History of the Death Penalty
& Recent Developments

Moratorium on executions

By the end of the 1960s, all but 10 states had laws authorizing capital punishment, but strong pressure by forces opposed to the death penalty resulted in an unofficial moratorium on executions for several years, with the last execution during this period taking place in 1967. Prior to this, an average of 130 executions per year occurred.

Furman invalidates most death penalty laws

Legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court decision Furman v. Georgia, 408 U.S. 153 (1972), which struck down federal and state capital punishment laws permitting wide discretion in the application of the death penalty. Characterizing these laws as "arbitrary and capricious," the majority ruled that they constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and the due process guarantees of the Fourteenth Amendment. Only two of the justices concurring in the decision (Justices Brennan and Marshall) declared capital punishment to be unconstitutional in all instances, however; other concurrences by Justices Douglas, Stewart, and White focused on the abitrariness of the application of capital punishment, including the appearance of racial bias against black defendants. In all, nine separate opinions -- five invalidating existing laws and four arguing for their retention -- were written by the nine Supreme Court justices spelling out their different views on what constituted the "cruel and unusual punishment" prohibited by the Eighth Amendment.

New laws upheld

More than 600 death row inmates who had been sentenced to death between 1967 and 1972 had their death sentences lifted as a result of Furman, but the numbers quickly began to build up again as states enacted revised legislation tailored to satisfy the Supreme Court's objections to arbitrary imposition of death sentences. These laws were of two major types:
     The first type, providing for guided discretion, was upheld by the Supreme Court in three related cases: Gregg v. Georgia, 428 U.S. 153 (1976), Jurek v. Texas, 428 U.S. 262 (1976), and Proffitt v. Florida, 428 U.S. 242 (1976). The Georgia, Texas, and Florida statutes validated by the Supreme Court afforded sentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or "bifurcated," trials, involving in the first stage the determination of a defendant's guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing decision rested with the jury, and in Florida with the judge.
     Those laws which provided a mandatory death penalty for specific crimes, and allowing no judicial or jury discretion beyond the determination of guilt, were declared unconstitutional in Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976). These rulings led directly to the invalidation of mandatory death penalty statutes in 21 states, and resulted in the modification of the sentences of hundreds of offenders from death to life imprisonment.

Executions resume

The first execution under the new death penalty laws took place on January 17, 1977, when convicted murdered Gary Gilmore was executed by firing squad in Utah. Gilmore's was the first execution in the United States since 1967. Two prisoners were executed in 1979; one in 1981; two in 1982; and five in 1983. Executions increased dramatically in 1984, with 21 in that year, and there have been at least 10 executions in the U.S. every year since. There were 74 executions in 1997. From 1977 to 1997, a total of 432 executions took place. Of the executed prisoners during this period, 266 were white, 161 were black, and five were of other races. By the end of 1997, 38 states and the federal government had capital punishment law; 12 states (including Alaska) have no death penalty. (Bureau of Justice Statistics annual bulletins on capital punishment provide current information on U.S. jurisdictions which authorize the death penalty.) By the end of 1996, 3,219 prisoners were under sentence of death, including 3,208 in 34 states and 11 under federal jurisdiction. All were convicted of murder.

Supreme Court decisions refine death penalty laws

In 1977, the Supreme Court declared in Coker v. Georgia, 433 U.S. 584 (1977) that applying the death penalty in rape cases was unconstitutional because the sentence was disproportionate to the crime. Coker resulted in the removal of twenty inmates -- three whites and 17 blacks -- awaiting execution on rape convictions from death rows around the country.
     In Lockett v. Ohio, 438 U.S. 586 (1978), the high court forced a number of states to again revise their death penalty statutes by ruling that the sentencing authority in a capital case must consider every possible mitigating factor to the crime rather than limiting, as Ohio had, the mitigating factors that could be considered to a specific list. For additional Supreme Court decisions, see Selected Supreme Court Decisions, below.

Current Status

Since the 1976 Gregg decision upholding the constitutionality of Georgia's death penalty law, numerous states have reinstated capital punishment in their statutes. The most recent state to enact a death penalty law was New York in 1995. As of January 1998, 38 states and the federal government have capital punishment laws in effect. Alaska, eleven other states -- Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin -- and the District of Columbia do not have a death penalty. Sites providing information on the current status of the death penalty throughout the nation are available on the Death Penalty Statistics page.

Selected U.S. Supreme Court Decisions
See also the collection of historic capital punishment decisions from the Legal Information Institute at Cornell University. LII also provides death penalty cases since 1990 and U.S. Death Penalty Law Materials. Other resources on the Supreme Court are available through the Justice Center's Legal Research: U.S. Supreme Court and Courts & Judicial Process: U.S. Supreme Court links pages.

Determining the Constitutionality of the Death Penalty

• Furman v. Georgia, 408 U.S. 238 (1972): Death penalty under current statutes is "abitrary and capricious" and therefore unconstitutional under the Eighth and Fourteenth Amendments. Oral arguments to the case are available online (using RealAudio) from Oyez Oyez Oyez.
• Gregg v. Georgia, 428 U.S. 153 (1976): Reinstates the death penalty under a model of guided discretion. See also Jurek v. Texas 428 U.S. 262 (1976) and Proffitt v. Florida 428 U.S. 242 (1976).

Refining Death Penalty Laws

• Woodson v. North Carolina, 428 U.S. 280 (1976): Mandatory death penalty laws declared unconstitutional. See also Roberts v. Louisiana, 428 U.S. 325 (1976).
• Coker v. Georgia, 433 U.S. 584 (1977): Death penalty for the rape of adult women declared unconstitutional because the sentence was disproportionate to the crime. Twenty prisoners from around the country were removed from death row as a consequence of this decision.
• Lockett v. Ohio, 438 U.S. 586 (1978): Sentencing authorities must have the discretion to consider every possible mitigating factor, rather than being limited to a specific list of factors to consider. This decision resulted in the release of 99 prisoners from Ohio's death row. See also Bell v. Ohio, 438 U.S. 637 (1978).
• Godfrey v. Georgia, 446 U.S. 420 (1980): Sent back for retrial several cases on grounds of too broad and vague an application of the provision stipulating the death penalty if the offense was "outrageously or wantonly vile, horrible, or inhumane, in that it involved torture, depravity of mind, or an aggravated battery to the victim." The ruling did not affect the statute itself, but the court held that the relevant facts in Godfrey were not substantially different from other cases in which the provision was not applied.
• Beck v. Alabama, 447 U.S. 625 (1980): Struck a portion of Alabama's death penalty law that blocked juries from convicting defendants of an included lesser offense rather than the capital crime itself; juries were required to either convict a defendant of the capital crime or to acquit him.
• Adams v. Texas, 448 U.S. 38 (1980): Prospective jurors cannot be excluded from service in capital trials because they would be "affected" by the possibility of a capital sentence.
• Hopper v. Evans, 456 U.S. 605 (1982): Upheld the death sentence of a defendant convicted under the Alabama statute partially struck down in Beck v. Alabama. The court held that, since a lesser offense was not an issue, the law's failure to allow for it did not prejudice the case; i.e., the conviction of a capital prisoner tried under a partially flawed statute need not be reversed unless it was actually touched by the imperfection. Evans was executed on April 22, 1983.
• Enmund v. Florida, 458 U.S. 782 (1982): Struck down the death sentence of a defendant who had not intended, attempted, or actually killed the victim of a robbery in which he was an accomplice.
• Pulley v. Harris, 465 U.S. 37 (1984): Upheld the death penalty in a California case, holding that there was no constitutional requirement for a proportionality review -- that is, a review of sentences in comparable cases throughout a state to deterimine if similar cases are handled in a similar way -- though many state death penalty law provide for such a review.
• Ford v. Wainwright, 477 U.S. 399 (1986): Held that is is unconstitutional to execute a person who is insane.
• McCleskey v. Kemp, 481 U.S. 279 (1987): Rejected the claim that death penalty sentencing in Georgia was administered in a racially biased manner in violation of the Eighth and Fourteenth Amendments, despite statistical data on capital sentences in Georgia to which showed that black defendants convicted of killing white victims were more likely to be given the death sentence than other defendants. (See also Specific Issues: Racial Disparities.)
• Thompson v. Oklahoma, 487 U.S. 815 (1988): Ruled that youths younger than 16 years old at the time of their offense cannot be constitutionally executed. (See also Specific Issues: Juveniles.)
• Penry v. Lynaugh, 492 U.S. 302 (1989): Ruled that it is not categorically unconstitutional to execute a mentally retarded person found guilty of capital murder. Some states have enacted laws specifically excluding capital sentencing for persons determined to be mentally retarded. (See also Specific Issues: Mentally Retarded Persons.)
• Stanford v. Kentucky, 492 U.S. 361 (1989): Reaffirmed the court's opinion that it was not unconstitutional to execute youths at least 16 years old at the time of committing a capital offense. A number of states define minimum ages authorized for capital punishment. (See also Specific Issues: Juveniles.)

Recent Developments & Future of the Death Penalty
Information on the current status of the death penalty in the U.S. is available from a number of sites listed on the Death Penalty Statistics page. In addition, the sites below monitor and issue reports on changes in the death penalty in the U.S.

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
The Special Rapporteur is mandated by the U.N. Commission for Human Rights to address instances of executions that violate international standards regarding human rights and the right to life. See also The International Context: Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. The country reports listed below are excerpted from annual reports of the Special Rapporteur; complete citation information and links to the complete reports are provided on the individual pages.

• Country Report for the United States of America, 1992
• Country Report for the United States of America, 1993
• Country Report for the United States of America, 1994
• Country Report for the United States of America, 1995
• Country Report for the United States of America, 1996
• Country Report for the United States of America, 1997
• Country Report for the United States of America, 1998
• 1997 Mission to the United States of America: The Special Rapporteur, Mr. Bacre Waly Ndiaye, conducted a mission to the U.S. from 28 September to 8 October 1997. This is his report on the mission and its findings. During his mission, Mr. Ndiaye visited Washington, DC, and the states of New York, Florida, Texas, and California, and met with federal, state, and prison officials; death row inmates; capital defense attorneys; victims' families; experts on death penalty issues; and others concerned with the death penalty. Of particular concern to the Special Rapporteur were reports of discriminatory and arbitrary use of the death penalty; lack of adequate defense during trial and appeal procedures; execution of persons who were juveniles at the time of offense and mentally retarded persons; extension of the scope of the death penalty; and deaths in custody and deaths due to use of lethal force by law enforcement officials. Recommendations are included in the report.
• Call for a moratorium on executions in the U.S.: Press release, April 3, 1998.

Amnesty International
Amnesty International is a well-known international human rights organization based in London and issues annual reports on human rights issues throughout the world. It advocates for the abolition of the death penalty, and has an ongoing anti-death penalty campaign.

• United States of America: Developments on the Death Penalty During 1993: London: Amnesty International, 1994.
• Open Letter to the President on the Death Penalty: Letter to President Bill Clinton from Pierre Sané, Secretary General. London: Amnesty International, January 1994. In an open letter to President Bill Clinton, Amnesty International called on the U.S. Government to recognized its responsibility for ensuring equal protection of the law to all U.S. citizens by establishing a presidential commission on the death penalty and to establish a moratorium on executions until the commission reported its findings.
• "Amnesty International Urges Presidential Commission on Death Penalty": London: Amnesty International, 1994.
• United States of America: Developments on the Death Penalty During 1994: London: Amnesty International, 1995.
• "United States of America: Followup on Amnesty International's Open Letter to the President on the Death Penalty": London: Amnesty International, 1995. By the end of 1994, no substantive response to the January 1994 open letter had been received and new legislation widening the scope of the death penalty in the U.S. had been enacted.
• "United States of America: Possible Reinstatement of the Death Penalty in New York": London: Amnesty International, 1995.
• "United States of America: Reinstatement of the Death Penalty in New York": London: Amnesty International, May 1995. Governor George E. Pataki signed a bill reinstating the death penalty in New York on 7 March 1995, making it the 38th state in the U.S. to have a death penalty.
• United States of America: Developments on the Death Penalty During 1995: London: Amnesty International, February 1996.
• United States of America: Death Penalty Developments in 1996: London: Amnesty International, March 1997.
• Amnesty International: Publications on the United States of America

Death Penalty Information Center (DPIC)
DPIC is a non-profit organization providing analysis and information on issues concerning capital punishment. It advocates abolition of the death penalty.

• History of the Death Penalty
• What's New: Brief news items on the death penalty.
• The Death Penalty in 1998: Year End Report: Washington, DC: Death Penalty Information Center, December 1998.
• The Death Penalty in 1997: Year End Report: Washington, DC: Death Penalty Information Center, December 1997. Of particular note was the number of executions in Texas: 37 executions in 1997 as opposed to 3 executions in Texas in 1996. Also reports on national public opinion polls.
• 1996 Year End Report: A Summary of Important Events in the Death Penalty in the Past Year: Washington, DC: Death Penalty Information Center, December 1996.
• Federal Death Penalty: Basic information on federal death penalty statutes enacted since Furman and statistics.
• Public Opinion About the Death Penalty: Results of recent public opinion polls.
• Twenty Years of Capital Punishment: A Re-evaluation: by Richard C. Dieter. Washington, DC: Washington, DC: Death Penalty Information Center, June 1996. This review of the death penalty from an abolitionist viewpoint addresses issues such as racial disparities and other inequities, executions of juveniles, cost of capital cases, politicization of the issue, the risk of executing the innocent, and international developments.
• The Future of the Death Penalty in the U.S.: A Texas-Sized Crisis: By Richard C. Dieter. Washington, DC: Washington, DC: Death Penalty Information Center, 1994. Texas is the leader in the use of the death penalty in the U.S. Analysis of Texas' experience from an abolitionist viewpoint is a jumping-off point for discussing the implications to the nation as a whole of the possibility of official misconduct in death penalty cases, racism, and inequities in legal representation.

Historical Resources
Other resources on the history of the death penalty in the U.S. and in other nations.

• Torture and death penalty instruments: From the Middle Ages to the Industrial Era: Online version of an exhibition held from 1983 to 1986 in various European cities. Through Mexico's Conseja Nacional para Cultura y las Artes.

United States

• The Execution of Caleb Adams: This site chronicles the life, crime, trial, and execution by hanging of Caleb Adams, a nineteen-year-old convicted in 1803 of murdering a six-year-old boy.
• "Dirty Details: Executing U.S. Soldiers During World War II": by J. Robert Lilly. 28 November 1995; earlier draft presented at the annual meeting of the American Society of Criminology, Boston, November, 1995. Part of a long-term examination of the execution of U.S. soldiers during World War II, this paper describes the crimes, defendants, and victims for 18 military executions that took place in England, 1943-1945.
• "Executing U.S. Soldiers in England, WWII: The Power of Command Influence and Sexual Racism": by J. Robert Lilly and J. Michael Thompson. 31 August 1995. The Visiting Forces Act of 1942 permitted the American military during World War II to use capital punishment in England as an extension of discipline. The authors argue that the act's purpose was to control a perceived danger: the socializing of African American troops with British females, and the possible explosive violence between Caucasian and African American troops.

England

• Tyburn Tree: Public Executions in Early Modern England: Each of the three horizontal beams of Tyburn "Tree," in London, could hang up to eight people at once. The links page has links to other sites about executions in English cities.
• Tower of London Virtual Tour: "Founded nearly a millennium ago and expanded upon over the centuries since, the Tower of London has protected, housed, imprisoned and been for many the last sight they saw on Earth. It has been the seat of British government and the living quarters of monarchs...the site of renown political intrigue, and the repository of the Crown Jewels.... It has housed lions, bears, and (to this day) flightless ravens...not to mention notorious traitors and framed members of court, lords and ministers, clergymen and knights."
• Capital Punishment in Modern British Law and Culture: by T.P. Uschanov. Circa 1994. Provides a history of the death penalty and its abolition in the United Kingdom under the 1965 Murder Act, with a discussion of recent attempt to reintroduce the death penalty in Britain.