Crime and Punishment in American History.

by Lawrence M. Friedman.

PREFACE.

THE BOOK THAT FOLLOWS IS A GENERAL HISTORY OF AMERICAN CRIMINAL JUSTICE, from its beginnings in the seventeenth century to the present time. This is a vast subject, one that, frankly, has to be approached with a certain amount of fear and trembling. There is more to know about crime and punishment in this society than any human being can possibly know. The research on the subject, up to now, has been both thick and thin: so thick in some parts of the subject that no one can cope with it, certainly not I; in others so thin and wan that the intrepid storyteller is reduced to guesswork, weaving great swatches of narrative from little rags of data. Moreover, there is no way to tell it all, no way to make the story complete. The author is forced to make choices, to throw the spotlight on some parts of the subject while others are left in the shadows. In this day and age, this is bound to leave some readers frustrated or disappointed.

For many of the people who read this book, in a library or in the comfort of their homes, the world of crime and punishment may be something of a foreign country, one with strange customs, language, and manners; they stumble about like tourists clutching a phrase book. It is hard for the comfortable, the respectable, the solid middle cla.s.s to imagine themselves in the shoes of the people on either side of the equation-those accused of crime, on the one hand; and the police, judges, wardens, and prosecutors, who do the accusing and the judging and the punishing, on the other.

I cannot pretend to be much better off myself, at least as far as the present present is concerned. When I write about the past, I can make an honest attempt to bridge the chasm between what happened, and the reader's own experience; I can try to bring to life the dead and buried dramas that I find, pinned like dead b.u.t.terflies, in the texts of old records. The beginnings of this story took place more than three centuries ago. The end of it-if it has an end-is only yesterday. This last is the delicate, dangerous part. As we get closer to our own times, the material swells obscenely in bulk. And the bodies are not all dead and buried. There are human witnesses, people who have been through it, or are going through it, people who experience the system in a way I can only guess at. is concerned. When I write about the past, I can make an honest attempt to bridge the chasm between what happened, and the reader's own experience; I can try to bring to life the dead and buried dramas that I find, pinned like dead b.u.t.terflies, in the texts of old records. The beginnings of this story took place more than three centuries ago. The end of it-if it has an end-is only yesterday. This last is the delicate, dangerous part. As we get closer to our own times, the material swells obscenely in bulk. And the bodies are not all dead and buried. There are human witnesses, people who have been through it, or are going through it, people who experience the system in a way I can only guess at.

I have no real idea, no authentic gut feeling, about life in blasted, weed-choked vacant lots between crack houses, or in dark streets desecrated with graffiti; or what it is like to be behind the wheel of a patrol car, slowly penetrating "hostile territory," eyes groping to interpret shapes in an unfriendly darkness; or what it is like to sit on death row, or spend the night in a county jail, in a misery of moaning and vomit; or, for that matter, what it is like to be on trial as an inside trader or embezzler, or as a dumper of toxic wastes. Nor do I know the feelings that go through the mind of a public defender staggering under a stack of files, or a criminal lawyer picking a jury, or a judge in police court, or a juror trapped in a four-month murder case. Some of these experiences I can only guess at-and hope I guess right. Other parts of the story I am forced to omit, or leave for somebody else to do.

At times, working on this book, I found myself somewhat discouraged. The subject is fascinating-but also baffling and immense; fragmented into a thousand pieces; unwieldy, stubborn; hidden in dark places and inaccessible comers. It was easy to feel out of my depth.

But the sheer importance of crime and punishment, and their lurid attraction, won out at the end. Crime, in our decade, is a major .political issue. Of course, people have always been concerned about crime. But there is reason to believe people are more upset about crime today than ever before-more worried, more fearful. They are most afraid of sudden violence or theft by strangers; they feel the cities are jungles; they are afraid to walk the streets at night. Millions of parents are afraid their children will turn into junkies. Millions see some sort of rot, some sort of decay infecting society, and crime is the pus oozing out from the wound.

These are not completely idle notions. Serious crime has has skyrocketed in the second half of the twentieth century. We seem to be in the midst of a horrendous crime storm-a hurricane of crime. The homicide rate in American cities is simply appalling. It takes months or even years for Helsinki or Tokyo to equal the skyrocketed in the second half of the twentieth century. We seem to be in the midst of a horrendous crime storm-a hurricane of crime. The homicide rate in American cities is simply appalling. It takes months or even years for Helsinki or Tokyo to equal the daily daily harvest of rape, pillage, looting, and death in New York City. Why is this happening to us? harvest of rape, pillage, looting, and death in New York City. Why is this happening to us?

A history of criminal justice can, I think, help illuminate this question. It can tell us where we were, and why; and more or less where we are going. At least it can try. History does not give us answers; answers; but it does sometimes dispel myths, and it can be like a flashlight shining in dark and deserted comers. Hence I felt the story needs to be told. but it does sometimes dispel myths, and it can be like a flashlight shining in dark and deserted comers. Hence I felt the story needs to be told.

No author works completely alone. I have to take responsibility for shortcomings, but I also need to thank at least some of the people who helped me. There are, first of all, the scholars who made my job easier because of their own work in the field. There are too many to name, but I want to express admiration and grat.i.tude for the historical work of Edward L. Ayers, Michael Hindus, Roger Lane, Erik Monkkonen, Mary Odem, and Samuel Walker, among others. I also want to acknowledge the help of John Bogart, Sarah Friedman, Joanna Grossman, Chris Guthrie, David Himelfarb, Leslye Obiora, Thomas Russell, Reid Schar, and Paul Tabor. Lynne Henderson made detailed comments on an earlier draft, which were enormously helpful. I also benefited from comments by Barbara A. Babc.o.c.k and Robert Weisberg. Joy St. John, as usual, helped me greatly with the ma.n.u.script at various points; and I owe a debt, too, to the staff of the Stanford Law Library for their patience and cooperation in running down the odd sources I demanded from time to time.

Stanford, California February 1993

INTRODUCTION.

ABOUT THREE AND A HALF CENTURIES AGO, THERE WAS A STIR IN THE COLONY of New Haven, Connecticut. A sow had given birth to a "monstrous" piglet. In the minds of the colonists, this was no accident. Surely the misbirth was some sort of omen. Specifically, it had to be a sign of sin, a sign of a revolting, deadly crime: carnal intercourse with the mother pig.

Who could have done this horrendous act? The finger of suspicion pointed to Thomas Hogg (unfortunate name). Hogg insisted he was innocent. Was he telling the truth? The magistrates put him to the test: they took him to a pigsty, and forced him to scratch at two sows in the enclosure. One sow, the mother of the monster-piglet, reacted with a show of "l.u.s.t" when Hogg touched her. The other sow made no reaction at all. Hogg's guilt was now crystal clear.1 Another scene: it is New York City, spring 1989. A group of young males in their teens, mostly black, sweep through the darkness of Central Park, in a mood of wild exuberance. First they chase a man on a bicycle. When he gives them the slip, they find and attack a young woman who, somewhat recklessly, has been jogging in the park. The woman fights back, but she is all alone; there are many of them, and they are much too strong for her. They rape her, beat her savagely, and leave her bleeding body in the bushes. The woman, who is white and works for a brokerage house, comes within an inch of death, yet somehow survives. The police find and arrest the young men who attacked her, and they go on trial in a blaze of publicity.

Still another image: it is a few years before the Central Park beating. Two wheeler-dealers issue stock to themselves in corporations that had, in fact, no a.s.sets at all. They sell this stock, unregistered, to suckers among the general public. They brag and boast about the company to brokers and investors; business is flourishing, the future is exceedingly bright. Everything they say is a lie. They sell more than two million shares and put millions of dollars in their pockets, before they run afoul of the Securities and Exchange Commission.2 And yet another vignette: in September 1900, George W. Howard married Helen Hawkes, age seventeen, daughter of a "rich Democratic politician of Brooklyn." The couple had first met at a dance. George was a civil engineer who hailed from Boston. After the marriage, George began to behave in a peculiar way. He kept returning to Boston on this or that excuse; so often, in fact, that Helen's brother became suspicious and hired a private detective to find out what was what. The truth was devastating. George was leading a double life. He had another wife in Boston-Anna Kay, the daughter of an Episcopalian clergyman-and a nine-year-old son to boot. George was put under arrest and charged with bigamy. In court, the prosecution piled on the evidence: twenty-eight witnesses and numerous exhibits, including a "piece of the wedding cake" from the Boston marriage. George was convicted of the crime.3

These four somewhat exotic or notorious or outrageous examples of criminal behavior are by no means unique. They were drawn from the past and (near) present. In every period of our national experience, thousands upon thousands of other crimes have been committed; countless numbers of crimes. A fair number have been lurid, gripping, unusual, emblematic. Most of them have not. Most have been ordinary crimes, dull crimes, crimes of deadly familiarity: shoplifting, wife-beatings, a.s.saults, barroom brawls, drug offenses, forged checks, drunk driving, vagrancy, petty theft.

There are recurrent patterns. Among serious crimes, the overwhelming majority can be cla.s.sified as one or more of the many forms of stealing -larceny, theft, burglary, embezzlement, and on and on. For much of our history, drunkenness was the single most frequently punished crime-the plankton of the criminal sea. Thousands of arrests and court appearances came out of the fighting and biting that drunkenness produces. In the colonial period, in some colonies, fornication, adultery, idleness, and lewd behavior filled the courtroom with sinners. However we measure and count, the historical record yields a rich, and somewhat depressing, harvest of crime.

This book is about the American experience of crime; more accurately, it is about the social reaction social reaction to crime. It is an attempt to sketch out the history of the criminal justice system in the United States, from its colonial beginnings right up to the present day. In this introduction, I put forward a few basic concepts and introduce some themes, which we will follow as they zig and zag through the centuries. to crime. It is an attempt to sketch out the history of the criminal justice system in the United States, from its colonial beginnings right up to the present day. In this introduction, I put forward a few basic concepts and introduce some themes, which we will follow as they zig and zag through the centuries.

We begin, however, with a few attempts at definition. We have talked about crime crime and about and about criminal justice criminal justice. But what do we mean by these terms? '

CRIME.

There is no real answer to the question, What is crime? There are popular ideas about crime: crime is bad behavior, antisocial behavior, blameworthy acts, and the like. But in a very basic sense, crime is a legal legal concept: what makes some conduct criminal, and other conduct not, is the fact that some, but not others, are "against the law." concept: what makes some conduct criminal, and other conduct not, is the fact that some, but not others, are "against the law."4 Crimes, then, are forbidden acts. But they are forbidden in a special way. We are not supposed to break contracts, drive carelessly, slander people, or infringe copyrights; but these are not (usually) criminal acts. The distinction between a civil civil and a and a criminal criminal case is fundamental in our legal system. A civil case has a life cycle entirely different from that of a criminal case. If I slander somebody, I might be dragged into court, and I might have to open my checkbook and pay damages; but I cannot be put in prison or executed, and if I lose the case, I do not get a criminal "record." Also, in a slander case (or a negligence case, or a copyright-infringement case), the injured party pays for, runs, and manages the case herself. He or she makes the decisions and hires the lawyers. The case is entirely voluntary. n.o.body forces anybody to sue. I can have a good claim, a valid claim, and simply forget it, if I want. case is fundamental in our legal system. A civil case has a life cycle entirely different from that of a criminal case. If I slander somebody, I might be dragged into court, and I might have to open my checkbook and pay damages; but I cannot be put in prison or executed, and if I lose the case, I do not get a criminal "record." Also, in a slander case (or a negligence case, or a copyright-infringement case), the injured party pays for, runs, and manages the case herself. He or she makes the decisions and hires the lawyers. The case is entirely voluntary. n.o.body forces anybody to sue. I can have a good claim, a valid claim, and simply forget it, if I want.

In a criminal case, in theory at least, society is the victim, along with the "real" victim-the person robbed or a.s.saulted or cheated. The crime may be punished without the victim's approval (though, practically speaking, the complaining witness often has a crucial role to play). In "victimless crimes" (gambling, drug dealing, certain s.e.x offenses), there is n.o.body to complain; both parties are equally guilty (or innocent). Here the machine most definitely has a mind of its own. In criminal cases, moreover, the state pays the bills.a All sorts of nasty acts and evil deeds are not against the law, and thus not crimes. These include most of the daily events that anger or irritate us, even those we might consider totally outrageous. Ordinary lying is not a crime; cheating on a wife or husband is not a crime in most states (at one time it was, almost everywhere); charging a huge markup at a restaurant or store is not, in general, a crime; psychological abuse is (mostly) not a crime.

Before some act can be isolated and labeled as a crime, there must be a special, solemn, social and political political decision. In our society, Congress, a state legislature, or a city government has to pa.s.s a law or enact an ordinance adding the behavior to the list of crimes. Then this behavior, like a bottle of poison, carries the proper label and can be turned over to the heavy artillery of law for possible enforcement. decision. In our society, Congress, a state legislature, or a city government has to pa.s.s a law or enact an ordinance adding the behavior to the list of crimes. Then this behavior, like a bottle of poison, carries the proper label and can be turned over to the heavy artillery of law for possible enforcement.

We repeat: crime is a legal legal concept. This point, however, can lead to a misunderstanding. The law, in a sense, "creates" the crimes it punishes; but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning. Justice is supposed to be blind, which is to say impartial. This may or may not be so, but justice is blind in one fundamental sense: justice is an abstraction. It cannot see or act on its own. It cannot generate its own norms, principles, and rules. Everything depends on society. Behind every concept. This point, however, can lead to a misunderstanding. The law, in a sense, "creates" the crimes it punishes; but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning. Justice is supposed to be blind, which is to say impartial. This may or may not be so, but justice is blind in one fundamental sense: justice is an abstraction. It cannot see or act on its own. It cannot generate its own norms, principles, and rules. Everything depends on society. Behind every legal legal judgment of criminality is a more powerful, more basic judgment of criminality is a more powerful, more basic social social judgment, a judgment that this behavior, whatever it is, deserves to be outlawed and punished. We will return to this point. judgment, a judgment that this behavior, whatever it is, deserves to be outlawed and punished. We will return to this point.

CRIMINAL JUSTICE.

This is, if anything, an even vaguer term. It is not easy to describe or define this system. In fact, there is no single meaning; the criminal justice system is an umbrella label for certain people, roles, and inst.i.tutions in society. What these have in common is this: they all deal in some significant way with crime-they define crime; or they detect crime; or they prosecute or defend people accused of crime; or they punish crime.

Of course, as we said, in a very real sense it is society society that makes the decisions about what is and is not crime. "Society" is another abstraction ; what we mean is that these are collective decisions. Not everybody is part of the collective that makes the decision. When we say "society" we really mean those who call the tunes and pay the piper; it would be worse than naive to imagine that everybody's opinion counts the same, even in a country that is supposed to be democratic. To take one obvious example: the criminal law of slavery in the nineteenth-century South was a product of "society," but the slaves themselves had almost no say in the matter. This must be clearly understood. The rich and powerful, the articulate, the well positioned, have many more "votes" on matters of definition than the poor, the weak, the silent. that makes the decisions about what is and is not crime. "Society" is another abstraction ; what we mean is that these are collective decisions. Not everybody is part of the collective that makes the decision. When we say "society" we really mean those who call the tunes and pay the piper; it would be worse than naive to imagine that everybody's opinion counts the same, even in a country that is supposed to be democratic. To take one obvious example: the criminal law of slavery in the nineteenth-century South was a product of "society," but the slaves themselves had almost no say in the matter. This must be clearly understood. The rich and powerful, the articulate, the well positioned, have many more "votes" on matters of definition than the poor, the weak, the silent.

In any event, after "society," as it were, makes social judgments, the criminal justice system goes to work. It refines and transforms the list, interprets it according to its own lights, and does whatever is to be done about catching and punishing lawbreakers. Starting with a definition of, say, "armed robbery," the police and others do the dirty work. Enforcement, of course, is always always selective; for all sorts of reasons, the system does not, cannot, and will not enforce the norms in any total way. Un-enforcement is as vital a part of the story as enforcement. selective; for all sorts of reasons, the system does not, cannot, and will not enforce the norms in any total way. Un-enforcement is as vital a part of the story as enforcement.

The people inside the system of criminal justice include, among others, the experts who draft the criminal codes and tinker with the language, and the legislatures that make the codes into laws. But usually we think of a different cast of characters when we think of criminal justice. We think of police, detectives, narcotics agents, judges, juries grand and small, prosecutors and defenders, prison guards and wardens, probation officers, parole board members, and others of this stamp. These people are familiar to us from daily life (everybody has some contact with police), or from the ma.s.s media, or from popular (or unpopular) culture. People seem to have an insatiable appet.i.te for reading about crime. They devour books and magazines about true crime; and even more so the imaginary crimes in Sherlock Holmes or Agatha Christie or Raymond Chandler. And where would movies be, or television, without crime and punishment?

Many in the cast of characters just mentioned are professionals, or semiprofessionals, whose lives revolve around matters of crime. Lay people, too, have a role-as jurors, for example. This is also, of course, the story of a much larger cohort of lay men and women: people accused of breaking the law; and their manifold victims. Their story is not, in the main, pleasant or uplifting; the lives caught up in the web are so often ruined, blasted, and wasted lives; through these pages parade example after example of foolishness, vice, self-destruction; selfishness, evil, and greed. It is a story with few, if any, heroes; and few, if any, happy endings. But it is important to the country; and it exerts a weird fascination.

Main Themes As I have said, the story of American criminal justice is long and extremely complicated. The amount of detail is discouraging; the fifty states, and the three-plus centuries of time, add more complexity. But there is one grand, general approach; approach; and a number of main themes run throughout the book. They do not tie everything together in a few neat packages-that would be a delusion-but they are crucial to the telling of the tale. and a number of main themes run throughout the book. They do not tie everything together in a few neat packages-that would be a delusion-but they are crucial to the telling of the tale.

As to the approach: this is a social social history of crime and punishment. The overarching thesis is that judgments about crime, and what to do about it, come out of a specific time and place. This seems so obvious it hardly needs stating. But the consequences are extremely important. This is not a history of "criminal law" as lawyers would conceive of it; it is not an intellectual history of penology or criminology; it is not about the philosophy of good and evil. It is about a working system and what makes it tick. And it is told from an outside perspective-from a perspective tinged with the viewpoint of the social sciences. history of crime and punishment. The overarching thesis is that judgments about crime, and what to do about it, come out of a specific time and place. This seems so obvious it hardly needs stating. But the consequences are extremely important. This is not a history of "criminal law" as lawyers would conceive of it; it is not an intellectual history of penology or criminology; it is not about the philosophy of good and evil. It is about a working system and what makes it tick. And it is told from an outside perspective-from a perspective tinged with the viewpoint of the social sciences.

This means that I a.s.sume, at every step of the way, that the shape of the system, and what it does, is not accidental or random or "historical" -and is definitely not shaped by some intellectual or philosophical tradition. Rather, what makes the system is social structure structure (the way society is organized) and social (the way society is organized) and social norms norms (people's ideas, customs, habits, and att.i.tudes). These interact chemically with the context, and with what is happening in the world-with specific events and situations; for example, the sheer size of the country, its climate and geography, its natural resources; plagues, depressions, and wars; and with human-made factors of change, like the invention of the telephone or the automobile. (people's ideas, customs, habits, and att.i.tudes). These interact chemically with the context, and with what is happening in the world-with specific events and situations; for example, the sheer size of the country, its climate and geography, its natural resources; plagues, depressions, and wars; and with human-made factors of change, like the invention of the telephone or the automobile.

If crime itself is a social social concept, then the reaction to it is social squared. concept, then the reaction to it is social squared. Is Is crime entirely a social construct? Are there acts that are crime entirely a social construct? Are there acts that are inherently inherently crimes? The older writers made a distinction between acts that were, as Blackstone put it, crimes? The older writers made a distinction between acts that were, as Blackstone put it, mala in se mala in se, that is, evils in themselves, "crimes against the laws of nature, as murder and the like," and mala mala prohibita, prohibita, that is, mere offenses "against the laws of society." that is, mere offenses "against the laws of society."5 These are sonorous Latin phrases, but hardly anybody takes the distinction seriously anymore. Certainly it is a fact that people consider some crimes more deep-dyed and horrible than others; cold-blooded murder is at one end of a pole of blameworthiness, and trivial regulatory crimes-taking the label off a mattress-are at the other. These are sonorous Latin phrases, but hardly anybody takes the distinction seriously anymore. Certainly it is a fact that people consider some crimes more deep-dyed and horrible than others; cold-blooded murder is at one end of a pole of blameworthiness, and trivial regulatory crimes-taking the label off a mattress-are at the other.

But blameworthiness itself varies tremendously from society to society, and period to period. It is true that most (perhaps all?) societies have rules about murder and theft. It is hard to imagine a society-certainly no modem society-that would let people roam about killing each other to their heart's content, with no rules, limits, or controls. Even the n.a.z.is had a concept of murder: anyone who killed a member of the party or an SS officer soon found this out.

On the other hand, no two societies have exactly the same definition of murder. Most modem societies outlaw blood feuds; other societies have allowed, or even fostered, revenge killing. Abortion, in the Republic of Ireland, is a crime, a killing; this used to be true in most American states. At this writing (1993), in the United States early abortion is not a crime at all but a woman's right, her free and open choice, by virtue of Roe v. Wade. Roe v. Wade.

Crime definitions, then, are specific to specific societies. Social change is constantly at work on the criminal justice system, criminalizing, decriminalizing, recriminalizing. Heretics were burned at the stake in medieval Europe; there is no such crime today. Colonial Ma.s.sachusetts put witches to death. In antebellum Virginia and Mississippi, two slave states, black runaways, and any whites who helped them, committed crimes. Selling liquor was a crime in the 1920s, during Prohibition. It was a crime during the Second World War to sell meat above the fixed, official price; or to rent an apartment at excessive rent. These are now extinct or obsolete crimes.

Every state, and the federal government, has a penal code: a list of crimes to be punished. In every state, too, and in the federal government, criminal provisions are scattered elsewhere among the statute books. This is particularly true of regulatory crimes. The modem criminal code, even after pruning, is still much bulkier than older codes. There were no such crimes as price-fixing, monopoly, insider trading, or false advertising in the Middle Ages. Many new crimes-wiretapping, for example-are specific to high-tech society. We live in a welfare and regulatory state. Such a state produces thousands of newfangled offenses : dumping toxic wastes, securities fraud, killing endangered species, making false Medicare claims, inserting a virus into computer programs, and so on.

Clearly, there are crimes and crimes. It is conventional to draw a line between property crimes, crimes against the person, morals offenses, offenses against public order, and regulatory crimes. Social reactions depend on the type of crime. Typologies are not very systematic; but they can be illuminating. For example, there are what we might call predatory predatory crimes-committed for money and gain; usually, the victims are strangers. These are the robberies and muggings that plague the cities and inspire so much dread. There are also lesser and greater crimes of crimes-committed for money and gain; usually, the victims are strangers. These are the robberies and muggings that plague the cities and inspire so much dread. There are also lesser and greater crimes of gain gain: shoplifting, minor embezzlements, confidence games, cheats, frauds, stock manipulations in infinite form. There are also what we might call corollary corollary crimes, crimes that support or abet other crime-conspiracies, aiding and abetting, harboring criminals; also perjury, jail break, and the like. Much rarer are crimes, crimes that support or abet other crime-conspiracies, aiding and abetting, harboring criminals; also perjury, jail break, and the like. Much rarer are political political crimes-treason, most notably ; also, sedition, and, in a larger sense, all illegal acts motivated by hatred of the system, and which strike out against the const.i.tuted order. Then there are crimes of crimes-treason, most notably ; also, sedition, and, in a larger sense, all illegal acts motivated by hatred of the system, and which strike out against the const.i.tuted order. Then there are crimes of desperation desperation-men or women who steal bread to keep from starving, addicts who steal or turn a trick to support their habit. Some crimes are thrill thrill crimes-joyriding, shoplifting at times, acts of vandalism, and the like; some of these, too, can be little bursts of petty treason. There are crimes of crimes-joyriding, shoplifting at times, acts of vandalism, and the like; some of these, too, can be little bursts of petty treason. There are crimes of pa.s.sion pa.s.sion-violence generated by thwarted love, jealousy, hatred that rises to the level of obsession. There are also crimes of addiction-crimes that arise from failure of control; failure of control; crimes that stem from what some of us might consider flaws of character, or overwhelming temptation; this can be as minor as public drunkenness, or as horrific as rape. Lastly, there are what we might call crimes that stem from what some of us might consider flaws of character, or overwhelming temptation; this can be as minor as public drunkenness, or as horrific as rape. Lastly, there are what we might call subcultural subcultural crimes-acts that are defined as crimes by the big culture, yet validated in some smaller social grouping: Mormon polygamy in the nineteenth century, for example. crimes-acts that are defined as crimes by the big culture, yet validated in some smaller social grouping: Mormon polygamy in the nineteenth century, for example.

All crimes are acts that society, or at least some dominant elements in society, sees as threats. The threat may be physical (street crime) and affect the quality of life. Rape and s.e.xual a.s.sault terrorize women and reinforce a rigid gender code. Morals crimes attack the way of life of "decent" people. Certain white-collar crimes-ant.i.trust violations, securities fraud-strike a blow at the economy, regulatory crimes pollute the atmosphere, or the market. Traffic codes ration s.p.a.ce on city streets and highways, and attempt to avoid strangulation; traffic crimes upset this public order. And so it goes. The sense of threat, and ideas about what to do about dangers, change prismatically from period to period, and are different in different social groupings.

THE FUNCTIONS OF CRIMINAL JUSTICE.

Crime, as we have seen, is a slippery, variable, protean concept; and criminal justice is equally variable-mutable, time-dependent, culture-dependent. Criminal justice is a particular kind kind of reaction to crime; and it is worthwhile to say a word or two about its functions (or a.s.sumed functions) in society: What is it that this huge, unwieldy system is supposed to do for us? of reaction to crime; and it is worthwhile to say a word or two about its functions (or a.s.sumed functions) in society: What is it that this huge, unwieldy system is supposed to do for us?

The answer seems obvious: fight crime. Every society probably has some way to control and limit intolerable behavior. Even blood feuds and vengeance have to follow the rules, in societies that recognize vengeance and feuds. A community in which "anything goes" would tear itself apart in no time; it would make the Beirut of the 1980s look like a Sunday school picnic.

But criminal justice has no monopoly on the business of restraining evil inclinations. It isn't fear of jail that keeps most of us from robbing, pillaging, raping, murdering, and thieving. Powerful restraints, levers, and controls run the machinery of our selves; governors inside our brains and bodies, reinforced by messages from families, inst.i.tutions, schools, churches, and communities. Even without police, courts, and jails, they work for most of us, most of the time. b b Strong informal controls keep most people in line. Strong informal controls keep most people in line.

But not everybody. Very, very few social norms are so deeply rooted in the mind that they enforce themselves universally. In our own society, it is hard to think of a good example. If there is a crime on the books, we can be sure there are also violators; many, in fact. This is so, no matter how repulsive the crime-murder, rape, incest, and so on-and no matter how fierce the potential punishment. The taboo against cannibalism may be an exception. The idea of eating human flesh disgusts people; there are so few violators of this norm that cannibalism is not even specifically specifically listed as a crime in the penal codes. When a case does crop up, we tend to a.s.sume that the person must be thoroughly unhinged. The rare exceptions are people driven half-mad with hunger-the Donner party, for example, in the nineteenth century. Yet some societies (it is said) allow members to eat human flesh. The taboo is cultural, not instinctual. listed as a crime in the penal codes. When a case does crop up, we tend to a.s.sume that the person must be thoroughly unhinged. The rare exceptions are people driven half-mad with hunger-the Donner party, for example, in the nineteenth century. Yet some societies (it is said) allow members to eat human flesh. The taboo is cultural, not instinctual.7 No other norms, alas, seem quite so self-enforcing. Many need help from criminal justice. The help comes in the form of sanctions-rewards and punishments. The punishments are especially obvious. The burglar goes to prison. Embezzlers pay heavy fines. In a few extreme cases, people die in the electric chair or the gas chamber.

Punishments are a common, obvious element in our lives; we take punishment for granted. Parents punish children by yelling, scolding, spanking, taking away candy or toys, "grounding," revoking privileges. Teachers punish students; bosses punish workers. Punishment is unpleasant ; it makes misbehavior costly. Punishment raises the price, so to speak, of the behavior that gets punished. In the case of a fine, it does this quite literally. But the risk of going to jail is also part of the "price" of a burglary. The system, by raising and lowering these "prices," influences the amount amount of this behavior-at least in theory. of this behavior-at least in theory.

This pricing or rationing function is one of the most obvious ways in which the criminal justice system works in society. It centralizes and socializes the punishment function; it supplements private punishment (ostracism, hitting, scolding). It acts as a subst.i.tute for private violence-for blood feuds and vengeance, for a dog-eat-dog society. In general, we do not let people "take the law into their own hands," although this idea still has romantic appeal. How well the system works, how effective it is, is another question.

There is another, more subtle, function of criminal justice: symbolic, ideological, hortatory. Perhaps it is only a more sophisticated way of accomplishing the first function. When we punish children, we sometimes say we are "teaching them a lesson." The lesson is about what will happen if they don't mend their ways. Criminal justice "teaches a lesson" to the people it punishes; and also to the public at large. It is also a kind of banner or flag that announces the values and norms of society. By making burglary a crime, by chasing and arresting burglars, by putting them in prison, the system sends a message about burglary: burglary is wrong, is evil, is deserving of pain, incarceration, disgrace.

Thus criminal justice tells us where the moral boundaries are; where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually, through a.s.serting and enforcing them. (There are lessons from nonenforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.) The teaching function of criminal justice, its boundary-marking function, is exceedingly important.8 Criminal justice is a kind of social drama, a living theater; all of us are the audience; we learn morals and morality, right from wrong, wrong from right, through watching, hearing, and absorbing. The sections of the penal code, written in crabbed legal language, harbor an unwritten subdoc.u.ment, a subdoc.u.ment of community morality. The penal code, after all, can be read as a kind of Sears Roebuck catalogue of norms; it lists things considered reprehensible, and tells us, by the degree of punishment, roughly-very roughly- Criminal justice is a kind of social drama, a living theater; all of us are the audience; we learn morals and morality, right from wrong, wrong from right, through watching, hearing, and absorbing. The sections of the penal code, written in crabbed legal language, harbor an unwritten subdoc.u.ment, a subdoc.u.ment of community morality. The penal code, after all, can be read as a kind of Sears Roebuck catalogue of norms; it lists things considered reprehensible, and tells us, by the degree of punishment, roughly-very roughly-how reprehensible they are. Groups that dominate society display their power most brutally and nakedly in the police patrols, riot squads, and prisons; but power expresses itself also in the penal codes and in the process of labeling some values and behaviors as deviant, abnormal, dangerous-criminal, in other words. reprehensible they are. Groups that dominate society display their power most brutally and nakedly in the police patrols, riot squads, and prisons; but power expresses itself also in the penal codes and in the process of labeling some values and behaviors as deviant, abnormal, dangerous-criminal, in other words.

In short: criminal justice is not just an enumeration of forbidden acts, and what their punishments might be-a price list for disfavored behavior. It is also a guide book to right and wrong conduct, an ethical inventory. If the penal code announces that the punishment for burglary is five years in prison, that is not merely a statement about the (expected) price price of burglary. It also p.r.o.nounces the judgment of society (or some part of society) on burglary: and the punishment, when we compare it to other punishments for other crimes, tells us roughly of burglary. It also p.r.o.nounces the judgment of society (or some part of society) on burglary: and the punishment, when we compare it to other punishments for other crimes, tells us roughly how how evil burglary is-again, as compared to other criminal acts. evil burglary is-again, as compared to other criminal acts.

This, then, is a second major theme: the history of criminal justice is not only the history of the forms of rewards and punishment; it is also a story about the dominant morality morality, and hence a history of power. Take burglary again: the rules against it are also rules of power. The system throws its arms of protection around people who own property; it strips away protection from people who try to seize that property "unlawfully." And the rules give tickets of authority to police officers, judges, wardens, and others, to carry out their jobs, to enforce these rules; in some cases, they are given the power of life or death itself.

There are some myths and ideals about criminal justice that most people accept without thinking. When men or women are put on trial, we a.s.sume the point is to find out whether the defendants are guilty, plain and simple. If they are innocent, they must go free. But the dramatic side, the teaching side, is not so concerned with guilt and innocence. Acts of injustice may send very powerful messages, too. If a white woman accused a black man of insolence or a.s.sault, in, say, Mississippi in 1900, his guilt or innocence almost did not matter. He had to be punished. The southern system of power and domination demanded that this message be sent. This, too, was American criminal justice doing its work.

CRIME, CRIMINAL JUSTICE, AND CULTURE.

Crime is behavior; and its roots must lie somewhere in the personality, character, and culture of the people who do the acts we condemn. People People commit crimes, not "the system." This much is obvious. It seems equally obvious that behavior reflects what society commit crimes, not "the system." This much is obvious. It seems equally obvious that behavior reflects what society makes makes out of people, or fails to make. Committing a crime means that some message was aborted or ignored, some lesson unlearned, some order countermanded, or, at times, some small piece of social rebellion committed. But messages of deviance and misbehavior came from somewhere, too; they were not inborn. And much the same sort of thing can be said about out of people, or fails to make. Committing a crime means that some message was aborted or ignored, some lesson unlearned, some order countermanded, or, at times, some small piece of social rebellion committed. But messages of deviance and misbehavior came from somewhere, too; they were not inborn. And much the same sort of thing can be said about reactions reactions to crime; they, too, occur in individuals, though socially structured and shaped. to crime; they, too, occur in individuals, though socially structured and shaped.

Hence the story of crime and punishment over the years is a story of social changes, character changes, personality changes; changes in culture ; changes in the structure of society; and ultimately, changes in the economic, technological, and social orders. These changes are what this book is about. In Puritan Ma.s.sachusetts, an unmarried man and woman, caught having s.e.x in the barn, could be fined, or put in the stocks, or whipped. A few adulterers even swung from the gallows. In the 1990s, in most states, the couple having s.e.x in the barn is not committing a crime at all, whether married or not. In many cities, a person who is curious can buy a ticket to a theater and watch people make love live, or on film. It is hard to imagine what Cotton Mather, or Thomas Jefferson, would have made of such goings-on.

This book is the story of how such amazing changes in norms took place; and what was in the background, and, if possible, why. This brings us to the third of our main themes: the relationship between crime, criminal justice, and American culture. Very roughly, we will describe three periods, three cultures, three ages of criminal justice: the colonial period, the nineteenth century, and our own times. These periods do not separate from each other neatly; and are of course impossible to sum up, even for our limited purposes, in a single formula. But it will help in organizing our thoughts, and in understanding the past, if we look at three states of culture, which correspond to three forms of freedom.

Freedom, as I use the word, is not a term of philosophy or political theory. It is a word that describes two things, one subjective, the other (relatively) objective. n.o.body is free if she feels unfree. But objectively, freedom freedom describes a specific social situation. It is a situation of rights; it is, moreover, a situation of loose ties, of light command, of strained authority ; an attenuation of what is, after all, the more common human condition, historically speaking: tight societies, trying to control the thoughts and actions of their subjects. describes a specific social situation. It is a situation of rights; it is, moreover, a situation of loose ties, of light command, of strained authority ; an attenuation of what is, after all, the more common human condition, historically speaking: tight societies, trying to control the thoughts and actions of their subjects.

Feeling and reality do not necessarily live in harmony. But they have an obvious relationship. American history is, in a way, a history of more and more freedom. I say this not to celebrate this country, only to describe it. n.o.body could honestly call the colonial systems "democratic." They were little theocracies. They were free in certain senses, but they were also rigidly bound up in notions of hierarchy; leaders of the community believed deeply in a G.o.d-given, natural order or chain of command. A powerful, self-conscious religious ethos prescribed people's places in that order.

Revolution broke the ties to England, and gave the country political freedom. But the Revolution itself-the actual war-was in many ways not as important as the social revolution that began before the shooting and continued after the guns fell silent. By this I refer to the erosion of what was left of colonial autocracy. This happened not because Americans spent their time reading political philosophy, but because this was a big, open, mobile, expansive place, with land to b.u.m, where the knots and constraints of the Old World-or of the Puritan divines-crumbled into dust. In the nineteenth century, society was reconst.i.tuted in terms of a culture of mobility. mobility.

Mobility has a social and a spatial meaning. This was a country of immigrants, a country of rolling stones; it was also a country in which it was possible to rise in society-and also to fall. The facts and the image of mobility drastically reshaped criminal justice. It made certain crimes possible-the confidence game, for one-and it made its influence felt in every comer of the system. The police and the penitentiary, for exam-pie, were new social inventions; they arose out of a painful awareness that the pathologies of a mobile society demanded new techniques of control. The chapters of part II will ill.u.s.trate this thesis in detail.

The nineteenth century had broken open old cages of cla.s.s, s.p.a.ce, and place. But a good deal of traditional morality survived. The culture insisted (officially, at least) on self-discipline, control, moderation. Freedom did not mean shaping your own way of life. Mobility was economic and political; it was not a freedom to contrive a lifestyle; the body and mind still proceeded within narrow but invisible ruts.

It is important to recognize this limitation on that liberty that the nineteenth century so loved to boast about. And another limitation: in 1800, millions of Americans (including all the women) were voteless; most black Americans were slaves, without rights or a voice in the system. In 1900, women still lacked the vote, and the criminal justice system was insensitive to women's issues, their views on rape, and domestic violence. Blacks were virtual serfs in much of the South. Lynch mobs enforced a brutal code of white supremacy, killing with almost total impunity. Big city police forces were corrupt and brutal. Fornication, adultery, and sodomy were crimes almost everywhere; the way of the social deviant was hard.

Slowly, gradually, the twentieth century broke with the past. It became the century of the self self, the century of expressive individualism. The old century thought it knew a thing or two about political and economic freedom. The new century redefined the terms, and added freedom to shape one's own life, expressive freedom, freedom of personality, freedom to spend a lifetime caressing and nurturing a unique, individual self. At least this was the ideal, the great concept that motivated millions of people. It was certainly not the social reality; but it was a powerful impetus to action.

This new concept of the self lies behind the women's movement, the civil rights movement, the s.e.xual revolution. It has worked its will, once more, on crime and punishment. Old rules and arrangements fell like tenpins. The culture of individualism, paradoxically, worked a revolution in the law of groups, races, and cla.s.ses. People were to be judged for themselves. Women and men had the same rights to be judge or jury. Native tribes had the right to run their own courts, defying majority culture. All this is probably for the good. There is a dark side to the era of the self. A great deal of twentieth-century crime can be explained, if at all, in terms of the exaltation of the self, a twentieth-century pathology. The explosion in violent crime must mean that our society is unable to teach enough people to submerge themselves in a higher morality. The family loses some of its grip; the peer group, the gang, the crowd takes over. Authority becomes horizontal, not vertical. The criminal justice system beats its feeble wings against this wall of gla.s.s. Part III is the story of this set of cultural changes, and their impact on criminal justice, from just yesterday to almost today.

Why all these changes took place is an interesting question; I hope this book gives at least some partial answers. The story told here-I I want to make this point very clear-is not a story of "progress." Whether we are better off or worse off than before is for the reader to decide. I myself think we are considerably better off; but at a rather stiff price.

Beaumont and De Tocqueville, writing about juvenile reformatories (see chapter 7), used a striking phrase; the children in these inst.i.tutions were not victims of persecution, they said; they were merely deprived of a "fatal liberty."9 Fatal Fatal is a strong word; probably too strong. But the phrase breathes a kind of cautious reminder: even freedom has its costs. This is not the best of all possible worlds; and not all changes are improvements. The shadow of crime haunts "respectable" society. Social pathology lays waste millions of urban lives. There is no free lunch. American liberty comes at a premium price. Total societies, traditional societies, disciplined societies, sometimes keep crime under firm control. After the Soviet Empire collapsed, we are told, street crime increased, along with general disorder. A well-run prison may have iron discipline and perfect order. Not many of us would prefer a well-run prison to the way we live. Yet this must be said (and it is the last of our major themes): a rich culture of liberty has evolved in the United States, but it casts a dark and dangerous shadow. The culture of mobility and the culture of the self are not costless. They have brought with them, like pests imported on exotic cargo, side effects of crime and social disorganization ; and society, so far, has been unable to eradicate these pests, or bring them under control. is a strong word; probably too strong. But the phrase breathes a kind of cautious reminder: even freedom has its costs. This is not the best of all possible worlds; and not all changes are improvements. The shadow of crime haunts "respectable" society. Social pathology lays waste millions of urban lives. There is no free lunch. American liberty comes at a premium price. Total societies, traditional societies, disciplined societies, sometimes keep crime under firm control. After the Soviet Empire collapsed, we are told, street crime increased, along with general disorder. A well-run prison may have iron discipline and perfect order. Not many of us would prefer a well-run prison to the way we live. Yet this must be said (and it is the last of our major themes): a rich culture of liberty has evolved in the United States, but it casts a dark and dangerous shadow. The culture of mobility and the culture of the self are not costless. They have brought with them, like pests imported on exotic cargo, side effects of crime and social disorganization ; and society, so far, has been unable to eradicate these pests, or bring them under control.

These, then, are the main themes of the book. Before we turn to the colonial period, I want to mention two points briefly. The first is about the impact impact of criminal justice on crime. Supposedly, the main function of the system is to control crime and punish it. Does it do this job? of criminal justice on crime. Supposedly, the main function of the system is to control crime and punish it. Does it do this job?

For most of the period we cover-close to four centuries-we simply have no idea. Clearly, there must be some some impact, some deterrent effect, some influence on morality and behavior. How much, is completely unknown. It is pretty certain that it is less than most people think; the constant clamor for more prisons, more executions, more police, a.s.sumes a potency that is almost surely a delusion. impact, some deterrent effect, some influence on morality and behavior. How much, is completely unknown. It is pretty certain that it is less than most people think; the constant clamor for more prisons, more executions, more police, a.s.sumes a potency that is almost surely a delusion.

On the other hand, this much can and must be said: the system may not do much, or as much as we would expect, about crime rates, but it is not unimportant. It impacts the lives of millions of people. It arrests and processes hundreds of thousands. It drags victims, bystanders, jurors, and witnesses by the thousands into its web; it spends billions and employs millions; its symbolic consequences, its remoter effect, must be enormous, even though there is no known or knowable yardstick.

The second point is about the politics of this book. I have tried to tell an honest story. It would be silly to claim total success. Bias is inevitable. History is not an exact science, with clear questions and right or wrong answers. Everybody who writes about the past is more or less a prisoner of the present, and of his own instincts and values. Crime and punishment are highly charged, emotional, political subjects; there is no way to wring prejudice, att.i.tude, value, out of the text. It is impossible to shape a story without some guiding theories; and we do not choose our theories and approaches at random; they draw us to them, they suck us in.

There are many ways to look at the causes of crime, for example. Some people blame crime on poverty, on social disorganization, on injustice in society; others reject these theories. There are economic theories, psychological theories, psychoa.n.a.lytical theories, cultural theories, genetic theories, and so on. We can label some of them right-wing or left-wing or middle-wing or multiwing. None of the theories can be proven (or disproven). Probably no one big, sweeping theory is ever going to work. n.o.body is likely to discover the the cause of "crime"; people are much too complicated for that. cause of "crime"; people are much too complicated for that.

All theories of crime are ultimately political. Most of them a.s.sume that crime is bad, that criminals are bad, and that crime is a disease in society. But most people would concede that all "crime" is not necessarily evil. Joan of Arc was burned at the stake; now she is a saint. George Washington, a national hero, was, of course, a traitor to the British; they might have hanged him had he lost the war. It was a crime in n.a.z.i Germany to disobey Hitler, or to interfere with his extermination plans; dissidents and rebels were put to death. But these "criminals" seem like heroes to us. Some critics on the far left feel much the same way about rebels in this this society. It is even a political statement to approve of sending burglars to jail. Most readers, of course, will be willing to make this kind of political statement. But very few of us approve of the society. It is even a political statement to approve of sending burglars to jail. Most readers, of course, will be willing to make this kind of political statement. But very few of us approve of the entire entire system. After all, there have been and still are powerful movements to take things system. After all, there have been and still are powerful movements to take things off off the list of crimes-fornication, for one. One person's free speech is another's sedition. The ebb and flow of opinion on crime and punishment is an essential part of this history. the list of crimes-fornication, for one. One person's free speech is another's sedition. The ebb and flow of opinion on crime and punishment is an essential part of this history.

The following two chapters look at the first of our three main periods : colonial America.

I.

TIGHT LITTLE ISLANDS: CRIMINAL JUSTICE IN THE COLONIAL PERIOD.

I.

THE SHAPE AND NATURE OF THE LAW.

AMERICAN LEGAL HISTORY BEGINS, CONVENTIONALLY, IN THE EARLY SEVENTEENTH century, when English-speaking settlers first got a toehold on soil that is now part of the United States. The legal history of the continent, of course, actually began much earlier. There were Spanish-speaking settlements in the sixteenth century, in what is now Florida and Puerto Rico. And there were Dutch settlers in New York, in the seventeenth century.

And then, of course, the European settlers did not come to an empty land. They thought of themselves as "discoverers"; from their point of view, they had arrived in the unknown, and carved settlements out of "wilderness." But there were native societies in America, old, established societies-the peoples that Europeans called "Indians." Each Indian society had its own law-ways, its own norms, its own way of punishing deviants.

The native peoples did not, to be sure, have systems of writing. None of them has left behind a written record of their legal system as it was on the eve of European arrivals. But these systems were nonetheless real: vigorous, active, alive. We know something about the way they operated from the accounts of the settlers.1 We know something about them, too, from oral histories taken in later years. Indeed, some of these systems (in modified form) survive to this day. We know something about them, too, from oral histories taken in later years. Indeed, some of these systems (in modified form) survive to this day.

The settlers of the seventeenth century came at first in dribs and drabs, then in greater numbers; eventually, they overwhelmed the natives and their law. The "clash of legal cultures," as Kawashima has noted, was a one-way street: English settlers "had no intention of learning from the Indians"; rather, natives had to adjust to the white man's law.2 Ultimately, the English buried their European rivals, too-the Dutch lost New Amsterdam; and the Spanish (much later) gave up Florida. Essentially, the story of English law in America is a winner's story: this is the law that prevailed, in modified form, along the Atlantic coast, and then, modified again, across the continent. Ultimately, the English buried their European rivals, too-the Dutch lost New Amsterdam; and the Spanish (much later) gave up Florida. Essentially, the story of English law in America is a winner's story: this is the law that prevailed, in modified form, along the Atlantic coast, and then, modified again, across the continent.

Criminal Justice: The Common-Law Background What kind of beast was the law that the English settlers brought with them? It was the so-called "common law." Legal systems, of course, are tied to particular societies. They develop in their societies over time; they do not come from outer s.p.a.ce. Legal systems change, but change is mostly piecemeal, gradual; certain structures, frameworks, skeletons persist over time. It is possible to compare these shapes and patterns, cla.s.sify them, and divide legal systems into "families," or types.