The Death Penalty in the United States: Law, History, and Debate

Introduction: Capital Punishment in America Today

The United States is one of the few industrialized, democratic nations in the world that still permits capital punishment, administered on a state-by-state basis. Not all states have the death penalty, but executions are still carried out, and the punishment remains deeply controversial.

Despite its singular status internationally, the death penalty has historically been a popular policy in the United States, even as it has been hotly debated throughout American history in legislatures and courts alike. This essay examines the legal status of the death penalty in the United States, its history, and its likely future.

According to a recent poll of US voters, support for capital punishment is at a historic low. For the first time, a minority of US citizens favor the death penalty. The nonpartisan Pew Research Center found that "only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%" (Oliphant, 2016). Support peaked in the mid-1990s, "when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%)" (Oliphant, 2016). Opposition to the death penalty was also vocal in the 1970s, particularly after the US Supreme Court decision Furman v. Georgia (1972), which briefly declared all death penalty statutes unconstitutional, deeming them discriminatory in the ways they were enforced.

The Supreme Court later held in Gregg v. Georgia (1976) that the death penalty itself was not cruel and unusual punishment, provided it was appropriately administered and its use was "judicious" and "careful" (Gregg v. Georgia, 1976). Following Gregg, states with the death penalty introduced safeguards, such as a separate sentencing phase to determine whether death is warranted, distinct from the determination of guilt alone. The existence of the death penalty remains controversial within America, particularly given that the United States is relatively isolated in its insistence on permitting capital punishment among modern, industrialized democracies. Other nations that still permit the death penalty include China, North Korea, and Saudi Arabia—hardly distinguished company in the sphere of human rights ("Death penalty statistics by country," 2011).

The thesis advanced here is that, given declining public support for the death penalty in the United States, the expense of capital cases, and well-documented concerns about the innocence of convicted defendants, it is time for the United States to join the rest of the democratic, industrialized world and abolish capital punishment.

History of the Death Penalty in the United States

The history of the death penalty extends far back before the United States existed as an independent nation. Even in the ancient world, the death penalty was widely practiced. "The Code of King Hammurabi of Babylon codified the death penalty for twenty-five different crimes, although murder was not one of them" (Reggio, 2014). In Europe, by the tenth century, hanging was commonly used as a means of execution, and by the Middle Ages in Great Britain and across the rest of Europe, prisoners were often tortured before being put to death—even for relatively minor offenses or on account of their religious affiliations.

Well into the eighteenth century, stealing small sums of money were capital offenses, although by the early nineteenth century in Great Britain, only serious crimes remained capital. This was also true of colonial America. "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" (Reggio, 2014). The US Constitution expressly forbids cruel and unusual punishments under the Eighth Amendment of the Bill of Rights.

The question of whether the death penalty constitutes cruel and unusual punishment has been hotly debated throughout American history. It may come as a surprise that as early as the mid-nineteenth century there was a robust movement to abolish capital punishment, and many states elected to do so. In 1846, Michigan abolished the death penalty, followed by Rhode Island in 1852 (Reggio, 2014). The abolitionist movement was extremely influential in supporting these reforms. However, even as many states banned capital punishment, others simply searched for new methods of execution. "Between 1917 and 1955, the death penalty abolition movement again slowed. Washington, Arizona, and Oregon reinstated the death penalty in 1919–20. In 1924, the first execution by cyanide gas took place in Nevada," and the electric chair became increasingly common alongside hanging (Reggio, 2014).

Arguments Against the Death Penalty

The legal argument most frequently used to challenge the death penalty is that it constitutes cruel and unusual punishment and thus violates the Eighth Amendment of the US Constitution. However, the US Supreme Court has not found the death penalty in and of itself to be cruel and unusual, although it has found abusive treatment within prisons to meet that standard. The Supreme Court applies a so-called "proportionality analysis" when evaluating a punishment according to three tests: "Consideration of the offense's gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime" ("Death penalty," 2017).

Another important argument against the death penalty is its discriminatory nature. Historically, African Americans have been executed in greater numbers than white defendants, even for the same offenses. The Death Penalty Information Center (DPIC) notes that while "56% of death row inmates are Black or Hispanic," and despite the fact that "racial minorities comprise half of all murder victims nationwide, a far greater proportion (77%) of the victims in capital convictions were white," indicating that an African American or Hispanic individual convicted of murdering a white person may face a higher likelihood of a capital sentence (Love, 2012). Furthermore, the humanitarian watchdog group Amnesty International notes that "20% of Blacks nationwide were convicted by all-white juries" (Love, 2012).

There is also a significant state-by-state discrepancy that can produce entirely different systems of justice depending solely on where a crime occurred. For example, "nationally, Alabama ranks 23rd in population, but second in executions in 2011," and "African Americans are 27% of the population, yet comprise 63% of the prisoners" (Love, 2012). The former states of the Confederacy account for the vast majority of executions carried out in the US. "Over three-quarters of executions take place in the states of the former Confederacy (including 35% in Texas alone) with their history of racial violence, lynching, and arbitrary Black Codes and Jim Crow laws, which sanctioned death for Black individuals for certain offenses" (Love, 2012).

The discriminatory nature of the death penalty was central to the US Supreme Court's ruling in Furman v. Georgia (1972): "The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society" and found no evidence of any deterrent value ("Death penalty," 2017). Yet while this temporarily required states to review their death penalty statutes, it merely prolonged rather than ended the use of capital punishment in the United States. In Gregg v. Georgia, "the Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence" and "upheld Georgia's new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes" ("Death penalty," 2017). Nevertheless, the statistics continue to indicate that the death penalty is administered in a discriminatory fashion.

The US Supreme Court has had to act in numerous instances to prevent states from applying the death penalty in ways that exceed constitutional bounds. A notable example is the execution of defendants with intellectual disabilities. In Atkins v. Virginia (2002), the Court found that executing defendants classified as intellectually disabled was cruel and unusual because their disability "lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe" ("Death penalty," 2017). The Court reached a similar conclusion regarding juvenile defendants. In Roper v. Simmons (2005), the Court found that because the justice system does not regard juveniles as fully competent adults, "juvenile offenders assume diminished culpability for their crimes," and death is therefore not a proportionate punishment ("Death penalty," 2017). The fact that state legislatures had previously permitted the execution of intellectually disabled individuals and minors underscores the extent to which emotion can distort the administration of justice.

There is also mounting evidence that innocent individuals have been found guilty of capital crimes, further highlighting the dangers of imposing an irreversible punishment. According to Levy (2014), a study published in the peer-reviewed journal Proceedings of the National Academy of Sciences found that "since 1973, 144 people on death row have been exonerated," with an estimated "innocence rate of 4.1 percent, more than twice the rate of exoneration." Inadequate legal representation causes many defendants to languish within the criminal justice system without adequate recourse.

Despite claims that the death penalty is economically justified because it spares taxpayers the cost of incarcerating a prisoner for life, the actual evidence suggests the opposite: capital cases are more expensive than life imprisonment because of the extended duration of the judicial process. "Death penalty cases are much more expensive than other criminal cases and cost more than imprisonment for life with no possibility of parole. In California, capital trials are six times more costly than other murder trials," owing to "complex pre-trial motions, lengthy jury selections, and expenses for expert witnesses" (Dieter, 1992). Given the strained budgets of many states, such funds might be better invested in improving law enforcement and drug treatment programs.

The US Supreme Court has also progressively restricted the range of offenses eligible for the death penalty. Proportionality is a key criterion. In Coker v. Georgia, the Court ruled that the death penalty cannot be applied to rape cases ("Death penalty," 2017). Significantly, one of the arguments invoked in Coker was that public opinion did not support capital punishment for rape—a point that acquires added weight now that opposition to the death penalty is at an all-time high, given that notions of proportionality and cruel and unusual punishment are, even from the Court's perspective, partly responsive to evolving social standards. In the Pew Research study on public opinion, "majorities said there was some risk of an innocent person being put to death (71%) and that the death penalty does not deter serious crime (61%)" (Oliphant, 2016). This widespread fear reflects the moral principle that it is better to let a guilty person go free than to condemn an innocent person to suffer an unjust and permanent punishment.