In a recent op-ed in the National Law Journal, his­to­ri­an John Bessler described the ambiva­lence among American founders toward the death penal­ty. He not­ed, ​“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.” Thomas Jefferson wrote, ​“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.” James Madison, the father of the Constitution, was one of sev­er­al found­ing fathers who sought to reduce the num­ber of exe­cu­tions, say­ing, ​“I should not regret a fair and full tri­al of the entire abo­li­tion of cap­i­tal pun­ish­ments by any State will­ing to make it.” Bessler con­clud­ed, “[T]he 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.”

John Bessler is the author of The Birth of American Law: An Italian Philosopher and the American Revolution and a pro­fes­sor of law at the University of Baltimore Law School.

(J. Bessler, ​“Op-Ed: Actually, the Founders Rejected the Death Penalty,” National Law Journal, October 27, 2014). See New Voices and History of the Death Penalty.

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