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Criminal Law Reform: Historical Development in the United States - Twentieth-century Developments

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By the 1920s, attention had shifted from improving the techniques of rehabilitating the individual offender to the control of criminal behavior in the aggregate. This was the period of the great national experiment of Prohibition, with its attendant rise in illegalities of all sorts. Citizens across the land, but especially in large cities, became increasingly agitated at what they perceived to be an alarming increase in crime and the seeming inability of the criminal justice system to deal with it. Some charged that the corruption of government officials by the criminal element was the root cause of the problem—and indeed, there were many instances of political corruption during the period. Others insisted that the system of criminal justice was itself at fault and was desperately in need of overhaul. There was a widespread demand for some kind of action.

The Cleveland survey. The city of Cleveland was the first to attempt to address the problem in systematic fashion. It had for several years been suffering from a rising crime rate, and a pall of distrust hung over the municipal criminal justice apparatus. Matters came to a head in the spring of 1920, when the chief judge of the city's municipal court was forced to resign because of complicity in an atrocious crime. A number of civic organizations, headed by the Cleveland bar, persuaded the Cleveland Foundation, a private philanthropic organization, to sponsor a survey of criminal justice in the city. A staff of investigators headed by Roscoe Pound, then dean of the Harvard Law School, and by Felix Frankfurter of the Harvard law faculty, was assembled. After two years of empirical observation and the accumulation of masses of statistics, they delivered a lengthy report on the criminal justice process in Cleveland. It was the most comprehensive, detailed, and accurate portrait of the problems of urban law enforcement that had ever been produced. Every nook and cranny of the machinery of criminal justice was explored, from police administration to the criminal courts and the city's correctional facilities. There was even a section on legal education in Cleveland and its impact on the criminal justice process.

The report highlighted many flaws in the existing machinery of criminal justice and made recommendations for change. However, these recommendations were ameliorative rather than revolutionary. The report proposed no radical redesign of the existing system, but rather the streamlining and modernization of its operation. The emphasis was on the introduction of greater efficiency into all phases of the criminal justice process. Much space was devoted, for example, to explaining how prosecutorial staffs and courts could process more smoothly and expeditiously the large criminal case loads with which they were confronted. The report also emphasized the need for the full professionalization of criminal justice staffs and for the elevation of the status of the criminal law practitioner.

The example of the Cleveland crime survey stimulated the establishment in other jurisdictions of crime commissions charged with similar responsibilities. Georgia in 1924, Minnesota and Missouri in 1926, Memphis in 1928, and Illinois and New York State in 1929 all launched investigations of their own into the conditions of local law enforcement. However, they were in general pale imitations of the original.

The Wickersham Commission. At this time, the national government itself decided to enter the picture. In 1929, President Herbert Hoover appointed the National Commission of Law Observance and Enforcement, under the chairmanship of United States Attorney General George Wickersham. The Wickersham Commission, as it came to be known, was originally charged only with the responsibility of looking into problems of law enforcement under the Eighteenth Amendment, but it soon expanded its scope to include the entire field of criminal justice. Over the next two years it undertook a sweeping investigation into crime and law enforcement in America and published fourteen volumes of reports on all phases of the process. Its findings and recommendations in many ways paralleled those of the Cleveland survey, but it broke important new ground as well. Its report on police practices, for example, exposed patterns of police abuse of suspects and stressed the need for the elimination of these practices. An entire volume, The Causes of Crime, took a broad sociological view of criminal behavior and suggested methods for attacking the conditions that, according to the commission, bred crime.

The focus of the great crime surveys of the 1920s was almost entirely procedural, but Pound, the guiding spirit of the Cleveland survey, had on several occasions pointed to the enormous inconsistencies and anachronisms embedded in the American substantive law of crimes and had emphasized how these stood in the way of erecting a truly modern and efficient system of criminal justice. The Wickersham Commission as well called attention to the deplorable, chaotic state of the federal substantive criminal law. Furthermore, ever since the turn of the century and continuing into the 1920s, scholars in criminal law, in the behavioral sciences, and in the nascent field of criminology had been leveling broadsides at the theoretical foundations of the criminal law. They challenged the scientific soundness of such fundamental notions as "criminal intent," "deliberation," and "premeditation," and questioned the purpose served by the subtle and often bizarre definitional distinctions that had grown up over the centuries in the common law of crimes.

To be sure, some of these critiques were seriously marred by a naive determinism—a few went so far as to say that science had totally vitiated the concept of free will or was on the verge of identifying the biological and psychological types that inevitably led to criminal behavior. But the majority were far more subtle and tentative, and there can be no caviling with the point, made by all, that there was much that was amiss in the existing criminal law.

The Model Penal Code. The American Law Institute, an organization of lawyers, judges, and legal scholars, was founded in 1923 for the purpose of clarifying and improving the law. One of the major causes that had led to its establishment was dissatisfaction with the state of the criminal law, and thus it is no surprise that criminal law reform occupied a high place on its agenda from the outset. However, it proved difficult to translate this concern into action. The institute was quick to decide that the method of restatement which seemed the appropriate way to proceed in other fields of law was inappropriate for the law of crime. As Herbert Wechsler, a leading theorist of penal jurisprudence, later explained, "The need . . . was less for a description and reaffirmation of existing law than for a guide to long delayed reform" (1974, p. 421). A proposal for a model penal code was advanced in 1931, but the project was large in scope, and the funding to carry it out was not forthcoming during the Depression years.

In 1950 the infusion of a large grant from the Rockefeller Foundation stirred the model penal code project to life again. An advisory committee, made up of distinguished scholars in the field of criminal law, was assembled by the American Law Institute. Wechsler was appointed chief reporter of the enterprise, and Louis Schwartz, another eminent authority in the field, was named coreporter.

Early in the project's life, Wechsler made it clear that he and his colleagues were confronting a task of immense magnitude. In Wechsler's view, American society had entered the twentieth century without having ever rationally articulated "the law on which men placed their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions" (1974, p. 420). Instead, the penal law of the various states was a hopelessly disorganized and internally inconsistent mass of common and statute law—with the statutes often more important in their gloss than in their text—less the product of informed, deliberate choice than of accident, chance, and unreflecting imitation. As Wechsler put it, American penal law was "a combination of the old and the new that only history explains" (1955, p. 526).

From beginning to end, Wechsler was the code project's guiding spirit, and he deserves most of the credit for leading the enterprise to successful completion. But the drafting of the Model Penal Code was no solo performance by Wechsler. It was very much a collaborative effort, drawing on the talents of virtually the whole of the academic criminal law establishment of a goodly number of judges, and of a handful of practitioners. It was also an effort that proceeded carefully and deliberately. The writing of the Code took ten years, from 1952 to 1962, during which time thirteen tentative drafts were circulated for general discussion and comment after debate in the project's advisory committee and on the floor of the American Law Institute.

In 1962 the institute's Proposed Official Draft of the Model Penal Code was promulgated, the greatest attempt since Livingston's time to put the house of penal jurisprudence into some kind of rational order. In truth, the Proposed Official Draft was in many respects a very Livingstonian document. This was seen particularly in its commitment to the principle that the sole purpose of the criminal law was the control of harmful conduct, and in its adherence to the notion that clarity of concept and expression were essential to that purpose's fulfillment. The draft was wholly lacking, however, in that ideological smugness and imperiousness which at times had tarnished the work of Livingston and of his mentor, Bentham. As befitted a product of the mid-twentieth-century American mind, the draft was suffused with a spirit of pragmatism, albeit a pragmatism tempered by principle.

The Code was divided into four parts: general provisions definitions of specific crimes, treatment and correction, and organization of correction. Each contained significant innovations with respect to existing law. In keeping with the principle that the criminal law's only purpose was to deter blameworthy, harmful conduct, and the converse principle that faultless conduct should be shielded from punishment, new standards of criminal liability were established in the Code's general provisions. In the area of inchoate crimes, for example, the law of attempt was rewritten to sweep away all questions as to factual impossibility and to focus attention on the actor's perception of the circumstances surrounding the commission of his act (§ 5.01). In conspiracy, on the other hand, the traditional common law rule that made every member of the conspiracy liable for any reasonably foreseeable crime committed by any other member of the conspiracy was rejected. Instead, an accomplice's liability was limited to those crimes of the principal that the accomplice intended to assist or encourage (§ 5.03). Thus too, in the interest of protecting faultless conduct, the use of defensive force was declared justifiable in cases of apparent, as opposed to actual, necessity (§ 3.04). Reasonable mistake of fact was affirmed as a defense in crimes such as bigamy (§ 230.1). In addition, a limited defense of ignorantia legis was made available to defendants who harbored good faith beliefs regarding the innocence of their conduct as a result of reliance on official opinion or as a result of the unavailability to them of the enactment they were accused of violating (§§ 2.02, 2.04).

The most striking provisions in the Code's general part were those that sought to articulate a new definition of the mental element in crime. The common law used a bewildering variety of terms to designate the mental blameworthiness (mens rea) that had to be present if a person were to be convicted of a criminal offense. For this profusion of terms the Code drafters substituted four modes of acting with respect to the material elements of offenses—purposely, knowingly, recklessly, and negligently—one of which would have to be present for criminal liability to attach (§ 2.02). The Code achieved a creative compromise in the area of strict liability, allowing for the possibility of such offenses by classifying them as violations punishable only by fines.

In addition to attempting to order and rationalize the general, underlying principles of criminal liability, the Model Penal Code wrought numerous innovations in the definitions of specific offenses. Perhaps the most signal achievement in this regard was its substitution of a unified law of theft for the potpourri of common law offenses that went under the names of larceny, larceny by trick, false pretenses, and embezzlement. It sought, too, to bring greater rationality and fairness to the sentencing of those convicted of crimes. It proposed a scheme of determinate sentencing, under which all felonies were classified into three punishment categories and all misdemeanors into two. Upper and lower limits of sentences were set out for each category, with the determination of the exact length left to the discretion of the judge (§§ 6.06, 6.08). Extended terms were authorized for persistent offenders and professional criminals (§§ 7.03, 7.04).

The American Law Institute neither expected nor intended that its Model Penal Code would be adopted in toto anywhere, or that it would lead to the establishment of a uniform national penal law. Diversity of political history and of population makeup in the various states made that kind of expectation quite unrealistic. Rather, the institute hoped that the Code would spark a fresh and systematic reevaluation of the penal law in many jurisdictions and that its provisions would be liberally drawn on. The institute was not to be disappointed in this hope. By 1980, in large part owing to the Model Penal Code's example, some thirty states had adopted revised criminal codes, and another nine had code revisions either under way or completed and awaiting enactment. It is no exaggeration to say, as did Sanford Kadish, that within three decades of the time when Code drafts began to be circulated, the Model Penal Code had "permeated and transformed" American substantive law (p. 1144).

A final salutary impact of the Model Penal Code must be mentioned, namely, the impetus that it gave to the effort to codify—for the first time in the true sense of the word—the federal penal law. In 1962, when the Code's Proposed Official Draft was promulgated, the federal criminal law was in a sorrier condition than that of most of the states. It had grown up in an unsystematic, piecemeal fashion since the beginnings of the republic, and the several efforts that had been previously undertaken to place it on a more rational basis had not come to very much. In 1866 Congress, alarmed at the uncontrolled manner in which the corpus of federal criminal law seemed to have been growing since 1800, had impaneled a commission to introduce some order into the confusion. The work of this commission led to the passage of a body of revised statutes, which at least had the virtue of arranging federal penal provisions into some sort of coherent order (U.S. Congress). In 1897 and later in 1909, revisions and rearrangements of federal penal statutes were again undertaken (Appropriations Act of June 4, 1897, ch. 2, 30 Stat. 11; Act of March 4, 1909, ch. 321, 35 Stat. 1088 (codified in scattered sections of 18 U.S.C.)). Finally, in 1948, after eight years of work by another commission, Congress enacted Title 18 of the United States Code, which purported to be the first codification of the federal criminal law. If it was a codification, it was one in the Fieldian rather than the Benthamite-Livingstonian sense—and even that may be a charitable overstatement.

In 1966 Congress established the National Commission on Reform of Federal Criminal Laws to examine the state of the federal penal law and to propose a reformulation. The action was in part taken to appease an anxious public which was insisting that Congress do something about dramatically escalating crime rates, but it was motivated as well by an authentic desire to reform and improve the law. Congress left no doubt that it wished to see a thorough rethinking of the federal law of crimes, and its mandate was heeded. In due course the commission produced a thorough revision of the federal substantive law of crimes, and several bills were promptly introduced for the enactment of some version of it into law.

The middle decades of the twentieth century, thanks in part to the work of Wechsler and his colleagues, witnessed a widespread quickening of interest in the field of criminal justice, as well as considerable activity aimed at the reformation of the criminal law. Whether this signaled the reversal of past patterns of inattention and the beginning of a new, long-term trend or whether it was merely another episode of flirtation with the subject, only the future can determine.

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