Death Penalty

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Editor: Donna Batten
Date: 2013
Gale Encyclopedia of Everyday Law
From: Gale Encyclopedia of Everyday Law(Vol. 1: American with Disabilities Act to First Amendment Law. 3rd ed.)
Publisher: Gale, a Cengage Company
Document Type: Topic overview
Pages: 6
Content Level: (Level 4)

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Death Penalty


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History of Death Penalty Laws

The first recognized death penalty laws date back to eighteenth century B.C. and can be found in the Code of King Hammurabi of Babylon. The Hammurabi Code prescribed the death penalty for over twenty different offenses. The death penalty was also part of the Hittite Code in the fourteenth century B.C. The Draconian Code of Athens, in seventh century B.C., made death the lone punishment for all crimes. In the fifth century B.C., the Roman Law of the Twelve Tablets also contained the death penalty. Death sentences were carried out by such means as beheading, boiling in oil, burying alive, burning, crucifixion, disembowelment, drowning, flaying alive, hanging, impalement, stoning, strangling, being thrown to wild animals, and quartering (being torn apart).

In Britain, hanging became the usual method of execution in the tenth century A.D. In the eleventh century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. However, this trend did not last long. As many as 72,000 people were executed in the sixteenth century during the reign of Henry VIII. Common execution methods used during this time included boiling, burning at the stake, hanging, beheading, and drawing and quartering. Various capital offenses included marrying a Jew, not confessing to a crime, and treason.

The number of capital crimes in Britain increased throughout the next two centuries. By the 1700s, over two hundred crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. However, due to the severity of the death penalty, many juries would not convict defendants if offenses were not serious. Such practices led to early reform of Britain's death penalty. From 1823 to 1837, the death sentence was eliminated for over half of the crimes previously punishable by death.

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Executions and other dispositions of inmates sentenced to death, by race and Hispanic origin, 1977–2010
Race/Hispanic origin Total under sentence of death, 1977–2010b Prisoners executed Prisoners who received other dispositionsa
Number Percent of total Number Percent of total
Note: In 1972, the U.S. Supreme Court invalidated capital punishment statutes in several states (Furman v. Georgia, 408 U.S. 238 (1972)), effecting a moratorium on executions. Executions resumed in 1977 when the Supreme Court found that revisions to several state statutes had effectively addressed the issues previously held unconstitutional (Gregg v. Georgia, 428 U.S. 153 (1976) and its companion cases).
a Includes persons removed from a sentence of death because of statutes struck down on appeal, sentences or convictions vacated, commutations, or death by other than execution.
bIncludes 5 persons sentenced to death prior to 1977 who were still under sentence of death on December 31, 2010; 374 persons sentenced to death prior to 1977 whose death sentence was removed between 1977 and December 31, 2010; and 7,500 persons sentenced to death between 1977 and 2010.
cExcludes persons of Hispanic/Latino origin.
dIncludes American Indians, Alaska Natives, Asians, Native Hawaiians, and other Pacific Islanders.
SOURCE: Capital Punishment, 2010—Statistical Tables. National Prisoner Statistics Program, Bureau of Justice Statistics, U.S. Department of Justice, December 2011.
Total 7,879 1,234 15.7 3,487 44.3
Whitec 3,816 700 18.3 1,710 44.8
Blackc 3,225 424 13.1 1,497 46.4
Hispanic 715 96 13.4 231 32.3
All other racesc, d 123 14 11.4 49 39.8

Executions and other dispositions of inmates sentenced to death, by race and Hispanic origin, 19772010 Executions and other dispositions of inmates sentenced to death, by race and Hispanic origin, 1977–2010 Capital Punishment, 2010—Statistical Tables. National Prisoner Statistics Program, Bureau of Justice Statistics, U.S. Department of Justice, December 2011. TABLE BY PREMEDIAGLOBAL. ©2013 CENGAGE LEARNING.


In colonial North America, use of the death penalty was strongly influenced by European practices. When European settlers came to the new world, they brought along their practice of capital punishment. In the territory now recognized as the United States, the first known execution was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain. In 1612, Virginia governor Sir Thomas Dale enacted the Divine, Moral, and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians.

Death penalty laws varied considerably from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, although the Capital Laws of New England did not go into effect until many years later. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father or denying the “true God” were punishable by death.


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The Colonial Period

The abolitionist movement is rooted in the writings of European social theorists Montesquieu, Voltaire, and Bentham, and English Quakers John Bellers and John Howard. However, it was a 1767 essay, On Crimes and Punishment, written by Cesare Beccaria, which principally influenced thinking about punishment throughout the world. Beccaria wrote that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. Scholars in the United States were also affected by Beccaria's work. The first known attempted reforms of the death penalty in the United States occurred when Thomas Jefferson introduced a bill to revise Virginia's capital punishment laws, recommending that the death penalty be used only in the case of murder and treason offenses. Jefferson's bill was defeated by one vote.

Other challenges to early capital punishment laws were based on the idea that the death penalty was not a true deterrent. Dr. Benjamin Rush, founder of the Pennsylvania Prison Society, believed in the brutalization effect and argued that having a death penalty actually increased criminal behavior. Benjamin Franklin and Philadelphia attorney general William Bradford supported Rush. Bradford, who would later become the U.S. attorney general, led Pennsylvania to become the first state to consider degrees of murder based on culpability. In 1794, Pennsylvania repealed the death penalty for all offenses except premeditated murder.

The Nineteenth Century

In the early to mid-nineteenth century United States, the abolitionist movement gained support in the northeast. In the early part of the century, many states reduced the number of capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public by carrying them out in correctional Page 401  |  Top of Articlefacilities. In 1846, Michigan was the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil, and Ecuador followed suit. While some states began abolishing the death penalty, most held onto it. Some states even made more crimes punishable by death, especially those committed by slaves. In 1838, in an effort to make the death penalty more acceptable to the public, some states began passing laws against mandatory death sentencing, instead enacting discretionary death penalty statutes. The 1838 enactment of discretionary death penalty statutes in Tennessee and later in Alabama were seen as a great reform. This introduction of sentencing discretion in the capital process was perceived as a victory for abolitionists because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws were abolished by 1863.

During the Civil War, opposition to the death penalty diminished, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. In 1888, the electric chair was introduced in the state of New York. In 1890 William Kemmler became the first man executed by electrocution. Other states followed New York and used the electric chair as the primary method of execution.

The Progressive Period

While some states eliminated the death penalty in the mid-nineteenth century, it was the first half of the twentieth century that marked the beginning of the Progressive Period of reform in the United States. From 1907 to 1917, six states completely outlawed the death penalty, and three limited it to the rarely committed crimes of treason and first-degree murder of a law enforcement official. These reforms did not last long. There was a frenzied atmosphere in the United States, as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the United States had recently entered World War I, and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. By 1920, these circumstances led five of the six abolitionist states to return to capital punishment.

In 1924, the use of cyanide gas was introduced in the state of Nevada as a more humane way of execution. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas chamber was constructed.

From the 1920s to the 1940s, there was a revival in the use of the death penalty, due, in part, to the writings of criminologists, who argued that the death penalty was a necessary social measure. In the United States, people were suffering through Prohibition and the Great Depression. There were more executions in the 1930s than in any other decade in U.S. history, an average of 167 per year.

In the 1950s, however, public sentiment began to turn against capital punishment. Many allied nations either abolished or limited the death penalty, and in the U.S., the number of executions dropped dramatically. Whereas there were 1,289 executions in the 1940s, there were 715 in the 1950s, and the number fell even further, to only 191, from 1960 to 1976. In 1966, support for capital punishment reached an all-time low. A Gallup poll showed support for the death penalty at only 42 percent.


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Death Penalty Challenges

The 1960s brought challenges to the presumed legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a “cruel and unusual” punishment and therefore, unconstitutional under the Eighth Amendment. In 1958, the Supreme Court decided in Trop v. Dulles (356 U.S. 86) that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.” Although Trop was not a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States had indeed progressed to a point that its “standard of decency” should no longer tolerate the death penalty. In the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered. In 1968, the Court heard two cases which dealt with prosecutorial and jury discretion in capital cases. In U.S. v. Jackson (390 U.S. 570), the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.

In Witherspoon v. Illinois (391 U.S. 510), the Supreme Court maintained that a potential juror's reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if Page 402  |  Top of Articleprosecutors could show that their attitudes toward capital punishment would prevent them from making an impartial decision about the punishment.

In 1971, the Supreme Court twice addressed the problems associated with the role of jurors and their discretion in capital cases, in Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was “beyond present human ability.”

Temporary Abolition of the Death Penalty

The issue of the arbitrariness of the death penalty was again brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia [408 U.S. 238]). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be “cruel and unusual” if it were too severe for the crime, if it were arbitrary, if it offended society's sense of justice, or if it were not more effective than a less severe penalty.

In nine separate opinions, and by a vote of 5-4, the Court held that Georgia's death penalty statute, which gave the jury full discretion in sentencing, could result in arbitrary sentencing. The Court maintained that the scheme of punishment under the statute was thus “cruel and unusual” and violated the Eighth Amendment. As a result, the Supreme Court voided forty death penalty statutes on June 29, 1972, thereby commuting the sentences of 629 death row inmates in the United States and suspending the death penalty because existing statutes were no longer valid.

Reinstatement of the Death Penalty

Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall conclusion in Furman was that the specific death penalty statutes were unconstitutional. That decision by the Court opened the door for states to revise death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness of capital sentences. The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states enacted new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all discretion by mandating capital punishment for those convicted of capital crimes. This practice was ultimately found unconstitutional by the Supreme Court in Woodson v. North Carolina (428 U.S. 280 [1976]).

Other states began to limit discretion by providing sentencing guidelines for judges and juries considering death sentences. Such guidelines allowed for the introduction of aggravating and mitigating factors in sentencing. In 1976, the Supreme Court approved these discretionary guidelines in Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. Additionally, the Court maintained that the death penalty itself was constitutional under the Eighth Amendment.

In addition to sentencing guidelines, the Court approved three additional reforms in the Gregg decision. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury determines that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time. Another reform was the practice of automatic appellate review of convictions and sentence. The final procedural reform was proportionality review, a practice that assists states in identifying and eliminating disparities in sentencing. The state appellate court can use this process to compare the sentence in a case being reviewed with other cases within the state to see if it is disproportionate. Because the reforms were acknowledged by the Supreme Court, some states wishing to reinstate their death penalty sentences included them in revised statutes. However, inclusion was not required by the Court. Therefore, some of the resulting new statutes included variations on the procedural reforms found in Gregg.

The ten-year moratorium on executions that began with the Jackson and Witherspoon decisions ended on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah. Gilmore did not challenge his death sentence. That same year, Oklahoma became the first Page 403  |  Top of Articlestate to adopt lethal injection as a means of execution, though it would be five more years until Charles Brooks became the first person executed by lethal injection in Texas on December 2, 1982.


In June 2003, Governor George Ryan of Illinois stirred controversy when he commuted the death sentences of 167 inmates to life imprisonment. Ryan said he had concluded that the state's capital punishment system was “haunted by the demon of error.” His action came three years after he ordered a moratorium on executions after evidence proved that 13 inmates on death row had been wrongly convicted. Ryan, a Republican, had sought office with a platform that supported capital punishment. In 2011, Illinois abolished capital punishment, the sixteenth state to do so.

In a 1989 case, the U.S. Supreme Court upheld the execution of inmates with intellectual disabilities. In the years following, however, many states enacted legislation to prohibit such executions. In 2002, in Atkins v. Virginia, the Supreme Court voted 6-3 that the execution of persons with intellectual disabilities is prohibited under the Eighth Amendment as cruel and unusual punishment.

In 2005, in another historic decision, the U.S. Supreme Court barred the execution of persons who are under the age of 18 when they commit capital crimes. The ruling in Roper v. Simmons followed the same reasoning used by the court in Atkins. In a 5-4 decision, the majority found that “evolving standards of decency” and the Eighth Amendment's prohibition of cruel and unusual punishment required the banning of juvenile executions. In its reasoning, the court gave credence to the fact that few nations in the world allow the execution of juveniles.

The use of lethal injection for capital punishment has grown in popularity. Thirty-five states, the U.S. military, and the federal government employ this method. Inmates challenged lethal injections as cruel and unusual punishment under the Eighth Amendment, filing numerous lawsuits. In 2008, the U.S. Supreme Court resolved the issue, ruling that death by lethal injection was constitutional (see Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 171 L.Ed.2d 525 [2008]).

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Capital Punishment at the Federal Level

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 largescale 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 problems 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 had approved. Since its enactment, six 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 sixty crimes, three 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 of a federal building, 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 stricter 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.

When he was executed on June 11, 2001, Timothy McVeigh became the first federal prisoner executed in 38 years. McVeigh was executed by lethal injection at the U. S. Penitentiary in Terre Haute, Indiana, for the April 19, 1995 Oklahoma City bombing.


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 Nations' 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 requirement has, in effect, led to the abolition of the death penalty in Eastern Europe. For example, Ukraine, formerly one of the world's leaders in executions, halted the death penalty and was admitted to the Council. In addition, in June 1999, Russian president Boris Yeltsin signed a decree Page 404  |  Top of Articlecommuting the death sentence for all of the convicts on Russia's death row. In 2005, Mexico and Liberia abolished the death penalty for all crimes.

In April 1999, the United Nations Commission on Human Rights passed the Resolution Supporting Worldwide Moratorium on Executions. The resolution calls on countries that have not abolished the death penalty to restrict the 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.

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Capital Punishment Today

Currently, more than half of the countries in the international community have abolished the death penalty by law or by practice. However, according to Amnesty International, 58 countries retain the death penalty, including China, Iran, and the United States. In 2011 at least 680 people were executed in 21 countries, although the actual number is significantly greater, according to reports of Amnesty International. In its 2011 report it notes that China continues to execute thousands each year.

Recent Death Penalty Statistics

Beginning in the 1990s the number of persons sentenced to death has declined markedly. In its 2011 report, the Bureau of Justice Statistics noted that number of new death sentences imposed in 2011 stood at 78, a decline of about 75 percent since 1996, when 315 inmates were sentenced to death. This was the lowest number of death sentences in any year since the death penalty was reinstated in 1976. Texas, which had 48 new death sentences in 1999, had only 8 in 2011. Executions also decreased in 2011. There were 43 executions in 13 states, a 56 percent decline since 1999, when there were 98. Life without parole has become more popular, especially in light of numerous cases where death row inmates have been found to have been innocent of their crimes.


Focault, Michel. Discipline and Punish: The Birth of the Prison. New York: Vintage Books, 1977.

Johnson, Robert. Death Work: A Study of the Modern Execution Process. Belmont, CA: Wadsworth Press, 1998.

Office of Justice Programs. “Capital Punishment Statistics.” Bureau of Justice Standards, U.S. Department of Justice. Available at (accessed November 3, 2012).

Oshinksy, David M. Capital Punishment on Trial. Lawrence, KS: University Press of Kansas, 2010.

Paternoster, Robert, Robert Brame, and Sarah Bacon. The Death Penalty: America's Experience with Capital Punishment. New York: Oxford University Press, 2010.

Schabas, William. The Abolition of the Death Penalty in International Law. New York: Cambridge University Press, 1997.


Death Penalty Information Center
1320 Eighteenth Street NW
Washington, DC 20036
Phone: (202) 293-6970
Fax: (202) 822-4787

Federal Bureau of Prisons, U.S. Department of Justice
320 First Street NW
Washington, DC 20534
Phone: (202) 307-3198

National Institute of Corrections
1860 Industrial Circle, Suite A
Longmont, CO 80501
Toll Free: (800) 877-1461
Fax: (303) 682-0213

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Gale Document Number: GALE|CX2760300087