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On December 10, 1948 the General Assembly of the United States adopted the Universal Declaration of Human Rights. This doctrine proclaimed a \"right to life\" (one's protection by the forces of law) and its task was to limit the scope of the death penalty to protect juveniles, pregnant women and the elderly.
During the 1950s and 1960s international human rights treaties were developed, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. These documents also provided for the right to life, but included the death penalty as an exception that must be accompanied by strict safeguards. Despite this exception, many nations throughout Western Europe stopped using capital punishment, even if they did not, technically, abolished it.
Limitations within the United States
Despite growing European abolition, the U.S. still had the death penalty, but established limitations on capital punishment.
Mental Illness and Mental Retardation:
In 1986, the Supreme Court banned the execution of insane persons and required a process for determining mental competency in Ford v. Wainwright. As a result mental retardation would be a mitigating factor to be considered during sentencing.
Race:
Batson v. Kentucky, (1977) the Supreme Court held that racial disparities would not be recognized as a constitutional violation of \"equal protection of the law\" unless intentional racial discrimination against the defendant could be shown by neutral reasons.
Juveniles:
In 1988, in Thompson v. Oklahoma, four Justices held that the execution of juvenile offenders ages fifteen and younger at the time of their crimes was unconstitutional. They defined that no state without a minimum age in its death penalty statute can go below age 16.
At present, 16 states prohibit an execution of anyone under 18 at the time of his or her crime. (International Covenant on Civil and Political Rights)
But generally the U.S. reserved the right to execute juvenile offenders.
Innocence:
In Herrera v. Collins (1993), the Court held that in the absence of other constitutional grounds, new evidence of innocence is no reason for federal courts to order a new trial. The Court pointed to the clemency process as a way of avoiding the execution of innocent defendants.
Since Herrera, the possibility of executing the innocent has grown. More than 80 wrongfully convicted inmates on death row have been released since 1973.
Public Support:
Today, 71% of Americans support the death penalty in theory. However, research shows that public support for the death penalty falls down to 50% when voters are offered alternative sentences. More people would support life without parole plus restitution to the victim\'s family than would choose the death penalty.
Women:
Women have, historically, not been subject to the death penalty at the same rates as men. The first woman has executed in the U.S., Jane Champion, who was hanged in James City, Virginia in 1632. Women have only constituted 3% of U.S. executions. In fact only three women have been executed in the post-Gregg era.
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