Justifications For Punishment And The Prospect Of Reform In Early America

Bennett Reisner

Justifications for Punishment and the Prospect of Reform in Early America

I. Introduction In Early America, justifications for legal punishment informed the severity of sentences and shaped opportunities for reform. Justifications for punishment fell into numerous categories, including: pragmatic or utilitarian justifications, justifications based in English common law, religious or moral justifications, justifications based on the need to maintain the existing social order, and purely punitive justifications. In particular, Early Americans offered a litany of rationalizations for the practices of imprisoning debtors and executing criminals. Often, justifications for punishment defied neat theoretical distinction: When introducing

Early Americans offered practical reasons to imprison debtors. Creditors hoped that “the rigors of imprisonment would induce debtors to disclose concealed wealth or to part with assets that were exempt from attachment or, perhaps that family members might step into the breach.” (Mann). Imprisonment had the articulable purpose of motivating debtors to take desperate measures to honor their obligations. Similarly, puritan ministers offered pragmatic justifications for capital punishment. Of course, capital punishment had a “value as a deterrent to others.” (Cohen 151). Preacher Noah Herbert identified the ultimate goal of executions as securing “social peace” and “security.” (Cohen 154). Capital punishment, to its proponents, had a rationale purpose of ensuring self-protection, therefore benefitting the broader community. In proposing reforms to Virginia’s criminal law, Thomas Jefferson adopted this spirit of pragmatism when he wrote: “Punishments I know are necessary and I would provide them, strict and inflexible but proportioned to the crime.” (Preyer

A 1754 Rhode Island pamphlet argued that imprisoning debtors was illogical, because it deprived the imprisoned of the ability “to seek new Employment” in order to fulfill their obligations. (Mann). The Humane Society held that the imprisonment of debtors was irrational, as it “infringes that fundamental axiom in legislation that the punishment of an offence should always be in proportion to the degree of it.” (Mann). A Philadelphia writer challenged the common law roots of imprisoning debtors, commenting that “Blackstone does not place insolvents or bankrupts, under the head of Crimes of Public Wrongs.” (Mann). A Connecticut writer, meanwhile, charged that imprisoning insolvents violated “the Christian Religion.” (Mann). Eventually, the Bankruptcy Act responded to these arguments by rejecting “that insolvency was [a] moral failure” which might justify carceral punishment.