Death Penalty

Historical Background

The colonists who settled North America brought with them the English legal system, which included frequent use of the death penalty. There were so many capital crimes in 18th-century British law that it was called the “Bloody Code.” In adapting the law to the New World, the colonists modified the approach to execution. On the one hand, it could be economically unwise to kill valuable slaves given the chronic labor shortage in the colonies, so the colonists used capital punishment less often than their British counterparts did. On the other hand, colonists also developed a longer list of capital offenses as part of the slave codes that governed the “peculiar institution” of slavery. Slaves could be sentenced to death for administering medicine, for burning property, for enticing others to run away, or for striking a White person. Slaves owed their owners absolute obedience, according to the laws of slavery, and that obedience could be enforced through fear and physical punishment, including death. Maintaining the system of slavery involved a balancing act between the financial loss and the deterrent value of a public execution to keep the other slaves “in their place.” The process for condemning a slave to death was simpler than that for White offenders. Instead of a jury trial, justices of the peace could hear and render a speedy judgment in a case where a slave was the defendant. Not surprisingly, such a system resulted in sentencing disparities. In North Carolina, for example, more slaves were executed in a 25-year period than Whites were executed in the entire 18th century.

After the Civil War and the abolition of slavery, the disproportionate application of capital sentences to African Americans continued. From the 1890s through the 1980s, of 5,726 persons legally executed in the United States, more than 54% were non-White. Among 4,736 illegal executions (lynchings), 73% of those killed were Black. Many scholars have argued that the criminal justice system and capital punishment in particular were used as instruments to maintain White supremacy, especially in the South.

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