Legal Lynching

Chapter 1

The Death Penalty and the American Past

It is August 6, 1890. Ninteenth-century America is waking up to the power of twentieth-century technology, to the first lightbulbs, phonographs, telephones, automobiles.

In the basement of Auburn State Penitentiary in upstate New York, a man named William Kemmler is bound to a chair with heavy leather straps. His journey there has attracted international attention, and this day more than 100 reporters are on hand. An illiterate who confessed to the ax-murder killing of his lover in an alcohol-sodden rage, Kemmler is the guinea pig in an unprecedented experiment: the first attempt to execute a criminal with electricity. The medieval gallows would give way to a punishment both more modern and, its proponents argued, more humane.

Among the people most anxiously awaiting the results of today's experiment are the industrialist Thomas Edison and his great rival George Westinghouse. Edison and Westinghouse have developed different electric-power systems, and Edison has been promoting his as safer for consumers. Since the Auburn electric chair's generator is manufactured by Westinghouse, Edison views Kemmler's execution as a PR bonanza, and even suggests that capital punishment be renamed "Westinghousing." George Westinghouse, for his part, is so worried about the bad press that he has poured $100,000 into Kemmler's unsuccessful legal appeals, all the way up to the U.S. Supreme Court.

At a sign from Auburn's warden, a guard pulls a switch. Sixteen hundred volts of current run through Kemmler's body. His body still, the witnesses in Auburn's basement conclude Kemmler is dead-until a doctor feels a faint pulse. The condemned man begins to groan and foam at the mouth, driving sickened witnesses from the room. Quickly, the warden orders the switch pulled again; the next jolt burns Kemmler's scalp and this time, the doctor finds, he is definitively dead.

Edison, awaiting word at his home, tells reporters, "I should have been excited myself" to be at Auburn. But an electrician listed as one of the official witnesses that day has a different view. Charles Huntley, manager of the Brush Electric Light Company in Buffalo, tells reporters that the new "electric chair" is nothing short of legal torture. "It was one of the most horrifying sights I have ever witnessed or expect to witness," he says. "There is no money that would tempt me to go through the business again."

Capital punishment, at times, seems as much an unchanging fixture of the American landscape as the sheer bluffs of Monument Valley in Utah, where so many Westerns were filmed-complete with the familiar hanging scenes. Politicians make it seem as if the death penalty is part of our national heritage, as if opposition to capital punishment is nothing but an invention of 1960s liberals. "The Constitution . . . authorizes the death penalty," writes pro-execution legal scholar Ernst Van Den Haag, adding that the framers of the Constitution "did not think that taking the life of a murderer is inconsistent with 'the sanctity of life.' " Such "original intent" arguments have succeeded in many people's minds in wrapping the death penalty in the American flag.

But as the story of William Kemmler suggests, the reality is more complicated. Kemmler's story reminds us that the death penalty has evolved for reasons that often have little to do with law and order. Edison's gloating and electrician Huntley's revulsion at the dawn of the modern execution era mark the two poles of debate over capital punishment. This debate has deeply marked American history; pushing and pulling over capital punishment have played a crucial role in shaping the law as we know it today, and opposition to capital punishment is as much a part of American tradition as the Fourth of July. So it is time to retell the story:

Any discussion of the death penalty in today's America must begin with an accurate framing of the death penalty in the American past.

Capital punishment arrived on North American shores with the very first British colonists. It was scant weeks after the establishment of Jamestown in 1608 that colonists carried out their first hanging: an accused mutineer named George Kendall. British law in that period routinely handed out death sentences even for minor crimes like robbery and burglary. On paper, the colonies followed suit: "If any person commit Burglary, or rob any person, he shall be branded on the right hand with the Letter B-for 2nd offence, shall be branded on his left hand, and whipt, and for the third offence he shall be put to death," read the 1656 Laws of the New Haven Colony. In Puritan New England, the colonists added some capital offenses of their own to their so-called Blue Laws, prescribing the death penalty for adultery, homosexuality, and for persistently "stubborn" children.

By the time British colonists settled in North America, capital punishment had for centuries been an escalating public spectacle in Europe. Early Christian theologians debated the legitimacy of the death penalty, and some feudal rulers such as William the Conqueror opposed its use. But by medieval times, executions-both by church and crown-became more indiscriminate, and torture often accompanied death. The number of capital crimes increased, too; in England, for example, a death writ condemning heretics to burn or drown stayed on the books from 1382 to 1677. French nobles at least had the comfort of knowing they would be honorably beheaded with an ax rather than being hanged or drawn and quartered-often how members of the lower classes would meet their demise. Women were usually strangled to death and burned to ashes out of a sense of "decency" to their gender. (It would have been improper to make a public spectacle of a woman's bare limbs, whether attached to her body or otherwise.) Henry VIII made boiling to death a legal form of execution, and more than 72,000 of his subjects were killed by this and other means. By the seventeenth century, no less than 200,000 women had been executed as witches throughout Europe. Bodies were left on display for weeks and sometimes months.

Despite this bloody history and the severity of the American colonies' laws, in practice, as legal historian Lawrence Silberman puts it, "the colonies used the death penalty pretty sparingly." True, there were notorious executions like those following the Salem witchcraft trials in the 1690s. But for much of colonial America, many capital laws were honored only in the breach. In some cases, the colonists outright refused to invoke capital punishment. By the 1650s, juries were declining to convict adulterers because citizens found the death penalty disproportionate: the first instances on record of so-called jury nullification, the same citizen-refusal to convict under unjust laws that in the 1730s helped establish the uniquely American institution of free speech, and that today has led to occasional juries refusing convictions under disproportionate drug laws. Capital punishment for sodomy was next, its enforcement ending after 1673.

In fact, despite our image of angry Puritans hanging witches by the wagonload, the first 40 years of the Massachusetts Bay Colony brought only 15 executions for all offenses, an average of one every two and a half years. In Pennsylvania, executions averaged just one per year all the way up through the Revolution. What is more, colonial governors showed a far greater degree of compassion than most death-penalty states' governors today. In the eighteenth century, more than half of New York's condemned were spared, and the governors of Virginia pardoned or commuted the sentence of one-quarter of all offenders facing execution.

There was one great exception to this generally restrained application of the death penalty in colonial America, and it was an exception that echoes today. What made the death penalty most likely in the colonies was not the severity of the offense but the skin color of the offender. African slaves and their descendants were from the very first singled out for indiscriminate and large-scale execution-both to enforce the discipline of slavery and because blacks were considered pagan and resistant to redemption. Between 1706 and 1784, the Virginia colony alone sentenced no fewer than 555 slaves to death. By the late eighteenth century in Connecticut, the only men hanged for sexual assault were black, while whites convicted of the same offense routinely had their sentences commuted. In New York in 1741, some 150 African slaves and 20 whites were accused of plotting an uprising: 30 of the slaves and four whites were executed, with 13 of the slaves burned alive at the stake as an example to other would-be rebels. This just one generation before the American Revolution.

In 1764, a young Italian attorney and economist named Cesar Beccaria almost single-handedly set off the modern crusade against torture and the death penalty by publishing his still-resonant essay "On Crimes and Punishments." "Nothing in the social contract," he proposed, "gives the state the right to take a human life." The death penalty, Beccaria argued, amounts to "a war of the nation against the citizen" that is "neither useful nor necessary." Capital punishment, he wrote, "is ineffectual because of the barbarity of the example it gives to men."

By 1767, Beccaria's writings had been translated into English and were widely read by British and American intellectuals-including many of those who led the American Revolution and would eventually frame the new Constitution. In 1777, Thomas Jefferson proposed abolishing capital punishment in Virginia except for cases of murder and treason; in 1785, such a bill was brought before the Virginia legislature, where it was defeated by only one vote. A few years later, Tom Paine-who had grown up in the English town of Thetford literally within sight of the local gallows-would urge not only the new United States but also revolutionary France to "abolish the penalty of death," and the crusading Irish barrister Daniel O'Connell made the same argument in England.

Shortly after the Revolutionary War ended, Quakers in Pennsylvania founded the Philadelphia Society for Alleviating the Miseries of Public Prisons. One of its leaders, physician Benjamin Rush, a signatory of the Declaration of Independence, gave a lecture at the home of Benjamin Franklin in 1787 entitled "An

Enquiry into the Effects of Public Punishments upon Criminals and upon Society." In that essay and a second treatise published in 1792, Rush expanded on Beccaria with the first reasoned argument in America favoring the abolition of the death penalty, which he called an "absurd and unchristian practice." Rush combined an Enlightenment appeal to reason with Christian religious sentiment: "the obligations of Christianity upon individuals, to promote repentence, to forgive injuries, and to discharge the duties of universal benevolence, are equally binding upon states.

So intense was the debate over capital punishment in Pennsylvania in the ensuing years that pro-death penalty legislators introduced a new distinction-between first- and second-degree murder-greatly narrowing the numbers of the condemned, as a way of keeping capital punishment on the books. William Bradford, the Pennsylvania (and later U.S.) attorney general, argued successfully to limit the death penalty to the most severe cases. In 1794, he persuaded the Pennsylvania legislature to restrict capital punishment even further, to premeditated murder.

The Philadelphia Society became the center of the criminal-justice reform movement throughout the country. In 1808, the Quakers helped establish the first association dedicated to abolishing the death penalty. The first decades of the nineteenth century were marked by the slow but persistent growth of this abolition movement's influence. In 1825, Louisiana nearly passed a criminal code that would have banned capital punishment outright.

By the 1830s, the campaign to abolish or restrict capital punishment had gained undeniable momentum, even as crowds of 30,000 or more would sometimes assemble for hangings. Nearly every state had an anti-gallows society. New York's Mayor Daniel Tompkins took up the cause; by 1832, the New York State Assembly named a committee to "inquire into the expediency" of the abolition of hanging. The committee proposed that the death penalty be virtually eliminated. Its proposals were narrowly defeated in 1834; a year later, the legislature outlawed public hangings, confining executions to prison yards before prescribed witnesses.

In the 1840s, anti-gallows societies and activists-some religious, some secular-were a bona fide political force in several states, pushing not only for an outright end to the death penalty but also for the further narrowing of capital statutes. Indeed, the universal acceptance of degrees of murder today is largely the result of nineteenth-century compromises between death-penalty abolitionists and politicians who wanted to retain executions for some offenses. Lydia Maria Child-a pioneering antislavery journalist and suffragist-campaigned against public executions. The towering antislavery editor and orator Frederick Douglass took up the death-penalty cause, penning an influential pamphlet entitled Capital Punishment Is a Mockery of Justice.

The first great triumph for death-penalty opponents, in fact, came more than 100 years before the 1960s. In 1847, Michigan's legislature outright repealed its death penalty for murder. By the mid-1850s Rhode Island and Wisconsin had also done away with capital punishment.

It was only the Civil War-with its 600,000 dead-that stalled the abolition campaign. As historian David Brion Davis of Yale University writes, "Men's finer sensibilities, which once had been revolted by the execution of a fellow human being, seemed hardened and blunted."

But by the late 1800s, the anti-gallows campaign had resumed and gained substantive victories. Kansas, Iowa, and Colorado experimented with doing away with the death penalty. State legislatures vacillated between reason on one hand and the passions of their constituents on the other. Reason would persuade them to outlaw capital punishment; then a heinous crime would drive public debate and the death penalty would be reinstated. Through the same era, some regional differences in death-penalty culture began to emerge, with frontier states like Texas and Wyoming prescribing execution as the penalty for cattle rustling and other offenses. Yet by World War I, 13 states, from Tennessee and Missouri to Maine, had fully or virtually eliminated capital punishment-with Maine, Iowa, and Oregon each abolishing capital punishment twice in successive waves of reform and reaction. In contrast to the death-penalty reforms of the 1960s, this was not abolition by judicial decree; it was state legislatures, backed by popular will.

In fact, in both scale and bureaucratic character, capital punishment as we know it today is entirely a twentieth-century invention-a chilly marriage of technology and politics, beginning with Kemmler's execution in Auburn. Suddenly, the supposedly merciful electric chair was all the rage, and seemed to inspire a new wave of political hunger for execution. By 1920, several of the states that had repealed the death penalty had restored it, and an unprecedented wave of executions began. Perhaps not so coincidentally, this turn-of-the-century resurgence in the death penalty roughly coincided with the great wave of lynchings of African-Americans throughout the South-"unofficial" executions running parallel to those sanctioned by courts.