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The Death Penalty
Research Paper-Week 08
Olga Martinez
Criminology SOCI3310
Professor Bremer
July 22, 2018
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Introduction
Introduction to the death penalty dates to the 18th Century B.C. in the code of King
Hammurabi of Babylon for 25 different crimes the death penalty would be used. The death
penalty was also part of the 14th Century B.C.’s Hittie Code, in the 7th Century B.C.’s Draconian
Code of Athens, where death was the only punishment for any crime committed, and the 5th
Century B.C.’s Roman Law of the 12 Tablets. Death sentences included crucifixion, drowning,
burning alive, beating to death, and impalement. In the 10th Century A.D. hanging was used as
the method of execution. William the Conqueror would not allow persons to be hanged or
executed for any crime except in times of war. By the 16th Century, under Henry VIII, about
72,000 people are estimated to have been executed. Methods used by Henry VIII were boiling,
burning at the stake, hanging, beheading, drawing and quartering. Death penalty was carried out
for capital offenses such as marrying a Jew, treason, and not confessing to a crime. By the 1700s,
222 crimes punishable by death which included stealing, robbing a rabbit warren and cutting
down a tree. Because of the seriousness of the death penalty, juries would not convict defendants
if the offense was not serious of the which lead to the elimination of the death penalty for 100
out of 222 crimes. (Randa, 1977)
Introduced to America
The death penalty in America was influenced by Britain. When European settlers came to
the new world, the practice of capital punishment was brought along. The first recorded
execution in the colonies was Captain George Kendall in Jamestown colony in Virginia in 1608.
Captain Kendall was executed for the crime of being a spy for Spain. By 1612, Virginia
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Governor Sir Thomas Dale enacted the Divine, Moral, Marital Laws which allowed the death
penalty to be used for minor offensive crimes as stealing grapes, killing chickens and trading
with Indians. Death penalty laws varied from colony to colony. The Massachusetts Bay Colony
instituted the Duke’s Laws of 1655, under these laws, death penalty was used for offenses such
as striking one’s mother or father or denying the ‘True God”. (Randa, 1977) The first attempted
reform of the death penalty in the United States was under Thomas Jefferson when he introduced
a bill to revise Virginia’s death penalty laws. It was defeated by one vote which included death
penalty could only be used for crimes of treason and murder. Dr. Benjamin Rush challenged the
belief that the death penalty served as a deterrent. He was an early believer in the ‘brutalization
effect”, which he believed the death penalty increased criminal conduct. (Schabas 1997)
19th Century
Philadelphia became the first state to consider degrees of murder and in 1794,
Pennsylvania repealed the death penalty for all offenses except first-degree murder. By mid-19th
Century, many states reduced the number of capital crimes and started building penitentiaries. In
1834, Pennsylvania was the first state to move executions to be carried out in correctional
facilities instead of the public eye. By 1846, Michigan was the first state to abolish the death
penalty except for the crime of treason. Rhode Island and Wisconsin followed by abolishing the
death penalty completely. (Bohm, 1999 and Schabas, 1997) Many states held onto capital
punishment especially offenses committed by slaves. After the Civil War, the first electric chair
was introduced in New York and in 1888, William Kemmler was the first one to be executed by
the electric chair in 1890. (Randa, 1997)
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20th Century
From 1907-1917, six states completely abolished the death penalty and three states
limited to crimes of treason and first-degree murder of a law enforcement official. During WWI,
5 out of 6 abolitionist states reinstated their penalty by 1920. (Bedau, 1997 and Bohm, 1999) By
1924, Nevada was using cyanide gas which was considered a more humane way of executing
inmates. Gee John was the first one to be executed by lethal gas, the state tried to pump cyanide
gas into Jon’s cell while he slept but was impossible due to the gas chamber was constructed.
Americans suffered through Prohibitions and The Great Depression and there were more
executions in the 1930s than any other decade in American history with an average of 167
executions per year. By 1950s, death penalty executions began to drop drastically from 1289
executions to 715 executions and from 1960-1976, only 191 executions. (Bohm, 1999 and
Schabas, 1997)
Death Penalty Cases
By the 1960s, death penalty was being challenged as a ‘cruel and unusual’ punishment.
The first case was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard arguments
regarding a provision of the federal kidnapping statute requiring that the death penalty be
imposed only upon recommendation of a jury. The Court held that this practice was
unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure
they would not receive a death sentence. The other 1968 case was Witherspoon v. Illinois (391
U.S. 510). In this case, the Supreme Court held that a potential juror’s mere reservations about
the death penalty were insufficient grounds to prevent that person from serving on the jury in a
death penalty case. Jurors could be disqualified only if prosecutors could show that the juror’s
attitude toward capital punishment would prevent him or her from making an impartial decision
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about the punishment. In 1971, the Supreme Court again addressed the problems associated with
the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and
McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a
violation of their Fourteenth Amendment right to due process for jurors to have unrestricted
discretion in deciding whether the defendants should live or die, and such discretion resulted in
arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his
guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed
that a first-degree murder conviction would result in a death sentence. The Court, however,
rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to
determine guilt and sentence. The Court stated that guiding capital sentencing discretion was
“beyond present human ability.”
Debates over the Death Penalty
The issue of arbitrariness of the death penalty was again be brought before the Supreme Court in
1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the
landmark case Furman v. Georgia (408 U.S. 238)). Furman, like McGautha, argued that capital
cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought
under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due
process claim. With the Furman decision the Supreme Court set the standard that a punishment
would be “cruel and unusual” if it was too severe for the crime, if it was arbitrary, if it offended
society’s sense of justice, or it if was not more effective than a less severe penalty. After this
case, Florida and 34 other states proceeded to enact new death penalty statutes. These guided
discretion statutes were approved in 1976 by the Supreme Court in Gregg v. Georgia (428 U.S.
153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred
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to as the Gregg decision. This landmark decision held that the new death penalty statutes in
Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states.
The Court also held that the death penalty itself was constitutional under the Eighth Amendment.
On January 17, 1977, Gary Gilmore was executed in Utah by a firing squad. That year,
Oklahoma became the first state to adopt the lethal injection as a means of execution. On
December 7, 1982, Charles Brooks became the first person to be executed in Texas by the lethal
injection.
Exceptions to the Death Penalty
In the United States, there are limitations to the death penalty being used. In 1977, the
United States Supreme Court, Coker v. Georgia considered the death penalty an unconstitutional
punishment for the rape of an adult woman when the victim was not killed. In 1986, the
Supreme Court banned the execution of insane persons and are require an adversarial process to
determine mental competency. In the late 1980s, the Supreme court decided on three cases
regarding the constitutionality of executing juvenile offenders and that no state without a
minimum age in its death penalty statute can execute someone who was under 16 years of age at
the time of the crime committed. Nineteen states currently with the death penalty will not
execute anyone under the age of 18 at the time of the crime committed.
Women and the Death Penalty
Women are only about 3% of United States executions. The first woman to have been
executed in the United States as Jane Champion, she was hung in 1632 in James City, Virginia
but the crime was never known. On June 24, 1633, Margaret Hatch was hung for murder in
James City County, Virginia. The first woman to be executed in Texas was Chipita Rodriguez on
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November 13, 1863 in San Patricio County by hanging for murder. Karla Tucker was the first
woman to be executed in Texas since the Civil War for murdering two people. Since 1976, 16
women have been executed in the United States and 9 of those women were executed in Texas.
Texas and the Death Penalty
In Texas, since 1976 to current date, 552 offenders have been executed. Texas has one
the highest execution rate it accounts for more than one-third of the national total. In Texas,
capital crimes are the only ones that will receive the death penalty. Here is a list of the capital
crimes:
Under Texas statutes, a murder is capital if the offender:
1. Murders a public safety officer (police officer, fireman, or EMT/paramedic) who is acting in the
lawful discharge of an official duty and who the person knows is a police officer, fireman, or
EMT/paramedic
2. Intentionally commits the murder in the course of committing or attempting to commit
aggravated kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or
retaliation, or terroristic threat
3. Commits the murder for remuneration or the promise of remuneration or employs another to
commit the murder for remuneration or the promise of remuneration
4. Commits the murder while escaping or attempting to escape from a penal institution
5. Commits the murder, while incarcerated, of a person who is employed in the operation of the
penal institution or with the intent to establish, maintain, or participate in a combination or in the
profits of a combination
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6. Commits the murder while incarcerated for murder; or while serving a sentence of life
imprisonment or a term of 99 years for aggravated kidnapping, aggravated sexual assault or
aggravated robbery
7. Murders more than one person during the same criminal transaction or during different criminal
transactions but the murders are committed pursuant to the same scheme or course of conduct
8. Murders an individual under 10 years of age
9. Murders another person in retaliation for or on account of the service or status of the other
person as a judge or justice of the supreme court, the court of criminal appeals, a court of
appeals, a district court, a criminal district court, a constitutional county court, a statutory county
court, a justice court, or a municipal court.
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References
Amnesty International, “List of Abolitionist and Retentionist Countries,” Report ACT 50/01/99,
Updated June 2004
Baker, D. “A Descriptive Profile and Socio-Historical Analysis of Female Executions in the
United States: 1632-1997”; 10(3) Women and Criminal Justice 57 (1999)
Bedau, H., editor, “The Death Penalty in America: Current Controversies,” Oxford University
Press, 1997.
Bohm, R. “Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the
United States,” Anderson Publishing, 1999.
O’Shea, K., “Women and the Death Penalty in the United States, 1900-1998,” Praeger 1999.
Randa, L., editor, “Society’s Final Solution: A History and Discussion of the Death Penalty,”
University Press of America, 1997.
Schabas, W. “The Abolition of the Death Penalty in International Law,” Cambridge University
Press, second edition, 1997.
https://en.wikipedia.org/wiki/Capital_punishment_in_Texas#Capital_crimes
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