Capital of Punishment

The death penalty has a long history in the United States, with the earliest examples of capital punishment in the American colonies dating to the 1630s. By the 1800s, however, the country faced increasing opposition to the death penalty. Early reformists included Thomas Jefferson, who introduced a bill to the Virginia assembly in 1779 curtailing the widespread use of capital punishment. In 1794, as advocated by statesmen Benjamin Rush and Benjamin Franklin, Pennsylvania repealed the death penalty for all crimes except first-degree murder and later became the first state to conduct executions in prisons rather than in public. 

The early 20th century saw an uptick in the administration of capital punishment. Throughout the 1930s, the United States averaged 167 executions per year—more than in any other decade in American history. 1,298 executions were carried out in the following decade. These numbers began to fall gradually until 1972, when the Supreme Court ruled in Furman v. Georgia that the application of the death penalty in the United States violated the Eighth Amendment of the Constitution, which protects against “cruel and unusual punishment.” Yet it was not the death penalty itself that the court found unconstitutional. Rather, it was the “arbitrary and capricious” application of the penalty. The imposition of the death penalty, they found, was highly dependent not only on a defendant’s geographical location (only some states had the death penalty), but also on the defendant’s race, class, and education (poor defendants and defendants of color were disproportionately sentenced to death). The Court did not find the death penalty itself to be an example of cruel and unusual punishment, instead conceding that, pending a change in sentencing laws, it would be willing to reinstate the death penalty.

States wishing to continue executing prisoners thus began drafting bills to minimize the arbitrariness of the death penalty’s implementation. One possibility was to impose a mandatory death penalty on capital offenses. Another possibility was to strike a balance between “mitigating” circumstances that would help explain the crime (e.g., the defendant’s mental capacity or history of abuse) and “aggravating” circumstances that made the crime more severe (e.g., killing women or children). The Supreme Court ruled that the mandatory imposition of the death penalty did not leave sufficient room for the nuances of individual cases and deemed it unconstitutional. The latter solution, however—considering mitigating and aggravating circumstances during sentencing—was allowed to stand. In three cases known together as the 1976 Gregg decision, the Supreme Court approved new statutes in Georgia, Texas, and Florida, in addition to holding that the death penalty itself was constitutional under the Eighth Amendment. The following year, executions resumed in those three states.

Serious concerns about the application of the death penalty remain. Over the past 25 years, following an increase in the administration of capital punishment in the 1980s and 1990s, new death sentences have declined by over 80%, and executions have by roughly 75%. In 2002, the Supreme Court ruled that executing death-row inmates with intellectual disabilities was a violation of the “cruel and unusual punishment” clause of the Eighth Amendment. Just a few years later, the Court likewise found that death penalty sentences for crimes committed before the defendant turned 18 years old were unconstitutional.

Still, 27 states currently administer the death penalty, three of which (California, Pennsylvania, and Oregon) have a governor-imposed moratorium on executions. There are five methods of execution used in the U.S.: lethal injection, electrocution, lethal gas, hanging, and firing squad. Since the reinstatement of the death penalty in 1976, nearly 90% of executions have been carried out by lethal injection—a method first developed in the U.S. and now used internationally. Of the 23 states that have abolished the death penalty, 11 have done so since 2004.

Capital punishment continues to be rife with racial disparities. According to the Equal Justice Initiative, Black Americans constitute 41% of death-row inmates and 34% of those executed, despite making up only 14% of the U.S. population. Defendants are 11 times more likely to get the death penalty if the victim is white than if the victim is Black, and defendants are 22 times more likely to get the death penalty if the victim is white and the defendant is Black. These biases are also reflected in exoneration cases. In 2018, official misconduct by police and/or prosecutors was found in nearly 80% of homicide exonerations, and misconduct is more common in death penalty cases if the defendant is Black. 87% of Black death-row exonerees suffered official misconduct, compared to 67% of white death-row exonerees. Since 1973, almost 200 people have been exonerated of death-penalty sentences. For every eight inmates who are executed, one is found innocent and exonerated—a “failure rate” of more than 10%.

Today, some 60% of Americans prefer life imprisonment without the possibility of parole to the death penalty, yet in 2019 the U.S. federal government began imposing death penalties again after a 16-year hiatus. In 2022, the United States voted against a United Nations resolution for a global moratorium on the death penalty, writing in a statement that, “the U.S. does not understand the lawful use of this form of punishment as contravening respect for human rights, both as it relates to the convicted and sentenced individual as well as the rights of others.” As of August, 17 people have been executed in the U.S. in 2023: five in Florida and Texas, four in Missouri, two in Oklahoma, and one in Alabama.