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

Ancient and European Origins

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 Abolitionist Movement and Modern Developments

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).