Moral and Religious Influences - Deciding Who Dies

The death penalty was automatic upon conviction of a capital crime in England and the colonies. To avoid always handing down such harsh punishment, exclusion rules were adopted by colonial courts. First clergy were excluded, then those who could read or write, and then women. Such rules were soon restricted during the 1700s and were abolished in England by 1827.

Other kinds of exclusions were created. States such as Pennsylvania distinguished between different kinds of murder A 1998 protest in Austin, Texas, to stop the planned execution of convicted murderer Karla Faye Tucker. (AP/Wide World Photos)
to avoid mandatory death sentences. In 1938 Tennessee was the first state to do away with automatic death sentences and give juries the power to decide between death and prison for a convicted offender. Other states followed this change, with New York being the last to adopt flexible sentencing for premeditated murder in 1963.

Flexible or "discretionary" procedures led to a 1972 U.S. Supreme Court ruling. The Court ruled in Furman v. Georgia that how state courts determined the death penalty in individual cases made it a cruel and unusual punishment and unconstitutional. The Court ruled that jury guidelines were often too vague, juries were not fully informed, and offenders were given the death penalty without following a comprehensive set of rules. After the ruling, states had to establish clear guidelines and require juries to consider the background and circumstances of an offender before determining a sentence.

Capital offense trials became two trials, one to determine guilt, and if found guilty to determine the sentence. Different evidence was considered in the sentencing phase than in the trial phase. The jury had to consider the offender's background as well as facts about the victim and crime. All states and the federal courts require appeals of anyone sentenced to death.