Law is how a society (any society) organizes itself. Law serves two purposes, first is to unite people. It tells a people "we are one", and the law is how "we" will preserve our concept of being one. Disputes within the group will be handled by the "law", not by the members acting by themselves against they fellow members of the group.
The second purpose of the Law is to help protect the group from outsiders (More of what is needed for Military operations then what is being discussed here, but can be a factor when members of society have divergent views of what the law should be and that divergence leads to a break down of Society often into two or more new groups).
Thus when you have people you have law. On the other hand is the old saying "A law without a Punishment is NOT a real law". If you have a law but if you break it nothing happens to you, it is NOT a real law. You can break it with impunity for society does not really care one way or another about it.
Thus to have an effective "law", the law has to have a punishment. Now per-modern people had laws with punishment, but often the primitive punishments could be "brought off" upon payment of some sort of "fine". This evolved into the modern concept of lawsuits (if you are harmed do to a violation of the "law" you can get compensation from the law breaker to the extent of the harm the violation of the law caused you). This type of "money justice" was quite common in per-industrial Europe for the simple reason it did a better job of putting the victim back into the position he (or she) had been before the violation of the law than did an other type of punishment. This extended even to Murder, provided the murderer could come up with the money.
As I said this type of Justice survives in the form of the "Lawsuit". Often it is a better system than the criminal justice system but some people just did not have the means to buy off the family their harms by their illegal action and that victim wanted the law to somehow punish the law breaker. It is from this failure of the Civil Law system that the Criminal Justice system came into existence. From its start the Criminal Law System has always been aimed at people who did not have assets. Assets could be used to pay off any person who would bring a Criminal Prosecution (For example if someone killed someone, that victim's wife, children, parents of other family member would be better off if the Murderer paid them money to compensate for the loss of life of the victim than if the Murderer was executed and paid them nothing).
On the other hand the Kings and Queens of England preferred to make sure any potential enemy was killed rather than have such enemies pay them off (Through this is NOT always the case, Henry VIII, Mary I and Elizabeth I all were willing to take money from religious dissenters rather than executing them, money talks, Bullshits walks).
With the arrival of Oliver Cromwell and the Commonwealth Criminal Law became more important than Civil Litigation (More to keep the poor from revolting than any desire for Criminal Law over Civil Law). With the Restoration of King Charles II, Criminal law (and especially Police) fell into disfavor. Public Prosecutors and Police would not re-occur in the Common Law Jurisdiction till the 1830s and than first in America and than Britain (And in both cases the result of more and more poor people who had no money to pay Judgments and therefore only really feared the Criminal law).
Now in this period (Roughly 1660-1830) Criminal law existed but by private prosecution only (I.e. if you were harmed you had to bring the Criminal Action yourself, the state would not do it, even if the charge was murder). One side affect of this was that criminals In England would be given a choice BEFORE THEY WERE EVEN BROUGHT UP ON CHARGES, Go to America (and have the Charges drop and what ever the Captain of the ship the criminal shipped out on spitting with the Victim whatever the Captain received for the now Indentured Servant) or be brought up on charges that could lead to the Death Penalty. Most Criminals Jumped at the offer (Under International Law at the time it was illegal to ship charged or convicted Felons overseas, by making the offer BEFORE CHARGES were brought this was avoided, thus most Criminals shipped to America had never been convicted of any Crime and their shipment was NOT a violation of International law).
Please note by the 1780s England no longer cared about the International Law against shipping felons overseas and started to do so to Australia. Compared to Australia few CONVICTED OR CHARGED Felons were Shipped to America during America's Colonial period (But a lot of Criminals who had agreed to go to America to avoid Prosecution had been). This export of Criminals were to have a factor in the History of both America and Australia.
Now I went over the history prior to 1830s to give you an idea of where the Criminal Justice System started from. In the 1830s radical changes where adopted first in America and later in England. First Police were adopted to watch the new Immigrants in the new Urban and growing Urban Areas. This was followed by the adoption of "District Attorneys" to bring Criminal Charges against Criminals when the Victim could not afford their own Lawyer to bring the Criminal Charge (Quickly extended to bring ALL Criminal Charges no matter how rich the Victim was).
At the same time the "Penitentiary" was invented. Prior to the 1830s you had Jails, but Jails were just to hold people till Trial. Jails were NEVER intended to hold people as Punishment (In fact most Jails permitted any person being held in the jail to furnish his or hers cell as he or she pleased, including bring in furniture and rugs, for Jail was NOT punishment but a place to hold someone till Trial).
The Penitentiary was something different. It was intended as Punishment. Prior to the Penitentiary the punishment of Crimes where either Death, Mutilation, Corporal, Exile, or a Fine. Long term Incarnation was NOT an option.
Now Mutilation has always been a popular punishment (For example the Muslim's rule of Cutting off the hands of a Thief, a system not only used by Muslims but by other cultures when it come to thieves). Mutilation had problems, the biggest problem was how was the person to earn a living? The Christian Churches (Both Catholic and Protestant) tended to oppose such mutilation but it survived to very recent times. In Colonial times an escaped Indenture Servant had his ear lobs cut off to show he had escaped at least once (and permitted any Sheriff to arrest any one with such cut off ear lobs and sell him as an escaped indentured Servant unless he could prove he was not). I will avoid what Slave owners did to their escaped slaves, that was NOT part of the Criminal Justice System since Slaves were Property, but if the Law permitted the cutting off of ear lobs for a White man's escaping you can guess what an escaped black slave could suffer (Sort of Death).
The Second from of Punishment was Corporal Punishment, either the Stocks or the whipping. This was quite common for misdemeanors in the 1800s, you read about people getting 100-200 lashes at a time (Sometime MORE but over a period of time). The problem with the lash is that it an lead to the death of the person being punished even if that was NOT the intention of law. Corporal punishment fell into disfavor as the 1800s progressed, but more do to the fact that if the person died from the lashing the person doing the lashing could be made to pay for the death. Thus outside of the Military it appears to be dead by the 1860s (and barely survived in the Military till the 1900 through more by being in the "book" than actual being administrated). During the 1892 Homestead Strike a Soldiers watching over the strikers was heard saying "Three Cheers for the man who shot Frick" right after he heard of the attempted assassination of Frick. He was punished by being hanged by his thumbs. After he was discharged he brought criminal charges against his commander for the punishment, the Commander avoided prosecution only on the grounds that such punishment had been done doing the Civil War (30 years before) AND the Soldiers First Sargent had given him a plug of tobacco to chew on so he would quickly go unconscious while being hanged (and this lessen the amount of pain endured). Pennsylvania outlawed such punishment right afterwords but it shows that Corporal Punishment lasted till almost 1900 (and in schools lasted while into the 1980s and in some cases to this day but no where near the level of pain endured by adults in the 1800s and 1900s).
As explained above Exile has been disfavored by International Law for Centuries, it has existed for Centuries also. Even today you hear of people being given a one way ticket out of town and told NEVER to come back. It violates the Constitution but most people Exiled do not complain, they like the fact they avoided Jail time. Exile is simply NOT a viable option for most crimes (But for minor offenses still done).
Fine is another means of punishment, but is only effective if someone has the money to pay the fine. If no money (or an inability to earn money to pay the fine) the fine is ineffective unless tied in with some other sort of punishment for non-payment (Most often Jail time).
Death was the last type of punishment. Death was imposed when the above were not viable punishments. Prior to the American Revolution Death was more a threat to encourage settlement of the Charge BEFORE the Criminal was charged, but as less and less Criminals could re-pay the victim either by their own money or by becoming indentured, more and more people where charged and convicted and than sentenced to death.
The practice in the late 1700s was to convict the person to death and than have the King issue a Pardon reducing the sentence to a flogging or work for someone with the felon's wages going to pay his keep (plus starting in the 1780s with Exile to Australia). Imprisonment was rare. Exile to Australia was only a partial solution, something else had to do.
Death had the further problem of encouraging criminals to go all the way in a crime. In the late 1700s it was the Death Sentence to be pick pocket, but it was rare for a pick pocket to be convicted and most who were sentenced to death the sentence was commuted. The chief reason for this was if a pick pocket was caught by the person whose pocket he was picking, the knowledge that he might be hanged encouraged the Pick pocket to go to extremes to gain his freedom, up to and including murdering the person who caught him. The sentence for Pick Pocketing and Murder was the same, death. It was the knowledge that Pick Pockets rarely were executed (but Murderers often were) gave incentive to the Pick Pocket NOT to kill the person who caught them in the act.
This rule of proportionality of the law, that a law should NOT encourage people to go to extremes, is the heart of any penal system. Rape is NOT subject to the death Penalty not because Society wants to encourage rape but Society do not want to give the rapist incentive to MURDER the rape victim. Society wants the Victim to live, but if the Punishment is the same for Rape and Murder, the Rapist has every reason to KILL his victim for the Victim's death does NOT increase his punishment (and may make it harder to convict the Rapist of the rape, no victim to testify).
Societies have had to handle violation of the "Law". Death, Mutilation, Corporal punishment, Exile, and even fines have all been found to be wanting as a form of Punishment. Furthermore Death had been found to severe for most crimes, even if any lesser punishment was viewed as "to weak" do to the above concept of proportionality. Something was needed and the Penitentiary was it.
The Penitentiary had several things going for it, first unlike Mutilation once the person finished his sentence he could earn his own keep, unlike Corporal punishment it did not lead to inadvertent death do to the punishment, and unlike Exile your neighboring states did not ship the Criminal right back to your state. The Penitentiary was also better than the Death Sentence for it could be proportional to the Crime.
In the 1830s two systems of Penitentiaries were adopted the "Pennsylvania System" and the "Auburn System". The Pennsylvania System was simple solitary confinement and Manual labor as part of a rehabilitation system. The Auburn was group labor gang in a Factory setting. By the 1860s as the main means to produce goods evolved from sole proprietorships to the modern factories, both systems evolved into factory type systems to produce goods both for the inmates and the outside markets. Rehabilitation became secondary to reducing costs by having the inmates do more and more of the work in the Prison. This Continued till the 1930s when another push for Rehabilitation took place but since the 1960s the push has been on punishment more than rehabilitation.
Since the 1980s you have had a push for more and more punishment as opposed to Rehabilitation. This increase punishment has often violated the concept of Proportionality in that equal punishments exists for crimes of different extremes. Mostly in the drug crimes, in that dealing in drugs is treated worse than violate crime, thus if you are a drug dealing rather than have your stash confiscated by the Police, you have every incentive to make a break for it or even shot it out with the police rather than spend the next 20 years of your life in Prison.
A "good" system of Justice encourages such criminals to put up their hands and NOT fight the Police. A good system says 1- 2 years for drug dealing, but if you fight the police 10-20. Drug dealers would quickly get the message and surrender rather than fight.
But the Legislature has ignore the whole concept of Proportionality because it is easier to say "I am tough on Crime" than to say "The best way to prevent our Police officer from being shot is to make the Criminal know he just increases his sentence if he resists arrest, but to do that means low punishment for drug offenses and other non-violate crimes that society want to outlaw".
For more information on Crime and Prison see the following:
Pennsylvania Prison Society:
http://www.prisonsociety.org/milestones.htmlPunishment of Indentured Servants during the Colonial Periods:
http://www.eh.net/Clio/Publications/indentured.shtmlPennsylvania Prison System - History
http://www.pci.state.pa.us/pci/cwp/view.asp?a=3&q=82379&pciNav=|
History of New York State Prison System:
http://www.correctionhistory.org/html/chronicl/state/html/nyprisons.htmlDe Tocqueville Report on American Prisons in the 1830s:
http://www.law.du.edu/sterling/Content/ALH/Tocqueville_Pen.pdfCharles Dickens and Pennsylvania Eastern State Prison:
http://www.dickens-literature.com/American_Notes/7.htmlStories from Pennsylvania Prisons:
http://www.prisoners.com/crimest.htmlThe Modern Pennsylvania System: Super max prisons:
http://www.legalaffairs.org/issues/January-February-2003/review_brook_janfeb2003.htmlOn Corporal Punishment today:
http://www.corpun.com/index.htm
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(353 posts)
Send PM |
Profile |
Ignore
