Recent Legal History of the Death Penalty in America

Anti-Death Penalty Groups Hold Demonstration Against Executions
Anti-Death Penalty Groups Hold Demonstration Against Executions. Alex Wong / Getty Images

The death penalty, also known as capital punishment, is the government-sanctioned execution of a person sentenced to death by a court of law as punishment for a crime. Crimes that can be punished by the death penalty are known as capital crimes and include serious offenses such as murder, aggravated rape, child rape, child sexual abuse, terrorism, treason, espionage, sedition, piracy, aircraft hijacking, drug trafficking and drug dealing, war crimes, crimes against humanity and genocide.

Currently, 56 countries, including the United States allow their courts to impose the death penalty, while 106 countries have enacted laws abolishing it completely. Eight countries sanction the death penalty in special circumstances such as war crimes, and 28 countries have abolished it in practice.

As in the United States, the death penalty is a matter of controversy. The United Nations has now adopted five non-binding resolutions calling for a global moratorium on the death penalty, calling for its eventual abolition worldwide. While most countries have abolished it, over 60% of the world’s population live countries where the death penalty is allowed. China is believed to execute more people than all other countries combined.

The Death Penalty in the United States

While the death penalty has been an integral part of the American judicial system since the colonial period, when a person could be executed for offenses like witchcraft or stealing grapes, the modern history of American execution has been shaped largely by political reaction to public opinion.

Between 1977 and 2017—the latest year available in U.S. Bureau of Justice Statistics data—34 states executed 1,462 people. The Texas state criminal correctional system accounts for 37% of all executions.

Voluntary Moratorium: 1967-1972

While all but 10 states allowed the death penalty in the late 1960s, and an average of 130 executions per year were being carried out, public opinion turned sharply against the death penalty. Several other nations had dropped the death penalty by the early 1960s and legal authorities in the U.S. were starting to question whether or not executions represented "cruel and unusual punishments" under the Eighth Amendment to the U.S. Constitution. Public support for the death penalty reached its lowest point in 1966, when a Gallup poll showed only 42% of Americans approved of the practice.

Between 1967 and 1972, the U.S. observed what amounted to a voluntary moratorium on executions as the U.S. Supreme Court wrestled with the issue. In several cases not directly testing its constitutionality, the Supreme Court modified the application and administration of the death penalty. The most significant of these cases dealt with juries in capital cases. In a 1971 case, the Supreme Court upheld the unrestricted right of juries to both determine guilt or innocence of the accused and to impose the death penalty in a single trial.

Supreme Court Overturns Most Death Penalty Laws

In the 1972 case of Furman v. Georgia, the Supreme Court issued a 5-4 decision effectively striking down most federal and state death penalty laws finding them "arbitrary and capricious." The court held that the death penalty laws, as written, violated the "cruel and unusual punishment" provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment.

As a result of Furman v. Georgia, more than 600 prisoners who had been sentenced to death between 1967 and 1972 had their death sentences commuted. 

Supreme Court Upholds New Death Penalty Laws

The Supreme Court's decision in Furman v. Georgia did not rule the death penalty itself to be unconstitutional, only the specific laws by which it was applied. Thus, the states quickly began to write new death penalty laws designed to comply with the court's ruling.

The first of the new death penalty laws created by the states of Texas, Florida and Georgia gave the courts wider discretion in applying the death penalty for specific crimes and provided for the current "bifurcated" trial system, in which a first trial determines guilt or innocence and a second trial determines punishment. The Texas and Georgia laws allowed the jury to decide punishment, while Florida's law left the punishment up to the trial judge.

In five related cases, the Supreme Court upheld various aspects of the new death penalty laws. These cases were:

Gregg v. Georgia, 428 U.S. 153 (1976)
Jurek v. Texas, 428 U.S. 262 (1976)
Proffitt v. Florida, 428 U.S. 242 (1976)
Woodson v. North Carolina, 428 U.S. 280 (1976)
Roberts v. Louisiana, 428 U.S. 325 (1976)

As a result of these decisions, 21 states threw out their old mandatory death penalty laws and hundreds of death row prisoners had their sentences changed to life in prison.

Execution Resumes

On January 17, 1977, convicted murderer Gary Gilmore told a Utah firing squad, "Let's do it!" and became the first prisoner since 1976 executed under the new death penalty laws. A total of 85 prisoners - 83 men and two women - in 14 U.S. states were executed during 2000.

Current Status of the Death Penalty

A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center. But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more. That includes three states—California, Oregon, and Pennsylvania—where governors have imposed formal moratoriums on executions.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004).

Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to Bureau of Justice Statistics. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed.

Even as the overall number of executions in the U.S. fell to a 29-year low in 2020, the federal government ramped up its use of the death penalty. The Trump administration executed 10 prisoners in 2020 and another three in January 2021; before 2020, the federal government had carried out a total of three executions since 1976.

The Biden administration has so far taken a different approach. In July 2021, Attorney General Merrick Garland ordered a halt in federal executions while the Justice Department reviews its policies and procedures.

Public Opinion on the Death Penalty

According to a series of Pew Research Center polls conducted in April 2021, six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, while 64% say the death penalty is morally justified when someone commits a crime like murder.

At the same time, however, a majority of Americans have concerns about the fairness of the death penalty and whether it serves as a deterrent against serious crime. About 56% of U.S. adults say Black people are more likely than White people to be sentenced to death for committing similar serious crimes. Another 63% say the death penalty does not deter people from committing serious crimes, and 78% (nearly eight-in-ten) express concern that there is some risk of an innocent person being executed.

Phone polls have shown a long-term decline in public support for the death penalty. In phone surveys conducted by Pew Research Center between 1996 and 2020, the share of U.S. adults who favor the death penalty fell from 78% to 52%, while the share of Americans expressing opposition rose from 18% to 44%. Phone surveys conducted by Gallup found a similar decrease in support for capital punishment during this period.

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Longley, Robert. "Recent Legal History of the Death Penalty in America." ThoughtCo, Jul. 29, 2022, Longley, Robert. (2022, July 29). Recent Legal History of the Death Penalty in America. Retrieved from Longley, Robert. "Recent Legal History of the Death Penalty in America." ThoughtCo. (accessed March 31, 2023).