History of the Death Penalty

Approximately 20,000 people have been legally executed in the United States in the past 350 years (Streib, 2000). Executions declined through the 1950's and 1960's and ceased after 1967, pending definitive Supreme Court decisions. This hiatus ended only after States altered their laws in response to the Supreme Court decision in Furman v. Georgia,4 a 5-4 decision that the death penalty, as imposed under existing law, constituted cruel and unusual punishment in violation of the 8th and 14th amendments of the U.S. Constitution. To decide eighth amendment cases, the Supreme Court uses an analytical framework that includes three criteria. A punishment is cruel and unusual if:

  • It is a punishment originally understood by the framers of the Constitution to be cruel and unusual.

  • There is a societal consensus that the punishment offends civilized standards of human decency.

  • It is (1) grossly disproportionate to the severity of the crime or (2) makes no measurable contribution to acceptable goals of punishment.

In Furman, the Supreme Court ruled that the death penalty was arbitrarily and capriciously applied under existing law based on the unlimited discretion accorded to sentencing authorities in capital trials. As a result, more than 600 death sentences for prisoners then on death row were vacated.

In response, States began to revise their statutes in 1973 to modify the discretion given to sentencing authorities, and some States again began sentencing adult offenders to death. By 1975, 33 States had introduced revised death penalty statutes. These statutes went untested until Gregg v. Georgia,5 a case in which the Supreme Court found, in a 7-2 decision, that the death penalty did not per se violate the eighth amendment. The Gregg decision allowed States to establish the death penalty under guidelines that eliminated the arbitrariness of sentencing in capital cases. The following safeguards were developed to make sentencing more equitable:

  • In death penalty cases, the determination of guilt or innocence must be decided separately from hearings in which sentences of life imprisonment or death are decided.

  • The court must consider aggravating and mitigating circumstances in relation to both the crime and the offender.

  • The death sentence must be subject to review by the highest State court of appeals to ensure that the penalty is in proportion to the gravity of the offense and is imposed even-handedly under State law.

By 1995, 38 States and the Federal Government had enacted statutes authorizing the death penalty for certain forms of murder.


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Juveniles and the Death PenaltyCoordinating Council on Juvenile Justice
and Delinquency Prevention
November 2000