Crime & Society Midterm

Babylonia

Hammurabi's Code

1790 BCE

First written laws know by the population
282 laws, civil and criminals
Laws and punishment written for everybody to read!

Ancient Greece

  • Rapid justice (1 day)
  • All courts were open to public

Greek Innovations

  • Law belonged to the citizens (could be amended)
  • Punishment tended to fit the crime (Solon)
  • Law code became more humane (Solon)
  • Invention of the jury system
  • Hemlock was used for more humane executions

Tribal Rules

900 BC - 800 BC

Vendetta System
Legal system based on revenge and retribution, left in the hands of individuals.
Clans were against each other = endless blood fights
Clans and families resolved conflict by inflicting the agressor's family a similar fate

Arbitrator

799 BC - 620 BC

Gradually, a solution:
Third party was used to represent the well being of the collectivity
Arbitrator was someone who was respected and trusted by everybody

Lead to the gradual development of law & its related institutions (judge, tribunal, sentences...)

Draco published the 1st LAW CODE of Athens

621 BC

Death = punishment for most crimes
Not paying debt = jail to scare family into paying the debt, if not, sold into slavery

Athenians demanded a reform concerning the punishments

Solon repealed Draco's code and made Athenian Laws MORE HUMANE

594 BC

Punishment should FIT THE CRIME
Death penalty only for treason, murder, adultery (if caught in the act), and impiety
LAW BELONGED TO THE CITIZENS, therefore could be amended

WOMEN
- Had no autonomy, under the guardianship of the Kyrios
- Main role was to take care of the household and have children
- Rape = felony only if performed on a virgin, but very hard to report

PEOPLE'S COURT IN ATHEN
8 different types of court
- Private (family, succession, adoption, internal conflicts)
- Public (crimes/wrongs against society, legal procedures, constitution)
- Matics (foreigners, not born from Athenian parents)

No professional judges or lawyers
People could defend themselves and be help
Accusatorial system (fighting over an issue)

COURT PROCEEDINGS
- Magistrate screened the cases (only serious cases) & decided the date and number of jurors
- Trial day: both sides defended their case
- Jurors gave the verdict & punishment

ATHENIAN PRISONS
It was believed that murderers had evil miasmas (aura) and could infect others and temples
It was important to isolate them in prisons until the trial (form of protection)
Prisons were only seen as punishment for citizens who didn't pay fines
Athenians frequently let convicts on death row escape and flee into exile

PUNISHMENT UNDER SOLON
- Fine and property confiscation (most common)
- Humiliation in public stocks
- Loss of political rights (citizenship, right to vote...)
- Imprisonment

For slaves it was much harsher:
- Physical punishment
- Masters paid their fines
- Could be tortured to get evidence
- Whipped and beaten
- If exectuted, masters lost their property

Greater punishments:
- Manslaughter = exile (civil death)
- Capital offences = Binding to a stake at the entrence of the town
** Athenians found it disgusting and barbaric: they demanded a more humane death
- Hemlock was introduce, but expensive

Court of Areopagus

400 BC - 300 BC

Court of homicides and some cases of treason
- 9 former archons were chosen for life
- They investigated the case
- They questioned witnesses
- They gave the verdict and the sentence

Roman Law

  • Law belonged to the citizens (could be amended)
  • Codification of Law by Justinian - CORPUS JURIS CIVILIS

Roman Innovations

  • Jurists (legal experts)
  • Presumption of innocence
  • Benefit of the doubt
  • Lawyers were recognized and educated (1st c. CE)
  • Public prosecution (Cognitio Extraordinaria)
  • ACTUS REUS + MENS REA = CRIME Law differentiate between intentional and accidental crimes

Western Roman Empire

753 BC - 476

ROMAN SOCIETY
- Patrician = elite (nobles, senators...)
- Plebians = rest of free-born citizens (romans, socii, and peregrines: people from conquered lands part of the Roman Empire)
- Freedpeople = ex-slaves (some legal incapacities, but not your kids)

Slaves = not citizens (30-40% of the population)

Citizenship = very important (provided legal rights, privileges, and protection)

Paterfamilias
- Oldest man of the household
- Ruled as kings, they had the potestas (power of the paterfamilias over the members of his household, originally included punishing and killing)
- The members of the household could not testify against or for the paterfamilias in court
- They could expose unwanted babies (not keep it)
- They imposed discipline, fear, and respect

The power of the paterfamilias declined after the 1st century BCE

ROMAN LAW: Mens Rea + Actus Reus = Crime

Actus Reus: the guilty act

  • Criminal act against the Law (e.g. stabbing someone)
  • Omission act (e.g. not feeding a child)
  • State of being (e.g. illegal immigrant)

Mens Rea: the guilty mind

  • Intentionally act (e.g. plan to stab someone)
  • Recklessness (e.g. injuries that lead to death & arson)
  • Negligence (e.g. firearms accessible to a child)

Anyone who helped, before, during, or after the commission of the crime was deemed a party and could also be charged

Crimes and Punishments

  • Treason, murder, arson, slave revolt = Death penalty
  • Theft, robbery (theft + violence), assault = Punishment according to status

Roman Death Penalty
It had to be public

  • Decapitation, deportation (Upper class)
  • Garotting, crucifixion, forced labor, gladiator combats (Lower class)

Roman Republic

509 BC - 27 BC

LAW OF THE TWELVE TABLES

451 BC

Accessible and in display in the Roman forums
Law belonged to the citizens and could be amended
The initial law code aimed at arbitrating disputes amongst Romans

Legal equality?
- In theory = YES, no official discrimination
- In practice = NO, Patricians easily got away, they had better judicial treatment and judges were more lenient

  • Punishment depended on social status (could pay fine = physical punishment)
  • Slaves and poor people received harsher punishment, and their testimonies didn't have the same weight
  • Torture was used to extract information

Reputation was really important

Rise of Jurists

200 BC - 300

JURISTCONSULTS
- Analyzed law as a science
- Provided legal opinion to magistrates
- Not professional magistrates or judges
- Gradually developed a scientific, rational and coherent approach

Roman Empire

27 BC - 476

Roman Lawyers

Approx. 1 AD

At first, Roman "lawyers" were not allowed to be paid for their services
1st century CE = lawyers were recognized
Schools were created
Regular course of study lasted about 4-5 years

Used knowledge to defend people in court

Cognitio Extraordinaria

300 - 476

At the end of the Western Roman Empire (Dominate)

Roman Legal Procedure
- Victims went to see a magistrate to report a crime
Public prosecution: the state was responsible to prosecute the accused
- Magistrate did the investigation, set the trial date, summoned the accused (could jail them until trial), could ask for interogational torture, gave verdict and sentence

MAGISTRATE WAS EXTREMELY POWERFUL

Death sentence could only be given if:
- The accused had confessed
- Witnesses were unanimous
- The magistrate was assured of the accused culpability

In doubt, the magistrate gave the benefit of the doubt (It's better to let the crime of someone guilty go unpunished than to condemn an innocent. Protection for the jurors and magistrate, because they didn't want to condemn an innocent and go the Hell.)

Barbarian Invasions

375 - 568

Germanic Invasions/Migrations
- Lead to the fall of the Western Roman Empire
- Establishment of new Germanic kingdoms on the Roman territory, partial adoption of the Roman culture (Latin/Germanic hybrid culture)
- Barbarians had no written laws (illiterate), laws were based on costums & traditions
- In order to accomodate the Romans, Barabian kings needed written laws

Barbarian Customs + Roman Laws = Barabarian Laws
- Closer to Rome, closer to the Roman Code
- Further from Rome, more Barbarian customs

Over time, Cognitio Extraordinaria gradually fell into disuse

Roman-Canon Law

Approx. 400

Under Emperor Constantine, Christianity = Official Religion of Western Roman Empire

Church's influence was deemed protective by ordinary, poor people, as Church saw everybody as equal under the fair judgment of God
- Magistrates were very corrupted
- People started trusting Bishops in order to administrate their conflicts

Catholic Church didn't die with the Western Roman Empire fell, it expended.
Roman Laws survived the fall of the Western Roman Empire, as they were maintained within the Canon Law
- Heavy influence of Roman Law over Canon Law
- Church's most severe punishment = excommunication (To exclude somebody from the christian community. Didn't really work, people didn't care, so the Canon Law turned to the secular system for help on some cases.)

Fall of the Western Roman Empire

476

CORPUS JURIS CIVILS

Approx. 499 - 565

Codification of Roman Law by Emperor Justinian
- Engaged jurists to create a complete codification of all Roman Laws
- He wanted a reform & to clean up the legal system
- Created a logical, rational, and coherent legal system

Corpus Juris Civilis

  • Codex: all existing Roman laws, public and private
  • Digest: a guide for judges with summaries of the laws
  • Institute: an introduction to Law and the Codex for Law students
  • Novellas: new additions to the Codex

Compurgation System

Approx. 500 - Approx. 900

COMPURGATION SYSTEM
- Accusatory system before a Noble ("judge")
- Plaintiffs and defendants called for witnesses: the more well-reputed witnesses you brought to court, the more chances you had to win your case
- If found guilty, you has to pay a Wergled, which was a sum of money you paid to the plaintiff based on the social status of the decised (could afford to loose a man/warrior)
This system was abandoned between the 9th and 12th centuries

Trial by Ordeal

800 - 1215

Ordeal by Fire
- Walk on hot iron, or boil hand/arm
- 3 days later if the body showed signs of healing, God had helped the accused, therefore he was not guilty

Ordeal by Water
- Threw the accused in a lake
- If the person floated = guilty
- If the person sank = not guilty, God accepted the accused

Cursed Morsel Ordeal
- Accused swallowed a piece of dry bread
- If he chocked = guilty

Ordeal by Arms
- Combat between the accused and plaintiff
- Clergy, children, women, and persons disabled by age or infirmity had the right to nominate Champions (substitute)
- If Champions lost, cut an arm

Trial by Ordeal were gradually abandonned between the 11th and 13th centuries, and were officially banned by Pope Innocent III in 1215

Rediscovery of the Digest

1070

A manuscript of the Digest with summaries of the Roman Laws was rediscovered and studied by scholars in Bologna, Italy.

Revival of Roman Law
- Law professors in universities
- Legal specialists were appointed as judges (legal experience and reasoning)

Continental Europe

Revival of Roman laws and legal procedures
Find the truth!

Inquisitorial Procedure

1200 - 1700

Public Prosecution (prosecutor is a legal professional)

Role of judge is really important!

  • Investigate the case
  • Summon witnesses and accused
  • Conducts trial
  • Gives verdict
  • Gives sentence (assisted by other legal specialists or judges)

OBJECTIF = FIND THE TRUTH

Capital Punishment
- The judge must have conclusive proof of guilt
- Not sure? Gave the benefit of the doubt
- Two eye-witnesses or the accused's confession
- Judicial torture only on the accused in case of capital offence

England

Many reforms and innovations - Henry II & Successors

1154 - 1300

Gradual legal unification of England after 1066

11th - 13th century: many reforms and innovations
- Grand Jury decides if there is a trial
- Jury of 12 wise men gives the verdict
- Organization of Court of Justice local, regional, royal (Westminster)
- King's judges travelled the country to unify the King's Law
- King's bench: most senior judges stayed in Westminster to hear complicated cases
- King's bench decisions formed the precedent, on which other judges based their decisions on similar cases
- Legal professionalization was not done in universities, but hands on apprenticeship in courts withs judges

Rise of Adversarial Trial Procedure

Approx. 1300 - Approx. 1750

Grand jury decided if a crime had been committed and if criminal charges were pressed

When trial
- 2 litigants presented witnesses, did cross-examinations, before a jury
- Judge could ask questions to the witnesses and the accused
- 12 jurors would determine the verdict (starting in 1367, it took a unanimous jury to give a guilty verdict)
- Judge gave the sentence

Peine Dure et Forte

1406 - 1792

Judicial Torture
- For commoners
- English court: accused had to enter a plea (answer guilty or not guilty to the charges)
- If they refused to enter a plea: imprisonnement, starvation, and peine dure et forte
- The Peine Dure et Forte consists of being crushed under the weight of stones or other heavy objects until you agree to answer to the plea, or you die.

Star Chamber

1487 - 1641

Judicial Torture
- For nobles
- Secret court with no juries
- Nobles who represented a threat to the king were tortured to get information

Old Bailey

1674 - Present

The Central Criminal Court of England and Wales.
The Crown Court sitting at the Central Criminal Court deals with major criminal cases from within Greater London and in exceptional cases, from other parts of England and Wales.

  • Lawyers were first used for prosecution
  • Presence of defence lawyers was generalized in the 19th century
  • Lawyers didn't have a good reputation (rude, incompetent...)
  • 3 types of verdict: guilty, not guilty, and partial verdict (guilty, but of lower charges)
  • Spouses were not equal before the law, not the same type of crime and punishment for the same offences

Lawyers

1730

Until the 18th century, it was believed that lawyers tended to obscure the truth during trials

1730: judges started accepting defense councils
Mid 18th century: lawyers have the responsability of gathering, selecting, and probing evidence, examining witnesses, and conduct cross-examinations

The introduction of lawyers forced the modification in the judge's role.

Lawyer-conducted trials (Adversarial System)

1750 - 1900

Starting in the 19th century, British judges became moderators et neutral referees on the point of Law.

The role of the lawyers is to convince the jury and not to find the truth.

According to Langbein, there are 2 main defects of the adversary system:
- Money effect: more money = can hire best lawyers and more lawyers
- Combat effect: suppressing evidence to win the case, no matter if guilty or not. This system impairs the truth, as lawyers don't want the truth, they want to win no matter what

Presumption of Innocence extended to everybody

1827

Judges are forbidden from interrogating the accused

1848

Defence lawyers are systematically given to all defendants

1903

Even those who couldn't afford it, paid by the State.

New France

Inquisitorial System

1608 - 1760

King Louis XIV dreamt of a perfect society:
- No journalists or newspapers = no criticism
- No lawyers, as they were seen as a source of evil

  • Some lawyers avoided the ban and worked as "legal practitioners"
  • Mostly in civil cases so trials would go faster
  • Extremely well paid
  • Lawyers were sent to the colonies to assume senior positions (e.i. Judges)

Few examples of crimes (17th-18th centuries)
50% of all crimes committed in New France:

  • Assault and Battery (very frequent)
  • Theft, Robbery, receiving stolen goods
  • Insults
  • Forging currency
  • Blasphemy (against God or King)

Justice in New France
Same penal law as in Paris (Coutume de Paris)

  • A victim/authority went to a judge to officially lay accusations against someone
  • Actions were taken as if the monarch were symbolically the victim of the crime committed(breaking the King's Law)
  • Public Prosecution: burden of the trial off the shoulders of the victim
  • Judge gathered evidence and presented the case to the Attorney General. To counterbalance the judge's potential bias, the Attorney General decided which cases went to court (Judge couldn't send anybody on trial)

The organization of criminal justice in New France

  • Seigneurial Court (Regions of Montréal, Trois-Rivière, and Québec City)
  • Royal Tribunal (Montréal, Trois-Rivière) & Prévôté in Québec City (most important)
  • Superior Council where appeals were done (very frequent)
  • King back in France, 7-8 appeals between 1608-1760

Role and Powers of a Judge

  • Received a plainte
  • Gathered evidence (Media reports, witnesses, monitoir: ask the people at the Sunday mass if they know something about the case, as God knows if you say the truth or not.)
  • Wrote writs/summoned the witnesses and suspects (can't work anymore, sent to prison)
  • Drafted the questions with the prosecutor
  • Send a summary of the case to the Attorney General who decided to stop or continue towards the trial. Objectif = FIND THE TRUTH

TRIALS

  • Case heard in camera (in private), so witnesses could testify without fear of retaliation
  • Guilty until they prove their innocence (no presumption of innocence)
  • No lawyers
  • Didn't know the nature of the accusations when you were sent to jail, and didn't know when the trial would be (element of suprise, so you wouldn't have the time to create an alibi, therefore you would say the truth)

Major crimes

  • Recolement: witnesses confronted the accused in court, accused was alone
  • When the judge was in doubt, he could ask for the extraordinary question: the boot torture to get a confession. If the accused confessed, they had to repeat their confession freely in court to confrim it
  • Judges possessed significant discretionnary power in the determination of the punishment, depending on the context of the crime (opened the door to favoritism)
  • Your social status and reputation usually influenced to judge's sentence (privilege for the nobility)

Punishment for Major Crimes

  • Amende Honorable: ask the community and God for their forgiveness (usually accompanied with a much harsher punishment)
  • Flogging until they bled or a certain number determined by the judge
  • Branded with the fleur de lys (because they disobayed the King's Law), on the shoulder, the chest, or the cheek (brand V for voleur, or VV for a second major offence), so everybody would know
  • Sent to the Mediterrenean Galleys to row for 3-9 years. Also branded the letters GAL. Lingering death, never made it out alive. Never women, as they couldn't wear a shirt on the boat and it would have been to disruptive.
  • Banishment from the community. Worst punishment, but not physically painful. Banished from the city or the colony, for years or for life.

Punishment for Minor crimes

  • Paid a fine
  • Exposure: Iron collar or the Carcan (on the main public place, Sunday after mass, with a writing around the neck explaining why they are here, 30min-4hrs, 1-4 days) Public humiliation as a deterrent, honor and reputation was really important
  • Trial was private, but sentence was public, to create an example

Physical Pain as a Deterrent Against Crime!

Capital Punishment From Capital Offences

  • Carnavalesque atmosphere on the day of the execution (only 4-5/year)
  • People enjoyed the executions, as it was their main source of entertainment, special day, they learned about the crimes committed (no newpapers)
  • On elevated surfaces, in a large public place, people rented the windows of the houses around the place for the best view

Types of Capital Punishment

  • Hanging: vast majority of executions Death by suspension (3-15 minutes)
  • Beheading: none in New France Reserved for nobles, they usually fled before the sentence with the collaboration of people inside the judicial system
  • Being Burned Alive: only 2 cases in New France Against people who were accused of arson
  • The Breaking Wheel: 6-10 cases in New France, only men Condemn was bound to a cross, and the executioner would use an iron bar to break his limbs. Death followed in the next hours or days. Retentum: The judge gave a note to the executionner to secretly strangle the condemned first, the show must go on, but it was more humane.

Foucault:

  • Executions were public to show the power of the King, and to avenge the King because somebody broke his Law.
  • The people wanted to see the executions to ensure that everybody received the same treatment and nobody espaced justice.
  • Gallows were strongly protected by the military to show the power of the King and to ensure that nothing would go wrong during the execution (crowd could support the judgemnt or the accused)
  • Unskilled executioners who failed at their task were seriously beaten by the population, as they were not happy of the show they were given

IN ABSENTIA

  • In the absence or death of the accused, judges still imposed a public punishment
  • Using an effigy (drawing or dummy) to represent the condemn, and execute the sentence on the effigy or corpse No one could escape the King's justice!

Punishment for the crime of suicide

  • Understood as a double-crime: murder of body and soul
  • Body would be dragged face down through the streets so he would have to look at Hell
  • Hung by the feet for hours, days, or years!
  • Buried in unhallowed grounds, dumped in the St. Lawrence river, or body given to the surgeon and his students for disection (denial of christian burial = additional punishment and shame for the family)
  • Self-murderers didn't aks for forgiveness before death = excommunication