Paul H. Robinson
Volume 77, Issue 5, 1393-1406
How would some of the bad actors of the past—such as Betty Davis’s stalker, Alexander Ross—be dealt with today? How would some of the well-known characters of recent times—John Hinckley, or Tina Turner’s manager and husband, Ike—have been dealt with in earlier times? Would some colorful characters of the past—such as the Marquis de Sade—be dealt with as criminals today? This brief Essay examines a pair of matched cases—one old, one recent—on a wide range of criminal law subjects to compare how differently the cases were dealt with, and to draw from those comparisons some broader insights about the criminal law’s trajectory.
In these times of political clashes, it is easy to think of criminal law as being pushed left and right depending upon the political party in power. But in a broader historical perspective, today’s skirmishes are often minor and temporary. Several foundational trends have extended over centuries and seem likely to continue: an increase in the nuance with which criminal law judges an offender’s blameworthiness, an increased willingness in a changing world to intrude in public and private activities previously thought beyond the proper reach of criminal law, and a continuing devotion to tracking societal norms as they change. The Essay concludes with a few thoughts about what these long-standing trends mean for the future.