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The Enlightenment, America's Death Penalty, and the Abolition Movement

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The Enlightenment, America's Death Penalty, and the Abolition Movement University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Fall 2009 Revisiting Beccaria's Vision: The nliE ghtenment, America's Death Penalty, and the Abolition Movement John Bessler University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Revisiting Beccaria's Vision: The nlE ightenment, America's Death Penalty, and the Abolition Movement, 4 Nw. J. L. & Soc. Pol'y 196 (2009) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Copyright 2009 by Northwestern University School of Law Volume 4 (Fall 2009) Northwestern Journal of Law and Social Policy Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, and the Abolition Movement John D. Bessler* I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. -Thomas Jefferson** Perhaps the whole business of the retention of the death penalty will seem to the next generation, as it seems to many even now, an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life. -Benjamin N. Cardozo *** • Visiting Associate Professor of Law, The George Washington University Law School, Washington, D.C. The author has taught a death penalty seminar since 1998, fIrst as an adjunct professor at the University of Minnesota Law School and later at The George Washington University Law School. The author extends a special thanks to Dean Frederick Lawrence for making available a summer research grant; research assistants Michael Ansell, Jonathan Auerbach and Mark Taticchi; his many former students for their thoughtful in-class participation; and the guest speakers who shared their own insights-both in class and in their writings-over the years: the late Hon. Donald P. Lay of the U.S. Court of Appeals for the Eighth Circuit; Sandra Babcock and Joseph Margulies at the Northwestern University School of Law; Robin Maher, Director of the ABA's Death Penalty Representation Project; Richard Dieter, Executive Director of the Death Penalty Information Center; David Lillehaug, former U.S. Attorney for the District of Minnesota; Susan Karamanian, GW's Associate Dean for International and Comparative Legal Studies; the Hon. Bruce Peterson; and Tom Fraser, John Getsinger, Andre Hanson, Tom Johnson, Steven Kaplan, Steve Pincus, Tim Rank, Jim Volling and Steve Wells-all lawyers in private practice who have worked on capital cases. The author also thanks the Journal's staff, especially George Balgobin, Jason Britt, Sarah Hoffman, Amanda Inskeep, David King, Lauren Matecki, Michelle Olson, and Heather Renwick, for their invaluable editorial assistance. The views expressed here are solely those of the author . •• Letter from Thomas Jefferson to Samuel Kercheval, July 12, 1816. This excerpt from Jefferson's letter is one offour inscriptions chiseled in stone at the Jefferson Memorial in Washington, D.C . ••• BENJAMINN. CARDOZO, LAW AND LITERATURE 93-94 (1931). Cardozo made this prediction in 1931, a year before his appointment to the Supreme Court. Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 OR. L. REv. 97, 97 (2002). NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009 1. INTRODUCTION In 1764, Cesare Beccaria, the 26-year-old eldest son of an Italian nobleman, published a short treatise, Dei delitti e delle pene, that was translated into English three years later as On Crimes and Punishments. 1 In it, Beccaria argued that "there must be proportion between crimes and punishments.,,2 Beccaria-the father of the abolitionist movement3-pointedly asked: "Is death really a useful or necessary punishment for the security or good order of society?,,4 "By what right," he pondered, "can men presume to 1 CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS xxxi (Richard Bellamy ed., Richard Davies trans., 1995) [hereinafter BECCARIA (Bellamy ed.)]; see also MARCELLO MAESTRO, CESARE BECCARIA AND THE ORIGINS OF PENAL REFORM 5 (1973) ("Bom in Milan on March 15, 1738, he was the fIrst son of aristocratic though not very wealthy parents, Giovanni Saverio and Maria Beccaria. His full name and title were Marchese Cesare Beccaria Bonesana."). The fIrst Italian edition of Beccaria's book-a slender volume coming in at slightly more than 100 pages-was published by Aubert of Leghorn and was received in Milan on July 16, 1764. Id. at 20. The fIrst English translation of the book became available in the United States in the 1770s. See id. at 43 n.10; CAPITAL PUNISHMENT IN THE UNITED STATES: A DOCUMENTARY HISTORY 4 (Bryan Vila & Cynthia Morris, eds., 1997); LOUIS P. MASUR, RITES OF EXECUTION: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AMERICAN CULTURE, 1776-1865, at 52 (1989). By the end of the eighteenth century approximately sixty editions of On Crimes and Punishments had been published. MAESTRO, supra, at 43. A more complete history of Beccaria's book-and additional information about the editions and translations of it-can be found elsewhere. See, e.g., BECCARIA (Bellamy ed.) supra, at xli-xliv, xlvi-xlvii; STUART BANNER, THE DEATH PENAL TY: AN AMERICAN HISTORY 91 (2002). There are multiple English translations of Beccaria's On Crimes and Punishments. CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS xxx (Aaron Thomas, ed., Aaron Thomas & Jeremy Parzen, trans., 2008) [hereineafter BECCARIA (Thomas ed.)]. I have chosen to utilize the most recent one, a translation published in 2008 by the University of Toronto Press as part of the Lorenzo Da Ponte Italian library series. Andre Morellet completed a French translation of the book in 1765, and German, Swedish, Russian, Spanish and early English translations were often based on that French translation, which radically reorganized Beccaria's book and transposed whole paragraphs and sentences. Id. at xxvii-xxx; MAESTRO, supra, at 40--43. The French translation of Beccaria's book, prepared by Morellet, was not even sent to Beccaria until after its publication in France. BECCARIA (Bellamy ed.), supra, at 119-20 nA; MAESTRO, supra, at 40. What has been described as the "authoritative Italian edition" of Dei delitti e delle pene-one that Beccaria himself had a hand in revising-came out in 1766 as Beccaria's fame was growing around the globe. Aside from the translation utilized here, only two other English translations of that authoritative Italian text exist. BECCARIA, (Thomas ed.), supra, at xxx & nA8 (citing BECCARIA (Bellamy ed.), supra & CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (David Young trans., 1986) [hereineafter BECCARIA (Young trans.)]). 2 BECCARIA (Thomas ed.), supra note 1, at 17. Beccaria believed that crimes are "distributed across a scale that moves imperceptibly by diminishing degrees from the highest to the lowest" and that "[i]f geometry were applicable to the infmite and obscure combinations of human actions, there would be a corresponding scale of punishments, descending from the most severe to the mildest." Id. at 18. 3 See WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW 5 (3d ed. 2002); Hugo Adam Bedau, Interpreting the Eighth Amendment: Principled vs. Populist Strategies, 13 T.M. COOLEY L. REv. 789, 805 (1996) ("The original impetus to abolish the death penalty two hundred years ago in Europe was fueled by Cesare Beccaria's little book, On Crimes and Punishments, and by Jeremy Bentham in England."). The term "abolitionist" is commonly used to refer to opponents of slavery or to opponents of capital punishment. See Krista L. Patterson, Acculturation and the Development o/Death Penalty Doctrine in the United States, 55 DUKE L.J. 1217, 1226 (2006). It is used here to refer to anti-death penalty advocates. The connection between opponents of slavery and the death penalty is a long-standing one. Anti-slavery activists, such as Frederick Douglass, often also opposed capital punishment. See WILLIAM S. McFEELY, FREDERICK DOUGLASS 189 (1991); FREDERICK DOUGLASS, THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 418 (Phillip S. Foner, ed., 1950); Dr. James J. Megivern, Our National Shame: The Death Penalty and the Disuse o/Clemency, 28 CAP. U. L. REv. 595, 595-96 (2000) (citing 3 THE FREDERICK DOUGLASS PAPERS 242--48 (John W. Blassingame ed., 1979)). 4 BECCARIA (Thomas ed.), supra note 1, at 26 (italics in original). 196 Vol. 4:2] John D. Bessler slaughter their fellows?"s "It seems absurd to me," Beccaria continued, "that the laws, which are the expression of the public will, and which execrate and punish homicide, should themselves commit one, and that to deter citizens from murder they should order a public murder.,,6 Beccaria railed against the barbarity of state-sanctioned executions, viewing them as violative of natural law. "[S]overeignty and the laws," he wrote, "are nothing but the sum of the smallest portions of the personal liberty of each individual; they represent the general will, which is the aggregate of particular wills."? "Who has ever willingly given other men the authority to kill him?" he asked rhetorically,8 adding that "the death penalty is not a right, but the war of a nation against a citizen.,,9 Viewing life itself as "a natural right,,,l0 Beccaria vehemently called for the death penalty's abolition.
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