law—also doing the same that very year (Morris and Rothman1995; Bradburn2009).Because of Beccaria’s influence, Americans vigorously debated substitutingharsh punishments for milder ones. ‘‘Even Congress, in one of the first attempts tocreate a national penal law,’’ writes historian Louis Masur inRites of Execution,‘‘appointed a committee to investigate alterations in the penal laws of the UnitedStates that would provide ‘milder punishments for certain crimes for whichEur J Law Econ (2018) 46:275–302289123
infamous and capital punishments are now inflicted’’’ (Masur1991). The creation ofthat committee was urged by Edward Livingston, a 1781 graduate of Princeton andthe youngest of eleven children of Robert Livingston, a judge of New York’sSupreme Court. Edward’s oldest brother, Robert R. Livingston, had been a memberof the committee of five tasked with framing the Declaration of Independence, andamong the signers of that historic document was Philip Livingston, a cousin ofEdward’s father. In 1801, Thomas Jefferson would appoint Edward Livingston—who, years later, wrote a draft penal code for the State of Louisiana advocating theabolition of capital punishment—as U.S. attorney for the district of New York(Henderson1910). Edward Livingston—like so many reformers of his age—frequently invoked both Montesquieu and Beccaria, calling them ‘‘names dear tohumanity!’’ ‘‘If the argument were to be carried by the authority of names,’’Livingston wrote at one point, speaking of his plan for a Louisiana penal code, ‘‘thatof Beccaria, were there no other, would ensure the victory’’.29Although Pennsylvanians pushed forward some penal reform in the 1780s, theCommonwealth of Pennsylvania witnessed even more anti-gallows activity in the1790s. In 1793, William Bradford—a frequent correspondent of James Madison—wroteAn Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania.In that legislative report, Bradford—again invoking Beccaria—argued for the deathpenalty’s abolition for all crimes except pre-meditated murder. Noting that evidencemight later show the death penalty to be unnecessary even for pre-meditatedmurderers, Bradford wrote that, in America, ‘‘as soon as the principles of Beccariawere disseminated, they found a soil that was prepared to receive them’’ (Bessler2012). In 1794, Pennsylvania ultimately became the first state to divide murder intodegrees,withonlyfirst-degreemurderpunishablebydeath(Binder2012).Beccaria’s writings, one criminologist notes, influenced ‘‘reformers such as JohnHoward and Thomas Jefferson, as well as Quaker reformers in Pennsylvania, andbecame a driving force behind penal reform in the United States’’ (Roth2006). Thevery title of William Bradford’s widely distributed essay,An Enquiry How Far thePunishment of Death Is Necessary in Pennsylvania, confirms that the question earlyAmericans wrestled with so intensely was whether executions were truly necessary.