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-- AngelaChen - 08 Nov 2009
Capital Punishment in America, 1611 - 1846 | |
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> | Work update
I'm currently in Hong Kong, and I visited the reference section of the Hong Kong Central Library, which revealed some relevant material (particularly the Vila and Morris book, which turned out to have a collection of useful primary sources). I am in the process of uploading files containing said material – please excuse the skewed angles of the pages; hurriedly taking photos of books on a library shelf is not conducive to good aesthetics! | | | Aims | | | In the context of abolition of capital punishment, probably few had such a pervading force as the Italian philosopher and politician Cesare Beccaria. His text 'On Crimes and Punishments' (Chapter 28 of which is about the death penalty and hence relevant for current purposes) influenced society in Europe and America alike. Indeed, members of American society who appear to have been the 'abolitionists' of the time, made references to him in their own arguments and theories. Beccaria's writings on capital punishment are also remarkable due to the emphasis placed on utilitarianism. Far from couching his exposition in religious terms or saturating them with obvious expressions of sympathy towards the sentenced, he devoted a large chunk of the chapter to - in his view - practical reasons why the death penalty should be abolished for all offences except treason. Inter alia, he suggested that 1) perpetual penal servitude would be a more effective deterrent to crime, that 2) witnessing executions was not a beneficial experience for the public, and that 3) the state was not justified in carrying out capital punishment. Elaborating on each: 1) The terror of "perpetual slavery" as brought upon the convict by a long prison sentence would be more painful than sudden death and thus onlookers would be deterred from committing crime by the possibility that they too might suffer from thie fate. 2) Executions often aroused feelings of compassion mixed with scorn which detracted from the "salutary fear which the law [claimed] to inspire". 3) Argument that the state did not have authority to administer the death penalty, on grounds that if no single individual had a right to take his own life, society cannot derive a right to punish by death from the social contract (save for the special case of traitors).
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< | One of the most prominent American philosophers inspired by Beccaria was Benjamin Rush, M.D., from Pennsylvania. Aside from attempting to turn the religious arguments in favor of the death penalty on their head, he developed utilitarian reasoning against capital punishment further in 'On the Punishment of Murder by Death' (1793).. Of particular noteworthiness was his recommendation for the introduction of permanent prisons. It is probably useful at this juncture to point out that Rush - like others - were influenced by the thoughts of John Locke who proposed that "human life began as a blank slate and was written on by experience" ; hence, presumably, the possibility of salvaging human nature via positive influences in prison with the possible added benefit of 'compensating' the society which had been wronged. One of the prevailing aims of capital punishment, and one that reflected the circumstances at the start of the period which this inquiry addresses, was incapacitation. The need for a way to ensure that heinous wrongdoers did not repeat their crimes led inexorably (at least formally) to the death sentence until 1790 for the simple reason that before that year, there were no 'prisons' to speak of where offenders could be held long-term instead of simply 'in jail' pending sentencing. However, when the Walnut Street Jail was built in Philadelphia, for the first time in America offenders could be kept in theory more or less permanently incapacitated without being executed. Whether these prisons, or penitentiaries as they were sometimes called, were effective and cost-effective could be the subject of a whole separate inquiry, but the salient point here is that at last a "realistic alternative to hangings" existed. These developments also meant that another of the justifications which had previously been put forward for capital punishment (namely facilitation of criminals' repentance) was undermined, since wrongdoers could now repent at leisure in the penitentiaries. Given the increasing uncertainty present in the sentencing and carrying out of capital punishment due to unwillingness of juries to convict and frequent pardons (see further discussion in next section), prison may have been a more systematic and therefore effective method of punishment.
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> | One of the most prominent American philosophers inspired by Beccaria was Benjamin Rush, M.D., from Pennsylvania. Aside from attempting to turn the religious arguments in favor of the death penalty on their head, he developed utilitarian reasoning against capital punishment further in 'On the Punishment of Murder by Death' (1793).. Of particular noteworthiness was his recommendation for the introduction of permanent prisons. It is probably useful at this juncture to point out that Rush - like others - were influenced by the thoughts of John Locke who proposed that "human life began as a blank slate and was written on by experience" ; hence, presumably, the possibility of salvaging human nature via positive influences in prison with the possible added benefit of 'compensating' the society which had been wronged. Thomas Jefferson, shortly before becoming Governor of Virginia, proposed a bill (defeated by one vote) to remove the death penalty for all crimes except treason and murder - looking into his reasoning, one sees that he too believed that criminals could be 'reformed' for the betterment of society. At the same time, it appears that prominent figures in the period were beginning to look at crime (and the imposition of punishment) with a more nuanced point of view and held it to be society's responsibility to educate the young so as to prevent them from embarking upon the path of vice. One of the prevailing aims of capital punishment, and one that reflected the circumstances at the start of the period which this inquiry addresses, was incapacitation. The need for a way to ensure that heinous wrongdoers did not repeat their crimes led inexorably (at least formally) to the death sentence until 1790 for the simple reason that before that year, there were no 'prisons' to speak of where offenders could be held long-term instead of simply 'in jail' pending sentencing. However, when the Walnut Street Jail was built in Philadelphia, for the first time in America offenders could be kept in theory more or less permanently incapacitated without being executed. Whether these prisons, or penitentiaries as they were sometimes called, were effective and cost-effective could be the subject of a whole separate inquiry, but the salient point here is that at last a "realistic alternative to hangings" existed. These developments also meant that another of the justifications which had previously been put forward for capital punishment (namely facilitation of criminals' repentance) was undermined, since wrongdoers could now repent at leisure in the penitentiaries. Given the increasing uncertainty present in the sentencing and carrying out of capital punishment due to unwillingness of juries to convict and frequent pardons (see further discussion in next section), prison may have been a more systematic and therefore effective method of punishment.
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The discussion above has already touched on the second and perhaps most oft-touted aims of capital punishment; viz., deterrence. Much was written on the effect (or lack of) that the existence of capital punishment had on would-be criminals. As noted above, Beccaria had already expressed his views about why 'perpetual slavery' would be a better deterrent than an instantaneous death. Those such as Beccaria and Rush lauding imprisonment as a more effective deterrent than the possibility of death may have been correct: after Pennsylvania's pioneering 1786 abolition of capital punishment for 'robbery, burglary, sodomy and buggery', "two of the first robbers tried under the new statute pleaded to be tried under the old instead, preferring the chance of an acquittal or a pardon to the certainty of a long prison sentence". Caleb Lownes, in his report on the Pennsylvania penitentiary, expressed his opinion, amongst other things, that the new system was instrumental in helping to reform the minds of convicts and seemed to believe that the general safety of the community was enhanced by said system (though one must naturally take Lownes' account with a pinch of salt given that he was one of the penitentiary's inspectors). Thus there did seem to be some success with prison sentences as an alternative to the death penalty. However, success with prisons was certainly not universal. Since those sentenced to life imprisonment had nothing left to lose, so to speak, if the death penalty were abolished, they sometimes carried out acts of desperation such as murdering their guards or attempting escape. Indeed, Thomas Eddy, a supporter of the prison, was forced to put forth an account with respect to the 'Penitentiary House, in the City of New York' in an attempt to pacify those who were rapidly becoming impatient with the perceived failings of the novel system. This may have been one of the reasons why despite the agitations for reform or abolition of capital punishment, such agitations did not bear fruit in many instances and not every state hastened to adopt abolitionist measures even if their neighbors did.
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| | | In his Commentaries, Blackstone expressed his opinion that it would “do honor to the English law, to compare it with the shocking apparatus of death…in the criminal codes of almost every other nation in Europe” . By the end of the 18th century, those in favour of banning capital punishment in America were similarly beginning to compare America with England and saw abolition as a “mark of the new nation’s progress”. They saw the retention of the death penalty especially for lesser felonies as a mark of barbarism of earlier times. The role of sympathy was changing too in the late 18th century: whilst the crowd watching at executions had always felt sympathy for those soon to be hanged, it was only now that spectators would “translate their sympathy for the condemned prisoners into opposition to capital punishment generally” .
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> | Conclusion
Having viewed the evolving regulation of capital punishment from 1611-1846 through several criteria and its move from being widely accepted at the start to being highly contested or abolished by the end of that period, I would tentatively suggest an answer to my inquiry. All things considered, it was probably two factors: 1) the gradual erosion in some states of the original pressing needs for the death penalty (particularly after the invention of the prison), and 2) changing beliefs (with evolution of religious belief being especially important) that ultimately led to successful abolitionist movements. However, this draws us to some appurtenant inquiries: why did even the states that did experience abolition mostly keep the death penalty for crimes such as homicide? Why did some states not have such active abolitionist movements?
One might propose a number of answers for the first question. Unlike for less serious crimes, juries were still willing to convict for the most terrible crimes such as homicide. Closely related to this might be one of the aims of capital punishment not discussed in detail so far – retribution; some individuals may have been seen as so atrocious as to merit death. Some support for this hypothesis might be obtained by the fact that as Steelwater notes, capital punishment was often reinstated in a cause-and-effect fashion after a particularly gruesome murder. With regard to the second question, two possible reasons have already been alluded to above; viz. 1) prison sentences being ineffective for life prisoners if the death penalty were abolished and 2) the continuing need for capital punishment in the South, where there were large captive populations. Another reason may have been that despite the enthusiastic voices of abolitionists, wider public opinion did not always reflect their agitations. The only referendum held on the issue (New Hampshire, 1844) showed that a great deal of public support still existed for capital punishment. As the Civil War approached, the debate on abolition of the death penalty faded into the background and the debate on abolition of slavery came to the forefront. Finally, the public’s fascination with executions never really went away – a case in point being that the last public execution in the U.S. in 1936 attracted a crowd of some 20,000 people.
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