The Courts, the Constitution, and Capital Punishment

The threshold of a new decade is a conventional period for stocktaking, so it is not unfitting that the accomplishments, frustrations, and prospects of the movement to abolish the death penalty in the United States should undergo a review at this time. Let us look first at a dozen of the highlights from the past decade and the trends of rapid change we have experienced.

In the 1960s, six states--Oregon ( 1964), West Virginia ( 1965), Vermont ( 1965), Iowa ( 1965), New York ( 1965), and New Mexico ( 1969)--abolished the death penalty with few or no qualifications. In only one other decade have more states entered the abolition category. That was between 1907 and 1917, when ten states abolished the death penalty for murder; but by 1919, five had reintroduced it. ¹

During the 1960s, only one state, Delaware, reintroduced the death penalty (in 1961) after having abolished it in 1958. Late in 1970, the constitutionality of the hasty legislation that reintroduced it has been challenged in court on quite technical and perhaps insufficient grounds. ²

During the past decade, the last mandatory death penalties for first degree murder were repealed--in the District of Columbia ( 1962) and New York ( 1963)--to be replaced by optional death sentences subject to jury discretion. A dozen other felonies, not all involving criminal homicide, in more than a dozen jurisdictions continue to carry the mandatory death penalty. The crimes for which they are specified, however, rarely occur. ³

Between 1961 and 1970 several new kinds of crime were made capital offenses by the federal government, notably air piracy ( 1961) and assassination of the president or vice president ( 1964). In 1970 Governor Ronald Reagan of California signed into law the death penalty for anyone who explodes a "destructive device" causing great harm or injury to a person. ⁴

Whereas the number of persons received annually under death sentence has not significantly changed between 1961 and 1970, the total death sentence population has tripled during the decade. It increased from an average of 145 during the 1950s ⁵ to an average of 325 during the 1960s (see Table 4-1). As of February 1971 it stands at the all-time high of 617 (see Table 4-2).

During the 1960s, hearings were held on the federal death penalty in the House (in 1960) under Congressman Abraham J. Multer, and in the Senate (in 1968) under Senator Philip A. Hart. ⁶ This was the first time in history that both houses of Congress held such hearings. While they did afford an unprecedented national forum for attack on the death penalty, they did not really compare to

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