Athenians preferred to memorialize punishments for eternity.
Here we can no longer avoid turning to the gory details. I will begin with a simple list of the penalties imposed in Athens, say a few words about the most interesting penalties, and then draw some brief conclusions about their symbolic weight.
On fellow citizens, the Athenians imposed fines, imprisonment, a set time of public humiliation in the stocks, limited loss of political rights, total disfranchisement, exile from the city (which could be amplified with the confiscation of property and/or the razing of the convict’s house), and death (which could be amplified with the confiscation of property and/or the razing of the convict’s house and/or a refusal of burial). Women could not, of course, be subject to a loss of political rights but they could lose their rights to participate in religious spaces and events. On the resident foreigners in their midst, the Athenians imposed all of the above penalties, with the exception of disfranchisement. As for slaves, they fined masters and executed slaves, and also imposed whippings and beatings. (And they also seem to have imprisoned slaves in “mill houses” on a regular basis!).
In respect to their punishment of citizens, the Athenians have often been thought lenient. Socrates’ execution by hemlock has seemed to some like a humane precursor of lethal injection. In fact, the standard means of execution was not poison but a form of bloodless crucifixion in which the convict was (probably) fastened to a board with iron collars around wrists, ankles, and neck, and the collar around the neck was tightened to strangle the wrongdoer. Socrates too would probably have suffered such a crucifixion had he not had wealthy friends. From the end of the 5th century, the Athenians seem to have been willing to let wrongdoers convicted to death use hemlock to commit suicide in advance of their execution provided they could afford to pay for the dose. It was expensive—12 dr. a dose at the end of the 4th century—no doubt because it grew only in cold, shady, and distant spots like Susa in Asia Minor and Crete. Yet even if the bloodless crucifixion was not lenient, it did have an element of moderation. Generals on the battlefield had the authority to execute citizens and this they did with a swift blow of the sword. The purpose of the unusual crucifixion and its elaborate effort to avoid blood seems to have been to distinguish judicial punishments, and penalties in the peaceful city, from the violence of the battlefield. On some level, the bloodless crucifixion protected the body of the citizen from abuse even in death.
In contrast, the Athenians were indeed lenient in their willingness to let convicts on death row escape prison and flee into exile. Even convicted murderers, who were being held in prison while they awaited execution, were expected to make a jail break and flee the land (Plato Crit. 44b-c). And the expectation that wrong-doers would simply take themselves into exile was such that a defendant in a murder trial was given the chance, after his first speech in the trial, to leave the country if he wanted (Dem. 23.69-70). Exile wasn’t the easiest burden to bear, for an exile might become “a beggar in a strange land, an old man without a city” (Antiph. 2.2.0). But exiles could also re-establish themselves in another city and even, in some cases, gain citizenship in their new homes. The Athenian preference for exile over execution is the best evidence of their desire to use punishment to cure all parties to the wrongdoing. In departing the community, the wrongdoer freed the victim and the prosecutor of the anger, and put an end to the social disruption plaguing the city but he also himself gained the chance to start a new life in a context where he would not be the focus of anger and social conflict. Peace in the community was restored and the wrongdoer was also restored to life.
The single greatest difference between ancient and modern penalties is, then, the prominence of exile in the former context and of imprisonment in the latter. The Athenians did use imprisonment as a penalty but this developed out of the custom of imprisoning wrongdoers who were unable to pay their fines. Impoverished Athenians who could not pay their fines ended up imprisoned for indefinite periods of time, and over time the city seems to have developed means whereby such citizens could propose set time limits for their imprisonment, to replace their fines. But imprisonment was never one of the penalties mandated by law. Indeed, the modern rise of imprisonment as the basic sentence mandated by law coincides neatly with the near total disappearance of exile in the 19th century. Exile was still in use in colonial America and, of course, modern Australia has its roots in serving as a penal colony for Britain. But the modern prison now serves the function formerly served by exile: it allows the community to forget, almost entirely, about particular wrongdoers and so restores a sense of order to the community. Yet in the transition from a world that relied heavily on exile to one that relies most of all on incarceration, something valuable has been lost. Although prisons may help communities forget about particular wrongdoers who disappear into them, they have not achieved the second function of exile, which was to restore the wrongdoers also, allowing them to enter a new community in contexts in which they would have a new chance at life.
For all this emphasis on the Athenian use of penalties like exile that allowed them to forget all about the wrongdoer, it is important to remember that in other cases the Athenians preferred to memorialize punishments for eternity. As we have seen, the procedure of the graphe, and the inscription that would follow it, were especially used for such memorialization. The Athenians thus developed techniques for punishment that drew on the capacities of the community’s memory and others that drew on its ability to forget. In general, it placed heavy emphasis on memorializing punishments in those contexts where the wrongdoing had an especially political significance (treason, temple-robbery, impiety, etc.). In contrast, when the wrongdoing primarily concerned particular individuals and their personal conflicts, the city was willing to let it go.
Originally published by Dēmos: Classical Athenian Democracy under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 1.0 Generic license.