Death Penalty in the U.S.

The following is an overview of the death penalty's history in the United States. Read on to learn more about key death penalty cases in the U.S. criminal justice system.

17th Century America

Capt. George Kendall was likely the first person executed in 17th century America. His killing in the Jamestown colony of Virginia in 1608 was the colonies' first recorded execution. Kendall was allegedly a spy.

In 1611, Sir Thomas Dale, deputy governor of the colony of Virginia, issued a set of regulations that were published the next year in "Lawes Divine, Morall and Martiall." Dale's code prescribed the death penalty for a range of minor offenses. Stealing fruit or trading with Native Americans without permission could be enough to warrant capital punishment.

Death penalty laws varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630. More than a decade later, the Capital Laws of New England went into effect. Witchcraft, adultery, and blasphemy were all punishable by death.

The New York Colony constituted the Duke's Laws in 1665. Under these laws, striking one's parent was punishable by death.

The Revolutionary Era

In 1764, an essay changed how the Western world viewed punishment. Many people in the U.S. colonies were reading "On Crimes and Punishments" by Cesare Beccaria, an aristocrat in Milan. In his work, Beccaria wrote that there was no justification for the state's taking of a life.

Scholars in the United States were also affected by Beccaria's work. Some believed that capital punishment was a violation of human rights. The first known attempt to reform the death penalty came in 1785. A committee led by Thomas Jefferson backed an attempt to limit the death penalty. Under the Virginia bill, only first-degree murder and treason would be punishable by death. One vote defeated the bill, which never became law.

Other challenges to early capital punishment laws followed. Many believed the death penalty was not an actual deterrent. Benjamin Rush, one of the nation's Founding Fathers and a founder of the Pennsylvania Prison Society, was one famous opponent. He argued that the existence of a sentence of death led to more criminal behavior through "brutalization."

The 19th Century

In the 1800s, the abolitionist movement began to gain support. Although state laws differed, many states reduced the number of capital offenses. Instead, they built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public sphere. Instead, correctional facilities would conduct executions.

In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Within a decade, Rhode Island and Wisconsin moved to abolish the death penalty for all crimes.

While some states began abolishing the death penalty, most held onto it. Some states even increased the amount of crimes punishable by death. Many crimes committed by enslaved people, for example, were punishable by death.

Many considered the 1838 enactment of discretionary death penalty statutes to be considerable reform. These statutes were active in states like Tennessee and Alabama. Before the passage of these statutes, all states mandated the death penalty upon conviction of a capital crime. It didn't matter if there were any disparities during a defendant's capital case. The sentence was death.

During the Civil War, opposition to the death penalty diminished. Some scholars suggest this was likely due to increased attention to the anti-slavery movement. After the war, new developments in the means of executions emerged. In 1888, New York introduced the electric chair. Other states followed, authorizing the electric chair as a method of execution.

The Progressive Period

From 1907 to 1917, six states outlawed the death penalty altogether. These abolitionist reforms didn't last long. By 1920, five of those states returned to capital punishment.

In 1924, Nevada introduced cyanide gas as a more humane method of execution. The 1920s to the 1940s saw a revival in the use of the death penalty as a deterrent.

In the 1950s, public sentiment began to turn against capital punishment. Many allied nations either abolished or limited the death penalty. In the U.S., the number of executions significantly dropped.

In 1966, support for capital punishment reached an all-time low. This support continued into the 1970s. In 1972, a Supreme Court decision placed a moratorium on the death penalty in all states in Furman v. Georgia. States could reinstate the death penalty after Furman if they removed discriminatory factors.

A new Supreme Court case, Gregg v. Georgia, followed four years later. The justices ruled in that case that the death penalty no longer violated the 14th and Eighth amendments.

In 1977, Oklahoma became the first state to adopt lethal injection as a method of execution. Lethal injection was allegedly more humane and cost-effective than gas chambers and electrocution.

Capital Punishment Today

The U.S. Department of Justice authorizes federal death penalty cases. Afterward, the court prosecutes those federal cases.

The United States Code contains federal crimes that call for capital punishment. These crimes include:

• Espionage (18 U.S.C. § 794)
• Treason (18 U.S.C. § 2381)
• Terrorism resulting in death (18 U.S.C. § 2332(b))

Other notable federal laws include:

• 8 U.S.C. § 1342(B)(iv) (bringing in certain foreign nationals if doing so results in someone's death)
• 21 U.S.C. § 848(e) (murder related to a drug trafficking offense)
• 49 U.S.C. § 46502 (aircraft piracy resulting in death)

Although the Supreme Court in Washington, D.C., has upheld the death penalty's constitutionality, there have been more recent efforts to restrict its use in state and federal courts.

Notable Supreme Court Cases on the Death Penalty

Beginning with the federal government, the U.S. Supreme Court in 2002 prohibited the death penalty for mentally challenged criminals in Atkins v. Virginia, claiming "cruel and unusual punishment."

In 2008, Kennedy v. Louisiana ruled that capital punishment could not be used in cases where the victim didn't die, regardless of whether the victim was a civilian or a police officer.

According to the Death Penalty Information Center, the use of the death penalty has experienced a sharp decline in the past 25 years as further restrictions have been put in place.

For example, juveniles under 18 do not qualify for the death penalty following Roper v. Simmons. Youths, as are people with intellectual disabilities, are held to a different standard. The death penalty for these classes is "cruel and unusual punishment" under the U.S. Constitution.

Some death row inmates, including those who were convicted of murder, remain waiting on death row for decades due to the slowed pace of executions.

State Death Penalty Regulations

Many state laws and state courts have created regulations on the death penalty.

State law might allow a judge to consider aggravating circumstances, also known as mitigating factors. Examples of aggravating factors include:

• Whether the defendant committed the same crime in the past
• Whether the defendant has shown regret for committing the crime
• The nature and details of the crime itself

A judge is more likely to sentence a defendant to the death penalty if they meet one or more aggravating circumstances.

Nearly half of the states have abolished the death sentence for all crimes, including capital murder, in favor of life imprisonment. Those include:

• Colorado
• Connecticut
• Illinois
• Indiana
• Massachusetts
• New Jersey
• New Mexico

Many states, like New York, have changed their laws regarding the death penalty multiple times. New York was on the fence about the death penalty throughout the 20th century until the New York Court of Appeals struck it down for good in 2004. On the other hand, states like Florida, Indiana, and Texas, as well as the U.S. military services and the federal government, continue to retain the death penalty.

Discuss Death Penalty Questions With an Expert Attorney

Do you have questions about the application of the death penalty? Consider contacting a criminal defense attorney who can give you personalized legal advice.