Slavery and Extrajudicial Killing

Enslaved Africans were executed without due process; legal codes permitted the execution of enslaved Africans without due process; racialized capital punishment was embedded in colonial and early American law.

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• 1846 - Michigan becomes the first English-speaking government to abolish the death penalty for all crimes except treason.

Michigan becomes the first English-speaking government to abolish the death penalty for all crimes except treason.

Peak Era of Lynching

• Over 4,000 documented lynchings, primarily of Black men.

• Lynching functioned as racial terror enforcement.

• Many legal executions mirrored the racial patterns of mob killings.

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The modern death penalty system developed during and after this era, absorbing racial bias into courtrooms rather than mobs.

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• 1896 — Plessy v. Ferguson, Sanctioned racial segregation under “separate but equal,” reinforcing the legal culture that normalized racially unequal punishment.

• 1911 — Nevada introduces lethal gas and conducts the first execution by lethal gas in 1924, becoming the first in the world. Additional analysis and commentary: The Gas Chamber, 100 Years of Cruelty | Austin Sarat | Verdict | Legal Analysis and Commentary from Justia

• 1930s — Peak execution decade “Throughout the 1930s, the United States averaged 167 executions per year”

De Facto Moratorium. De facto moratorium begins as the U.S. Supreme Court issues stays of execution amid constitutional challenges; no executions carried out.  Strong pressure from death-penalty opponents, along with several legal challenges, prompted the moratorium.

Four Landmark Cases:

• Witherspoon v. Illinois (1968) limits exclusion of jurors opposed to the death penalty.

• United States v. Jackson (1968) strikes down the federal death penalty provision penalizing defendants who choose jury trials.

• Furman v. Georgia, (1972) the Supreme Court ruled that the death penalty represented “cruel and unusual punishment” and violated the Constitution. Over 600 death sentences overturned.

• Gregg v. Georgia, (1976) the Supreme Court reinstated the death penalty under revised “guided discretion” statutes. The modern death penalty era begins​.

By the end of 1982, the number of inmates awaiting the death penalty reached 1,050—the highest recorded number in U.S. history at that point

McCleskey v. Kemp - The Supreme Court rejected a death penalty appeal by a Black man who presented statistical evidence (the Baldus study) proving that defendants who killed white victims were far more likely to receive the death penalty in Georgia. The 5-4 ruling determined that statistical evidence of racial bias alone does not violate the Constitution unless intentional discrimination in that specific case can be proven

Antiterrorism and Effective Death Penalty Act (AEDPA), severely restricts federal habeas review and appeals in capital cases.

Atkins v. Virginia, the Supreme Court deems the execution of individuals with intellectual disabilities unconstitutional.

Roper v. Simmons, the Supreme Court deems the execution of juveniles under 18 declared unconstitutional.

Federal Government Resumes Executions, Under the first Trump administration, federal executions restarted after a 17-year pause. Between 2020 and 2021, 13 federal executions were carried out, making it the largest federal execution spree in modern U.S. history.

Federal Execution Protocol Expanded to Allow Alternative Methods. Trump’s first administration amended the federal execution protocol to expand execution methods and include electrocution, gas chamber, hanging, or firing squad, in line with the method authorized in the state where the federal sentence was imposed.

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Federal Register record: Federal Register: Manner of Federal Executions

President Biden commutes 37 federal death sentences to life without parole* after over 130 organizations worked together to advocate for commutations and abolishment, including flocc.

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Executive Order to “Restore” and Expand Federal Death Penalty Enforcement. On his first day back in office, the second Trump administration signed an executive order directing the Attorney General to pursue the death penalty in all appropriate federal cases and to support states’ implementation of capital punishment, reversing the Biden-era moratorium and affirming an aggressive federal death-penalty stance.