Criminal justice in U.S. history

Significance: The evolution of the American criminal justice system provides insights into understanding the system as it is presently constituted.

The development of the criminal justice system in the United States is closely tied to that of Great Britain, from which the United States drew the basis of its own government and legal system. The origins of the British criminal justice system date back to tenth century England, when the mutual pledge system arose. Under that system, families banded together in groups of ten called tithings. The tithings in turn banded together in groups of ten, each helping to keep order among the others. An officer called the shire rieve—which later gave rise to “sheriff”—oversaw groups of hundreds. That system began the development of criminal justice, but there was poor law enforcement because there was no supervision and some people did not want to participate in the mutual pledge system. Mutual pledge did not reduce or deal effectively with crime; this led to the creation of the posse comitatus system, in which members of communities were chosen to help victims of crime bring justice to offenders.

Colonial America

Early courts in England—both the courts of the king and the church courts—were highly unpredictable and corrupt. After England started founding colonies in North America, the settlers created many of their own rules for criminal justice, in part because of their dissatisfaction with the shortcomings of England’s system. Early American law drew on English legal traditions, biblical law, and the colonists’ own ideas.

Every British colony had its own criminal code, but all laws fell into four major crime categories: crimes against persons, crimes against property, crimes involving sexual acts, and misconduct considered socially harmful. Colonists used the English law-enforcement system, bringing with them the concepts of trial by juries of peers, taking of testimony under oath, and impartial courts. English legal tradition relied heavily on death as a form of punishment, but the North American colonists preferred to have a wider variety of punishments to choose from, including incarceration, whipping, and banishment.

The criminal justice system in the colonial era differed greatly from modern American criminal justice. Public police forces were not yet established, public prosecutors and public defense attorneys did not yet exist, there were no criminal appeals, a separate juvenile justice system had not been established, and there were no specialized courts, such as modern drug courts. Responsibility for law enforcement rested primarily on private individuals, through dueling to uphold codes of honor, church tribunals, and vigilante groups. Among peace officers, there was a great amount of corruption, including accepting bribes and assaulting citizens without cause. Grand juries of twelve to sixteen members acted as “sworn presenters,” responsible for watching the other townspeople and bringing illegal activities to the attention of the courts. The powers of arrest of untrained peace officers, constables, and sheriffs were limited to only those crimes that they personally witnessed. Some colonies adopted England’s hue-and-cry system for pursuing offenders. Under that system, constables and sheriffs called for all able-bodied men to pursue criminals.

When suspected offenders were arrested, they were brought before judges, who decided whether to issue bail. After the arrestees entered pleas of guilty or not guilty, their cases went to trial. Persons familiar with the law were occasionally called upon by the accused to clarify laws during trials; however, defense attorneys were not commonly involved in the courtroom until the 1730s. Around the time of the American Revolution, the role of defense attorneys became more important as greater emphasis was placed on individual rights.

Defendants who pleaded guilty or who were found guilty by juries were punished publicly. Punishments included admonitions to behave correctly in the future; fines, which were paid in money or tobacco; forced public displays of guilt, such as wearing a scarlet letter A in cases of adultery,B for burglary, and D for drunkenness; temporary confinement in stocks and pillories; indentured servitude; whipping; banishment; and hanging. Most crimes during the colonial period were minor violations such as trespassing. Major predatory crimes were virtually nonexistent. Jail terms were rarely used as punishments, and such jails as existed were primarily holding facilities, in which accused persons awaited trial.

The Nineteenth Century

The first modern police force in the world was created in London, England, in 1748, when Henry Fielding designed a full-time force from among men who wanted to be police officers. His untrained and nonuniformed force became known as the Bow Street Runners. Many of the men who wanted to be police were criminals or violent, and the Bow Street Runners became unpopular because of their corruption and violence. Following Fielding, Sir Robert Peel created the first trained, professional police force in 1829 under England’s Metropolitan Police Act. Members of this force became popularly known as “Bobbies,” after Peel’s given name. Like the Bow Street Runners, the Bobbies were initially unpopular, as poor residents of London viewed them as protecting the rich. However, the Bobbies carried no weapons, and the public gradually began to accept them.

British ideas about police carried over to America. However, the first American police were mostly private forces made up of part-time police officers and had only loose ties to government bodies. In 1838, Boston created a police department that modified and consolidated the existing law-enforcement practices and began regular patrols of the city. Soon afterward, New York City formed a modern police force, with police officers who walked beats.

Social and economic changes brought by large-scale immigration and rapid urbanization and industrialization led to many riots and disorders that prompted changes in the criminal justice system. From the 1840s to the 1930s, private law-enforcement bodies and vigilante groups slowly lost popularity, as modern police forces were developed. There was a general trend in criminal justice toward professionalism, with uniformed police, professional public prosecutors, defense attorneys, and the development of plea bargaining to resolve cases in criminal courts. Meanwhile, the idea of separate juvenile courts and “schools” began to emerge. Chicago established the first juvenile court in 1899. Executions moved from public hangings to gas chambers and electric chairs.

Although the idea of prisons originated in England in the sixteenth century, they were used sparsely in America to rehabilitate inmates through hard labor and religion. Pennsylvania’s Walnut Street Jail opened in 1790 with a similar purpose, but its conditions were harsh, and it provided only limited amounts of work for its inmates. Penitentiaries became common tools for incarcerating offenders in the United States during the mid-1820s. Instead of punishing offenders publicly, the prisons isolated them from their communities.

In 1850, there were only 6,737 inmates of prison in the thirty-one states. That number rose to 30,659 inmates in 1880 and 57,070 inmates in 1904. Due to appalling conditions in the prisons, there were many calls for prison reform. Suggestions included moving inmates from prisons to reformatories and focusing the time the inmates spent in incarceration on productive work, education, and religion. By end of the nineteenth century, separate reformatories were being built for women prisoners.

The Early Twentieth Century

While trying to create professionalism in the criminal justice system, the new police forces were still characterized by their corrupt practices. The police officers themselves were often hired by corrupt government officials and politicians, whom they, in turn, tried to protect. Police officers collected bribes, kickbacks, and regular payoffs from criminals to overlook criminal activity.

During Prohibition, from 1920 to 1933, the public began to view police negatively for the first time because the police enforced the extremely unpopular laws banning alcohol. With this and the great corruption exposed by the Wickersham Commission Report in 1931, the public greatly resented the police and called for reform.

The Prohibition era also saw the emergence of gangsters, such as Al Capone, and rising government and public concern about organized crime. There appeared to be a great surge in crime, but the government had no empirical evidence to support that notion. Under the leadership of J. Edgar Hoover, the Federal Bureau of Investigation began compiling crime statistics in what is known as the Uniform Crime Reports (UCR). Modern police departments around the country now submit annual reports to the UCR, which maintains the database of crimes known to police.

From the 1930s to the 1970s, police departments began following a more legalistic style of policing, based on strict adherence to the law. With advancing technologies, the police were moving away from walking beats to responding to crime from departmental offices. Ideas about corrections changed as well, with the creation of probation and parole officers to monitor offenders in communities.

Civil Unrest and the Criminal Justice System

The 1960s saw new law-enforcement challenges in the Civil Rights movement, protests against the Vietnam War, urban unrest, and rising crime rates. These changes increased public distrust of both government and the criminal justice system. Increasingly, police were challenged about the ways in which they operated, and Supreme Court decisions such as Miranda v. Arizona (1966) and Mapp v. Ohio (1961) imposed new regulations on police practices.

Consistent with the social climate of the day, a renewed emphasis on individual rights within the criminal justice system developed. Advocates for individual rights support the due process model, which would rather allow some guilty people go free than convict innocent people. The 1960s thus saw a focus on individual rights throughout the criminal justice system, giving the convicted enhanced opportunities for appeals, improving prisoners’ rights, and shifting sentencing more toward rehabilitation than incarceration. Also, for the first time, research was conducted on how to enforce laws effectively through scientific policing. In 1965, the President’s Commission on Law Enforcement and Administration of Justice was formed, providing new funding to the police to do research.

Community Era of the Criminal Justice System

During the 1970s, the notion of community policing gained popularity. This was characterized by a service style of law enforcement, emphasizing the role of the police as public servants, while placing less stress on strict law enforcement. This development tended to move police back to the streets. In 1974, the Kansas City Preventive Patrol Experiment compared different methods of patrolling—traditional random patrols, traditional random patrols with more officers, and reactive policing in which officers waited at police stations for emergency calls—to determine which worked best. The Kansas City Experiment found no differences in crime rates and no differences in levels of public fear of crime among the different methods. The conclusion was that more police do not necessarily reduce crime rates. However, because of the experiment, police departments implemented more direct patrols in an effort to identify areas with the most crime and place the most police in those areas.

The death penalty temporarily was abolished in the United States during this time. In 1972, the U.S. Supreme Court ruled that the death penalty was unconstitutional in Furman v. Georgia. Four years later, in Gregg v. Georgia, the Court ruled that the state of Georgia had correctly changed its legislation regarding capital punishment to uphold the Constitution. The Court’s new ruling permitted the death penalty in other states, as well. Nevertheless, many scholars have argued that capital punishment still disproportionately affects certain races.

Increasing violent crime rates during the 1960s and early 1970s caused the public to become disillusioned with the recent emphasis on individual rights. This disillusionment was enhanced by the Martinson Report of 1975 on crime, which proclaimed that nothing works.

The 1980s brought about a new focus on preserving public order, and the criminal justice system placed a renewed emphasis on punishment. During the years of the Reagan administration, a new drug, crack cocaine, emerged, bringing with it a large drug problem. The Reagan administration waged a “war on drugs,” emphasizing public order.

Public order advocates support the crime-control model, which favors giving police greater powers to arrest, making justice system processes faster and more efficient, making it easier to convict offenders, and allowing fewer appeals. Sentencing guidelines were created out of the federal Sentencing Reform Act of 1984 to ensure “truth in sentencing” and reduce judicial discretion with the object of eliminating reduced sentences.

Modern Structure of the System

In the twenty-first century, the criminal justice system operates like a funnel in which people leave the system at each stage. The first stage is the criminal investigation and arrest. The more serious the offenses, the more likely it is that arrests will take place. Arrests are also more likely in stranger crimes—those in which the victims do not know the offenders. However, most offenses are actually never investigated or processed.

After arrests are made, personal information of the alleged offenders and the crimes with which they are charged is recorded in the booking process. The third stage is the initial appearance. The alleged offenders—now called defendants—must appear before judges, who decide whether to jail them or release them on bail until trial. The next time the defendants appear in court is at preliminary hearings, at which judges determine whether there is enough evidence to continue with trials.

At the fifth stage, the indictment, the prosecution presents its cases to grand juries, who decide whether there is cause for reasonable persons to believe that the defendants have committed the crimes with which they are charged. At the sixth stage, arraignment, defendants are officially notified of the charges against them and are asked to enter pleas.

Although most cases are resolved through plea bargaining, some proceed to trial, the seventh stage. When trials result in convictions, judges decide what the sentences should be at the sentencing/adjudication stage. Finally, at the correctional phase, the convicted defendants serve their sentences—which may include probation, community service, or incarceration.

Law Enforcement

Modern law enforcement is organized at three different government levels: federal, state, and local. There are also unofficial, or private, law-enforcement bodies specially created to protect certain properties and individuals. At the federal level, the best-known law-enforcement bodies are the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the U.S. Marshals Service, the Bureau of Immigration and Customs Enforcement (ICE), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the U.S. Secret Service. After the terrorist attacks of September 11, 2001, on the United States, the federal government created a new cabinet-level department called Homeland Security, which brought most of the federal law-enforcement agencies together under the same department.

Different types of law-enforcement agencies can be found in the various states, but there are only two basic models. In the centralized model, state law-enforcement agencies are responsible for all law enforcement, including traffic laws. By contrast, in the decentralized model, there are separate, limited-purpose law-enforcement agencies. For example, one agency may enforce criminal law, while another enforces traffic law. Some states have crime-specific task forces. There tends to be less communication among different branches in the latter model.

Local law-enforcement agencies are more diverse and are more numerous than state and federal agencies combined. No general model exists, and local law-enforcement bodies have many different tasks. During the late 1980s and early 1990s, the philosophy of community policing began broadening police functions to incorporate citizen input and vary services among different neighborhoods to focus on specific needs of individual communities. Problem-oriented policing diverges from the traditional reactive response to crime in that police actively look for the causes of crime to try to prevent crimes from occurring.

Courts and Sentencing

As with law-enforcement organizations, there are different levels of courts. At the state level, courts of general jurisdiction—names of the courts vary—deal with a variety of cases. Most cases do not involve juries but are resolved through plea bargaining. States also have intermediate appellate courts that handle appeals from lower courts, as well as supreme courts.

The federal court system has three levels. At the lowest level, U.S. district courts try cases dealing with violations of federal law. Courts at the next level—U.S. courts of appeal—do not have trials but review cases referred from the district courts. At the top is the U.S. Supreme Court, which is also the supreme court over the entire federal and state judicial system. The Supreme Court reviews cases raising important constitutional questions and issues rulings that must be followed throughout the country.

The United States incarcerates more offenders than any other country in the world. However, at the beginning of the twenty-first century, the nation was again exploring alternative sanctions, including day fines, house arrest, and shock incarceration. Restorative conferencing is also becoming increasingly popular, designed for victims and offenders to discuss the crimes, allowing the offenders to admit their guilt and express remorse to their victims to help return the victims to the state that they were in prior to the offenses.

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