Death Penalty in the American Judicial System

Overview of the Death Penalty

The judicial system is designed to establish a balance between the crime committed and the punishment meted out. For example, persons found guilty of an offense should receive penalties that are consistent with the degree of the crime committed. The death penalty is one such strategy used to deal with offenders. It is common in many jurisdictions around the world. According to Clear, Reisig, and Cole (2012), 32 states in the US have retained this penalty in their penal codes. Many people have criticized the legality or constitutionality of this form of punishment. As a result, there is increasing pressure on the federal governments to have the sentence reviewed.

In the American judicial system, the death penalty is applied in military and civil proceedings. The sentence is anchored on the Eighth Amendment (Clear et al., 2012). The amendment provides this form of punishment with the legal justifications required for it to exist in the country. Its applicability is restricted to certain groups of people. In addition, it is used on crimes that are regarded as serious. For example, it is used on adults of sound mind and who are found guilty of aggravated murder. The sentence should be passed after a judicial process has been carried out. To this end, a court of law is required to find an accused person guilty beyond reasonable doubt. The enforceability of the law varies from one state to the other. It is executed through various means. For example, it may be carried out using electrocution, lethal injection, or hanging.

In this paper, the author will analyze a number of issues revolving around death penalty in the US. The history and emergence of this sentence will be reviewed. In addition, the current state and future trends of the punishment will be highlighted. The place of the death sentence in the larger world will be addressed. Finally, the arguments around this punishment will be analyzed.

History of the Death Penalty in the World

The penalty has a long history in human society. Historical and biblical records reveal that it was practiced in varying measures in ancient civilizations. In light of this, it is important to note that capital punishment is not restricted to the American judicial system. On the contrary, it has a historical perspective that spans many years across different jurisdictions. Such scholars as Scott (2006) have examined the history of the death penalty in the world.

Scott (2006) observes that it was practiced in all known societies. In ancient times, the penalty was used on hardcore criminals and political dissidents. Scott (2006) holds the opinion that ancient tribes viewed the death sentence as the ultimate form of punishment meted out on errant members of the community. It was part of the communal order through which wrongdoers were dealt with. Other punitive measures used to handle errant members of the society included banishments and payment of fines.

The death penalty is an evolution of various communal arbitration practices. According to Clear et al. (2012), inter-communal disputes were common in ancient civilizations. One of the ways to resolve these conflicts was the application of an agreed upon exchange program in the interest of peace. Blood money was among the various ways through which such communal feuds were solved. The study carried out by Scott (2006) supports this assertion. Scott (2006) points out that the community members would decide to execute one individual. The shedding of that person’s blood was regarded as a symbol of peace between the two communities.

Specific communities are cited with regards to the use of the death penalty. One of these societies is the Vikings. It is noted that the practice of settling disputes using blood was a common practice in this region. Clear et al. (2012) are of the view that the executed individual was not necessarily the cause of the feud. The objective of such practices was to perpetuate the perception that blood is the preferred mode of compensation. The practice evolved and became part of advanced and modernized judicial systems. In such cases, the ‘victim’ was executed through combat. The approach was especially common during the Roman Empire.

The death penalty has also been practiced in societies where certain activities are banned. To illustrate this point, Clear et al. (2012) make reference to the Torah (or the Pentatuach). The Jewish legal framework constitutes the first five books of the Christian Bible.

It advocates for the death penalty in cases where individuals are found guilty of sexual crimes. Such crimes include, among others, adultery and rape. The advanced application of capital punishment in the Christian society was promoted by the Roman Catholic Church. Clear et al. (2012) provide examples of executioners who were popular during this period. One of them is Giovanni Batista Bugatti. The man was a revered figure in the execution circles. He was affiliated to the Papal States and he acted on behalf of the regime. Modern judicial systems borrowed this practice from the Roman Catholics.

The mode of execution is as diverse as the societies that practiced this form of punishment. Scott (2006) mentions such scenarios as dismemberment, sawing off of limbs and other organs, as well as stoning, as some of the ways through which the death penalty was carried out in ancient times. The objective of such crude punitive measures was to ensure that the death was associated with as much pain as possible. The authorities hoped that the accompanying pain would deter future criminals. A case in point is the execution of Jesus Christ. The death penalty in this case was carried out through crucifixion.

History of the Death Penalty in America

The American history borrows heavily from the English society. The early immigrants had ties to Europe and, by extension, to the United Kingdom. According to Acker (2003), the type of death penalty practiced in the US is largely derived from the European settlers who came to the ‘New World’. Given the sophistication of the immigrants’ judicial processes, the grounds for execution ranged from murder to treason. Acker (2003) cites the first ever public execution in American history. The event involved Captain George Kendall. According to Acker (2003), the officer was found guilty of espionage. At the time, Kendall was based in Virginia and was found to have engaged in espionage on behalf of Spain.

The indoctrination of the law surrounding the death penalty is largely associated with Sir Thomas Dale. According to Acker (2003), this public figure served as the governor of Virginia in 1612. In that year, he introduced legislations that were referred to as the Divine, Moral, and Martial Laws. The law stipulated punishments for petty crimes, such as theft and trade with the Indians (Acker, 2003). The ‘ruthlessness’ of the law varied from one state to the other.

The United States of America, as presently constituted, was once a conglomeration of colonies. Each colony had its own unique legal system (Clear et al., 2012). To this end, the laws associated with the death penalty were unique to the state in reference. For instance, the Massachusetts Bay Colony is on record as having carried out its first ever execution in 1630. Acker (2003) opines that the execution was done earlier than the official enactment of the laws touching on this matter in the jurisdiction. Elsewhere in the New York colony, the death sentence was made part of the Duke’s Law of 1665. According to Acker (2003), the Dukes legal framework was extremely harsh. Some of the offenses highlighted in this case included assaulting one’s parents.

As the American society advanced, there were increased resentments towards the death penalty. To underscore this position, Scott (2006) mentions the attempts made by Thomas Jefferson to review the capital clause in the laws of Virginia. The intended amendment would have restricted the sentence to serious crimes like treason, espionage, and murder. Unfortunately, Jefferson’s attempts were unsuccessful. The proposal was rejected by members of the assembly. The move prompted further discussions on the viability of the penalty.

Sentiments against the capital punishment were evident after the declaration of independence. Acker (2003) refers to the activities of Dr. Benjamin Rush, another opponent of this law. Dr. Rush (according to Acker, 2003) was one of the people who signed the declaration of independence. He was of the opinion that the death penalty actually increased crime in the society. With the support of Benjamin Franklin and William Bradford (future U.S. Attorney General), the sentence was retained at the federal level. However, a disclaimer was attached to the effect that it was not the solution to crime. Pennsylvania set a precedent by accommodating this penalty. However, the sentence was used depending on the extent of perceived culpability. The practice exists today.

Death Penalty and the Constitution: The Perspective of the Supreme Court

The applicability of a law is determined on the basis of precedents. The legislation on capital punishment is no different. The controversy surrounding the penalty has been the subject of a number of judicial proceedings, which have ended up at the Supreme Court. Clear et al. (2012) illustrate a number of cases related to the death penalty between 1972 and 2008. Most of the cases mentioned in the survey challenge the constitutionality of the punishment. McGowen and Banner (2004) refer to Furman v. Georgia, which was determined in 1972. The legal proceeding set the precedent for the judicial review of the death penalty based on its consistency with the U.S. constitution. The verdict of that case was that the penalty is in fact a violation of the constitution.

The arguments against the legality of the capital punishment are largely derived from the right to life. To this end, the following cases resulted in a ruling suggesting that the penalty is unconstitutional:

  1. Gregg v. Georgia of 1976
  2. Coker v. Georgia of 1977
  3. Atkins v. Virginia of 2002
  4. Ring v. Arizona of 2002
  5. Roper v. Simmons of 2005
  6. Baze v. Rees of 2008
  7. Kennedy v. Louisiana of 2008

Debates on Capital Punishment

The death penalty is historically associated with controversy. To this end, many people have debated the constitutionality of this law. According to Rogers (2011), many people are of the opinion that the penalty should be abolished. A total of 20 states have declared this law as a violation of human rights. However, there are those people who argue in support of the legislation. The proponents argue that the law acts as a deterrent to other crimes of a similar nature. However, Rogers (2011) argues that criminals who commit such offenses as premeditated murder are well aware of the implications. Consequently, the threat of death for their actions is not an actual deterrent. Rogers (2011) indicates that the number of murder cases in the country stood at 5 victims per 100000 as of 2010. The assumption is that 15,000 individuals were killed that year. If the death penalty was a deterrent, then such deaths would not have occurred.

The supporters of the law argue that it provides closure for the victims. Rogers (2011) refers to the psychological reports that point to the execution of a convicted person as the conclusion of a grieving period. However, opponents insist that this move is hypocritical. Rogers (2011) points out to the hypocrisy by arguing that if a criminal has no right to kill, then the state should not commit a similar offense. The argument for or against this law is still ongoing. However, many people are in agreement that the penalty should be enforced in a fair manner.

Death Penalty and the State of Texas

In Texas, the death penalty has been practiced from as early as 1819. Cumulatively, the state ranks second in terms of the number of executions. The first in this category is the state of Virginia (Aronson & Cole, 2009). The preferred mode of execution in Texas remains the lethal injection. The first ever death sentence was passed in 1982. It involved Charles Brooks. Aronson and Cole (2009) point out that all executions in the state are carried out by the Texas Department of Criminal Justice (TDCJ). The TDCJ has carried out this role since 1923.

The state of Texas is known for its zero tolerance to crime. Aronson and Cole (2009) attribute this position to the conservative nature of the society. One of the reasons why the state has a high record of death penalty verdicts is the fact that the judges are not appointed by the leaders. On the contrary, these legal experts are elected into office (Radelet, 2012). Consequently, they end up serving the interests of the majority of conservative citizens. The situation is aggravated by the absence of a state public defender. The court-appointed lawyers assigned to defendants facing the death penalty often lack the requisite experience in this front.

The West Memphis Three Case

The case involves three individuals tried and convicted as teenagers in the state of West Arkansas. The three were found guilty of three counts of murder in West Memphis. According to Leiter, Mersky, and Hartman (2012), the individuals were convicted based on the evidence linking them to the murders. However, a detailed analysis of the crime scene revealed that the victim’s DNA could not be directly linked to the accused persons. As a result, the Arkansas Supreme Court allowed the defendants to enter Alford Pleas (Leiter et al., 2012). Under the deal, the offenders were to have their terms suspended.

The case presents a dilemma in relation to the death penalty. There are instances where individuals may end up being wrongfully convicted of the offense. Leiter et al. (2012) are of the opinion that such situations require thorough assessment before a conviction can be made. There is no way of releasing or making amends for someone who has been wrongfully executed. Individuals against the sentence cite this point in their campaigns for the abolishment of the legislation. The delicate nature of the situation requires convictions to be made with ‘pin-point accuracy’. Doubts should be avoided at all costs. Anything short of this should not warrant a sentence for death penalty.

Current State of the Death Penalty

The sentence remains a problematic issue in the American judicial system. Sayward (2011) highlights this issue by making reference to a study carried out in 2007 on death sentence. The study indicates a decline in the rate of sentencing since 2002. The election of President Bush was expected to bring with it an increase in the number of death sentences. The reason for this is the fact that his administration was faced with the problem of terrorist attacks. However, this was not the case as the number of executions declined. One of the reasons behind this development is the rise in the number of human rights groups advocating for life.

New Jersey set a precedent in 2006 by enacting a moratorium on executions. The moratorium was put in place by a state legislation regarding capital punishment (Sayward, 2011). The state of Illinois has a similar legal framework. Sayward (2011) indicates that there is a need to review the laws touching on this form of sentence in the country. Studies indicate that many people prefer life imprisonment over the death penalty. The preference is one of the possible reasons behind the number of capital sentences passed in 2007. The figure was the lowest in the history of the country. According to Sayward (2011), the decrease corresponds to an 80% drop in the number of people who advocate for this punishment in the country.

The Future of the Death Penalty

The death sentence is a harsh punitive measure. However, like every judicial element, time has come to review this legislation. Minsker (2013) reports a decline in the number of people who support capital punishment. Interestingly, Minsker (2013) illustrates that the drop in the number of executions can also be attributed to the shortage of drugs used for lethal injections. However, this does not change the fact that the death penalty has lost favor among the American public.

The future of the American judicial system should be structured in line with international human rights practices. The crude methods used in execution support the case for the abolishment of the death penalty. The future of this legislation in the US is largely tied to the influence of state legislatures. States like California still retain the penalty. A poll conducted in this state in 2012 indicated that 52% of the residents were in favor of the system. In other jurisdictions like Ohio and Texas, shortage in drugs is prompting a review of the mode of execution (Minsker, 2013). In light of this, one may conclude that the death penalty may persist for a while within the American corrective system. However, increased discourse on the subject may lead to its abolishment.


Acker, J. (2003). The death penalty: An American history. Contemporary Justice Review, 6(2), 169-186. Web.

Aronson, J., & Cole, S. (2009). Science and the death penalty: DNA, innocence, and the debate over capital punishment in the United States. Law & Social Inquiry, 34(3), 603-633. Web.

Clear, R., Reisig, M., & Cole, F. (2012). American Corrections (10th ed.). Michigan: Cengage Learning. Web.

Leiter, R., Mersky, R., & Hartman, G. (2012). Landmark Supreme Court cases: The most influential decisions of the Supreme Court of the United States (2nd ed.). New York: Facts on File. Web.

McGowen, R., & Banner, S. (2004). The death penalty: An American story. Law and History Review, 22(1), 188. Web.

Minsker, N. (2013). Proposition 34 and the future of California’s death penalty. Federal Sentencing Reporter, 25(4), 260-262. Web.

Radelet, M. (2012). The death penalty in Texas. Criminology & Public Policy, 11(3), 573-578. Web.

Rogers, A. (2011). Capital punishment on trial: Furman v. Georgia and the death penalty in modern America. Journal of American History, 97(4), 1187-1188. Web.

Sayward, A. (2011). Capital punishment on trial: Furman v. Georgia and the death penalty in modern America – By David M. Oshinsky. Historian, 73(3), 574-575. Web.

Scott, C. (2006). Psychiatry and the death penalty. Psychiatric Clinics of North America, 29(3), 791-804. Web.

Cite this paper

Select style


DemoEssays. (2022, December 24). Death Penalty in the American Judicial System. Retrieved from


DemoEssays. (2022, December 24). Death Penalty in the American Judicial System.

Work Cited

"Death Penalty in the American Judicial System." DemoEssays, 24 Dec. 2022,


DemoEssays. (2022) 'Death Penalty in the American Judicial System'. 24 December.


DemoEssays. 2022. "Death Penalty in the American Judicial System." December 24, 2022.

1. DemoEssays. "Death Penalty in the American Judicial System." December 24, 2022.


DemoEssays. "Death Penalty in the American Judicial System." December 24, 2022.