The Machinery of Criminal Justice #1: Colonial-Era Mercy

Hello all. I'm Stephanos Bibas, and I'd like to thank Doug Berman for inviting me to guest-blog about my new book The Machinery of Criminal Justice, just published by Oxford University Press and available here.

(Alas, posts will continue to show Doug's name rather than my own.) Though I can't match Doug's speed and quantity of blogging, if time permits I may throw in a few other posts as well.

In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers and ever-longer punishments hidden behind prison walls;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater transparency, public involvement, and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. This week, I'll focus specifically on punishments and how we might make punishment more visibly satisfying and less permanent, to better re-integrate ex-cons into society after they complete their sentences.

Today, I'd like to start by sketching out a couple of distinctive features of colonial American punishments that set them apart from our modern punishments. In this post I'll focus on the room left for mercy, and in the next post I'll explore how colonial justice was more open to reintegrating and forgiving convicts.

When we look back at colonial-era punishments, we think of them as promiscuously bloody, far too quick to execute. But while there were many more capital crimes than today, colonial America was much less bloody than England, both on paper and even moreso in practice (with the important exception of slave justice). Even though they were often capital crimes, burglaries, robberies, and thefts very rarely resulted in hangings. Before the Revolution, Pennsylvania convicted fewer than two people per year of capital offenses and executed only about one per year.

Though crimes carried fixed penalties, colonial justice was more lenient in practice because criminal procedure left plenty of room for mercy. One avenue was "pious perjury," in which juries convicted sympathetic defendants of lesser, noncapital offenses, often at the prompting of judges. Judges also interpreted rules loosely to allow sympathetic first offenders to avoid the death penalty. Likewise, juries took convicts' branded thumbs (marks of a first conviction) into account, factoring prior criminal records in deciding whether to convict of the latest offense. No rules of character evidence precluded common-sense inferences about whether a thief was likely to steal again or deserved mercy if he had.

Finally, executive clemency frequently softened sentences, on the recommendations of juries and judges. One of the most important grounds for pardon was the convict's character, including his upbringing, employment, family support, sobriety, honesty, and trustworthiness. While this could introduce some class bias, most pardons occurred without intervention by anyone but a judges, so plenty of poor and powerless people received mercy. Today we exclude much of this evidence as suspect, but it did cast light on the wrongdoer's broader blameworthiness, dangerousness, and prospects for reform. The emphasis was not on formal equality but on fully textured evaluation of everything known about this particular person.

Perhaps the most interesting factor in clemency decisions was the role of remorse. Then as now, one of the most powerful grounds for mercy was a convict's apparent remorse and change of heart. Thus, the colonists left plenty of time between sentence and execution for repentance. Of course, convicts often feigned repentance to postpone or evade the gallows, but then as now, officials saw through much of this fakery.

That's all for the moment. In my next post on the book, I'll discuss how colonial punishment sought not to exile wrongdoers but to reintegrate them into the community. After that, I'll move to how things changed over the past two centuries.

Stephanos Bibas