Criminal Law Reform: Historical Development in the United States

The second half of the nineteenth century was not marked by any great ferment in the field of substantive penal law reform. American lawyers and legislators were by and large preoccupied with other matters during this era of industrialization and commercial expansion. One notable exception to the rule, however, was the effort mounted in New York and presided over by David Dudley Field to completely reshape the state's criminal law.

Field's reforms in New York State. David Dudley Field (1805–1894) was one of the towering figures of the nineteenth-century American bar, and by the Civil War he had become the leading advocate of codification in the United States. His efforts on behalf of penal-law reform were part of his larger codification project. In 1846 a New York constitutional convention, convoked in large measure because of successful lobbying by Field and other Jacksonian Democrats, passed a resolution directing the New York legislature to reduce into a written and systematic code the whole body of the state's laws. A path-breaking code of civil procedure was prepared by Field and other members of a specially appointed commission and enacted by the New York legislature before the Civil War (1849 N.Y. Laws, ch. 438), but work on the other codes was not to be completed until after the war.

In 1857 a new commission, with Field again a member, was established and given the responsibility of preparing a civil code, a political code, and a penal code. Field played a predominant role in drafting the first two documents, but he had no professional or scholarly expertise in the criminal law, and the bulk of the work on the last code, which was presented to the New York legislature in 1865, was done by Field's two cocommissioners, Curtis Noyes and B. V. Abbot. Nonetheless, Field participated in the drafting to a limited extent, and, inasmuch as he was the guiding spirit behind the whole New York codification effort, it is fitting that the penal code, like all the other New York codes, has always borne his name.

The stated objectives of the drafters of the Field Penal Code were, first, to bring within the compass of a single volume the whole body of the state's criminal law. The drafters noted that the state's penal provisions were scattered helterskelter through the collected statutes and that many acts were criminal by virtue of judicial decision only; if made criminal by statute, they could be defined solely by recourse to common law decisions. All this, they said, caused uncertainty to pervade New York's criminal jurisprudence. Second, the drafters intended to rectify deficiencies and correct errors in existing definitions of crimes. Third, they aimed to eliminate inequalities and disparities in punishments, and finally, they wished to criminalize acts that should be criminal but were not (New York State Commissioners of the Code, pp. iii–vi).

It was a comprehensive and bold agenda, and there seemed instinct in it at least the possibility of a searching, critical reexamination of the fundamental principles of American criminal jurisprudence, a task that had not been undertaken by anyone save Livingston. But the finished product that the commissioners delivered was in this respect a profoundly disappointing document. Field and his colleagues seem to have felt that their reform agenda was completed when the scattered parts of the state's penal law had been pulled together and a semblance of order introduced into this collection of provisions. Nowhere in the document is there any evidence of a desire to clarify or reformulate any of the confused or archaic common law concepts that lay at the base of Anglo-American criminal law, or to simplify or consolidate the enormous corpus of statutory crimes and regulatory offenses that had been added to the state's criminal law since the Revolution. This "reformist" code thus left the status quo quite unaltered.

What the Field Code did achieve in full was its objective of bringing all of the criminal law within the compass of a single volume. Every instance in which criminal penalties were imposed for any action was included in the code's provisions. Nothing was left outside, nor was there any attempt to consolidate. Thus there are separate, specific provisions on "the refilling of mineral bottles" (§ 417), on "omitting to mark packages of hay" (§ 449), and on "throwing gas tar into public waters" (§ 434). Four kinds of arson are described, ranging from maliciously burning an inhabited building at night to burning an uninhabited building in the daytime—each covered by a separate provision (§§ 531–539). In perhaps the most ludicrous example of overspecificity, separate provisions cover, respectively, malicious mischief to railroads, to public highways or bridges, to toll houses or turnpikes, to mile markers and guideposts, and to telegraph lines (§§ 690–695).

Notwithstanding these limitations, the Field Code proved extremely popular. It was eventually enacted by the New York legislature in 1881 (1881 N.Y. Laws, ch. 676), it was adopted almost in its entirety by California and the Dakotas, and it had significant influence on the penal law of several other western states, including Arizona, Idaho, Montana, Oregon, Utah, and Wyoming.