Crime and Punishment in American History - Lawrence M. Friedman [187]
In the twentieth century, procedural rules have been reformed and rationalized. This has happened for rules of criminal procedure as well. Criminal procedure in the federal courts had once had been something of an incoherent mess. The rules had been moving in a piecemeal way toward the ideal: a simple, limpid, transparent system, fair to defendants, efficient, and free from the old, crabbed, hypertrophic rules. In 1940, Congress gave the Supreme Court authority to prescribe “rules of pleading, practice, and procedure” for the federal district courts in the states and territories.1 The Court appointed an advisory committee that met, drafted, wrangled, published preliminary versions, then a final version of rules. The attorney general submitted them to Congress on January 3, 1945, and they went into effect on March 23, 1946. The federal rules have been an important model to the states, which were also intent on cleaning up their procedural systems. Some, indeed, simply swallowed the federal rules as a whole.
Change and reform are themes of every chapter in part III of this book, but this chapter singles out a few topics for special treatment: the “constitutionalization” of criminal justice; punishment and corrections; and the death penalty. In each case, an interesting pattern of development is apparent. There is periodic “reform” throughout the first half of the century, but after World War II the curve shoots up dramatically. A climax comes in the 1950s and 1960s, after which the curve flattens out or actually dips—and this is the situation today. By reform we refer, generally, to changes that emphasize due process, rather than crime control.2 There are considerable differences in detail, from topic to topic, but the pattern is so similar that it obviously reflects gross cultural changes. Later on, we will try to piece together some notions of what these might be.
The Twentieth-Century Constitution
One development of great importance was what we might call constitutionalization. In the twentieth century, constitutional principles—doctrines and ideas rooted in the texts of the federal and state bills of rights—began to play a larger and larger role in criminal law. Constitutional law and criminal procedure came together with a bang, like the Titanic and its iceberg, in this century.
The U.S. Constitution celebrated its two-hundredth birthday in the late 1980s in a burst of hoopla and publicity. There was a loud chorus of celebration and praise. It was a grand old Constitution, noble of thought and praiseworthy above all for its marvelous stability. In a world of revolution, upheaval, juntas, coups, wars, and epic dislocations, it stood (so people said) like a rock. No other national constitution had lasted two hundred years. Between 1800 and 1987, it had been amended less than twenty times. bu
But the praise is a bit deceptive, to say the least. The Constitution, as a living system, as a web of meanings rather than as a piece of parchment with words scribbled on it, has been a good deal less immutable. In fact, the Constitution had been turned upside down and inside out over the years—and not merely once. In many ways we are not living under the same Constitution as George Washington at all. The bare, abstract frame of government, the two houses of Congress, the presidency, and the like—these are still with us. But the power of the institutions, what they do, their meaning in society—all these are completely different from what the founders had in mind, and necessarily so.
A Jefferson or Hamilton or Madison, brought back from the grave, would not even vaguely recognize constitutional law, the body of doctrine