The United States occupies an unusual position with respect to the death penalty. In its early history, the United States was at the forefront of death penalty reform. Almost immediately after the Constitution was ratified, many states sought to limit the perceived excesses of capital punishment, with several states pursuing the path of abolition by the mid-nineteenth century. Over the past quarter century, though, the United States has become an outlier among democratic countries in its retention of the death penalty. Indeed, the United States’ extensive use of the death penalty during this period—especially its application against persons with mental retardation and juveniles—has generated extensive criticism from traditional American allies abroad. The broader history of the American death penalty reflects a deep ambivalence about the wisdom and role of the death penalty, and the two centuries separating early amelioration and modern robustness were punctuated by waves of reform and retrenchment.
Generalizations about the “American” death penalty are hazardous, though, because few areas of American law and practice better illustrate American federalism. The death penalty in the United States is virtually entirely confined to the states (the numbers of federally sentenced death row inmates and federal executions are trivial in relation to the numbers of inmates and executions at the state level), and states vary widely in both their laws concerning the availability of the death penalty and the manner in which they actually administer it.
Capital punishment has been a feature of the American criminal justice system from the time of the founding. In colonial times, the death penalty was available for numerous crimes, mirroring in many respects the English model. However, just as there were some distinctive features of colonial capital punishment practices, the American death penalty departed from its English roots soon after independence. By the early nineteenth century, states generally reduced the number of crimes punishable by death to a handful of crimes whereas England recognized over 200 capital offenses. Indeed, several states actually abolished capital punishment for all crimes other than murder and treason. The reduction of capital offenses was made possible in part by the introduction of penitentiaries and the option of long-term imprisonment in the late eighteenth and early nineteenth centuries.
The reformist impulse was also manifest in states’ efforts to limit the automatic application of the death penalty for murder. First, many states developed a hierarchy of murder, distinguishing between “degrees” of the crime: only “first-degree” murder could generate a capital sentence. Later, states gravitated toward discretionary sentencing even with respect to those defendants convicted of murder in the first degree. By the mid-twentieth century, virtually all American jurisdictions retaining the death penalty afforded jurors substantial discretion to withhold the punishment based on the circumstances of the offense and the offender.
Regional variances in death penalty practices date back to the colonial era. The northern colonies were more inclined to punish based on religious imperatives, authorizing the death penalty for such crimes as sodomy, adultery, and blasphemy. The southern colonies, following English law, were more likely to punish property offenses, even minor ones, with death. In addition, slavery generated its own list of capital crimes, such as the offenses of slave revolt and aiding runaway slaves. By the mid-nineteenth century, southern criminal codes openly distinguished by race (and not merely slave status), making numerous offenses capital when committed by black offenders (even “free” blacks) but not capital when committed by whites. Not surprisingly, southern executions disproportionately involved black offenders.
Even within particular states, death penalty practices diverged significantly, with county officials administering executions during the colonial period and throughout much of the nineteenth century. By the end of the nineteenth century, though, executions increasingly were conducted under state rather than local authority. The trend toward state rather than local executions began earlier in the northern states but eventually spread to southern jurisdictions as well.
State-conducted executions peaked during the Depression and declined significantly in the ensuing three decades, with over 1,500 executions conducted nationwide during the 1930’s and less than 200 during the 1960’s. Executions in the South significantly exceeded executions in other parts of the country over this period, both in absolute numbers and in relation to population size. Nonetheless, nonsouthern states conducted substantial numbers of executions between 1930 and 1965, with Ohio, Pennsylvania, New York, and California joining six southern states (North Carolina, South Carolina, Georgia, Florida, Mississippi, and Texas) as the leading ten states in absolute execution numbers.
LEGAL REGULATION OF THE DEATH PENALTY
Throughout much of American history, courts placed very few restrictions on state capital punishment practices. Some of the more prominent legal challenges focused not on states’ ability to execute but rather on the manner in which death sentences were to be carried out. Indeed, much of the history of the American death penalty involves the struggle to “humanize” capital punishment by implementing less painful (or less unseemly) methods of execution. Hanging was the common form of execution during colonial times and throughout the eighteenth century. Hangings, though, often resulted in prolonged death, and numerous “botched” executions led states to seek less gruesome modes of execution. The development of the electric chair in the late eighteenth century, and its promise of quick and painless death, led many states to prescribe electrocution as the sole means of execution. However, even electrocutions could fail, and the U.S. Supreme Court on one occasion was forced to decide whether a Louisianan inmate who survived after a mechanical failure could be forced to endure another attempted electrocution. The Court, noting that “[a]ccidents happen for which no man is to blame,” permitted the state to go forward. In the modern era, concerns about (and litigation targeting) electrocution ultimately led to the near-universal adoption of lethal injection as the exclusive means of execution. Changes in the modes of execution reflect the movement toward private, centralized, medicalized executions and away from the public ceremonial executions characteristic of the colonial and early American systems.
The limited legal regulation of the death penalty during the country’s first 150 years was attributable largely to a crucial aspect of American federalism: the core protections for criminal defendants in the Bill of Rights were originally designed and interpreted to constrain only federal actors. Whereas federal defendants could assert claims under a variety of constitutional clauses, including the Fourth Amendment’s guarantee against unreasonable searches and seizures, the Fifth Amendment’s guarantees against compulsory self incrimination and double jeopardy, the Sixth Amendment’s rights to counsel and jury trial, and the Eighth Amendment’s prohibition of cruel and unusual punishment, state criminal defendants were forced to frame their legal challenges within the Fourteenth Amendment’s general assurance of “due process of law.” Accordingly, the federal courts rarely intervened in state criminal matters, including state death penalty practices.
Manifest injustice in some states’ systems, though, particularly in the South, led the U.S. Supreme Court to gradually recognize broader federal protections in state trials. The infamous Scottsboro boys litigation in Alabama during the 1930’s (Powell v. Alabama 1932) led to the Court’s recognition of the right to competent counsel in state capital proceedings. The Court reversed another conviction obtained in the Scottsboro case because it refused to credit state explanations for the racially disparate selection of jurors. Ultimately, by the late 1960’s, virtually of the protections afforded federal prisoners were extended to state prisoners as well. The decisions incorporating the guarantees of the Bill of Rights via the Fourteenth Amendment’s Due Process Clause and applying them in state criminal proceedings provided the framework for subsequent federal constitutional regulation of the death penalty.
The growth of protections for state prisoners occurred at the same time that national popular support for the death penalty was waning. The Civil Rights movement had caused many to regard the death penalty—particularly as applied to those convicted of rape—as a legacy of racial discrimination. Indeed, in a brief dissent from a decision declining review in 1963, three justices on the U.S. Supreme Court had astonishingly suggested, without mentioning race, that the death penalty might be excessive and unconstitutional as applied to defendants convicted of rape. Other social developments, including the general upheaval of the 1960’s and the disillusionment wrought by the Vietnam War, likewise appeared to contribute to the diminished support for capital punishment. In 1966, public opinion polls revealed for the first time greater public opposition than support for the death penalty.
Emboldened by these legal and social changes, the Legal Defense Fund of the NAACP embarked on a “moratorium” strategy to bring the American death penalty to a halt. The strategy involved challenging death verdicts as vigorously as possible in light of newly recognized rights, especially as defendants approached execution dates. By 1968, executions in the United States had ceased (after one execution nationwide in 1966 and two in 1967). The U.S. Supreme Court then agreed to decide whether the American death penalty remained consistent with the Eighth Amendment’s prohibition of cruel and unusual punishments.
The Court’s resulting decision in Furman v. Georgia (1972) remains the most significant articulation of the constitutional status of the American death penalty. The decision reflected deep divisions on the Court as all nine justices wrote separate opinions supporting their views, with a bare majority (5–4) voting to strike down all then-existing capital statutes. Although two justices urged the Court to abolish the death penalty altogether as inconsistent with evolving standards of decency, the majority’s opinion focused on states’ administration of the penalty rather than the harshness or cruelty of the penalty itself.
The justices in the majority were united in their concern about the arbitrariness of prevailing sentencing practices. In particular, the majority condemned the unbridled discretion afforded capital punishment decision makers. State capital punishment statutes uniformly failed to specify what factors justified imposing or withholding the death penalty, and the justices in the majority expressed skepticism that the few offenders selected for death from the vast pool of death-eligible defendants truly constituted the “worst” offenders. In response to the Court’s decision, states revamped their statutes to address the problem of standardless discretion. A substantial number of states sought to combat the problem of arbitrariness by enacting mandatory death penalty schemes, but the Court rejected this extreme as well, insisting that sentencers must be afforded an opportunity to consider mitigating factors regarding an offender’s background and character, and the circumstances of the offense. Other states sought to cabin sentencer discretion by requiring sentencers to find the existence of at least one enumerated aggravating factor before imposing a sentence of death. Having rejected the extremes of standardless discretion and the mandatory death penalty, the Court embraced this middle course of “guided discretion” statutes.
Following the ten-year hiatus in executions, the modern death penalty era was inaugurated with the resumption of executions in 1977. The ensuing quarter century saw extensive litigation concerning various aspects of state death penalty schemes. The Court invalidated the death penalty for the crime of rape (of an adult victim) and found capital punishment excessive as applied to persons with mental retardation. At the same time, the Court rejected broader challenges to the death penalty, such as claims based on statistical evidence highlighting the significance of race (particularly the race of the victim) in capital decision making.
Regional disparities in the modern era have been more pronounced than those of any other era in American history. Although 38 states make the death penalty available for murder, executions are overwhelming confined to the American South and its borders. In the three decades following Furman v. Georgia, 11 southern and border states carried out close to 90 percent of the executions nationwide. Southern states executed more inmates than other regions in the period between 1930 and 1960, but states in the Northeast and West actually performed more executions per homicide than the South during that period. Moreover, at least some of the gap between executions in the South and its borders, on the one hand, and the rest of the country, on the other, was attributable to southern exceptionalism with regard to the death penalty for the crime of rape: all of the 455 executions for rape after 1930 in the United States occurred in southern states, border states, and the District of Columbia.
The enormous disparity in execution rates among the 38 states retaining the death penalty is not attributable to significant differences in death-sentencing rates. Indeed, the death-sentencing rates of some states outside of the South are relatively high, with Ohio and Pennsylvania, for example, producing more death verdicts per homicide than Texas and Virginia, the 2 states leading in sheer numbers of executions. As a result, the death row populations outside of the South rival those of the active execution states, with Ohio, Pennsylvania, and California housing more death row inmates at the beginning of the twenty-first century than the 4 states leading in executions in the modern era (Texas, Virginia, Missouri, and Oklahoma).
The modern era has thus seen the creation of three sorts of death penalty jurisdictions: states without the death penalty by law (abolitionist states), states with the death penalty but insignificant numbers of executions (symbolic states), and states with both the death penalty by law and in practice—states actively carrying out executions (executing states).
Most of the scholarly and popular attention to the execution gap between the South and the rest of the country attempts to identify those aspects of southern politics and culture that account for that region’s continued robust use of the death penalty. Many explanations have been offered, including those that emphasize the connection between the death penalty and racial fear and oppression, those that point to higher levels of violence generally in the South (including homicide rates), those that highlight the prevalence of fundamentalist religious beliefs (the near-perfect overlap of the “Bible belt” and the “death belt”), and those that focus on the long-standing inadequacies of criminal defense representation in southern jurisdictions.
The long-ignored and perhaps more apt question concerns the rest of the country’s decision neither to abandon the death penalty nor to carry out executions. It remains puzzling that the death penalty exists as “law” but not as practice in virtually all of the death penalty jurisdictions outside of the South and its borders. Although there are some modest differences in procedures (method for setting execution dates, structure and timing of state court review, and mechanism for appointment of defense counsel to indigent defendants) among death penalty jurisdictions, such differences are far too minor to explain their extraordinary divergence in practice. In the end, the presence or absence of political will is likely responsible for the divide between symbolic and executing states. The lack of political will can affect the process at many points in the capital punishment system, but primarily in the lengthy processing of cases in state courts and the reluctance to set execution dates in cases that have managed to move through the system.
Overall, the modern era seems to carry forward the historic pattern of reform and retrenchment in the American capital punishment system. The U.S. Supreme Court’s decision invalidating standardless discretion schemes was followed by the enthusiastic efforts of states to redraft their capital statutes. After a relative paucity of executions in the 1960’s and 1970’s, executions became commonplace by the 1990’s, reaching a yearly nationwide total in 1999 (ninety-eight) that had not been matched since 1951. At the same time, concerns about the death penalty’s reliability and fairness have subsequently intensified the public debate over the death penalty and spawned some significant reforms. The discovery of numerous wrongful convictions involving death-sentenced Illinois prisoners led to a comprehensive study of the Illinois system and ultimately to the decision by the Illinois governor George Ryan in 2003 to commute the death sentences of the entire death row (167 inmates). Other states, influenced by technological advances in the testing of genetic material, have likewise sought to minimize the risk of wrongful convictions and executions by liberalizing indigent defendants’ access to pre- and posttrial testing of DNA evidence.
The American death penalty system exemplifies the paradoxes of the larger American criminal justice system. Procedurally, the United States places vastly more restrictions on the investigation and prosecution of crime than other countries. On the substantive side, the United States has adopted an unusually punitive approach in sentencing, reflected in the adoption of mandatory minimum sentences for a host of crimes, including nonviolent (mainly drug) offenses, and “three strikes” laws with severe consequences for recidivists. The modern death penalty carries forward both of these dimensions: the death penalty remains an available punishment throughout most of the country, and yet extensive litigation, particularly in symbolic states, constrains the ultimate implementation of capital sentences.
The central question for the future is whether the course of the modern era is a stable one. As the death rows in symbolic states continue to grow, political pressure is likely to mount from both sides either to proceed with executions or to remove inmates from death row who face no realistic prospect of execution. National abolition of the death penalty through the legislative process is an exceedingly remote—perhaps unthinkable—possibility both because of the absence of the support necessary for such congressional regulation and because of genuine doubts about congressional power to so regulate. Judicial abolition, on the other hand, remains a real possibility, especially if the extreme regionalization of executions persists and the gap between those sentenced to death and those actually executed causes the Court to acknowledge a new form of intolerable arbitrariness.
James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds., America’s Experiment with Capital Punishment: Reflections on the Past, Present and Future of the Ultimate Sanction, 2nd ed. (Durham, NC: Carolina Academic Press, 2003); Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2000); Michael Meltsner, Cruel and Unusual: The United States Supreme Court and Capital Punishment (New York: Random House, 1973); and Carol S. Steiker and Jordan M. Steiker, “Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment,” Harvard Law Review 109 (December 1995): 355–438.