CAPITAL PUNISHMENT

Opposition to the death penalty in America had existed for more than a hundred years before 1870. Indeed, many of the same voices that spoke out against slavery also opposed the death penalty, finding inspiration in Quaker leaders, such as William Penn and Benjamin Rush. Opponents of capital punishment were also drawn to Enlightenment philosophers, such as the Italian economist and criminologist Cesare Beccaria (1738–1794), who argued that society should focus not on punishment but on crime prevention and the rehabilitation of those convicted of crimes. Beccaria's Essay on Crimes and Punishments (1764) was translated and read widely in colonial America, sparking reform in criminal justice even before the Constitution was written. Throughout American history, death penalty abolitionists not only claimed that the state lacks authority to exact punishment in this fashion but also noted the cruelty of the punishment as well as its finality. Gradually, imprisonment replaced execution for most crimes. Despite several attempts in the 1830s and 1840s to reform capital punishment, by the 1850s these efforts had been eclipsed by the intensity and urgency of the fight against slavery.

In the 1840s New York Tribune editor Horace Greeley (1811–1872) became a vocal and articulate opponent of the death penalty—as well as an abolitionist. Many of Greeley's arguments against the death penalty are reminiscent of the argument that Thomas Jefferson makes against slavery in Notes on the State of Virginia (1781) in the eighteenth century. Jefferson had noted that the practice of slavery weakened the morals of the slave-owning class. Similarly, Greeley in 1850 argued that the death penalty teaches revenge, weakens the natural horror of bloodshed, often ensures that the guilty will escape punishment, and may even make criminals more sympathetic to the general public (Vila and Morris, p. 64). In the early part of the nineteenth century several states considered abolishing the death penalty, whereas others sought merely to limit its use to only the most serious of crimes, such as murder or treason, or to restrict the procedures by which it might be implemented. Many states admitted to the Union in the second half of the nineteenth century prohibited, restricted, or limited the practice of capital punishment.

ORIGINS OF THE DEATH PENALTY REFORM MOVEMENT

Several factors contributed to renewed interest in death penalty reform during the period between the end of the Civil War and the beginning of World War I. For one thing, several high-profile criminal trials and executions, covered by an increasingly popular and sensationalist media, made the general population aware of the incompetence and unfairness with which the penalty was often carried out. Botched hangings, followed in later years by gruesome electrocutions, caused many to conclude that capital punishment amounted to torture. Granted, the Eighth Amendment specifically prohibited "cruel and unusual" punishments, but courts, including the Supreme Court, consistently failed to conclude that death per se qualified as such. In deciding Wilkerson v. Utah in 1879, the Supreme Court stated that the territorial statute prescribing death as the punishment for first-degree murder was constitutional and that the firing squad as a method of execution failed to qualify as cruel or unusual. Similarly, in 1890 the Court determined in In re Kemmler that electrocution was also an acceptable method of execution, even if, as was the situation in Kemmler, death was not instantaneous but required a second jolt of electricity. In both of these opinions, the Court ruled that punishments should be considered cruel only if they involve some kind of torture or lingering death. As the Court stated succinctly in Kemmler, the Eighth Amendment applied to "something more than the mere extinguishment of life." But courts continued to struggle with the question of what constituted cruel and unusual punishment. In Weems v. United States (1910), the Court concluded that any punishment might well violate the Eighth Amendment if it was disproportional to the crime committed. While not a death penalty case (the defendant, a U.S. Coast Guard clerk in the Philippines, had been sentenced to hard labor for what amounted to embezzlement), the Weems decision was important to death penalty opponents because it broadened the scope of the Eighth Amendment's prohibition against cruel and unusual punishments (Vila and Morris, p. 71).

What was also clear to many observers by the 1870s was that immigrants and those of African American descent were far more likely than whites to receive a sentence of death, a situation that many people hoped that the Fourteenth Amendment, ratified in 1868, would change. But although most states did repeal laws requiring harsher penalties for blacks after the Fourteenth Amendment was ratified, the practice of unequal punishment persisted for more than a century (Vila and Morris, p. 65). Ironically, this situation sometimes actually helped death penalty opponents. The movement against capital punishment in Maine, for example, was fueled by the 1869 execution of Clifton Harris, a black man convicted of murdering two whites, and by the 1875 trial and execution of the Prussian immigrant Louis F. H. Wagner for the infamous Smutty Nose Island murders, described in Anita Shreve's 1998 novel The Weight of Water. Both of these cases involved claims of innocence, questionable evidence, apparent racial and ethnic bias, and botched executions. Maine's legislature abolished the death penalty in 1876 but reinstated it in 1883, when state officials noted a rise in the murder rate (Galliher et al., pp. 54–57).

Many of these concerns coalesced in the widely publicized and much debated Haymarket bombing incident of 1886–1887. In the wake of the assassination by an anarchist bomb of Russia's Tsar Alexander II in 1881, the fear of terrorism had been growing. Government officials around the globe felt that the need to suppress political dissent was a matter of survival. In the spring of 1886, labor unrest in Chicago had escalated sharply, until on 4 May a crowd of nearly two thousand people gathered at Haymarket Square. This protest was aimed specifically at the Chicago police, who had shot and killed two striking workers at the McCormick factory the day before. When the police arrived at the protest, someone tossed a bomb, killing a policeman and sparking another round of police shootings. The authorities were unable to determine who had thrown the bomb, so instead they rounded up all of those who had organized and supported the cause of the protesters, including Albert Parsons and August Spies, left-wing newspaper editors, and Samuel Fielden, who had been speaking at the rally. In the subsequent trial, the defendants were portrayed as foreign agitators, the judge clearly favored the prosecution, and newspapers like the Chicago Tribune lobbied unabashedly for the death penalty. The executions became a rallying point for Americans across the political spectrum. Emma Goldman later spoke of these events as her political awakening, and William Dean Howells risked public disfavor when he protested the executions. But for many Americans, the executions were viewed as essential to maintaining social order and political stability.

THEORETICAL UNDERPINNINGS OF THE DEATH PENALTY

Despite the many sensational cases, disparate punishment was almost certainly the result of not just local entrenched prejudices but also of widely accepted legal and sociological theories. By the end of the nineteenth century, the rationalist view of crime and punishment reflected in Beccaria and other writers of the Enlightenment was being replaced by theories of biological inheritance (criminality as genetic destiny) and environmental conditioning (criminality as the result of social circumstances). The publication of treatises such as Charles Loring Brace's The Dangerous Classes of New York in 1872 helped to fuel the perception that certain social classes were predisposed by nature or culture or both toward crime and thus somehow more deserving of the harshest penalties. Brace (1826–1890) offers his readers statistics showing that the vast majority of those incarcerated in New York prisons were either foreign-born or first-generation Americans. He explores in some detail the reasons why immigrants run afoul of the law. He presents both the causes of crime and solutions as well, and he emphasizes the importance of providing the children of the lower classes with education and preparation for a trade. The book is nevertheless rife with assertions such as, "Let but Law lift its hand from them for a season . . . and we should see an explosion from this class which might leave this city in ashes and blood" (p. 29). Brace's theories could be used as easily by death penalty opponents to show the mitigating circumstances behind capital cases as by proponents to show the near impossibility of rehabilitating criminals.

Clearly, the widespread fear of crime, especially in urban areas, made lawmakers reluctant to repeal capital punishment; they were convinced that it served as a deterrent to crime. The idea of deterrence was not, of course, a new idea but one firmly rooted in history, especially in the administration of criminal justice in early America. As Stuart Banner notes, in colonial America the death penalty was sometimes imposed without any intention of carrying it out, simply for its force as a tool of deterrence. Public executions were often halted at the last minute, and convicted criminals were sometimes subjected to mock hangings. According to Banner, such public rituals would have been absurd had officials not believed that such events "would have some salutary effect" on both the accused individual and the community (p. 54). But as early as the 1830s, executions were moved inside the penitentiary walls, and the processes of appeal, pardon, and clemency were becoming fraught with complexity and bureaucracy, making the kinds of dramatic gestures that Banner describes virtually impossible for the authorities to orchestrate. At the same time, in the post–Civil War era, lynching and vigilantism had become serious threats to the social order. The gallows had become a symbol whose evocative power over the community had been effectively usurped by those outside the established system. Ironically, the death penalty was, in some states, even promoted as a deterrent not to crime but to lynching. Iowa abolished the death penalty in 1872, only to reinstate it in 1878 in an effort to curb lynching, which had apparently flourished in remote areas with tacit approval of local authorities, who felt that they lacked the resources to maintain order. In time, the new social sciences were often used to refute the notion that the death penalty deterred crime—or at least to demand evidence that such was in fact true.

By the late 1880s, what many saw as a necessary deterrent others saw as mere vengeance on the state's part. For those who advocated capital punishment, of course, retribution was as good an argument as deterrence and perhaps even better, because it required no proof. Retribution, known in legal jargon as lex talonis (an eye for an eye), is a principle of justice originating in the eighteenth century b.c.e. in Babylonia and carried over into Judeo-Christian culture. But by the nineteenth century the lex talonis principle would be increasingly seen as absurd and irrational. Perhaps the most eloquent of the Progressive Era death penalty abolitionists was Clarence Darrow (1857–1938), a champion of labor unions, a criminal attorney, and in 1925 a founding member, along with Vivian Pierce and Lewis Lawes, of the American League to Abolish Capital Punishment. As early as 1902, with the publication of Resist Not Evil, Darrow argued vehemently against the notion that criminal punishments served a compensatory function.

With regard to the death penalty in particular, Darrow notes its futility: "By no method of reasoning can it be shown that the injustice of killing one man is retrieved by the execution of another" (p. 56). He argues that if deterrence were the real object of punishment, life in prison must be considered as efficacious as execution. Furthermore, the sentence of death would have to be administered in the most horrific and public way possible; yet as Darrow notes, public executions were abandoned when their deleterious effects were confirmed: "It is now everywhere admitted that the brutalizing effects of public executions are beyond dispute" (p. 66). Darrow argues that the effect of the execution on those who witness it is "to harden and brutalize the heart and conscience, to destroy the finer sensibilities, to cheapen human life, to breed cruelty and malice that will bear fruit in endless ways and unknown forms" (p. 70). In essence, Darrow argues that if capital punishment is not abolished because of its injustice to the criminal, it should be abolished because of the damage it does society as a whole. By the time Darrow published Crime: Its Cause and Treatment in 1922, he was also convinced that the possibility of erroneous convictions was a persuasive argument against the death penalty: "Doubtless more men have been executed for crimes they did not commit and could not commit than for any real wrong of which they were guilty" (p. 163).

THE DEATH PENALTY IN LITERATURE

Although the debate about capital punishment was quite ardent, it served relatively infrequently as the source of inspiration for imaginative literature before the 1920s, especially in comparison with its widespread use in novels, plays, and films since then. As David Guest puts it in the introduction to his study of what he calls "the execution novel": "The historical invisibility of the criminal justice system is especially noteworthy, given its conspicuous presence in contemporary culture. The military may dominate the history books, but the police hold sway in the media" (p. xx). It was, after all, military—not civil—justice that Melville explored in Billy Budd, considered by some to be the quintessential novel about law in American literature. Significantly, the novel was written between 1886 and 1891 but not published until 1924. The novel also describes not the legal codes of the late-nineteenth-century United States but the far more savage codes of Georgian England. Nevertheless, as H. Bruce Franklin notes, the novel reflects a clear understanding of the issues related to capital punishment in late-nineteenth-century society. The novel explores not only the question of whether any authority based on any code has the right to take a life but also the notion that a public execution serves to deter others who might be tempted to commit crimes. As Franklin explains:

Like many of the arguments raised against the death penalty between the 1790s and the 1880s, Billy Budd strips away the illusions of justice and deterrence to reveal the essence of capital punishment: human sacrifice, a ritual of power in which the state and the ruling class demonstrate, sanctify, and celebrate their ultimate power. (P. 352)

As Captain Vere struggles with his duty to impose a military code that is not discretionary and with his clear knowledge that Billy had no criminal intent in the death of Claggart, the novel highlights a number of late-nineteenth-century concerns about the death penalty.

Military justice was also the setting of Ambrose Bierce's much anthologized story "An Occurrence at Owl Creek Bridge." Based loosely on Bierce's own Civil War experiences, the story was published on 13 July 1890 in the Sunday Supplement of the San Francisco Examiner and collected in Tales of Soldiers and Civilians in 1892. The story follows the experience of Peyton Farquhar, a Confederate sympathizer arrested by Union soldiers and summarily executed on the very bridge he had intended to sabotage. But the purpose of Bierce's story is not to question either the legality or the morality of the execution. Indeed, both Union and Confederate forces had to deal swiftly and unequivocally with the problem of sabotage, and the rules of war are always different from the rules of criminal justice. Farquhar's description of himself in the second section of the story as a "student of hanging" remains somewhat ambiguous, but clearly he was aware of the risks he took in an action that he undoubtedly considered military, not criminal. Rather, Bierce's purpose in the story is to use the execution to explore his own continuing fascination with what it meant to pass from life to death, and the circumstances of execution provided a unique glimpse of this "transitional phase." In the third section of the story, the reader follows Farquhar's delusion that the rope has broken and he has escaped into the woods, eluded Union forces, and returned home to his wife, only to learn in the last sentence that Farquhar has been swinging "gently from side to side beneath the timbers of the Owl Creek Bridge" (p. 312). Critics have debated whether the events that Farquhar imagines happened in a flash as he died or whether they happened over a longer period of time, say, fifteen minutes, as Donald T. Blume suggests in his 2004 study of the sketches included in Tales of Soldiers and Civilians. Assuming that Blume's reading of the story is accurate, it is easy to see how Bierce's story might give credence to claims of death penalty opponents that death by hanging is far from instantaneous and therefore a cruel form of punishment. Bierce's story also anticipates later journalistic and literary execution narratives.

The law and literature movement has revealed few other literary texts that explore the issue between 1870 and 1920. Theodore Dreiser may have been interested in the criminal mind and the consequences of criminal activity as early as Sister Carrie (1900), but it would be 1925 before he would publish his magnum opus on the death penalty, An American Tragedy. And Frank Norris's 1899 novel McTeague (one of Guest's "execution novels") ends not in the execution chamber but in Death Valley. Interestingly, these novels focus less on the questions of actual guilt (which is never really in question in these narratives) than on the causes of criminal behavior and whether it is reasonable for the criminal to pay for his or her crime with death. While the authors are concerned with the larger social and even biological forces that may lead the individual to crime, they seem much less interested in the possibility of mistaken criminal culpability, which would be an important theme in later twentieth-century film and literature.

See alsoBilly Budd; Haymarket Square; Jurisprudence; Law Enforcement; Lynching; McTeague; Tales of Soldiers and Civilians

BIBLIOGRAPHY

Primary Works

Bierce, Ambrose. "An Occurence at Owl Creek Bridge." 1890. In The Complete Short Stories of Ambrose Bierce, edited by Ernest Jerome Hopkins, pp. 305–312. Lincoln: University of Nebraska Press, 1985.

Brace, Charles Loring. The Dangerous Classes of New York. New York: Wynkoop and Hallenbeck, 1872.

Darrow, Clarence. Crime: Its Cause and Treatment. New York: Thomas Y. Crowell, 1922.

Darrow, Clarence. Resist Not Evil. London: Ernest Bell, 1904.

Melville, Herman. Billy Budd. New York: New American Library, 1961.

U.S. Supreme Court. In Re Kimmler. 136 U.S. 436, 1890.

U.S. Supreme Court. Weems v. United States. 217 U.S. 349, 1910.

U.S. Supreme Court. Wilkerson v. Utah. 99 U.S. 130, 1879.

Secondary Works

Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002.

Blume, Donald T. Ambrose Bierce's Civilians and Soldiers in Context: A Critical Study. Kent, Ohio: Kent State University Press, 2004.

Franklin, H. Bruce. "Billy Budd and Capital Punishment: A Tale of Three Centuries." American Literature 69, no. 2 (1997): 337–359.

Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993.

Galliher, John F., Larry W. Koch, David Patrick Keys, and Teresa J. Guess. America without the Death Penalty: State Leading the Way. Boston: Northeastern University Press, 2002.

Gottfried, Ted. Capital Punishment: The Death Penalty Debate. Springfield, N.J.: Enslow, 1997.

Guest, David. Sentenced to Death: The American Novel and Capital Punishment. Jackson: University Press of Mississippi, 1997.

Moddelmog, William E. Reconstituting Authority: American Fiction in the Province of the Law, 1880–1920. Iowa City: University of Iowa Press, 2000.

Steelwater, Eliza. The Hangman's Knot: Lynching, Legal Execution, and America's Struggle with the Death Penalty. Boulder, Colo.: Westview Press, 2003.

Vila, Bryan, and Cynthia Morris, eds. Capital Punishment in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 1997.

Nancy Morrow