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The Evolution of the Death Penalty in the United States

There is no specific mention of the death penalty in the U.S. Constitution -- not surprisingly perhaps since capital punishment was in widespread use throughout the world at the time, including in the American colonies. However, there is evidence that the framers assumed that some offenses would be "capital" crimes. For example, the Fifth Amendment specifically makes mention of such crimes.

The First Congress of the United States also made reference to capital punishment and authorized it for no less than 12 offenses, including treason, murder, piracy, and forgery. However, just as today, the ultimate penalty was the subject of debate, particularly about its deterrent value and the degree to which it should be imposed.

From the beginning, therefore, the death penalty was controversial, at least for some crimes. The First Congress also recognized that cases involving the death penalty are different and that there should be special, additional procedures for handling federal capital cases. Nevertheless, from 1790 to the present day, the federal criminal code has always contained provisions for the death penalty. The death penalty was also prevalent at the state level where most executions, in fact, occurred.

During the course of the 1800's, however, an increasing number of Americans became concerned about the death penalty and in particular the number of offenses for which it was a mandatory punishment. In 1845, the American Society for the Abolition of Capital Punishment was founded and by the end of the 1890's, a number of states had made the death penalty discretionary rather than mandatory. In 1847, Michigan became the first state to abolish the death penalty for all crimes except treason. By 1917, ten states had abolished it.

In 1892, at the federal level, Newton Curtis, a New York Representative, introduced a bill for the total abolition of the death penalty. Although his bill failed, Congress did enact a bill -- in 1897 -- entitled, "An Act to Reduce the Cases in Which the Death Penalty May Be Inflicted." The Act effectively made all federal capital punishment discretionary rather than mandatory as well.

By the 1900's, federal executions were relatively infrequent, although still prevalent in many states. But by the 1960's, concerns had begun to grow about the fairness of the death penalty, particularly when imposed on African Americans. In a 1966 poll, only 42 percent of the American public supported capital punishment, a peak in public opposition to the death penalty.

In 1972, the U.S. Supreme Court ruled in Furman v. Georgia that the death penalty, as administered, was unconstitutional and violated Eighth Amendment protections against cruel and unusual punishment. The decision effectively voided the death penalty in 38 states as well as in the federal system. But by 1976, enough states had rewritten their death penalty statutes to meet court concerns and it was effectively reinstated.

But the death penalty remains controversial in the United States, as elsewhere. Recent concerns have focused on the finality of the sentence, given some highly publicized mistakes made in cases involving the death penalty. DNA evidence in a number of cases cleared some convicts on death row for crimes they apparently did not commit. In the light of these developments, the Governor of Illinois has declared a moratorium on the death penalty in his state.