The Decline of Capital Punishment and its Place in Law as Deterrence

Execution of the criminal was a public spectacle for most of human civilization. Public beheadings, the gallows, the guillotine, and the firing squad were all “executed through ritual and dramatic display” as a demonstration of state authority. The implementation of capital punishment as a public affair simultaneously administered justice and served a political purpose, accomplishing “juridico-political function.”[1] The offender is found guilty, and his or her death is the pinnacle of justice served. Execution also gives the state the opportunity to seek retribution against the criminal who attacked the law and the sovereign state behind the law.[2] Hanging Day in pre-1835 New York was a demonstration of power and warning, where the audience would both witness the strength of the state and simultaneously be deterred from committing crimes.[3] Reform in the nineteenth century by writers such as Bentham, Beccaria, Rush, and Livingston focused on curbing the barbaric and bloodthirsty traditions of public executions.[4]

In 1796, New York constructed Newgate Prison in Greenwich Village and introduced incarceration as a form of punishmentLegislators and reformists of the day considered execution to be an inefficient way to deter future crime, reserving it for murder, treason, and arson only. With the introduction of imprisonment, the deterring effects of public execution became unnecessary in the demonstration of state power and even became harmful to the state’s image. The desire was to retain the benefits of capital punishment, “strengthening its deterrent efficacy and removing its most objectionable features.[5] As Michel Foucault wrote, the goal was “not to punish less, but to punish better.”[6] Moved by the arguments of these reformists, the New York Legislature moved away from public executions and closer to the dead and done of the electric chair.

Public Execution in New York
Public Execution in New York [7}
The biggest hurdle the reformists had to jump was invalidating the arguments of the legislature that stated public executions were a good deterrence.[8] The display did nothing to validate the state’s strength, as eighteenth and nineteenth century states were already sufficiently strong and legitimized.[9] Public executions seemed to be inheritance from earlier eras such as medieval Europe where executions were needed to demonstrate their ability to maintain order. At one point, the public execution was considered a strong deterring factor, showing all gathered that the state wielded the authority to deliver justice through violent execution. Cesare Beccaria, an important Italian reformist and a founding father of modern penology, wrote that execution was psychologically a weak form of deterrence because it is brief and easily forgotten.[10] Slower, more prolonged and frequent punishments such as incarceration were theoretically more effective. Therefore, punishment as deterrence could be properly administered through imprisonment. Execution was for the permanent removal of the most dangerous criminals.

An 1835 Report to the New York legislature hoping to restrain the use of execution cited Bentham, Romily, Beccaria, and Dagge that public executions equal disgust among the populace and a negative view of the state. All forms of execution, from beheadings to hangings, had an element of barbarity and cruelty to them and were denounced as “disgusting exhibitions.”[11] The chance error (a hanging that causes the convict to strangle to death, for example) could have serious detrimental effects on civic order that would detract from the state’s agenda. Before death, the convict has the opportunity to speak to a broad audience and condemn the state, appeal to their emotions, beg for mercy, and in general sow discontent at the administration of justice: “Public execution audience held the momentary power not only to confer legitimacy on the executing authority but also to challenge that authority.”[12]

A private hanging. [13]
A private hanging. [13]

Following the arguments against public execution, the New York Legislature passed an act in 1835 mandating that all executions had to take place within the prison walls.[14] While executions remained relatively public for the better part of the nineteenth century, the legislative efforts of the state showed a desire to bring executions out of public scrutiny because it was no longer efficient for them to be public.

Even when the executions were made private after the Civil War in 1865, there was still a need to reform the death penalty. The end of the nineteenth century was an era of sensitivity to pain, and the execution options at the time were limited. Guillotines were painless but too bloody, hanging was unreliable and could leave the convict to die slowly, shooting was bloody and unreliable and too military, and the garrote was bloodless but barbaric.[15] Doctor Southwick postulated that death by electricity would be painless, and after lab experiments to explore the idea, he proposed the idea to the legislature in Albany.[16] The implementation of the electric chair began with the Electrical Execution Act of 1888 which mandated that execution must be delivered by passing a lethal electric current through the convict’s body until death.[17] The first convict to be executed using this new method was William Kemmler, at Auburn Prison in New York.[18]

By the end of the nineteenth century, execution styles had moved away from public spectacle and more towards efficacy. The state adopted a dead and done method whereby the execution of the criminal would hopefully not affect public opinion.

The private execution of a criminal by electrocution. [19]
The private execution of a criminal by electrocution. [19]
Capital punishment, while still in existence, no longer functioned as a threat to deter crime as it had when it was public. However, effectiveness of execution as deterrence was questionable, because the infrequent sentencing and “fleeting” effect of the death.[20] Capital punishment was replaced by incarceration as the primary form of punishment on crime, a process with slow and insidious effects on the criminals and the public. As the penitentiary system grew in the nineteenth century, execution was abandoned as a form of deterrence.

 

[1] Michael Madow, “Forbidden Spectacle: Executions, the Public, and the Press in Nineteenth Century New York,” The Buffalo Law Review 461 (1995), 480.

Michel Foucault, Discipline and Punish (New York: Vintage Books, 1995), 48.

[2] Ibid 47.

[3] Madow, Forbidden Spectacle, 480.

[4] Ibid 493.

[5] Ibid 491.

[6] Foucault, Discipline and Punish, 82.

[7] http://www.boweryboyshistory.com/2009/07/execution-corner-13th-street-and-2nd.html

[8]  Madow, “Forbidden Spectacle” 507.

[9] Ibid 497.

[10] Cesare Beccaria, “Essay on Crimes and Punishments,” (1773), 46-47.

[11] Edwin G. Burrows and Mike Wallace, Gotham: a History of New York City to 1898. (New York: Oxford University Press, 2000), 506.

[12] Annula Linders, “The Execution Spectacle and State Legitimacy: The Changing Nature of the American Execution Audience 1833-1897,” Law and Society Review, (2002), 610.

[13] Ibid, 626.

[14] Madow, “Forbidden Spectacle,” 504.

[15] Ibid 535.

[16] Ibid 533.

[17] “Penal law and the Code of criminal procedure of the State of New York : with amendments. 1918 by New York State,” (1918), 210.

[18] Linders 634.

[19]  Ibid, 636.

[20] Beccaria, Essay on Crimes and Punishments 46-47.