Americans during the Founding were generally proud of the fact that they, in keeping with such an enlightened age, were in the process of putting this sort of barbarism behind them. Thomas Jefferson had criticized some of the disproportionate, cruel, and bloodthirsty penal codes of colonial Virginia and sought to make them more “proportionate and mild.” Nonetheless, some of the suggestions he made in his 1778 Bill for Proportioning Crimes and Punishments would today seem to us as being a little on the harsh side. For instance, he advocated that rapists should be castrated; those who maim another “shall be maimed or disfigured in like sort”; those who are guilty of larceny should be sentenced to the pillory followed by hard labor; and those guilty of “the pretended arts of witchcraft” should be punished with ducking (tied to a chair and forced underwater) and whipping. Jefferson himself was not entirely sold on the punishments of castration and maiming, but they were acceptable as a substitute for their alternative, which was usually death.
Indeed, one of Jefferson’s primary goals in this bill was to limit capital punishments to the crimes of murder and treason. For Jefferson, the avoidance of cruel and unusual punishments began with “a duty in the legislature” to set forth mild and proportionate punishments, and it was consummated in a judiciary that is bound by that code. Jefferson had articulated this two-pronged approach to avoiding “cruel and unusual punishments” in a letter two years earlier: “Let mercy be the character of the law-giver, but let the judge be a mere machine.”