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]ÛÛ 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 capitalÛÛ 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.









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 ÛÛAlfred 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)