Capital Punishment
Capital Punishment
Penal practice in premodern Europe
Effectiveness of capital punishment
Capital punishment means the officially authorized execution of the death penalty on persons determined by appropriate legal procedures to have committed a criminal offense. So defined, capital punishment is presently a prominent feature of the administration of criminal justice in many nations of the world and has typically, although not invariably, characterized the criminal law since the beginnings of recorded history.
This definition of capital punishment, while serving most utilitarian purposes, emphasizes the difficulties of tracing its origins in primitive society. Capital punishment, as it emerges in civilized communities, presupposes a system of criminal law predicated on the assumption that certain harms committed by one individual upon another represent injuries to the interests of the corporate society and, hence, are punishable by the society. Evidence suggests that among the primitive societies of western Europe such a conception of the criminal law was slow in developing. Even more slow to develop were the modern distinctions between the idea of crime and of private harms encompassed in the law of torts. In general, social control of private wrongdoing was principally concerned with the avoidance or regulation of private warfare rather than with the direct imposition of penalties by the organized community upon the offender. Accordingly, retribution for serious wrongs, such as homicide and major offenses against property, was left largely to the injured party or his family—subject, however, to elaborate social regulations of the manner and quantum of retribution that might be exacted. Typically, retribution was regulated by composition, wherein the injured party or his clan exacted compensation for the injury from the offender or his clansmen according to stipulated procedures. Thus, in England as late as the Norman Conquest, homicide could be composed by payment of the dead man’s wergild. If the wergild was not paid, the obligation to avenge the death rested on the injured family, not the state.
This, of course, is not to say that primitive society reveals no instances of the infliction of death upon its members by the direct authority of the organized community. Many such instances, however, cannot confidently be represented as examples of capital punishment as that term is currently understood, but appear more closely related to primitive religious belief and ritual. It has been suggested that the authorization of the death penalty in some early legal codes reflects the substance and forms of earlier religious practices relating to human sacrifice and the infliction of death on persons deemed guilty of sacrilege (Bonner & Smith 1930?1938).
Ancient legal codes. The antiquity of capital punishment is clearly revealed, however, in provisions of the earliest written legal codes. Thus the Code of Hammurabi (c. 1750 b.c.) applied the death penalty to some 25 offenses, such as corruption in government service, theft, and various sexual offenses. The omission of murder is probably to be explained by the persistence of the blood feud in cases of homicide. Not only did the code authorize the penalty of death but in some cases it specified the mode of execution: drowning, burning, or impaling. In the Assyrian laws (c. 1500 b.c.) death was a specified penalty, but mutilation appears to have been the more common penalty. Both the Hittite Code, dating from the mid-fourteenth century before Christ, and the Covenant Code of the Hebrews specified the death penalty for a variety of offenses. The early Greek law reveals a strong tradition of self-help on the part of clan and tribal groups. The earliest written codes, however, authorize the death penalty for numerous offenses, many of them of a religious character; and capital punishment became an established feature of Greek law in the period of its maturity.
In Rome the first capital offenses to gain recognition appear to have been treason and murder, the latter representing an effort on the part of the community to suppress the blood feud. The Twelve Tables, enacted in the fifth century before Christ, contain provisions authorizing the death penalty for such offenses as libel, arson, bearing false witness, and certain forms of bribery. During the republic the penalty of death, although authorized in the written laws, seems rarely to have been imposed upon citizens. Execution of slaves, however, was a much more frequent occurrence. In the first two centuries after Christ, capital punishment appears to have been more frequently imposed for political crimes and for other offenses committed by members of the lower classes. During the last stages of the empire, when Christianity became the state religion, heretics were frequently condemned and executed, and the criminal law was generally expanded into the area of what had previously been regarded as private delicts. The Code of Theodosius (a.d. 438) specifies over eighty crimes punishable by death.
Penal practice in premodern Europe
From the fall of Rome until the beginnings of the modern era, capital punishment was widely practiced throughout western Europe. An astonishing variety of methods to produce death were employed. In English history the methods of greatest importance were burning, beheading, and hanging, sometimes accompanied by such refinements as drawing and quartering. One reason for the widespread use of capital punishment in preindustrial societies was the apparent lack of feasible alternative methods to deal with serious criminality. A system of long-term imprisonment, for example, requires outlays of resources that an impoverished society is unable or unwilling to make. Nevertheless, the history of capital punishment suggests that in any society certain countervailing tendencies based upon practical and humanitarian considerations are likely to develop and to limit the imposition of the death penalty. In the Middle Ages, for example, mutilation of the offender was frequently employed as an alternative to capital punishment. This phenomenon can be observed in the laws of William the Conqueror, in which mutilation rather than death was prescribed for most serious crimes. Although mutilation was conceived as a mitigation of punishment, its use was attended by serious social disadvantages. Thus, the loss of hands, eyes, or tongue often prevented the offender from resuming productive occupations; and the stigma and disabilities produced by mutilation tended to encourage the commission of new crimes by those upon whom it was practiced.
The seventeenth and eighteenth centuries
Although penal practice in the Middle Ages was often savage and unrestrained, it appears clear that the most extensive use of capital punishment occurred in western Europe during the period marked by the onset of the industrial revolution. Sir William Blackstone, writing in the middle of the eighteenth century, estimated that 160 crimes were punishable by death in England. A half-century later probably as many as one hundred additional offenses had been added to the list. Some historians have calculated the number at an even higher figure. This increase in the number of offenses punishable by death may not provide a wholly accurate index of the increases in the execution of the death penalty. It fails, for example, to take into account the numbers of convicted English felons transported during these years to America and later to Australia. Nevertheless, there have been few periods in the history of Western civilization when penal policy placed so great a reliance on capital punishment.
The reason for the increased resort to capital punishment in the seventeenth and eighteenth centuries are no doubt many and varied. Two, however, are of prime importance. First, the industrial and agricultural revolutions produced social dislocation and unrest and resulted in real and apparent increases in serious criminality. The Draconian penalties of this era represent the response of the propertied classes to these developments. Second, despite the rise in importance of overseas transportation of felons in some European countries, such as England, penal policy during the period was marked by a dearth of acceptable secondary punishments capable of being employed as alternatives to the death penalty. Long-term penal incarceration is for the most part a development of the nineteenth century.
The abolition movement
The eighteenth century, which accorded capital punishment the position of dominance in the penal policy of western Europe, also produced the beginnings of the movement to abolish it or greatly to restrict its use. The unsatisfactory state of the criminal law, the use of torture, the widespread use of capital punishment, and other brutal and degrading penalties received the critical attention of writers of the Enlightenment. These abuses were effectively satirized by Montesquieu in his Lettres persanes, 1721. Even more explicit denunciations were launched by Voltaire. But the most important work of the period was An Essay on Crimes and Punishments (1764), written by the youthful Cesare Bonesana, marquis of Beccaria (1738?1794). Beccaria was the first writer to urge the complete abolition of capital punishment, and his is perhaps the most influential volume on the reform of criminal justice ever published.
The impact of Beccaria’s work was immediate and profound. Its influence was felt in England, where the work of law reform was undertaken by a remarkable group of men, the most prominent of whom was Jeremy Bentham (1748?1832). Many of Bentham’s proposals were introduced in Parliament by Sir Samuel Romilly (1757?1818), who became the most distinguished legislative advocate of the restriction of capital punishment in English history. Although he did not live to see a substantial reduction in the number of crimes punished by death, which was his great objective, his work and that of Bentham prepared the way for the reforms achieved in Parliament in the next generation. The effectiveness of these efforts is demonstated by the fact that, whereas at the beginning of the nineteenth century well over two hundred offenses were punishable by death in England, by 1861 the number had been reduced to four.
The movement to restrict or abolish the death penalty, launched in the eighteenth-century Enlightenment, exerted important influence throughout the civilized world, and that influence persists to the present day. The reasons for these developments are many. First, the abolition movement was consistent with nineteenth-century humanitarian sentiment and, indeed, represented one of its most important expressions. Second, limiting or abolishing capital punishment became one of the important political objectives of the popular governments that came to power during the course of the century. Third, the rise of long-term penal incarceration throughout the civilized world, although it produced a plethora of new problems, provided a feasible alternative to the death penalty. Finally, a widespread conviction developed that a penal policy founded on extensive and indiscriminate use of capital punishment not only failed to achieve a reduction of serious criminality but in some respects rendered law enforcement less effective.
The United States
Capital punishment was brought to North America by the colonizing powers. In the American colonies legislation characteristically applied the death penalty to a long list of offenses, and in most colonies executions were frequently carried out. In the years following the American Revolution the number of offenses punishable by death declined. One manifestation of this tendency was the Pennsylvania statute of 1794, which for the first time divided murder into degrees and authorized capital punishment only for first-degree murder. Similar legislation has been enacted in most American states.
There has been agitation for the abolition of capital punishment in the United States for more than a century and a quarter. The first state to abolish the death penalty (except in cases of treason) was Michigan in 1847. Other states that have abolished the death penalty in all, or virtually all, cases include Rhode Island (1852), Wisconsin (1853), Maine (1876, 1887), Minnesota (1911), North Dakota (1915), Alaska (1957), Hawaii (1957), Oregon (1964), Iowa (1965), Vermont (1965), West Virginia (1965), and New York (1965). Both Puerto Rico and the Virgin Islands have also abandoned capital punishment. A number of states, including Kansas, South Dakota, and Delaware, at one time abolished the penalty and later restored it. The federal government applies the death penalty to a variety of offenses.
In the considerable majority of American states that have retained the death penalty, there is some diversity in the offenses to which it is applied. Capital punishment is most commonly applied to murder and treason, but no executions under state authority have occurred for the latter offense in the modern period. Other offenses to which the death penalty has been attached by some American jurisdictions include forcible rape, kidnaping, armed robbery, certain narcotics crimes, and (in the case of the federal government) espionage and theft of military secrets.
In spite of the only moderate success of the American abolition movement, the actual execution of the death penalty has declined precipitously for more than a generation and a half. Thus, between 1930 and 1964, 3,849 persons were executed under civil authority in the United States (U.S. Bureau of Prisons 1964). The nature of the decline is revealed by the fact that in 1930, 155 persons were executed, whereas in 1964 the figure was only 15. Considerable regional variations may be observed in the number of executions. In the years 1950–1954, 27 persons were put to death in the populous state of New York, while 72 persons were executed during the same period in Georgia. No executions occurred in the 1950s and 1960s in the states of Massachusetts, South Dakota, Delaware, Montana, and Wyoming.
World-wide trends
In the mid-1960s a majority of the nations of the world retained the death penalty for certain categories of offenses. Capital punishment is recognized in Australia (except in Queensland), in Africa, and in most Asiatic nations. In Europe the death penalty is applied in the countries of eastern Europe and the Balkans, but it has been substantially abolished in all of the nations of western Europe except France, Greece, and Spain. In Britain the abolition movement came to fruition when, in 1965, the House of Commons approved a bill providing for the elimination of the death penalty in murder cases during a five-year trial period. The act would lapse after July 31, 1970, unless its life were extended by resolutions of both houses of the Parliament. In Latin America capital punishment has been abolished in Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, Mexico (under the federal law and in all but four of the states), Panama, Uruguay, and Venezuela. It is retained in Canada. A report submitted to the United Nations in 1962 clearly revealed a world-wide tendency toward a considerable reduction of the number and categories of offenses for which capital punishment may be imposed (United Nations 1962).
Effectiveness of capital punishment
In the controversy over capital punishment that has persisted throughout the civilized world since the eighteenth century, the arguments have generally been of two sorts. The first are assertions based upon conflicting versions of moral, religious, and humanitarian imperatives; and the second may be described as utilitarian arguments advanced to demonstrate social gains or losses deriving from a system of capital punishment.
Of all the utilitarian arguments, the ones advanced most frequently are those relating to the deterrent consequences of the death penalty. It should be observed that the crucial issue is not whether any deterrent potential can fairly be ascribed to the death penalty, but whether capital punishment possesses a deterrent efficacy lacking in other less drastic, nonlethal sanctions available to the state when performing its obligations of public order. Typically, those arguing for the retention of capital punishment have not attempted to establish its unique deterrent efficacy by empirical demonstration but have relied primarily on expressions of opinion by experienced police and prosecuting officials.
The abolitionists, on the other hand, have produced a large array of studies designed to test the deterrent consequences of the death penalty. These studies have taken a variety of forms: comparisons of homicide rates in countries or American states that have abolished the death penalty and those that have retained it; comparisons of homicide rates in jurisdictions before and after abolition; broader studies of general crime rates in abolition and death-penalty jurisdictions (Sellin 1959, pp. 19?52). These and similar studies have in general failed to identify any meaningful correlation between the presence of the death penalty and rates of serious criminality. Although abolitionists have sometimes claimed more of these studies than their significance warrants, the temperate observation of the Royal Commission on Capital Punishment seems clearly justified: “[T]here is no clear evidence of any lasting increase [in the murder rate following abolition] and there are many offenders on whom the deterrent effect is limited and may often be negligible” (Great Britain 1953, p. 274).
Another aspect of the deterrence argument has sometimes been slighted. Even if it be supposed that there are some conceivable circumstances in which the death penalty might enhance the deterrent consequences of the criminal law, the more important question is whether, under the circumstances actually surrounding the administration of justice, these effects can sensibly be anticipated. It may be assumed that realization of any unique deterrent gains from capital punishment would require that certain conditions be satisfied. These include reasonable certainty in the detection and apprehension of offenders, reasonable speed and certainty of conviction, and reasonable speed and certainty in the execution of the death penalty once it is imposed. In the United States, at least, none of these conditions is fulfilled at present or is likely to be in the years ahead.
Although arguments centering on deterrence have dominated discussion of capital punishment, many other issues have been canvassed. Abolitionists have frequently pointed to the irrevocable nature of the death penalty, which prevents the state from rectifying miscarriages of justice in cases of conviction of the innocent. Retentionists, on the other hand, have urged that the death penalty is essential to the safety of police officers; and murder of policemen was retained as a capital offense in the New York act of 1965, which generally abolished capital punishment in that state. A recent study conducted in the United States, however, indicates no correlation between the murder of policemen and the presence of the death penalty (Sellin 1959, pp. 52?57).
In most modern jurisdictions the imposition of the death penalty is discretionary rather than mandatory. There are no reliable data on the percentage of persons sentenced to death among those convicted of offenses for which capital punishment might be imposed. It is clear, however, that the percentage is very small. Furthermore, there is reason to believe that selection of persons for execution often proceeds on the basis of inadequate or improper criteria. The poverty of the offender and the consequent inadequacies of his legal defense appear to be important factors in an indeterminate number of cases. That the race of the offender has also played a role is at least suggested by the fact that 54.7 per cent of all offenders executed in the United States in the years 1930?1964 were nonwhite (U.S. Bureau of Prisons 1964). Other consequences of capital punishment on the administration of justice also merit concern; for example, the distorting effects of capital punishment on the development of the substantive criminal law have frequently been noted. In the Anglo–American world the result has been a legacy of legal rules intelligible only as devices to mitigate the severity of penalties. The rules so developed, however, cannot always be restricted in their application to capital cases, and the consequence is the introduction of anomalies and irrationalities in the development of legal principle.
It is clear that throughout the world the consensus of opinion among those professionally concerned with the treatment of offenders is strongly in favor of abolition of the death penalty. Study of the administration of capital punishment and its consequences has left more careful students skeptical of the claims of social advantage made in its behalf. Moreover, the death penalty is clearly at war with the principle of rehabilitation of offenders that has come to dominate modern correctional thought. Although capital punishment is an ancient and hardy institution, the trend toward reduction of its scope and application may be expected to continue.
Francis A. Allen
[Directly related are the entriesCriminal law; Penology. Other relevant material may be found inCrime, article onHomicide; Criminology; Punishment; and in the biography ofBeccaria.]
BIBLIOGRAPHY
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