61 Lawrence M. Friedman and Robert V. Percival, Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 California, 1870-1910 (1981), pp. 144-45. (1981), pp. 144-45.

62 City Charter of the City of Oakland, Cal.; City Charter of the City of Oakland, Cal.; also also General Munic.i.p.al Ordinances General Munic.i.p.al Ordinances (1898), pp. 322, 352. (1898), pp. 322, 352.

63 Wines, Wines, Delinquent Cla.s.ses, Census of 1880 Delinquent Cla.s.ses, Census of 1880, p. 506.

64 San Diego Union San Diego Union, Sept. 18, 1891, p. 5.

65 Samuel Walker, Samuel Walker, A Critical History of Police Reform A Critical History of Police Reform (1977), p. 25. (1977), p. 25.

66 A similar tale could be told about gambling: crackdowns, arrests, sweeps; and in between, corruption and toleration. See David R. Johnson, A similar tale could be told about gambling: crackdowns, arrests, sweeps; and in between, corruption and toleration. See David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1880-1887 Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1880-1887 (1979), pp. 158-76. (1979), pp. 158-76.

67 Quoted in Ysabel Rennie, Quoted in Ysabel Rennie, The Search for Criminal Man: A Conceptual History of the Dangerous Offender The Search for Criminal Man: A Conceptual History of the Dangerous Offender (1978), p. 67. (1978), p. 67.

68 R. L. Dugdale, " R. L. Dugdale, "The Jukes": A Study in Crime, Pauperism, Disease, and Heredity (1877), p. 7. (1877), p. 7.

69 Rennie, Rennie, The Search for Criminal Man The Search for Criminal Man, p. 79.

70 Dugdale, Dugdale, "The Jukes "The Jukes," p. 13.

71 Ibid., p. 47. Ibid., p. 47.

72 Henry M. Boies, Henry M. Boies, Prisoners and Paupers Prisoners and Paupers (1893), p. 266. (1893), p. 266.

73 Ibid., pp. 267, 270. Ibid., pp. 267, 270.

74 Mark H. Haller, Mark H. Haller, Eugenics: Hereditarian Att.i.tudes in American Thought Eugenics: Hereditarian Att.i.tudes in American Thought (1963), pp. 48-49. (1963), pp. 48-49.

75 See, in general, Thomas Maeder, See, in general, Thomas Maeder, Crime and Madness: The Origins and Evolution of the Insanity Defense Crime and Madness: The Origins and Evolution of the Insanity Defense (1985). (1985).

76 4 Blackstone's Commentaries 24. 4 Blackstone's Commentaries 24.

77 Daniel M'Naghten's Case, 10 Cl. and Fin. 200, 210, 8 Eng. Rep. 718 (H.L., 1843). See R. Moran, Daniel M'Naghten's Case, 10 Cl. and Fin. 200, 210, 8 Eng. Rep. 718 (H.L., 1843). See R. Moran, Knowing Right Knowing Right from from Wrong: The Insanity Defense of Daniel Wrong: The Insanity Defense of Daniel McNaughtan McNaughtan (1981). (There are about a dozen ways to spell the name of the defendant, and none of them is totally canonical. This leaves an author free to take his pick.) (1981). (There are about a dozen ways to spell the name of the defendant, and none of them is totally canonical. This leaves an author free to take his pick.) 78 The New York The New York Judicial Judicial Repository Repository (1818), pp. 14, 34. (1818), pp. 14, 34.

79 3 Laws N.Y. 1881, p. 5; Penal Code, t.i.tle 1, secs. 20, 21, 23. 3 Laws N.Y. 1881, p. 5; Penal Code, t.i.tle 1, secs. 20, 21, 23.

80 This skeptical account comes from the This skeptical account comes from the San San Diego Union, Diego Union, Feb. 7, 1896, p. 5. Feb. 7, 1896, p. 5.

81 Ronald White, "The Trial of Abner Baker, Jr., M.D.. Monomania and McNaughtan Rules in Antebellum America," Ronald White, "The Trial of Abner Baker, Jr., M.D.. Monomania and McNaughtan Rules in Antebellum America," Bulletin of the Bulletin of the American Academy of Psychiatry and the Law American Academy of Psychiatry and the Law, 18:223 (1990).

82 Joel P. Bishop, Joel P. Bishop, Commentaries on the Criminal Law Commentaries on the Criminal Law (Vol. 1, 2d ed., 1858), p. 335. (Vol. 1, 2d ed., 1858), p. 335.

83 State v. Felter, 25 Iowa 67 (1868). State v. Felter, 25 Iowa 67 (1868).

84 State v. Pike, 49 N.H. 399 (1869). State v. Pike, 49 N.H. 399 (1869).

85 State v. Pike, at 402; Maeder, op. cit., p. 46. State v. Pike, at 402; Maeder, op. cit., p. 46.

86 State v. Pike, at 435, 438. State v. Pike, at 435, 438.

87 The trial is recounted in Charles E. Rosenberg, The trial is recounted in Charles E. Rosenberg, The Trial of the a.s.sa.s.sin Guiteau The Trial of the a.s.sa.s.sin Guiteau (1968). (1968).

88 Ibid., pp. 237, 244-48. Ibid., pp. 237, 244-48.

89 For an account of the trial, see John D. Lawson, ed., For an account of the trial, see John D. Lawson, ed., American State Trials, American State Trials, Vol. 12 (1919), p. 494. On Sickles, see Nat Brandt, Vol. 12 (1919), p. 494. On Sickles, see Nat Brandt, The Congressman Who Got Away with Murder The Congressman Who Got Away with Murder (1991). (1991).

90 Kenneth Lamott, Kenneth Lamott, Who Killed Mr. Crittenden? Who Killed Mr. Crittenden? (1963), pp. 214-22. Laura Fair's trial became a feminist issue; she was a woman, victimized by a man and facing trial before an all-male jury in an all-male system. See Barbara A. Babc.o.c.k, "Clara Shortridge Foltz: 'First Woman,'" (1963), pp. 214-22. Laura Fair's trial became a feminist issue; she was a woman, victimized by a man and facing trial before an all-male jury in an all-male system. See Barbara A. Babc.o.c.k, "Clara Shortridge Foltz: 'First Woman,'" Arizona Law Review Arizona Law Review 30:673, 679, n. 25 (1988). 30:673, 679, n. 25 (1988).

91 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, pp. 239-44.

92 Joel P. Bishop, Joel P. Bishop, Commentaries on the Criminal Law Commentaries on the Criminal Law (2d ed., Boston, 1858), p. 341; see also the note, "Insanity Produced by Intemperance," in (2d ed., Boston, 1858), p. 341; see also the note, "Insanity Produced by Intemperance," in American Jurist and Law Magazine American Jurist and Law Magazine, Vol. 3, no. 5, pp. 5-19 (Jan. 1830).

93 People v. Hammill, 2 Park. Crim. Rep. 243 (N.Y., 1855). People v. Hammill, 2 Park. Crim. Rep. 243 (N.Y., 1855).

94 The New York penal code of 1881 codified this general doctrine. No act committed by a person "in a state of voluntary intoxication" was to be considered "less criminal" because of this condition. But if the "actual existence of any particular purpose, motive, or intent is a necessary element to const.i.tute a particular species or degree of crime," then the jury may take into consideration the "fact that the accused was intoxicated ... in determining the purpose, motive or intent with which he committed the act." (3 Laws N.Y. 1881, p. 5; Penal Code, t.i.tle 1, sec. 22.) The New York penal code of 1881 codified this general doctrine. No act committed by a person "in a state of voluntary intoxication" was to be considered "less criminal" because of this condition. But if the "actual existence of any particular purpose, motive, or intent is a necessary element to const.i.tute a particular species or degree of crime," then the jury may take into consideration the "fact that the accused was intoxicated ... in determining the purpose, motive or intent with which he committed the act." (3 Laws N.Y. 1881, p. 5; Penal Code, t.i.tle 1, sec. 22.) 95 Commonweath v. French, Commonweath v. French, Reports of Criminal Cases tried in the Munic.i.p.al Court of the City of Boston, before Peter Oxenbridge Thacher Reports of Criminal Cases tried in the Munic.i.p.al Court of the City of Boston, before Peter Oxenbridge Thacher (ed. Horatio Woodman; Boston, 1845), p. 163 (March Term, 1827). Thacher told the jury that the case was different from one in which an adult, "by a free indulgence of strong liquors," voluntarily deprives himself of his reason. It was, he said, certainly true that "but few crimes are committed by persons who are habitually temperate in the use of ardent spirits." (ed. Horatio Woodman; Boston, 1845), p. 163 (March Term, 1827). Thacher told the jury that the case was different from one in which an adult, "by a free indulgence of strong liquors," voluntarily deprives himself of his reason. It was, he said, certainly true that "but few crimes are committed by persons who are habitually temperate in the use of ardent spirits."

96 Ibid. Ibid.

CHAPTER 7. THE MECHANICS OF POWER II: PROFESSIONALIZATION AND REFORM IN THE LATE NINETEENTH CENTURY.

1 Frederick H. Wines, Frederick H. Wines, Report on the Defective, Dependent Report on the Defective, Dependent, and Delinquent Cla.s.ses of the Population of the United States, as Returned at the Tenth Census (June 1, 1880 and Delinquent Cla.s.ses of the Population of the United States, as Returned at the Tenth Census (June 1, 1880) (1888), p. 569.

2 Ibid., p. 566. Ibid., p. 566.

3 Samuel Walker, Samuel Walker, Popular Justice: A History of American Criminal Justice Popular Justice: A History of American Criminal Justice (1980), p. 61. (1980), p. 61.

4 Robert M. Fogelson, Robert M. Fogelson, Big-City Police Big-City Police (1977), pp. 14-15. (1977), pp. 14-15.

5 David R. Johnson, David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800-1887 Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800-1887 (1979), p. 94. (1979), p. 94.

6 Eric H. Monkkonen, Eric H. Monkkonen, Police in Urban America, 1860-1920 Police in Urban America, 1860-1920 (1981), pp. 164-68. (1981), pp. 164-68.

7 Evening News Evening News (Detroit), Feb. 12, 1880, p. 4. (Detroit), Feb. 12, 1880, p. 4.

8 Sidney L. Harring, Sidney L. Harring, Policing a Cla.s.s Society: The Experience of American Cities Policing a Cla.s.s Society: The Experience of American Cities, 1865-1915 1865-1915 (1983), p. 244. (1983), p. 244.

9 Lawrence M. Friedman and Robert V. Percival, Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 1870-1910 (1981), p.88. (1981), p.88.

10 Friedman and Percival, Friedman and Percival, Roots of Justice, Roots of Justice, p. 101. p. 101.

11 Address by Charles E. Felton, to the National Prison a.s.sociation, in Address by Charles E. Felton, to the National Prison a.s.sociation, in Proceedings of the Annual Congress, National Prison a.s.socation Proceedings of the Annual Congress, National Prison a.s.socation (1888), pp. 195, 198-99. (1888), pp. 195, 198-99.

12 Monkkonen, Monkkonen, Police in Urban America, Police in Urban America, pp. 86-128. pp. 86-128.

13 Wines, Wines, Delinquent Cla.s.ses, 1880 Census Delinquent Cla.s.ses, 1880 Census, p. 566.

14 Monkkonen, Monkkonen, Police in Urban America, Police in Urban America, p. 90. p. 90.

15 Samuel Walker, Samuel Walker, A Critical History of Police Reform A Critical History of Police Reform (1977), pp. 18-19. (1977), pp. 18-19.

16 Monkkonen, Monkkonen, Police in Urban America, Police in Urban America, pp. 31, 142. pp. 31, 142.

17 Walker, Walker, Police Reform Police Reform, p. 63.

18 The actual term was used, for example, in George W. Walling's The actual term was used, for example, in George W. Walling's Recollections of a New York Chief of Police Recollections of a New York Chief of Police (1887), p. 189. (1887), p. 189.

19 Z. Chafee, Jr., W. H. Pollak, and Carl S. Stem, Z. Chafee, Jr., W. H. Pollak, and Carl S. Stem, The Third Degree The Third Degree (1931; reprint ed., 1969), pp. 38-39. (1931; reprint ed., 1969), pp. 38-39.

20 Walling, Walling, Recollections Recollections, p. 194. George S. McWatters, who wrote about the "hidden life of American detectives" in New York in the 1870s, made a somewhat similar point about detectives: with their "crafts and hypocrisies" they were "constantly breaking in upon common law and ... statute law." But this illegality was absolutely essential in a "corrupt civilization." These tactics were the "silent, secret and effective Avenger of the outraged Majesty of the Law when everything else fails." Knots Untied: or Ways and By-ways in the Hidden Life of American Detectives Knots Untied: or Ways and By-ways in the Hidden Life of American Detectives (1873), p. 664. See chapter 9. (1873), p. 664. See chapter 9.

21 See Dennis C. Rousey, "Cops and Guns: Police Use of Deadly Force in Nineteenth-Century New Orleans," See Dennis C. Rousey, "Cops and Guns: Police Use of Deadly Force in Nineteenth-Century New Orleans," American Journal of Legal History American Journal of Legal History 28:41(1984). 28:41(1984).

22 John C. Schneider, John C. Schneider, Detroit and the Problem of Order Detroit and the Problem of Order, 1830-1880 1830-1880 (1980), p. 118. (1980), p. 118.

23 Report Report, Special Committee appointed to investigate the Police Department of the City of New York Special Committee appointed to investigate the Police Department of the City of New York (1895), pp. 15-17. (1895), pp. 15-17.

24 Ibid., pp. 21-33. Ibid., pp. 21-33.

25 Ibid., pp. 27-44. Ibid., pp. 27-44.

26 See Perry R. Duis, See Perry R. Duis, The Saloon: Public Drinking in Chicago and Boston The Saloon: Public Drinking in Chicago and Boston, 1880-1920 1880-1920 (1983), pp. 240-41. (1983), pp. 240-41.

27 Walker, Walker, Police Reform Police Reform, p. 24.

28 Blake McKelvey, Blake McKelvey, American Prisons: A Study in American Social History Prior to 1915 American Prisons: A Study in American Social History Prior to 1915 (1936), p. 34. (1936), p. 34.

29 See, for example, Paul W. Keve, See, for example, Paul W. Keve, The History of Corrections in Virginia The History of Corrections in Virginia (1986). (1986).

30 Michael S. Hindus, Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Ma.s.sachusetts and South Carolina Prison and Plantation: Crime, Justice, and Authority in Ma.s.sachusetts and South Carolina, 1767-1878 1767-1878 (1980), p. 169. In 1863, another facet of the Ma.s.sachusetts prison was consigned to oblivion: the admission of visitors on payment of a twenty-five-cent fee. (1980), p. 169. In 1863, another facet of the Ma.s.sachusetts prison was consigned to oblivion: the admission of visitors on payment of a twenty-five-cent fee.

31 McKelvey, McKelvey, American Prisons American Prisons, p. 32.

32 Hutchins Hapgood, Hutchins Hapgood, The Autobiography of a Thief The Autobiography of a Thief (1903), p. 141. (1903), p. 141.

33 Laws Ill. 1845, pp. 105-7; Laws Ill. 1871-72, p. 294; Andrew A. Bruce et al., Laws Ill. 1845, pp. 105-7; Laws Ill. 1871-72, p. 294; Andrew A. Bruce et al., The Workings of the Indeterminate-Sentence Law and the Parole System in Illinois The Workings of the Indeterminate-Sentence Law and the Parole System in Illinois (1928; reprint ed., 1968), p. 26. (1928; reprint ed., 1968), p. 26.

34 Sh.e.l.ley Bookspan, Sh.e.l.ley Bookspan, A Germ of Goodness: The California State Prison System A Germ of Goodness: The California State Prison System, 1851-1944 1851-1944 (1991), p. 2. (1991), p. 2.

35 Keve, Keve, The History of Corrections in Virginia The History of Corrections in Virginia, p. 90.

36 2d Ann. Rpt., Prison Comm. of Ga. (1899), p. 21. 2d Ann. Rpt., Prison Comm. of Ga. (1899), p. 21.

37 On the ages of prisoners: ibid., p. 22. The data on literacy are from the year before: 1st Annual Report, Prison Commission of Georgia, 1898, p. 31. In that year, of 2,228 prisoners, 1,290 were single; the rest were married. (Ibid., p. 30.) On the ages of prisoners: ibid., p. 22. The data on literacy are from the year before: 1st Annual Report, Prison Commission of Georgia, 1898, p. 31. In that year, of 2,228 prisoners, 1,290 were single; the rest were married. (Ibid., p. 30.) 38 Edward L. Ayers, Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (1984), p. 186. (1984), p. 186.

39 Keve, Keve, The History of Corrections in Virginia The History of Corrections in Virginia, p. 74.

40 Ayers, Ayers, Vengeance and Justice, Vengeance and Justice, pp. 178-79. pp. 178-79.

41 Ibid., p. 226. Ibid., p. 226.

42 So. Dak. Stats. 1899, Vol. 2, secs. 8964, 8966, 8970. So. Dak. Stats. 1899, Vol. 2, secs. 8964, 8966, 8970.

43 General Laws R.I. 1896, pp. 1049, 1050. General Laws R.I. 1896, pp. 1049, 1050.

44 Lawrence M. Friedman, Lawrence M. Friedman, A History of American Law A History of American Law (2d ed., 1985), pp. 600-601. (2d ed., 1985), pp. 600-601.

45 James Leiby, James Leiby, Charity and Correction in New Jersey Charity and Correction in New Jersey (1967), pp. 126-28. (1967), pp. 126-28.

46 Glen A. Gildemeister, Glen A. Gildemeister, Prison Labor and Convict Compet.i.tion with Free Workers in Industrializing America, 1840-1890 Prison Labor and Convict Compet.i.tion with Free Workers in Industrializing America, 1840-1890 (1987), pp. 115-16. (1987), pp. 115-16.

47 Laws Pa. 1883, chap. 110, sec. 2. Laws Pa. 1883, chap. 110, sec. 2.

48 See, in general, See, in general, Twentieth Annual Report of the Commissioner of Labor, Convict Labor Twentieth Annual Report of the Commissioner of Labor, Convict Labor (1905). (1905).

49 Gildemeister, Gildemeister, Prison Labor Prison Labor, pp. 168-75.

50 Zebulon Brockway, Zebulon Brockway, Fifty Years of Prison Service: An Autobiography Fifty Years of Prison Service: An Autobiography 11912; reprinted., 1969), p. 166. 11912; reprinted., 1969), p. 166.

51 Samuel Walker, Samuel Walker, Popular Justice, Popular Justice, pp. 94-95. pp. 94-95.

52 The law was pa.s.sed March 19, 1872. Laws Ill., 1871-72, p. 294. The law was pa.s.sed March 19, 1872. Laws Ill., 1871-72, p. 294.

53 E. C. Wines, "The Present Outlook of Prison Discipline in the United States," in Wines, ed., E. C. Wines, "The Present Outlook of Prison Discipline in the United States," in Wines, ed., Transactions of the National Congress on Penitentiary and Reformatory Discipline, Held at Cincinnati, Ohio, October 12-18, 1870 Transactions of the National Congress on Penitentiary and Reformatory Discipline, Held at Cincinnati, Ohio, October 12-18, 1870 (1871), pp. 15, 19. (1871), pp. 15, 19.

54 "The Indeterminate Sentence" by "A Prisoner," "The Indeterminate Sentence" by "A Prisoner," Atlantic Monthly Atlantic Monthly, 108:330 (911).

55 Frederick H. Wines, Frederick H. Wines, Punishment and Reformation: A Study of the Penitentiary System Punishment and Reformation: A Study of the Penitentiary System (rev. ed., 1910), p. 221. (rev. ed., 1910), p. 221.

56 Richard L. Dugdale, " Richard L. Dugdale, "The Jukes;" A Study in Crime, Pauperism, Disease and Heredity (6th ed., 1900), pp. 114-15. (6th ed., 1900), pp. 114-15.

57 Laws N.Y. 1877, chap. 173, p. 186. Laws N.Y. 1877, chap. 173, p. 186.

58 Laws Ill. 1899, p. 142. Laws Ill. 1899, p. 142.

59 Laws N.Y. 1901, Vol. 2, chap. 428, pp. 115-16. Laws N.Y. 1901, Vol. 2, chap. 428, pp. 115-16.

60 Laws Ohio 1885, pp. 236-37 (May 4, 1885). This law also established a parole system; the "habitual criminal" was eligible for parole after serving the regular term of imprisonment. Laws Ohio 1885, pp. 236-37 (May 4, 1885). This law also established a parole system; the "habitual criminal" was eligible for parole after serving the regular term of imprisonment.

61 Rev. Stat. N.Y. 1881, Vol. 3, pp. 2536-37. Rev. Stat. N.Y. 1881, Vol. 3, pp. 2536-37.

62 See, for example, State v. Moore, 121 Mo. 514, 26 S.W. 548 (1894). See, for example, State v. Moore, 121 Mo. 514, 26 S.W. 548 (1894).

63 On parole, see Samuel Walker, On parole, see Samuel Walker, Popular Justice Popular Justice (1980), pp. 92-98. (1980), pp. 92-98.

64 Laws Ohio 1885, p. 236 (May 4, 1885/. Laws Ohio 1885, p. 236 (May 4, 1885/.

65 See Sheldon L. Messinger et al., "The Foundations of Parole in California," See Sheldon L. Messinger et al., "The Foundations of Parole in California," Law and Society Review Law and Society Review 19:69 (1985). 19:69 (1985).