Samuel’s take: A Massachusetts Thanksgiving Criminal Justice View To The Past

Today is Thanksgiving. While the daily criminal law blog goes on, this is not a day o concentrate on the problems of criminal justice. Instead, let’s gain some brief optimistic perspective.

From whence have we come?

Some of the particular crimes and punishments make today’s laws look pretty liberal. Since the criminal justice system was a part of the existing religious order of the community, all offenses were against God and society. Laws in the Puritan regions were filled with religious messages. The 1648 Laws and Liberties of Massachusetts, the penal code, for example, often quoted biblical passages.

For example, you think the laws regarding disorderly conduct, trespass and such are overly burdensome? Well, Colonists considered lying, idleness (not working), drunkenness and even general bad behavior as crime. Playing certain games in the Puritan colonies, such as shuffleboard or cards, was a crime. Forget about considering prostitution or sexual assault. Merely flirting was a crime.

The courts used shame, scorn, and humiliation to teach lessons for misbehavior. More severe crimes led to whipping and placing the guilty in wooden frames that had holes for heads and hands, called the pillory.

You think that we still combine church and state too much? Heresy (holding a belief that conflicts with church teachings) was a major crime that could lead to the most severe sentence-banishment (being forced to leave the colony). A banished individual caught returning to the settlement could be put to death. Another major crime was blasphemy (showing a lack of respect toward God). Blasphemers could be sentenced to a whipping, to the pillory, have a hole made in their tongue with a red-hot iron, or stand for a period of time on the gallows (a wooden structure built for hangings) with a rope around their neck. Other laws punished colonists for not properly observing the Sabbath (Sunday, observed as a day of rest and worship by most Christians) and skipping religious services. Some colonial laws even banned traveling on Sundays. Various forms of these Sunday laws existed in all colonies
Do you think we have gone overboard at times with the blame game? Do you like to use words like “witch hunt” when talking about hunting for communists in years past or terrorists today? During the early colonial period settlers believed in the supernatural, or unexplained occurrences. The world was full of omens, signs, and marks representing the invisible world. As a result, witchcraft was considered one of the most serious crimes. It was believed that people who practiced witchcraft and had made pacts with the devil.

The penalty for an unconfessed witch? Death.

Think today’s criminal court procedure is unfair or too complicated? Perhaps you would prefer that which governed the simpler time of the Salem Witch Trials:

1. The afflicted person makes a complaint to the Magistrate about a suspected witch. The complaint is sometimes made through a third person.

2. The Magistrate issues a warrant for the arrest of the accused person.

3. The accused person is taken into custody and examined by two or more Magistrates. If, after listening to testimony, the Magistrate believes that the accused person is probably guilty, the accused is sent to jail for possible reexamination and to await trial.

4. The case is presented to the Grand Jury. Depositions relating to the guilt or innocence of the accused are entered into evidence.

5. If the accused is indicted by the Grand Jury, he or she is tried before the Court of Oyer and Terminer. A jury, instructed by the Court, decides the defendant’s guilt.

6. The convicted defendant receives his or her sentence from the Court. In each case at Salem, the convicted defendant was sentenced to be hanged on a specified date.

7. The Sheriff and his deputies carry out the sentence of death on the specified date.

Well, maybe it wasn’t always so simple. They did have alternative methods for finding out “the truth” that were even less complex. These included dunking people under water or piling rocks on their chest until they confessed…or died.

So, things could be worse. Today, just be grateful that we have infused more fairness and humanity into our criminal justice system.

Tomorrow we can complain about how scary it all still is.

Happy Thanksgiving!

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, LLP. A former prosecutor in New York, he has worked as a Boston defense attorney over 18 years. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.

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