The American Penal System: Spirit and Technique
| DOI | 10.1177/000271626233900102 |
| Published date | 01 January 1962 |
| Date | 01 January 1962 |
| Author | Louis B. Schwartz |
| Subject Matter | Articles |
1
The
American
Penal
System:
Spirit
and
Technique
By
LOUIS
B.
SCHWARTZ
Louis
B.
Schwartz,
B.S.,
LL.B.,
Philadelphia,
Pennsylvania,
is
Professor
of
Criminal
Law
and
Administration,
University
of
Pennsylvania
Law
School.
He
is
Reporter,
with
Professor
Herbert
Wechsler,
for
the
Model
Penal
Code
of
the
American
Law
Institute.
He
formerly
was
Chief
of
Section
in
the
Criminal
Division
of
the
United
States
Depart-
ment
of
Justice.
ABSTRACT:
One
can
speak
only
loosely
of
an
American
penal
system.
Fifty
states
each
exercise
virtually
complete
inde-
pendence
in
the
criminal
law
field.
The
federal
government
is
not
specifically
granted
powers
under
the
Constitution
to
en-
act
criminal
legislation,
but
a
comprehensive
body
of
criminal
law
has
evolved
through
the
exercise
of
other
constitutional
powers.
Thus,
at
present,
criminal
laws
and
aims
of
the
penal
system
are
diverse.
Certain
influences,
however,
have
affected
the
development
of
all
the
penal
codes.
These
influences
are
the
English
common
law,
Puritan
standards
of
the
seventeenth
century,
and
the
American
frontier.
From
the
frontier
comes
the
emphasis
upon
lay
participation
in
the
legal
process.
This
is
clearly
represented
in
the
institution
of
the
jury
and
in
its
effect
upon
law,
precedent,
and
court
procedures.
The
gen-
eral
American
and
English
hostility
to
ideology,
fully
as
much
as
the
lay
element,
has
served
as
a
brake
upon
codification
and
radical
reform.
As
a
result,
the
American
penal
system
tends
to
be
anarchic,
complicated,
naively
moralistic,
and
lay-
determined,
but
it
is,
at
the
same
time,
experimental,
creative,
and
progressively
more
merciful.
With
the
passing
of
the
frontier
and
the
receding
into
history
of
Puritan
theocracy,
the
forces
which
produced
the
current
penal
system
are
yield-
ing
to
new
influences.
The
Model
Penal
Code,
profoundly
American
in
spirit
and
technique,
would
end
the
dependence
of
the
penal
code
upon
the
common
law
and
offers
system
and
precision
in
place
of
frustration
and
bafflement.—Ed.
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