History of Death Penalty Laws

The use of the death penalty remains controversial, particularly within the context of access to quality defense counsel.

The history of death penalty laws is long, stretching back several thousand years. The following is a brief history of death penalty laws, from ancient Babylon through the 21st century.

From the Code of Hammurabi to Roman Law

Some believe that the earliest history of death penalty laws dates back to the 18th century B.C. The penalty of death appears in the Code of King Hammurabi of Babylon, which is now Iraq. The Hammurabi Code, which was engraved on stone tablets for members of the public to see, prescribed the death penalty for over 20 different offenses.

Depending on your social status, you could be executed for theft, perjury, and other crimes that today are punished much more lightly in most countries. The Code includes many examples of retaliatory justice similar to the Book of Exodus' statement of taking an "eye for an eye" in situations of serious injury.

The death penalty was also part of the Hittite Code in the 14th century B.C., but only somewhat. The Hittite Empire spanned much of modern-day Turkey. The most serious offenses typically were punished through enslavement, although crimes of a sexual nature often were punishable by death.

The Draconian Code of Athens, in the 7th century B.C., made death the lone punishment for all crimes, hence the use of the term "draconian" to describe particularly harsh penalties. It may have been a myth, but legend has it that the Draconian Code was written in blood instead of ink.

In the 5th century B.C., the Roman Law of the Twelve Tables also contained the death penalty. Death sentences were carried out by such means as beheading, boiling in oil, burying alive, burning, crucifixion, disembowelment, drowning, hanging, impalement, stoning, strangling, being thrown to wild animals, and quartering (being torn apart).

Death Penalty Laws in Great Britain

In Britain, hanging became the most common form of execution in the 10th century A.D. In the 11th century, William the Conqueror banned hanging and execution during peacetime, but hanging and other methods of the death penalty returned years later.

Some 72,000 people were executed during the reign of Henry VIII in the 16th century. Capital offenses included violent and non-violent crimes, such as not confessing to a crime. In addition to hanging, the judge could sentence an offender to death by boiling, burning at the stake, beheading, and drawing and quartering.

During the 1700s, over 200 crimes were punishable by death in Britain. Capital offenses included theft, cutting down a tree, and poaching. However, due to the severity of the death penalty, many juries looked for ways to reduce the charges at trial. By 1861, the death penalty was only available for murder, treason, piracy, and arson in the Royal Dockyards.

History of Death Penalty Laws: Early United States

The history of death penalty laws in the United States begins during colonial times. Criminal punishments among the colonies varied quite a bit. The first known execution in the New World was in the Jamestown colony (present-day Virginia) in the early 17th century. Offenses such as striking one's mother or father were punishable by death in some colonies. Along with murder, sex outside of marriage, witchcraft, and other religious offenses may also bring a death sentence.

Pennsylvania ended the death penalty for all offenses but first-degree murder in 1794. Michigan abolished capital punishment for all crimes but treason in 1846. Most states maintained the death penalty until public support began to decline in the 1950s and 1960s.

History of Death Penalty Laws: Modern United States

In Furman v. Georgia (1972), the U.S. Supreme Court banned the death penalty nationwide, ruling that its application in the cases before it was arbitrary and discriminatory. It found that, as constituted, the death penalty violated the Eighth Amendment ban on cruel and unusual punishment.

The court's decision by a 5-4 plurality vote did not have a majority opinion. Just four years later, the Court re-considered the death penalty after several states had passed new statutory schemes for its imposition. In 1976, it approved certain revised statutes in a 7-2 vote.

Death penalty statutes that do not violate the Eighth Amendment contain protections against arbitrary rulings. Like Georgia, they feature a bifurcated procedure:

• In the trial phase, the jury finds beyond a reasonable doubt that the defendant is guilty of a qualifying capital offense (e.g., murder) and a qualifying aggravating factor (e.g. committing the crime for the purpose of receiving money or anything of monetary value).
• In the penalty phase, the judge instructs the jury they can recommend death or a life sentence. It can consider evidence of aggravating or mitigating factors presented by the state and the defense. A jury's vote for a death sentence must be unanimous.

Today, many states with death penalty statutes have similar protocols in place. State laws will list several aggravating circumstances that may qualify a murder for consideration of a death sentence.

Examples of Aggravating Factors

States and federal laws provide a statutory list of aggravating factors. A jury must find one of these factors present in the case before them to proceed to consideration of a death sentence. For example, in Texas, the following factors can lead to the consideration of the death penalty:

• Murder of a peace officer or fireman who is discharging their duty and who the defendant knows is a peace officer or fireman
• Intentional murder while committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat
• Murder for hire or remuneration
• Murder committed during an escape or attempted escape from prison
• While in prison, committing murder on a prison employee or a murder of another as part of a combination
• While incarcerated for a capital murder of another, committing another murder
• Murder more than one person during one transaction or as part of a related scheme
• Murder a victim under 10 years old
• Murder a victim 10 years or older but under 14 years old
• Murder a victim for their serving as or in retaliation for their service as a judge

Having convicted a defendant of a capital offense and found one or more aggravating factors, the jury must also consider any mitigating factors presented by the defense. It must decide whether the aggravating factors outweigh any mitigating factors and justify the imposition of the death penalty. A capital jury's decision to impose a death sentence must be unanimous. If not, the defendant will receive a sentence of life imprisonment.

The Use of Lethal Injection

Many recent cases challenging the use of the death penalty focus on allegations that the methods of execution violate basic human rights. In the past, most executions involved hanging or electrocution. Most states with the death penalty now impose death by lethal injection. States use a combination of powerful drugs to cause the defendant's heart to stop. This often includes an overdose of an anesthetic or sedative drug. 

Despite such challenges, the U.S. Supreme Court upheld the use of lethal injection in a Kentucky case in 2008. Those opposed to capital punishment have also placed pressure on drug companies to refuse sales of lethal drugs to death penalty states. This has led to some states not having the necessary drugs to go forward with executions.

Movement Away From the Death Penalty

Arguments of the high cost of capital prosecutions and the disparate impact of such sentences on members of minority groups have had more impact on legislators than on courts. Still, the exoneration of death row inmates through DNA evidence has continued to shift public opinion away from support of the death penalty.

In the 21st century, several more states began to implement moratoriums or statutory bans on the use of the death penalty in capital cases. This included New York (2007), Illinois (2011), Maryland (2013). In 2021, Virginia became the first Southern state to outlaw the death penalty. The federal government has also placed a hold on its use of the death penalty. At present, the majority of states do not carry out executions for capital crimes.

Caselaw has also reduced the use of the death penalty in certain situations. In the following death penalty cases, the U.S. Supreme Court ruled that a sentence of death violates the 8th Amendment:

• Coker v. Georgia (1977) — rape (adult victim)
• Edmund v. Florida (1982) — where the defendant did not intend to kill the victim
• Ford v. Wainwright (1986) — where the defendant is insane and is not aware of the execution or the reasons for it
• Atkins v. Virginia (2002) — where the defendant is a mentally disabled person
• Roper v. Simmons (2005) — where the defendant was under 18 years old at the time of the crime
• Kennedy v. Louisiana (2008) — rape (child victim) or any non-homicide offense

Of course, prosecutors have discretion and may choose not to seek the death penalty in certain cases. This may relate to evidentiary concerns related to aggravating factors or the high costs associated with such prosecutions. 

A death sentence guarantees a lengthy battle in the appellate courts. In the federal courts, prosecutors and law enforcement seeking capital charges must secure the approval of the Attorney General. When the government takes the death penalty off the table, the harshest sentence becomes life in prison without the possibility of parole.

Clemency

Although rarely used in capital cases, state governors maintain executive powers of clemency. The President has such powers at the federal level. Clemency power includes the power to pardon an offender, which can include a release from incarceration and future disabilities based on the conviction. More often, an executive official uses the power to commute a sentence. In death penalty cases, that can mean commuting a sentence from death row to life in prison.

Have More Questions About Death Penalty Laws? Get Professional Help

While the death penalty has a long history, recent movements have brought abolition in some states. If you are researching your state law or need more information, consider visiting the Death Penalty Information Center, a nonprofit organization that seeks to provide up-to-date information on death penalty laws and issues. If involved in a specific case or in need of legal analysis, it's best to get professional help. You can reach out to a local criminal defense attorney today.