The long-debated issue of the death penalty in the United States has once again returned to the national stage following the attempted execution of Christi Pike and the planned Dec. 3 execution of Nidal Hasan. In this debate, Americans might be familiar with legal phrases like “cruel and unusual punishment” or “evolving standards of decency,” but few are aware of how fiercely debated capital punishment has been throughout U.S. history.
Prior to the independence of the United States, the penalty of capital punishment was widely accepted throughout Europe and England, so, when the U.S. ratified its Bill of Rights, it assumed the use of the death penalty, but sought to install fair limits.
Two primary limitations appear in the Fifth and Eighth Amendments:
“No person shall be held to answer for a capital, or otherwise infamous crime ... nor be deprived of life, liberty, or property, without due process of law,” the Fifth Amendment states.
The Eighth Amendment adds, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Both provisions were borne directly out of British law. The Fifth Amendment’s guarantee for due process traces back to the 1354 version of the Magna Carta: “No man of what state or condition he be, shall be … put to death, without he be brought to answer by due process of law.” Likewise, the Eighth Amendment’s prohibition of cruel and unusual punishment was taken verbatim from the 1689 English Bill of Rights.
However, these frameworks were not adopted without local dispute. In Virginia and Philadelphia, early leaders like Thomas Jefferson and William Penn successfully limited the scope of the death penalty down from a multitude of major and minor crimes to just two: treason and murder. At the national level, Dr. Benjamin Rush sought unsuccessfully to abolish state executions altogether. Advocating for long-term confinement and labor as a means of rehabilitation, Rush’s ideas formed the foundation for the modern penitentiary system.
“Before this shift, confinement was primarily used to hold individuals awaiting trial or punishment; it was rarely used as a means of punishment in se. The once predominantly public nature of punishment gave way to less theatricality and more privacy,” the University of Richmond School of Law notes.
Throughout the 19th century, the use of the death penalty fluctuated as individual states exercised complete sovereignty over the application of capital punishment. In 1879, the Supreme Court ruled that death by firing squad did not violate the Eighth Amendment. Then, in 1890, the Supreme Court faced another Eighth Amendment challenge regarding execution by electric chair before also ruling it a constitutional method of execution.
A major legal turning point arrived in 1910 with Weems v. United States. The Supreme Court overturned a sentence involving hard labor and removal of civil rights for fraud in the Philippines on grounds that it constituted “cruel and unusual punishment.” Establishing the proportionality of the punishment to the crime, the Court declared the Eighth Amendment clause on unusual punishment to be dynamic and changeable over time.
“Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth,” the Court said.
In the years from 1900-1918 — years of American prosperity leading into WWI —- the death penalty largely lost favor with the American public, prompting 10 states to abolish it: Minnesota, North Dakota, Colorado, Oregon, Washington, Kansas, South Dakota, Missouri, Arizona and Tennessee.
However, during the post-WWI recession and the 1929 market crash, every one of these states except Colorado reinstated capital punishment. Believing that rising poverty and unemployment would inevitably increase crime, the public once again began to view the death penalty as “a necessary social measure.” Consequently, the 1930s saw more total executions than any other decade in U.S. history, numbering 1,676. Likewise, high approval rates continued throughout the 1940s, resulting in the decade’s 1,289 executions.
Approval remained high through much of the 1950s, fueled by intense Cold War sentiments and highlighted by the federal executions of Julius and Ethel Rosenberg for espionage. By the late 1950s, however, opposition to the death penalty resurfaced. In 1958 with Trop v. Dulles, the Supreme Court extended its definition of cruel and unusual punishment, stating that the clause must draw its meaning from the “evolving standards of decency that mark the progress of a maturing society.”
A wave of state level opposition followed. Between 1957 and 1969, 10 states — Hawaii, Alaska, Delaware, Michigan, Oregon, Iowa, New York, West Virginia, Vermont and New Mexico — repealed the death penalty. This effort was largely driven by the NAACP and its Legal Defense Fund, which raised concerns about the racially discriminatory history of capital sentencing.
This movement culminated in 1972 with Furman v. Georgia, a landmark Supreme Court decision which struck down all federal and state capital statutes as unconstitutional on grounds of violating the Eighth Amendment, ruling that death sentences were being arbitrarily imposed. On June 29, 1972, the Supreme Court effectively voided existing death penalty statutes, “commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.” This decision was by no means a uniform decision from the Court. Not only was it a 5-4 vote, but each of the nine justices penned their own separate opinions — an anomaly which has only occurred three times in U.S. Supreme Court History.
The suspension was brief. Just months later, 35 states — led by Florida — redrafted their capital punishment statutes to address the concerns in Furman v. Georgia, reinstating statewide executions.
Public support for the death penalty continued to rise over the following decades, peaking in 1994 with 80% of Americans voting in favor. However, the latest poll in 2025 shows that approval has dropped back down to 52%, its lowest approval rating since Furman v. Georgia in 1972.
Among the G7 nations, the United States and Japan remain the only countries that continue to practice capital punishment, joining roughly 55 countries who maintain the penalty, including China, Iran and Saudi Arabia.
As high-profile cases like those of Pike and Hasan return the death penalty to national headlines, they serve as modern reminders of a centuries-old debate. Reshaped across generations by economic crises, judicial rulings and shifts in public conscience, the American death penalty continues to reflect Trop v. Dulles’ “evolving standard of decency.” And so, as it has since the nation’s founding, the future of capital punishment remains inextricably tied to how Americans define justice in the modern era.
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