Original Crime: New Article Defining Felony in the Early American Republic

December 8th, 2009

I have blogged a bit about what I have termed “Original Crime.” What were federal crimes in the early days of our Republic. As I phrased it here:

When did congress starting criminalizing acts that were wholly in intrastate (think McCullough, not Wickard)  that had nothing to do with any discernible federal interest? If a state line was crossed, or used an instrumentality of commerce (roads, rivers, etc), or it dealt with something arising from the Federal Government, I’m not interested.

Interesting new article on SSRN, titled Defining Felony in the Early American Republic (H/T Sentencing Blog) may shed some light.

At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year). The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes. The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.

How felony is defined – creating more or fewer felonies – gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.

While this article mostly focuses on state criminal law, I am curious if it touches on the development of federal criminal law in our Young Republic.