Crime and Punishment in American History - Lawrence M. Friedman [188]
This transformation has been quite marked in the field of criminal justice. Inside the Bill of Rights, as we pointed out, was a kind of mini-code of criminal procedure, rules to guarantee trials against unfairness, against the tyranny and power of the state. Of course, the revolutionary generation, when they thought about the “state,” thought about George III, a tyrant from their point of view, and his autocratic government in Westminster. They wanted at all costs to avoid something similar here at home. In the twentieth century, George III was a distant and unimportant memory; after all, this was government of the people, by the people, for the people, or so we thought. The focus of attention had shifted. Government was not the enemy, at least not in this area of life; the enemy was the bad people, the criminals, the “dangerous classes.”
It would be misleading to say that there was some sort of general consensus about rights of defendants, due process, and the like, in the nineteenth century. It would be more accurate to say that underdogs and losers rarely challenged the power of the law, and even more rarely succeeded. The case law, both federal and state, on constitutional rights of defendants was fairly skimpy.4 This continued to be true well into the twentieth century. The Illinois Supreme Court, for example, in the decade between 1917 and 1927, reversed 394 criminal cases on appeal; in only eleven of these cases (roughly one a year) did the reversal hinge on a constitutional reason, that is, some violation of the defendant’s basic rights.5
All this changed dramatically later on. Between 1940 and 1970, no less than 31 percent of the business of the Illinois Supreme Court was criminal, and in a third of these cases some issue of procedural due process came up. Of course, there was considerable state variation: for the same period, 25 percent of the cases before the supreme court of Nevada were criminal, and a quarter of these had due process issues; in Alabama, 11.9 percent were criminal, but only 6.7 percent of these raised such issues.6 But, on the whole, the states concerned themselves more and more with issues of fairness at trial in criminal cases, at the highest level of their judicial pyramids.
After 1950, this was, in part at least, a reaction to pressure coming from the federal courts. This was a dramatic, new development. It meant that for the first time there would be national standards of criminal procedure, at least formally; since federal law trumped local law, federal courts could and would ram these standards down the throats of state courts. The technical vehicle for this development was the Fourteenth Amendment to the Constitution (1868), and what is known as the “incorporation” doctrine. This calls for a word of explanation.
The words of the Bill of Rights, as the Supreme Court read them, did not, in themselves, create a national standard. They applied only to the federal government, and not to the states. The Supreme Court so held in 1833 in Barron v. Mayor of Baltimore.7 Criminal justice was, overwhelmingly, the business of the states; thus the Barron decision read the national courts out of the business of monitoring criminal justice.
Not that this made much difference in the nineteenth century. Both state and federal courts stayed within fairly solid, well-respected, and traditional lines, on questions of fair trials and due process. Not many cases even raised such issues. There were cases about double jeopardy, about searches and seizure, but almost never were they at the cutting edge of legal development. Undoubtedly, there were regional variations; but the doctrinal gap between