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A Short History of the American Death Penalty

May 3, 2014

America has always had capital punishment. The first American execution was in 1608 in the Jamestown colony, when Captain George Kendall was shot by a firing squad on charges of spying for Spain. Early colonial law made large numbers of crimes punishable by death.

America has also had opposition to capital punishment, almost as long as it has had capital punishment. Prominent influences came from penal theorists like Jeremy Bentham and Cesare Beccaria, who in the late 1700s promoted the movement away from execution in favor of incarceration. Following their thinking, Thomas Jefferson proposed a Virginia bill to limit execution to the crimes of murder and treason; his bill failed by one vote. In his day, Jefferson was considered quite the liberal for suggesting that gay men should be castrated instead of killed.

Execution was routine in early America, with penal executions conducted in public as late as the 1930s. The largest non-military execution in our history occurred in Rhode Island in 1723, when 26 pirates were hanged. The two largest military executions occurred in 1862 in Minnesota, when 38 Dakota natives were hanged on charges of rape and murder during the Dakota War; and in 1917, when 13 African-American soldiers were hanged for participating in the Houston Riot during World War I.

Hanging and firing squad were the most prominent early methods of execution in the U.S., but we also experimented with even more brutal stuff like burning, crushing, and bludgeoning. Although the firing squad remains a legal death penalty option, and has been used as recently as 2010, in Utah, the peak year for firing squad executions appears to have been 1626, when maybe eight people were executed by shooting. Hanging peaked much later, when about 150 people where hanged in 1900. Two states still allow hanging, but it hasn’t been done since 1996.

In 1881, New York opened a search for an execution method less brutal than hanging, and Thomas Edison answered the call. His company produced the first electric chair, the State of New York was persuaded to adopt it, and the first execution by electrocution occurred in New York’s Auburn Prison in 1890. Electrocution gradually replaced hanging as the leading method of execution, and held its edge through most of the 20th century, withstanding a brief challenge from the gas chamber, which peaked in the early 1950s. Both methods remain legal, and were last used in 1999 (gas) and 2013 (electrocution).

Although execution was routine in colonial and early America, it was not especially common until well into the 1800s. As late as 1865, we executed just 51 people; we did not reach 100 executions in a year until about 1880.

From there, though, executions took off, peaking at 161 in 1910, briefly dropping for a few years, then peaking again at 198 in 1935. After that, executions dropped almost every year, until Americans executed no human being in 1968, for the first time in almost 250 years. For 11 out of 13 years from 1968 to 1980, we executed no one; from 1972 to 1976, the U.S. Supreme Court prohibited executions.

After the Court lifted that suspension in 1976, 34 states and the federal government have executed 1,378 prisoners. But the practice of capital punishment is grossly uneven. Texas alone, with 515 executions, accounts for almost 40 percent of the total. The top 15 states account for more than 92 percent of the total. Ten of the 11 states of the Civil War Confederacy are in the top 15 – all but Tennessee, which ranks 21st – plus Oklahoma, Missouri, Ohio, Arizona and Indiana.

We appear to be in another period of long-term death penalty decline. From a post-1976 peak of 99 executions in 1999, executions have declined to 39 in 2013. Eighteen states and the District of Columbia now prohibit execution, and several other states allow execution but have executed no prisoners since the restoration of the death penalty in 1976. Public support for execution has dropped, even more so when the option of life in prison without parole is offered.

International pressure to eliminate executions is mounting. Ninety-five countries now legally prohibit executions, and another 44 have essentially abolished executions in practice. Fifty-eight countries retain the death penalty; of those, only 34 are considered to be “active” death penalty jurisdictions, and in any given year only about 20 countries actually perform executions.

China is believed to perform more than 80 percent of the world’s executions; information about Chinese executions is a state secret. Data can be unreliable about executions in other countries that are either secretive or chaotic, like North Korea, Iran and Somalia.

Amnesty International reported 778 executions by 22 countries in 2013. In this respect, the U.S. is not keeping good company. No European country executed a prisoner in 2013, although Belarus still imposes death sentences, and the United States was the only country in the western hemisphere to conduct an execution last year.

Aside from China, the “top 10” of executions in 2013 was Iran (369), Iraq (169), Saudi Arabia (79), North Korea (70), the U.S. (39), Somalia (34), Sudan (21), Yemen (13) and Japan (8). I’m guessing that most of those countries would not rank among America’s “most admired.” In what other context do we fall between North Korea and Somalia in international rankings? And how can we not be ashamed that we do in this context?

Lethal injection was first used in this country by Texas, in 1982, and quickly became the overwhelmingly predominent method of execution. The only American manufacturer of one of the three drugs used in the original lethal injection protocol, sodium thiopental, stopped producing the drug in reaction to its use in executions. And the European Union in 2011 banned the export of drugs for use in executions.

American doctors have been increasingly reluctant to help states develop new lethal injection protocols, and, in combination with the unavailability of sodium thiopental, this has created problems for death penalty states. Even once they are able to develop new lethal injection protocols, those protocols must withstand judicial scrutiny against claims that the protocols impose pain beyond that necessary to cause death, and therefore are an unconstitutionally cruel punishment.

The difficulties death penalty states are having getting to execution are pretty clearly suggested by the fact that, for the 39 executions performed in 2013, the average time between commission of the crime and execution was about 15 years; only six were less than ten years; one was 35 years – John Ferguson was executed at 65 years old, after three decades on death row, for murders he committed in 1977 and 1978.

After meeting with German Chancellor Angela Merkel this week, and no doubt discussing a number of issues not including capital punishment, President Obama and the chancellor held a press conference. In response to a question from an Agence France-Presse reporter, Obama said that Oklahoma’s badly mishandled execution of Clayton Lockett earlier in the week was “deeply troubling,” and that there are “significant problems” in the “application of the death penalty” in this country.

The President then charged Attorney General Eric Holder to review the application of the death penalty in this country. Although Obama re-stated his long-standing support for capital punishment in some cases, death penalty opponents are hoping – and proponents are worrying – that Holder’s review might lay the basis for a future change in the President’s position on the question. Holder himself opposes capital punishment.

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