Capital Punishment and the Law


As far back as 1870 there was a movement to abolish capital punishment. Bills to abolish capital punishment were introduced after the Civil War by abolitionists in many states. Back then even as now, the public was sharply divided on the issue and the state laws would often change.

History of Capital Punishment Movement

For example in 1872 Iowa was the fourth state to abolish the use of capital punishment and then just six years later Iowa became the first state to reinstate the use of capital punishment. Following this example, Maine removed capital punishment in 1876, reinstated in 1883 and removed it again in 1887. Many states experienced this yo-yo system with capital punishment. This back and forth movement in regards to capital punishment went on for decades until once again war in the 1940’s pushed it to the back burner.

After World War II lawmakers started to push laws through once again that dealt with issues of capital punishment. This was perhaps ignited by a couple of high profile death row cases during this time. Caryl Chessman and Julius and Ethel Rosenberg were all sentence to be executed during this time and their cases made front page headlines.


The opposition to capital punishment into the sixties was still a state-by-state issue. Alaska and Hawaii both abolished capital punishment before 1960 and still do not allow capital punishment. Before the sixties most people who opposed capital punishment assumed the best way to get it removed was to try to change state law. While this can work it does have a limited effect.

Two organizations that have helped the opposition movement are The American Civil Liberties Union (ACLU) and the NAACP Legal Defense and Education Fund (SSDEF). Both of these organizations fund legal appeals for defendants with the NAACP helping black defendants and the ACLU helping both races. The LDEF was more successful in changing the course of capital punishment following the push of the civil rights movement.

Sixties and the Supreme Court

In the mid-sixties it was very clear that the death penalty was given to black criminals more than whites. The major change came with a Supreme Court decision in 1963 and Justice Arthur J. Goldberg wrote about dissent in the case of Rudolph v. Alabama. District Attorneys took the dissent to meat that the Supreme Court was interested in hearing cases against capital punishment. This led to many lawyers filing appeals to the Supreme Court against capital punishment. A big victory then occurred in 1972 when the case of Furman v. Georgia reached the Supreme Court and LDEF attorney Anthony Amsterdam gave a brilliant argument for abolishing the death penalty. He said that arbitrary or prejudicial sentences should be considered unconstitutional and actually discriminated. His argument worked and it persuaded some members of the Supreme Court to realize the law was unconstitutional. The vote from the court of 5-to-4 invalidated every death-penalty stature in the United States, for a short while it appeared that the abolitionists had won.

But the justices were not convinced that the death penalty should be abolished they only felt that it was being assigned in a cruel and unusual manner. So in 1976 the Supreme Court approved state statues that appeared to assign the death penalty without discrimination. Capital punishment was once again on the upswing. When this happened the number of deaths attributed to executions in the United States went from one or none a year to nearly a hundred a year. It also overloaded the courts with the appeal process and made most of the appeals unsuccessful.

DNA and Evidence

With the increasing use of DNA testing and scientific examination of evidence since 2000 the hold on executions has become more about making sure of the guilt of the condemned. There have been several death row inmates who have been released because of this type of documentation. In 2002 it was also ruled that executing mentally retarded offenders was unconstitutional and in 2005 the execution of juvenile offenders was also included. Current polls show that was capital punishment still has a high amount of support the numbers are on the decline. Whether you are for it or against the debate over capital punishment is most likely one that will be around for a long time to come.