Criminal Law Reform: Historical Development in the United States

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.