--------------------------------------------- Capital Punishment and "Absolute Necessity" Some Quotes and Cites, 1701-1799 --------------------------------------------- Compiled by Margo Schulter mschulter@calweb.com 916/457-8935 --------------------------------------------- "It cannot be too strongly inculcated, that capital punishments, when unnecessary, are inhuman, and immoral;..." -- William Eden, _Principles of Penal Law_ (1771) 263. The purpose of this selection of 18th-century quotes is to place Article 16 of the Maryland Constitution in the larger context of a widespread and evolving view that only "absolute necessity" could justify the punishment of death. The following material may become more useful in connection with a "Research Guide and Roadmap" which I am now preparing. Immersion in 18th-century sources, and a sense of a timeline for developments regarding legal thought and capital punishment in that century, as well as a "roadmap" linking those developments to constitutional interpretation in the early 21st century, are starting points for research which the guide will address, although how best to proceed from there is an open question where we may share together in discovering the best answers. --------------- List of Authors --------------- 1. Anonymous, _Hanging, Not Punishment Enough_ (1701) 2. Cesare Beccaria (1764) 3. French Commentary on Beccaria, attributed to Voltaire (c. 1770) 4. Baron William Eden Auckland (1771) 5. Maryland Article 16, Originally Article 14 (1776) 6. William Turner (1785) 7. Sir Samuel Romilly (1786) 8. Claude-Emmanuel Joseph Pierre, Marquis de Pastoret (1790) 9. Justice James Wilson, United States Supreme Court (1791) 10. Michel Louis Le Pelletier de Saint-Fargeau and Adrien Duport (1791) 11. Justice William Bradford, Pennsylvania Supreme Court (1793) 12. Pennsylvania Statute Defining Degrees of Murder (1794) 13. Robert J. Turnbull (1796) 14. Jeremy Bentham (1799) * * * While Beccaria's _Essay On Crimes and Punishments_ (1764) is, of course, the premier source for 18th-century abolitionism, the doctrine of "absolute necessity" can actually be found in at least one earlier source, a pamphlet at the very opening of the century entitled _Hanging, Not Punishment Enough_ (1701). Once Beccaria's amazingly influential essay has placed total or near-total abolition of the death penalty squarely on the table, the conclusions reached on this issue by people favoring the "absolute necessity" test -- or sometimes "evident necessity," "most absolute necessity," or simply "necessity" -- can vary. Thus, among those cited below, Turner (1785), Pastoret (1790), Pelletier (1791), Duport (1791), Bradford (1793), Turnbull (1796), and Bentham (1799) share Beccaria's view that the death penalty is unnecessary and thus should be abolished for at least all ordinary peacetime offenses, if not all crimes. Two other critically important American supporters of this view, Benjamin Rush and Tom Paine, cast their arguments for total abolition mainly on grounds other than the "necessity" test, although many of their arguments would be relevant under this test. In contrast, Eden (1771, 222-223) takes it as axiomatic that the death penalty for deliberate murder is "necessary" for the "safety" and "morality" of society. To support this conclusion, he simply cites two often-invoked Bible texts: Genesis 9:6. Whoso sheddeth man's blood, by man shall his blood be shed. Numbers 35:31 Ye shall take no satisfaction for the life of a murderer, which is guilty of death, but he shall surely be put to death, so ye shall not pollute the land wherein ye are. Abolitionists Turner (1785), Bradford (1793), and Turnbull (1796), in addition to invoking the "necessity" test, address this religious issue, with Rush (1787 and later) providing extensive arguments for interpretations of the Bible consistent with the total abolition of the death penalty. Other authors such as Romilly (1786) and Wilson (1791) invoke the "necessity" test and cite the opinion for total abolition as an esteemed and respectable view without themselves expressly endorsing or opposing this view. While the main focus here is on the test of "absolute necessity," a prefatory illustration may not be out of place to show how the term "sanguinary" could then and now refer to capital punishment in general. After having been one of the strongest supporters for trying and convicting Louis XVI or "Louis Capet" as he was styled among the French anti-monarchist, Tom Paine on January 15, 1793, spoke as likewise one of the most powerful advocates for sparing his life: "Monarchical governments have trained the human race, and inured it to the sanguinary arts and refinements of punishment; and it is exactly the same punishment which has so long shocked the sight and tormented the patience of the people, that now, in their turn, they practice in revenge upon their oppressors. But it becomes us to be strictly on our guard against the abomination and perversity of monarchical examples: as France has been the first of European nations to abolish royalty, let her also be the first to abolish the punishment of death, and to find out a milder and more effectual substitute." Thomas Paine, _Writings of Thomas Paine_, Vol, III (1791-1804), ed. Moncure Daniel Conway (New York, G.P. Putnam's Sons, 1894), Online Library of Liberty, E-Book edition at 123, ----------------------------------------------------- 1. Anonymous, _Hanging, Not Punishment Enough_ (1701) ----------------------------------------------------- The pamphlet _Hanging, Not Punishment Enough, for Murtherers, High-way Men, and House-breakers. Offered to the Consideration of the Two HOUSES of PARLIAMENT_ (1701), reprinted by Basil Montagu (Longman Hurst, Rees, Orme, and Brown, 1812) urges that the customary English execution by hanging has proven ineffectual in deterring serious felonies. In the excerpts which follow, the author's frequent footnotes and citations have been omitted. "My opinion is, That our present Laws that relate to Murtherers, High-way Men, and House-breakers, are too favourable, and insufficient for the End they are intended. I fear not to say _too favorable_, even tho' they extend to Death; since _that_ Death the Law enjoyns, is found unable to deter 'em." Id. p. 7. In urging Parliament to consider yet more extreme punishments such as breaking on the wheel, then common in France, s/he acknowledges that an execution, torturous or otherwise, is a measure that can be justified only by necessity: "And I know, that `tis frequently alledg'd, That you take away a Better thing, and that is a Man's Life, for that which is worse, and that is, your Money and Goods; but tho' this be speciously enough urged, yet I doubt not, but the Public Safety and Happiness may lawfully and reasonably be secured by this way, if it can by no other. No doubt, if other methods would do, there had never been recourse to _Death_, since _that_ was questionless reserved as the _last_ Refuge." Id. at 8. After arguing that a few aggravated executions might not only restore law and order but save the lives of many who would otherwise have perished on the gallows, s/he returns to the theme of absolute necessity: "But I still insist upon what I laid down at first, that the good and quiet of the _Whole_ is of so great concernment that I doubt not but any Community may secure it self, as it best can, without the imputation of Cruelty; since one would judge so well of Humane Nature, as to believe that such harsh methods would not be made use of, before they are absolutely necessary, any more than a Physician would Cup or Scarifie his _Patient_, unless to prevent his Dissolution, a greater evil." Id. at 19. Having raised the question of whether executions, aggravated or otherwise, are "absolutely necessary," s/he canvasses some noncapital alternatives, such as "condemning them for Life, to the same condition with the _Negro's_, in our _West Indian_ Plantations, first marking them in the Face, to distinguish them from Honest Men." Id. p. 21. "I could wish indeed that _that_ improved, as it may easily be, or some other method might be thought of, for suppressing them; if it might be, without taking away their Lives: but what I have hitherto written, is upon supposition that _none_ can be. If there could, I would most gladly recant my own opinion, and much prefer _that_, as more agreeable with Religion, right reason, and the true ends of Government." Id. p. 22. Accordingly, recognizing that torturous executions are unlikely to win general favor in England, s/he invites readers to consider preferable alternatives: "But this I may be allowed to hope, that I may provoke some one to promote somewhat _more_ useful than I have done. And if my Errors shall so contribute to the publick good, I shall rejoice in them." Id. p. 22. -------------------------- 2. Cesare Beccaria (1764) -------------------------- In his _Essay on Crimes and Punishments_, Beccaria argues that capital punishment is "neither necessary nor useful," an argument which will be embraced and amplified by supporters of abolition in the rest of the 18th century and beyond. Many of these followers, while rejecting or at least remaining noncommittal on his argument that society has no "right" to impose the punishment of death, will enthusiastically agree that only necessity could justify the use of such a right. "But the punishment of death is not authorised by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate, that it is neither necessary nor useful, I shall have gained the cause of humanity." Cesare Beccaria, _Essay on Crimes and Punishments, Translated from the Italian With a Commentary, Attributed to Mons. De Voltaire, Translated from the French (4th ed., London: Printed for F. Newbery, 1775), p. 103. Beccaria asserts that capital punishment could be "necessary" only for extraordinary crimes such as treason, and even then only in conditions where stable government is either absent or imminently threatened: "The death of a citizen cannot be necessary, but in one case. When, though deprived of his liberty, he has such power and connexions as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty; or in times of absolute anarchy, when disorders themselves hold the place of laws." Id. at 103-104. Such an extraordinary scenario stands quite in contrast to the usual state of affairs in a sound government: "But in a reign of tranquillity; in a form of government approved by the united wishes of the nation; in a state well fortified from enemies without, and supported by strength within, and opinion, perhaps more efficacious; where all power is lodged in the hands of a true sovereign; where riches can purchase pleasure and not authority, there can be no necessity for taking away the life of a subject." Id. at 104. Beccaria strikingly raises the theme of "necessity" again in a discussion of why the executioner, actually an innocent agent carrying out the public will, should nevertheless meet with "contempt and indignation," unlike the soldier who similarly serves as an instrument of the "general security," id. at 113. "What then, is the origin of this contradiction? Why is this sentiment of mankind indelible, to the scandal of reason? It is, that in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them, that their lives are not lawfully in the power of any one, but of that necessity only, which with its iron scepter rules the universe." Id. at 113. ------------------------------------------------------------------ 3. French Commentary on Beccaria, Attributed to Voltaire (c. 1770) ------------------------------------------------------------------ The French Commentary on Beccaria, included in the 1775 edition I use above and here, must have been written before 1771, since Eden cites it in that year. The theme of "evident necessity" comes up in Chapter XI "On Death Warrants," where it is urged that, as in China and England, an execution should take place only after a monarchical or other "supreme council" has had an opportunity to review the case and decide whether the death of the offender is really required: "The members of the supreme council are more enlightened, less liable to prejudice, and better qualified than a provincial judge, to determine whether the state require severe punishments. In short, when inferior courts have judged according to the letter of the law, which possibly may be rigorous, the council mitigates the sentence according to the true spirit of all laws, which teaches, never to sacrifice a man, but in evident necessity." Id. at xl. Another observation on the death penalty might tie in both with Beccaria's concept of "necessity" and the wording of Maryland's Article 16, the reference here being to the later Roman Republic: "The Romans never condemned a citizen to death, unless for crimes which concerned the safety of the state. These our masters, our first legislators, were careful of the blood of their fellow citizens; but we are extravagant with the blood of ours." Id. at xxxvii. The theme of "necessity" also comes up in Chapter XIV "On the Difference between political and natural Laws." While a natural law addresses conduct we would term _malum in se_, "crimes that are universally and justly punished," political laws are something else again: "I call _political_ laws, those that are made in compliance with present necessity, whether it be to give stability to the government, or to prevent misfortune. For example: being apprehensive that the enemy may receive intelligence from the inhabitants of the city, you shut the gates, and forbid any one to pass the ramparts on pain of death." Id. at xlvi. The examples which follow, real or hypothetical, are often wittily if grimly satirical of the pretenses of power. as in this scenario likely alluding to the 17th-18th century law of war permitting the execution of a besieged garrison which refuses an invitation to surrender and is then defeated in battle: "The right of reprisal is also a law adopted by nations. For example, your enemy has hanged one of your brave captains, for having defended an old ruined castle against a whole army. One of _his_ captains falls into your hands; he is a worthy man, and you esteem him; nevertheless you hang him by way of reprisal. You say it is the law: that is to say, because your enemy has been guilty of an enormous crime, you must be guilty of another." Id. p. xlviii. The commentator concludes the chapter: "These political sanguinary laws exist but for a time; they are temporary, because they are not founded in truth. They resemble the necessity which, in cases of extreme famine, obliges people to eat each other: they cease to eat men as soon as bread is to be had." Id. p. xlviii. ------------------------------------- 4. Baron William Eden Auckland (1771) ------------------------------------- Eden's _Principles of Penal Law_ (London: Printed for B. White and T. Cadell, 1771) has a powerful statement on "absolute necessity," although this is assumed not to conflict with the death penalty for murder, seen as mandated by the Hebrew Bible. After describing the widespread and often inventively cruel forms execution found in the early Roman Republic, as well as under the Emperors, Eden contrasts these periods with the late Republic: "These cruelties were founded on the twelve tables of the Decemvirs, and were contrary to the republican spirit. Accordingly by the Porcian law, made in the 454th year of Rome, it was ordained, that no Citizen should be put to death. This exemption was in the other extreme, and erroneous in its foundation. Capital executions are in all states necessary." Id. at 21. He then adds: "Nothing, however, but the evident result of absolute necessity, can authorize the destruction of mankind by the hand of man. "The infliction of Death is not therefore to be considered in any instance, as a mode of punishment, but merely as our last melancholly resource in the extermination of those from society, whose continuance among their fellow-citizens is become inconsistent with the public safety." Id. at 21-22. In a discussion of the various kinds of homicide under English law, he concludes with this observation about "deliberate murder," the adjective "deliberate" possibly reflecting his misgivings about some types of felony murder based on "arbitrary inferences" where there was no actual intent to kill or injure any human being, see id. at 206-210. "The proper judgment against deliberate murder, is death; and in the rigid infliction of this judgment both the safety and morality of mankind are greatly interested." Id. at 222. To demonstrate this point he simply invokes Genesis 9:6 and Numbers 35:31, see id. at 222-223, Bible passages quoted above in the introduction to this compilation. To the murder of another human being he contrasts two cases in ancient Athens where offenders were executed for wantonly killing or mutilating a bird, id. at 274. While noting worthy motives for punishing such repulsive acts of cruelty, he adds: "[B]ut such motives are not of that urgent necessity, which can authorize a Legislature to place the Life of a Man in competition with that of an insignificant bird. It must be confessed indeed, that, by the laws of England, the malicious killing or wounding of any cattle is at this day capitally punished; but severities so preposterous confound every idea of proportion between the enormity of crimes, and the extent of their punishments." Id. at 275. Thus for Eden, the doctrine of "absolute" or "urgent" necessity generally militates against capital statutes which seem intuitively disproportionate. He is ready to consider an exception for certain temporary and emergency measures which may be "not inconsistent with sound policy" if confined strictly to the period of the emergency, id. at 286: "Such, for instance, is that statute [Stat. 43. Eliz. c. 13] under which it is at this day a capital offense, to give corn, cattle, or other consideration, to the Scots for protection." Id. at 286. Since the accession of Queen Elizabeth I to the throne was on November 17, 1558, this statute was passed around 1601, when border unrest with Scotland may have been a problem. Eden's main point may be not so much to weigh the "absolute necessity" of this sanguinary law in 1601 as to note the patent absurdity of it remaining on the books in 1771, long after the Union of England and Scotland had obviated its purpose. Eden's book, published five years before the Maryland Constitution of 1776, is of special interest because of its evidence influence on American writers, including two addressed below, United States Supreme Court Justice James Wilson, and Pennsylvania Supreme Court Justice William Bradford. In line with Eden's emphasis on the doctrine of "absolute necessity," his following words carry a special weight and power: "It cannot be too strongly inculcated, that capital punishments, when unnecessary, are inhuman, and immoral;..." Id. at 263. These words express values embodied in Maryland's Article 16, and also, as shown below, embraced and voiced by American jurists around the time that the Eighth Amendment was adopted, thus illuminating the meaning of the Cruel and Unusual Punishments Clause as drawn from the enlightened standards of decency of 18th=century society. ---------------------------------------------------- 5. Maryland Article 16, originally Article 14 (1776) ---------------------------------------------------- The original Maryland Declaration of Rights, November 11, 1776, includes Article 14: "XIV. That 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." The current version of Article 16 (as of November 2, 2010): "Art. 16. That sanguinary laws ought to be avoided as far as it is consistent with the safety of the State; and no law to inflect cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter." William Bradford's version (1793 at 6, see below) differs slightly from the original Article 14 as quoted above: "That sanguinary punishments ought to be avoided as far as is consistent with the safety of the state." --------------------------------- 6. Reverend William Turner (1785) --------------------------------- The Reverend Turner's "Essay on Crimes and Punishments" read on March 24, 1785, and published by the Literary and Philosophical Society of Manchester (Vol. II, p. 293) is excerpted in Basil Montagu, ed. _The Opinions of Different Authors Upon The Punishment of Death, Selected by Basil Montagu, Esq. of Lincoln's Inn, v. 1 (2nd ed., London: Printed for Longman, Hurst, Rees, Orme, and Brown, 1816), at 285-297. Like Beccaria, he invokes the test of necessity -- asking if capital punishment is "essentially necessary" to "secure" the benefits of society for its members: "Every wise and benevolent man will consider with himself, that as life is a blessing which he cannot give, so it behoves him carefully to examine his right to take it away. He will consider, that when mankind entered into society, they only gave up such a portion of their natural liberty, and submitted to only such a measure of restraint, as was essentially necessary to secure to its members the advantages of society: and therefore, that if this important end can be answered without having recourse to the punishment of death, there is no right belonging to the magistrate of inflicting such a punishment." Id. at 289. He adds that "so far from being necessary to that end, capital punishments are extremely impolitic," id. at 289. Turner further argues that capital punishment is out of keeping with what we might now call evolving standards of decency: "And as frequent capital punishment is an argument of the want of a regular police, and the relict of barbarism in the constitution of any society, so its being still obstinately continued in use among us, tends to retain among the common people those barbarous manners, from which this kind of punishment originally took its rise, and to check the progress of that humanity of spirit, which, happily for mankind, has of late been making such rapid advances in our part of the world. Let then the spirit of our punishments correspond with the spirit of the times, in order that we may sooner attain that perfection of universal charity, which ought to be the governing principle of the human mind." Id. at 291. In the 18th century, "police," as in "regular police," may refer not only to constables or other law enforcement officers in the current sense, but also to the general administration of the laws and maintenance of good morals through magistrates (e.g. the English Justices of the Peace) and other civil authorities. From an Anglo-American perspective, the term "police" could less pleasantly evoke the system of authoritarian control prevailing in France and other parts of Europe with intricate networks of prosecutors, surveillance, and official and unofficial spies. The challenge for English reformers, and also American ones such as Bradford (1793), was to abolish sanguinary laws while maintaining both good public order and the traditional rights of the citizen. While criticism of sanguinary laws pertaining to crimes against property, or even robbery with force where the victim's life is spared, had been widespread in 18th-century England, Turner like Beccaria carries the challenge further: "Indeed the advocates for capital punishment seem now in general to be aware of the weakness of their ground, and at present seldom attempt to maintain it, except in cases of murder and high treason." Id. at 291. As applied to the situation in England as of 1785, this assessment might be regarded as overly sanguine -- as opposed to sanguinary -- given that it would require another two decades and more for reformers like Sir Samuel Romilly to succeed in the modest task of abolishing the death penalty for crimes such as "privately stealing" (e.g. pickpocketing), shoplifting, or stealing from bleaching grounds, let alone forgery. However, it better fits the situation about to emerge in the United States, where Pennsylvania would by 1794 abolish capital punishment for all crimes but murder in the first degree, and New York by 1796 for all crimes but murder and treason. In focusing on murder and treason, Turner reaches a conclusion like that of Beccaria, but with a determination squarely to address the religious issues raised by Eden and others including Blackstone as well as the author of _Hanging, Not Punishment Enough_: "Perhaps in the latter case, it may sometimes be necessary; and in the former, Scripture is brought in upon us, and requires, it is asserted, the rigorous infliction of death." Id. at 291. Given the generally humane Eden's advocacy of "the rigid infliction" of death for "deliberate murder" based on the preemptory quotation of two Bible passages, Turner may well have him specifically in mind, and he offers a reply both religious and secular in scope which will influence other abolitionists, including Benjamin Rush of Pennsylvania. First arguing that the laws of Moses, including mandatory capital punishment for murder with malice (e.g. Numbers 35:31), "were made for the regulation of a very peculiar people, for very particular purposes," he finds that "their whole civil constitution seems to have been admirably adapted to the progress then made in political advancement." However, he sees no obligation to adopt this or other provisions of the Mosaic law such a literal reading of the _lex talionis_ ("an eye for an eye, etc..) in an 18th-century setting. See id. at 292. Then comes the arguably more difficult text of Genesis 9:6, "Whoso sheddeth man's blood, by man shall his blood be shed." Since this text was "given to Noah and his posterity," it is often alleged "to be obligatory upon all the descendants of that patriarch." Id. at 292. Since Noah and his family were according to Genesis the only human survivors of the great Flood, that would mean mandatory capital punishment for murder as an obligatory institution for all humankind. Turner replies by offering an alternative interpretation of the passage drawn upon by Rush and many other abolitionists over the next century and more, indeed to this very day: "I hope I shall not offend any one, by taking the liberty to put my own sense upon this celebrated passage: and to enquire, why it should be deemed a precept at all. To me, I must confess, it appears to contain nothing more than a declaration of what will generally happen; and in this view, to stand upon exactly the same ground with passages such as the following: `He that leadeth into captivity, shall go into captivity;' [Revelations 15:10] -- `He that taketh up the sword shall perish by the sword.' [Matthew 24:52] The form of expression is precisely the same in each of these texts; why then may they not be all interpreted in the same manner, and considered not as commands, but as denunciations?" Id. at 292-293. Wielding the text "He that leadeth into captivity, shall go into captivity," Turner brilliantly continues: "And if so, the magistrate will be no more bound by the text in Genesis, to punish murder with death, than he will, by the text in the Revelations, to sell every Guinea captain to our West Indian planters. And yet however just and proper such a proceeding might be, I suppose no one will assert, that the magistrate is bound to it by either that or by any other text in the Scriptures; or that that alone would be admitted, as a sufficient reason for so extraordinary a measure." Id. at 293. Having thus linked capital punishment and slavery as evils to be abolished, Turner returns to the main issue: the actual necessity for the death penalty: "But in considering the punishment of murder by death, upon the footing of political advantage, which alone has anything to do with the question, may it not justly be asked, what natural reason can be given, why the loss of one member of society should necessarily be followed by the loss of another; and if none can be given, whether the present practice on such occasions, is any thing more, that a barbarous expedient to get rid of a difficulty, than hastily cutting a knot, because a little dexterity is requisite to untie it." Id. at 293. In his conclusion, having cited Blackstone on the multitude of crimes subject to capital punishment, he also links the need for reform to another issue where England has been a positive example for the world: "[O]ught not our legislators to undertake, without delay, the great but necessary work of reforming these sanguinary and impolitic statutes. Our country gloriously led the way in the abolition of torture; let us not be ashamed to follow the good example which others have set us in return, and still further humanize our civil institutions." In 1793, Bradford will likewise draw a parallel between the increasingly solid consensus in Europe against torture and the growing perception that capital punishment is "unnecessary," and therefore "cruel." ----------------------------- 7. Sir Samuel Romilly (1786) ----------------------------- In 1786, the young Samuel Romilly (later knighted) published a work of great importance for criminal law reform in both England and the United States: _Observations on a Late Publication Intituled, Thoughts on Executive Justice: To which is added, A Letter, containing remarks on the same work_ (London: Sold by T. Cadell and R. Faulder, 1786). From an American perspective, this book is of special interest because the "Letter from a Gentleman Abroad to his Friend in England" of March 14, 1785 with which it concludes, with the author discreetly identified only as "one of the best and most eminent men of the present age," was in fact written by Benjamin Franklin. The book to which both Romilly and Franklin were responding was by the Reverend Martin Madan: _Thoughts on Executive Justice, With Respect to our Criminal Laws, Particularly on the Circuits. Dedicated to the Judges of Assize_ (London: Printed for J. Dodsley, 1785). Madan's complaint is that the lawlessness rampant in England is largely made possible by capital juries which acquit against the evidence, and judges who follow their own misguided consciences rather than the law by indiscriminately granting reprieves "so as to _save felons_ only because they are _condemned_." Id. at 50. "The law says they _shall be hanged_; those who are to put this law in execution, say -- they shall _not_. In short, the _sic volo_ of the legislature, is absolutely controuled by the _sic nolo_ of a Judge." Id. at 39-42, n. at *. For Romilly, the proper remedy is not to seek a stricter enforcement of these laws, but to replace them with statutes more reasonably and justly proportioning the punishment to the crime. In urging this solution, he invokes the test of necessity: "All punishment is an evil, but is yet necessary, to prevent crimes, which are a greater evil. Whenever the legislature therefore appoints for a crime a punishment more severe than is requisite to prevent the commission of it, it is the author of unnecessary evil." Romilly, _Observations_ at 27. Thus Romilly's indictment is not of merciful jurors and judges, but of the legislature enacting such "unnecessary" punishments: "If it do this knowingly, it is chargeable with wanton cruelty and injustice; if from ignorance, and the want of a proper attention to the subject, it is guilty of a very criminal neglect." Id. at 27. Having set forth the test of necessity and the moral accountability of lawmakers who fail to apply it reasonably, he does not hesitate to draw the logical conclusion: "If these principles be just, the legislature of Great Britain must, in one or other of these ways, be culpable, unless it be impossible to prevent theft by any punishment less severe than death." Id. at 27-28. Romilly then applies the test of necessity to the facts: "The author of the `_Thoughts on Executive Justice_' seems to think, that it is impossible, and that these severities are to be justified on the ground of necessity. But experience shows the erroneousness of this opinion, because in several European states, where the punishment of death is never inflicted but for the most atrocious crimes, these lesser offences are very rare; while in England, where they are punished with death, we see them every day committed..." Id. at 28-29. A lesson Romilly also draws, from the counterproductive nature of these sanguinary laws, is that their cruelty impedes their own execution, as Montesquieu and others have also observed: "If laws operate in violation of the feelings and understandings of men, they are unjust and unwise, by however legitimate an authority they were enacted; if they be repugnant to the character of a nation, they must remain unexecuted, by whatever regulations they are sought to be enforced." Id. at 38. Early in this reply to Madan, Romilly takes respectful note of the views of Beccaria favoring abolition of the death penalty for all offenses, while making it clear that his own agenda will be more modest: "I shall not, with the Marquis of Beccaria, and the many writers who have adopted his humane principles, content that the punishment of death ought not, and cannot legally be inflicted by the legislature for any crime committed under any circumstances; but this appears to me abundantly clear, that death cannot be inflicted for a mere invasion of property, consistently with reason and justice, nor without a gross violation of the laws of nature, and the precepts of our religion." Id. at 24-25. This passage raises two important points from a 21st-century constitutional perspective relating to either Maryland's Article 16 or the federal Eighth Amendment. The first is that in 1786, Beccaria's teaching as stated by Romilly that the death penalty "cannot legally be inflicted by the legislature for any crime committed under any circumstances" was familiar, with the word _cannot_ implying that such legislation would be not merely unwise but unconstitutional. The second is that in the late 18th century, or today, the concept of a "cruel" or excessive punishment may actually have two distinct aspects or prongs, as it were. In arguing, more modestly than Beccaria, "that death cannot be inflicted for a mere invasion of property," Romilly asserts not only that such laws violate the test of necessity, but that they involve "a gross violation of the laws of nature." He incisively explains: "Between a sum of money and the life of an individual, there is no proportion, or, to speak more accurately, they are incommensurable." Id. at 25. In connection with his allusion to "the laws of nature," he cites Hugo Grotius. id. at 25 n. 20: "_Lex ius necis non habet in omnes cives ex quovis delicto, sed demum ex delicto tam gravi ut mortem mereatur_. Grot. de jure bel. lib. 2. c.1. sec. 14." Rough translation: The law has not the right to kill any citizen for whatever crime you wish, but only for a crime so serious that it merits death. -- M.S. Thus the death penalty would be disallowed under Romilly's principles if it were either grossly disproportionate to the offense, and thus "in violation of the laws of nature"; or if it were "unnecessary," albeit not in this sense disproportionate, as Beccaria, Turner, and others have by 1786 asserted even in the case of deliberate murder. At least in England, Romilly saw the task of abolishing grossly disproportionate capital statutes for offenses against property as Herculean enough, so that the possibility that death might be an "unnecessary" punishment even for murder may have seemed to him a bit academic for a practical legislative agenda. However, his respectful mention of Beccaria and other supporters of complete abolition reminds us that the necessity test itself is not limited by Romilly's very realistic sense of the politically possible for criminal law reform in the British Parliament as of 1786. His respectful mention of Beccaria and others holding capital punishment "unnecessary" for murder as well as lesser offenses may be read as also a friendly nod to the future. Some 225 years later, Maryland's yet older Article 16, by constitutionalizing the necessity test, is a beckoning bridge to that more humane future. ------------------------------------------------------------ 8. Claude-Emmanuel Joseph Pierre, Marquis de Pastoret (1790) ------------------------------------------------------------ The Marquis of Pastoret, in his _Des Loix Penales_ of 1790 (_Of the Penal Laws_), seeks as part of a general investigation of criminal law and its procedures to investigate in depth the various legal and political theories of capital punishment met in French and other European writings on this subject. Applying the test of "absolute necessity," he like Beccaria finds the death penalty to be unnecessary for all crimes except treason or conspiracy threatening "the safety of an entire community." And he accompanies even that exception with a warning which would prove all too prophetic as the early stages of the French Revolution then in progress degenerated into Terror and sanguinary fratricide. Basil Montagu, _The Opinions of Different Authors upon the Punishment of Death, Selected by Basil Montagu, Esq. of Lincoln's Inn_, vol. 2 (London: Longman, Hurst, Rees, Orme, and Brown, 1812), at 6-50, conveniently provides a translation of Pastoret's investigation on capital punishment. It may be helpful to clarify that this translation includes Pastoret's introduction at 6-9, followed by his extensive excerpts from Montesquieu, Rousseau, Beccaria, Mabry, and Filangieri at 9-23; and then his own critique at 24-50. The Table of Contents in Montagu, which might leave the impression that the five selections from these authors are separate items following Pastoret's presentation rather than subdivisions within it, invites this clarification. Rightly honored both as a man of letters and a student of the history of law and legislation, Pastoret begins by summing up the "three principal theories which have been proposed, and which are all sustained by respectable authorities." "These are -- 1. To continue capital punishment for all the crimes to which it is at present attached. 2. To abolish it altogether; and 3. To inflict it only in cases of murder, enacting for lighter crimes lighter punishments." Id. at 7. Pastoret, in a passage worthy of Voltaire, writes of people supporting the first viewpoint as committed to "the observance of old customs; and to this important consideration the slight inconveniences, which those customs occasionally create, are compelled to yield." As an example, he cites the assassination of a Roman prefect by one of his slaves. Custom required the execution of "all the slaves who happened to be in the house at the moment of the murder." Id. at 7. "The people, affected by the sight of so many innocent victims, rose in their behalf. Opinions were divided in the senate; but the majority decided in favor of the existing law. Cassius sternly asserted it's demands; observed that, though it was rigorous toward slaves, it was useful for society at large; and concluded his speech by declaring that: `The individual injustice involved in all great examples, is redeemed by their public utility." Id. at 7-8. Given the sanguinary laws then existing in France as well as England for crimes such as domestic theft, the analogy one might draw from this passage between executing the trivially guilty and the wholly innocent is a telling one. Pastoret then turns to the second alternative of total abolition, as most famously advocated by Beccaria: "The advocates of the second hypothesis are animated by the love of humanity. But is this an enlightened love? Does it not hurry them beyond the bound of reason; and make them forget that protection which honesty requires against guilt, and consequently the security and tranquillity of the commonwealth?" Id. at 8. Noting that abolitionists, like those favoring the traditional sanguinary codes, also appeal to "general expediency," he quotes the 1786 criminal code of Leopold, Grand Duke of Tuscany, officially abolishing the death penalty for all offenses, having observed a moratorium on executions since 1769: "`In consideration of the proper objects of punishment -- the redress of the public or private damage; the correction of the delinquent who is still, however, to be regarded as a child of the state, and never beyond the hope of amendment; the certainty, that he shall never again have the power of repeating his atrocities; and, lastly, public example. -- We have resolved to abolish, and do by this present law abolish, forever, the punishment of death in all cases whatever, though the criminal may have been openly convicted of offences hitherto denounced as capital.'" Id. at 8. From a 21st-century perspective, one might add as an aside, Grand Duke Leopold seems to have touched all the bases: retribution and restitution ("redress" of the public or private damage); reform or rehabilitation ("correction" and "amendment"); incapacitation (the "certainty" that the offender can "never" repeat "his atrocities"); and deterrence ("public example"). Having presented total abolition as practiced in Tuscany, Pastoret turns to the policy of Frederic II, who likewise was noted for rejecting capital punishment "except in cases of murder, when he invariably authorized its infliction." Id. at 8. "And this constitutes the third theory; which appears to rest upon the same feeling as the second, under the control of calm and sober reason. But does not this calm and sober reason, too, weaken the impulse of natural sensibility? Do we not perceive, in this modified principle, too gross a remnant of the old ferocity of barbarous and ignorant ages? Can any compromise be made with the rights of humanity? The friends, however, of this opinion, in their turn, refer to the public utility: `The life of the innocent is endangered, if that of the guilty is spared.'" Id. at 8-9. While adopting a view like that of Beccaria, Pastoret prefers to focus not on the abstract "right" of society to impose the death penalty, but rather on a test of "absolute necessity" as the only justification to exercise that right. In responding to defenders of capital punishment such as Filangieri, honored as "the Montesquieu of Italy," Pastoret challenges the analogy of societal self-defense often invoked to justify executions: "A man attacks me: I can defend my own life only by taking his: I kill him. To authorise society to do the same, it must be proved, that she could not defend herself otherwise. But society does not yield, like an assaulted person, to the impetuousity of a first onset, or of a necessary defense: she does not act on a principal of revenge; she punishes, after mature and deliberate reflection. The assailant attacks the whole of me: it is the struggle of one individual against another: and all my strength and means of self-defense are no more than requisite for my protection. But the whole of society is not attacked, in an attack upon one of her members. To a single assailant she opposes the strength of all." Id. at 28. He also vigorously challenges Rousseau's justification that "When the criminal dies, he dies less as a citizen, than as an enemy," and that "It is one of the rights of war to kill the vanquished." Id. at 30. This military metaphor might appeal to certain politicians in the United States who have described the death penalty as a weapon in the "war on crime." However, Pastoret quotes Rousseau himself in replying to this metaphor: "[T]he vanquished is not killed, when he can be put in chains and deprived of the power of doing mischief. Rousseau himself affirms,... "We have no right to kill an enemy, except when we are unable to take him prisoner." A captive, I admit, and a criminal, differ. But it is not with reference to his criminality or non-criminality, that his life is respected, but because he can do no more mischief." Id. at 30. These reflections on the metaphors of personal self-defense and prisoners of war lead Pastoret to the doctrine of "absolute necessity." "Absolute necessity alone can justify the punishment of death. If, as Montesquieu affirms, it is "the remedy of a sick society," it is not sufficient that it is efficacious; it must, likewise, be indispensable. In proposing it as a means of security, it will not assuredly be denied, that any other mode of punishment which, without taking away the life of the offender, produces the same effect, is highly preferable." Id. at 34-35. Like Beccaria, Pastoret urges that capital punishment is not only "unnecessary" but useless or indeed worse. He especially focuses on the perverse effect "if instead of inspiring fear, it rather pity for him who suffers, and horror toward him who inflicts it; if all the spectators, seized with an involuntary shuddering, feel an interest (in spite of their convictions) in favour of the man, whom the law points out for their abhorrence...." Id. at 33. He further enlarges on what is today called the brutalizing effect of the death penalty: "Shall I add, that you insensibly habituate the spectators of executions to feelings of cruelty? For they must either be distressed by them, or approve them. Do they approve them? Woe to the society containing men, who can behold the death of a fellow-creature with indifference! Are they distressed by them? You have produced an effect opposite to that, which you intended. This very sympathy is a cry of nature, proving how much she is outraged by a mode of punishment involving the effusion of blood." Id. at 34. Interestingly, Pastoret again invokes Rousseau, whose views in favor of capital punishment he has often challenged, in recognizing the one exception he sees to the rule of total abolition: "I have said, `Absolute necessity alone can justify the punishment of death:' and I am compelled to agree with Rousseau, that "Society ought to put to death the delinquent, who cannot be permitted to live without danger." To public tranquillity and general utility every thing must, in that case, give way. Now there is one crime of this description so strongly marked, as to render it impossible to spare the life of the wretch, who is guilty of it -- I mean, engaging in those dark conspiracies and treasonable insurrections, which would involve the safety of an entire community, if the heads of the principal traitors, who hold in their hands the secret threads of the plot, were to be left upon their shoulders. Then the commonwealth is really in danger, and, without instantaneous intervention, may be subverted. Strike, therefore: the general welfare demands of nature this sacrifice." Id. at 36. Having endorsed this exception, and recalled Beccaria's reservation that the death of a prisoner whose continued life threatens "a dangerous revolution in the established form of government" would meet the test of necessity, Pastoret quotes a prophetic warning from Mabry, a retentionist, about the dangers of this policy itself: "`In condemning the traitor to death, I should be truly concerned to be understood as pronouncing hostile to the public tranquility, the citizen who has the courage to abstain from flattering his countrymen, and who only meditates change favourable to their welfare. It is not a little singular, that I should thus be obliged to protest against the punishing of one, who ought to be the object of universal love and veneration. But it is no fault of mine, that modern times offer so many instances of countries, where a Cato could not make his appearance without personal danger.'" Id. at 37 Pastoret's treatise was published in 1790. Within three years, Mabry's caution would have its wisdom sadly demonstrated by the sanguinary Terror into which the French Revolution degenerated, with such a noble abolitionist as Condorcet as one victim of the guillotine, and Tom Paine only spared by accident from becoming another. Perhaps the judgment of history was best delivered in 1830 by Lafayette: "I shall ask for the abolition of the Penalty of Death until I have the infallibility of human judgment demonstrated to me. The Punishment of Death has always inspired me with feelings of horror since the execrable use made of it during the former Revolution." Quoted in Charles Spear, _Essays on the Punishment of Death_ (Published in Boston by the author, and in London by John Green, 1844), title page. But if Pastoret's readiness in 1790 to grant an exception for "conspiracies and treasonable insurrections" might be cited as another instance of the human fallibility we all share, his conclusions otherwise show how the necessity test could then as well as now militate against the death penalty for murder as well as lesser crimes: "But in the case of every other crime, except that of treason or conspiracy, capital punishment, as I think I have abundantly proved, has not the character of utility necessary to sanction it's infliction. No government has a right to inflict it. It is even subversion of the end for which it is inflicted." ------------------------------ 9. Justice James Wilson (1791) ------------------------------ Justice James Wilson of the United States Supreme Court, as one side of his judicial duties, offered guidance as to the purposes and provisions of the criminal law in _A Charge Delivered To The Grand Jury In The Circuit Court Of The United States, For The District Of Virginia, In May, 1791_, in James Wilson, _Collected Works of James Wilson_, Vol. 1, ed. Kermit L. Hall and Mark David Hall, Online Library of Liberty, E-Book edition at 254-270, . Justice Wilson's address to the grand jury in May, 1791, delivered a few months before the ratification of the federal Bill of Rights including the Eighth Amendment, is devoted in good part to an explication of the Crimes Act of April 30, 1790, the first federal criminal legislation enacted by Congress. More broadly, however, Justice Wilson presents an overview on the purposes of the criminal law and the principle of prompt, certain, and moderate punishment as the best protection for the public safety. Beyond echoing Blackstone in warning against "[t]he co-acervation of sanguinary laws," Wilson declares that "nothing but the most absolute necessity" can authorize "capital punishments." Id. at 266. Some excerpts from this admirable address will show its immediate and telling relevance to the interpretation of both Maryland's Article 16 and the federal Eighth Amendment. His eloquent words might fairly be received as an invitation for us, following in his respectful but discerningly critical spirit, to correct such misconceptions of history as a reference to "the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment," _Gregg v. Georgia_, 428 U.S. 153, 179 (1976). Justice Wilson's address, with its homage to "the eloquent and benevolent Beccaria," Wilson, supra, at 269, bears witness that the "continuing debate" noted in _Gregg_ was well underway by 1791, the year in which the Eighth Amendment was ratified. The words of this wise jurist add weigh to the "absolute necessity" test as a proper criterion for reviewing the constitutionality of capital punishment under either the Cruel and Unusual Punishments Clause of that Amendment or the Sanguinary Laws Clause of Maryland's Article 16. Opening his charge to the grand jury by noting "three qualities" which render punishments "the fit preventives of crimes," their "moderation," "speediness," and "certainty," he turns to a consideration of the dangers when the opposite of moderation prevails. "We are told by some writers, that the number of crimes is unquestionably diminished by the severity of punishments. If we inspect the greatest parts of the criminal codes; their unwieldly bulk and their ensanguined hue will force us to acknowledge, that this opinion may plead in its favour, a very high antiquity, and a very extensive reception. On accurate and unbiassed examination, however, it will to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government." Id. at 254. Wilson next describes the effects of such sanguinary punishments on citizens in whose name they are carried out, in language recalling that of Pastoret a year earlier: "So far as any sentiment of generous sympathy is suffered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in their commiseration of criminals. These barbarous exhibitions are productive of another bad effect -- a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution? The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory in their sufferings." Id. at 254. Showing such human sentiments naturally lead to the result that "the acerbity of punishment deadens the execution of the law" -- a theme of Montesquieu, Blackstone, Romilly, and others -- he contrasts such a sad state of affairs with the merits of a mild and consistently enforced scheme of criminal punishments: "When, on the other hand, punishments are moderate and mild, everyone will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy, of publick justice." Id. at 255. In a passage which might allude to the kind of special or emergency legislation discussed under the heading of "political laws" in the French Commentary on Beccaria, and also addressed by Eden, Wilson cautions that such measures may lead down what we might now term a slippery slope of sanguinary excess: "True it is, that, on some emergencies, excesses of a temporary nature may receive a sudden check from rigorous penalties: but their continuance and their frequency introduce and diffuse a hardened insensibility among the citizens; and this insensibility, in its turn, gives occasion or pretence to the further extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law." Id. at 255. Wilson now offers a striking thesis: "In every government, we find the genius of freedom depressed in proportion to the sanguinary spirit of the laws." Id. at 255. Among the illustrations which he offers is that of ancient Rome: "The Porcian law provided, that no citizen of law should be exposed to a sentence of death. Under the Porcian law, the commonwealth grew and flourished. Severe punishments were established by the emperours. Under the emperours, Rome declined and fell." Id. at 255. Wilson also emphasizes the benefits of speedy punishment: "When a penalty marches close in the rear of the offence, against which it is denounced; an association, strong and striking, is produced between them: and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period; this connexion is considered as weak and precarious; and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and springing from no laudable motive." ibid. pp. 255-256. This observation recalls a remarkable statement found in Turner's abolitionist essay of 1785 (Section 6 above), which may serve further to bring home the relevance of Wilson's words to the United States in the early 21st century: "_Nulla unquam de morte hominis cunctatio longa est_, is a wise saying of the Poet, which may be extended to all severe institutions, and ought to have its due influence, as long as they continue in force; though if it were merely on this account, all such institutions stand greatly in need of a reform. For the minds of the common people cannot easily, at such a distance of time, connect the punishment with the action that has occasioned it, and are tempted to consider an execution, when it takes place long after the offence committed by the sufferer, rather in the light of a cruel and terrible exhibition, than as the just consequence of a particular violation of the laws of society." Turner, supra, at 288. Here the Latin of "the Poet" Juvenal means, "Never, concerning the death of a human being, can a delay be too long." Already in the late 18th century, Turner, supra at 288, found that "the severity of punishment retards its execution, even in the case of those who actually suffer." Wilson, later joined by Justice Bradford (1793), notes the spiritual welfare of a condemned prisoner as a consideration requiring some compromise in the matter of speedy punishment: "When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution as will render the language of political expediency consonant to the language of religion." Wilson, supra, at 256. One wonders what Turner or Wilson might make of the "Death Row phenomenon" now prevailing in the United States, where prisoners routinely spend many years or even decades under sentence of death. However, Wilson along with Turner articulates a test of "absolute necessity" for the death penalty, and notes that such a test might well lead to a conclusion that this penalty is "in no case, necessary." "It is the opinion of some writers, highly respected for their good sense, as well as for their humanity, that capital punishments are, in no case, necessary. It is an opinion, which I am certainly well warranted in offering -- that nothing but the most absolute necessity can authorize them." Id. at 266. Applying this test, Wilson invites his audience to seek an improvement in the federal criminal code enacted only a year before by the First Congress. Urging that "if the laws deserve it, they should be the objects of _affection_ as well as of _knowledge_" id. at 270, he yet counsels that such admiration should not be uncritical. "I mean not, however, to recommend to you an implicit and an undistinguishing approbation of the laws of your country. "If, for instance, you think, that the laws respecting the publick securities are more severe than is absolutely necessary for supporting their value and their credit; it will be no crime to express your thoughts decently and properly to your representatives in congress." Id. at 270. These remarks refer to Section 14 of the Crimes Act of 1790, First Congress, Session II, Chapter 9 (April 30, 1790), 1 Stat. 115: Section 14. _And be it further enacted_, That if any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging or counterfeiting any certificate, indent, or other public security of the United States, or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale any such false, forged, altered, or counterfeited certificate, indent or other public security, with intention to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted, every such person shall suffer death. The tone of Wilson's remarks suggests that he recognized the good purpose of this statute but indeed questioned the "absolute necessity" of the death penalty. In this questioning he was in good company, since Romilly in 1786 (Section 7 supra) had noted the prevalence of capital forgery in England despite the known policy of rigor in actually executing offenders: "[In the cases of forgery, and robbing the mail, the law has always been executed with the utmost severity, that the most unfeeling rigourist could wish, ministers being even afraid to pardon such offenders, on account of the clamours of trading people, governed by sordid passions, and by the rage of interest; and yet those crimes were never more frequent in England than they have been during the last 20 years." Romilly, supra, at 70-71. Justice Bradford, in 1793, was to apply the "absolute necessity" test to crimes such as forgery and counterfeiting, and find lesser penalties both sufficient and more effective in controlling these offenses. Thus see William Bradford, _An Enquiry, how far the Punishment of Death is necessary in Pennsylvania; with Notes and Illustrations_, reprinted in _The American Museum: or, Annual Register of Fugitive Pieces, Ancient and Modern. For the Year 1798_ (Printed for Mathew Carey, Philadelphia, by W. and R. Dickson, Lancaster, 1799), at 16-18 and 25-26. Justice Bradford is discussed further below, Section 11. ----------------------------------------------------------------------- 10. Michel Louis Le Pelletier de Saint-Fargeau and Adrien Duport (1791) ----------------------------------------------------------------------- In the same month of May, 1791, that Justice Wilson was delivering his charge to the federal grand jury in Virginia, the French Constituent Assembly was opening what has been described as the first modern parliamentary debate on abolition of the death penalty. A common thread connecting these events is the doctrine of "absolute necessity" -- or sometimes, to paraphrase the language of the French Declaration of Rights, "strict and evident necessity." Taking an approach like that of Turner in 1785 (Section 6) or Pastoret in 1790 (Section 8), both Michel Louis Le Pelletier de Saint-Fargeau and Adrien Duport prefer to focus not on the abstract "right" of society to execute criminals, but on the test of necessity for any justifiable exercise of this right. On May 30, 1791, the opening day of the great debate as to "whether or not the punishment of death shall constitute on of the elements of our criminal legislation," Michel Louis Le Pelletier approaches the question by acknowledging society's right to use the death penalty if required for its self-defense, but contesting the necessity of its doing so: "A word may suffice us to establish the legitimacy of the right. Society, as well as individuals, has the faculty [or rightful power] to ensure its own self-preservation by the death of whomever places it in peril.... "But if the foundation of the right is incontestable, from necessity alone is derived the legitimacy of its exercise. and just as with any private individual it is not a case of homicide for legitimate self-defense unless he or she had only that means of saving his or her life, so society may not legitimately exercise the right of life or death unless it is shown impossible to meet the crime with another punishment sufficient to repress it." Translated from quote in Raphael Micheli, "L'analyse argumentative en diachronie: le _pathos_ dans les de'bats parliamentaires sur la abolition de la peine de mort" ("Argumentative in Diachrony: uses of _Pathos_ in the French Parliamentary Debates on the Abolition of the Death Penalty"), _Argumentation et Analyse du Discours [Online], 1|2008, . Adrien Duport, in his address on May 31, prefers likewise to avoid delving into "the metaphysical question of ascertaining whether society has or has not the right of life or death over its members" (_la question me'taphysique de savoir si la socie'te' a ou non droit de vie et de mort sur ses membres_). Translated from "Peine de mort -- de'bat de 1791 `a l'Assemble'e nationale constituante - Se'ance du 31 mai 1791" , Rather, he chooses to bypass this philosophical debate and frankly concede the right -- in order to pave the way to abolition under the test of "strict and evident necessity"! "I agree that it behooves us to establish the punishment of death, if it is indispensable to the preservation of society, or, which is the same thing, to maintain the natural rights of human beings. Without doubt, no one will contest me that if this punishment isn't necessary for this purpose, it ought to be abolished. This principle, gentlemen, I draw from your own decrees, in Article 8 of the Declaration of Rights, which provides: _The law may establish only those punishments strictly and evidently necessary._ "Now, I undertake to prove not only that the punishment of death is unnecessary, but: 1. that it is not suited to repress the crimes to which one would wish to apply it; and 2. that very far from repressing them, it tends on the contrary to multiply them." Translated from id. In French, Article 8 reads: "La loi ne peut e'tablir que des peines strictement et e'videmment ne'cessaires." This French provision leads us logically to the American jurist who in 1793 gave it pride of place in a survey of constitutional limitations and restraints upon punishments, and especially capital punishments: Justice William Bradford of the Pennsylvania Supreme Court. ----------------------------------- 11. Justice William Bradford (1793) ----------------------------------- Not quite two years after Justice James Wilson addressed a federal grand jury on crime and punishment (Section 9), Justice William Bradford of the Pennsylvania Supreme Court made a report to Governor Miflin and the state Legislature on capital punishment. Thus see William Bradford, _An Enquiry, how far the Punishment of Death is necessary in Pennsylvania; with Notes and Illustrations_, reprinted in _The American Museum: or, Annual Register of Fugitive Pieces, Ancient and Modern. For the Year 1798 (Printed for Mathew Carey, Philadelphia, by W. and R. Dickson, Lancaster, 1799), at 16-18 As announced by the title, _An enquiry, how far the Punishment of Death is necessary in Pennsylvania_ (February 26, 1793), the doctrine of "absolute necessity" is central to Justice Bradford's approach. The necessity test leads him to the conclusion that the death penalty may clearly and immediately be abolished for all crimes except the new offense he proposes of murder in the first degree, and possibly high treason. He further suggests that it may well be possible to attain the goal of total abolition including even the crime of "deliberate assassination" after "a few years experience" with abolition for all other crimes, see id. at 33. Bradford also notes a resolve of the Pennsylvania Senate dated February 22, 1793, including the report of a committee "That they have doubts at present, whether the terrible punishment of death be in any case justifiable and necessary in Pennsylvania...." Thus the Senate resolve includes a provision that "the revision and amendment of the laws, respecting murder of the first degree" -- the only crime to be punishable with death -- "be specially recommended to the early attention of the next legislature." Id. at 39 n. at *. Bradford's report, and the Pennsylvania Senate resolve whose text is included within it, bear witness to the fact that by 1793, American jurists and legislators were seriously contemplating total abolition of the death penalty, and were applying the "absolute necessity" test. In the first portion of his report, Justice Bradford seeks some general principles regarding constitutional limitations on punishment which "deserve a place among the fundamental laws of every free country." Id. at 6. Interestingly, the two provisions winning his special approbation are Article 8 of the Declaration of Rights adopted by the French National Constituent Assembly, and Maryland's Sanguinary Laws Clause. He begins with the former: "The enlightened patriots, who composed the first National Assembly in France, placed this check on the power of punishment, where it ought to be placed, among "the rights of a man and a citizen." They had long witnessed the ferocity of the criminal law: and they endeavored to guard against it, by declaring, in precise and definite terms, `That the law ought to establish such punishments _only_, as are _strictly_ and evidently _necessary_.'" Id. at 6, emphasis in original. Then he surveys several state constitutions which touch on the matter, but in his view not so clearly and satisfactorily: "Few of the American constitutions are sufficiently express, though they are not silent, on this subject. That of New-Hampshire declares, `That all penalties should be proportioned to the nature of the offence; and that a multitude of sanguinary punishments is impolitic and unjust; the true design of all punishment being to reform and not to exterminate mankind.' The constitution of Vermont enjoins the introduction of hard labour as a punishment, in order to lessen the necessity for such as are capital: and that of Pennsylvania, framed in 1776, directed the future legislature `to reform the penal laws -- to make punishments less sanguinary, and, in some cases, more proportioned to the offences.'" Id. at 6. Then he turns to Maryland's Article 16 (then Article 14): "But it was in Maryland alone, that the _general_ principle was asserted; and, in the enumeration of their rights, we find it declared: `That sanguinary punishments ought to be avoided, as far as is consistent with the safety of the state.'" Id. at 6. Considering another formulation common in state constitutions then and now, he offers a critically important observation also relevant to the federal Eighth Amendment, which he does not directly address: "The other constitutions, which touch on this subject, content themselves with generally declaring, `That cruel punishments ought not to be inflicted.' But does not this involve the same principle, and implicitly prohibit every penalty which is not evidently necessary?" One small but vital point is that, like Maryland's Article 16, some of the other provisions which Bradford cites or paraphrases also use the word "ought," as in the last passage, "That cruel punishments ought not to be inflicted," and likewise in his translation of the French Declaration of Rights, Article 8. Given that he regards the "absolute necessity" test for capital statutes as among the "fundamental laws" of a free society, for him the word "ought" can clearly carry the force not merely of a pleasant aspiration or exhortation, but of an imperative constitutional restraint. Although Bradford does not mention a formulation like that of the Eighth Amendment prohibiting "cruel and unusual punishments," his next paragraph could serve as the basis for an argument that, in a free society, any "unnecessary" and therefore "cruel" enactment or application of the death penalty should also be deemed "unusual": "One would think, that, in a nation jealous of its liberty, these important truths would never be overlooked; and, that the infliction of death, the highest act of power than man exercises over man, would seldom be prescribed, where its necessity was doubtful." Id. at 6. From one viewpoint, Bradford's "seldom" is a wry rhetorical understatement; but from another, it may answer to one creditable meaning of "unusual" in an Eighth Amendment context: an "uncharacteristically cruel" or "incongruously cruel" act of unnecessarily shedding human blood contrary to the spirit of the Constitution and the society whose values it embodies. From another constitutional perspective, this was precisely the era of the American Criminal Justice Revolution replacing death as the "usual" punishment for serious felonies with long-term imprisonment in the new institution of the modern penitentiary. Once Pennsylvania had enacted its landmark 1794 legislation abolishing the death penalty for all crimes except first degree murder, this one remaining sanguinary law became _systemically_ "unusual," an observation soon holding for other jurisdictions which opened penitentiaries and adopted legislation like that of Pennsylvania. If not "absolutely necessity," such a capital punishment would therefore be not only "cruel" (following Bradford's interpretation) but also "unusual." This kind of systemic "unusualness" is well captured in the charge of Judge John Fox to a Pennsylvania jury trying a capital case in 1832: "The mild spirit of our institutions has abolished capital punishments in every case except that of willful, deliberate, and premeditated murder. The Commonwealth does not seek blood. She unwillingly receives the victim from the hands of justice, and, when the sacrifice is demanded, the whole community is horror-struck." _Trial of Lucretia Chapman, otherwise called Lucretia Espos y Mina, who was jointly indicted with Lino Amelia Espos y Mina for the Murder of William Chapman, Esq., Late of Andalusia, County of Bucks, Pennsylvania, In the Court of Oyer and Terminer, held at Doylestown, for Bucks, December Term, 1831, continued to February Term, 1832_, ed. William E. Du Bois (Philadelphia: G. W. Mentz, and Son, 1832), 206. Either in 1832, or today a full 180 years later, reason and intuition would suggest that if the death penalty for murder is unnecessary, and therefore "cruel," it is also in a most constitutionally salient sense "unusual." While Bradford seems optimistic that "the progress of civilization" will move Pennsylvania to the goal of total abolition, id. at 39, he feels a need to acknowledge and confront some barriers in translating sound juridical and constitutional principles into legislative action. Like earlier writers such as Blackstone and Romilly, he observes that "on no subject has government, in different parts of the world, discovered more indolence and inattention, than in the construction or reform of the penal code." Id. at 6. While such an observation may be something of a commonplace in the later 18th-century literature, Justice Bradford delves more deeply into the kind of psychology that produces or sustains capital statutes which would fail the test of absolute necessity: "Legislators feel themselves elevated above the commission of crimes which the laws proscribe: and they have too little personal interest in a system of punishments, to be critically exact in restraining its severity. The degraded class of men, who are the victims of the laws, are thrown at a distance which obscures their sufferings, and blunts the sensibilities of the legislator." Id. at 6. This language in 1793 may evoke the famous footnote 4 of _United States v. Carolene Products Co._, 304 U.S. 144, 152 n. 4 (1938), noting that normal political and legislative processes may not be sufficient to protect "discrete and insular minorities," a factor which may warrant "a correspondingly more searching judicial inquiry." Bradford's warning about the consequences of such legislative inertia and blunted "sensibilities" in the late 18th century may take on even more force in the early 21st century: "Hence sanguinary punishments, contrived in despotic and barbarous ages, have been continued, when the progress of freedom, science, and morals, renders them unnecessary and mischievous: and laws, the offspring of a corrupted monarchy, are fostered in the bosom of a youthful republic." Id. at 6. Yet he is optimistic that this situation will soon be remedied, and offers this striking analogy reflecting his great interest in comparative and international law as well as his focus on the "necessity" test as a protection for what he terms "the rights of humanity," id. at 6. "Forty years ago, the execrable practice of torture was general on the continent of Europe: and it was considered to be as necessary in the administration of justice, as capital punishments are at present. Against this cruel institution all the powers of reason and ridicule were exerted: and the folly as well as the wickedness of it has been so happily exposed, that it has either been wholly suppressed, or has become so disreputable as seldom to be exercised." Id. at 7, n. at *. In evaluating the death penalty, Justice Bradford explains what he sees as the legitimate purposes this punishment might serve, thus setting the stage for his application of the necessity doctrine as a constitutional test. "It being established, That the only object of human punishments is the prevention of crimes, it necessarily follows, that when a criminal is put to death, it is not to revenge the wrongs of society, or of any individual -- `it is not to recall past time, and undo what is already done:' but merely to prevent the offender from repeating the crime, and to deter others from its commission, by the terror of the punishment." Id. at 8. The idea that the purpose of punishment, and especially capital punishment, should be preventive rather than merely retaliatory may be found in various 18th-century sources, most notably both Blackstone and Beccaria. In 1701, the author of _Hanging, Not Punishment Enough_ at 14 (Section 1, supra) invokes on this point the Roman philosopher Seneca: "_That no wise man punishes another so much, because he hath offended, but that others offend not; _For_ (adds he) _that which is to become may be hindered, but that which is past cannot._" Having specifically ruled out "revenge" for society as a whole or for any individual, Justice Bradford directs his necessity test to what we might now term the two penological objectives of incapacitation of the offender and deterrence of others, both essentially forward-looking and preventive in focus: "If, therefore, these two objects can be obtained by any penalty short of death, to take away life, in such case, seems to be an unauthorised act of power." Bradford, supra, at 8. Some editions of Bradford's report have "authorised" in place of "unauthorised," but the latter, as in _The American Museum_ version of 1799 used here, much better fits the sense and context. "Unauthorised" appears synonymous with unconstitutional, a reading supported by the fact that he ranks the test of absolute necessity as among the principles "which serve to protect the rights of humanity, and to prevent the abuses of government", and thus have a place "among the fundamental laws of every free country." Thus Justice Bradford may enjoy the distinction of being the first known jurist in the United States explicitly to question the constitutionality of the death penalty. While his analysis focuses on the constitutions of Maryland and other states, informed also by Article 8 of the French Declaration of Rights, his conclusion that an "unnecessary" capital statute is also unconstitutionally "cruel" logically should apply with equal force to the federal Eighth Amendment. In applying the "absolute necessity" test to the death penalty as a punishment for the crime of murder in the first degree (a new concept) or "deliberate assassination," Bradford reaches the conclusion that it is in fact "not in its own nature necessary," pp. 29-32, n. at ++, but must be abolished with careful attention to providing an adequate substitute and maintaining a sound structure of punishments. Also, with a circumspection that may reflect his perspective as a jurist and experienced law enforcement official (having served as Attorney General of Pennsylvania, 1780-1791), he urges that it is best "to proceed step by step in so great a work," id. at 33. In assessing the situation as of 1793, and seeking to weigh in a balanced manner both the best case for the death penalty as a "necessary" deterrent to deliberate murder, and the considerations leading him to conclude nevertheless that it either already is, or likely in the relatively near future will become, "unnecessary," Justice Bradford invites us to apply his arguments and criteria to the situation in the year 2012. He begins with an overview of the two goals that might make the death penalty "necessary," incapacitation or deterrence: "That the first of these may be accomplished by perpetual imprisonment, unless the unsettled state, the weakness or poverty, of a government prevents it, admits of little dispute. It is not only as effectual as death, but is attended with these advantages, that reparation may sometimes be made to the party injured -- that punishment may follow quick upon the heels of the offence, without violating the spirit of humanity or religion -- and if, in a course of years, the offender becomes humbled and reformed, society, instead of losing, gains a citizen." Id. at 8. Here, as in the address of Justice Wilson (Section 9, supra), "the spirit of humanity or religion" refers to the necessary delay between capital sentence and execution in order to permit a prisoner's spiritual preparation for death. Today, while the overall pace of justice may have slowed over the past two centuries, the contrast between the immediate enforcement of a sentence of a sentence of perpetual imprisonment (i.e. life without parole or LWOP) and the years or decades of delay leading to a capital execution -- or not -- is yet more dramatic. It is the "necessity" of the death penalty for the second goal, deterrence, which then and now may seem more debatable: "It is more difficult to determine what effects are produced on the mind by the terror of capital punishments; and, whether it be absolutely necessary to deter the wicked from the commission of atrocious crimes. This is the great problem, to the solution of which, all the facts I have occasion to mention hereafter, will be directed." Id. at 9. An appreciation of some of the facts and considerations weighed by Justice Bradford in 1793 may lead us to a much readier and more confident affirmation in 2012 that the death penalty is not in fact "absolutely necessary," and is therefore an "unauthorised act of power" -- or, in other words, not only unwise but unconstitutional. In the course of his exploration of "the great problem" of deterrence, Bradford presents a case for the necessity of the death penalty which, at first blush, might seem impossible to answer: "The life of the deliberate assassin can be of little worth to society: and it were better than ten such atrocious criminals, should suffer the penalty of the present system, than that one worthy citizen should perish by its abolition." Id. at 32. Even with the benefit of the most sophisticated statistical tools and methods of the early 21st century, such a small net deterrent effect would seem impossible to detect -- or positively to rule out. Yet for all its rhetorical force, this argument is evidently not considered decisive by Justice Bradford, since he states a page later of capital punishment that "while I contend that this is the most powerful curb of human governments, I do not affirm that it is absolutely necessary, or that a milder one will be insufficient," id. at 33. One critical consideration in contemplating his deterrence scenario is that, assuming the executions of ten "deliberate assassins" would have some effect on the capital murder rate, we are ignorant not merely of the magnitude of that effect, but of its sign or direction. Writers and legislators of the later 18th century such as Beccaria, Pastoret, and Duport -- and also, very emphatically, Benjamin Rush in 1787 and later -- emphasize how the brutalizing effect of executions may actually incite more murders and have a net effect of promoting the very evil the law seeks to address. In fact, Bradford is well aware of such views, and eloquently presents them: "It is the universal opinion of the best writers on this subject, and many of them are among the most enlightened men of Europe, That the imagination is soon accustomed to over-look or despise the _degree_ of the penalty, and that the _certainty_ of it is the only effectual restraint. They contend that capital punishments are prejudicial to society from the example of barbarity they furnish, and that they multiply crimes instead of preventing them." Id. at 10. If we examine the situation in either 1793 or 2012 from Justice Bradford's perspective, however, he offers some conditions which in his view would be requisite in order for the death penalty to serve as an effective deterrent. While it might be "unnecessary" even under such conditions if a lesser punishment would be comparably effective, he advises us that in the absence of these conditions it would be ineffective -- and, we may deduce, therefore also unnecessary and accordingly unconstitutional. In a nutshell, Bradford finds it doubtful "whether capital punishments are beneficial in any cases, _except in such as exclude the hopes of pardon_." Id. at 10. In this context, "the hopes of pardon" so fatal to what he asserts would otherwise be the uniquely effective deterrent of "the dread of death," id. at 9-10, are not limited to the possibility of executive clemency after a capital sentence has been imposed: "[I]t cannot be denied, that the terror of death is often so weakened by the hopes of impunity, that the less punishment seems a curb as strong as the greater. The prospect of escaping detection, and the hopes of an acquittal or pardon, blunt its operation, and defeat the expectations of the legislature. Experience proves, that these hopes are wonderfully strong, and often give birth to the most fatal rashness." Id. at 10. As Bradford documents elsewhere, capital as opposed to noncapital trials for the same offenses are indeed more likely to result either in outright acquittals, or in what he terms "partial acquittals" -- that is, convictions of some lesser offense. He remarks that in the notably greater frequency of these complete or partial acquittals in capital cases, "I see nothing but the humane struggles of the jury to save the offender from death." Id. at 24. In seeking fairly, as one side of his balanced examination, to present the strongest case for the death penalty as an effective and thus possibly "necessary" deterrent when restricted to the single crime of murder in the first degree, "of such a nature as to exclude the hopes of pardon," id. at 32, Bradford vividly portrays the required conditions for success: "If we seek a punishment capable of impressing a strong and lasting terror, we shall find it in an execution rarely occurring -- solemnly conducted -- and inflicted in a case, where the feelings of mankind acquiesce in its justice, and do not revolt at its severity." Id. at 32-33. Bradford's chosen words, "revolt at its severity" strikingly echo those found in an essay which he cites, id. at 29, n. at +, by Benjamin Rush: "Humanity, revolting at idea of the severity and certainty of a capital punishment, often steps in, and collects such evidence in favour of a murderer, as screens him from death altogether, or palliates his crime into manslaughter.... If the punishment of murder consisted in long confinement, and hard labour, it would be proportioned to the measure of our feelings of justice, and every member of society would be a watchman, or a magistrate, to apprehend a destroyer of human life, and to bring him to punishment." Benjamin Rush, "An Enquiry Into the Consistency of the Punishment of Murder by Death, With Reason and Revelation," in _Essays, Literary, Moral, and Philosophical_, 2nd ed. (Philadelphia: Thomas and William Bradford, 1806) 164-165. While Rush speaks as a passionate partisan of abolition, Bradford in more circumspect language likewise contrasts the psychology of capital and noncapital trials: "The impression [capital punishment] makes on the public mind, is visible when a criminal is tried for his life. We see it in the general expectation -- in the numbers that throng the place of trial -- in the looks of the prisoner -- in the anxious attention and long deliberation of the jury -- and in the awesome silence which prevails while the verdict is given in by their foreman. All these announce the inestimable value which is set on the life of a citizen." Id. at 9. As he continues: "But the reverse of this takes place when imprisonment at hard labour is the punishment; and the minds of all present, are free from the weight which oppresses them during a trial of a capital charge." Id at 9. From this standpoint, the effectiveness of the death penalty as a deterrent for first degree murder -- and thus its arguable "necessity" and constitutionality -- would depend in large part on the response of jurors. Would they adopt the view -- in feeling and practice as well as in theory -- that "the life of a deliberate assassin can be of little worth to society," id at. 32, and return capital verdicts as often as warranted by the facts, so excluding the hope of "impunity" which Bradford sees as fatal to the effectiveness of such statutes? Or would "the inestimable value which is set on the life of citizen," id. at 9, be likely, as suggested by Rush even in cases of deliberate murder, to produce what Bradford describes as "the humane struggles of the jury to save the offender from death"? See id. at 24. Even in 1793, the doubts expressed by members of the Pennsylvania Senate as to "whether the terrible punishment of death be in any case justifiable and necessary in Pennsylvania," id. at 39 at *, might hint at something less than a general consensus ready to "acquiesce" at the justice of an execution, id. at 33. As a consummate pragmatist, as well as a jurist striving to give a fair and balanced presentation of both sides on the deterrence question, Justice Bradford emphasizes that as of 1793 "[w]e have had no experience." on how citizens, (and, one might add, in particular jurors) might respond to a death penalty limited to first degree murder. See id. at 32. By 1827, however, Job R. Tyson could report on the experience gained since the passage of the statute proposed by Bradford in 1793 and actually adopted in 1794, especially as it pertained to juries: "Ingenious counsel impress the minds of the jury with the awful weigh of responsibility which they incur, by dooming a fellow creature to the gallows, and they, alarmed at the greatness of the penalty, though his guilt is irrefrangably established, by a kind of `_pious perjury_,' falter an acquittal, or call it an offence foreign to the evidence." Job R Tyson, _Essay on the Penal Law of Pennsylvania_ (Philadelphia: The Law Academy of Philadelphia, 1827) 69. Five years later, in 1832, the charge of Judge John Fox to the jury in the capital murder trial of Lucretia Chapman for allegedly poisoning her husband presents a more nuanced view of this reluctance to return a verdict resulting in the "sacrifice" of a human life, _Trial of Lucretia Chapman_, supra, at 206: "There is not much danger, therefore, in Pennsylvania, of unjustifiable convictions in capital cases. Indeed the belief is, that even where the facts demand it, it is almost impossible to procure a capital verdict. Yet, I will say, I have never known a verdict of acquittal which I did not think justified by the evidence, although I may have believed that it would have warranted conviction." Id. at 206. The closing argument for the prosecution, delivered by Deputy Attorney General Thomas Ross, suggests, however, that the risk of an acquittal unwarranted by the evidence could be a real concern: "You violate your oaths the moment you suffer yourselves to be operated on by the consequences of your verdict, or by any of the affecting circumstances which the eloquence of the prisoner's counsel have so vividly pourtrayed." ... "Remember, that it requires no stronger evidence to convict of an offence, which is capitally punished, than it does where the penalty of the crime is merely an imprisonment for a term of years -- You must be equally satisfied in the one case as in the other." Id. at 205. At voir dire, where Judge Fox declined a request by the prosecution to question each juror as to scruples that would prevent ever returning a capital verdict, but ruled that jurors requesting exemption because of such scruples would be excused for cause, id. at 13-16, one juror expressed a view likely common in 1832: "I have strong doubts of the propriety of capital punishments -- but have no conscientious scruples on the subject." Id. at 16. Applying Bradford's approach, we find that these sources document, more than three decades after the enactment of the 1794 statute retaining capital punishment for first degree murder alone, the "humane struggles of the jury to save the offender from death," supra at 24, that he, Rush, Romilly, and others had noted under capital statutes casting a broader net. Especially if we adopt Justice Bradford's view that criminals, although powerfully deterred by the dread of certain execution, are prone to "the most fatal rashness" in seeking out hopes of impunity or a lesser penalty, the public perception reported by Judge Fox that "it is almost impossible to procure a capital verdict" would suffice, to borrow from Bradford, supra at 10, to "blunt" the force of deterrence. Thus rendered ineffective, the statute would be "unnecessary," and accordingly unconstitutional. From this view, an especially pernicious aspect of the situation would be the tangible risk that a "deliberate assassin" might go free because of juror doubts about capital punishment, or at best receive a grossly inadequate sentence, where a statute providing natural life at hard labor would win overwhelming support both in the public square and in the jury box. The quotation from Montesquieu with which Justice Bradford opens his report could hardly apply with more force: "If we enquire into the cause of all human corruptions, we shall find that they proceed from the impunity of crimes, and not from the moderation of Punishments." Id. at 5. Thus Justice Bradford's open question as to whether citizens and jurors would continue to have humane feelings impeding the "certain" execution of the death penalty, even when restricted to the crime of "deliberate assassination," has been answered by history in the affirmative, pointing to the unnecessary and unconstitutional nature of this penalty. Another open question he raised, again emphasizing a dearth of practical experience as of 1793 that led him to some caution in his ultimately optimistic view, was the practicality of total abolition. He readily acknowledged the impressively successful example of Tuscany, where a moratorium on executions since 1769 and official abolition in 1786 had improved the public safety. His main concern was whether the "police" -- the various measures the Grand Duke had taken to uphold public order and morality -- was consistent with "the general liberty of the subject," Bradford, id. at 29-32 n. at ++. However, as the adage says, one swallow does not make a summer. As Bradford accordingly wrote, id. at 33: "It is possible, that the further diffusion of knowledge and melioration of manners, may render capital punishments unnecessary in all cases; but, until we have had more experience, it is safest to tread with caution on such delicate ground, and to proceed step by step in so great a work. A few years experience is often of more real use that all the theory and rhetoric in the world." At different places in his report, and sometimes even in a single connected passage like the above, Bradford can convey curiously indefinite impressions as to how long "so great a work" might require. The "melioration of manners" suggests a process that may require generations, but his statement on the benefit of "a few years experience" suggests all that may be required is a bit of time to build public and legislative confidence. The conclusion of the report, and the text of its accompanying footnote, seem especially to present curiously disparate time frames for total abolition. First the conclusion, referring to Bradford's immediate proposal to abolish the death penalty for all crimes except first degree murder (he also mentions a possible exception for high treason, which in fact the legislature made noncapital in the statute of 1794): "Such a system of punishments, aided and enforced in the manner I have mentioned, will not only have an auspicious influence on the character, morals, and happiness of the people, but may hasten the period, when, in the progress of civilization, the punishment of death shall cease to be necessary; and the legislature of Pennsylvania, putting the key-stone to the arch, may triumph in the completion of their benevolent work." Id. at 39. From one perspective, Bradford's "the progress of civilization" sounds amazingly like "the evolving standards of decency" which have been a mainstay of Eighth Amendment doctrine since _Trop v. Dulles_, 356 U.S. 85-86 (1958). To find an 18th-century jurist looking out over the prospective sweep of history, with total abolition as the ultimate and indeed constitutionally mandated result under the necessity test, lends a new dimension and aspect to either the federal Cruel and Unusual Punishments Clause or to Maryland's Article 16. While this remarkable paragraph might suggest a time-frame of some decades, as with his description of how European society shifted from regarding torture as a routine judicial necessity to a state of near-total abolition over a period of about 40 years, the footnote, id. at 39, n. at *, discussed in part above, reports that the Senate committee responsible for the reform effort sees the event as quite possibly almost at hand: "The committee who brought in these resolutions, reporting, `That they have doubts at present, whether the terrible punishment of death be in any case justifiable and necessary in Pennsylvania; and are desirous that the public sentiment on this subject, may be more fully known,' and therefore offering the following resolution, the same was adopted by the Senate: Resolved, that the revision and amendment of the laws, respecting murder of the first degree, be specially recommended to the early attention of the next legislature." Id. at 39, n. at *. Having considered the often indefinite and sometimes apparently disparate time-frames for total abolition suggested by Bradford's report and its notes, we can turn to the situation in 2012 and draw on precisely what he cautioned was not yet available in 1793: very extensive experience over a period of two centuries with deterrence and other issues as they affect societies which have totally abolished capital punishment. Justice Bradford, writing very much in the spirit of Pastoret (Section 8 above), or of the French parliamentarian Adrien Duport (Section 10 above), prefers to bypass abstract questions concerning society's "right" to execute an offender, and apply the test of necessary, giving us a useful focus for the application of this test in Maryland, Pennsylvania, or elsewhere in the United States in 2012: "It has been a question which has divided the philosophers of Europe, whether it be lawful, in any case, to take away the life of a criminal: and the negative has been ingeniously advanced and supported in our own country. Great names are arranged on the different sides of this question: but, waving useless refinement, it seems to resolve itself into that we are considering: viz. whether it be necessary to the peace, order, and happiness of society." Id. at 29. In 1793, Tuscany was the one successful modern example of total abolition which Bradford could cite with some confidence; the disputable example of Russia under the Empresses Elizabeth and Catherine, addressed below, is one on which Bradford preferred not to rely except as a cautionary example on the need to maintain a soundly proportioned system of punishments. In contrast, according to the latest listing I have seen from Amnesty International, 97 world nations are now abolitionist for all crimes, eight maintain capital statutes only for "extraordinary" crimes such as genocide or wartime offenses, and in all 141 nations are considered abolitionist either in law or by practice, the latter category including countries which maintain moratoria on executions or have entered into international agreements not to use the death penalty. Additionally, 17 of the 50 States have now abolished the death penalty, some of them maintaining this policy for over a century: Michigan (1846), Rhode Island (1852), Wisconsin (1853), Maine (1887), North Dakota (c. 1905), and Minnesota (1911). Applying Bradford's necessity test, we find that these nations, and jurisdictions within the United States, generally enjoy a reasonable share of "the peace, order, and happiness of society," at least as compared to jurisdictions retaining capital punishment. At this point it would be well to look again at the deterrence issues raised by Justice Bradford from this 21st-century world perspective. The French Commentary on Beccaria, Section 3 supra, Chapter XII, has some striking observations on torture. We will recall Bradford's observation in 1793 that the shift in the status of torture in Europe from a "necessity" to a shocking violation of the rights of humanity had transpired over a period of about 40 years, placing the French Commentary of c. 1770 at somewhere around the middle of this period. "If there were but one nation in the world which had abolished the use of torture; if in that nation crimes were no more frequent than in others; and if that nation be more enlightened and more flourishing since the abolition, its example surely were sufficient for the rest of the world. England alone might instruct all other nations in this particular; but England is not the only nation." Id. at xli-xlii. As he concludes: "Torture hath been abolished in other countries, and with success; the question therefore is decided. Shall not a people, who pique themselves on their politeness, pride themselves also on their humanity? Shall they obstinately persist in their inhumanity, merely because it is an ancient custom?" Id. at xlii. This simple and direct interpretation of the necessity test, applied to capital punishment in the year 2012, cuts through much of the endless debate and mathematical refinements concerning deterrence. Since it appears in the French Commentary on Beccaria, one name for it, if not considered overly frivolous for such a sobering subject matter, might be "the French torture test" of the death penalty. the clearly "unnecessary" nature of the death penalty does not mean that one should not observe due care in abolishing it to maintain a soundly proportioned structure of punishments which will tend to maximize deterrence of the worst crimes, and especially deliberately homicidal ones, within the constitutional constraints of Maryland's Article 16 or the Eighth Amendment. Justice Bradford points to the sobering experience of Russia on this point, and draws from it a very sound counsel for either 18th-century or 21st-century legislators. In adopting a policy of abolition, the Empress Elizabeth permitted matters to develop so that simple robbery, and robbery accompanied by murder, were likewise and indifferently punished with exile in Siberia. See Bradford, supra, 29-32, n. at *; and 32-33, n. at *. In the latter note, he quotes a pithy observation reflecting the situation in Russia around 1750: "`In Russia,' says Montesquieu, `where the punishment of robbery and murder is the same, they always murder." Id, 32-33, n. at *. Bradford, in these two notes, relates how Elizabeth's successor, Catherine II the Great, responded to this highly unsatisfactory situation by setting the penalty for robbery plus murder at a nominally noncapital but often fatal sanction of brutal whipping with the knoot (or knout), plus other forms of mutilation and torture, which Bradford grimly observes can hardly be regarded as "any moderation" of capital punishment! See n. at 29-32 at *. This leads to his sound recommendation, with interesting implications for 21st-century sentencing structures: "Whatever be the punishment inflicted on the higher degrees of murder, it ought to be widely different from that of every other crime. If not different in its nature, at least let there be some circumstance in it calculated to strike the imagination -- to impress a respect for life -- and to remove the temptation which the villain otherwise has, to prevent the discovery of a less crime, by the commission of a greater." Id at 33. As Robert J. Turnbull proposed in 1796. addressing a just punishment for murder in the first degree, "This might be effected without infringing the laws of humanity, by a punishment for life, compounded of equal portions of hard labour, and solitary confinement..." Thus see Robert J. Turnbull, _A Visit to the Philadelphia Prison; Being an accurate and particular Account Of the Wise and Humane Administration Adopted in every Part of that Building; Containing Also An Account of the Gradual Reformation and Present Improved State of the Penal Laws of Pennsylvania: With Observations on the Impolicy and Injustice of Capital Punishments. In a Letter to a Friend_ (Dublin: Robert Dapper, 1798). What Justice Bradford is especially concerned with is what might be termed the problem of "intracrime deterrence": as the case has often been posed since at least the time of St. Thomas More in the early 16th century, dissuading a robber from also killing the victim to avoid or minimize the risk of identification and prosecution. In the time of Bradford, Rush, and Turnbull, or today, natural life without some combination of hard labor and solitude, or in current terms life without parole plus labor and restitution (sometimes, as proposed by Turnbull, coupled with extended time in solitary confinement), at once provides a punishment fitting the crime, and includes Bradford's element of circumstances "calculated to strike the imagination." The idea of living and dying in prison, without hope of release, is such a circumstance, as is the requirement of labor and restitution both to crime victims and their families, and to society at large. Bradford's logic, however, also implies a wise sense of legislative self-restraint in setting the penalties for even such serious felonies as burglary and robbery so as to leave room for a radical contrast between these sanctions and that imposed on murder, especially "the higher degrees of murder" as he terms them, involving the "deliberate assassination" of the victim, and often marked by special or aggravating circumstances defined in various jurisdictions as calling for the utmost reprobation. As to the test of necessity, an intriguing question remains: why does Justice Bradford often use language suggesting that the death penalty might become "unnecessary" at some point in the future, rather than that it might well already have become unnecessary, as some members of the Pennsylvania Senate had suggested? One possible explanation is raised by his discussion of the legislation of William Penn: "Murder, `wilful and premeditated,' is the only crime for which the infliction of death is prescribed; and this is declared to be enacted in obedience `to the law of God,' as though there had not been any political necessity, even for this punishment, apparent to the legislature." Bradford, supra at 20. In one reading, this passage might suggest that not only was there no "political necessity" for the death penalty in 1793, but that this state of affairs might have obtained a century earlier, in the days of William Penn! Viewed from another and possibly related angle, might this observation about Pennsylvania's first colonial criminal code give a hint as to one reason why, in contemplating the abolition of capital punishment for "deliberate assassination," he wishes "to tread with caution on such delicate ground," id. at 32. In _Hanging, Not Punishment Enough_, supra, at 12-13 and 23 (see also Section 1), we find that the author in 1701 is discussing the idea that the punishment of murder by death is a divine command; in contrast to his rule of "absolute necessity" for other capital punishments, where he would be willing to add torture if it would provide the only way to curb crimes such as highway robbery and burglary, but would prefer to have the death penalty abolished and replaced by penal servitude or the like. As the author states: "And since it is an express Law of God, that _whoso sheds mans blood, by man shall his blood be shed Gen. 9. 6._ A scrupulous man may be tempted to suspect, Whether the Power that Christian Princes generally assume of Pardoning Wilful Murtherers, be not too much, and beyond their Commission, since they Pardon _those_ whose blood God commands directly and positively to be shed.... "I am no Enemy to the just _Prerogative_ of Princes but believe it, when in good hands, to be serviceable and advantageous to the People: but I must say, I am inclined to think, that any Usage of Custom, Memorial or Immemorial, that contradicts, or gives leave to dispense with the Laws of God is null, and in it self void." Id. at 12. The view of Eden (Section 4) applying the test of "absolute necessity" to the death penalty, but later declaring this penalty "necessary" for murder by involving Genesis 9:6 and Numbers 35:31 without any further argument likely reflects the same kind of perspective, to which Turner (Section 6) responds with arguments both sacred and secular in favor of abolition. In noting his own view on the death penalty for murder that "I do not affirm that it is absolutely necessary, or that a milder [curb] will be found insufficient," Bradford, id. at 33, and in the same report alluding to William Penn's laws holding death for murder as required by "the law of God" rather than "political necessity," id. at 20, might there be a hint that the death penalty is already in fact "unnecessary," but that it may take some time and education to overcome religious opinions to the contrary? He does address one aspect of the religious issue in his discussion of "the crime against nature," id. at 22-23 for which the death penalty has already been abolished in Pennsylvania. Marshalling some facts demonstrating "that to punish this crime with death would be a useless severity," he draws a larger moral from these facts: "They may teach us, like the capital punishments formerly inflicted for adultery and witchcraft, how dangerous it is rashly to adopt the Mosaical institutions." Id. at 23. A wry observation by Justice Wilson, who in his May 1791 address (Section 9 above) expressed great respect for the advocates of total abolition and himself confidently endorsed a test of "most absolute necessity," suggests in his law lectures of 1790-1791 both the lack of much known experience with abolition for all crimes, and religious opinions, as barriers which abolitionists must overcome. "In England, in the United States, in Pennsylvania, and almost universally throughout the world, the crime of wilful and premeditated murder is and has been punished with death. Indeed it seems agreed by all, that, if a capital punishment ought to be inflicted for any crimes, this is unquestionably a crime for which it ought to be inflicted. Those who think that a capital punishment is enjoined against this crime by the law which is divine, will not imitate the conduct of that Polish monarch, who remitted to the nobility the penalties of murder, in a charter of pardon beginning arrogantly thus -- "Nos divini juris rigorem moderantes, &c." ["We, moderating the rigor of the divine law, &c."] James Wilson, James Wilson, _Collected Works of James Wilson_, Vol. 2, ed. Kermit L. Hall and Mark David Hall, Online Library of Liberty, E-Book edition at 276, . Reading these words, we may marvel at how different the world looks today when we survey the prevailing punishments for murder, permitting us to apply the "absolute necessity" test to the death penalty, as to torture, and arrive quickly at the obvious result of unconstitutionality. As to Wilson's anecdote of the Polish monarch, although the interpretation of our national and state constitutions must be primarily from a secular point of view, yet from a religious perspective it would be well to note with due appreciation the command of Charlemagne, for example, that murderers promptly make restitution for their horrible sin and crime to the family of the victim, and then submit themselves to the strict and rigorous penance of the Church to atone before their Creator for the affront to God and humanity. Also, we may recall the stern and merciful injunction that those in religious life who should commit criminal homicide while of sound mind should suffer the just punishment of perpetual imprisonment. To Wilson's anecdote, borrowed from Blackstone, of the Polish monarch injudicious, at least, in his words (and also in his deeds, if he failed to substitute for a sanguinary punishment a merciful but awesome one fitting the crime), we might bring forth the salutary example of a Polish Pope, Pope John Paul II, who embraced both the test of "absolute necessity" (_nisi absoluta instante necessitate_, i.e., "society ought not to go to the extreme of executing the offender, except in cases of absolute necessity, when it would not be possible otherwise to defend society"), _Evangelium Vitae_, paragraph 56 (1995) and a more apt reading of Scripture to command a redress of the balance so atrociously violated by willful murder, while at the same time choosing nonsanguinary means (_instrumenta incruenta_), see _Catholicae Ecclesiae Catechismus_, 1997, Section 2267, allowing room for a medicinal or rehabilitative purpose even if the offender must be permanently incarcerated. ---------------------------------------------------------- 12. Pennsylvania Statute Defining Degrees of Murder (1794) ---------------------------------------------------------- On April 22, 1794, the Pennsylvania Legislature enacted "An act for the better preventing of crimes, and for abolishing the punishment of death in certain cases," Chapter 1766. This act represented the fruition of the first stage of the program urged by Justice Bradford a year previously: the abolition of the death penalty for all crimes except the newly defined offense of "murder in the first degree." This act is widely known in the annals of American criminal jurisprudence for its establishment of a device that was to be a characteristic feature in laws of many states: the division of murder into degrees. Originally what might now be termed a "narrowing" device to restrict the scope of the death penalty to "willful, deliberate, and premeditated" murder, the degree system is also used by a number of states which have abolished capital punishment in order to grade the seriousness of homicide and subject them to proportionate punishments. For our purposes, however, the opening language of the act is of special interest, because it adopts the test of "absolute necessity" advocated by Justice Bradford in his report, and thus confirms that this principle enjoyed the approbation of the Pennsylvania Legislature, together with the principles that the criminal law should be both preventive and reformatory in design. "WHEREAS the design of punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society or the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe and excessive punishments: And whereas it is the duty of every government to endeavour to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety:..." Pennsylvania Statutes 1794 Chapter 1766 (April 22, 1794) A preference for "moderate but certain" punishments rather than "severe and excessive" ones, and likewise (paraphrasing the language of Blackstone) "to reform rather than exterminate offenders," lead logically to the conclusion that "the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety." From the viewpoint of Maryland's Sanguinary Laws Clause, this statute's kindred application of the "absolute necessity" test to "the punishment of death" may provide further support for the natural interpretation that the "sanguinary laws" of Maryland's Article 16 include all capital laws. Indeed, Justice Bradford cited Article 16 as unique among the provisions of American state constitutions in asserting "the _general_ principle" of necessity, Bradford, supra, at 6. From an Eighth Amendment perspective, the close and intimate association drawn in the preamble of the 1794 act between "cruel and excessive punishments," and enactment or infliction of "the punishment of death" when not "absolutely necessary," might lend further weight to Bradford's explicit equation of an "unnecessary" capital punishment with a "cruel" one, id. at 6, and his assertion, id. at 8, that the death penalty in such a case "seems to be an unauthorised act of power." As an aside, we may note that while the 1794 statute represents the fruition of the first phrase of Justice Bradford's program for the gradual abolition of the death penalty in Pennsylvania, its restriction to "deliberate assassination" only, the bill underwent one significant change in period between his report of 1793 and final passage. In the Senate resolve of February 22, 1793 included in his report, a definition for murder in the first degree is proposed as follows: "Resolved, That all murder, perpetrated by poisoning, or by lying in wait, or by any kind of wilful, premeditated, and deliberate killing, shall be deemed murder in the first degree:..." Id. at 39, n. at *. Thus, in keeping with Bradford's focus on the "deliberate assassin," this version of the definition would have required either an act of "poisoning" or "lying in wait" itself implying a plan and premeditated design; or some other demonstration of a "wilful, premeditated, and deliberate" killing. The notable point here is that felony murder is not mentioned as a separate or distinct category. Evidently this omission may have been a deliberate one, fitting with Bradford's view of mens rea as the critical element distinguishing the most serious murders from others, and thus his strong criticisms of the felony-murder murder as developed in the English common law. First, his general overview, which immediately follows his advice that the punishment for "the higher degrees of murder," although it may be noncapital, should be radically distinct from that for lesser felonies, id. at : "But while I speak thus of deliberate assassination, there are other kinds of murder to which these observations do not apply: and in which, as the killing is in a great measure the result of accident, it is impossible that the severity of the punishment can have any effect. The laws seem, in such cases, to punish the act more than the intention: and, because society has lost one citizen, the executioner is suffered to deprive it of another." Id. at 33. Interestingly drawing on the legislation of William Penn, he cautions that the common law concept of "murder" is much broader than Penn's: "In common understanding, the crime of murder includes the circumstance of premeditation. In the laws of William Penn, the technical phrase _malice aforethought_ was avoided; and `wilful and premeditated murder,' is the crime that was declared to be capital. Yet murder, in judicial construction, is a term so broad and comprehensive in its meaning, as to embrace many acts of homicide, where the killing is neither wilful nor premeditated." Id. at 33-34. Bradford the presents some examples, one of which appears in a very likeminded discussion by Eden, (supra, Section 4), 206-210, where "A. shooteth at the poultry of B. and, by accident, killeth a man; if his intention was to steal the poultry, it will be murder...," Bradford, id. at 34; cf. Eden, supra, at 206-208. From this perspective, Bradford favorably notes a reform proposal in Virginia: "In the report of the committee of revision to the general assembly of Virginia, a reform is suggested so far as relates to homicide, accidentally happening in consequence of a felonious or unlawful act: and it is proposed to be enacted, "That, in future, no such case shall be deemed man-slaughter, unless man-slaughter were intended, nor murder, unless murder were intended." Id. at 34. An important point is that Bradford's concept of first degree murder, restricted to "the horrid crime of deliberate assassination," id. at 34, still includes the case of _deliberate_ murder in the course of an independent felony, most familiarly the example of the robber who murders to avoid detection or prosecution. For Bradford it is the premeditated and deliberate intent to kill, whether in the course of another felony or otherwise, which constitutes the critical element. The Pennsylvania statute as passed in 1794, however, also defines as first degree murder any killing, premeditated or otherwise, in the course of any of the four enumerated felonies, a provision emulated by many other states: "That all murder, which shall be perpetrated by means of poison, or by means of lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree:..." Pennsylvania Statutes, 1794 Chapter 1766, Section II. The Legislature may have taken the view that these four serious felonies -- as opposed to the larceny of a bird in the scenario of Eden and Bradford -- have a deeper dye of guilt, and a greater degree or inherent danger to human life, so that it might be regarded as not inequitable to hold the perpetrator strictly liable for any fatal consequences. However the line between the two degrees of murder might be drawn, the preamble of the 1794 statute with its restatement of Bradford's "absolute necessity" test, leaves open the possibility that the death penalty might eventually be found "unnecessary" for first degree murder also, as suggested in Bradford's report and the Pennsylvania Senate resolve of February 22, 1793. By 1809, Pennsylvania Governor Simon Snyder was advocating total abolition, and on February 22, 1812 -- 19 years to the day after the Senate resolve of 1793 -- a Senate select committee reported in favor of the Governor's view: "[We] feel a decided conviction of the propriety and policy of extending still further the boundary of humanity, by abolishing the punishment of death, altogether, and thereby obliterating the last feature of sanguinary law, that remains to sully the pages of our criminal jurisprudence." Albert Post, "Early Efforts to Abolish Capital Punishment in Pennsylvania," 68 _Pennsylvania Magazine of History and Biography_ (1944) 38-53, at 43, _quoting_ Pennsylvania, _Senate Journal_ (1811-1812), 278. In describing the death penalty for first degree murder as "the last feature of sanguinary law," the committee provided further support for the view that the Sanguinary Laws Clause of Maryland's Article 16 applies to any death penalty statute, mandating the test of "necessity" so eloquently restated in the preamble to Pennsylvania's 1794 statute: "[T]he punishment of death ought never to be inflicted except where it is absolutely necessary to the public safety." ----------------------------- 13. Robert J. Turnbull (1796) ----------------------------- In 1796, Robert J. Turnbull of South Carolina wrote a series of letters, published in 1798, sharing his detailed observations of Pennsylvania's new criminal justice system, and especially the day-to-day life of prisoners and staff at its innovative Walnut Street penitentiary in Philadelphia. While applauding this reform, Turnbull wrote in good part to urge its completion by the abolition of the death penalty even for murder in the first degree. Thus see Robert J. Turnbull, _A Visit to the Philadelphia Prison; Being an accurate and particular Account Of the Wise and Humane Administration Adopted in every Part of that Building; Containing Also An Account of the Gradual Reformation and Present Improved State of the Penal Laws of Pennsylvania: With Observations on the Impolicy and Injustice of Capital Punishments. In a Letter to a Friend_ (Dublin: Robert Dapper, 1798). In presenting the case for total abolition, Turnbull applies a test of "absolute and extreme necessity," as in self-defense, thus recalling Pastoret's approach in 1790 (Section 8 above) endorsed by Le Pelletier in the French parliamentary debate of May and June, 1791 (Section 10 above). "By the law of nature, a man may not even kill his enemy; he has only a right over his life in one particular case, and that of an absolute and extreme necessity, as where an attack is made upon him, with an intention to kill, and his own preservation depends on the immediate destruction of his antagonist. But this necessity cannot exist, if we can otherwise disable a man from injuring us, by confining him." Turnbull, supra, at 66. While this analogy to personal self-defense asserts that it is possible to achieve the goal of incapacitation by "confining" the offender, Turnbull also addresses the concern of deterrence: "A principal object of punishment, it has been said, is to hold out an example to society, in order to deter others from offending. The taking the life now of an unfortunate wretch is not such an example, as would prevent a depraved individual from launching into the same vicious course of life, and no person can doubt this who was ever present at an execution." Id. at 59-60. Like Justice Bradford, and also Benjamin Rush, Turnbull sees the deterrence question as depending in good part on the impressions and responses of spectators. After questioning, in the manner of Beccaria, supra, at 105-107, whether the "sudden and violent" but momentary spectacle of a criminal's "departure from morality" is the best way to leave a deterrent impression, he cautions that the result may be worse than ineffective: "When these impressions again are apt to create in the breast of a spectator, any other emotions than those of terror and detestation of the sufferer's offense, the consequences are still more prejudicial. How often, nevertheless, do we experience sensations the very opposite of these?" Turnbull, supra at 60. In contrast to Bradford's scenario, supra at 32-33, where the onlookers "acquiescence in the justice" of an execution, Turnbull presents a very different picture of the real world: "Is there scarcely an execution, which does not either prompt us to an admiration of the criminal's intrepidity, or excite our compassion for his distress; and thus, by affording a scene of virtue and sensibility, render us forgetful of the crime which gave birth to it?" Turnbull, supra at 60. Above all, Turnbull affirms as experienced reality Bradford's alternative possibility, supra at 33, that citizens witnessing an execution may "revolt at its severity," thus defeating the deterrent purpose: "Above all, how many men are there, who look upon the ceremony of a scaffold procession with all the indignation imaginable!" Turnbull, supra, at 60. Here Turnbull offers a first-person account of his own intellectual and affective reaction, contrasting the idea of legitimate defense with what Beccaria, supra at 103, has termed "a war of a whole nation against a citizen." "For myself I can avow that, on this occasion, the following train of reasoning forces itself upon my mind. What means this tumult, that disorders in this manner the peace and happiness of society? What this combination of thousands -- this waging war against an helpless individual. Does the existence of one poor delinquent endanger the security of a government or nation? If so, alas, my country, how art thou fallen!" Turnbull, supra, at 60. So far, Turnbull's testing of the "absolute necessity" of the death penalty has focused on the preventive purposes of incapacitation and deterrence which serve as a main focus for Beccaria, Eden, Pastoret, Bradford, and others. However, he adds what we might now describe as the retributive consideration of truly giving a murderer his or her just deserts. "Murder is the highest offence which man can possibly commit; an action which betrays the depravity of the human heart in its blackest garb; a crime directly violating all laws both human and divine, and therefore should be punished with the severest penalty that society can inflict. I will not be said to contradict myself, when I assert, that to take life is by no means sufficiently severe." Id. at 69. In seeking an alternative, Turnbull addresses the paradox also familiar to 20th-21st century abolitionists that the death penalty may be at once too "sanguinary" and cruel, and yet in another sense not as stern and adequate a sanction as permanent imprisonment coupled with labor and restitution: "The principal on which I reprobate the punishment of death is, that it is impolitic and unjust; that it is too sanguinary, and exceeding in proportion the injury proceeding from most offences, but evidently too mild for the crime of cool and deliberate murder. True it is, that it is the highest forfeit that can be made, but never can be considered as the most painful." Id. at 69. From this perspective of just deserts, he proposes an alternative: "What punishment you will ask instead of death can be substituted for so horrid a crime as murder? The answer is obvious: such an one as is of longer duration, and calculated to make _repeated_ rather than _violent_ impressions; and which once witnessed, thought of, or described, would always preserve in a person's mind a recollection or idea of the sufferer's situation. This might be effected without infringing the laws of humanity, by a punishment for life, compounded of equal proportions of hard labour, and solitary confinement, in a dungeon or cell of the description I have given you." Id. at 69. Describing in detail the convicted murderer's ordeal of social and sensory deprivation, id. at 60-61, Turnbull focuses above all on the torments of an undistracted examination of conscience: "Harassed by the weapons of self-torment; his soul pierced by the keen shafts of conscious guilt; he attempts, but in vain, to seek shelter in thought, for there he finds no asylum. Daily swallowing thus the bitter draught of remorse and wretchedness, his wearied frame enjoys but a short respite, even should sleep take possession of his limbs...: and when he awakes, 'tis only to behold in imagination, the angry appearance of offended majesty. What situation can be more painful! What punishment more proper for a murderer!" Id. at 70. This graphic depiction of the punishment of life imprisonment with a mixture of solitary confinement and hard labour develops in more detail the view of Benjamin Rush, "An Enquiry Into The Consistency of the Punishment of Murder by Death, with Reason and Revelation," supra, at 174-175, which also appears to have a strong retributive as well as rehabilitative focus: "Here it will be proper to distinguish between the sense of justice so universal among all nations, and an approbation of death as a punishment for murder. The former is written by the finger of God upon every human heart, but like his own attribute of justice, it has the happiness of individuals and of society for its objects. It is always missed, when it seeks for satisfaction in punishments that are injurious to society, or that are disproportioned to crimes. The satisfaction of this universal sense of justice by the punishments of imprisonment and labour, would far exceed that which is derived from the punishment of death; for it would be of longer duration, and it would more frequently occur; for, upon a principle formerly mentioned, scarcely any species of murder would escape with impunity." Id. at 174-175. In alluding to "a principle formerly mentioned," Rush means the readiness of juries to convict where the facts warrant it in noncapital cases, as opposed to the tendency to acquit or "palliate" the crime to some lesser degree of homicide in capital murder cases, see id. at 164-165 While the interest in carefully proportioned punishments is a central theme of the 18th-century criminal law reform movement, both Rush and Turnbull direct their special attention to how the ultimate crime of aggravated murder might receive a sanction at once satisfying Rush's "universal sense of justice" while avoiding the "injurious" effects of the death penalty: "A scale of punishments, by means of imprisonment and labour, might easily be contrived, so as to be accommodated to the different degrees of atrocity in murder. For example -- for the first or highest degree of guilt, let the punishment be solitude and darkness, and a total _want_ of employment. For the second, solitude and labour, with the benefit of light. For the third, confinement and labour. The _duration_ of these punishments should likewise be governed by the atrocity of the murder, and by the signs of contrition and amendment in the criminal." Id., 175 at ++. Turnbull's account of such a fitting punishment for murder focuses on the relentless ordeal of remorse faced by the prisoner; Rush brings out the ultimately rehabilitative aspect of the punishment by calling for attention to "the signs of contrition and amendment in the criminal." In the late 18th century or early 21st century, these two perspectives are not incompatible. While Turnbull's sense of just deserts might require, at least for the worst "cool and deliberate" murders, a sentence excluding the hope of release (in modern terms, LWOP), Rush's emphasis on the benevolent nature of just punishment, human or divine, could nevertheless provide, within the penitentiary, opportunities for a prisoner's advancement and alleviation of conditions, a major theme also of Turnbull's study in day-to-day administration at the Walnut Street prison. Incidentally, as Turnbull makes his clear, his conception of this ultimately fitting punishment for murder does not include one type of "painful" experience: whipping, which he elsewhere rejects at great length as both cruel and unnecessary as an instrument of penal or specifically prison discipline, noting its absence in the Philadelphia prison. See id. at 30-33, where he powerfully states the basic issue in a way congenial to current Eighth Amendment law with its focus on "nothing less than the dignity of man," _Trop v. Dulles_, 356 U.S. 86, 100 (1958). "And what is he in this situation? -- A more machine, moved at pleasure, by every stroke of the cat. -- His labour, it is true, may be produced by it, for there is no warring against bodily pains; but this is the least that is required: one of the principal ends of punishment, the amendment of the offender, is defeated, and irrecoverably lost." Turnbull, supra at 32. Having set forth in detail why a sentence of life at hard labour would be a less "sanguinary" but more stern and "proper" retribution for "cool and deliberate murder" than execution, Turnbull asks why it has not yet been adopted in Pennsylvania, where it would so well fit with the rest of the penal system: "Why it is not inflicted by the legislature of this state, I am at a loss to account for, unless they have imbibed that common received opinion, founded on the Levitical law, that life is the only equivalent for life." Turnbull, supra at 70. Thus Bradford, supra at 34, although taking a largely secular approach focused on the practical question of deterrence, ingeniously argues in favor of grading murder into degrees that it would avoid or minimize the need for clemency in cases coming within the common law definition of murder which yet "do not announce extreme depravity." "The defect may be, in a degree, supplied by the prerogative of pardon: yet it shocks the vulgar opinion, and lessens the horror of the crime, whenever a murderer is pardoned." Id. at 34. This "vulgar opinion," highlighted by the humane Eden's preemptory Biblical quotations to justify the "rigid infliction" of death for murder (Section 4) as well as serious questions about the proper authority of any human government to set aside this "divine" penalty (see conclusion of Section 11), may well, as Turnbull suggests, have been a major barrier in Pennsylvania and elsewhere to total abolition. In short, Turnbull emphasizes religious as well as secular considerations, arguing not only that the death penalty for murder fails the "absolute necessity" test because it is unnecessary for incapacitation and actually counterproductive for deterrence, but that life imprisonment with an apt combination of solitary confinement and hard labor is a superior alternative for exacting just retribution. ------------------------- 14. Jeremy Bentham (1799) ------------------------- In a discussion of punishment which Basil Montagu excerpts and identifies as "Published in the Year 1799," Jeremy Bentham presents an argument as to why the test of "absolute necessity" for the punishment of death is correct: the desire that punishments should be "remissible." "So long as proofs are susceptible of imperfection, so long as appearances may be deceitful, so long as men have no certain criteria for distinguishing truth from falsehood, one of the first securities which they reciprocally owe to each other, is not to admit, without absolute necessity, punishments absolutely irreparable." Jeremy Bentham, Montagu, supra, v. 1, at 218. In assessing the death penalty under this test of "absolute necessity," Bentham gives considerable attention to the goal of incapacitation, the purpose of the law "_To take away the power of injuring_." Id. at 219. Like Beccaria, he sees any necessity of execution for this purpose as very limited: "If cases can be found in which the power of injuring can be destroyed only by taking away life, they are very extraordinary cases; for instance, in civil wars, when the name of a chief, so long as he lives, is sufficient to inflame the passions of a multitude: and even death, applied to actions of such a problematical nature, should be considered rather as an act of hostility than as a punishment." Id. at 219. Turning to the problem of the deliberate murderer, Bentham first addresses this issue of incapacitation: "If it be said that death is necessary to prevent an assassin from repeating his crimes, it must be remembered, that, for the same reason, men who are insane and outrageous, from whom society has everything to fear, ought to be destroyed. If we can ensure ourselves against these, why not against the others?" Id. at 225. He then turns to deterrence: "If it be said that death is the only punishment which can prevail over certain temptations to commit homicide, it must be remembered, that these temptations can originate only in enmity or desire: must not these passions, from their very nature, dread humiliation, indigence, and captivity, more than death? Id. at 225. More positively, in advocating what editor Basil Montagu terms "the culture of benevolence," id. at 226, Bentham asserts that society can set a most powerful example in the way it punishes: "If the legislator be desirous to inspire humanity amongst the citizens, let him set the example; let him shew the utmost respect not only for the life of man, but for every circumstance by which the sensibility can be influenced. Sanguinary laws have a tendency to render men cruel, either by fear, by imitation, or by revenge. But laws dictated by mildness humanize the manners of a nation and the spirit of government." Id. at 226. * * * Bentham's desire to replace the death penalty with a "remissible" punishment recalls, for example, the imperative posed by Eden: "_[W]e should never admit, when it may be avoided, even the possibility of driving the innocent to destruction_." Eden, supra, at 151. Eden is addressing the rules of evidence, and especially the risks of relying conclusively upon a defendant's confession as proof of guilt -- or even of the fact of an actual crime! However, an abolitionist such as Bentham might happily have cited his words to advance his own case for "remissibility." Margo Schulter 5901 Newman Court #35 Sacramento, CA 95819-2618 916/457-8935 mschulter@calweb.com May 28, 2012