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by William H. Benson

March 5, 2010

     In Boston, on March 5, 1770 on a cold, moonlit evening, when a foot of snow lay on the ground, a gang of several hundred hostile Americans approached eight British soldiers, the hated Redcoats, sometimes called lobster-backs, and began to taunt them. The crowd then turned ugly and began shouting at the soldiers, cursing them, and throwing snowballs, chunks of ice, oyster shells, stones, sticks, anything they could pick up and throw. The cornered, terrified soldiers opened fire and killed five American men.

     The Boston Massacre, as it as since been called, was the opening salvo in what became the American Revolution. John Adams, a young attorney from nearby Braintree, Massachusetts, agreed to defend those eight British soldiers. Although he would later serve as a leader in America’s revolt against the British crown, Adams believed that it was his duty then to defend those soldiers from what appeared a most certain hanging.

     In preparation for the trial, Adams read the eighteenth-century Italian thinker, Cesare, Marchese di Beccaria, who had written an early work on the punishment of crime, titling it On Crime and Punishment. Beccaria had argued against the death penalty and torture, and had instead advocated for major reform of the criminal legal system, and that criminal justice should conform to rational forms of punishment.

     He presented certain enlightened principles: punishment should deter further crimes, rather than serve as a form of retribution; that it should be proportionate to the crime committed; that the certainty and promptness of the punishment, rather than its severity, would achieve the preventative affect; and that the proceedings should be made public.

Beccaria’s ideas were revolutionary in a day when capital punishment by hanging or firing squads was the rule.

     Standing before the jury, Adams argued that the British soldiers had acted in their own self defense when they had fired their guns into the crazed mob. “Do you expect he should behave like a stoic philosopher, lost in apathy?” Adams asked. “Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence.”

     The jury acquitted six of the soldiers, and the other two, the jury determined, were guilty of manslaughter. But instead of being walked to the gallows, the two received a branding on their thumbs. For the rest of Adams’s life, he was pleased with his defense of those soldiers, calling it, “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces I ever rendered my country.”

      When he wrote the Bill of Rights, James Madison included Amendment VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” That amendment eliminated any U.S. citizen from ever facing the more sadistic forms of torture: the rack, head screws, the use of boiling water, mutilations by cutting off tongues and ears and hands, and locking people’s feet and hands in stocks.

     Thirty years ago, a notorious white collar criminal and con artist, named Frank W. Abagnale, Jr., wrote a book of his life of writing phony checks all over the world. When finally caught, he was living in France, was tried and sentenced to six months at the Perpignan prison. He was thrown naked into a darkened stone hole five feet wide and tall, with only a bucket that was emptied whenever the guards wanted to.

     No letters, no visitors, no communication was allowed, no haircuts, no chance to shave or cut his fingernails, no light, and nothing to read. He slept on the stone floor. Food was scant. Insects and bacteria took up residence on his skin, and soon scabs ulcerated his body. The stench from the filth was suffocating.

     Six months later, the Swedes had their turn at Abagnale. He was tried and sentenced to six months in the Swedish prison, and was told, “You will find it very different from the prisons in France. In fact it is very different from any of your American prisons.” Frank was permitted to live in a dormitory at Lund University, where he could take classes or work at a job. He could wear his own clothes, in what he learned was a coed prison. He realized that “Swedish prisons actually attempt to rehabilitate a criminal.”


     Which system really works to deter the criminal—the barbaric French dungeon, the soft Swedish dorm room, or the cramped American cell with steel doors and bars? Or is branding a thumb a better option? The answer does not instantly appear, because governments and judges have learned that matching the punishment to equal the crime and thus prevent other crimes is an art not quickly mastered.