Eastern State Penitentiary, 1820s. By: The Library Company of Philadelphia.

By the time the United States declared its independence, capital punishment was common for murder, robbery, forgery, housebreaking, and counterfeiting. Gordon Wood, Empire of Liberty, 492. Some states had as many as two dozen crimes designated for capital punishment. Id. Further, “[e]xecution of the condemned criminals were conducted in public, and they drew thousands of spectators.” Id.

The early Republicans, including Thomas Jefferson, formulated a new approach to punishment that was more proportionate to the crimes. There were some who looked at capital punishment and believed it was too harsh for the crimes being committed, however, these early Americans would hardly be seen as compassionate, by today’s terms. Jefferson proposed the law of retaliation, lex talionis, meaning “the state would poison the criminal who poisoned the victim and would castrate men guilty of rape, polygamy, or sodomy.” Id. at 493 citing Thomas Jefferson, A Bill for Proportioning Crime and Punishments in Cases Heretofore Capital (1776-1786), Papers of Jefferson, 2: 492-507.

Pennsylvania was one state that led the way in more humane forms of punishment, sure not to violate the Constitution’s prohibition against cruel and unusual punishment. Pennsylvania, throughout the 1780s and 1790s enacted laws that “abolished all bodily punishments such as burning in the hand and cutting off the ears and ended the death penalty for all crimes except murder.” Gordon Wood, Empire of Liberty, 493 (internal quotations omitted).

Ultimately, these developments led to the development of the penitentiary, a uniquely American concept that is ubiquitous in contemporary American society. A British traveler in 1806, observing an American penitentiary commented that the penitentiary is “happily adapted to the genius of the government of the country, mild, just, and merciful.” Id. at 495.

Nonetheless, these early years of the development of the criminal justice system carry many legacies forward to today. The federal government and 31 states still allow capital punishment, however, it is considerably more rare than the earliest days of the Republic, as described. The movement toward more lenient punishment has been embraced by parts of Europe and other parts of the world, who have seemed to conclude that capital punishment does not serve as a strong enough deterrent to be relied on and is too humane to be justified.

Americans have strong views on the subject, which are divisive and often debated. Even in the campaign for 2016, Hillary Clinton has made comments about capital punishment, which has divided Democratic supporters. New York Times, Death Penalty Could Provide Debate Fodder for Hillary Clinton and Bernie Sanders, Oct. 30, 2015, available at http://www.nytimes.com/politics/first-draft/2015/10/30/death-penalty-could-provide-debate-fodder-for-hillary-clinton-and-bernie-sanders/?_r=0.

One thing is clear, however: America has deep roots in using capital punishment. Some will always believe that reforming criminals is impossible, whether that is because of mental illness, environmental factors, or otherwise. Others believe that reformation is possible for anybody, citing the numerous examples of criminals who reformed themselves while in prison to go on and do extraordinary things with their lives.

Regardless of where most individuals fall on that spectrum of justification, capital punishment continues to exist in a limited set of circumstances. Other punishments have been abandoned in favor of imprisoning criminals. As policymakers grapple with these issues, remembering the beginnings of punishment in America and the ineffective nature of those harsh punishments would likely be valuable.

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