Revolutionary Criminal Punishments: Treason, Mercy, and the American Revolution
American Journal of Legal History, Forthcoming
31 Pages Posted: 1 Feb 2021 Last revised: 4 May 2021
Date Written: January 20, 2021
Nowadays, harsh criminal punishments in the United States are often equated with a longstanding national tradition of punitiveness. This Article instead documents the exceptional mildness of criminal punishments for alleged traitors in the wake of the American Revolution. American leaders were disinclined to inflict the death penalty on loyalists who supported British rule in the revolutionary war or on insurgents in the Shays, Whiskey, and Fries rebellions shortly after independence. In fact, the Founding Fathers and other first-generation officials commonly showed extraordinary mercy. Numerous “traitors” readily rehabilitated themselves by recognizing their faults, swearing an oath of allegiance to the new American republic, and promising to refrain from further wrongdoing. These revolutionary punishments were a striking prefiguration of modern penal practices: guilty pleas, probation sentences, and rehabilitation policies aiming to reintegrate wrongdoers into society. American revolutionary punishments were not only remarkably mild in themselves. They also were for the period. In contrast, the contemporary French Revolution led to wide-scale executions of purported traitors.
Besides shedding light on historic events that criminal justice scholars have neglected, this Article’s findings are relevant to ongoing debates regarding American exceptionalism and the peculiar harshness of modern American justice. The rise of mass incarceration and the retention of the death penalty have made the United States an outlier in the modern Western world. Mercilessness has become a defining trait of American criminal punishment, which tends to ignore or reject principles of rehabilitation, human rights, and dignity prevalent in other Western democracies.
These circumstances can foster cultural essentialism about how American culture traditionally lacks humanistic sensibilities. In reality, the revolutionary criminal punishments of the late eighteenth century demonstrate how America once was a trailblazer in embracing humane justice.
Keywords: American Revolution, Death Penalty, Mass Incarceration, Criminal Law, Criminal Procedure, Criminal Punishment, Criminology, Dignity, International Human Rights, Race, Eighth Amendment, United States, France, Comparative Law, War, Legal History, Enlightenment, French Revolution, Loyalists, Treason
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