The History of the Death Penalty in the United States

Presented and analyzed on the basis of selected U.S. Supreme Court Cases

Term Paper (Advanced seminar), 2007

24 Pages, Grade: 1-




I.) Introduction to the topic
1. Basic ideas:
2. Facts and Figures:
3. History of the Death Penalty in the USA until the 1950s

II.) Selected Supreme Court Cases
1. Determining the Constitutionality of the Death Penalty
1.1. Challenging the Death Penalty in the 1960s
1.2. Suspending the Death Penalty
1.3. Reinstating the Death Penalty
2. Refining Death Penalty Laws
3. Limiting the Death Penalty
3.1. Death Penalty for rape is held unconstitutional
3.2. Further adjudications on the limitation of the death penalty
3.3. Mental illness and mental retardation
3.4. Race
3.5. Juveniles




Internet sources:


Electrocution, lethal injection, gas chamber, hanging, shooting, beheading or stoning are different ways or instruments to execute a person who is sentenced to death.

Death penalty or capital punishment means the intentional killing of a person who is guilty to have committed a certain crime. After a legal trial, the person is sentenced to death. The way by which the death is put into effect depends on the country and its laws.

Death penalty or capital punishment is a very controversial topic concerning political, judicial and moral issues.

This paper will be about the death penalty prior in the United States of America.

In part I, I will present some facts and figures as well as give a short introduction to death penalty in general. I think it will be also necessary to outline the history of the death penalty in the United States. I will give a short overview of the most important developments from colonial times until the 1950s.

The 1960s constituted a big challenge for the legality and constitutionality of the death penalty. That is why I will analyze this period in particular in Part II of this work. I will present selected Supreme Court Cases and their decisions. Thus, I will try to elaborate the judicial developments of the death penalty in the United States. Therefore, I will deal with cases regarding the constitutionality of the death penalty; furthermore with cases on death penalty laws and limitations of the death penalty.

I want to emphasize that I will concentrate primarily on the judicial aspects of this topic, I will not deal with moral or political issues, but they might be mentioned additionally.

By this means, I would like to examine how the death penalty is anchored in U.S. law and to find out which cases played an important role and contributed to this development. In so doing, I will draft a picture of the death penalty system in the United States.

I.) Introduction to the topic

1. Basic ideas:

The organization Amnesty International brought out the following facts and figures about Death Penalty in the world[1]:

Whereas about 129 countries in the world have now abolished the death penalty in law or practice, there are about 68 countries still retaining and using the death penalty. In 2005, for example, 94% of all executions took place in China, Saudi-Arabia, Iran and the USA.

During the last 300 years about 13000 people have been executed in the USA or rather in their former colonies.[2]

The USA belongs to those countries in the world, where the maximum penalty is the death penalty. Until 1976 the death penalty in the USA did – factually - not exist anymore. Subsequent developments such as fundamental decisions of the Supreme Court made it possible to reintroduce the death penalty in the US.[3]

The death penalty in the USA has a long tradition. It goes far back into history to colonial times and is primarily influenced by Great Britain, the mother colony.

The 8th amendment of the American Constitution stems originally from the English law. In England, “cruel and unusual punishment” was prohibited since 1689. This basic principle was transferred into the American law in 1776 (§9 of the Declaration of Rights of Virginia) and was later adopted in the Constitution of the USA.[4]

The death penalty in the USA is permitted under constitutional law. The 5th, the 8th as well as the 14th amendment are interpreted as permitting the death penalty.[5]

The 5th amendment says that no person shall be deprived of life, liberty, or property without due process of law. Thus, it is taken into account, that a person can be deprived of life, liberty or property with due process of law.[6]

The 8th amendment is the basis for the determination of what is defined by “cruel and unusual punishment”.[7]

The 14th amendment permits that also a State can deprive a person of life, liberty or property with due process of law.[8]

2. Facts and Figures:

The United States count 38 states (plus U.S. Government and U.S. Military) acknowledging and 12 states (plus District of Columbia) not acknowledging the imposition of the death penalty. 5 of the 38 states (Kansas, New Jersey, New Hampshire[9], South Dakota, New York plus U.S. Military) had no executions since 1976. Since 2004, the death penalty statute of New York is unconstitutional.[10]

The total number of executions in the U.S. since 1976 is 1062. Concerning the number of executions by state since 1976, Texas is the state with the most executions (with a total of 383, in 2006: 24 executions, in 2007: 4 executions).

37 of the 38 states plus the U.S. government use lethal injection as their primary method of execution. Nebraska is the only state using solely electrocution. Some states have other methods available.

Since 1973, over 120 people have been released from death row after evidence for their innocence was found.

The total number of death row inmates is 3344. (Date: October 1st, 2006) with California at the top with 657 death row inmates and New York at the bottom with one last death row candidate[11]

3. History of the Death Penalty in the USA until the 1950s

First death penalty laws are documented as far back in history as in the 18th century B.C.: the Code of King Hammaurabi of Babylon of the 18th century B.C. which already codified the death penalty for 25 different crimes.[12]

Later, in the 10th century A.D., hanging became the usual method to execute people in Great Britain. In the 16th century, other methods such as burning at stake, hanging or beheading became also very common. In the 17th century, about 222 crimes were outlawed with the death penalty in Britain. Later on, Britain reformed its death penalty laws. From 1823 to 1837 the 222 crimes which were outlawed with death penalty were reduced to about 120 crimes.

The Death Penalty in the U.S. was, as said before, influenced by Great Britain. The first recorded execution took place in Jamestown in 1608, only one year after the first settlement in the English colonies. Captain George Kendall was executed for being a spy for Spain. Death penalty laws varied from colony to colony.

During the colonial times, writings of European theorists (e.g. Montesquieu, Voltaire) raised questions about the institution of the death penalty. First attempted reforms of death penalty laws were made. Thomas Jefferson for example introduced a bill to revise the death penalty laws of Virginia by imposing the death penalty only for crimes of murder and treason. The bill was defeated by only one vote.

There came up the discussion of deterrence. Until then, death penalty was seen as a deterrent, but in fact, it was not a deterrent to certain crimes, it even increased criminal conduct. Pennsylvania became the first state which considered degrees of murder based on culpability. In 1794, Pennsylvania repealed the capital punishment for all crimes except first degree murder.

In the 19th century many other states followed the example of Pennsylvania and reduced the number of their capital crimes and built penitentiaries. Executions were moved away from the public eye and were carried out in correctional facilities.

By the end of the 19th century, many countries worldwide (Portugal, Netherlands, Brazil, etc.) abolished capital punishment for all crimes. In the USA, states such as Rhode Island and Wisconsin were under the first states which also abolished the death penalty. Nevertheless, most states held onto it.

After the Civil War, new developments concerning the death penalty appeared. At the end of the 19th century, the electric chair was introduced. In 1924, the use of lethal gas was introduced in the hope to find a more humane way to execute people. Therefore they constructed the gas chamber.

Between 1920 and 1940, death penalty was revived. To some extent it had to do with the writings of criminologists who argued for the use of the death penalty “as a necessary social measure”. In the 1930s was a great number of executions in the US, an average of 167 per year, which was a lot more than in other decades.

In the 1950s the public sentiment began to change again. Many nations in the world abolished or limited the capital punishment. In the US the number decreased radically.

II.) Selected Supreme Court Cases

1. Determining the Constitutionality of the Death Penalty

1.1. Challenging the Death Penalty in the 1960s

Before the 1960s, the 5th, the 8th and the 14th amendment were seen as permission for the use of the death penalty. But in the 1960s, capital punishment was seen more and more “cruel and unusual” and therefore it was declared unconstitutional under the 8th amendment.[13]

Trop v. Dulles, 356 U.S. 86 (1958)[14]

A very important role played the case of “Trop v. Dulles” which originally was a federal court case, but finally led to a 5/4 decision by the Supreme Court in 1958.

Albert Trop, a native-born U.S. citizen had served in the United States Army. He had escaped from an Army stockade in Casablanca, French-Morocco in 1944. The next day, he had surrendered and had been taken back to the base. Trop was convicted of desertion by the military court and was sentenced to 3 years at hard labor, forfeiture of pay and dishonorable discharge. Later on, in 1952, he wanted to apply for a passport but was denied. The background of this denial was the Nationality Act of 1940, which ruled that members of the military forces of the US who deserted would lose their citizenship.

Trop went to the court. After failing in the District Court and in the Second Circuit Court of Appeals, he appealed to the Supreme Court.

The Supreme Court finally decided that “denationalization as a punishment” would violate the 8th amendment as this would be

“[...] the total destruction of the individual’s status in organized society.” [15]



[2] This estimated number is based on the indications of Watt Espy, director of „Capital Punishment Research Project“ in Headland/Alabama. Other experts estimate 18000 to 20000 executions between 1622 and 1980 (compare: Amnesty International (1989), p. 18)

[3] compare: GiKS: Grasberger (1996), p.1

[4] compare: GiKS:Grasberger (1996), p.4

[5] compare: GiKS: Grasberger (1996), p. 4

[6] 5th amendment to the US Constitution ( )

[7] 8th amendment to the US Constitution ( )

[8] 14th amendment to the US Constitution ( )

[9] all facts and figures are taken from:

[10] see appendix 1


[12] (information taken from this page and summarized)



[15] Trop v. Dulles, 356 U.S. 86, 102 ( )

Excerpt out of 24 pages


The History of the Death Penalty in the United States
Presented and analyzed on the basis of selected U.S. Supreme Court Cases
University of Frankfurt (Main)  (Institut für England- und Amerikastudien)
Social Issues in U.S. Supreme Court History
Catalog Number
ISBN (eBook)
ISBN (Book)
File size
474 KB
History, Death, Penalty, United, States, Social, Issues, Supreme, Court, History
Quote paper
Jacqueline Herrmann (Author), 2007, The History of the Death Penalty in the United States, Munich, GRIN Verlag,


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