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An Introduction to the Theory and Practice of Capital Punishment in the United States

Robert M. Bohm

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eBook - ePub


An Introduction to the Theory and Practice of Capital Punishment in the United States

Robert M. Bohm

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About This Book

This fifth edition of the first true textbook on the death penalty engages the reader with a full account of the arguments and issues surrounding capital punishment. The book begins with the history of the death penalty from colonial to modern times, and then examines the moral and legal arguments for and against capital punishment. It also provides an overview of major Supreme Court decisions and describes the legal process behind the death penalty. In addressing these issues, the author reviews recent developments in death penalty law and procedure, including ramifications of newer case law, such as that regarding using lethal injection as a method of execution. The author's motivation has been to understand what motivates the "deathquest" of the American people, leading a large percentage of the public to support the death penalty. The book educates readers so that whatever their death penalty positions are, they are informed opinions.

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Chapter 1
History of the Death Penalty in the United States

The Death Penalty in Colonial Times

Captain George Kendall, a councilor for the Virginia colony’s Jamestown settlement—the first permanent English settlement in the Americas—was executed in 1608 for being a spy for Spain, and so began America’s experience with capital punishment.1 The death penalty was just another one of the punishments brought to the New World by the early English settlers.

Death Penalty Laws

The crimes for which the death penalty was legally imposed varied from colony to colony. Typical was the law of the Massachusetts Bay Colony’s Puritans, which listed 12 death-eligible crimes: (1) idolatry, (2) witchcraft, (3) blasphemy, (4) murder, (5) manslaughter, (6) poisoning, (7) bestiality, (8) sodomy, (9) adultery, (10) man-stealing, (11) false witness in capital cases, and (12) conspiracy and rebellion.2 Each of these capital crimes (crimes for which death could be imposed), except conspiracy and rebellion, was accompanied by a Biblical quotation as justification. For example, following murder was this Biblical passage, in the language of the statute: “If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death.”3
The Quakers, who were far less punitive than their neighbors to the north, enacted milder laws. In the Royal Charter of South Jersey (1646), capital punishment was originally forbidden altogether, but the prohibition ended in 1691.4 William Penn’s Great Act of 1682 (Pennsylvania) allowed capital punishment only for treason and murder.5 The Act remained in effect until 1718, when, under pressure from the English king, the Quakers extended the death penalty to the crimes of arson, burglary, counterfeiting, malicious maiming, manslaughter by stabbing, and robbery.6
The southern colonies had “bloodier” penal codes than their northern counterparts. For example, when the Virginia colony codified its criminal laws in 1610 and 1611, the code—called “Laws Divine, Moral, and Martial” or the “Dade Code”—prescribed capital punishment for 25 offenses, including a host of less serious property crimes such as stealing grapes or ears of corn from public or private gardens, smuggling tobacco, stealing a hog, killing a chicken, defrauding creditors, receiving a stolen horse, and trading with Native Americans.7 A Virginia colonist also could be executed for a third absence from Sunday church services or speaking “impiously or maliciously” of the “Holy and Blessed Trinity” or “against the known articles of the Christian faith.”8
Many English colonists, especially those residing in the southern colonies, must have been troubled by the severity and rigidity of their penal codes that mandated the death penalty upon conviction of a capital offense. In response, they created three mechanisms to mitigate the codes’ harsh effects. Colonial jurors could nullify the statutes, while colonial judges could grant pardons and benefit of clergy. These were in addition to the liberally used executive clemency by colonial governors.9
Jury nullification refers to a jury’s knowing and deliberate refusal to apply the law because a death sentence for stealing grapes, for example, was considered contrary to the jury’s sense of justice, morality, or fairness.10 The possibility of jury nullification has existed since trial by jury was first established in thirteenth century England and still exists today.11
Judicial pardon was another mechanism by which colonists could be spared the death penalty. Colonial judges had nearly unfettered discretion and sometimes used that discretion to pardon or forgive an offender by nullifying the punishment.12
Colonial judges also could extend benefit of clergy to certain offenders. The benefit originated during the Middle Ages and allowed members of the clergy to escape capital punishment by reciting the “neck verse” or Psalm 51 from the Bible: “Have mercy upon me, O God, according to thy loving kindness: according unto the multitude of thy tender mercies blot out my transgressions.” (It was called the “neck verse” because it literally could save one’s neck.)13 The benefit provided an exemption from capital punishment for the first offense in most cases.14 To guarantee that eligible offenders did not claim the privilege more than once, they were branded on the thumb.15
Prior to the 1700s, the benefit of clergy was not used much because the number of felonies for which the benefit could be claimed was relatively small.16 Murder was not a clergyable offense.17 However, from the late seventeenth century through the eighteenth century, benefit of clergy was used with “surprising frequency” in both Maryland and Virginia. According to history professor Jeffrey Sawyer, “somewhere between one fourth and one third of the convictions at felony trials resulted in a grant of benefit of clergy.”18 Sawyer added, “There is no Virginia or Maryland case to my knowledge in which a qualified (literate, first-time) offender was denied clergy by the judge….”19 In 1732, the Virginia assembly eliminated the reading test and granted the benefit of clergy to most offenders, including “negroes, Indians, and mulattoes.”20
Benefit of clergy was abolished in most states following the Revolutionary era, when the first workhouses and prisons were constructed. (The first prison was established in Philadelphia in 1790.) Virginia abolished the benefit in 1796; Maryland did the same in 1807.21 Workhouses and penitentiaries made flexibility in sentencing possible and benefit of clergy and judicial pardon counterproductive and unnecessary. If retained, either mechanism would have undermined the newly embraced goal of proportionality in punishment.22
Today it may seem as if colonial statutes, especially the statutes of the southern colonies, listed too many capital crimes, but for the times, the number was relatively modest. In England, death could be imposed for more than 50 crimes during the seventeenth century. Later, during the reign of George II (1727–1760), the number of capital crimes was increased to nearly 100, and under George III (1760–1820), the death penalty could be imposed for almost 150 capital crimes (some authorities maintain it was closer to 200 capital crimes).23 The main reason for the relatively small number of capital crimes in colonial America was the great need for able-bodied workers. It made little sense to execute people at a time when workers were so scarce, and people could be made to work. The English colonies might have had even fewer capital crimes if long-term confinement facilities had been available.24

Executions and Saving Souls

Executions in colonial America, though rare events, had a significant religious component that they lack today. They provided an especially dramatic occasion for saving souls. To be sure, executions served other purposes as well. They were considered just retribution—“an eye for an eye”—and a general deterrent to crime. They were also a stark reminder of what the state had the power to do to people who violated its laws.25 However, their role in saving souls was part of a morality lesson central to the clergy’s social control of the colonists.26
The twin beliefs that human beings were inherently depraved victims of original sin or the fall from grace, and that they could be influenced by the devil or demons anchored the religious view of the world that dominated colonial America. Believers were taught that, to avoid eternal damnation, they must spend their lives fending off devilish enticements, controlling their evil natural urges, and seeking salvation. Fortunately, for sinners, religious doctrine guaranteed that repentance was possible for anyone, anytime prior to death, no matter how despicable their behavior. In this view, capital punishment both hastened a criminal’s effort to repent and expiated the community’s collective guilt for past crimes.27
It was primarily for these religious reasons that condemned offenders typically were not executed for a week or two or, in some cases, several weeks, after conviction.28 So important was repentance and assuaging the community’s collective guilt that the government was willing to forfeit some of the retributive and deterrent effect of the punishment by temporally separating the connection between the crime and the punishment. The delay also was costly to the government because it had to house and feed the condemned person during...

Table of contents

Citation styles for DeathQuest
APA 6 Citation
Bohm, R. (2016). DeathQuest (5th ed.). Taylor and Francis. Retrieved from (Original work published 2016)
Chicago Citation
Bohm, Robert. (2016) 2016. DeathQuest. 5th ed. Taylor and Francis.
Harvard Citation
Bohm, R. (2016) DeathQuest. 5th edn. Taylor and Francis. Available at: (Accessed: 15 October 2022).
MLA 7 Citation
Bohm, Robert. DeathQuest. 5th ed. Taylor and Francis, 2016. Web. 15 Oct. 2022.