Capital punishment is the imposition of death as a criminal sanction. The United States is one of the few nations that punishes some crimes by death and the only constitutional democracy that does so. The Federal Criminal Code imposes capital punishment for treason and some murders, as do the criminal codes of approximately two-thirds of the states. Capital punishment has been controversial throughout American history, with opposition to that sanction ebbing and flowing over time. The late twentieth century was a period in which support for and the imposition of capital punishment increased substantially. Americans now seem to be entering a period in which support and the imposition are waning.
Capital punishment was common when the Constitution of the United States and Bill of Rights were ratified. William Blackstone's Commentaries on the Laws of England ( 1803, 370–71 ) listed numerous crimes that were punishable by death and described various gruesome means by which death sentences were executed—means that Blackstone correctly noted were humane as compared to such practices in other countries.
The American colonists hung murderers, thieves, and, in the seventeenth century, suspected witches, as well as occasionally burning a woman found guilty of murdering her husband. Capital punishment was thought to deter crime, serve social needs for retribution, and provide an opportunity for murderers to repent and save their souls. Americans who believed that England and the colonies imposed death too indiscriminately remained confident that a narrowly confined death penalty was an appropriate sanction. An editorial in the Connecticut Courant declared, “By the law of nature, he that had taken away the life of another wrongfully forfeited his own” ( Banner 2002, 94 ). Thomas Jefferson's ( 1743–1826 ) proposed crime bill in the Virginia legislature declared, “Treason and Murder (and no other Crime) to be punished with Death” ( Banner 2002, 95 ).
The incidence of capital punishment decreased in fits and starts throughout most of the nineteenth and first half of the twentieth centuries. Most northern state legislatures abolished capital punishment for crimes other than murder. Michigan became the first state to abolish capital punishment altogether in 1846. A few states followed. States that imposed capital punishment tinkered with the definition of homicide in ways that made the imposition of a death sentence less likely. The distinction between first- and second-degree homicide often baffles first-year law students, but it enables juries to find guilty of murder a person who they believe does not deserve the death penalty. By the mid-twentieth century, most states gave juries the power directly to determine whether the person they found guilty of murder should be executed.
Methods of execution also evolved. Public hangings were major political and social events in the late eighteenth century, often attended by more people than lived in the town where the execution took place. By 1950, death sentences were imposed by electrocution in a prison room attended by the warden, an electrician, a journalist or two, a few prison guards, and some state dignitaries. Southern states were more inclined to impose capital punishment for more crimes, but primarily did so when persons of color were convicted of robbing or, more often, raping white persons.
By 1970, executions in the United States had come to a halt. A little more than a quarter of all states had legislatively abolished capital punishment, prosecutors were seeking capital punishment in fewer cases, juries were imposing capital punishment in fewer cases, federal court rulings were making capital convictions harder to obtain and easier to appeal, and governors were commuting far more capitally sentenced prisoners.
The Supreme Court seemingly sounded the death knell for capital punishment in Furman v. Georgia, 408 U.S. 238 ( 1972 ). In that case, the justices by a 5–4 vote declared unconstitutional the method by which capital punishment was imposed in every state that was imposing capital punishment. Justices Potter Stewart and Byron White wrote opinions indicating that capital sentences were being imposed too infrequently and too randomly to serve any purpose. “These death sentences are cruel and unusual,” Stewart wrote, “in the same way that being struck by lightning is cruel and unusual” (408 U.S. at 309). Justice William O. Douglas pointed out that too often race and poverty better explained the imposition of death than the nature of the offense. Justices Thur-good Marshall and William Brennan went further, insisting that capital punishment imposed even in the fairest of circumstances was nevertheless cruel and unusual punishment under the Eighth Amendment as applied to the states by the due process clause of the Fourteenth Amendment.
After a brief pause, Gregg led to a dramatic increase in death sentences and executions. By the beginning of the twenty-first century, more than a hundred persons were being executed annually, mostly in the South. The Supreme Court rejected one last global challenge to capital punishment in McCleskey v. Kemp, 481 U.S. 279 ( 1987 ). A 5–4 majority ruled that a person sentenced to death had to demonstrate that he or she was a victim of race discrimination and could not rely on statistics demonstrating that murderers whose victims were white were far more likely to be executed than murderers whose victims were persons of color. The pace of executions in the current century began to slow, in part because of highly publicized cases in which DNA evidence demonstrated that an innocent person had been sentenced to death, in part because of the expense of the death sentencing process, and in part because public support for capital punishment began to weaken.
The constitutional law of capital punishment has three sources. The first is the Eighth Amendment, which declares: “Excessive bail shall not be required … nor cruel and unusual punishments inflicted.” The second is the due process clause of the Fourteenth Amendment, which declares: “No State shall … deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted the due process clause as incorporating the Eighth Amendment, which means that states must respect the same constitutional restrictions as the federal government does when imposing punishments, and as providing procedural standards that both federal and state laws must adhere to in order to impose capital punishment. The third are state constitutions. States are free to constitutionally forbid any action permitted by the federal Constitution. The Supreme Judicial Court of Massachusetts, for example, interprets the “cruel or unusual punishments” clause of the state constitution as prohibiting the death penalty. States may not interpret their constitution as permitting capital punishment in circumstances where capital punishment is forbidden by the United States Constitution.
Substantive restrictions limit the persons who may be executed and the crimes for which capital punishment may be inflicted. Some persons may not be executed for any crime. The Supreme Court in Atkins v. Virginia, 536 U.S. 304 ( 2002 ), ruled that mentally retarded persons may not be executed, and in Roper v. Simmons, 543 U.S. 551 ( 2005 ), that the death penalty may not be imposed when the defendant is under eighteen at the time of the murder.
The Supreme Court has ruled that death may be inflicted only for murder and that the person sentenced to death must have actually participated in the murder or planned the murder. In Edmunds v. Florida, 458 U.S. 782 ( 1982 ), the Supreme Court ruled that the driver of a getaway car could not be sentenced to death when no evidence existed that the driver was aware that his confederates in an armed robbery were likely to commit a murder or did commit a murder. Procedural restrictions require government officials to employ certain procedures before imposing the death penalty. The capital sentencing process, the Supreme Court has determined, must recognize that “the penalty of death is different in kind from any other punishment” and cannot “be imposed under sentencing procedures that create a substantial risk that it could be inflicted in an arbitrary or capricious manner” (Gregg, 428 U.S. at 188),
Capital cases must be bifurcated. The first trial determines guilt, the second determines sentence. At the sentencing trial, the jury is given a list of aggravating and mitigating factors. Aggravating factors include such matters as the defendant has a long criminal record or the defendant was found guilty of murdering a police officer. Mitigating factors include such matters as the defendant had no previous criminal record and was under some duress from other persons. Both the prosecutor and the defense counsel are free to present evidence of aggravating and mitigating factors not listed in the state statute. The state must prove at least one aggravating factor listed in the statute beyond a reasonable doubt and that the aggravating factors outweigh the mitigating factors by at least a preponderance of the evidence. In sharp contrast to the guilt phase of a trial, where a judge may never overturn a not-guilty verdict as against the weight of the evidence, the judge in a capital punishment trial may sentence a defendant to death if the judge believes the jury's recommendation of a lesser sentence is against the weight of the evidence.
Americans for more than two hundred years have debated the justice, expediency, and constitutionality of capital punishment. Arguments over the justice of capital punishment concern the authority of the state to impose death, which crimes justify death as a sentence, whether the purpose of punishment should be retribution or rehabilitation, and the extent to which capital punishment serves any other legitimate purpose. Arguments about the expediency of capital punishment focus on whether the death penalty deters crime, whether the death penalty is or can be fairly imposed, and whether the death penalty in practice is too expensive a sanction. Arguments about the constitutionality of capital punishment concern whether death is a “cruel and unusual punishment” under the Eighth Amendment. In theory, arguments from justice, expediency, and constitutionality are distinct. In practice, they are not. Lawyers making constitutional arguments commonly take positions on the justice and expediency of capital punishment. People who believe as a matter of justice that murderers ought to be executed tend to believe that capital punishment deters crime and is consistent with constitutional norms. People who believe that capital punishment is state-sanctioned murder tend to believe that capital punishment does not deter crime and is prohibited by the Eighth Amendment.
Proponents of capital punishment accept the adage, “a life for a life.” They believe murderers deserve to be punished by death because they made a conscious choice to take the life of another person or persons. The death penalty, in their view, is a means by which society demonstrates appropriate outrage over premeditated killing and recognizes that some people cannot or should not be rehabilitated. Proponents of capital punishment often point to an influential study done by Isaac Ehrlich ( 1975 ), which used a complex statistical model to conclude that every execution deterred eight murders. They recognize that race and poverty influence who is executed but point out that these are problems with the criminal justice system in general and not with capital punishment specifically. Capital punishment is constitutional, proponents conclude, because the framers of the Eighth Amendment did not intend to prohibit capital punishment, and public opinion still supports capital punishment for the most heinous murders, which demonstrates both that democratic majorities favor executions and that executions are not cruel by contemporary standards.
Opponents of capital punishment do not think that government has the power to take life; therefore the death penalty is state-sanctioned murder. They believe murderers do not deserve to be punished by death because the vast majority of murderers are at least partly influenced by such background elements as abuse and poverty, which the murderer could not control. The death penalty, in their view, is based on destructive desires for revenge and fails to accept that all persons are capable of rehabilitation. Opponents of capital punishment note that most statistical studies demonstrate that the death penalty does not deter and that the Erhlich study might have reached similar conclusions with a slight tinkering of the variables ( Peck 1976 ). They think that because death is the ultimate sanction, in death sentences the government should not tolerate the race and class disparities that perhaps must be tolerated in other areas of the law. Capital punishment is unconstitutional, opponents conclude, because the Eighth Amendment must be interpreted in light of “evolving standards of decency,” and educated public opinion in the United States and abroad recognizes that more just, humane, and efficient sanctions for murder exist.
Arguments about capital punishment have been a staple of American politics since the ratification of the Constitution and Bill of Rights. By the 2010s, opponents of capital punishment appeared to have gained some momentum. The number of executions has dropped substantially during the current century, and a number of states have abolished the death penalty altogether. The Nebraska legislature, for example, in 2015 overrode the governor's veto to abolish the death penalty. Whether these shifts reflect a permanent trend or simply another episode in a cycle in which support for capital punishment ebbs and flows is for the future to determine.
SEE ALSO Constitutional Criminal Procedure ; Criminal Law ; Marshall, Thurgood .
Banner, Stuart. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.
Beccaria, Cesare Bonesana. An Essay on Crimes and Punishments. 2nd ed. Translated by Edward D. Ingraham. Philadelphia: Philip Nicklin, 1819.
Bedau, Hugo Adam, ed. The Death Penalty in America. 3rd ed. New York: Oxford University Press, 1982.
Berns, Walter. For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books, 1979.
Blackstone, William. Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia. Vol. 4. Edited by St. George Tucker. Philadelphia: William Young Birch and Abraham Small, 1803.
Ehrlich, Isaac. “The Deterrent Effect of Capital Punishment: A Question of Life or Death.” American Economic Review 65 (1975): 397–417.
Garland, David. Peculiar Institution: America's Death Penalty in an Age of Abolition. Cambridge, MA: Harvard University Press, 2010.
Peck, Jon K. “The Deterrent Effect of Capital Punishment: Ehrlich and his Critics.” Yale Law Journal 85, no. 3 (1976): 359–67.
Rush, Benjamin. The Selected Writings of Benjamin Rush. Edited by Dagobert D. Runes. New York: Philosophical Library, 1947.
Mark A. Graber
University of Maryland Carey School of Law