To Ban or Not To Ban: The Death Penalty in Limbo

The idea of capital punishment and its legality have enveloped the news and media for centuries.  But where did the death penalty come from, how has it developed over time, and how much longer will it be around?


Capital punishment, or the death penalty, is the process of sentencing a convicted offender to death.  The idea of capital punishment and its legality have enveloped the news and media for centuries.  But where did the death penalty come from, how has it developed over time, and how much longer will it be around?

Ancient History, the Middle Ages, and Modern History

Death penalty law dates to the 18th century B.C. where the Code of King Hammurabi of Babylon first codified the punishment.  Codification of the punishment continued in many societies throughout history; for example, it was included in the Draconian Code in 7th century B.C. and the Roman Law of the Twelve Tablets in 5th century B.C.

Throughout ancient history and even into the Middle Ages, the number of crimes punishable by death were so numerous and arbitrary that a person could be executed for committing infractions as minor as cutting down a tree.  Additionally, the methods of execution were often designed to be cruel and tortuous.  For instance, law breakers could be put to death by being burned at the stake, boiled to death, and even crushed by elephants.

As time progressed, societies limited the number of crimes subject to the death penalty and sought out more humane methods of execution.  During the eighteenth and nineteenth centuries, law makers became more selective in deciding which crimes could potentially result in execution, and the style of execution itself–while still a public spectacle–was usually instantaneous.  Crucifixions and the use of the breaking wheel were replaced with hanging and the use of the guillotine.

The United States

The death penalty was not only maintained throughout centuries but also expansive in its geographical reach.  The idea of the death penalty extended across countries and even continents.  When European settlers founded the Thirteen Colonies, they brought with them the death penalty.  In 1608, the first recorded execution in what would become the United States, occurred in the colony of Jamestown, Virginia when Captain George Kendall was executed for being a Spanish spy.  Originally, each colony determined for itself how and for which crimes the death penalty would be implemented, but by 1776, most colonies implemented the death penalty similarly to Virginia.

Strides in Reformation

The abolitionist movement began in the late 1700s when Thomas Jefferson proposed a bill revising Virginia’s death penalty laws to limit the use of capital punishment for crimes of murder and treason.  While the bill itself was unsuccessful, the movement began to pick up traction, and in 1791, the United States Constitution was amended to include a prohibition on cruel and unusual punishment.  Further, during the early 1800s, many states reduced the number of crimes punishable by death and began building state penitentiaries.

While great strides were made toward reforming the death penalty, opposition to its use faded during the Civil War as the anti-slavery movement began.  However, the early 20th century brought with it the “Progressive Period” of penal reform in the United States.  Between 1907 and 1917, several states outlawed or limited their use of the death penalty for the first time.  Nevertheless, the panic and pressure of World War I led all but one state to reinstate it.  Moreover, the looming threat of communism, coupled with publications by criminologists referring to the death penalty as a necessary social measure, led to a resurgence in its use.  According to the Death Penalty Information Center, the 1930s saw more executions than any other decade in American history, with an average of 167 people put to death per year during that period.  While states believed the punishment was the best method of deterrence, more humanitarian styles of execution, like cyanide gas, were utilized.

A De Facto Moratorium and the Progress Since

The 1950s marked a shift in the American public’s attitude toward the death penalty as many allied countries either abolished or limited its use.  Several significant Supreme Court cases followed, resulting in modifications to the implementation of the death penalty.  In 1972, the United States Supreme Court in Furman v. Georgia ruled that capital punishment, as it was currently being implemented on both the state and federal levels, was cruel and unusual and, therefore, unconstitutional.  The Court held that the states were employing the death penalty in “arbitrary and capricious ways,” most notably in regard to race.  A moratorium was placed on the use of the death penalty.  In 1976, however, in Gregg v. Georgia, the Supreme Court recognized that there had been advances in jury guidelines for sentencing someone to capital punishment and reinstated capital punishment under a “model of guided discretion.”

Since the end of this moratorium in 1976, there have been several other refinements made to the death penalty’s application.  For instance, in 2002, the Supreme Court held in Atkins v. Virginia that it is unconstitutional to execute a “mentally retarded offender,” and in 2005, the Court held in Roper v. Simmons, that it is unconstitutional to execute a juvenile.

Current Statistics: Subject to Change?

In the United States, 28 states maintain the death penalty.  This number will, however, soon change.  On February 22, 2021, the Senate of Virginia approved House Bill 2263 which would abolish the death penalty in the state, including for those currently under a death sentence.  At that time, there were only two men on death-row in Virginia.  Anthony Juniper was sentenced to death for killing his ex-girlfriend, her brother, and two of her children in 2004, and Thomas Porter was sentenced to death for killing a police officer in 2005.  The passage of H.B. 2263 will convert both men’s sentences to life in prison without parole.  The bill was passed by both the Virginia House and Senate in a 57-41 and 22-16 vote respectively.  On March 24, 2021, Governor Ralph Northam signed the bill calling the death penalty “inequitable, ineffective, and inhumane.”  This bill made Virginia the 23rd state to ban capital punishment in the United States.  Virginia’s ban on the use of the death penalty is incredibly significant.  Notably, the state of Virginia has executed almost 1,400 people since the first execution in 1608.  Further, Virginia has executed a higher percentage of death-row inmates than any other state in the United States and is second only to Texas in the number of executions since the death penalty was reinstated in 1976.

Although change is on the horizon, a study by the Death Penalty Information Center reveals that there are currently 2,504 inmates on death-row in the United States.  Twenty-eight states maintain the death penalty, each of them using lethal injection as the primary method of execution.  However, resistance from drug providers to supply the drugs used for lethal injections has led states to seek other alternatives such as electrocution, lethal gas, and firing squads.

Public Sentiment Sides with Life Over Death—Do North Carolina Law Makers?

While 28 of 50 states maintain the use of the death penalty, a 2019 Gallup poll showed that 60% of Americans prefer a life sentence over capital punishment.  Despite these statistics, North Carolina maintains the use of the death penalty.  In North Carolina alone, there are currently 141 inmates on death-row.  At its peak, North Carolina imposed 241 death sentences between 1991 and 2000.  In comparison, between 2009 and 2018, only 14 death sentences were imposed.  Most recently, on March 4, 2019, Seaga Edward Gillard was sentenced to death in Wake County after being convicted of the double murder of a pregnant prostitute and her boyfriend.  This was the first imposition of a death sentence in Wake County in over a decade.  That being said, an article from WRAL notes that Wake County District Attorney, Lorrin Freeman, has pursued the death penalty more than any other prosecutor in the state of North Carolina.  The last person executed in North Carolina was Samuel Flippen, who, in 2006, was put to death for killing his 2-year-old stepdaughter.  Since the death of Flippen, there have been no other executions in North Carolina.  However, in 2017 alone, five inmates on death-row died from natural causes.

State of Limbo

The death penalty has persisted for centuries, but despite reformation, issues still arise.  While some states clearly have their sights set on prohibiting the death penalty, others are dedicated to preserving it.  Current public sentiment sides with life over death, but as history has demonstrated, public opinion is always subject to change.  Does the fact that Virginia banned the death penalty suggest that other states with similar execution statistics could follow?  Only time will tell, but until then, the future of the death penalty remains in limbo.



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About Eliza Darden (2 Articles)
Eliza Darden Smith is a third-year law student at Campbell University and serves as a Staff Writer for the Campbell Law Observer. Eliza Darden grew up in Wilson, North Carolina, and graduated from the University of North Carolina Wilmington with a Bachelor’s degree in both Political Science and Criminology. Eliza Darden’s professional interests include appellate and general litigation. She enjoys spending her free time with family in Morehead City, reading, or hanging out with friends.