Copyright (c) 1990 United States Air Force Academy Journal of Legal Studies USAFA Journal of Legal Studies 1990 1 USAFA J. Leg. Stud. 139 LENGTH: 11970 words ARTICLE: Criminal Punishment in America: From the Colonial to the Modern Era Steven A. Hatfield * * Captain, United States Air Force. Instructor of Law, U.S. Air Force Academy. BS, Miami University, 1981; JD, University of Idaho, 1983. SUMMARY: ... The primary element of criminal punishment in the United States today is confinement. ... Statistics on capital punishment were started in 1930. ... Interestingly, in England, home of the "Bloody Code" and in most European countries -- the site of the punishment horrors of the eighteenth century described by Blackstone -- capital punishment has been virtually abolished. ... Gradually, criminal punishment in America evolved away from its emphasis on corporal and humiliating punishments until by the end of the first half of the nineteenth century, imprisonment was virtually the only method of criminal punishment used by most states besides capital punishment and monetary fine. ... Towards the end of the eighteenth century, a variety of new ideas on the subject of crime and punishment began to appear which would change the application of criminal punishment in America and throughout the world. ... At least twenty-six prisons employed corporal punishment. ... Most states have abolished corporal punishment in their prisons. ... New ideas concerning criminal punishmentbegan to appear towards the end of the eighteenth century which resulted in the development of the prison and incarceration as virtually the only criminal punishment in existence in America today besides capital punishment, which has become merely a token, the monetary fine, and occasionally, public service work. ... TEXT: [*139] I. INTRODUCTION The primary element of criminal punishment in the United States today is confinement. If convicted of a serious offense, one goes to prison. If convicted of a minor offense, one is sentenced to jail, but that sentence may be suspended, conditioned on good behavior. One may receive a monetary fine for many offenses, which, if not paid, will result in a jail or prison sentence. Only the most heinous offenses might result in capital punishment. Since 1965, the only offense for which a sentence of capital punishment has been executed in the United States has been murder. n1 Capital punishment is not available under the laws of several states. In those cases the maximum legal punishment is life in prison. Public service work as punishment for minor offenses is gaining popularity, however, it is only enforced by the threat of confinement in a prison or jail. The purpose of this article is to examine the evolution of criminal punishment in America. Most people are vaguely familiar with America's early history of public executions and use of the stocks, the pillory, and the whipping post. Most have also, at some time or other, expressed dissatisfaction with our present system of criminal punishment. Some even advocate a wholesale return to the punishments of the past. How did our concepts of criminal punishment evolve from the antiquated examples just mentioned to our current almost complete reliance on imprisonment? This article will attempt to illustrate that evolution by examining the means that Americans have used to punish criminal behavior; first, in the colonial period and then in the developing United States. A great deal of intellectual effort has been devoted to answering the question of why we 1punish. According to Packer, all the theories concerning the philosophical justification for criminal punishment can be boiled down to retribution and deterrence. n2 Retribution is punishment for punishment's sake; the criminal is an evildoer who deserves to have evil inflicted on him. Deterrence is a utilitarian approach. The aim of punishment under this theoryis to prevent further criminal behavior. Deterrence of the general public is accomplished by intimidation (the threat of punishment) and deterrence of the offender himself is accomplished by intimidation, incapacitation (punishment in the form of restraint), and rehabilitation (behavioral modification). n3 [*140] This article will not explore the philosophical basis for criminal punishment any further, other than to point out how the development of particular theories has influenced the use of particular punishments in American history. II. THE COLONIAL PERIOD American law, both civil and criminal, has its roots in the law of Great Britain. While Great Britain was merely one of several European countries that began earnest colonization of America during the seventeenth century, the British colonies were the most numerous and prosperous. These colonies, which eventually declared their independence and formed the United States, built their criminal law systems on the British model. The different jurisdictions in colonial America drew on the British penal system to varying degrees, depending both on the strength of their allegiance to the Crown and the focus of their existence. According to Chapin, the English law provided 57 percent of the total body of substantive criminal law in the seven English colonial jurisdictions prior to 1660. n4 In Rhode Island 86.2 percent of the criminal law was English in origin while in Massachusetts, Connecticut, and New Haven it was 41 percent or less. The charters of the English colonies didnot require exact compliance with the laws of England, only that they not pass laws repugnantto the laws of England. The degree to which each colony deviated from English law reflects how they viewed themselves in relation to the Crown. The Chesapeake colonies remained strictly responsible to authority in England. The Puritan colonies, Massachusetts, Connecticut and New Haven, on the other hand, used biblical law as much or more than English law in fashioning their criminal codes. n5 Even those colonies that depended on English law the most, departed from that model whenever they could to try to remedy some of the problems that were perceived in the Britishsystem. One of the most notable problems was the utter lack of imagination of the British in coming up with any sort of punishment short of the death penalty. Virtually every felony was acapital offense. Called the "Bloody Code" n6 this system prescribed the death penalty for overtwo hundred offenses by the end of the eighteenth century. Even the most