Supplementary texts

HISTORY OF AMERICAN CRIMINAL LAW (FROM THE BEGINNING TILL THE NINETEENTH CENTURY)

The earliest criminal codes mirrored the nasty life of pioneer settlements. Criminal justice in the colonies was on the whole less formal and more direct than English law; though here too, as time went on, there was a certain amount of conformity to the English practice. There was a simple penal philosophy: no one should be punished for crimes not clearly and openly labeled. In a just society, the rules of the criminal law had to be written down and known to one and all.

Punishment was open and public: whipping in the town square, the pillory and the stocks. Public opinion and the shame were important instruments of punishment. For community punishment to work, it had to be visible and public; and punishment often left physical marks on the condemned. So, burglars, for the first offense, were to be branded on the forehead with the letter B, for the second offense, whipped in public and only for the third offense were to be put to death, as being incorrigible.

Neither in theory nor in practice was the colonial law very bloodthirsty. There were fewer capital crimes on the books than in England. In England death was a possible punishment for many thieves; in Massachusetts, only for repeaters. The Quaker laws of New Jersey substituted restitution of property or hard labor for hanging. The death penalty was not carried out very frequently in the colonies.

A crime is, in theory, a public wrong: a wrong against some victim, to be sure, but also something that hurts society – which is why society takes over the job of punishing it. This was the case, at any rate in the colonies. In England, there was no such thing as a district attorney – no public prosecutor. People were supposed to do their own prosecuting – and pay for it themselves. Very early this system was rejected in the colonies; crime was too serious and important business to leave to individuals.

The late eighteenth century was a period in which the intellectuals began to rethink the premises on which criminal law rested. Great reformers – like Cesare Beccaria – suggested that at least some of the premises were wrong and argued for a more enlightened criminal law. Reform ideas left an imprint on the early state constitutions. Section 38 of the liberal Pennsylvania Constitution of 1776 imposed on the future legislature a duty to reform the penal laws. Punishment must be made in some cases less sanguinary and in general more proportionate to the crimes.

Of course, real penal reform was never easy to achieve. The legislature of Pennsylvania did not match action to words for ten full years. In 1786, the death penalty was abolished for robbery, burglary and sodomy. In 1794 Pennsylvania enacted an important, innovative law about murder. The statute stated that the several offenses, which are included under the general denomination of murder, differ greatly from each other in the degree of their atrociousness. The statute then proceeded to distinguish between 2 different degrees of murder. Murder in the first degree was murder of poison or by any other kind of willful, deliberate or premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary. All other murder was murder in the second degree. Only murder in the first degree was punishable by death.

A system of criminal justice is more than rules on paper. As a working system, it had to distribute power among judges, jurors, legislators. In American legal theory, the jury had enormous power, and was subject to very few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. It is not entirely clear what this meant – except as an expression of almost unlimited power. By the end of the period, many states, by statute or decision, had repudiated the doctrine.

The criminal justice was, on the whole, much less professional than it is today. Almost nobody involved in criminal justice was a full-time specialist. There were no detectives, probation officers, public defenders, or forensic scientists; even the district attorney worked at his job part-time. The jurors were of course total amateurs. In 1800 or 1870 no part of the system was particularly organized or bureaucratic. This even applied to what happened after conviction; the only way to get out of prison early was to appeal to the governor for a pardon. The governor in some states pardoned with a lavish hand. In any event, nothing formally guided his decisions.

Today the system is highly professionalized; this means, among other things, that the police and prosecutors can filter out the weakest cases, and toss them aside early in the process.