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The Ultimate Penalty

"...The death penalty has no place in the American criminal justice system"
New York City Bar Association, The Committee on Civil Rights, May 1984

Although the use of the death penalty is at historic lows, the issue of capital punishment remains hotly debated with each side claiming moral, religious and practical grounds for its position. The New York City Bar Association has long been concerned about capital punishment and its application, and has taken the lead in the analysis of practical and legal issues relating to the death penalty. In 1977 and again in 1984, its Committee on Civil Rights submitted reports urging the abolition of capital punishment "because we believe mistakes are inevitable in its application, because it is cruel and barbaric and adversely affects the administration of justice and because it has been, and in our view will continue to be, discriminatorily applied against the poor and racial minorities. But above all, we oppose the death penalty because we believe it to be inconsistent with our self-respect as civilized people." (The Committee on Civil Rights Report, March 1977)

From the beginning of the Republic, executions for a variety of capital offenses were established by local, state and federal laws, and individuals have been executed for a variety of crimes including witchcraft, horse stealing, sodomy, theft, forgery, aiding a runaway slave, arson, piracy, robbery, kidnaping, rape, espionage, murder and treason. Today, there is still no uniform legal code defining crimes subject to the death penalty among the thirty-eight states, the federal government and the military where it remains legal. Nor is there conformity of methodology, although lethal injection is most commonly used. One hundred twenty people have been released from death row with evidence of their innocence over the past 30 years, many through the use of DNA and other previously unavailable technology. Currently several states, including Illinois, New Jersey and Florida have set a moratorium on the death penalty while they study its efficacy.

Books, pamphlets and images from the collections of the Bar Association library have been selected to provide some historical perspective on the ultimate penalty.

Maggi, Girolamo. Hieronymi Magii Anglarensis De equuleo liber postumus / cum notis Goth. Jungermanni ; accedit appendix virorum illustrium, idem argumentum pertractantium. Editio novissima aucta, emendata, & figuris aeneis exornata. Amstelodami : Sumptibus Andreae Frisii, 1664.

This rare 17th century book on torture devices was composed while the author was imprisoned and awaiting execution in Constantinople, having been captured by the Turks on Cyprus.

Massachusetts. Laws. The book of the general lauues and libertyes concerning the inhabitants of the Massachusets collected out of the records of the General Court for the several years wherin they were made and established, and now revised by the same Court and dispersed into an alphabetical order and published by the same authoritie Cambridge [Mass.] : Printed according to order of the General Court, and are to be solde at the shop of Hezekiah Usher in Boston, 1648. Reprinted Cambridge: Harvard University Press, 1929. #268 of a set of 300

Massachusetts lists 15 crimes punishable by death including idolatry, witchcraft, blasphemy, and adultery. In addition, influenced by English common law, it provides no formal
protection to children. The stubborn or rebellious son, old enough to understand (15 years), and who would not obey his parents, could be put to death.

Bradford, William. An enquiry how far the punishment of death is necessary in Pennsylvania. : With notes and illustrations. / By William Bradford, esq. ; To which is added, an account of the goal [sic] and penitentiary house of Philadelphia, and of the interior management thereof. By Caleb Lownes, of Philadelphia [London] : Philadelphia printed: London re-printed for J. Johnson, no. 72, St. Paul's Church-Yard., M,DCC,XCV. [1795]

This is one of the earliest essays published in the new Republic to question the effectiveness of the death penalty for certain crimes. In his essay, written at the behest of Pennsylvania Governor Thomas Mifflin in 1793, William Bradford influenced the reduced use of capital punishment in the Pennsylvania's penal code Bradford, while maintaining the death penalty be retained for only capital crimes, said the punishment actually made convictions harder to obtain, because in Pennsylvania (and all other states), the death penalty was mandatory, and juries would often not return a guilty verdict because of this fact.

Beccaria, Cesare Marchese di. An essay on crimes and punishments / translated from the Italian of Cæsar Bonesana, marquis Beccaria ; to which is added, A commentary by M.D. Voltaire translated from the French by Edward D. Ingraham. Second American edition.
(No. 175, Chestnut St.) : Published by Philip H. Nicklin : A. Walker, printer, 24, Arch St., 1819

“The useless profusion of punishments, which has never made man better, induces me to inquire, whether the punishment of death be really just or useful in a well governed state.”

One of the most influential books in the history of criminology, Crimes and Punishments, was issued anonymously in 1764. Its author, only twenty-six years of age at the time, was Cesare Beccaria, a member of a well-to-do Milanese family who became professor of law and economics at the age of thirty. Beccaria maintained that the gravity of the crime should be measured by its injury to society and that certainty of punishment rather than severity was a more effective deterrent. The City Bar also has the 1766 French edition, Traité des délits et des peines.

Bentham, Jeremy. Panopticon; or, The inspection-house: : containing the idea of a new principle of construction applicable to any sort of establishment, in which persons of any description are to be kept under inspection: and in particular to penitentiary-houses, prisons, houses of industry, work-houses, lazarettos, hospitals, and schools; with a plan of management adapted to the principle; in a series of letters, written in the year 1787, from Crecheff in White Russia, to a friend in England. Dublin printed ; London : Reprinted and sold by T. Payne, 1791

The dread of death has been ineffectual

This rare 18th century book by philosopher and jurist Jeremy Bentham describes his design for a “Panopticon,” a model prison where prisoners could be observed by unseen guards at all times. Bentham was against capital punishment preferring harsh treatment as a better deterrent of crime.

Livingston, Edward. Report Made to the General Assembly of the State of Louisiana, on the Plan of a Penal Code for the Said State. New Orleans: Benjamin Levy. 1822.

This is a first edition of one of the most important documents relating to 19th century laws in the United States. Edward Livingston, a disciple of Bentham, presents the philosophical underpinnings of a unified penal system that promotes preventing rather than avenging crime. A one-time mayor of New York who ran into financial and political difficulties, he moved to Louisiana where he resumed his political career. Although his report was not adopted, the publication of the code brought Livingston immediate and wide fame. Representing Louisiana. he was elected to three terms in the United States House of Representatives, and one term in the Senate, and in 1831 was appointed Secretary of State by President Andrew Jackson.

Wirz, Henry. The Demon of Andersonville; or the Trial of Wirz. Philadelphia: Barclay & Co., 1865.

Henry Wirz was the only person ever to be executed in the United States for war crimes A native of Switzerland, he was tried and executed in the fall of 1865 for crimes committed against the Union POW's in the Andersonville prison camp. Wirz's trial set the precedent for future war crimes trials and was cited in the trials following both World War I and World War II. "I was simply following orders" was no longer acceptable as a defense when "crimes against humanity" were committed by soldiers.

Kemmler, William. People v. Kemmler. Cayuga County Court, (7 New York Criminal Reports 350, July 1889.)

In August 1890, William Kemmler of Buffalo, New York who had been convicted for murder, was the first person executed using the electric chair. Kemmler was unconscious but not dead after being jolted for seventeen seconds. Embarrassed prison officials electrocuted him again for seventy seconds. The killing took more than eight minutes.

Patent for the Electric Chair. Official Gazette of the United States Patent Office. Volume 45, Patent # 390,721, Filed April 28, 1888. Washington: Government printing Office, 1888.

Both Nikola Testa, working for Westinghouse, and Thomas Edison competed in the development of the electric chair. Although Edison opposed capital punishment, he developed a chair and campaigned against the Westinghouse model. When Edison won the New York State contract, George Westinghouse funded the appeals for the first prisoners sentenced to death by electrocution on the grounds that it was “cruel and unusual punishment.”

The Sacco-Vanzetti Case. Transcript of the Record of the Trial of Nicola Sacco and Baratolomeo Vanetti In the Court of Massachusetts and subsequent proceedings 1920-7. New York: Henry Holt & Company, 1927.

The introduction which discusses the importance of this book containing all the known legal materials on the controversial and historical Sacco-Vanzetti trial, is signed by several New York City Bar Association leaders, including Emory R. Buckner, Charles C. Burlingham, John W. Davis, and Elihu Root The charges of murder and robbery against two alien Italian anarchists were riddled with shaky witnesses, false statements and questionable evidence. Many believe that the prosecution, police and jury may be have prejudiced by the political climate, and the fact that the Italian defendants, who had a poor grasp of English , were purportedly labor and political agitators. The political overtones of the trial made it a national and international cause celebre with many famous intellectuals, including Dorothy Parker, Edna St. Vincent Millay, John Dos Passos, Upton Sinclair, H. G. Wells and George Bernard Shaw, unsuccessfully campaigning for a retrial. Fifty years after their death in the electric chair, Sacco and Vanzetti were absolved of the crime by Massachusetts Governor Michael Dukakis.

Lindbergh-Hauptmann Trial Scrapbook: Photographs. Compiled by Albert Sherman Osborn. Privately published, 1935.

One of the most publicized crime stories of the 20th century featured handsome American hero Charles Lindbergh, who had been the first to fly non-stop and solo across the Atlantic, and a poor German immigrant carpenter. Bruno Hauptmann, who proclaimed his innocence throughout his questioning, trial and sentencing, was accused of kidnaping Lindbergh’s twenty-month-old son. After a thirty-two day trial, Hauptmann was found guilty and sentenced to the electric chair.

Julius and Ethel Rosenberg Trial. United States House of Representatives. Committee on Un-American Activities. Trial by Treason. The National Committee to Secure Justice fore the Rosenbergs and Morton Sobell. Washington: Government Printing Office, 1956.

There are many who believe that the highly charged political climate of the Cold War precluded a fair trial for Julius and Ethel Rosenberg, who were accused of sharing America’s atomic secrets with the Soviets. The imposition of the death sentence remains the most controversial aspect of the case as they are the only two American civilians ever to be executed for espionage-related activity during peacetime. Their conviction helped fuel investigations by the House-Un-American Activities Committee, and the Senate Sub-Committee on Investigations, zealously led by Joseph McCarthy, to uncover communist subversion and espionage. Roy Cohn, the prosecutor in the case, became Senator McCarthy’s aide in a now widely condemned “Red Scare” campaign which blacklisted many innocent Americans.

There was national and international support for the Rosenbergs, and condemnation of the trial proceedings and death sentences. Justice Felix Frankfurter released his dissenting opinion on the Attorney General’s application to vacate the stay of the Rosenberg’s execution three days after their death. “Too be writing an opinion in a case affecting two lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has its claims.” June 1953