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In the United States, the framers of the Constitution were originally responsible for the existence of the death penalty in the country today. Among them were Benjamin Franklin, Alexander Hamilton, James Madison, and George Washington. The Constitution's framers sanctioned the death penalty in the due process clause of the Fifth Amendment.
In 1790, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law. . . ."
And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.
In recent times, U.S. Supreme Court Justices have influenced the legality of capital punishment.
Justice Thurgood Marshall (July 2, 1908 - January 24, 1993)
Thurgood Marshall's father, William Marshall, instilled in him from youth an appreciation for the United States Constitution and the rule of law. After finishing high school in 1925, Thurgood followed his brother, William Aubrey Marshall, at the historically black Lincoln University in Chester, Pennsylvania. Thurgood was accepted at the Howard University Law School and came under the immediate influence of the dynamic new dean, Charles Hamilton Houston, who instilled in all of his students the desire to apply the tenets of the Constitution to all Americans. Thurgood Marshall followed his Howard University mentor, Charles Hamilton Houston to New York and later became Chief Counsel for the National Association for the Advancement of Colored People (NAACP). In 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. In 1965 President Lyndon Johnson appointed Judge Marshall to the office of U.S. Solicitor General. Marshall was nominated to the U.S. Supreme Court in 1967.
In the case Furman v. Georgia, the majority of the Justices held that the death penalty was cruel and unusual punishment, which violated the Eighth Amendment. Among them, Justice Thurgood Marshall went on to attack the penalty more directly stating, "it is excessive, unnecessary, and offensive to contemporary values."
Justice William Brennan (April 25, 1906 - July 24, 1997)
William Brennan attended the University of Pennsylvania, and went on to study law at Harvard Law School. After he completed his law degree, he entered private practice in his home state of New Jersey. But when his practice intruded on his devotion to his family, Brennan opted for service as a trial judge. He was promoted to the state's highest court in 1952 and was appointed to the Supreme Court in 1956 by President Dwight D. Eisenhower.
In the case of Furman v. Georgia, Justice Brennan's opinion argued that the death penalty was unconstitutional under the Eighth Amendment that disallows "cruel and unusual punishments." In capital punishment cases, Brennan became an absolutist, dissenting in all cases coming to the Court.
Justice Harry Blackmun (November 12, 1908 - March 4, 1999)
Harry Blackmun did his undergraduate work at Harvard University, and studied law at Harvard Law School. He was a clerk to the Honorable John B. Sanborn, Judge of the United States Court of Appeals for the Eighth Circuit, from August 1, 1932 to December 31, 1933. In 1932, he joined the firm of Dorsey, Colman, Barker, Scott and Barber, Minneapolis, Minnesota. There he remained in private practice until 1950. On April 15, 1970 he was nominated to the U.S. Supreme Court by President Richard M. Nixon.
In the 1972 Furman case, which declared the death penalty illegal, Blackmun had joined in the dissent. Twenty years later, in the case of Callins v. James (1994), after 20 years of wavering on the issue of the death penalty, Blackmun declared in his dissent that he was ultimately against its use: "From this day forward, I no longer shall tinker with the machinery of death."
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