Crime and Punishment in American History - Lawrence M. Friedman [45]
On the whole, though, criminal justice is hardly the main theme of the Constitution. But this could not be said of the Bill of Rights—that is, the first ten amendments to the Constitution, adopted in 1791. As the drafters saw it, the basic rights included rights to fair trials and fair procedures. The Fourth Amendment guaranteed the “right of the people to be secure ... against unreasonable searches and seizures”; warrants were not to be issued except “upon probable cause.” The Fifth Amendment provided that no one would be “held to answer for a capital, or otherwise infamous crime” unless indicted or presented by a grand jury. By the same amendment, double jeopardy was outlawed (that is, no one could be tried twice for the same offense); the defendant, moreover, had the privilege not to be “a witness against himself,” in other words, the right to remain silent at trial, the right not to take the stand at all. The Sixth Amendment guaranteed a “speedy and public trial, by an impartial jury.” The eighth outlawed “excessive” bail and “cruel and unusual punishments.”
Thus about half the text of the Bill of Rights, by bulk, is concerned with criminal justice. Tyranny was, above all, an abuse of criminal justice: arbitrary cruelty, kangaroo courts, the use of massive power to crush dissent or terrify it into silence. The nightmare image was King George III, a despot sitting on a faraway throne, and the pathologies of English criminal justice. On these shores, a castle wall of law would guard citizens from abuse, and prevent the central state from oppressing its subjects.
The Bill of Rights applied, however, only to the national government, not to the states. The Supreme Court so held.37 The states had their own bills of rights, often quite similar to the federal bill; issues of power, reform, tyranny, and fairness were state issues as well as national ones. The states, in fact, acted to protect fundamental rights before the national government did. Indeed, the Virginia Declaration of Rights, of 1776, contained the basic list: trial by jury, the privilege against self-incrimination, the ban on excessive bail, and on cruel and unusual punishments. 38 After 1791, federal models become heavy influences on state constitutions. Many states copied the very words of the Bill of Rights. But there was no system for coordinating the work of the states; no overall supervision by the federal courts. That was more than a century and a half away.
There was not that much to coordinate. In our times, there is a vast body of case law on the Bill of Rights: thousands of cases, some notable or hotly contested. But all through the nineteenth century, cases on the guarantees of the Bill of Rights were uncommon, both in state and federal courts; they were the merest whisper in ordinary trials. They were, in the main, taken for granted (or ignored). Not that trials were grossly unfair (in contemporary terms). But the cutting-edge disputes over criminal justice, so shrill in our own times, had not yet come to the surface.
DEFANGING DEATH
One very notable aspect of reform in the period of the republic was the movement to get rid of the hangman. This was by no means a total success; but it did reduce the use of the death penalty quite considerably. Pennsylvania, the Quaker state, played a leading role. In 1790, the legislature abolished the death penalty for robbery, burglary, and sodomy.39 A statute of 1794 introduced an important innovation. This law divided murder into “degrees.” Murder in the first degree (“perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, or premeditated killing, or ... committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary”) carried the death penalty; all other murder was