History of Criminal Justice
History of criminal justice
When early colonists first came to America, they did not include trained lawyers or other law-knowledgeable persons. Many parts of the criminal justice system in colonial America were similar to those in England, France, and Holland. Gradually French and Dutch influences disappeared in the colonies. What remained was the basic idea many had of the English common law system.
This system was the best-known to seventeenth-century colonists. The common law system included a set of rules that were used to solve problems in society. It was based on the history of decisions that previous judges had made instead lawmaking codes or laws. This system made a distinction between two basic types of crimes: felonies and misdemeanors. The legal process, mostly for more serious crimes, involved a grand jury, composed of members of the community, which decided whether there was enough evidence for prosecution. However, in these proceedings no district attorneys or public prosecutors were available. The victim of the crime was responsible for instigating the prosecution and financing it. It was these fundamental principles that stuck with the colonists and were used selectively to create a new and unique criminal justice system.
Many factors influenced the colonists’ selection process by which they constructed their approach to criminal justice. As previously mentioned, there were no professional legal experts and few law resources available. This left a lot of room for creativity and mistakes. The colonists were pretty much left to their own devices concerning the details of their developing criminal justice system. The new environment the colonists encountered in the New World, especially the western frontier, also affected the way the law was shaped. The system was molded to fit the colonists’ necessities as they settled further and further west. Vigilantism was an inevitable byproduct of the faults of the development of justice in America. Religion, especially early on in the colonial period, exerted a strong influence on law making. Legal codes, such as the 1648 Book of the General Lawes and Libertyes of the Massachusetts Bay Colony, contained very strong biblical references than did the ones in England. However, it should be said that this religious impact was felt most strongly in Puritan colonies. Similar ideas were evident in other colonists too. Many colonial makeshift criminal codes considered lying, idleness, drunkenness, certain sexual offenses, and even bad behavior as a crime. These moralistic crimes stemmed from the relation of crime to sin and sin to crime. Adding to the religious factor, the colonists held individual liberty in high regard. This later influenced more contemporary criminal codes.
Institutions of Colonial Criminal Justice
Besides being one of the most important criminal justice officials of the colonial period in America, the county sheriff had other responsibilities. These included collecting taxes, running and supervising elections, and handling any other legal business in the community. With such a workload, they were usually the most important political figure in the county and represented the governor and the English government. In the criminal justice system of the period, the sheriff acted as a reactive official. His job was following up on complaints or information of misconduct from the other citizens. He was paid through a system of fees rather than a set salary which came mostly from tax collecting. This discouraged many sheriffs from concentrating heavily on law enforcement. Such high powers often led to corruption in this field with embezzlement and other irregularities with tax collections and fees.
Just as the sheriff was the major figure in general criminal justice, a judge, or a magistrate, was an important figure in the colonial court system. Even though the judges, also known as justices of the peace, held very influential positions in their counties, they were far from professionals. Instead they were usually religious or political leaders. The county judge was fully in charge of his court and its proceedings and vehemently believed their role in society was to enforce God’s will. Their understanding of God’s will usually had them seek confessions and repentance from the accused rather than just punishment. The main goal was to bring order back to society. Most of the minor cases in the county were handled individually by the judge. However, more serious crimes were heard by a court of several judges. The latter courts met only periodically, slowing down the justice process.
Although the colonial courts did closely mimic the proceedings of the courts of England, they were much simpler and more informal. They were also made available to everyone and used to relieve tensions and conflicts in the community. In addition to hearing the disputes of the local colonists, the courts were also held the responsibilities of the legislature, executive, and judicial branches of the county’s government. These responsibilities illustrated the highly unspecialized nature of colonial government agencies. The courts became connected to an informal role in the county’s social and economic life.
The legal process of trials in colonial America was quite different than the modern one in many ways. After an alleged crime was reported, a magistrate, or judge, would consider the presented evidence and decide whether it was a true crime. If the magistrate decided that a crime was indeed committed the accused was apprehended and sent to be questioned by the magistrate. The interrogation was usually held in the magistrate’s own house with a few marshals or deputies as witnesses. However, during this step in the procedure, no lawyers were involved on behalf of either party. Upon hearing the answers and explanations of the accused, the magistrate would determine whether a trial was necessary. If he decided on the affirmative the defendant was usually free to leave until the trial without bail.
Just as in the interrogation, there was no defense attorney present at the trial and the proceedings moved quickly as each witness testified against the defendant. However, a district attorney, who was often appointed by the governor and assigned to a certain district or county, usually handled the prosecution. Unlike the prosecutors in England, who worked privately and for a payment from the victim, the district attorneys of colonial America handled the prosecution in almost all trials. The district attorney’s position soon became one of the most important political position in county government due to the fact that they often times had to be elected.
The role of the defense attorney was miniscule, if not unheard of, in the colonial period. This stemmed from an English legal tradition of severely restricting the role of the defense to challenging or questioning narrow points of the law. In time the American practice of trials allowed a greater and more vigorous role to the defense of the accused. However, at that current time there were few trained lawyers to begin with and most defendants could not afford one.
Juries were also not used at that time and those who requested them were thought to be challenging the authority of the judge. Since the magistrate who had proclaimed the trial necessary was also the judge who presided over the trial, the verdict was quite often guilty. The main purpose of the trial was to give the defendant a chance to admit their guilt and repent. The theory behind the trial and punishment being very public was that they would serve to reinforce the rules of conduct and discourage others from acting out and breaking laws.
Protection of Cities
The colonists soon realized that a sheriff was not enough to keep their colonies safe and crime-free. Many villages and cities began adding other criminal justice agents to help maintain order. The rising populations were proving to be too much to handle for just one law enforcement agent in the county. The mayor was originally the chief law enforcement official, but he acted only in extreme circumstances. In addition to the sheriff, the mayor appointed a high constable and several lesser constables and marshals to help him. Those holding such positions had powers similar to those of the sheriff.
To protect its citizens during the night, many counties started a night watch, an institution of criminal justice originally inherited from Europe. The night watch consisted of a group of civilians who patrolled and kept watch over the city, making sure to look for fires, suspicious individuals, or possible riots. This was a collective responsibility but few were willing to serve. Certain cities had to impose fines on those who refused.
The night watch, though relatively effective, only served during the night. During the day, the responsibility of protecting innocent citizens and apprehending criminals fell to the constables and marshals. Soon a day watch was implemented in many areas. In extreme situations, such as riots, the colonial communities often had to call out the militia. Even at the first sign of a riot the mayor or some other official would appear and literally read the riot act to the assembled crowd. Riots were common in colonial America. They often occurred for many reasons including to contest elections, to protest economic conditions, or to enforce standards of morality.
For all the crimes the colonists committed, there were plenty of punishments to choose from. Most of the punishments were public, where heavy use of shame and shaming was included. Through the method of shaming, the criminal justice system meant more to teach a lesson than simply punish the offender. The “criminal” was almost always male. However, punishment for such crimes as witchcraft, infanticide, and adultery fell heavily on the women. In addition, much of the blame and punishment for crimes was attributed to those in the lowest rank in society.
Whipping was the most commonly used form of punishment, especially in the south with slaves. Other frequently used punishments were branding, cutting off ears, and placing people in the pillory. These types of punishments were often implemented and tailored to fit the crime. In the colonies executions were a lot less common than back in England. However, when such a method was going to be used, it was most often a public hanging. Usually capital offenses, such as murder or rape, or repeated serious offenses constituted a need for an execution.
Imprisonment was not very common in colonial America since the budding colonies didn’t have any people to spare in keeping the community in order. Every person was valuable for their working ability, and losing even one person was not very reasonable or efficient. The other citizens in the colony also were not able to get enough extra money to build a prison and feed prisoners.
Since probation was not yet known to the colonists, they used a system of nods to guarantee troublemakers would not cause any problems. Courts began to require many problem-causing people to put up money to make sure they would stay out of trouble. This system worked especially well in communities where everyone minded each others’ business.
In the early colonial period, prisons were not yet a major staple in the criminal justice system. They were used mainly for holding people who were awaiting trial rather than punishment. The early jails resembled ordinary houses in many aspects and had no distinctive architectural features. Prisoners were placed in rooms instead of cells and were not classified or segregated in any way. Men, women, and juveniles were mixed together causing many problems.
Overcrowding soon became a big concern, as well as poor sanitation. The jails turned into breeding houses of illness. Furthermore, the jails were even unable to fulfill their basic purpose of containing people within its walls. Escapes were very frequent. The prisons held not only those who were awaiting trial but also people who owed money, called debtors. These people were free during the day so they could work to pay off their debt but they returned to the jail at night. Other prisoners included the homeless, unemployed, or impoverished. They were expected to learn good work ethic during their stay.
The financial arrangements of the jailer were similar to those of the sheriff, especially since the same person usually held both jobs. He was paid by the county through a system of fees. Specific items such as food, clothing, and other things were submitted to the county commissioners for money. Just like other criminal justice positions with a lot of power, the jailer was often corrupt and was notoriously known for embezzling public funds, soliciting bribes from prisoners and their families, selling whiskey to the prisoners, and abusing the inmates.
Administration of Justice in Colonial America
The Crime Problem
The gradual development of a sophisticated criminal justice system in America found itself extremely small and unspecialized during colonial times. Many problems, including lack of a large law-enforcement establishment, separate juvenile-justice system, and prisons and institutions of probation and parole. Criminal matters were also not the top priority of the sheriff and the courts. The lack of a large institutional framework was a result of relatively small and homogenous colonial communities. These colonies were self-policing and social control was maintained by an omnipresent set of informal restrictions. They also depended on community pressure to regulate human conduct.
The system being used in those times was insufficient in dealing with crime partly because of a high degree of unsanctioned decision-making. Colonists found many ways to avoid punishments and evade the intent of the law. Meanwhile, life in colonial America was plagued by crime, disorder, and deviance. Civil leaders complained of such problems as drinking, gambling, prostitution, robbery, and an overall sense of lawlessness in the colonies. In the backcountry there was no law-enforcement at all, but the citizens there were often wracked by riots and mob violence just like in the cities.
An Inadequate System
In response to the growing crime problem, many factors hampered the effectiveness of the criminal justice system. These factors hindered the processes of detecting, apprehending, prosecuting, and punishing criminals. Previously mentioned factors include:
Another important factor undermining the effectiveness of the criminal justice system was the attitudes of the colonial citizens. There are records of many court cases that involved disrespect for authority suggesting that officials were not held in high regard. The difficulties for practicality of reporting crimes greatly increased the proportion of underreporting crimes compared to actually reported crimes. Also, for many reasons, people did not always want certain laws to be enforced. These colonists adopted a sort of live-and-let-live attitude, ignoring the laws.
There was also a great discrepancy between the principles and practices of criminal justice. Many officials exercised great discretion in disposing of cases and juries exercised freedom in reaching their verdicts. Neither of these would be tolerated in the present day. A tradition of jury lawlessness developed as juries ruled on the appropriateness of the facts in the case before them as well as the laws that they thought were connected. This practice lasted until well into the nineteenth century. Judges also handed down sentences that reflected a skewed and individualized form of criminal justice. Some of the penalties they enforced were not even prescribed by the law.
The most obvious mitigation punishment in the colonial system was dealing with the death penalty. In the colonies, the death penalty was prescribed for only a small number of crimes and was not frequently used. In addition, there existed an exemption from the death penalty called the “benefit of clergy.” It started being applied to clergymen but was eventually extended to laymen who could demonstrate their great religiousness by either reading or reciting from memory a passage from the Bible.
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