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1 U.S. A.F. Acad. J. Legal Stud. 139 (1990)
Criminal Punishment in America: From the Colonial to the Modern Era

handle is hein.journals/usafa1 and id is 147 raw text is: CRIMINAL PUNISHMENT IN AMERICA: FROM THE COLONIAL TO THE MODERN ERA STEVEN A. HATFLD* 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.1 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 punish. According to Packer, all the theories concerning the philosophical justification for criminal punishment can be boiled down to retribution and deterrence.2 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 theory is 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) A *Captain, United States Air Force. Instructor of Law, U.S. Air Force Academy. BS, Miami University, 1981; JD, University of Idaho, 1983.