Changing Views Toward the Punishment of Criminals
Changing Views Toward the Punishment of Criminals
New Way of Thinking. Public executions came to the colonies from the mother country as the ultimate demonstration of the power of the Crown in the maintenance of social order. Few people doubted the government’s right to take the life of anyone who seriously violated the rules of civil society. The preservation of order was a fundamental concern of colonial governments, and public hangings were designed as much to be a warning to others as a punishment for wrongdoing.
Shays’s Rebellion. The story of Shays’s Rebellion of 1786 highlights this aspect of capital punishment. Unable to pay the high taxes imposed on them by the state legislature meeting in Boston, many western Massachusetts farmers were jailed or had their livestock or land confiscated to cover their unpaid debts. These disgruntled farmers, deep in debt and trying to make a living in the harsh conditions of the hills of Berkshire County, rose against the merchant leadership of Massachusetts in open and violent rebellion. The farmers joined together to stop the apparent injustice by closing down the court system. If the courts could not meet, debtors could not be jailed. Matters came to a head in January 1787 when Capt. Daniel Shays marched with a force of so-called Regulators to the Springfield Arsenal. It took several thousand militiamen to beat back the uprising, and when the dust settled, most of the regulators were pardoned. However, two participants in the revolt, John Roby and Charles Rose, were condemned to death, not for rebellion but for robbery. Roby and Rose had stolen weapons during the uprising, and in Massachusetts robbery could be a capital crime. Their execution was specifically related to antisocial behavior: robbery would not be tolerated in an orderly social system. At the hanging a sermon was offered by Rev. Stephen West, who declared that the punishment should be viewed as a “solemn warning against breaking the bond of civil society.”
Personal Liberty. The view of capital punishment as a means to maintain civil order was the dominant view in the early years of the republic. As John Adams said, “public virtue is the only foundation of republics.” This perception gradually gave way to emerging notions of liberty and the need to have methods of punishment that were consistent with the new nation’s republican ideals. In Virginia Thomas Jefferson had been given the responsibility to write proposals for the reform of that state’s penal laws. Jefferson failed to persuade his fellow lawmakers to agree with his view that the death penalty should be reserved only for the most heinous of crimes: treason and murder. Although Jefferson did not succeed
in narrowing the use of capital punishment, he clearly had touched on an emerging national issue. The leaders of the new nation were concerned about balancing the freedoms associated with liberty with the need to maintain social order.
Social Contract. Many of the Founding Fathers were influenced by the humanitarian eighteenth-century philosophers, notably the Italian Cesare Bonesana Beccaria and the Frenchman Baron Charles-Louis de Montesquieu, who opposed capital punishment as monarchical and contrary to true liberty. These men believed that capital punishment represented an extreme form of punishment that, in practice, was not effective and did not promote the maintenance of public order. Jefferson, who was influenced by his readings of Beccaria, referred to the death penalty as “the last melancholy resource of society against its criminals.” Beccaria’s view was that capital punishment violated a citizen’s “social contract” with his government. In other words, while all citizens in a free society give up the right to do certain things in order to establish a lawful and stable society, no one ever gives away the right to retain his or her own life. Capital punishment was a demonstration of ultimate brutality that had no place in an enlightened and free society in which the citizens themselves were sovereign.
Benjamin Rush. The leading thinker and activist in the area of penal reform and the abolition of capital punishment was Benjamin Rush of Philadelphia. He was the preeminent American physician of his day. Like James Wilson, who taught the first structured law course at the College of Philadelphia, Rush pioneered the instruction of chemistry at the same college. Rush was not content to practice medicine but engaged in a variety of humanitarian causes, promoting the abolition of slavery and education reform. His chief contribution to public affairs was his fervent opposition to capital punishment. He wrote “we have changed our forms of government, but it remains yet to effect a Revolution in our principals, opinions, and manners so as to accommodate them to the forms of government we have adopted.” Rush devoted much of his adult lifetime to reforming America’s criminal justice laws.
Pennsylvania Reforms. In 1786 the Pennsylvania legislature restricted the death penalty and replaced it with public punishment by forced labor. This “wheelbarrow law” was based on the emerging view that society should reform criminals, not simply punish them. The law got its name from the notion that criminals would be required to work under hard-labor conditions and in very public settings. Convicts working on a variety of hard-labor projects soon became the subject of public ridicule. Many sought to escape; others became more hardened as a consequence of their public humiliation. The public quickly turned against the wheelbarrow law since it did not seem to work. In March 1787 Rush wrote “An Enquiry into the Effects of Public Punishments upon Criminals and upon Society,” an attempt to affirm the recently enacted Pennsylvania penal reforms. His efforts could not prevent the repeal of the law, but Rush continued to speak out in favor of what he considered a more humane approach to dealing with convicted criminals.
Penitentiary System. The Pennsylvania experiment with penal reform was the precursor of a national movement to reform criminals through the penitentiary system. The idea was that criminals could be reformed through isolation from society, which forced introspection and repentance. By 1805 six states constructed penitentiaries as alternatives to the use of capital punishment, except in regard to the most heinous of crimes. In Philadelphia the penitentiary was considered a “school of reformation” and an alternative to the usual prison “scene of debauchery, idleness and profanity.” The solitude of the penitentiary may seem like true reform when compared to capital punishment, but those individuals who had to endure the privations of incarceration did not view the penitentiary as a humane environment. One former inmate, Stephen Burroughs, wrote about his incarceration in the new Massachusetts prison at Castle Island that it contradicted the beliefs of “those who have tasted the bitter cup of slavery, and have known from hence the value of liberty.” Burroughs asked: “How is this, that a country which has stood the foremost in asserting the cause of liberty … should so soon after obtaining that blessing themselves, deprive others of it?” Burroughs did not offer an alternative to the penitentiary, and indeed there were no easy answers to the problems of crime and lawlessness. All “analyzation, science and commerce have long ago failed in their attempts to improve the condition of mankind,” wrote John Adams, “and even liberty itself, from which more was expected than from all other human means, has lately appeared to be insufficient for that purpose.”
Daniel J. Boorstin, The Lost World of Thomas Jefferson (Chicago: University of Chicago Press, 1948);
Louis P. Masur, Rites of Execution (New York: Oxford University Press, 1989);
Richard B. Morris, The Forging of the Union: 1781–1789 (New York: Harper & Row, 1987).