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America’s Tug of War over Sanctioned Death
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Ancient Western Roots of Capital Punishment
The American system of capital punishment is based heavily on British law, which, in turn, grew out of the primitive Western basis of capital punishment: personal retribution. Ancient laws encouraged and authorized individuals to seek retribution by killing their offenders. They also began the tradition of defining and listing the crimes that would deserve death as a punishment, setting a precedent for Western legal codes. For example, the Babylonian Code of Hammurabi, written around 1700 B.C., arbitrarily made selling beer and revealing the location of sacred burial places crimes punishable by death (Henderson 2000).
Around the seventh century A.D., government leaders began understanding that crimes harmed society’s collective interests and so became more involved in controlling and punishing crimes. To protect society these leaders passed laws that devised a list of different punishments to be used depending on the nature of the specific crime. Also, laws focused more on keeping peace in society than serving justice, with the Justinian Code of A.D. 529 standing as an example.
In the ancient Greco-Roman state, the prime reason for execution was to punish those who attacked the religion the state. The best known examples of the use of capital punishment for this specific offense were Socrates’ execution for heresy circa 399 B.C. and the circa A.D. 33 crucifixion of Jesus Christ, whose formal charge was sedition against the state (Henderson 2000). Throughout this era, punishment was violent and often a means of inflicting torture along with death.
Middle Ages and Renaissance
During the Middle Ages, it became very important to justify punishing convicted criminals by making sure they were guilty. The predominant methods of determining guilt or innocence at the time were trial by battle, the ordeal, and compurgation. Trial by battle pitted the offender and the victim, or a family member of the victim, in a fight against each other. Whoever won that fight was believed to be blessed by the gods. Thus, if the accused won, it was because he or she was innocent. The ordeal subjected the accused to torture, and if the accused criminal survived the ordeal, he or she was innocent because, again, the gods would favor this innocent person and given him or her the strength to survive whatever the torturers inflicted. Compurgation gave an accused criminal the opportunity to gather compurgators, or relatives and neighbors, and swear his or her innocence to each of them individually. The compurgators would then take an oath and attest that they believed the accused was telling the truth that he or she was innocent. This method of determining innocence or guilt was reserved for the members of the higher classes of society (Banks 2005).
These three methods of finding criminals guilty slowly lost popularity as the government realized they were ineffective. Between about the eighth and eleventh centuries A.D., exacting vengeance was operationalized into civil law (born of the concept of imparting justice in the king’s court) and criminal law (which came out of the ancient notion of vengeance). Trial by jury also became the accepted and effective way of establishing guilt and was widely used by the mid-thirteenth century.
As civil and criminal law developed, torture was phased out, but very, very slowly. In fact, the centuries between 1400 and 1800 were marked by enough executions that the laws on capital punishment were later dubbed the “Bloody Code” (Levinson 2002). Torture was even legal into the eighteenth century. To maximize the psychological and physical effects of torture, many methods were invented. Some commonly used methods of torture were chopping off the hands and feet, impaling the body on a large stake, stripping off the skin, boiling the body alive in oil, drawing and quartering, burning at the stake, and crucifying.
Enlightenment
Although there was a lot of torturing and executing going on, there was a lot of thought and discussion about why it should be stopped. The eighteenth-century European Enlightenment focused on ideas that emphasized the value of humankind and the potential that every individual possessed. Reformists began thinking about how the government could serve the common good (with the common good encompassing a lot more people than it ever had) while controlling and punishing criminals (Banks 2005).
The Italian philosopher and politician Cesare Beccaria wrote On Crimes and Punishments in 1764, trying to answer these questions and creating a turning point in death-penalty reform. Beccaria argued for abandoning the system of maximum terror, replacing it with a system that applied a punishment that was proportionate to the crimes.
The use of incarceration as punishment began to grow, taking away liberty as a punishment. Being the opposite of liberty, which was harsh in the minds of humanists who saw liberty as extremely precious, prison created a rehabilitative environment, which was important considering that many saw crime as the product of an offender’s environment and able to be corrected (Banks 2005).
In the United States
Colonial America
Early American settlers’ criminal codes were based on Britain’s laws, and some were just as harsh. For example, in 1612, acts like stealing grapes, killing chickens, and trading with Indians were capital crimes. As the colonies grew more independent of each other and Britain, they developed unique laws. Their insularity also made them slower to accept the ideals of the European Enlightenment. They retained the traditional belief that humankind was naturally depraved and not a product of environment, putting the responsibility for crime on criminals themselves (Introduction to the Death Penalty 2009).
As American legal codes became more defined by the colonies, patterns of punishment surfaced. The early northern colonies were more lenient than England for crimes against property but much harsher in punishing crimes against morality. The early southern colonies adopted English law without modifying it very much but also developed a subset of crimes that were punishable only if committed by blacks. Many saw this addition as an American “Bloody Code” (Banner 2002).
The Bill of Rights, ratified in 1791, controlled the use of capital punishment by prohibiting “cruel and unusual punishment” in the Eighth Amendment. However, at the time of the Constitution, the phrase “cruel and unusual punishment” was a stock verbal formula, and its contemporary meaning is disputed today. It is possible that the phrase enforces proportionality, or reserving the harshest sentences for the worst crimes. The phrase could also have been used to make a list of the methods of punishment that would be considered too harsh for capital crimes. At the time, the death penalty by hanging was not seen as cruel or unusual punishment (ibid).
In the first decade after 1776, some Americans began to espouse the ideas becoming popular in Europe, with Beccaria’s book being published in New York City in 1773. Much of the dissatisfaction with the death penalty stemmed from the growing belief that every human had innate virtue and that a person’s environment—not inherent evil—shaped actions and choices. These early abolitionists did make some progress in moving away from the use of the death penalty (it was partially abolished in some places) but it was still used as a standard punishment.
Pre- and Post-Civil War
In the first half of the nineteenth century, the American capital punishment debate boiled down to two ways of seeing the world and the war between those two ways. One side had sympathy for the criminal, which the opposition said made it impossible to see the larger picture. The other side saw the larger picture but not the individual human beings that made it up (ibid).
By this time, prisons were widely used to punish criminals. Prisons were seen more and more as able to provide tailored punishment to convicts, offering probation and other rehabilitative programs. A turning point in the nature of capital punishment was when it began to be administered in prisons, as many felt public executions actually encouraged violent crime. With the privatization of the administration of the death penalty, capital punishment lost even more of its symbolic meaning and its ritual significance (ibid).
Crimes being punished in a private space led to more humane methods of inflicting punishment. Hanging was criticized as too brutal, the product of a more barbaric society, and a growing faith in science as the means of ameliorating aspects of the human condition led to the advent of the electric chair. The first chair was built in New York in 1888 and used in 1890 to execute William Kemmler. Primarily in western states, the gas chamber began to be used (Introduction to the Death Penalty 2009).
By 1846, Michigan had abolished the death penalty for every crime but treason. Soon after, Rhode Island and Wisconsin abolished the death penalty for all crimes.
Progressive Era through World War II
Throughout the Progressive Era around the turn of the twentieth century, capital punishment was on the decline. Crime continued to be seen as the result of a criminal’s environment, and science was proving it was also the result of inborn genetic traits. As the criminal became more and more a victim of outside forces, the death penalty became less and less just.
But the shift away from capital punishment was undone when America entered World War I. Because of panic generated by the Russian Revolution and class conflicts, many states that had abolished the death penalty reinstated it. Also, no more states abolished capital punishment until the 1950s. In fact, there was significant growth of the support for and use of capital punishment from 1920 to 1935.
In the mid 1950s, interest in the debate over whether the death penalty should be used resurfaced. Caryl Chessman, a death-row inmate, who wrote several books while in prison, and his first book, his autobiography, entitled Cell 2455, Death Row, was very popular in the United States and around the world. Chessman’s case brought the death penalty question back to the forefront of issues facing society. Simultaneously, support for capital punishment was waning as many nations around the world abolished the death penalty (Introduction to the Death Penalty 2009).
Civil Rights Era
The next significant movement toward abolition of the death penalty occurred during the 1960s civil rights movement. This movement helped the abolition debate, largely because abolitionists changed the way they approached the issue. Activists went from trying to use the legislative process to fighting the practice in the judicial arena.
In the mid-twentieth century, several Supreme Court cases transformed the legal community’s understanding of the Eighth Amendment and “laid a foundation that lawyers would eventually use to challenge the constitutionality of the death penalty.” In the 1958 Supreme Court case Trop v. Dulles, the court decided that the Eighth Amendment allowed for an evolution of standards for civilized conduct. Many abolitionists applied this decision (it was not a capital case) to the death penalty, arguing that it no longer fit in with society’s standard of decency. The LDF lawyers began a legal campaign that led to a Supreme Court declaration in the 1972 landmark case Furman v. Georgia that the death penalty was unconstitutional by declaring the death penalty as cruel and unusual punishment and in violation of the Eighth Amendment (Introduction to the Death Penalty 2009) .
The progress abolitionists made against the death penalty did not last long—in 1976, Gregg v. Georgia determined that rather than ruling that capital punishment itself was unconstitutional, the court in 1972 had ruled that “the haphazard way in which it was administered was constitutionally impermissible.” The Court opened the way for states to rewrite their capital statutes to eliminate the arbitrariness in capital sentencing. As states amended capital punishment laws, justices held that the amendments “provided sufficient safeguards to ensure that the death penalty was employed in a constitutionally acceptable manner.” As a result, capital punishment was reinstated in the United States, and the nation’s first execution in 10 years took place in January 1977 when Gary Gilmore was executed by firing squad in Utah. Later, Charles Brooks was the first person executed by lethal injection in Texas on December 7, 1982 (Banner 2002).
The Continuing Debate
The main points of the worldwide debate currently surrounding the death penalty are not new but seem to accumulate and converge as societies progress. Does the death penalty protect society by ridding it of evil and actually deter people from committing crimes? Does it exact retribution from criminals appropriately, in fair proportion to the crime committed? Is the punishment used fairly in terms of the race and class of its victims? Is capital punishment barbaric or does it have a place in civilized society? Is the death penalty justified in the vast monies saved by not having to support such criminals with incarceration for their lifetimes, or is its cost to society's humanity even dearer?
All of these questions have been asked throughout history and continue to be weighed as society tries to determine whether capital punishment itself will ultimately live or die.
-- Posted September 19, 2009
References Abbott, Geoffrey. 2005. Execution: The Guillotine, the Pendulum, the Thousand Cuts, the Spanish Donkey, and 66 Other Ways of Putting Someone to Death. New York, NY: St. Martin’s.
Banks, Cyndi. 2005. Punishment in America. Contemporary World Issues. Santa Barbara, CA: ABC-CLIO.
Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, MA: Harvard UP.
Henderson, Harry. 2000. Capital Punishment. Rev. ed. New York, NY: Facts on File.
Hood, Roger. 2002. The Death Penalty: A Worldwide Perspective. 3rd Ed. Oxford, UK: Oxford UP.
“Introduction to the Death Penalty.” 2009. The Death Penalty Information Center. Accessed September 9, 2009.
Levinson, David. 2002. “Capital Crimes.” Encyclopedia of Crime and Punishment. 4th Vol. Thousand Oaks, CA: Sage.
Wolf, Robert V. 1998. Capital Punishment. Philadelphia, PA: Chelsea House.
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