Earlier this month, the New Hampshire State Senate deadlocked on a vote to repeal the state’s death penalty, tying 12 to 12 and leaving the law in place. The vote, though a disappointment to opponents of capital punishment, was hardly a serious blow to the abolitionist cause. There is just one person on New Hampshire’s death row, and it has no execution chamber. No one has been put to death there since Howard Long was hanged in 1939.
But in keeping its death penalty, New Hampshire did preserve a strange distinction: It is one of three states where hanging still is a legal method of execution.
If it seems surprising, even brutal, that hanging would still be technically legal in 2014, that’s because the evolution of the death penalty in America has been so closely entwined with our belief in technological progress. As executions have evolved from one method to the next—from hanging to electrocution, from electrocution to lethal gas, from electrocution and gas to lethal injection—supporters have proclaimed the dawning of an era of more humane executions while denouncing previous methods as barbaric and unreliable. The story of execution in the United States is partly a story of technology making a final punishment less painful and cruel.
But has it? Using newspaper accounts and a database of all American executions, my collaborators and I recently completed the first comprehensive study of botched executions in the United States and documented the ways that different methods of execution go wrong. We examined every execution from 1890 to 2010 and found that no technology has been able to ensure that capital punishment would not, on occasion, become either a gruesome spectacle of suffering or a messy display of incompetence.
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During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the “high tech” electric chair in which condemned criminals have caught on fire. Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection. In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.
Man dies of heart attack after botched execution
A new drug combination left an Oklahoma inmate writhing and clenching his teeth on the gurney.
This history of botched executions suggests whatever benefits we think we are bringing when we invent and deploy new execution methods may be illusory. A close look at executions in America suggests that despite our best efforts, pain and potential for error are inseparable from the process through which the state extinguishes life—and that the conversation about capital punishment needs to take that fact into consideration.
Over the long sweep of human history, executions generally were not designed, as they are today, to minimize pain and maximize efficiency. Instead, they were intended to display the majestic, awesome power of the government to decide who lives and who dies, who goes free and who suffers.
Accordingly, death sentences have been carried out with a series of theatrical, often deliberately painful, methods. As an Amnesty International report notes, executioners have “sawed people in half, beheaded them, burned them, drowned them, crushed them with rocks, tied them to anthills, buried them alive, and [executed them] in almost every way except perhaps boiling them in oil.”
Since the earliest recorded execution in the United States in 1608, our country has put to death approximately 17,000 men and women, largely without the deliberate cruelty described in the Amnesty International report. Over the course of the last 125 years we have actively tried to find new ways to impose death without unnecessary pain, and to transform execution from dramatic spectacle to cool, bureaucratic operation.
My research shows that we have fallen far short of attaining this aspiration. Mishaps have occurred no matter what method of execution has been employed. They have happened in every region of the country and in states where executions are rare as well as those in which they are common. Each method of execution has its distinctive flaws, which have been compounded by malfeasance or simple human error.
At the turn of the 20th century, hanging was, as it had been throughout most of our nation’s history, the preferred way of carrying out death sentences. Yet hanging was still subject to technical improvement. The most important was the development of what eventually came to be known as the “long drop,” which it was hoped would allow the condemned to fall at enough velocity to reliably dislocate the uppermost cervical vertebrae, separating the spinal cord from the brain stem and ensuring a quick death. Despite these efforts, in just over 3 percent of the 20th century’s hangings something went seriously wrong. Condemned criminals had to be dropped and hanged more than once when the initial fall did not kill them; some strangled to death, and some were inadvertently beheaded.
Problems like these propelled the search for what one reformer called “a clean, clinical, undisturbing method of execution.” Electrocution initially seemed to fit the bill. A New York legislative commission reported in 1888 that “The velocity of the electric current is so great that the brain is paralyzed; is indeed dead before the nerves can communicate a sense of shock.” Two years after that report was completed New York became the first to use the electric chair. But, from that time to the present, electrocutions have been marked by serious mechanical breakdowns which required that the condemned had to be shocked repeatedly. Still others resulted in fires and the sights and smells of burning flesh.
By the middle of the last century, some American states abandoned hanging and electrocution in favor of lethal gas. Relying on techniques first developed in World War I, the promise of the gas chamber was that death would be “swift and painless.” In more than 5 percent of executions by lethal gas, it was not. Finding the right temperature and conditions in which to mix cyanide gas and sulfuric acid was not easy. As a result, people being gassed often struggled, convulsed, gasped for breath, and were asphyxiated for extended periods of time before they succumbed. Such spectacles of suffering made California’s gas chamber infamous worldwide.
Until recently, the latest wave of innovation in the technology of taking life, lethal injection, followed a three-drug protocol that killed the condemned in stages. However, several botched executions and resulting legal challenges discredited that protocol. In addition, the unwillingness of European drug manufacturers to supply drugs used in the three-drug protocol has left states scurrying to find an acceptable substitute. In some lethal injections, inmates have been subject to prolonged efforts to insert intravenous lines or have had layers of skin scraped off in order to locate a suitable vein while drugs leaked into soft tissue. In still other cases, the condemned suffered a painful reaction to the lethal drugs. Lately, as states have experimented with new drugs or untested drug combinations, some of those being put to death appeared to be conscious while a painful paralytic drug did its work.
Each method of execution has its distinctive flaws, which have been compounded by malfeasance or simple human error.
Faced with lethal injection’s continuing problems, we seem to be at a dead end. With no new technology for taking life in sight, states like Missouri and Virginia are considering bringing back older and seemingly discredited methods such as electrocution and the gas chamber.
Today the United States is the only remaining Western nation with a death penalty. Amid the grave moral argument over whether to have such laws at all, why should we particularly worry about botched executions? To some supporters of the death penalty, the search for a painless way of killing those who kill may even seem paradoxical. Painful death might appear to be a fair punishment for those who, like New Hampshire’s Howard Long, molest and murder children, or for Dzhokhar Tsarnaev, if he is found guilty of the deadly bombing at the 2013 Boston Marathon. As Arlene Blanchard, a survivor of Timothy McVeigh’s 1995 terrorist bombing in Oklahoma City, said at the time of McVeigh’s execution, “death by injection is ‘too good’ for McVeigh....I know it sounds uncivilized, but I want him to experience just a little of the pain and torture that he has put us through.”
There are also those who argue that the threat of a botched execution is an additional deterrent. In 1997, after a malfunction caused a fire during an electrocution in Florida, that state’s attorney general warned: “People who wish to commit murder better not be doing it in the state of Florida, because we may have a problem with our electric chair.”
However, the Constitution’s prohibition of “cruel and unusual punishment” applies to the death penalty as well, and has been variously interpreted as protecting the dignity of even those subject to capital punishment, or requiring that methods of execution be made compatible with society’s evolving standards of decency. No matter how vile their crime, no one has been formally sentenced to die by slow strangulation, or by decapitation, or by burning to death. And at no point in recent history has an American legislature, judge, or jury acted on the view that it’s acceptable to put criminals to death in an overtly uncivilized way.
However it is interpreted, our Constitution commits us to exercise restraint in dealing with even the most heinous criminals and to insure that the ultimate punishment does not devolve into torture. Ninth Circuit Court of Appeals Judge Stephen Reinhardt reminded us of this commitment when, in a 1994 opinion, he noted that the “risks of pain and mutilation inherent in hanging....[mean that] hanging is incompatible with society’s evolving standards of decency.” Contrasting that method with “new and less brutal methods of execution such as lethal injection,” Reinhardt suggested that we finally had found a truly humane and reliable way of satisfying the Constitutional command that when America puts someone to death we must avoid “the infliction of unnecessary pain.”
Reinhardt’s optimism is familiar in the debate over capital punishment—as is the implicit assumption that you can separate physical cruelty from the death penalty. But our own history gives us ample grounds for doubting such claims. After more than a century of trying, we have still not managed to find a way of killing that does not run the risk of violating our most important moral and constitutional commitments. It is possible to see this as simply a failure of ingenuity, one that might be solved by the next clever execution technique. But the story of America’s enforcement of the death penalty suggests another answer as well: that in practice, such a method simply does not exist.
More coverage: Oklahoma man dies of heart attack after botched execution | N.H. Senate rejects bid to repeal death penaltyAustin Sarat, associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, is the author of “Gruseome Spectacles: Botched Executions and America’s Death Penalty” (Stanford University Press).
Eighteenth Century B.C. - first established death penalty laws.
Eleventh Century A.D. - William the Conqueror will not allow persons to be hanged except in cases of murder.
1608 - Captain George Kendall becomes the first recorded execution in the new colonies.
1632 - Jane Champion becomes the first woman executed in the new colonies.
1767 - Cesare Beccaria's essay, On Crimes and Punishment, theorizes that there is no justification for the state to take a life.
Late 1700s - United States abolitionist movement begins.
Early 1800s - Many states reduce their number of capital crimes and build state penitentiaries.
1823-1837 - Over 100 of the 222 crimes punishable by death in Britain are eliminated.
1834 - Pennsylvania becomes the first state to move executions into correctional facilities.
1838 - Discretionary death penalty statutes enacted in Tennessee.
1847 - Michigan becomes the first state to abolish the death penalty for all crimes except treason.
1890- William Kemmler becomes first person executed by electrocution.
Early 1900s - Beginning of the "Progressive Period" of reform in the United States.
1907-1917 - Nine states abolish the death penalty for all crimes or strictly limit it.
1920s - 1940s- American abolition movement loses support.
1924 - The use of cyanide gas introduced as an execution method
1930s - Executions reach the highest levels in American history - average 167 per year.
1948 - The United Nations General Assembly adopted the Universal Declaration of Human Rights proclaiming a "right to life."
1950-1980 - De facto abolition becomes the norm in western Europe.
1958 - Trop v. Dulles. Eighth Amendment's meaning contained an "evolving standard of decency that marked the progress of a maturing society."
1966 - Support of capital punishment reaches all-time low. A Gallup poll shows support of the death penalty at only 42%.
1968 - Witherspoon v. Illinois. Dismissing potential jurors solely because they express opposition to the death penalty held unconstitutional.
1970 -Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials.
June 1972 - Furman v. Georgia. Supreme Court effectively voids 40 death penalty statutes and suspends the death penalty.
1976 - Gregg v. Georgia. Guided discretion statutes approved. Death penalty reinstated
January 17, 1977 - Ten-year moratorium on executions ends with the execution of Gary Gilmore by firing squad in Utah.
1977 - Oklahoma becomes the first state to adopt lethal injection as a means of execution.
1977 -Coker v. Georgia. Held death penalty is an unconstitutional punishment for rape of an adult woman when the victim is not killed.
December 7, 1982 - Charles Brooks becomes the first person executed by lethal injection.
1984 - Velma Barfield becomes the first woman executed since reinstatement of the death penalty.
1986 -Ford v. Wainwright. Execution of insane persons banned.
1986 -Batson v. Kentucky. Prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for his or her strikes.
1987 - McCleskey v. Kemp. Racial disparities not recognized as a constitutional violation of "equal protection of the law" unless intentional racial discrimination against the defendant can be shown.
1988 -Thompson v. Oklahoma. Executions of offenders age fifteen and younger at the time of their crimes is unconstitutional.
1989 -Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.
1989 - Penry v. Lynaugh. Executing persons with "mental retardation" is not a violation of the Eighth Amendment.
1993 - Herrera v. Collins. In the absence of other constitutional grounds, new evidence of innocence is no reason for federal court to order a new trial.
1994 - President Clinton signs the Violent Crime Control and Law Enforcement Act expanding the federal death penalty.
1996 - President Clinton signs the Anti-Terrorism and Effective Death Penalty Act restricting review in federal courts.
1998 - Karla Faye Tucker and Judi Buenoano executed.
November 1998 - Northwestern University holds the first-ever National Conference on Wrongful Convictions and the Death Penalty. The Conference brings together 30 inmates who were freed from death row because of innocence.
January 1999 - Pope John Paul II visits St. Louis, Missouri, and calls for an end to the death penalty.
April 1999 - U.N. Human Rights Commission Resolution Supporting Worldwide Moratorium On Executions.
June 1999 - Russian President, Boris Yeltsin, signs a decree commuting the death sentences of all of the convicts on Russia's death row.
January 2000 - Illinois Governor George Ryan declares a Moratorium on executions and appoints a blue-ribbon Commission on Capital Punishment to study the issue.
2002 - Ring v. Arizona. A death sentence where the necessary aggravating factors are determined by a judge violates a defendant's constitutional right to a trial by jury.
2002 - Atkins v. Virginia. the execution of "mentally retarded" defendants violates the Eighth Amendment's ban on cruel and unusual punishment.
January 2003 - Gov. George Ryan grants clemency to all of the remaining 167 death row inmates in Illinois because of the flawed process that led to these sentences.
June 2004 - New York's death penalty law declared unconstitutional by the state's high court.
March 2005 - In Roper V. Simmons, the United States Supreme Court ruled that the death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment.
December 2007 - The New Jersey General Assembly votes to become the first state to legislatively abolish capital punishment since it was re-instated in 1976.
February 2008 - The Nebraska Supreme Court rules electrocution, the sole execution method in the state, to be cruel and unusual punishment, effectively freezing all executions in the state.
June 2008 - Kennedy v. Louisiana. Capital punishment cannot apply to those convicted of child rape where no death occurs.
March 2009 - Governor Bill Richardson signs legislation to repeal the death penalty in New Mexico, replacing it with life without parole.
March 2011 - Governor Pat Quinn signs legislation to repeal the death penalty in Illinois, replacing it with life without parole.
Early Death Penalty Laws
The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.
In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the following century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. This trend would not last, for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been executed. Some common methods of execution at that time were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Executions were carried out for such capital offenses as marrying a Jew, not confessing to a crime, and treason.
The number of capital crimes in Britain continued to rise throughout the next two centuries. By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many juries would not convict defendants if the offense was not serious. This lead to reforms of Britain's death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the 222 crimes punishable by death. (Randa, 1997)
The Death Penalty in America
Britain influenced America's use of the death penalty more than any other country. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain. In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians.
Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father, or denying the "true God," were punishable by death. (Randa, 1997)
The Abolitionist Movement
The abolitionist movement finds its roots in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria's 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. (Schabas 1997)
American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia's death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.
Also influenced was Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society. Rush challenged the belief that the death penalty serves as a deterrent. In fact, Rush was an early believer in the "brutalization effect." He held that having a death penalty actually increased criminal conduct. Rush gained the support of Benjamin Franklin and Philadelphia Attorney General William Bradford. Bradford, who would later become the U.S. Attorney General, led Pennsylvania to become the first state to consider degrees of murder based on culpability. In 1794, Pennsylvania repealed the death penalty for all offenses except first degree murder. (Bohm, 1999; Randa, 1997; and Schabas, 1997)
In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the northeast. In the early part of the century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carrying them out in correctional facilities.
In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit. (Bohm, 1999 and Schabas, 1997).
Although some U.S. states began abolishing the death penalty, most states held onto capital punishment. Some states made more crimes capital offenses, especially for offenses committed by slaves. In 1838, in an effort to make the death penalty more palatable to the public, some states began passing laws against mandatory death sentencing instead enacting discretionary death penalty statutes. The 1838 enactment of discretionary death penalty statutes in Tennessee, and later in Alabama, were seen as a great reform. This introduction of sentencing discretion in the capital process was perceived as a victory for abolitionists because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws had been abolished by 1963. (Bohm, 1999)
During the Civil War, opposition to the death penalty waned, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. The electric chair was introduced at the end of the century. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted this execution method. (Randa, 1997)
Early and Mid-Twentieth Century
Although some states abolished the death penalty in the mid-Nineteenth Century, it was actually the first half of the Twentieth Century that marked the beginning of the "Progressive Period" of reform in the United States. From 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official. However, this reform was short-lived. There was a frenzied atmosphere in the U.S., as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. As a result, five of the six abolitionist states reinstated their death penalty by 1920. (Bedau, 1997 and Bohm, 1999)
In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas chamber was constructed. (Bohm, 1999)
From the 1920s to the 1940s, there was a resurgence in the use of the death penalty. This was due, in part, to the writings of criminologists, who argued that the death penalty was a necessary social measure. In the United States, Americans were suffering through Prohibition and the Great Depression. There were more executions in the 1930s than in any other decade in American history, an average of 167 per year. (Bohm, 1999 and Schabas, 1997)
In the 1950s, public sentiment began to turn away from capital punishment. Many allied nations either abolished or limited the death penalty, and in the U.S., the number of executions dropped dramatically. Whereas there were 1,289 executions in the 1940s, there were 715 in the 1950s, and the number fell even further, to only 191, from 1960 to 1976. In 1966, support for capital punishment reached an all-time low. A Gallup poll showed support for the death penalty at only 42%. (Bohm, 1999 and BJS, 1997)
Constitutionality of the Death Penalty in America
Challenging the Death Penalty
The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a "cruel and unusual" punishment, and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court had decided in Trop v. Dulles (356 U.S. 86), that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop was not a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States had, in fact, progressed to a point that its "standard of decency" should no longer tolerate the death penalty. (Bohm, 1999)
In the late 1960s, the Supreme Court began "fine tuning" the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.
The other 1968 case was Witherspoon v. Illinois (391 U.S. 510). In this case, the Supreme Court held that a potential juror's mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that the juror's attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment.
In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was "beyond present human ability."
Suspending the Death Penalty
The issue of arbitrariness of the death penalty was again be brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U.S. 238)). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty.
In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.
Reinstating the Death Penalty
Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall holding in Furman was that the specific death penalty statutes were unconstitutional. With that holding, the Court essentially opened the door to states to rewrite their death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness in capital sentencing. The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina (428 U.S. 280 (1976)).
Other states sought to limit that discretion by providing sentencing guidelines for the judge and jury when deciding whether to impose death. The guidelines allowed for the introduction of aggravating and mitigating factors in determining sentencing. These guided discretion statutes were approved in 1976 by the Supreme Court in Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.
In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time. Another reform was the practice of automatic appellate review of convictions and sentence. The final procedural reform from Gregg was proportionality review, a practice that helps the state to identify and eliminate sentencing disparities. Through this process, the state appellate court can compare the sentence in the case being reviewed with other cases within the state, to see if it is disproportionate.
Because these reforms were accepted by the Supreme Court, some states wishing to reinstate the death penalty included them in their new death penalty statutes. The Court, however, did not require that each of the reforms be present in the new statutes. Therefore, some of the resulting new statutes include variations on the procedural reforms found in Gregg.
The ten-year moratorium on executions that had begun with the Jackson and Witherspoon decisions ended on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah. Gilmore did not challenge his death sentence. That same year, Oklahoma became the first state to adopt lethal injection as a means of execution, though it would be five more years until Charles Brooks became the first person executed by lethal injection in Texas on December 7, 1982.
Continued in Part II
Return to Index
Amnesty International, "List of Abolitionist and Retentionist Countries," Report ACT 50/01/99, April 1999
D. Baker: "A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997"; 10(3) Women and Criminal Justice 57 (1999)
R. Bohm, "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," Anderson Publishing, 1999.
"The Death Penalty in America: Current Controversies," H. Bedau, editor, Oxford University Press, 1997.
K. O'Shea, "Women and the Death Penalty in the United States, 1900-1998," Praeger 1999.
W. Schabas "The Abolition of the Death Penalty in International Law," Cambridge University Press, second edition, 1997.
"Society's Final Solution: A History and Discussion of the Death Penalty," L. Randa, editor, University Press of America, 1997.
V. Streib, "Death Penalty For Female Offenders January 1973 to December 2002," Ohio Northern University, 2003.
Sources for additional information about the death penalty
Law Review & Journal articlesDPIC Reports