27 Pages Posted: 15 Jul 2005
Date Written: June 10, 2005
By any measure, a dramatic punishment gap today separates the United States from other Western countries. In this paper, I argue that the extreme punitiveness of American criminal law is at least partly attributable to the fact that in the United States the basic challenge of legitimating the state's punishment of its own citizens has not been addressed.
The first and only attempt to derive a system of criminal law from the basic principle of political legitimacy driving the foundation of the American Republic, self-government or autonomy, was Thomas Jefferson's remarkable Virginia "Bill for Proportioning Crimes and Punishments" of 1779. Jefferson's bill was not only limited in scope (dealing with punishments, not with crimes or principles of criminal liability, and only with punishments for a very few offenses at that), but also fell considerably short of its ambition to "deduc[e] from the purposes of society" a principle of proportionate punishment. Rather than setting out a republican approach to criminal law consistent with the principle of autonomy, Jefferson drew on Anglo-Saxon dooms to retain such penalties as ducking and whipping, while making general reference to the need to deter potential offenders through "long-continued spectacles" of penal servitude, to "reform" offenders "committing an inferior injury," and to "exterminate" anyone "whose existence is become inconsistent with the safety of their fellow citizens," albeit only as "the last melancholy resource."
Jefferson, I argue in this paper, conceptualized punishment as a question of police, rather than of law. At the time, police and law represented two distinct modes of governance. Police was thought of as the householder's authority over members of his household transferred onto the political sovereign. Law, by contrast, was thought to consist of those abstract rules that govern relationship among equal persons, or citizens. From the perspective of police, punishment is a problem of household discipline, employed by the superior sovereign against his inferior disobedient subject. As such, it is subject to limitations of prudence and expedience, but not of justice. Jefferson's Bill thus provides a sketch of punishment as a matter of good governance, rather than as a matter of right. It did not lay the foundation for the continuing process of critique in light of principles of justice without which republican punishment cannot be legitimated.
Keywords: Criminal law, legal theory, political theory, legal history, police power, police science
JEL Classification: K14, K30, B10
Suggested Citation: Suggested Citation
Dubber, Markus D., 'An Extraordinarily Beautiful Document': Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment (June 10, 2005). Available at SSRN: https://ssrn.com/abstract=758905 or http://dx.doi.org/10.2139/ssrn.758905