Tracing the Founders’ Perspectives on the Death Penalty and the Eighth Amendment to Move Toward a Future Without Capital Punishment

1/18/2012

By George C. Chipev, J.D. Candidate

Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment. By John D. Bessler+. Boston: Northeastern University Press, 2012. Pp. 456. $39.95

John D. Bessler’s fourth book, Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment, presents a careful, well-researched study of the death penalty in American history. The book demonstrates that the Founding Fathers held conflicting and evolving views about the death penalty, and did not necessarily support its use. Bessler, admirably, does not take a detached approach in Cruel & Unusual. As he explains, the book “thoroughly examines the Eighth Amendment’s history, meaning, and purpose, arguing that the Cruel and Unusual Punishments Clause should be read to bar executions” and that its meaning is not tied to “eighteenth-century mores.”[1] Bessler’s subjective approach augments the effect of his compelling historical indictment of capital punishment, particularly as he seeks to change readers’ understanding of punishment and penal reform in the late eighteenth and early nineteenth centuries.

Bessler begins his examination of the American death penalty by discussing individuals whose philosophies (birthed while executions were commonplace in Europe and America) influenced theories of punishment and the Founders themselves. His primary focus is on Cesare Beccaria, an Italian who argued in his treatise, On Crimes and Punishments (Dei delitti e delle pene), that “there must be proportion between crimes and punishments,” and asked whether death is “really a useful or necessary punishment for the security or good order of society.”[2] Beccaria felt that “executions only brutalized societies”[3] and challenged the deterrence justification of punishment,[4] instead emphasizing the need for preventing crime and educating the public.[5] By the mid-to-late 1700s, Beccaria’s books and ideas had traveled across the Atlantic Ocean and into the hands of Thomas Jefferson, George Washington, and others.[6] As Bessler acknowledges, many of the Founders did not oppose executions (particularly during wartime), but there was ambivalence about its indiscriminate use for lesser offenses (e.g., offenses other than treason, murder, piracy, etc.)—an ambivalence which provides the opening for Bessler’s argument that the Founders’ and early Americans’ views on the death penalty were evolving and counsel in favor of abolition today.[7]

Bessler’s discussion of Beccaria is a strong introduction to his fascinating examination (which I will not spoil here) of the views of the Founders on the death penalty, including those of: Thomas Paine, Thomas Jefferson, Benjamin Franklin, George Washington, Alexander Hamilton, and James Madison.  After detailing the history, meaning, and application of the Eighth Amendment, which was designed to protect prisoners’ rights,[8] Bessler questions why, for example, the amendment bars corporal punishment yet condones executions.[9] By highlighting such inconsistencies and the arbitrary and discriminatory manner in which the death penalty is applied, he directly challenges the continued use of the death penalty and deconstructs the philosophies of Supreme Court Justices (like Antonin Scalia) who argue that the Constitution precludes the Court from declaring the death penalty unconstitutional.[10] Throughout his book, Bessler demonstrates that the originalist approach to constitutional interpretation is too simplistic for use in the Eighth Amendment context and that a “principledapproach”[11] to the Eighth Amendment is necessary and militates in favor of the abolition of the death penalty.

Overall, the thrust of the thesis in Cruel & Unusual is that what constitutes “cruel and unusual” punishment is a question for today’s society—a society which Bessler believes must reject the death penalty.  That may not necessarily be a novel argument, but Bessler certainly presents it in a novel, worthwhile manner.