2012 Annual George and Margaret Barrock Lecture on Criminal Law: The Accidental Crime Commission: Its Legacies and Lessons

On October 4, 2012 Professor Franklin E. Zimring delivered the Annual George and Margaret Barrock Lecture on Criminal Law to a large audience of interested public, law students, faculty, and members of the legal profession. Professor Zimring is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the University of California, Berkeley School of Law.

His subject was the origins and legacies of the so-called Wickersham Commission of 1929-1931. Since the Commission’s work is largely forgotten today, Professor Zimring assumed the burden of explaining how “this hopeless venture ended up being viewed as a precedent setting and positive contribution to the ways in which the national government learns about crime and criminal justice.” In this he succeeded, his remarks serving as a timely, thoughtful introduction to the Law School’s day-long conference on the Wickersham Commission that was held on October 5, 2012. (More on the conference in my next blog.)

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The American Prison in 1931: High Ideals, Harsh Realities

As part of my ongoing review of the work of the Wickersham Commission, I am reading the body’s 1931 Report on Penal Institutions, Probation, and Parole.  I’m much struck by the Commission’s ringing statement about the purpose of prison:

The function of the penal institutions is protection of society.  To this end all efforts must be bent and all administrative methods be adapted.  All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society.  This raises the question of how penal institutions can best contribute to this objective.  There seems but one answer possible — by the reformation of the criminal.  Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose.  If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community.  Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations.  (6-7)

This passage interests me for two reasons.  First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison’s function.

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Millard Farmer on Capital Punishment

As I stated in a prior post on this Blog, I consider the continued use of capital punishment in the contemporary United States to be not only immoral but also surprising.  Is there something in the country’s history that helps explain why Americans still use capital punishment?

Millard Farmer, the legendary anti-poverty lawyer and opponent of capital punishment, argued that a reaction to the civil rights movement and the power struggle between the federal government and states’ rights are important factors.  When the national government required the southern states to end their discriminatory practices and dismantle their Jim Crow legal systems, according to Farmer, the southern states dug in regarding their right to use capital punishment.

Then, when the Supreme Court’s decision in Gregg v. Georgia (1976) blew away the constitutional clouds floating above capital punishment, the southern states saw it as a huge victory.  At least in this area, the feds had to stop pushing us around!

In the present, of course, the South remains the true home of capital punishment.  The so-called “Death Belt” – Florida, Georgia, Louisiana, and Texas – has been responsible for three quarters of all capital punishment in the United States over the past two decades.  If Farmer is right (and he is himself a southerner), this pattern results from both the South’s strong law-and-order attitudes and the region’s belief in states’ rights.

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