Four years earlier, in Furman v. Georgia, the Court had ruled to stop executions nationwide, finding that death sentences were being imposed so arbitrarily that they were violating the Constitution.
States were told that if they wished to continue executing people, they would have to create fairer systems that would eliminate the randomness, bias, and discrimination that had come to define capital punishment.
Fifty years later, we must ask ourselves: What do we have to show for it?
Despite decades of legal reforms, countless appeals, and endless revisions to state statutes, the death penalty remains just as arbitrary today as the Supreme Court found it to be in 1972.
Around 2,100 people are on death row across the U.S.
The origins of the U.S. death penalty begin with English common law, which was continued in North America by British colonizers. The death penalty under English common law in the 1600s was applied to nearly all felonies, which included many minor offenses.
The first recorded execution in what became the United States occurred in 1608, when Captain George Kendall was executed in the Jamestown colony, who was accused of mutiny.
Colonial governments expanded capital punishment far beyond just murder, making crimes such as stealing food, trading with Indigenous Americans without permission, or even striking one’s parents punishable by death.
From its very beginning, the death penalty has been used as a tool of social control. It was used not simply to punish violence but to enforce hierarchy, maintain order, and bolster those in power. That legacy persists in the death penalty current day.
During the late nineteenth and early twentieth centuries, thousands of Black people were lynched by white mobs, who often faced little or no consequences. These mobs often stormed county jails to abduct incarcerated people before any trial occurred.
The highest concentration of documented lynchings in the U.S. occurred between the 1890s and the 1920s; the NAACP recorded 4,743 lynchings between 1882 and 1968.
As the world began growing increasingly critical of lynchings in the U.S., states began handing the role of lynching over to the legal system. In 1834, Pennsylvania became the first state to move executions away from the public eye and began carrying them out in correctional facilities.
After the Civil War (1861-65), new developments in the means of executions emerged. The electric chair was introduced at the end of the century, with New York building the country’s first in 1888 and overseeing its first execution with this method in 1890.
Lynchings became a tool of the state. Racial terror has always been a cornerstone of the death penalty - whether it be administered by a mob or by the government.
(Despite accounting for less than 14% of the general population.)
When it comes to exonerations for wrongful convictions, people of color are overrepresented once again, accounting for nearly two-thirds of the 200 people who have been exonerated and freed from death row since 1973. If fortunate enough to be exonerated, people of color spend more time waiting for their exoneration than do their white counterparts.
The electric chair replaced hanging.
The gas chamber replaced electrocution.
Lethal injection eventually replaced both.
Now states are using nitrogen hypoxia and the firing squad and selling them as “the most humane methods” of execution.
No matter how many times the public is told that a method of execution is “humane,” the fact remains that there is no humane method of execution.
On June 29, 1972, the Supreme Court haded down its ruling in Furman v. Georgia. While the Court did not hold that the death penalty itself was unconstitutional, it found that death sentences were imposed so unpredictably and inconsistently that they amounted to cruel and unusual punishment, which is a violation of the Constitution’s Eighth Amendment.
The Court found that being sentenced to death often depended less on the crime and more on factors entirely unrelated to culpability, such as where the case was being held, the race of both the defendant and the victim, poverty, the quality of legal representation, the prosecutor in the case, and the makeup of juries.
In other words, whether someone lived or died was far too often hinging on luck instead of actual guilt.
In Furman v. Georgia, the Court struck down every death penalty statute in the country and handed the issue back to the states, forcing states who wanted to continue imposing the death penalty to design systems aimed at reducing the rampant arbitrariness.
Each state approached rewriting their death penalty laws differently…
Four years and four days after the Court suspended the death penalty in the U.S., the ‘July 2nd’ cases marked the inception of the “modern death penalty.”
In Gregg v. Georgia, Proffitt v. Florida, and Jurek v. Texas, the Court upheld new death penalty statutes attempting to guide sentencing. Jurors and judges were required to weigh aggravating factors against mitigating evidence before deciding whether someone should live or die. The Court believed that this guided discretion would reduce arbitrary sentencing.
In Woodson v. North Carolina and Roberts v. Louisiana, the Court rejected mandatory death sentences, ruling that every capital defendant must receive individualized consideration.
From these rulings, Texas adopted one of the most distinctive approaches: rather than balancing aggravating and mitigating factors in the same way as other states, the state required juries to answer a series of specific questions before imposing death. One question has become especially controversial: “Would the defendant probably constitute a continuing threat to society?” Simply put: jurors were being asked to predict the future.
Decades of behavioral science have since demonstrated how unreliable these predictions are. Human beings simply cannot accurately determine who may become violent years or decades into the future. Yet life or death decisions continue to rest on that speculation.
Oregon once copied Texas’s death penalty statute almost word for word. However, over time, Oregon began revising its laws, recognizing that predicting future dangerousness is inherently unreliable. Texas still asks juries to predict the future.
Race, poverty, geography, intellectual disabilities, the quality of legal representation, jury makeup, prosecutors, and so many other factors still drive arbitrariness. Innocent people continue to be sentenced to death. The system cannot be reformed.
A future without the death penalty is not out of reach – not if we fight for it.
Get involved in the fight to end the death penalty: sign petitions, contact your elected officials, write to incarcerated people on death row, and be alerted when urgent action is needed at deathpenaltyaction.org
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