When is the earliest the United States could have abolished the Death Penalty?.

When is the earliest that the United States Supreme Court could have struck down the Death Penalty in all 50 States at Violating the 8th Amendment of the United States Constitution "Cruel and Unusual Punishment shall not be inflicted".
 
When is the earliest that the United States Supreme Court could have struck down the Death Penalty in all 50 States at Violating the 8th Amendment of the United States Constitution "Cruel and Unusual Punishment shall not be inflicted".

They did it in 1964 but reinstated it in the 70s. If the original decision had stuck, we always have 1964 as an obvious choice.

However, in the early 19th century, Michigan abolished the death penalty and has not since reinstated it. One such possibility is that it's struck down as part of a sweeping reform right after the Civil War, especially if the idea catches on in a number of northern states and several Justices are so inclined.

It may be a reach, but if summary executions are a concern after the Civil War, an amendment may be introduced to abolish the death penalty alongside the other postwar amendments. This bypasses SCOTUS altogether and codifies the death penalty as off limits.
 
They did it in 1964 but reinstated it in the 70s. If the original decision had stuck, we always have 1964 as an obvious choice.

However, in the early 19th century, Michigan abolished the death penalty and has not since reinstated it. One such possibility is that it's struck down as part of a sweeping reform right after the Civil War, especially if the idea catches on in a number of northern states and several Justices are so inclined.

It may be a reach, but if summary executions are a concern after the Civil War, an amendment may be introduced to abolish the death penalty alongside the other postwar amendments. This bypasses SCOTUS altogether and codifies the death penalty as off limits.


If you had had Democratic Presidents and Senate from 1968 onwards, more likely the original decision would have stuck?.
 
It could certainly be abolished pretty early -plenty of the founders abhorred capital punishment- but the key is there's going to need to be something to replace it. It would be a serious financial commitment to house, feed, and clothe many of those that would have been otherwise executed and the states might not like that.
 
It could certainly be abolished pretty early -plenty of the founders abhorred capital punishment- but the key is there's going to need to be something to replace it. It would be a serious financial commitment to house, feed, and clothe many of those that would have been otherwise executed and the states might not like that.

Prison labor may start earlier ITTL than it did IOTL - and since most blacks were enslaved, it may be associated with Indians, immigrants, or poor whites.
 
I know it would be a big leap in terms of power for the era; but how about Grover Cleveland? He opposed the death penalty on moral grounds despite being the only President to personally execute men.
 
They did it in 1964 but reinstated it in the 70s.

The Supreme Court did *not* strike down capital punishment in 1964--I don't know where you got that idea. In fact, there were seven executions in 1965, one in 1966, and two in 1967. https://books.google.com/books?id=n8P0BYf62wAC&pg=PA51 There was a de facto moratorium from 1968 to 1972, as a final Supreme Court decision was awaited

In *Furman v. Georgia* (1972) the Court basically held--by 5-4--that *existing* capital punishment laws were unconstitutional. http://caselaw.findlaw.com/us-supreme-court/408/238.html However, only two justices--Brennan and Marshall--found the death penalty *per se* unconstitutional in *Furmnan.* The other justices focused on the unequal and arbitrary (or worse, racially discriminatory) way the punishment was being administered. This was virtually an invitation to the states to pass new capital punishment laws, which they did. In 1976 the court found some of those laws constitutional, and executions soon resumed.

So to get capital punishment abolished by the Supreme Court what we probably need is to get a more liberal court in 1972 that will write a more broadly-based (i.e., aimed at the death penalty per se, not just the way it is applied) *Furman*, which later courts might be reluctant to overrule, just as they have been reluctant to overrule *Roe v. Wade.* (Not that there is any guarantee of this, of course; after all, *Roe* itself came pretty close to being overruled.) The most obvious way to do this would be to have Humphrey elected in 1968. Presumably this will give us justices somewhat different from Burger, Rehnquist, Powell, and the not-yet-liberal Blackmun, all of whom dissented in *Furman.*
 
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