ISSN 1062-7421
Vol. 12 No. 3 (March 2002) pp. 127-131.


CRIME, JUSTICE, AND DISCRETION IN ENGLAND: 1740-1820 by Peter King. New York: Oxford University Press, 2000. 383 pp. Cloth $95.00. ISBN: 0-19-822910-0.

Reviewed by Malcolm M. Feeley, Jurisprdence and Social Policy Program, Boalt Hall School of Law, University of California at Berkeley.

With CRIME, JUSTICE, AND DISCRETION IN ENGLAND: 1740-1820, Peter King, Professor of History University College Northampton, has produced a stunning account of discretionary justice in the criminal process. Despite its focus on eighteenth and early nineteenth centuries, it is readily accessible to those familiar with studies of contemporary criminal courts. Also, despite the revolution in structure and procedure in Anglo-American criminal procedure in eighteenth and early nineteenth centuries, many of the problems and issues that loomed large then also loom large now. Historical studies must, of course, be judged on their own terms and in their own context. But given that the vast majority of readers of this review are likely to be social scientists whose research focus on practices in contemporary institutions, I want to underscore the value of this work to their own work and will orient my review accordingly. This may be a bit unfair, but since
the author has published important pieces (some of which are incorporated into this book) in journals with such titles as "Continuity and Change" and "Past and Present," my emphasis on continuities between past and present should be taken as an indication of the many strengths and broad appeal of this book. It focuses on generic and enduring issues. Students of contemporary criminal justice institutions would do well to read this book as a way of helping to place their own work in broader context and deeper historical perspective.

The study is a wonderful blend of quantitative and qualitative analysis. Throughout the book, King provides a careful analysis of patterns and trends from court records and other archival sources, and then brings them to life with insights and illustrations from a host of contemporary sources, newspapers, diaries, and records of court proceedings, and the like. Scholars of contemporary courts, with ready access to more records and participant observation, should marvel at the degree of detail of description and analysis he is able to extract from these records. Like another brilliant historian, Emmanuel LeRoy Ladurie, in his marvelous book MONTAILLOU (1976), King at his best provides exciting historical ethnography. Indeed at times his access and insight should be downright embarrassing to those of us who have benefit of direct access through participant observation in our own work.

There is a library of first-rate studies of the criminal process in eighteenth century England. This book is among the very best of them. I rank it along side John Beattie's (1986) magisterial award winning study, CRIME AND THE COURTS IN ENGLAND: 1660-1800, as one of the two best. Indeed, the two books nicely complement one another. Beattie's study is impressive for its care in presenting the vast scope of the criminal process over a one hundred and forty year period. In contrast, by focusing on Essex (though he constantly

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checks his findings here against data from throughout England so that he can generalize) King provides greater depth, detail, and context.

King divides his study into three parts: "the pretrial process," "offenses and offenders," and "from trial to punishment." Part One examines options available to victims-lump it, engage in informal negotiations with the suspect, and to bring a prosecution; describes resources available to victim/prosecutors in an era of private prosecution (then even more than now, victims had little incentives to undergo the rigors of prosecution); and provides accounts of the informal practices of magistrates who pressed parties to settle matters informally, disposed of cases summarily, and only occasionally sent them on for indictment by a grand jury and trial. There are important differences between courts then and now-private prosecution has ended, defense attorneys are now routinely available, rules of evidence and
criminal procedure have been refined, types of offenses have changes; an appeals process has been established; forms of punishment have changed--but still social scientists familiar with the practices of the criminal courts in contemporary Anglo-American societies will readily recognize underlying dynamics. Then as now, most of the work of criminal justice takes place in locations with high-discretion and low visibility in the pretrial stage. King's account of the accused finding themselves "propelled on an often bewildering journey along a route which can best be compared to a corridor of connected rooms," each of which had various exits, and some of which had "illegal tunnels through which the accused might sometimes by smuggled to safety" (p. 1), can profitably be read as a companion piece to the Vera
Institute's study, FELONY ARRESTS (1977) which also provides a detailed account of the myriad of reasons and the bewildering number of ways felony arrests were disposed of in New York City's courts in the 1970s.

Part Two, "offenses and offenders," examines patterns of crime and the characteristics of the accused: the distribution of types of offenses, rates of change over time, an examination of social and political conditions that might account for variation over time, the geographical distribution of crime, the effect of war and peace on arrest rates, the effect of short-lived moral panics, and the like. A separate chapter examines property offenses in some depth, examining the age structure of the accused and tying changes to shifts in mobility and conceptions of young adulthood, and family poverty. Here and later in the book, King also pays considerable attention to gender and ordinary crime, an issue that is ignored in most historical studies of crime. Women, he finds, did not constitute only a slight trace of all those
charged with criminal offenses, so that they can be safely ignored. Nor did charges against them involve only a handful of distinctively female offenses that might merit entirely separate treatment. Rather, they constituted a substantial enough proportion of those charged with ordinary offenses to warrant systematic comparison to men with respect to numbers of offenders, types of charges, and forms of disposition and punishments. With a few notable exceptions, most books on the criminal process in the eighteenth and nineteenth centuries either ignore women altogether, examine women primarily as victims of crime, or focus on "female" offenses such as infanticide and prostitution (the most notable exception is Zedner 1991; see also Feeley and Little 1994). In contrast, King's book, along with Beattie's mentioned
above, is important because it provides a sustained

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analysis of women's involvement in ordinary (usually property) offenses. He provides an interesting analysis of differences in the age structures of male and female property offenders, and maintains this concern throughout the book. In later sections, he contrasts the fates of women and men as they wend their ways through the labyrinth of the criminal justice system, at trial, at sentencing, and at imposition of punishment.

Part Three, "From Trial to Punishment," examines the final stages of the trial process, trials and verdicts, sentencing and pardoning, and the rituals of punishment. The eighteenth century saw great changes in the criminal process: an immense expansion of criminalization as traditional minor violations were redefined as capital offenses; development of rules of evidence and criminal procedure; and the expanded use of lawyers in the criminal process. These issues are well-covered territory in other histories of the eighteenth century courts, yet King makes important contributions here as well. Much of the analysis of these developments has focused on
celebrated cases involving notable defendants, or has dismissed these developments as ineffective. In contrast, King's careful examination shows how these changes in structure and rules affected the handling of "ordinary" cases in all sorts of ways. Increased criminalization led to an expansion of jury nullification, as juries resisted the change and brought in verdicts of not guilty or verdicts of partial guilt (on lesser, non-capital offenses). But they also led to the steady formalization of the trial process. Throughout the eighteenth century, trials continued to be brief, perfunctory affairs most lasting only a few minutes, and the vast majority of criminal
defendants did not have counsel to advise them let alone appear in court for them. Yet, the emergence of a more formal trial process did have an important impact. King notes, that "In contrast to the early seventeenth century when courtroom confessions and plea bargaining played an important role in the trial process, very few offenders plead guilty to property crime indictments by the second half of the eighteenth century" (p. 231). This and related developments that reduced the role of the judge, enhanced the role and sharpened the adversarial stances of lawyers who increasingly came to represent both prosecutors and defendants eventually led to even more significant changes. By the mid-nineteenth century, a period beyond the scope of King's study, a bifurcated process for handling felony cases in crown court began to take shape: lengthy and careful trials for decreasing numbers of defendants, and perfunctory guilty pleas, often to reduced charges, for the rest. Thus increased adversarial practices and "lawyerization," not the press of heavy caseloads and the like, are the sources of modern plea bargaining (Feeley and Lester 1994). King's fine work contributes to the groundwork for accounting for this development in terms of structural features of the criminal process itself. More generally, he does a fine job of detailing how the criminal trial in ORDINARY cases was affected by developments in rules of evidence and procedure, lawyerization, and increasingly harsh sentences. This is a significant contribution, since many other historical studies deal with these changes only in a general and sweeping way, examine changes in doctrine and not practice, focus on selected notable cases, or regard them as ideological symbols without practical effects on the process itself. Thus in this section of the book, King's work makes a valuable contribution to the history of the development of adversary process.

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The brutally harsh criminal law was mitigated through discretionary practices in any number of ways. As noted in my comments on Part Two above, King shows how would-be prosecutors often refused to prosecute if the accused's life was in jeopardy, how magistrates fostered settlements, and how juries routinely nullified the law by bringing findings of not guilty and convicting on lesser, non-capital offenses. In Part Three, he shows how the harshness of the law was mitigated still further by widespread reliance on pardons. In an era that makes contemporary three-strikes laws seem lenient, the pardon provided considerable flexibility in sentencing. At times it served as a crude form of appeal in a system that lacked one. However, much more frequently pardons provide flexibility in a sentencing scheme that formally lacked much leeway. King exhaustively examines hundreds of petitions for pardons submitted to the crown by judges who presided over the trials leading to conviction. Although he does not draw the comparison, these petitions are readily familiar to anyone who had read modern-day pre-sentence investigation reports. They provide details about prior criminal involvement, information about character, employment, family relations, and additional facts about the offense in a way that soften the brutality of the law. Once the pardon was well-institutionalized, officials of the crown routinely granted these petitions, most probably without careful
consideration or even a reading. In sum, with obvious and notable exceptions-no one claims the process was systematic or foolproof, and all admit it was chaotic and often capricious-bad guys felt the full force of the law's harshness, and more sympathetic offenders-youthfulness, nature of offense, mitigating factors, and the like-received less harsh, often substantially so, treatment. Considerable flexibility in sentencing was achieved long before the invention of the prison and the advent of variable-term sentences.

In a short concluding chapter, King attempts to set the practices and developments he has reported in broader context. He alludes to contentious debates over the interpretation of the functions of the criminal law in fostering the hegemony of the embattled eighteenth century elite that have taken place over the past twenty-five years. However, wisely he avoids any effort to make grand pronouncements in this debate. Perhaps recognizing that this debate has long run its course or that he has presented a magnificent detailed study of the operations of the criminal courts, he appears content to let his study stand on its own. Still, in his concluding chapter, he does highlight his study's overarching thesis, that discretion permeated the criminal process at every stage-from the decision to arrest to the steps of
the gallows-and that this discretion operated in complex ways that did much to soften the brutality of the criminal law, and that it paved the way for still later developments in the criminal process.

This book is a stunning achievement. One hopes that it will soon appear in paperback and be made available in the United States at a reasonable price.

REFERENCES:

Beattie, John. 1986. CRIME AND THECOURTS IN ENGLAND: 1660-1800. Princeton: Princeton University Press.

Feeley, Malcolm and Deborah Little. 1991. "The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912," LAW & SOCIETY REVIEW 25: 719.

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Feeley, Malcolm and Charles Lester. 1994. "Legal Complexity and the Transformation of the Criminal Process," in Andre Gouron, Laurent Mayali, Antonio Padoa Schioppa, und Dieter Simon, ed., SUBJEKTIVIERUNG DES JUSTIZIELLEN BEWEISVERFAHRENS. Frankfurt: Vittorio Klostermann. LeRoy Laduire, Emmanuel. 1977. MONTAILLOU. New York: Pantheon.

Vera Institute of Justice. 1977. FELONY ARRESTS. New York: Longman.

Zedner, Lucia. 1991. WOMEN, CRIME AND CUSTODY IN VICTORIAN ENGLAND. Oxford: Oxford University Press.

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Copyright 2002 by the author, Malcolm M. Feeley.