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Toward a Contemporary Concept of Criminal Justice*
Published online by Cambridge University Press: 12 February 2016
Extract
The state of our “criminal law” in 1905 was described by William H. Taft as “a disgrace to our civilization”. This state had not changed much almost half a century later, when Justice Frankfurter quoted Mr. Taft's statement. Several major modern reform projects formulated since 1952 introduced some noteworthy modifications. I have in mind particularly the American Law Institute Model Penal Code, on the one hand, and the German Draft of a Penal Code, both of 1962, on the other. In the former I should like to draw attention to the serious attempt at a systematization of punishment scales, and in the latter to the effort at a systematic structuring of the “guilt principle”. The German Draft incorporated results of various revisions introduced since the collapse of the National Socialist régime, by either statutory or judicial legislation—revisions born out of the growing concern in Germany with “guilt”. Prominent among these revisions, of course, is adoption of the defence of “error of law” of ancient origin, derived from biblical, talmudic and canon law teaching. Nevertheless, these two projects have but touched the surface of the profound problems that are involved in formulating truly modern penal legislation.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1969
Footnotes
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Professor of Law, University of Puerto Rico.
*
Lecture delivered at the Hebrew University of Jerusalem, May 21, 1969.
References
1 Taft, , “The Administration of Criminal Law” (1950) 15 Yale L. J. 11.Google Scholar
2 JusticeFrankfurter, , dissenting in Leland v. Oregon, 343 U.S. 790, at 802 (1952).Google Scholar
3 370 U.S. 660 (1962).
4 See, for example, Griswold v. Connecticut, 381 U.S. 479 (1965); McLaughlin v. Florida, 379 U.S. 184 (1964); Loving v. Virginia, 388 U.S. 1 (1967).
5 337 U.S. 241 (1949).
6 The most narrow interpretation of the holding of this case is that set forth by Rubin, Sol in The Law of Criminal Correction (West Publishing Company, 1963) 99 Google Scholar: “[A] defendant is not entitled to confront and crossexamine persons who provided information for the presentence investigation report.” This, no doubt, means that a statutory bar against such confrontation and cross-examination is constitutional. In order to adopt this “holding”, of course, the Supreme Court accepted the fact that “sentencing” is not subject to the same constitutional safeguards as is the finding of “guilt”. This, in turn, implies that the “goals of criminal law” at the sentencing stage differ from those obtaining at the stage of “guilt” determination. I believe such differentiation of the “goals of criminal law and procedure” depending on “stages” of criminal law administration to be irrational. The question must necessarily arise as to what is the purpose of “guilt determination” if “guilt” ceases to be determinative with conviction. Being irrational, such differentation is also unconstitutional in criminal law context.
7 A recent amendment of the German Penal Code approved by the Bundestag (the lower house of parliament) (see Special to the “New York Times”, Bonn, May 9, 1969, the “New York Times” of May 10, 1969, pages 1 and 5), eliminates almost all prison sentences of less than six months and replaces them by fines. The latter are scaled to the seriousness of the offence and the resources of the violator. Thus, whereas a poor man may be fined $100 (or equivalent), a very rich man might have to pay $90,000. But there are a number of questions that come to mind with such a system. Possibly, the rich man paying $90,000 need not reduce his standard of living as does a poor man paying $100. Professor Jürgen Baumann of Tuebingen recommended the so-called “time-fine” (Laufzeit-Geldstrafe), a fine expressed in day-units, during which the subject is reduced to a minimal standard of living. See Baumann, , Kleine Streitschriften zur Strafrechtsreform (Gieseking Verlag Bielefeld, 1965) 51–52 Google Scholar, 217–18. For text of the statutes as eventually enacted, see BGB 1. IS. 645 and BGB 1. IS. 717 (1969). Sec. 38(2) of the latter Act eliminates imprisonment of less than one month.
8 It is not altogether clear to what extent a denial of probation is reviewable. Notice particularly in this context the revised provisions of the California Penal Code § 1208 (1968 Supplement). The Model Penal Code of the American Law Institute (Section 7.01) originally vested in the Court's discretion to grant probation (“The Court may deal with a person who has been convicted of a crime without imposing sentence of imprisonment…”) (Tentative Draft No. 2, 1954); the final revision (Proposed Official Draft, 1962) reads: “The Court shall deal with a person who has been convicted of a crime without imposing sentence of imprisonment unless…” (emphasis added). The Comment to this Section states that it was “substantially revised [since the Tentative Draft, supra]… to express the principle that a probationary disposition is desirable unless there is a special reason for an institutional commitment.” Supra, at p. 107. This comment casts doubt on the scope of reviewability of a denial of probation. Clearly, such denial is reviewable in cases of law violation (e. g., erroneously holding the convicted person not eligible for probation within the terms of a statute) or a flagrant abuse of discretion. But does the phrase “shall deal” also imply reviewability of such denial in respect of its soundness in a given case?
9 For recommendation that such courts be introduced also in countries of common law tradition see Silving, , “Rule of Law” in Criminal Justice, in Essays in Criminal Science (Müller, ed., Rothman, , South Hackensack, N.J., and Sweet & Maxwell, London, 1961) 75, 130–138, 152–154Google Scholar; also Silving, , Essays on Criminal Procedure (Dennis, Buffalo, New York, 1964) 351–373.Google Scholar
10 Act of August 4, 1953, BGB1. IS. 735.
11 § 295, Criminal Code Ordinance 1936.
12 For further criticism of the common law “burglary” notion see Silving, , “Philosophy of Source and Scope of Criminal Law,” in Crime, Law and Corrections (Slovenko, ed., Thomas, , Springfield, 111., 1966) 232, at 246–251, 254–256.Google Scholar
13 Screws v. United States, 325 U.S. 91 (1945).
14 On this see Mommsen, Th., Römisches Strafrecht (Akademische Druck- u. Verlagsanstalt Graz, Austria, 1955) at pp. 96–98.Google Scholar
15 Here I have combined two biblical passages: Genesis 6, 5 and id. 8, 21.
16 Eighth Amendment to the United States Constitution, barring “cruel and unusual punishment”.
17 See my Draft of a Penal Code, the first part of the General Part of which is presented in my Constituent Elements of Crime (Thomas, 1967), Section 20 § 2, at page 81. For comment see pages 85–87.
18 Baumann, Jürgen et al. , Alternativ-Entwurf eines Strafgesetzbuches (J.C.B. Mohr [Paul Siebeck] Tübingen, 1966), 43.Google Scholar
19 Ryu & Silving, “Toward a Rational System of Criminal Law”, Seoul National University Law Review (Summer 1964) and (1965) 32 University of Puerto Rico L.R. 119.Google Scholar
20 See Freud, Sigmund, “Zur Psychopathologie des Alltagslebens”, in IV, Gesammelte Werke (Imago Publishing Co. Ltd., London, 1941), cc. 8, 9, 12.Google Scholar
21 This principle may well be regarded as an ancient heritage at least of so-called “Western civilization”; dating back to the Bible. Deuteronomy 4, 42; 19, 4.
22 Compare as to these concepts of German decisional constitutional law, Silving, , Sources of Law (William S.Hein & Co., Inc. Buffalo, New York, 1968), pages 265–66, 356–57.Google Scholar Even in those countries of common law tradition which have adopted so-called “written constitutions” limitations of substantive criminal provisions are unfortunately at present but incipient. This is also true of the so-called “guilt principle”. No concern has been shown in these countries with the question, vital in criminal law, as to what “guilt” means. But at least in the United States constitutional law is not a “closed system,” though Mr. Justice Black, for example, believes that it is one. His, however, is a minority view. Thus, there is room for evolution.
23 Malinski v. New York, 324 U.S. 401, at 416–417, cited in Rochin v. California, 342 U.S. 165, at 169 (1952). The imbalance between the vast reach of procedural rights of the defence and the narrow scope of protection against abuses of substantive criminal legislation in countries of common law tradition is, indeed, striking. In many countries of civil law tradition, substantive law is deemed more important than procedure; its rules are more lenient than those obtaining in countries of common law tradition.
24 For citation and discussion of the respective provisions see Silving, , Essays on Mental Incapacity and Criminal Conduct (Charles C. Thomas, 1967) 207–211.Google Scholar
25 See Silving, , Constituent Elements of Crime, supra, n. 17, Section 18, par. 2 of the Draft, at p. 68, and comment at 74–75.Google Scholar