Vanderbilt Law Review

First Page



Classical penology was conceived in France in the eighteenth century, and then eclipsed all over the world in the nineteenth, when Lombroso conjured up the picture of the born criminal. It was finally laid to rest in the United States in the twentieth century. Its basic tenet had been simple enough: the legislature in its infinite wisdom would seek and find the appropriate punishment for every crime.This can be accomplished if a crime is defined narrowly enough, perhaps by the creation of subcategories of that crime, so as to encompass all potential perpetrators who will each incur the same amount of criminal guilt. All perpetrators in the same subcategory are then entitled to the exact same amount of punishment in expiation of their criminal guilt. This system, so it was thought, ideally adjusts the punishment to achieve a balance between the crime and its harm and the criminal and his guilt, without going into undue subtleties of minute variations in the guilt of perpetrators in the same sub-category. Consequently the codes of the eighteenth and nineteenth centuries could satisfy themselves with defining and categorizing crimes in terms of the harm created and the specific mens rea inquestion.