Criminal Law and Its Administration

Abstract

In the last decade or so Criminal Law, like nearly every other field in the law school catalogue, has undergone sweeping changes both in content and in teaching method.Before then it was structurally very simple.With exceptions in only a few schools, there was only one course in which the substantive law of crimes was carefully worked 'out from judicial pronouncements and from no other source.Fine distinctions as to act and intent were its life-blood and (to mix one's metaphors) larceny,, larceny by trick, embezzlement and false pretenses were a particularly happy hunting ground.How (and whether) all these fine spun analyses worked was a question that simply did not occur to anyone.After all there is no failure to answer a question when the question isn't even asked.Lee Kong, who ran a gambling joint in California away back in 1892 and thought a detective was peeking down at him through a hole in the ceiling, was guilty of assault with intent to commit murder, if he fired a bullet through a knot hole saying to himself, "I want to kill him, and so I'll shoot through the hole, where I think he is."But he was not guilty if he did the same thing saying to himself, "I want to shoot through the hole, because then he'll be killed."Probably Lee Kong himself didn't know which description fitted him, but the jury would, and the answer determined whether he was a community menace, to be locked up, or was fit for continued freedom.The distinctions were fine, whatever the results were.Presiding over the field in lonely majesty was Beale's Cases on Criminal Law, published in z894, with a very much younger partner appearing in i9o8 in the shape of Mikell's casebook of the same title.Those were the days when law was law, and no nonsense about it-either penological or sociological.Much later and of course on a much lower social level came occasional courses in criminal procedure.But these too were saved from damnation by sticking solely to "law."The reviewer's rather jumbled recollection of them is that they seemed limited to pointing out why all indictments were bad, really.Mikell's Cases on Criminal Procedure provided these courses with their necessary orthodox food.Then, very gradually and slowly, things began to change.More and more there was a disturbing and annoying feeling that perhaps we ought to see-now and thea-how these perfect, logical structures worked.Lee Kong might be very much the same kind of a social problem, no matter which intent he had when he fired that bullet through the ceiling.But the real trouble with looking at the facts is that it works like a snowball rolling down hill.Once you make the mistake of beginning you have a terrible time stopping.That is the way it has worked in criminal law at least, until now about the only thing that seems to matter is, how does it work?And perhaps a few of us-incurably old-fashioned-are not wholly ironical when we look back at the good old days when law was law and the accused merely a piece of the stage setting.This change in emphasis has led to a complete structural change in each of the two criminal law courses, substantive and procedural.The latter, under the guidance of Keedy's casebook, has shed its cocoon and become a course in the administration of criminal law as a whole.The reviewer will have more to say on that head a little farther along.But the former-the substantive law course-has undergone changes just