By Linda Sanabria, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed October 02, 2023
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Some serious criminal offenses are punishable by death in our criminal justice system. This is capital punishment, commonly called the death penalty. The death penalty remains controversial among civilians and jurors centuries after it began under criminal law. This controversy stems from human rights concerns and questions about whether state or federal courts should be able to take a person's life.
Twenty-three states have outlawed capital punishment, and state death penalty laws vary nationwide. Some states favor life imprisonment as the most severe punishment.
The sentence of death is for defendants guilty of violent capital offenses where the jury decides that the convicted offender lacks remorse and will likely recidivate. Over 60 percent of violent offenders will recidivate, statistics show. Judges will typically consider any mitigating factors or aggravating circumstances before sentencing.
The death sentence was commonly used in Europe and early Colonial America, even for minor theft crimes and acts that wouldn't be criminal today, such as blasphemy. There was considerable variation in death penalty laws from colony to colony.
Cesare Beccaria's 1767 essay "On Crimes and Punishment" led to the abolition of the death penalty in Austria and Tuscany. While the United States didn't abolish the death penalty, the essay's influence meant the use would only be for serious crimes.
In the 1800s, some states took executions out of the public eye, and other states restricted or eliminated their use. Discretionary death penalty punishments replaced mandatory ones. Michigan was the first state to abolish the death penalty in 1846.
Then, in the 1900s, several states outlawed the death penalty. But panic in the wake of the Russian Revolution led to its reinstatement in some jurisdictions. The death penalty and death row were used more often during the Great Depression and Prohibition.
The use of the death penalty began to decline in the 1950s as many allied nations outlawed its use.
Furman v. Georgia in 1972 found that a Georgia death penalty statute giving the jury full discretion in sentencing creates arbitrary sentencing. In a split decision, the court found that the statute created cruel and unusual punishment. This violated the Eighth Amendment.
The Supreme Court voided 40 death penalty laws and suspended the death penalty.
Following the Furman decision, Florida rewrote its death penalty laws. Soon after, 34 other states enacted their own revised death penalty laws. These laws avoided the randomness that Furman addressed. They mandated capital punishment for those convicted of capital crimes.
This method was later found unconstitutional by the Supreme Court in Woodson v. North Carolina. Other states issued guidelines to judges and juries.
The Supreme Court upheld this system in Gregg v. Georgia. This case reinstated the death penalty under the new sentencing guidelines. It also found the death penalty constitutional under the Eighth Amendment.
Later decisions have found that executing the mentally disabled violates the Eighth Amendment (Atkins v. Virginia). So does executing people who were under 18 when they committed capital crimes (Roper v. Simmons.)
The United States Code contains a list of federal crimes that call for the death penalty, including but not limited to:
Here are five methods of execution in the United States:
Although some state laws prefer specific means of execution over others, the United States Supreme Court has never found a method of execution unconstitutional.
History of Death Penalty Laws — How laws have changed over the course of history, affecting death penalty cases since ancient Babylon.
Death Penalty Laws by State — Lists the different death penalty laws in each state.
Kennedy v. Louisiana — A U.S. Supreme Court case struck down as unconstitutional the Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die.
The U.S. and the Death Penalty — Brief history of capital punishment in the U.S., from its rise in colonial New England to 19th- and 20th-century opposition movements.
Death Penalty Challenges — Summaries of a few U.S. Supreme Court cases challenging the constitutionality of capital punishment.
Temporary Abolition of the Death Penalty — Overview of Furman v. Georgia, a 1972 U.S. Supreme Court case that (along with two other cases) temporarily halted capital punishment.
Reinstatement of the Death Penalty — How several states worked around Furman by rewriting their statutes, and an overview of Gregg v. Georgia.
Recent Developments in Capital Punishment — Overview of Illinois' 2003 death penalty moratorium, a 2005 case that barred the execution of minors, and other recent developments.
Recent Death Penalty Statistics — Statistics on death row inmates and executions, including statistics from the Death Penalty Information Center.
Federal Capital Punishment Laws — Explanation of the federal death penalty. Covers the federal government's death penalty laws, procedures, and eligible crimes. The death penalty is a consequence of murdering a member of Congress or a Supreme Court Justice.
Supreme Court Cases — A few of the Supreme Court's most impactful decisions.
Meeting with a lawyer can help you understand your options and how to protect your rights best. No one can help you better than a lawyer who can navigate the criminal justice system and the Court of Appeals.
If you or someone you know are facing a capital case like first-degree murder, are under arrest by a police officer, or need more information about the death penalty, find a criminal defense attorney near you who can help.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.