Capital punishment in the United States

Colonial America

Virginia

Before the United States became an independent country, it was a colony of the British Empire. The first known death sentence in colonial America happened in 1608. Captain George Kendall was executed by firing squad at the Jamestown colony after being accused of spying for the Spanish government.^[3]

In colonial America, people could be executed for many things. In the Jamestown colony, the first set of rules and punishments the colony's Lieutenant Governor wrote was very strict. There were 48 different capital crimes (crimes that were punishable by death).^[4] They included:^[4][5]

• Picking flowers from a neighbor's garden
• Criticizing the British government (for the third time)
• Blasphemy (for the third time)
• Trading with Native Americans (for the first time)
• Leaving the colony (for the third time)
• Stealing food because of hunger (for the third time)

When some colonists decided they did not like these strict rules, they ran away from the colony to live with nearby Native Americans. They were brought back to the colony, tortured, and executed.^[6]

The Thirteen Colonies

Each of the Thirteen Colonies came up with its own death penalty laws. For example, in the Massachusetts Bay Colony, which was mostly Puritan, laws were harsh. Under its first capital punishment laws, which were effective from 1636-1647, people were executed for sodomy, adultery, witchcraft, blasphemy, bestiality, assault, rape, statutory rape, perjury in a capital trial, and murder.^[3] Later, the colony continued to execute people for witchcraft,^[7] including 20 people during the Salem Witch Trials.^[8] They also executed people for being Quakers^[9] and pirates.^[10]

Under the New York colony's Duke's Laws of 1665, a person could be executed for "denial of the one true God" or for hitting their mother or father.^[3]

Some colonies were not as strict. For example, the New Jersey colony had no death penalty, and in the Pennsylvania colony only murder and treason were capital crimes.^[3]

Revolutionary War era

By 1776, most of the colonies had similar laws about the death penalty. In most colonies, the capital crimes were arson, piracy, treason, murder, sodomy, burglary, robbery, rape, stealing horses, slave rebellion, and counterfeiting (making fake money). Usually, people sentenced to death were hanged.^[3]

During the American Revolutionary War, British Major John André was hanged by the Continental Army on October 2, 1780. He was convicted of spying and helping Benedict Arnold.^[11]

Slaves

The first slaves were brought to the Jamestown colony in 1619.^[12] Slavery was legal in the United States for the next 246 years, until the Thirteenth Amendment to the United States Constitution made it illegal in 1865.^[13] Until that time, slaves had no rights.

Slaves could be punished or tortured for any reason, or for no reason at all.^[14] Slaves who tried to escape or rebel were often tortured and executed where other slaves could see, to warn them not to do the same thing.^[15][16]

For example, in 1755, in the Massachusetts Bay Colony, a slave named Mark was accused of poisoning his "master." He was executed, then hung in chains at Boston Harbor so his body would rot.^[17] This was supposed to remind other slaves not to rebel every time they passed Mark's body.^[a] Twenty years later, when Paul Revere made his "Midnight Ride," Mark's skeleton was still hanging in chains at Boston Harbor.^[17]

During the 1700s, in the Southern colonies, an unknown number of slaves were executed, sometimes for things like hitting another slave, "fussing," or "sassing" a white person.^[19] Laws in the Southern colonies were passed allowing cruel and unusual punishments as well as capital punishment for slaves.^[16]

Reforms

In the late 1700s, activists like Benjamin Rush began to argue that the death penalty should not be used. Between 1794 and 1815, eight states passed laws that made fewer crimes punishable by death. However, many southern states made more crimes punishable by death, especially for slaves.^[20]

Major reforms started to happen between 1833 and 1853. At that time, many executions were public events. By 1849, fifteen states had switched to private hangings.^[3]

Abolition

In 1846, Michigan became the first state to abolish the death penalty, just after it entered the United States.^[3]

In 1852, Massachusetts's state legislature voted to allow the death penalty only for first-degree murder. The next year, Wisconsin outlawed capital punishment. In 1887, Maine's state legislature banned the death penalty.^[21]

The focus on the death penalty slowed while the country was busy with the issue of slavery and the American Civil War.^[3] However, in 1897, the United States Congress passed a law that made fewer federal crimes punishable by death. In 1911, Minnesota abolished capital punishment. Several other states also abolished the death penalty, but would start using it again later.^[21]

Between 1957 and 1973, six other states permanently abolished the death penalty:^[21]

• Alaska and Hawaii, in 1957, before they became states
• Iowa, Vermont, and West Virginia, in 1965
• North Dakota, in 1973

Furman v. Georgia

In 1972, the Supreme Court of the United States ruled in Furman v. Georgia that the way death penalty laws were written made them unconstitutional.^[22] They ruled that sentencing rules were discriminatory, because black people got sentenced to death more often than whites for the same crimes.^[22] Because of this, the death penalty was cruel and unusual punishment, which violated the Eighth and Fourteenth Amendments to the Constitution.^[22] This ruling stopped all executions in the country. Between 1972 and 1976, there were no executions in the United States.^[3]

However, by early 1975, thirty states had passed new death penalty laws that they thought would satisfy the Supreme Court.^[3] They did. In Gregg v. Georgia (1976), the Supreme Court ruled that Georgia's new death penalty law was constitutional. It ruled that capital punishment was not always cruel and unusual punishment, as long as it was done fairly.^[23] This meant that states could start executing people again, as long as they had rewritten their death penalty laws like Georgia did, to say that the death penalty would be applied fairly. In 1977, executions began again in the United States.

Limitations

In two major cases, the Supreme Court has limited who may be executed. In Atkins v. Virginia (2002), the Court decided that executing people with intellectual disabilities is cruel and unusual punishment, and is against the Eighth Amendment.^[24] Before this decision, between 1984 and 1992, forty-four people with intellectual disabilities were executed in the United States.^[24]

Also, in Roper v. Simmons (2005), the Supreme Court made it illegal to execute a person who was younger than 18 when they committed their crime.^[25]

Number of executions

In 2004, two researchers named M. Watt Espy and John Ortiz Smykia put together a list of executions that became known as "The ESPY File."^[26] The Espy File says that between 1608 and 1991, in the American colonies and then the United States, 15,269 people were executed.^[26] The Espy File is "the most often cited and used list of America's legal executions."^[27] However, in a 2011 study, two researchers criticized The Espy File. They wrote that researchers should not use the File as a complete source of information about executions.^[27]

According to the United States Department of Justice, between 1930 and 2002, the United States executed 4,679 people.^[28] About two-thirds of these people (about 3,100 people) were executed between 1930 and 1950.^[28]

Between 1916 and 1955, the United States military executed 135 soldiers.^[29] The military has not executed anyone since 1955.^[29]

In 2016, only 5 of 50 or 10% of US states had executions. They were Alabama, Florida, Georgia, Missouri and Texas.

Throughout American history, different methods of execution have been used. During colonial times, cruel and painful methods like burning or crushing people to death were sometimes used.^[6] However, since 1776, all but a few executions have been carried out in one of five ways: hanging, firing squad, the electric chair, the gas chamber, or lethal injection.^[32]

Since the Bill of Rights was added to the United States Constitution in 1791, "cruel and unusual punishment" has been against the law in the United States.^[33] This means that even if a person commits a terrible crime, the Constitution says their punishment cannot be painful or cause suffering on purpose.

Hanging

Until the beginning of the 20th century, hanging was the most common method of execution in the United States.^[32]

However, hanging did not always work the way it was supposed to. If the rope and noose were not put in the correct position, a person could be decapitated. If the rope was not long enough, the person could slowly die of strangulation.^[32] People started looking for more 'civilized' ways to execute people.^[32]

Electric chair

After Thomas Edison discovered direct current (DC) electricity in 1882, his company showed how powerful it was by using it to kill animals.^[3] The idea of using electricity to kill humans grew out of this. New York built the first electric chair, and first used it to execute a prisoner on August 6, 1890.^[32] Other states also adopted the electric chair as a method of execution, believing that it was a less painful way to die than hanging.^[32]

However, it became clear, even to some members of the Supreme Court, that dying in an electric chair was very painful.^[34] Also, even up until the 1990s, electric chairs would work incorrectly, causing prisoners to catch fire or be awake while they were being electrocuted.^[32] Around the 1980s, most states began to use lethal injection instead.^[32]

Gas chamber

Still looking for a more "humane" methods of execution, in 1924, Nevada prison officials tried to secretly pump cyanide gas into death row prisoner Gee Jon's cell to kill him while he slept. This did not work, and they had to build a gas chamber. On February 8, 1924, Jon became the first person to be executed by gas chamber.^[32]

From 1924 to 1972, the United States executed about 600 people in gas chambers.^[35] Most states used hydrogen cyanide gas. However, by the mid-1970s and 1980s, many people had started to criticize the use of gas chambers.^[35] Death from hydrogen cyanide poisoning can be long and painful,^[36][37] and in some executions, prisoners suffered long deaths.^[38][39] After one of these executions, a federal court in California ruled that "execution by lethal gas under the California protocol is unconstitutionally cruel and unusual punishment."^[40]

Also, according to sociologist Clifton Bryant, the way it is used in the United States, "the gas chamber is ... the most dangerous, most complicated, and most expensive method of administering the death penalty."^[41] By the late 20th century, most states had switched to using lethal injection.^[35]

Lethal injection

In the 1970s, Oklahoma passed the first law that allowed executions by lethal injection.^[42] This was a practical decision: Oklahoma's old electric chair would need expensive repairs, and building a gas chamber would cost over $200,000. However, executing a person by lethal injection would only cost $10 to $15 per person.^[42] Lethal injection grew more and more popular in death penalty states. It was viewed as less painful, with less suffering, than the electric chair or gas chamber.^[35] Texas was the first state to execute someone by lethal injection, in 1982.^[43] Over the next 30 years, all of the death penalty states passed laws making lethal injection their first-choice (or only) method of execution.^[43]

However, in the 2010s, American prisons started having trouble getting enough of the medications used to carry out lethal injections. The states had been using three medications for lethal injections:^[44]

1. Sodium thiopental (an anesthetic to put the prisoner to sleep)
2. Pancuronium bromide (to paralyze the prisoner)
3. Potassium chloride (to stop the prisoner's heart)

Then, in 2011, Hospira, the only American company that made sodium thiopental, stopped making the drug.^[45] The European Union makes other anesthetics, like propofol. However, since the European Union is against the death penalty, they made it illegal to export any product that could be used in an execution.^[45] Another anesthetic, pentobarbital, is also only made in the European Union, and the company that makes it has put limits on selling it to U.S. government customers.^[46] A few states have tried mixtures of other drugs, but those executions have not gone well.^[47][48][49]

As of 2016, many death penalty states have temporarily stopped using lethal injection until they can find a solution to this problem.^[32]

Other options

As of January 1, 2016, fifteen states have laws that allow them to use a method of execution other than lethal injection. Before the lethal injection drug shortages, these other methods were rarely used. From 1976 to March 23, 2016, there were 1,431 executions:^[50]

• 1,256 (88%) were by lethal injection
• 158 (11%) were by electric chair
• 11 (0.8%) were by gas chamber
• 3 (0.2%) were by hanging
• 3 (0.2%) were by firing squad

However, since they stopped being able to get lethal injection drugs, some states have thought about going back to other methods of execution. Here are the states whose laws allow them to use other methods, as of January 1, 2016:^[43]

This table shows the death penalty laws in 49 of the 50 states; Washington, D.C.; the federal government; and the United States military, as of January 1, 2016.^[43][54] Under the category "Status," there are four possibilities:

1. Abolished. This state no longer uses the death penalty.
2. Legal. This state still uses the death penalty.
3. Moratorium. This means the death penalty law has been temporarily stopped.
4. De facto moratorium. This means the death penalty is still officially legal. However, the state has not executed anyone in at least five years (except for people who ask to be executed).

Click on the little triangle at the top of each header box to sort the information in this table by a certain category.

In some areas, prosecutors ask for the death penalty, and judges grant the death penalty, more often than in other areas. Also, once people are convicted and are on "death row," how quickly they are executed depends on the state they are in. On average, in 2004, death penalty states had executed about 10% of the people on their "death rows." However, California had executed only 1% of its prisoners who are sentenced to death. Texas executed 40% of theirs.^[55]

Among races

One of the controversies about the death penalty is whether it is given unequally to people of different races.

In a report in 1983, David Baldus and others wrote a famous report that looked at whether the death penalty was applied equally to people of different races in Georgia. They found that:^[56]

• People are more likely to be sentenced to death for killing whites than for killing blacks
• Black defendants are more likely to get the death penalty than whites

In 1987, the Supreme Court decided a case called McCleskey v. Kemp. McCleskey's lawyers showed that in Georgia, where McCleskey lived, black people convicted of killing whites were four times more likely to get the death penalty than people convicted of killing non-whites.^[57] The Supreme Court accepted this, but ruled against McCleskey. They wrote: "[inequalities] in sentencing are an inevitable part of our criminal justice system."^[57] Since then, judges have not allowed lawyers to argue that racial bias plays a part in the death penalty.^[58]

Anti-death penalty groups like Amnesty International say:^[59]

• As of 2003, African Americans made up 41% of death row inmates, but only 12.6% of the United States population
  • 34% of the people executed since 1976 have been African American
• About the same number of blacks and whites are murdered. However, 80% of the people executed since 1977 were convicted of murdering white people

The United States Department of Justice says that between 1980 and 2008, African Americans committed 52.5% of the murders in the United States; whites committed 45.3%; and Native Americans and Asians committed 2.2%. This means African Americans are less likely to be executed on a per capita basis.^[60] The Department of Justice also says that as of 2009, Hispanic or Latino people make up 17.4% of the United States population, but only 13.5% of death row prisoners.^[61]

A 2012 study found that non-white soldiers in the United States military are twice as likely as white soldiers to be given the death penalty.^[62] Of the 16 soldiers the military has sentenced to death between 1985 and 2012, 10 (62.5%) were non-whites, one of the study's authors said.^[63]

Among sexes

The death penalty is definitely given much more often to men than women. As of October 1, 2014:^[64]

• 98.12% of the people currently on death row are men (2,978 men); 1.88% (57) are women
• 98.92% of the people executed since 1976 have been men (1,374 men); 1.08% (15) have been women

Exoneration

The University of Michigan Law School keeps a list of people who have been exonerated from death row. The list counts "exonerations" as cases where "a person who has been convicted of a crime is officially cleared based on new evidence of innocence."^[65]

According to the list, between 1989 and 2015, 116 people have been exonerated from death row. The most common reasons why these people were exonerated were:^[g][66]

• The person was convicted at least partly because police, prosecutors, judges, or other government officials abused their power (88 people were exonerated at least partly for this reason. This is about 76% of the 116 exonerated people.)
• Somebody lied in court or lied when they accused the person of the crime: (85 people – 73%)
• The person was convicted based on forensic evidence that was wrong, exaggerated, not proven to be good science, or was fake: 32 people (28%)
• The person's lawyer gave the person an "inadequate legal defense" (the lawyer did not give the person even a basic defense, or made very serious errors during the trial): 31 people (27%)

DNA evidence proved that 25 of these people – about 22% – were innocent of the crimes they were sentenced to death for.^[66]

Of the 116 people who were exonerated, 62 (about 53%) were black, 43 (37%) were white, 9 (8%) were Hispanic, and two were members of other races (2%). In the 88 cases where a government official abused their power, 51 of the exonerated people (about 58%) were black; 29 were Caucasian (33%); and 8 (9%) were Hispanic. Seventeen of the 31 people who received an "inadequate legal defense" (about 55%) were black; 12 (about 39%) were white; and two (about 6%) were Hispanic.^[66]

The death penalty is a very controversial topic in the United States. People have argued about it since before the Thirteen Colonies became the United States. There are many different arguments for and against the death penalty. This list does not include all of them, just some of the most common ones.

Possibility of mistakes

People who do not agree with the death penalty (death penalty opponents) say our trial system is not perfect. Judges and juries make mistakes. One study done by Columbia Law School found that there were serious mistakes in two-thirds of all capital trials.^[67] In these trials, the defendants were sentenced to death anyway. However, when their cases were appealed, over 80% of the defendants were not sentenced to death; 7% were found not guilty.^[67]

Opponents argue that because mistakes are so common in capital trials, people can be executed even though they were innocent.^[68] As proof, they point the 116 people who were exonerated from death row between 1989 and 2015.^[66]

People who support the death penalty (death penalty supporters) say that mistakes are very rare, especially since new laws were made in the 1970s to add protections for death row inmates. For example, Steve Stewart, Deputy Prosecuting Attorney for the Clark County, Indiana, Fourth Judicial Court, says:

Preventing other crimes

Death penalty supporters say that capital punishment is a deterrent. This means that people are scared of the death penalty and are less likely to commit a capital crime if they know they could get the death penalty.^[70]

Supporters also argue that the next most serious punishment for capital crimes is life in prison. In some states, this means the person could be let out of prison someday. Also, even being in prison for life does not keep killers from killing more people in prison. Executing people is the only way to make sure they will never kill another person.^[69]

Opponents argue that nobody has ever proved that capital punishment is more of a deterrent than a long prison sentence.^[71][72] They point out that most states and countries that do not have the death penalty have lower murder rates than death penalty states.^[68] They also say that the death penalty is not a deterrent because people often commit murders when they are very upset and are not thinking about what might happen in the future.^[71]

Among scholars and researchers, there is no agreement about whether capital punishment is more of a deterrent than any other punishment. Some researchers have done studies that say the death penalty is a deterrent.^[73][74][75] Other studies have found that the death penalty is not a deterrent – in the United States,^[76][77] or in other countries.^[78]

Whether the death penalty is applied unfairly

Opponents argue that defendants who are poor and/or non-white are more likely to get the death penalty than whites, even if they have committed the same crimes.^[71] Supporters say that opponents misuse statistics and exaggerate the situation.^[70] For more information, see the section on Sentencing: Among races farther up on this page.

Whether the death penalty is cruel and unusual punishment

Death penalty debaters argue about whether capital punishment is "cruel and unusual punishment" (which would be unconstitutional). Even the people on the Supreme Court have disagreed on this issue. In 2004, the Court ruled in Baze v. Rice that even if an execution causes pain, that does not make it cruel and unusual.^[79] However, in his dissenting opinion in Gregg v. Georgia, Justice William Brennan wrote that the death penalty is "an unusually severe punishment, unusual in its pain... [it] is today a cruel and unusual punishment prohibited by the ... Eighth and Fourteenth Amendments."^[80]

The American Civil Liberties Union (ACLU), an anti-death penalty group, adds that capital punishment is "unusual" because:^[71]

• The United States is the only western nation that uses the death penalty; and
• Only a very small number of murderers in the United States get the death penalty.

Morals and religions

Religion plays a complicated role in death penalty arguments. To support the death penalty, some people quote from the Old Testament of the Bible, which says: "An eye for an eye, a life for a life." This means that if you take a life, you should pay with your own life. However, others use parts of the New Testament, where Jesus talks about forgiveness and nonviolence, to oppose the death penalty. They say that no one has the right to take a life but God – even if that person has taken a life himself.^[68]

In 1999, a group of Jewish rabbis and Catholic Bishops had this to say:

Opponents also point out:

• Hover over each photo to view label detail; click on the photo to make it bigger
• 
  Number of executions in the American colonies and the United States, from 1608 to 2009
• 
  Number of executions from 1608 to 2009, by method of execution

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  Total number of prisoners sentenced to death in the United States from 1953 to 2008
• 
  Executions in the United States from 1960 to 2010 (no executions happened between 1972-1976 because of Furman)
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  States that use lethal injection
  

    State uses only this method

    State uses this method primarily but has secondary methods

    State has never used this method

• 
  Electric chair use
  

    Possible second-choice method

    Used in the past

    Never used
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  Map showing how countries voted when the UN suggested a death penalty moratorium (2008)
  

    In favour (106)

    Against (46)

    Did not vote (34)

• Basic arguments for and against the death penalty (in Simple English) – from BBC