Capital Punishment

II. A Concise History of Capital Punishment in the United States

When the first European settlers arrived in America, they brought with them the legal systems from their native countries, which included the penalty of death for a variety of offenses. For example, the English Penal Code at the time, which was adopted by the British colonies, listed more than 50 capital offenses, but actual practice varied from colony to colony.

The earliest recorded lawful execution in America was in 1608 in the Virginia Colony. Captain George Kendall, a councilor for the colony, was executed for being a spy for Spain. Kendall’s execution was atypical for two reasons. First, he was executed for a relatively unusual offense (spying/espionage), and second, he was shot instead of hanged. More than 20 years would pass before the first murderer, John Billington, would be executed in 1630 in the Massachusetts Bay colony. Of the 162 colonists executed in the 17th century (for which the offense is known—85% of the total), nearly 40% were executed for murder, about 25% for witchcraft, and nearly 15% for piracy. No other crimes accounted for more than 8% of all executions. Most of the executed were hanged (88%), 10% were shot, an alleged witch was pressed to death, and a convicted arsonist was burned.

Since Kendall, about 20,000 legal executions have been performed in the United States under civil (as opposed to military) authority. The vast majority of those executed have been men; only about 3% of the total have been women. Most of the condemned women (87%) were executed before 1866. The first woman executed was Jane Champion in the Virginia Colony in 1632. She was hanged for murdering and concealing the death of her child, who was fathered by a man other than her husband. Since 1962, only 11 women have been executed in the United States (as of April 1, 2008) (Death Penalty Information Center, 2008).

In addition, about 2% of those executed in the United States since 1608 have been juveniles, those whose offenses were committed prior to their 18th birthdays. The first juvenile executed in America was Thomas Graunger in the Plymouth Colony in 1642, for the crime of bestiality. Between 1990 and 2005, the United States was 1 of only 7 countries that had executed anyone who was under 18 years of age at the time of the crime; the others were the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. At this time, Yemen and the United States (as of March 1, 2005) no longer execute juveniles. The United States had executed 22 juveniles since 1976. (Read more about Juvenile Death Penalty)

Among the first people in the United States to organize others against the death penalty was Dr. Benjamin Rush (1747–1813), a Philadelphia physician and signer of the Declaration of Independence. In the late 18th century, Dr. Rush attracted the support of such prominent Americans as Benjamin Franklin and William Bradford, who was the Pennsylvania and later U.S. Attorney General. It was at Franklin’s home in Philadelphia that Rush became one of the first Americans to propose confinement in a “House of Reform” as an alternative to capital punishment. The houses of reform envisioned by Rush would be places where criminals could learn to be law-abiding citizens through moral education. At least in part because of the efforts of Rush and his colleagues, in 1790, the Walnut Street Jail in Philadelphia was converted into the world’s first penitentiary—an institution devoted primarily to reform.

Largely as a result of Bradford’s efforts, Pennsylvania became the first state in legal proceedings to consider degrees of murder based on culpability. Before this change, the death penalty was mandated for anyone convicted of murder (and many other crimes), regardless of circumstance. Pressure from opponents also caused Pennsylvania in 1794 to repeal the death penalty for all crimes except first-degree murder.

In 1830, Connecticut became the first state to ban public executions. Pennsylvania became the second state to do so in 1834. In both states, only a few authorized officials and the relatives of the condemned were allowed to attend. By 1860, all northern states and Delaware and Georgia in the South had shifted the site of executions from the public square to an enclosed jail yard controlled by the sheriff and deputies. By 1890, some states had moved executions to inside the jail or a prison building. At least three reasons have been given for this change in execution venue. First, many northern-state social elites began to view those who attended executions as contemptible “rabble out for a good time” and concluded that any educational value public hangings once had was being lost on the less respectable crowd. Second, execution attendees were increasingly sympathizing with the condemned prisoners, weakening the position of the state. Indeed, some of those who met their fate on the gallows became folk heroes. Third, increasingly being accepted was the belief that public executions were counterproductive because of the violence they caused. The last public execution was held in Galena, Missouri, in 1937.

In 1837, Tennessee became the first state to enact a discretionary death penalty statute for murder. All states before then had employed mandatory death penalty statutes that required anyone convicted of a designated capital crime to be sentenced to death. The reason for the change, at least at first and in the South, undoubtedly was to allow all-white juries to take race into account when deciding whether death was the appropriate penalty in a particular case. Between the Civil War and the end of the 19th century, at least 20 additional jurisdictions changed their death penalty laws from mandatory to discretionary ones. Illinois was the first northern state to do so in 1867; New York was the last state to make the change in 1963. The reason most northern states switched from mandatory to discretionary death penalty statutes, and another reason for southern states to do so, was to prevent jury nullification, which was becoming an increasing problem. Jury nullification refers to a jury’s knowing and deliberate refusal to apply the law because, in this case, a mandatory death sentence was considered contrary to the jury’s sense of justice, morality, or fairness. Discretionary death penalty statutes allowed juries the option of imposing a sentence of life in prison instead of death. (Read more about Death Qualification of Juries)

In 1846, the state of Michigan abolished the death penalty for all crimes, except treason, and replaced the penalty with life imprisonment. The law took effect the next year, making Michigan, for all intents and purposes, the first English-speaking jurisdiction in the world to abolish capital punishment. The first state to outlaw the death penalty for all crimes, including treason, was Rhode Island, in 1852; Wisconsin was the second state to do so a year later. Although no other states abolished the death penalty during this period, by 1860, no northern state punished by death any crime except murder and treason.

A major change took place in the legal jurisdiction of executions during the time of the Civil War. Before the war, all executions were conducted locally—generally in the jurisdiction in which the crime was committed—but on January 20, 1864, Sandy Kavanagh was executed at the Vermont State Prison. He was the first person executed under state, as opposed to local, authority. This shift in jurisdiction was not immediately adopted by other states. In the 1890s, about 90% of executions were imposed under local authority, but by the 1920s, about 90% were imposed under state authority. Today, all executions are imposed under state authority, except those conducted in Delaware and Montana and by the federal government and the military.

More capital offenders were executed during the 1930s than in any other decade in American history; the average was 167 executions per year. The most executions in any single year occurred in 1935 when 199 offenders were put to death. This was a dramatic reversal from earlier in the century when the number of executions fell from 161 in 1912 to 65 in 1919. The 65 executions in 1919 were the fewest in 50 years. No state abolished the death penalty between 1918 and 1957. In contrast, after World War II, most of the advanced Western European countries abolished the death penalty or severely restricted its use. Great Britain did not join them until 1969.

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