November 30, 1786: The Death Penalty, Obsolete or Necessary?

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A Brief History

On November 30, 1786, Grand Duke Pietro Leopoldo I of The Grand Duchy of Tuscany initiated the first ban on capital punishment of any modern state.  Contrary to other European leaders, and for that matter, virtually all World leaders, apparently Leopold (later Emperor Leopold II of the Holy Roman Empire) must have thought the death penalty was not essential for those in power to remain in power.  A proponent of “Enlightened Absolutism” (alternately called “Enlightened Despotism”), Leopold believed in the power of a monarchy to be used for the benefit of the people, but in a benevolent way in which the ruler made the decisions, not the people.  When Leopold died at the age of only 45 in 1792, speculation that he was poisoned was rampant.  Perhaps his “benevolence” was not so appreciated!

Digging Deeper

Long before 1786, people have been killing other people for a variety of reasons.  Once “civilization” was established and codes of laws were developed, legal guidelines on when and how other people could be legally killed were established.  Execution for crimes was found throughout almost every society on the Earth.  Crimes that could merit the death penalty ranged from stealing to blasphemy, heresy, treason, rape, murder and many other offenses.  Notably, witchcraft was a crime punishable by death and it is not even a real thing!  (Even today, in Africa, so called witches may be murdered, although the actual laws do not call for such a penalty.)

Burning of three witches in Baden, Switzerland (1585), by Johann Jakob Wick

The main arguments in favor of killing an offender include 2 main areas, punishment and prevention.  Some crimes are perceived to be so heinous that they must be punished, and the ultimate punishment is taking the offender’s life.  Of course, sometimes merely killing the person is not punishment enough, so diabolical and cruel methods of execution were developed to maximize the pain felt by the condemned before they actually died.  Torturing an accused person either before or after conviction was common.  The English brought us “drawing and quartering,” in which the condemned would be hanged almost to death, then stretched tightly between horses by each arm and leg, disemboweled, castrated/emasculated, and finally pulled apart by the horses.  Only then would the already dead person be beheaded.  Burning people to death has been a common method of execution throughout history, especially those accused of heresy or witchcraft.  Innovative ways to burn people included boiling them in water or oil or placing them in a sort of oven, such as the “Brazen Bull” and cooking them to death.  Gruesome methods of punishment-execution included pressing (laying increasing amounts of weight on them until they were crushed to death), drowning, stretching condemned people on the rack, burying them alive, burying them up to their neck and letting ants do the rest, and other innovative uses of animals.  Some of the animal related executions could include being fed to large animals such as lions, tigers, or dogs.  Or people could be staked out in the open to be beaten by the sun and weather until either they died of exposure or vultures would start eating them alive.  A particularly gruesome method cited by Sigmund Freud was to have a cage or bucket of rats placed over the condemned persons anus, leaving the rats no escape but to tunnel through the condemned persons alimentary canal!  Flaying alive (skinning) and other slow, deliberate deaths stretched the imagination of executioners.

The horrible and painful methods of execution met both of the goals of capital punishment, that is, to punish the convicted person and to prevent others from repeating the crimes of the condemned out of fear of the terrible methods of execution.  Crucifixion was certainly among the most painful ways to kill someone.  Punishing a crime with death is a highly debatable issue, especially on moral/religious grounds.  Do other people deserve the choice if another person lives or dies, or is that the sole province of the Deity?  After all, although the Old Testament spoke of “an eye for eye,” Jesus Christ in the Gospels specifically denounced the “eye for an eye” concept and nowhere is he quoted as condoning capital punishment.  (Other religions may not have such scriptural objections.)  The Christian Bible states “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” (Romans).  Does this quotation mean Christians have no right to exact vengeance on a criminal by killing that person?

Christ Crucified (c. 1632) by Diego Velázquez. Museo del Prado, Madrid

The “prevention” aspect of capital punishment is easier to quantify, as statistics and studies can indicate whether or not the death penalty has any deterrent effect.  In fact, the subject has been extensively studied, and in 2009 a study revealed 88% of American criminologists strongly claimed the death penalty had no deterrent effect on criminals at all (regarding the crime of murder, the most common crime for which the death penalty is levied).  The same study indicated that 87% of these experts thought that abolition of capital punishment would have no effect on the murder rate.  The criminologists questioned for the study were instructed not to use their personal opinions, but rather the empirical data from statistics and studies previously done.

Over the years, especially since the Enlightenment, government agencies have sought to “humanize” the process of executing criminals, that is, performing the execution in as quick and as painless a manner possible.  The concept of a “humane” execution may seem to be an oxymoron, but the idea spawned new ways of killing people.  In the US, the rule of avoiding “cruel and unusual punishment” became the law of the land.  While beheading was once a relatively fast and nearly painless death, botched beheadings often resulted in spectacles of agony in a grisly display of sword or axe wielding ineptitude.  Executioners were paid large tips by the condemned person to perform their deadly art with precision!  While hanging used to be a slow strangling, the method of hanging we are familiar with today in which the condemned is dropped from a certain height calculated with their body weight to snap their neck and theoretically cause a quick and painless death does not always work out so well.  Sometimes the distance dropped is too great, and the head is popped off the condemned.  Other times, the length of drop is insufficient or the knot on the noose is not placed correctly and the condemned person ends up slowly strangling anyway.

Marie Antoinette’s execution on 16 October 1793

The French came up with the Guillotine as a solution to providing a highly reliable method of beheading without the human factor of having a swordsman or axman blundering the job.  The guillotine was used in France as the method of execution all the way from the French Revolution (1789) until 1981, though the last person actually meeting his end on the guillotine did so in 1977.  (Contrary to mythology, the “inventor” of the guillotine, Dr. Joseph-Ignace Guillotin, from which the device takes its name, was NOT beheaded on his own invention, but died of natural causes in 1814.)  The guillotine was merely an improvement of other previous head chopping off devices.

Improving hanging and beheading was not good enough for those humanitarians that sought to “civilize” execution.  The advances of electrical technology in the late 19th Century brought us the electric chair, an invention of Alfred P. Southwick, a Buffalo, New York dentist (they know about torture!) and inventor in the late 1880’s.  Southwick and his buddies experimented on electrocuting stray dogs that were scheduled for euthanizing at the dog pound after people started getting electrocuted accidentally by the booming practice of installing electric lights and power around the US.  The electric chair was championed as a more “humane” alternative to the normal method of execution in the US, hanging.  (Firing squads were also used, especially by the military.)  When the first execution by electric chair took place in 1890, Smithwick proudly stated, “There is the culmination of ten years work and study! We live in a higher civilization from this day.”  The electric chair became the most common method of execution in the US, although often enough the electrocution was anything but humane, taking several efforts to finally kill the condemned person, often with spectacular displays of agony, as well as unsightly scenes of eyeballs exploding and people catching on fire.  The gas chamber was developed as an even more humane method (We keep trying until we succeed!) and was first employed in its deadly role in the United States in 1924.  Incredibly, the authorities (aka buffoons) tried first to kill the condemned man by pumping poison gases directly into the man’s cell before it occurred to them to make a purpose built gas chamber!  Unfortunately, even this method of “humane” execution ran into some snags as executions got botched and the condemned did not die “peacefully” as promised.  Next up at the plate was lethal injection, an idea that goes back to the late 1800’s, but not implemented in the United States until 1977.  While poisons had been used to execute people for centuries, most poisons did not kill quickly enough to suit humanitarians.  Surely with modern lethal drugs administered professionally we could finally kill people reliably without spectacles of agonized condemned people writhing in pain, finally finding a real solution to creating an execution that is less painful (to the observers!).  As with the gas chamber, lethal injection executions had their share of botched incidents where the person being executed spasmed in agony while being killed, taking much longer than expected and without the serene quiet as promised.  Then American executioners ran into another problem when drug companies started refusing to sell the lethal drugs to State authorities in order to avoid being sued by anti-capital punishment activists and avoiding negative publicity.

Execution room in the San Quentin State Prison in California

While the executing of people has been problematic because of moral, religious and humanitarian grounds, and the fact that some studies indicate places that ban capital punishment actually reduce murder rates, another horrible scenario casts shade on the industry of executing people, and that is wrongfully executing an innocent person!  Numerous studies, government and private, have indicated that people of minority status or low economic class are subject to a disproportionate percentage of death penalty sentences and ultimately executions.  This glaring disparity may reflect prejudice in the judicial system, by judges, prosecutors and juries, or the lack of adequate legal representation of poorer people.  (Believe me, the public defender system is a joke!  People that cannot afford the most expensive lawyers can expect weak and ineffective defense at best and are often strongly advised to plead guilty to crimes.)  Improper interrogation (coerced confessions) and planted evidence has recently been revealed among many law enforcement agencies, and prosecutors eager to “win” cases have been known to hide exculpatory evidence.  Piling on an incredible number of charges for what seems to be a single crime often intimidates a defendant into pleading guilty to a crime he or she did not commit.  The use of the death penalty to hold over a defendant is used in this manner to elicit guilty pleas, some of which may be false, just to avoid being killed for no reason.  Recent events concerning DNA and other scientific evidence have shown many people are convicted of serious crimes such as rape and murder when they are in fact definitely not guilty.  These bone chilling incidents where a person on Death Row is exonerated causes serious question about the legitimacy of using capital punishment.  Other cases where persons that have been executed turned out to almost assuredly be not guilty   serve to chastise the judicial system and society at large.  The death penalty has often been seen as quite arbitrary in its application, with examples such as Mata Hari quite possibly being sacrificed for political reasons during World War I or Private Eddie Slovik being the only American executed for desertion in World War II, in fact, the only US soldier so executed since the Civil War.

Can we continue to execute people when we know for a fact that some of those that are being executed are not really guilty?  The level of certainty when levying a penalty of death must necessarily be high, but how high?  How can we be sure?  How sure do we have to be?  These questions plague those that debate the propriety of capital punishment.  And what about justice for the families of murder victims?  (Whether plain old murderers or terrorists?)  Do they not deserve “justice” in the form of like punishment for the perpetrator?  Why should a murderer, especially a mass murderer, go on living when his or her victims do not?  Is life in prison without parole “good enough?”

The over 200 witnesses to the execution of Timothy McVeigh were mostly survivors and victims’ relatives of the Oklahoma City bombing.

To be quite honest, the author has always been a staunch defender of capital punishment but has recently seriously questioned the practice of killing condemned inmates because of the problems with the judicial system, not because of moral or religious reasons and not because of discomfort caused by the method of execution.  For the author, the sticking points are the disparities in social class applications and the foibles of the “justice system,” a system I once revered and now have serious doubts about.  How about You?  If someone killed my loved one, I would not hesitate to pull the switch myself, I just do not trust the system in all cases.  Please give us your thoughts on this highly charged and contentious subject.

Questions for Students (and others): Would you vote to abolish capital punishment?  Do you have a problem with lethal injection, the gas chamber or electrocution as methods of execution?  People complain about how long it takes between sentencing and execution…How long is too long?  Are you confident enough in the judicial system to correctly identify people that should be executed?  If you were falsely charged with murder, could you afford a quality defense, or would you bankrupt your family trying to defend yourself?  Would you be satisfied with a public defender representing you in a capital case?  What crimes other than murder deserve the death penalty?

Executions in the United States from 1608 to 2009

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Historical Evidence

For more information, please see…

Bedau, Hugo, and Paul Cassell (Editors). Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case. Oxford University Press, 2005

Ward, Richard (Editor). A Global History of Execution and the Criminal Corpse. Palgrave Macmillan, 2015.

The featured image in this article, a 1776 painting by Johann Zoffany (1733–1810) of Leopold as Grand Duke of Tuscany together with his family from the Kunsthistorisches Museum, is a faithful photographic reproduction of a two-dimensional, public domain work of art.  The work of art itself is in the public domain for the following reason: This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author’s life plus 100 years or less.

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About Author

Major Dan

Major Dan is a retired veteran of the United States Marine Corps. He served during the Cold War and has traveled to many countries around the world. Prior to his military service, he graduated from Cleveland State University, having majored in sociology. Following his military service, he worked as a police officer eventually earning the rank of captain prior to his retirement.