INTRODUCTION.

SCOPE AND OBJECT OF THIS REPORT.

The many and varied questions which come before the International Prison Association for discussion may be reduced to three simple categories, namely: What are crimes and offenses against society? Secondly, How shall we prevent them? Thirdly, How shall we treat the criminal or offender? In the series of reports prepared by the United States Commissioner for the Sixth International Congress, to be held at Brussels in 1900, an endeavor has been made to answer with more or less detail these general questions.

Taking these questions in their inverse order, the reports on the Reformatory System in the United States (House Doc. 459, Fifty-sixth Congress) and on the Prison Systems of the United States (House Doc. 566, Fifty-sixth Congress) are attempts to show how criminals and offenders are treated in the United States. The reports on the Indeterminate Sentence and the Parole Law (Senate Doc. 159, Fiftyfifth Congress) and the report on Penological Questions (Senate Doc. 158, Fifty-fifth Congress) cover various subjects in relation to the prevention and diminution of crime.

The present report is an attempt, necessarily limited, to show how statutory crimes and offenses are defined, classified, and punished in the United States under recent Federal and State legislation. A prime object has been to indicate the present tendencies and movement of criminal law in the United States, first in regard to offenses which are deemed punishable, and secondly as to the weight of punishment to be inflicted. Such an inquiry is interesting and important not only in its legal but also in its ethical bearings and in its relation to the social life and civilization of the American people. Perhaps no people are more prompt than ours in expressing public sentiment in the form of statutory law.

LIMITATIONS OF THE INQUIRY.

It is important at the outset to indicate some of the self-imposed, circumstantial, or necessary limitations of this inquiry.

In the first place, as the report deals distinctively with new legislation, no attempt has been made to exhibit the growth historically of penal codes in the United States. In Bishop's Statutory Crimes, in Hochheimer's Law of Crimes and Criminal Procedure, and in other works one may find material for historic comparisons and may also obtain a general view of the scope and range of statutory law in the United States at the time they were written. As American criminal law for the most part has its roots in the common law of England, works dealing with its exposition and history, notably James Fitz

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James Stephen's General View of the Criminal Law in England, have an important bearing upon our own codes and procedure.

The report is also limited as to time. As some of the States have annual sessions of the legislature and the greater part have biennial sessions, it was necessary to cover a period of two years in the examination of statutes. The period chosen was that covering the legislative sessions of 1897 and 1898. During these two years all the States and Territories of the United States held legislative sessions excepting one, the State of Oregon, which, passing no laws during that time, could not be included in the temporal comparison. The examination includes, therefore, forty-four States and three Territories, and also an analysis of the new code for the district of Alaska established by Federal enactment.

To confine the report to definite limits, the subject of criminal procedure is not included. Nor does it deal with the civil code or civil procedure. Yet in some States and in some laws the line between the civil code and the criminal code is but faintly drawn. Offenses which are triable under civil process in one State may be brought under the criminal code in another. Many violations of the civil code are punishable by fine, but if the fine is not paid the person may be remanded to prison for a definite period. To a person thus incarcerated it may lighten the consciousness of punishment to feel that he is not imprisoned under a sentence for crime, but his régime in prison is essentially the same with that of misdemeanants under the criminal code. Thus the stigma which does not appear in the process often appears in the penalty and its execution.

In his General View of the Criminal Law in England, Mr. James Fitz James Stephen says:

*

Crimes being defined as acts punishable by law, criminal law may be defined as that part of the law which relates to crimes, and it will at once become apparent that these definitions extend the sphere of criminal law considerably beyond the narrow routine of the cases which usually occupy the criminal courts. In this country an immense mass of affairs which in other parts of the world fall under the head of civil administration are transacted by the help of the criminal law. * * It is sufficient in this case to observe that they illustrate the general proposition that the province of criminal law must not be supposed to be restricted to those acts which popular opinion would describe as crimes, but that it extends to every act, no matter what its moral quality may be, which the law has forbidden, and to which it has affixed a punishinent.

"Penal" would be a better phrase than "criminal" law, as it points out with greater emphasis the specific mark by which the province of law to which it applies is distinguished from other provinces; for the distinction arises not from the nature of the acts contemplated, but from the manner in which they are treated. Many crimes, for example, are civil injuries, and as such may be made the subject of actions for damages independently of penal proceedings.

This report is not bound by the technical division between the two codes. Though it excludes procedure, it takes cognizance of all penalties involving fine or imprisonment which are imposed by statute. Therefore, where a fine or forfeiture is distinctly stated it has been included in the volume, and where it is to be recovered by civil process this statement is added when contained in the law.

MUNICIPAL PENALTIES.

Another limitation of the report must be noted in relation to municipal penalties. The session laws of the different States by no means indicate all the misdemeanors, new or old, which are recognized by law

within State limits. Powers to impose certain penalties are delegated to cities and villages under laws sometimes applied to cities of a certain class and sometimes expressed in specific characters. Under the power thus conferred we have a vast number of local ordinances, varying greatly in different cities and towns and also in the character of the penalty imposed.

Such municipal ordinances and penalties do not come within the scope of this report, which is limited to crimes, misdemeanors, and offenses recognized and punishable under State enactment. But, as I have remarked in relation to the city of Baltimore (page 154), while the charter of every town or city confers the right to enact local laws with limited penalties, there are in various charters specific offenses for which the punishment is provided in the charter itself. In that case it is not a municipal regulation but a State law. In such cases the offense and the penality are indicated in this report. Under the heading, therefore, of "Municipal penalties" will be found in a number of the States examples of the powers conferred and the limitations prescribed by statute with regard to penalties which may be imposed under city or town charters; and there will also be found a description of offenses and punishments which are imposed by direct enactment of the legislature and made a part of the charter itself. Thus under the charter of Baltimore (page 154) there are some 116 offenses in which the penalty is imposed by the legislature.

In the charter of the city of New York (page 282) some fifty or more offenses are likewise catalogued with prescribed punishments. The character of these offenses thus embodied in the charters are not necessarily more serious than those which are provided for by purely local enactment. The fine of $10 imposed in the charter of New York for flying kites near telegraph lines might have been left to the municipal assembly to be enacted as a local regulation. If it had been adopted as a municipal ordinance it would not have been catalogued in this report; as a legislative enactment it comes within its purview.

Most of the penalties thus imposed by legislative enactment, in which the lawmaking body of the State assumes functions that under our system of local government are more usually left to municipal assemblies, are not higher than could have been imposed if left to local authorities. Other offenses, however, made punishable in these charters are of a more serious nature, and the penalty imposed by the legislature in the charter transcends that which municipal bodies or courts are empowered to impose.

It will thus be seen that no general principle governs in the separation of local ordinances from statutory offenses. The bounds beyond which municipal authorities shall not go in imposing penalties are fixed by the State legislatures, but this does not prevent the legislature from entering municipal precincts and resolving itself into a board of aldermen. Thus, this report, while it is concerned with the classification and treatment of offenses, furnishes material for study and comparison as to the distribution of legislative powers. Attention is called to the great amount of special legislation and to the functions of local government which in many States have been transferred to the State legislatures or which have never been assumed by cities or towns.

CLASSIFICATION OF CRIMES.

The general classification of offenses against the law in the United States is, as in England, twofold, namely, into felonies and misdemeanors. This is a classification based, not on the nature of the offense, but upon the degree of punishment assigned to it. It represents two grades of crimes or offenses widely separated at their extremes and yet approaching each other so closely that it is difficult to say where one begins and the other ends.

Concerning the history of misdemeanors in England, Mr. Stephen

says:

The history of the law of misdemeanors is hardly less characteristic of English criminal jurisprudence than that of the law of theft. At first sight nothing can appear more unintelligible than the distinction between felonies and misdemeanors. If difference in the gravity of crimes is the test, why should embezzlement and bigamy fall under one denomination and obtaining goods by pretenses and perjury under the other? If the severity of the punishment and the importance of the case makes the distinction, why should men plead guilty of felonies before a police magistrate and be impeached by the House of Commons for high crimes and misdemeanors? (Page 57, General View of the Criminal Law of England.)

Mr. Stephen further remarks that in the present day and for centuries past the distinction between felonies and misdemeanors has no doubt been unmeaning, but plausible conjectures may still be made as to its origin. "The distinction between felonies and misdemeanors," he says, comes very near to the ancient and nearly universal distinction between crimes and delicts or torts. What is a misdemeanor at common law hardly admits of any better answer than that it is a tort prosecuted by the Crown." Whatever its origin, it is evident that this distinction is no longer preserved in statute law.

The original meaning of a felony, traceable to the feudal system, is no longer in vogue in this country any more than in England. Mr. John Stuart Mill says:

There is no lawyer who would undertake to tell what a felony is otherwise than by enumerating the various kinds of offenses which are so called. Originally the word felony had a meaning. It denoted all offenses the penalty of which included forfeiture of goods. But subsequent acts of Parliament have declared various offenses to be felonies without enjoining the penalty, and have taken away the penalty from others which continue, nevertheless, to be called felonies, insomuch that the acts so called have now no property whatever in common save that of being unlawful and punishable.

These words of Mill apply quite as well to the United States. The distinction between felonies and misdemeanors is ill-defined and arbitrary. The relation between the two is constantly shifting in the laws of the different States; misdemeanors become felonies and felonies misdemeanors. Preceding the laws of the different States as arranged alphabetically in this report, I have given, for the sake of comparison, definitions of felony and misdemeanor derived from the statutes of the State. By reference to these it will be seen that the most common definition of these terms is that a felony is a public offense which may be punished by death or imprisonment in the penitentiary. All other offenses are called misdemeanors.

Thus, as said above, the distinction between the two is not in the nature of the offense, but in the punishment attached to it. The felony, as representing the more heinous offense, is punishable with a more severe and more degrading penalty. But, as a matter of fact, the dif