CRIMINAL LAW REFORM: HISTORICAL DEVELOPMENT IN THE UNITED STATES

Introduction

It is an incontrovertible fact that the law of crimes has historically suffered from a kind of malign neglect in America. In other branches of the law, from the beginning there has been a tradition of willingness, if not eagerness, on the part of judges, legislators, and legal commentators to examine basic premises and to promote doctrinal change if they thought society required it. But the dominant attitude of the American legal profession toward the penal law seems in general to have been that if it needed improvement, it would somehow improve itself. It is not surprising, therefore, that the criminal law long remained one of the least developed, most confused, and, in a sense, most primitive bodies of American law.

There are, to be sure, several significant exceptions to this general rule of neglect. From time to time in American history there have been bursts of interest in criminal jurisprudence, and reformers have arisen who have sought in one way or another to humanize the criminal law, to modernize it, or perhaps only to introduce a measure of clarity into it. These efforts have varied enormously in inspiration, in scope, and in caliber, and they have had varying impacts on the course of legal developments. But they have all represented a recognition of the crucial importance of the law of crimes and a readiness to come to grips with at least some of its inherent problems. As such, they stand out as bright landmarks in what is otherwise a rather gray landscape.

This article surveys the checkered history of criminal law reform in America. The principal emphasis is on the substantive penal law, by which is meant also the law governing the treatment of criminal offenders. However, there are some observations as well on attempts that have been made to reform criminal procedure and the administration of justice.

The colonial period

The New England colonies. It is appropriate to begin a discussion of the history of criminal law reform with the colonial period since that era witnessed the first efforts at improvement. All of the American colonies drew principally on the jurisprudence and laws of the mother country in fashioning their criminal law. Obviously, small bands of colonial settlers, few of them with any legal training, do not fabricate criminal codes out of nothing, but from the beginning, the colonists displayed a willingness to experiment with alterations in the English inheritance if their own values seemed to call for them. In the very first body of laws promulgated in British North America, the Plymouth Code of 1636, a notable divergence from the English model in the punishment of serious crimes was already apparent. Although the list of capital offenses in England was long and comprehended almost all serious misdeeds, the death penalty in Plymouth was limited to treason, murder, arson, and several morals offenses. One should not attach too much importance to this document, since it was a rudimentary code of laws in many respects and Plymouth was a tiny settlement that was destined soon to fade into insignificance. Still, its modifications in the criminal law signaled a trend that was later to be followed by other colonies.

A much more sophisticated document than the Plymouth Code, The Laws and Liberties of Massachusetts (1648), embodied in addition major changes in the common and statutory criminal law of the mother country. It, too, reduced the number of capital offenses, and in general prescribed more lenient penalties for noncapital offenses than did English law. Its general prohibition against "cruel and barbarous" punishments was itself an innovation. The inspiration for the whole code came as much from the Old Testament as from the English common law. Deuteronomy and other parts of the Pentateuch were repeatedly cited in justification of penal provisions, and this reliance on the Bible had the net effect of making the code less sanguinary than it might have been. Only those offenses for which Scripture clearly prescribed death were made capital offenses. The code included several significant improvements in criminal procedure as well. Conviction of a capital crime required the testimony of two witnesses (this requirement, too, was rooted in Scripture), and appeal was a matter of right in all capital cases.

Besides the inspiration of Scripture, The Laws and Liberties of Massachusetts was pervaded by a spirit of rationality and a healthy distaste for the many accidental features of English criminal jurisprudence. The device of benefit of clergy, for example, was perceived—accurately—as a result of historical accident, having no foundation in Scripture or reason, and as such was excluded from the code.

The significance of these New England criminal codes, especially that of Massachusetts Bay, lies as much in the fact that they were codes as it does in the modifications which they made in individual provisions of English penal law. Underlying the codes was the strong belief that the criminal law of a community was too important to be allowed to grow up piecemeal, as, in the opinion of many of these Puritan settlers, had been the case with the English common law. Rather, it was something that ought to be crafted systematically and with deliberation to reflect the deepest moral sense of the community and to further the social purposes for which the community existed This insight was unfortunately lost sight of in later years.

The Pennsylvania experiment. Although the criminal law of the American colonies was in general less sanguinary than that of the mother country, it was certainly no less retributive, and was very harsh by any modern standards. Crime and sin were virtually identical in the colonial mind. The criminal was seen as a free moral agent, and punishment was justified as a kind of social revenge or a species of divinely ordained, if humanly implemented, retribution. Schedules of punishments were little more than crude attempts to proportion the penalty to the sinfulness of the offense, and virtually no attention was paid to the individual circumstances of the offender. Exhibiting a very different spirit, however, were the penal laws enacted by Pennsylvania colony in the closing decades of the seventeenth century. There, between 1682 and 1718, a most remarkable experiment in criminal law reform was undertaken under the aegis of William Penn and other Quaker notables. Although it came to an unhappy end, it planted seeds that were later to bear fruit.

One year after it was established by William Penn under a royal charter, Pennsylvania enacted a complete code of criminal laws—part of a larger codification known as the Great Law of 1682—that was quite unlike anything that had gone before it. The Quaker founders of the colony were opposed in principle to cruelty, to gratuitous bloodshed, and, barring the most unusual conditions, to the taking of human life. They were repelled by the existing English system of penal sanctions and felt compelled to look for alternatives. The alternative they found was the prison. In their code, imprisonment at hard labor or imprisonment coupled with a fine was the prescribed penalty for all crimes save willful and premeditated murder, the length of imprisonment varying according to the offense and the circumstances surrounding its commission. The terms of confinement were in general not severe. Thus, burglary was punishable by three months' imprisonment and quadruple restitution to the victim. Arson merited a year at hard labor and corporal punishment (usually whipping) according to the discretion of the court. Assault on a magistrate was punishable by a month's confinement. Common assault and battery, as well as manslaughter, were to be punished according to the nature and circumstances of the acts in question. In contrast to the rather mild sanctions accruing to these crimes, sex offenses were sternly dealt with in the Quaker code. Bigamy, for example, was punishable by life imprisonment upon first commission, and rape, upon second conviction.

Another remarkable feature of the Pennsylvania code was its approach to religious offenses—a popular category of offense in the criminal law of most jurisdictions. These kinds of crimes were completely abolished, and full freedom of conscience was assured to all inhabitants.

The Pennsylvania code of 1682 represented Quaker criminal jurisprudence at its purest. In the next three decades the colony's criminal law was modified by a series of legislative enactments and became somewhat severer. More offenses were made punishable by imprisonment, prison terms became longer, and harsh corporal punishments such as branding were introduced for certain crimes. Yet even after these alterations, Pennsylvania's criminal law remained a model of enlightenment and humanity in comparison with that of its neighbors. In 1718, however, the Quaker experiment came to an abrupt end. The colony had for some time been pressing the Crown to allow Quakers to testify on affirmation rather than on oath, and the Crown had been seeking to bring the colony's criminal law into closer conformity with that of the mother country. A bargain was struck under which Quakers received recognition for affirmation in exchange for the colony's agreement to substitute the English criminal law for its own.

The Revolution and its aftermath

The American Revolution stimulated several forays in the direction of criminal law reform, all of them interesting for the new attitudes toward punishment that they revealed, although only one produced any long-term results. In the aftermath of the break with Great Britain, the newly independent colonies all faced the question of how much of the mother country's law they wished to retain. Some patriots urged that American criminal law was in particular need of change. Its harsh provisions, they argued, reflected a British rather than an American ethos. These arguments struck a responsive chord in certain state capitals. In New Hampshire, the first state constitution (promulgated in 1784) exhorted the legislature to do something about the sanguinary penal laws with which the state was saddled. It opined that it was not wise to affix the same punishment to crimes as diverse as forgery and murder, "the true design of all punishments being to reform, not to exterminate, mankind" (art. 1, § 18). Regrettably, the legislature refused to respond to the invitation and the state's penal law changed in no significant respect. There were parallel developments in Virginia.

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 a view to bringing the state's laws into greater harmony with the spirit of republicanism. The committee that was entrusted with the task of revision included George Mason and Thomas Jefferson. As part of the revision effort, Jefferson prepared a draft of a bill for a new system of criminal sanctions. This draft was the product of an exhaustive survey of theoretical writings on punishment and on the history of the treatment of criminal offenders from ancient to modern times. The footnoted version of the bill that appears in Jefferson's papers includes citations, in the original language, from the laws of the Anglo-Saxons. It is widely regarded as a model of literary draftsmanship (Boyd, p. 594).

Among the theorists Jefferson read, none had so great an impact on him as the great Italian criminologist Cesare Beccaria, whose essay On Crimes and Punishments (1764) was stimulating lively discussion in educated colonial circles. Beccaria urged a thoroughly utilitarian approach to the criminal law, and the influence of his ideals permeated the whole of Jefferson's penology. Jefferson's guiding principles were: (1) that the only goal of the penal law was the deterrence of crime; (2) that sanguinary laws were self-defeating because men recoiled at the idea of enforcing them to the full and thus left many crimes unpunished; (3) that if punishments were proportioned to the crime, men would be more likely to see that the laws were observed; and (4) that the reform of criminals was an object worthy of the law's promotion. Finally, Jefferson's criminal jurisprudence reflected a fascination for the theory of analogical punishments, which stated that punishments ought to be symbolic reflections of the offenses to which they were affixed, so that crimes and their consequences would be inextricably linked in the minds of citizens. This curious theory had first been suggested by Beccaria and had an enormous impact on the course of penological thought in the late eighteenth and early nineteenth centuries.

These principles combined to produce a proposed system of punishments that in general was mild and enlightened but that was marred by some rather bizarre features. Jefferson cut drastically the long catalogue of offenses punishable by death under the prevailing law, limiting them to treason and murder, and prescribed much milder sanctions for most of these traditionally capital crimes. But the penalties designated for some offenses had, because of what might almost be called an obsession with analogy and proportionality, a somewhat ghoulish hue. Thus, the punishment for treason was burial alive. Murder by poison was punished by poisoning, rape by castration, and mayhem by maiming the offender. Jefferson's proposals were seriously debated in the Virginia legislature but eventually were defeated.

Pennsylvania and the degrees of murder. The first state in which the new advocates of penal law reform were able to translate theory into reality was Pennsylvania, which had earlier experimented with large-scale changes in its penal regime. The ground may have been rendered even more fertile by the fact that during the Revolution many Pennsylvania political offices fell into the hands of a coalition of populist farmers and Philadelphia radicals. In any event, in 1776 the state approved a constitution that included provisions concerning the reform of the criminal law very similar to those later included in the New Hampshire Constitution of 1784. (New Hampshire may well have taken some of its language from the Pennsylvania document.) The difference was that Pennsylvania commanded, rather than exhorted, its legislature to reform the penal laws of the state and to make punishments more proportional to crimes. Echoing a favorite theme of the new generation of reformers, the constitution also articulated the view that crime was more effectively deterred by visible punishments of long duration—that is, by imprisonment—than by intense, bloody, but brief sanctions (Pa. Const. of 1776, §§ 38–39).

The first step toward the reform of the penal law was taken by the Pennsylvania legislature ten years later, when it eliminated the death penalty for robbery, burglary, and sodomy (Act of Sept. 15, 1786). In 1791 a statute was passed abolishing capital punishment for witchcraft and ending the barbarous practice of branding for adultery and fornication (Act of Sept. 23, 1791, §§ 5, 8). Notwithstanding these developments, there were signs in the early 1790s that the momentum that had been generated during the Revolution in favor of fundamental and wide-scale reform of the criminal law was beginning to slow down. For example, a new Pennsylvania constitution, promulgated in 1790, failed even to mention the subject. Perhaps with this in mind, a number of very eminent Pennsylvanians began now to speak out publicly and vigorously on behalf of the reformist cause.

In 1790, James Wilson, the first professor of law at the University of Pennsylvania, a signer of the Declaration of Independence, and a codrafter of the United States Constitution, delivered a series of lectures in Philadelphia on crime and punishment. Citing with approval the views of Beccaria and that other great eighteenth-century legal theorist, Montesquieu, Wilson argued forcefully that prevention was the sole end of punishment and that anything more severe than the minimum punishment necessary to deter crime ill became a civilized nation. In 1792, Benjamin Rush, professor of medicine at the same university, published a widely disseminated essay entitled "Considerations on the Injustice and Impolicy of Punishing Murder by Death," in which he argued that capital punishment was "contrary to reason and to the order and happiness of society." That same year, William Bradford, justice of the Pennsylvania Supreme Court, entered the fray. In a report on the death penalty as a deterrent to crime, prepared at the instance of Governor Thomas Mufflin, Bradford argued that the supreme penalty was totally unnecessary and adduced statistics to show that the penalty of imprisonment, provided by the act of 1786, had proved just as effective in deterring burglary, robbery, and sodomy as had the earlier punishment of death.

Governor Mufflin, taking his cue from Bradford's memorandum, proposed to the Pennsylvania legislature that further mitigations in the penal regime seemed warranted and urged it to consider implementing additional reforms. The legislature's response was ambivalent. It was quite unwilling to go the full distance down the path that Bradford, Wilson, and others were urging it to go, but it did agree that the punishment of death ought to be inflicted only when it was absolutely necessary to ensure the public safety. In light of this philosophy, it prepared a bill that for the first time in Anglo-American legal history divided the crime of murder into two degrees. The first degree, punishable by death, referred to homicides perpetrated by lying in wait or by poison, or to any other kind of willful, deliberate, and premeditated killing. (There were echoes here of the act of 1682.) All other kinds of murder were classified as murder in the second degree, punishable by imprisonment at hard labor or in solitary confinement or both for a term not to exceed twenty-one years. This bill was duly passed by the legislature in 1794 with the addition of felony murder to the category of the first degree (Act of April 22, 1794, § 2).

The division of murder into two degrees proved to be Pennsylvania's most lasting contribution to the general criminal jurisprudence of the United States. In 1796, Virginia enacted a similar law, to be followed in 1824 by Ohio, in 1835 by Missouri, in 1846 by Michigan, and eventually by the vast majority of American jurisdictions.

The antebellum period

The passage of the statute on the degrees of murder took much of the wind out of the sails of the Pennsylvania movement for the complete abolition of capital punishment. The movement remained quiescent for several decades but was to revive again in the 1820s as part of a larger anticapital-punishment crusade that flourished on the national scene roughly between 1820 and 1850. This discussion will be resumed below, but attention must now be shifted to the state of Louisiana and to the work of the most fertile and imaginative of all nineteenth-century penal law reformers, Edward Livingston.

Livingston. Edward Livingston (1764–1836), born in New York State, had a distinguished political career before turning to the work of criminal law reform. He served as a member of the House of Representatives, as United States attorney, and finally as mayor of New York City. Livingston left New York in 1804 and moved to New Orleans, where he opened a law practice and quickly became involved in Louisiana politics. At the same time he continued to cultivate a long-standing interest in jurisprudence and the reform of the law.

In 1820, Livingston was elected to the Louisiana legislature and in the same year was instrumental in the passing of an act that authorized the preparation of a code of criminal law "founded on one principle, viz., the prevention of crime" (Livingston, vol. 1, pp. 1–2). The following year, he was appointed to direct the effort.

Livingston read all the available materials on criminal jurisprudence and conducted a wide correspondence with jurists and legal practitioners in other states and abroad in order to draw on their ideas and experience. In 1826, he finally laid before the General Assembly of the state of Louisiana a finished product.

The Livingston Code consisted of four separate parts: a code of crimes and punishments, a code of procedure, a code of evidence, and a code of reform and prison discipline. Each code was accompanied by an introductory report that described its background and explained its underlying philosophy. There were in addition two lengthy reports in which Livingston set forth his general views on criminal jurisprudence. In one of them he made it clear that he thought his code to be the first real attempt, at least in the Anglo-American world, to place the criminal law on a sound, scientific basis. He compared the previous criminal law to pieces of fretwork, the product of caprice, fear, and carelessness, which by reason of cruel or disproportionate punishment and inconsistent provisions endangered the lives and liberties of the people (Livingston, vol. 1, p. 11).

The theorist to whom Livingston owed his greatest intellectual debt—one he freely acknowledged—was the English utilitarian philosopher Jeremy Bentham, and the whole structure of the code rests solidly on Benthamite principles. There is first a commitment to the principle that the content of the laws should be fully accessible to all educated citizens. "Penal laws should be written in plain language, clearly and unequivocally expressed, that they may neither be misunderstood nor perverted," Livingston wrote (vol. 1, p. 5). It is remarkable how little of that technical jargon of which lawyers are so fond appears in the code. It is one of the few pieces of legislation of which it can truly be said that it is a delight to read.

Consistent with Benthamite philosophy, the code is also permeated with a deep distrust of judges and a thorough aversion to any species of judicial lawmaking. The code of crimes and punishments forbade the punishment of any acts not expressly made criminal by statute, and judges were forbidden to punish anything not made criminal by the letter of the law under the pretense that the act in question came within the law's spirit (vol. 2, p. 15). Livingston wished to leave no room for judges to infuse their own moral beliefs into the penal law.

Finally, again in the interest of the involvement of the ordinary citizen in the law's process, the code sought to make transparent the rationale for its specific provisions. Thus, individual prohibitions on types of conduct were often accompanied by illustrations and by explanations why they had been included. It was Livingston's view that if people saw that the laws were rational and were framed on the great principle of utility, they would be more disposed to obey them.

Livingston's code in general represented a major consolidation and clarification of the existing penal laws and the pruning away of much of its weedlike overgrowth; he believed firmly that there were too many crimes and that the criminal sanction was most unwisely used when the civil sanction would suffice. In addition, however, many particular substantive provisions of the code were quite innovative. This was especially true in the areas of civil liberties and of privacy. To open a letter addressed to another was made criminal (vol. 2, p. 166), and it was a misdemeanor to interfere with the exercise of anyone's right of free speech or free assembly (vol. 2, p. 69). Homosexuality was removed from the list of criminal offenses on the grounds that to describe such offenses in a code was potentially corrupting to youthful readers and, further, that making sexual deviance criminal was an invitation to blackmail (vol. 1, p. 27).

Of all the innovations in Livingston's code, the most striking was the abolition of the death penalty (vol. 1, pp. 185–224). Livingston devoted a large part of his "Introductory Report to the Code of Crimes and Punishments" to a defense of this proposal. His chief argument was that the state was justified in taking life only if it could demonstrate that this was absolutely necessary. But, he averred, it could be shown by logic and by experience that lesser penalties would suffice for the prevention of great crimes. He also pointed to the corrupting effect that public executions had on social morals, to the not infrequent instances of courts incorrectly convicting defendants, and to the impossibility of remedying these errors under a system that allowed capital punishment. In a part of his discussion that has been relatively unnoticed by commentators, Livingston also argued that capital punishment was insufficient for the deterrence of serious offenses. The fear of death was simply not enough to offset in the minds of potential offenders the powerful passions that drove them to commit their crimes. The rapacious spendthrift, he suggested, might risk the momentary, if intense, pain of death to promote his interest in a life of idleness and debauchery, whereas the prospect of a life spent under a hard prison regime might be sufficient to cool his thievish instincts (vol. 1, pp. 37–40).

The system that Livingston wished to introduce for the treatment of social deviance had never been proposed before. He recognized that conditions of poverty and idleness led to crime, and so his code of reform and prison discipline provided for a house of refuge, which would give employment to those who could not find work, and a house of industry for those who refused to work in the house of refuge. The latter institution would also offer employment to recently discharged convicts. For the treatment of genuinely criminal offenses he offered an exquisitely gradated schedule of penalties, ranging from fines to imprisonment. The conditions of imprisonment were themselves graded according to the nature of the offense. The purpose of imprisonment was both to rehabilitate the offender and to deter crime by means of example.

Livingston's code of reform and prison discipline was in most respects far in advance of its time. It forbade any mistreatment of inmates and prescribed that they be adequately clothed and fed. It also prescribed strict standards of training and behavior for prison personnel. But it had its less pleasing side as well, incorporating as it did rather crude techniques of psychological manipulation, both of the offender and of the members of the public who were to be deterred by his example. Murderers, for example, were for the remainder of their lives to have no contact with persons from the outside world other than official visitors, and little contact with their fellow prisoners. Their cell walls were to be painted black, and on the outside of the cells an inscription was to be hung affirming that the inhabitants were dead in all but body; their bodily existence was being prolonged solely in order that they might remember their crimes and repent of them, and in order that their tribulations might serve as an example to others (vol. 2, p. 573).

Livingston argued passionately in the legislature for the adoption of his penal law, but it was not to the liking of that body and was never enacted. It was, in retrospect, an odd growth in the regressive, slave-holding society that was antebellum Louisiana.

The movement to abolish the death penalty. As noted earlier, a movement to abolish capital punishment came to life and flourished on the national scene in the second half of the antebellum period. Beginning in New England and in Pennsylvania, it spread quickly to other states and soon comprised a national constituency. By the 1840s there were well-organized anti-capitalpunishment societies in eleven states, and in 1845 a national society was launched with George Dallas, the vice-president of the United States, as its first president. Quakers and others who opposed the death penalty on grounds of Christian humanitarianism were in the forefront of the movement, but also prominent were those who took their inspiration from the tradition of enlightened rationalism and utilitarianism. These opponents, many of them lawyers, often drew on the penological theories of Edward Livingston in making their arguments.

The advocates were called abolitionists—a well-chosen word, for there was significant overlap between the antislavery crusade and the death-penalty movement. Wendell Phillips, for example, was one of the founders of the Massachusetts society. The abolitionists were especially active on the floors of state legislatures. Their strategy was usually to engineer inquiries by legislative or outside consultative committees into the efficacy and necessity of capital punishment. These inquiries led to varying results.

In 1836, Governor Edward Everett of Massachusetts appointed a committee headed by Robert Rantoul, the great Jacksonian lawyer and advocate of codification, to look into the question of whether capital punishment might be eliminated for all crimes save murder. The committee issued a report that quickly became a classic in the movement, intermixing utilitarian arguments with appeals to Scripture in calling for abolition. Rantoul did not persuade the legislature to adopt his views, but in 1839 the body did abolish the death penalty for burglary and highway robbery (Act of April 8, 1839). In New York, too, there was legislative agitation for reform.

Abolition of the death penalty repeatedly came up for debate on the floor of the New York Assembly during the 1830s and was the subject of several committee inquiries during that decade. Occasionally the results of these deliberations proved disappointing to the antagonists of capital punishment. Thus, in 1838 an assembly committee rejected the Livingstonian argument that prison was a more effective deterrent than death, contending instead that since most criminals were paupers, the prospect of free lodging and board in prison would be positively attractive to them.

The most signal success of the anti-capitalpunishment movement occurred in 1846, when the Michigan legislature voted to abandon the death penalty for all crimes except treason (Mich. Rev. Stat. tit. 30, chs. 152–153, 658 (1846)). Rhode Island followed suit in 1852, and Wisconsin, in 1853. The movement crested with these events, however, and then began to lose vigor. By the eve of the Civil War it had ceased to have much impact on the national consciousness.

Much later, during the Progressive Era, the anti-capital-punishment movement enjoyed a brief renascence, and a half-dozen states were persuaded to abolish the death penalty. Some of these triumphs were short-lived, however, as popular pressure forced most of these states to reintroduce the death penalty within a few years of abolition.

The postbellum period

The second half of the nineteenth century was not marked by any great ferment in the field of substantive penal law reform. American lawyers and legislators were by and large preoccupied with other matters during this era of industrialization and commercial expansion. One notable exception to the rule, however, was the effort mounted in New York and presided over by David Dudley Field to completely reshape the state's criminal law.

Field's reforms in New York State. David Dudley Field (1805–1894) was one of the towering figures of the nineteenth-century American bar, and by the Civil War he had become the leading advocate of codification in the United States. His efforts on behalf of penal-law reform were part of his larger codification project. In 1846 a New York constitutional convention, convoked in large measure because of successful lobbying by Field and other Jacksonian Democrats, passed a resolution directing the New York legislature to reduce into a written and systematic code the whole body of the state's laws. A path-breaking code of civil procedure was prepared by Field and other members of a specially appointed commission and enacted by the New York legislature before the Civil War (1849 N.Y. Laws, ch. 438), but work on the other codes was not to be completed until after the war.

In 1857 a new commission, with Field again a member, was established and given the responsibility of preparing a civil code, a political code, and a penal code. Field played a predominant role in drafting the first two documents, but he had no professional or scholarly expertise in the criminal law, and the bulk of the work on the last code, which was presented to the New York legislature in 1865, was done by Field's two cocommissioners, Curtis Noyes and B. V. Abbot. Nonetheless, Field participated in the drafting to a limited extent, and, inasmuch as he was the guiding spirit behind the whole New York codification effort, it is fitting that the penal code, like all the other New York codes, has always borne his name.

The stated objectives of the drafters of the Field Penal Code were, first, to bring within the compass of a single volume the whole body of the state's criminal law. The drafters noted that the state's penal provisions were scattered helterskelter through the collected statutes and that many acts were criminal by virtue of judicial decision only; if made criminal by statute, they could be defined solely by recourse to common law decisions. All this, they said, caused uncertainty to pervade New York's criminal jurisprudence. Second, the drafters intended to rectify deficiencies and correct errors in existing definitions of crimes. Third, they aimed to eliminate inequalities and disparities in punishments, and finally, they wished to criminalize acts that should be criminal but were not (New York State Commissioners of the Code, pp. iii–vi).

It was a comprehensive and bold agenda, and there seemed instinct in it at least the possibility of a searching, critical reexamination of the fundamental principles of American criminal jurisprudence, a task that had not been undertaken by anyone save Livingston. But the finished product that the commissioners delivered was in this respect a profoundly disappointing document. Field and his colleagues seem to have felt that their reform agenda was completed when the scattered parts of the state's penal law had been pulled together and a semblance of order introduced into this collection of provisions. Nowhere in the document is there any evidence of a desire to clarify or reformulate any of the confused or archaic common law concepts that lay at the base of Anglo-American criminal law, or to simplify or consolidate the enormous corpus of statutory crimes and regulatory offenses that had been added to the state's criminal law since the Revolution. This "reformist" code thus left the status quo quite unaltered.

What the Field Code did achieve in full was its objective of bringing all of the criminal law within the compass of a single volume. Every instance in which criminal penalties were imposed for any action was included in the code's provisions. Nothing was left outside, nor was there any attempt to consolidate. Thus there are separate, specific provisions on "the refilling of mineral bottles" (§ 417), on "omitting to mark packages of hay" (§ 449), and on "throwing gas tar into public waters" (§ 434). Four kinds of arson are described, ranging from maliciously burning an inhabited building at night to burning an uninhabited building in the daytime—each covered by a separate provision (§§ 531–539). In perhaps the most ludicrous example of overspecificity, separate provisions cover, respectively, malicious mischief to railroads, to public highways or bridges, to toll houses or turnpikes, to mile markers and guideposts, and to telegraph lines (§§ 690–695).

Notwithstanding these limitations, the Field Code proved extremely popular. It was eventually enacted by the New York legislature in 1881 (1881 N.Y. Laws, ch. 676), it was adopted almost in its entirety by California and the Dakotas, and it had significant influence on the penal law of several other western states, including Arizona, Idaho, Montana, Oregon, Utah, and Wyoming.

Progressivism and its fruits

In the last decade of the nineteenth century and the first decades of the twentieth, a dynamic, complex social reform movement known as Progressivism swept through the middle and upper sectors of American society. The Progressives were a varied lot, and they had a varied political and social agenda. But among their chief aims were the elimination of corruption from politics, the introduction of efficiency and scientific technique into the governmental process, the uplifting of the underprivileged, and the assimilation into society's mainstream of the immigrant masses who were then pouring into the United States in record numbers. The whole Progressive program rested solidly on two fundamental principles: faith in the perfectibility of man, and implicit trust in the state's ability to promote individual well-being. The major reforms in the treatment of criminal offenders—probation, parole, and the juvenile court—that were either introduced or came into vogue during this era may be seen as manifestations of the Progressive spirit.

Probation. Probation, whose philosophy is 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 and has its origins in the work done in Boston in the 1840s and 1850s by the shoemaker John Augustus. With the permission of the courts, Augustus had for almost two decades taken into his care persons convicted of (usually minor) criminal offenses, with a view to rehabilitating them. Augustus accumulated a rather impressive record, but his arrangement with the Boston courts remained entirely informal, and his example inspired no imitators elsewhere. The modern system of probation dates in actuality from 1878, when Massachusetts enacted a statute authorizing 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 toyed with the idea of introducing similar reforms but hesitated because of doubts about the constitutional propriety of the scheme. For many, this cloud was removed in 1894 when the highest court of New York 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. 386 (1894)). Between 1900 and 1905, twelve states adopted probation for juvenile offenders; the number grew to twenty-three by 1911. By 1925, all forty-eight states permitted the probation of juveniles. Adult probation proceeded at a somewhat slower pace, but it too made steady strides during the Progressive Era.

Parole. Probation emphasized the individualized treatment of the malefactor by professionals: criminals were now seen as ill and in need of therapy, rather than as evil and deserving of retribution. As such, it was in harmony with the deep-seated Progressive belief in the educability of all through the use of scientific method. The same was true of parole. Parole and the other reform with which it usually went hand in hand—the indeterminate sentence—were first implemented in New York's Elmira Reformatory, which began admitting youthful offenders in 1877. The reformatory was to detain its inmates so long as was necessary to rehabilitate them, and then was to turn them over to trained professionals for further noncustodial supervision or treatment in the outside world. New York passed a general indeterminate sentencing law in 1889 (1889 N.Y. Laws, ch. 382, § 74), and by 1891 eight other states had enacted some form of indeterminate-sentence or parole legislation.

The juvenile court. Of all the criminal justice reforms promoted by progressives, the most emblematic was the juvenile court. Progressivism was a child-centered movement, and child welfare was a major focus of Progressive activity. Before the advent of juvenile court, jurisdictions had often devised ways of sparing youthful offenders the full rigors of the legal process, but, as has been pointed out, what was missing was the conception that a young person who ran afoul of the law was to be dealt with from the outset "not as a criminal, but as a person needing care, education and protection" (Warner and Cabot, p. 600). During the 1890s a wide spectrum of enlightened professionals, including members of the bar and representatives of the emerging behavioral sciences, pressed for the removal of juvenile offenders from the adult criminal process and the introduction of a separate system for their treatment. Illinois was the first state to respond favorably to these appeals, in 1899 enacting a law that created a juvenile court for Chicago (1899 Ill. Laws, ch. 131). The statute had been drafted by a committee of the Chicago Bar Association, and it established the court essentially as a court of equity with corresponding administrative powers. The plan was that the court should, when circumstances so warranted, assume guardianship over wayward or neglected youths with a view to giving them the care, custody, and discipline that a good parent would give his own children. The court, in sum, was to be thrust into the role of parens patriae, a role not unknown to equity courts. The juvenile court was to operate under relatively relaxed, nonadversarial procedures, with the role of counsel reduced, and its role was to be seen as remedial rather than punitive. The question before the court would not be whether the accused juvenile was guilty of a crime, but whether he was "delinquent" and thus in need of the state's care and education.

After the passage of the Illinois statute, the juvenile court movement acquired some of the features of a crusade. Proponents of the reform pushed vigorously in other states for its adoption. In addition to theoretical arguments, they now had a practical example to offer in support of their proposals, and in the personnel of the Chicago juvenile court they found eager and willing allies. For example, Timothy Hurley, the court's chief administrator, published the monthly Juvenile Court Record, which detailed the success of his institution and recorded the progress of the movement. The proponents encountered little or no opposition and state after state rushed to imitate the Chicago model. To be sure, a few did raise the question of whether the loose, informal procedure that characterized juvenile court, and the immense discretion of the juvenile magistrate, adequately protected youths from arbitrary deprivation of liberty. But these voices were drowned out by the rising chorus of approbation. By 1920, all but three states had created juvenile courts.

Twentieth-century developments

By the 1920s, attention had shifted from improving the techniques of rehabilitating the individual offender to the control of criminal behavior in the aggregate. This was the period of the great national experiment of Prohibition, with its attendant rise in illegalities of all sorts. Citizens across the land, but especially in large cities, became increasingly agitated at what they perceived to be an alarming increase in crime and the seeming inability of the criminal justice system to deal with it. Some charged that the corruption of government officials by the criminal element was the root cause of the problem—and indeed, there were many instances of political corruption during the period. Others insisted that the system of criminal justice was itself at fault and was desperately in need of overhaul. There was a widespread demand for some kind of action.

The Cleveland survey. The city of Cleveland was the first to attempt to address the problem in systematic fashion. It had for several years been suffering from a rising crime rate, and a pall of distrust hung over the municipal criminal justice apparatus. Matters came to a head in the spring of 1920, when the chief judge of the city's municipal court was forced to resign because of complicity in an atrocious crime. A number of civic organizations, headed by the Cleveland bar, persuaded the Cleveland Foundation, a private philanthropic organization, to sponsor a survey of criminal justice in the city. A staff of investigators headed by Roscoe Pound, then dean of the Harvard Law School, and by Felix Frankfurter of the Harvard law faculty, was assembled. After two years of empirical observation and the accumulation of masses of statistics, they delivered a lengthy report on the criminal justice process in Cleveland. It was the most comprehensive, detailed, and accurate portrait of the problems of urban law enforcement that had ever been produced. Every nook and cranny of the machinery of criminal justice was explored, from police administration to the criminal courts and the city's correctional facilities. There was even a section on legal education in Cleveland and its impact on the criminal justice process.

The report highlighted many flaws in the existing machinery of criminal justice and made recommendations for change. However, these recommendations were ameliorative rather than revolutionary. The report proposed no radical redesign of the existing system, but rather the streamlining and modernization of its operation. The emphasis was on the introduction of greater efficiency into all phases of the criminal justice process. Much space was devoted, for example, to explaining how prosecutorial staffs and courts could process more smoothly and expeditiously the large criminal case loads with which they were confronted. The report also emphasized the need for the full professionalization of criminal justice staffs and for the elevation of the status of the criminal law practitioner.

The example of the Cleveland crime survey stimulated the establishment in other jurisdictions of crime commissions charged with similar responsibilities. Georgia in 1924, Minnesota and Missouri in 1926, Memphis in 1928, and Illinois and New York State in 1929 all launched investigations of their own into the conditions of local law enforcement. However, they were in general pale imitations of the original.

The Wickersham Commission. At this time, the national government itself decided to enter the picture. In 1929, President Herbert Hoover appointed the National Commission of Law Observance and Enforcement, under the chairmanship of United States Attorney General George Wickersham. The Wickersham Commission, as it came to be known, was originally charged only with the responsibility of looking into problems of law enforcement under the Eighteenth Amendment, but it soon expanded its scope to include the entire field of criminal justice. Over the next two years it undertook a sweeping investigation into crime and law enforcement in America and published fourteen volumes of reports on all phases of the process. Its findings and recommendations in many ways paralleled those of the Cleveland survey, but it broke important new ground as well. Its report on police practices, for example, exposed patterns of police abuse of suspects and stressed the need for the elimination of these practices. An entire volume, The Causes of Crime, took a broad sociological view of criminal behavior and suggested methods for attacking the conditions that, according to the commission, bred 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 on several occasions pointed to the enormous inconsistencies and anachronisms embedded in the American substantive law of crimes and had emphasized how these stood in the way of erecting a truly modern and efficient system of criminal justice. The Wickersham Commission as well called attention to the deplorable, chaotic state of the federal substantive criminal law. Furthermore, ever since the turn of the century and continuing into the 1920s, scholars in criminal law, in the behavioral sciences, and in the nascent field of criminology had been leveling broadsides at the theoretical foundations of the criminal law. They challenged the scientific soundness of such fundamental notions as "criminal intent," "deliberation," and "premeditation," and questioned the purpose served by the subtle and often bizarre definitional distinctions that had grown up over the centuries in the common law of crimes.

To be sure, some of these critiques were seriously marred by a naive determinism—a few went so far as to say that science had totally vitiated the concept of free will or was on the verge of identifying the biological and psychological types that inevitably led to criminal behavior. But the majority were far more subtle and tentative, and there can be no caviling with the point, made by all, that there was much that was amiss in the existing criminal law.

The Model Penal Code. The American Law Institute, an organization of lawyers, judges, and legal scholars, was founded in 1923 for the purpose of clarifying and improving the law. One of the major causes that had led to its establishment was dissatisfaction with the state of the criminal law, and thus it is no surprise that criminal law reform occupied a high place on its agenda from the outset. However, it proved difficult to translate this concern into action. The institute was quick to decide that the method of restatement which seemed the appropriate way to proceed in other fields of law was inappropriate for the law of crime. As Herbert Wechsler, a leading theorist of penal jurisprudence, later explained, "The need . . . was less for a description and reaffirmation of existing law than for a guide to long delayed reform" (1974, p. 421). A proposal for a model penal code was advanced in 1931, but the project was large in scope, and the funding to carry it out was not forthcoming during the Depression years.

In 1950 the infusion of a large grant from the Rockefeller Foundation stirred the model penal code project to life again. An advisory committee, made up of distinguished scholars in the field of criminal law, was assembled by the American Law Institute. Wechsler was appointed chief reporter of the enterprise, and Louis Schwartz, another eminent authority in the field, was named coreporter.

Early in the project's life, Wechsler made it clear that he and his colleagues were confronting a task of immense magnitude. In Wechsler's view, American society had entered the twentieth century without having ever rationally articulated "the law on which men placed their ultimate reliance for protection against all the deepest injuries 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 more important in their gloss than in their text—less the product of informed, deliberate choice than of accident, chance, and unreflecting imitation. As Wechsler put it, American penal law was "a combination of the old and the new that only history explains" (1955, p. 526).

From beginning to end, Wechsler was the code project's guiding spirit, and he deserves most of the credit for leading the enterprise to successful completion. But the drafting of the Model Penal Code was no solo performance by Wechsler. It was very much a collaborative effort, drawing on the talents of virtually the whole of the academic criminal law establishment of a goodly number of judges, and of a handful of practitioners. It was also an effort that proceeded carefully and deliberately. The writing of the Code took ten years, from 1952 to 1962, during which time thirteen tentative drafts were circulated for general discussion and comment after debate in the project's advisory committee and on the floor of the American Law Institute.

In 1962 the institute's Proposed Official Draft of the Model Penal Code was promulgated, the greatest attempt since Livingston's time to put the house of penal jurisprudence into some kind of rational order. In truth, the Proposed Official Draft was in many respects a very Livingstonian document. This was seen particularly in its commitment to the principle that the sole purpose of the criminal law was the control of harmful conduct, and in its adherence to the notion that clarity of concept and expression were essential to that purpose's fulfillment. The draft was wholly lacking, however, in that ideological smugness and imperiousness which at times had tarnished the work of Livingston and of his mentor, Bentham. As befitted a product of the mid-twentieth-century American mind, the draft was suffused with a spirit of pragmatism, albeit a pragmatism tempered by principle.

The Code was divided into four parts: general provisions definitions of specific crimes, treatment and correction, and organization of correction. Each contained significant innovations with respect to existing law. In keeping with the principle that the criminal law's only purpose was to deter blameworthy, harmful conduct, and the converse principle that faultless conduct should be shielded from punishment, new standards of criminal liability were established in the Code's general provisions. In the area of inchoate crimes, for example, the law of attempt was rewritten to sweep away all questions as to factual impossibility and to focus attention on the actor's perception of the circumstances surrounding the commission of his act (§ 5.01). In conspiracy, on the other hand, the traditional common law rule that made every member of the conspiracy liable for any reasonably foreseeable crime committed by any other member of the conspiracy was rejected. Instead, an accomplice's liability was limited to those crimes of the principal that the accomplice intended to assist or encourage (§ 5.03). Thus too, in the interest of protecting faultless conduct, the use of defensive force was declared justifiable in cases of apparent, as opposed to actual, necessity (§ 3.04). Reasonable mistake of fact was affirmed as a defense in crimes such as bigamy (§ 230.1). In addition, a limited defense of ignorantia legis was made available to defendants who harbored good faith beliefs regarding the innocence of their conduct as a result of reliance on official opinion or as a result of the unavailability to them of the enactment they were accused of violating (§§ 2.02, 2.04).

The most striking provisions in the Code's general part were those that sought to articulate a new definition of the mental element in crime. The common law used a bewildering variety of terms to designate the mental blameworthiness (mens rea) that had to be present if a person were to be convicted of a criminal offense. For this profusion of terms the Code drafters substituted four modes of acting with respect to the material elements of offenses—purposely, knowingly, recklessly, and negligently—one of which would have to be present for criminal liability to attach (§ 2.02). The Code achieved a creative compromise in the area of strict liability, allowing for the possibility of such offenses by classifying them as violations punishable only by fines.

In addition to attempting to order and rationalize the general, underlying principles of criminal liability, the Model Penal Code wrought numerous innovations in the definitions of specific offenses. Perhaps the most signal achievement in this regard was its substitution of a unified law of theft for the potpourri of common law offenses that went under the names of larceny, larceny by trick, false pretenses, and embezzlement. It sought, too, to bring greater rationality and fairness to the sentencing of those convicted of crimes. It proposed a scheme of determinate sentencing, under which all felonies were classified into three punishment categories and all misdemeanors into two. Upper and lower limits of sentences were set out for each category, with the determination of the exact length left to the discretion of the judge (§§ 6.06, 6.08). Extended terms were authorized for persistent offenders and professional criminals (§§ 7.03, 7.04).

The American Law Institute neither expected nor intended that its Model Penal Code would be adopted in toto anywhere, or that it would lead to the establishment of a uniform national penal law. Diversity of political history and of population makeup in the various states made that kind of expectation quite unrealistic. Rather, the institute hoped that the Code would spark a fresh and systematic reevaluation of the penal law in many jurisdictions and that its provisions would be liberally drawn on. The institute was not to be disappointed in this hope. By 1980, in large part owing to the Model Penal Code's example, some thirty states had adopted revised criminal codes, and another nine had code revisions either under way or completed and awaiting enactment. It is no exaggeration to say, as did Sanford Kadish, that within three decades of the time when Code drafts began to be circulated, the Model Penal Code had "permeated and transformed" American substantive law (p. 1144).

A final salutary impact of the Model Penal Code must be mentioned, namely, the impetus that it gave to the effort to codify—for the first time in the true sense of the word—the federal penal law. In 1962, when the Code's Proposed Official Draft was promulgated, the federal criminal law was in a sorrier condition than that of most of the states. It had grown up in an unsystematic, piecemeal fashion since the beginnings of the republic, and the several efforts that had been previously undertaken to place it on a more rational basis had not come to very much. In 1866 Congress, alarmed at the uncontrolled manner in which the corpus of federal criminal law seemed to have been growing since 1800, had impaneled a commission to introduce some order into the confusion. The work of this commission led to the passage of a body of revised statutes, which at least had the virtue of arranging federal penal provisions into some sort of coherent order (U.S. Congress). In 1897 and later in 1909, revisions and rearrangements of federal penal statutes were again undertaken (Appropriations Act of June 4, 1897, ch. 2, 30 Stat. 11; Act of March 4, 1909, ch. 321, 35 Stat. 1088 (codified in scattered sections of 18 U.S.C.)). Finally, in 1948, after eight years of work by another commission, Congress enacted Title 18 of the United States Code, which purported to be the first codification of the federal criminal law. If it was a codification, it was one in the Fieldian rather than the Benthamite-Livingstonian sense—and even that may be a charitable overstatement.

In 1966 Congress established the National Commission on Reform of Federal Criminal Laws to examine the state of the federal penal law and to propose a reformulation. The action was in part taken to appease an anxious public which was insisting that Congress do something about dramatically escalating crime rates, but it was motivated as well by an authentic desire to reform and improve the law. Congress left no doubt that it wished to see a thorough rethinking of the federal law of crimes, and its mandate was heeded. In due course the commission produced a thorough revision of the federal substantive law of crimes, and several bills were promptly introduced for the enactment of some version of it into law.

The middle decades of the twentieth century, thanks in part to the work of Wechsler and his colleagues, witnessed a widespread quickening of interest in the field of criminal justice, as well as considerable activity aimed at the reformation of the criminal law. Whether this signaled the reversal of past patterns of inattention and the beginning of a new, long-term trend or whether it was merely another episode of flirtation with the subject, only the future can determine.

Charles McClain

Dan M. Kahan

See also Capital Punishment: Legal Aspects; Capital Punishment: Morality, Politics, and Policy; Crime Commissions; Juvenile Justice: History and Philosophy; Prisons: History.

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