Length: 11970 words article: Criminal Punishment in America: From the Colonial to the Modern Era Steven A. Hatfield Captain, United States Air Force. Instructor of Law, U. S. Air Force Academy. Bs, Miami University, 1981; jd, University of



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Copyright (c) 1990 United States Air Force Academy Journal of Legal Studies 
USAFA Journal of Legal Studies
1990
1 USAFA J. Leg. Stud. 139


LENGTH: 11970 words

ARTICLE: Criminal Punishment in America: From the Colonial to the Modern Era

Steven A. Hatfield *

* Captain, United States Air Force. Instructor of Law, U.S. Air Force Academy. BS, Miami University, 1981; JD, University of Idaho, 1983.



SUMMARY:
... The primary element of criminal punishment in the United States today is confinement. ... Statistics on capital punishment were started in 1930. ... Interestingly, in England, home of the "Bloody Code" and in most European countries -- the site of the punishment horrors of the eighteenth century described by Blackstone -- capital punishment has been virtually abolished. ... Gradually, criminal punishment in America evolved away from its emphasis on corporal and humiliating punishments until by the end of the first half of the nineteenth century, imprisonment was virtually the only method of criminal punishment used by most states besides capital punishment and monetary fine. ... Towards the end of the eighteenth century, a variety of new ideas on the subject of crime and punishment began to appear which would change the application of criminal punishment in America and throughout the world. ... At least twenty-six prisons employed corporal punishment. ... Most states have abolished corporal punishment in their prisons. ... New ideas concerning criminal punishment began to appear towards the end of the eighteenth century which resulted in the development of the prison and incarceration as virtually the only criminal punishment in existence in America today besides capital punishment, which has become merely a token, the monetary fine, and occasionally, public service work. ...  

TEXT:
 [*139]  I. INTRODUCTION

The primary element of criminal punishment in the United States today is confinement. If convicted of a serious offense, one goes to prison. If convicted of a minor offense, one is sentenced to jail, but that sentence may be suspended, conditioned on good behavior. One may receive a monetary fine for many offenses, which, if not paid, will result in a jail or prison sentence. Only the most heinous offenses might result in capital punishment. Since 1965, the only offense for which a sentence of capital punishment has been executed in the United States has been murder. n1 Capital punishment is not available under the laws of several states. In those cases the maximum legal punishment is life in prison. Public service work as punishment for minor offenses is gaining popularity, however, it is only enforced by the threat of confinement in a prison or jail.

The purpose of this article is to examine the evolution of criminal punishment in America. Most people are vaguely familiar with America's early history of public executions and use of the stocks, the pillory, and the whipping post. Most have also, at some time or other, expressed dissatisfaction with our present system of criminal punishment. Some even advocate a wholesale return to the punishments of the past. How did our concepts of criminal punishment evolve from the antiquated examples just mentioned to our current almost complete reliance on imprisonment? This article will attempt to illustrate that evolution by examining the means that Americans have used to punish criminal behavior; first, in the colonial period and then in the developing United States.

A great deal of intellectual effort has been devoted to answering the question of why we punish. According to Packer, all the theories concerning the philosophical justification for criminal punishment can be boiled down to retribution and deterrence. n2 Retribution is punishment for punishment's sake; the criminal is an evildoer who deserves to have evil inflicted on him. Deterrence is a utilitarian approach. The aim of punishment under this theory is to prevent further criminal behavior. Deterrence of the general public is accomplished by intimidation (the threat of punishment) and deterrence of the offender himself is accomplished by intimidation, incapacitation (punishment in the form of restraint), and rehabilitation (behavioral modification). n3

 [*140]  This article will not explore the philosophical basis for criminal punishment any further, other than to point out how the development of particular theories has influenced the use of particular punishments in American history.

II. THE COLONIAL PERIOD

American law, both civil and criminal, has its roots in the law of Great Britain. While Great Britain was merely one of several European countries that began earnest colonization of America during the seventeenth century, the British colonies were the most numerous and prosperous. These colonies, which eventually declared their independence and formed the United States, built their criminal law systems on the British model.

The different jurisdictions in colonial America drew on the British penal system to varying degrees, depending both on the strength of their allegiance to the Crown and the focus of their existence. According to Chapin, the English law provided 57 percent of the total body of substantive criminal law in the seven English colonial jurisdictions prior to 1660. n4 In Rhode Island 86.2 percent of the criminal law was English in origin while in Massachusetts, Connecticut, and New Haven it was 41 percent or less. The charters of the English colonies did not require exact compliance with the laws of England, only that they not pass laws repugnant to the laws of England. The degree to which each colony deviated from English law reflects how they viewed themselves in relation to the Crown. The Chesapeake colonies remained strictly responsible to authority in England. The Puritan colonies, Massachusetts, Connecticut and New Haven, on the other hand, used biblical law as much or more than English law in fashioning their criminal codes. n5

Even those colonies that depended on English law the most, departed from that model whenever they could to try to remedy some of the problems that were perceived in the British system. One of the most notable problems was the utter lack of imagination of the British in coming up with any sort of punishment short of the death penalty. Virtually every felony was a capital offense. Called the "Bloody Code" n6 this system prescribed the death penalty for over two hundred offenses by the end of the eighteenth century. Even the most minor offenses against property were punishable by death. Larceny of more than five shillings was a capital offense. It would be unfair to try to measure the effectiveness of the Bloody Code, because, rather than being consistently and evenhandedly applied, its harshness and inflexibility resulted in the widespread use of some interesting devices to mitigate its severity.

One of these devices, which had been known to English law for hundreds of years, but which flourished under the Bloody Code, was benefit of clergy. n7 Benefit of clergy saved countless convicted offenders from death and other punishments in England and colonial America. Benefit of clergy was based on the idea that, historically, the English secular courts had no authority over members of the clergy; only the ecclesiastical courts did. A clerk, or member of the clergy, when charged by a secular court, could plead benefit of clergy and be turned over to the church courts. The advantage here was twofold: first, the church courts had no death  [*141]  penalty, and, secondly, the only witnesses allowed in the church courts were those called by the accused. Acquittals were therefore the usual result. n8

Originally, only those who actually were clergy could claim benefit of clergy. Over time, the number of people entitled to claim it expanded until during the seventeenth century, anyone who could read could claim the benefit. However, unless they actually were clergy (proven by inclusion in holy orders) they could claim it only once. Individuals who weren't actually clergy, but who pleaded benefit of clergy after a conviction, were branded on the hand to show they had already once pleaded it. If convicted again, they would be denied the benefit and sentenced. n9 The modern practice of having witnesses take an oath with their hand raised and palm exposed originated with the practice of examining the hand of convicted offenders to determine if they had any previous convictions. n10

The "reading test" which was used to determine entitlement to claim benefit of clergy was administered in court as convicted men were asked to read the fifty-first Psalm. This passage became known as the "neck verse" since its recitation could save the convicted man from hanging. Soon, the illiterate memorized the verse in order to bluff their way through the reading test required to plead benefit of clergy.

Benefit of clergy was a tool used to temper the severity of the English penal system. It's growth and widespread use saved thousands from the gallows. The response to the apparent abuses caused by benefit of clergy was for Parliament and colonial legislatures to make certain offenses "non-clergyable". n11 The First Congress of the United States did so in 1790 for all offenses punishable by death. However, benefit of clergy was not completely abolished by all the states until many years later.

Perhaps the most dramatic and well known application of benefit of clergy in America occurred after the trial of the British soldiers involved in the Boston massacre. Two of the defendants found guilty of manslaughter pleaded benefit of clergy. They were then branded and released. n12

In addition to benefit of clergy, there is evidence of other methods used by the English courts to avoid the consequences of a felony conviction. The use of judicial pardon and transportation increased, transportation being a one-way ticket to America. "Pious perjury," or jury nullification, occurred with more frequency. This referred to the habit of English juries, in the face of overwhelming evidence to the contrary, to make findings which would take the crime out of the range of a capital offense. For instance, a court in a larceny case might find the amount stolen to be less than the paltry sum required to impose the death sentence. As the verdict of the jury was unimpeachable under English law, "pious perjury" flourished. n13

The result of benefit of clergy, jury nullification, and the widespread use of pardons was that the English system, severe in theory, was far from it in practice. Less than one in five offenders brought to trial were convicted and less than half of those sentenced to death were ever executed. n14

Noted above are but some of the peculiarities which sprang up around the English criminal justice system in order to mitigate its harshness. These exceptions to a supposedly inflexible system created an unpredictability of application that  [*142]  undermined the credibility of the system. The English wanted reform, however, reform of an established system was difficult. n15 In America, it was a different story.

In creating their own criminal justice systems, the American colonies had the advantage of starting mostly from scratch but with an established system from which they could draw. The colonies could adopt those aspects of the British system that were considered acceptable and discard those aspects that weren't. The resulting criminal justice systems reflected the self interest of the particular colony. For example, as mentioned before, the system established by the Puritan colonies drew heavily on Biblical law reflecting their religious focus.

The dissatisfaction of the Americans with the "Bloody Code" became immediately apparent as all the colonial systems abolished the death penalty for crimes against property. Flexibility was introduced as judges were given the discretion to impose punishments less than death for offenses which mandated the death penalty in England. In fact, throughout the colonies, the only offenses for which the death penalty was required were murder and treason. n16 This was in stark contrast to laws of England which prescribed death for hundreds of offenses.

While the colonial penal systems might at first appear more lenient in terms of punishment, it should be noted that the Puritan colonies authorized the death penalty for a host of offenses that were not taken quite so seriously by the English. In Massachusetts, the Reverend Nathaniel Ward selected twelve capital laws for inclusion in the Massachusetts Body of Liberties which was adopted by that colony in 1641. These capital laws were taken from books of the Old Testament. Idolatry, witchcraft, adultery, blasphemy, bestiality, sodomy, man-stealing, and false witness in capital cases were included. n17

While adultery was a capital offense in the Puritan colonies it was not so in England. Nor was it in Rhode Island and Plymouth. In addition, there were a whole host of other sexual offenses which were capital offenses in the Puritan colonies. Sodomy, homosexuality, even male masturbation in the presence of others could be punishable by death. n18 The majority of the original capital laws of the Massachusetts Bay Colony reflect the religious focus of the colony. Capital laws of a more secular nature, such as prohibitions against rape and treason, were added later.

The capital laws of other colonies, while few in number compared to those in England, reflected their particular interests. For instance, in the great tobacco colony of Maryland, a statute of 1737 made punishable by death, without benefit of clergy, the breaking into and robbing of a tobacco house. n19

The preferred method of execution in colonial America, as in England, was hanging although there is evidence of the occasional shooting or beheading. n20 Hanging was by strangulation. The drop method of hanging, whereby the prisoner is killed instantly by a broken neck and severed spinal cord wasn't adopted until the latter part of the eighteenth century.

All executions were public. There is no evidence of the torture and barbarity that accompanied some executions in England. For example, in late seventeenth century England, the punishment for treason involved dragging the condemned man to the gallows and hanging him by the neck. Before he died, though, he was cut  [*143]  down, disemboweled, and his bowels were burnt before him. He was then beheaded and quartered. The traditional punishment for a female convicted of treason was burning at the stake. n21 As an added deterrent against murder, Parliament passed a law in 1752, that provided that the bodies of convicted murderers were to be delivered to the proper medical authorities for dissection after they were hanged. Supposedly, the fear of post-mortem mutilation would give all would-be murderers second thoughts. This sanction made its way to America and remained in the U.S. Code until 1986. n22

Despite the seeming barbarity of these means of execution, Blackstone wrote:

 
Disgusting as this catelogue may seem it will afford pleasure to an English reader, and do honor to the English law, to compare it with that shocking apparatus of death and torment, to be met within the criminal codes of almost every other nation in Europe. n23

Capital punishment has continued in the United States to the present despite repeated abolitionist movements. The first efforts in America originated in Pennsylvania towards the end of the eighteenth century. Dr. Benjamen Rush and William Bradford, early penal reformers, were major opponents of the death penalty. Rush would later be instrumental in developing the first modern prison in America. Abolitionist movements in the nineteenth and twentieth centuries have been somewhat successful as some states have permanently eliminated the death penalty while others have experimented with abolition only to reinstate it.

Capital punishment was temporarily interrupted in those states that allowed it in 1973, when the U.S. Supreme Court ruled that, at least as it was currently being applied, capital punishment violated the Eighth Amendment to the U.S. Constitution which prohibits cruel and unusual punishment. n24 By 1976, state legislatures drafted capital laws which passed Constitutional muster, n25 however, at least two justices, William Brennan and Thurgood Marshall, remain convinced that the death penalty in any form is unconstitutional.

When one considers overall crime rates in the United States today, (since 1977, over one million incidents of violent crime and over ten million incidents of crime against property per year) n26 capital punishment is extremely rare. Statistics on capital punishment were started in 1930. From 1930 to 1960, over 3,600 individuals were executed in the U.S. From 1960 to 1990, less than 300 were executed and 181 of those were in the years 1960-1964. n27 While only a handful of executions take place every year, there are over a thousand individuals on death row. Despite the fact that it is so rarely used, most of the American public favors the death penalty. n28

The method of execution has undergone some evolution. Hanging, for the most part, has given way to electrocution, lethal gas, and lethal injection. In Utah, a condemned man may choose between hanging and a firing squad. Interestingly, in England, home of the "Bloody Code" and in most European countries -- the site of the punishment horrors of the eighteenth century described by Blackstone -- capital punishment has been virtually abolished.

 [*144]  As has already been mentioned the penalty for nearly every felony in England in the late seventeenth century was death. What distinguishes the early colonial penal systems is their employment of a wide variety of alternative lesser punishments. For instance, as an alternative to actually executing one who had been convicted of a crime, a court in the Puritan colonies might sentence him to stand at the gallows. Standing at the gallows involved being bound and hooded and being made to stand for a certain length of time on the trap door of a gallows with a rope around one's neck. The rope was usually only thrown over the beam of the gallows rather than being tied to it. Presumably, the prisoner knew that he was not actually to be hanged as sentences were announced in open court. However, Browning and Gerassi leave the opposite impression:

 
At the penultimate moment the executioner would move away from the trapdoor and leave the prisoner tied to the gallows for one or two hours. Those who did not suffer heart attacks or total collapse were profoundly sobered. n29

Another category of punishments were the "bodilie punishments." These punishments, which would later become known as corporal punishments, were directed at the body of the offender and intended to cause pain. Aware of the "shocking apparatus of death and torment" employed throughout the world at the time, colonial legislatures were concerned with establishing limits on the severity of these types of punishments. The Massachusetts Body of Liberties, which established the original capital laws of the colony, placed a restriction on bodilie punishments stating, "We allow amongst us none that are inhumane, barbarous, or cruell." n30 A review of the bodilie punishments commonly used in seventeenth century America reflects the ideas of the day as to what was or was not barbarous, inhumane, and cruel.

Foremost among the bodilie punishments was whipping. Whipping was a widely accepted form of punishment throughout the world at the time. In colonial America it was meted out by the stripe. In other words, one might be sentenced to be whipped with twenty stripes, a stripe being the mark made by the whip on unprotected flesh. A limit of no more than forty stripes at one time was recognized throughout the colonies. This limitation, like many other laws of the time, was biblical in origin and based on the Book of Deuteronomy: "Forty stripes he may give him, and not to exceed: lest, if he should exceed, and beat him above these many stripes, then thy brother should seem vile unto thee."

With regard to whipping, as well as all the other bodilie punishments, it appears that the higher the offender's socio-economic status, the less likely he was to receive a whipping. In addition to the forty stripe limit the Massachusetts Body of Liberties stated, ". . .nor shall any true gentleman, nor any man equal to a gentleman be punished with whipping, unless his crime be very shamefull, and his course of life vitious and profligate." n31 Men of standing in the community would receive a fine and even this would be remitted after a period of good behavior. Thus, whipping appears to have been reserved for those who could not afford to pay a fine. n32

 [*145]  Whippings were administered in public as were all other forms of corporal punishment. The great majority of whippings took place at a centrally located whipping post where the offender was bound and the whip applied to his bare back. n33 If the crime was particularly offensive, the culprit was bound to the back of a cart and forced to walk behind it. The stripes were applied as the cart was pulled through the town. n34

More serious offenses might warrant branding. Whipping was by far more common, however, branding was an alternative where it was felt necessary to mark the criminal so that those who might have later dealings with him would be put on notice. As previously noted, convicted offenders who claimed benefit of clergy were branded on the hand. Others received various letters on various places on the body. The letters would identify the transgression. Branding on the forehead was the most common, however cheeks and shoulders were also branded. n35

Another punishment reserved for serious offenses was the cutting off of one or both ears. Again, as with branding, the offender was obviously marked for life. The cropping of ears was not always neatly accomplished. Sometimes the ears were nailed to the pillory (a description of this device to follow) during the prisoners stay there. When the prisoner's time was up he was permitted to leave; his ears, however, were expected to stay. n36

Other mutilating punishments, popular in England and on the European continent at the time, such as slitting nostrils, removing noses and scalps, and cutting out or piercing tongues with hot irons, never received widespread acceptance in the colonies. This is not to say that tongues were totally safe. Lying, mild blasphemy, and gossip were punishable by fastening a cleft stick to the tongue to prevent talking. The offender was then made to stand in some public place in that condition so that all could see his predicament. An alternative to the cleft stick was gagging. Again the gagged individual was made to stand in public in that condition. n37

Despite the fact that it has been the subject of a significant amount of attention in works of fiction, the ducking stool was not at all a popular means of punishment. The ducking stool was a device in which the prisoner was restrained and repeatedly dunked in water. The device itself was complicated to build and had to be built near a body of water sufficiently deep enough to submerge the victim. The necessity for a deep body of water conflicted with the desire that the punishment be in a central public place so that the greatest percentage of the community could view the spectacle. Thus, while there is evidence of the existence of the ducking stool in colonial America, there is little evidence of its actual use. n38

All the above punishments were executed in public. The purpose, of course, was to add insult to injury. Other punishments, reserved for minor offenses, were not so concerned with pain as public humiliation. The stocks and the pillory were used when it was felt that public shame and humiliation would best serve justice. The stocks was a device which held the victims hands and feet securely between wooden planks while in a sitting position. The device was originally used only as a means of restraint, a cheap jail without a roof. n39 By the seventeenth century, though, the humiliating effect of sitting in the stocks was being utilized as a punishment.

 [*146]  The pillory held the victim's head and hands in place while in a standing position. Evidently, the pillory was considered much worse than the stocks. This was partly because ear cropping and whipping occasionally took place in the pillory so it was naturally associated with more severe punishment, and partly because it held the victim's head immovable in a much more uncomfortable position while forcing him to stand. In this position the prisoner was at a severe disadvantage should he wish to debate the merits of his punishment with any passerby. Their ability to stuff a piece of garbage or animal excrement in his mouth insured they would have the last word. Since they were seen as less severe, the stocks were used a great deal more often than the pillory. A session in the stocks or pillory would last from one hour to all day.

In the same vein as branding but with the emphasis on humiliation, one might be sentenced to wear a less permanent symbol of his crime. A drunkard might wear the letter 'D' for several weeks or he might be sentenced to stand in a public place for several hours with a written description of his offense attached to his clothing, hung around his neck or pinned on his forehead. n40

In keeping with the religious nature of many of the colonial penal systems, courts often ordered offenders to make public confessions. This was thought to cleanse the soul just as effectively as any other means of humiliation. Fines were a widely used punishment and, as noted before, were substituted for more severe or physically painful punishments in the case of well-to-do offenders.

Banishment was a punishment which, at first glance seems relatively painless, but actually had serious and far reaching effects. It was particularly serious in colonial America because there was almost nowhere one could go to make a fresh start. Most communities were very tight-knit and any stranger arriving on the scene was considered an outsider and immediately suspect. To enforce their decrees of banishment, colonial courts usually adjudged a punishment to be imposed should the banished person return. Often, the contingent punishment was death.

A consequence of conviction in seventeenth century England which was viewed with disfavor in colonial America was attainder. The results of attainder were forfeiture and corruption of blood. While it was somewhat complicated in actual practice, n41 the essence of forfeiture was that a convicted felon stood to lose all his real and personal property to the King. Corruption of blood made it impossible for his lineage, either backwards or forwards to obtain his property or to hold a title.

Attainder never gained widespread acceptance in colonial America. During the seventeenth century, reformers in England were calling for its abolition. Forward thinking penal systems in America refused to give any effect to attainder just as they had refused to continue the English tradition of viewing crimes against property as capital offenses. The Massachusetts Body of Liberties provided, "All our lands and heritages shall be free from all . . . forfeitures, upon the deaths of parents or ancestors, be they natural, casual, or judicial." n42 Attainder and corruption of blood were finally completely eliminated from the American criminal justice scene by the U.S. Constitution.

Torture was not an element of punishment in colonial America. The subject was addressed in the Massachusetts Body of Liberties. It stated:

 
 [*147]  No man shall be forced by torture to confess any crime against himself nor any other unless it be in some capital case, where he is first fully convicted by clear and sufficient evidence to be guilty, after which if the cause be of that nature, that it is very apparent there be other conspirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane. n43

 
As noted above, the Body of Liberties prohibited bodilie punishments that were inhumane, barbarous, or cruel. Tortures couldn't be barbarous and inhumane but apparently they could be cruel. The prohibition against cruelty was left out of the restriction on torture perhaps because it was recognized that torture that doesn't retain any cruelty ceases to be torture.

There is evidence of at least one death by torture in Massachusetts despite the supposed limit placed on it by the Body of Liberties. During the Salem witch trials, one Giles Corey suffered the English torture of peine forte et dure, or pressing to death, for failure to plead to the charge of witch-craft. n44 Traditionally, it was extremely important under English law for a court to secure a plea. This was because a suspect could not formally be found guilty unless he first entered a plea. If he could not be found guilty and formally convicted, there would be no attainder.

Thus, it was incumbent upon the King's courts to coerce a plea lest the prisoner's property escape seizure. Pressing was a torture used to compel suspected criminals to plead to indictments. Pressing to death involved laying the victim on his back, binding his hands and feet, placing a wide board on his chest, then placing increasing amounts of weight on the board until the victim agreed to plead or expired. Despite the fact that attainder was supposedly outlawed by the Massachusetts Body of Liberties, Giles Cory, a successful and wealthy business man, remained mute when asked to plead and was pressed to death. Perhaps Corey had no confidence in the Body of Liberties. After all, it supposedly outlawed torture in his situation too. Thus, fear of attainder may have been his motivation to remain silent. n45 By the end of the eighteenth century most European countries, where torture retained its official status the longest, had abolished the practice. n46

Noticeably lacking in an examination of colonial punishments is any type of prison-like confinement. Initially, confinement facilities in America, like their English counterparts were only intended to be places where suspected criminals awaited their trials. n47 If convicted, their sentences rarely included a return to the place where they had been held. Though some offenses did call for incarceration and though it was occasionally adjudged, it was uniformly of much shorter duration than what we are accustomed to today.

When denial of freedom was the goal of punishment, a convicted man could be sentenced to indentured servitude or slavery, as it was unabashedly called. Servitude was ordered where offenders could not pay an adjudged fine, where restitution was required (for example, a thief might be condemned to serve his victim), or where it appeared that idleness may have contributed to the offender's transgression.

Throughout the seventeenth and eighteenth centuries the punishments noted above were used to varying degrees in America. Gradually, criminal punishment in America evolved away from its emphasis on corporal and humiliating punishments until by the end of the first half of the nineteenth century,  [*148]  imprisonment was virtually the only method of criminal punishment used by most states besides capital punishment and monetary fine. This evolution can be attributed to the birth of the modern science of penology.



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