The American Penal System: Spirit and Technique

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.