Flagler College
History and Evolution of the Death Penalty in the United States
Ethics of Judiciary and Sociology of Criminal Law

The history of the death penalty is tumultuous, from the punishment being initiated to abolished, and then reinstated. The death penalty, initiated in the United States in 1622, continues to be exploited by 32 states, regardless of its integrity and use to discourage people from committing serious crimes. It is now being eroded again and the abolition of the death penalty seems to be inevitable.
One problem with the death penalty is that it has been shown that many people have been executed when they have not committed the crime. Since 1973, hundreds of innocent people have been released from death row, after the evidence that sentenced them to death was found to be inaccurate. Many of these innocent people were victims of wrongful convictions based on confused witnesses, mistakes by lawyers and inaccurate forensics, while the person actually responsible for the crime was still free.
Cases involving DNA evidence in court, such as Ray Krone's case, can be denied access even if life and death are on the ropes. Found guilty, Krone was sentenced to death for rape and murder in Arizona, even though DNA found on the victim did not correlate with his. Arizona argued that no submission of DNA evidence could interfere with the jury decision. A decade later, without a court order, a crime lab worker identified the person who actually committed the crime through DNA evidence, and Ray Krone was luckily exonerated before his death. Likewise in 2011, Troy Davis was convicted in Georgia for murdering police officer Mark Allen MacPhail. Physical evidence did not convict him, but testimonies from nine witnesses strongly tied him to the case. After Davis’s execution, seven witnesses changed their testimonies, two remained in what they believed and one witness is suspected of the murder. The Davis case generated widespread national outrage, as thousands gained support to end the death penalty, believing that Davis was wrongfully killed and that the death penalty is too risky. There are many more cases like this one; the Death Penalty Information Center has reported that from 1973 to 2012, 142 death row inmates have been exonerated and could have easily been killed for crimes they did not commit.
It is also important to examine cases from the 1950s and 1960s that challenged if certain punishments are constitutional. The first of these was Trop v. Dulles (S. CT. 1958). This case identified, under the Eighth Amendment, that punishments for crimes needed to still uphold a humane, standard of decency consistent with the maturity of our society. Chief Justice Earl Warren was one out of four justices overhearing Trop v. Dulles (Trop). In his words that would be quoted for future opinions talks about “standard of decency” and how the “Eighth Amendment must illustrate its meaning from the evolving standards of decency that mark the progress of a maturing society.” The Eighth Amendment in Warren’s view, must establish “vital, living principles that authorize and limit governmental powers in our nation. They are the rules of government.” Meaning that our nation needs higher authority such as the government to set standards that society can abide by. If we did not have principles to authorize and limit what is good and bad then our nation would be chaotic. This was the argument that the Supreme Court applied in Furman v. Georgia (S. CT. 1973) to support the abolition of the death penalty. The argument that was applied in Furman v. Georgia was that the death penalty breached the Trop v. Dulles (Trop) standard of decency (Riley 855-6).
The petitioners in Furman v. Georgia (1972), Jackson v. Georgia (1972), and Branch v. Texas (1972) were all African American men who were sentenced to death, one of them for murder (Furman) and two for rape (Jackson and Branch). In all three cases, the court held that the charge and carrying out of the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The courts for these three trials intentionally selected a discriminative grand jury in order for a racial decision to be made. This selection process did not allow these men to have a fair punishment for their crime. An all-white jury was selected by the prosecutors, so it would be likely that the men would be executed. The men were indeed sentenced to death by the jury. The judgment in each case was therefore reversed and the cases were remanded for further proceedings (Capital Punishment in Context).
Many limitations have been imposed on the death penalty since its creation and misuse. The case of U.S. v. Jackson (S. CT. 1968) held that the death penalty should only be invoked on the recommendation of the jury. This meant that the potentially arbitrary decisions of a judge could not be imposed on the defendant.
The question of arbitrariness was identified as a significant problem in the case of Furman v. Georgia (1972). The court identified that:
The discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position (249-51).

The Furman Case went a step further than U.S. v Jackson, because the potential for arbitrariness, meaning the sentence of death varies on the color of the victim or the county the crime was committed in, is observed for a jury recommendation. Furman v. Georgia dealt with the potential dangers of using the death penalty, and the fact that it is no longer part of common decency. Due to the holding in Furman v. Georgia Case, the court essentially opened up the door for states to rewrite their death penalty statutes to eliminate the problems cited in Furman. This ruling sent states back to their legislative drawing boards to fashion death penalty legislation that would avoid claims that the death penalty was administered in an arbitrary manner. In other words, death penalty statutes should make clear that people who commit the same crime receive the same punishments (Foley). The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. (Reinstating the Death Penalty 6).
The case of Gregg v. Georgia (S. CT. 1976), identified that Georgia’s death penalty statute, when it was reformed with the safeguards, became constitutional, because the arbitrariness had been removed (Vann 1256). Gregg Decision, which states that a death penalty would have to be valid when appropriate sentencing guidelines are met, and a two-tier trial was used (DIPC, “Introduction to the Death Penalty”). States implement a two-tier system to protect responsibilities and rights of innocent people on death row. This system allows those who are found guilty to have a second trial.
The reinstatement of the death penalty took an interesting turn with the case of Woodson v. North Carolina (S. CT. 1976). In this case, the constitutionality of statutes authorizing a mandatory death sentence in order to prevent arbitrary decisions was challenged. The court held that such statutes were invalid and arbitrary, because there was not adequate examination of the facts since the court held back valuable information that could have made a different outcome for the case. The new era of the death penalty started on January 17, 1977 after a ten-year moratorium that began with two 1968 cases, U.S. v Jackson (S. CT. 1968) and Witherspoon v. Illinois (S. CT. 1968), and once again, the nation was rethinking its capital punishment laws. Decisions on executions ended with the killing of Gary Gilmore by a firing squad. From 1976 to 2013, records show that 1,329 men and 13 women have been executed since the return of the death penalty (Clark County Prosecuting Attorney, U.S. Executions since 1976). In 2000, the Gallup Poll showed death penalty support at 66%, its lowest level in 19 years. According to the same poll, 11% believed that at least 1 in 5 on death row is innocent. The inference is that the arbitrariness is still present, which raises a sound argument that the death penalty should be abolished (Cochran 391). There have been some important developments in respect to a move back toward abolition.
Hoyle and Hood present arguments that the death penalty will be abolished or at the minimum significantly limit the punishment of the crime. The case of Atkins v. Virginia (S. CT. 2002) is an important case, because it is a precursor to the abolition of the new era of the death penalty. This case supported the international norms that there should not be execution of mentally disabled defendants, because it amounts to cruel and unusual punishment. Thus, there are international standards that U.S. courts are imputing into their constitution. The case of Roper v. Simmons is another example, because this case held that it was unconstitutional to apply a death sentence to individuals younger than 18 years old. The rationale that was presented by the court was that minors could not be held as culpable as their adult counterparts could, as such there should be focus on rehabilitation if possible. These decisions by the Supreme Court are slowly eroding the validity of the death penalty.
As Hood and Hoyle (S. CT. 2005) argue, there will soon be the abolishment of the death penalty, because it is a practice "is truly beyond the standard of decency expected of a liberal democratic nation." This argument is important, because it is reasserting the Furman Ruling. There have been numerous challenges of the validity of the death penalty, especially when there is a bias against a specific race.
The death penalty has been around for forty-three years and still, to this day, controversy, opinions, and emotions remain mixed. The laws and regulations on the death penalty have constantly changed because of disagreement over its ethics, and even then, the U.S. has not been able to successfully implement death penalty usage so that it is error-free. Many people disagree with the death penalty, due to innocent people being executed, religious reasons, and personal experiences. People still believe that the death penalty is a violation of the Eighth Amendment, and so do I. Thus far, the death penalty has not successfully protected the rights of life, liberty and property for all citizens. To make sure these rights are protected, punishment for the crime must have a clear, distinct consequence for the criminal behavior, and that has proved impossible for the death penalty.

Works Cited
Clark County Prosecuting Attorney. (2013). “US Executions since 1976” Retrieved from: http://www.clarkprosecutor.org/html/death/usexecute.htm
Cochran, JM. (2004). “Courting Death: 30 Years Since Furman, Is the Death Penalty Any Less Discriminatory? Looking at the Problem of Jury Discretion in Capital Sentencing,” Val. U. L. Rev. Vol. 38, pp.1399
Congressional Quarterly Researcher. “Chronology of Capital Punishment” Congressional Quarterly Researcher. Vol 5, No 9, 1995. Retrieved from http://www.pbs.org/wgbh/pages/frontline/angel/timeline.html
Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas, 408 U.S. 238 (1972), 63 J. Crim. L. Criminology & Police Sci. 484 (1972)
"Cruel and Unusual Punishment: Trop v. Dulles." US Law American History Ed Mannino. N.p., n.d. Web. 07 Nov. 2013.
Entzeroth, LS. (2012) “The End of the Beginning: The Politics of Death and the American Death Penalty Regime in the Twenty-First Century” Oregon Law Review Vol 90, pp. 797
"Furman v. Georgia | Capital Punishment in Context." Furman v. Georgia | Capital Punishment in Context. N.p., n.d. Web. 14 Oct. 2013.
Hermann, J. The History of the Death Penalty in the United States. GRIN Verlag, 2008.
"History: Reinstating the Death Penalty." History: Reinstating the Death Penalty. Michigan State University Comm Tech Lab and Death Penalty Information Center, 2004. Web. 14 Oct. 2013.
Hood R and Hoyle C (2008) The Death Penalty: A Worldwide Perspective. Oxford. OUP
Riley, KW. “The Death Penalty in Georgia: An Aggravating Circumstance” The American University Law Review Vol 30, 835-861. 1981 (print)
Vann, LS (2011) “History Repeats Itself the Post Furman Return to Arbitrariness in Capital Punishment” University of Richmond Law Review Vol 45, pp 1255
Cases
Trop v. Dulles
Furman v. Georgia
Jackson v. Georgia
Branch v. Texas
U.S. v. Jackson
Gregg v. Georgia
Woodson v. North Carolina
Witherspoon v. Illinois
Atkins v. Virginia