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- Criminal Law during The Colonial Period
- Criminal Law in The New England Colonies
- The Pennsylvania Experiment in Criminal Law
- The Revolution and Its Aftermath
- Jefferson’s Proposed Reform of The Penal Law of Virginia
- Pennsylvania and The Degrees of Murder
- Criminal Law during The Antebellum Period
- Edward Livingston and Criminal Law
- The Movement to Abolish The Death Penalty
- Criminal Law during The Postbellum Period
- Field’s Reforms in New York State
- Progressivism and Criminal Law
- The Juvenile Court
- Twentieth-Century Developments in Criminal Law
- The Cleveland Survey
- The Wickersham Commission
- The Model Penal Code
It is an undeniable fact that the law of crimes in the United States has historically suffered from a malevolent neglect. In other fields of the law, there has always been a tradition of judges, legislators, and legal commentators being willing, if not eager, to scrutinize fundamental premises and push doctrinal reform if they believed society demanded it. The predominant view of the American legal profession regarding the penal law, however, appears to have been that if it needed change, it would improve itself. Therefore, it is not unexpected that criminal law has long been one of the least developed, most convoluted, and, in a way, most primitive branches of American law.
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Certainly, there are a number of notable exceptions to this general rule of neglect. Throughout American history, there have been periodic surges of interest in criminal jurisprudence, accompanied by the emergence of reformers who, in one way or another, have sought to humanize the criminal law, modernize it, or even just add a degree of clarity to it. These endeavors have had differing effects on the course of legal advancements due to their vastly different motivations, scopes, and quality. However, they have all signified an awareness of the significance of criminal law and a willingness to confront at least some of its fundamental flaws. Consequently, they stand out as brilliant landmarks in an otherwise drab terrain.
This research paper examines the tumultuous history of criminal law reform in the United States. Emphasis is placed primarily on substantive penal law, which includes the law guiding the treatment of criminal offenders. Nonetheless, there are a few remarks regarding efforts to alter criminal procedure and the administration of justice.
Criminal Law during The Colonial Period
Criminal Law in The New England Colonies
It is logical to begin a study of the history of criminal law reform with the colonial period, as it was at this time that the first improvements were made. All of the American colonies based their criminal law primarily on the jurisprudence and statutes of the home nation. Obviously, small groups of colonial settlers, few of whom have legal expertise, do not create criminal codes out of thin air. However, from the first, the colonists shown a willingness to experiment with revisions to the English legacy if their own ideals demanded it. In the very first set of rules established in British North America, the Plymouth Code of 1636, the punishment for serious offenses diverged significantly from the English model. The death sentence in Plymouth was restricted to treason, murder, arson, and a number other morals offenses, but the list of capital offenses in England was extensive and encompassed nearly all significant sins. This document should not be accorded excessive weight, as it was, in many ways, a basic set of regulations and Plymouth was a little community that would soon fall into obscurity. However, its amendments to the criminal law foreshadowed a pattern that was eventually adopted by other colonies.
The Laws and Liberties of Massachusetts (1648), a much more sophisticated document than the Plymouth Code, incorporated significant improvements to the common and statutory criminal law of the home country. It, like English law, limited the amount of capital offenses and generally imposed more mild punishments for noncapital offenses. The universal prohibition on “cruel and barbaric” penalties was an innovation in and of itself. The entire code was equally influenced by the Old Testament and the English common law. Deuteronomy and other portions of the Pentateuch were frequently referenced to justify punitive clauses, and this reliance on the Bible had the net effect of making the law less harsh than it otherwise would have been. Only those crimes for which the Bible plainly dictated the death penalty were designated capital crimes. The code also incorporated several substantial enhancements to criminal procedure. A conviction for a capital offense required the evidence of two witnesses (this criterion was also founded in the Bible), and all capital cases were entitled to an appeal.
In addition to being inspired by the Bible, The Laws and Liberties of Massachusetts were imbued with a spirit of logic and a healthy dislike for the numerous incidental elements of English criminal law. The device of clerical benefit, for instance, was viewed as a consequence of historical accident, with no basis in Scripture or reason, and was therefore removed from the law.
The significance of these New England criminal codes, particularly those of Massachusetts Bay, lay as much in their status as codes as in the revisions they made to specific elements of English criminal law. Underlying the codes was the conviction that a community’s criminal law was too vital to be allowed to develop piecemeal, as many Puritan settlers believed had happened with the English common law.
Rather, it was something that needed to be built methodically and with consideration to reflect the community’s deepest moral sense and to advance the social reasons for which the society existed. Later years tragically lost sight of this lesson.
The Pennsylvania Experiment in Criminal Law
Despite the fact that the criminal code of the American colonies was generally less retributive than that of the mother country, it was by no means less punitive and was quite harsh by contemporary standards. In the colonial imagination, crime and sin were nearly synonymous. The criminal was viewed as a moral actor with free will, and punishment was justified as a form of communal vengeance or divinely ordered, albeit humanly administered, retribution. The punishment schedules were little more than clumsy attempts to correlate the severity of the punishment to the wickedness of the conduct, and the unique circumstances of the offender received almost no consideration. However, the penal regulations created by Pennsylvania colony in the final decades of the seventeenth century exhibited a quite different mentality. There, between 1682 and 1718, William Penn and other prominent Quaker figures conducted a remarkable experiment in criminal law reform. Despite its unfortunate conclusion, it planted seeds that would later bear fruit.
A year after it was founded by William Penn under a royal charter, Pennsylvania passed a comprehensive code of criminal laws, part of a larger codification known as the Great Law of 1682, that was radically different from anything that had come before. The colony’s Quaker founders rejected in principle brutality, senseless slaughter, and, excepting the most exceptional circumstances, the taking of human life. They were repulsed by the English criminal system and felt obligated to seek alternatives. The alternative they discovered was imprisonment. The period of imprisonment varied according to the nature of the offense and the conditions under which it was committed. In general, the conditions of incarceration were not terrible. Therefore, the penalty for burglary was three months in prison and quadruple reparation to the victim. In the judgment of the court, arson was punishable by one year of hard labor and physical punishment (often lashing). One month in prison was the penalty for assaulting a magistrate. Assault and battery, along with manslaughter, were to be penalized based on the nature and circumstances of the offenses. In contrast to the relatively light penalties associated with these offences, the Quaker law dealt harshly with sexual offenses. Bigamy, for instance, was punishable by life imprisonment for the first offense and rape for the second.
Another unique aspect of the Pennsylvania code was its treatment of religious offenses, a common category of crime in most jurisdictions. These types of crimes were fully eradicated, and all citizens were guaranteed complete freedom of conscience.
The Pennsylvania code of 1682 constituted the purest form of Quaker criminal law. The colony’s criminal legislation was changed throughout the next three decades by a succession of legislative acts and became somewhat stricter. More crimes were made punishable by incarceration, jail periods were lengthened, and harsh physical punishments such as branding were established for some transgressions. In spite of these modifications, Pennsylvania’s criminal code remained a model of enlightenment and humanity compared to that of its neighbors. However, the Quaker experiment abruptly ended in 1718. The colony had been lobbying the Crown for some time to permit Quakers to testify on affirmation rather than under oath, and the Crown had been attempting to bring the colony’s criminal code closer to that of the mother country. In exchange for the colony’s decision to adopt the English criminal code in place of its own, the Quakers were granted recognition for affirmation.
The Revolution and Its Aftermath
The American Revolution prompted a number of attempts at criminal law reform, all of which were noteworthy for the new ideas toward punishment they revealed, but only one had lasting benefits. Following their separation from the United Kingdom, the newly independent colonies were faced with the dilemma of how much of the home country’s legal system they desired to keep. Some patriots argued that the United States’ criminal law was especially in need of reform. They maintained that its punitive requirements reflected a British rather than an American mindset. These points resonated well in a number of state capitals. The original state constitution of New Hampshire (adopted in 1784) urged the government to address the state’s draconian criminal statutes. It ruled that it was not prudent to apply the same punishment to offenses as different as forgery and murder since “the true purpose of all punishments is to reform, not exterminate, mankind” (article 1, section 18). Regrettably, the legislature declined the invitation, and the state’s penal code did not change significantly. Virginia witnessed similar developments.
Jefferson’s Proposed Reform of The Penal Law of Virginia
A few weeks after the signing of the Declaration of Independence, the General Assembly of Virginia passed an act for the revision of the Laws (ch. 9 (1776), Hening’s Virginia Statutes at Large 175 (Richmond, Va., 1821)) with the intention of bringing the state’s laws more in line with the spirit of republicanism. George Mason and Thomas Jefferson served on the committee charged with revising the document. As part of the remodeling process, Jefferson drafted a bill proposing a new system of criminal penalties. This draft is the result of a comprehensive review of ancient to contemporary theoretical texts on punishment and the treatment of criminal offenders. The footnoted form of the bill found in Jefferson’s archives includes references to Anglo-Saxon laws in their original language. It is widely considered as a literary drafting model (Boyd, p. 594).
None of the thinkers Jefferson studied had a greater influence on him than the great Italian criminologist Cesare Beccaria, whose essay On Crimes and Punishments (1764) was generating vigorous debate in educated colonial circles. Beccaria advocated a strictly utilitarian approach to the criminal law, and Jefferson’s penology was infused by his beliefs. Jefferson’s guiding principles were: (1) that the only purpose of the penal law was the deterrence of crime; (2) that sanguinary laws were self-defeating because men shied away from enforcing them to the full and thus left many crimes unpunished; (3) that if punishments were proportionate to the crime, men would be more likely to ensure the laws were observed; and (4) that the reform of criminals was a worthy goal worthy of the law’s promotion. Finally, Jefferson’s criminal law reflected a preoccupation with the theory of analogical punishments, which held that punishments should be symbolic reflections of the actions to which they are fastened, so that crimes and their consequences are inextricably linked in the minds of citizens. In the late eighteenth and early nineteenth centuries, this peculiar hypothesis had a profound effect on the evolution of penological thought.
These concepts produced a suggested system of punishments that was generally lenient and enlightened, but was tarnished by certain fairly peculiar characteristics. Jefferson limited the broad list of crimes punishable by death under the prevailing law to treason and murder, and imposed far lighter punishments for the vast majority of these typically lethal acts. As a result of a near-obsession with similarity and balance, however, the punishments imposed for certain infractions took on a very macabre tint. Thus, the penalty for treason was being buried alive. Murder by poison was punished with poison, rape with castration, and mayhem with mutilation. The Virginia legislature vigorously debated Jefferson’s proposals but ultimately rejected them.
Pennsylvania and The Degrees of Murder
Pennsylvania, which had previously experimented with large-scale modifications to its prison regime, was the first state where the new champions of penal law reform were able to transfer theory into practice. During the American Revolution, numerous Pennsylvania political offices fell into the hands of a mix of populist farmers and Philadelphia radicals, which may have made the soil even more fertile. In any case, the state adopted a constitution in 1776 that had measures about the reform of the criminal code that were remarkably similar to those included in the New Hampshire Constitution of 1784. (It’s possible that New Hampshire borrowed part of its language from the Pennsylvania document.) The difference was that Pennsylvania mandated, as opposed to urged, its lawmakers to modify the state’s penal laws and make punishments more commensurate to the offenses. The constitution echoed a popular idea of the new generation of reformers by stating that conspicuous punishments of extended duration, such as incarceration, prevented crime more effectively than harsh, brutal, but fleeting sanctions (Pa. Const. of 1776, 38–39).
Ten years later, the Pennsylvania Assembly took the first move toward penal law reform by eliminating the death penalty for robbery, burglary, and sodomy (Act of Sept. 15, 1786). Act of September 23, 1791, sections 5 and 8 abolished the death penalty for witchcraft and ended the barbaric practice of branding for adultery and fornication.
Despite these advancements, there were indications in the early 1790s that the momentum produced during the Revolution in favor of fundamental and extensive criminal law reform was beginning to wane. In 1790, for instance, Pennsylvania’s new constitution did not even mention the matter. Possibly with this in mind, a number of renowned Pennsylvanians began to strongly and publicly advocate for the reformer cause.
James Wilson, the first law professor at the University of Pennsylvania, a signer of the Declaration of Independence, and a co-author of the United States Constitution, gave a series of lectures on crime and punishment in Philadelphia in 1790. Citing with approval the views of Beccaria and that other great eighteenth-century legal theorist, Montesquieu, Wilson argued vehemently that prevention was the only purpose of punishment and that anything more severe than the minimum punishment required to deter crime was incompatible with a civilized society. In 1792, Benjamin Rush, a professor of medicine at the same university, wrote an essay titled “Considerations on the Injustice and Impolicy of Punishing Murder by Death” in which he claimed that death punishment was “contrary to reason and to the order and happiness of society.” In the same year, Pennsylvania Supreme Court Justice William Bradford entered the fray. In a report on the effectiveness of the death penalty as a deterrent against crime, prepared at the request of Governor Thomas Mufflin, Bradford argued that the death penalty was completely unnecessary and cited statistics showing that the imprisonment penalty provided by the act of 1786 was just as effective in deterring burglary, robbery, and sodomy as the earlier death penalty.
Taking a lead from Bradford’s memorandum, Governor Mufflin advocated to the Pennsylvania assembly that further reforms to the criminal system were necessary and urged it to explore making other reforms. The response of the legislature was equivocal. It was extremely loath to travel the full distance down the path that Bradford, Wilson, and others were encouraging it to go, but it did agree that the punishment of death ought to be administered only when it was absolutely necessary to safeguard the public safety. In light of this theory, it drafted legislation that, for the first time in Anglo-American legal history, differentiated between two degrees of murder. The first degree, punishable by death, related to homicides performed by lying in wait or by poison, or to any other kind of willful, deliberate, and premeditated killing. (There were echoes here of the statute of 1682.) All other sorts of murder were categorized as murder in the second degree, punished by imprisonment at hard labor or in solitary confinement or both for a duration not to exceed twenty-one years. This law was duly enacted by the legislature in 1794 with the inclusion of criminal murder to the category of the first degree (Act of April 22, 1794, § 2).
The classification of murder into two degrees proved to be Pennsylvania’s greatest lasting contribution to the general criminal law of the United States. Virginia approved a similar statute in 1796, which was followed by Ohio in 1824, Missouri in 1835, Michigan in 1846, and the great majority of American jurisdictions ultimately.
Criminal Law during The Antebellum Period
The passing of the law on the degrees of murder significantly weakened the Pennsylvania campaign for the complete abolition of the death penalty. The movement stayed dormant for several decades before reviving in the 1820s as part of a larger anti-death-penalty campaign that flourished on the national arena between roughly 1820 and 1850. This debate will be resumed below, but the focus must now shift to the state of Louisiana and the work of Edward Livingston, the most creative and productive of all nineteenth-century penal code reformers.
Edward Livingston and Criminal Law
Born in New York State, Edward Livingston (1764–1836) had a notable political career before focusing on criminal law reform. He served in the House of Representatives, as U.S. attorney, and as mayor of New York City. Livingston departed New York in 1804 and settled in New Orleans, where he began a law business and became involved in Louisiana politics almost immediately. Simultaneously, he maintained a longstanding interest in jurisprudence and the reform of the law.
Livingston was elected to the Louisiana assembly in 1820 and was crucial in the passage of an act authorizing the construction of a code of criminal law “based on one principle, namely the prevention of crime” (Livingston, vol. 1, pp. 1–2). The next year, he was named as the effort’s leader.
Livingston combed through all available resources on criminal law and engaged in extensive correspondence with jurists and legal practitioners from other states and abroad in order to draw on their thoughts and expertise. In 1826, he presented the state of Louisiana’s General Assembly with a finished work.
The Livingston Code had four distinct sections: a code of crimes and punishments, a code of process, a code of evidence, and a code of reform and prison discipline. Each code was accompanied by a report detailing its history and underlying philosophy. In addition, there were two extensive reports in which Livingston expressed his overall opinions on criminal law. In one of them, he made clear that he believed his code to be the first serious attempt, at least in the Anglo-American world, to set criminal law on a strong, scientific foundation. He compared the former criminal law to pieces of fretwork, the result of caprice, fear, and negligence, which jeopardized the lives and liberties of the people due to cruel or disproportionate punishment and conflicting laws (Livingston, vol. 1, p. 11).
Livingston freely recognized that he owed his largest intellectual debt to the English utilitarian philosopher Jeremy Bentham, and the entire structure of the code is based on Benthamite ideas. First, there is a dedication to the notion that all educated citizens should have complete access to the content of the laws. Livingston wrote: “Penal laws should be written in plain language, clearly and unequivocally expressed, so that they cannot be misunderstood or perverted” (vol. 1, p. 5). The code contains surprisingly little of the technical verbiage that attorneys love so much. It is one of the few pieces of legislation that can be described as actually enjoyable to read.
Consistent with Benthamite ideology, the code is imbued with a profound mistrust of judges and a hostility to any form of judicial lawmaking. The code of crimes and punishments prevented the punishment of conduct not specifically rendered illegal by statute, and judges were prohibited from punishing anything not made criminal by the letter of the law under the pretext that the act in issue was within the spirit of the law (vol. 2, p. 15). Livingston intended to prohibit judges from injecting their own moral convictions into the criminal code.
Lastly, in an effort to involve the average person in the lawmaking process, the code aimed to make clear the rationale behind its various provisions. Thus, explicit prohibitions on types of action were frequently supported with examples and justifications for their inclusion. Livingston believed that people would be more inclined to respect the law if they perceived that it was rational and based on the fundamental concept of utility.
In general, Livingston’s code represented a significant consolidation and clarification of the existing penal laws, as well as the removal of much of its weedlike overgrowth; he was adamant that there were too many crimes and that the criminal sanction was overused when the civil sanction would suffice. In addition, a large number of the code’s substantive sections were relatively novel. This was particularly true regarding civil freedoms and privacy. It was deemed a crime to open a letter addressed to another (vol. 2, p. 166), and it was a misdemeanor to interfere with someone’s right to free expression or free assembly (vol. 2, p. 69). Homosexuality was removed from the list of criminal offenses on the grounds that describing such transgressions in a code could corrupt young readers and criminalizing sexual deviance was an invitation to blackmail (vol. 1, p. 27).
The most notable innovation in Livingston’s law was the removal of the death punishment (volume 1, pages 185–224). This proposition was extensively defended by Livingston in his “Introductory Report to the Code of Crimes and Punishments” His primary point was that the state could only justify taking a life if it could prove that it was extremely essential. But, he argued, it could be demonstrated through logic and experience that lighter punishments would enough to deter major offenses. He also pointed out that public executions had a corrupting influence on society morality, that courts frequently erroneously convicted criminals, and that it was impossible to fix these mistakes under a system that permitted capital punishment. Livingston also maintained, in a relatively ignored portion of his discourse, that capital penalty was insufficient to deter the commission of significant crimes. The dread of death was just insufficient to deter potential criminals from acting on their intense desires to commit crimes. The voracious spendthrift, he claimed, would risk the temporary, but acute, pain of death to advance his interest in a life of idleness and dissipation, whereas the threat of a life lived under a harsh jail regime might be enough to quell his thieving tendencies (vol. 1, pp. 37–40).
Livingston’s proposed system for the treatment of social deviance had never been proposed previously. He understood that poverty and idleness led to crime, therefore his code of reform and prison discipline called for a house of refuge, which would employ people who were unemployed, and a home of industry for those who refused to work in the house of refuge. This institution would also provide work to recently released inmates. For the treatment of genuinely criminal offenses, he proposed a fines-to-incarceration scale that was delicately graduated. The conditions of confinement were graded according to the severity of the crime. The objective of incarceration was to both rehabilitate the offender and serve as an example to dissuade crime.
In most ways, Livingston’s code of reform and jail discipline was decades ahead of its time. It prohibited abuse of prisoners and required that they be appropriately dressed and fed. It also stipulated training and conduct requirements for jail officials. Incorporating relatively basic psychological manipulation techniques on both the offender and the rest of the public who were to be deterred by his example, it also had a less palatable aspect. For the remainder of their lives, murderers, for instance, were to have no contact with people from the outside world other than official visitation and little contact with their fellow prisoners. Their cell walls were to be painted black, and an inscription was to be hung on the outside of the cells stating that the inhabitants were dead in all but body; their bodily existence was being prolonged solely so that they might remember their crimes and repent of them, and so that their trials could serve as an example to others (vol. 2, p. 573).
Livingston campaigned vehemently for the approval of his penal law in the assembly, but it was not approved and was never adopted. It was an odd development in the backward, slave-holding society of pre-Civil War Louisiana.
The Movement to Abolish The Death Penalty
As previously mentioned, a movement to abolish the death penalty arose and prospered on the national stage throughout the second part of the antebellum period. Beginning in New England and Pennsylvania, the movement swiftly expanded to other states and soon had a nationwide following. Eleven states had well-organized anti-capital-punishment societies by the 1840s, and in 1845, George Dallas, the vice president of the United States, became the first president of a nationwide society. In the vanguard of the movement were Quakers and others who opposed the death sentence on the basis of Christian humanitarianism, but also prominent were those who drew inspiration from the tradition of enlightened rationalism and utilitarianism. These opponents, many of whom were attorneys, frequently leaned on Edward Livingston’s penological beliefs in their arguments.
There was substantial overlap between the antislavery crusade and the death-penalty campaign, thus the term abolitionists was aptly used to the supporters. Wendell Phillips, for instance, was one of the Massachusetts society’s founders. The abolitionists were notably active in state legislative chambers. Typically, their tactic consisted of influencing legislative or outside consulting groups to investigate the efficacy and necessity of capital punishment. These investigations yielded various outcomes.
In 1836, Massachusetts Governor Edward Everett convened a committee led by Robert Rantoul, the prominent Jacksonian lawyer and promoter of codification, to examine if the death penalty might be repealed for all offenses save murder. The committee delivered a report that rapidly became a movement classic, combining utilitarian and biblical reasons in its call for abolition. The legislature did not accept Rantoul’s views, but in 1839 it did eliminate the death penalty for burglary and highway robbery (Act of April 8, 1839). Also in New York, there was legislative pressure for reform.
During the 1830s, the abolition of the death sentence was frequently debated on the floor of the New York Assembly and the subject of numerous committee investigations. On occasion, these deliberations resulted in dismal outcomes for opponents of the death penalty. Thus, in 1838, an assembly committee rejected the Livingstonian argument that jail was a more effective deterrent than the death penalty, arguing that since the majority of criminals were destitute, the promise of free shelter and food in prison would be favorably appealing to them.
In 1846, the Michigan legislature voted to abolish the death penalty for all offenses except treason (Mich. Rev. Stat. tit. 30, chs. 152–153, 658 (1846)). This was the movement’s most notable victory. Rhode Island and Wisconsin followed suit in 1852 and 1853, respectively. However, after these occurrences, the movement began to lose its momentum. By the eve of the Civil War, its influence on the public psyche had diminished significantly.
During the Progressive Era, the anti-death penalty movement saw a brief revival, and six states were persuaded to abolish the death sentence. However, the majority of these states reintroduced the death penalty within a few years of the repeal of the death penalty due to public pressure.
Criminal Law during The Postbellum Period
The second part of the nineteenth century was not characterized by significant substantive criminal law reform. During this period of industrialization and economic prosperity, American lawyers and legislators were generally busy with other problems. New York’s endeavor, led by David Dudley Field, to entirely restructure the state’s criminal code was, however, a significant exception to the pattern.
Field’s Reforms in New York State
David Dudley Field (1805–1894) was one of the towering characters of the nineteenth-century American bar, and by the time of the American Civil War, he had become the country’s foremost advocate for codification. His attempts for penal-law reform were a component of his greater codification endeavor. In 1846, a New York constitutional convention, convened in large part due to the effective lobbying of Field and other Jacksonian Democrats, passed a resolution requiring the New York assembly to codify all of the state’s laws in a written and systematic code. A groundbreaking code of civil process was drafted by Field and other members of a specially formed panel and adopted by the New York assembly prior to the Civil War (1849 N.Y. Laws, ch. 438), but the other codes were not to be finished until after the war.
In 1857, a new commission, of which Field was once again a member, was tasked with drafting a civil code, a political code, and a penal code. The bulk of the work on the last code, which was given to the New York legislature in 1865, was completed by Field’s two cocommissioners, Curtis Noyes and B. V. Abbot, who lacked professional or scholarly knowledge in criminal law. Nevertheless, Field played a limited role in the drafting, and as he was the driving force behind the entire New York codification endeavor, it is fitting that the penal code, along with all the other New York codes, has always carried his name.
First among the declared goals of the Field Penal Code’s authors was to consolidate the entirety of the state’s criminal law into a single document. The drafters observed that the state’s penal provisions were dispersed throughout the collected statutes and that many acts were criminal only by virtue of court decision; if deemed criminal by statute, they may be defined purely by reference to common law rulings. All of this, they claimed, infused New York’s criminal law with doubt. Second, the intent of the drafters was to correct flaws and mistakes in the current definitions of offenses. Finally, they desired to penalize actions that should have been criminal but were not (New York State Commissioners of the Code, pp. iii-vi).
It was a vast and audacious goal, and there appeared to be at least the potential for a thorough, critical reexamination of the fundamental concepts of American criminal law, a work that had not been addressed by anyone other than Livingston. In this regard, however, the commissioners’ final output was a deeply unsatisfactory paper. Field and his colleagues may have believed that their reform mission was accomplished when the disparate elements of the state’s penal code were brought together and a semblance of order was introduced to this assortment of statutes. There is no indication in the document of a desire to clarify or reformulate any of the confused or archaic common law concepts that formed the foundation of Anglo-American criminal law, or to simplify or consolidate the vast corpus of statutory crimes and regulatory offenses that had been added to the state’s criminal law since the Revolution. This “reformist” code did not significantly alter the existing quo.
The Field Code was successful in achieving its goal of incorporating all of the criminal law into a single volume. The provisions of the code included every occasion in which a criminal penalty was imposed for any action. No items were left outside, nor was any effort made to combine. Thus, there are separate, specific laws regarding “the refilling of mineral bottles” (section 417), “the failure to mark packages of hay” (section 449), and “the discharge of gas tar into public waters” (section 434). Each type of arson is regulated by a different provision ( 531–539), ranging from maliciously torching an inhabited building at night to torching an uninhabited building during the day. Separate clauses address willful mischief to railroads, public highways or bridges, toll houses or turnpikes, mile markers and guideposts, and telegraph wires ( 690–695). This is possibly the most absurd example of overspecification.
Despite these limitations, the Field Code proved to be immensely popular. It was ultimately established by the New York assembly in 1881 (1881 N.Y. Laws, ch. 676), adopted virtually in its whole by California and the Dakotas, and had a considerable impact on the criminal code of numerous other western states, including Arizona, Idaho, Montana, Oregon, Utah, and Wyoming.
Progressivism and Criminal Law
In the last decade of the nineteenth century and the first decades of the twentieth century, the middle and upper classes of American society were swept by a sophisticated, dynamic social reform movement known as Progressivism. Progressives were a diverse group with a diverse political and social agenda. But among their primary goals were the eradication of corruption in politics, the introduction of efficiency and scientific technique into the governmental process, the uplift of the disadvantaged, and the assimilation into the mainstream of American society of the record-breaking immigrant masses who were flooding into the country at the time. The entire Progressive program hinged on two essential tenets: belief in the perfectibility of man and implicit faith in the capacity of the state to foster individual happiness. The primary innovations in the treatment of criminal offenders—probation, parole, and the juvenile court—introduced or popularized during the Progressive Era may be viewed as embodiments of the Progressive spirit.
Probation, whose philosophy holds that at least some criminal offenders are more likely to be rehabilitated by being placed in the community under the supervision of a trained official than by being incarcerated, is an American invention that has its origins in the work of Boston shoemaker John Augustus in the 1840s and 1850s. With the approval of the courts, Augustus had for over two decades accepted into his care those convicted of (often minor) criminal acts with the intention of rehabilitating them. Augustus amassed an excellent record, but his arrangement with the Boston courts remained totally informal, and his example did not inspire imitation anywhere else. In 1878, Massachusetts passed a law permitting the mayor of Boston to appoint a paid probation officer, and in 1880, this authority was extended to all cities and towns in the state (Mass. Probation Act of 1880, 1880 Mass. Acts, ch. 129). Other states experimented with the concept of enacting similar reforms but refrained due to constitutional concerns with the program. In 1894, the New York Supreme Court ruled that a state law authorizing judges to suspend sentence, a necessary prerequisite to any system of probation, was not an unconstitutional infringement on the executive power of pardon (People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 368 (1894)). Twelve states established probation for juvenile offenders between 1900 and 1905; the number increased to twenty-three by 1911. By 1925, all 48 states had legalized the use of juvenile probation. During the Progressive Era, adult probation progressed at a considerably slower rate, but yet made continuous progress.
Probation stressed the specialized treatment of the offender by professionals: offenders were no longer viewed as bad and deserving of punishment, but as ill and in need of therapy. As such, it was consistent with the Progressives’ deeply held confidence in the scientific method’s capacity to educate everyone. The same applied to parole. In New York’s Elmira Reformatory, which began admitting juvenile offenders in 1877, parole and the other reform that typically accompanied it, the indeterminate sentence, were initially established. The reformatory was to hold its inmates for as long as was necessary to rehabilitate them, after which they were to be turned over to trained professionals for further noncustodial supervision or treatment in the community. In 1889, New York established a broad indeterminate sentencing statute (1889 N.Y. Laws, ch. 382, 74), and by 1891, eight additional states had enacted some sort of indeterminate-sentence or parole legislation.
The Juvenile Court
Of all the criminal justice reforms advocated by progressives, the juvenile court was the most symbolic. Child welfare was a primary emphasis of Progressive action, as Progressivism was a child-centric movement. Before the advent of juvenile court, jurisdictions frequently devised means of sparing juvenile offenders the full rigors of the legal system. However, as has been pointed out, what was lacking was the notion that a young person who violated the law should be treated from the outset “not as a criminal, but as a person in need of care, education, and protection” (Warner and Cabot, p. 600). During the 1890s, a broad range of enlightened professionals, including members of the bar and representatives of the burgeoning behavioral sciences, advocated for the separation of juvenile offenders from the adult criminal procedure and the implementation of a separate treatment system. Illinois was the first state to respond positively to these requests, establishing a juvenile court for Chicago in 1899. (1899 Ill. Laws, ch. 131). The act, which was prepared by a committee of the Chicago Bar Association, essentially constituted the court as an equity court with administrative powers. The aim was for the court to assume guardianship of wayward or neglected children when the circumstances warranted it in order to provide them with the same care, custody, and discipline that a good parent would provide for his or her own children. In conclusion, the court was to assume the role of parens patriae, which is not foreign to equity courts. The juvenile court was to work under relatively flexible, non-adversarial processes, with counsel’s role diminished, and its function was to be viewed as rehabilitative rather than punitive. The issue before the court would not be whether the juvenile defendant was guilty of a crime, but rather whether he was “delinquent” and hence in need of care and education from the state.
As a result of the passing of the Illinois Act, the juvenile court movement took on certain characteristics of a crusade. In other states, the reform’s proponents strongly advocated for its passage. In addition to theoretical considerations, they now had an actual experience to support their demands, and they found enthusiastic and willing friends among the professionals of the Chicago juvenile court. For instance, the court’s chief administrator, Timothy Hurley, published the monthly Juvenile Court Record, which documented the effectiveness of his institution and the advancement of the movement. The advocates found little to no pushback, and state after state hurried to adopt the Chicago model. Certain individuals did raise the question of whether the juvenile court’s loose, informal procedure and the enormous discretion of the juvenile magistrate effectively protected juveniles against arbitrary deprivation of liberty. These voices, however, were drowned out by the growing chorus of applause. By 1920, all states but three had established juvenile courts.
Twentieth-Century Developments in Criminal Law
In the 1920s, the focus changed from the improvement of strategies for individual offender rehabilitation to the management of criminal conduct as a whole. This was the time of the great national experiment of Prohibition, which led to an increase in all criminal activities. Citizens around the nation, but especially in large cities, grew increasingly angry at what they saw to be an alarming rise in crime and the criminal justice system’s apparent failure to combat it. Some alleged that the criminal element’s corruption of government officials was the main cause of the problem, and there were several examples of political corruption during the time period. Others felt that the criminal justice system was fundamentally flawed and in dire need of reform. Widespread calls for action were heard.
The Cleveland Survey
The city of Cleveland was the first to try a systematic solution to the problem. It had suffered from a rising crime rate for some years, and mistrust loomed over the municipal criminal justice system. In the spring of 1920, the top judge of the city’s municipal court was compelled to resign as a result of his cooperation in a heinous crime. A number of civic organizations, led by the Cleveland bar, convinced the Cleveland Foundation, a private philanthropic organization, to support a criminal justice survey in the city. A team of investigators led by Roscoe Pound, dean of the Harvard Law School at the time, and Felix Frankfurter, a professor of law at Harvard, was assembled. They delivered a lengthy report on Cleveland’s criminal justice system after two years of empirical observation and the collection of vast quantities of statistics. It was the most thorough, detailed, and accurate depiction ever generated of the issues of metropolitan law enforcement. From the police administration to the criminal courts and the city’s correctional facilities, every nook and crevice of the criminal justice system was examined. Even a section on law education in Cleveland and its influence on the criminal justice system was included.
The research identified numerous faults in the present criminal justice system and made recommendations for reform. However, these recommendations were not revolutionary but rather ameliorative. Instead of a drastic redesign of the existing system, the research suggested streamlining and modernizing its operation. The focus was on incorporating more efficiency into all parts of the criminal justice system. For instance, a great deal of space was devoted to describing how prosecution staffs and courts could handle the overwhelming number of criminal cases more efficiently and effectively. The report also highlighted the necessity for the complete professionalization of criminal justice personnel and the elevation of the criminal law practitioner’s status.
The Cleveland crime study inspired the development of crime commissions with comparable responsibilities in other municipalities. Georgia in 1924, Minnesota and Missouri in 1926, Memphis in 1928, and Illinois and New York State in 1929 all initiated their own investigations of the local police enforcement environment. In general, though, they were pale imitations of the original.
The Wickersham Commission
At this moment, the national government made the decision to intervene. In 1929, President Herbert Hoover selected United States Attorney General George Wickersham to lead the National Commission of Law Observance and Enforcement. The Wickersham Commission, as it came to be known, was initially tasked with examining issues of law enforcement under the Eighteenth Amendment, but it quickly enlarged its mandate to embrace the entire field of criminal justice. In the subsequent two years, it conducted a comprehensive examination into crime and law enforcement in the United States and issued fourteen volumes of reports covering all aspects of the process. In many ways, its results and suggestions matched those of the Cleveland survey, but it also broke significant new territory. Its report on police procedures, for instance, uncovered patterns of police mistreatment of suspects and emphasized the need to eradicate these practices. According to the committee, one full volume, The Causes of Crime, provided a sociological picture of criminal conduct and suggested techniques for combating the environment that nurtured crime.
The focus of the great crime surveys of the 1920s was almost entirely procedural, but Pound, the guiding spirit of the Cleveland survey, had repeatedly highlighted the enormous inconsistencies and anachronisms embedded in the American substantive law of crimes and emphasized how these stood in the way of constructing a truly modern and effective system of criminal justice. Additionally, the Wickersham Commission drew attention to the dismal and disorganized status of the federal substantive criminal law. In addition, researchers in criminal law, the behavioral sciences, and the embryonic subject of criminology have been attacking the theoretical foundations of the criminal law since the turn of the century and continuing throughout the 1920s. They questioned the scientific validity of such fundamental concepts as “criminal intent,” “deliberation,” and “premeditation,” as well as the utility of the nuanced and even odd definitional distinctions that had developed over the ages in the common law of crimes.
Certainly, a number of these critiques were tainted by a naive determinism; a few even went so far as to claim that science had completely undermined the concept of free will or was on the cusp of finding the biological and psychological kinds that invariably lead to criminal action. The majority, on the other hand, were significantly more nuanced and circumspect, and there is no denying that there were several flaws in the current criminal law, which was the argument made by everyone.
The Model Penal Code
The American Law Institute, a group of attorneys, judges, and legal experts, was established in 1923 to clarify and improve the law. Unhappiness with the condition of the criminal law was one of the key factors that led to its foundation, therefore it is not surprising that criminal law reform was a top priority from the beginning. Nonetheless, it was challenging to put this concern into action. The institute swiftly determined that the process of restatement that looked relevant in other areas of law was inapplicable to the law of crime. As the main theorist of criminal law, Herbert Wechsler, subsequently noted, “the need was less for a description and reaffirmation of existing law than for a guide to long-delayed reform” (1974, p. 421). In 1931, a proposal was made for a model penal code, but the scale of the project was so broad that it could not be funded during the Great Depression.
In 1950, a substantial donation from the Rockefeller Foundation brought the model penal code project back to life. The American Law Institute has created a committee of eminent experts in the subject of criminal law to serve in an advisory capacity. Wechsler was chosen the enterprise’s lead reporter, and Louis Schwartz, another famous specialist in the subject, was made the enterprise’s coreporter.
Wechsler made it plain early on in the project’s development that he and his colleagues were facing a monumental undertaking. According to Wechsler, American society began the twentieth century without ever having properly established “the law on which men placed their ultimate reliance for protection against the gravest harms that human conduct can inflict on individuals and institutions” (1974, p. 420). Instead, the penal law of the various states was a hopelessly disorganized and internally inconsistent mass of common and statute law, with the statutes often being more important in their gloss than in their text. This was less the result of deliberate, informed selection than of accident, chance, and unreflective imitation. According to Wechsler, American criminal law was a mixture of the old and the new that only history can explain (1955, p. 526).
Wechsler was the project’s guiding spirit from beginning to end, and he deserved the most of the credit for its successful completion. However, Wechsler did not act alone in the creation of the Model Penal Code. It was a collaborative endeavor that utilized the expertise of almost the whole academic criminal law establishment, a substantial number of judges, and a few practitioners. It was also a methodically and deliberately conducted endeavor. The drafting of the Code took ten years, from 1952 to 1962, and thirteen drafts were circulated for pubic discussion and criticism after debate in the project’s advisory committee and on the floor of the American Law Institute.
In 1962, the institute released its Proposed Official Draft of the Model Penal Code, the most significant effort since Livingston’s time to put the house of penal law in some sort of reasonable order. In reality, the Proposed Official Draft was, in many ways, an extremely Livingstonian text. This was most evident in its devotion to the assumption that the main objective of criminal law is the control of harmful behavior and to the view that clarity of concept and expression are vital to the accomplishment of this purpose. However, the draft was devoid of the intellectual arrogance and imperiousness that occasionally marred the work of Livingston and his mentor, Bentham. As befitting a product of the American intellect of the middle of the twentieth century, the draft was imbued with a spirit of pragmatism, albeit tempered by principles.
The Code consisted of four sections: general laws, definitions of individual offences, treatment and correction, and correctional organization. Each contained substantial advances relative to existing law. New standards of criminal responsibility were established in the Code’s general provisions in accordance with the premise that the sole goal of the criminal law is to prohibit culpable and destructive behavior, and the principle that flawless behavior should be exempt from punishment. In the domain of inchoate crimes, for instance, the law of attempt was amended to eliminate all doubts regarding factual impossibility and to place emphasis on the actor’s view of the circumstances surrounding the conduct of his act ( 5.01). In conspiracy, on the other hand, the conventional common law rule that held every conspirator accountable for every act that was reasonably foreseeable to be committed by another conspirator was rejected. Instead, the culpability of a co-conspirator was restricted to those crimes of the principal that the co-conspirator sought to aid or encourage ( 5.03). Similarly, the use of defensive force was deemed justified in circumstances of perceived, as opposed to actual, necessity ( 3.04) in the purpose of protecting flawless conduct. The defense of reasonable mistake of fact was upheld for offences such as bigamy ( 230.1). In addition, a limited ignorantia legis defense was made accessible to defendants who held good faith beliefs regarding the innocence of their behavior due to reliance on official opinion or the unavailability of the statute they were accused of breaching ( 2.02, 2.04).
Those provisions in the Code’s general portion that aimed to articulate a new definition of the mental element of crime were the most notable. The common law employed a bewildering array of phrases to describe the mental culpability (mens rea) that was required for a person to be guilty of a crime. In lieu of this plethora of phrases, the drafters of the Code substituted four modes of conduct with respect to the material ingredients of offenses: intentionally, knowingly, recklessly, and negligently. One of these modes must be present for criminal culpability to attach ( 2.02). The Code established a creative solution in the area of strict liability by defining such actions as violations punished solely by penalties, thereby enabling their possibility.
In addition to seeking to organize and rationalize the broad, underlying concepts of criminal culpability, the Model Penal Code introduced various modifications to the definitions of particular offenses. Perhaps the most significant accomplishment in this regard was the adoption of a uniform law of theft in place of the variety of common law offenses known as larceny, larceny by trick, false pretenses, and embezzlement. It also tried to increase the rationale and fairness of sentence for convicted criminals. It advocated a system of determinate sentencing that categorized all felonies into three penalty categories and all misdemeanors into two. Upper and lower limitations of sentences were established for each category, with the judge’s discretion permitted to determine the exact length ( 6.06, 6.08). Extended sentences were permitted for repeat offenders and career criminals ( 7.03, 7.04).
The American Law Institute never anticipated nor intended that its Model Penal Code would be accepted in its entirety anywhere nor would it result in the development of a uniform national penal code. The diverse political histories and demographics of the many states rendered this hope impossible. Rather, the institution hoped that the Code would inspire a comprehensive reevaluation of the criminal code in numerous jurisdictions and that its principles would be broadly applied. This expectation was not to be dashed for the institute. By 1980, thirty states had adopted new criminal codes, mostly as a result of the Model Penal Code, and another nine had either begun or finished code reforms pending approval. It is hardly an exaggeration to assert, as did Sanford Kadish, that the Model Penal Code had “permeated and transformed” American substantive law within three decades of the first circulation of Code drafts (p. 1144).
A last positive effect of the Model Penal Code is the impetus it gave to the effort to codify the federal criminal law for the first time in the truest sense of the word. In 1962, when the Proposed Official Draft of the Code was issued, federal criminal law was in a worse situation than that of the majority of states. Since the inception of the republic, it had developed in an unsystematic, fragmentary manner, and the earlier attempts to establish it on a more reasonable basis had not been very successful. In 1866, the U.S. Congress, disturbed by the unchecked growth of federal criminal law since 1800, appointed a commission to bring order to the chaos. The work of this panel resulted in the enactment of a set of updated statutes that, at the very least, reorganized federal penal provisions into some semblance of coherence (U.S. Congress). In 1897 and 1909, federal penal legislation underwent amendments and rearrangements (Appropriations Act of June 4, 1897, ch. 2, 30 Stat. 11; Act of March 4, 1909, ch. 321, 35 Stat. 1088 (codified in scattered portions of 18 U.S.C.)). After eight years of study by another panel, Congress enacted Title 18 of the United States Code in 1948, claiming it to be the first codification of federal criminal law. If it was a codification, it was of the Fieldian variety as opposed to the Benthamite-Livingstonian variety, and even that may be an exaggeration.
The National Commission on Reform of Federal Criminal Laws was established by Congress in 1966 to study the current state of federal criminal law and propose reforms. The measure was conducted in part to please an anxious public that demanded Congress do something about rapidly rising crime rates, but it was also driven by a genuine desire to reform and enhance the legislation. Congress made it abundantly clear that it desired a comprehensive reevaluation of federal criminal law, and its directive was followed. Eventually, the commission presented a comprehensive rewrite of the federal substantive law of crimes, and numerous legislation were immediately introduced for its enactment in some form.
Due in part to the efforts of Wechsler and his colleagues, the middle decades of the 20th century witnessed a general resurgence of interest in the field of criminal justice, as well as significant efforts to change the criminal code. The future will determine whether this marked the reversal of previous patterns of inattention and the beginning of a new, long-term trend, or whether it was only a brief infatuation with the topic.
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