Recent Legal History of the Death Penalty in America

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Recent Legal History of the Death Penalty in America

American capital punishment goes to court 

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Anti-Death Penalty
"The Death penalty is an abdication by a society's members to deal effectively with its criminals. The punitive taking of life based on a democratic, moral consensus does not change the past nor facilitate or motivate the living to reduce their criminal activities"
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Pro-Death Penalty
"capital punishment is not a deterrent. It is a FITTING PUNISHMENT."
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According to data collected by the Federal Government, from 1930 to 2000, 4,542 persons were executed under civil (non-military) authority. During the ten-year period from 1967-1977, however, punitive death took a holiday as a voluntary moratorium and the U.S. Supreme Court brought a temporary halt to executions.

Voluntary Moratorium: 1967-1972
While all but 10 states allowed the death penalty in the late 1960s and an average of 130 executions per year were being carried out, public opinion turned against the death penalty. Several other nations had dropped the death penalty by the early 1960s and legal authorities in the U.S. were starting to question whether or not executions represented "cruel and unusual punishments" under the Eighth Amendment. Public support for the death penalty reached its lowest point in 1966, when a Gallup poll showed only 42 percent of Americans approved of the practice. 

Between 1967 and 1972, the U.S. observed what amounted to a voluntary moratorium on executions as the Supreme Court wrestled with the issue. In several cases not directly testing its constitutionality, the Supreme Court modified the application and administration of the death penalty. The most significant of these cases dealt with juries in capital cases. In a 1971 case, the Supreme Court upheld the unrestricted right of juries to both determine guilt or innocence of the accused and to impose the death penalty in a single trial. 

Supreme Court Overturns Most Death Penalty Laws
In the 1972 case of Furman v. Georgia, 408 U.S. 153 (1972), the Supreme Court issued a 5-4 decision effectively striking down most federal and state death penalty laws finding them "arbitrary and capricious." The court held that the death penalty laws, as written, violated the "cruel and unusual punishment" provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment.

As a result of Furman v. Georgia, more than 600 prisoners who had been sentenced to death between 1967 and 1972 had their death sentences lifted.   

Supreme Court Upholds New Death Penalty Laws
The Supreme Court's decision in Furman v. Georgia did not rule the death penalty itself to be unconstitutional, only the specific laws by which it was applied. Thus, the states quickly began to write new death penalty laws designed to comply with the court's ruling.

The first of the new death penalty laws created by the states of Texas, Florida and Georgia gave the courts wider discretion in applying the death penalty for specific crimes and provided for the current "bifurcated" trial system, in which a first trial determines guilt or innocence and a second trial determines punishment. The Texas and Georgia laws allowed the jury to decide punishment, while Florida's law left the punishment up to the trial judge.

In five related cases, the Supreme Court upheld various aspects of the new death penalty laws. These cases were:

  • Gregg v. Georgia, 428 U.S. 153 (1976)

  • Jurek v. Texas, 428 U.S. 262 (1976)

  • Proffitt v. Florida, 428 U.S. 242 (1976)

  • Woodson v. North Carolina, 428 U.S. 280 (1976)

  • Roberts v. Louisiana, 428 U.S. 325 (1976)

As a result of these decisions, 21 states threw out their old mandatory death penalty laws and hundreds of death row prisoners had their sentences changed to life in prison.

Executions Resume
On January 17, 1977, convicted murderer Gary Gilmore told a Utah firing squad, "Let's do it." and became the first prisoner since 1976 executed under the new death penalty laws. A total of 85 prisoners - 83 men and two women - in 14 U.S. states were executed during 2000.

Current Status of Death Penalty
As of January 1998, 38 states and the federal government have death penalty laws in effect. As of 2000, the following states did not have death penalty laws: Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin.

• Detailed statistics on executions and capital punishment can be found on the Bureau of Justice Statistics Web site:

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