National Journal Op-Ed: Actually, the Founders Rejected the Death Penalty

John Bessler, The National Law Journal
The debate over the Constitution's meaning, pitting originalists against living constitutionalists, has raged for decades. And nowhere has that debate played out more dramatically than in the context of America's death penalty, with the U.S. Supreme Court hearing frantic, last-minute death-row appeals every term, as it will in this one.
The conventional wisdom is that America's founders were gung-ho about capital punishment. But that is a myth. Although early U.S. laws authorized executions, the founders greatly admired a now little-known Italian writer, Cesare Beccaria, who fervently opposed capital punishment. They also were fascinated by the penitentiary system's potential to eliminate cruel punishments.
In 1769, George Washington bought a copy of Beccaria's book, "On Crimes and Punishments," first published in Italian 250 years ago and translated into English in 1767. In the midst of the Revolutionary War, Washington told Congress that executions were too ­frequent.In 1770, during the Boston Massacre trial, John Adams quoted Beccaria's treatise in defending British soldiers accused of murder.
"I am for the prisoners at the bar," Adams said, "and shall apologize for it only in the words of the Marquis Beccaria: 'If I can but be the instrument of preserving one life, his blessing and tears of transport, shall be a sufficient consolation to me, for the contempt of all mankind."
Thomas Jefferson — our third president — read Beccaria's treatise in Italian. "The 'Lex talionis,' " he wrote, "will be revolting to the humanized feelings of modern times." Jefferson later emphasized: "Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death."
In Virginia, James Madison — the father of the Constitution — advocated for Jefferson's bill to curtail capital crimes. Madison told one correspondent: "I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it."
It is true, as Justice Antonin Scalia is fond of noting, that the Constitution contains the words "capital," "life" and "life or limb." But no modern American judge ever orders offenders' limbs to be lopped off, and those words in the Bill of Rights were designed to protect individual rights when the death penalty was a mandatory penalty.
Juries, however, now impose discretionary sentences, with executions arbitrarily meted out based on geography or race, which itself runs afoul of the Fourteenth Amendment's equal-protection principle. Death sentences and executions have dwindled while life-without-parole sentences have skyrocketed. In the United States, roughly 50,000 inmates are serving life-without-parole sentences, compared to 3,054 death row inmates. The 39 executions in 2013 were clustered in just nine states.
In short, executions — long considered cruel by men like Declaration of Independence signer Dr. Benjamin Rush, who, in 1787, called death "an improper punishment for any crime" — have gone from being cruel and usual to being cruel and unusual. Meanwhile, nonlethal corporal punishments, like ear cropping, have long been abandoned and would be considered cruel and unusual by any modern-day judge. Even Scalia has described himself as a "faint-hearted originalist" because he rejects a return to founding-era punishments like branding and public flogging.
Early Americans like George Washing­ton, Benjamin Franklin and James Wilson sought to reduce the frequency of executions. And William Bradford — one of Madison's closest friends — specifically invoked Beccaria's name in seeking to curtail executions, with Washington later appointing Bradford as the nation's second attorney general.
"The name of Beccaria," Bradford wrote in 1786, "has become ­familiar in Pennsylvania, his authority has become great, and his principles have spread among all classes of persons and impressed themselves deeply in the hearts of our citizens."
In adopting an evolving-standards-of-decency test, the Supreme Court has squarely rejected an originalist approach. But its case law remains highly unprincipled. The Eighth Amendment is said to protect prisoners from harm, but executions do exactly the opposite. And while the Eighth Amendment's touchstone is said to be "human dignity," there is nothing dignified about executions, as the recent series of botched executions in Arizona, Ohio and Oklahoma illustrates.
Death-qualified juries, in which jurors who oppose the death penalty are stricken during voir dire, are troublesome, too. Public support for executions is declining, yet death penalty opponents are ­systematically excluded from jury service. By allowing "death-qualified" juries, the court perversely skews the outcome of the verdicts — and thus the data — it ­considers.
No matter what interpretive ­theory one embraces, one thing is clear: the Founding Fathers were deeply ambivalent about capital punishment. Indeed, they embraced the principle of Montesquieu and Beccaria that any punishment that goes beyond what is "absolutely necessary" is "tyrannical."
In an era of maximum-security prisons and life-without-parole sentences, the death penalty can no longer be considered necessary. It should, therefore, go the way of the whipping post and the pillory.

Link to Column: http://www.nationallawjournal.com/id=1202674529812/OpEd-Actually-the-Founders-Rejected-the-Death-Penalty#ixzz3HLvEfMb1