International Information Programs
7 August 2002

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,

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

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

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.  

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