The death penalty has existed since ancient times. In its early days, the death penalty imposed as punishment was a form of private justice. It was not applied by the state, but rather by the family or tribe of the person who had suffered damage \u00a0(G. Rabbah). With the appearance of God, the rationale for imposing the death penalty shifted from private revenge to a divine one.\u00a0<\/p>\r\n\r\n\r\n\r\n
The first death penalty law was the lex talonis of the God of Hamurabi M.H. Reggio, 2008). Later, in the seventh century BC, the Draconian Code of Athens prescribed death as a punishment for all crimes. Finally, the Roman law of twelve tablets codified it in the fifth century BC (Death Penalty Information Center). As far as 437 BC, the usefulness of the death penalty was questioned. By arguing its non-deterrent effect, Diodotus persuaded the Athenian assembly to reverse its decision to execute all adult males of the city of Mitylene.\u00a0<\/p>\r\n\r\n\r\n\r\n
The death penalty was applied during the Middle Ages in an arbitrary and discriminatory way. The feudal system gave many people, not only the king or emperor, the power to impose capital punishment. This expansion of power led to the arbitrary imposition of the death penalty by the Feudatories (When Life Generates Death (Legally)-History). Also in this period, the fusion of political and religious powers led to the imposition of the death penalty for crimes committed against church. Methods of applying the death penalty differed for nobility, freemen and slaves. In order to reduce pain, the nobles were executed by cutting off their heads, while the others experienced death by hanging or poison.<\/p>\r\n\r\n\r\n\r\n
In the eighteenth century, various philosophers called for the abolition of the death penalty. Montesquieu, for example, called for its restriction to murder, attempted murder, certain types of manslaughter and some offences against property. Beccaria, on the contrary, did not call for its limitation but rather for its complete abolition. The writings of Beccaria ended the distinction in the application of the death penalty between poor and nobles, and his ideas led to the promulgation of a penal code in Tuscany that eliminated it entirely \u00a0(When Life Generates Death (Legally)-History)<\/p>\r\n\r\n\r\n\r\n
From that time on, the abolitionist movement has been flourishing. Michigan was the first jurisdiction to abolish the death penalty in 1846. Twenty years later, Venezuela abolished the death penalty, the Netherlands followed suit in 1870 and Costa Rica in 1882. Likewise, Brazil and Ecuador abolished the death penalty in the late 1890s and Panama, which joined the club of the states of the world in 1903, has joined the abolitionist club\u00a0 since its formation \u00a0(When Life Generates Death (Legally)-History)<\/p>\r\n\r\n\r\n\r\n
The progress of the abolitionist movement was temporarily slowed with the rise of totalitarianism in Europe after World War Two, and it was not until 1948 that the abolitionist movement regained its strength. In 1948, the Universal Declaration of Human Rights legitimized the struggle towards abolition of the death penalty. Since World War Two, approximately one state per year has abolished the death penalty.<\/p>\r\n\r\n\r\n\r\n
In his report submitted to the UN, Novel Morris reported that twelve countries were totally abolished by the end of 1965 and eleven were abolitionist for ordinary crimes (United Nations, Capital Punishment, 1967). Three decades later, Roger Hood reported that the number of abolitionist countries has been on an increase since the last report submitted to the UN by Norvel Morris. In his book, The Death Penalty: A Worldwide Perspective, Hood stated that fifty-eight countries are totally abolitionist, fourteen are abolitionist for ordinary crimes and thirty de facto abolitionists \u00a0(Hood, p. 12-13).<\/p>\r\n\r\n\r\n\r\n
Over the years, the abolitionist movement has succeeded in persuading many previously retentionist countries that the death penalty is a deadly evil. Recently, more than half the countries of the world have abolished the death penalty de fecto or de jure.\u00a0<\/p>\r\n\r\n\r\n\r\n
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The application of the death penalty in the United States of America dates back to the colonial period \u00a0(Prinzo). The first person executed in the US was Captain George Kendall in 1608. Executed in the Jamestown colony of Virginia, Kendall was charged with spying for Spain \u00a0(Introduction to the Death Penalty). In the 17th<\/sup> century, the common law of England, which prevailed in the new colonies, stated that public hanging was the obligatory punishment for crimes committed against the state, the person and property. Thirteen crimes were punished by death in the US: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, man stealing, perjury in a capital trial and rebellion. Following the American Revolution, the death penalty retained the obligatory nature that it had under the British colony (Walsh).<\/p>\r\n\r\n\r\n\r\n
Over the years, and perhaps ironically, the mandatory nature of the death penalty proved to be one of the ways by which criminals could escape punishment. In the absence of jury discrimination, juries preferred to acquit a person whom they believed to be guilty yet not deserving of death. This problem found its solution in statutes that allowed a discriminatory death penalty. The first state to enact such a statute was Tennessee in 1838 (Walsh). In addition to reforms introduced by enacting new statutes that allowed for a discretionary death penalty, the 19th<\/sup> and 20th<\/sup> centuries carried also the hope of abolishing it. There were two attempts made to abolish the death penalty in the US. The first abolitionist round took place between the years 1897 and 1917. During that time, ten states abolished the death penalty, and the main factor that enhanced this abolitionist trend was the improvement in socio-economic conditions across the country. The same factor that led to the abolition of the death penalty in these ten states, however, also led to its reinstatement in eighth of them when socio-economic conditions once again deteriorated \u00a0(When Life Generates Death (Legally)-History)<\/p>\r\n\r\n\r\n\r\n
The beginning of the 1970s introduced a second abolitionist round. Contrary to the first round, this abolitionist course was enhanced by factors of a legal nature. In 1972 the US Supreme Court ruled in Furman v. Georgia,[1]<\/a> in a five-to-four decision, that the death penalty as administered under existing statutes was unconstitutional. In that case, the judges ruled that in the absence of any guidance to juries in the statutes of Georgia, there was a substantial risk that the death penalty would be imposed in an arbitrary and discriminatory manner. To declare the death penalty practice unconstitutional, the majority in Furman relied on the Eighth Amendment prohibition of cruel and the Fourteenth Amendment requirement of equal protection under the law \u00a0(Cole). The justices who based their argument on the prohibition of cruel and unusual punishment were Brennan and Marshal JJ. Brennan J. argued that the death penalty violated the concept of human dignity, and Marshall J. stated that the death penalty served no legitimate penal purpose. Douglas, Marshal, and Stewart JJ. Based their argument on both the Eighth and Fourteenth Amendments (Cole). \u00a0These three judges wrote that the unlimited discretion of juries led to discrimination against the poor, powerless and black.<\/p>\r\n\r\n\r\n\r\n
In 1976, the Supreme Court ruled on the constitutionality of the new death penalty statutes in Gregg. V. Georgia.[2]<\/a> The \u201cguided-discretion\u201d statutes provide that all capital trials must proceed in two stages. In the first stage, the jury decides the guilt or innocence of the defendant. In the case of guilt, the trial will proceed to the second step, the penalty stage. During the second step and before reaching its decision, the jury considers the aggravating and mitigating circumstances. A decision to sentence the defendant to death can be reached if at least one aggravating circumstance is present. If a defendant is sentenced to death, the decision will be automatically appealed to the State Supreme Court, which must: (a) see if the punishment is proportional to the crime committed by the defendant; (b) make sure that the jury\u2019s finding of an aggravating circumstance is supported by reliable evidence; and (c) determine if the sentence reached was influenced by any arbitrary factors.<\/p>\r\n\r\n\r\n\r\n
The majority of the Court in Gregg found that the \u201cguided-decision\u201d statutes removed the possibility of rendering arbitrary and discriminatory death sentences. It stated: \u201cNo longer can a jury wantonly and freakishly impose the death sentence, it is always circumscribed by the legislative guidelines.\u00a0 Two judges in Gregg dissented. Brennan J. stated in his dissent that \u201cevolving standards of decency\u201d should make the Court get rid of the death penalty because it is no longer accepted in our times. Brennan added that the death penalty violates the Eighth and Fourteenth Amendments. The second dissent[3]<\/a>\u00a0 was pronounced by Marshall J., who refused the death penalty by stating that it is not necessary to promote any legitimate notion of retribution and such a penalty has no deterrent effect. Similar to Brennan J., Marshall J. affirmed that the death penalty violates the Eighth and Fourteenth Amendments.<\/p>\r\n\r\n\r\n\r\n