History of the Death Penalty & Recent Developments, Essay Example

Introduction

Laws of every country are usually based on logic and justice, thus referring to morality, traditions, and behavioral norms. Though every country and every nation has different traditions of justice (and criminal justice, too) there are certain crimes that deserve extreme penalty. And capital punishment in the United States of America is death penalty. Its history, explanation, crimes punishable and means of administration will be discussed in this paper.

History of Death Penalty in U.S.A. and Other Countries

In the world judicial practice death penalty was rather common in old times. Despite the fact that justice represented in some way or other existed since times immemorial, death penalty as capital punishment was introduced by Sumer king Hammurabi, and since then it was present in most judicial systems.

Death Penalty Information Center provides brief history of death penalty. In the eighteenth century B.C. in the Code of King Hammurabi of Babylon there were 25 crimes punishable by capital punishment. It was also present in Hittite Code in the fourteenth century B.C., in the Draconian Code of Athens in the seventh century B.C. (where all crimes were punishable by death), and in the Roman Law of the Twelve Tablets in the fifth century B.C. Then it was administrated by means of “crucifixion, drowning, beating to death, burning alive, and impalement” (DPIC, 2009).

In Britain, hanging was the most common way of execution in the tenth century A.D. Later, William the Conqueror allowed executions only during war. But it was in the time of Henry VIII when about 72,000 were executed despite previous bans. Then executioners used “boiling, burning at the stake, hanging, beheading, drawing and quartering” (DPIC, 2009) to carry out a death sentence. Unlike modern cases, not only was death a punishment for treason and murder, but for marrying a Jew or not confessing to a crime (DPIC, 2009).

In Britain, the number of the crimes that were considered capital increased since then and by the eighteenth century there were 222 crimes punishable by death. Those included stealth, cutting down a tree, and robbing a rabbit warren. Many juries and judges did not convict the defendants to death even if the laws were pro in case they thought that defendant’s guilt was not serious enough. Such tendency led to reforms in death penalty statutes in Britain. By 1837, the capital punishment was set for some more than one hundred instead of 222 crimes. (DPIC, 2009)

Britain was the country that influenced judicial system America, not least its capital punishments part. Europeans that moved to America brought their traditions there, and death penalty travelled with them as one of the forms of justice (DPIC, 2009). The earliest record of death penalty carried out in U. S. dates back the seventeenth century:  then captain George Kendall “was shot by a firing squad in Jamestown in December 1607” (Green, 2005) for spreading discord and mutiny (this death is frequently referred to as punishment for spying for Spain). And in 1612 sir Thomas Dale, who was Virginia Governor, enacted the “Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians” (DPIC, 2009).

In different states laws have always differed. In colonial times laws also were different, as well as times of their introduction. For example, DPIC reports that the “Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later” (DPIC, 2009). It was 1665 when the New York Colony introduced the Duke’s Laws that punished by death beating mother or father, or denying the ‘true God’ (DPIC, 2009).

In colonial times, executions were seen as a way to improve morality of townspeople and children. Convict was displayed at the gallows. The latter consisted of high “wooden platform with beams for a rope and a trap door that would be opened underneath the condemned” (ADP, 2009). Many citizens gathered to watch this ‘highly educative’ performance; priests preached there as their sermons were more impressive for attendants and hopefully salvatory for the soul of condemned.

Also, there were crimes that had been punished by death until after some events when relevant laws were changed and capital punishment was cancelled. One of the most infamous cases was one with the crime of adultery. In colonies they used public whipping, standing at the gallows, and after it life-long wearing of the letter A on the clothes of criminal after The Scarlet Letter (ADP, 2009).

After colonial times an abolitionist movement started. European philosophers, such as Montesquieu, Voltaire, Bentham, John Bellers, and John Howard, gave rise to it; their ideas spread quickly and reached new world. The greatest impact on abolitionist movement had Cesare Beccaria’s essay “On Crimes and Punishment” written in 1767. It read that the state has no rights to take its citizen’s lives. This work gave the world abolitionists the new lease of life; in Austria and Tuscany death penalty was finally abolished (DPIC, 2009).

In 1777, there was an attempt to change the death penalty laws in America. It happened in Virginia when Thomas Jefferson proposed a bill that limited capital punishment use to the crimes of murder and treason. This bill was defeated by only one vote (DPIC, 2009; ADP, 2009).

The Bill of Rights was written in 1790, introducing ten Amendments to the Constitution. The 8th Amendment would apply to the death penalty laws; it allowed “no cruel and unusual punishment” (ADP, 2009).

Dr. Benjamin Rush, a founder of the Pennsylvania Prison Society, challenged the common assumption that the death penalty is a deterrent. He insisted that capital punishment existence increased crime level. His ideas were shared by Benjamin Franklin and William Bradford. Bradford, who would later become the U.S. Attorney General, introduced in Pennsylvania laws that took into account degrees of murder based on culpability. In 1794, in Pennsylvania the death penalty was decided to apply only to first degree murder (DPIC, 2009).

In the 1800’s many states reduced the number of capital punishments and built state prisons. Rather lately (only in 1834) Pennsylvania made executions non-public. In 1846, Michigan became the first state that left only treason to be punished by death. In 1853, Rhode Island and Wisconsin abolished the death penalty for all crimes (DPIC, 2009, ADP, 2009).

Abolishing death penalty was not common sight. There were states that enhanced their death penalty statutes by adding crimes committed by slaves. In 1838, Tennessee made a first step towards reforming capital punishment by making death penalty decisions discretionary instead of mandatory ones (ADP, 2009). Alabama followed suit. It was seen as a great achievement of abolitionists because “prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances” (DPIC, 2009). Nearly all mandatory capital punishment laws had been abolished by 1963.

In 1890’s the electric chair was introduced. It quickly became the most popular way to execute the condemned as it was considered to be more humane than other methods.

Though many states abolished capital punishment in the end of the nineteenth century, a “progressive period” began in the twentieth century. This period meant a turn in the death penalty legislation. “From 1907 to 1917, six states abolished the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official” (DPIC, 2009). However, after America’s entering the World War I five of the six aforementioned states reinstated their death penalty by 1920 (DPIC, 2009).

In 1924, electric chair was replaced by deadly gas, cyanide. In Nevada Gee Jon was executed by lethal gas as the state considered it to be more humane.

From the 1920s to the 1940s there was much ambiguity about death penalty. Some criminologists claimed that death penalty was an essential social measure (ADP, 2009). In the 1930s the rates of executions were the highest in the history of many states and America in the whole.

Since the 1950s to 1960s, public sentiment led to increasing abolition of death penalty. Number of executions dropped and public support lowered. In 1966, public support for the death penalty reached the lowest level ever – 42% (DPIC, 2009).

In 1958, the constitutionality of the death punishment was challenged. As Anti Death Penalty claim, the Supreme Court had decided in Trop v. Dulles (356 U.S. 86) that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.” This though led abolitionists to the conclusion that “standard of decency” cannot include death penalty (ADP, 2009)

Ten years later in Witherspoon v. Illinois (391 U.S. 510) the Supreme Court stated that juror’s personal beliefs pro or against death penalty could not prevent him from being a jury on the death penalty case. The only reason to deny this right is juror’s inability to make impartial decisions irrespective of his or her own beliefs (ADP, 2009).

The case of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U.S. 238)) was the first attempt to prove that capital punishment laws were unconstitutional. Furman, claimed that capital cases were decided arbitrarily. “In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia’s death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing”, states Death Penalty Information Center (2009). This statute violated the Eighth Amendment. This decision resulted in reformation of about 40 statutes that were no longer valid. Many stated several years later tried to limit jury’s and judge’s discretion by providing sentencing guidelines like introduction of aggravating and mitigating factors in death cases. These guided discretion statutes were approved in 1976 by the Supreme Court in the collectively known Gregg decision.

The Gregg decision reinstated the death penalty in several states by admitting them to be constitutional. Capital punishment was also considered to be constitutional. Except these reforms, there were three others: one introducing two-level trials, one introducing automatic appellation review, and one that allowed judges to compare their cases to other with similar circumstances. After that decision many states rewrote their death penalty statutes, though federal law did not insisted on it. Several states abolished capital punishment (ADP, 2009, DPIC, 2009).

Why Death Penalty Exists

In an attempt to answer the question ‘Why there is a death penalty in U.S.A.?’ one should understand that it is not a question like ‘Why do two lines cross?’ There are no axioms and strict rules, just instinct, faith and sensitivity that matter. This issue defies mathematical logic; it is purely and simply a moral question.

Bruce Fein in his article ‘The Death Penalty, But Sparingly’ tried to answer this question. Most of his arguments are written to dissuade abolitionists from their point of view, but they surely contain undeniable truth.

First of all, it should be decided what crimes should be punished by death. We live in the civilized society where nobody will ever approve capital punishment for minor theft or unintended injury. Thorough examination of all states’ punishable by death crimes shows that there are mostly first-degree murder, treason, and some more heinous crimes with aggravating factors. Does a person that tortured and raped his victim deserve life? Do those who initiated genocide of thousands of people and made hundreds of thousands orphans, widows and mothers suffer forever through the loss of their spouses, siblings, children deserve amnesty? Perhaps, any normal person who has mere crumbs of humanity would answer ‘no’. And that is the most obvious reason to introduce death penalty.
“The crimes of rape, torture, treason, kidnapping, murder, larceny, and perjury pivot on a moral code that escapes apodictic proof by expert testimony”, claims Fein (2001). And if we turn the blind eye on those who committed them, we will sink into anarchy and in the long run fall. And if lifetime sentence seems too light, death penalty is an appropriate instrument of justice.

In order to respond fully to the opinion of the American nation, surveys and polls are conducted regularly to ensure that majority of American people support death penalty. Though in 1966 majority was against capital punishment, its opinion changed quickly when the crime rated soared. Nowadays majority of Americans support death penalty, though this proportion changes. More and more people find it reasonable to oppose death penalty. But as historical examples show, the crime rate growth will invariably lead to increase in quantity of death penalty supporters.

The death penalty may be seen as procedure that humiliated human dignity and denies his human rights. But in fact, it does honor human dignity “by treating the defendant as a free moral actor able to control his own destiny for good or for ill” (Fein, 2001). For example, those who admit their guilt have mitigating factor. And capital punishment celebrates the dignity of the human beings whose lives were ended by the defendant’s actions (Fein, 2001). Nothing less can satisfactorily celebrate the sacredness of blameless life.

Some opponents of death penalty may claim that innocent people may suffer if the jurors and judge make the wrong decision. But current laws protect defendants by numerous guidelines and limitations of capital punishment. “It might be said that since capital punishment is irrevocable, an additional safeguard against convicting the innocent is justified: namely, proof beyond a slight doubt, not just beyond a reasonable doubt. But that contention militates in favor of reform, not abolition” claims Fein and proposes reforms. Why not, if the judicial system will be improved?

For superficial inquiry it may look that state has the right to take its citizen’s lives, and this is unconstitutional. But further investigation can prove that not only is it constitutional, but also far less harmful that other state rights.

For example, conscription and war involve government actions that can lead to the extinguishment of human life. Those who may die as a result of conscription will not be guilty. He even may be hailed and remembered, because such soldiers die for faith, liberty and their state. They protect safety of the country, of the constitution, and thus their deaths are justified. When it comes to defendants who represent threat to society, say, serial maniacs, the same laws may be applied – their death mitigates the danger that normal members of society are exposed to.

Though all arguments above are reasonable, it cannot be denied that death punishment is an awesome thing. Its application must be severely limited, just like now. As expressed in Fein’s article? “It should be applied sparingly to the most egregious and shocking crimes committed by the most unrepentant and callous offenders” (2001)

Death Penalty in U.S.A.

Now in America there are 35 states with death penalty and 15 without it (Alaska, Massachusetts, New Mexico, Vermont, Hawaii, Michigan, New York, West Virginia, District of Columbia, Iowa, Minnesota, North Dakota, Wisconsin, Maine, New Jersey, Rhode Island) (DPIC, 2009). During last 33 years 1176 people were executed, with the peak in 1999 (98). Current trends show slow decrease in the executions quantity per year.

Death penalty is a capital punishment and the list of crimes that are punishable by it is rather limited. Namely there are the next crimes for different states: intentional murder with varying aggravating factors; first-degree murder accompanied by varying aggravating factors; treason; felony murder; capital drug trafficking; capital sexual battery; kidnapping with bodily injury or ransom when the victim dies; aircraft hijacking; perjury resulting in death; aggravated rape of victim under age 13.

Aggravating factors are usually nearly the same, with Missouri, Pennsylvania, and Tennessee having the biggest lists (According to DPIC): the murder was especially heinous, atrocious, cruel or depraved (or involved torture); the capital offense was committed during the commission of, attempt of, or escape from a felony; the defendant committed ‘mass murder’ (the murder of three or more persons); the defendant knowingly created a grave risk of death for one or more persons in addition to the victim of the offense; the murder was committed for pecuniary gain or pursuant to an agreement that the defendant would receive something of value; the defendant caused or directed another to commit murder; the defendant has been convicted of, or committed, a prior murder, a felony involving violence, or other serious felony; the murder was committed against a person less than (12-15) years of age and then defendant was 18 years of age or older; the victim was a government employee; the defendant knowingly mutilated the body of the victim after death; the murder was committed in the course of an act of terrorism; the victim or the murder was (65-70) years of age or older; and some other aggravating factors (2009).

Now death penalty is administered by means of lethal injection (except Nebraska – electric chair), and it is performed in a way that mitigates pain and any other way of inhumanity. Usually the next drugs are used for this procedure: sodium pentothal (an anesthetic), pancuronium bromide (a paralytic agent), and potassium chloride (stops the heart and causes death) (DPIC, 2009). These drugs are injected in this sequence in order to minimize pain.

Conclusion

Taking into consideration that death penalty remains to be a highly controversial issue it can be said that the official discussion of this issue is not over yet. Probably, this is a discussion that will last forever. But the fact is that America in general supports death penalty cannot be denied, and it is one of the most notable features of our judicial system.

Historically there have been a lot of arguments and misunderstandings concerning death as a way to provide justice, not least those with the Eighth Amendment. But in the long run a reasonable and understandable system was created, and it corresponds to the current world standards of justice – and the constitution of the United States.

Works Cited

Green, Melissa S. ( 02-May-2005 ). “History of the Death Penalty & Recent Developments.” Focus on the Death Penalty . Justice Center, University of Alaska Anchorage.<http://justice.uaa.alaska.edu/death/history.html> (18 October 2009).

Fein, Bruce. “The Death Penalty, But Sparingly” Human Rights: Journal of the Section of Individual Rights & Responsibilities. (2001) 28.3 (Database: Academic Search Premier)

Anti Death Penalty “History” 2009. 19 October 2009 <http://www.antideathpenalty.org/history.html>

“History of the Death Penalty” Death Penalty Information Center. 2009. (19 October, 2009)<http://www.deathpenaltyinfo.org/history-death-penalty>