Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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17 January 1977: Gilmore Execution Sees Death Penalty Reinstated

Gary Gilmore
Gary Gilmore
On 17th January 1977, Gary Gilmore became the first person to be executed in the United States in almost ten years. His death by firing squad marked the end of a ban on the death penalty which had been in place since 1972. Capital punishment has long been controversial. Globally it’s been in decline for a long time, yet it remains a feature of the US justice system. Throughout US history attempts have been made to eliminate the use of the death penalty. Undoubtedly, the most successful came in the 1970s, resulting in the four year ban.

The key to the ban was the 1972 Furman v. Georgia case. William Henry Furman was accused of killing a resident in a house during a burglary. Furman’s statement changed, from having killed the resident unintentionally by blindly firing a shot while fleeing, to his gun firing accidentally after he’d tripped.

Seeing as the death occurred as part of a burglary, Furman was eligible for the death penalty if found guilty. He was convicted, although his defenders say the verdict was reached purely on the basis of Furman’s own statement. Furman was ultimately sentenced to death, but the punishment was never carried out.

The case was brought before the US Supreme Court, who ruled that the imposition of the death penalty would have constituted a “cruel and unusual punishment” under the Eighth and Fourteenth Amendments. The Supreme Court ruled that Georgia’s death penalty statute which gave juries full discretion could lead to arbitrary sentencing. The verdict immediately freed several other criminals on Georgia’s death row from the death sentence.

In June 1972, the Supreme Court voided forty death penalty statutes, commuting the death sentences of some 629 inmates across the United States and effectively suspending the death penalty in the country.

Despite the ban, polls showed that by 1976 some 66% of Americans still supported the death penalty. Ultimately, the case of Gary Gilmore provided a precedent for the return of capital punishment.

Gary Gilmore was executed by firing squad at Utah State Prison.
Gary Gilmore was executed by firing squad at Utah State Prison.
A career criminal who by the age of 35 had already spent half of his life in jail, over the course of two days in July 1976 Gilmore killed two men: gas station attendant Max Jensen and motel manager Ben Bushnell. Both men had been robbed by Gilmore and despite complying with his demands, were killed.

Gilmore was quickly found guilty of murder and sentenced to death, reigniting the debate around capital punishment in the USA. The American Civil Liberties Union and the National Association for the Advancement of Colored People united to launch campaigns to prevent his execution, fearing the precedent it would set. 

Gilmore himself accepted the sentence. Firing his legal team who’d attempted to have his sentence overturned, he then took the unusual step of campaigning for a hasty execution; launching a hunger strike in protest at the delay in carrying out the sentence and having a letter published in the press asking his mother to stop trying to intervene on his behalf.

The Supreme Court set basic requirements that needed to be met if the death penalty was to be reinstated in a state:

1. Capital sentencing must be based upon objective criteria to direct and limit the exercise of discretion.

2. The adjudicator must take into account the character and record of the individual defendant.

Any state complying with those criteria was allowed to enact new death penalty laws, something 37 states of the USA have done since 1976.

Gilmore meanwhile, was executed by firing squad on 17th January 1977. Supposedly, his last words were: “Let’s do it.”

Source: New Historian, Daryl Worthington, January 17, 2017

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