'An Extraordinarily Beautiful Document': Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment

Abstract

By any measure, a dramatic punishment gap today separates United States from other Western countries. In this paper, I argue that extreme punitiveness of American criminal law is at least partly attributable to fact that in United States basic challenge of legitimating state's punishment of its own citizens has not been addressed. The first and only attempt to derive a system of criminal law from basic principle of political legitimacy driving foundation of American Republic, self-government or autonomy, was Thomas Jefferson's remarkable Virginia 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 purposes of society a principle of proportionate punishment. Rather than setting out a republican approach to criminal law consistent with principle of autonomy, Jefferson drew on Anglo-Saxon dooms to retain such penalties as ducking and whipping, while making general reference to 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 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 time, police and law represented two distinct modes of governance. Police was thought of as householder's authority over members of his household transferred onto political sovereign. Law, by contrast, was thought to consist of those abstract rules that govern relationship among equal persons, or citizens. From perspective of police, punishment is a problem of household discipline, employed by 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 foundation for continuing process of critique in light of principles of justice without which republican punishment cannot be legitimated.