This fourth edition of the first true textbook on the death penalty engages the reader with a full account of the arguments and issues surrounding capital punishment. The book begins with the history of the death penalty from colonial to modern times, and then examines the moral and legal arguments for and against capital punishment. It also provides an overview of major Supreme Court decisions and describes the legal process behind the death penalty. In addressing these issues, the author reviews recent developments in death penalty law and procedure, including ramifications of newer case law, such as that regarding using lethal injection as a method of execution. The author’s motivation has been to understand what motivates the "deathquest" of the American people, leading a large percentage of the public to support the death penalty. The book will educate readers so that whatever their death penalty opinions are, they are informed ones.
Robert M. Bohm is a professor at the University of Central Florida Department of Criminal Justice. A prolific author and speaker, Professor Bohm’s work has appeared in numerous publications. He is a frequent presenter and speaker at meetings and seminars of a variety of professional associations, including the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Southern Criminal Justice Association. Professor Bohm is a past-president (1992-93) and Fellow (1999) of the Academy of Criminal Justice Sciences, from which he has also received the Founder’s Award (2001) and the Bruce Smith, Sr. Award (2008).
History of the death penalty in the United States: The premodern period
THE DEATH PENALTY IN COLONIAL TIMES
Captain George Kendall, a councilor for the Virginia colony, was executed in 1608 for being a spy for Spain – and so began America's experience with capital punishment. The death penalty was just another one of the punishments brought to the New World by the early European settlers.
DEATH PENALTY LAWS
The crimes for which the death penalty was legally imposed varied from colony to colony. At one extreme was the law of the Puritans of the Massachusetts Bay Colony, which listed 12 death- eligible crimes: (1) idolatry, (2) witchcraft, (3) blasphemy, (4) murder, (5) manslaughter, (6) poisoning, (7) bestiality, (8) sodomy, (9) adultery, (10) man stealing, (11) false witness in capital cases, and (12) conspiracy and rebellion. Each of these capital crimes, except conspiracy and rebellion, was accompanied by a Biblical quotation as justification. For example, following murder was this Biblical passage, in the language of the statute: "If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death."
At the other extreme was the law of the Quakers who were far less punitive than their neighbors to the north. In the Royal Charter of South Jersey (1646), capital punishment was originally forbidden altogether, but the prohibition ended in 1691. William Penn's Great Act of 1682 (Pennsylvania) allowed capital punishment only for treason and murder. The Quakers, however, were the exception. Most of the British colonies had statutes similar to those of the Massachusetts Bay Colony.
Today it may seem as if the statutes of the colonies listed too many capital crimes (crimes for which death could be imposed), but for colonial times, the number was relatively modest. In Great Britain, death could be imposed for more than 50 crimes, including burglary, robbery, and larceny. Later, during the reign of George II (1727–1760), the number of capital crimes was increased to nearly 100, and under George III (1760–1820), the death penalty could be imposed for almost 150 capital crimes (some authorities maintain it was closer to 200 capital crimes). Moreover, for some of the moral or religious offenses, such as blasphemy, idolatry, adultery, sodomy, and bestiality, few offenders were ever executed in the colonies. The main reason for the relatively small number of capital crimes in colonial America was the great need for able-bodied workers. It made little sense to execute people at a time when workers were so scarce, and people could be made to work. The British colonies might have had even fewer capital crimes if long-term confinement facilities had been available. (The first prison was not established until 1790.)
EXECUTIONS AND SAVING SOULS
Executions in colonial America, though rare events, had a significant religious component that they lack today. They provided an especially dramatic occasion for saving souls. To be sure, executions served other purposes as well. They were considered just retribution – "an eye for an eye" – and a general deterrent to crime. They were also a stark reminder of what the state had the power to do to people who violated its laws. However, their role in saving souls was part of a morality lesson central to the clergy's social control of the colonists.
The twin beliefs that human beings were inherently depraved, victims of original sin or the fall from grace, and that they could be influenced by the devil or demons anchored the religious view of the world that dominated colonial America. Believers were taught that, to avoid eternal damnation, they must spend their lives fending off devilish enticements, controlling their evil natural urges, and seeking salvation. Fortunately, for sinners, religious doctrine guaranteed that repentance was possible for anyone, anytime prior to death, no matter how despicable their behavior. In this view, capital punishment both hastened a criminal's effort to repent and expiated the community's collective guilt for past crimes.
It was primarily for these religious reasons that condemned offenders typically were not executed for a week or two or, in some cases, several weeks, after conviction. So important was repentance and assuaging the community's collective guilt that the government was willing to forfeit some of the retributive and deterrent effect of the punishment by temporally separating the connection between the crime and the punishment. The delay was also costly to the government because it had to house and feed the condemned person during the interim and it increased the possibility that the condemned person would escape. Another reason for delaying the execution was to provide authorities a chance to publicize the impending execution, allowing spectators to make plans to attend.
A minister would regularly visit the condemned prisoner while the prisoner awaited execution (as could anybody else who wanted to do so). The minister's purpose was to prepare the condemned prisoner for death and the afterlife. If the minister were successful, as he apparently frequently was, the condemned prisoner would repent and accept Christ as his or her savior. Condemned prisoners were usually allowed to attend church on the day of worship just prior to their execution, where they were often the subjects of the sermon. As part of the ritual, condemned prisoners would often rise during the service and confess their guilt and proclaim their newfound faith to the congregation and especially its most influential members. Not only did such proclamations please the ministers who convinced condemned offenders to make them, but they also gave condemned prisoners their best opportunity of receiving executive clemency. (Influential congregants might petition the executive on behalf of the condemned person.) However, having nothing to lose by making the declarations, there was always some question about the condemned person's sincerity. Some pardoned convicted murderers were still branded on the thumb.
The ritual continued on hanging day beginning with the procession to the gallows, followed by a sermon (or sermons), sometimes the singing of hymns, and the condemned prisoner's last words. The entire ceremony was public and outdoors, and could take several hours to complete. No other public event in colonial America drew larger crowds than executions, and unlike public executions in the nineteenth century that were criticized for being drunken, irreverent, and rowdy events, public executions in colonial America were generally solemn occasions. They were considered a particularly wholesome experience for children. Having an audience many times larger than they normally had, ministers took advantage of public hangings to preach about the consequences of sin and the power of salvation. They also used the occasion to instruct spectators (and others who might later read about it) about the perils of resisting religious and secular authority. The same messages were also frequently conveyed by the condemned prisoner's last words. Ministers often took great pride in their execution day activities. For example, Cotton Mather, the famed Puritan minister, remarked in his diary following his sermon at the simultaneous execution of two condemned women that "'one of the greatest Assemblies, ever known in these parts of the World, was come together' to hear him preach." He also noted his "later satisfaction of seeing his sermon 'immediately printed, greedily bought up, and afterwards reprinted in London.'" The sermon remained a part of the execution ritual until public executions were finally abandoned in the twentieth century, although by 1820, accounts of many executions indicate that the minister's participation was limited to a brief prayer. Allowing the condemned prisoner to make a final statement is a ritual that is still practiced today.
Penitence is no longer an ostensible goal of capital punishment. The reason is that during the colonial period criminals were not viewed as fundamentally different from the rest of the population, as they are more likely to be today. The belief prevalent during the colonial period was that everyone was inherently evil, plagued by the curse of original sin, and that criminals were simply less able to control their primal urges or fend off the devil. Crime was considered a failure of will. Because crime triggered collective guilt, criminal repentance was a common goal. Today, criminals are routinely viewed as lacking the virtue of law-abiding citizens, fundamentally different, and alien to the rest of society. No longer is there a sense of collective guilt when a crime is committed; therefore, penitence is no longer such a major concern. In addition, with the current separation of church and state, religion no longer has the influence in secular affairs as it did during colonial times.
THE DEATH PENALTY IMPOSED
Although Captain Kendall's was the earliest recorded lawful execution in America, his punishment and the circumstances surrounding it differed from most of those that followed. First, his was an execution for a relatively unusual offense (spying/espionage), and second, he was shot instead of hanged. More than 20 years passed before the first murderer, John Billington, was executed in 1630. He was executed in the Massachusetts colony. In between Kendall and Billington, Frank Daniell (1622), Cornish Richard (1624), and Hayle Thomas (1626) were executed for theft, sodomy (buggery/ bestiality), and rape, respectively. All four men were hanged in the Virginia colony. Of the 162 colonists executed in the seventeenth century (for which the offense is known – 85 percent of the total), nearly 40 percent were executed for murder, about 25 percent for witchcraft, and nearly 15 percent for piracy. No other crimes accounted for more than 8 percent of all executions. Most of the executed were hanged (88%), 10 percent were shot, an alleged witch was pressed to death, and a convicted arsonist was burned.
Since Kendall's execution in 1608, more than 19,000 executions, performed in the United States under civil (as opposed to military) authority, have been confirmed by M. Watt Espy, the leading historian of capital punishment in the United States. Espy estimated that between 20,000 and 22,500 people have been executed by legal authority since 1608. This estimate does not include the approximately 10,000 people lynched in the nineteenth century. Only 1,553 of the 19,000 executions – less than 10 percent of the total – occurred during this country's first two centuries. Compared to more recent times and using only total executions, colonial Americans appear to have used the death penalty sparingly. More executions were conducted in the 1930s (1,676) than in the entire 1600s (162) and 1700s (1,391). However, if rates of execution are compared, colonial Americans executed many more people per capita than Americans at any other time in their history; in fact, in relation to population, the colonists' use of the death penalty was comparable to Britain's use of the death penalty during the same period. Viewed historically, from 1608 to the present, there has been a long-term decline in the rate of executions.
Nearly all the people executed from the seventeenth century to the present in America have been adult men; only about 3 percent (approximately 569) have been women. Ninety percent of the women were executed under local, as opposed to state, authority, and the majority (87%) was executed prior to 1866. A quarter of all women executed met their fates during the 1600s (42) and 1700s (100). The first woman executed in America was Jane Champion in the Virginia colony in 1632. She was hanged for murdering and concealing the death of her child, who allegedly was fathered by William Gallopin and not her husband. The most women executed in any single year in America were the 14 women hanged for witchcraft in Massachusetts in 1692. The number of women executed declined dramatically with the decline in the prosecution of moral offenses. Adultery was last punished with legal execution in the 1640s, and executions for witchcraft ended in 1692.
1. History of the Death Penalty in the United States: The Pre–Modern Period (1608–1972) 2. Capital Punishment and the Supreme Court: The Pre–Modern Period 3. The Challenge to Capital Punishment's Legality 4. Capital Punishment and the Supreme Court: The Modern Period 5. The Death Penalty at the Federal Level, in the Military, and Globally 6. Methods of Execution 7. General Deterrence and the Death Penalty 8. Incapacitation and Economic Costs of Capital Punishment 9. Miscarriages of Justice and the Death Penalty 10. Arbitrariness and Discrimination in the Administration of the Death Penalty 11. Retribution, Religion, and Capital Punishment 12. American Death Penalty Opinion