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November 24, 2018

What might the Founders have to say about modern federal sentencing debates?

HamiltonI had the great fortune last night to (finally!) get to see the musical Hamilton (in Chicago).  Reflecting on the play and the history of the founding of the United States, I could not resist wondering aloud here about how the historic figures of Founding era might have viewed the federal sentencing controversies today.

Because I am not a constitutional historian, I cannot provide a definitive account of what all the Framers said about crime and punishment.  But I can highlight the work here of Professor John Bessler highlighting the impact and import of Italian thinker Cesare Beccaria's book On Crimes and Punishments on their thinking:

Beccaria’s book shaped American history.  George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.”  At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words.   And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

One way in which Beccaria influenced America’s Founding Fathers is by shaping their views on cruelty, the concept embedded in the U.S. Constitution’s Eighth Amendment.  James Wilson — a signer of the Declaration of Independence and the U.S. Constitution — regularly cited Beccaria’s work and called “cruel” punishments “dastardly and contemptible.” And in the 1820s, Madison spoke of his attraction to “penitentiary discipline” as a substitute for “the cruel inflictions so disgraceful to penal codes.”  After receiving an anti-death penalty pamphlet that quoted Beccaria, Madison wrote to a Kentucky physician: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”...

One of Beccaria’s core principles — embraced by American revolutionaries such as John Adams, Thomas Jefferson, James Wilson and William Bradford — was that any punishment which is not “absolutely necessary” is “cruel” and “tyrannical.”

I can also here note a few classics directly from the pen of Framers, such as Alexander Hamilton in Federalist No. 74 defending a broad and unfettered pardon power vested in the President:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.  As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

And Thomas Jefferson starts his "Bill for Proportioning Crimes and Punishments" with an accounting of the need and value of properly proportioned punishments:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

I am inclined to read all these sources and resources as evidence that the Founders would have been quite supportive of the FIRST STEP Act and of modern US Presidents using their clemency powers often and on behalf of a lot more than turkeys.

November 24, 2018 at 11:15 AM | Permalink


Great post.

The First Step Act will be helpful to a few, but comprehensive sentencing reform requires a second step act. Congress acts with the speed of molasses when it comes to remediating problems it has caused. This quote from Justice Kennedy is from 15 years ago.

Justice Kennedy Speaks Out at the ABA Association, Aug. 3, 2003
He said "The current rules misspent America's criminal justice resources by locking up people for irrationally long amounts of time".

According to the FBI 30% of the adult population has an arrest record. One in every 28 children has a parent in prison. This is not a formula for a healthy society. The war on drugs has become a big government program that too many in the public and private sector depend on.

Posted by: beth | Nov 24, 2018 4:04:49 PM

A very nice addendum, beth. Legislative "inertia," as I like to call it, is a really severe problem at the federal level and a reason I am a big supporter of a lot of Libertarian notions of federalism that at some level make me a "conservative." Not to be confused with the GOP, which lost any claim to any conservatism other than social about 20 years ago or longer.

And I don't think anything suffers from legislative inertia to any greater degree than criminal justice. Title 18 is an abomination, not to mention all the other offenses scattered throughout United States Code.

Posted by: Fat Bastard | Nov 24, 2018 9:31:23 PM

Picking and choosing modern issues in what our Founders would do is not really pertinent, once they realize that the structure that they, well, "founded" is nowhere NEAR the same one they created. For instance, the Founders believed in state, not federal, sovereignty over laws, and they also believed that the citizens themselves maintain a high moral code, at least in context of their communities, which essentially prevented the conditions for which modern crime has evolved. Hence, it is impossible for anyone to proclaim or even infer what the Founders would do to today's malaise.

Posted by: Eric Knight | Nov 25, 2018 11:52:46 AM

Fat Bastard - Inertia indeed, It's telling that Justice Kennedy's address to the ABA was 15 years ago. The comprehensive piece by Professor Bermen in the Harvard Law and Policy Review was published 10 years ago. http://harvardlpr.com/wp-content/uploads/2013/05/3.2_16_Berman.pdf

This is a piece from a message I got from a long time grass roots activist who has been advocating for 30 years.

Millions of dollars in funding-- where's some legislation that would rally the people affected and pull a disparate movement together? I'm stunned that for all the millions thrown at reform in the last six years, we aren't seeing anything substantive put forward in that regard. We've never, ever had anything that disparate reformers could unite around. We have never had a time like the present, but the grass is spreading, not green and growing tall...

Posted by: beth | Nov 25, 2018 5:51:45 PM

It is disheartening. Of course the other factor at work here is legislative cowardice. A bunch of them fear doing the right or at least a new and innovative thing because it might make them the subject of the next Willie Horton ad. And to paraphrase Barnum, few lost elections underestimating the power of "tough on crime" with the American people.

Posted by: Fat Bastard | Nov 26, 2018 9:28:57 AM

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