National Affairs: CAPITAL PUNISHMENT: A FADING PRACTICE

A Utilitarian Age Looks Hard at the Deterrent Value

IN England around 1800, more than 200 offenses, including forgery, poaching, cutting down somebody else's tree and associating with gypsies, were punishable by death.

Women and children were hanged for petty theft. In 1801, for example, Andrew Brenning, 13, was hanged for breaking into a house and stealing a spoon.

Hangings were attended by huge crowds, and since spectators were preoccupied with watching the gallows, hangings were favorite hunting grounds for pickpockets, even though picking a pocket was a capital offense. If opponents of capital punishment had to sum up their entire case in one tableau, it would be a scene showing a 19th century English pickpocket reaching for the pocket of a spectator at the hanging of a pickpocket.

On the Continent, a movement to restrict capital punishment to serious crimes had been under way for decades, largely under the influence of the Italian reformer Cesare Beccaria, who argued that harsh punishments had a brutalizing effect upon society and thus bred crime instead of deterring it. But to the rulers of England, it seemed that capital punishment, even for offenses now considered petty, was necessary for the preservation of law and order. Cried Lord Ellenborough, Chief Justice of England, speaking in the House of Lords in 1810 against a bill to abolish the death penalty for shoplifting: "I am certain depredations to an unlimited extent would immediately be committed . . . Repeal this law and see the contrast—no man can trust himself for an hour out of doors without the most alarming apprehensions that, on his return, every vestige of his property will be swept off by the hardened robber." But the tides of history were running against Lord Ellenborough.

Today capital punishment has been abolished over much of Western civilization. In Western Europe, the death penalty survives only in Britain (hanging), the Irish Republic (hanging), France (guillotining) and Spain (garroting), and by the standards of 1800, executions in these countries are exceedingly rare. In Britain, by new (1957) legislation, the death penalty is carried out only for a few varieties of homicide classified as "capital murder" (killing a policeman, multiple murder, etc.).

In the U.S., six states have abolished capital punishment entirely: Wisconsin (1853), Maine (1887), Minnesota (1911), Alaska (pre-statehood), Hawaii (pre-statehood), Delaware (1958). Three others, Michigan, Rhode Island and North Dakota, are usually counted as abolition states, because they retain the death penalty only for one or two rare offenses (treason, murder in prison by a convicted murderer) and never invoke it. Eight other states abolished capital punishment at one time or another but later restored it. Missouri, for example, abolished the death penalty in 1917, reinstated it in 1919 after hoodlums killed two policemen in a gun fight.