Criminal Law Reform: Historical Development in the United States

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.