Constitutionality of death penalty

Death penalty is also referred to as capital punishment. Simply defined, death penalty is the lawful punishment of a crime by death. (Gill, 2009) According to Gill, (2009) the US is among the countries in the world where the death penalty is provided for in the constitution. Others are China, Iran and Vietnam. Accordingly, in 2004, of all the death penalties that were issued, in the four countries, the US, China, Iran and Vietnam accounted for a whooping 97%. At least one person is executed in the US every 9-10 days. (Gill, 2009

The death penalty/execution has been used as a form of punishment for quite a long time. The earliest records of execution date as far back as the 17th century. (Gill, 2009) Britain is said to be the country that greatly influenced the adoption of the death penalty by the United States. Britain and the US have a long history together. The British are among the first European settlers who colonized and settled in America. They brought with them the capital punishment practice. George Kendal, is said to be the first person to have been executed in the then Virginia colony. This was back in 1608. (History of the death penalty, 2008)

In the 18th century, the death penalty was widely practiced throughout the US. However, it was during this time that the abolitionist movement gained prominence. The abolitionists were a group against the death penalty. Abolitionists in the US had been influenced by the writings of such European philosophers as Voltaire, Montesquieu and John Howard. However, the biggest influence came from the writings of Cesare Beccaria especially through his essay titled, “On crimes and punishment.” Cesare was of the opinion that the state had no right to take a person’s life. (Schabas, 1997) This writings is what led to the very first attempt to reform capital punishment in the US. In Virginia, Thomas Jefferson introduced a bill that proposed that the death penalty only be reserved for such crimes as treason or murder. Nevertheless, the bill was defeated. The writings of Cesare was also the reason why Pennsylvania became the very first state to revoke the death penalty for all other crimes apart for murder. (Bohm, 1999) Thus, as far as the constitutionality of the death penalty is concerned, the 18th century was an era when the abolitionist’s movement that was clearly against the death penalty, rose in the USA. To the abolitionists, the penalty was unconstitutional.

In the 19th century, the abolitionist movement that had taken root in the US and in the 18th century it began to gain prominence. As a result, many states throughout the US reduced the number of death penalty sentences that were issued. Some states like Pennsylvania even moved executions away into the state penitentiaries. Among the first states that abolished the death penalty in the 19th century was Michigan. It reserved the penalty only for the crime of treason. This was in amended in 1846. (Schabas, 1997) Though the death penalty was not adopted by some states, many others chose to keep the capital punishment.

The 20th century is known as the progressive period as far as the death penalty is concerned in the US. Certain reforms were adopted. For instance, 1907 and 1917 was a period when some states completely outlawed the death penalty. While other states did not abolish the penalty, they nonetheless chose to only impose it for certain crimes as treason and first degree murder. However, the reform to abolish the death penalty by some states did not last long as it was reinstated in 1920. (Bedau, 1997) The decision to reinstate the penalty occurred because the US was then undergoing a period of social upheaval. It was during World War I when the capitalists and the socialists were on opposing sides. The decision can then be regarded as a ploy by the capitalists to defeat the socialists. In the 1920’s death punishment had the support of criminologists who were of the opinion that it was necessary as a way of preventing and deterring social crimes. Concurrently, it was during this time that cyanide gas was introduced as a way of execution. Bohm states that during the depression, 1930’s, the US experienced far more executions than in any other period in history. Between the 1930 and the 1940 period, over 150 people are said to have been executed every year. (1999) However, in the 1950’s and 60’s, the public was clearly against capital punishment. As a result, there was a reduction in the number of prisoners who were executed. Only about 42% of the American public seemed to be in favor of the death penalty. (Bohm, 1999) In the 1940’s, over 1000 people had been executed. However the number drastically fell to less than 200 people in the 1960’s.

It was in 1976 that the Supreme Court in the US ruled that capital punishment was constitutionally right. (Gill, 2009) The reason why the death penalty in the United States had been widely accepted in the first half of the 1900’s is the fact that the US Constitution, more so the 5th, 8th and 14th Amendments all seemed to be in its favor. It was in the 1960 that challenges to the death penalty began. Those against the death  punishment argued that it was not only a brutal but also an unusual form of punishment. They cited the 8th Constitutional Amendment in their favor and thus concluded that the penalty was unconstitutional.

Certain issues take centre stage when it comes to the death penalty. For instance, race, international conventions and even religion. Such groups as juveniles are also sometimes the focus of controversial death penalty debates. For example, in the late 1980’s there was the debate on whether it was constitutional to execute criminal offenders who were 15 years or younger. The Supreme Court on its part ruled that it was indeed unconstitutional. Because, the ruling of the Supreme Court is said to be final, juvenile offenders are not subjected to capital punishment. (History of the death penalty, 2008) On the contrary, women have not featured much in the death penalty debate. Little wonder therefore that since the adoption of the death penalty in the US, only about 3% of all the executions carried out have been women. (O’Shea, 1999).

There have been cases for and against the death penalty in the US. According to Bedau (1964), the biggest supporters of the death penalty are the law enforcers and the law enforcement agencies; prosecutors and the police. Their main argument is that the public deserves some form of justice from criminals and that the most effective way of dealing with criminals is by capital punishment. Accordingly, they support the death penalty as they consider it as the best way through which criminal activity may be deterred. That because people are aware of the consequences, they will refrain from committing such crimes as murder in the first degree. This is the same view adopted by the criminologists in the 1920’s who were clearly in favor of the penalty as a way of protecting the society from criminals. On the other hand, those who are against the death penalty are those who argue from the religious point of view and those in support of the abolitionist movement. According to the opponents of the penalty, no one has the right to take away another’s life (Bedau, 1964).

For a long time in most states in the US, the death penalty was just resigned to such crimes as first degree murder. However, the field was broadened such that one may be sentenced to death for causing the death of another after a kidnapping or treason. As the death penalty has evolved to cover more ground, the abolitionist movement has also gained wide prominence through out the world in the 1980’s. They were involved in the sketching and endorsement of treaties that were to see an end to the death penalty. For instance, in 1994, President Bill Clinton signed into law the Violent Crime Control and Law Enforcement Act. In the Act some 60 other crimes are punishable by the death penalty. Through the activism of the abolitionists, the Inter American Additional Protocol to the American Convention on Human Rights to abolish the Death Penalty was created. The main aim of the protocol was to see an end of the death penalty worldwide. However, only a few countries completely abolished the death penalty. Among these were countries in Eastern Europe such as Ukraine. Others countries include South Africa and Russia. (Schabas, 1997)

Though the number of people who have been executed in the United States has been steadily declining over the years, criminals are still issued with sentences. In April of 1999, during a UN Human Rights Commission meeting, a resolution by the title, “Resolution Supporting Worldwide Moratorium on Executions” was passed. (History of the death penalty, 2008) The resolution was a call to an end of the death penalty and for a restriction to the use of the penalty for those countries that had not completely abolished the practice. However, the US among other countries like China, Pakistan, Rwanda and Sudan did not vote for the resolution. This can then only be taken to mean that they were not ready to give up sentencing criminals to death. Every year since 1999, the UN has then taken it upon itself to convince countries to abolish the death sentence or to establish what is referred to as a moratorium on executions. It is estimated that more than half of the countries in the world have totally abolished the death penalty or have restricted its use only to very serious criminal activities. Still, there remains about 78 countries that have not abolished the penalty. Among these are the United States, China, Iran and Vietnam. (History of the death penalty, 2008) While it can be argued that the other three are not democratic countries in the real sense, there is no sure way of explaining why the US has never completely abolished the practice. After all, it does pride itself as being the biggest democracy in the world where the rights of all are respected and provided for in the constitution. If that was really so, does one’s right to life deserve to be usurped just because they have committed a crime? Is there no better way of punishing such people as opposed to taking away their lives?

While it may seem like the death penalty is not being abolished in the United States any time soon, there have been some positive developments. There are many average people in the US who may want to see an end to the practice, still, the decision rests squarely on the powers that be. All the Presidents who have been at the helm in the United States seem to have been in support of the death penalty. (Dieter, 2007) This can be said to be the major reason why the practice has never been put to an end. President Obama seems not to be an exception. According to Wilson (2008) while President Obama is in concurrence with most people that capital punishment does not in any way deter crime, he also feel that it should be reserved for those he considers as the “worst of the worse”; those who perform the most heinous of crimes such as raping little children and terrorists.

The fact that the penalty has only been resigned only for the most heinous crimes is akin to a moratorium as proposed by the United Nations, which is a step closer to the abolition of the practice. Even more encouraging is the fact that such states as New Jersey, Illinois and New York already enacted moratoriums. (Dieter, 2007) The major reason why the use of the death penalty in the US has considerably declined over the years has first to do with trends in the international community and the public opinion back home on the ground. More that half the countries in the world have completely done away with the practice. It is time the United States followed suit. It is also time that public opinion was reflected on all laws enacted. Most people would rather there was no such thing as the death penalty. There is also the stand by the Supreme Court in the United States. According to Dieter, some of the people who have been very vocal in calling for the death penalty to be abandoned are Supreme Court judges’ likes John Paul Stevens and Sandra Day O’Connor; and even some prosecutors. The consequence of this is that even juries are advised to sentence the offenders to life in prison without the possibility of parole as opposed to death. (2007) If the pressure to abolish the death penalty in the US continues, it is very likely that in future, the practice will be no more.

The death penalty has been in existence for quite a time. Nonetheless, it has evolved from being a widely accepted practice the world over, to only eliciting the support of a few. The reason that the penalty had gained such prominence especially in the United States lies in the fact that such Amendments of the Constitution seemed to be in support of it. This was in the 18th century. However, with the rise of the abolitionists, the support for the practice began to wane in the 1900’s. The US has been among such countries as China where the death penalty has been in practice. Still, the journey of a thousand miles starts with a single step. Because certain states have already adopted moratoriums as proposed by the UN and the American public is against the practice, the US is well on its way to abolishing the practice once and for all. It is important that the Supreme Court judges and other leaders including President Obama, recognize that the practice does not in any way deter crime. This is what has led to the adoptions of other measures such as life in prison without parole. The death penalty seems to have no future in the US, rather in alternatives to the practice!


Bedau, H. (1997). The death penalty in America: Current controversies. Oxford University Press.

Bedau, A. H. (1964). The death penalty in America: An Anthology. Chicago: Aldine Publishing.

Bohm, R. (1999). Deathquest: An introduction to the theory and practice of capital punishment in the United states. Anderson Publishing.

Death Penalty information centre. (2008). History of the death penalty. Death Penalty information center. Retrieved Jan 27, 2009 from

Dieter, R. (2007). The death penalty in the United States: Strategies for change. Retrieved Jan 27, 2009 from

Gill, K. (2009). Pros and cons of the death penalty (capital punishment). Retrieved Jan 27, 2009 from

O’Shea, K. (1999). Women and the death penalty in the United States: 1900 – 1998. West port CT: Praeger.

Schabas, W. (1997). The abolition of the death penalty in International Law. Cambridge: Cambridge University Press.

Wilson, D. (2008, October 31). Capital punishment is a crime. The Guardian. Retrieved Jan 27, 2009 from