Around the 1970s, the United States established a de facto moratorium on capital punishment. What happened?

Beethoven was undoubtedly a prolific composer, with his work ranging from the monumental 9 symphonies to numerous songs and chamber musics. As you begin to consume his creations, starting from the famous symphonies and concertos, you might ask: how many operas did Beethoven write? The answer is one and only one: Fidelio. So what is this opera about? Is it about a magical musical instrument that can rescue people from deep sorrow? Or is it a story of piercingly painful unrequited love? Well, Fidelio is a story of a brave woman named Leonore. Her husband Florestan is awaiting death in a political prison, and she infiltrates the prison, with a disguise as a guard named Fidelio, to rescue her beloved husband.[1] Typically reserved for the most heinous crimes or often abused to purge political opponents, the death penalty traces all the way back to the Code of Hammurabi and the Law of Moses. Today in our modern society, virtually all democratic industrialized nations, with the exception of the United States, opted to abolish it. In the UK, where merely cutting down a wrong tree was a capital crime in the early 19th century, reforms were passed to completely abolish the death penalty.[2] If you were curious enough to look up the statistics in the U.S., you might find this steep drop of the number of executions around the 1970s. So what happened? Did the Supreme Court suddenly ruled that it was unconstitutional? This result was not created by a single case. Rather, there's a collection of unrelated legal battles that established legal grounds, which eventually led to a short-lived de facto moratorium on the death penalty. So what happend in the first half of the 20th century?


Not surprisingly, in the early 20th century, race and money modulated the administration of justice. The striking contrast is clearly visible in these two contemporaneous capital cases. The first one is the infamous Leopold and Loeb. In 1924, impressed by Friedrich Nietzsche's Übermenschen (supermen), the duo Leopold and Loeb, wealthy students at the University of Chicago, attempted to prove their "intellectual superiority" by planning and executing a "perfect crime." After meticulously planning, they kidnapped and cold-bloodedly murdered a 14-year-old boy named Bobby Franks. Despite their attempts to obfuscate the investigation, the police found a pair of glasses, which led to questioning and then confessions. Their family hired the famous defense attorney Clarence Darrow, who gave a 12 hours long passionate final defense at their sentence hearing.[3] Much gratitude to Darrow, instead of getting the death penalty, Leopold and Loeb were sentenced to life. Some years later in 1931, a group of young black men, later to be known as the Scottsboro Boys, was accused of raping two white women on a train in Alabama. Regardless of their alleged crime, the defendants were not given a fair trial. Some of them were illiterate and from other states, and no one told them they could get a lawyer. The local court attempted to find a lawyer in Scottsboro, but no one showed up to defend—understandably so since a large mob gathered to execute a violent vengeance. Finally, an attorney was found right before the trial, but he was not given any time to prepare the defense. In a series of trials held in just one day, all but one defendants were sentenced to death. While the premeditated murder case with confessions and evidences resulted in life sentence, the alleged rape case swiftly elevated into capital punishment.

The legal system in Alabama back then wasn't actually a total kangaroo court, and the case went all the way up to the Supreme Court, becoming Powell v. Alabama. The Court ruled 7-2 that due process, as guaranteed by the Bill of Rights and the Fourteenth Amendment, had been violated, as Justice Sutherland says:

"In the light of the ... ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process."

The significance of this is that it was the first time that the Supreme Court imposed a constitutional criminal procedure on a state and reversed a state criminal conviction.

Meanwhile, some years later, the NAACP Legal Defense Fund (LDF), charged by Thurgood Marshall and Anthony Amsterdam, brought a systematic challenge to capital punishment. Timing-wise, this was well-aligned with the shifting public sentiment. First, cruel cases such as Willie Francis captured the eyes of the public. Second, the atrocities of the legalized mass murder by the Nazi government also casted some doubts on whether a state could legally take away a person's life. However, this rather minor change in people's heart was not enough to move the legislature, and a path forward seemed to be proving that the death penalty is a cruel and unusual punishment, violating the Eighth Amendment. Then how does the Constitution capture the continuously evolving definition of what is cruel and unusual?

The needed legal framework was established earlier in 1910. In Weems v. United States, the Court said that the punishment was unusually disproportional to the crime and that the Eight Amendment isn't really static:

"The clause of the Constitution in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice"

In 1958, a similar statement was made again in Trop v. Dulles, stating that the Eigth Amendment should reflect the "evolving standards of decency." So should the activists bring up cases to the Court to challenge the constitutionality? Well, there's a substantial risk involved since the Court wouldn't hear a similar case again in the near future if it rules that capital punishment is constitutional.

Then it comes—a perfect timing—Justice Arthur Goldberg, whose term was rather brief but still influential.[4] Justice Goldberg strongly opposed the death penalty, arguing that it's morally repugnant and an artifact of the past. In 1963, when the petition for writ of certiorari (requesting the Court to hear the case) in Rudolph v. Alabama was rejected by the Court, Justice Goldberg, with his dissent, explicitly reasoned out the arguments against capital punishment, sending unmixed signals to the lawyers around the nation to challenge.[5]

Meanwhile, activists formed a moratorium strategy, which is to stop or significantly delay executions instead of directly challenging the constitutionality.[6] Back then, there were numerous systematic procedural issues, making the sentencing arbitrary and inconsistent. The first was the biased sentencing, where race of the victim and the defendant statistically significantly affected the sentencing outcome. Second, the unitary trial structure was unfair since the question of guilt and punishment was determined in a single trial, potentially violating the Eighth Amendment. Third, the jury was not given consistent criteria for the death penalty, creating a room for "wholly arbitrary and capricious" decisions. Also, the jury pool selection was systematically favorable to prosecution. The first major victory was in 1968. In Witherspoon v. Illinois, the Court held that it is unfair to exclude people from the jury pool for demonstrating general objections against capital punishment. Then finally, the famous Furman v. Georgia in 1972 established de facto moratorium on the death penalty in the United States. Nearly a half-century has passed since then, but the United States still has not abolished capital punishment. What happend subsequently is complex, and every aspect of capital punishment has been a contentious topic of legal and politcal debate.

Spoiler alert, Fidelio does end with a happy ending. Pizarro, who imprisoned Florestan, discovers that Florestan is still alive and plans to carry out the execution. As Pizzaro picks up his dagger, Fidelio (Leonore) stands between Pizzaro and her husband Florestan. Suddenly, the trumpet is heard, signaling the arrival of the minister, who eventually sorts everything out. As the choir sings to praise Leonore's bravery, she frees Florestan from the chain. The story of the death penalty is still being written, and how and when it ends has yet to be determined.

  1. In a small production of Fidelio, the team featured the well known prisoner's chorus performed by a prisoner's chorus. Beethoven’s 200-Year-Old ‘Fidelio’ Enters Today’s Prisons ↩︎

  2. As of 1998, even treason is not punishable by death in the UK. ↩︎

  3. Charles Darrow represented John Thomas Scopes in the famous Scopes Trial (the monkey trial) ↩︎

  4. Justice Goldberg departs the Court to serve as the Ambassador to the United Nations ↩︎

  5. Justice Goldberg's dissent ↩︎

  6. As shown in the document, HMG Strategy for Abolition of the Death Penalty 2010-2015, the UK government cites the same strategy. ↩︎