Criminal Law Reform: Historical Development in the United States

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.