Thursday, September 22, 2011

The Founding Fathers and the Death Penalty

Yesterday, the State of Georgia executed convicted murderer, Troy Davis after the U.S. Supreme Court denied his request for a stay on his execution. And though I don't know all the specifics of his case, I know that it was supposedly somewhat controversial.

Now, whether Mr. Davis is guilty of the murder or not is not the purpose of this post, nor is it my intention to debate the death penalty here today. But yesterday's execution did make me wonder what (if anything) our Founding Fathers thought of capital punishment. Of course, we all recognize that 18th century America (and the world at large) was far different in terms of how punishment for criminals was carried out. Everything from whippings, beatings, beheadings, being placed in the stocks, etc. were seen as standard operating procedure for much of colonial America. We also know that General George Washington and many of his fellow army commanders regularly carried out executions of soldiers for a variety of offenses that many today would be horrified to see carried out.

And then there's the good ol' 8th Amendment. Perhaps more so than any other clause in the Constitution, the 8th Amendment's protection against "cruel and unusual punishment" is more clearly affected by societal change than any other amendment in the Constitution. After all, the very nature of the phrase "cruel and unusual" appeals to evolving societal standards. What we consider to be "cruel" or "unusual" today was seen as routine and just to our forefathers.

And to be 100% certain, it is not the role of the historian to pass judgement on what a society deemed to be acceptable/unacceptable. By no means do I wish to sound as though we of the modern era are somehow too sophisticated for the "savagery" of our less-than-civil ancestors. Instead, it is our role to simply understand the meat and potatoes of why people of the past did what they did, objectively and free from prejudice.

To accomplish this, I offer three unique takes on the death penalty from three different founders. Of course, these three voices hardly sum up the sentiments of an entire continent but I do believe they help to illustrate the conflict which some colonial Americans faced with regards to the death penalty.

First up is Thomas Jefferson. In a letter to his friend Edward Pendleton, Jefferson clearly reveals his "black or white" personality. Being the passionate idealist that he was, Jefferson rarely saw or embraced the "grey area" of any argument, and his sentiments regarding the death penalty pretty much fall in line with how Jefferson saw the world.

The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes, which you say you have heard insisted on by some, I assure you was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, and I would provide them, strict and inflexible, but proportioned to the crime. Death might be inflicted for murder and perhaps for treason if you would take out of the description of treason all crimes which are not such in their nature. Rape, buggery &c. punish by castration. All other crimes by working on high roads, rivers, gallies &c. a certain time proportioned to the offence. But as this would be no punishment or change of condition to slaves (me miserum!) let them be sent to other countries. By these means we should be freed from the wickedness of the latter, and the former would be living monuments of public vengeance. Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the law-giver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge, or of the executive power, will be the eccentric impulses of whimsical, capricious designing man. (Thomas Jefferson to Edward Pendleton, August 26, 1776).
In contrast, Jefferson's friend Benjamin Rush adopted a far more forgiving approach to the punishment of criminals. For Rush, there was ZERO justification for the taking of another's life, regardless of the severity of the crime committed. In an essay on punishing murder by death, Rush writes:

I. Every man possesses an absolute power over his own liberty and property, but not over his own life. When he becomes a member of political society, he commits the disposal of his liberty and property to his fellow citizens; but as he has no right to dispose of his life, he cannot commit the power over it to any body of men. To take away life, therefore, for any crime, is a violation of the first political compact.

II. The punishment of murder by death, is contrary to reason, and to the order and happiness of society.

III. The punishment of murder by death, is contrary to divine revelation. A religion which commands us to forgive and even to do good to our enemies, can never authorise the punishment of murder by death. "Vengeance is mine," said the Lord; "I will repay." It is to no purpose to say here, that this vengeance is taken out of the hands of an individual, and directed against the criminal by the hand of government. It is equally an usurpation of the prerogative of heaven, whether it be inflicted by a single person, or by a whole community.
***I simply referenced Rush's 3 main bullets. I recommend reading his entire essay which can be found on the link above.***
And then there's James Wilson's views on capital punishment. For Wilson, the death penalty is fine and dandy, but unlikely due to the fact that (in his mind) juries will reluctantly hand out severe punishments due to the human nature to want to forgive. As a result, Wilson recommended mild punishments for all crimes in the belief that criminals would be deterred due to the fact that juries would be more likely to convict. As he stated to a Grand Jury in 1791:

We are told by some writers, that the number of crimes is unquestionably diminished by the severity of punishments. If we inspect the greatest part of the criminal codes; their unwieldy bulk and their ensanguined hue will force us to acknowledge, that this opinion may plead, in its favour, a very high antiquity, and a very extensive reception. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government.

So far as any sentiment of generous sympathy is suffered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in their commiseration of criminals. These barbarous exhibitions are productive of another bad effect--a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution? The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings.

We may easily conjecture the result of those combined emotions, operating vigorously in concert. The criminal will, probably, be dismissed without prosecution by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified, or at least excused, in giving a verdict of acquittal. If convicted, the judges will, with avidity, receive and support every, the nicest exception to the proceedings against him; and, if all other things should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment--that of recommending him to the mercy of the pardoning power. In this manner, the acerbity of punishment deadens the execution of the law.

The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued accessions of strength and inveteracy. In the progress of his career, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another, till, at last, he necessarily becomes the victim of that preposterous rigour, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape.

When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy, of publick justice.
So were the founders as divided on the issue of the death penalty as we are today? Perhaps. At least some of our founders felt uneasy or even morally motivated at the thought of capital punishment. But again, those were different times. For example, the Crimes Act of 1790 mandated execution for treason and required the mutilation of the corpse. Public flogging were a weekly occurrence and even charges of counterfeit could end in one's execution. As evidenced in the U.S. Coinage Act of 1792:

Section 19. And be it further enacted, That if any of the
gold or silver coins which shall be struck or coined at the said mint shall be
debased or made worse as to the proportion of the fine gold or fine silver
therein contained, or shall be of less weight or value than the same out to be
pursuant to the directions of this act, through the default or with the
connivance of any of the officers or persons who shall be employed at the said
mint, for the purpose of profit or gain, or otherwise with a fraudulent intent,
and if any of the said officers or persons shall embezzle any of the metals
which shall at any time be committed to their charge for the purpose of being
coined, or any of the coins which shall be struck or coined at the said mint,
every such officer or person who shall commit any or either of the said
offenses, shall be deemed guilty of felony, and shall suffer death.
Different strokes for different folks I suppose.


Tom Van Dyke said...

Fascinating, Brad:

Jefferson believed in law, Rush believed in Jesus, and Wilson believed in human nature.

Wilson's is the more complex argument, and seems to locate firmly between Jefferson's [justice, even if draconian] and Rush's [mercy].

The more draconian the punishment, the less likely the jury will convict.

But too much mercy [pardons, leniency], and the criminal becomes more and more criminal, expecting mercy the next time as well.

As you know, I'm a James Wilson fan and this only adds to my appreciation for his wisdom.

As for the 1790 Act, you can see how seriously they took the economy. If short weight coins got out there, it could destroy the currency and in its way, the new commercial republic.

Anonymous said...

It is a sad day in American history when an innocent man is murdered by the government. Shame on Georgia, the Supreme Court of this Land and NoBama for letting this man die.

Frank --
Grand Rapids, MI.

Brad Hart said...

@ TVD:

"Jefferson believed in law, Rush believed in Jesus, and Wilson believed in human nature."

Good point. I never thought of it that way. I suppose they did the same on a number of issues. I also liked your take on the currency. Yeah, I could see where that would be a HUGE problem.

@ Frank from Grand Rapids:

Thanks for stopping by but I believe I noted at the beginning of my post that we will NOT be discussing this case or the death penalty in general. There are a million forums out there where you can express your feelings on the matter. This isn't one of them. With all due respect, try to check your politics at the door. All of us mess up on that from time to time but that was a pretty obvious haymaker.

Tom Van Dyke said...

I never thought of it that way either, Brad, but the quotes you selected seem representative of each man's thought in general, not just a quote-grab. WD.

Mark D. said...

So much for Jefferson as a proponent of gay rights...

Jason Pappas said...

"Jefferson believed in law, Rush believed in Jesus, and Wilson believed in human nature."

Good summary, Tom.

When I was reading Brad's quotes I saw things as follows: Jefferson is for justice, Rush for mercy, and Wilson for utilitarianism. Actually, I saw these dispositions are more of a leaning than a principle. But now, your summary looks more accurate.

Jonathan Rowe said...

Mark: What do you think of Timothy Sandefur's (one of the nation's leading property rights attorneys) analysis of Jefferson & "buggery"?

(You have to scroll down a bit; I would have linked to Sandefur's post, but it's no longer publicly accessible.)

dudleysharp said...


Not only does mercy not exclude justice, but they are, in fact, most compatible.

The Death Penalty: Mercy, Expiation, Redemption & Salvation