CRIMJ220:

Introduction

As Pearl Buck said, "if you want to understand today, you have to search yesterday." So this week, we will search through a thumbnail sketch of American history to find clues about how our criminal court system developed. Native American cultures employed complex systems of justice, and you can learn more about those systems here.  For this class, we begin our exploration of American courts in the colonial era, then move quickly through the revolutionary, industrial, and world war eras. Finally, we will wrap up our whirlwind tour of the history of the courts in the mid-1900s. 

Objectives:

Upon completion of this lesson, students will be able to:

• Discuss the historical origins of the American legal system.
• Explain the foundations of the adversarial legal process and the common law heritage.
• Outline the historical development of the judicial branch of government
• Describe the historical contexts in which the courts have evolved

Thought Provoking Exercise

1600s and Early Colonial Period

As you know, the United States did not exist in the 1600s. Instead, the geographic region now known as the Eastern Seabord was a hodge podge of various colonies, developed and run by immigrants from England, France, Holland, the Netherlands, Portugal, and Spain. Those immigrants brought with them their cultural, religious, and legal heritages, and their legal systems within the colonies reflected those heritages. The laws of the colonies were byproducts of religious and cultural beliefs. Because no two colonies had the same traditions, no two colonies had the same system for dealing with crime, either. For example, the New England colonies, which largely were farming communities with strong religious foundations, tended to be very strict in their criminal laws. In New York and eastern New Jersey, criminal prosecutions were a bit more lenient. In Maryland, Virginia, and the Carolinas, there were almost no organization among the criminal courts, and prosecutions were quite arbitrary. The courts did not hear nearly as many cases as their northern neighbors, but their conviction rates were much higher.[1]

1700s and the Latter Colonial Period

The eighteenth century may best be characterized as a period of social and cultural development - development of distinctive American culture with distinctive American views on autonomy and self-governance. Throughout this century, and culminating in the American Revolution, tensions mounted between colonies and the Crown.

But before we get to the American Revolution and its impact on our court systems, we must understand how the colonies evolved prior to the Revolution. Up until the middle of the century, colonies continued to be owned or operated by myriad European powers. Religion continued to dominate cultural, social, and legal matters. By the middle of the 1700s, Protestant England and Catholic France had grown to dominate most of the western world.  While some of us may think of the colonies as being English in origin, France maintained a great deal of power within the American settlements. These two world powers eventually clashed in almost a decade of war, the war that we usually call the French and Indian War.  England won, and that victory resulted in a massive overhaul of the colonial map.  England owned almost everything – the land, the colonies, and many of the colonists. Therefore, England also dominated in the way law developed in the colonies.

Post-Revolutionary America and the 1800s

As you know, the Revolutionary War ended (or started to end) in 1776. In the aftermath of that War, big changes occurred in the way all of our laws and justice systems developed.  We cannot possibly cover all of the historical developments here, but I would like for you to take a look at the three most influential documents of that time: The Declaration of Independence, the Constitution, and the Bill of Rights. The Declaration of Independence, (which was based on the ancient Magna Carta) established for the first time that the colonists had “inalienable” rights to life, liberty, and the pursuit of happiness. (However, at the time, the word "colonists" referred only to the white men.   Poor people, former slaves and women were added later.)

Next, the Constitution laid out the structure for our government, and the Bill of Rights established the essentials of all of the rights we now take for granted with the criminal justice system, such as the right to a trial, the right to an attorney, the right to remain silent, and the right to have a jury hear our criminal cases.

Article III of the Constitution creates a Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” Those are not very clear instructions!  So it is not surprising that the “inferior courts” – meaning the lower trial and appellate courts – went through a lot of growing pains. As the populations within the states grew, legal issues became more complex. And the courts necessarily became busier and more complex, too.

In order to manage the rapid growth in population and lawmaking, Congress passed multiple Judiciary Acts that molded the way the federal courts operated. Remember, these Acts applied only to the federal courts.  The state courts, which handle most criminal matters, cherry picked from these Acts to create their state-level court systems, which we will cover in the next Lesson.

Volumes of books have been written about all of the significant changes that occurred within the courts during the post-Revolutionary era.  But to sum it all up, there were six fundamental changes that you need to be familiar with in order to really understand how our modern criminal courts came into being:

• We moved away from having the King appoint our judges, with some states having popular elections and others using gubernatorial or legislative appointment;
• Although federal judges continued to be appointed for life, the states adopted term limits for judges as part of the effort to reduce their power and influence;
• We implemented means of controlling judicial discretion and jury behavior by requiring judges to use “jury instructions,” which will be discussed more in the Lesson about Juries;
• We started to see interest groups acting as “amicus curia,” or “friends of the court.” For example, people affiliated with the Progressive movement formed the Society for the Reformation of Juvenile Delinquents and started lobbying the courts to treat children differently than adults in the judicial process.
• The professional prosecutor emerged.  Previously, private citizens prosecuted crimes.  This era saw the development of a professional prosecutor to handle criminal cases; and
• The legal field, including the judiciary, became more formal and professional.  Beginning during this era, lawyers and judges had to go to special schools and obtain special certifications (sort of like our modern law schools and bar exams).

That is a lot of information to absorb, isn't it?  Do not worry, we will revisit all of these points later on.  Right now, I simply want to introduce you to the ideas and concepts.

The Civil War and Industrialization Eras, 1850s-1900

During the Civil War, the reform efforts of the early 1800s grinded to a standstill as the Nation faced the struggles of protracted war. The criminal court system endured a shameful period of terrible decision-making during this era.  The Supreme Court’s decisions in Scott v. Sanford (“the Dred Scott Decision”); its failure to take action to abolish slavery through common law; and the confusion surrounding President Lincoln’s suspension of the writ of habeas corpus (Ex Parte Milligan, 1863) cast an ugly shadow over the entire judicial system. Although the Supreme Court and the inferior courts survived despite the bad decisions, the seeds of distrust of judicial decisions were planted, and it would be decades before the courts regained the respect of the people.

One practical change that occurred was the emergence of guilty pleas and plea bargaining. Until 1883, defendants could not plead guilty and certainly could not enter into plea negotiations. Remember, back then, many crimes were punishable by death. So if you pleaded guilty, you were essentially committing suicide! In the decades that followed, the death penalty was used less and guilty pleas became common place It also started to become more common for people to try to get a plea bargain.

The 1900s

Much like the post-Revolutionary period, the early 1900s and up through the 1960s dramatically changed criminal procedure and the operation of the courts. The “due process revolution” of the 1900s[1] changed the courts from one-sided affairs with all-powerful judges to adversarial proceedings in which defendants have many rights.  If you think about the way courts operate today, you will see what I mean.  Remember that in the old days, defendants could not call witnesses?  Or have a lawyer to represent them? And sentencing was an arbitrary process fraught with discriminatory bias. We have come a long way.  Now, thanks to the Supreme Court’s interpretation of the Bill of Rights and the Due Process Clause, American law provides criminal defendants with a plethora of rights and privileges.  Keep this point in the back of your mind as we move throughout the prosecutorial process.  Every now and then, think about how the case would have been handled in the 1600s, or 1700s... it is amazing to reflect back on how far our laws have come in the relatively short time that we have been a Nation.

Lesson Assignments:

Summary

You have just completed a whirlwind tour of the history of American courts and the development of the adversarial judicial process. As we move into a deeper analysis of various stages of the prosecution process, keep these constitutional, jurisdictional, and philosophical issues in mind.  You will see that history infuses everything that our courts do today.