Criminal Law Reform: Historical Development in the United States - 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.