Crime and Punishment in American History - Lawrence M. Friedman [46]
In general, northern and midwestern states traveled down the same road as Pennsylvania: they sharply reduced the number of capital crimes. In Virginia, in 1779, Thomas Jefferson proposed eliminating the death penalty altogether, except for treason and murder. For rape and sodomy he proposed instead castration; for a woman who committed sodomy, he suggested drilling a hole at least one-half inch in diameter through the cartilage of her nose; for people who maimed or disfigured others, he proposed maiming and disfiguring in kind, “or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation.” Virginia never obliged its great man by adopting these curious suggestions; but in 1796, the state legislature got rid of the death penalty for all crimes except murder, and certain crimes committed by slaves.43
In the debate over the death penalty, a number of persistent themes were sounded. Both sides quoted scripture. The Old Testament recognized the death penalty, after all; hence, the Reverend John McLeod, a New York Presbyterian, could assert that abolition would be “most offensive to Jehovah.”44 The secular arguments were perhaps more telling. Benjamin Rush, writing in the 1790s, equated the death penalty with monarchy, with tyranny, with irrationality. Republics, he wrote, “appreciate human life.... They consider human sacrifices ... offensive.”45 Edward Livingston, a leading opponent, considered the death penalty barbarous and ineffective. The “infliction of death,” he wrote, “if frequent, ... loses its effect.” Under such circumstances, he asserted, killing becomes “a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed.”46
A serious attempt was made to abolish the death penalty in New York in 1841; petitions against the death penalty flooded the legislature, and capital punishment became the “subject of impassioned debate, fierce lobbying, ingenious maneuvering.”47 The death penalty survived, but for three crimes only: treason, murder, and (as we have seen) “arson in the first degree.”48 Somewhat unexpectedly, Michigan did, in fact, try full abolition in 1846; and Wisconsin and Rhode Island followed in the next few years.49
BODY AND SOUL
One strand in the movement against capital punishment is worth special mention. There was, in general, a revulsion against bodily punishments. Especially in the North, whipping and other means of mortifying the flesh fell into disrepute; in many states, corporal punishment was officially eliminated. The alternative (as we shall see) was the prison system. In Massachusetts, whipping, branding, the stocks, and the pillory were abolished in the 1804—5 session of the legislature—as Michael Hindus points out, roughly at the time that the Massachusetts State Prison opened for business.50 In Indiana the legislature ordered a state prison to be built in 1821; when it was nearing completion, the legislature followed through by getting rid of whipping altogether.51
Reformers eagerly embraced the idea of locking up human beings for long periods of time; but they rejected quick and dirty punishment at the whipping post. Corporal punishment was “barbarous.” In the antebellum period there were campaigns against whipping—not only as a legal means of punishment, but everywhere: in the schoolhouse, in the prison, and in the navy, where flogging was a familiar institution.52
Obviously “barbarism” is a social concept. Why reformers of the nineteenth century recoiled in such horror from direct, personal, physical punishment is not really