Capital Punishment: Legal Aspects

From the founding of the Republic through the nineteenth century and into the twentieth century, states made a number of changes in their capital statutes. In both the nineteenth and twentieth centuries, there were periodic waves of legislative abolition, starting with Michigan in 1846 and concluding with New Mexico in 1969, but of the twenty-two states that voted to abolish capital punishment for ordinary murder during this period, eleven eventually reinstated the death penalty. As of early 2001 only twelve states and the District of Columbia do not have capital punishment statutes (Massachusetts, the twelfth state, had its capital murder statute struck down under that state's constitution by the Massachusetts Supreme Judicial Court in 1984).

The states also made changes over the years in the crimes eligible for capital punishment. Perhaps the most significant change was commenced by Pennsylvania in 1794 when it became the first state to divide murder into "degrees," rendering only "first-degree" murder—murder accompanied by "premeditation and deliberation"—eligible for the death penalty. This innovation was widely followed, and it restricted the scope of the death penalty to a smaller pool of convicted murderers. In addition to murder, a number of other crimes were commonly covered by capital statutes well into the twentieth century, including rape, kidnapping, and armed robbery, as well as extraordinary crimes such as treason, espionage, and sabotage.

As for capital trial procedures, the states wrought surprisingly little change on their own over the years before the federal constitution was held to compel such change late in the twentieth century. Before the constitutional era, capital trials did not tend to differ markedly from ordinary felony trials, although capital sentencing was generally placed in the hands of juries rather than judges, who conducted most other, ordinary criminal sentencing. Finally, states made a number of changes over the years in the methods of executions they employed. While public hanging was by far the most prevalent mode of execution at the time of the founding, death by electrocution, by lethal gas chamber, and by lethal injection later almost completely displaced hanging, with lethal injection being by far the most common mode employed today. No American jurisdiction currently conducts any executions in public, despite occasional interest from members of the public and the media.