Capital Punishment:

A Brief History of the Legal Implementation of the Death Penalty

Sarah Touhey
Professor Sysol
CRIM 1100-003
October 1, 2015

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Capital Punishment:
A Brief History of the Legal Implementation of the Death Penalty

Abstract
This paper will cover a small history of capital punishment in the United States. First, it will go
over the ideals of Cesare Beccaria and his view on capital punishment. I will briefly describe
different views on the death penalty and compare how each view relates to the other. Finally I
will describe two important US Supreme Court cases that ruled the death penalty
unconstitutional and then later, after revision, reversed their ruling. The importance of these
cases will show how we implement the death penalty in todays criminal justice system.

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Capital Punishment:
A Brief History of the Legal Implementation of the Death Penalty

Capital punishment is the most serious judicial decision that can be given out in a court of
law. Due to the controversial nature of the sentencing, the death penalty has remained a major
concern of society for hundreds of years. As societal mores evolve, the legal implementation of
capital punishment fluctuates. In this paper, I will discuss the different ways the practice of the
death penalty has changed throughout history; specifically focusing on two US Supreme Court
cases in the 1970s which ruled components of the death penalty laws as unconstitutional and,
after some reformation, was then later reinstated. Later, I will demonstrate the importance of
these pivotal legal actions and try to explain how they have influenced our criminal justice
system today.
To understand the hotly debated social and moral issue of the death penalty, we must
briefly examine the ideas of Italian criminologist Cesare Beccaria in his paper Essay of Crimes
and Punishment (1764). Beccaria condemned the use of the death penalty and argued that it
was neither effective nor necessary (Melusky & Pesto, 2011, p. 27). He felt that the
punishment must fit the crime and, in his opinion, capital punishment was much too severe a
sentencing. However, many people in the eighteenth century did not agree with Beccarias
ideals. At the time, the number of death sentences reached an all-time high; and capital offences
included robbing a house in the amount of 40 shillings . . . cutting down a tree, and
counterfeiting (Melusky & Pesto, 2011, p. 29). Nonetheless, Beccaria set in motion a
movement of sentencing reform that swept throughout the world.

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Today, the matter of the death penalty remains controversial. Those who are in favor of
capital punishment believe in the retributive perspective of justice. This means that the offender
suffers in equal proportion to the victim. To them, it is only fair that criminals who have
committed the most serious crime, murder, receive the most severe penalty, death (Siegal &
Worrall, 2014, p. 417). People who are against the death penalty believe that the way of thinking
by the supporters is merely misplaced vengeance. In the eyes of death penalties abolitionists,
the desire to be vengeful and punitive outweighs their concern about taking life (Siegal &
Worrall, 2014, p. 437). Although no one person can definitively declare who is right and who is
wrong, it is safe to say that the argument over sentencing someone to death will be around for a
very long time.
This argument reached a pivotal time in history when the death penalty was ruled
unconstitutional. On June 29, 1972, the US Supreme Court decided in Furman v. Georgia
(1972) that:
The death penalty violated the Eighth Amendment prohibition on cruel and
unusual punishment and Fourteenth Amendment prohibitions against
discrimination because it had been imposed in a seemingly random and
inconsistent manner. (As cited in Justia US Supreme Court, n.d.)
This ruling created some controversy between the Justices and resulted in nine separate opinions
that were presented. Two of the JusticesJustice Marshall and Brennanclaimed that the death
penalty defies the Eighth Amendments ban on cruel and unusual punishment (Gorecki, 1983, p.
5). Although he did not agree with Justice Marshall and Brennan, Justice Douglas said that the
death penalty was given out too arbitrarily to the members of the poor and minorities. This leads
to a violation of the Fourteenth Amendments forbiddance on discrimination. As a result of their

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opinions, the Justices had agreed that, at least in the cases at hand, capital punishment was
cruel and unusual and decided to reverse the cases and remanded them to the lower courts
(Gorecki, 1983, p. 10).
One very important thing that I should note at this time is that the US Supreme Court did
not finally outlaw capital punishment. Instead, due to the varied opinions of the justices, the US
Supreme Court resolved a compromise. They concluded that some factors of the Georgias
capital punishment laws were unconstitutional, and in turn were able to stop the executions of the
inmates on death row. However, the Court did not want a complete reexamination of the justice
system. To prevent this, they had only put a ban on the cases at hand (Gorecki, 1983, p. 10).
Furman v. Georgia (1972) angered a lot of people. On June 30, 1972, President Richard
Nixon stated during a press conference that the holding of the Court must not be taken to rule
out capital punishment (Mandery, 2013, p. 247). Even future President Reagan and former New
Hampshire representative Louis Wyman said that they felt that capital punishment should still be
implemented in first degree murder cases. Only a few weeks after the Supreme Courts ruling in
Furman, the National Association of Attorneys General (NAAG), began considering a new set of
death penalty laws. Dorothy Beasley, who worked with the NAAG in Georgia, suggested to
break up capital offenses into two separate phases: the trial phase and the conviction phase.
Much like Ronald Reagan and Louis Wyman, Beasley felt that the death penalty should be
applied to those individuals that committed atrocious crimes. In order to avoid the issues that
were present in Furman v. Georgia, she recommended that the state of Georgia ratify a list of
certain circumstances that must be present in order for a death sentence can be executed.
For a period of about four years, thirty-five states began to revise their laws on capital
punishment. Twenty-five of those states followed Dorothy Beasleys new capital punishment

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process and applied the two-stage process. The death penalty was now allowed to be practiced at
the state levelbut the new statutes had not been brought to the Supreme Court. This separation
between state and federal capital punishment laws gave people sentenced to death the chance to
commute their sentence to life imprisonment.
One person to fight the new capital punishment statutes was Tony Gregg. In 1973, he
was sentenced to death for the crime of armed robbery and first degree murder. Gregg and his
attorney quickly challenged the courts ruling and petitioned Georgias Supreme Court. After
slight deliberation, they confirmed the original ruling. In 1976, the US Supreme Court decided
to grant a writ of certiorarian order of a superior court requesting that a record of an inferior
court be brought forward for review or inspection (Siegel & Worrall, 2014, p. 331)for Tony
Gregg to determine if Georgias new death penalty laws violated the Eighth and Fourteenth
Amendment.
According to Jan Gorecki, two questions had arisen during the Gregg v. Georgia case.
First of all, the US Supreme Court had to decide if the new two-stage process was legal under the
constitutional law. Next, the Court needed to conclude if the mandatory death sentence for those
individuals who committed first degree murder was constitutionally credible. After over three
months of deliberation, the US Supreme Court reached a decision on July 2, 1976:
The majority approved the systems in states that limited the criteria that could
make an individual eligible for capital punishment while giving broad discretion
to sentencers (judge or jury) regarding whether it should be imposed on a certain
defendant. These states were Georgia, Florida, and Texas. . . The majority also
held, based on historical evidence, that a mandatory death penalty is
unconstitutional per se (Justia US Supreme Court, n.d.)

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The US Supreme Court ruled that that mandatory death sentences were unconstitutional but it
maintained that under Georgias new standards, capital punishment was valid under the
Constitution. Six months after the Supreme Court had allowed capital punishment, the state of
Utah executes Gary Gilmore, the first person to be executed in the United States in almost a
decade.
The main impact of Gregg v Georgia was that the Supreme Court ruled the death penalty
was allowed to be implemented in the United States so long the states did not violate the Eighth
Amendments prohibition on cruel and unusual punishment. With all the uncertainty and
criticism that Furman had brought, the Supreme Court had made sure that the capital punishment
laws were adjusted and clarified. These capital punishment laws are still being enforced today in
our criminal justice system. Following Dorothy Beasleys capital offense process, the
prosecutors must first prove the guilt of the offender. If he or she is convicted, they must then
provide a sentencing hearing. Although plea bargaining can prevent someone from being
sentenced to death, capital crime cases always adhere to this two-step method.
The moral argument of the capital punishment has always been an enormous issue.
People argue over whether the death penalty acts as a deterrence or as a way of revenge.
Throughout this paper I discussed two Supreme Court rulings that occurred during the seventies.
In Furman v. Georgia, the Supreme Court ruled the death penalty unconstitutional on the ground
that it violated the Eighth and Fourteenth Amendment. After the states revised their statutes, the
Court decided to rule the new state laws as constitutionally legal. Because of these Supreme
Court cases, the way the death penalty was tried and implemented changed in our criminal
justice system.

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References
Print
Gorecki, J. (1983). Capital Punishment: Criminal Law and Social Evolution. New York, NY:
Columbia University Press.
Mandery, E. J. (2013). A Wild Justice: The Death and Resurrection of Capital Punishment in
America. New York, NY: W.W. Norton & Company, Inc.
Melusky, J. A., & Pesto, K. A. (2011). Historical Guides to Controversial Issues in America:
Capital Punishment. Santa Barbara, CA: ABC-CLIO, LLC.
Siegal, L. J., & Worral, J. L., (2014). Introduction to Criminal Justice. Belmont, CA:
Wadsworth, Cengage Learning.
Online
Furman v. Georgia, 408 U.S. 238 (1972). Retrieved from Justia Supreme Court website:
https://supreme.justia.com/cases/federal/us/408/238/case.html
Gregg v. Georgia, 428 U.S. 153 (1976). Retrieved from Justia Supreme Court website:
https://supreme.justia.com/cases/federal/us/428/153/case.html
Gregg v. Georgia, 428 U.S. 153 (1976). Retrieved from University of Missouri-Kansas City
website: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/gregg.html