A History of Laws, Corrections, and the Influence of the US Supreme Court on MODERN PENOLOGY

Special Two-Part Series:
PART ONE

By Correctional Officer Steve RAYLE

Editor's note: Incarceration of criminals is a form of social control. The threat of punishment is expected to keep most in compliance with the rule of law. However, for those who deviate, laws exist to remove miscreants from proper society.

This two-part article by Officer Rayle is part of his studies in preparation for a master's degree in criminal justice. This part discusses the history of the rule of law. The second part looks at modern America and the U.S. Supreme Court decisions that have most affected our profession.

Alexis De Tocqueville, a 19th century French Aristocrat stated, "I am one of those who think that there is hardly ever absolute right in any laws." Those of us who work in pursuit of criminal justice have gained a unique perspective of this mostly misunderstood world. To gain an awareness of how all of this came to be and relate this knowledge to where we stand today makes one more appreciative of one's own world. This is true of all occupational pursuits. Many of us reminisce about how good it used to be. How far back should this "good" memory go? Was it really better? Look even further into the past and observe how the future led to the present. Then decide...

In ancient Babylon, the good King Hammurabi established a 282-part code of laws that is still studied almost 3,800 years later. (Babylon was located about 55 miles south of what is now Baghdad in Iraq). Remarkably, many of these laws are replicated in modern ideas of justice and morals around the world.

In the 17th century, the English Bill of Rights was created and remnants of it survive today in various forms. The English Bill of Rights also established the rules of succession and power.

The United States, where early inhabitants often meted out their own justice, was founded by constitutional laws in the 18th century that are suspiciously like those of the English Bill of Rights; the same English from whom we fought to gain independence. Later, this United States Constitution helped shape the practice of penology in these United States.

This article will examine these issues. Some are given cursory treatment; others are granted a more in-depth study.

The Code of Hammurabi

King Hammurabi, Babylonia

King Hammurabi, the great eponymous Babylonian ruler during the 19th and the 18th centuries B.C., established one of the worlds first written codes of law.

There is evidence of codes back as far as four thousand years, but the Code of Hammurabi is the oldest code surviving in written form. Hammurabi created a legal system mostly by revising older Sumerian and Akkadian codes into the compilation that bears his name. He also mandated the economic conventions of pricing, taxation, and wages. Other rules covered business regulations, false accusations, family law, debts, witchcraft, and military service. He even established reforms for his native Akkadian language, standardizing the orthography for future Mesopotamian writers.

This ancient code was designed to "protect the weak from the strong."The rights of the individual were backed by edict through the authority of the gods and the state. (Snyder)

The code meted out punishment for violators of his commands. All of the greater crimes were punishable by death as they often are in modern criminal justice; yet, in Babylon, some acts considered today to be misdemeanors were punishable by death. False claims to property and bearing false witness could bring execution.

A surviving remnant of Draco's Law from Athens approximately Draco or Dracon [dra'kon], fl. 621 BC, Athenian politician and law codifier. Of his codification of Athenian customary law, only the section dealing with involuntary homicide is preserved. From this and from later accounts in the writings of Aristotle and Plutarch, it appears that in Athens the penalty of death was prescribed for the most trivial offenses. The code adopted the principle that murder must be punished by the state and not by vendetta. Though the code was considerably ameliorated by Solon, its name became a synonym for harsh legislation. Here is an example: "Even if a man unintentionally kills another, he is exiled. The kings are to adjudge responsibility for the homicide either the killer or the planner; and the ephetai are to judge the case. If there is a father or brother or sons, pardon is to be agreed to by all, or the one who opposes is to prevail. But if none of these survives, by those up to the degree of first cousin once removed and first cousin, if all are willing to agree to a pardon; but the one who opposes is to prevail.

But if not one of these survives, and if he killed unintentionally and the fifty-phratry members admit him to the country and let the fifty-one choose these by rank. And let also those who killed previoiusly be bound by this law. A proclamation is to be made against the killer in the market place by the victim's relatives as far as the degree of cousin's son and cousin. The prosecution is be shared by the cousins and cousins's sons and by sons-in-law, fathers-in-law, and phratry members... If anyone kills the killer or is responsible for his death, as long as he stays away from the frontier markets, games, and Amphictyonic sacrifices, he shall be liable to the same treatment as the one who kills an Athenian; and the ephetai are to judge the case. It is allowed to kill or arrest killers, if they are caught in the territory...If a man defending himself straightway kills someone forcibly and unjustly plundering or seizing him, the killer shall pay no penalty."

An exception to capital punishment was allowed by throwing oneself into the Euphrates River. Apparently, swimming techniques had yet to be discovered as the rule stated that if the current safely carried a man to shore, then surely he was innocent. Of course, if the person drowned, probably a frequent occurrence, then he was clearly guilty. This is an example of the authority of God's power in Hammurabi's code.

It is generally assumed that the earliest punishment of "an eye for an eye" was found in the Code of Hammurabi. Cutting off a finger or a hand punished thievery. A man would lose his lower lip if found guilty of kissing a married woman. Defaming another could result in the loss of one's tongue. (Law)

The Ten Commandments
About 500 years later, circa 1300

B.C., the Bible states that God gave Moses the Ten Commandments. These ten laws for mortals are found in the Book of Moses and in Exodus. Exodus includes explanations and rules that appear based on Hammurabi's eye-for-an-eye type punishments. The Ten Commandments live on in modern documents as well. In almost all written codes of law, one will find similarities. Thou shalt not kill is mirrored by societies laws that severely punish murder. Thou shalt not commit adultery is reflected in laws concerning grounds for divorce. Thou shalt not steal is dealt with in laws against theft. Of course, one must be mindful that Hammurabi addressed these issues first.

Draco's Law

Around 600 B.C., a Greek citizen named Draco developed a written code of law for the Athens population. This code of law, by today's standards, is so severe and infamous that another eponym was formed into our language. We now use the term Draconian to describe an unusually harsh law. Draco's laws eliminated private modes of justice and placed all legal authority in the government's hands. While some misdemeanors were punishable by death, some severe crimes were punishable by exile. Although this code is archaic and harsh by today's standards, it did create a uniform approach to the affairs of Greece and Draco was widely admired. (Downs)

Magna Carta (1215)

The Magna Carta (Great Charter) was the first English attempt to limit the King's power. King John had angered his subjects through his ruthlessness and taxation for military campaigns and selfish causes.

The Barons of the country organized and occupied London. The King had reached a low point in his popularity. He eventually understood that he had lost his absolute power and thus agreed to the charter.

The Magna Carta created the concept that some customs and laws hold more authority than does the King. It further established that if the King did not abide by the charter that the citizens had the right to force him to do so.

The Magna Carta contained 63 articles and enveloped a cornucopia of subjects including legal justice, feudal dues, freedom of the Church, and baron's rights. One of the more famous results from the articles in the Magna Carta is the idea of "no taxation without representation." It also established that those accused of crimes were guaranteed a jury trial.

The Magna Carta actually was not very effective. The King organized against this rebellion and the charter's power was suppressed. King John died in 1216 and the charter was reissued several times in succeeding years.

Although The Magna Carta was never firmly and permanently established, it is widely recognized as a symbol of English liberty. (Grolier)

Petition of Right

In 1628, the English Parliament declared certain actions of King Charles I to be unconstitutional. Grievances such as quartering soldiers in private homes, levying taxes without the approval of Parliament, martial law, and illegal confinement of citizens were addressed. Parliament was able to pressure the King by withholding resources he had demanded. He opposed the Petition, but surreptitiously agreed to it, never intending to carry out his part. His autocratic style eventually resulted in his execution in 1649.

This Petition of Right had enormous results. While not making great strides early on, it did assert the supremacy of law over the King's demands. This rejected the concept of rule by divine right. The Petition was instrumental in English, and later American constitutional development. The English Bill of Rights finally established a constitutional government in 1689. (Southgate)

The English Bill of Rights

"An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown"

King William II and Queen Mary accepted the English Bill of Rights in 1689. This bill of rights established a constitutional form of government and removed the concept of ruling by divine right. This bill of rights limited monarchial power over parliament, unlike the later American Bill of Rights, which protects the individual from government. (UK)

The Maturation of the American Colonies

We the people (1776)

The American Declaration of Independence influenced the world unlike no other document. This manuscript conveyed to the King of England that we were severing his political rule from our lives. This document notified the world for the first time that there is legitimate conviction that no one possesses the right to rule others. It was established that government exists at the pleasure and consent of the governed. War soon followed as the King tried in vain to control the treasonous colonists.

Next up 1787 & 1791

The Constitution was signed and became law in 1787. It established the world's first republican form of government. The legislative, executive, and judicial branches were created and this law was established as the supreme law of the land and that it would override any law with which there was a conflict. The American Constitution has become a model for other countries around the world as they gain independence and develop into democracies.

In 1791 another momentous event occurred. The Bill of Rights was added as amendments to the Constitution. These first ten amendments firmly established the protection of the people from their government. Protections such as the right to free speech, protection from cruel and unusual punishment, the right to a speedy trial, and freedom of/from religion are well-founded reactions to previous governments of the world.

The American Constitution, having become one of the greatest legal documents ever, has adapted and flexed with society's progressions. Not only have changes been made through amendments, but the changing attitudes, mores, and ideas of society have changed how many aspects of the Bill of Rights are interpreted. This is truly the only document that is capable of change, often without altering or adding a single word.