offenses such as stealing food, killing live stock, and trading with Indians (“Part I: History of the Death Penalty”, n. d. ) The first woman executed in the New World was Jane Champion, who concealed the murder of her illegitimate infant and was hanged in James City, Virginia (Simone Weichselbaum, 2015).

Each colony had its own set of laws on the death penalty. One example was in New York where the government instituted the Duke’s Laws of 1665 that allowed executions for striking one’s mother or father or denying the “true God”(“Part I: History of the Death Penalty”, n. d. ) During the colonial times, the abolitionist movement found momentum propelled by writings from European theorists. The most compelling theorist was Cesare Beccaria; his 1767 essay, On Crimes and Punishment, had a huge impact on the world. He theorized that there was no justification for a state to take a citizen’s life (“Part I: History of the Death Penalty”, n. d. ) “The punishment of death is the war of a nation against a citizen whose destruction it judges to be necessary or useful. ‘ (“Cesare Beccaria”, n. d. ) ‘No man can be judged a criminal until he be found guilty; nor can society take from him the public protection, until it has been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorize the punishment of a citizen, so long as there remains any doubt of his guilt? The dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent, whose crime has not been proved. ‘ (“Online Library of Liberty”, 2004, para. 1). These two quotes from Cesare Beccaria highlight his thoughts that the death penalty is unjust and cruel, that no state has the authority to take a citizen’s life. Beccaria’s essay gave abolitionists a scholarly voice, in which to advocate for rethinking colonial death penalty laws. Thomas Jefferson was the first one to attempt to reform the death penalty, where he introduced a bill to revise Virginia’s death penalty laws, but his bill was defeated by one vote. Another influencer was Dr. Benjamin Rush. Rush claimed that the death penalty was not a deterrent, instead a brutalization effect. The brutalizing effect is a hypothesized cause and effect relation between executions, and an increase in homicide rates, where the public’s respect for life diminishes.

In 1794, Pennsylvania became the first state to repeal the death penalty for all offenses except first degree murder (“Part I: History of the Death Penalty”, n. d. ) During the nineteenth century, the Jacksonian era saw many states move to abolish the death penalty. States condemned the use of the gallows and asked for a more humane way of treatment for criminals. Moving executions from the public eye and into correctional facilities became more common during this era. Moreover, some states like Michigan, abolished the death penalty for all crimes except treason. Wisconsin and Rhode Island abolished the death penalty for all crimes (“Part I: History of the Death Penalty”, n. d. ) While some states moved to abolish the death penalty, most states held onto capital punishment for capital offenses such as crimes committed by slaves. In order to make the death penalty more acceptable in the public eye, states such as Tennessee and Alabama, enacted discretionary death penalty statutes, which meant the circumstances of the crime were to be taken into consideration (“Part I: History of the Death Penalty”, n. d. ) While not a complete win, the abolitionists greeted this change because before this statute, states could execute anyone regardless of the circumstances.

A more serious setback happened during the Civil War, when opposition of the death penalty decreased because of the conflict and new methods of capital punishment were developed such as the electric chair. New York was the first state to use the electric chair for the execution of William Kemmler (“Part I: History of the Death Penalty’, n. d. ) The “Progressive Period” during the twentieth century saw more reforms happen. Between 1907 to 1917, six states outlawed the death penalty. However, these reforms didn’t last long due to the Russian Revolution, and the U. S. entry into World War I, which caused five of the six states to reinstate the death penalty (“Part I: History of the Death Penalty”, n. d. ) Looking for more humane ways of executing criminals caused the use of lethal gas to begin.

The Prohibition era of the 1920s and the Great Depression in the 1930s had leading criminologists claim the death penalty was a needed social deterrent. During this era, the number of executions per year were at the highest rate in American history with an average of 167 deaths per year (“Part I: History of the Death Penalty”, n. d. ) After World War II, public sentiment began to turn away from capital punishment, resulting in a dramatic drop in executions. In the 1940s, there were 1, 289 executions. In the 1950s there were 715 executions. The number of executions dropped even further between 1960 and 1976 with 191 executions. Support for the death penalty was only 42% in 1966 (‘Part I: History of the Death Penalty’, 2019). Today 54% of Americans support the death penalty, while 39% oppose the death penalty (J. Oliphant, 2018).

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Cases started to come to the Supreme Court in 1878, which challenged execution methods under the Eighth Amendment in cases such as Wilkerson v. Utah, 99 U. S. 130 (1878) and Trop v. Dulles, 356 U. S. 86 (1958). The U. S. Supreme Court in Trop v. Dulles, 356 U. S. 86 (1958) stated that the definition of cruel and unusual “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’. The other Supreme Court case of Wilkerson v. Utah, 99 U. S. 130 (1878) ruled that the firing squad was not cruel nor unusual (Gordon Bakken, 2010, p. 11). One of the last legal challenges to execution methods was on the use of electrocution. The Supreme Court issued an opinion, In re Kemmler, 136 U. S. 436 (1890), where the court upheld the use of electrocution does not compose as cruel and unusual punishment. The court said, “that the level of pain experienced by the offender formed the basis for their decision on whether the use of the electric chair constitutes as Eighth Amendment violation”. Justice Brennan wrote a dissenting opinion for Glass v. Louisiana, 471 U. S. 1080 (1985), where the Supreme Court denied certiorari concerning the constitutionality of the electric chair. Brennan wrote that the method of electrocution was cruel and barbaric, and it should be measured against well-established contemporary Eight Amendment principles (Gordon Bakken, 2010, p. 12).

Public concerns about the potential pain in execution methods caused states to look to other methods for humane executions, such as lethal gas, as said above. Some states used cyanide gas, but several documentations of botched executions challenged the concept that lethal gas lead to a pain-free death. In 1996, the Ninth Circuit Court of Appeals regarding Fierro v. Gomez, 865 F. Supp. 1387 (N. D. Cal. 1994), held the use of gas chambers was unconstitutional, however the decision was never affirmed by the U. S. Supreme Court (Gordon Bakken, 2010, p. 13). Currently, the primary method of execution is by lethal injection, which was first adopted by Oklahoma in 1977. As with the gas chamber, the use of lethal injection has also had botched attempts at a humane execution. The use of lethal injections is now being challenged by death row inmates and medical professionals on the administration of the drug during the execution process, whether the drug causes unnecessary pain, and if the drug masks the true levels of pain experienced by inmates during the execution (Gordon Bakken, 2010, p. 13). In the 2007 case of Baze v. Rees, 553 U. S. 35 (2008), the U. S. Supreme Court granted certiorari for the use of three drugs for execution by lethal injection in the state of Kentucky to be constitutional under the Eighth Amendment.

Before 1972, the U. S. Supreme Court had very little oversight of the administration of the death penalty. Powell v. Alabama, 287 U. S. 45 (1932), where the three defendants were young African Americans charged for the rape of two white women had no specific attorney to represent them until the morning of the trial. Not surprisingly, the men were convicted and sentenced to death. The court held that the court must assign counsel for defendants whether requested or not if they are facing the death penalty (Kenneth Williams, 2012, p. 7). McGautha v. California, 402 U. S. 183 (1971), the U. S. Supreme Court gave states complete discretion in administering the death penalty and the lack of legal standards by which juries imposed the death penalty was not unconstitutional violation of the due process clause portion in the Eighth Amendment. However, one year later, the Court changed course in the Furman v. Georgia, 408 U. S. 238 (1972) case, where they struck down every death penalty statute in the country because of the arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments and constitutes cruel and unusual punishment (Kenneth Williams, 2012, p. 11). The public opinion was not in favor of the Furman decision because it was an abrupt change only one year after the McGautha case.

The increase of support for capital punishment after the Furman case lead thirty-five states, and the federal government to enact new capital punishment statutes. In Gregg v. Georgia, 428 U. S. 153 (1976), the Supreme Court reviewed the case of Georgia’s new death penalty procedures where Georgia attempted to limit the sentencing judge’s discretion by requiring the jury find at least one statutory aggravating circumstance which allowed the defendant to be sentenced to death (Kenneth Williams, 2012, p. 13). The U. S. Supreme Court agreed with Georgia’s new procedures and held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. The Court discussed two primary reasons for their conclusion. First, the evolving standards of decency test from the Trop case, found that society continued to support the death penalty. Second, the Court found it served two penological justifications, deterrence, and retribution.

The Greg Case set stage for a modern era of capital punishment, where the Court would begin to regulate the administration of the death penalty (Kenneth Williams, 2012, pp. 13-15). Cases such as Powell v. Alabama, 287 U. S. 45 (1932), where the Court ruled that defendants were required to have counsel in death sentences, other cases also came to the court that involved ineffective counsel during death trials. Strickland v. Washington, 466 U. S. 668 (1984), involved David Washington who pleaded guilty to a murder in Florida. Washington sought habeas corpus and argued his Sixth Amendment was violated because he had ineffective assistance of counsel. The U. S. Supreme Court came out and held that the petitioner had to prove that counsel performed deficiently, and the petitioner suffered prejudice as a result of the counsel’s deficient performance (Kenneth Williams, 2012, pp. 7 & 18). However, the Strickland standard was unpopular among scholars or members of the bench because of the interpretation of the Sixth Amendment was widely different within the U. S. Court of Appeals, it also was unconquerable for death-sentenced defendants when they claimed ineffective counsel. The U. S. Supreme Court sought to clarify Strickland in Williams v. Taylor, 529 U. S. 362 (2000), Wiggins v. Smith, 539 U. S. 510 (2003), Rompilla v. Beard, 545 U. S. 374 (2005), and Florida v. Nixon, 543 U. S. 175 (2004). These four cases provided some clarification and made it clear that an attorney has an obligation to conduct a reasonable investigation. An attorney’s strategic decisions will continue to receive deference if these decisions were made after a thorough investigation and were reasonable. And lastly, the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Case is to be referred to when determining whether one’s counsel performance was deficient. Even though the Court sought to clarify Strickland in the other four cases, there were still problems with the requirements of proving prejudice in special challenge death-sentence defendants who can’t meet the challenge when their attorney’s performance was inadequate (Kenneth Williams, 2012, p. 26).

While there were cases involving ineffective counsel for death-sentenced defendants, there were other cases involving different facets of the death penalty. For example, McCleskey v. Kemp, 481 U. S. 279 (1987), where an African American man was convicted for killing a white officer during a robbery and sentenced to death. McCleskey appealed on the basis that he was racially discriminated against in the lower court’s decision and provided a Baldus study that showed disparity in the death penalty sentencing on the base of race of the murder victim in Georgia. While the Court accepted the validity of the Baldus study, they rejected McClesky’s claim and refused to accept the statistics as evidence of racial discrimination in violation of the Constitution. The Court held that so as to prove race discrimination, the defendant must obtain evidence indicating the judge, prosecutor, or jury in his case took race into account. The Court feared that if they ruled in favor of McCleskey, “black defendants charged with crimes such as rape would be able to produce statistical evidence that they received harsher sentences than whites and it would have been difficult for the Court to find a rationale to reject their claims”. Thus, the Court created an impossible burden of proof for defendants (Kenneth Williams, 2012, pp. 41-44).

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