The Past and Present of America’s Death Penalty

October 1, 2018 | Sarina Redzinski

We know the phrase by heart: you are innocent until proven guilty. But what happens when being “proven guilty” doesn’t mean you committed the crime you’ve been accused of? And what if there is a life hanging in the balance? These are just a couple of many questions facing lawmakers, judges, and juries in Alabama, Arizona, Arkansas, Florida, Georgia, Missouri, Nevada, Ohio, Oklahoma, Texas, and Virginia: the eleven remaining states that still allow the death penalty.

The history of the death penalty in the United States is a long and contentious one.¹ Traveling from Europe, new settlers continued the centuries old tradition of the death penalty beginning in the Massachusetts Bay Colony in 1630. Then, a bit over 100 years later, the abolitionist movement began, during which Cesare Beccaria wrote his essay On Crimes and Punishment. He argues in this essay that there is never justification for the state taking a citizen’s life, reinvigorating the movement and inspiring countries like Austria and Tuscany to do away with the death penalty altogether. Concurrently Thomas Jefferson introduced a bill to reform Virginia’s death penalty laws so that it only be used for crimes of murder and treason. The bill, however, did not pass, struck down by one vote. Meanwhile, Pennsylvania successfully did away with capital punishment for all crimes except for first degree murder, a crusade led by Dr. Benjamin Rush, Benjamin Franklin, and Philadelphia Attorney General William Bradford. In 1834, Pennsylvania also became the first state to take executions out of the public eye, performing them in correctional facilities instead. Other states, like Michigan, Rhode Island, and Wisconsin, also reformed their death penalty laws around this period.

Still, some states were not willing to give up capital punishment. Laws attempting to make the death penalty more popular again, like those against mandatory death sentences, were enacted, ending almost all mandatory death penalty laws by 1963. Then, in the wake of the Civil War and a new country-wide human rights focus, the death penalty held on. By the end of the century, the electric chair was introduced as an execution method.

In the early and mid-twentieth century, the death penalty’s status was in constant flux. For ten years at the turn of the 1900s, six states outlawed the death penalty, and three states limited it to treason and first degree murder of a law enforcement officer. Then, with the looming threat of revolution after that of Russia and the country’s involvement in the first world war, five of the six states that had originally eliminated the death penalty reinstated it by 1920. Cyanide gas was introduced as a new execution method, and for the next twenty years, the use of capital punishment increased dramatically. In the 1930s, there was an average of 167 executions per year.

By the 1950s, though, the public began to once again generally disapprove of the death penalty. Executions dropped in the U.S., while abroad many allies abolished it or limited its scope. Support dipped and a Gallup poll claimed only 42% of the country still favored it. Then came an arduous fight to fine tune the death penalty based on the fact that it may be considered “cruel and unusual punishment.” Restrictions were placed on juror selection and discretion.

Eventually, though, attention turned to the fundamental constitutionality of capital punishment. In 1972, the case of Furman v. Georgia (Furman v. Georgia, 408 U.S. 238 (1972)) resulted in the Supreme Court declaring that the enforcement of the executions under the current statutes was against the Eighth Amendment, suspending the death penalty by a vote of 5 to 4. Until, that is, states began reforming their laws to include factors like sentencing guidelines, bifurcated trails, automatic appellate review, and proportionality review. Essentially, this meant that the suspension of executions could end, which it did in 1977 with the firing squad execution of Gary Gilmore in Utah.

Restrictions on the law, including the exclusion of juveniles² and the intellectually disabled³ from its sentencing, continued to pop up in Supreme Court cases, but the law itself has still stuck around. Public sentiment, on the other hand, didn’t seem to be quite as resilient. Not long ago, in October 2017, Gallup published a report that claimed “Americans’ support for the death penalty has dipped to a level not seen in 45 years.”⁴

One reason for this dip in support could be the recent push to protect the wrongfully convicted. According to the Death Penalty Information Center, more than 155 people have been exonerated from death row since 1973, with the rate of exonerations increasing from 3 per year to 5 per year between 1973-1999 and 2000-2011.⁵ On the USA Amnesty International’s website there is a list of some of these cases, like Henry McCollum and Leon Brown, two intellectually disabled men who were 19 and 15 when they unknowingly confessed to rape and murder, or Seth Penalver, who was convicted of three murders based on a poor-quality video (which didn’t even show the murderer’s face) and zero physical evidence.⁶ Stories like these may sound like fodder for dramatic late night news specials, but they are all too common. And while 155 exonerated people may not sound like much in comparison to the 1,483 who have already been put to death, some studies show that the rate of innocence among death row inmates may be even higher.⁷

In 2014 a study was published that sought to measure how many convicts on death row were actually innocent of the crimes they had been sentenced to death for committing. In their abstract, Gross et. al. explains the process of this study:

“The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”⁸

Their study argues that there are a large number of innocent people serving life sentences, never to be exonerated because they were taken off of death row. But, if they had stayed on, investigation into their cases likely would have led to their release and the overturn of an unjust sentencing. By the end of their study, the researchers explain how “interviews with jurors who participated in capital sentencing proceedings indicate that lingering doubts about the defendant’s guilt is the strongest available predictor of a sentence of life imprisonment rather than death” due to the fear of executing an innocent person.⁹ And these jurors are not alone. Besides the eleven states previously mentioned that still use capital punishment, all other states have abandoned the death penalty in order to avoid such sticky ethical and legal grounds, as well as to represent a moral shift among citizens.

With so many states abandoning executions entirely because of such statistics and studies proving the unpopularity and danger of such an extreme sentence, it becomes more difficult to discern the motivation behind some states’ unflinching support. An important and recent example of this, which allows a deeper understanding of the contradictions and complexities of the death penalty debate, is that of Eric Scott Branch in Florida. On February 22, 2018, despite concerns the inmate and his council raised about the constitutionality of his sentencing, he was executed. A ruling by the Supreme Court in Hurst v. Florida (Hurst v. Florida, 577 US __ (2016)) declared Florida’s laws on jury sentencing for the death penalty unconstitutional, stating that the judges had too much power in deciding life or death. This essentially meant that Florida had to change their law requiring only 10 out of 12 jurors to agree on imposing the death penalty, so that now jurors must be in unanimous agreement in order for someone to be put to death.

Branch had been sentenced to death in 1994 with a jury vote of 10 to 2—22 years before such rulings were declared unconstitutional. He asked for re-sentencing and filed for appeal, but all of his requests were denied and he was eventually executed by lethal injection.¹⁰ As the officials administered the drugs, Branch thrashed about on the gurney and shouted out “murderers!” three times before succumbing to the sedative.¹¹

Without the context of Branch’s crimes, it is easy to sympathize with his plight—he was executed unconstitutionally after fighting for his life for years. As officials began to prepare the injection, Branch turned to them in a moment of understanding and said, in reference to state governor Rick Scott and his attorney general, “let them come down here and do it,” then told the workers who were executing him “I’ve learned that you’re good people and this is not what you should be doing.”¹²

But Branch was far from innocent. He was convicted of strangling and raping college student Susan Morris in 1993 (as well as, according to Scott’s office, raping and beating a 14 year old in Indiana and raping another woman in Florida). In justifying their decision not to re-sentence Branch on February 15th, the Supreme Court of Florida mentioned their original description of the shocking brutality in his crime: “Morris’s nude body was found later in nearby woods; she had been beaten, stomped, sexually assaulted and strangled.”¹³ Given these details, Branch becomes a much less tragic figure and a far more evil one, maybe even one whose death we feel inclined to celebrate. How could the world be worse off without another rapist and murderer?

And yet Branch was still a human being. It is easy, and perhaps more comfortable, to make him into a flat caricature of evil, a man without feeling or empathy. But even in the Supreme Court of Florida’s report, they cited four mitigating factors that the jury had found: “Branch had an unstable childhood; Branch possessed positive personality traits; Branch behaved acceptably during trial; and Branch was remorseful.”¹⁴ Though he had done terrible things, he was not immune to their impact, and he hadn’t exactly had the easiest life himself.

This line of thinking often elicits a chorus of groans—why should we feel bad for a murderer? What about the victim and her family? And his other victims, too? And people are surely right in asking this. Branch’s attacks were markedly appalling and horrific, and the girl and women he attacked deserve justice. But justice is a vague, subjective concept. Using that word is a way to avoid truly examining our country’s understanding of crime and punishment. Is it really just to put someone to death when his sentencing was declared unconstitutional by the Supreme Court? Maybe to some it doesn’t matter because of his crimes. But who gets to decide that? How can we be sure that what we are doing is truly bringing about justice? What moral compass are we turning to, whose sense of right and wrong are we following?

If it seems like there are more questions than answers here, it’s because the death penalty is a slippery and complex issue. But ultimately it comes down to this: it is incredibly dangerous to imbue our government with the right to sentence any of its people to death. Mistakes get made and innocent people die. And even when the executed are not innocent, there are still huge missteps in this process. Regardless of whether it is moral or immoral to put someone to death (which is another conversation for another time), there are too many flaws in this system for it to succeed.

Sarina Redzinski is a senior at Johns Hopkins University, where she majors in English and Writing Seminars. One of her main areas of focus is capital punishment, which she was able to further explore this past summer during her internship at the National Coalition to Abolish the Death Penalty (NCADP).

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Citations

¹ The following history is paraphrased from the History of the Death Penalty section on the Death Penalty Information Center’s website: https://deathpenaltyinfo.org/part-i-history-death-penalty and https://deathpenaltyinfo.org/part-ii-history-death-penalty

² Roper v. Simmons, 543 U.S. 551 (2005)

³ Atkins v Virginia, 536 US 304 (2002)

⁴ “U.S. Death Penalty Support Lowest Since 1972 – Gallup.com.” October 26, 2017. http://news.gallup.com/poll/221030/death-penalty-support-lowest-1972.aspx.  Accessed September 28, 2018,

⁵ “Facts About the Death Penalty – Death Penalty Information Center.” DPIC. February 23, 2018. https://deathpenaltyinfo.org/documents/FactSheet.pdf. Accessed September 28, 2018.

⁶ “Death Penalty and Innocence – Amnesty International USA,” Amnesty International USA. https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/death-penalty-and-innocence/. Accessed September 28, 2018.

⁷ “The Next to Die, Watching Death Row – The Marshall Project.” https://www.themarshallproject.org/next-to-die. Accessed September 28, 2018.

⁸ “Rate of false conviction of criminal defendants who are sentenced to death,” ed. Lee D. Ross, PNAS. 111, no. 20 (May 20). DOI:https://doi.org/10.1073/pnas.1306417111. Abstract, accessed September 28, 2018.

⁹ Samuel R. Gross et al., “Rate of false conviction of criminal defendants who are sentenced to death,” ed. Lee D. Ross, PNAS. 111, no. 20 (May 20, 2014). DOI:https://doi.org/10.1073/pnas.1306417111. 6, accessed September 28, 2018.

¹⁰ “The Next to Die, Watching Death Row – The Marshall Project.” https://www.themarshallproject.org/next-to-die. Accessed September 28, 2018.

¹¹ Lindsey Bever, “‘Murderers! Murderers!’: A convicted killer’s last… – The Washington Post.” February 23, 2018.  https://www.washingtonpost.com/news/post-nation/wp/2018/02/23/murderers-murderers-a-convicted-killer-screamed-as-he-was-executed-in-florida/?utm_term=.bcc577ea9b89. Accessed September 28, 2018.

¹² Lindsey Bever, “‘Murderers! Murderers!’: A convicted killer’s last… – The Washington Post.” February 23, 2018.  https://www.washingtonpost.com/news/post-nation/wp/2018/02/23/murderers-murderers-a-convicted-killer-screamed-as-he-was-executed-in-florida/?utm_term=.bcc577ea9b89. Accessed September 28, 2018.

¹³ Branch v. State (Branch I), 685 So. 2d 1250 (Fla. 1996), cert. denied, 520 U.S. 1218 (1997). Id. at 1251-52.

¹⁴ Eric Scott Branch v. State of Florida, Florida Supreme Court (2018), http://www.floridasupremecourt.org/ Id. at 3. (Last visited Sept 28, 2018).

Photo Credit: Maryland Gov Pics