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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.
Philadelphia (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 Dynamo Electric Machine. Official
Gazette of the United States Patent Office. Volume 45, Patent # 390,721, Filed April 28,
1888. Washington, D.C.
This is the patent for Nikola Tesla’s Dynamo Electric machine.
Thomas Edison, a proponent of direct current, campaigned against alternating
current developed by Tesla and the Westinghouse Electric Corporation.
Although Edison opposed capital punishment, his company developed the
electric chair using AC current in order to disparage it and prove
how dangerous he believed it was. 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
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