‘Lex Talionis’ - England sent the Death Penalty to the gallows; will the US do the same?

In 1688, there existed fifty capital crimes in England but in the next 130 years, it rose to two hundred during a period dubbed the ‘Bloody Code.’ Yet even following a historical infatuation with retributive justice, the death penalty was abolished in the UK by Part 1 Article 2 of the Human Rights Act 1998. The abolition of the death penalty in England began with the gradual restrictions of those liable to the punishment and the methods of execution. For instance, the macabre practice of burning at the stake was abolished in 1790; at a time when capital crimes were as varied as cutting down a tree, stealing from a rabbit warren or being out at night with a blackened face. As in England, the death penalty’s power in the US has been subjected to some cautious curtailment such as stopping public executions for both practical and moral reasons. Although, the continuation of the penalty is the United States suggests there still exists a penchant for it. However, the question remains, will America’s measured regulation result in eventual abolition, as it did indeed in England?

Ethical Concerns – Executing an Innocent and Proportionality

The primary ethical concern with the death penalty is how to ensure that the condemned’s guilt is indisputable. In the United States Supreme Court, Justice Scalia (a well-known proponent of the death penalty) doubted that the infallible United States’ legal system has ‘executed an innocent person.’ When decisions of irreversible consequence are concerned, it leaves one to consider whether humans, who have an innate proclivity to err, are capable of making such verdicts. One such example of disastrous human error is the British Timothy Evans controversy which took place in Notting Hill during the 1950s - when Evans was executed for murdering his wife and baby. Yet three years after Evans’ execution, his neighbour was revealed as not only a serial killer, but as one whose murder modus matched that of the Evans killings. In light of this, the deceased Timothy Evans received a royal pardon in 1966, an inconsequential gesture given that his life was taken. Contrary to Justice Scalia’s fanciful position, it seems naïve to assume that a peerless and blameless system can exist. Justice Marshall agrees that the death penalty is not foolproof: “there exists the possibility of executing the innocent.” As England did, the US would have to decide what should take priority - a risk ridden desire for retribution or ensuring that innocent blood was not spilled at the hands of the State?

In England, the Parliamentary acts introduced in the 20th Century limited the death penalty’s remit and undoubtedly catalysed the abolition process. The Children Act of 1908 as well as the Children and Young Persons Act of 1933 abolished capital punishment for people under sixteen and eighteen. Furthermore, the Homicide Act of 1957 reduced the scope of capital punishment to five types of murder. Across the pond, the Supreme Court also prohibited the execution of ‘insane persons’in 1986 and those under eighteen in 2005. In addition to limiting who was eligible for execution, the number of capital crimes also decreased. For example, in Coker v. Georgia, the Supreme Court ruled that it was unconstitutional to apply capital punishment in the case of the rape of an adult woman when she was not killed. Justification for this was as follows: “the murderer kills; the rapist, if no more than that, does not.” Accordingly, it seems justifying the death penalty in the US lies within the concept of proportionality. It appears more readily defensible in cases of murder when the crime of taking a life is met with equal consequence.

Making Execution a Spectacle

If there’s one thing both jurisdictions have come to agree upon, it’s that executions should not be made into public spectacles. Dubbed by newspapers of the time as ‘the Carnival of Sadism.’ the execution of Rainey Bethea (for the rape and murder of a seventy-nine-year-old) brought in an estimated ten to twenty thousand spectators. Those who wished to bear witness to the last American public execution flocked to Owensboro, Kentucky during the summer of 1936. There’s an almost Roman quality in the desire to watch state sanctioned killing as a source of entertainment. Eating ‘hot dogs’ whilst observing a hanging seems reminiscent of the ritualised slaughter of gladiators for amusement accompanied by wine and bread. The sensationalised execution had ‘spectators jeer[ing] throughout, even while Bethea prayed’ and some spectators rushed forward to rip pieces of Bethea’s hood (post-hanging) as souvenirs. There seems to exist an insatiable desire for revenge when it comes to such criminals. In the English Walter Moore case, when the condemned chose suicide instead of judicial execution the public consensus was that: “the gallows had been cheated of its prey.” This sentiment was also present in the 1999 case of Mitchell Rupe in which it was said that Washington had taken “Herculean efforts” to ensure this 410-pound man’s life was preserved, only so it could be taken by the state. Similarly, in the Roper case, retributive capital punishment was defined as “an attempt to express the community’s moral outrage or…. to right the balance for the wrong to the victim. In the author's opinion, Pierrepoint, the last English executioner was absolutely right when he said: the preservation of the death penalty is “an antiquated relic of a primitive desire for revenge.”

The English Murder Act of 1752 allowed Judges to ‘gibbet and dissect’ the bodies of murderers after execution in an attempt to not only deter potential murderers, but also to make a distinction between them and other criminals. Although, there is something lurid about sensationalising death even in the interest of deterrence. On public executions, Dickens viewed the hangings as even worse than the crimes committed: “it was so loathsome, pitiful, and vile a sight, that the law appeared to be as bad as he, or worse”. Dickins cannot be mistaken for being against capital punishment however, as his concerns lay in the refinement of capital punishment and not the abolition of it. Dickens believed that viewing such a cruel act by the state would invoke wickedness in the minds of potential criminals and drive them to imitate such evil. Potter even argues that the most regular attendees of public executions were thieves and felons. This hypothesised correlation between public executions and an increased homicide rate has been referred to as the ‘brutalisation theory.’ Following this line of thought, it would appear that in an almost paternalistic manner, a state that adopts punitive sanctions must anticipate its children to do the same.

To Keep or Not to Keep?

During two notable but unsuccessful attempts to reinstate capital punishment in England (following the acts of terrorism in 1982 and the murder of a child in 1987), the idea that an offence against humanity warranted an equally cruel penalty was also rife. It’s clear from the parliamentary debate transcripts that there was potent public indignation. However, English adherence to Blackstone’s Ratio ('better that ten guilty persons escape than that one innocent suffers') and commitment to other humanitarian principles resulted in a failure of reinstatement. That’s not to suggest that the US has not also undergone periods of productive and reflective criticism on the penalty. 1968 saw the start of an unofficial moratorium on executions.However, this ended in 1972 following Furman where it was decided that the death penalty was not intrinsically unconstitutional. The problem was found to only lie in specific death penalty statutes, thus opening the door to states to rewrite statutes and rectify the legislative problems addressed by Furman. The penalty was further bolstered post-Furman by the 1994 ‘Crime Bill’ which expanded it to include 60 offenses under 13 existing and 28 newly created Federal capital statutes. The crimes were not limited to homicide offenses; but also included ‘espionage and treason,’ and ‘non-homicidal narcotics.’ Here the imposition of punitive measures goes right to the heart of reputation and avoiding accusations of being ‘soft on crime.’ In this way, there is a distinction to be made between the objective of legal punishment in both jurisdictions.

The Constitution and the Penalty in Practice

In Weems v US, the ethical nature of ‘Cadena temporal’ (hard and painful labour whilst being shackled) was questioned. The Court found that ‘not only torturous and inhuman punishments are forbidden by the Constitution, but also punishments that are disproportionate to the crime’. Yet later, Gregg v Georgia upheld the death penalty as a perfect and constitutional punishment by arguing that it is the only adequate response to some crimes that are “so grievous an affront to humanity.” If this reasoning remains the popular sentiment then it would suggest that the American psyche is simply not geared towards removal of the death penalty. In fact, in some states there have been attempts to reinstate stronger, archaic methods. For example, in 2010 Utah selected death by firing squad to execute Ronnie Lee Gardner, who murdered an attorney during an unsuccessful escape attempt. Such a force is even capable of justifying death by nitrogen gas this year a method which is no longer used by vets for fear of causing distress. The prevailing sentiment is that there is not enough appetite to declare state sanctioned killing as unconstitutional and the very epitome of inhumane and degrading treatment.

Justice Blackmun admitted years after his dissent in Furman, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.” This conclusion was drawn on the basis that the principles of fairness, rationality and liberty were not sustained in the administration of the death penalty. In a speech delivered at North-Western University in 2000, Governor Ryan said that finding seventeen innocent men on death row was a “catastrophic failure” of the system and an “absolute embarrassment” for Illinois. Furthermore, the exoneration of the innocent caused him to cease all executions in the state in 2000. From 1973 to 2024 (at the time of writing – March 2024), 197 people on death row have later been freed on the basis of innocence. The agony experienced as an innocent man awaiting state sanctioned death was explored by John Grisham. His non-fiction work was inspired by the real-life trials of Ron Williamson- a man saved one week before his execution. Pragmatically, in a nation consisting of fifty separate states, the only way to unanimously abolish the death penalty (in a de jure sense) would be an amendment to the Constitution and this seems an improbable action. However, there remains the possibility of a de facto abandonment of the death penalty. A 2023 Gallup Poll revealed a record high (50%) of Americans believed that the penalty is ‘applied unfairly.’ As the ‘Marshall Hypothesis’ (stated in Furman by Judge Thurgood Marshall) asserts, knowledge of the penalty in practice would temper the ‘public’s desire for retribution… [and] influence the citizenry’s view of the morality of capital punishment.’ If fears of ‘unfairness’ continue to challenge the penalty’s potency, we could see a decrease in prosecutors and juries pursuing it. This could lead us to abolition in practice, even if not reflected by law.

Conclusion

When Barrister Derek Curtis-Bennett wrote to ‘The Times’ in 1946 he concluded that the abolition of the death penalty in England would be: “an act of the greatest folly”. He could not understand how “anyone with experience in criminal law” could say it was not a deterrent. However, Pierrepoint’s stance is utterly more convincing: “if it is said to be a [successful] deterrent. I cannot agree. There have been murders since the beginning of time, and we shall go on looking for deterrents until the end of time”. The question of whether the US will follow in England’s footsteps rests entirely on the true reason for their maintenance of the death penalty. Evidenced by the lust for retribution, it seems that the function is not deterrence but a process of restorative equilibrium for those offended by the crime.

Neha Wahiwala

Bibliography

Cases

Callins v. Collins, 510 U.S. [1994]

Coker v Georgia 433 U.S [1977]

Ford v. Wainwright, 477 U.S. [1986]

Furman v Georgia 408 U.S. [1972]

Gregg v Georgia 428 US [1976]

Kansas v. Marsh 548 US [2006]

Roper v Simmons, 543 U.S [2005]

Weems v U.S 217 U.S. 349 [1910]

Legislation

The Children Act of 1908

The Children and Young Persons Act of 1933

The Homicide Act of 1957

The Violent Crime Control and Law Enforcement Act of 1994

The Human Rights Act 1998

Secondary Sources

Bedau H.A, ‘THE DEATH PENALTY IN AMERICA,’ Michigan Law Review, 81(40), (1983)

Blackstone William, ‘Commentaries on the Laws of England,’ (J.B. Lippincott Co., Philadelphia, 1893)

Block B.P & Hostettler J, ‘Hanging in the Balance: A History of the Abolition of Capital punishment in Britain’ (Waterside Press 1997)

Bridges P, ‘Executions and Death-Penalty Reforms in Britain’ (Museum of London, 22 September 2022)

Broom J, 'Judge says Rupe is Too Heavy to Hang - Death Sentence also Overturned for 410 Pounder' The Seattle Times, (Seattle, 20th September 1994)

Carter M, ‘Elusive Inmate Targeted for Execution—Again,’ The Seattle Times, (Seattle, 12th March 1999)

Constitutional Rights Foundation, ‘A History of the Death Penalty in America,’ (The Teach Democracy Organisation, 2012)

‘Constitutionality of the Death Penalty in America’ (Death Penalty Information Center) <https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america> accessed 24th March 2024.

Death Penalty Information Centre, Innocence Database <found here> last accessed 24th March 2024

Grisham J, ‘The Innocent Man,’ (Random House 2006)

Hoffman J, ‘Nitrogen Hypoxia: What to Know about This New Method of Execution’ The New York Times, (25 January 2024)

King D.R, ‘The Brutalization Effect: Execution Publicity and the Incidence of Homicide in South Carolina,’ Michigan Law Review (1978)

Lee GM, Bohm RM and Pazzani LM, ‘“Knowledge and Death Penalty Opinion: The Marshall Hypotheses Revisited.”’ (2014) 39 American Journal of Criminal Justice 642.

Lozano J.A, ‘For the First Time, More Americans Believe Death Penalty Is Applied Unfairly, Report Finds,’ PBS, (1 December 2023)

Pierrepoint A, ‘Executioner: Pierrepoint,’ (Coronet 1977)

Potter H, ‘Hanging in Judgment: Religion and the Death Penalty in England from the Bloody Code to Abolition’ (SCM Press LTD 1993)

Robinson MB, 'Death Nation: The Experts Explain American Capital Punishment' (Pearson/Prentice Hall 2008).

Ryan G, “I Must Act,” in Debating the Death Penalty: Should America have Capital Punishment?’ Hugo Adam Bedau & Paul G. Cassell eds, Oxford University Press, (2004)

Jacobson Stephanie, ‘Crime of the Century: The Case of Timothy Evans’ (HeinOnline Blog, 17 September 2021) <https://home.heinonline.org/blog/2021/09/crime-of-the-century-the-case-of-timothy-evans/> accessed 23rd March 2024.

Shepherd J.M, ‘Deterrence versus Brutalization: Capital Punishment's Differing Impacts among States,’ 104, Michigan Law Review, (2005)