"ANNALS of the American Academy of Political and Social Science, The"

Schwartz, Louis B.

doi: 10.1177/000271626233900101pmid: N/A

Schwartz, Louis B.

doi: 10.1177/000271626233900102pmid: N/A

One can speak only loosely of an American penal system. Fifty states each exercise virtually complete inde pendence in the criminal law field. The federal government is not specifically granted powers under the Constitution to en act criminal legislation, but a comprehensive body of criminal law has evolved through the exercise of other constitutional powers. Thus, at present, criminal laws and aims of the penal system are diverse. Certain influences, however, have affected the development of all the penal codes. These influences are the English common law, Puritan standards of the seventeenth century, and the American frontier. From the frontier comes the emphasis upon lay participation in the legal process. This is clearly represented in the institution of the jury and in its effect upon law, precedent, and court procedures. The gen eral American and English hostility to ideology, fully as much as the lay element, has served as a brake upon codification and radical reform. As a result, the American penal system tends to be anarchic, complicated, naively moralistic, and lay- determined, but it is, at the same time, experimental, creative, and progressively more merciful. With the passing of the frontier and the receding into history of Puritan theocracy, the forces which produced the current penal system are yield ing to new influences. The Model Penal Code, profoundly American in spirit and technique, would end the dependence of the penal code upon the common law and offers system and precision in place of frustration and bafflement.—Ed.

Sellin, Thorsten

doi: 10.1177/000271626233900103pmid: N/A

To describe the scope, nature, and trends of criminality in any country, it is necessary to rely upon crimi nal statistics. The task is made difficult in the United States by the multiplicity and diversity of jurisdictions, each state as well as the federal system having its own criminal legislation, its own police, courts, and correctional agencies, and its own methods of compiling and publishing criminal statistics. The most important national series of criminal statistics is pub lished by the Federal Bureau of Investigation. It was claimed that 89 per cent of the United States population resided in the areas covered by those reports in 1959. There exists the general limitation that statistics are based on crimes known to the police. Also, the picture of criminality will depend on the stage in the law enforcement process at which statistics are gathered, because a process of selection operates at each stage between offense and sentence. As traditionally constructed and published, criminal statistics are deficient in a number of respects. They do not, for example, reveal occupation, em ployment status, or social class of offenders, nor do they show the existence of organized crime or gang, even juvenile gang, activity. The social and financial costs of criminality are great enough to warrant information sufficiently detailed to provide an improved basis for preventive action and repressive meas ures.—Ed.

Wechsler, Herbert

doi: 10.1177/000271626233900104pmid: N/A

When conduct has the external attributes of a crime, should further mental elements be required for convic tion, and, if so, what should they be? Decisions have too frequently been imprecise in analysis and inconsistent in re sults, yielding a multitude of single instances which in the ag gregate dilute the moral force that should attach to condemna tion of behavior considered criminal. Criminal liability may justly be based only upon conduct which includes a voluntary act or the omission to perform an act which the actor was physically able to perform. Act or omission are essential pre requisites to liability, but they are not sufficient to establish culpability. The Model Penal Code proposes four concepts to describe the kinds of culpability which are sufficient to es tablish liability: purpose, knowledge, recklessness, or negli gence. The doctrine of strict liability, ignorance and mistake of fact, intoxication, and ignorance and mistake of law are pertinent to establishing liability. One of the most conten tious problems of the penal law concerns the criteria that should determine when individuals whose conduct would otherwise be criminal ought to be exculpated on the ground that they were suffering from mental disease or defect when they acted. The Model Penal Code would exculpate the person who, as a re sult of mental disease or defect, lacked substantial capacity either to appreciate the criminality of his conduct or to con form his behavior to the requirements of law.—Ed.

Collings, Rex A.

doi: 10.1177/000271626233900105pmid: N/A

Laws covering crimes of violence against the person, in statute and in decision, although they vary among jurisdictions, have been significantly influenced by the com mon law of England. The four categories of common law homicides, except for the occasional combination of justifiable and excusable homicides, are used in every jurisdiction. Malice aforethought and felony murder doctrines are retained. Assault, battery, and mayhem remain in the law, and the Model Penal Code proposes a complete revision based on bodily injury. Common law definition of rape prevails, and, for common law and for statutory rape, penalties, although varied, are severe. Mistake of fact as to age adds an inter esting dimension to the problem of statutory rape. False im prisonment, a misdemeanor at common law, is retained in only fourteen jurisdictions; in extreme cases, it falls under kidnap ping statutes. Kidnapping, a misdemeanor at common law, is treated with far greater severity in the United States than in Europe. The factor of brief detention or asportation makes it possible to prosecute other crimes, for which there are im prisonment penalties, as kidnapping, a crime for which there is a possible death penalty. American criminal law has some times retained archaic common law concepts that should have been discarded, and it tends to ad hoc change more in response to emotion than to reason. Recodifications, much needed, are rarely attempted. The Model Penal Code, however, does exist as a beacon and guide.—Ed.

Allen, Francis A.

doi: 10.1177/000271626233900106pmid: N/A

Early laws of crimes against property clearly identified the forms of property necessary to the survival and prosperity of the community. Commercial and industrial de velopments in the modern era have made new and difficult de mands upon the law as forms of property and means to offend have gained in number and complexity. The modern Ameri can law of theft derives directly from the common law and from supplementary English legislation. Larceny, the basic theft offense, is distinguished by trespassory taking and in cludes larceny by servant and by trick. Personal goods and chattels are larcenable. False pretenses, embezzlement, and receiving stolen property also fall under the laws of theft. There are trends and proposals toward consolidated theft stat utes defining a single offense composed of the elements of sev eral theft offenses. Certain offenses against property also con tain elements of peril to life and limb. These offenses include robbery and extortion, arson and related offenses, and burglary. The states with their police power are equipped to legislate directly on offenses against property. The federal govern ment chiefly acts under its powers in connection with foreign and interstate commerce, revenue, war, and the postal system. Although Anglo-American law has developed in response to new demands, revision has not generally kept pace with un derlying economic changes. Deficiencies exist, and fundamen tal legislative reconstruction is required.—Ed.

Packer, Herbert L.

doi: 10.1177/000271626233900107pmid: N/A

Offenses against the state fall into two cate gories : conduct inimical to the very existence of government, and offenses which affect the orderly and just administration of public business. Treason, which shades into sedition or advocacy of overthrow, and espionage are examples of the for mer. Although the United States Constitution was designed to limit the definition of treason to exclude "constructive trea son" as used in England, sedition laws giving similar effect have been passed in times of crisis. First Amendment problems have made prosecutions for subversive activities of livelier interest in constitutional than in criminal law. Examples of offenses which obstruct governmental operations include per jury, bribery and corruption, and criminal libel and contempt by publication. Convictions for actions to obstruct are gen erally difficult to obtain. Prosecution for perjury, however, has been undertaken in a number of cases in which the stat ute of limitations proscribed prosecution for espionage or a more serious charge or where a conviction on another charge could not be obtained. It has always been difficult to delineate satisfactorily free political activity and extralegal conspiracy contemplating force and arms rather than persuasion and the ballot. To the credit of American political institutions, patri otic excesses, popular, legislative, or administrative, have gen erally been checked by an independent bar and an independent judiciary, and criticism of governmental action which jeopard izes political liberty is freely voiced in Congress, the courts, and the press.—Ed.

Donnelly, Richard C.

doi: 10.1177/000271626233900108pmid: N/A

Law enforcement requires a sensitive and wise discretion in police decisions whether or not to invoke the criminal process when law violators are uncovered. As an administrative and moral necessity, the policeman informally judges and settles more cases than he takes to court. There are many rules of law limiting the power of arrest and impos ing duties on police officers after arrests are made. Arrests with and without warrant raise constitutional questions as to probable cause and reasonable cause respectively. After ar rest, appearance before a magistrate must follow without un necessary or unreasonable delay, requirements variously de fined by the different jurisdictions. Police practices sometimes depart from prevailing rules of arrest, and the courts must exer cise particular vigilance, especially in such matters involving individual liberties as search and seizure, wire tapping and eavesdropping, use of informers, interrogation of suspects, and the like. Generally, the federal courts tend to be stricter than the state courts about the admissibility of evidence, giving rise to wide divergencies and ambiguities. Technological sophisti cation has increased in scope and reliability the means of ob taining evidence. In the use of these techniques, controls must be exercised to protect individual and other democratic guaran tees at the same time that civil order is maintained.—Ed.

Miller, Frank W.; Remington, Frank J.

doi: 10.1177/000271626233900109pmid: N/A

The arrest of a suspected offender is the first official action in a criminal case. Then, the prosecuting at torney must decide whether to charge or not. For borderline business misconduct, default of family obligations, or similar offenses, except with habitual offenders, a settlement is sought rather than prosecution. The prosecuting attorney must deter mine whether to charge the most serious offense for which the evidence will support a finding of probable cause. With the multiple offender, it must be decided whether to prosecute for one or all of the offenses committed and, if the latter, whether to prosecute once or successively. Usually, the willingness of the offender to plead guilty is taken into account in deciding upon a charge and, sometimes, in fixing sentence later. A complaint sworn to by a private complainant or by the police officer and a warrant issued by a magistrate are the documents representative of the decision to charge. All suspects must be brought promptly before a magistrate to hear the reading of the warrant. Minor offenses triable by a magistrate may be tried summarily. For more serious offenses, a preliminary examination will be scheduled, if the suspect desires, and bail will be set. Where a grand jury is used, it performs the same function as the preliminary examination. If the preliminary examination or the grand jury finds probable cause to believe the suspect guilty, the suspect is bound over to a court of trial jurisdiction.—Ed.

Knowlton, Robert E.

doi: 10.1177/000271626233900110pmid: N/A

American criminal trials derive from the Eng lish pattern as modified through the frontier experience of the United States. The adversary concept and the aloof judiciary in criminal procedure reflect a concern for the proper relation ship of government and individual. Generally, criminal trials go through the following steps: arraignment and plea; selec tion of the jury; prosecutor's and accused's opening state ments; presentation of the state's and the accused's evidence; prosecutor's and accused's arguments to the jury; prosecutor's rebuttal; judge's instructions on the law; rendition of jury verdict; sentencing by the judge. Some lesser offenses are tried before a judge sitting without a jury. Depending upon defense's evaluation of tactical advantage, jury trial may be waived in other cases. Also, the opening statement and the presentation of evidence by the accused may be waived, and the defendant may or may not testify in his own behalf. After the verdict, the defense may move for a judgment notwith standing the verdict, for a new trial, or to arrest judgment. After sentencing, the case may be appealed to a higher court, or denial of due process may be charged in order to litigate further. Particularly in close cases, great responsibility de volves upon counsel. Also, the defense is handicapped in in vestigating facts. But, the government cannot appeal a case which it has lost.—Ed.