Trial and Error: Capital Punishment in U.S. History

by William S. McFeely

Americans engaged in the debate over the morality and effectiveness of the death penalty, as well as issues of discrimination in its application, often mistakenly assume its unquestioned presence throughout American history. William McFeely, pulitzer prize-winning historian and Abraham Baldwin Professor of the Humanities emeritus at the University of Georgia, addresses the long-standing historical debates over capital punishment, examining legislative efforts to both limit and allow the death penalty, attempts to make the process more “humane” by reforming the method and conditions of execution, and changing public attitudes that reflect current political and social trends. (Posted January 2001)

The death penalty has not been a constant in American history. It has undergone numerous changes and reforms in the past two centuries, falling in and out of public favor. Immediately after the American Revolution, some legislators removed the death penalty as punishment for many crimes. In the genteel nineteenth century, government officials went even further, ending public hangings that once entertained large crowds of curious onlookers. Officials deemed it more seemly to conduct executions in prisons, away from public scrutiny.

In the 1840s reformers called for the elimination of the death penalty. In 1846, the Michigan legislature made that state the first government in the world to remove the death penalty altogether. Historian Louis Masur has argued in Rites of Execution : Capital Punishment and theTtransformation of American Culture, 1776–1865 that the death penalty might well have ended in the whole nation if the Civil War, and the brutalizing of society that it engendered, had been averted.

Instead, during the Civil War era, elected officials transferred authority over executions from the local to the state level of government. In 1864, Vermont revoked the right of local towns and counties to sentence hanging, permitting only state-sanctioned executions. Virtually all the other states followed suit. The object was to restrain overly eager “hanging judges,” but it institutionalized the death penalty in a way that disturbs many people today.

Other reforms have influenced the methods of putting prisoners to death. With the advent of electricity at the close of the nineteenth century, the electric chair was introduced as a more humane alternative to hanging. Recently, with similar motivation, many states have adopted the practice of lethal injection, where a deadly chemical is delivered intravenously. Lethal injection is seen as less stressful to the prisoner and the witnesses than the electric chair.

Reform occurred again at the opening of the twentieth century, when nine states (all of them west of the original thirteen colonies), abandoned the death penalty. However, in the aftermath of World War I, five of these nine restored capital punishment, and in the 1930s, two more did so as well. Of the remaining two, North Dakota only sentenced repeat murderers to death, while Minnesota alone allowed no executions at all. At present, there are twelve states that do not permit capital punishment under any circumstances. Some states have laws permitting capital punishment, but have not charged anyone under them.

Not all executions of prisoners in the late nineteenth and early twentieth centuries were ordered by the state. Particularly in the segregated South, mobs of white citizens controlled local African-American populations by hanging African-American men who had been accused (usually falsely) of a crime. Known as lynching, these hangings often took place before crowds of onlookers. By the 1930s, when mob lynching almost ceased, legal executions rose. There were 1,676 in that decade. While the periods following the Civil War and World War I had seen an increase in the number of states applying the death penalty, the reaction following World War II was different. In 1945, Americans learned of the six million Jews who had been systematically killed by order of the state in Germany. The idea that governments here in the United States should kill their citizens, even though the crimes committed had been abhorrent, suddenly seemed wrong.

Furthermore, a disproportionate number of those executed by the state were African-American. The end of the death penalty was consistent with the goal of justice for African Americans sought by the Civil Rights Movement of the 1950s and 1960s. This grassroots effort coincided with opposition to the war in Vietnam that focused on ending government-sponsored violence. In the 1960s few prosecutors asked for the death penalty, and between 1967 and 1972 there were no executions anywhere in the United States.

In 1972, in a Georgia case involving black defendant William Henry Furman, the U.S. Supreme Court ruled that the death penalty was unconstitutional. (Furman, having served his jail term, is now a construction worker in Georgia.) Justice Brennan’s concurring opinion in the case argued that the death penalty was unconstitutional under the Eighth Amendment that disallows “cruel and unusual punishments.” Many thought that this was the end of the death penalty. The State Supreme Courts of California and New Jersey, using reasoning similar to Brennan’s, also found capital punishment unconstitutional.

Several of Brennan’s fellow justices, however, left the door open for the death penalty’s return. These dissenters held that the death penalty would be constitutional if applied equitably to all the citizenry. As the country entered a more conservative phase after the Vietnam War and the end of the Civil Rights Movement, many state legislatures eagerly sought to satisfy the U.S. Supreme Court by passing legislation that made capital punishment appear to be fairly administered. Many states, for example, required that the state Supreme Court review all death sentences.

In 1976, another Georgia case reached what was by then a more conservative Supreme Court. This time, the Court held that Georgia’s legislature had insured that the death penalty was equitably administered to Troy Gregg. (Gregg later died in a shooting following a prison break). With this Supreme Court ruling, it followed that all other states could once again utilize capital punishment.

The first person (other than one prisoner who chose to be executed) put to death as a result of that 1976 decision was a white man named John Spenkelink. Pro-death penalty politicians who campaigned as “tough on crime” were eager for the first victim to be a white man. As one of Spenkelink’s lawyers said, politicians believed this would “inoculate” the death penalty from the charge of institutional racism. After dramatic last minute appeals—and a great deal of coverage in the newspapers and other media—Florida officials executed Spenkelink in the electric chair in 1979.

Since 1979, there have been 681 executions in the United States. California and New Jersey restored the death penalty, and thirty-eight of the fifty states now have capital punishment laws. Some states use them frequently. Since the Supreme Court restored the death penalty, 239 persons have been executed in Texas alone. Virginia with 81, Florida with 50, Missouri with 46, and Oklahoma with 30 have had the next highest rates of execution. In California, 582 people wait on death row. Other states, like New York, have recently reinstated the death penalty.

Prior to 1996, state primarily used the death penalty, but in that year Congress stipulated that many federal crimes merited the death penalty. Federal prosecutors have sought the death penalty in a case in Massachusetts, one of the states that does not execute murderers.

There are many questions about the death penalty. Should a retarded person be executed when he is unable to understand his fate? In one instance, a man being led to his execution stated that he would finish his dessert when he got back. At what point is age a factor? In 1885 in Arkansas, a defendant was executed who had been only ten years old when the crime was committed. More recently, a man who had been a boy of 16 when he committed murder was executed. A large number of defendants in death penalty cases are illiterate, of moderate intelligence, and in many cases have been the victims of child abuse. In addition, most are poor. Defendants who can employ good lawyers usually win a lesser sentence than death. Indigent defendants must rely on court-appointed lawyers who in many cases are not competent to try capital cases. There are documented cases of lawyers who are inebriated or who fall asleep while representing a man whose life is at stake.

At the state level, local prosecutors alone decide whether to seek the death penalty in criminal cases. This is a large responsibility to place in one person’s hands and a risky one if that person is also seeking election in an area where the death penalty is popular. That popularity seems to be enhanced by the fact that death penalty adherents do not necessarily witness the executions. National Public Radio recently broadcast extensive interviews with prison guards and wardens who are required to carry out executions [http://npr.org/news/national/election2000/coverage/issues/deathpenalty.html]. Repeatedly, these prison employees report that it is a traumatic experience with serious consequences.

Post-mortem DNA tests have shown that some people were innocent of the crimes for which they were executed. Since 1973, 90 people waiting with death sentences have been fortunate enough to have lawyers and reporters intervene to demonstrate their innocence. In addition to the risk of executing innocent men or women, false convictions mean that murderers are still at large. Governor George Ryan of Illinois, a supporter of the death penalty, has called a moratorium on executions until these objections can be studied. Despite hesitations in some states, however, the majority of U.S. Supreme Court justices would likely continue to uphold the constitutionality of the death penalty. The new president, George W. Bush, former governor of Texas, is an ardent supporter of the death penalty, as is John Ashcroft, Bush’s Attorney General. Bush, with Ashcroft’s advice, will appoint justices to replace retiring justices of the Supreme Court.

Death penalty supporters put forth a number of arguments to support their position.

Sympathy for the families of the victims of horrendous crimes is always in the minds of those advocating the death penalty. Many see it as essential for those family members to know that the perpetrator has been put to death. But some victims' families disagree; to them, to exact such a punishment is only to match the killer’s act with another killing. Some claim that it saves a state money to be relieved of the care of a murderer. This seems not to be the case. Not only are the structures and personnel necessary to maintain a death row costly, but states also incur heavy legal costs in carrying out the necessary appeals process. Perhaps the most frequently cited rationale for the death penalty is that it deters others from committing crime. Study after study has shown this not to be true, but it is a concept that many people, including some high in the legal hierarchy, still believe.

Among nations with representative governments, the United States stands almost alone in its use of the death penalty. Since the death penalty has been abolished in all European and South American countries, the U.S. shares the practice of capital punishment with such countries as Saudi Arabia, Iraq, and Iran. Other democracies, as well as international human rights groups like Amnesty International, exert pressure on the U.S. to abandon its practice.

There is more debate about the death penalty today than at any time in the last twenty years. The Illinois moratorium resulted in calls for similar scrutiny in other states. In New Hampshire, the legislature voted to abolish the death penalty, only to have the governor veto the measure. Perhaps most important, people at the grassroots level are wondering about its worth.

Although there are valuable sociological and legal studies of the death penalty, there is no detailed history of the death penalty from the Civil War to the present. The following web sites may be of use:

Death Penalty Information Center

Amnesty International

American Civil Liberties Union

Murder Victims Families for Reconciliation