Though the death penalty has always been present in American history, the prevalence, methods, and support for the death penalty has changed over time. In 1791, the Framers of the United States Constitution created the Bill of Rights, intended to protect the civil liberties of citizens in the new nation[i]. Specifically, the 8th Amendment declares that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”[ii]. Yet despite this amendment, the death penalty continued to be used in the United States justice system as it had been under British colonial rule. At the time, the Founders were focused on the ethical principle of utilitarianism, making their decision based on what choice provides the most good to the most people. The death penalty was intended to deter citizens from committing crimes, punishing those who commit capital crimes to discourage other citizens from doing the same thing, in order to maintain structure within the country and protect public safety. At the end of the 19th century, two Supreme Court cases Wilkerson v. Utah (1879) and in re Kemmler (1890) upheld the constitutionality of death by firing squad and death by electrocution respectively[iii]. While the Founders of the Constitution focused on utilitarianism, by 1917 nine states abolish the death penalty for all crimes, demonstrating a commitment to the ethical principle of deontology. Individual states focused on respect for humans as ends rather than means, which made it difficult for them to justify the deterrent effect of the death penalty.
Hanging is one of the oldest components of the United States criminal justice system, as the earliest form of the death penalty used universally in the 19th century. Hangings were accompanied by a range of issues, including intense pain and failure to kill; however, these consequences were accepted as unfortunate, yet inevitable accompaniments to execution. As the decade progressed, the pain associated with hangings became increasingly disturbing to the audience and the methods’ issues became more and more prevalent. The invention of anesthesia in the 19th century allowed the minimization of pain; however, it never became widely used[iv]. After hundreds of years of hangings, Americans began to search for a more humane method.
As electricity was introduced into homes and workplaces in the late 1800s, the number of electricity caused deaths were on the rise. At the time, electricity was a new technology that’s dangers were unknown. As the hazards of electricity became clear, it was adapted for use in the criminal justice system. New York’s death penalty commission even consulted with Thomas Edison, who opposed the death penalty, but advised that electricity would be the fastest and least painful method for execution[v]. Ohio State Penitentiary guards used electricity as a form of punishment, creating a complete circuit with a tub of water, the inmate, and a battery[vi]. This led to the creation of the electric chair, officially introduced in 1889. New York became the first state to adopt this method and abandon hanging, and by 1950, 26 states had followed[vii]. This method proved to be very effective in pain delivery, and the medical opinion was that it was fast, painless, and humane. It was later discovered that the cause of death from electrocution is ventricular fibrillation, where the heart is prevented from pumping blood through uncontrolled contractions of the heart muscle[viii]. This method portrayed the high levels of scientific advancement at the time, and it was deemed superior to hanging. However, electrocution also had its faults, including causing deep burns on the inmates, and the mouth strap causing partial asphyxiation[ix]. This prompted the popularity of other methods.
There has been a lot of skepticism about the death penalty in the general public and through political figures. One of the first news stories about the death penalty happened in July of 1895 where they were writing about a doctor who received the death penalty. In this article, the author describes the execution very explicitly, writing that during the electrocution, “two contacts were made but all physicians and electricians claim that the second contact was merely precautionary”[x]. This explicit use of language surrounding the death does not persist in the media or culture as the death penalty becomes older and more debated publicly. Because of the smaller role of media during this time period, it is much more difficult to gauge the culture surrounding the death penalty during this time.
As American society progressed, there were multiple court cases that challenged the constitutionality of the death penalty, causing the Supreme Court to question the ethics of the 8th Amendment. Additionally, the 14th Amendment came into the equation. The 14th Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” [xi]. Furman v. Georgia (1972) involved a man who accidentally shot and killed the resident of a home after running away during an armed burglary. The Justices of the Court established no majority opinion, but decided 5-4 that the death penalty was cruel and unusual in this case, leading all death sentences pending at the time to be reduced to life imprisonments [xii]. However, the Supreme Court case of Gregg v. Georgia (1976) called the ethics of the death penalty into question again, arguing it violated both the 8th and 14th amendments. The case involved a person who was found guilty of armed robbery and murder by a jury and sentenced to death. The Court upheld this decision because Georgia created a new law that established the “bifurcated trial” which consisted of a guilt and penalty phase where lawyers presented both mitigating and aggravating factors for any potential death penalty [xiii]. The Court concluded that Georgia’s use of separate guilt and penalty trials demonstrate the state’s careful and judicious use of the death penalty, focusing on the nature of crime and the characteristics of the individual. As the nation’s justice system progressed, the Supreme Court upheld the ethics of the death penalty, focusing on beneficence, doing what is right, as well as justice, carrying out what people deserve.
As the Supreme Court transformed their view on the validity of the death penalty, there were also new methods of carrying out capital punishment. The gas chamber was first introduced in Nevada in 1921. The process takes place in an airtight gas chamber where the inmate is strapped to a chair over a container of sulfuric acid. The executioner then releases crystals of sodium cyanide into the container, which causes a chemical reaction that releases hydrogen cyanide gas, which the inmate inhales[xiv]. A doctor stands outside the chamber, in order to pronounce the inmate dead by using a long stethoscope. The cause of death of this method is hypoxia, the loss of oxygen to the brain [xv]. This method is still legal in five states as an alternative method to lethal injection[xvi].
In the US today, lethal injection is the most common method of execution. The turn to this method reflects the United States growing reliance on medicine to eliminate the death penalty. Even though this is the most modern form of execution, it is still viewed as inhumane and unconstitutional. Most lethal injection process involves three drugs: sodium thiopental, Pancuronium bromide, and potassium chloride. These drugs are used respectively as an anesthetic to cause unconsciousness, a muscle relaxant that paralyzes the diaphragm and lungs, and a toxin that induces cardiac arrest [xvii]. However, it is possible for the initial anesthetic that causes the inmate to lose consciousness to fail, and for the muscle relaxant to mask the indications of consciousness in the inmate, leaving them in excruciating pain. If one’s veins could not be located, executioners would implement an intramuscular injection that is much slower and more painful than the usual delivery. Another issue present in the medical field is that lack of medical justification for lethal injection, yet a physician’s assistance is critical for safe administration. If the offender doesn’t want to deal with these risks, secondary options are available in seven of the death penalty states, including electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad[xviii]. Even though the science has improved to be able to facilitate and make the death penalty process more humane, its success is still questioned, leaving the search for a medically humane execution method ongoing.
As society progressed, Americans in the twentieth century focused on wanting “the death penalty applied more often and more quickly” [xix]. This public request to ensure that the death penalty was being used in an efficient way instead of something that was time consuming and not necessarily a guaranteed death. It seemed that during this time period “the death penalty seemed to be finally achieving what it was designed to do”, after years of issues and debate about the ethics[xx]. This change was due to a change in the methods of administration and an upgrade in technology in the methods of death.
People were also very concerned with the methods of death. The culture surrounding the death penalty and public opinion tended to be scared of new methods and scary technology. For example, a news article from 1982 talks about a fear of the “hi-tech death penalty of the future”, comparing the methods of lethal injection to methods in the “Nazi death camp experiments” [xxi]. These concerns stem from World War II and people’s desire for the United States to not “murder” it’s criminals and there were many protests surrounding these issues . This issue of the public opinion about the method of injection lasted into the 1990’s. One example is an article written about a “switch to using lethal injection when imposing the death penalty” instead of more violent methods[xxii]. This article discusses the first execution in California following a break between 1967 and 1992. Essentially, the media was bringing back death penalty to the public eye and calling attention to the technology used, because “1920s technology didn’t always work as advertised” [xxiii]. As the technology improved, people became more approving of the death penalty being used because it seemed more ethically sound and humane, as people wanted in the United States culture.
As American society became more skeptical of the death penalty, the Supreme Court in recent cases has issued more liberal rulings protecting different groups of people from the use of capital punishment. In the 2000s, the Court issued several rulings that promoted an “evolving standard of decency”[xxiv]. Atkins v. Virginia (2002) dealt with a mentally retarded man who abducted and murdered a US airman, and Roper v. Simmons (2005) involved a seventeen-year-old who broke into a woman’s house and murdered her. In both of these cases, the Court concluded that executing mentally retarded people or juveniles is a violation of the 8th amendment[xxv]. The Court’s decision relied on the fact that executing juveniles and mentally retarded people will not advance the deterrent purpose of the 8th Amendment. Further, while capital punishment was previously used for any crimes the state deemed deserving of the death penalty, the Court concluded in Kennedy v. Louisiana (2008) that the 8th Amendment protects against disproportionate punishments, reserving capital punishment for murder[xxvi]. The Supreme Court’s rulings in America’s recent history show that ethically the Court is grappling with the idea of justice, giving a person what is due, owed, or deserved: finding that juveniles, mentally retarded people, and those who don’t commit capital crimes are not deserving of the death penalty.
The election of George Bush in 2000 was an affirmation that the people in the United States supported the death penalty because as the governor “had presided over 152 executions, the most of any modern governor at the time” [xxvii]. This shows that the culture had shifted and now a large majority of the United States supported the death penalty, as proven through the election of George Bush. In the years following this election, while people still supported the death penalty as a punishment for death, but when compared to a sentence of life without parole it was a pretty even split of 48% to 47%, with more people favoring life without parole [xxviii]. While the death penalty is still widely accepted as a form of punishment, just as many people believe that life without parole is a fair punishment. However, “the public retains some hesitation about [life without parole] because of the high costs of keeping someone in prison for life”, despite the fact that executions can be even more costly than life in prison [xxix]. The public may sometimes be slightly misinformed about the cost and methods of the death penalty; however, public support continues to be positive in regards to the culture surrounding the death penalty.
The Death Penalty was instituted in American society as a way to deter the public from committing crimes. Throughout this nation’s history, the methods and frequency of use of the death penalty has changed due to developments in technology, several rulings by the Supreme Court, and shifts in public opinion.
[i] Epstein , Lee, and Thomas Walker. 2016. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: CQ Press.
[ii] Annaliese, F. F. (1999). Louisiana’s newest capital crime: The death penalty for child rape. Journal of Criminal Law & Criminology, 89(2), 717-750. doi:http://dx.doi.org.libproxy.lib.unc.edu/10.2307/1144141
[iii] Garland, D. (2011). The problem of the body in modern state punishment. Social Research, 78(3), 767-798. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/940916022?accountid=14244
[iv] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
[v] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
[vi] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
[vii] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.
[viii] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
[ix] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
[x] “Dr. Buchanan Executed The Celebrated Poisoner Pays the Penalty for His Crime. Death Results Instantly.” Idaho Statesman (Boise, Idaho) 31, July 2, 1895: . NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=image/v2:114CF38DF1A90B10@EANX-114D741DCBB373F0@2413377-114D741DD7256A40@0-114D741EF3FA2ED0@Dr.+Buchanan+Executed+The+Celebrated+Poisoner+Pays+the+Penalty+for+His+Crime.+Death+Results+Instantly.
[xi] James, Joseph Bliss. The Framing of the Fourteenth Amendment. Urbana: University of illinois Press, 1956.
[xii] Dukes, J. A., Sr. (2008). The effect of furman v. georgia on state death penalty legislation (Order No. 3339058). Available from Political Science Database. (275681992). Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/275681992?accountid=14244
[xiii] Berry,William W., I.,II. (2011). REPUDIATING DEATH. Journal of Criminal Law & Criminology, 101(2), 441-492. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/867686956?accountid=14244
[xv] “Firing Squad and Gas Chamber Closer to Reality in Three States.” NBCNews.com. February 12, 2015. https://www.nbcnews.com/storyline/lethal-injection/firing-squad-gas-chamber-closer-reality-three-states-n305266.
[xvi] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.
[xvii] Lanier, Charles S., William J. Bowers, and James R. Acker. The Future of America’s Death Penalty: An Agenda for the next Generation of Capital Punishment Research. Durham, NC: Carolina Academic Press, 2009.
[xviii] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.
[xix] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.
[xx] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.
[xxi] Taylor, Gary. “Protesters fear injection the ‘hi-tech’ death penalty of future.” UPI NewsTrack, December 8, 1982. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/15670597B3111AD8.
[xxii] “SWITCH TO USING LETHAL INJECTION WHEN IMPOSING THE DEATH PENALTY.” Sun-Sentinel, April 22, 1992: 14A. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/0EB5D2ED847B2357.
[xxiii] “SWITCH TO USING LETHAL INJECTION WHEN IMPOSING THE DEATH PENALTY.” Sun-Sentinel, April 22, 1992: 14A. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/0EB5D2ED847B2357.
[xxiv] Paul, S. (2015). TOWARD A UNIFORM STANDARD OF DECENCY: CONNECTICUT’S PROSPECTIVE CAPITAL PUNISHMENT REPEAL AND THE EIGHTH AMENDMENT.Northwestern Journal of Law and Social Policy, 10(1), 280-318. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/1667167638?accountid=14244
[xxv] Epstein , Lee, and Thomas Walker. 2016. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: CQ Press.
[xxvi] Sheley, E. (2008, Mar). The supreme penalty. The Weekly Standard, 13, 17-19. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/232994455?accountid=14244
[xxvii] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.
[xxviii] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.
[xxix] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.
By: Blythe Turner, Megan Essig, Elizabeth Kupec