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Clara, Savannah, Bo, and Ella

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Historical Timeline - Death Penalty - ProCon.org

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Did You Know? Readers' Comments 31 States with the Death Penalty and 19 States with Death Penalty Bans States That Authorize the Death Penalty for Crimes Other than Murder US Executions from 1608-2002 Forms of Execution in the United States, 1977 - 2009 41 Federal Capital Offenses Major Death Penalty Cases in the US Supreme Court Death Row Inmates, 1953-2013 Critical Thinking Video Series: Thomas Edison Electrocutes Topsy the Elephant, Jan.

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Seven members of the Aum Shinrikyo cult behind the deadly 1995 Sarin attack on the Tokyo underground have been executed.

It may come as a surprise to many to learn that Japan, a nation associated with tranquil temples and modernity, still has the death penalty. Indeed, it is one of just a handful of states considered to be "industrialised" that still executes criminals, the others being the US, Singapore and Taiwan.

As the map above shows, every European country has abolished it, with one exception: Belarus. Often dubbed "Europe's last dictatorship", it executed two people in 2017 and more than 200 since 1990. A large number of Caribbean nations still have the death penalty too, including St Lucia, Barbados and Antigua.

Credit: rannica - Fotolia/Picasa

The most recent countries to abolish capital punishment include Burkina Faso (2018), Guinea (2017), Benin (2016), and Madagascar (2015).

The 53 countries that have the death penalty

Total executions in 2017

According to Amnesty International, 23 countries carried out at least 993 executions last year (down on the 1,032 that took place in 2016, and the 1,634 that occurred in 2015). However, the real figure is likely to be much higher.

"China remained the world's top executioner - but the true extent of the use of the death penalty in China is unknown as this data is classified as a state secret; the global figure of at least 993 excludes the thousands of executions believed to have been carried out in China," explains the human rights organisation. "Excluding China, 84 per cent of all reported executions took place in just four countries - Iran, Saudi Arabia, Iraq and Pakistan.

"Bahrain, Jordan, Kuwait and the United Arab Emirates resumed executions in 2017. Amnesty International did not record executions in five countries − Botswana, Indonesia, Nigeria, Sudan and Taiwan − that carried out executions in 2016."

See its website for a full breakdown of facts and figures.

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Mapped: The 53 places that still have the death penalty - including Japan

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Seven members of the Aum Shinrikyo cult behind the deadly 1995 Sarin attack on the Tokyo underground have been executed. It may come as a surprise to many to learn that Japan, a nation associated with tranquil temples and modernity, still has the death penalty.

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[From: Society's Final Solution: A History and Discussion of the Death Penalty, Laura E. Randa, ed., University Press of America, Inc., 1997. Reprinted with permission of the publisher.]

As far back as the Ancient Laws of China, the death penalty has been established as a punishment for crimes. In the 18th Century BC, the Code of King Hammurabi of Babylon codified the death penalty for twenty five different crimes, although murder was not one of them. The first death sentence historically recorded occurred in 16th Century BC Egypt where the wrongdoer, a member of nobility, was accused of magic, and ordered to take his own life. During this period non-nobility was usually killed with an ax.

In the 14th Century BC, the Hittite Code also prescribed the death penalty. The 7th Century BC Draconian Code of Athens made death the penalty for every crime committed. In the 5th Century BC, the Roman Law of the Twelve Tablets codified the death penalty. Again, the death penalty was different for nobility, freemen and slaves and was punishment for crimes such as the publication of libels and insulting songs, the cutting or grazing of crops planted by a farmer, the burning [of] a house or a stack of corn near a house, cheating by a patron of his client, perjury, making disturbances at night in the city, willful murder of a freeman or a parent, or theft by a slave. Death was often cruel and included crucifixion, drowning at sea, burial alive, beating to death, and impalement (often used by Nero). The Romans had a curious punishment for parricides (murder of a parent): the condemned was submersed in water in a sack, which also contained a dog, a rooster, a viper and an ape. The most notorious death execution in BC was about 399 BC when the Greek philosopher Socrates was required to drink poison for heresy and corruption of youth.

Mosaic Law codified many capital crimes. In fact, there is evidence that Jews used many different techniques including stoning, hanging, beheading, crucifixion (copied from the Romans), throwing the criminal from a rock, and sawing asunder. The most infamous execution of history occurred approximately 29 AD with the crucifixion of Jesus Christ outside Jerusalem. About 300 years later, the Emperor Constantine, after converting to Christianity, abolished crucifixion and other cruel death penalties in the Roman Empire. In 438, the Code of Theodosius made more than 80 crimes punishable by death.

Britain influenced the colonies more than any other country and has a long history of punishment by death. About 450 BC, the death penalty was often enforced by throwing the condemned into a quagmire. By the 10th Century, hanging from gallows was the most frequent execution method. William the Conqueror opposed taking life except in war, and ordered no person to be hanged or executed for any offense. However, he allowed criminals to be mutilated for their crimes. During the middle ages, capital punishment was accompanied by torture. Most barons had a drowning pit as well as gallows and they were used for major as well as minor crimes. For example, in 1279, two hundred and eighty nine Jews were hanged for clipping coin. Under Edward I, two gatekeepers were killed because the city gate had not been closed in time to prevent the escape of an accused murderer. Burning was the punishment for women's high treason and men were hanged, drawn and quartered. Beheading was generally accepted for the upper classes. One could be burned for marrying a Jew. Pressing became the penalty for those who would not confess to their crimes. The executioner placed heavy weights on the victim's chest. On the first day he gave the victim a small quantity of bread, on the second day a small drink of bad water, and so on until he confessed or died. Under the reign of Henry VIII, the numbers of those put to death are estimated as high as 72,000. Boiling to death was another penalty approved in 1531, and there are records to show some people boiled for up to two hours before death took them. When a woman was burned, the executioner tied a rope around her neck when she was tied to the stake. When the flames reached her she could be strangled from outside the ring of fire. However, this often failed and many were literally burnt alive.

In Britain, the number of capital offenses continually increased until the 1700's when two hundred and twenty-two crimes were punishable by death. These included stealing from a house in the amount of forty shillings, stealing from a shop the value of five shillings, robbing a rabbit warren, cutting down a tree, and counterfeiting tax stamps. However, juries tended not to convict when the penalty was great and the crime was not. Reforms began to take place. In 1823, five laws passed, exempting about a hundred crimes from the death [penalty]. Between 1832 and 1837, many capital offenses were swept away. In 1840, there was a failed attempt to abolish all capital punishment. Through the nineteenth and twentieth centuries, more and more capital punishments were abolished, not only in Britain, but also all across Europe, until today only a few European countries retain the death penalty.

The first recorded execution in the English American colonies was in 1608 when officials executed George Kendall of Virginia for supposedly plotting to betray the British to the Spanish. In 1612, Virginia's governor, Sir Thomas Dale, implemented the Divine, Moral, and Martial Laws that made death the penalty for even minor offenses such as stealing grapes, killing chickens, killing dogs or horses without permission, or trading with Indians. Seven years later these laws were softened because Virginia feared that no one would settle there.

In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the crime of theft. Some colonies were very strict in their use of the death penalty, while others were less so. In Massachusetts Bay Colony the first execution was in 1630, but the earliest capital statutes do not occur until later. Under the Capital Laws of New-England that went into effect between 1636-1647 the death penalty was meted out for pre-meditated murder, sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape, manstealing, perjury in a capital trial, rebellion, manslaughter, poisoning and bestiality. Early laws were accompanied by a scripture from the Old Testament. By 1780, the Commonwealth of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and treason.

The New York colony instituted the so-called Duke's Laws of 1665. This directed the death penalty for denial of the true God, pre-meditated murder, killing someone who had no weapon of defense, killing by lying in wait or by poisoning, sodomy, buggery, kidnapping, perjury in a capital trial, traitorous denial of the king's rights or raising arms to resist his authority, conspiracy to invade towns or forts in the colony and striking one's mother or father (upon complaint of both). The two colonies that were more lenient concerning capital punishment were South Jersey and Pennsylvania. In South Jersey there was no death penalty for any crime and there were only two crimes, murder and treason, punishable by death.

However under the direction of the Crown, harsher penal codes were execution there until 1691 [sic]. In Pennsylvania, William Penn's Great Act (1682) made passed in the colonies [sic]. By 1776, most of the colonies had roughly comparable death statutes which covered arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting. Hanging was the usual sentence. Rhode Island was probably the only colony which decreased the number of capital crimes in the late 1700's.

Some states were more severe. For example, by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others. However, North Carolina did not have a state penitentiary and, many said, no suitable alternative to capital punishment.

The first reforms of the death penalty occurred between 1776-1800. Thomas Jefferson and four others, authorized to undertake a complete revision of Virginia's laws, proposed a law that recommended the death penalty for only treason and murder. After a stormy debate the legislature defeated the bill by one vote. The writing of European theorists such as Montesquieu, Voltaire, and Bentham had a great effect on American intellectuals, as did English Quaker prison reformers John Bellers and John Howard.

On Crimes and Punishment, published in English in 1767 by the Italian jurist Cesare Beccaria, whose exposition on abolishing capital punishment was the most influential of the time, had an especially strong impact. He theorized that there was no justification for the taking of life by the state. He said that the death penalty was "a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good." He asked the question what if it can be shown not to be necessary or useful? His essay conceded that the only time a death was necessary was when only one's death could insure the security of a nation - which would be rare and only in cases of absolute anarchy or when a nation was on the verge of losing its liberty. He said that the history of using punishment by death (e.g., the Romans, 20 years of Czaress Elizabeth) had not prevented determined men from injuring society and that death was only a "momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty...."

Organizations were formed in different colonies for the abolition of the death penalty and to relieve poor prison conditions. Dr. Benjamin Rush, a renowned Philadelphia citizen, proposed the complete abolition of capital punishment. William Bradford, Attorney General of Pennsylvania, was ordered to investigate capital punishment. In 1793 he published An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania. He strongly insisted that the death penalty be retained, but admitted it was useless in preventing certain crimes. In fact, he said the death penalty made convictions harder to obtain, because in Pennsylvania, and indeed in all states, the death penalty was mandatory and juries would often not return a guilty verdict because of this fact. In response, in 1794, the Pennsylvania legislature abolished capital punishment for all crimes except murder "in the first degree," the first time murder had been broken down into "degrees." In New York, in 1796, the legislature authorized construction of the state's first penitentiary, abolished whipping, and reduced the number of capital offenses from thirteen to two. Virginia and Kentucky passed similar reform bills. Four more states reduced its capital crimes: Vermont in 1797, to three; Maryland in 1810, to four; New Hampshire in 1812, to two and Ohio in 1815, to two. Each of these states built state penitentiaries. A few states went the opposite direction. Rhode Island restored the death penalty for rape and arson; Massachusetts, New Jersey, and Connecticut raised death crimes from six to ten, including sodomy, maiming, robbery, and forgery. Many southern states made more crimes capital, especially for slaves.

The first great reform era occurred between 1833-1853. Public executions were attacked as cruel. Sometimes tens of thousands of eager viewers would show up to view hangings; local merchants would sell souvenirs and alcohol. Fighting and pushing would often break out as people jockeyed for the best view of the hanging or the corpse! Onlookers often cursed the widow or the victim and would try to tear down the scaffold or the rope for keepsakes. Violence and drunkenness often ruled towns far into the night after "justice had been served." Many states enacted laws providing private hangings. Rhode Island (1833), Pennsylvania (1834), New York (1835), Massachusetts (1835), and New Jersey (1835) all abolished public hangings. By 1849, fifteen states were holding private hangings. This move was opposed by many death penalty abolitionists who thought public executions would eventually cause people to cry out against execution itself. For example, in 1835, Maine enacted what was in effect a moratorium on capital punishment after over ten thousand people who watched a hanging had to be restrained by police after they became unruly and began fighting. All felons sentenced to death would have to remain in prison at hard labor and could not be executed until one year had elapsed and then only on the governor's order. No governor ordered an execution under the "Maine Law" for twenty-seven years. Though many states argued the merits of the death penalty, no state went as far as Maine. The most influential reformers were the clergy. Ironically, the small but powerful group which opposed the abolitionists were also clergy. They were, almost to a person, members of the Calvinist clergy, especially the Congregationalists and Presbyterians who could be called the religious establishment of the time. They were led by George Cheever.

Finally, in 1846, Michigan became the first state to abolish the death penalty (except for treason against the state), mostly because it had no long tradition of capital punishment (there had been no hanging since 1830, before statehood) and because frontier Michigan had few established religious groups to oppose it as was the case in the east. In 1852, Rhode Island abolished the death penalty led by Unitarians, Universalists, and especially Quakers. In the same year, Massachusetts limited its death penalty to first-degree murder. In 1853, Wisconsin abolished the death penalty after a gruesome execution in which the victim struggled for five minutes at the end of the rope, and a full eighteen minutes passed before his heart finally quit.

During the last half of the century the death penalty abolition movement ground to a half, with many members moving into the slavery abolition movement. At the same time, states began to pass laws against mandatory death sentences. Legislators in eighteen states shifted from mandatory to discretionary capital punishment by 1895, not to save lives, but to try to increase convictions and executions of murderers. Still, abolitionists gained a few victories. Maine abolished the death penalty, restored it, and then abolished it again between 1876-1887. Iowa abolished the death penalty for six years. Kansas passed a "Maine Law" in 1872 which operated as de facto abolition.

Electrocution as a method of execution came onto the scene in an unlikely manner. Edison Company with its DC (direct current) electrical systems began attacking Westinghouse Company and its AC (alternating current) electrical systems as they were pressing for nationwide electrification with alternating current. To show how dangerous AC could be, Edison Company began public demonstrations by electrocuting animals. People reasoned that if electricity could kill animals, it could kill people. In 1888, New York approved the dismantling of its gallows and the building of the nation's first electric chair. It held its first victim, William Kemmler, in 1890, and even though the first electrocution was clumsy at best, other states soon followed the lead.

The Second Great Reform era was 1895-1917. In 1897, U.S. Congress passed a bill reducing the number of federal death crimes. In 1907, Kansas took the "Maine Law" a step further and abolished all death penalties. Between 1911 and 1917, eight more states abolished capital punishment (Minnesota, North Dakota, South Dakota, Oregon, Arizona, Missouri and Tennessee - the latter in all cases but rape). Votes in other states came close to ending the death penalty.

However, between 1917 and 1955, the death penalty abolition movement again slowed. Washington, Arizona, and Oregon in 1919-20 reinstated the death penalty. In 1924, the first execution by cyanide gas took place in Nevada, when Tong war gang murderer Gee Jon became its first victim. The state wanted to secretly pump cyanide gas into Jon's cell at night while he was asleep as a more humanitarian way of carrying out the penalty, but, technical difficulties prohibited this and a special "gas chamber" was hastily built. Other concerns developed when less "civilized" methods of execution failed. In 1930, Mrs. Eva Dugan became the first female to be executed by Arizona. The execution was botched when the hangman misjudged the drop and Mrs. Dugan's head was ripped from her body. More states converted to electric chairs and gas chambers. During this period of time, abolitionist organizations sprang up all across the country, but they had little effect. There were a number of stormy protests against the execution of certain convicted felons (e.g., Julius and Ethel Rosenberg), but little opposition against the death penalty itself. In fact, during the anti-Communist period with all its fears and hysteria, Texas Governor Allan Shivers seriously suggested that capital punishment be the penalty for membership in the Communist Party.

The movement against capital punishment revived again between 1955 and 1972.

England and Canada completed exhaustive studies which were largely critical of the death penalty and these were widely circulated in the U.S. Death row criminals gave their own moving accounts of capital punishment in books and film. Convicted kidnapper Caryl Chessman published Cell 2455 Death Row and Trial by Ordeal. Barbara Graham's story was utilized in book and film with I Want to Live! after her execution. Television shows were broadcast on the death penalty. Hawaii and Alaska ended capital punishment in 1957, and Delaware did so the next year. Controversy over the death penalty gripped the nation, forcing politicians to take sides. Delaware restored the death penalty in 1961. Michigan abolished capital punishment for treason in 1963. Voters in 1964 abolished the death penalty in Oregon. In 1965 Iowa, New York, West Virginia, and Vermont ended the death penalty. New Mexico abolished the death penalty in 1969.

Trying to end capital punishment state-by-state was difficult at best, so death penalty abolitionists turned much of their efforts to the courts. They finally succeeded on June 29, 1972 in the case Furman v. Georgia. In nine separate opinions, but with a majority of 5-4, the U.S. Supreme Court ruled that the way capital punishment laws were written, including discriminatory sentencing guidelines, capital punishment was cruel and unusual and violated the Eighth and Fourteenth Amendments. This effectively ended capital punishment in the United States. Advocates of capital punishment began proposing new capital statutes which they believed would end discrimination in capital sentencing, therefore satisfying a majority of the Court. By early 1975, thirty states had again passed death penalty laws and nearly two hundred prisoners were on death row. In Gregg v. Georgia (1976), the Supreme Court upheld Georgia's newly passed death penalty and said that the death penalty was not always cruel and unusual punishment. Death row executions could again begin. Another form of execution was soon found. Oklahoma passed the first death by lethal injection law, based on economics as much as humanitarian reasons. The old electric chair that had not been used in eleven years would require expensive repairs. Estimates of over $200,000 were given to build a gas chamber, while lethal injection would cost no more than ten to fifteen dollars "per event."

The controversy over the death penalty continues today. There is a strong movement against lawlessness propelled by citizens' fears for their security. Politicians at the national and state levels are taking the floor of legislatures and calling for more frequent death penalties, death penalties penalty [sic] for more crimes, and longer prison sentences. Those opposing these moves counter by arguing that tougher sentences do not slow crime and that crime is little or no worse than in the past. In fact, FBI statistics show murders are now up. (For example 9.3 persons per 100,000 population were murdered in 1973 and 9.4 persons per 100,000 were murdered in 1992). The battle lines are still drawn and the combat will probably always be fought.

A number of important capital punishment decisions have been made by the Supreme Court. The following is a list of the more important ones along with their legal citations:

Wilkerson v. Utah 99 U.S. 130 (1878) - Court upheld execution by firing squad, but said that other types of torture such as "drawing and quartering, embowelling alive, beheading, public dissection, and burring alive and all other in the same line of...cruelty, are forbidden."

Weems v. U.S. 217 U.S. 349 (1910) - Court held that what constitutes cruel and unusual punishment had not been decided, but that it should not be confined to the "forms of evil" that framers of the Bill of Rights had experienced. Therefore, "cruel and unusual" definitions are subject to changing interpretations.

Louisiana ex rel. Francis v. Resweber 329 U.S. 459 (1947) - On May 3, 1946, convicted seventeen year old felon Willie Francis was placed in the electric chair and the switch was thrown. Due to faulty equipment, he survived (even though he was severely shocked), was removed from the chair and returned to his cell. A new death warrant was issued six days later. The Court ruled 5-4 that it was not "cruel and unusual" to finish carrying out the sentence since the state acted in good faith in the first attempt. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment," said the Court, "not the necessary suffering involved in any method employed to extinguish life humanely." He was then executed.

Tropp v. Dulles 356 U.S. 86 (1958) - The Court Ruled that punishment would be considered "cruel and unusual" if it was one of "tormenting severity," cruel in its excessiveness or unusual in punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Furman v. Georgia 408 U.S. 238 (1972) - The Court looking at three cases struck down the death penalty in many states and set up the standard that punishment would be considered "cruel and unusual" if any of the following were present: 1) it was too severe for the crime; 2) it was arbitrary (some get the punishment and others do not, without guidelines); 3) it offends society's sense of justice; 4) it was not more effective than a less severe penalty.

Gregg v. Georgia 428 U.S. 153 (1976) - [The] Court upheld Georgia's newly passed death penalty and said that the death penalty was not always cruel and unusual punishment.

Tison v. Arizona 481 U.S. 137 (1987) - [The] Court upheld Arizona's death penalty for major participation in a felony with "reckless indifference to human life."

Thompson v. Oklahoma 108 S. Ct. 2687 (1987) - The Court considered the question of execution of minors under the age of 16 at the time of the murder. The victim was the brother-in-law, who he accused of beating his sister. He and three others beat the victim, shot him twice, cut his throat, chest, and abdomen, chained him to a concrete block and threw the body into a river where it remained for four weeks. Each of the four participants were tried separately and all were sentenced to death. In a 5-3 decision, four Justices ruled that Thompson's death sentence was cruel and unusual. The fifth, O'Connor, concurred but noted that a state must set a minimum age and held out the possibility that if a state lowers, by statute, the minimum death penalty age below sixteen, she might support it. She stated, "Although, I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence that [sic] we now possess." States with no minimum age have rushed to specify a statute age.

Penry v. Lynaugh 492 U.S. [sic] (1989) - [The] Court held that persons considered retarded, but legally sane, could receive the death penalty. It was not cruel and unusual punishment under the Eighth Amendment if jurors were given the opportunity to consider mitigating circumstances. In this case, the defendant had the mental age of approximately a six-year old child.

John Laurence, A History of Capital Punishment (N.Y.: The Citadel
Press, 1960), 1-3.

Michael Kronenwetter, Capital Punishment: AReference Handbook (Santa
Barbara, CA: ABC-CLIO, Inc., 1993), 71.

Ibid., p.72; Laurence, op.cit., 4-9.

Hugo Adam Bedau, The Death Penalty in America (N.Y.: Oxford
University Press, 1982).

Phillip English Mackey, Voices Against Death: American Opposition to
Capital Punishment, 1787-1975 (N.Y.: Burt Franklin & Co., Inc., 1976),
xi-xii.

Cesare Beccaria, On Crimes and Punishment, trans. Henry Paolucci
(Indianapolis: Bobbs-Merrill, 1963).

Mackey, op. cit., xvi-xvii.

FBI Uniform Crime Report 1992; The Sentencing Project.

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A History of the Death Penalty from Laura E. Randa's Society's "Final Solution: A History and Discussion of the Death Penalty."

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Timeline

1920s - 1940s - American abolition movement loses support.

- 1970 Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials.

- 1989 Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

1998 - Karla Faye Tucker and Judi Buenoano executed.

- 2002 Ring v. Arizona. A death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury.

- 2002 Atkins v. Virginia. the execution of "mentally retarded" defendants violates the Eighth Amendment's ban on cruel and unusual punishment.

June 2004 - New York's death penalty law declared unconstitutional by the state's high court.

March 2005 - In Roper V. Simmons, the United States Supreme Court ruled that the death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment.

- June 2008 Kennedy v. Louisiana. Capital punishment cannot apply to those convicted of child rape where no death occurs.

Introduction to the Death Penalty
Early Death Penalty Laws
The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.

In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the following century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. This trend would not last, for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been executed. Some common methods of execution at that time were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Executions were carried out for such capital offenses as marrying a Jew, not confessing to a crime, and treason.

The number of capital crimes in Britain continued to rise throughout the next two centuries. By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many juries would not convict defendants if the offense was not serious. This lead to reforms of Britain's death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the 222 crimes punishable by death. (Randa, 1997)
The Death Penalty in America
Britain influenced America's use of the death penalty more than any other country. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies 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.

Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until 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. (Randa, 1997)

The Abolitionist Movement
Colonial Times
The abolitionist movement finds its roots in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria's 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized 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. (Schabas 1997)

American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia's death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.

Also influenced was Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society. Rush challenged the belief that the death penalty serves as a deterrent. In fact, Rush was an early believer in the "brutalization effect." He held that having a death penalty actually increased criminal conduct. Rush gained the support of Benjamin Franklin and Philadelphia Attorney General William Bradford. 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 first degree murder. (Bohm, 1999; Randa, 1997; and Schabas, 1997)
Nineteenth Century
In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the northeast. In the early part of the century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carrying them out in correctional facilities.

In 1846, Michigan became 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 world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit. (Bohm, 1999 and Schabas, 1997).

Although some U.S. states began abolishing the death penalty, most states held onto capital punishment. Some states made more crimes capital offenses, especially for offenses committed by slaves. In 1838, in an effort to make the death penalty more palatable 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 had been abolished by 1963. (Bohm, 1999)

During the Civil War, opposition to the death penalty waned, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. The electric chair was introduced at the end of the century. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted this execution method. (Randa, 1997)
Early and Mid-Twentieth Century
Although some states abolished the death penalty in the mid-Nineteenth Century, it was actually 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. However, this reform was short-lived. There was a frenzied atmosphere in the U.S., as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. As a result, five of the six abolitionist states reinstated their death penalty by 1920. (Bedau, 1997 and Bohm, 1999)

In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. 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. (Bohm, 1999)

From the 1920s to the 1940s, there was a resurgence in the use of the death penalty. This was due, in part, to the writings of criminologists, who argued that the death penalty was a necessary social measure. In the United States, Americans were suffering through Prohibition and the Great Depression. There were more executions in the 1930s than in any other decade in American history, an average of 167 per year. (Bohm, 1999 and Schabas, 1997)

In the 1950s, public sentiment began to turn away from 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%. (Bohm, 1999 and BJS, 1997)

Constitutionality of the Death Penalty in America
Challenging the Death Penalty
The 1960s brought challenges to the fundamental 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 had 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, in fact, progressed to a point that its "standard of decency" should no longer tolerate the death penalty. (Bohm, 1999)

In the late 1960s, the Supreme Court began "fine tuning" the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson (390 U.S. 570), where 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.

The other 1968 case was Witherspoon v. Illinois (391 U.S. 510). In this case, the Supreme Court held that a potential juror's mere 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 prosecutors could show that the juror's attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment.
Suspending the Death Penalty
In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided 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, however, 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."

The issue of arbitrariness of the death penalty was again be 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 was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty.
Reinstating the Death Penalty
In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.

Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall holding in Furman was that the specific death penalty statutes were unconstitutional. With that holding, the Court essentially opened the door to states to rewrite their death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness in capital sentencing. The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina (428 U.S. 280 (1976)).

Other states sought to limit that discretion by providing sentencing guidelines for the judge and jury when deciding whether to impose death. The guidelines allowed for the introduction of aggravating and mitigating factors in determining sentencing. These guided discretion statutes were approved in 1976 by the Supreme Court 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. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined 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 from Gregg was proportionality review, a practice that helps the state to identify and eliminate sentencing disparities. Through this process, the state appellate court can compare the sentence in the case being reviewed with other cases within the state, to see if it is disproportionate.

Because these reforms were accepted by the Supreme Court, some states wishing to reinstate the death penalty included them in their new death penalty statutes. The Court, however, did not require that each of the reforms be present in the new statutes. Therefore, some of the resulting new statutes include variations on the procedural reforms found in Gregg.

The ten-year moratorium on executions that had begun 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 state 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 7, 1982.

Continued in Part II

Return to Index
Sources
Amnesty International, " List of Abolitionist and Retentionist Countries," Report ACT 50/01/99, April 1999

D. Baker: "A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997"; 10(3) Women and Criminal Justice 57 (1999)

R. Bohm, "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," Anderson Publishing, 1999.

"The Death Penalty in America: Current Controversies," H. Bedau, editor, Oxford University Press, 1997.

K. O'Shea, "Women and the Death Penalty in the United States, 1900-1998," Praeger 1999.

W. Schabas "The Abolition of the Death Penalty in International Law," Cambridge University Press, second edition, 1997.

"Society's Final Solution: A History and Discussion of the Death Penalty," L. Randa, editor, University Press of America, 1997.

V. Streib, " Death Penalty For Female Offenders January 1973 to December 2002," Ohio Northern University, 2003.

Sources for additional information about the death penalty
Books Law Review & Journal articles Resources DPIC Reports

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Timeline 1920s - 1940s - American abolition movement loses support. - 1970 Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials. - 1989 Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

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States With and Without the Death Penalty | Death Penalty Information Center

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On August 2, 2016, the Delaware Supreme Court held that the state's capital sentencing procedures were unconstitutional and struck down Delaware's death penalty statute. The Delaware Attorney General's office did not ask the U.S. Supreme Court to review the ruling.

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What states is the death penalty illegal?

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What states is the death penalty illegal?

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The death penalty is illegal in:
Alaska
Conneticut
Delaware
Hawaii
Illinois
Iowa
Maine
Maryland
Massachusetts
Michigan
Minnesota
New Jersey
New Mexico
New York
North Dakota
Rhode Island
Vermont
West Virginia
Wisconsin

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In what countries is the death penalty practiced today?

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In what countries is the death penalty practiced today?

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57 countries still practice the death penalty:
America
Guatemala
Cuba
Soriname
Nigeria
Chad
Libya
Belaros
Democratic Republic of Congo
and many others in Africa and Asia

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The death penalty first began in the eighteenth-century B.C. (first laws were established).
In 1608, the first death penalty execution was performed in the United States colonies.