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First Burst of Criminal Law Reform, 1787-1820

Lawmakers responded to this crisis by tailoring criminal law and the administration of punishment to republican ideals. Pennsylvania, where the Quaker religion was strong, was a hub of reform activity. The framers of the Pennsylvania Constitution of 1776 directed future legislators to compose a new and more humane criminal code "as soon as may be, and punishments made . . . in general more proportionate to the crimes." 9 Reaching that goal required more than a decade, but in 1786 the legislature abolished the death penalty for robbery, burglary, and sodomy. Eight years later the legislature advanced an even more radical proposition, establishing the principle of degrees of criminal activity. In the case of murder, for example, the new statute declared that the "several offenses, which are included under the general denomination of murder, differ . . . greatly from each other in the degree of their atrociouness." The law then proceeded to distinguish between two "degrees" of murder: the "first," which was premeditated or committed in the course of a felony and the "second," which included all others. Only first-degree murder was punishable by death. 10

Benjamin Rush, a Philadelphia physician, was the strongest voice for reform in the new nation. Rush set his ideas down in two important works, Enquiry into the Effects of Public Punishments upon Criminals and Society ( 1787) and Considerations on the Injustice and Impolicy of Punishing Murder by Death ( 1792). Rush insisted that republics were prone to disorder and licentiousness, and only through the exercise of public virtue (the sacrificing of the individual to the common good) could the republican experiment succeed. He fitted Beccaria's ideas about humane and proportionate punishment to American circumstances, making capital punishment the focus of his attention. "Capital punishments," he insisted, "are the natural offspring of monarchical governments." 11 The gallows eroded rather than strengthened republican values and behavior. Severe and excessive punishments marked monarchies; mild and benevolent ones characterized republics.

Most reformers stopped short of Rush's opposition to the death penalty for all offenses. They wished only that capital punishment be withdrawn for crimes such as robbery, burglary, counterfeiting, and rape. The Pennsylvania legislation, in this regard, was a model of the moderate purposes of law reform.

Other states adopted similar reforms. Rush's writings circulated widely among state legislatures including Massachusetts and Virginia. In the latter, George K. Taylor implored the legislature to "imitate and adopt" Pennsylvania's scheme of criminal

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law. 12 Not every effort succeeded. Edward Livingston of Louisiana, for example, was the early republic's first advocate of a thorough codification of law. He achieved some success when the state, with its strong civil law tradition, embraced his civil code that was patterned after the famous French Code Napoleon. Legislators brushed his criminal code aside as too radical. Still, change was pervasive. South Carolina, the most traditional of the southern states on matters of crime and punishment, reduced the number of crimes that carried the death penalty from 165 to 22 between 1813 and 1850.



The decline in the use of the death penalty raised a practical problem: what was to be done with criminals who would otherwise have been executed? Once again Pennsylvania set the pace. Reformers there and Quaker activists in England urged the construction of penitentiaries to house criminals. A complex set of ideas about human nature and the possibilities of individual change animated the penitentiary movement. Where the colonists had emphasized innate sin, the postrevolutionary generation stressed the environment as a breeding ground of criminality. The Quakers approached the problem from a religious perspective, but ideas of the Enlightenment, expressed through Beccaria's classical theory of criminology, reinforced and complemented the proposition that law was a tool of individual rehabilitation and social reformation. Tunis Wortman, a New York reformer, explained in 1796 that "the doctrine of innate ideas has long since been exploded" and man was now viewed as "the creature of education and the child of habitude." 13

What has come to be called the penitentiary was known at its inception by different names, most commonly "house of repentance" or "house of reformation." Pennsylvania in 1788 commissioned the Philadelphia Society for Alleviating the Miseries of Public Prisons, of which Rush was a charter member, to report on the existing facilities and practices of jails. The society's report was sharply critical, observing that punishment that was "more private or even solitary labour, would more successfully tend to reclaim the unhappy objects." 14 The society's report fixed for the next half-century the optimistic republican belief that all persons were capable of self-reformation if placed in the proper environment and given, through solitary confinement and the discipline of hard labor, the opportunity to reflect on and correct their wayward habits.

Critics of the penitentiary denounced incarceration as either contrary to republican ideals or simply impractical. Samuel Adams, for example, concluded that the only way to sustain the new republic was through measures that provided that those "who dare rebel against the laws of [the] republic ought to suffer death." 15 Stephen Burroughs, a convict incarcerated at the Castle Island facility in Massachusetts, wondered in his memoirs how it was "that a country which has stood the foremost in asserting the cause of liberty should so soon after obtaining the blessing themselves, deprive others of it?" 16

This opposition made little headway. In the last decade of the eighteenth century, a majority of legislatures adopted the penitentiary as a substitute for the gallows and embraced the idea of institutional rehabilitation of criminals. The New York legislature in 1796 appropriated funds for the Newgate facility in the Greenwich Village area of lower Manhattan. New Jersey in 1797 completed its first penitentiary and Virginia, Kentucky, Massachusetts, Vermont, New Hampshire, and Maryland followed suit shortly thereafter. In most southern states, the peculiar institution of slavery solved the problem of controlling the dangerous class.

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By the 1820s this initial burst of criminal law reform and penitentiary building faded, although the goals associated with it persisted. Mounting expenses, overcrowding, and the prevalence of repeat offenders suggested that changing codes and building prisons alone would not halt the spread of crime. Yet the failure of the first wave of criminal law reform energized a new generation of reformers who extended the concepts of environmentalism, human perfectibility, and institutional discipline beyond the scope imagined by Rush.

 

Antebellum Criminal Justice Institutions

The institutions of the criminal justice system began to take on a modern form in the antebellum years. The most important developments involved the jury, the penitentiary, the juvenile house of refuge, and the police.

 


Date: 2015-01-29; view: 1167


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