The Legal Approach to Crime and Correction

Abstract

The assigned subject of this paper-the legal to crime and correction-is cryptic at best. Max Beerbohm might have called it inenubilous. Hence, the writer has arbitrarily assumed that it raises the problem of what law-makers ought to do about crime and correction. That might cover a multiplicity of included problems: Who are the makers of law, for example? On what theory and with what purpose in mind should they define particular acts as criminal? What should be included? How should the fact of forbidden action and the identity of the actor be determined? What consequences ought wisely to be imposed on the actors who are discovered? In short, it might encompass the whole field of criminal law: subjective, procedural, and punitive. But the writer has no intention herein of struggling with the whole field. The makers of law, for example, need not be discussed, though at another point, some comment will be made on some judge-made rules. Indeed, as the writer hopes to make clear, the judicial attitude toward crime is considerably more closely related to the amount of crime committed than is legislative enactment. Similarly, the problems of substantive law can also be ignored, for two reasons: In the first place, the writer presumes that approach to crime connotes chiefly what can be done to reduce its frequency. But no appreciable amount of crime today can be attributed to insufficiency, uncertainty, or indefiniteness in what the law makes criminal. Hence, need to discuss substantive phases of the law is at once eliminated.1 Some minor changes will always be currently desirable, but no material improvement in crime prevention can be accomplished by improvement in the definition of crime. In the second place, whatever can be done in the substantive law field has already been undertaken by an able committee under auspices of the American Law Institute. Its Model Penal Code is setting out the conventional conduct prohibitions with remarkable precision, definiteness, clarity, sufficiency, and readability. A few old prohibitions will be dropped, and a few new ones added. When finished, however, its content will be a thoroughly clear, complete, and satisfactory formulation of substantive criminal law. * A.B. I905, Yale University; LL.B. I907, University of Michigan. Professor of Law Emeritus, University of Michigan; Member, Drafting Committee, American Law Institute, Model Penal Code. Chief Draftsman, American Law Institute, Youth Correction Act, I941. Author, CASES ON CRIMINAL LAW AND PROCEDURE (I93I), CRIMINAL LAW IN ACTION (1934), PREVENTION OF REPEATED CRIME (1943), CASES ON CRIMINAL LAW AND ENFORCEMENT (I947). Contributor to legal publications. 1 This limitation of the topic to crime reduction also, happily, eliminates need for a disquisition on insanity as developed in Durham v. United States, 214 F.2d 862 (D.C.Cir. I954), a notion so utterly inconsistent with the justifications of existing criminal law-except that of expiation-that if it be adopted, an entirely new legal to crime will be required.