Their Right to Take Your Life: A History of the U.S. Death Penalty

The tenth person to be executed in 2020, Alfred Bourgeois, was killed on December 11. And the day before that, Brandon Bernard was executed. 

The death penalty perpetuates the same inequities as it does throughout the criminal justice system, including racial disparities in sentencing.

Despite significant outcry, the Trump Administration has rushed through executions of inmates on federal death row in anticipation of an upcoming presidential transition. This is a departure from the past half-century, where public support for the death penalty has receded, and state governments have mostly abolished or rejected the practice.

The United States had the sixth-highest total number of executions in the world in 2019. So far this year, the federal government has put ten people to death, the most since 1896.

While capital punishment dates back to as early as 1800 B.C., it was brought to North America alongside British colonialism; the first-recorded U.S. execution was in Virginia in 1608. In those early years, the death penalty was used for any number of crimes, ranging from stealing chickens to hitting one’s parent. 

Starting in the 1840s, states began abolishing the use of the death penalty, beginning with Michigan in 1846, followed by Rhode Island and Wisconsin. Countries in Europe and Latin America were simultaneously outlawing the use of capital punishment. From 1907 to 1917, six U.S. states abolished the death penalty, but within a few years all but one had reinstated it, amid the first Red Scare and isolationist fears of the United States entering World War I. 

From the 1920s to the 1940s, the death penalty rose both in usage and popularity, due in part to social scientists promoting it as a “necessary social measure.” The 1930s saw the highest number of executions in U.S. history, with an average of 167 killings per year. Starting in the 1950s, popular support for the death penalty, as well as government usage of it, waned significantly. By 1963, public pressure brought an end to federal use of the death penalty. In the following decades, implementation of the death penalty dropped significantly. 

In 1972, The U.S. Supreme Court ruled the death penalty unconsitutional, as “cruel and unusual punishment,” although it remained in use at the state level. The federal death penalty was suspended until 1988. Between 1988 and 1994, six people were sentenced to federal death row; those numbers increased following the passage of the Federal Death Penalty Act, a portion of the 1994 crime bill.

The renewal of federal executions comes at the time when the capital punishment is more unpopular than it’s ever been. Per Gallup polling, just over half of the U.S. public favors the death penalty, down from 69 percent in 2007.

Nonetheless, the Trump Administration is doing all it can to pick up the pace of executions before President-elect Joe Biden’s Inauguration Day. 

In July 2020, the Trump Administration broke a seventeen-year hiatus of federal executions after the Supreme Court cleared the way, proceeding to execute ten people on death row, in a process overseen by outgoing Attorney General William Barr.

According to Reuters, the Trump Administration had spent the previous three years stockpiling lethal injection drugs in preparation. A report released on December 16 by the Death Penalty Information Center found that the number of federal executions in 2020 exceeded the total number in all U.S. states, for the first time in history. These are the first executions to take place during a lame duck presidency in 130 years. 

The spate of federal executions has also led to an outbreak of COVID-19 in Terre Haute, Indiana; prison staff contracted COVID-19 after the execution of Orlando Hall on November 19. Corey Johnson and Dustin Higgs, who are both scheduled to be executed between now and Inauguration Day, have contracted COVID-19, according to their legal teams. 

Since then, two people imprisoned at Terre Haute have filed suit against the federal government to suspend executions to prevent further spread of the virus. 

The death penalty perpetuates the same inequities as it does throughout the criminal justice system, including racial disparities in sentencing. According to the NAACP, as of 2018, thirty-seven of the sixty-three people on federal death row were people of color, and of those, twenty-seven were Black. 

The Trump Administration has already executed Lezmond Mitchell, a member of the Navajo Nation and the only Native American on federal death row. It also took the life of Brandon Bernard, who was just eighteen nineteen at the time of his crime, younger than any other person to be executed in nearly seven decades.

On January 12, Lisa Montgomery is scheduled to be executed, making her the first woman to face this punishment since 1953. On December 1, the Inter-American Commission on Human Rights requested a delay in Montgomery’s execution, saying  it would cause “irreparable harm.” While such requests are in no way legally binding, according to The New York Times, they have resulted in stayed executions in the past.

On the state level, gains have been made toward ending capital punishment. In March 2020, Colorado abolished the death penalty, and its governor commuted the sentence of the three remaining inmates on the state’s death row. On December 17, the Ohio state legislature passed a bill outlawing executions for those with a “serious mental illness.” And Ohio Republican Governor Mike DeWine placed a “de facto moratorium” on executions in that state due to a shortage of the drugs used for lethal injections. 

Nationwide, there were less than thirty executions in 2020, for the sixth consecutive year,

according to a Death Penalty Information Center report. The center attributes this in part to the coronavirus pandemic. In total, thirty-four states—more than two-thirds—have either abolished the death penalty or haven’t carried out an execution in at least a decade.

On December 15, more than three dozen members of Congress sent a letter to President-elect Joe Biden and his incoming administration, calling on him to abolish the death penalty in all jurisdictions. Biden’s criminal justice platform commits to abolishing the death penalty on the federal level, while passing legislation to “incentivize states to follow the federal government’s example.” 

“The current administration has weaponized capital punishment with callous disregard for human life,” Democratic Representative Ayanna Pressley of Massachusetts wrote in the letter. “With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death.” 

In July of 2019, Pressley introduced legislation to ban the death penalty at the federal level, requiring the resentencing of all on death row.