Godbeer and conviction of capital crimes

Hi all,

This evening I was talking to my SO about the Godbeer article we read in class. He'll be working as a civil rights lawyer starting this summer and had a (potentially) more cynical view of the sparse number of sodomy convictions in early colonial America than the "live and let live" attitude Godbeer suggested. I'm repeating his argument here.

In early American law, the sentences connected to criminal convictions were not discretionary, i.e. a conviction for a capital crime automatically carried the death penalty. "Jury nullification" was thus much more common then than now. Jury nullification (insofar as it is relevant here) is the phenomenon in which a person is clearly guilty of some crime but the jury does not believe that the sentence brought by the charge is appropriate, so they render a verdict of "not guilty," full stop. The Puritan societies that Godbeer describes, then, may have had little real tolerance or "live and let live" attitude, but only thought that execution was an excessive punishment for what they saw as just one more sin among many.

Of course, that account doesn't answer the question of why there were relatively few charges being brought to trial in the first place, which Godbeer's account may more fully explain.