Which Crimes Merit The Death Penalty In The United States?

Capital punishment is a topic likely to foster intense moral and ethical debate. Although executions are still legal in 56 countries, as the European Parliament homepage explains, only 33 of those countries have executed at least one criminal since 2013, as the BBC reports. Overall, around the world, the number of executions decreased dramatically as we entered the latter half of the 20th century, although in 2019 there were still 657 executions in 20 countries worldwide. In that year, in terms of numbers of executions, the U.S. ranked only under China, Iran, Saudi Arabia, Iraq and Egypt, in that order, as explained by the human rights organization Amnesty International. (China's official, exact numbers are a state secret, but it's estimated that they could be as high as over 1,000.) Some countries have abolished capital punishment altogether (Portugal was the first, in 1849), and others have moratoria on executions (Russia hasn't executed anyone since 1999).

In the U.S., the rules surrounding sentencing someone to death, and then eventually executing them, are quite a bit more complex than simply "an eye for an eye," and rightfully so. In order to decide to engage in lawful, state-sanctioned killing, courts must follow a strict set of requirements that have, generally, gotten more and more stringent over the years. Overall, and at present, per the National Conference of State Legislatures, Supreme Court rulings establish legal precedent regarding execution methods, aggravating factors, and trial procedures, and then states must adjust their laws accordingly.

As the Death Penalty Information Center tells us, colonial America more or less adopted British laws regarding the death penalty. Execution was a staple of English law for centuries, as it was in many cultures around the world. The Code of Hammurabi, one of the earliest written bodies of law dating back to around 1800 BCE, per History, included the death penalty for 25 different crimes, although interestingly enough, not murder. Treason and parricide (murder of a family member) were the two big capital offenses in ancient Rome, where, per Facts and Details, execution methods got creative: crucifixion, being buried alive, and poena cullei (being tossed in a river in a bag with an animal).

In medieval England, executions were, as History says, conducted willy-nilly without any legal precedent. Starting with the reign of Henry VIII in the early 1500s, the death penalty became codified into an eventual, expansive 222 crimes. Some 72,000 people were executed in 16th century England alone for crimes such as treason, marrying a Jew, cutting down a tree, and (you ready?) not confessing to a crime.

This is the environment that gave birth to colonial America's attitude toward capital punishment. The first execution in the U.S. was in Jamestown, Virginia, in 1608, when Captain James Kendell was executed for being a spy for Spain. Other deathworthy crimes? Per Raconteur: stealing grapes, killing a neighbor's chickens, trading with Native Americans, hitting one's mother or father, and denying the existence of God.

Even before the Revolutionary War, laws regarding the death penalty varied from colony to colony. As the Death Penalty Information Center writes, use of the death penalty grew century by century until the Supreme Court got involved in 1972's Furman v. Georgia. This marked the beginning of the modern death penalty era and a sharp decline in the prevalence of capital punishment.

At the time, as Lawshelf explains, SCOTUS said that the death penalty was being applied "arbitrarily and inconsistently" because juries had insufficient guidance in the deliberation process and were also subject to racial bias. This resulted in "cruel and unusual punishment," which per the Constitution Center, protects defendants: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Many states rushed to update their laws to comply with this ruling, resulting in the "aggravating factor" decree of Gregg v. Georgia in 1976. As Justia explains, this means that states can enforce the death penalty provided contextual, case-by-case factors are proven fair. 

Since 1767, per the Death Penalty Information Center, an abolitionist movement against the death penalty has grown in the U.S., originally incited by Italian criminologist Cesare Beccaria's 1767 essay "On Crimes and Punishment." By 1834, Pennsylvania became the first state to move executions to a private setting, and by 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. From 1901 to 1917, six states outlawed it completely. 

As of 2020, 22 states have banned death sentences completely, as the Death Penalty Information Center shows, such as Illinois, New York, Maine, Alaska, Hawaii, and West Virginia. Three states – Pennsylvania, California, and Oregon – have gubernatorial moratoria currently instituted. Three separate criminal justice bodies are also capable of delivering death sentences: the federal government, state governments (within federal guidelines, but functioning independently of each other), and the military, which is subject to a separate body of laws, courts, and procedures. 

It's also important at this point to make a distinction between committing a "capital" crime (being sentenced to death), and receiving a "capital" punishment as the penalty (having the sentence carried out). Even in states where the death penalty hasn't been abolished, most death sentences are overturned or commuted to other sentences such as the common alternative, "life without parole." In states where the death penalty has been abolished, this is often the judgment.

As for the actual crimes that are currently worthy of receiving the death penalty? In short: various forms of murder, espionage, treason, drug trafficking, and aggravated kidnapping (kidnapping and inflicting severe harm to someone under 14 years old, as the law firm Greg Hill and Associates explains). Those exempt from the death penalty? As Death Penalty Information Center says, those with the least culpability: minors (under 18) and people with intellectual disabilities, defined as significant limitations to cognitive and/or adaptive functioning (as explained by the American Psychiatric Association).

Methods of execution can vary from state to state where capital punishment is legal, but in general, lethal injection is the primary method, as the National Conference of State Legislatures (NCSL) overviews (Texas was the first to adopt it in 1982). Sixteen states have a secondary method of execution "if lethal injection is found to be unconstitutional and/or unavailable." Sometimes convicts are even given the choice about which method they would prefer. Alabama, for instance, allows death by electrocution (an invention by Thomas Edison to discredit Nikolai Tesla and George Westinghouse, by the way), Arizona by gas chamber, Delaware by hanging, and Mississippi by firing squad. 

Debate about the legalities and ethics of the death penalty is likely to continue for decades to come, both within and outside of the U.S. It seems more and more, though, barring several holdout countries and U.S. states, that capital punishment is on its way out. As the American Psychological Association outlines, psychologists nationwide are pushing for a community-centered, rehabilitative approach to incarceration that incorporates the teaching of job skills and treatment of mental health factors, rather than a simplistic, punitive approach toward criminal justice.

Those who are interested in further researching death penalty legislations and actions, including "execution methods and procedures, trial and appellate procedures, aggravating factors, intellectual disability and mental illness, repeal or reinstatement, ballot measures, resolutions and studies, and other significant enactments," can find a detailed, searchable database on the NCSL.