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77 Chapter 5 The Death Penalty in Federal Law Lonnie Wilson S ince the adoption of the Constitution, the Congress of the United States has made a number of crimes punishable by death. The Constitution itself only specifies one crime, treason, but does not specify a penalty. The maximum penalty chosen by Congress for the ultimate federal crime is death. However, many other statutes have been added to the list of federal capital crimes. Due to the nature of the American system of law, relatively few death penalty cases are now prosecuted in federal court. This has not always been the case, and the number of federal death penalty cases has waxed and waned throughout the history of the United States. Treason, as defined in the United States Constitution in Article 3, Section 3, “shall consist only of levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in Open Court.” This definition of treason is very narrow in comparison to the crime of treason under the English law from which the founding fathers derived their experience and knowledge. Treason under English law included sex with the wife of the sovereign by anyone other than the sovereign, or with the unmarried eldest daughter of the sovereign. Should the sex be consensual, then the female was guilty of treason as well. Furthermore, in English law, in addition to death, the traitor was “attainted.” The principal of “attainder” held that all of the property of the attainted was forfeit to the Crown, and the heirs to the traitor were barred from inheritance. In effect, the family of one guilty of treason was punished as well. The former revolutionaries that framed the Constitution consequently limited the scope of treason to making war on the United States and providing aid and comfort to an enemy. They also restricted the punishment in regard to attainder . No doubt the attitudes of the framers of the Constitution were influenced by the knowledge that they had been, under English law, guilty of treason themselves when they had fought for the independence of the United States. The Congress of the United States imposed the death penalty as the maximum penalty for treason. However, since the adoption of the Constitution there have been no executions for violations of the federal crime of treason. There have been convictions for treason, and there have been open acts of rebellion, the largest being the American Civil War. There are several reasons for the absence of federal executions for treason.1 In several cases of rebellion, the offenders were tried in state court instead of answering to federal charges of treason. For example, Shays Rebellion took place in Massachusetts in the years 1786 to 78 Lonnie Wilson 1787, shortly after the conclusion of the Revolutionary War. Armed clashes occurred between state militia and armed farmers led by Daniel Shays. The intent of the farmers included the prevention of the state supreme court from convening . They feared that more farmers would be evicted from their land, which had been occurring frequently at the time. Militia loyal to the state government eventually succeeded in defeating the farmers who had risen in armed rebellion. Shays was tried in absentia in Massachusetts after the rebellion was defeated. Though sentenced to death, he was granted clemency and pardoned by the newly elected governor, John Hancock. It may have helped Shays’s case that Governor Hancock had personal knowledge and experience in armed rebellion, having helped incite the War of Independence and been indicted for treason by English authorities for doing so. Shays could not have been prosecuted by any other authority than the state of Massachusetts because the federal Constitution had not yet been adopted. In fact, Shays rebellion may have helped shape attitudes that led to the Constitutional Convention and the definition of treason contained in the product of the convention, the Constitution of the United States. The outcome of the criminal charges of treason against Shays is still of interest because it illustrates the political nature of the charge and how that affects the application of the law. The law provided for a sentence of death, and that is what the court imposed on Shays. However, his execution would have created a martyr for his cause and incited his followers to further acts of violence. Instead, he was granted clemency...

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