Ancient Mesopotamia – The Code of Hammurabi
In earliest times it was a crime to displease either the gods or the king. The Mesopotamian king Hammurabi (1795-1750 BC), “the exalted prince, who feared God” felt be was divinely called “to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak.” Discovered in 1901, the Code of Hammurabi was carved into the sides of an eight-foot-high monument, for the first time that was know of spelled out clearly, for all to see, the expectations and penalties that applied to each inhabitant of the realm.
Much of the Code of Hammurabi concerns itself with matters that today would be considered civil or family law, such as the penalty for felling trees in an orchard belonging to someone else, or the right of a woman to remarry or to pass her dowry on to her sons. Other sections provided debt relief for drought-stricken farmers and farmers whose crops were flooded due to the careless irrigation practices of their neighbors. There were detailed penalties for pasturing sheep in the field of another, and provisions for the reward of tenant farmers who made waste land fertile. There are provisions for mediating disputes about stored grain and infidelities both proven and suspected, improperly built buildings, poorly made ships, hiring oxen, and careless shepherds.
The penalties for infringing these laws, however, which would today be monetary, could often be severe. Much depended on the relative status of accuser and accused. A rebellious slave could lose an ear. The penalty for a son who struck his father was the loss of his hands. Between citizens the rule was an eye for an eye and a broken bone for a broken bone, but only a fine was levied if the injury was to a freed slave.
You could be whipped for striking someone higher in rank than yourself –.sixty blows with an ox whip. If a man killed a woman, his daughter could be put to death. If he killed her unborn child the penalty was a fine whose size depended on her status. Specific rewards and penalties for a doctor who cured or accidentally killed someone again depended the patient’s status.
Criminal Justice is Not Civil Law
Crime in the twenty-first century is an act that violates some standard of behavior legislated by the lawmakers of a society. This standard varies from country to country and has varied considerably in history. Civil law on the other hand deals with relationships and responsibilities between private entities. Other differences lie in the right to a jury trial and in the possible penalties.
The British distinguished the two when they codified their criminal law in the late 1900s. The United States modeled its system on English common law, but modified some concepts. India passed its own penal code in 1860. Canada inherited a patchwork criminal justice system from England, which at Confederation in 1867 was different in every province. This was unacceptable to John A. MacDonald, the first prime minister, and nine statutes were passed in 1869 consolidating at least some of the system at the federal level. A complete Criminal Code was finished in 1892.
Criminal Justice Is Not Always Just
The disparities in the way the legal system is administered, depending on social status, have only very slowly improved. The details vary by country and century. The practice of slavery, for instance, was legal until the nineteenth century in the United States and lynchings of black men were common into the twentieth century. 1 When Patricia Cornwell concluded that the notorious Jack the Ripper, who terrorized the East End of Victorian London, was in fact the well-known artist Water Sickert, she also decided that he had remained unidentified because the London police force could not believe that a “gentleman” would commit such crimes.
Perhaps she was correct. Far from rejoicing that the murders of the penniless prostitutes on whom Jack the Ripper preyed had been solved, the British press was outraged and denounced both her findings. Richard Shone, curator of a Sickert show at the Royal Academy in 1992, decried Cornwell’s destruction of a Sickert painting to help prove her theory.
Is she so obsessed that she doesn’t mind the destruction of a painting by such a very fine artist to add credence to this silly theory? If even Sickert were Jack the Ripper it would not justify this. 2
Still today there are those who say that black-on-black crime in American housing projects is given much less weight than the disappearance of a pretty white teenager, 3 so while the equality of citizens before the law is a fact in law, it may not yet truly be part of our criminal justice system.
Penalties and the Justice System
The purpose of the legal system has also changed. At first the purpose was simply punishment or removal of a threat from the community, then it was shame as a deterrent, and now it is rehabilitation.
Penalties for crime have also changed. In Hammurabi’s Mesopotamia, helping a runaway slave, failing to pay a mercenary, failing to cure a patient and building a bad house were all punishable by death. During the Dark Ages and in early medieval times many offenses were also punishable by death, perhaps simply because prisons were expensive and very rare.
Gradually the notions of justice and due process came into play and then the question became how society could best prevent further crime. In Europe and in the Americas the answer was often shame. Offenders were confined in bilboes or stocks or whipped in public.
In Anglo-Saxon villages men were responsible for one another through a system known as tithing, where groups of ten men were responsible for one another’s behavior and for delivering each other to face charges if necessary. Failing to do so could mean having to pay the erring member’s penalty oneself. The “hue and cry” could be raised by a victim asking for help in pursuing a criminal and meant that the help must be given, or the community was responsible for the penalty.
Community versus Urbanization, Royal Power versus the Protection of Property?
During the Dark Ages people were not often imprisoned. The laws that existed were mostly those of the Church, which was primarily concerned with offenses against God. The feudal system provided a place for everyone, and everyone was expected to remain there. Those who did not, through misfortune or rebellion, were outlawed. Masterless men were feared as bandits. Hunting in the King’s forests was a crime, even if it was for food.
But many changes can be traced to the urbanization of society. By the late medieval period more people were living in towns, where the hue and cry and tithing systems did not work as well as they had in small villages where everyone knew one another. Also, there were increasing problems with renegade lords using private armies to terrorize local villages. These and other problems led to the gradual setup of a system where the king appointed a justice of the peace for an area. This was a pivotal point in the history of crime. No longer was every man responsible for every other man in his community and no longer was every man responsible for enforcement of the laws. It was now the province of specialists.
The justices of the peace were not, however, men of the people and the justice they handed down was still the king’s. And the king’s justice often looked quite different from the way we understand the term today. After invading England in 1066, one of the first things William the Conqueror did was to build the Tower of London, in 1078. Those imprisoned there were often aristocrats more often than not, imprisoned for perceived disloyalty or religious differences.
The records of the Tower of London show a woman named Maud Fitzwalter, who was imprisoned for rejecting the advances of King John, and eventually poisoned by an egg sent to her by the king. Hubert de Burgh, Earl of Kent, was imprisoned for falling out of favor of the king. He was eventually released. William FitzOsbert on the other hand was hanged in chains for protesting taxes levied to finance the rescue of Richard I.
Apart from the nobility though, death remained the most common penalty, and in the 16th and 17th century it was lavishly applied as a weapon in the religious disputes of the time. As Protestant and Catholic monarchs succeeded one another the supporters of the previous monarch were often found guilty of treason and the penalties were often hanging or drawing and quartering.
As Britain emerged from the bloody period of religious Civil War however, political power had passed to the hands of property-owners and the focus of criminal justice became the protection of private property rather than the consolidation of royal power. In 1660 approximately fifty crimes carried the death penalty, while by 1750 the number was 160 and 288 by 1815.
But although great public spectacles were made of hangings at Tyburn in London, according to the British National Archives, the number of hangings actually declined over this period, due to reluctance to find offenders guilty of a capital crime. Sometimes the charges were reduced; sometimes defendants agreed to join the army, and sometimes they were transported to America or to Australia. Removing members of a “criminal class” from British society by these means seemed to offer the possibility of reducing crime and in addition fear of the unknown, it was thought, might deter people from crime.
In America during the Colonial period, stocks, and the whipping post were commonly used to shame those thought to be guilty of what we would today see as relatively minor offenses. Bilboes, a type of shackle that cuffed the legs of offenders to a heavy wooden bolt, were used against colonists for profanity, drunkenness and failing to mark the Sabbath, as well as sedition and selling gunpowder to Indians. Women were publicly humiliated for being scolds by being publicly dunked or forced to wear a scold’s bridle, an often heavy contraption which surrounded the head and immobilized and sometimes pierced the tongue.
The concern with property prevalent in Britain was mirrored in the United States by concern with theft of livestock. Hog theft in Virginia was punished by two hundred lashes for each pig stolen. Penalties increased for subsequent offenses. 4 Cattle rustlers and horse thieves were the most reviled of criminals well into the mid-nineteenth-century, and were often hanged.
So the function of the death penalty in late 17th and early 18th-century was primarily deterrence. While the it was only rarely applied in Britain, the possibility remained that a particular offender could be chosen to be the unfortunate example. In 1750 Sir John Fielding established the Bow Street Runners, the first professional police force. In time, the rowdy public spectacles at public hangings came to be thought barbaric, and public hangings stopped in Britain in1868.
By this time it was clear that the crime rate was increasing and that transportation was not solving the crime problem. Furthermore, many people were struggling to pay passage voluntarily, so why pay passage for criminals? It was too much like rewarding bad behavior. Huge sums were spent on building prisons in this period, and the punishment meted out by the criminal justice system became focused on solitary confinement and hard labor.
Deterrence versus Rehabilitation
In 1902 Britain began sending young offenders to Borstal schools whose purpose was to help them be more productive citizens. These were closed in the late twentieth century and mandatory community service is often ordered now for young offenders. Capital punishment was completely abolished in Britain in 1965, although since 1957 it had only been used for the killing of policemen, or killing with a gun or while resisting arrest.
Capital punishment still exists in the United States, but enormous controversy surrounds the way it is applied. The Innocence Project, begun as a project of a few law students, has used DNA testing to demonstrate that dozens of convicted rapists and murderers – 188 to date 5 — cannot possibly have committed the crimes of which they were convicted. Their website makes a number of points concerning the criminal justice system of the United States.
The Project Innocence website suggests that the conviction of an innocent man is a catastrophe for the integrity of the legal system, and should receive the same thorough investigation as an airplane crash or some other catastrophe. Not only is an innocent man incarcerated, but the perpetrator is still free to commit other crimes. They applaud the establishment of a Texas forensic science commission established to address the previously notorious crime labs there, and suggest that it is time for a thorough review of all of the various tests commonly used in courtrooms. Microscopic hair analysis should be replaced with testing of mitochondrial DNA, they say for instance, and crime labs need to become independent and professional entities free of pressure from either the prosecution or the defense.
The DNA testing which can free innocents incarcerated due to flaws in the legal system can also help to find and convict criminals. Defense attorney Kim Kruglick recently made a conference presentation pointing at the FBI Crime Lab Study and the Needs Assessment Report of the California Department of Justice to suggest that laboratory evidence is frequently given far more credibility than it deserves, for the most part because of lack of scientific education for both the defense attorney and the lab tech. 6
Education standards, such as a requirement that techs obtain a criminal justice degree, would probably help standardize and improve current law enforcement. Society has come a long way from 1130, when the University of Bologna first began to offering a degree consisting primarily of readings of the Roman philosophers on the subject of law. Online criminal justice tools such as websites offering photo galleries of sexual offenders and consolidated criminal records have proved to be valuable tools in the fight against crime.
For the average citizen online criminal justice is both faster and safer. A citizen who would hesitate to confront a wanted criminal would still be willing to drop an email or make a phone call, as America’s Most Wanted has demonstrated. The same computer technology that makes it so much easier to administer online criminal justice has made it also made it easier to obtain a criminal justice degree, especially an online criminal justice degree.
An online criminal justice degree allows students to study at their own pace, while offering high-quality materials and the assistance of experienced professionals as instructors. It would however be important for an online criminal justice degree to obtain accreditation from professional organizations and to keep statistics that would allow it to quantify its benefits.