Capital punishment in the United States is administered for a wide variety of crimes ranging from drug trafficking to aggravated murder. However, in practice, it is reserved only for homicide-related crimes including aggravated murder, felony murder, and contract killing. Capital punishment was a penalty at common law, for many felonies, and was enforced in all the American colonies prior to the Declaration of Independence. The death penalty is currently a legal sentence in 33 states and in the federal civilian and military legal systems. The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time, though the most common method in recent decades has been lethal injection. Thirty-three jurisdictions continue to have it by law. There were 37 executions in the United States in 2008,^[1] the lowest number since 1994^[2] (largely due to lethal injection litigation revolving around a now resolved constitutional question).^[3][4] There were 43 executions in 2011, all by lethal injection.^[5] In 2011, 13 states executed 43 inmates; in 2010, 46 people were executed.^[6]

Capital punishment is a contentious social issue in the US. While historically a large majority of the American public has favored it in cases of murder, the extent of this support has varied over time. There has long been strong opposition to capital punishment in the United States from certain sectors of the population, and as of 2012, seventeen states (as well as Washington, D.C.) have banned its use.^[7] While the level of public support today is lower than it was in the 1980s and 1990s (reaching an all-time high of 80 percent in 1994), it has been largely static over the past decade.^[8] A 2011 Gallup poll showed 61 percent of Americans favored it in cases of murder while 35 percent opposed it, the lowest level of support recorded by Gallup since 1972.^[9] When life in prison without parole is listed as a poll option, the public is more evenly divided; a 2010 Gallup poll found 49 percent preferring the death penalty and 46 percent favoring life without parole.^[10]

History[link]

The Huntsville Unit in Huntsville, Texas is the location of the execution chamber of the state of Texas.

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,^[11] who was executed by firing squad at the Jamestown colony for allegedly spying for the Spanish government.^[12]

The Espy file,^[13] compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. In the period from 1930 to 2002, 4,661 executions were carried out in the U.S, about two-thirds of them in the first 20 years.^[14] Additionally, the United States Army executed 135 soldiers between 1916 and 2012.^[15][16][17]

The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape during the brutal Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken and who had to be re-hanged) fell to their deaths.^[18] The second-largest mass execution was also a hanging: the execution of 13 African American soldiers for taking part in the Houston Riot in 1917. The largest non-military public mass execution in one of the original thirteen colonies occurred in 1723, when 26 convicted pirates were hanged in Newport, Rhode Island by order of the Admiralty Court.^[19]

States without capital punishment[link]

Michigan[link]

Historically, several states have always been without capital punishment, the earliest being Michigan, which has not conducted an execution since it entered the Union. (However, one federal execution occurred in Michigan in 1938.) Shortly after attaining statehood, Michigan abolished the death penalty for ordinary crimes, becoming the first English-speaking government in the world to abolish the death penalty for all crimes except treason.^[20] In 1963, Michigan amended its constitution to prevent later attempts at reinstatement. Every attempt through referendums and voter initiatives to reinstate the penalty since 1963 has failed, the latest being a failed attempt at a referendum in 2004.^[21]

Alaska and Hawaii[link]

The newest two states, Alaska and Hawaii, abolished the death penalty prior to statehood. Alaska, however, had executed eight men during the earlier territorial government (1900–1959) and even earlier "Miner's Courts" had executed a number of men in the 19th century.^[22]

Other states[link]

Other states with long tenures of no death penalty include Wisconsin (with the distinction of being the only state to perform a single state-level execution in its history, and also the first to abolish the death penalty for all crimes), Rhode Island (although later reintroduced, it was unused and abolished again), Maine, North Dakota, Minnesota, West Virginia, Iowa, and Vermont. The District of Columbia has also abolished the death penalty; it was last applied there in 1957. One state, Oregon, abolished the death penalty through an overwhelming majority in a 1964 public referendum,^[23] but reinstated it in a 1984 joint death penalty/life imprisonment referendum by an even higher margin, after a similar 1978 referendum succeeded but was not implemented due to judicial rulings.

Recent abolition[link]

Death penalty statutes in the United States as of 2012
Color key:

  No current death penalty statute

  Death penalty statute declared unconstitutional

  No one executed since 1976

  Has performed execution since 1976

As of May 2012, the following fifteen U.S. states have fully abolished the death penalty:

• Alaska
• Connecticut
• Hawaii
• Illinois
• Iowa
• Maine
• Michigan
• Minnesota
• New Jersey
• New Mexico
• North Dakota
• Rhode Island
• Vermont
• West Virginia
• Wisconsin

The District of Columbia has also abolished the death penalty. In addition, the states of New York and Massachusetts have declared the death penalty to be unconstitutional through court rulings, and have disestablished their respective death rows.

New Mexico may yet execute two condemned inmates sentenced prior to abolition. Connecticut may also execute eleven inmates sentenced before abolition. In Illinois, where recent abolition legislation took effect on July 1, 2011, all former death row inmates have been moved to regular jail cells.^[24]

As of 1995, the United States Supreme Court ruled the televised executions of prisoners unconstitutional.^{[citation needed]}

Only four of the above states have legislatively abolished the death penalty in the so-called "modern era of capital punishment" (that is, post-Gregg v. Georgia), and only two have attained de facto abolition through their state judiciaries; the remainder either abolished capital punishment before the moratorium was lifted, or had statutes that were struck down and did not reinstate the death penalty.

In 2007, New Jersey became the first state to repeal the death penalty in the modern system of capital punishment,^[25] followed by New Mexico in 2009 (though not retroactively, permitting the future execution of two inmates on the state's death row), and Illinois in 2011 (with the Governor commuting the death sentences of all death row inmates).^[26][27][28] However, in states with a large death row population and regular executions, including Texas,^[29][30] the death penalty remains strongly in the landscape and is unlikely to end any time soon.^{[31][32][33][34][35][36]}

Four states in the modern era, Nebraska in 2008, New York and Kansas in 2004, and Massachusetts in 1984, had their statutes ruled unconstitutional by state courts. The death rows of New York and Massachusetts were disestablished. Of the four states, only Nebraska has performed executions since the constitutionality of capital punishment was affirmed by the Supreme Court in 1976, the four states having done so last in 1997, 1963, 1965, and 1947, respectively. In New York and Massachusetts attempts to restore the death penalty were unsuccessful,^[37][38] while Kansas successfully appealed State v. Kleypas, the Kansas Supreme Court decision that declared the state's death penalty statute unconstitutional, to the U.S. Supreme Court – and death sentences continue to be sought. New York had previously abolished the death penalty temporarily, in 1860.^[39] Nebraska has performed three executions since 1976, all in the 1990s; its statute has been ineffective since February 8, 2008, when the method used, electrocution, was ruled unconstitutional by the Nebraska Supreme Court. However, Nebraska since enacted a bill providing executions by lethal injection.

On April 5, 2012, the State Senate of Connecticut passed a bill (20 to 16) that would abolish the death penalty for future crimes. The House had passed similar bills in earlier sessions, but they had always failed to win approval in the Senate. The bill was later passed in the House on April 11 (86 to 62), and on April 25, Governor Dan Malloy signed the bill.^[40][41] Connecticut has executed only one person in the last 50 years. Like New Mexico's, Connecticut's repeal of capital punishment is not retroactive, and the 11 inmates currently on the state's Death Row may still be executed, and those convicted of capital crimes committed before the date in which the repeal went into effect may still be subject to capital punishment.

The only jurisdictions with constitutional death penalty statutes that have not performed an execution since 1976 are New Hampshire, Kansas, and the United States military, although all have populated death rows. In addition, New Jersey did not execute any prisoners between 1976 and the abolition of the death penalty in 2007.

Puerto Rico[link]

The U.S. territory of Puerto Rico has no death penalty. Puerto Rico instituted a four-year moratorium on the use of the death penalty in 1917. The last execution took place in 1927 and the Puerto Rican legislature abolished the death penalty in 1929.^[42]

Puerto Rico's constitution expressly forbids capital punishment, stating "The death penalty shall not exist", setting it apart from all US states and territories other than Michigan, which also has a constitutional prohibition (eleven other states and the District of Columbia have abolished capital punishment through statutory law); however, capital punishment is still applicable to offenses committed in Puerto Rico, if they fall under the jurisdiction of the federal government, though federal death penalty prosecutions that have occurred in Puerto Rico have generated significant controversy.^[43]

Suspension by Supreme Court[link]

Executions in the US since 1960

Capital punishment was suspended in the United States from 1972 through 1976 primarily as a result of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). The last pre-Furman execution was that of Luis Monge on June 2, 1967. In this case, the court found the imposition of the death penalty in a consolidated group of cases to be unconstitutional, on the grounds of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.

In Furman, the United States Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment.

In a five-to-four decision, the Supreme Court struck down the imposition of the death penalties in each of the consolidated cases as unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases but did not exclude the possibility of a constitutional death penalty law. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Thurgood Marshall and William J. Brennan, Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as "cruel and unusual" punishment.

Though many observers expected few, if any, states to readopt the death penalty after Furman,^{[citation needed]} 37 states did in fact enact new death penalty statutes which attempted to address the concerns of White and Stewart. Some of the states responded by enacting "mandatory" death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder (White had hinted such a scheme would meet his constitutional concerns in his Furman opinion).

Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion. The Court clarified Furman in Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976), 431 U.S. 633 ( 1977), which explicitly forbade any state from punishing a specific form of murder (such as that of a police officer) with a mandatory death penalty.

Capital punishment resumed[link]

In 1976, contemporaneously with Woodson and Roberts, the Court decided Gregg v. Georgia, 428 U.S. 153 (1976) and upheld a procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, and whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole.

The 1977 Coker v. Georgia decision barred the death penalty for rape, and, by implication, for any offense other than murder. The current federal kidnapping statute, however, may be exempt because the death penalty applies if the victim expires in the perpetrator's custody, not necessarily by his hand, thus stipulating a resulting death, which was the wording of the objection. In addition, the federal government retains the death penalty for such non-murder offenses as treason, espionage and crimes under military jurisdiction; there has been no challenge to these statutes as of 2007.

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. But the pace was quite halting due to use of litigation tactics which involved filing repeated writs for habeas corpus, which succeeded for many in delaying their actual execution for many years. Although hundreds of individuals were sentenced to death in the U.S. during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

The United States Supreme Court, though, has placed two major restrictions on the use of the death penalty. First, the Supreme Court case of Atkins v. Virginia, decided June 20, 2002,^[44] held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Generally, a person with an IQ below 70 is considered to be mentally retarded. Prior to this decision, between 1984 and 2002 forty-four mentally retarded inmates were executed.^[45]

Second, in 2005 the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551 (2005), abolished executions for persons under the age of 18 at the time of the crime.

New Mexico repealed its death penalty statute on March 17, 2009, becoming the second state (after New Jersey) to abolish the death penalty since executions resumed in 1976 (However, the only prisoner executed after 1976 wanted to be executed). The law, signed by Governor Bill Richardson, took effect on July 1, 2009 and replaces the death penalty with a life sentence without the possibility of parole. The law, though, is not retroactive – inmates currently on New Mexico's Death Row and persons convicted of capital offenses committed before this date may still be sentenced to death under New Mexico's pre-existing death penalty statute.^[46] Connecticut abolished its death penalty on April 25, 2012. Like New Mexico, the repeal is not retroactive, leaving 11 inmates on death row. A bill to abolish the death penalty was vetoed by former governor M. Jodi Rell in June 2009 after it easily passed in the General Assembly.^[47] Current governor Dan Malloy indicated he would sign a bill abolishing the death penalty if it was passed by the General Assembly.^[48]

Possibly in part due to expedited federal habeas corpus procedures embodied in the Antiterrorism and Effective Death Penalty Act of 1996, the pace of executions has picked up. Since the death penalty was reauthorized in 1976, 1,280 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions^[29][30] (and over four times as many as Virginia, the state with the second-highest number); California has the greatest number of prisoners on death row, but has held relatively few executions. See the table for executions and death row inmates by jurisdiction.

[edit] New concerns post-Furman

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions," surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local “idiosyncrasies,” suggesting they are not in keeping with the spirit of the Supreme Court’s directive. This means that “the very types of unfairness that the Supreme Court sought to eliminate” may still “infect capital cases.” Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 “special circumstances,” making nearly all premeditated murders potential capital cases. The 37 death penalty states have varying numbers and types of “death qualifiers” – circumstances that allow for capital charges. The number varies from a high of 34 in California to 22 in Colorado and Delaware to 12 in Texas, Nebraska, Georgia and Montana. The study's authors call for reform of state procedures along the lines of reforms in the federal system, which the U.S. Department of Justice initiated with a 1995 protocol.^[49] Crimes subject to the death penalty vary by jurisdiction. All jurisdictions that use capital punishment designate the highest grade of murder a capital crime, although most jurisdictions require aggravating circumstances. Treason against the United States, as well as treason against the states of Arkansas, California, Colorado, Georgia, Louisiana, Mississippi, Missouri, and Washington are capital offenses.^[50]

Other capital crimes include: the use of a weapon of mass destruction resulting in death, espionage, terrorism, certain violations of the Geneva Conventions that result in the death of one or more persons, and treason at the federal level; aggravated rape in Louisiana, Florida,^[51] and Oklahoma; extortionate kidnapping in Oklahoma; aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; aircraft hijacking in Alabama; drug trafficking resulting in a person's death in Florida;^[52] train wrecking which leads to a person's death, and perjury which leads to a person's death in California.^[50][53][54]