Louisiana is attempting to reverse a century long scheme of a quiet incarceration empire. The State leads the world in incarceration on a per capita basis. There is a bipartisan effort to reduce the prison population as both sides recognize it’s not beneficial to the people of Louisiana. Undoing a century long empire is no easy task nor does it happen overnight. Louisiana needs to recognize its unique legal tradition to find the answers to their own issues.
Louisiana’s French and Spanish roots are the reason for its unique legal tradition. Lawyer Edward Livingston was a big part of Louisiana standing out from the common law states in the United States of America. Edward Livingston is not as famous to American history as his brother Robert Livingston, but Edward was a legal genius of his time.
Edward Livingston was neither French nor Spanish, but he adopted the legal customs when he moved to New Orleans after the Louisiana Purchase. In a way to start a new life and to pay the federal government his debt, the former Untied States Attorney for New York started a law practice in New Orleans. Livingston was perhaps a Jeffersonian Republican, but not a fan of Thomas Jefferson himself. He supported Aaron Burr over Jefferson in the election of 1800 and challenged the Jefferson administration in a batture rights case in New Orleans.
What made Edward Livingston a hero to the people of New Orleans though was when he helped secured amnesty for French pirate Jean Lafitte. As was discussed previously, Jean Lafitte’s tactics revived the economy of New Orleans crippled by Jefferson’s policies. Livingston was crucial in securing a meeting between his friend Andrew Jackson and Jean Lafitte. Livingston knew Lafitte can ensure an American victory against Great Britain.
Livingston’s legacy in New Orleans would not stop there. He joined the Louisiana House of Representatives in 1821 to bring reforms to the young State of Louisiana. Livingston introduced a revolutionary criminal law code and procedure to the Legislature. It consisted of five sections: crime & punishments, procedure, evidence in criminal cases, reform & prison discipline, and a book of definitions. Livingston lost his original copy to a fire, but immediately went back to work to write it again. The State of Louisiana never adopted his Code, but his solution to our criminal justice issues today can finally give Livingston the respect he deserves.
The most famous reform of the Livingston Code is the abolishment of capital punishment. Livingston thought capital punishment did not serve as the deterrent many believed it did. It also called for inmates to be in separate cells and to give them the option to work for a reduced sentence. It also allowed the punishment of employers through reducing wages instead of imprisonment. The Livingston Code was made for its time so some of it is no longer applicable (like punishing adultery). But the spirit of the Livingston Code was a progressive movement into a legal criminal code based on what Livingston called it “science.”
The more interesting aspects of his criminal code is the transparency aspects that are widely adopted today in some capacity. Jerome Hall of Indiana University (1936) writes about Livingston’s Code:
“His proposals regarding the preliminary magisterial hearing have but recently been adopted, and in certain important matters he is still leading the way. To avoid tricking the accused, the magistrate’s examination was to be limited to specific questions; the answers were to be recorded, corrected, signed by the accused, and transmitted with the record, to the trial court.”
Edward Livingston believed in justice. He wanted fairness on both sides for the accused and the accuser. He understood the spirit of the English common law and injected it into Louisiana’s Napoleonic law. Louisiana’s legal culture is creole in itself having roots in French, Spanish, and American law. Livingston’s sympathetic attitude toward creoles has earned him honor and respect in Louisiana history. A better way to honor his legacy would be to look to his wisdom on our criminal justice issues today.