Many perspectives, 1 simple etiquette

Looking to the Founders: Capital Punishment

Author: David Yee
Created: 20 February, 2015
Updated: 15 October, 2022
6 min read
Last week, the Utah House reignited the capital punishment controversy by approving a measure to bring back the firing squad as a legal form of execution in response to growing court challenges over lethal injection.

Wyoming approved a similar law in January, joining Oklahoma as the only states with the firing squad approved in the event of court rulings against lethal injection.

Too often, the death penalty debate centers on what the Founding Fathers meant by the phrase "cruel and unusual punishments," and many death penalty appeals request further court guidance and intervention.

What did the Founding Fathers mean when they wrote the Bill of Rights? And more importantly, what did they do in practice?

English Common Law

The Founding Fathers were an exceedingly educated group of men, with 30 of the 55 delegates to the Constitutional Convention being college graduates.

While many pursued several (and varied) careers, 35 of them were also accepted to the bar to practice law.

An enormous part of their education was learning the traditions of English Common Law from Edward Coke's Institute:

What the medieval cases and traditions were to Coke, Coke's Second Institute and the decisions of the common law courts he discusses or that followed him, were to the American lawyers before the Revolution.

Of all of the Founding Fathers, Thomas Jefferson is probably the best known for quoting from Coke's Institute -- Jefferson's copy is on display at the Library of Congress. It was also quoted numerous times in early U.S. Supreme Court cases in the various justices' opinions.

It is through Coke's Institute that we can see the common -- and gruesome -- punishment of the day for the treasonous:

After a traitor has had his just trial, and is convicted ... he shall have his judgment: to be drawn to the place of execution from his prison, as being not worthy anymore to tread upon the face of earth whereof he was made. Also, for that he has been retrograde to nature, therefore is he drawn backward .... And whereas God has made the head of man the highest and most supreme part, as being his chief grace and ornament, he must be drawn with his head declining downward and lying so near the ground as may be, being thought unfit to take benefit of the common air. For which cause also he shall be strangled, being hanged up by the neck between heaven and earth as deemed unworthy of both or either, as likewise, that the eyes of men may behold and their hearts condemn him. Then he is to be cut down alive, and to have his privy parts cut off and burnt before his face as being unworthily begotten and unfit to lead any generation after him. His bowels ... taken out and burnt, who inwardly had conceived and harboured such horrible treason. After, to have his head cut off, which had imagined the mischief. And lastly, his body to be quartered and the quarters set up in some high and eminent place, to the view and detestation of men, and to become prey for the fowls of the air. And this is a reward due to traitors whose heart be hardened. For it is a psychic of state and government to let out our corrupt blood from the heart.

Coke added that a traitor's assets would be seized by the Crown as further punishment for the crime (often leaving their family in poverty).

This was the punishment that the 56 signers of the Declaration of Independence faced when they gave their solemn oath to each other:

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Nearly 100 years after the ratification of the Constitution, the Supreme Court defined, for the first time, the meaning and limits to "cruel and unusual."

In Wilkerson v. Utah (1878), the court upheld Utah territorial law requiring first degree murderers to face death by "being shot, hanged, or beheaded."

The court ruled that "cruel and unusual" applied only to drawing and quartering, public dissection, burning alive, or disembowelment.

First Federal Execution

The federal government didn't have to wait long to be faced with its first capital case. In fact, the defendant waited in jail for a year for the federal courts to be organized under the Constitution.

A small British slave ship wrecked off the coast of Falmouth, Massachusetts (current site of Portland, Maine) under suspicious circumstances.

The captain had been murdered, and only four people were on the boat when it was rescued: an American, a Norwegian, a Brit, and a teenage African boy.

The British sailor, Thomas Bird, was arrested and charged with murder, mutiny, and other maritime crimes. Massachusetts courts initially planned to handle the case, but deferred to federal courts once Massachusetts had ratified the Constitution.

While waiting a year for trial, Bird carved toy boats for the jail keeper's children, which was recounted by one during an interview when he was in his 90s.

Falmouth had been burned and razed by the British Navy during the Revolution, and some accounts suggested the ensuing trial was a form of retribution.

Without lengthy wrangling or constant appeals, Bird was executed by hanging, with the U.S. Marshall's service in charge of the execution.

The First Congress had enacted that the U.S. Marshall was responsible for carrying out all federal executions, highlighting the fact that the Founding Fathers anticipated the need and usage of capital punishment.

America, 2015

In 2014, U.S. Ninth Circuit Court Chief Judge Alex Kozinski wrote a scathing dissent in the Arizona death penalty case of Joseph Rudolph Wood III:

Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality. Nor should we. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

At the heart of his dissent was his opinion that foolproof, but gory methods of execution like beheading or firing squads should be brought back -- that the state shouldn't try to conceal the brutality of the act.

Kozinski also noted that the average death row inmate in California was more likely to die from old age than from execution.

At the time of the Founding Fathers, the time between conviction and execution could be measured in days. A century later, the courts argued that being held in solitary confinement for 4 weeks prior to execution imposed "

horrible feelings" in the condemned.

Currently, death row inmates average 190 months of incarceration prior to execution.

While this is mostly caused by their own appeals, it creates a system where the punishment is too distant from the crime itself, and sometimes these appeals exonerate the convicted.

Since 2007, 6 states have abolished the death penalty, raising the total number of states without a death penalty to 18.

When Connecticut Governor Dannel Malloy signed the bill abolishing the death penalty in 2012, he pointed out that:

In the last 52 years, only two people have been put to death in Connecticut -- and both of them volunteered for it. Instead, the people of this state pay for appeal after appeal, and then watch time and again as defendants are marched in front of the cameras, giving them a platform of public attention they don't deserve.

Malloy has a point; it is often cheaper for the state and more comforting to the victim's family for the convicted to be sentenced to life imprisonment without the possibility of parole.

There is no doubt that the Founding Fathers intended there to be a death penalty in the United States. But in 2015, we should consider alternate sentencing that removes criminals from society with the smallest cost or risk of wrongful execution.

Photo Source: AP