United States Criminal Law
When the United States became independent, English criminal law generally prevailed in all states. Features of this were:
- there was no code, nor a list established by law, of punishable offenses, with the relative penalty. There was, however, a certain number of ” common law crimes “, each distinguished by a special name (mostly of French origin: arson “ fire”; larceny “theft”, etc.) and for each of them the punishment and the details of the crime were made to depend on the theory adopted about the relations between the colonies and the parliament. In addition, each colony had a certain number of minor offenses, configured by colonial and state legislation, after obtaining independence;
- all “common law crimes” were divided into two categories (of feudal and traditional origin): in “felonies” (felonies) and in “misdemeanors” (misdemeanors); and in England, at the time of the revolution, all crimes of the first kind – calculated from some to 220, but considering the subspecies of the same crime as different figures – were subjected to the death penalty. However, it does not seem that in practice such severity was applied in the colonies;
- there was no public prosecution, although at times some official, such as the attorney general, took the initiative in the proceedings, as in England; but as a rule criminal trials, like civil ones, were privately initiated;
- there was no appeal from the criminal sentences, but only the appeal to the crown by grace.
The tendency to reform criminal law immediately took hold in American law. In the United States the influence of Bentham – and, through him, of Montesquieu and Beccaria – was stronger than in England; and the death penalty had already been practically abolished except for the most serious crimes and the request for a penal code, that is, a written law that defined the crimes and fixed their penalties, became more and more insistent. In 1805 Louisiana enacted a comprehensive written criminal law, which named and defined certain offenses, but with no intention of ignoring those excluded. In 1821, Edward Livingston was commissioned to prepare a penal code and he proposed a general one for the United States. His project – one of the first modern criminal codes, based on natural law doctrines derived from Bentham and Beccaria – was much discussed and admired, but not applied by either Louisiana or any other state. However, the impulse he gave was not in vain, and resulted in the formation of penal codes for all states.
Thus the nulla poena sine lege principle has become fundamental in the United States. The doctrine of common law crimes has been repudiated by American courts since 1813 and often expressly abolished by various written laws. And even without this, it is universally believed that the execution and definition of offenses in written laws are exclusive; of course, many crimes are not defined in the codes, but in particular laws. Furthermore, if the law does not establish the penalty for the prohibited act, there can be no punishment. To avoid involuntary omissions, most of the codes establish that, in the absence of a specific penalty, the maximum penalty established for misdemeanors is imposed: usually, one year in prison.
The abandonment of the death penalty – except for the most serious crimes – was a characteristic of colonial criminal law; immediately after the revolution, this principle entered the laws of the states; in 1801 in New York the death penalty was retained only for crimes against state security (including under the generic name of treason, literally or treason “) and for murder. This is still the situation today in most But the penalty established in 1801 for other very serious crimes, for example, robbery and fire, is also a penalty that would now be called capital, that is, imprisonment for life.
Under the humanitarian impulse, represented for Americans above all by Bentham, the tendency was to reduce the sentence for most of the felonies and to graduate the sentence in a way corresponding to the hatefulness of the crime. It was the traditional conception of rationalism that, with great accuracy, this result could be obtained; and certainly this system represented a progress, as it broke the severe and inflexible system that punished all the felonies in the same way, but it too lacked flexibility, as it punished all those guilty of the same crime in the same way. But at the end of the century. XIX the doctrines of the Italian anthropological school were discussed a lot in the United States and a vast reform movement tried to apply the doctrine of the individualization of punishment. In many states there were laws that left the sentence indefinite and allowed conditional sentence (parole), despite some popular opposition, which however failed to stop this movement.
However, there have been sporadic attempts to increase the severity of the laws in certain cases. One of the “Baumes laws” (named after CH Baumes; 1926) of New York, copied from other states, provides for life imprisonment for the third (or fourth; see Encycl. Britannica, 14th ed., III, p. 227) conviction for felon. Similarly, in certain states the death penalty has been extended to certain other crimes, especially where public sentiment regarded them with particular horror and terror: thus in the southern states fire and rape are often considered capital crimes (rape), as well as in other states the rat in person, mainly for the purpose of extortion (kidnapping).
The prevailing tendency in some countries of the European continent to invest the judge with wide discretionary powers in determining whether and to what extent an action is punishable, has found little echo in United States legislation.
The spirit that animated the first reformers of the penal laws derived not only from a doctrinary humanitarianism, but also from the severity and cruelty of the norms of common law. This severity prompted the judges to find loopholes for the accused during the trial. In addition, appeals in criminal cases were made possible and these appeals in a relatively large number of trials overturned convictions for purely technical reasons.
Another step towards the protection of the accused was the general introduction of the right to legal aid. The common law originally did not allow this in the processes for felony and “treason.” For the latter, the norm was changed after 1688, but for the first only in the middle of the century. XIX. But in the United States the right to be assisted by a lawyer at every stage of the proceedings was accorded to the accused from the outset.
All of these provisions could lend themselves to abuses which legislation has recently tried to put an end to.
Even the criminal procedure soon developed in a sense that differentiated it from the English one. As has been said, in England the norm was that the accusation should be brought by a private individual, usually the injured person. The continental method of submitting all criminal proceedings to the direction of a public official was regarded with favor in the United States from the earliest times. In New York, a district attorney was created by the laws of 1801 to direct the criminal proceedings in a group of counties; the district attorney was a representative of the attorney general, the highest official of the state judicial administration. This office spread throughout the United States and became as characteristic of the county as that of the sheriff. He had the exclusive authority to initiate criminal proceedings and also some vigilance over the indictment juries and the accusations. More recently, laws have been passed that accentuate the district attorney’s accountability to the governor or attorney general and have had the desired effect of easing the local limitations of the office somewhat.
In a number of states there is a public advocate for the poor accused. Where this office does not exist, it is the court that appoints an official defender, who is obliged, for professional duty, to lend himself free of charge.
The allegations are still the work of a special jury (Grand Jury) as it has long been in England. But it works on the advice of the district attorney, and seldom deviates from it. With laws multiplied after the second half of the century. XIX an even older method has been restored, the information system, whereby the district attorney can in many cases proceed without resorting to formal prosecution.
In ordinary procedure, the rules on evidence are mostly the same as in civil trials. It is generally stated as a norm that proof of righteousness must be given “beyond reasonable doubt”. This sentence is capable of being interpreted with great latitude and has not prevented a certain number of painful judicial errors. Research by Thayer and others has shown that the famous “presumption of innocence” that laws and judgments often claim to be a fundamental feature of American law is little more than a symbolic phrase.
But a notable feature of the American procedure is a special development of the double jeopardy (“double risk”). In common law, the canonical norm ne bis in idem gave rise to the exceptions autrefois acquit and autrefois convict. This principle was incorporated in the Bill of Rights of the various constitutions and is generally expressed in the prohibition of a “double judgment for the same transgression”. A person acquitted once cannot therefore be indicted again for the same crime and this necessarily prevents the state from appealing. Instead the condemned person can appeal, because that norm is dictated in his favor and therefore he can renounce it. In trials that end with capital punishments, appeals are automatic, and very frequent in others as well. Despite popular beliefs to the contrary, appeals are now rarely successful.
In any case, the frequent use of appeals, such as the excessive technicality of the law of evidence, has contributed a lot to the slowness of the procedure which is a real flaw in American criminal justice. This has often been tried to remedy. The common practice in the century. XIX, to grant the annulment of the sentence for any mistake committed, has been modified by law and the Courts of Appeal now have as a rule not to annul unless it is clear that without precisely that error the verdict would have been acquittal..
Criminal law is now actively concerned with improving police organization and punishment methods. With all the deficiencies of the jury system and the law of evidence, the real difficulty for the good administration of justice is in these instruments rather than in the courts and the legislation to come will probably be all directed towards obtaining improvements in these matters.