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-- AngelaChen - 08 Nov 2009 | | | Introduction | |
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< | Regulation of capital punishment in early America was, as one would expect, heavily influenced by its counterpart in England. However, even from the start one could note differences between the colonies, and notable divergence between the North and South in the type and range of crimes that were capitalized and later also the stance regarding abolition. | >
> | The first recorded lawful execution in early America was that of one Captain George Kendall (for the crime of theft) in Virginia, 1608. Regulation of capital punishment in early America was, as one would expect, heavily influenced by its counterpart in England. However, even from the start one could note differences between the colonies, and notable divergence between the North and South in the type and range of crimes that were capitalized and later also the stance regarding abolition.
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| | | Crimes that were typically punished by death at the time were murder and treason (which were prosecuted as capital offences in every colony at least for a certain period), rape, robbery, arson and capital cases of perjury (in most colonies), while the following were only subject to the death penalty in some: adultery, sodomy, bestiality, witchcraft and blasphemy).
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| | | One of the key purposes of the Christian faith as it relates to the capital punishment was its fundamental use in bolstering the legitimacy of the death penalty. The 'Capital Laws' section of the 'Massachusetts Body of Liberties' is a clear example of this - each capital crime is accompanied by one or more references to the text of the Bible. The Massachusetts Bay Colony was perhaps unique in that it was heavily driven by (or even primarily founded because of) Puritan ideals; hence the use of capital punishment for a variety of 'moral' crimes until more secular views took hold. Contrast this with the much more prominent use of the death penalty for minor property crimes in the South, for a significant part motivated by the need to keep 'order' amongst a population dominated by the presence of slaves and characterized by more uneven distribution of wealth. However, though other colonies were perhaps not quite as fervently driven by religious beliefs, their early laws nonetheless reflected the paramountcy of faith, much more so then than in the present day. For instance, the Lawes Divine, Morall and Martiall of Virginia is entitled with, opens with, and is interspersed throughout with religious references. The 'Almightie God' is essentially made out to be the fount of all justice, with offences such as blasphemy featuring prominently at the beginning of the text, punishable by death - this criminal code is the harshest of any in the colonies.
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< | For much of the period relevant to this paper, religion also played a key role when it came to the executions themselves. Until the late 17th century, when it came to the actual 'ceremony' of hanging ministers were often in the limelight. Steelwater describes ministers in the Puritan hierarchy, for example, as "the masters of law, of innocence and guilt". The writings of Cotton Mather, a minister from the Massachusetts Bay Colony who appears to have achieved significant fame, provide a good illustration of how highly prayers and sermons were regarded at the time: at the execution of one Sarah Smith, falling asleep during the prayer and sermon at her own execution ceremony was listed together with transgressions such as adultery, stealing and murdering her newborn. Ministers' duties surrounding an execution were chiefly two-fold: to the public on the one hand and to the condemned convict himself on the other. To the public, their role was to strike fear into the hearts of those contemplating crime and to emphasize the virtues of Godliness. Such large gatherings of people effectively became the ministers' congregation, so as long as they remained keenly interested in what ministers had to say, public executions had a supposedly pedagogical purpose. To the convict himself (or herself), ministers often represented a last hope of salvation in this world (i.e. getting a pardon) prior to the execution day, and a last hope of 'eternal salvation' via repentance on the day itself.
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> | For much of the period relevant to this paper, religion also played a key role when it came to the executions themselves. Until the late 17th century, when it came to the actual 'ceremony' of hanging ministers were often in the limelight. Steelwater describes ministers in the Puritan hierarchy, for example, as "the masters of law, of innocence and guilt". The writings of Cotton Mather, a minister from the Massachusetts Bay Colony who appears to have achieved significant fame, provide a good illustration of how highly prayers and sermons were regarded at the time: at the execution of one Sarah Smith, falling asleep during the prayer and sermon at her own execution ceremony was listed together with transgressions such as adultery, stealing and murdering her newborn. Ministers' duties surrounding an execution were chiefly two-fold: to the public on the one hand and to the condemned convict himself on the other. To the public, their role was to strike fear into the hearts of those contemplating crime and to emphasize the virtues of Godliness. Such large gatherings of people effectively became the ministers' congregation, so as long as they remained keenly interested in what ministers had to say, public executions had a supposedly pedagogical purpose. To the convict himself (or herself), ministers often represented a last hope of salvation in this world (i.e. getting a pardon) prior to the execution day, and a last hope of 'eternal salvation' via repentance on the day itself. The 'Last Expressions & Solemn Warning of James Morgan' is an example of such repentance from a convicted murderer shortly before his execution.
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| | | By the late 18th century, however, crowds were becoming unmanagable both due to an increase in size and a marked lessening of deference to ministers and public officials present. Executions "took on the atmosphere of a combined market day and festival" and ministers were now invitees of the community and no longer representatives of state religion. Therefore although ministers continued to attend executions their role was much diminished, with the long sermons to orderly gatherings being replaced by a brief prayer. The immediate consequence of this was that both the educational and deterrent purposes of public executions were greatly diminished. In addition to this, the loss of the original sense of religious mission in the New England colonies and growing moral and religious diversity led to a number of moral offenses being removed from the list of capital crimes. The decay of religion led to a vacuum of 'legitimation' which utilitarianism and philosophical thought sought to fill - not always successfully. Thus we see the beginnings of a development away from universal use of the death penalty.
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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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< | 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". 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. 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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> | 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 addition to these overarching changes, Steelwater notes that given the rapidly growing population, the wide usage of capital punishment would soon lead to administrative unworkability in actually implementing executions. Rush was of the opinion that 'capital punishments [were] the natural offspring of monarchical governments' - an opinion that probably resonated especially well given the not-too-distant reminder of the 'American Revolution'. Whilst Rush voiced his views in Pennsylvania, Robert Rantoul echoed elements of Beccaria and Rush in Massachusetts but added the Age of Enlightenment belief that society had the power of improvement and therefore could and must strive for its general progress; this again underlined the preferability of penitentiaries over executions.
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| | | As noted above, attending public executions was in the beginning seen as a salutary activity for people from all sectors and classes, particularly whilst religious beliefs still held sway over the masses and ministers played a pronounced role in the ceremony. However, by the start of the 19th century, elites and also the middle class began to distinguish themselves from what they now viewed as the ‘mobs’ who gathered at these executions (recall that crowds at executions were getting much less reverential and increasingly rowdy).
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< | Increasing overall wealth of society led to more ‘respectable’ people who started to take notice of sensibilities which had formerly been relegated to the rich upper class. An important development of this “genteel sensibility was an aversion to the sight of death” ) and a concurrent feeling of contempt for those who still wished to witness death in a public forum. A prominent advocate of abolishing executions in general was Edward Livingston. Amongst other things he argued that seeing executions had the effect of encouraging 'depravity' on the part of the public. Charles Spear seems to have had similar views: “Those who become witnesses of sanguinary punishments only want for provocations of poverty or anger to perpetrate the same crime for which the capital offender is punished”. As a consequence of these changing tastes and perceptions, states began abolishing public executions and transplanting them into the prison yard (thus, even though Livingston’s aim of banning executions outright was not achieved, the ‘main act’ of capital punishment – i.e. the public hangings – was whittled away), with Connecticut being the first state to do so in 1830. Several other states followed suit. Another result that arose from increased wealth was that governments were now able to realistically sustain long-term prisons with all their collateral costs (including feeding, housing, clothing prisoners etc.)
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> | Increasing overall wealth of society led to more ‘respectable’ people who started to take notice of sensibilities which had formerly been relegated to the rich upper class. An important development of this “genteel sensibility was an aversion to the sight of death” ) and a concurrent feeling of contempt for those who still wished to witness death in a public forum. A prominent advocate of abolishing executions in general was Edward Livingston. Amongst other things he argued that seeing executions had the effect of encouraging 'depravity' on the part of the public. Charles Spear seems to have had similar views: “Those who become witnesses of sanguinary punishments only want for provocations of poverty or anger to perpetrate the same crime for which the capital offender is punished”. It is interesting to look at Lydia Maria Child's 'Letters to New York' as an example of a woman's point of view on capital punishment (she was decidedly against the idea, and in her text outlines a number of reasons for her viewpoint, including the danger of convicting the innocent, and arguments against religious justifications of the proponents of the death penalty). As a consequence of these changing tastes and perceptions, states began abolishing public executions and transplanting them into the prison yard (thus, even though Livingston’s aim of banning executions outright was not achieved, the ‘main act’ of capital punishment – i.e. the public hangings – was whittled away), with Connecticut being the first state to do so in 1830. Several other states followed suit. Another result that arose from increased wealth was that governments were now able to realistically sustain long-term prisons with all their collateral costs (including feeding, housing, clothing prisoners etc.)
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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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