Criminal Law Reform: Historical Development in the United States

In the last decade of the nineteenth century and the first decades of the twentieth, a dynamic, complex social reform movement known as Progressivism swept through the middle and upper sectors of American society. The Progressives were a varied lot, and they had a varied political and social agenda. But among their chief aims were the elimination of corruption from politics, the introduction of efficiency and scientific technique into the governmental process, the uplifting of the underprivileged, and the assimilation into society's mainstream of the immigrant masses who were then pouring into the United States in record numbers. The whole Progressive program rested solidly on two fundamental principles: faith in the perfectibility of man, and implicit trust in the state's ability to promote individual well-being. The major reforms in the treatment of criminal offenders—probation, parole, and the juvenile court—that were either introduced or came into vogue during this era may be seen as manifestations of the Progressive spirit.

Probation. Probation, whose philosophy is that at least some criminal offenders are more likely to be rehabilitated by being placed in the community under the supervision of a trained official than by being incarcerated, is an American invention and has its origins in the work done in Boston in the 1840s and 1850s by the shoemaker John Augustus. With the permission of the courts, Augustus had for almost two decades taken into his care persons convicted of (usually minor) criminal offenses, with a view to rehabilitating them. Augustus accumulated a rather impressive record, but his arrangement with the Boston courts remained entirely informal, and his example inspired no imitators elsewhere. The modern system of probation dates in actuality from 1878, when Massachusetts enacted a statute authorizing the mayor of Boston to appoint a paid probation officer, and in 1880 this authority was extended to all cities and towns in the state (Mass. Probation Act of 1880, 1880 Mass. Acts, ch. 129). Other states toyed with the idea of introducing similar reforms but hesitated because of doubts about the constitutional propriety of the scheme. For many, this cloud was removed in 1894 when the highest court of New York ruled that a state law authorizing judges to suspend sentence, a necessary prerequisite to any system of probation, was not an unconstitutional infringement on the executive power of pardon (People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386 (1894)). Between 1900 and 1905, twelve states adopted probation for juvenile offenders; the number grew to twenty-three by 1911. By 1925, all forty-eight states permitted the probation of juveniles. Adult probation proceeded at a somewhat slower pace, but it too made steady strides during the Progressive Era.

Parole. Probation emphasized the individualized treatment of the malefactor by professionals: criminals were now seen as ill and in need of therapy, rather than as evil and deserving of retribution. As such, it was in harmony with the deep-seated Progressive belief in the educability of all through the use of scientific method. The same was true of parole. Parole and the other reform with which it usually went hand in hand—the indeterminate sentence—were first implemented in New York's Elmira Reformatory, which began admitting youthful offenders in 1877. The reformatory was to detain its inmates so long as was necessary to rehabilitate them, and then was to turn them over to trained professionals for further noncustodial supervision or treatment in the outside world. New York passed a general indeterminate sentencing law in 1889 (1889 N.Y. Laws, ch. 382, § 74), and by 1891 eight other states had enacted some form of indeterminate-sentence or parole legislation.

The juvenile court. Of all the criminal justice reforms promoted by progressives, the most emblematic was the juvenile court. Progressivism was a child-centered movement, and child welfare was a major focus of Progressive activity. Before the advent of juvenile court, jurisdictions had often devised ways of sparing youthful offenders the full rigors of the legal process, but, as has been pointed out, what was missing was the conception that a young person who ran afoul of the law was to be dealt with from the outset "not as a criminal, but as a person needing care, education and protection" (Warner and Cabot, p. 600). During the 1890s a wide spectrum of enlightened professionals, including members of the bar and representatives of the emerging behavioral sciences, pressed for the removal of juvenile offenders from the adult criminal process and the introduction of a separate system for their treatment. Illinois was the first state to respond favorably to these appeals, in 1899 enacting a law that created a juvenile court for Chicago (1899 Ill. Laws, ch. 131). The statute had been drafted by a committee of the Chicago Bar Association, and it established the court essentially as a court of equity with corresponding administrative powers. The plan was that the court should, when circumstances so warranted, assume guardianship over wayward or neglected youths with a view to giving them the care, custody, and discipline that a good parent would give his own children. The court, in sum, was to be thrust into the role of parens patriae, a role not unknown to equity courts. The juvenile court was to operate under relatively relaxed, nonadversarial procedures, with the role of counsel reduced, and its role was to be seen as remedial rather than punitive. The question before the court would not be whether the accused juvenile was guilty of a crime, but whether he was "delinquent" and thus in need of the state's care and education.

After the passage of the Illinois statute, the juvenile court movement acquired some of the features of a crusade. Proponents of the reform pushed vigorously in other states for its adoption. In addition to theoretical arguments, they now had a practical example to offer in support of their proposals, and in the personnel of the Chicago juvenile court they found eager and willing allies. For example, Timothy Hurley, the court's chief administrator, published the monthly Juvenile Court Record, which detailed the success of his institution and recorded the progress of the movement. The proponents encountered little or no opposition and state after state rushed to imitate the Chicago model. To be sure, a few did raise the question of whether the loose, informal procedure that characterized juvenile court, and the immense discretion of the juvenile magistrate, adequately protected youths from arbitrary deprivation of liberty. But these voices were drowned out by the rising chorus of approbation. By 1920, all but three states had created juvenile courts.