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September 10, 2011

Statistical highlights (and queries) concerning US death penalty history

Execyear Though I spent probably too much class time Thursday referencing parts of the history of the death penalty in the United States, I do not think it is possible for students of modern sentencing law and policy to spend too much time reflecting on this history.  I encourage all students to read up on the United States' history with the death penalty from various sources, such as the full opinions in Furman or the abolitionist-oriented account provided here by the Death Penalty Information Center or this reader-friendly review of DP history in the US .

One key historical point I sought to stress in class is that, though the US Supreme Court has been very involved in death penalty regulation through interpretations of constitutional law over the past forty years, during the prior 180 years the  Supreme Court had relatively little to say on the topic.  But this reality of Supreme Court relative lac of involvement in this historical story certainly was not a result of a relative lack of use of the punishment, because according to the ESPY File of all US executions, in the United States there were:

  • 13 executions in 1790, the year after the US Constitution was ratified
  • 8 executions in 1804, the year after Marbury v. Madison was decided
  • 39 executions in 1869 the year after the 14th Amendment was adopted
  • more than 100 executions in 1906, the year after the famous "activist" Lochner decision
  • more than 1500 executions during the 1930s (roughly 3 each and every week)

Notably, when the US Supreme Court during the Warren Court years started getting much more actively involved in regulating state police and prosecution practices, lower state and federal courts did start more actively reviewing state death sentences.  As a result, from 1967 to 1976, the period leading up to and around the McGautha and Furman and Gregg rulings, there were zero executions in the United States.

The Gregg ruling in 1976 is often used to mark and define the start of the "modern" death penalty era in the United States, and the chart from the DPIC reprinted above (and easier to read at this link) details that the US has been averaging more than 50 executions per year over the last two decades, with a recent one-year high of 98 executions in 1999 and a recent one-year low of 37 in 2008.  

Lots of legal and non-legal factors have had an impact on these historical data, and one would struggle to come up with any simple explanation for precisely why our nation has had a roller-coaster, up-and-down experience with executions.  Nevertheless, in addition to being factually interesting, I think there are various sentencing law and policy lessons to be taken away from this history.  I am interested to hear student insights as to these possible historical lessons: do folks think this history suggests it is inevitable that the US will always be a death penalty nation, or that this history shows that the US has and could get along without many or even any executions?

Comments on what lessons we should take away from this history, and on what else is worthy of historical note and discussion here, are highly encouraged.  Also, I encourage thoughts about whether the total number of death sentences or capital prosecutions (rather than just actual executions) would be important data in this historical story.

September 10, 2011 in Data on sentencing, Death penalty history | Permalink


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First, I wanted to object to your assertion that there was a significant difference in the number of executions during the Clinton and Bush II administrations. There were 495 executions from 1993-2000 (61.8 per year during Clinton Admin.) and 453 from 2001-2008 (56.6 during Bush II Admin.). This is about an 8.5% drop. Although I would not want my grade to drop 8.5%, in this context I'm not sure the difference is significant.

Second, I think the total number of death sentences and capital prosecutions is far more important data (than actual executions) when trying to understand society's desire to use capital punishment. District Attorneys are elected officials and must answer to society for their decisions. Whether they are or are not pursuing death sentences in their jurisdiction should (generally) accurately reflect that jurisdictions will, or else the DA risks not get re-elected. Death sentences are mostly handed out by juries, who also should reflect society's will.

On the other hand, the number of actual executions is greatly affected by an appeal system that really doesn't work correctly (or at least the way society probably wants it to work). Ohio currently has 150 people on death row. 105 of these inmates have been on death row for more than 10 years. 42 of these inmates have been on death row more than 20 years. The system is broke. But even if you don't think it's broke based on these stats, you should agree that the number of death sentences pursued by prosecutors and handed out by juries more accurately reflects society's will and desire to use the death penalty than the number of acutal executions.

Posted by: Bradley Newsad | Sep 11, 2011 10:28:53 PM

Good number crunching, Bradley, though doesn't it still mean something that executions kept going up and up during the Clinton years and kept going down and down during the Bush years?

Also, the death sentence data here are also quite interesting (and telling?): during the Clinton years, the US averaged nearly 300 death sentences per year (high of 315 in 1996, low of 224 in 2000); during the Bush years, the US averaged less than 150 death sentences per year (high of 166 in 2002, low of 119 in 2008).

There are lots of different types of stories to tell here about society as a whole and state/local criminal punishment politics to explain this 100% difference. Still, I find it fascinating (and surprising?) that the Clinton era involved such a significant surge in death sentencing while the Bush era involved such a significant decline.

These data and lots of others appear in the BJS charts here: http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf

Posted by: Doug B. | Sep 12, 2011 10:53:11 AM

I would be interested in the overall rate of capital prosecutions, as it could provide useful context for the statistics. If the US has remained at a constant X% of actual executions from those capital prosecutions, then I see no problem with the numbers. It would also convince me that the US will likely always be a death penalty country.

Further, the social climate of the country has changed dramatically, with a far more diverse demographic both ethnically/racially and socioeconomically. With this inevitably comes tension, and from tension comes serious crime. I think that this is a major influence in the rate of capital punishment, as in many instances, incarceration or rehabilitation/community control prove ineffective (though, the power of general deterrence from the death penalty is far less than desired by its proponents). There is a vicious cycle of unrest caused by social disparities, and this is more pronounced than it has been in the past.

As Bradley said, the death penalty's imposition reflects society's will, and many feel that not enough categories of crimes are death penalty eligible, e.g. rape, child sexual abuse. In the past, as far as I know, these crimes were quietly accepted (or the victim was blamed). With the changing public opinion of what constitutes a heinous crime, I really don't think that the US will move from the death penalty unless society settles and/or the crime rate for serious crimes decreases substantially.

Posted by: Heather W | Sep 13, 2011 9:31:41 AM

One thing to note when looking at execution statistics and their fluctuation is the homicide rate. Obviously homicide rates don't perfectly track execution rates because most homicides don't result in death sentences and there are disparities in how long prisoners sit on death row, but it is useful to look at the fluctuation in the rate over the years. This chart just shows victims, but there are pretty sizeable swings in numbers, enough to justify a lot of the variation in the graph above.


Posted by: Colin P | Sep 13, 2011 9:51:28 AM

Far be it from me to question ESPY, and I am sure they are aware of this, but the veracity of any statistic prior to the Modern Era is going to be constantly in question. More simply put, the era of 1600-1960 (or even later) does not take into account what we would think of as extrajudicial killings that were de rigueur for the time. These stats could not possibly take into account a very rural system of justice, wherein a person is tried and just taken out back and hanged or shot. Records are, at best, sketchy about these kinds of things, and, at worse, nonexistent.

My overall point is I am not sure how much death penalty history helps. We can, to crudely crib Sherlock Holmes, only make bricks from clay if we have the clay, and I do not think that these statistics can take into account the "he needed killing" effect that may take place with questionable or nonexistent due process.

Posted by: Steven Druckenmiller | Sep 13, 2011 10:28:18 AM

I find it interesting that during 1967-1976 there were no executions in the United States. During that time period, there was a massive shift in the political culture of the United States, much of which led to the current political divisions, such as the "red" and "blue" states of today. That correlation popped into my head, because perhaps in that time of political change (not to mention social and cultural change), people who most heavily championed the death penalty were preoccupied, or lacked the necessary support to carry out an execution. Additionally, with the Vietnam War at the forefront of American culture, there were "bigger fish to fry" that had nothing to do with the death penalty.

That being said, I think that the United States is a death penalty nation. The exception, based on the statistics and my own, little historical hypothesis, is perhaps during times of great cultural, social, and especially political changes, the death penalty takes a backseat. Why? I honestly don't have anything legitimate answer, but simply what I mentioned in the first paragraph. The idea that without any sort of solid base, the death penalty supporters do not have enough strength in numbers to carry out any significant (or any) executions. I think that a political shift has the greatest impact, based on the number of executions during the Great Depression, and World War II -- both times of obvious cultural and societal changes, but not drastic political changes. And once the dust of the 1970s settled, the death penalty reemerged, slowly becoming more prevalent as the Cold War wrapped up in the late 1980s/early 1990s. It was, obviously, widely used during throughout the 1990s, and the new millenium.

I realize that my hypothesis is just that, but it is certainly interesting to consider the correlation between major cultural, political, and societal shifts, and the death penalty.

Posted by: Allison S. | Sep 13, 2011 12:51:53 PM

On behalf of historians, I would have to respectfully disagree when one states that they do not know how much “history helps.” For anyone to truly understand how our society came to be and why we live under the laws that we do, one must appreciate and acknowledge the history that stems from our society. To state otherwise would be plainly absurd.

While I believe a lot of good points have already been mentioned, I think our death penalty laws will ultimately remain inevitable in the U.S. I say this mainly due to the retributivists’ theory in that criminals deserve to be punished — especially those committing the most heinous of crimes. As long as we have enough of a percentage in the U.S. that agree with the death penalty as a proportionate punishment for those who have committed capital offenses, such a sentencing is most likely to remain. As was mentioned earlier, prosecuting offices are meant to represent the community and their needs. So what the public wants, the public gets. Whether one views this perspective as a barbaric “eye for an eye” type of punishment or rather the defendant is merely getting what he/she deserves, the wide spread idea that the death penalty is an option, and thus perfectly acceptable as a punishment, seems to remain as one that will stay.

As a point of clarification, my aforementioned opinion stems from observing part of the Anthony Sowell trial this past summer. From my understanding, the Assistant Prosecuting Attorneys (APA) were willing to accept a plea agreement of life imprisonment without parole. The victims’ families, however, were not so willing. Their adamant disapproval ended up swaying the APAs into going through with a full out trial in which case Sowell was found guilty and later was sentenced to death. For a quick overview, please see the link below.


Posted by: Isabella | Sep 14, 2011 6:14:39 PM

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