CRIME AND PUNISHMENT IN AN HISTORICAL SETTING - MAIN PAPER (FROM CRIME, LAW AND THE COMMUNITY, 1976 - SEE NCJ-51708)

• NCJ Number: 51709
• Author(s): B BEINART
• Date Published: 1976
• Length: 35 pages
• Corporate Author: Juta and Co, Ltd
• Publication Format: Document
• Publication Type: Historical Overview
• Language: English
• Country: South Africa

Annotation

TYPES OF TRIALS AND ASSOCIATED SENTENCING ARE TRACED FROM ROMAN TO GERMANIC TIMES; 18TH AND 19TH CENTURY DUTCH AND ENGLISH PATTERNS ARE CONSIDERED, WITH ATTENTION TO IMPLICATIONS FOR SOUTH AFRICA.

Abstract

IT IS NOTED THAT IN THE EARLY AND MIDDLE PERIODS OF THE ROMAN EMPIRE, BOTH CIVIL AND CRIMINAL OFFENSES WERE BROUGHT TO TRIAL BY PRIVATE CITIZENS WITH THE INTENT OF EXACTING RESTITUTION AND INFLICTING VENGEFUL PUNISHMENT UPON OFFENDERS DEEMED GUILTY BY ROMAN COURTS. EFFORTS WERE MADE TO HAVE THE PUNISHMENT MATCH THE CRIME TO SATISFY THE VICTIM'S URGE FOR VENGEANCE, AND RESTITUTION AIMED AT COMPENSATING FOR THE VICTIM'S LOSS. DETERRENCE WAS ALSO A CONCERN IN SENTENCING. IN THE LATTER PERIOD OF THE ROMAN EMPIRE, THE INITIATION OF TRIALS BY PRIVATE CITIZENS, PARTICULARLY IN THE AREAS OF CRIMINAL AND POLITICAL OFFENSES, WAS REPLACED BY STATE-INITIATED TRIALS THAT ASSUMED THE PATTERN OF AN INQUISITION, WHERE A PROFESSIONAL JUDICIARY QUESTIONED WITNESSES AND THE ACCUSED, RENDERED JUDGEMENT, AND DETERMINED SENTENCES. UNDER THIS SCHEME, SENTENCES BECAME MORE HARSH WITH LESS THOROUGH EVIDENCE-GATHERING. THE INQUISITION PATTERN CONTINUED ON THE CONTINENT AFTER THE DISSOLUTION OF THE EMPIRE; PUNISHMENTS INCREASED IN HARSHNESS, WHILE THE VICTIM WAS LARGELY IGNORED. IN FRANCE DURING THE PERIOD OF THE REVOLUTION IN THE 18TH CENTURY, THE ACCUSATORIAL AND THE JURY SYSTEM WERE INTRODUCED IN IMITATION OF THE ENGLISH SYSTEM. THE DUTCH USED A COMBINATION OF THE INQUISITION AND ACCUSATORIAL TRIAL, DEPENDING ON THE OFFENSE. IT IS NOTED THAT SENTENCES WERE MOST HARSH AND BRUTAL UNDER THE INQUISITION TRIAL FORMAT. INFLUENCES LEADING TO LESS HARSH AND MORE REHABILITATIVE SENTENCES ARE DISCUSSED, AND THE ATTENTION TO VICTIM COMPENSATION CHARACTERISTIC OF TRIALS INITIATED BY PRIVATE CITIZENS IN CRIMINAL CASES IS NOTED TO BE GAINING INCREASING SUPPORT. THE SOUTH AFRICAN TRIAL SYSTEM IS BRIEFLY DESCRIBED, AND RECENT EFFORTS TO INTRODUCE PROCEDURES THAT CHARACTERIZE THE INQUISITION APPROACH TO TRIALS ARE CONDEMNED. (RCB)