All posts by Ben Lew

How the Creation of the Penitentiary Strengthened the Law as a Deterrent

Penal law in New York was intended to serve mainly as a deterrence against future crime.[1] Legislation was intended not to rehabilitate or reform the criminal, but simply to prevent further damage to society. Legal punishment was designed to instill preventative fear in the hearts of potential criminals. The Penal Code that existed by the end of the nineteenth century was the product of a long history of reform aimed at clarifying the sentencing procedure so that criminals would be certain of their punishment. In order to accomplish this certainty, the New York legislature moved away from capital punishment and towards incarceration in the state penitentiary. Leading up to 1880, reform in the New York courts and legislature attempted to prevent future crime through the creation of clear and consistent sentencing and the implementation of lasting punishment.

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How the New York Penal Code Targeted “Professional Criminals” and Crimes against Property

The existence of the criminal relies on the existence of crime. Whether the criminal merely attempts the act or completes his task, under the law he is tried and punished as a criminal. The actions considered damaging to social order are laid out in the New York Penal Code. It is these codes which first and foremost shape the image of the criminal, by classifying the people capable of committing crimes, laying out the actions punishable as crimes, and prescribing the punishment to be given.[1] The Penal Code of the late nineteenth century separates offenses into felonies and misdemeanors. While a criminal is one who commits a crime, it is clear by looking at the disparity of sentencing for felonies and misdemeanors that the nineteenth century state viewed felons as far more threatening to civic order than lesser criminals. Writer Oliver Barbour writes that a felony within the Revised Statutes of 1882 “shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in a state prison.”[2] Paired with sentencing patterns of the nineteenth century, the classifications of the New York Penal Code labeled the criminal most dangerous to civic order being the criminal against property.

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The Decline of Capital Punishment and its Place in Law as Deterrence

Execution of the criminal was a public spectacle for most of human civilization. Public beheadings, the gallows, the guillotine, and the firing squad were all “executed through ritual and dramatic display” as a demonstration of state authority. The implementation of capital punishment as a public affair simultaneously administered justice and served a political purpose, accomplishing “juridico-political function.”[1] The offender is found guilty, and his or her death is the pinnacle of justice served. Execution also gives the state the opportunity to seek retribution against the criminal who attacked the law and the sovereign state behind the law.[2] Hanging Day in pre-1835 New York was a demonstration of power and warning, where the audience would both witness the strength of the state and simultaneously be deterred from committing crimes.[3] Reform in the nineteenth century by writers such as Bentham, Beccaria, Rush, and Livingston focused on curbing the barbaric and bloodthirsty traditions of public executions.[4]

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Prison Pardons: A Necessity, A Tool, A Scandal

The pardon system in nineteenth century New York existed since the colony’s establishment. To pardon a criminal, in the eyes of the Supreme Court, was to erase not only the punishment but also the guilt of the crime.[1] In practice, the pardon was meant to protect the innocent from errors in criminal procedure or allow for the termination of a sentence if new evidence showed innocence. Until 1915, the governor of New York State was given nearly absolute power in the pardoning of criminals.[2] This gave him incredible political power, but also exposed the system to corruption. Pardoning power was not used as it was intended, to pardon the innocent of the sentence. Pardoning power in nineteenth century New York City was used to control the prison populations, to incentivize good behavior in the prisons, and as a scandalous form of corruption to achieve wealth and influence.

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