In the 14th Century BC, the Hittite Code also prescribed the death penalty. The 7th Century BC Draconian Code of Athens made death the penalty for every crime committed. In the 5th Century BC, the Roman Law of the Twelve Tablets codified the death penalty. Again, the death penalty was different for nobility, freemen and slaves and was punishment for crimes such as the publication of libels and insulting songs, the cutting or grazing of crops planted by a farmer, the burning [of] a house or a stack of corn near a house, cheating by a patron of his client, perjury, making disturbances at night in the city, willful murder of a freeman or a parent, or theft by a slave. Death was often cruel and included crucifixion, drowning at sea, burial alive, beating to death, and impalement (often used by Nero). The Romans had a curious punishment for parricides (murder of a parent): the condemned was submersed in water in a sack, which also contained a dog, a rooster, a viper and an ape.[1] The most notorious death execution in BC was about 399 BC when the Greek philosopher Socrates was required to drink poison for heresy and corruption of youth.[2]

Mosaic Law codified many capital crimes. In fact, there is evidence that Jews used many different techniques including stoning, hanging, beheading, crucifixion (copied from the Romans), throwing the criminal from a rock, and sawing asunder. The most infamous execution of history occurred approximately 29 AD with the crucifixion of Jesus Christ outside Jerusalem. About 300 years later, the Emperor Constantine, after converting to Christianity, abolished crucifixion and other cruel death penalties in the Roman Empire. In 438, the Code of Theodosius made more than 80 crimes punishable by death.[3]

Britain influenced the colonies more than any other country and has a long history of punishment by death. About 450 BC, the death penalty was often enforced by throwing the condemned into a quagmire. By the 10th Century, hanging from gallows was the most frequent execution method. William the Conqueror opposed taking life except in war, and ordered no person to be hanged or executed for any offense. However, he allowed criminals to be mutilated for their crimes. During the middle ages, capital punishment was accompanied by torture. Most barons had a drowning pit as well as gallows and they were used for major as well as minor crimes. For example, in 1279, two hundred and eighty nine Jews were hanged for clipping coin. Under Edward I, two gatekeepers were killed because the city gate had not been closed in time to prevent the escape of an accused murderer. Burning was the punishment for women's high treason and men were hanged, drawn and quartered. Beheading was generally accepted for the upper classes. One could be burned for marrying a Jew. Pressing became the penalty for those who would not confess to their crimes. The executioner placed heavy weights on the victim's chest. On the first day he gave the victim a small quantity of bread, on the second day a small drink of bad water, and so on until he confessed or died. Under the reign of Henry VIII, the numbers of those put to death are estimated as high as 72,000. Boiling to death was another penalty approved in 1531, and there are records to show some people boiled for up to two hours before death took them. When a woman was burned, the executioner tied a rope around her neck when she was tied to the stake. When the flames reached her she could be strangled from outside the ring of fire. However, this often failed and many were literally burnt alive.[4]

In Britain, the number of capital offenses continually increased until the 1700's when two hundred and twenty-two crimes were punishable by death. These included stealing from a house in the amount of forty shillings, stealing from a shop the value of five shillings, robbing a rabbit warren, cutting down a tree, and counterfeiting tax stamps. However, juries tended not to convict when the penalty was great and the crime was not. Reforms began to take place. In 1823, five laws passed, exempting about a hundred crimes from the death [penalty]. Between 1832 and 1837, many capital offenses were swept away. In 1840, there was a failed attempt to abolish all capital punishment. Through the nineteenth and twentieth centuries, more and more capital punishments were abolished, not only in Britain, but also all across Europe, until today only a few European countries retain the death penalty.[5]

The first recorded execution in the English American colonies was in 1608 when officials executed George Kendall of Virginia for supposedly plotting to betray the British to the Spanish. In 1612, Virginia's governor, Sir Thomas Dale, implemented the Divine, Moral, and Martial Laws that made death the penalty for even minor offenses such as stealing grapes, killing chickens, killing dogs or horses without permission, or trading with Indians. Seven years later these laws were softened because Virginia feared that no one would settle there.[6]

In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the crime of theft.[7] Some colonies were very strict in their use of the death penalty, while others were less so. In Massachusetts Bay Colony the first execution was in 1630, but the earliest capital statutes do not occur until later. Under the Capital Laws of New-England that went into effect between 1636-1647 the death penalty was meted out for pre-meditated murder, sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape, manstealing, perjury in a capital trial, rebellion, manslaughter, poisoning and bestiality. Early laws were accompanied by a scripture from the Old Testament. By 1780, the Commonwealth of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and treason.[8]

The New York colony instituted the so-called Duke's Laws of 1665. This directed the death penalty for denial of the true God, pre-meditated murder, killing someone who had no weapon of defense, killing by lying in wait or by poisoning, sodomy, buggery, kidnapping, perjury in a capital trial, traitorous denial of the king's rights or raising arms to resist his authority, conspiracy to invade towns or forts in the colony and striking one's mother or father (upon complaint of both). The two colonies that were more lenient concerning capital punishment were South Jersey and Pennsylvania. In South Jersey there was no death penalty for any crime and there were only two crimes, murder and treason, punishable by death.[9]

However under the direction of the Crown, harsher penal codes were execution there until 1691 [sic]. In Pennsylvania, William Penn's Great Act (1682) made passed in the colonies [sic]. By 1776, most of the colonies had roughly comparable death statutes which covered arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting. Hanging was the usual sentence. Rhode Island was probably the only colony which decreased the number of capital crimes in the late 1700's.

Some states were more severe. For example, by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others. However, North Carolina did not have a state penitentiary and, many said, no suitable alternative to capital punishment.[10]

The first reforms of the death penalty occurred between 1776-1800. Thomas Jefferson and four others, authorized to undertake a complete revision of Virginia's laws, proposed a law that recommended the death penalty for only treason and murder. After a stormy debate the legislature defeated the bill by one vote. The writing of European theorists such as Montesquieu, Voltaire, and Bentham had a great effect on American intellectuals, as did English Quaker prison reformers John Bellers and John Howard.[11]

On Crimes and Punishment, published in English in 1767 by the Italian jurist Cesare Beccaria, whose exposition on abolishing capital punishment was the most influential of the time, had an especially strong impact. He theorized that there was no justification for the taking of life by the state. He said that the death penalty was "a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good." He asked the question what if it can be shown not to be necessary or useful? His essay conceded that the only time a death was necessary was when only one's death could insure the security of a nation -- which would be rare and only in cases of absolute anarchy or when a nation was on the verge of losing its liberty. He said that the history of using punishment by death (e.g., the Romans, 20 years of Czaress Elizabeth) had not prevented determined men from injuring society and that death was only a "momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty...."[12]

Organizations were formed in different colonies for the abolition of the death penalty and to relieve poor prison conditions. Dr. Benjamin Rush, a renowned Philadelphia citizen, proposed the complete abolition of capital punishment. William Bradford, Attorney General of Pennsylvania, was ordered to investigate capital punishment. In 1793 he published An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania. He strongly insisted that the death penalty be retained, but admitted it was useless in preventing certain crimes. In fact, he said the death penalty made convictions harder to obtain, because in Pennsylvania, and indeed in all states, the death penalty was mandatory and juries would often not return a guilty verdict because of this fact. In response, in 1794, the Pennsylvania legislature abolished capital punishment for all crimes except murder "in the first degree," the first time murder had been broken down into "degrees." In New York, in 1796, the legislature authorized construction of the state's first penitentiary, abolished whipping, and reduced the number of capital offenses from thirteen to two. Virginia and Kentucky passed similar reform bills. Four more states reduced its capital crimes: Vermont in 1797, to three; Maryland in 1810, to four; New Hampshire in 1812, to two and Ohio in 1815, to two. Each of these states built state penitentiaries. A few states went the opposite direction. Rhode Island restored the death penalty for rape and arson; Massachusetts, New Jersey, and Connecticut raised death crimes from six to ten, including sodomy, maiming, robbery, and forgery. Many southern states made more crimes capital, especially for slaves.[13]

The first great reform era occurred between 1833-1853. Public executions were attacked as cruel. Sometimes tens of thousands of eager viewers would show up to view hangings; local merchants would sell souvenirs and alcohol. Fighting and pushing would often break out as people jockeyed for the best view of the hanging or the corpse! Onlookers often cursed the widow or the victim and would try to tear down the scaffold or the rope for keepsakes. Violence and drunkenness often ruled towns far into the night after "justice had been served." Many states enacted laws providing private hangings. Rhode Island (1833), Pennsylvania (1834), New York (1835), Massachusetts (1835), and New Jersey (1835) all abolished public hangings. By 1849, fifteen states were holding private hangings. This move was opposed by many death penalty abolitionists who thought public executions would eventually cause people to cry out against execution itself. For example, in 1835, Maine enacted what was in effect a moratorium on capital punishment after over ten thousand people who watched a hanging had to be restrained by police after they became unruly and began fighting. All felons sentenced to death would have to remain in prison at hard labor and could not be executed until one year had elapsed and then only on the governor's order. No governor ordered an execution under the "Maine Law" for twenty-seven years. Though many states argued the merits of the death penalty, no state went as far as Maine. The most influential reformers were the clergy. Ironically, the small but powerful group which opposed the abolitionists were also clergy. They were, almost to a person, members of the Calvinist clergy, especially the Congregationalists and Presbyterians who could be called the religious establishment of the time. They were led by George Cheever.[14]

Finally, in 1846, Michigan became the first state to abolish the death penalty (except for treason against the state), mostly because it had no long tradition of capital punishment (there had been no hanging since 1830, before statehood) and because frontier Michigan had few established religious groups to oppose it as was the case in the east. In 1852, Rhode Island abolished the death penalty led by Unitarians, Universalists, and especially Quakers. In the same year, Massachusetts limited its death penalty to first-degree murder. In 1853, Wisconsin abolished the death penalty after a gruesome execution in which the victim struggled for five minutes at the end of the rope, and a full eighteen minutes passed before his heart finally quit.[15]

During the last half of the century the death penalty abolition movement ground to a half, with many members moving into the slavery abolition movement. At the same time, states began to pass laws against mandatory death sentences. Legislators in eighteen states shifted from mandatory to discretionary capital punishment by 1895, not to save lives, but to try to increase convictions and executions of murderers. Still, abolitionists gained a few victories. Maine abolished the death penalty, restored it, and then abolished it again between 1876-1887. Iowa abolished the death penalty for six years. Kansas passed a "Maine Law" in 1872 which operated as de facto abolition.[16]

Electrocution as a method of execution came onto the scene in an unlikely manner. Edison Company with its DC (direct current) electrical systems began attacking Westinghouse Company and its AC (alternating current) electrical systems as they were pressing for nationwide electrification with alternating current. To show how dangerous AC could be, Edison Company began public demonstrations by electrocuting animals. People reasoned that if electricity could kill animals, it could kill people. In 1888, New York approved the dismantling of its gallows and the building of the nation's first electric chair. It held its first victim, William Kemmler, in 1890, and even though the first electrocution was clumsy at best, other states soon followed the lead.[17]

The Second Great Reform era was 1895-1917. In 1897, U.S. Congress passed a bill reducing the number of federal death crimes. In 1907, Kansas took the "Maine Law" a step further and abolished all death penalties. Between 1911 and 1917, eight more states abolished capital punishment (Minnesota, North Dakota, South Dakota, Oregon, Arizona, Missouri and Tennessee -- the latter in all cases but rape). Votes in other states came close to ending the death penalty.

However, between 1917 and 1955, the death penalty abolition movement again slowed. Washington, Arizona, and Oregon in 1919-20 reinstated the death penalty. In 1924, the first execution by cyanide gas took place in Nevada, when Tong war gang murderer Gee Jon became its first victim. The state wanted to secretly pump cyanide gas into Jon's cell at night while he was asleep as a more humanitarian way of carrying out the penalty, but, technical difficulties prohibited this and a special "gas chamber" was hastily built. Other concerns developed when less "civilized" methods of execution failed. In 1930, Mrs. Eva Dugan became the first female to be executed by Arizona. The execution was botched when the hangman misjudged the drop and Mrs. Dugan's head was ripped from her body. More states converted to electric chairs and gas chambers. During this period of time, abolitionist organizations sprang up all across the country, but they had little effect. There were a number of stormy protests against the execution of certain convicted felons (e.g., Julius and Ethel Rosenberg), but little opposition against the death penalty itself. In fact, during the anti-Communist period with all its fears and hysteria, Texas Governor Allan Shivers seriously suggested that capital punishment be the penalty for membership in the Communist Party.[18]

The movement against capital punishment revived again between 1955 and 1972.

England and Canada completed exhaustive studies which were largely critical of the death penalty and these were widely circulated in the U.S. Death row criminals gave their own moving accounts of capital punishment in books and film. Convicted kidnapper Caryl Chessman published Cell 2455 Death Row and Trial by Ordeal. Barbara Graham's story was utilized in book and film with I Want to Live! after her execution. Television shows were broadcast on the death penalty. Hawaii and Alaska ended capital punishment in 1957, and Delaware did so the next year. Controversy over the death penalty gripped the nation, forcing politicians to take sides. Delaware restored the death penalty in 1961. Michigan abolished capital punishment for treason in 1963. Voters in 1964 abolished the death penalty in Oregon. In 1965 Iowa, New York, West Virginia, and Vermont ended the death penalty. New Mexico abolished the death penalty in 1969.[19]

Trying to end capital punishment state-by-state was difficult at best, so death penalty abolitionists turned much of their efforts to the courts. They finally succeeded on June 29, 1972 in the case Furman v. Georgia. In nine separate opinions, but with a majority of 5-4, the U.S. Supreme Court ruled that the way capital punishment laws were written, including discriminatory sentencing guidelines, capital punishment was cruel and unusual and violated the Eighth and Fourteenth Amendments. This effectively ended capital punishment in the United States. Advocates of capital punishment began proposing new capital statutes which they believed would end discrimination in capital sentencing, therefore satisfying a majority of the Court. By early 1975, thirty states had again passed death penalty laws and nearly two hundred prisoners were on death row. In Gregg v. Georgia (1976), the Supreme Court upheld Georgia's newly passed death penalty and said that the death penalty was not always cruel and unusual punishment. Death row executions could again begin. Another form of execution was soon found. Oklahoma passed the first death by lethal injection law, based on economics as much as humanitarian reasons. The old electric chair that had not been used in eleven years would require expensive repairs. Estimates of over $200,000 were given to build a gas chamber, while lethal injection would cost no more than ten to fifteen dollars "per event."[20]

The controversy over the death penalty continues today. There is a strong movement against lawlessness propelled by citizens' fears for their security. Politicians at the national and state levels are taking the floor of legislatures and calling for more frequent death penalties, death penalties penalty [sic] for more crimes, and longer prison sentences. Those opposing these moves counter by arguing that tougher sentences do not slow crime and that crime is little or no worse than in the past. In fact, FBI statistics show murders are now up. (For example 9.3 persons per 100,000 population were murdered in 1973 and 9.4 persons per 100,000 were murdered in 1992). The battle lines are still drawn and the combat will probably always be fought.[21]

A number of important capital punishment decisions have been made by the Supreme Court. The following is a list of the more important ones along with their legal citations:

Wilkerson v. Utah 99 U.S. 130 (1878) -- Court upheld execution by firing squad, but said that other types of torture such as "drawing and quartering, embowelling alive, beheading, public dissection, and burring alive and all other in the same line of...cruelty, are forbidden."

Weems v. U.S. 217 U.S. 349 (1910) -- Court held that what constitutes cruel and unusual punishment had not been decided, but that it should not be confined to the "forms of evil" that framers of the Bill of Rights had experienced. Therefore, "cruel and unusual" definitions are subject to changing interpretations.

Louisiana ex rel. Francis v. Resweber 329 U.S. 459 (1947) -- On May 3, 1946, convicted seventeen year old felon Willie Francis was placed in the electric chair and the switch was thrown. Due to faulty equipment, he survived (even though he was severely shocked), was removed from the chair and returned to his cell. A new death warrant was issued six days later. The Court ruled 5-4 that it was not "cruel and unusual" to finish carrying out the sentence since the state acted in good faith in the first attempt. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment," said the Court, "not the necessary suffering involved in any method employed to extinguish life humanely." He was then executed.

Tropp v. Dulles 356 U.S. 86 (1958) -- The Court Ruled that punishment would be considered "cruel and unusual" if it was one of "tormenting severity," cruel in its excessiveness or unusual in punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Furman v. Georgia 408 U.S. 238 (1972) -- The Court looking at three cases struck down the death penalty in many states and set up the standard that punishment would be considered "cruel and unusual" if any of the following were present: 1) it was too severe for the crime; 2) it was arbitrary (some get the punishment and others do not, without guidelines); 3) it offends society's sense of justice; 4) it was not more effective than a less severe penalty.

Gregg v. Georgia 428 U.S. 153 (1976) -- [The] Court upheld Georgia's newly passed death penalty and said that the death penalty was not always cruel and unusual punishment.

Tison v. Arizona 481 U.S. 137 (1987) -- [The] Court upheld Arizona's death penalty for major participation in a felony with "reckless indifference to human life."

Thompson v. Oklahoma 108 S. Ct. 2687 (1987) -- The Court considered the question of execution of minors under the age of 16 at the time of the murder. The victim was the brother-in-law, who he accused of beating his sister. He and three others beat the victim, shot him twice, cut his throat, chest, and abdomen, chained him to a concrete block and threw the body into a river where it remained for four weeks. Each of the four participants were tried separately and all were sentenced to death. In a 5-3 decision, four Justices ruled that Thompson's death sentence was cruel and unusual. The fifth, O'Connor, concurred but noted that a state must set a minimum age and held out the possibility that if a state lowers, by statute, the minimum death penalty age below sixteen, she might support it. She stated, "Although, I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence that [sic] we now possess." States with no minimum age have rushed to specify a statute age.

Penry v. Lynaugh 492 U.S. [sic] (1989) -- [The] Court held that persons considered retarded, but legally sane, could receive the death penalty. It was not cruel and unusual punishment under the Eighth Amendment if jurors were given the opportunity to consider mitigating circumstances. In this case, the defendant had the mental age of approximately a six-year old child.

ENDNOTES

[1] John Laurence, A History of Capital Punishment (N.Y.: The Citadel Press, 1960), 1-3.

[2] Michael Kronenwetter, Capital Punishment: AReference Handbook (Santa Barbara, CA: ABC-CLIO, Inc., 1993), 71.

[3] Ibid., p.72.

[4] Ibid., p.72; Laurence, op.cit., 4-9.

[5] Laurence, 9-14.

[6] Kronenwetter, 72-73.

[7] Hugo Adam Bedau, The Death Penalty in America (N.Y.: Oxford University Press, 1982).

[8] Ibid., 7

[9] Phillip English Mackey, Voices Against Death: American Opposition to Capital Punishment, 1787-1975 (N.Y.: Burt Franklin & Co., Inc., 1976), xi-xii.

[10] Bedau, op.cit., 7.

[11] Mackey, 7-8.

[12] Cesare Beccaria, On Crimes and Punishment, trans. Henry Paolucci (Indianapolis: Bobbs-Merrill, 1963).

[13] Mackey, op. cit., xvi-xvii.

[14] Ibid., xix-xxv.

[15] Ibid., xvii-xviii.

[16] Ibid., xxx-xxxi.

[17] Ibid., 15.

[18) Ibid., xxxii-xxxiv, xli.

[19] Ibid., xlvii-xlix.

[20] Bedau, 17.

[21] FBI Uniform Crime Report 1992; The Sentencing Project.

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