Toth J., Zoltan
The History of Capital Punishment in the United States
The United States is one of those
democratic countries which still maintains capital punishment for certain
crimes. In this regard the USA is a rare exception to the present democracies
along with, among other states, for example Japan and South Korea. In this
study I am going to examine the history of the death penalty in America.
The first recorded execution in the
New World was presented in 1608 when a Captain George Kendall was shooted in
Virginia on the grounds of the charge with espionage in favour of Spain.
(Otherwise, the first woman, Jane Champion, to be executed in the New World,
was hanged in 1632, also in Virginia.) In the 17th and 18th century a whale of
capital punishments were achieved, principally in virtue of the Holy Bible. In
this era such crimes were punished by death, like adultery, sodomy, bestiality,
homosexuality or sorcery (see for example the Salem Witchcraft Trials of 1692
in Massachusetts). Besides the biblical crimes such common offenses were also
penalized like larceny, robbery, rape, arson, poisoning, kidnapping etc., and
certainly all the life-threatening criminal offenses like murder (however those
be named: capital murder, first-degree murder, aggravated murder, intentional
murder), homicide, attempted murder etc. as well. ”Naturally” the crimes
against the state, like treason, espionage, were also punished by death.
The first step in the decline of the
”strict criminal justice” was in 1682 in Pennsylvania where the so-called
“Great Act” abolished the death penalty for all crimes except murder and the
crimes against the state. Pennsylvania was also the first state to prohibit the public executions in
1834 (the same provision was applied in 1835 by New York and New Jersey as
well). In 1838 Tennessee became the first (and in 1841 Alabama became
the second) state which did not prescribe mandatory death sentences[1] for capital offenses.
(This practice will be forbidden for the whole federation only in 1976 by the
Supreme Court of the United States in Woodson v. North Carolina.)[2] In 1845 the American
Society for the Abolition of Capital Punishment, the first abolitionist
association in the United States was established. The ASACP was the first
national alliance that aimed to stop the practice of executions, but it did not
manage to achieve its goal (and virtually in that time and in that society it
did not have any chance of it). In 1846 the Congress of Michigan passed an act
abolishing capital punishment for all common crimes (including murder as well),
but this bill still held up this kind of sanction for the crimes against the
state and for military offenses. (This act came into force on 1st March, 1847.)
And finally Wisconsin became the first state in the USA to abolish the death
penalty for all crimes without exception. (This law was passed in 1852, but it
came into effect only in 1853.) This event was the very beginning of a new era
in the history of the United States, lasting up to 1972, and by the end of this
long criminal development the capital punishment, as then practised in the
states of the USA, will have been declared unconstitutional and therefore the
implementation of the formerly imposed death penalties will have been suspended
by the Supreme Court’s surprising, unforeseen and unexpected decision.
This era (the
years between 1853 and 1972) was not only the time of humanization and that of
the decrease of imposition of capital punishments (except, of course, the
period between the First and Second World War), but this was the age of the
introduction of new forms of execution as well. In the states of the USA until
1890 there were two main traditional kinds of executional method: shooting
(generally for military crimes) and hanging (principally for common offenses).
The electrocution as a new method was introduced in New York in 1890 since the
New York legislature (and, of course, other states' legislatures as well)
sought a new sort of executional technique that was more humane than hanging.
Governor David Bennett Hill set up a legislative committee in 1886[3] to examine
other executional methods. This committee suggested utilizing electric current
as an alternative of hanging. On the grounds of the proposal of this commission
a new law was enacted on 4th June, 1888 introducing the electric chair to cause
death for capital offences
committed after 1st January, 1889. (In the meanwhile the chair itself was designed in
1888/1889 by Harold P. Brown, who chose from the two possible kinds of current,
Thomas Alva Edison's direct current /DC/ and George Westinghouse's alternating
current /AC/ the latter.) The first offender executed by electrocution (using
Westinghouse's alternating current) on 6th August, 1890 became a William
Kemmler, who was sentenced to death because of murdering his lover Matilda
("Tillie") Ziegler.
Even the
first execution was botched,[4] and in the 20th century
there will be many other ones. Namely during the electrocution the condemned is
strapped to a chair with belts and given a jolt of approximately 1500 volts
that lasts for between 30 seconds and 2 minutes. It is pretty often that some
kind of failure occurs, for example two or even more jolts of power need to be
applied[5], the offender’s body
starts burning,[6]
his veins explode, his eyes flow out, he sometimes spontaneously defecates,
urines or vomits blood. Therefore in 1921 in Nevada the state Congress searched
for a new form of executional method that was more painless than the other
ones. In this case they thought of not only the physical, but the psychical
pain as well. Because the greatest torment is not the somatic, but the psychic
distress, they decided not to inform the death row prisoner of refusal of
clemency petition. Instead of it when the governor dismissed the claim of
pardon, lethal gas would have been administered into the convict’s cell while
his sleeping, so it could have been avoided the terror of those months or years
when he was aware of being killed on a certain day by the state.
However, because
of practical difficulties (the death row or death cell has a common area with
the other offenders’ cells) it proved impossible, this proposal changed into
the solution that the lethal gas should be used in a separate accommodation.
Emmer Boyle, the abolitionist governor of Nevada signed this act since he
presumed that it would have been declared unconstitutional and reversed by the
Supreme Court of Nevada. However, the Supreme Court failed to do that, so the
gas chamber was introduced.[7] The first prisoner
executed by asphyxiation was a Chinese criminal, Gee Jon on 28th February,
1924.
But this
method was also not void of problems. People generally suffocate for several
minutes until they die from hypoxia, sometimes manage to break out from their
straps and try to do the same from the chamber what is very dangerous for the
wardens and official witnesses, too. It could also happen that some hydrogen
cyanide gas remains in the lungs of the deadly corpse, so the oderlies,
coroners or the cleaning crews can be poisoned. Despite all the problems, these
two new kinds of executional method became soon very popular among other states
as well and began to extrude the ”classic” ways of execution.
Nevertheless,
this age can be called the time of humanization of death penalty in the United
States, mainly because of the decrease in executions, except, of course, the
1930’s, when a contrary tendency operated, and because of, naturally, other
things, too. Of these latter events it must be by all means mentioned the
founding of the American League to Abolish Capital Punishment (ALACP) that has
happened in 1925 and the ending of the public executions. The last public
execution was that of Rainey Bethea, a 22-year-old black man in Owensboro,
Kentucky, on 14th August, 1936. Bethea was convicted of murder[8] and was hanged in a large
field attended about 20 000 people and when at 5.45 a.m. he was pronounced
dead several hundred men attacked the body to get some souvenir from his
clothes or from his corpse. Since it was proven that the crowd was incapable of
participating in an execution the public hangings has forever been ended.
Thereinafter
I am going to examine the constitutional matters of death penalty. In this era
started that time when the Supreme Court’s decisions began to affect the
practice of capital punishment until in the end we would reach 1972, the most
successful year of the abolitionist movement, when in Furman v. Georgia
the Supreme Court of the United States declared the death penalty, as then
administered, unconstitutional across the USA. The first important decision was
made in 1947 when the Supreme Court in Francis v. Resweber[9] declared that a second
attempted execution violated neither the double jeopardy clause of the Fifth
Amendment, nor the cruel and unusual punishment clause of the Eighth Amendment,
nor the equal protection clause of the Fourteenth Amendment to the US Constitution.[10] In United States v.
Jackson[11]
in 1968 the Supreme Court stated that a provision of the Federal Kidnaping Act
violated the Fifth and Sixth Amendments as, according to this article, capital
punishment is applicable only in such cases where a jury recommended it. This
provision violated these two Amendments because it inspired the defendant to give
up his right to a jury trial, so namely he would not have been sentenced to
death by a judge, but in this case he would have been discouraged from pleading
innocent (and demanding a jury trial) fearing the jury’s death verdict. (But
soon after this certiorari in North Carolina an anti-abolitionist decision also
was born, since the North Carolina Supreme Court declared the constitutionality
of the mandatory death sentence for the crime of rape.)[12] Also in 1968 in Witherspoon
v. Illinois[13]
the Supreme Court ruled that the prosecutor’s reservation of a potential
juror from the jury only on the grounds that he or she has a general objection
to the death penalty was unconstitutional. The so-called challenge for cause
is applicable only if the prosecution can prove that the would-be juror is so
inherently biased, that is, he or she has a so strong opposition to the capital
punishment that he is incapable of bringing in an impartial verdict.
The last
execution before the beginning of the moratorium with Furman in 1972 was
carried out on 2nd June, 1967. After this date the Legal Defense and
Educational Fund undertook the representation of all defendants in every state
accused of capital crimes. This resulted in the temporary suspension of
executions until a decision on the constitutionality of capital punishment will
have come into existence. In Boykin in 1970 the Supreme Court has
already accepted that the constitutionality of death penalty, instead of
procedural arguments (chiefly the argumentation of violation of the equal
protection clause of the Fourteenth Amendment), shall be examined in virtue of
substantial reasoning, particularly in respect of whether death penalty is
cruel and unusual punishment that is banned by the Eighth Amendment.
This
acceptance was the basis for the Furman decision on 29th June, 1972[14] where the Supreme Court
on a 5-4 vote[15]
held that the imposition and carrying out of capital punishment, as then
practised, was unconstitutional because on the one hand it breached the Eighth
Amendment’s ban on cruel and unusual punishment since imposing of death penalty
was ”arbitrary and capricious”, and on the other hand it violated the
Fourteenth Amendment’s equal protection clause as well. Nevertheless, this
Supreme Court decision did not prevent state courts from imposing capital
punishments for those found guilty of capital offenses, and what is more, state
legislatures began creating new laws that complied with the requirements of the
Furman decision. Especially the three pro-death penalty pioneers, Florida,
Texas and Georgia, were particularly keen on enacting new death penalty statutes
which fulfil the demands prescribed by the Supreme Court of the United States
in Furman.
In 1976 a new era has started
when in Gregg v. Georgia[16] the Supreme Court
ruled that those death penalty statutes which let the jury a discretional power
to decide whether a guilty defendant has to be sentenced to death or not (the
so-called ”guided discretion death penalty statutes”) could be constitutional.
This decision restored the constitutionality and thus the applicability of the
death penalty and with this declaration a flow launched by which more and more
executions will have been carried out in the subsequent years.
On 17th January, 1977 Gary Mark
Gilmore was shooted by a firing squad in Utah. He was a volunteer and he was
also the first person to be executed after the Supreme Court had reinstated the
death penalty in Gregg.[17] In the same year,
Oklahoma’s legislature adopted a new way of execution: the lethal injection.
The cause of the introduction of this mean was primarily not the humanization
of the executions, but the fact that this method was much cheaper than the
execution either by lethal gas or by electric chair. (Nevertheless, the first
execution administered by lethal injection was carried out only on 7th
December, 1982 in Texas when a Charles Brooks was put to death.)
The next five very important
decisions were Coker v. Georgia[18] in 1977, Lockett v.
Ohio[19]
in 1978, McCleskey v. Kemp[20] in 1987, Thompson
v. Oklahoma[21]
in 1988 and Stanford v. Kentucky[22] in 1989. In
Coker the Supreme Court held that death penalty only for rape (without
lethal consequence, that is, when the adult victim had not been killed) was
excessive and disproportionate punishment and therefore was unconstitutional.
In Lockett it declared that taxative enumeration of the mitigating
factors was unconstitutional because it restricted the jury’s right to free
discretion in capital cases. In McCleskey the Supreme Court 5-4 stated that
discrimination in the American legal system was a ”fact of life” and thus the
racial bias in general in capital cases was not per se unconstitutional,
it was contrary to the human rights only in those instances where the
discrimination was shown up provably in a concrete case. In Thompson the
Court declared that the execution of those who were under the age of 16 at the
time of the crime was unconstitutional. But in Stanford, however, it
ruled that sentencing to death an at least 16-year-old man or woman was not in
violation of the Eighth Amendment to the US Constitution. (This decision will
have been revised only on 1st March, 2005 in Roper v. Simmons.)[23]
In 1992 two lawyers, Barry C.
Scheck and Peter J. Neufeld, launched the so-called ”Innocence Project” in New
York. The goal of it was to reveal the wrongful convictions and, particularly
by means of DNA-analyses, prove the innocence of these people and set them free
from their death row cells. Since then a lot of similar projects have started
all over the United States, and the participants of these projects so far
managed to prove the innocence of several dozen death row prisoners.
In 1994 in Fierro v. Gomez
the US District Court for the Northern District of California stated that
asphyxiation in a gas chamber as a way of execution violated both the
Constitution of California and the Eighth Amendment to the Constitution of the
United States as well. This was the first case when a federal court ruled a
certain type of execution cruel and unusual punishment and hence
unconstitutional. The US Supreme Court in Atkins v. Virginia[24] in 2002 on a 6-3 vote held
that executing those with mental retardation, that is, the mentally impaired
and not only the mentally ill,[25] was unconstitutional
because it offended the society’s evolving standards of decency, and therefore
it violated the Eighth Amendment to the Constitution of the United States. (The
execution of insane inmates had already been declared unconstitutional in 1986
in Ford v. Wainwright.)[26] In Ring v. Arizona[27] on 24th June, 2002 the
Supreme Court predicated that in capital cases a sentence made by a judge was
unconstitutional since it violated the Sixth Amendment that provides for the
right to a jury trial. As a result of this decision, the cases of all of those
death row prisoners who had been sentenced to death by a judge had to be
re-trialed and their sentences had to be reviewed. And last but not least, on
1st March, 2005 in Roper v. Simmons the Supreme Court revising Stanford[28] 5-4 decided that the
execution of juvenile offenders was in violation of the ban on cruel and
unusual punishment of the Eighth Amendment and thus was unconstitutional.
REFERENCES
1. Bedau, Hugo Adam: Abolishing the death penalty in the
United States: an analysis of institutional obstacles and future prospects. In:
Hodgkinson, Peter – Schabas, William A. (ed.): Capital Punishment. Strategies
for abolition. Cambridge University Press, 2004, pp. 186-207.
2. Bedau, Hugo Adam: An Abolitionist’s Survey of the
Death Penalty in America Today. In: Bedau, Hugo Adam – Cassell, Paul G. (ed.):
Debating the Death Penalty. Oxford University Press, New York, 2004, pp. 15-50.
3. Berns, Walter: The Morality of Anger. In: Bedau, Hugo
Adam (ed.): The Death Penalty in America. Oxford University Press, 1982, pp.
333-341.
4. Black, Charles L., Jr.: Death Sentences and Our
Criminal Justice System. In: Bedau, Hugo Adam (ed.): The Death Penalty in
America. Oxford University Press, 1982, pp. 359-364.
5. Borg, Marian J. – Radelet, Michael L.: In: Hodgkinson,
Peter – Schabas, William A. (ed.): Capital Punishment. Strategies for
abolition. Cambridge University Press, 2004, pp. 143-168.
6. Bowers, William J. – Pierce, Glenn L.: Racial
Discrimination and Criminal Homicide under Post-Furman Capital Statutes.
In: Bedau, Hugo Adam (ed.): The Death Penalty in America. Oxford University
Press, 1982, pp. 206-224.
7. Clark, Ramsey: To Abolish the Death Penalty. In:
McCafferty, James A. (ed.): Capital Punishment. Aldine ÿ Atherton, Inc.,
Chicago and New York, pp. 176-186.
8. Evjen, Victor H.: Let’s Abolish Capital Punishment.
In: McCafferty, James A. (ed.): Capital Punishment. Aldine ÿ Atherton, Inc.,
Chicago and New York, pp. 218-224.
9. Hochkammer, William O., Jr.: The Capital Punishment
Controversy. In: McCafferty, James A. (ed.): Capital Punishment. Aldine ÿ
Atherton, Inc., Chicago and New York, pp. 65-87.
10. Hodgkinson, Peter: Capital punishment: improve it or
remove it? In: Hodgkinson, Peter – Schabas, William A. (ed.): Capital
Punishment. Strategies for abolition. Cambridge University Press, 2004, pp.
1-35.
11. King, Glen D.: On Behalf of the Death Penalty. In:
Prejean, Helen (ed.): The Death Penalty in America. 1982, pp. 308-311.
12. Miscarriages of Justice and Death Penalty. In: Bedau,
Hugo Adam (ed.): The Death Penalty in America. Oxford University Press, 1982,
pp. 234-241.
13. Most Death Penalties Are Unconstitutional: Furman
v. Georgia (1972). In: Bedau, Hugo Adam (ed.): The Death Penalty in
America. Oxford University Press, 1982, pp. 253-270.
14. Paternoster, Raymond: Capital Punishment in America.
Lexington Books, New York, 1991
15. Schwarzchild, Henry: In Opposition to Death Penalty
Legislation. In: Prejean, Helen (ed.): The Death Penalty in America. 1982, pp.
364-370.
16. Tabak, Ronald J.: Capital punishment in the United
States: moratorium efforts and other key developments. In: Hodgkinson, Peter –
Schabas, William A. (ed.): Capital Punishment. Strategies for abolition.
Cambridge University Press, 2004, pp. 208-232.
17. The Death Penalty for Rape: Coker v. Georgia
(1977). In: Bedau, Hugo Adam (ed.): The Death Penalty in America. Oxford
University Press, 1982, pp. 299-308.
18. The Death Penalty Is Not Per Se Unconstitutional: Gregg
v. Georgia (1976). In: Bedau, Hugo Adam (ed.): The Death Penalty in
America. Oxford University Press, 1982, pp. 271-288.
19. Van den Haag, Ernest: In Defense of the Death Penalty:
A Practical and Moral Analysis. In: Prejean, Helen (ed.): The Death Penalty in
America. 1982, pp. 323-333.
20. White, Welsh S.: The death penalty in the nineties: an
examination of the modern system of capital punishment. The University of
Michigan Press, 1987
[1] Mandatory death sentence means that capital punishment is enacted as an absolute categorical sanction. Therefore if a defendant is found guilty, the judge or the jury must sentence him to death, that is, the imposing of the capital punishment in this case is compulsory for the jurors or the judge.
[2] 428 U.S. 280 (1976)
[3]”A Commission to Investigate and Report the Most Humane and Practical Method of Carrying into Effect the Sentence of Death in Capital Cases”. The members of this commission were Alfred Southwick, Matthew Hale, and Elbridge Gerry.
[4] According to a 1996 decision of the US Court of Appeals of the Ninth Circuit, an execution is botched if the death is 1) not instantenous, 2) not painless or 3) lingering. By the way, according to the declaration of the same federal court in Fiero v. Gomez in 1994, ”lingering” means that an execution lasts more than two minutes. In virtue of these rulings, even if a painless execution needs more than 120 seconds, this administartion will be per se in violation of the clause of cruel and unusal punishment of the Eighth Amendment to the Constitution of the United States.
[5] E.g. on 16th October, 1985 William E. Vandiver in Indiana was given 5 jolts of electricity to be helped into death.
[6] That has happened for example with Jesse Joseph Tafero in 1990 in Florida: during the execution, Tafero’s head caught fire and flames erupted from it. Three jolts of electricity were needed to be administered to stop his breathing. By the end of the execution his head will have been extincted.
[7] This act was the so-called ”Human Death Bill”.
[8] He slayered a 70-year-old white woman.
[9] Francis v. Resweber 329 U.S. 459 (1947).
[10] According to the motivation of the certiorari ”the record of the original trial, showing the warrant of arrest, the indictment, the appointment of counsel, and the minute entries of trial, selection of jury, verdict, and sentence, contains nothing on which this Court could conclude that the constitutional rights of petitioner were infringed at the trial”.
[11] United States v. Jackson 390 U.S. 570 (1968)
[12] The mandatory death sentence will be abolished only in 1976 in Woodson v. North Carolina by the Supreme Court (not only, of course, for this state, but for all the states of the USA as well.)
[13] Witherspoon v. Illinois 391 U.S. 510 (1968)
[14] Furman v. Georgia (408 U.S. 238). This case consists of virtually three different cases (Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas) known jointly as Furman v. Georgia.
[15] The nine Justices can be divided into three categories: retentionists or revivalists who voted for the maintenance of capital punishment. These Justices are also called ”constructionists” because they are committed to the exclusive legislative power of the Congress. They were four (Harry Blackmun, Warren Burger, Lewis Powell and William Rehnquist) and deemed that once the legislator ruled something, the Supreme Court do not have the right to change this will. Two Justices (William Brennan and Thurgood Marshall) were abolitionists and three (William Dougles, Potter Stewart and Byron White) were neutral and these five men’s votes against the death penalty resulted in the temporary ban on executions.
[16] Gregg v. Georgia 428 U.S. 153 (1976)
[17] His story was adapted into Norman Mailer’s novel ”The Executioner’s Song”.
[18] Coker v. Georgia 433 U.S. 584 (1977)
[19] Lockett v. Ohio 438 U.S. 586 (1978)
[20] McCleskey v. Kemp, 481 U.S. 279 (1987)
[21] Thompson v. Oklahoma 487 U.S. 815 (1988)
[22] Stanford v. Kentucky and Wilkins v. Missouri, collectively 492 U.S. 361 (1989)
[23] No. 03-633.
[24] Atkins v. Virginia, 122 SCt 2242 (2002)
[25] See Penry v. Lynaugh in 1989 that has held yet that the execution of the mentally retarded is not unconstitutional.
[26] Ford v. Wainwright, 477 U.S. 399 (1986)
[27] Ring v. Arizona (01-488), 200 Ariz. 267, 25 P 3d 1139
[28] Stanford v. Kentucky 492 U.S. 361 (1989)