Developments in the Death Penalty

The death penalty is a punishment used for heinous crimes. Many fear its finality and question its morality for human rights, regardless of whether defendants are guilty or innocent.

Below is a discussion of the developments in how the United States administers the death sentence from the days of the moratorium in 1967 to the present.

1972 Supreme Court Moratorium

During the 1960s, there was a nationwide movement against capital punishment. In 1972, the Supreme Court placed an official moratorium on the death penalty with the capital case Furman v. Georgia. The court ruling combined three death penalty cases, in which three black men faced death sentences, one for murdering a white man and two others for raping white women. The Supreme Court questioned whether racial bias played a role in the men getting sentenced to die.

As a result of this court decision, the U.S. Supreme Court voided 40 state death penalty statutes and enacted stays of execution. The sentences of 629 death row prisoners switched from death to life sentences, and the use of the death penalty came to a halt.

Reinstatement of the Death Penalty

The moratorium came to an end in 1976 when the Supreme Court again reviewed the question of whether the death penalty violated the Eighth Amendment in the matter of Gregg v. Georgia.

In the Gregg case, the Court decided that imposing the death penalty was not cruel and unusual punishment if the state met the following:

1. Capital sentencing is based on objective criteria
2. The character and record of the capital defendant are taken into account

Gregg marked the end of the moratorium on capital punishment, as 37 states enacted new death penalty laws. Since Gregg, the types of people who qualify to face execution have continually changed.

Developments Since Gregg

In 1977, in Coker v. Georgia, the Court removed the death penalty for people convicted of adult rape when no death occurred. That prohibition got applied to child rape in 2008 with Kennedy v. Louisiana.

The following are broad categories of defendants who no longer face the death penalty.

The Mentally Impaired

The Court has struggled with whether a person who has a mental defect, such as a severe intellectual disability, can face execution. In 1986, the Supreme Court ruled in Ford v. Wainwright that it was unconstitutional to execute someone who was "insane" (had severe mental illness).

But, in Penry v. Lynaugh (1989), the Court concluded that the Eighth Amendment does not categorically prohibit the execution of the mentally disabled.

That changed in 2002 with Atkins v. Virginia, which held that execution of those with mental disability violated the Eighth Amendment. Continuing protecting the mentally impaired and those with severe mental illness, the Court ruled in Madison v. Alabama that a person who developed dementia while on death row could no longer get executed.

Juvenile Offenders

The Court has held that execution for crimes committed when a person was 15 or younger was unconstitutional. But, in 1989, the Court held in Stanford v. Kentucky that the Eighth Amendment did not prohibit the execution of persons who were 16 or 17 when they committed an executable offense.

Citing changes in standards of decency, the Court held in 2005 in the matter of Roper v. Simmons that execution for a person younger than 18 is cruel and unusual punishment.

Federal Legislation on the Death Penalty

While the courts have pulled back from imposing the death penalty in several cases, the federal government has expanded the death penalty and sought to limit court interference.

The Violent Crime Control and Law Enforcement Act of 1994 expanded the federal death penalty to include about 60 crimes that could now receive capital punishment. Following the 1995 Oklahoma City Bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 to limit the review of death penalty cases by the courts.

Lethal Injection Executions

A modern development in the death penalty has been the advent of the use of drugs in the process. In the past, the U.S. had used firing squads and electrocution as different methods of execution.

To seek more humane and relatively painless methods of execution, Oklahoma passed the first law allowing the use of lethal injections in 1977. But, it wasn't until 1982 that states began using lethal injection with the execution of Charles Brooks Jr. in Texas.

While there have been challenges to lethal injections, the Supreme Court has upheld the use of the drugs necessary for a lethal injection. In Baze v. Rees, the Court ruled that the use of lethal injection for capital punishment did not violate the Eighth Amendment. The Supreme Court reaffirmed that decision in Glossip v. Gross. The Court ruled 5-4 that lethal injections to kill prisoners convicted of capital offenses do not constitute cruel and unusual punishment under the Eighth Amendment.

Concerned About the Possibility of the Death Penalty or Life Imprisonment? Contact a Criminal Justice Attorney

The application and method of the death penalty is an evolving area. Federal and state law changes rapidly, and you should have access to the most accurate information possible. If someone has charged you with a crime that carries the possibility of the death penalty or any other severe penalty, speak to an experienced criminal defense lawyer right away. For more information and resources, check out the Death Penalty Information Center.