What Did The Founding Fathers Think Of The Death Penalty?

Marc Hyden R Street Institute
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Conservatives, such as myself, revere many of the framers and often look to their statements and publications for guidance on present policy issues, including capital punishment. The truth is many early American leaders were ambivalent to the death penalty while others were outspoken about its abolition.

The 18th century Italian philosopher Cesare Beccaria heavily influenced the views of many of America’s founders, according to John Bessler, author of The Birth of American Law. Beccaria’s philosophy helped mold our nation’s criminal justice system as it shifted away from Britain’s “bloody code.”

Beccaria, like many early American leaders, opposed capital punishment because he believed that the death penalty was neither useful nor necessary. He concluded that it served no deterrent and wasn’t imperative considering that alternative punishments could be implemented to replace the death penalty. Any punishment that isn’t absolutely necessary is a form of tyranny, according to Beccaria.

Early American leaders were enamored by Beccaria’s philosophy, and many strictly adhered to it. President James Madison, the author of the U.S. Constitution and the Bill of Rights opposed the death penalty and stated, “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.” Benjamin Franklin, who similarly wasn’t a fan of the death penalty, said, “It is better 100 guilty Persons should escape than that one innocent person should suffer.”

Founding father and Declaration of Independence signatory, Dr. Benjamin Rush, who was also vocal in his opposition to capital punishment, stated, “The Supreme Being alone possesses a power to take away human life, and that we rebel against his laws whenever we undertake to execute death in any way whatever upon any of his creatures.” Marquis de Lafayette, a key figure in the American revolution, also viewed capital punishment with disdain and exclaimed, “I shall ask for the abolition of the Penalty of Death until I have the infallibility of human judgment demonstrated to me.”

George Washington was likely well-versed in Beccaria’s philosophies as well, and, as a general, Washington even pleaded with congress to limit capital crimes on multiple occasions. Even though Washington begrudgingly signed death warrants in his day, he said, “We should not introduce Capital executions too frequently.”

He was known for pardoning the guilty and granting clemency as a general and even into his presidency. Thomas Jefferson, who was known for frugality and limited government early in his political career, drafted legislation to limit executions at the state level in Virginia. He even remarked that the notion of “eye for an eye” was a “revolting principle.”

The lack of viable alternatives to the death penalty in early American history likely sparked some of the ambivalent support for capital punishment from certain founders. State and federal prisons capable of indefinitely housing inmates were practically nonexistent at the founding of the United States. The very first American penitentiary did not open until after the Constitution was ratified. Therefore, some founders believed that capital punishment was necessary because an infrastructure to support life-without-parole didn’t yet exist in America. Today, state and federal prisons are ubiquitous and life without the possibility of release is not only a viable option but also a cheaper alternative.

Today’s death penalty is much different than the early American capital punishment system, and we now know more about the risks that it poses. Already more than 145 individuals have been wrongly convicted, sentenced to death, and later released. Others have been executed when serious doubts existed regarding their verdict. Our death penalty is also incredibly costly. In fact, it costs more than life-without-parole and has even led to tax increases. Meanwhile, studies claim that there is no credible evidence to suggest that the death penalty deters murder. Even murder victims’ family members are speaking out against capital punishment because they find it to be harmful due to the traumatizing nature of the lengthy trial and appeals process. Simply put, we have an incredibly expensive system that risks innocent lives, doesn’t deter murder, and fails murder victims’ families.

Many of the framers, led by Beccaria’s philosophy, opposed the death penalty, but how would our revolutionary predecessors view today’s system of capital punishment? Presently, the death penalty has become a bloated and complex system emblematic of a wasteful and error-prone government. Similar to the taxation without representation that the founders rejected, the death penalty has become increased taxation without necessity or efficacy, which early American leaders would likely repudiate. Our forefathers adhered to principles of protecting innocent life, frugality in state spending, and limited government, but the death penalty has become inconsistent with each principle.