History of Criminal Justice

Mark Jones, Peter Johnstone

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9781437734911
• eBook ISBN: 9781317522454
• Topic: History
• Subtopic: World History
• Index: History

Covering criminal justice history on a cross-national basis, this book surveys criminal justice in Western civilization and American life chronologically from ancient times to the present. It is an introduction to the historical problems of crime, law enforcement and penology, set against the background of major historical events and movements. Integrating criminal justice history into the scope of European, British, French and American history, this text provides the opportunity for comparisons of crime and punishment over boundaries of national histories. The text now concludes with a chapter that addresses terrorism and homeland security.

Chapter 1

Introduction

Key Terms

• Crime
• Deterrence
• Divine will
• History
• Incapacitation
• Law Enforcement
• Mala prohibita
• Rehabilitation
• Retribution

Learning Objectives

1. Gain a brief understanding of the history of criminal justice as an academic discipline.
2. Learn the reasons for studying and appreciating history.
3. Understand the meaning and application of the term “crime.”
4. Gain a brief understanding of the concept of crime being synonymous with sin.
5. Gain insight into the Old Testament view of human nature by learning the story of Cain.
6. Learn the philosophical rationales for imposing criminal sanctions.

Crime and its punishment are among the oldest problems faced by human-kind; however, academic degree programs in criminal justice are relative newcomers to American colleges and universities. Most of these academic programs were launched in response to the federal government’s initiative in passing the Law Enforcement Assistance Act (LEAA) of 1968. This law stressed federal assistance to state and local governments, as well as to academic institutions, in the hope that increased study of crime, law enforcement, and penology would result in a decrease in the crime rate. Just as the emphasis of LEAA was on the solution of immediate, pressing problems in the law enforcement field, the new academic programs were primarily concerned with the professional subjects essential to graduates who would become law enforcement officers, forensic scientists, and correction officials. The success of criminal justice programs and their general acceptance as part of the university curriculum have begun to modify this emphasis on current problems and practices. The full panoply of humanities and social science techniques are now applied to criminal justice problems. The student of today needs broad education in these fields, as well as in the forensic and legal sciences, if he or she is to function adequately and knowledgeably in the law enforcement profession.

More than professional competence is involved in the liberal education of those who wish to enter the criminal justice field. Our nation and world desperately need informed law enforcement leadership that deals not only with the mechanical “how” criminal justice is operated, but also with the philosophical and moral “why” it should or should not continue to be conducted in a traditional manner. What is perhaps the major problem in human existence— criminal activity and its suppression—requires creative and innovative thought from those in professional leadership positions. Graduation from a criminal justice degree program cannot be the end of study for the professional; it can only be the beginning of a lifetime of hard study, applying good judgment, and communicating ideas by articulate speech and writing.

History Today

Some students say that they see little or no relevance in studying courses outside their major. Besides falling back on the cliché of being a “well-rounded” person, consider the ways a criminal justice student can benefit from the study of subjects such as political science, psychology, and sociology. Now consider subject areas not as closely associated with criminal justice, such as religious studies, English, public health, and, of course, history.

Progress in any form of human endeavor comes only when men and women rise above the performance of routine day-to-day functions, and when they have dared to ask “why” and aspired toward constructive change. While the human intellect and imagination have their limitations, these limitations have hardly been reached in the administration of criminal justice. We are right in striving to improve our system of law enforcement. We are wise to question the rationale and fundamental assumptions that support our penology. We do well to question what crime is and whether it can be prevented. The fact that these are age-old questions does not make them less pressing in the twenty-first century; it proves that they are among the most complex problems facing humanity.

However, progress can be achieved only if an individual or a society has a firm understanding of where it has been and what has been achieved in the past. Knowledge of history provides a special sort of orientation for the leader of tomorrow. The word “history” has myriad definitions and applications. The definition that best suits the study of this book is “a branch of knowledge that records and explains past events.”¹ Too often, the study of history is viewed only as a record of past events, and those who study it do not focus enough attention on the second part of this definition. Without searching for and analyzing causes and explanations for past events, the study of history is confined to the rote memorization of names, titles, and dates. There are several rationales for the study of history.

First, history provides a sound perspective concerning the nature of human growth and development. Change takes place over time, and in most cases the elapsed time between the statement of a new idea or invention on one hand, and its full acceptance on the other, may well be more than one lifetime. Discontent with the slow tempo of change is more easily borne by one who recognizes this peculiarity of individual humans and their societies. By studying the history of criminal justice, one sees the social, economic, political, and philosophical forces that have come together to create the system of justice that currently exists.

Studying history provides another kind of perspective. On any given day, someone may read a newspaper, watch the news on television, or read the news from a news website. If one does this for the first time, he or she quickly may get the idea that the world is in terrible shape and that we are doomed. However, an appreciation of history teaches the news consumer that things have always seemed bad and that the world has always been on a path of destruction. Knowing history provides us with a sense, for better or worse, that the condition of the world only seems worse than it really is. The world is beset by war and strife but, for better or worse, this has always been the case and somehow humankind has survived. When it comes to criminal justice, knowing history tells us that while crime seems to be a huge problem now—and it is—there never has been a golden age of crime and criminal justice, when crime was not a problem. In fact, we may be much better off now than in the past.

Second, historical knowledge brings with it some assurance against “reinventing the wheel.” Modern society needs history much more than our ancestors did; the tragedy is that, in most cases, we do not realize it. Human beings badly need a sense of where they and their civilization have been before they can decide where they and their world should try to go. History is in many ways the “memory bank” of humankind. It does not repeat itself very frequently, if at all, but it gives to those who study it with care a very good idea of the mistakes past generations have made. It is only human to make mistakes; it is stupid to repeat them. Viewed in this way, the study of history is the accumulation of experience over time. By studying criminal justice history, one is able to compare current criminal justice practices with those of past time periods and cultures. Those who study and work in the criminal justice system would be well served to understand the origins and development of the various components and institutions of that system, just as anyone in any profession or academic discipline would benefit from knowing their own history. With much of criminal justice history, one discovers that the system that we now have is less the result of a carefully constructed plan and more the result of a series of unplanned historical occurrences and “accidents.”

Third, history demands critical analysis and careful thought from its students. One of the worst charges that can be brought against the study of history is that it is the mere memorization of dates. The relationship of historical events, which is the study of cause and effect, is vastly more significant than dates. Historians must struggle with the weighty question of why individuals and societies acted as they did. Why are some historical events so difficult to explain, and why do others seem to lend themselves to easy solutions? Spending time with human history makes the historian inquisitive about the nature and psychology of men and women throughout the ages. Has humankind really changed since the time of the pharaohs? Historians seek to shape their findings into coherent patterns, and to draw generalizations from what people and societies have done at various times and in different places over the course of human existence. In this sense, history is always the application of a comparative method, for it is by comparisons, across time periods as well as across cultural and national experiences, that the general principles of human behavior can be most easily discerned.

This introductory survey of the history of criminal justice deals with the ways in which human beings and their societies have dealt with the serious issues of crime and punishment. Throughout this text, an attempt has been made to engage the reader in his or her own analysis of historical events, and to raise issues from both a historical and a contemporary perspective. Focusing on the American experience, the book nevertheless devotes a substantial amount of space to the coverage of European and British developments, both as an antecedent to our national experience and as a parallel evolution of ideas and practices that have influenced American criminal justice. In addition, the treatment of ancient and medieval history has been included to not only illustrate the antiquity of the issue of crime and punishment, but also to provide the reader with an overview of the earliest developments. At the outset, it will be useful to direct some attention to the nature of crime itself, the general trends in law enforcement, and the various approaches to punishment. These are themes that will recur throughout the chapters and are subjects that will become more clearly defined as the reader proceeds through the book.

Crime

One of the fastest ways to stop a glib speaker is to ask for a definition; that also works for college professors in the middle of a lecture. The definition of crime, supposedly a simple concept, is actually very difficult. Webster’s New Universal Unabridged Dictionary (New York, 1972) provides us with three useful definitions and one indirect definition:

1. An act committed in violation of a law prohibiting it, or omitted in violation of a law ordering it; crimes are variously punishable by death, imprisonment, or the imposition of certain fines or restrictions.
2. An extreme violation of the law; wrongdoing of a criminal nature, as felony or treason, which affects the whole public and not just the rights of an individual; distinguishable from a misdemeanor.
3. An offense against morality; sin.
4. The acts of a criminal; habitual violation of the law.

If we exclude the fourth, which defines crime as what criminals do and thus defines criminals as those who commit crimes, we are left with two basic positions: (1) crime is defiance of a positive law and (2) crime is a breach of moral law. Henry Campbell Black, the compiler of the most widely used American law dictionary, defined crime as “a positive or negative act in violation of penal law; an offense against the State.” He proceeds to discuss crimes that are mala in se, that is, evil in themselves or inherently evil, and those that are mala prohibita—not basically or morally wrong, but simply wrong because a statute or rule of common law makes them wrong. Placed side by side, it seems the two writers suggest that there is a positive definition that crime is the act or omission that the state condemns, and that there is also a moral or ethical dimension to the definition of crime. Indeed, their definitions and the historical experience of humankind suggest that, in the latter instance, crime may actually be identical with sin. When the ruler was considered the earthly manifestation of a god, such as in pharaonic times, legal compulsion was indistinguishable from moral rules and sanctions.

Even this initial exploration into the accepted definition of crime does little to explain why a given act is a crime and another act, perhaps similar, is deemed acceptable and not punishable as a crime. It is best to approach the subject in terms of how societies in the course of history have decided what conduct should be prohibited. At the most basic level, societal prohibitions of conduct must focus on the relationships between individuals that most need protection. A person’s life, the welfare of his or her family, the security of the individual against bodily harm, and the security of his or her possessions are among the basic needs of people in society. By far, the most significant collection of criminal law rules touches upon these basic human requirements. A second level of interest and concern is the need for a society to ensure order, stability, and productivity. Private wars, like family feuds in the American West, are not only costly in life and limb to the individuals directly involved, but they also pose a threat to innocent bystanders. As economic relationships become more complex, private battles and revenge may exact an unacceptable level of waste to the society and the state that depends upon prosperity for its well-being. At a still more abstract and third level of crime prohibition, there is the need for the state to ensure against being weakened by individual action. For example, the ruling monarch, president, or civil magistrate must be protected against violence; the public highways and places of legislative assembly must be given special attention; and places of religious devotion must be made secure and kept inviolate. Individuals perform state-related functions, such as military duty, labor on highway maintenance, and undertaking public office; in appropriate cases, penalties may be prescribed for failure to keep oneself ready for such duties, as well as for failure to accept them gracefully and to perform them acceptably.

Crime as a concept does not emerge full-grown in any society. Quite to the contrary, it develops out of experience and is conditioned by social and cultural attitudes. For example, let us consider the act of killing another human being. In American society, unprovoked homicide committed knowingly and without justification has always been considered wrongful and punishable either as murder or manslaughter. However, in primitive societies, killing prevailed as a way of exacting private retribution, or revenge, upon one who killed a kin member. As we shall see, the killer’s state of mind may also alter the criminal nature of the offense. If he or she lacked a certain level of mental capacity or was “insane” at the time the offense was committed, society may accept that as an adequate defense against prosecution. The state, by declaring war, may render legal, in both national and international law, a killing that otherwise could be prosecuted as murder or manslaughter. The further one attempts to define criminal homicide, the more apparent it will become that, over the course of history, “crime” has changed, just as the reasoning that condemns it has changed.

Other evidence of the impact of culture is the degree to which a law applies only to the territory of the tribe or nation that created the law. This ensures that the cultural preferences of that particular region are implemented by the legal system. In the Dudley and Stephens case, English criminal law was held to apply because the men were shipwrecked from a British vessel; thus, English courts might try them under Admiralty Law for an...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• ACKNOWLEDGMENTS AND DEDICATION
• Contents
• CHAPTER 1 Introduction
• CHAPTER 2 Criminal Justice in Ancient Times
• CHAPTER 3 Medieval Crime and Punishment Before the Lateran Council of 1215
• CHAPTER 4 From the Lateran Councils to the Renaissance (c. 1150-1550).
• CHAPTER 5 Criminal Justice and the English Constitution up to 1689
• CHAPTER 6 Criminal Justice on the North American Colonial Frontier (1607-1700)
• CHAPTER 7 The Enlightenment and Criminal Justice
• CHAPTER 8 The American Revolution and Criminal Justice
• CHAPTER 9 Early American Penology, European Prisons, and Australia
• CHAPTER 10 Early Nineteenth-Century Law Enforcement
• CHAPTER 11 Turning Points in Criminal Justice (1787-1910)
• CHAPTER 12 Corrections in Modern America
• CHAPTER 13 Law Enforcement Professionalism and the Establishment of a Criminal Justice System
• CHAPTER 14 Criminal Justice and Terrorism: The Era of Homeland Security
• CHAPTER 15 Epilogue
• INDEX