Principles of Criminal Law and Punishment: Historical Evolution and Philosophical Underpinnings

I. Historical Evolution from Localized Punishment to State Control

A. Early Forms of Justice and Punishment

Blood Feuds (Pre-state era): Disputes were settled between families, often continuing for generations. An offense by one family member could lead to the entire family seeking vengeance for the incurred "debt." Sometimes, this 'debt' was paid with a life offered by the family.
Weirgild: A "price for a life," often administered by the church or village elders in local settings. This system pre-dated state-controlled punishment.
Modern Examples of Blood Feuds: Still observed in some cultures, like the example shown in Turkey (though the specific location was momentarily forgotten by the speaker).

B. The Transition to State-Administered Justice

Shift in Authority: A fundamental change occurred from dispute resolution by families or villages to the state delivering and administering punishment. This transition was crucial for the development of justice systems.
Concept of Common Law: To enact justice uniformly across larger areas, the concept of common law emerged.
- Definition: Laws evolved from court decisions and are punishable by the state, applying universally to everyone within a specific jurisdiction.
- Contrast with Blood Feuds: Differentiated from localized, varied systems (family-by-family, village-by-village, culture-by-culture) by establishing a standardized legal framework.
Historical Jurisdictions: Initially, jurisdiction could be tied to land ownership (e.g., wealthy landowner dictating law and punishment). Local jails served as holding places, with actual punishment often involving labor, debt, or torture.
Emergence of Larger Jurisdictions: Over time, larger governmental entities began taking control over broader bodies of law, moving away from localized feudal rule. This preceded the concept of a federal government (a U.S. construct following the Constitution). The question shifted from who reigned over what land, to what rules and punishments applied, and who had the authority to punish violators.

C. Reasons for the Movement Toward Common Law

Standardization: A primary driver was the need for consistency across towns and villages. Standardization ensured predictable outcomes for legal violations.
Deterrence (Beccaria and Neoclassical Theory): A core purpose of punishment is deterrence of crime. This is an absolute principle. For punishment to deter, people must know the outcomes of their actions.
- Principle: "No law, no crime" and "No punishment, no crime." A law must exist to be violated, and punishment must be effective in deterring the act; otherwise, it is not punishment but merely torture.
Social Control: Law functions as a system of social control, defining right and wrong and enforcing norms through punishment. This can be seen in modern debates like free speech, where company policies (influenced by potential federal funding) can act as a form of government social control, raising questions about First Amendment rights.
- Amendments: In the U.S. context, amendments were created to protect individual rights against potential federal government overreach, reflecting an ongoing balance between state power and individual liberties.
Magna Carta (1215): A significant turning point; it established that common law and its punishments applied not only to commoners but also to rulers, signifying that no one was above the law.
Statute of Westminster: Aimed to reform and codify English common law, creating a more structured legal system and protecting individual rights by mandating a fair legal process.

D. Mechanisms of Common Law Application

Traveling Judges: To ensure consistency across diverse cultures and regions, judges began traveling from village to village under a larger governmental entity.
Writing Down Laws: This practice facilitated sharing and standardization. Judicial decisions and precedents from one village (e.g., Village B) could be communicated to judges in others (e.g., Village C) to maintain consistency.
Legal Precedent (Stare Decisis): Law is precedent-based, meaning judges do not invent new punishments for each case. Decisions are guided by past rulings (recent and distant), current laws, and similar conditions. This ensures consistent application of the law.
Jury System: Introduced the concept of peers from one's village assessing whether laws were applied correctly and helping to impose punishments within the framework of common law.
Fair Legal Process: Standardization meant that everyone involved in the criminal justice system would undergo the same process (e.g., court proceedings, judge comportment). This ritualized formality reduced randomness, replacing informal practices.
Defined Penalties: Laws and law enforcement began to define clear penalties for specific crimes, empowering royal courts over feudal courts to ensure uniform application and prevent local lords from acting with impunity.
Common Law Courts: Modern courthouses (like Nassau County Courthouse) are direct descendants of these early efforts to standardize legal processes and formalize judicial proceedings.
Adversarial Legal System: The right of an individual to have legal defense against the state/court (e.g., an attorney to argue one's case) developed as part of this process. This right is not universal globally.
Hierarchy of Courts: The development of a tiered court system (lower, appellate, supreme courts) with different jurisdictions and functions ensured a structured process for cases and appeals. The Supreme Court hears a limited number of cases, often deferring specific decisions to lower courts.

II. The Emergence of Prisons as a Form of Punishment

A. The Case of Polly Klass and "Three Strikes" Law

The kidnapping and murder of Polly Klass in California, committed by a repeat offender, fueled public demand for longer prison sentences. This event was a primary motivation for California's harsh "three strikes" law, mandating 25 years to life for felons committing new crimes.
This event deeply influenced the speaker's childhood perception of prison as the appropriate punishment for "bad people."

B. Prisons: A Relatively Recent Development

Modern Origin: Prisons, as institutions for long-term confinement of convicted offenders, are a relatively recent development, emerging only about 230 years ago, around the time of the American and French Revolutions. They first appeared in the U.S., then England, Canada, and France.
Distinction between Jails and Prisons:
- Jails (Historical): Were holding tanks, not places of punishment. They housed a mix of people (debtors, vagrants, accused and convicted criminals, witnesses) for short periods (days, weeks, maybe months).
  - Examples: Debtors stayed until debts were paid; accused criminals awaited trial (could be up to 3 months due to quarterly court sessions); convicted criminals might return after punishment to pay fees/fines. They were often overcrowded, disease-infested, and violent.
- Prisons (Modern): Specifically designed for punishing convicted offenders through long-term confinement.

C. Punishments Pre-Prisons

Capital Punishment: The dominant (though not most common) form, involving public executions (hanging, burning, boiling, drowning, stoning). Executions were often painful and public spectacles.
Corporal Punishment: Also public and painful, including whipping, ear cutting, branding (cheek or hand).
The Pillory: A milder public punishment where individuals were exposed to mockery, jeers, and thrown rotten food/rocks for a few hours or a day. Public humiliation was a key component.

D. Reasons for the Shift to Prisons

Disgust with Public Punishments: Growing sentiment in England, other European countries, Canada, and the U.S. that public, painful punishments were distasteful.
Lack of Deterrence: Public spectacles like executions proved ineffective; people were still committing crimes (e.g., picking pockets during an execution).
Conditions of Jails: Jails were seen as overcrowded, unsanitary, and violent, prompting concerns.
Penal Reformers and Political Theorists: Proposed prisons as a new method to punish convicted criminals with long-term confinement, believing it could facilitate reform.

E. Controversies and Challenges of Early Prisons

High Expense: Prisons were (and remain) significantly more expensive than scaffolds, pillories, or basic jails. They required large stone edifices, years of construction, and a paid staff (wardens, superintendents, guards), unlike old jailers who were paid by prisoners.
Humaneness: There was great uncertainty about how individuals would react to long-term captivity and whether prisons would be sufficiently humane.
Ability to Reduce Crime: Given the prevailing belief that crime was caused by one's environment (e.g., negative influence of friends/family), prisons were designed to limit contact with the outside world and prevent interaction among prisoners (e.g., forbidding talking, solitary confinement). The goal was to remove bad influences.

F. Early Failures and Experiments in Solitary Confinement

New York's First State Prison: Experienced riots in the 1810s and was declared a failure, leading to the authorization of Auburn State Prison.
Auburn State Prison (Early 1820s): Initial experiment involved total solitary confinement for the "hardest and most atrocious offenders" in cells about a meter wide. This led to severe mental and physical health problems:
- Muscle atrophy
- Disease
- Mental decompensation (insanity)
- Self-mutilation and attempted suicides
- Deaths
Policymaker Response: Officials ended this extreme experiment after a few years, declaring this specific type of solitary confinement unacceptable. However, they did not question the concept of imprisonment itself, despite acknowledging that people still suffer and die in prisons, even outside of total solitary.

III. Contrasting Prison Models, Enduring Questions, and Ideological Shifts

A. Developed Prison Models

Auburn Approach (New York): Prisoners spent nights in solitary confinement but worked silently together in large, factory-like rooms during the day. Officials still believed some form of solitary was necessary for prison function.
Pennsylvania Approach (Eastern State Penitentiary, Philadelphia): Prisoners endured their entire sentence in solitary confinement within larger cells. They received weekly visits from reformers and administrators for literacy education and mentorship (desired or not). In-cell work (making shoes, chairs, cabinets) and access to a small private exercise yard were also part of the routine. The Quakers, as political reformists, heavily influenced this model, believing in internal reflection and change through silence, prayer, strict routines, and forced mentorship.
Widespread Adoption: Both models were copied country-wide, with most states incorporating some form of solitary confinement.

B. Persistent Criticisms and the Normalization of Prisons

Intense Scrutiny and Criticism: Early prison failures, particularly total solitary confinement, led to ongoing public anxiety and criticism. Much of this focused on Eastern State Penitentiary.
Charles Dickens' Observations: The English author was horrified by Eastern State, criticizing its imposition of "anguish so acute and so tremendous that all imagination of it must fall far short of the reality." He believed prisoners were being tortured and driven insane. However, Dickens praised the Auburn approach.
Shift in Blame for Failures: When problems arose, criticism was directed at the specific approach to incarceration or the individual prison staff, never the prison system itself. The focus became fixing the "worst parts" rather than reconsidering the existence of prisons.
Normalization: Over time, the early anxieties about long-term confinement faded. Society became accustomed to prisons as the natural response to crime. The U.S. reached historically unprecedented incarceration rates, focusing on how often people are imprisoned rather than if prisons should exist.
Contemporary Solitary Confinement: Despite knowing since early prison experiments that solitary confinement causes mental anguish and is torturous, it continues to be used today (e.g., as a punishment within prisons, or for control of inmates with mental illness or addiction).

C. Ideological Shifts and the Nature of Crime

Michel Foucault (Implied): The shift in punishment ideology moved from physical torture and public spectacle to the "mental" or "soul," allowing for the concept of reform.
From Elimination to Change: Earlier views saw some criminals as irredeemable (e.g., possessed, evil) and thus to be eliminated. The reformist ideology, however, sees criminality as changeable and focuses on transforming the individual's mindset.
Rise of Criminology: The development of criminology as a scientific discipline sought to locate criminality in the body (e.g., cranial shape, brain size), viewing it as an abnormality rather than purely demon possession or sin. This moved the understanding of crime from norm violation to inherent "criminality."
Shift from Collective to Individual: This ideological change runs parallel to the growth of capitalism and the movement from agrarian, group-based societies to more individualistic ones. Crime shifted from being seen as a collective or environmental issue (e.g., a blood feud affecting an entire family) to individual responsibility ("individual criminality").
- Consequence: The state no longer punishes entire families for an individual's crime, reflecting this individualistic focus.
Indoor Confinement vs. Public Spectacle: The move to indoor, austere prison buildings from public square punishments reflects the difficulty of regulating public punishment, the standardization of state control, and the emphasis on individual (mental) reform rather than public shaming.
Challenging Assumptions about Punishment: The permanence of prisons is not inevitable. Historical alternatives like crates on ships, chain gangs, work camps, or exile (e.g., Australia as a penal colony) highlight that societal choices, not inherent necessity, led to the prison system. The question arises: if not prisons, then what? And how would different crimes be handled (e.g., chronic offenders, those committing heinous crimes)?
Law's Role: The crucial question is not what individuals believe about punishment, but "how has the law changed to reflect that ideological change?" The law sets the boundaries for what is legally permissible in punishment, not public opinion.
- Example: Televised executions, chain gangs, or forced military service for prisoners raise fundamental constitutional and legal questions about torture, rights, and social control.
Purpose of Deterrence: If deterrence is the goal, efficiency is key. Solitary confinement, though mentally torturous, is still used, often for controlling prison populations with increasing mental illness, addiction, and violence, rather than for its original Quaker-influenced reformative purpose.
The Evolving Punishment Landscape: The development of prison systems, as institutions of social control, is a direct reflection of evolving ideological beliefs about the nature of crime – moving from physical, public punishment impacting the group to individualized, often privatized and sanitized, indoor confinement targeting the individual's 'soul' or 'mind'.