Thursday, September 11, 2008



By : Mr. Edward J. Mercy, Esq., Lawyer and Humanitarian

Today, the United States provides free housing to 25 million people. No, they are not hard-working, decent people. They are convicted criminals, living rent-free in our overcrowded prison nation. There, they enjoy free meals, free books, free heat, free electricity, free cable television, free plumbing, free security service, free workout facilities and free clothing, all at taxpayer expense. Not a bad deal, is it? Especially not a bad deal when you consider that these “residents” likely committed murder, rape, incest, robbery or theft. In a word, America’s prison policy is a disgrace. It is time to rethink our entire approach to criminal justice, and it is not difficult. We need only look to our wise common law history.

When our Founding Fathers revolted from England in the 18th Century, they did not throw the baby out with the bathwater. Instead, they retained favorable English traditions in the new government while excising unfavorable ones. English common law was among the favorable traditions they kept, and for good reason. For centuries, English judges, applying reason, common sense and community sensibilities, had created an impressive legal system that satisfied both justice and the people. Rather than allying themselves to an inscrutable legal code like their Continental counterparts, English judges sought justice in the facts of each case, pronouncing a judgment on those facts alone. Future litigants could then analogize their cases to cases past, and in so doing enjoyed a measure of predictability in their behavior that did wonders for the English economy. In criminal matters, common law judges pronounced judgments consistent with the people’s basic moral sense. They imposed penalties not just to punish the wrongdoer, but also to send a clear message to others that criminal activity would meet a terrifying end. Crime led to bodily suffering. Common law judges knew that criminals are fundamentally physical beings, and only by punishing their bodies could they truly be deterred.

English common law judges harshly punished almost every felony with death, from murder to rape to shoplifting property valued at over 40 shillings (2 pounds sterling). This remained the case until the mid-19th Century, when prison first began to emerge as an alternative to capital punishment. Since then, prison has increasingly supplanted capital punishment as the standard means to manage crime. Yet today’s sad state of prison affairs proves that the penalty does not work. It has been a 150-year experiment. And it has failed. Criminals do not fear prison; they actually receive better treatment in prison than they would as free men forced to compete in a difficult employment market. By contrast, common law tradition worked for over 600 years prior to the ascendancy of the prison. It is time to restore tradition in America.

Universal capital punishment will solve this Nation’s prison problem. First, it will drastically reduce State prison budgets, freeing valuable funds for more beneficial social programs, including programs designed to prevent crime before it happens. Second, it will truly punish offenders for violating society’s rules. Criminals, like animals, understand only bodily pain. Punishing their “liberty” is no substitute for inflicting agony on their bodies. Only through physical pain and the horror of death will future offenders be dissuaded from breaking our laws. Third, universal capital punishment will mark a return to orderly, swift justice as it existed in the common law when this Nation was founded. As many great minds on our Supreme Court understand, there is tremendous practical appeal in returning to 18th Century values to guide 21st Century policy. Indeed, the following discussion will show that neither the Constitution of 1787 nor the Bill of Rights of 1791 imposes a barrier to universal capital punishment.

Criminals may be characterized generally as contract-breakers. When every citizen is born, he enters into a contract with society to abide by its laws. In return, society protects him from natural threats and guarantees him an opportunity to enrich himself through society’s many unique channels for advancement. When a citizen commits a crime, he has broken his promise to society, and every law-abiding citizen in society suffers an injury. Society has both a right and a duty to punish the lawbreaker to remedy that injury. As the common law recognized, violating society’s deepest values requires harsh penalties to prevent similar conduct by others. To that end, capital punishment is not only warranted, but necessary.

Every felony should be publicly punishable by death. The question is only how much pain the criminal should endure before dying. Common law judges understood this. They knew that it did not make sense to execute criminals in private. What possible effect could the spectacle of social vengeance have on the populace if the populace was not permitted to watch the State inflict agony on the criminal’s body? Today, America gets it all wrong in the few cases when it does execute criminals. Rather than publicly broadcast executions in broad daylight, it carries them out secretly in a walled chamber in the predawn hours before only a few, select witnesses. Such practices reflect a hesitant shame in the death penalty that completely undermines its instrumental purposes. At common law, executions were an opportunity for society to voice its values as a group. It allowed people to come together to express their hatred for those who broke the social contract and also to behold the fate of those who dared to violate the law. English authorities set up permanent scaffolds for this purpose and held executions at scheduled times throughout the month. We can improve on this tradition in the modern age. We are no longer limited by time and space. We can broadcast executions on television and by webcast. Camera techniques will allow us to focus in on the criminal’s writhings before death, reinforcing the deterrent effect on all who see it. Common law judges would have applauded such advancements in execution publicity.

How, then, should we delineate punishments for various offenses? Certainly it would offend our moral sensibilities to execute people for the most minor offenses, such as parking violations or failure to pay a littering summons. But all other offenses—especially those involving property—must warrant death. Death must punish violent crimes and sexual crimes. Death must punish tax evasion above $500. Death must punish failure to pay child support over $250. And death must punish the whole panoply of drug offenses. We must acknowledge that criminals will only respect a system that is as brutal to them as they were brutal to their victims. Furthermore, we must inflict death on those who violate values that we consider important. That is why even the pettiest drug offender must die. It is the only way to frighten others into refraining from any illegal conduct with drugs.

Tradition will guide us in determining which execution method will be assigned to each crime. Nonetheless, judges must be allowed some discretion in meting out punishments in order to heighten the deterrent effect that the penalty will have on future offenders. For example, while the standard penalty for rape will be the spiked garrote, a judge must be allowed to “re-enact” the crime on the criminal if justice dictates. This would involve inflicting as much of the crime as practically possible on the criminal. If the victim was stabbed 40 times and raped, the executioner would stab the criminal 40 times and rape him or her as well. If the criminal strangled a child with a cord then cut off its limbs to hide the crime, the judge must have the power to sentence the criminal to precisely the same fate—before the public eye.

For most felonies, short-drop hanging will provide an ample method to cause death. Rather than the long-drop method, short-drop hanging does not break the neck, ensuring that the condemned slowly dies of suffocation. For particularly violent murders, breaking on the wheel is an appropriate retribution. This involves lashing the prisoner to a large wooden wheel, then systematically crushing his joints and bones with a large hammer or cudgel. Finally, the executioner smashes the prisoner’s skull once he determines that the prisoner has sufficiently suffered for his crime. Anal rapists should be subjected to Turkish impalement, namely, slowly skewered—anally—on a large, sharpened bamboo pole until death results. Robbers should have their hands and heads cut off with an axe. Burglars should be garroted. Embezzlers should be suffocated with a bag and beaten to death. Software pirates should be boiled alive in hot wax, feet first. Drug sellers should be guillotined, while drug users should be gassed. This is not an exhaustive list, but it conveys the general principle that no lawbreaker will escape society’s wrath.

Especially severe penalties should be reserved, of course, for especially severe crimes. Again, tradition provides ample guidance in this regard. In England, high treason was the most serious crime and warranted the ultimate punishment, namely, to be “hanged, drawn and quartered.” A judicial opinion from 1683 describes the procedure: “That [the condemned] should return to the place from whence they came, from thence be drawn to the Common place of Execution upon Hurdles, and there to be Hanged by the Necks, then cut down alive, their Privy-Members cut off, and Bowels taken out to be burnt before their Faces, their Heads to be severed from their Bodies, and their Bodies divided into four parts, to be disposed of as the King should think fit.” This penalty should be re-adopted not just for traitors, but for all criminals who pervert the most important values in our society. Political dissidents, serial child molesters, mass murderers, terrorists (as the President may think fit to name) and oil pipeline saboteurs come to mind as suitable targets for drawing and quartering. By returning to common law tradition, we will not only punish the criminal proportionately to his offense, but we will also add a measure of sheer terror to the punishment. And that will send the clearest message to all who dare break the law: Trangress, and you shall be disembowelled alive.

Opponents to capital punishment routinely claim that the Eighth Amendment to the United States Constitution bars a return to universal capital punishment. That Amendment, adopted in 1791, forbids the Federal Government from inflicting “cruel and unusual punishments.” Our Supreme Court, however, has never held that any execution method in the United States has been “cruel and unusual,” including the firing squad, hanging, the gas chamber, the electric chair and, most recently, lethal injection. Indeed, other constitutional text impliedly recognizes that the government has power to inflict capital punishment. The Fifth and Fourteenth Amendments, for example, forbid both State and Federal governments from “depriv[ing]…life…without due process of law.” Now, the text says that government may not deprive life without due process. But as long as the government affords due process, it impliedly has power to take life. Several erudite Supreme Court justices have recognized as much, echoing this essay’s assertion that the death penalty has a long, illustrious tradition at common law. In fact, it is precisely that tradition that supports this essay’s contention that universal capital punishment is the best way to remedy the criminal justice crisis in our country. In 1791, hanging, guillotining and drawing and quartering were widespread penal practices in England and Europe; they were neither “unusual” nor “cruel” in the 18th Century understanding. And because our Supreme Court recognizes that the words “cruel and unusual” should be evaluated according to 18th Century understandings, we should take strength in our conclusion that universal capital punishment in no way violates the Eighth Amendment.

In sum, universal capital punishment will serve both practical and traditional goals. Like the wise common law judges who used reason, common sense and popular morality to justify the death penalty in the centuries leading to American independence, we, too can justify universal capital punishment. Like the wise common law judges from whom our Founding Fathers adopted our legal system, we too understand that criminals respond only to bodily stimuli. That is why universal capital punishment will actually reduce crime: It will target criminals’ bodies, terrifying potential offenders from engaging in conduct that will result in physical agony. By returning to traditional, public executions, more and more potential offenders will “get the message” that crime not only will not pay, but will also lead to a horrible, grisly death before a jeering public. Is there a better goal than that? A society with less crime is a better society for all. And perhaps most important from a practical perspective, universal capital punishment will deconstruct the ponderous, inefficient and costly prison system that threatens to bankrupt State and Federal budgets. Thus, by returning to common law tradition, we will achieve numerous salutary goals: We will justly punish those who break the social contract; we will reduce future crime by terrifying criminals with public agony; and we will save money. The solution is obvious. Let’s close down the prisons and start executing people again. After all, centuries of common law can’t be wrong.

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