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0091-4169/16/10603-0405 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 106, No. 3 Copyright © 2017 by Erin E. Braatz Printed in U.S.A.

405

CRIMINAL LAW

THE EIGHTH AMENDMENT’S MILIEU: PENAL REFORM IN THE LATE

EIGHTEENTH CENTURY

ERIN E. BRAATZ*

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic. It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe. Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields

* Law Clerk to the Honorable Juan R. Torruella, United States Circuit Court for the First Circuit, 2016-2017; Ph.D., New York University; J.D., New York University School of Law; B.A., Northwestern University. Thanks to David Garland, John Infranca, and Bill Nelson for their helpful conversation and comments.

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important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

TABLE OF CONTENTS

INTRODUCTION ……………………………………………………………………………… 406 I. HISTORY OF THE EIGHTH AMENDMENT AT THE SUPREME COURT …….. 412

A. The Textual Approach ……………………………………………………… 413 B. The Contextual Approach …………………………………………………. 423

II. HISTORY OF EIGHTEENTH-CENTURY PENAL CHANGE …………………… 426 A. Virginia: The Enlightenment and Decreases in Violence ……… 427 B. Massachusetts: Republicanism and the Bloody Code …………… 434 C. Pennsylvania: Civilization and Changing Sensibilities …………. 443 D. The Significance of Late-Eighteenth Century Penal Reform …. 453

III. REFRAMING CONTEMPORARY EIGHTH AMENDMENT STRUGGLES ….. 455 A. Civilization …………………………………………………………………….. 455 B. Progress and Evolution …………………………………………………….. 462 C. Proportionality Versus Cruelty ………………………………………….. 467

CONCLUSION ………………………………………………………………………………… 471

INTRODUCTION

The history of the “cruel and unusual” punishment clause of the Eighth Amendment plays a significant role in the ongoing debate over the Amendment’s meaning and application.1 Those advocating a narrow

1

See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2749 (2015) (Scalia, J., concurring) (arguing that the Court should revisit all Eighth Amendment cases beginning with Trop v. Dulles because those cases have departed from “the historical understanding of the Eighth Amendment”); Harmelin v. Michigan, 501 U.S. 957, 966–82 (1991); Solem v. Helm, 463 U.S. 277, 285–86 (1983) (arguing that the English Bill of Rights embraced the concept of proportionality present in earlier documents such as the Magna Carta); Rummel v. Estelle, 445 U.S. 263, 288–89 (1980) (Powell, J., dissenting) (same); Furman v. Georgia, 408 U.S. 238 passim (1972) (per curiam) (three of the five concurring opinions, as well as the dissent examine the history of the Eighth Amendment); Weems v. United States, 217 U.S. 349, 389– 97 (1910) (White, J., dissenting) (engaging in extensive discussion of the Eighth Amendment’s history in order to refute the majority opinion’s holding that it requires proportionality in sentencing); see also JOHN D. BESSLER, CRUEL & UNUSUAL: THE AMERICAN DEATH PENALTY AND THE FOUNDERS’ EIGHTH AMENDMENT 31–65 (2012) (arguing that Enlightenment authors, especially Cesare Beccaria, greatly influenced the

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interpretation of the Amendment and those promoting a more expansive one each invoke different elements of that history.2 Scholars and Supreme Court justices who support a narrow reading claim to engage in a textual history akin to statutory interpretation.3 Justices taking this approach argue that it limits the Amendment’s protections to forms of bodily punishment and torture considered cruel and unusual in 1791.4 This approach problematically ignores the context out of which the text emerged, even while ultimately relying on a narrow understanding of the form punishments took in the colonies.5

Those who argue for a broader interpretation engage in a more contextual analysis, pointing to the ideas and beliefs held at the time the Amendment was adopted, either concerning the rights of Englishmen generally or the writings of the Enlightenment.6 However, this approach completely ignores the penal context, seemingly conceding the point that punishments in 1791 were more cruel than those found today. Ultimately,

Founders); Charles W. Schwartz, Eighth Amendment Proportionality Analysis and the Compelling Case of William Rummel, 71 J. CRIM. L. & CRIMINOLOGY 378, 378–82 (1980); Deborah Schwartz & Jay Wishingrad, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 BUFF. L. REV. 783, 784–85 (1974) (same).

2 For example, compare Furman, 408 U.S. at 242–45, 254–55 (1972) (Douglas, J.,

concurring) (interpreting history to indicate that the founders were particularly concerned with discrimination), and id. at 259–65 (Brennan, J., concurring) (arguing that the history does not provide much illumination as to the Amendment’s meaning), and id. at 319–23 (White, J., concurring) (finding that the history of the clause “clearly establishes that it was intended to prohibit cruel punishments,” but turning to case law to determine the meaning of cruelty), with id. at 376–78 (Burger, C.J., dissenting) (concluding that the historical record demonstrates that the Founders were only concerned with tortuous punishments).

3 See, e.g., Harmelin, 501 U.S. at 981–85; Weems, 217 U.S. at 389–97 (White, J.,

dissenting); Schwartz, supra note 1, at 378–82. 4

See, e.g., Harmelin, 501 U.S. at 977–81; Weems, 217 U.S. at 389–90, 404 (White, J., dissenting).

5 Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring) (using a history of

changes in how death sentences were carried out in order to advocate for a narrow interpretation of the Eighth Amendment’s protections); Harmelin, 501 U.S. at 268 (referring to the “vicious punishments” occurring at the time of the English Bill of Rights as including “drawing and quartering, burning of women felons, beheading, disemboweling, etc.” and as being “common”); Weems, 217 U.S. at 390 (defining the punishments addressed by the “cruel and unusual” punishments clause of the English Bill of Rights as being “the atrocious, sanguinary and inhuman punishments which had been inflicted in the past upon the persons of criminals”).

6 See, e.g., Solem, 463 U.S. at 285–86 (arguing that the English Bill of Rights embraced

the concept of proportionality present in earlier documents such as the Magna Carta); Rummel, 445 U.S. at 289 (Powell, J., dissenting) (same); BESSLER, supra note 1, at 31–65 (arguing that Enlightenment authors, especially Cesare Beccaria, greatly influenced the Founders); Schwartz & Wishingrad, supra note 1, at 784–85 (same).

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neither approach has convincingly established why such an Amendment would be considered important enough to include in the Bill of Rights, much less what it was intended to capture.

The picture that emerges from the Supreme Court’s treatment of the history of the Eighth Amendment is that either the penal methods used in the past are of little importance, or the only thing worth knowing about penal form historically is that it was tortuous and cruel.7 This Article, in contrast, demonstrates that penal form and the changes it was undergoing at the end of the eighteenth century is highly relevant in interpreting the Eighth Amendment. The attempts at experimentation that occurred during this period make clear that the underlying concern leading to the Eighth Amendment’s adoption was not horrible past punishments per se, but rather the need to adopt punishments in keeping with republican (and as will be seen “civilized”) government.8 The precise content of what this meant was subject to debate, and yet some key assumptions regarding the desirability of reform were largely shared across the lines of contention.9 This history has not hitherto been examined in the context of the meaning of the Eighth Amendment and it sheds important light on how attempts at penal reform in the new republic may have informed understandings of that Amendment.

The changes that had occurred between seventeenth-century England (also known as the Stuart Period of English history) and the American Revolution were understood at the time in terms of cultural progress and increasing civilization.10 The American republic was seen as a new pinnacle along a continuum of progress, but not as the end point of that progression.11 Indeed, the various local-level experiments in criminal law reform that occurred between the time of the Revolution and the adoption of the Bill of Rights suggest that the one thing the Founding Generation could be sure of is that they did not know the final form the reform of the criminal laws would take.12 Thus, in order to understand the meaning of the Eighth

7

Compare Solem, 463 U.S. at 285–86 (containing no examination of punishments used in historical context), with Baze, 553 U.S. at 97 (Thomas, J., concurring) (arguing that the Eighth Amendment is only intended to prohibit “tortuous punishments”).

8 See discussion infra Part II.C.

9 BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 28–29

(1967) (identifying Cesare Beccaria and his notions of a more enlightened penal practice as one of a handful of thinkers embraced by loyalists and patriots alike).

10 See infra Part II.A and C.

11 See infra Part II.B.

12 See infra Part II.D. Bernard Bailyn argues that the important experiments with

republican ideology at the local level prior to the Constitution and Bill of Rights mark the second phase of the ideological development of the American Revolution. The various attempts at criminal law reform that occurred within the states traced in Part II, infra, can

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Amendment, it is not enough to acknowledge changes that had already occurred at the time of the Revolution or the adoption of the Bill of Rights, rather it is necessary to understand the place of these changes within a larger narrative of what the American republic was understood by the Founding Generation to be achieving at its creation.

By focusing narrowly on the specific words of the Eighth Amendment, the Court’s historical inquiry has tended to treat particular penal methods in a rather static way—as though the only distinction that can be drawn is between the so-called “Stuart horrors” of the seventeenth century and eighteenth-century penal practice.13 In contrast, various scholars have argued that the shift in penal policy during this period was both gradual and wide-ranging, and, in the words of Louis Masur “embodied the triumph of new sensibilities and the reconstitution of cultural values throughout the Western world.”14 The Eighth Amendment was not an end point within this far-ranging development, rather it took form at a particular historical moment within the arc of a deeper cultural change.15

This Article departs from previous histories of the Eighth Amendment by drawing on the now considerable histories of criminal law and penal reform in the late eighteenth century. These histories are sufficiently detailed to permit a “thick description”16 of the debates and concerns regarding the criminal law and punishment that occurred at the time the Eighth Amendment was drafted and adopted. At the time of the Eighth Amendment’s drafting, vibrant debates were occurring regarding the form punishment should take within a civilized society and as an aspect of republican governance.17 The history of penal reform outlined in Part II

thus be seen as part of this larger attempt to remake local institutions into a form more fitting with the image of the new republic. At the same time, these local level reforms in turn shaped how governance would be structured and thought about in the new republic. BAILYN, supra note 9, at vii.

13 See, e.g., Baze v. Rees, 553 U.S. 35, 94, 97 (2008) (Thomas, J., concurring) (arguing

that “[t]he Eighth Amendment’s prohibition on the ‘inflict[ion]’ of ‘cruel and unusual punishments’ must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights” and concluding that “the Eighth Amendment was intended to disable Congress from imposing tortuous punishments”).

14 LUIS P. MASUR, RITES OF EXECUTION: CAPITAL PUNISHMENT AND THE

TRANSFORMATION OF AMERICAN CULTURE, 1776–1865, at 3 (1991). 15

See infra Part II.D. 16

To perform a “thick description” is to “engage with the frameworks of meaning within which social action takes place.” DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL THEORY 193 (1990). The term is best elucidated by CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF CULTURES 3 (1973).

17 See discussion infra Part II.

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demonstrates that the Eighth Amendment must be understood to prohibit more than a narrowly defined group of outdated penalties. Rather, it captures an understanding about the fact and process of historical change.18

This paper goes beyond a history of the ideas that help us understand the fact and process of penal reform, however. At the time the Eighth Amendment was adopted, there was a shift occurring in individual sensibilities with regard to interpersonal violence and the site of physical infliction of pain.19 The impact of this “way of feeling,” which is both socially and historically determined, can be seen in Justice Scalia’s admission that there is a limit to originalism when it comes to the Eighth Amendment.20 While arguing for an originalist approach to constitutional interpretation, Scalia conceded that although whipping would not have been constitutionally suspect in 1791, he would have difficulty “upholding a

18

Although I am not myself an originalist, this does not mean that the argument here is irrelevant to its adherents. My argument is most akin to that advanced by Paul Freund when he asserted with regard to habeas corpus that “there is involved in such institutions or practices a dynamic element which itself was adopted by the framers. . . . The organic element in an institution ought to be taken into account . . . .” Paul A. Freund, Discussion of William Hurst, The Role of History, in SUPREME COURT AND SUPREME LAW 59, 61 (Edmond Cahn ed., 1954). Attempting to understand the meaning of cruel and unusual by focusing on those practices that would meet that definition in 1791 misses the larger import of the phrase which, I argue, was meant to capture the dynamism of penal reform in the late-eighteenth century.

19 J.M. BEATTIE, CRIME AND THE COURTS IN ENGLAND 1660–1800, at 111–12 (1986)

(finding a reduction in prosecutions for murder and manslaughter in Surrey, England between 1660–1800, and arguing that this indicates “a developing civility, expressed perhaps in a more highly developed politeness of manner and a concern not to offend or to take offense, and an enlarged sensitivity toward some forms of cruelty and pain”); PIETER SPIERENBURG, THE SPECTACLE OF SUFFERING: EXECUTIONS AND THE EVOLUTION OF REPRESSION: FROM A PREINDUSTRIAL METROPOLIS TO THE EUROPEAN EXPERIENCE 200–01 (2008) (arguing that changes in the form of executions throughout Europe indicate a “fundamental change in sensibilities which set in after the middle of the eighteenth century” and ultimately led to the privatization of executions and narrowing of the capital codes).

20 David Garland uses “ways of feeling” synonymously with the less popularly well-

known term “sensibilities.” GARLAND, supra note 16, at 213. He also uses the terms “emotions” and “structures of affect,” all in an attempt to describe “[t]he range and refinement of the feelings experienced by individuals, their sensitivities and insensitivities, the extent of their emotional capacities, and their characteristic forms of gratification and inhibition.” Id. He argues that “[t]he question of how sensibilities are structured and how they change over time is important . . . because it has a direct bearing upon punishment,” in part because “crime and punishment are issues which provoke an emotional response on the part of the public and those involved.” Id. “[T]o the extent that punishment implies the use of violence or the infliction of pain and suffering, its deployment will be affected by the ways in which prevailing sensibilities differentiate between permissible and impermissible forms of violence, and by cultural attitudes towards the sight of pain.” Id. at 214.

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statute that imposes the punishment of flogging.”21 This is a statement that relies on a way of feeling that is clearly separate from the Justice’s views of how history determines the Eighth Amendment’s application. This sensibility has itself been shaped over time. The history examined in Part II thus seeks to explore how the Founding Generation thought about penal change and its place within the creation of the American republic on an intellectual level, as well as shifts and changes that were occurring at the level of emotional responses to physical suffering and argues that both are relevant to understanding the original meaning of the phrase “cruel and unusual.” This Article will argue that it was this process of changing sensibilities that was embodied in the Eighth Amendment, and that rather than ossifying the sensibilities of the late seventeenth century, the Amendment captured the belief that sensibilities would and should develop and change over time.

Ultimately, this Article highlights two very different ways of determining the meaning of a phrase. One approach, which is most prevalent in the Supreme Court’s decisions, is formalistic, focused narrowly on instances in the historical record where the precise words in question appear, even while ultimately relying on an interpretation of their application at one moment in time. The other seeks to recreate a world of thought, a system of meaning and a way of feeling out of which a particular phrase arose. My intention in this Article is to show that a historical approach that seeks to fully engage with the context in which a text is created yields insights that other historical approaches neglect. An entire history of thought and meaning surrounded the adoption of the Eighth Amendment, but has largely been overlooked in discussions regarding the application of that Amendment.22 This history sheds important light on the terms of current debates on the Court and in the scholarship over application of the Eighth Amendment.

Moreover, Part III will demonstrate that the history presented in Part II is not only a history of the ideas and influences upon the Founding Generation, it is also the first step in a history of how penal reform and change has been understood throughout the previous two centuries and more. In other words, the history of the intellectual and emotional antecedents of the Founders’ thought is a story about our own antecedents and continues to inform how the Eighth Amendment is interpreted not because of the relatively recent focus on originalism, but because narratives of progress, enlightenment, and civilized understanding, along with actual

21

Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849, 861 (1989). 22

See discussion infra Part III.

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changes in sensibilities, have shaped how justices in the nineteenth, twentieth, and twenty-first centuries have interpreted the Eighth Amendment.23 Understanding this history, separate and apart from the history of the Eighth Amendment, is relevant for clarifying some of the current debates over the Amendment’s application. Though this history is too complex to provide easy answers to current questions, if American jurisprudence is to engage honestly and rigorously with the history of penal changes and reform, then the experiments with and discussions regarding penal reform that occurred in the American colonies following the Revolution, and the continuing impact of the underlying arguments and beliefs, cannot continue to be ignored.

* * * This Article proceeds in three parts. Part I summarizes how the history

of the Eighth Amendment has been told in numerous Supreme Court opinions. Part II then provides a thick description24 of the changes to the criminal law and punishment that were occurring in the colonies following the American Revolution. It explores the transformations those practices underwent in three key states following the Revolution: Virginia, Massachusetts, and Pennsylvania. The reform movements in each are presented as examples of broader cultural, intellectual, and emotional changes that spanned not only the colonies but Europe as well. This Part recreates the milieu out of which the Eighth Amendment emerged. It argues that a confluence of various strains of thought, previously unexplored in the literature on the Eighth Amendment, created a particular attitude towards penal change that can be linked to broader ideas regarding civilization and progress, as well as the very specific place of the new American republic within that narrative. Part III then explores some implications of this revised history for current debates regarding the meaning and application of the Eighth Amendment. It examines how the Supreme Court has relied on the concepts of civilization, progress, and proportionality examined in Part II to interpret penal change and how the history of those concepts themselves sheds light on their current application and meaning.

I. HISTORY OF THE EIGHTH AMENDMENT AT THE SUPREME COURT

This Part traces how the history of the Eighth Amendment has been debated within Supreme Court cases. The first section discusses opinions

23

See discussion infra Part III. 24

See GEERTZ, supra note 16, at 3.

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that profess to rely on the textual history of the Eighth Amendment.25 This approach purports to focus narrowly on discussion in the historical record of the clauses’ specific words and tends to yield an interpretation of the Eighth Amendment that limits the scope of its protections. The second section examines various approaches to the history of the Eighth Amendment that claim to support a more expansive view of the Eighth Amendment’s application. The Supreme Court opinions that embrace this approach view the relevant history more broadly than those embracing a textualist approach by examining, albeit in a limited way, the context of the Eighth Amendment’s adoption.26 However, this approach largely ignores questions of penal change, which was a subject of vigorous debate at the time of adoption, a debate in which many Founders participated.27 Indeed, we will see that in practice both approaches share key assumptions about penal form at the time of the adoption of the Bill of Rights. By failing to engage with the broader history of penal change, I conclude, neither approach can provide an adequate explanation for how it was that any specific punishment came to be seen as cruel and unusual, nor why a prohibition against cruel and unusual punishments was important enough to include in the Bill of Rights.

A. THE TEXTUAL APPROACH

Those justices that take a textualist approach to the Eighth Amendment purport to focus on instances in the historical record when the term “cruel and unusual” is specifically used. This takes them back to the origin of the wording of the Eighth Amendment in the English Bill of Rights, adopted in

25

Part I.B refers to this approach as the “textualist” approach, borrowing from the following definition provided by Justice Scalia: “The theory of originalism treats a constitution like a statute, giving the [C]onstitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Justice Antonin Scalia, Speech at Catholic University of America: Judicial Adherence to the Text of our Basic Law: A Theory of Constitutional Interpretation (Oct. 18, 1996) (transcript available at http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation. shtml).

26 For a description of contextualism as an approach to intellectual and legal history, see

William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1068–69, 1076–79 (1997).

27 See infra Part II passim.

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1689 following the Glorious Revolution of 1688.28 From there, they examine the adoption of the clause in various state bills of rights, discussions over the need for a bill of rights in the Constitutional Conventions and debate over the Eighth Amendment in the First Congress.29 Although this approach claims to limit itself to textual references, its basic premise that the meaning of cruel and unusual became fixed in 1791 forces the justices using this method to ultimately depend on a conception of what punishments were in use in the seventeenth and eighteenth centuries. For this reason, the relevant history examined by the textualists ultimately goes beyond the specific terms used in the Amendment, and examines some portion of the intellectual and social history of the period. The opinions of three justices exemplify this approach, Justice White, writing in dissent in Weems v. United States30; Justice Scalia, whose interpretation of the history of the Eighth Amendment is most fully articulated in Harmelin v. Michigan31; and Justice Thomas, whose concurring opinion in Baze v. Rees32 most clearly demonstrates how far from the text the justices taking this approach have ultimately strayed.33

Before we examine these opinions, however, it is necessary to set out some of their background. A focus on what punishments would have been considered cruel in the eighteenth century originated long before the more recent debates over history and constitutional interpretation. Graphic descriptions of past punishments created a baseline against which contemporary penal measures were compared in the few nineteenth-century

28 Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original

Meaning, 57 CAL. L. REV. 839, 852–53 (1969). The relevant wording is: “That excessive baile ought not to be required nor excessive fines imposed nor cruell and unusuall punishments inflicted.” The Bill of Rights, 1 Will. & Mar. sess. 2, c. 2. (1688); see also Harmelin v. Michigan, 501 U.S. 957, 969 (1991) (quoting more extensively from the English Bill of Rights, including the preamble listing the harms the Bill of Rights was drafted to address).

29 See Baze v. Rees, 553 U.S. 35, 97–99 (2008) (Thomas, J., concurring); Harmelin v.

Michigan, 501 U.S. 957, 975–85 (1991) (Scalia, J., concurring); Weems v. United States, 217 U.S. 349, 394–98 (1910) (White, J., dissenting).

30 217 U.S. at 382–413.

31 501 U.S. at 966–75.

32 553 U.S. at 94–107.

33 While I focus here on how these opinions have a narrow view of penal form at the

time of the adoption of the Bill of Rights, John Stinneford argues that they also have an overly simplified approach to the terms “cruel” and “unusual,” respectively. See generally John Stinneford, The Original Meaning of “Cruel,” 105 GEO. L.J. 441; John Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739 (2008). The approach taken here differs in arguing that the meaning of the phrase “cruel and unusual” can be more fully understood if it is read against the background of debates and discussions over penal reform in the new republic.

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opinions that considered the meaning of the Eighth Amendment.34 For example, Wilkerson v. Utah35 involved a question over the constitutionality of a method of punishment (firing squad).36 In its opinion, the Court referenced the methods of execution discussed by Blackstone37 and concluded:

[Blackstone] admits that in very atrocious crimes other circumstances of terror, pain, or disgrace were sometimes superadded. Cases mentioned by the author are, where the prisoner was drawn or dragged to the pace of execution, in treason; or where he was emboweled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female.

38

From this description of previously available punishments, the Court derived the principle that “it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.”39

34 O’Neil v. State of Vermont, 144 U.S. 323, 339 (1892) (Fields, J., dissenting); In re

Kemmler, 136 U.S. 436, 446 (1890); Wilkerson v. Utah, 99 U.S. 130, 135 (1878). Numerous state court decisions similarly found “cruel and unusual” provisions in state law to only apply to “a punishment that disgraced the civilization of former ages and made one shudder with horror to read of it.” LARRY CHARLES BERKSON, THE CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT 9 (1975) (citing People v. Morris, 80 Mich. 634, 637 (1890); Whitten v. State, 47 Ga. 297, 301 (1872); State v. Manuel, 20 N.C. 20, 36 (1838)). The graphicness of their descriptions evokes the work of Karen Halttunen, who argued that over the course of the nineteenth century, murder narratives in popular fiction increasingly contained “deliberate use of pain and horror to generate readers’ pleasure, the peculiar ‘dreadful pleasure’ of imaginatively viewing terrible scenes of violent death.” KAREN HALTTUNEN, MURDER MOST FOUL: THE KILLER AND THE AMERICAN GOTHIC IMAGINATION 61 (1998). She argues that this was a result of a “revolution in sensibility we may call humanitarian, which in shaping dramatically new responses to pain and death gave rise to a pornography of violence that both fed a new taste for body-horror, and confirmed the guilt attached to that taste.” Id. at 62. This “revolution in sensibility” is discussed infra Part II.A and C. For our purposes, the significance of Halttunen’s point is simply that because public infliction of pain was no longer acceptable (for example, public executions were almost entirely abolished by the mid- nineteenth century), the graphic descriptions of past punishments were used in these opinions as a means of reveling in past horror, while emphasizing the restraint of modern sensibilities that reject such practices.

35 99 U.S. 130 (1878).

36 Id. at 130.

37 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 370–71 (1979).

(“Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment, to be met with in criminal codes of almost every other nation in Europe.”).

38 Wilkerson, 99 U.S. at 135. The opinion also cites Archbold’s treatise for examples “of

such legislation in the early history of the parent country,” though specific examples are not cited. Id.

39 Id. at 135–36.

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The Court in In re Kemmler,40 which concerned the constitutionality of electrocution as a method of execution, continued in this vein, pointing to punishments that “were manifestly cruel and unusual, [such] as burning at the stake, crucifixion, breaking on the wheel, or the like.”41 The consequences of focusing on these outmoded forms of punishment are made clear by the Court’s conclusion that “[p]unishments are cruel when they involve torture or a lingering death. . . . It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”42 While debate over the history of the Eighth Amendment expanded during the twentieth and twenty-first centuries, this tendency to reduce understanding of past punishments to graphic lists of extreme penalties continues to influence understanding of the meaning “cruel and unusual.”

The first justice to support a narrow interpretation using the Eighth Amendment’s own history, rather than a limited history of penal form, was Justice White who dissented in Weems.43 The majority held that the punishment in question44 was disproportionate to the offense and therefore in violation of the “cruel and unusual punishments” clause.45 Justice White, in contrast, focused on the history of the Eighth Amendment to argue that it

40

136 U.S. 436 (1890). 41

Id. at 446. 42

Id. at 447. 43

217 U.S. 349, 382–413 (1910) (White, J., dissenting) (rejecting a reading of the Eighth Amendment that would embrace the concept of proportionality and instead limiting his interpretation of that Amendment’s application to punishments that were considered cruel and unusual in 1689 when the English Bill of Rights was adopted).

44 Weems was an employee of the United States government in the Philippines and was

accused of falsifying official documents, namely by “entering as paid out, ‘as wages of employees of the Light House Service of the United States Government of the Philippine Islands,’ at the Capul Light House, of 208 pesos, and for like service at the Matabriga Light House of 408 pesos, Philippine currency.” Id. at 357–58. For this offense, Weems was sentenced “‘[t]o the penalty of fifteen years of Cadena, together with the accessories of section 56 of the Penal Code, and to pay a fine of four thousand pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to pay the costs of this cause.’” Id. at 358. “[T]hose sentenced to cadena temporal and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.” Id. at 364. Also included were certain civil penalties, including permanent disqualification from public office and “subjection to surveillance” of the public authorities for life. Id. Weems challenged his conviction on numerous grounds, including an allegation that his sentence violated a provision of the American government’s treaty with the Philippines Islands, which was identical to the Eighth Amendment of the U.S. Constitution. Id. at 367– 68.

45 Id. at 380–81.

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did not include a proportionality principle.46 He made this argument by tracing the wording of the Eighth Amendment back to a nearly identical provision in the English Bill of Rights of 1689.47 The full contours of Justice White’s analysis of the history of the “cruel and unusual clause” in the English Bill of Rights are not directly relevant; what is of interest is his definition of cruel and unusual punishments within the meaning of that document.48 Justice White argued that the meaning of the Eighth Amendment was limited to the meaning of the same phrase in the English Bill of Rights.49 According to Justice White, the term “cruel” in the English Bill of Rights referred to punishments that “were the atrocious, sanguinary, and inhuman punishments which had been inflicted in the past upon the persons of criminals.”50 These punishments were “such as disgraced the civilization of former ages, and made one shudder with horror to read of them, as drawing, quartering, burning, etc.”51 While seventeenth-century English punishments would make “one shudder with horror,” Justice White went on to remark that, during the period between the adoption of the English Bill of Rights and the American Revolution, “‘[t]he severity of the criminal law [in England] was greatly increased . . . [and] there can be no doubt that the legislation of the eighteenth century in criminal matters was severe to the highest degree, and destitute of any sort of principle or system.’”52 This account thus portrays English penal practice as going from bad to worse. However, Justice White goes on to argue that in America, this type of punishment had largely become irrelevant by the time the American Bill of Rights was adopted because by then, “as a rule, the cruel

46

Id. at 389–99. 47

Id. at 389–96. 48

Id. at 406. Debate over the meaning and relevance of the related provision in the English Bill of Rights has been extensive; see, e.g., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 279 (1998); IRVING BRANT, THE BILL OF RIGHTS: ITS ORIGIN AND MEANING 134–58 (1965); LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 231–37 (1999); ROBERT ALLEN RUTLAND, THE BIRTH OF THE BILL OF RIGHTS, 1776–1791 at 1–6, 9 (1955); BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND: A HISTORY OF THE AMERICAN BILL OF RIGHTS 21–23 (1977); Granucci, supra note 28, at 852–60; Schwartz, supra note 1, at 378–82.

49 Weems, 217 U.S. at 394–95.

50 Id. at 390.

51 Id. at 404; see also id. at 409 (discussing how “the word cruel, as used in the

Amendment, forbids . . . [the infliction of] unnecessary bodily suffering through a resort to inhuman methods for causing bodily torture, like or which are of the nature of the cruel methods of bodily torture which had been made use of prior to the bill of Rights of 1689”).

52 Id. at 393 (quoting 1 JAMES FITZJAMES STEPHEN, HISTORY OF THE CRIMINAL LAW OF

ENGLAND 470–71 (1883)).

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bodily punishments of former times were no longer imposed.”53 We will see in Part II that this portrayal of past punishments relies upon a caricature of the past, as containing punishments that were simultaneously cruel and torturous while also largely disappearing from the American colonies in the eighteenth century. Justice White’s argument in Weems, lacks a deep analysis of the relevant historical context and the changes they did or did not undergo in the intervening century. Instead, while purporting to trace the text and its meaning, this account ultimately relies on expressions of “horror” and short lists of extreme punishments.

While Justice White used the Eighth Amendment’s origin in the English Bill of Rights to justify a narrow interpretation that limited the Amendment’s protections to the types of cruel bodily punishments imposed in England at the time, Justice Scalia ultimately argued that this history is largely irrelevant because what mattered was what the drafters of the Bill of Rights thought the words meant.54 He focused on statements and events in late eighteenth-century America to distill the meaning of “cruel and unusual punishments.”55 He started by examining the wording of the clause itself, which does not mention proportionality, even though certain state constitutions did explicitly require proportionality in punishments.56 Here, Justice Scalia engaged in a classic form of statutory construction: pointing to similar earlier documents that do use the term in order to demonstrate that the drafters of the text in question did not intend to include said term.57 Next, Justice Scalia pointed to what he termed “contemporary understanding,” which he found in the statements made during the constitutional conventions, the debate over the Bill of Rights in the First Congress, the actions of the First Congress and early commentary on the clause, and nineteenth-century court decisions interpreting this or similar state provisions.58

53

Id. at 395. He also stated that “judges, where moderate, bodily punishment was usual, had not, under the guise of discretion, directed the infliction of such punishments to so unusual a degree as to transcend the limits of discretion and cause the punishment to be illegal.” Id.

54 Harmelin v. Michigan, 501 U.S. 957, 966–75 (1991).

55 Id. at 977–81.

56 Id. at 977–79 (Justice Scalia cites the following state constitutional provisions

adopted before the Bill of Rights: N.H. BILL OF RIGHTS of 1784, art. XVIII (“[A]ll penalties ought to be proportioned to the nature of the offence.”); S.C. CONST. of 1778, art. XL (“punishments should be in general more proportionate to the crimes”); PA. CONST. of 1776, § 38 (same).). Justice Scalia’s historical approach in this opinion is focused on rejecting any notion of proportionality. This concept will be explored in more detail in the next part.

57 See id. at 977–81.

58 Id. at 978–85.

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Turning first to the constitutional conventions, the question of a protection against cruel and unusual punishments only arose twice.59 During the Massachusetts Convention, Mr. Holmes argued that without a Bill of Rights, Congress was nowhere restrained from imposing “the most cruel and unheard-of punishments . . . and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.”60 During the Virginia Convention, Patrick Henry made an impassioned plea that a Bill of Rights was required to prevent Congress from permitting torture.61 From these statements, Justice Scalia concluded that the drafters of the Eighth Amendment were narrowly focused on methods of punishment and the only methods they found to be cruel and unusual were those akin to torture.62

Next, Justice Scalia turned to the actions of the First Congress, which “punished forgery of United States securities, ‘run[ning] away with [a] ship or vessel, or any goods or merchandise to the value of fifty dollars,’ treason, and murder on the high seas with the same penalty: death by hanging.”63

59

See id. at 977–80. 60

2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 111 (2d ed. 1901).

61 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 445–48 (2d ed. 1901). 62

Harmelin, 501 U.S. at 979–83. This argument that the drafters were concerned only with methods of punishment was first made by Anthony Granucci in an influential article on the Eighth Amendment. Granucci, supra note 28, at 842–47. Although the heart of his article focused on the meaning of the same provision in the English Bill of Rights, he first argued that the Founders were concerned about preventing certain methods of punishment and that in so doing they actually misunderstood the true meaning of the English Bill of Rights. Id. Granucci has been cited in eight Supreme Court cases: Harmelin, 501 U.S. at 968, 973 n.4, 974–75 n.5, 979; Id. at 1011 n.1 (White, J., dissenting); Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 289, 294 (1989) (O’Connor, J., concurring in part and dissenting in part); Solem v. Helm, 463 U.S. 277, 312 n.5 (1983) (Burger, C.J., dissenting); Rummel v. Estelle, 445 U.S. 263, 287, 289 (1980) (Powell, J., dissenting); Ingraham v. Wright, 430 U.S. 651, 664 n.29, n.31 (1977); Estelle v. Gamble, 429 U.S. 97, 102 (1976); Gregg v. Georgia, 428 U.S. 153, 169 (1976); Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J., concurring); Id. at 242 n.2 (Douglas, J., concurring); Id. at 316 n.5, 318–19 n.11, n.13–15 (Marshall, J., concurring); Id. at 376 n.2 (Burger, C.J., dissenting); Id. at 419 n.3 (Powell, J., dissenting). This line of argumentation has not gone unanswered. The fullest response came in Justice Brennan’s opinion in Furman, which concluded that:

It does not follow, however, that the Framers were exclusively concerned with prohibiting torturous punishments. Holmes and Henry were objecting to the absence of a Bill of Rights, and they cited to support their objections the unrestrained legislative power to prescribe punishments for crimes. Certainly we may suppose that they invoked the specter of the most drastic punishments a legislature might devise.

Furman, 408 U.S. at 260 (Brennan, J., concurring). 63

Harmelin, 501 U.S. at 980–81 (quoting 1 Stat. 114 (1790)).

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Justice Scalia contrasted the federal punishments with two contemporary documents that pointed to an alternative approach.64 The first was the New Hampshire Constitution, which required proportionality in punishments and defined proportionality in a limited way: “‘[n]o wise legislature’—that is, no legislature attuned to the principle of proportionality—‘will affix the same punishment to the crimes of theft, forgery and the like, which they do to those of murder and treason.’”65 He also pointed to Thomas Jefferson’s Bill For Proportioning Crimes and Punishments, which “punished murder and treason by death; counterfeiting of public securities by forfeiture of property plus six years at hard labor, and ‘run[ning] away with any sea- vessel or goods laden on board thereof’ by treble damages to the victim and five years at hard labor.”66 Because the legislation passed by the First Congress did not similarly explicitly embrace proportionality, and instead relied upon the death penalty as a punishment for a range of offenses, Justice Scalia concluded that the Founders did not interpret the Eighth Amendment to include a requirement of proportionality.67 Missing from this analysis is any of the contemporary discussions regarding the need for penal reform (which was widely accepted) and the various attempts that were being made at this time to devise revised criminal codes that would allow for more republican or civilized modes of punishing.68 Jefferson’s bill was rejected by the Virginia legislature and, as will be seen in Part II, although there were various state level experiments with hard labor occurring at this time, none were advanced enough to serve as a model for the newly formed federal government.69

Justice Scalia also cited two nineteenth-century commentators whose arguments as to what constitutes cruel punishments resemble those found in the nineteenth-century cases: “the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion” and “[t]he various barbarous and cruel punishments inflicted under the laws of some other countries. . . . Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death.”70 Thus, even while Justice Scalia’s opinion attempted to rest upon

64

Id. at 980. 65

Id. (quoting N.H. CONST., pt. I, art. XVIII (1784)). 66

Id. (quoting 1 THOMAS JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 220–22, 229–31 (Albert Ellery Bergh eds., 1905)). This bill is discussed infra Part II.A.

67 Id. at 980–81.

68 See infra Part II.

69 See infra Part II.

70 Harmelin, 501 U.S. at 981 (quoting JAMES BAYARD, A BRIEF EXPOSITION OF THE

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purely textual analysis, there is interspersed within it discussion of penal form in the early American republic (though focused entirely on the First Congress with no examination of state-level experiments) and of punishments centered around racks, gibbets, maiming, mutilation, and torture.71 His textual analysis thus demonstrates the limits of that approach, requiring as it does some attention to the surrounding society and the beliefs and understandings that were common at the time. Once one turns to society to understand penal form, however, it is not clear what principle limits the examination to penal form, rather than expanding the inquiry to embrace penal reform, including why and how it is occurring.

The opinion that most openly embraces this approach’s reliance upon conceptions of past penal practices is Justice Thomas’s concurrence in Baze, which like Justice White in Weems, and Justice Scalia in Harmelin, provides a very narrow reading of the Eighth Amendment’s protections.72 Baze involved a challenge to Kentucky’s use of lethal injection.73 Justice Thomas began his historical analysis by arguing that the “cruel and unusual” punishments clause of the Eighth Amendment “must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights.”74 The “historical practices” that he examined, however, all focus on changes in the implementation of the death penalty.75 He argued that while death by hanging was the most common form of execution, there were additional “tools” used to “‘intensify[] a death sentence.’”76 He then cited examples, including burning at the stake, “‘gibbeting,’ or hanging the condemned in an iron cage so that his body would decompose in public view,” public dissection and “the worst fate a criminal could meet . . . ‘embowelling alive, beheading, and quartering.’”77 He then emphasized the content of this last punishment by quoting a death sentence imposed on seven men convicted of high treason (no date is given):

CONSTITUTION OF THE UNITED STATES 154 (2d ed. 1840) (referring to “improved spirit of the age,” which led to adoption of Eighth Amendment) and BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 186 (1832) (stating that “some other countries” in question “profess not to be behind the most enlightened nations on earth in civilization and refinement”)).

71 Id.

72 553 U.S. 35, 94–97 (2008) (Thomas, J., concurring).

73 Id. at 41.

74 Id. at 94.

75 Id. at 95–96.

76 Id. at 95 (quoting STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 54

(2002)). 77

Id. at 95–96 (quoting BANNER, supra note 76, at 72–74; BLACKSTONE, supra note 37, at 376).

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That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters, to be at the King’s disposal. And God Almighty have mercy on your souls.

78

Justice Thomas proceeded to argue that these forms of aggravated capital punishment had “‘dwindled away’” by the late eighteenth century and therefore would have qualified as “unusual” at the time the Eighth Amendment was adopted.79 He therefore used this graphic description of a punishment that would have been “unusual” in 1789 to support the conclusion that the Eighth Amendment was intended to capture only “tortuous punishment.”80 Absent is any discussion of the use of these penalties in the American colonies or any examination of broader changes penal practices in the colonies may have undergone.

Thus, while Justice Thomas’s decision in Baze differs from the examples we saw in Justice White’s opinion in Weems, or Justice Scalia’s opinion in Harmelin in that he provided some contextual examination of penal practices in England and, to a lesser extent, in the colonies, his opinion ultimately rests upon a conception of past penal practices that focuses entirely on graphic descriptions of their violence. By limiting his examination to the changes in execution form that occurred between seventeenth-century England and late eighteenth-century America, Justice Thomas’s opinion in Baze, arrives at a very narrow conception of penal

78

Baze v. Rees, 553 U.S. 35, 96 (2008) (quoting GEORGE R. SCOTT, THE HISTORY OF CAPITAL PUNISHMENT 179 (1950)).

79 Id. at 97 (citing STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 70

(2012)). 80

Id. Although not directly relevant to the history of the Eighth Amendment, some justices have sought to argue the irrelevance of this history that relies on histories of previous types of punishment to define the meaning of cruel and unusual. Justice Brennan in Furman points to earlier cases that “proceeded primarily by ‘looking backwards for examples by which to fix the meaning of the clause.’” Furman v. Georgia, 408 U.S. 238, 264 (1972) (Brennan, J., concurring) (quoting Weems v. United States, 217 U.S. 349, 377 (1910)). He argued that, “[h]ad this ‘historical’ interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights,” and cites to examples of this happening. Id. He begins first with Justice Story, who concludes “that the provision ‘would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct,’” and then Justice Cooley, who said “the Court, ‘apparently in a struggle between the effect to be given to ancient examples and the inconsequence of a dread of them in these enlightened times, . . . hesitate[d] to advance definite views.’” Id. at 265 (internal citations omitted).

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change, both what it entailed and how it occurred.81

B. THE CONTEXTUAL APPROACH

While the textualists rely on a limited examination of past punishments in order to support their narrow interpretation of the Eighth Amendment’s protections, the contextualists seemingly grant this portrayal of past punishments even while arguing that other aspects of colonial society suggest a broader reading of the Eighth Amendment. The first case to suggest looking beyond a narrow focus on the types of punishments used in 1789 to determine the meaning of the phrase “cruel and unusual” was Justice Field, dissenting in O’Neil v. State of Vermont.82 He gestured towards this narrower line of interpretation before arguing that the Eighth Amendment’s application was not limited to such penalties.83 He argued “[t]hat designation [cruel and unusual], it is true, is usually applied to punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like, which are attended with acute pain and suffering.”84 However, while “[s]uch punishments were at one time inflicted in England,” their use ceased with the adoption of the English Bill of Rights.85 Justice Field went on to conclude that “[t]he inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged.”86 In other words, “[t]he whole inhibition is against that which is excessive either in the bail

81

Justice Thomas’s argument also resembles the argument of Michel Foucault in the way it focuses on a dichotomy between modern and pre-modern penalties. See generally MICHAEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., 1977). DISCIPLINE AND PUNISH begins and is in many respects shaped by a similar dichotomous portrayal of penal form. The work opens with a graphic description of the drawing and quartering by French authorities of a would-be regicide. Id. at 3–6. Foucault then contrasts this penalty with the highly regimented (disciplinary) approach taken by penitentiaries in the early nineteenth century. Id. at 6–7. Foucault has been critiqued for this periodization, with numerous scholars arguing that penal change occurred earlier than Foucault suggests and that the process of change was more gradual and less distinct than he is willing to admit. GARLAND, supra note 16, at 157–62. Justice Thomas is thus constitutionalizing a dichotomous approach to penal form (modern/pre-modern; physical/disciplinary) that was suggested by Foucault but that has been closely questioned by later historians.

82 144 U.S. 323, 337–66 (1892).

83 Id. at 339–40.

84 Id. at 339.

85 Id.

86 Id. at 339–40.

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required, or fine imposed, or punishment inflicted.”87 Justice Field thus expanded the scope of the Eighth Amendment by turning both to the idea of penal change, as well as to the concept of proportionality.

Similarly, although Justice White’s dissent in Weems invoked its origin in the English Bill of Rights to narrowly interpret the Eighth Amendment, Justice McKenna’s majority opinion in the same case examined that history, but then broadened the inquiry to consider from what types of abuse those who advocated the Eighth Amendment sought to provide protections. He concluded:

[S]urely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their jealousy of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflict bodily pain or mutilation. . . . [I]t was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts, or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.

88

Thus, while Justice McKenna acknowledged a history of penal practice that contained “exercises of cruelty” and “bodily pain or mutilation,” he invoked a conception of the Founders as “men of action, practical and sagacious” to argue that they must have intended the Amendment to encompass punishments beyond those attributed to the Stuarts.89 At the same time, he provides little historical evidence or analysis to support his understanding.

Justice Douglas’s concurrence in Furman also considered the concerns that likely dominated the Framers’ thoughts in determining the scope of the Eighth Amendment.90 He also traced the Amendment’s origin to the English Bill of Rights and argued that the document “was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature.”91 Similarly, he pointed to abuses of power that were perpetrated during the years immediately prior to the adoption of the English Bill of Rights.92 From this history, Justice Douglas argued for an interpretation of

87

Id. at 340. 88

Weems v. United States, 217 U.S. 349, 372–73 (1910). Justice McKenna later stated: “[A] principle to be vital must be capable of wider application than the mischief which gave it birth.” Id. at 373.

89 Id. at 372–73.

90 Furman v. Georgia, 408 U.S. 238, 255 (1972) (Douglas, J., concurring).

91 Id. at 242.

92 Id. at 246–57. He uses Irving Brant’s The Bill of Rights, its account of the Bloody

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the Eighth Amendment that would prohibit discriminatory applications of punishments:

Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. . . . One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment.

93

Justice Douglas’s opinion, thus focuses on aspects of the historical record that illuminate who was targeted by particular punishments, though he gives no attention or analysis to what those punishments were.

Justice Powell’s majority opinion in Solem v. Helm94 is another example of this attempt to use a broader history of the Amendment’s origin to justify a more expansive interpretation of its application.95 In Solem, Justice Powell argued that the English Bill of Rights embraced “[t]he principle that a punishment should be proportionate,” a principle that was deeply embedded in English constitutional history going back to Magna Carta.96 By incorporating the language of the English Bill of Rights, the drafters of the Eighth Amendment “also adopted the English principle of proportionality” and it was consistently argued that Americans retained “all the rights of English subjects.”97 Justice Powell, thus opened the historical record to include previous understandings of appropriate punishment in England (such as the Magna Carta), along with a broader interpretation of what the drafters of the Eighth Amendment thought that they were doing when they adopted language directly from the English Bill of Rights.98 Absent from his opinion, however, was any discussion of past penal

Assizes and the execution of Sidney to support this argument. See BRANT, supra, note 48, at 154–55. For a similar argument, see Laurence Claus, The Antidiscrimination Eighth Amendment, 28 HARV. J.L. & PUB. POL’Y 119 (2004).

93 Furman, 408 U.S. at 255.

94 463 U.S. 277 (1983).

95 Id. at 284–86.

96 Id. at 284–85.

97 Id. at 285–86.

98 Id. Justice Scalia’s discussion of history in Harmelin was a direct response to Justice

Powell’s opinion in Solem. He summarizes Solem’s approach to history this way: “Thus not only is the original meaning of the 1689 Declaration of Rights relevant, but also the circumstances of its enactment, insofar as they display the particular ‘rights of English subjects’ it was designed to vindicate.” Harmelin v. Michigan, 501 U.S. 957, 966–67 (1991). Justice Scalia views the extra-textual aspects of the history presented in Solem as irrelevant. Id. at 967.

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practice and how it may or may not have exhibited a principle of proportionality.

Thus, while there are examples of justices willing to engage in a more contextual history of the Eighth Amendment, none of these examples engage with the history of punishments in England or America, or the changes these punishments underwent in the early years of the republic. Rather, they seem to concede the point to the textualists and assume that the only thing worth knowing about eighteenth-century penal practice is that it was marked by harshness and cruelty. The next part will demonstrate the limitations of this approach. In order to have a more complete picture of how the Founding Generation thought about penal form and its place in the American republic, it is necessary to look beyond a narrow list of outmoded punishments and examine the entire system of punishments and how they were shifting in America during the decade following the Revolution.

II. HISTORY OF EIGHTEENTH-CENTURY PENAL CHANGE

This Part traces the three most significant state-level experiments in penal reform that occurred in the decade following the end of the American Revolution. Although debates over reform of the colonial penal system began in the years leading up to the Revolution, that event gave new impetus and significance to the discussion.99 In the years following the Revolution, the colonial penal codes would undergo significant transformation. The examples examined in this Part of these changes are significant for a number of reasons. First, the states involved were leaders among the American colonies, as measured by population, economic strength and sources of Founding Fathers. Second, their experiments with penal change were most developed, but they were also representative of reforms that were occurring elsewhere. Third, the experiments of each of these three states served as examples to other states that later attempted similar reforms. Thus, while focus is on these three states, broader trends, practices or experiments elsewhere will be mentioned where relevant.

The first example is actually a failed attempt at reform: Thomas Jefferson’s proposal for a reformed penal code in Virginia. Although this legislation never actually came into effect, debates over some of its more

99

REBECCA MCLENNAN, THE CRISIS OF IMPRISONMENT: PROTEST, POLITICS, AND THE MAKING OF THE AMERICAN PENAL STATE, 1776–1941, at 19 (2008). But see ADAM HIRSCH, THE RISE OF THE PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY AMERICA 47–56 (1992) (arguing that the impact of revolutionary ideology on penal change is more ambiguous than this statement suggests and finding the intellectual antecedents for incarceration in the workhouse and changes occurring in society to be more directly relevant to shifts in penal form that followed the Revolution).

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controversial provisions capture many of the larger debates over penal reform that were occurring in the colonies and in Europe.100 The second focuses on Massachusetts and its attempt at implementing incarceration as an alternative penalty to either death or public, physical chastisement. The third examines Pennsylvania and its experiment with public hard labor, which was quickly abandoned in favor of incarceration. In each, there was vigorous debate over how to reform British penal practice in the new republic (even while the need to reform was largely taken for granted) as Americans began to “redraw[] the political and moral grounds of possibility in the arena of punishment.”101 Moreover, each is representative of discussions and changes occurring elsewhere in the world.102 This broader context will be examined in each section as relevant in order to situate the experiments in penal reform that were occurring in the American colonies with intellectual and cultural debates occurring in Europe at that time. It is only by examining this process of actual penal change that we can begin to understand how the Founding Generation thought about penal reform and how particular punishments might be evaluated as cruel and unusual. Examining penal reform in the early republic indicates that the determination of what punishments were acceptable was a process involving experimentation with new approaches to punishment, rather than a fixed state of affairs.

A. VIRGINIA: THE ENLIGHTENMENT AND DECREASES IN VIOLENCE

Although the example of Virginia represents a failed attempt at reform, the attempt itself and potential reasons for its failure demonstrate the extent of the perceived need for reform, the relevance of Enlightenment thinkers (especially the work of Cesare Beccaria) in attempts to fashion a new penal system, as well as some of the long-term changes in sensibilities regarding

100 Jefferson himself raised concerns regarding these portions of the bill. Letter from

Thomas Jefferson to George Wythe (Nov. 1 1778), FOUNDERS ONLINE, http://founders. archives.gov/documents/Jefferson/01-02-02-0086 (last visited Sept. 4, 2016). Later, Jefferson wrote of the bill’s reception in Europe and the concerns raised by the lex talionis portions of the bill. Katheryn Preyer, Cesare Beccaria and the Founding Fathers, in BLACKSTONE IN AMERICA: SELECTED ESSAYS OF KATHRYN PREYER 69 (Mary Sarah Bilder et al., eds. 2009).

101 Id. at 18.

102 See, e.g., MICHAEL IGNATIEFF, A JUST MEASURE OF PAIN: THE PENITENTIARY IN THE

INDUSTRIAL REVOLUTION 1750–1850 44–79 (1978) (discussing debates over and changes in penal form in England starting in the mid-eighteenth century). See generally PIETER SPIERENBERG, THE PRISON EXPERIENCE: DISCIPLINARY INSTITUTIONS AND THEIR INMATES IN EARLY MODERN EUROPE (1991) (arguing that there was a long-term gradual shift from public physical punishments to imprisonment throughout Europe beginning in the sixteenth century).

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interpersonal and physical violence that impacted how leaders sought to shape both society and the government’s response to criminal acts among its population. The proposed reform of the criminal law in Virginia thus demonstrates the salience of many of the underlying trends and ways of thinking that would impact penal reform elsewhere in the colonies, including the push towards reducing capital codes, advocating proportionality in sentencing, and increasing discomfort with public, physical violence.

Following the Declaration of Independence in 1776, Virginians Thomas Jefferson, George Wythe, and Edmund Pendleton proposed a range of revised laws for their state.103 Jefferson was responsible for drafting the criminal law portion of these revisions and his resulting, “Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,” was completed in 1779.104 However, the legislature delayed considering the bill until 1785.105

The bill embraced a notion of proportionality in punishment and declared that each member of society deserved “a punishment in proportion to his offence” and protection from any “greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.”106 It limited the infliction of capital punishment by hanging to cases of treason and murder.107

103

Kathryn Preyer, Crime, the Criminal Law and Reform in Post-Revolutionary Virginia, 1 LAW & HIST. REV. 53, 56 (1983).

104 Id. at 56–57.

105 Id. at 68.

106 64. A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,

18 June 1779, FOUNDERS ONLINE, http://founders.archives.gov/documents/Jefferson/01-02- 02-0132-0004-0064 (last visited Sept. 4, 2016). The preamble also states various objections to capital punishment including: that “reformation of offenders” should be a goal of punishment; that “exterminate[ion] . . . of their fellow citizens . . . weakens the state by cutting off so many who, if reformed, might be restored sound members to society,” or, whose labors while in prison might be useful to or whose example might prove a deterrence to other criminals. Id. The bill also argues that “cruel and sanguinary laws defeat their own purpose” because people feel reluctant to prosecute or convict knowing the outcome could be death. Id.

107 Id. There was some limited variation in how executions would be carried out

depending on the type of crime. While the typical execution form would be hanging, three additional penalties of death were proscribed: for petty treason (a servant killing his or her master) or murder within a family (husband and wife or parent and child) hanging was to be the penalty with dissection following; for cases of murder by poison, death by poison was to be the penalty and in cases of dueling, the penalty was to be death by hanging, with the body of the challenger gibbeted following death. Execution was to be swift (the next day, unless the next day be Sunday, in which case “on the Monday following”) and both pardons and

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Hard labor “in the public works” became the penalty for a number of formerly capital cases including: manslaughter, counterfeiting, arson, willful destruction of ships or their contents, robbery, burglary, housebreaking, horse stealing, grand larceny, petty larceny, robbery or larceny of bonds, or other obligatory notes, and buying and receiving stolen goods.108 Physical punishments remained for a number of offenses, however, including: rape, polygamy or sodomy, which were to be punished by castration if committed by a man or “if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least;” and maiming or disfigurement, which would result in the offender being “maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury.”109 In addition to the above penalties, the bill provided for various types of forfeiture of property and or restitution to either the victim, the victim’s family, or the Commonwealth.110

Scholars examining Jefferson and his works have tended to accord little importance to this bill, focusing on its reduction in capital crimes and deeming its more directly retributive features as “shocking lapses from humane and liberal standards” in an overall humanitarian piece of legislation.111 There is a tendency to attempt to disaggregate the modern or humane aspects of the bill from the backwards-looking “alarming chinks in its humanity.”112 This treatment begs the question, however, of which aspects are “humane” and which the “shocking lapses.” In tracing these two aspects of the law we can begin to see the transformations that penal law in the new republic was soon to undergo.

Although the bill had numerous influences,113 one of the most prominent was Cesare Beccaria. Beccaria’s Essay on Crimes and Punishment was first published in 1764.114 Among the better-known

privilege of clergy were abolished. Id. 108

Id. 109

Id. 110

Id. 111

MERRILL D. PETERSON, THOMAS JEFFERSON AND THE NEW NATION: A BIOGRAPHY 125 (1970); Preyer, supra note 103, at 57 n.16.

112 PETERSON, supra note 111, at 126.

113 All excellently traced by Kathryn Preyer. See Preyer, supra note 103, at 61–68.

114 Richard Bellamy, Chronology, in BECCARIA: ON CRIMES AND PUNISHMENTS AND

OTHER WRITINGS xxxi (Richard Bellamy, ed., Cambridge Texts in the History of Political Thought 2000). Montesquieu also argued for a need to revise criminal laws and asserted that “terror and severe punishments are only necessary in ‘despotic government.’ In ‘moderate states,’ severe punishment is unnecessary. ‘Civil laws will make corrections more easily and will not need as much force.’” RONALD J. PESTRITTO, FOUNDING THE CRIMINAL LAW:

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aspects of Beccaria’s work are his calls for strict proportionality in punishments,115 their swift application,116 and an end to the death penalty.117 By the 1770s, this work was widely available in the American colonies.118 Beccaria was one of a handful of Enlightenment thinkers that everyone, loyalist and patriots, could agree on.119 His significance can be seen in part, in his ubiquitous presence in the libraries and writings of the Founders.120

In Jefferson’s bill, one can find numerous instances of Beccaria’s influence. The basic principle it attempts to embrace, that punishments should be proportional, is clearly an influence from Beccaria as is its goal to reduce the number of crimes that are capital. Beccaria’s approach can also be seen in the call for swift application of punishments and the abolition of privilege of clergy and pardons. At the same time, nothing in Beccaria’s work called for such a close approximation between crime and punishment as Jefferson’s bill demonstrated in its more retributive, lex talionis, provisions, and it was these aspects of the bill that raised concerns at the time. In submitting the bill to George Wythe, Jefferson himself expressed the concern that:

PUNISHMENT AND POLITICAL THOUGHT IN THE ORIGINS OF AMERICA 78 (2000). See generally David W. Carrithers, Montesquieu’s Philosophy of Punishment, 19(2) HIST. POL. THOUGHT 213 (1998).

115 CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 19 (Richard

Bellamy ed., Richard Davies, trans. 1995) (1764).

It is in the common interest not only that crimes not be committed, but that they be rarer in proportion to the harm they do to society. Hence the obstacles which repel men from committing crimes ought to be made stronger the more those crimes are against the public good and the more inducements there are for committing them. Hence, there must be proportion between crimes and punishments.

Id. 116

Id. at 48. “The swifter and closer to the crime a punishment is, the juster and more useful it will be.”

117 Id. at 66–72.

118 Preyer, supra note 100, at 242.

119 BAILYN, supra, note 9, at 28–29.

120 To cite but a few examples: George Washington ordered a copy of his work in 1769,

as did Jefferson, who copied extensive passages into his Commonplace Book. Preyer, supra note 100, at 241–42; see also BESSLER, supra note 1, at 50. John Adams quoted from Beccaria in his diary in June 1770, and later used that quote in his opening statement in defense of the British soldiers in the Boston Massacre Trials. Preyer, supra note 100, at 242. James Wilson and Benjamin Rush, both of Pennsylvania (and both signers of the Declaration of Independence and the Constitution) frequently embraced Beccarian arguments. BESSLER, supra note 1, at, 51–53. Three state constitutions, Pennsylvania, South Carolina, and New Hampshire, embraced Beccarian notions of proportionality. PA. CONST. of 1776, § 38; S.C. CONST. of 1778, art. XL; N.H. BILL OF RIGHTS of 1784, art. XVIII.

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The lex talionis, altho’ a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return will be revolting to the humanised feelings of modern times. An eye for an eye, and a hand for a hand will exhibit spectacles in execution whose moral effect would be questionable. . . . This needs reconsideration.

121

Writing from France following the Revolution, Jefferson contrasted the praise given to Virginia’s Act for Establishing Religious Freedom with the criticism the “principle of retaliation” in the proposed revised criminal code had received.122

The “eye for an eye” approach towards crimes involving interpersonal violence thus seems out of tune with broader trends towards feelings of discomfort with public, physical chastisement.123 One explanation for the perceived need for these provisions can perhaps be found in the fact that during the eighteenth century in Virginia, there seems to have been a high number of assaults, as indicated in the civil records in suits for damages.124 The Virginia Assembly attempted in 1752, and again in 1772, to impose criminal prosecutions in these cases.125 Preyer argues that “[a] high degree of individual aggression constituted one of the chief aspects of Virginia culture and was shared among all classes of society in much the same fashion as gambling, racing, cockfighting or other turbulent amusements.”126 Assuming this to be true,127 then the reasons for including the lex talionis provisions that appear to be the most anachronistic may in fact have a modern bent.

This interpretation is further supported by the extensive evidence of a

121

Letter from Thomas Jefferson to George Wythe (Nov. 1 1778), FOUNDERS ONLINE, http://founders.archives.gov/documents/Jefferson/01-02-02-0086 (last visited Sept. 4, 2016).

122 Preyer, supra note 100, at 69.

123 I am setting aside for the moment a debate over whether these were actual feelings

that were shifting or rather class-based expressions of feeling used to distinguish one group (typically described as aristocratic) from another (the common crowd). Compare V.A.C. GATRELL, THE HANGING TREE: EXECUTION AND THE ENGLISH PEOPLE 1770–1868, at 12, 24– 25 (1994), with Randall McGowen, Revisiting the Hanging Tree: Gatrell on Emotion and History, 40 BRIT. J. OF CRIMINOLOGY 1, passim (2000). What matters for the argument here is that the people evaluating the bill, both in Virginia and in France, found those aspects of the bill to be its most troubling, reflecting long-term trends towards discomfort with public, physical violence.

124 Kathryn Preyer, Penal Measures in the American Colonies: An Overview, 26 AM. J.

LEGAL HIST. 326, 342 (1982). 125

Id. The act in 1752 passed and made “malicious wounding and maiming a felony without benefit of clergy,” however, the measure in 1772 dealt with the same offense but failed to pass. Id.

126 Preyer, supra note 103, at 81.

127 Preyer notes that it is difficult to make definitive statements because the trial court

records for much of this period were burned during the Civil War in 1865. Id. at 70.

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long-term decrease in interpersonal violence in Western Europe that began by at least the seventeenth century.128 For example, J.M. Beattie points to a long-term decrease in the homicide rate in England between 1660 and 1800.129 Beattie links this change in the murder and manslaughter rates with broader changes in society that revealed a “growing antipathy toward cruelty and extreme physical violence.”130 There is no study comparable in breadth or depth of colonial America.131 However, if Beattie is correct that

128

BEATTIE, supra, note 14, at 111–12. See generally NORBERT ELIAS, THE CIVILIZING PROCESS: SOCIOGENETIC AND PSYCHOGENETIC INVESTIGATIONS (Eric Dunning, et al. ed., Edmund Jephcott trans., 2000); STEVEN PINKER, THE BETTER ANGELS OF OUR NATURE: WHY VIOLENCE HAS DECLINED (2012).

129 BEATTIE, supra note 14, at 111–12. He argues that there was a reduction in the

. . . number of deaths in quarrels, of murder in the furtherance of robbery, and of deliberate and planned killing. Men and women would seem to have become more controlled, less likely to strike out when annoyed or challenged, less likely to settle an argument or assert their will by recourse to a knife or their fists, a pistol, or a sword. . . . This supposes a developing civility, expressed perhaps in a more highly developed politeness of manner and a concern not to offend or to take offense, and an enlarged sensitivity toward some forms of cruelty and pain.

Id. He argues that this suggests that changes in sensibilities were not simply occurring at the level of elites but that it had trickled down to “at least the broad ranks of the artisans, tradesmen, and shopkeepers.” Id. at 112.

130 Id. at 135.

One can see that on one level in the growing hostility toward violent sports, particularly blood sports like bull-baiting and throwing at cocks, and cruelty to animals in general. There are signs of that before 1750, but it was particularly strong in the last two decades of the eighteenth century and into the nineteenth. This was surely linked in turn with the more broadly developing sentiment antipathetic to cruelty of other kinds that helped to encourage opposition to the slave trade or support for prison reform or the abolition of capital punishment, all of which emerged toward the end of the century.

Id. at 135–136. He further connects this to changes in domestic and family relations, where acceptable methods of discipline and control within the family shifted.

These broadly changing ideas about violence, within the family and without, are reflected in stiffening penalties imposed by the courts after the middle of the eighteenth century for wife- beating and the abuse of children, and in the increasing willingness of the courts to establish clearer criminal responsibility in deaths caused by accidents and other manslaughter. Such charges proceeded not in response to legislation, but from a shift in attitude on the part of jurors and judges and from what was at bottom a growing hostility towards forms of physical violence that had been readily accepted a hundred years earlier.

Id. at 136. For another example of this type of argument, see generally PINKER, supra note 128.

131 Linda Kealey notes that levels of personal violence were “fairly consistent,” in the

second half of the eighteenth century in Massachusetts. Linda Kealey, Patterns of Punishment: Massachusetts in the Eighteenth Century, 30 AM. J. LEGAL HIST. 163, 169 (1986). Other sources indicate that in Massachusetts, the level of personal violence was always low. See, e.g., EDWIN POWERS, CRIME AND PUNISHMENT IN EARLY MASSACHUSETTS 1620–1692, A DOCUMENTARY HISTORY 400–23 (1966); David H. Flaherty, Crime and Social Control in Provincial Massachusetts, 24 HIST. J. 339, 342–43 (1981); Preyer, supra note

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there was a long-term process of decreasing acceptance of interpersonal violence, then aspects of Jefferson’s bill take on a slightly different cast. As Preyer notes, “[i]t is significant that in Jefferson’s bill all penalties for offenses against the person were extremely severe—castration for rape, for example. Apparently the revisors believed that these crimes constituted a greater threat to the social fabric of the new Commonwealth than crimes against property.”132 These offenses in which individuals committed acts of violence against other people were seen as particularly troubling at a time when the long-term trend appears to have been towards a diminishing of precisely these types of violence. Thus, the apparently inhumane aspects of the bill that imposed harsh penalties in instances of interpersonal violence were a response to a perception that Virginia may have been falling behind modern society in its decreasing acceptance of acts of interpersonal violence.

A final modern aspect of the bill was its call for hard labor to replace capital punishment for most offenses.133 The bill was accompanied by another one that provided for the creation of a penitentiary.134 Although, as we will see, Massachusetts was about to start an experiment with incarceration, this bill would have led to the creation of the first specially constructed penitentiary in the colonies.135 Indeed, Jefferson sent a model for this penitentiary from France to officials in Virginia.136

Although the bill did not come up for a vote during the Revolution, Jefferson was able to enact some of its provisions while he was governor of Virginia from June 1779 to June 1781.137 During this time, he “pardoned felons convicted of capital crimes on condition that they work for a term of years on a variety of public works—generally the lead mines.”138 This practice was followed by subsequent governors “until 1785 when the Court of Appeals determined that conditions attached to pardons were

124, at 342–43. See generally EDGAR J. MCMANUS, LAW AND LIBERTY IN EARLY NEW ENGLAND: CRIMINAL JUSTICE AND DUE PROCESS, 1620–1692 (1993).

132 Preyer, supra, note 103, at 68.

133 64. A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,

18 June 1779, FOUNDERS ONLINE, http://founders.archives.gov/documents/Jefferson/01-02- 02-0132-0004-0064 (last visited Sept. 4, 2016).

134 68. A Bill for the Employment, Government and Support of Malefactors Condemned

to Labour for the Commonwealth, 18 June 1779, FOUNDERS ONLINE, http://founders. archives.gov/documents/Jefferson/01-02-02-0132-0004-0068 (last visited Sept. 4, 2016).

135 See id.

136 Preyer, supra note 103, at 78–79.

137 Id. at 68.

138 Id.

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unconstitutional.”139 When the bill finally came up for a vote, Jefferson was in Paris as

Minister to the French court.140 In conveying news of the bill’s demise by one vote in 1787, Madison stated that “‘[o]ur old bloody code141 is by this event fully restored.’”142 Virginia did achieve a revised criminal code with a marked reduction in capital crimes in 1796.143

In Jefferson’s proposed revised criminal code, we thus see the modern impulse towards reduction in capital codes, proportionality in sentencing, and a concern with reducing Virginia’s troubled history of interpersonal violence. At the same time, the response of Jefferson and his European interlocutors to the physical punishments called for in some of the provisions reveal changing attitudes towards punishments directly imposed on the body of the condemned.

B. MASSACHUSETTS: REPUBLICANISM AND THE BLOODY CODE

While the example of Virginia reveals changing attitudes towards violence and physical punishments, the experiment in Massachusetts with an alternative to capital punishment demonstrates how those changes impacted the goals the Founders had for the new governments. They believed that a republican form of government would be distinguished from monarchical ones, in part, in the different forms of punishment that it embraced.144 Extensive use of capital codes was seen as not only unenlightened, but also monarchical and un-republican.

While Virginia was debating an extensive revision to its criminal codes, which would have entailed embracing a new form of punishment in the form of a penitentiary, Massachusetts was embarking on a more modest yet similar reform of penal practice. In 1785, Massachusetts became the first state after independence to adopt incarceration in a prison as a potential

139

Id. at 68–69. 140

Id. at 69. 141

See infra Part II.B for a discussion of the significance of the term “Bloody Code.” 142

Preyer, supra note 103, at 69 (quoting Madison to Jefferson (Feb. 15, 1787)). Madison attributed the failure of the bill to a rage against horse stealers. Id.

143 Id. at 76.

144 HIRSCH, supra note 99, at 51; see also STEVEN WILF, LAW’S IMAGINED REPUBLIC:

POPULAR POLITICS AND CRIMINAL JUSTICE IN REVOLUTIONARY AMERICA 138–64 (2010); MCLENNAN, supra note 99, at 18–23. Hirsch notes, however, that republicanism cut two ways because it simultaneously raised concerns regarding the fragility of that type of government and over the threat individualism and corruption posed to the new government. HIRSCH, supra note 99, at 51. But see MASUR, supra note 14, at 60 for an argument that the high crime rate merely heightened the desire for a reformed criminal code.

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criminal penalty.145 Castle Island, “a fortress guarding Boston harbor,” was appointed for this purpose and was to receive individuals sentenced throughout the state.146 The Castle Island Act emerged out of a commission that was to consider revisions to the colonial law code more generally.147 These types of commissions were common in the colonies during and following the Revolution (Jefferson’s bill was itself part of this movement).148 Among other changes the commission introduced were more narrow definitions of certain capital crimes such as burglary, robbery, and arson, as well as a reduction in the number of capital offenses with time spent at hard labor being used as a substitute.149 Within Castle Island, the prisoners “lived under military-like discipline,” were to be kept at “fatigue work” and wore matching uniforms.150

Attempts to explain why imprisonment arose as an alternative punishment in Massachusetts at this time demonstrate the complexity of finding causal explanations for penal reform. At the same time, an examination of the debates surrounding penal reform in general, and the need to find an alternative to the death penalty in particular, occurring both in Massachusetts and elsewhere in the colonies, demonstrates the relevance of those debates to the overall project of constructing republican governance in the new nation. References to Beccaria were most noteworthy for indicating a desire for penal reform, rather than the specific content of that reform.151 Although other distinguished jurists such as William Blackstone and William Eden embraced his philosophies, none of them provided a theory of penal practice that could be adopted by the American states.152 Instead, they focused on the problems of sanguinary or cruel criminal codes without indicating what a more enlightened code would look like.153 Thus, while the ubiquitous references to Beccaria should then be taken as a measure of the perceived need for criminal law reform, rather than as a set of precepts for what form reformed punishment would take, references to that thinker did frequently entail a critique of the extensive use of capital punishment.

145

Id. at 11. 146

Id. 147

Id. at 47. 148

See id. 149

Linda Kealey, Punishment at Hard Labor: Stephen Burroughs and the Castle Island Prison, 1785–1798, 57 NEW ENG. Q. 249, 250–51 (1984).

150 Id. at 251.

151 HIRSCH, supra note 99, at 26.

152 MCLENNAN, supra note 99, at 25.

153 Id.

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While Jefferson’s bill proposed an overall reduction in capital crimes, there was nothing particularly in Beccaria’s thought that suggested the alternative punishment that Jefferson’s bill proposed: hard labor. Hard labor was a penalty that had been proposed at various times during the previous two centuries, both in England and in the colonies but never really implemented as a punishment for the more serious categories of crime.154 “Workhouses” or “houses of correction” were constructed in England starting in the sixteenth century to address a perceived problem with vagrancy.155 Their inhabitants were not those charged with more serious crime such as burglary, rather they have been described as: “[u]nruly apprentices, sturdy beggars, strumpets, vagrants and rogues.”156 The goal of the workhouse was to replace idleness with industry by forcing the vagrant to work.157 Because there was this goal of reformation, “conscientious management of the institution became “essential” and in order to “protect the integrity of the workhouse’s rehabilitative routine, authorities provided codes of regulations for its orderly government, which was monitored by the local justice of the peace.”158 Massachusetts, Pennsylvania, and New York all had workhouses by the early eighteenth century.159 Throughout the seventeenth and eighteenth centuries, there were serious proposals in England and the colonies to introduce hard labor as a penalty for criminals.160 For example, Massachusetts passed legislation in 1749 and 1750, prescribing hard labor in the state’s workhouses for those convicted of extortion and counterfeiting.161 A bill proposed in 1765

154 HIRSCH, supra note 99, at 28.

155 Id. at 13–14.

156 NEGLEY K. TEETERS, THE CRADLE OF THE PENITENTIARY: THE WALNUT STREET JAIL

AT PHILADELPHIA 1773–1835, at 4 (1955). 157

HIRSCH, supra note 99, at 14. 158

Id. at 15. Among which were: “[u]nlike jail keepers, all workhouse officers were to be ‘fitly qualified’ for their posts. And to ensure that the rehabilitative routine was not threatened by disease, authorities mandated the first rudimentary hygienic precautions against the afflictions endemic to other carceral facilities.” Id.

159 Id. at 27. Rothman argues that the workhouses were not a significant aspect of

colonial poor relief, though Hirsch argues persuasively against this interpretation. Compare DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 25–29 (1971), with HIRSCH, supra note 99, at 26–31.

160 HIRSCH, supra note 99, at 16–17; see also BEATTIE, supra, note 14, at 492–500 for a

discussion of proposals to use incarceration in houses of correction in early eighteenth- century England. Beattie argues that transportation ultimately displaced this experiment for much of the eighteenth century though the idea “re-emerged powerfully in the third quarter of the century at the heart of a new dominant penal ideology.” Id. at 500. See id. at 520–24 for a proposal to change the punishment for felonies to confinement in hard labor at the dock yards.

161 HIRSCH, supra note 99, at 28.

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“would have introduced the punishment comprehensively.”162 Although Pennsylvania implemented hard labor in a house of

correction under Penn’s Law, implemented in 1682, this was done away with in 1718, and little is known about the actual functioning of that law or its penal measures.163 The first state to actually introduce hard labor as a penalty for serious crimes in the eighteenth century was Connecticut.164 In 1773, the Connecticut General Assembly passed a resolution indicating their desire to find a facility “‘for the purpose of confining, securing and profitably employing such criminals as may be committed to them by any future law or laws of this Colony, in lieu of the infamous punishments in divers cases now appointed.’”165 A group of mines, known as the Simsbury copper mines, were purchased and secured for this purpose.166 By the end of that year, individuals found guilty of five kinds of offenses: robbery, burglary, forgery, counterfeiting, and horse theft could be sentenced to the prison.167 Prior to the creation of this prison, those guilty of these offenses would have been subjected to various forms of corporal punishment, including branding and removal of an ear (first-time burglary offenses) or execution (third-time burglary offenders).168 The mines were closed in 1782 “for the duration of the hostilities with Britain.”169 Although legislation was passed in 1783 to construct a more secure facility on the site, it was not until 1790 that Connecticut opened Newgate as a statewide prison.170 As was seen above, Jefferson started a similar practice in Virginia while he was governor during the revolution, but it ended in

162

Id. 163

ORLANDO LEWIS, THE DEVELOPMENT OF AMERICAN PRISONS AND PRISON CUSTOMS, 1776–1845 10 (1922); see also Herbert William Keith Fitzroy, The Punishment of Crime in Provincial Pennsylvania, 60 PA. MAG. HIST. & BIOGRAPHY 242 (1936); Lawrence Gipson, Crime and Its Punishment in Provincial Pennsylvania: A Phase of the Social History of the Commonwealth, 2 PA. HIST. 3 (1935); William Lloyd, Jr., The Courts of Pennsylvania in the Eighteenth Century Prior to the Revolution, 56 U. PA. L. REV. 28 (1908); Paul Lermack, Peace Bonds and Criminal Justice in Colonial Philadelphia, 100 PA. MAG. HIST. & BIOGRAPHY 173 (1976); Preyer, supra note 124, at 336; G.S. Rowe, Black Offenders, Criminal Courts, and Philadelphia Society in the Late Eighteenth-Century, 22 J. SOC. HIST. 685 (1989).

164 HIRSCH, supra note 99, at 56; Alexis M. Durham III, Newgate of Connecticut Origins

and Early Days of an Early American Prison, 6 JUST. Q. 89, 90 (1989). 165

Durham, supra note 164, at 90–91 (quoting Public Records of the Colony of Connecticut May 1773, at 92–93).

166 RICHARD H. PHELPS, A HISTORY OF NEWGATE OF CONNECTICUT 6, 92 (1860).

167 Durham, supra note 164 at 90.

168 Id. at 93.

169 Id. at 101–03.

170 HIRSCH, supra note 99, at 11 n.87; Durham, supra note 164, at 103.

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1785.171 Hirsch argues that the workhouse model, and the ideology of reform

through hard work that it embodied, provided the justifying language and form for the new Castle Island Act.172 But while the workhouse provided a model for the structure of the new penalties, there is still the question of why it was adopted at this time rather than when proposals had been put forward earlier in the century. There are two related answers to this question. The first is that colonial society underwent substantial changes in the second half of the eighteenth century, and the traditional punishments that had worked in the close-knit colonial towns were breaking down as the population both grew and became more mobile.173 The second is that the old punishments were no longer seen as effective, in part because of changing attitudes towards the relationship between punishment and the state.174 Hirsch argues that “by the 1780s . . . tracts proposing hard labor had taken on an alarmist tone, and the emphasis had shifted to a delineation of the demerits of the prevailing body of sanctions.”175

The traditional punishments of the admonition,176 fines (with sale into service being their alternative) and public punishments such as whipping, all depended on a “communal pattern of life.”177 The punishments reflected the fact of embeddedness within the community: “[t]he usual penalties . . . did not sever a criminal’s ties with society,” and the penalty with the longest duration (sale into servitude178) had a “probable effect . . . to

171 See infra Part II.A.

172 HIRSCH, supra note 99, at 31.

173 Id. at 35–36.

174 This is true whether that changing relationship was defined by republicanism,

HIRSCH, supra note 99, at 50–53, or by liberalism, MICHAEL MERANZE, LABORATORIES OF VIRTUE: PUNISHMENT, REVOLUTION, AND AUTHORITY IN PHILADELPHIA, 1760–1835 at 12–16 (1996).

175 Id. at 37. Masur argues that “Americans in post-Revolutionary America believed

that criminal activity raged out of control. . . . This social perception of crime on the loose intensified the desire to restructure the criminal justice system.” MASUR, supra note 14, at 59.

176 This involved an appearance by the offender in “open court for a formal admonition

by the magistrate, a public confession of wrongdoing, and a pronouncement of sentence, wholly or partially suspended to symbolize forgiveness.” HIRSCH, supra note 99, at 4.

177 Id. at 4. For a description of colonial penalties, see MCMANUS, supra note 131, at

164–79, 200–10; POWERS, supra note 131, at 163–320; Flaherty, supra note 131, at 349–52; Kealey, supra note 131, at 171.

178 Preyer, supra note 124, at 343. Individuals were sold into servitude when they were

unable to pay the fine that was the primary penalty. Id. Because property offenses typically involved triple restitution, a fine in those cases frequently resulted in the offender being sold into servitude in order to pay off the fine. Id. The incidence of sale into servitude increased in the 1730s and 1740s, with those in the 1740s receiving comparatively longer terms of

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integrate [the convicted] more fully into society by reorienting him toward normal social contacts.”179 In the second half of the eighteenth century, however, the population of the state became increasingly transient and individuals charged with crimes were no longer necessarily integrated members of the community.180 As a result, the various penalties that made up the colonial penal code came to be seen as ineffective.181 Sale into servitude all but stopped, presumably because people were unwilling to take on a stranger, particularly a criminal stranger, to labor for them.182 Admonition fell away as crimes were increasingly committed by strangers to the community and a culture of privacy developed that made established members of the community reluctant to discuss their offenses in public.183 Finally, with regard to public punishments such as whipping or time spent in the stocks, while the goal had previously been to reintegrate the offender into the community “when the offender lacked community ties, this formula no longer applied. In such cases, the purpose of these sanctions shifted to expulsion, by alerting townspeople to the culprits’ infamy.”184 This resulted in public punishments administered to strangers that created mutual antipathy rather than reintegrating the offender into the community.185 One response was to increase the recourse to capital punishment.186 But this posed a dilemma, as described by one newspaper: “[a]lthough ‘[a]t present, our laws are no more a check to simple robbery [than] they are to getting money honestly,’ the alternative of ‘tak[ing] a man’s life for every trifling theft, as is done in England, is a disgrace to a civilized nation; humanity recoils from the idea.’”187

Herein lay the heart of the problem: in America following the Revolution, traditional sanctions not only came into question because of the changing nature of society, but because they were seen as a corrupt inheritance from England.188 During this time, Americans began to refer to England’s code as “bloody,” “unit[ing] England’s capital statutes into a

service. Id. 179

WILLIAM NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760–1830, at 40 (1975).

180 HIRSCH, supra note 99, at 35–36.

181 Id. at 36–39.

182 Id. at 37–38.

183 Id. at 38.

184 Id. at 40.

185 HIRSCH, supra note 99, at 39.

186 Id. at 40.

187 Id. at 41 (quoting MASS. CENTINEL, Oct. 16, 1784, at 1).

188 Id. at 47–48; MCLENNAN, supra note 99, at 19–23.

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common ‘code’ with bloodshed as its centerpiece.”189 In part, this was a result of the very large number of offenses that could result in the death penalty (by 1776 there were nearly 200).190 There were frequent references in the newspapers to the number of executions in England: “No other country in the civilized world, it was often stated, had as many executions as England.”191 Benjamin Rush estimated that from 1688 (the year of the Glorious Revolution) to 1787, there had been 70,000 executions in England.192 Recent evidence suggests that his estimate was far from correct.193 2,000 is a more accurate number, but the fact that he believed the exaggerated number was accurate underscores perceptions in America of England’s excessive reliance on the death penalty.194

Criticism of this “Bloody Code” became ubiquitous in the 1780s and 90s, and the extensive capital codes were connected with physical, public punishments in a category of penalties referred to as “sanguinary.”195 “Critics argued that capital and related sanguinary punishments were inherently despotic and immoral in nature,” while “[b]loody and ‘excessive’ spectacles of punishment . . . were the native weapons of kings and despots.”196 While not all of the Founders opposed capital punishment in all circumstances, they did all associate excessive use of that penalty with monarchical forms of government.197

This relationship between the perception of England as “Bloody” and the perceived need for penal reform in the colonies can be seen in a number

189

WILF, supra note 144, at 138. 190

Id. at 139. 191

Id. at 142. 192

Id. 193

Id. 194

WILF, supra note 144, at 142. 195

Id. at 138–54; MCLENNAN, supra note 99, at 18–19. 196

MCLENNAN, supra note 99, at 19. 197

Id. Benjamin Rush (Philadelphia physician and signer of the Declaration of Independence and the Constitution) and William Bradford (Attorney General under President Washington) were perhaps the most famous proponents of a complete abolition of the death penalty at the time, though others indicated support for the cause. BESSLER, supra note 1, at 66–96. Rothman makes a similar point:

Armed with patriotic fervor, sharing a repugnance for things British and a new familiarity with and faith in Enlightenment doctrines, they posited that the origins and persistence of deviant behavior would be found in the nature of the colonial criminal codes. Established in the days of oppression and ignorance, the laws reflected British insistence on severe and cruel punishment.

ROTHMAN, supra note 159, at 59. As does Michael Meranze: “Revolutionary-era reformers forcefully redefined exemplary punishments as cruel and excessive. They linked the practice of capital and corporal punishments to the archaisms of tyranny and monarchy.” MERANZE, supra note 174, at 68.

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of state constitutions calling for a reduction in so-called “sanguinary” laws. For example, Maryland’s constitution, adopted on November 11, 1776, was the first to do so with this provision: “[t]hat sanguinary laws ought to be avoided, as far as is consistent with the safety of the State: and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter.”198 Similarly, South Carolina’s constitution of 1778 included a provision: “[t]hat the penal Laws, as heretofore used, shall be reformed, and Punishments made, in some Cases less sanguinary, and, in general, more proportionate to the crime.”199 Pennsylvania (1776) and Vermont (1777) had identical provisions that provided for “punishing by hard labour” in order to “make sanguinary punishments less necessary.”200

It was thus in marked contrast to the portrayal of England as “Bloody” that the colonists sought to reform their own criminal laws and these reforms “served as outward legitimating representations of the American Revolution” and “[b]y signaling differences with English criminal law, states were announcing the special character of justice in fledgling American republics.”201 “A repulsion from the gallows rather than any faith in the penitentiary spurred the late-eighteenth century construction. . . . Incarceration seemed more humane than hanging and less brutal than whipping.”202 There were thus two arguments with regard to the criminal laws and punishment that were being made. First, there was “a coherent American critique of what the revolutionaries argued were ‘monarchical’ penal laws and practices,” which led to “a positive republican theory of crime, penal law, and penal practice.”203 The critique was of a capital code that was seen to be excessive because it included everything from murder to

198

MD. DECL. OF RIGHTS of 1776, art. XIV. 199

S.C. CONST. of 1778, art. XL. 200

PA. CONST. of 1776, art. II, § XXIX; VT. CONST. of 1777, art. II, § XXXV; see also PA. CONST. of 1776, art. II, § XXXVIII (providing in part that “[t]he penal laws as heretofore used shall be reformed by the legislature of this state, as soon as may be, and punishments made in some cases less sanguinary”).

201 WILF, supra note 144, at 146, 148. The focus here is on attempts to use a reformed

criminal law as one marker of the difference between a republican form of government and a monarchical one. This is not to suggest that similar calls for reform were not also occurring in England. Michael Ignatieff traces the ideological beginnings of the penitentiary to this period. See IGNATIEFF, supra note 102, at 44–79. Although V.A.C. Gatrell argues that English elites were committed to the Bloody Code up until that code became completely dismantled in the 1830s, Simon Devereaux has recently argued that there were leading statesmen who were seeking alternatives to capital punishment. Compare GATRELL, supra note 123, at 20, with Simon Devereaux, Inexperienced Humanitarians? William Wilberforce, William Pitt, and the Execution Crisis of the 1780s, 33 LAW & HIST. REV. 839, 842 (2015).

202 ROTHMAN, supra note 159, at 62.

203 MCLENNAN, supra note 99, at 19.

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petty theft and physical punishments that were directed at the body of the condemned.204 Criminal law took on political meaning as punishment was evaluated as being appropriate (or not) to a republican form of government.205 “A new understanding of criminal law emerged around the time of the American Revolution. Criminal justice was seen as a mirror that reflected truths about the surrounding political and social structure,” and “[p]enal reform created an outward representation of the new republic, playing much the same role as health care or literacy programs for twentieth-century revolutions. The political authority of the nascent republic turned in part upon its remaking of criminal law.”206 Thus, by rejecting England’s excessive capital code and reliance on punishments directed at the body of the offender, the American colonies were signaling to themselves and the rest of the world what it meant to be republican.207

While the rhetoric of the period saw the question of a revised criminal code as central to the creation of a new type of government, the actual changes wrought by the Castle Island Act should not be overstated. Under the new law, hard labor was an option, but not a requirement, and it did not immediately replace corporal punishment.208 Although a statute was proposed and passed by the Massachusetts House of Representatives in 1785 making hard labor an alternative in all cases where corporal punishment was an option, it failed to pass the Senate and corporal punishment was not officially ended until 1826 (although it had fallen out of use in the first decade of the nineteenth century).209 Moreover, the experiment with incarceration as an alternative penalty was short lived. Castle Island was sold to the federal government in 1789 to be used for

204

Id. 205

“Many publicists distinguished a republic from a monarchy not only by its liberal political objectives but also by its lack of a strong state coercive apparatus.” HIRSCH, supra note 99, at 51. The term “publicist” refers to anyone publishing a political tract. See BAILYN, supra note 9, at 1–21, for discussion of the political pamphlets that were the source of “much of the most important and characteristic writing of the American Revolution.” Id. at 2.

206 WILF, supra note 144, at 9–10.

207 In this the American colonists were engaged in a form of self-definition that has a

long and varied history. Guy Geltner has recently argued that the depiction of past or simply other regimes as relying on brutal physical punishments has been extensively used as a form of self-definition and a means of claiming cultural superiority. He suggests that this is true even though corporal punishment continues in use within the new regime, thus rejecting arguments that there has been a long-term trend towards decreasing reliance on corporal punishment. See generally GUY GELTNER, FLOGGING OTHERS: CORPORAL PUNISHMENT AND CULTURAL IDENTITY FROM ANTIQUITY TO THE PRESENT (2015).

208 HIRSCH, supra note 99, at 57.

209 Id. at 58.

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military purposes.210 Massachusetts’s next prison, in Charlestown, did not open until 1799.211 Still, Castle Island was the “first American carceral institution to achieve international celebrity.”212 Within a year, there was “a pilot project in the city of New York and . . . a statewide program in Pennsylvania.”213

C. PENNSYLVANIA: CIVILIZATION AND CHANGING SENSIBILITIES

Rather than follow the lead of Massachusetts and embrace hard labor within an institutional setting, Pennsylvania first experimented with hard labor conducted in public.214 The rapid breakdown of this experiment led to the adoption in 1790 of hard labor within the Walnut Street Prison, which became famous throughout the new nation and internationally as other jurisdictions sought examples of more humane punishments.215 The reasons why hard labor in public ultimately broke down provide the final link in explaining the content and depth of post-revolutionary penal reform. The example of Pennsylvania thus demonstrates that the focus of penal reform was not simply on reducing the infliction of capital punishment, it was also ultimately focused on reducing the public infliction of physical chastisements.

The discussion of Massachusetts above reveals that in the post- Revolutionary period, Americans defined their republican form of government, and the reformed penal practice it would entail, in opposition to England’s Bloody Code. It was not just as a contrast to England’s “sanguinary” practices that this definition of republican criminal practice was being defined, however. Frequently in the accounts, references to bloody codes and sanguinary practices gave way to descriptions of such penal practices as being savage or barbaric.216 These terms connect penal reform not just with the creation of a republican government, but also a more civilized one. This point becomes more apparent in debates over public punishments in Pennsylvania in the late 1780s.217

References to British penal practices as being “savage” or “barbaric”

210

Id. at 11. 211

Id. at 11. 212

Id. at xii. 213

Id. at 11. 214

MERANZE, supra note 174, at 55–86. 215

Rex A. Skidmore, Penological Pioneering in the Walnut Street Jail, 1789-1799, 39 J. CRIM. L. & CRIMINOLOGY 167, 167–68 (1948).

216 MERANZE, supra note 174, at 70–71.

217 See, e.g., id. at 70–71 (discussing characterizations of capital and corporal

punishments as “unnecessary legacies from unenlightened, barbaric times”).

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were almost as common as references to their Bloody Code.218 For example, a charge given in 1793 to a Philadelphia grand jury stated: “In England . . . their books are crowded with penal statutes which appear to have resulted from the barbarous dictates of revenge.”219 Harsh punishments with little purpose aside from their harshness were seen by commentators as exemplary of less developed states: “Amongst unpolished nations, and during the prevalence of savage manners punishment is the only means known for preserving public order. . . . When one proves ineffectual, he thinks of another more rigourous.”220 England’s system of punishment was described as having been “‘copied from the Goth and the Vandal.’”221 Rebecca McLennan argues, “[c]onnections were drawn between British ‘savagery’ on the battlefield and the frequency with which the courts in England reputedly condemned Englishmen, found guilty of crimes grand and petty, to swing from the ‘hanging tree.’”222 As an example, Thomas Paine described British war acts as “contrary to the practice of all nations but savages,” and later asked “[w]hat sort of men must Englishmen be . . . ? The history of the most savage Indians does not produce instances exactly of this kind.’”223 To the Americans, extensive

218

MCLENNAN, supra note 99, at 19; MERANZE, supra note 174, at 70–71. This equation between unreformed criminal law and barbarism continued well past this initial focus on England. When arguing for the need to reform the criminal law in Virginia in 1796 a state legislator referred to the old code as “barbaric.” WILF, supra note 144, at 140–41; Preyer, supra note 103, at 77.

219 See, e.g., WILF, supra note 144, at 140.

220 MERANZE, supra note 174, at 70–71 (quoting An Essay on Capital Punishment, in

FREEMEN’S JOURNAL, Sept. 7, 1785). 221

HIRSCH, supra note 99, at 48. Masur also found critiques of British “barbaric behavior.” He argues that “many Americans believed in ‘the barbarity of our oppresors’ and were horrified at repeated examples of ‘inhuman and worse than savage cruelty’ by the British.” MASUR, supra note 14, at 55. He also quotes Abigail Adams referring to the British as “our Barbarous foes” who “let loose the infernal savages.’” Id. In April 1777, “a committee appointed by Congress reported its findings on the conduct of British soldiers and found,” inter alia, “savage butchery.” Id. at 56. Referring to the execution of a militia member captured by loyalists, Thomas Paine wrote “‘as far as our knowledge goes there is not a more detestable character, nor a meaner or more barbarous enemy than the present British one. . . . [The execution] is an original in the history of civilized barbarians, and is truly British.’” Id. Washington referred to the same execution as “‘the most wanton, unprecedented and unhuman Murder that ever disgraced the arms of a civilized people.’” Id. at 57. In response to a proposal that the American troops execute one of their own prisoners of war in response, Alexander Hamilton wrote that “so solemn and deliberate a sacrifice of the innocent for the guilty must be condemned on the present received notions of humanity, and encourage an opinion that we are in a certain degree in a state o[f] barbarism.” Id. at 58.

222 MCLENNAN, supra note 99, at 19 (quoting MASUR, supra note 14, at 19).

223 Id. at n.12 (quoting A Supernumerary Crisis, To Sir Guy Carleton, in CRISIS PAPERS,

Philadelphia, May 31, 1782).

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use of capital punishment was “central to the organization of English society” and “England was portrayed in much the same way as Blackstone depicted primitive societies.”224 For example, one American essayist referred to the executed as “human sacrifices” that were “yearly offered up.”225

This discussion provides important context for understanding the content of the reformed republican criminal law that was being embraced throughout the colonies. By the late eighteenth century, the word “civilization” was beginning to take root.226 The first use of this term has been traced to Victor Riqueti Mirabeau in his work L’Ami des hommes.227 The term, as used by Mirabeau, “referred . . . to a group of people who were polished, refined, and mannered, as well as virtuous in their social existence.”228 Within a short period of time, “the designation had swept over Europe and become commonplace in Enlightenment thought” and it “formed part of the idea of progress and became the third phase in conjectural history, signaling the last stage in the movement of humanity from savagery to barbarism and then to civilization.”229 While civilization represented a particular conception of evolutionary, progressive change, its content—that is to say, what it meant to be a civilized state—focused on defining what the bonds or connections were between members of society.230 For some, this meant a focus on manners or mores “as lying at the center of sociability,” while elsewhere emerging at the same time is a focus on the “public sphere,” the “social,” “social contract,” etc., all of which are “part of an effort to describe, understand, and project new forms

224

WILF, supra note 144, at 141. 225

Id. It should be noted that this does not mean that objectively the American colonists were less brutal than the British. Masur argues that “Americans . . . viewed themselves as the virtuous and humane citizens of a new nation,” while portraying the British as “debased and barbarous.” MASUR, supra note 14, at 57. At the same time, “[i]n actuality, patriots executed offenders as frequently and as barbarously as their enemies.” Id. at 58. Thus, it is not about a factual difference between the British and the Americans, rather is was about making a claim to cultural superiority on the part of the Americans. See generally GELTNER, supra note 207.

226 BRUCE MAZLISH, CIVILIZATION AND ITS CONTENTS 5 (2004).

227 Id. We know that at least Jefferson and Madison were familiar with this work. See

From Thomas Jefferson to James Madison, with a List of Books 1 September 1785, FOUNDERS ONLINE, http://founders.archives.gov/documents/Jefferson/01-08-02-0360 (last visited Sept. 4, 2016) (including Mirabeau’s L’Ami des hommes among a list of books Jefferson had purchased for and was sending to Madison).

228 MAZLISH, supra note 226, at 7.

229 Id. at 7–8.

230 Id. at 8–11. See generally ELIAS, supra note 128.

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of social bonding.”231 Gordon Wood has pointed to this particular problem following the

American Revolution: if the previous methods of holding society together (largely hierarchical in which everyone knew their place) were falling apart in a new republican government that assumed equality between all men, then what were to be the bonds that held society together?232 The Founders believed in their ability to shape a new society.233 Part of how they set about achieving that new society depended on their belief that “people were not born to be what they might become.”234 Lockean theory argued that people were shaped by their sensations and the mind, according to John Adams, “could be cultivated like a garden, with barbarous weeds eliminated and enlightened fruits raised, ‘the savages destroyed, . . . the civil People increased.’”235 This meant the “pushing back of darkness and what was called Gothic barbarism,” which took place on many fronts.236 Ultimately, all of these changes were connected to the concept of civilization.237 While civilization as a concept has been linked to changes in the material prosperity of a people:

It was above all a matter of personal and social morality, of the ways in which men and women treated each other, their children, their dependents, even their animals. Such enlightened morality lay at the heart of republicanism. Americans thought themselves more civilized and humane than the British precisely because they had adopted republican governments, which as Benjamin Rush said, were “peaceful and benevolent forms of government” requiring “mild and benevolent principles.” With the Revolution they sought to express these mild and benevolent principles in a variety of reforms—most notably perhaps in their new systems of criminal punishment.

238

Herein lies the heart of the matter: the changes sought to create a more virtuous citizenry—one that was required for civilization to flourish— would be pursued in no small part by implementing a reformed criminal code.

But what change in the criminal code would lead to this transformation

231

MAZLISH, supra note 226, at 10–12. 232

GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 189 (1991). Elsewhere he describes that a struggle “to find new attachments befitting a republican people . . . they sought enlightened connections to hold their new popular societies together.” Id. at ix.

233 Id. at 190.

234 Id.

235 Id. (quoting John Adams to Jonathan Sewell (Feb. 1760)).

236 Id. at 191.

237 Id. at 192.

238 WOOD, supra note 232, at 192.

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in the citizenry? To understand this problem, we need to more closely examine Pennsylvania’s experiment with public labor.239 The changes wrought in Pennsylvania’s penal practice were the most far reaching of the penal reforms attempted in the 1780s, and they foreshadowed much of the changes that other states would pursue in the 1790s. The first indication of the sweeping changes to come can be found in Pennsylvania’s first state constitution, adopted in 1776. It provided that:

To deter more effectually from the commission of crimes, by continued visible punishments of long duration, and to make sanguinary punishments less necessary; houses ought to be provided for punishing by hard labour, those who shall be convicted of crimes not capital; wherein the criminals shall be employed for the benefit of the public, or for reparation of injuries done to private persons. And all persons at proper times shall be admitted to see the prisoners at their labour.

240

It was not until 1786 that legislation was passed to give effect to this provision. In that year an act was passed that called for “continued hard labor, publicly and disgracefully imposed . . . in streets of cities and towns, and upon the highways of the open country and other public works.”241 The act also reduced the number of capital crimes (robbery, burglary and sodomy were removed) and replaced whipping and other public punishments with hard labor.242 By replacing whipping and some capital punishments, the system of public labor “greatly reduced reliance on sanguinary penalties” at the same time that it “would turn convicts into constant reminders of the penalties of vice.”243 Thus, Pennsylvania sought to retain the benefits of public punishment and the visibility of the condemned minus the problematic aspects of physical punishments aimed at the body of the convict.244

239

Other states experimented with public labor, for example a public labor act passed in Rhode Island. MCLENNAN, supra, note 99, at 33 n.63. New York also started a pilot project in New York City in 1785. HIRSCH, supra, note 99, at 25. Under the project, hard labor was to occur in an existing workhouse, though apparently, it was in reality performed on public works in the city. Id. Incarceration at hard labor was not expanded statewide in New York until 1796. Id. at 11 n.87.

240 PA. CONST. of 1776, §39. Vermont’s Constitution, adopted in 1777, contained an

almost identical provision. VT. CONST. of 1777, art. II, § XXXV. 241

Thorsten Sellin, Philadelphia Prisons of the Eighteenth Century, 43 TRANS. AM. PHIL. SOC’Y 326, 327 (1953); MERANZE, supra note 174, at 21–22.

242 MERANZE, supra note 174, at 79.

243 Id. at 55.

244 Merenze, like Hirsch, attributes the driving force for penal reform to rising fears of

criminality, even while the ideology behind that reform was expressed in terms of “‘enlightened’ moderation. Id. at 67. To acknowledge that there were forces other than the purely ideological that helped push forward penal reform is not to diminish the significance of the ideological. As David Garland argues, penal form is always over determined and

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From the beginning, the program of public labor was beset by problems. The prisoners wore a ball and chain while they went about their work, and sometimes used this to injure passersby.245 Their cloths were specially designed to bring attention, described as: “‘A parti-colored scheme. . . . The roundabout would have sleeves of different colors, as for example, red and green, black and white, or blue and yellow. The legs of the pantaloons were also of different colors.’”246 There were complaints that the prisoners engaged in theft while at their public labor, and escapes were frequent.247

Aside from the complaints regarding the problems of public safety and maintaining the prisoners at hard labor, a deeper complaint was made by Dr. Benjamin Rush. Rush was a signer of both the Declaration of Independence and the Constitution.248 A prominent member of Philadelphia Society, he took a particular interest in penal reform.249 Rush presented a paper at the home of Benjamin Franklin in 1787 criticizing public punishments in general.250 In it he argued that they “end to make bad men worse, and to increase crimes, by their influence upon society . . . it is always connected with infamy, it destroys in the criminal the sense of shame which is one of the strongest outposts of virtue.”251 He concluded by arguing that “‘I cannot help entertaining the hope that the time is not very far distant when the gallows, the pillory, the stocks, the whipping post and the wheelbarrow (the usual engines of public punishments) will be connected with the history of the rack, and the stake, as marks of barbarity of ages and countries.’”252

At the same time that this experiment was occurring in Philadelphia, the Constitutional Convention was convening there to draft a new Constitution.253 The Walnut Street Jail was located just across the street from the state house where the Convention was held: “Outside the walls of

there will generally be multiple explanations for a given outcome. GARLAND, supra note 16, at 280–81 (1990).

245 TEETERS, supra note 156, at 27.

246 Id. at 28 (citation omitted).

247 Id.

248 BESSLER, supra note 1, at 53.

249 Id. at 66.

250 Id. at 69.

251 BENJAMIN RUSH, AN ENQUIRY INTO THE EFFECTS OF PUBLIC PUNISHMENTS UPON CRIMINALS AND UPON SOCIETY 4 (1787) (reprinted in Reform of Criminal Law in Pennsylvania (Morton Horowitz & Stanley Katz eds., 1972)).

252 Id. at 18.

253 See generally CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY

OF THE CONSTITUTIONAL CONVENTION, MAY TO SEPTEMBER 1787 (1986).

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the state house, the prisoners at the Walnut Street Jail—in close proximity to the Convention proceedings, and cursing anyone who ignored them— thrust long poles with cloth caps on the ends through the prison’s barred windows, seeking alms.”254

Pennsylvania’s negative experience with public labor had an impact throughout the colonies. For example, “[a]lthough he had earlier proposed public hard labor for prisoners, Jefferson wrote that by 1786 the Pennsylvania experience with the wheelbarrow laws had changed his mind.”255 Later in his autobiography, he recounted: “Exhibited as a public spectacle, with shaved heads and mean clothing, working on the high roads, produced in the criminals such a prostration of character, such an abandonment of self-respect, as, instead of reforming, plunged them into the most desperate and hardened depravity of morals and character.”256

This same breakdown in public punishments could be seen in other states. For example, in Massachusetts, “[a] culture of privacy” led to the breakdown of admonition as a penalty as offenders were no longer willing to provide public confessions of wrongdoing.257 Similarly, public punishments began to involve scenes of disorder: “Such sessions also became increasingly tumultuous affairs, in which offenders were liable to be pelted with refuse or worse. Onlookers appear to have seized the occasions of public punishment to vent their frustration over crime, in the process creating scenes of chaos that would have been unheard of when they shared with offenders a sense of belonging to the same community.”258

In Rush’s writings, we see a changing reaction to the site of physical suffering while in these scenes of public disorder surrounding public inflictions of punishment, we see officials’ increasing concern that the public was not reacting in the “correct” way to the punishments.259 Meranze refers to the problem posed by public punishments as “mimetic corruption,” meaning that the message that officials intended to convey failed.260 The response of Dr. Rush and other Founders to sites of suffering suggest an even deeper problem, however. The problem posed by public

254 Id. at 114. See also Simon P. Newman & Billy G. Smith, Incarcerated Innocents:

Inmates, Conditions, and Survival Strategies in Philadelphia’s Almshouse and Jail, in BURIED LIVES: INCARCERATION IN EARLY AMERICA 60, 60 (Michele Lise Tarter et al. eds., 2012).

255 PESTRITTO, supra note 114115, at 123.

256 THOMAS JEFFERSON, AUTOBIOGRAPHY OF THOMAS JEFFERSON, 1743–1790, at 72

(1821). 257

HIRSCH, supra note 99, at 38. 258

Id. at 40. 259

See generally RUSH, supra note 251. 260

MERANZE, supra note 174, at 87–88.

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punishments and what officials sought to control was the emotional connection to the convicted criminal.261 Too much identification and the system of justice was subverted, but too little identification and the social bonds of moral sense that hold the community together would be threatened as well.

This change in the individual emotional reaction to violence, the body and physical pain has been termed “sensibilities.”262 We already saw some influence of these changing sensibilities in the reaction to Jefferson’s Crime Bill (and suggested another influence in the evident concern the bill demonstrated with the problem of interpersonal violence).263 Here, it is evident again in the reactions of elites themselves to scenes of suffering, in their reaction to the problems of crowds, and their behavior during public punishments. The public punishment is seen as brutalizing the sensibilities of those that observe it. There is some debate among historians about the influence of changing sensibilities on penal form, but whether they drive the change or follow it, it is undeniable that over time attitudes have shifted and that which was once acceptable (whipping in public, for example) comes to be seen as abhorrent.264 Thus, it was not only to minimize the bloody or sanguinary effects of England’s criminal code that Americans sought reform, they also sought to reduce the public infliction of pain and suffering on convicts.265

261

MASUR, supra note 14, at 79; RUSH, supra note 251, at 7–8. 262

GARLAND, supra note 16, at 223. Summarized by David Garland, the argument is that:

[T]he sight of violence, pain, or physical suffering has become highly disturbing and distasteful to modern sensibilities. Consequently it is minimized wherever possible, though ironically this “suppression” of violence is actually premised upon the build-up of a state capacity for violence so great that it discourages unauthorized violence on the part of others. And where violence does continue to be used it is usually removed from the public arena, and sanitized or disguised in various ways, often becoming the monopoly of specialist groups such as the army, the police, or the prison staff which conduct themselves in an impersonal, professional manner, avoiding the emotional intensity which such behavior threatens to arouse.

Id. 263

See supra, Part II.A. 264

McGowen, supra note 123, at 6–7; see also discussion, supra note 123. 265

MASUR, supra note 14, at 76–81; MERANZE, supra note 174, at 126–27. Two authors studying this process in Europe connect these changes in sensibility to larger changes in the structure of government, argue that “these developments are closely related to the rise of a network of states and the changes they underwent. Notably, the disappearance of public executions is related to the transition from the early modern state, whether absolutist or patrician, to the nation-state.” SPIERENBERG, supra note 19, at x. See generally ELIAS, supra note 128. Changes in sensibility have been used to explain the elimination of public executions during the nineteenth century in America. MASUR, supra note 14, at 3. Numerous authors have connected changes in sensibility to the American Revolution and

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Because of these “scandals” involving the wheelbarrow men, the Philadelphia Society for Alleviating the Miseries of Public Prisons (“Philadelphia Prison Society”), founded in 1787, called for the abolition of public labor and asked that “‘more private or even solitary labor’ be substituted.”266 The Philadelphia Prison Society included some of the most prominent members of Philadelphia, including Benjamin Rush.267 It fostered an international exchange of ideas over penal form, corresponding with John Howard, a noted English penal reformer, and embracing many of his ideas.268 In 1788, the Supreme Executive Council “sent a message to the legislature, signed by Benjamin Franklin, recommending that changes be made in the penal law ‘calculated to render punishment a means of reformation, and the labour of criminals of profit to the state. Late experiments in Europe have demonstrated that those advantages are only to be obtained by temperance, and solitude with labour.’”269

The result of the petition from the Philadelphia Prison Society was a reformed criminal law in 1789 that transformed the Walnut Street Jail into a prison.270 During its first ten years, the program implemented at the Walnut Street Prison became famous throughout the colonies and internationally.

development of the American state. See generally ANDREW BURSTEIN, SENTIMENTAL DEMOCRACY (1999); SARAH KNOTT, SENSIBILITY AND THE AMERICAN REVOLUTION (2009); STEPHEN MENNELL, THE AMERICAN CIVILIZING PROCESS (2007).

266 Sellin, supra note 241, at 328. The Philadelphia Society arose out of an early

Society, the Philadelphia Society for Assisting Distressed Prisoners, started in 1776 to provide assistance to prisoners in the Walnut Street Jail. TEETERS, supra note 156, at 19–20. For more on this society, see generally Negley K. Teeters, The Philadelphia Society for the Relief of Distressed Prisoners 1776–1777, 24 PRISON J. 452 (1944). For more on the Philadelphia Prison Society, see generally NEGLEY K. TEETERS, THEY WERE IN PRISON: A HISTORY OF THE PENNSYLVANIA PRISON SOCIETY 1787–1937 (1937).

267 TEETERS, supra note 266, at 4.

268 HIRSCH, supra note 99, at 49 (explaining that this correspondence started prior to the

Revolution); IGNATIEFF, supra note 102, at 64. Howard’s work, State of Prisons, was published in 1777. TEETERS, supra note 156, at 31. In it, Howard “advocated the establishment of penitentiary-houses in which each convict would be assigned his own cell, or room, where he would work, sleep and eat.” Id. As this example reveals, although in the period following the American Revolution there was a tendency to criticize all things British, “their Anglophobic diatribes were aimed at capital statutes and at public punishments that they also regarded as inexpedient. Those diatribes notwithstanding, American criminologists remained eager to learn about English carceral initiatives, and they maintained an active correspondence with their English counterparts, including John Howard.” HIRSCH, supra note 99, at 49. Indeed, the same Whig radicals whose thought helped shape the ideology of the American Revolution were engaged in an attack on penal methods at home as well.

IGNATIEFF, supra note 102201, at 63–64; BAILYN, supra note 9, at 40–41. 269

Sellin, supra note 241, at 328 (quoting Minutes of the Twelfth General Assembly of the Commonwealth of Pennsylvania, 1787–1788, at 102).

270 Skidmore, supra note 215, at 168.

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“During the years 1790 to 1835, many international dignitaries visited this prison, made careful observations and established modified replicas of it in their various countries.”271 For example, Robert Turnbull of South Carolina visited and published an extensive description of the prison in 1796.272 One historian of the Walnut Street Jail described it as a “mecca for students of penal reform from various parts of the country as well as from Europe.”273 This included an enthusiastic account of the prison written and published by Robert Turnball of South Carolina.274 The Philadelphia prison was held out as “one of the most striking emblems, of progress in refinement.”275

Although the Walnut Street Jail began operating as a prison in 1790, it was not until 1794 that Pennsylvania engaged in a more extensive revision of its criminal law.276 An act passed that year which “set up the popular definition of murder in the first degree and abolished the death penalty for all other crimes.”277 In 1796, Virginia followed Pennsylvania in an extensive revision of its capital code.278 At this time, the Virginian governor wrote to Dr. Caspar Wistar of Philadelphia “requesting information about Pennsylvania’s experience as well as a copy of the plan for the Pennsylvania penitentiary.”279 In his request, he referred to “this humane law.”280 One of the sponsors of the bill described the existing criminal code as “‘unjust, impolitic, and barbarous.’”281 In 1796, there was also a pilot project prison in Rhode Island and New York that abolished corporal punishment.282 In 1798, a prison opened in Kentucky and in 1799,

271

Id. at 167. 272

Sellin, supra note 241, at 330. 273

TEETERS, supra note 156, at 1. Later he argues that “[n]ews of the sweeping reforms spread abroad. British and French writers commented favorably on the new era of prison discipline and visitors to Philadelphia from other states wrote of the amazing results that flowed from the new administration.” Id. at 36.

274 Id. at 43.

275 Id. at 44 (quoting from Philadelphia Monthly Magazine, Vol. I, p. 101 (Feb. 1798)).

276 Sellin, supra note 241, at 328.

277 Id. at 328–29.

278 Preyer, supra note 103, at 76.

279 Id. at 77.

280 Id. at 77 n.89.

281 Id. at 77 (quoting GEORGE KEITH TAYLOR, SUBSTANCE OF A SPEECH DELIVERED IN

THE HOUSE OF DELEGATES OF VIRGINIA, ON THE BILL TO AMEND THE PENAL LAWS OF THIS COMMONWEALTH 7, 10–11 (1796). “He charged his colleagues with passively submitting to a system ‘calculated to awe and crush the humble vassals of monarchy,’ and urged them to revise the criminal law ‘to comport with the principles of our government.’” Id. at 78 (citation omitted).

282 HIRSCH, supra note 99, at 11 n.87; MCLENNAN, supra note 99, at 37.

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one opened in New Jersey.283 Thus, the experiment in Philadelphia started a process of significant changes in American penal form, as public inflictions of physical suffering gave way to punishments that occurred entirely behind walls and outside of public view.

D. THE SIGNIFICANCE OF LATE-EIGHTEENTH CENTURY PENAL REFORM

We can draw the following conclusions from these early attempts at penal reform. First, penal reform was seen as an important component of the creation of a republican form of government. In this, the colonists were without a doubt working within a comparative framework. They wanted a government, and with it a criminal code, that was unlike that found in England and other countries in Europe. Beyond that, however, they distinguished themselves from regimes that they saw as even less enlightened. Terms like ‘barbaric’ or ‘savage’ were used often and had real content. In discussions of penal codes, references were made to Goth and Vandals who were among the first ‘barbarians,’ so the term could clearly be understood historically, but there were also contemporary examples for writers to draw on, in the form of Indians, Turks, Africans, or the Native Americans on their own borders. The perception Americans had of all of these groups, was that they used physical punishments as a means of terrorizing the population.284 It was in contrast to these examples that the early Americans sought to reform their penal codes.