As individuals, we are asked to make choices in helping to determine our future. In an attempt to understand our present status and evaluate the future of capital punishment in America, it is necessary to understand some of its distinguishable trends of the past. Each trend in the history of capital punishment represents the struggle between retentioniststhose who would maintain capital punishment and abolitionists, who oppose lawful death by the American government.
America’s earliest recorded legal execution dates back to 1622 in the Colony of Virginia. Since Daniel Frank’s execution for theft, an estimated 20,000 people were lawfully put to death over the next three centuries. About half as many were lynched in the street. (There was no penalty for street lynchings.) Questions were raised by concerned citizens regarding the morality of the practice and about the methods of punishment that were used, but the practice continued.
As early as 1892, the Supreme Court had need to rule on the idea of cruel and unusual punishment. It was not until 1910 in Weens v. U.S., the Supreme Court ruled that ‘the proscriptions of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature.‘ The Court’s decision acknowledged that its opinion of the proscription of cruel and unusual punishment was not fastened to the obsolete (earlier practices of law and method could be changed).
By 1967, efforts were under way to persuade the Supreme Court that ‘the infliction of death by law violated the national Constitution in particular the Eighth Amendment, which forbids the infliction of cruel and unusual punishments.‘ (Black, ’8l.)
In a 1972 landmark decision, the U.S. Supreme Court was persuaded that the practice was unconstitutional in the case of Furman v. Georgia. In a 5 to 4 decision the Court ruled that the death penalty, as presently administered was unconstitutional, with trial judges and juries having too much discretion in choosing a life sentence or the death penalty. The decision did not declare capital punishment unconstitutional, however.
After the Furman decision was announced, it became apparent that the controversy over the death penalty would continue with a degree of urgency to answer other questions surrounding its usefulness and its practices. The decision was neither a clear victory for retentionists or abolitionists.
Although, the decision effectively voided the death sentences of six hundred-thirty-one persons on death row and in thirty-two states, it did not settle the question of whether this society should have a penalty of death as a form of punishment. Although personal opposition to capital punishment was expressed by eight of the nine Supreme Court Justices, only two of the nine thought that the death penalty in any form was unconstitutional.
In that same year, in a 1972 press conference, President Richard Nixon announced his support of the death penalty, for certain crimes and took decisive action to restore it. Also in that same year, California passed Proposition 17 to restore a mandatory death penalty for several crimes and to prevent judicial review of such legislation. One year after the Furman decision, bills had been introduced to restore capital punishment in thirtysix state legislatures. A Gallup poll indicated that 57% of the adult public (‘far removed‘ or ‘informed public‘) supported the death penalty in some form.
Two years after Furman, twenty-eight states had new death penalty legislation and more than one hundred persons in seventeen states had been sentenced to death under these new laws, although none were actually executed. Despite the moratorium on executions, the country was still unwilling to abolish the death penalty.
In only four years, after the Furman decision, more than four hundred people were on death row in thirty-two states. Already, the U.S. Supreme Court had begun review of its next death penalty case, ‘Fowler v. North Carolina.‘
Wherein many thought that Furman had signaled an end to the system of capital punishment, it was merely an interruption in the practice of lawful killing. In essence, it may have had an opposite effect. Furman signaled a frenzy of legal activity. In order to reinstate the death penalty, state laws were written in compliance with the Furman ruling. Clearly the objective was to maintain the death penalty.
‘Just as Furman was greeted as the abolition of capital punishment, McClesky has been described as the abandonment of constitutional regulation of the death penalty.‘(Black, ’8l) McClesky suggested a case-by-case approach to reviewing existing death sentences. The claims of racial discrimination brought by McClesky suggested that the system of capital punishment in America is discriminatory in its very nature. The system will exist as long as discretionary judgment is upheld as a necessary part of the procedural process.