The anti-death penalty movement, i.e., the abolitionists, has more than 200 years of documented history in the United States. Though they never really gained the solid support of the people of the United States, there have been periods when abolitionist thought represented at least half of the surveyed population. This paper would attempt to give a short documentation of abolitionist history in the United States.
Herbert Haine divided the abolitionist history into four periods: 1) the two decades before the Civil War; 2) the turn of the century; 3) the 1960’s, when NAACP Legal Defense Fund lawyers battled the death penalty on Constitutional grounds; and 4) the years since 1976, when the U.S. Supreme Court’s decision in Gregg v. Georgia allowed executions to resume in America. For more a greater extension, I choose to follow the Death Penalty Information Center’s (DPIC) divisions in its discussion of the abolitionist movement. DPIC divides the history of the abolition movement in three: the colonial times, the nineteenth century, and the early and mid-twentieth century. This chronological division gives space for a more liberal discussion on the developments that happened in the movement. It would also be much easier to incorporate Haine’s divisions into the DPIC division, than to do it vice-versa. After a discussion of these three periods, a discussion on the present abolitionist trends shall ensue. This discussion would roughly describe the present status of the abolitionists. It is in this discussion that Haine’s pragmatic abolitionism proves to be indispensable.
Each period shall be looked upon based on the following indicators: the participants in the movement; their activities; networking between organizations, if such accounts are available; and lastly, the underlying ethics of the organizations that may very well at the very least help define the spirit of the entire movement within the given period. We may also briefly state the acceptance (or the lack of it) of such an ethic by the surveyed public. We would also briefly show how the movement dispersed internationally.
THE COLONIAL TIMES
Death penalty was brought by the British in the United States. The earliest recorded capital punishment was in 1608 in Virginia, that of Captain George Kendall who was accused of spying for Spain (DPIC). Apparently, abolitionist voices remained negligible until the time when American thinkers started being influenced by the Milanese political philosopher, Cesare, Marquis of Beccaria. It could be remembered that from the time of the publication of Beccaria’s treatise, “On Crimes and Punishments” in 1767, it eventually influenced European politicians to reconsider abolishing the death penalty. The call for the abolition was hinged on the premise that capital punishment does not really deter crime because the impression it gives to the potential criminal is not lasting. Making hard criminals into perpetual slaves is a better deterrent for crimes since impressions are lasting. Exposure to slavery also has the added bonus of making citizens sensitive to suffering (Internet Encyclopedia of Philosophy). Austria and Tuscany heeded Cesare’s call for abolition, and it would not take a long time before Cesare’s fame would reach the shores of what was then a British colony. The two American thinkers that seemed to have been influenced by Cesare are Thomas Jefferson and Dr. Benjamin Rush. Let us look at Thomas Jefferson first.
Thomas Jefferson proposed a bill to revise Virginia’s laws on death penalty. The bill intended that capital punishment strictly be for murder and treason, and not for other heinous crimes. Working on the principle of proportion, i.e., that punishment ought to be proportion to the crime done, heinous crimes such as rape and buggery ought to be punished by castration, while other crimes ought to be such that the criminal be assigned to provide services to the community by working on “high roads, rivers, etcetera” (Jefferson). Though Jefferson’s bill lacked one vote for it to have been effected (DPIC), it is noteworthy that such a bill that limits the imposition of the death penalty did get a good number of political votes.
If Thomas Jefferson was not able to secure one more vote for the passage of his bill into law, Dr. Benjamin Rush did get the support of Benjamin Franklin and Philadelphia Attorney General William Bradford (DPIC), the right support for Pennsylvania to consider different degrees of murder culpability, and eventually for Pennsylvania to repeal the death penalty except for first degree murder (University of Pennsylvania). For Benjamin Rush, the death penalty and public punishments were counterproductive; instead, private confinement, labor, solitude, and religious instruction would do much better (University of Pennsylvania). Obviously, his is a reformist perspective the aim of which is to make the criminal functional again.
Aside from Thomas Jefferson’s punishment ethics hinged on the concept of proportionality and Benjamin Rush’s reformism, another ethic that was dominant during these times was religious in nature. Religious arguments have their typical historical flavor and during these times, it became necessary for abolitionists to give a staple moral response to retentionists who utilized Old Testament passages to defend capital punishment. An example of an Old Testament passage that was utilized by retentionists is Genesis 9:6, “Whoso sheddeth man’s blood by man shall his blood be shed.” The typical abolitionist response would be that such a statement (and all the others that retentionists use) is not meant as a divine endorsement; nor do they form part of the commandments. They merely describe how things may be. Besides, the arrival of Christ replaced the seemingly harsh laws of the Old Testament with the comforting commandment to love and to forgive (DPIC).
The interplay between Jefferson’s proportionalism, Rush’s reformism and the commandment to love and to forgive created a certain synergy such that criminals were perceived not only as good for nothing individuals but as human beings who erred but may still be capable of being useful. This abolitionist ethic would certainly carry over in the next century such that we would again see these persistent legal attempts to seriously consider the abolition of capital punishment. Allow me to linger into this colonial abolitionist ethic a bit more.
The stress on penalty being commensurate on the crime, plus the additional subtlety of determining different degrees of a crime, is priceless contributions in the penal code legislation. Once such a concept of fairness and equity and proportion (in short, a more refined concept of justice) is coupled with a reformistic ethic the goal of which is not only to punish the criminals but to make them useful citizens again, would create such an impact in the citizen’s psyche such that in spite of the constant resurgence of the death penalty, its abolition will continually follow like a dog stuck on its own tail. This, combined with the commandment to love and forgive will remain a mantra for abolitionists for such a long time that to understand the abolition movement is to understand these basic ethical foundations. Only in the present would the appeal of this colonial abolitionist ethic wane and give way to another sort of abolitionist ethic.
Suffice it to say that the beginnings of the abolitionist movement in the colonial times had strong political motivations. The leading personalities were not people from organizations (which is the case in the present abolitionist movement) but political individuals who were involved in both legal reform as well as political philosophy. At this stage, international dispersal was already seen, though the recipient of the dispensed information is the now United States of America.
Before moving on to the next period, it would be of benefit to mention a system that existed during the colonial period that seemed to complement the headway that abolitionism is having. In 1718 in New England and in New Hampshire, and in 1749 in Rhode Island, a system called half death or symbolic capital punishment (“Capital Punishment in the United States” 14) came in with the decapitalization of some of the criminal offenses. Burglary is an example of a crime that was decapitalized. A convicted burglar, for example, would be made to stand on the gallows for a certain time, and have his neck hanged on a halter for half an hour. This procedure is designed so that the criminal would not die. The first two convictions would be punishable with symbolic capital punishment. Only on the third offense will the criminal be truly punished with death. This system of symbolic capital punishment speaks of a growing cautiousness of the judicial system of the different states on imposing capital punishment on convicted criminals. Such seems to be additional points for abolitionists. Nevertheless, one area of society seems not to benefit at all from these strides would be the slaves. Throughout the colonial period, many offenses remained punishable by death if the offender is a slave. And, death for a slave may take in many forms like lynching, hanging, and burning. Murdering one’s master or plotting revolt would make the black criminal be punished by burning. There were even times when authorities thought it would be of great benefit that some of the sensational criminals would not only be lynched, burned or hanged; their dismembered body parts were even scattered and displayed in the different places within the village for deterrent purposes (“Capital Punishment in the United States” 13). Such a double standard existed even until the 1970’s. Later on we would see some improvements in the twentieth century. For now, whatever the strides that abolitionism may have, they benefit the white man most of the time. Let us now turn to the next historical period.
NINETEENTH CENTURY
The nineteenth century is marked by the initial appeal of the abolitionist ethic that would suddenly give way to a more organized retentionism.
The beginning of the nineteenth century was marked by a wide following for the abolitionists. In fact, there was a number of what seemed like “breakthroughs” in legal reform that gave the initial feeling of a slow but sure triumph for abolitionism. Since there was not really a new abolitionist ethic at this time but a carry over from the previous period, in this part of the paper we shall skip the discussion on a nineteenth century abolitionist ethic and proceed instead with the discussion on the achievements of the movement during this period as well as other factors that accompanied these achievements. Afterwards, we’ll attempt to show how the initial victory of the abolitionists would give way to retentionism in the latter half of this century.
Probably taking it from the cue of Dr. Benjamin Rush who put into disfavor public punishments and instead vocally expressed the favorability of solitude for the criminal, the different states slowly gave importance on the privacy and sense of respect even for the convicted criminal. What used to be the source of public entertainment for centuries is now being redefined inhuman. No more could people witness public executions as they always have. Executions have now been moved to correctional facilities, at least for the states that did not as yet abolish capital punishment. Pennsylvania was the first state to ever move these public executions inside correctional facilities in 1834. Other states followed in time. With the moving of executions in correctional facilities came the establishment of many state penitentiaries. Because a number of crimes became not punishable by death (amidst the growing caution over the imposition of the death penalty), the states would have to provide space for humane quarters.
With the lowering down of punishments for some crime and the creation of state penitentiaries came the abolition (but afterwards restoration) of capital punishment in some states. Before discussing these series of abolitions (and restorations), it would benefit us to look at the movements behind such an abolitional wave. It must be remembered that these waves were initiated by Thomas Jefferson, and more importantly by Benjamin Rush (the very first American personality that categorically stated his opposition to capital punishment) in the earlier period. There was not really much ideological difference between the colonial period abolitionist ethic and the nineteenth century abolitionist ethic; the difference lies in the additional organizations involved in the movement.
At this time, aside from the politicians, media and civil organizations became involved in the abolitionist wave. Horace Greeley, the founder and long time editor of the New York Tribune, put efforts to actively campaign against capital punishment (“Capital Punishment in the United States” 15). Hence, with the additional involvement of media, more and more civilians had the opportunity to dip their fingers into the issue. This led to the creation of the American Society for the Abolition of Capital Punishment (“Capital Punishment in the United States” 15)), an organization that actively worked for the causes of abolition ethic. Such interplay between the politicians, the media, and an active organization created an active atmosphere of what seemed to be a quasi-propaganda to overturn a penal system that has withstood the test of time. Such an active discussion on the abolition (and retention) of death penalty in the United States and outside of if could have created such a stir such that before the end of the century, other countries followed suit in the abolition. Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador would also within this century abolish capital punishment.
Within the United States, the political distinction between the north and the south also spoke of two opposing waves as regards this issue. The northern states were considering the abolition of capital punishment while the southern states wanted to retain it. Such a division was coupled with the distinction between the north and the south in the slavery issue, i.e., the retention or abolition of the death penalty was compounded with the difficult issue of the application of such abolition or the retention of the issue with the abolition or retention of slavery. We should recall that amidst the strides that abolitionists were garnering, the slaves were still lynched, hanged or burned once they have been judged as guilty of a crime.
Aside from or within these differences between the north and the south came the abolition (and the eventual restoration) of capital punishment in some of the states. In 1846, Michigan probably became the first state that replaced death penalty with life imprisonment, except for treason. Rhode Island and Wisconsin suppressed capital punishment, Iowa abolished it in 1872, Colorado abolished it in 1877, and Maine abolished it in 1876 (“Capital Punishment in the United States” 15). Some of these states restored capital punishment after some years. Probably, this abolition and restoration could have been affected or is reflective of the amount of criminality present. Nevertheless, it is also possible that the unstable abolition of this system could be attributed to what McFeely called the brutalizing effect of the Civil War on society. The war could have affected societal psyche, as war often does, such that trust and peace could hardly be sustained. Louis Masur argued that if not for the civil war, capital punishment could have been abolished in most of the states (Masur in McFeely). The wave of abolitionist influence proved to be inferior as well to the really big slavery issue that divided the north and the south. In one way or another, the abolition and retention issue was overshadowed by the slavery issue, at least temporarily.
This account of the nineteenth century abolitionist movement would not be complete without highlighting two more of its accomplishments. It was during this period when Vermont took the power off from towns and counties to give hanging as a sentence. Capital punishment from 1864 onwards had to be already state sanctioned (McFeely). This was intended to cut off some powers from judges who were slowly being known as “hanging judges.” Such an institution proved to be an efficient one such that the states that still have capital punishment up to the present day still follow this state-sanctioned rule. Another important event that happened was the movement from mandatory to discretionary death penalty in 1838 in Tennessee and Alabama proved to be an important event. This made the judges consider circumstances in the decision such that judges were given more space to consider other things that would have not mattered prior to this change. In one way or another, the abolitionist wave did have its triumphs in this century. Nevertheless, it should not be forgotten that it was also in this century where the electric chair started to be used in a number of states. Hence, in spite of the wins of the abolitionist movement, retentionist remains as a strong undercurrent. Let us now move on to the next period.
THE EARLY AND MID-20th CENTURY
The 20th century is again a rollercoaster ride for the abolitionist movement. The beginning of this century seemed to be a continuation of what were already the wins of the movement in the earlier century: “from 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official” (DPIC). Nevertheless, these achievements proved to be short-lived as the United States entered World War I. There was also that persistent fear of revolution because of the Russian Revolution, probably due to the threat posed by socialists against the capitalist system (DPIC). Due to this, the early wins of the abolitionist movement were easily reverted as many of those states that initially abolished capital punishment restored the system again, after some time.
Aside from the use of the electric chair, more ways to impose capital punishment were sought to give way to more humane imposition of this punishment. In Nevada, for example, the use of lethal gas was resorted to. Criminologists again ventured into the positive uses of capital punishment. Amidst the frenzy of the world war plus the threat of revolution came again the idea that the thought of death as a punishment would deter future criminals from pursuing any criminal plan (DPIC). Again, the death penalty was perceived as necessary for the penal system. This was coupled by the period of Great Depression in the United States (DPIC).
Nevertheless, the roller coaster would slowly crawl up for the abolitionists. The end of the world war brought to the fore the millions of Jews killed by the Nazis. This stunning thought of millions of death made the Americans feel uncomfortable about killing as part of the penal system (McFeely). This once again gave the upper hand to the abolitionists, and this time, other new organizations would sprout that would aid in the cause of the movement
The 1950’s was a period when public sentiment was congenial to abolitionism. More states were abolishing capital punishment from their penal system, and hence, there were less deaths due to capital punishment happened in the 1950’s compared to the 1940’s. In the advent of the abolition of the death penalty in Hawaii and Alaska in 1957, in Oregon in 1964, and in Virginia in 1965, the amount of executions fell geometrically from 1,289 in the 1940’s to 715 in the 1950’s and 191 from 1960 to 1976 (“Capital Punishment in the United States,” 17). The Gallup poll survey in the 1960’s showed also a low support for capital punishment. Only 42% of the surveyed supported capital punishment.
This second half of the 20th century saw other organizations in the abolitionist movement that in one way or another gave a strong impact, at the same time stirring what has long been an overdue: the issue of capital punishment and color.
The National Association for the Advancement of Colored People (NAACP) Legal Defense Fund sought what is now called the moratorium strategy. The strategy started out as an effort by the Legal Defense Fund to provide legal counsel for the blacks and other minorities who, according to statistics, were poorly represented. Four out of five convicts were black; the legal counsel assigned to them proved to be new and inexperienced lawyers who were not able to handle the complexities of their clients’ cases. The NAACP united with another organization the aim of which is to protect the rights of individuals. This is the American Civil Liberties Union (ACLU). In their joint effort, they were able to pull off a moratorium to capital punishment from 1967 to 1971. This moratorium should give enough time to work out the cases of these poorly represented convicts, at the same time enough time for the abolitionist movement enough space to work double time for their cause. In one way or another, this moratorium ended with another incident that favored the abolitionist movement: the declaration of the unconstitutionality of capital punishment in Furman v. Georgia. In this case, the Supreme Court ruled that capital punishment, as exemplified in the case where a black burglar who accidentally killed a white man in the act of burglary, was convicted to death, is an unusual and cruel punishment. For a time, this made capital punishment anathema, but again, such did not last long. In Gregg v. Georgia, capital punishment was reinstated (“Capital Punishment in the United States” 20-21).
At this point, it would be noteworthy to state the abolitionist ethic that prevailed. The religious tone that was carried over from the colonial period was replaced by an ethic centered on man’s dignity. According to Haine, the prevalent ethic during this time talked about the sanctity of life and hence, capital punishment was in direct violation of a more basic law of respecting human life. Such a punishment is inherently cruel, aside from being steeped in discrimination and capriciousness (Haines). This ethic was carried on by the organizations mentioned above and by Amnesty International from the 1970’s up to the present.
The present time is marked by a low support for capital punishment, and the reason for this is that fewer people find supporting the ideology of respect for the sanctity of life worthwhile. Hence, present day abolitionists are finding other ways and other ideologies that would be more conducive to the contemporary mind. Herbert Haine proposes what he calls a “pragmatic” abolitionism wherein the focus would not be so much on those deontological ethical arguments but on the factual societal benefits of life imprisonment over capital punishment. Haine showed that the popular support to capital punishment is not absolute. Once the surveyed population is presented with an option like life imprisonment without bail plus restitution, the figures move in favor of abolitionism. This is what organizations like Citizens United for the Alternatives to the Death Penalty (CUADP) are campaigning for.
CONCLUSION
The abolitionist movement has been on a rollercoaster ride from the colonial times to the present. This ride may be attributed to differences in ethic as well as the confluence of different circumstances. The synergy between organizations, states, and nations also play a part in the whole scheme of things.
REFERENCES
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