Punishment of Treason


Article III, Section 3, Clause 2


According to the Constitution, punishment can be set by Congress, but not to include corruption of blood or forfeiture extending beyond the offender's life. Quite apart from this limitation, Justice Joseph Story notes the explicit grant of congressional power over punishment was intended as a leniency, to preclude the assumption of the common-law punishment's harshest elements. The First Congress used its constitutional power of declaring the punishment for treason by establishing the penalty of death, with seven years' imprisonment for misprision of treason.

The actual punishments for those convicted of the federal crime of treason have generally been more lenient than the statutory maximums. Those convicted for their part in the Whiskey Rebellion were pardoned by President George Washington. The United States government regarded Confederate activity as a levying of war, but all Confederates were pardoned by presidential amnesty. Max Haupt, convicted for giving aid and comfort to his alien son, was spared death and sentenced to life imprisonment. (His son Herbert was convicted by a military tribunal for his role as saboteur, and executed.) Tomoyo Kawakita, convicted of treason for abusing American prisoners of war, was sentenced to death but had his sentence commuted to life imprisonment by President Dwight D. Eisenhower. By contrast, the Rosenbergs' espionage convictions brought death sentences.

Of the two successful prosecutions for treason at the state level—Thomas Dorr in Rhode Island in 1844 and John Brown in Virginia in 1859—only Brown was executed. Dorr was pardoned, and elements of the political agitations for which he was convicted were soon adopted into law in Rhode Island.

Bradley C.S. Watson
Philip M. McKenna Chair in American and Western Political Thought
Chairperson of the Department of Politics
Co-Executive Director of the Center for Political and Economic Thought
Department of Politics
Saint Vincent College