The colonies, too, were engaged in defining treason-as one way of dealing with the enemy within.12 The Continental Congress, meeting in 1776, recommended that each colony enact a treason law, aimed at people who would "levy war against any of the ... colonies" or "be adherent" to the English crown, giving "aid and comfort" to the enemy. These were cla.s.sic phrases drawn from the English statutes on treason. The Continental Congress, meeting in 1776, recommended that each colony enact a treason law, aimed at people who would "levy war against any of the ... colonies" or "be adherent" to the English crown, giving "aid and comfort" to the enemy. These were cla.s.sic phrases drawn from the English statutes on treason.13 Most of the colonies followed this advice. Most of the colonies followed this advice.

Some of the statutes were harsh, extreme; the times were desperate. The Virginia law provided for fines and imprisonment for anyone who might "by ... word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power, of the king or parliament of Great Britain." Many states seized the property of loyalists: conviction for treason, under a New Jersey act of 1778, carried with it "a full and absolute Forfeiture" of the defendant's estate, "both Real and Personal."14 A New York law of 1779 listed, by name, dozens of "enemies" of the state, beginning with "John Murray, earl of Dunmore, formerly governor of the colony of New York." The law declared these men "Ipso Facto, convicted and attainted"; all their property was forfeited and "vested in the people of this state." They themselves were "for ever banished"; if they came back to New York, they were "hereby adjudged and declared guilty of felony" and would be put to death "without benefit of clergy." A New York law of 1779 listed, by name, dozens of "enemies" of the state, beginning with "John Murray, earl of Dunmore, formerly governor of the colony of New York." The law declared these men "Ipso Facto, convicted and attainted"; all their property was forfeited and "vested in the people of this state." They themselves were "for ever banished"; if they came back to New York, they were "hereby adjudged and declared guilty of felony" and would be put to death "without benefit of clergy."15 All this, of course, was by legislative fiat, without trial by jury or other niceties. All this, of course, was by legislative fiat, without trial by jury or other niceties.

Silent leges inter arma, as the maxim goes: the laws fall silent during war. War is, after all, a serious business, a matter of life and death; and the roar of guns tends to drown out the song of civilization. There were executions for treason during the war; and instances of harshness and abuse, on both sides. In Philadelphia, David Dawson was executed for treason in 1780, along with Richard Chamberlain, whose crime was pa.s.sing counterfeit money. The scene is described for us by a Quaker, himself in prison for "disloyalty": A "Crowd of Spectators" had gathered. The two men "walked after a Cart in which were two Coffins a Ladder &c, each had a Rope about his Neck & their Arms tied behind them." Dawson's brother and two sisters walked along with him; Chamberlain, too, was "accompanied by one of his Relatives." The two men were "hanged on the Commons" at about one o'clock. as the maxim goes: the laws fall silent during war. War is, after all, a serious business, a matter of life and death; and the roar of guns tends to drown out the song of civilization. There were executions for treason during the war; and instances of harshness and abuse, on both sides. In Philadelphia, David Dawson was executed for treason in 1780, along with Richard Chamberlain, whose crime was pa.s.sing counterfeit money. The scene is described for us by a Quaker, himself in prison for "disloyalty": A "Crowd of Spectators" had gathered. The two men "walked after a Cart in which were two Coffins a Ladder &c, each had a Rope about his Neck & their Arms tied behind them." Dawson's brother and two sisters walked along with him; Chamberlain, too, was "accompanied by one of his Relatives." The two men were "hanged on the Commons" at about one o'clock.16 Dawson suffered the harsh fate of those who chose the wrong side. But when the war ended, and independence became a fact, the new nation rethought the problem of treason. The law of treason was thoroughly and decisively revamped. Indeed, the Const.i.tution of 1787 defined treason narrowly. Treason was to consist only in "levying War" against the United States, or "adhering to their Enemies, giving them Aid and Comfort." This reduced the crime to a naked essence, and swept away large pieces of the traditional definition of treason, which (in England) included a number of other offenses we tend not to think of as treason-counterfeiting, for example, or killing a judge or high government official.17 The Const.i.tution also put procedural restrictions on trials for treason. No one could be convicted of this crime "unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court"; moreover, the punishment could not include "Corruption of Blood, or Forfeiture except during the life of the Person attainted" (Article III, section 3). Treason was the king of crimes; but the Const.i.tution turned it into a const.i.tutional monarch-indeed, conformed it to the requirements, as the framers saw it, of a democratic republic.

PROFESSIONALIZATION.

Over the years, there were many crucial changes in the system of criminal justice. One of the most powerful and most marked was the drift toward professionalization. If we take a long-term view of the criminal justice system, from its beginnings in the colonial past to the end of the twentieth century, this is surely one of the master trends of the entire period. In the beginning, as we noted in chapter 1, there were no actors in the system who spent all their working lives in criminal justice. There were no police, professional prosecutors, public defenders, prison wardens, probation officers, detectives, social workers, and the like. There were also few full-time criminals. Laymen, amateurs, and ordinary judges (some of them without any training in law) ran the system, together with a few lawyers, and a ragbag of constables, night watchmen, and haphazard jailers.

The movement away from the amateurs has been strong and (apparently) irreversible. Still, if we compare the United States with other countries, American criminal justice retains a certain amateur flavor to this very day. The jury gives the lay person power at the very core of the system. The history of the jury shows a steady decline in the rate of use of this body; but the jury is still with us, a panel of twelve, picked up off the street, as it were, that holds the power of prison or freedom, sometimes the power of life or death. The right to a jury trial is engraved in the Const.i.tution; there is no chance it will die out completely.

American judges, too, are in a way less professional than judges in most other countries. They are not trained as judges; only as lawyers (and in earlier years, sometimes not even that). Federal judges are appointed; and they serve during "good behavior," which means, in effect, for life or as long as they want. But in the states, in the nineteenth century, a strong and successful movement switched the state courts to elective systems. In most states, then, voters elect the judges who sit in criminal courts. Democratic principles seemed to demand this. But the result is more of a political than a professional ethos. The logic seems clear. After all, judges were part of the apparatus of government; they were policy-makers and (far too often) had been extensions of the executive. This, at least, is the way many voters read the book of American and British experience. An elected judge, on the other hand, would be responsible to the voters. In the first half of the nineteenth century, election of judges became the norm (Ma.s.sachusetts was one of the few holdouts). The principle applied not only to judges. Under the Arkansas const.i.tution of 1836, for example, every township was to elect a constable for a two-year term, and every county elected a coroner and a sheriff as well (Article VI, sections 16, 17).

THE POLICE.

One of the major social inventions of the first half of the nineteenth century was the creation of police forces: full-time, night-and-day agencies whose job was to prevent crime, to keep the peace, and to capture criminals. The creation of police forces was another landmark on the road to professionalization, certainly a landmark in the long, slow retreat of lay justice.

Of course, society was not totally unpoliced before police forces were organized. In the cities, as we have seen, watchmen made their rounds at night, looking out for fires and disturbances. Constables were the day-time shift in the law-enforcement business. They guarded the city, arrested drunks and vagrants, hauled offenders before the grand jury, enforced local ordinances, and supervised the watch. In addition, able-bodied men could be called on to play a part. A New York law of 1787 laid out these duties. Whenever a serious crime was committed (murder, robbery, burglary, "burning of houses," theft, "or other felony"), "cries thereof shall be solemnly made immediately in all the towns, markets and places of public resort" near where the crime took place, "so that no man, by ignorance, may excuse himself." This makeshift force of "hors.e.m.e.n and footmen" would pursue the criminals "from town to town, and from county to county." All men were supposed to be "ready, and armed and accoutred" in order to carry out this duty. 18 18 A system of this kind, a.s.suming it worked at all, had obvious problems. It was loose and haphazard; it could hardly be expected to do the job right in a city like New York or Boston. There was a constant chorus of complaints about the constables and watchmen. In Boston, several burglaries were committed in August 1789, evoking a remark that it was "high time the watchmen were overhauled; they have been asleep since New Year's." The captains, it was said with a sneer, were "men in their prime, aged from ninety to one hundred years, and the crew only average about fourscore, and so we have the advantage of their age and experience, at least the robbers do." at least the robbers do."19After 1800, complaints from the respectable citizens in the cities became more strident. The old system, it was said, simply could not cope.

The London Metropolitan Police, set up in 1829, preceded and helped inspire American experiments with a standing army of professional law-enforcers. In both England and the United States, one stimulus was fear: fear of the "dangerous cla.s.ses," fear of riots and urban disorders. A metropolis was a place of danger; its twisted, narrow, darkened streets, its waterfront areas and slums were realms of vice and evil. In its impenetrable shadows lurked a tough, dangerous underworld, a sub-society of thieves, prost.i.tutes, lowlifes, pickpockets, malcontents. It was, or could be, a "place of isolation and a breeding ground for the breakdown of moral sanctions."20 The cities were also violent places. A wave of riots swept the cities in the 1830s and 1840s-in Philadelphia, Baltimore, New York, Cincinnati, and St. Louis.21 Some of these were race riots: vicious mobs ran wild in the black sections of town. Savage anti-Catholic mobs burned the Ursuline Convent near Boston in 1834. Group hatreds, insecurity, the abrasive, anomic conditions of city life all joined to produce a tense, dangerous atmosphere. Some of these were race riots: vicious mobs ran wild in the black sections of town. Savage anti-Catholic mobs burned the Ursuline Convent near Boston in 1834. Group hatreds, insecurity, the abrasive, anomic conditions of city life all joined to produce a tense, dangerous atmosphere.22 The urban mob no longer seemed a controllable aspect of city life. It was no longer an arm of justice; it was now an untamed beast. The urban mob no longer seemed a controllable aspect of city life. It was no longer an arm of justice; it was now an untamed beast.23 Reform and innovation often followed directly on the heels of a particularly vicious or frightening riot. In Philadelphia, there were major anti-Catholic riots in 1844. In July, when a mob laid siege to a Catholic church, militia troops came to the scene; they fired on the crowd, killing fourteen people. A grand jury called for a civilian solution: a police force of some hundreds of men. The force was established in 1845, and strengthened in 1850. By 1852 there were over seven hundred policemen in the county.24 Boston established a day watch in 1838. Piecemeal reforms followed; then, in 1854, the old system of watch and police was finally consigned to the ash heap. What replaced it was a "Boston Police Department" of about two hundred and fifty men under a chief of police; the old bra.s.s badge was exchanged "for a silver octagon oval plate, little larger than a silver dollar, with a ' Boston established a day watch in 1838. Piecemeal reforms followed; then, in 1854, the old system of watch and police was finally consigned to the ash heap. What replaced it was a "Boston Police Department" of about two hundred and fifty men under a chief of police; the old bra.s.s badge was exchanged "for a silver octagon oval plate, little larger than a silver dollar, with a 'five-pointed star,' on which was engraved BOSTON POLICE."25 New Orleans and Cincinnati established police forces in 1852, Chicago in 1855, Baltimore in 1857. New Orleans and Cincinnati established police forces in 1852, Chicago in 1855, Baltimore in 1857.26 A badge was one thing, a uniform another. Men balked at the idea of a uniform, and the public was also wary. One newspaper questioned whether "an American freeman" would or should "strut about ... in the livery furnished at the public expense." A uniform, however, represented visibility, control, and gave the police a smart, military flavor. In 1854, Philadelphia decided that officers should wear a black coat, a hat, and the badge; in 1858, the Boston police also adopted uniforms.27 The departments began to issue rule books that stressed discipline, propriety, and uniformity. The departments began to issue rule books that stressed discipline, propriety, and uniformity.28 Wilbur Miller has drawn a sharp contrast between the "bobbies" of London and the police of New York. For its police, London recruited mostly country boys, strangers to London; this was a policy of "detachment from the citizens" and "professional impartiality." New York, on the other hand, stressed "closeness to the community"; the police were locals, city boys themselves. This was a policy that could and did slide easily into corruption. Also, it put the police in a position of dependence on politicians. Police discipline in New York was nowhere near as strict as in London, and patrolmen "looked to local politicans for appointment and promotion."29 The politicking went both ways; police, for their part, often worked to make sure "their" alderman got elected; the situation improved somewhat after reforms in 1853, but the unholy alliance between police and politics in New York did not vanish.30 Other cities were no less politicized. Edward Savage, reminiscing romantically about the good old days in Boston, told how the police "very quietly dabbled a little (very little) in politics" in the election of fall 1858, when "things looked a little squally.... Our choice was successful." Other cities were no less politicized. Edward Savage, reminiscing romantically about the good old days in Boston, told how the police "very quietly dabbled a little (very little) in politics" in the election of fall 1858, when "things looked a little squally.... Our choice was successful."31 The American police, in other words, were less "professional" than their British counterparts from the very start; they dipped into local politics-indeed, they were drenched in it. They were full-time workers in the system, to be sure, but there was no job training, no requirements or prerequisites, and not much real control over behavior on the beat. Amateurism of a sort went all the way to the top of the force-a point ill.u.s.trated by the antics of Francis Tukey, marshal of the Boston police after 1846. Tukey was only thirty-two when he was appointed; he was a lawyer, and a personal friend of the mayor. Tukey expanded the department, staged flamboyant raids on gambling dens, and showed a talent for publicity. In January 1848, the "police drew a crowd by mysteriously digging into Boston Common to uncover a cache of allegedly stolen money." In 1851, Tukey inst.i.tuted a weekly "show-up of rogues"; this was "to identify suspicious persons for the benefit of both police and public." At the first "show-up," there were seventy-six "pickpockets, burglars, panel thieves, etc." When they left, they were "forced to run a gauntlet of crowing citizens who tore their clothing and marked their backs with chalk."32 Tukey's exhibition was an extreme case, of course; it blotted out the difference between the mob and the professionals. True distance came somewhat later. But the rise of the police was nonetheless an event of huge significance. The police interposed a constant, serious, full-time presence into the social s.p.a.ces of the cities. They were a force for order; order; a patrol, trawling the urban areas for drunks, brawlers, mobs, disturbers of peace. a patrol, trawling the urban areas for drunks, brawlers, mobs, disturbers of peace.

Under the police regime, too, law enforcement became much less random, less haphazard. Prosecution, in the past, had depended very much on victims who made complaints. This, of course, remained true for some crimes; but the police took over for others. They became the real complainants-the prosecuting witnesses. This was very notably the case for "victimless crimes," like gambling, where the partic.i.p.ants were all equally guilty and n.o.body was minded to blow the whistle. Public drunkenness and prost.i.tution fell into the same category.

This very fact exposed the police to the corrosion of money and corruption. The police could be a dangerous cla.s.s themselves. The London bobbies carried truncheons-clubs. The Boston police, like those of most cities, did the same at first: they carried short clubs, tied to their wrists.l But by the middle of the century, the weaponry got more serious. In 1854, Philadelphia's mayor told the police to go out and buy guns. But by the middle of the century, the weaponry got more serious. In 1854, Philadelphia's mayor told the police to go out and buy guns.34 In New York, in a fateful decision in 1857, the state armed the Metropolitan Police with pistols. In New York, in a fateful decision in 1857, the state armed the Metropolitan Police with pistols.35 The police were thus a powerful agency for crime prevention and crime control, but also a powerful force, a weapon, an armed body that could be used for suppression and oppression as well. We will return several times to this theme. The police were thus a powerful agency for crime prevention and crime control, but also a powerful force, a weapon, an armed body that could be used for suppression and oppression as well. We will return several times to this theme.

The Federal Framework One major change that the Revolution brought about was the federal system. The American republic, especially after the Const.i.tution of 1787 was ratified, was a federal union. Thus a national criminal justice system was piled on top of the state systems. To be sure, the states-then and now-had the lion's share of the crime and punishment business. The federal government was a bit player, a spear carrier in the drama of criminal justice. The state courts were the exclusive venue for ordinary cases, ordinary offenses; the federal courts handled only special, "federal," crimes. Criminal justice in the territories and the District of Columbia was also "federal," of course.

In 1790, to be sure, Congress enacted a general Crimes Act, defining seventeen crimes against the national government. Some of these were simply ordinary crimes in a federal setting: for example, murder or other crimes "within any fort, a.r.s.enal, dock-yard, magazine," or other place under federal control; or "upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state." It was a crime to forge "any certificate, indent, or other public security of the United States"; or to commit perjury in a federal court. Other crimes-like treason, piracy, or violence to an amba.s.sador-belonged more specifically to the federal sphere.36 In addition, several bits of const.i.tutional text related directly to criminal justice. The Const.i.tution gave Congress power to punish people for "counterfeiting the Securities and current Coin of the United States," and for committing "Piracies and Felonies ... on the high Seas, and Offenses against the Law of Nations" (Article I, section 8). Federal and state governments were both forbidden to pa.s.s any "Bill of Attainder or ex post facto Law" (Article I, sections 9, 10). In federal courts, criminal trials were to be "by Jury" (Article III, section 2). The crime of treason, as we noted, was specifically defined. Another provision dealt with extradition: a person who "shall flee from Justice, and be found in another State, shall on demand ... be delivered up, to be removed to the State having Jurisdiction of the Crime" (Article IV, section 2).

On the whole, though, criminal justice is hardly the main theme of the Const.i.tution. But this could not be said of the Bill of Rights-that is, the first ten amendments to the Const.i.tution, adopted in 1791. As the drafters saw it, the basic rights included rights to fair trials and fair procedures. The Fourth Amendment guaranteed the "right of the people to be secure ... against unreasonable searches and seizures"; warrants were not to be issued except "upon probable cause." The Fifth Amendment provided that no one would be "held to answer for a capital, or otherwise infamous crime" unless indicted or presented by a grand jury. By the same amendment, double jeopardy was outlawed (that is, no one could be tried twice for the same offense); the defendant, moreover, had the privilege not to be "a witness against himself," in other words, the right to remain silent at trial, the right not to take the stand at all. The Sixth Amendment guaranteed a "speedy and public trial, by an impartial jury." The eighth outlawed "excessive" bail and "cruel and unusual punishments."

Thus about half the text of the Bill of Rights, by bulk, is concerned with criminal justice. Tyranny was, above all, an abuse of criminal justice: arbitrary cruelty, kangaroo courts, the use of ma.s.sive power to crush dissent or terrify it into silence. The nightmare image was King George III, a despot sitting on a faraway throne, and the pathologies of English criminal justice. On these sh.o.r.es, a castle wall of law would guard citizens from abuse, and prevent the central state from oppressing its subjects.

The Bill of Rights applied, however, only to the national government, not to the states. The Supreme Court so held.37 The states had their own bills of rights, often quite similar to the federal bill; issues of power, reform, tyranny, and fairness were state issues as well as national ones. The states, in fact, acted to protect fundamental rights before the national government did. Indeed, the Virginia Declaration of Rights, of 1776, contained the basic list: trial by jury, the privilege against self-incrimination, the ban on excessive bail, and on cruel and unusual punishments. The states had their own bills of rights, often quite similar to the federal bill; issues of power, reform, tyranny, and fairness were state issues as well as national ones. The states, in fact, acted to protect fundamental rights before the national government did. Indeed, the Virginia Declaration of Rights, of 1776, contained the basic list: trial by jury, the privilege against self-incrimination, the ban on excessive bail, and on cruel and unusual punishments. 38 38 After 1791, federal models become heavy influences on state const.i.tutions. Many states copied the very words of the Bill of Rights. But there was no system for After 1791, federal models become heavy influences on state const.i.tutions. Many states copied the very words of the Bill of Rights. But there was no system for coordinating coordinating the work of the states; no overall supervision by the federal courts. That was more than a century and a half away. the work of the states; no overall supervision by the federal courts. That was more than a century and a half away.

There was not that much to coordinate. In our times, there is a vast body of case law on the Bill of Rights: thousands of cases, some notable or hotly contested. But all through the nineteenth century, cases on the guarantees of the Bill of Rights were uncommon, both in state and federal courts; they were the merest whisper in ordinary trials. They were, in the main, taken for granted (or ignored). Not that trials were grossly unfair (in contemporary terms). But the cutting-edge disputes over criminal justice, so shrill in our own times, had not yet come to the surface.

DEFANGING DEATH.

One very notable aspect of reform in the period of the republic was the movement to get rid of the hangman. This was by no means a total success; but it did reduce the use of the death penalty quite considerably. Pennsylvania, the Quaker state, played a leading role. In 1790, the legislature abolished the death penalty for robbery, burglary, and sodomy.39 A statute of 1794 introduced an important innovation. This law divided murder into "degrees." Murder in the first degree ("perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, or premeditated killing, or ... committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary") carried the death penalty; all other murder was second degree, and carried a lesser punishment (essentially imprisonment). A statute of 1794 introduced an important innovation. This law divided murder into "degrees." Murder in the first degree ("perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, or premeditated killing, or ... committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary") carried the death penalty; all other murder was second degree, and carried a lesser punishment (essentially imprisonment).40 A number of states in the first part of the nineteenth century picked up on this general idea. A number of states in the first part of the nineteenth century picked up on this general idea.41 In New York, for example, only first-degree arson was a capital crime. This was the crime of setting fire, willfully, and at night (when arson was most treacherous and dangerous) to a "dwelling-house" with people in it. Everything else was arson in the second degree, and not a capital offense. In New York, for example, only first-degree arson was a capital crime. This was the crime of setting fire, willfully, and at night (when arson was most treacherous and dangerous) to a "dwelling-house" with people in it. Everything else was arson in the second degree, and not a capital offense.42 In general, northern and midwestern states traveled down the same road as Pennsylvania: they sharply reduced the number of capital crimes. In Virginia, in 1779, Thomas Jefferson proposed eliminating the death penalty altogether, except for treason and murder. For rape and sodomy he proposed instead castration; for a woman who committed sodomy, he suggested drilling a hole at least one-half inch in diameter through the cartilage of her nose; for people who maimed or disfigured others, he proposed maiming and disfiguring in kind, "or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation." Virginia never obliged its great man by adopting these curious suggestions; but in 1796, the state legislature got rid of the death penalty for all crimes except murder, and certain crimes committed by slaves.43 In the debate over the death penalty, a number of persistent themes were sounded. Both sides quoted scripture. The Old Testament recognized the death penalty, after all; hence, the Reverend John McLeod, a New York Presbyterian, could a.s.sert that abolition would be "most offensive to Jehovah."44 The secular arguments were perhaps more telling. Benjamin Rush, writing in the 1790s, equated the death penalty with monarchy, with tyranny, with irrationality. Republics, he wrote, "appreciate human life.... They consider human sacrifices ... offensive." The secular arguments were perhaps more telling. Benjamin Rush, writing in the 1790s, equated the death penalty with monarchy, with tyranny, with irrationality. Republics, he wrote, "appreciate human life.... They consider human sacrifices ... offensive."45 Edward Livingston, a leading opponent, considered the death penalty barbarous and ineffective. The "infliction of death," he wrote, "if frequent, ... loses its effect." Under such circ.u.mstances, he a.s.serted, killing becomes "a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed." Edward Livingston, a leading opponent, considered the death penalty barbarous and ineffective. The "infliction of death," he wrote, "if frequent, ... loses its effect." Under such circ.u.mstances, he a.s.serted, killing becomes "a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed."46 A serious attempt was made to abolish the death penalty in New York in 1841; pet.i.tions against the death penalty flooded the legislature, and capital punishment became the "subject of impa.s.sioned debate, fierce lobbying, ingenious maneuvering."47 The death penalty survived, but for three crimes only: treason, murder, and (as we have seen) "arson in the first degree." The death penalty survived, but for three crimes only: treason, murder, and (as we have seen) "arson in the first degree."48 Somewhat unexpectedly, Michigan did, in fact, try full abolition in 1846; and Wisconsin and Rhode Island followed in the next few years. Somewhat unexpectedly, Michigan did, in fact, try full abolition in 1846; and Wisconsin and Rhode Island followed in the next few years.49 BODY AND SOUL.

One strand in the movement against capital punishment is worth special mention. There was, in general, a revulsion against bodily punishments. Especially in the North, whipping and other means of mortifying the flesh fell into disrepute; in many states, corporal punishment was officially eliminated. The alternative (as we shall see) was the prison system. In Ma.s.sachusetts, whipping, branding, the stocks, and the pillory were abolished in the 1804-5 session of the legislature-as Michael Hindus points out, roughly at the time that the Ma.s.sachusetts State Prison opened for business.50 In Indiana the legislature ordered a state prison to be built in 1821; when it was nearing completion, the legislature followed through by getting rid of whipping altogether. In Indiana the legislature ordered a state prison to be built in 1821; when it was nearing completion, the legislature followed through by getting rid of whipping altogether.51 Reformers eagerly embraced the idea of locking up human beings for long periods of time; but they rejected quick and dirty punishment at the whipping post. Corporal punishment was "barbarous." In the antebellum period there were campaigns against whipping-not only as a legal means of punishment, but everywhere: in the schoolhouse, in the prison, and in the navy, where flogging was a familiar inst.i.tution.52 Obviously "barbarism" is a social concept. Why reformers of the nineteenth century recoiled in such horror from direct, personal, physical punishment is not really obvious. But recoil they did. Somehow whipping was ... unrepublican. It was an offense to the citizen's dignity. It thrived mostly in situations of private tyranny: the old-fashioned school, the prison, the navy-indeed, the family itself. Whipping was also the way slaves were punished; it was the dominant instrument of social control on southern plantations; it was, in short, "shameful," "humiliating."

Yet, as Myra Glenn has pointed out, whipping had its defenders; and they sometimes claimed it was anything but but humiliating. Jefferson Davis insisted that sailors preferred to be whipped; it was a "manly" form of punishment; it tested a sailor's power to grit his teeth and take pain. humiliating. Jefferson Davis insisted that sailors preferred to be whipped; it was a "manly" form of punishment; it tested a sailor's power to grit his teeth and take pain.53 In 1839, naval officer Uriah P. Levy, commanding the In 1839, naval officer Uriah P. Levy, commanding the Vandalia, Vandalia, tried to get rid of corporal punishment. Instead, he made drunken seamen wear a black wooden bottle around their necks; petty thieves wore a badge proclaiming their crime. One sixteen-year-old mess boy was strapped to a gun, and tar and parrot feathers were applied to his rear end. For these throwbacks to colonialism, Levy was charged with "scandalous and cruel conduct" and court-martialed. tried to get rid of corporal punishment. Instead, he made drunken seamen wear a black wooden bottle around their necks; petty thieves wore a badge proclaiming their crime. One sixteen-year-old mess boy was strapped to a gun, and tar and parrot feathers were applied to his rear end. For these throwbacks to colonialism, Levy was charged with "scandalous and cruel conduct" and court-martialed.54 Whipping survived, then, in these small private despotism, and wherever the alternative (imprisonment) was inefficient or disruptive. After all, a sailor locked in the brig was of no use to the ship. It survived also in the more feudal, backward areas-the South, very notably. A slave in jail picked no cotton. It survived also, for some reason, in the tiny border state of Delaware-along with the ancient shaming modes of punishment. Thus, in the 1820s, a person found guilty of stealing a check or a bill of exchange in Delaware had to make rest.i.tution, suffer a public whipping, and, in addition, wear for six months a "Roman T, not less than four inches long and one inch wide, of a scarlet colour, on the outside of the outermost garment, upon the back, between the shoulders, so as at all times to be fully exposed to view, for a badge of his or her crime." A robber had to wear a scarlet R; and a forger, a scarlet F, "at least six inches long and two inches wide."55 But where corporal punishment lacked support from the social context, it was denounced as barbaric and replaced by more impersonal, scientific, "modern" forms-notably, the great penitentiaries. But where corporal punishment lacked support from the social context, it was denounced as barbaric and replaced by more impersonal, scientific, "modern" forms-notably, the great penitentiaries.

PRIVATIZING DEATH.

In the nineteenth century, corrections went private. The walled-off penitentiary replaced the pillory and the whipping post; and most states abolished the public festival of hanging. The ideas that brought about this change were probably not unrelated to the ideas that, consciously or unconsciously, underlay the attack upon whipping.

Hanging, at the time of the Revolution, was a major spectacle, a dramatic show. When Bathsheba Spooner was hung in July 1778 in the town of Worcester, Ma.s.sachusetts (she may have been the only woman ever executed in the state after independence), an "immense throng of people" gathered, "many of whom had come a great distance." The Reverend Thaddeus McCarty delivered a sermon in the presence of Mrs. Spooner and her fellow conspirators, who were also about to die. Mrs. Spooner was "carried in a chaise," in a solemn procession. A terrific thunderstorm "darkened the heavens." An "awful" half hour followed: "The loud shouts of the officers ... 'make way, make way,' the horses pressing upon those in front, the shrieks of women in the confusion and tumult; the malefactors slowly advancing to the fatal tree, preceded by the dismal coffins ... fierce corruscations [sic] of lightning ... loud peals of thunder ... a dreadful scene of horror."56 The crowd at an execution in Cooperstown, New York, in 1827 was so dense that a viewing stand gave way; two people were killed. In the same year, when Jesse Strang was hung in Albany, the crowd was estimated at between thirty and forty thousand. The crowd at an execution in Cooperstown, New York, in 1827 was so dense that a viewing stand gave way; two people were killed. In the same year, when Jesse Strang was hung in Albany, the crowd was estimated at between thirty and forty thousand.57 These spectacles were not, however, destined to last. Hangings, starting in the middle 1830s, were gradually withdrawn from the bloodshot eyes of the vulgar. The New York law of 1835 ordered executions to be "inflicted within the walls of the prison ... or within a yard or enclosure adjoining," in the county where the prisoner had been tried.58m People from the "middle and upper cla.s.ses" found public hangings "revolting." People from the "middle and upper cla.s.ses" found public hangings "revolting." 59 59 Louis Masur connects the movement to the revulsion against "urban crowds." Louis Masur connects the movement to the revulsion against "urban crowds."60 There was, in the period, a new interest in privacy, seclusion, control of emotions, private s.p.a.ce. Public hangings were considered too inflammatory; they excited base "animal" instincts. In earlier periods, periods of autocracy, public hangings may have been important outlets for these "animal" instincts, or may have served as dread warnings of the awesome power of the state. A republican society had different needs and demands: self-discipline, moderation, sobriety. There was, in the period, a new interest in privacy, seclusion, control of emotions, private s.p.a.ce. Public hangings were considered too inflammatory; they excited base "animal" instincts. In earlier periods, periods of autocracy, public hangings may have been important outlets for these "animal" instincts, or may have served as dread warnings of the awesome power of the state. A republican society had different needs and demands: self-discipline, moderation, sobriety.61 This was, as we shall see, a persistent and recurrent theme in nineteenth-century legal culture; it affected whipping, too, and all forms of corporal punishment. People probably came to doubt that corporal punishment did a good job of chastening and reforming deviants. The "infliction of stripes," according to Edward Livingston, was "momentary" in its application, inimical to the very "idea of reformation," and when the whipping was finished, the sufferer, faced with "the alternative of starving," would immediately repeat his offense.62 The aim of criminal justice had to be reformation; reformation meant instilling habits of discipline and strength of character into the guilty soul. Not only did bodily punishments fail this test, but they excited bloodl.u.s.t and barbarism, encouraging the very behavior they were meant to punish. The remedy was the new path of punishment: the penitentiary system. The aim of criminal justice had to be reformation; reformation meant instilling habits of discipline and strength of character into the guilty soul. Not only did bodily punishments fail this test, but they excited bloodl.u.s.t and barbarism, encouraging the very behavior they were meant to punish. The remedy was the new path of punishment: the penitentiary system.

The Penitentiary System Today, jails and prisons dominate the system of "corrections"; locking people up is the primary tool for punishing serious offenders. As we saw, this was by no means the case in the colonial period; jail was essentially a place to hold people for trial who could not make bail, and for debtors who could not pay debts. These primitive jails were not at all like the "big house" of gangster movies; they were dirty, undisciplined, unis.e.x warehouses in which every form and shape of humanity was shoved in, helter-skelter.

All this changed in the republican period. Ultimately the prison became the centerpiece of correctional theory. Whipping, as we saw, fell into disrepute. In an age of rapid growth, impersonal cities, and rootless populations, public punishments (punishments of stigma and shame) seemed to lose their power. These tools worked best in small, closed communities.63n New ideas about the sources sources of crime fed the urge to reform. People felt that bad company, vice-rotten cities, temptations, weaknesses in the family were producing waves of crime. They located the sources of deviant behavior in society itself, in the environment. This was, of course, quite different from the cla.s.sic colonial view, which located the source of sin in individual weaknesses, or in the devil and his minions. But if society itself was corrupting, for some people, what was to be done? One solution was a kind of radical surgery: remove the deviant from his (weak and defective) family, his evil community, and put him in "an artificially created and therefore corruption-free environment." of crime fed the urge to reform. People felt that bad company, vice-rotten cities, temptations, weaknesses in the family were producing waves of crime. They located the sources of deviant behavior in society itself, in the environment. This was, of course, quite different from the cla.s.sic colonial view, which located the source of sin in individual weaknesses, or in the devil and his minions. But if society itself was corrupting, for some people, what was to be done? One solution was a kind of radical surgery: remove the deviant from his (weak and defective) family, his evil community, and put him in "an artificially created and therefore corruption-free environment."65 From these notions sprang the penitentiary system. Another root was the old house-of-correction idea.o The Pennsylvania const.i.tution of 1776 called for the construction of "houses," to punish "by hard labour, those who shall be convicted of crimes not capital." This const.i.tution still clung to the idea of shaming: the public, "at proper times" were to be "admitted to see the prisoners at their labour" (section 39). In Ma.s.sachusetts, too, after the state prison was built in 1805, visitors were allowed in for a fee, "which put prisoners on display as if in a zoo"; this system lasted until 1853. The Pennsylvania const.i.tution of 1776 called for the construction of "houses," to punish "by hard labour, those who shall be convicted of crimes not capital." This const.i.tution still clung to the idea of shaming: the public, "at proper times" were to be "admitted to see the prisoners at their labour" (section 39). In Ma.s.sachusetts, too, after the state prison was built in 1805, visitors were allowed in for a fee, "which put prisoners on display as if in a zoo"; this system lasted until 1853.67 But the prison of the late nineteenth century was not yet a true penitentiary. In Connecticut, a prison was improvised in 1773 out of certain copper mines at Simsbury. Called "Newgate" after the English prison, it became the state prison of Connecticut in 1790. This was, by all accounts, a horrendous dungeon, a dark cave of "horrid gloom." The "dripping water trickling like tears from its sides; the unearthly echoes, all conspired" to strike an observer "aghast with amazement and horror." The prisoners were "heavily ironed and secured by fetters"; they ate "pickled pork" for dinner, while working at forges; "a piece for each [was] thrown on the floor and left to be washed and boiled in the water used for cooling the iron wrought at the forges."68 There was no penal theory underlying a prison of this type, except the idea of instilling so much dread that no sane person would want to be in one. A new breed of prison began with the remodeling of the Walnut Street inst.i.tution in Philadelphia in 1790; the remodeled prison contained a "penitentiary House," with sixteen separate cells, designed for solitary confinement. Pennsylvania had drastically reduced the number of capital crimes and decreed imprisonment in its place. Its const.i.tution of 1776 ordered the legislature to make punishments less "sanguinary," setting up instead a system of "visible punishment of long duration." This meant, at first, that prisoners would work-and work hard-but in public, on the streets and highways. In other words, labor was to be a "form of public humiliation," like the old shaming punishments.69 This system lasted only a short time. There were ugly scenes on the streets, as citizens and convicts taunted each other. The law of 1790, "to reform the penal laws of this state," recited that the prior acts had "failed of success" precisely because of the "exposure of the offenders ... to public view" and their "communication with each other." This system lasted only a short time. There were ugly scenes on the streets, as citizens and convicts taunted each other. The law of 1790, "to reform the penal laws of this state," recited that the prior acts had "failed of success" precisely because of the "exposure of the offenders ... to public view" and their "communication with each other."70 The remedy was to add "unremitted solitude to laborious employment"; this would "reform" as well as "deter." The convicts were to be locked in cells that would "prevent all external communication." They would wear "habits of coa.r.s.e materials, uniform in colour and make," which would mark them off "from the good citizens of this commonwealth"; they would shave their beards once a week; and they would eat "bread, Indian meal, or other inferior food," and one "meal of coa.r.s.e meat in each week"; meanwhile, they would do labor "of the hardest and most servile kind, in which the work is least liable to be spoiled by ignorance, neglect or obstinacy." The prisoners were also to be "kept separate and apart from each other," as much as humanly possible.p Walnut Street was the beginning. Next came Auburn, in New York. Under the Auburn system, prisoners worked together during the day, and slept in solitary cells at night. The Ma.s.sachusetts prison, opened at Charlestown in 1805, was at first nothing but a kind of county jail writ large, "with congregate living arrangements and individual piecework labor"; but by 1829, it was completely done over on the Auburn plan: the prisoners worked together by day, and slept in individual cells at night.72 The Cherry Hill prison in Philadelphia (1829) was another pioneer penitentiary.73 This was a ma.s.sive stone building, surrounded by mighty walls. Individual wings or cell blocks radiated out of a central core. Each individual cell was connected to a small walled courtyard. The prisoners were utterly alone, night and day. They wore hoods whenever they left their cells. In Cherry Hill there was a rule of absolute, total silence. This was a ma.s.sive stone building, surrounded by mighty walls. Individual wings or cell blocks radiated out of a central core. Each individual cell was connected to a small walled courtyard. The prisoners were utterly alone, night and day. They wore hoods whenever they left their cells. In Cherry Hill there was a rule of absolute, total silence.74 Gustave de Beaumont and Alexis de Tocqueville, who visited and wrote a report on the penitentiary system, found the night silence in these great houses of captivity especially awesome: it was almost the silence "of death. We have often trod during night those monotonous and dim galleries, where a lamp is always burning: we felt as if we traversed catacombs; there were a thousand living beings, and yet it was a desert solitude." Gustave de Beaumont and Alexis de Tocqueville, who visited and wrote a report on the penitentiary system, found the night silence in these great houses of captivity especially awesome: it was almost the silence "of death. We have often trod during night those monotonous and dim galleries, where a lamp is always burning: we felt as if we traversed catacombs; there were a thousand living beings, and yet it was a desert solitude." 75 75 Penologists debated the merits of two competing patterns: the Pennsylvania system, where the prisoners lived and worked in silence and alone; and the Auburn system, where prisoners worked together, though also in silence. Today these may seem like Tweedledum and Tweedledee, but in their day there was endless argument over which was better. Was total total isolation inhumane? Did it drive prisoners mad? Everyone agreed that labor was a must. Solitude without work would drive anybody mad; where this experiment was tried (in New York, from 1821 to 1823) the results were horrific: one prisoner tried to kill himself by throwing himself "from the fourth gallery, upon the pavement"; another "beat and mangled his head against the walls of his cell, until he destroyed one of his eyes." isolation inhumane? Did it drive prisoners mad? Everyone agreed that labor was a must. Solitude without work would drive anybody mad; where this experiment was tried (in New York, from 1821 to 1823) the results were horrific: one prisoner tried to kill himself by throwing himself "from the fourth gallery, upon the pavement"; another "beat and mangled his head against the walls of his cell, until he destroyed one of his eyes."76 From then on, hard labor was the absolute rule. From then on, hard labor was the absolute rule.

All the new penitentiaries, whatever their differences, were committed to silence, to a certain amount of isolation; and, more fundamentally, to discipline and regimentation. When the prisoner entered the gate, the staff stripped him of his individuality and reduced him to a common fate. At the Eastern Penitentiary in Philadelphia, the new convict was undressed, his hair cut, and his body "cleansed in a warm bath." Then he put on the prison uniform; and a "cap or hood" to blindfold him; in this condition, he was led to his cell.77 No one in the prison could speak. At Sing Sing in New York, officers wore moca.s.sins, so that they could "approach the cells without the convicts being aware of their presence." The rule of silence was so well enforced that "for several years there has not been any case reported of a prisoner talking after he was locked up." No one in the prison could speak. At Sing Sing in New York, officers wore moca.s.sins, so that they could "approach the cells without the convicts being aware of their presence." The rule of silence was so well enforced that "for several years there has not been any case reported of a prisoner talking after he was locked up."78 During the long years of prison, all convicts dressed alike, gulped down the same food, woke, moved (often in lockstep), worked, ate, and slept to the same daily rhythm. At Auburn, summer's work began at five-thirty A.M. A bell rang; the cells were unlocked; then the men came out; they emptied their "night-tubs," washed them, and placed them in rows. They worked until breakfast, which took place at seven or eight A.M., "on the ringing of a large bell.... The convicts form in a line and are marched ... across the yard.... On entering the mess-room they face round to their plates and stand in their places until all are a.s.sembled, when a signal being given, they instantly sit down to their meals.... The tables are narrow and the prisoners sit on one side only, and are never placed face to face, in order to avoid the exchange of looks." The rest of the day was equally regimented.79 Unlike the corrupt, haphazard, filthy jails of the past, the penitentiary was a place of strict justice, a place of penitence and reformation. Unlike the corrupt, haphazard, filthy jails of the past, the penitentiary was a place of strict justice, a place of penitence and reformation.

Regimentation and uniformity: when Ma.s.sachusetts converted its own state prison to the Auburn method, in the late 1820s, it specified detail after detail: each year a convict was to be allowed "one pair of thick pantaloons, one thick jacket, one pair of thin pantaloons, one thin jacket, two pairs of shoes, two pairs of socks, three shirts, and two blankets, all of a coa.r.s.e kind." The law specified, too, the daily ration, down to an allowance of "two ounces of black pepper," for every hundred rations. 80 80 The daily allowance at Sing Sing was similarly specified; six pounds, nine ounces of food a day, beef and pork, flour, mush, mola.s.ses and potatoes. The daily allowance at Sing Sing was similarly specified; six pounds, nine ounces of food a day, beef and pork, flour, mush, mola.s.ses and potatoes.81 Every detail, every item of discipline, every step of the daily regimen, was part of the plan of punishment and reformation. Every detail, every item of discipline, every step of the daily regimen, was part of the plan of punishment and reformation.

Beaumont and De Tocqueville strongly believed in the system, as did almost all the prison reformers of the day. The prison was stem but effective medicine. Men turned to crime because of their defective background, their weak wills, their bad society. The prison cured these problems. It provided the missing training, the missing backbone. It was a caricature of the unyielding, disciplined, incorruptible family that the prisoners had never had for themselves.

There were dissenters, but they were not penologists. Charles d.i.c.kens, who visited the great Philadelphia prison in the early 1840s, was horrified by what he saw: "Those who devised this system ... and those benevolent gentlemen who carry it into execution, do not know what ... they are doing." Prison life was nothing but torture and agony. "I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body." The wounds it inflicted "are not upon the surface, and it extorts few cries that human ears can hear"; but there was a "depth of terrible endurance ... which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature." The prisoners, who entered in black hoods, emblems of the "curtain dropped" between them "and the living world," were like men "buried alive; to be dug out in the slow round of years; and in the meantime dead to everything but torturing anxieties and horrible despair."82 The novelist's words ring truer today than De Tocqueville's, but it did not seem so at the time. The penitentiary system spread, though mostly in the North, and in fits and starts. What held it back was not humanity but stinginess and lethargy. When Beaumont and De Tocqueville observed the prison system in 1831, New York, with Auburn and Sing Sing, was very "advanced" in reform; but New Jersey, just across the river, had "retained all the vices of the ancient system." Ohio, despite a "mild" penal code, had "barbarous prisons." The two Frenchmen "deeply sighed" at the situation in Cincinnati; they found half of the prisoners chained in irons, "and the rest plunged into an infected dungeon." In New Orleans, men were locked "together with hogs, in the midst of all odors and nuisances," and chained "like ferocious beasts"; there was no attempt to make the criminals "better," but only to tame their "malice"; instead of "being corrected, they are rendered brutal."83 In the Ohio prison, where "prisoners of every variety of character" were "indiscriminately a.s.sociated," the prisoners, "as might naturally be expected," spent much of their time "in mutual contamination and in devising plans of escape." In the Ohio prison, where "prisoners of every variety of character" were "indiscriminately a.s.sociated," the prisoners, "as might naturally be expected," spent much of their time "in mutual contamination and in devising plans of escape."84 In the South, there was a fierce debate over the penitentiary system.85 South Carolina, perhaps the most conservative state in the slave belt, never built one. South Carolina, perhaps the most conservative state in the slave belt, never built one.q Whipping and shaming punishments (and the gallows) stayed on the books in South Carolina. The very arguments that made the prison seem preferable in the North, did not work in South Carolina, where "face-to-face contact remained important and where honor was accorded great protection." Whipping and shaming punishments (and the gallows) stayed on the books in South Carolina. The very arguments that made the prison seem preferable in the North, did not work in South Carolina, where "face-to-face contact remained important and where honor was accorded great protection."87 The more "primitive" punishments, in other words, survived in this more primitive section of the country. Here were the fewest cities, factories, mines. Traditional punishment suited this almost feudal social system: the honor code, shame and humiliation, corporal punishment. And for slaves, bodily punishment was considered most effective, and, in fact, downright indispensable. The more "primitive" punishments, in other words, survived in this more primitive section of the country. Here were the fewest cities, factories, mines. Traditional punishment suited this almost feudal social system: the honor code, shame and humiliation, corporal punishment. And for slaves, bodily punishment was considered most effective, and, in fact, downright indispensable.88 Of course, even in those states that had embraced the penitentiary system, the ancient jails survived, on the local or county level; and indeed they were infused with a new function. They were no longer merely holding pens but places of punishment; and this made their inadequacies stand out all the more: often they were filthy, degraded and degrading, poorly run, and cruel by omission or design. The city jail of Savannah, Georgia, according to a Superior Court grand jury, was "inhuman and demoralizing."89 The jail in Coosawatchie, South Carolina, was so bad that a contemporary said it was not necessary to "try a criminal there ... with a capital offense. All that was required was to put him in jail.... The State paid for a coffin, and saved the expenses of trial and execution." The jail in Coosawatchie, South Carolina, was so bad that a contemporary said it was not necessary to "try a criminal there ... with a capital offense. All that was required was to put him in jail.... The State paid for a coffin, and saved the expenses of trial and execution."90 As for the penitentiaries themselves, the system, even in the North, despite the great hopes and the fanfare, ended up as a failure. The cla.s.sic system melted away like winter snows. As a practical matter, it proved impossible to enforce the pure system of silence. It was gone in Ma.s.sachusetts by about 1850.91 Regimentation was probably also never quite so absolute as intended. Charles d.i.c.kens reported that one prisoner in Philadelphia "was allowed, as an indulgence, to keep rabbits," which was certainly not part of the original plan in all its purity. Regimentation was probably also never quite so absolute as intended. Charles d.i.c.kens reported that one prisoner in Philadelphia "was allowed, as an indulgence, to keep rabbits," which was certainly not part of the original plan in all its purity.92 By about the time of the Civil War, the penitentiary system as a whole had entered into a deep crisis. The dithyrambs of praise from Beaumont and De Tocqueville had come to seem utopian, naive. The ideals of the penitentiary system could not be carried out in practice; or at least they could not be sustained. Thus the stage was set for the next phase of reform. By about the time of the Civil War, the penitentiary system as a whole had entered into a deep crisis. The dithyrambs of praise from Beaumont and De Tocqueville had come to seem utopian, naive. The ideals of the penitentiary system could not be carried out in practice; or at least they could not be sustained. Thus the stage was set for the next phase of reform.

4.

POWER AND ITS VICTIMS.

IN EVERY SOCIETY, PEOPLE ARE RANKED IN A KIND OF PYRAMID, WITH A MORE or less clear top, middle, and bottom; probably in every society there are more people on the bottom than on the top; in every society there are definite rules about how and why one moves from bottom to top, or in the other direction, or whether it is possible to make certain moves at all. Every society, in short, has a structure, a system of stratification, a way of sorting people out among positions and roles.

Laws and legal inst.i.tutions are part of the system that keeps the structure in place, or allows it to change only in approved and patterned ways. The criminal justice system maintains the status quo. This may sound more sinister and oppressive than it needs to be. Most people, in most societies, want want the status quo, or parts of it. However small and pitiful their holdings, they want to keep what they have; they don't want other people to take their "property" by force. They want some kind of bodily security, too. But even if the legal system "neutrally" protects what people have, as well as their place on the pyramid, clearly some people are higher up and have more than others. Law protects power and property; it safeguards wealth; and, by the same token, it perpetuates the subordinate status of the people on the bottom. the status quo, or parts of it. However small and pitiful their holdings, they want to keep what they have; they don't want other people to take their "property" by force. They want some kind of bodily security, too. But even if the legal system "neutrally" protects what people have, as well as their place on the pyramid, clearly some people are higher up and have more than others. Law protects power and property; it safeguards wealth; and, by the same token, it perpetuates the subordinate status of the people on the bottom.

The American republic was supposed to be founded on justice, equality, opportunity. It had thrown off old yokes. Old types of authority were so many rotting corpses; the Americans buried them. Compared to much of the rest of the world, this was an amazing experiment in democracy-and in social mobility; these aspects of the social order affected every American inst.i.tution, from top to bottom, not least of all criminal justice.

But when we look back from where we sit today, with the wise cynicism of hindsight, we see the warts and the failures more clearly. We see a republic created, on the whole, by and for white Protestant men; behind the flag-waving and the Fourth of July parades, we see the hideous grinning faces of inequality, oppression, bia.s.ses overt and covert, cruelty, lack of understanding, intolerance. This was no pure or ideal democracy; far from it. It was a democracy of a.s.sumptions-a.s.sumptions about race, cla.s.s, gender, religion, and lifestyle-a democracy that rested on definite cultural postulates. If we put these postulates together, we can construct a more balanced picture of America: a half-democracy, an adolescent democracy, a smug democracy. Of course, people were aware of such blemishes as slavery (it was perfectly obvious); and it was a fact that women did not vote or take part in much of the system of American life. But most people probably thought these were natural, not artificial, hierarchies.

Natural or not, criminal justice followed, as it always did, the pattern of social norms. It fell, as it has always fallen, more heavily on the undercla.s.s, on the deviants, on the "outs." This is so almost by definition. Indeed, criminal law was (and is) part of the official process of labeling and identifying who is in and who is out, who is deviant and who is mainstream. Criminal justice was the strong arm of the stratification system. It was part of the process that made subordination real. And subordination was real, most notably, for American blacks; also for members of other minority races; and for the poor, the deviant, the unpopular.

Race In the southern colonies, and in the southern states, a large ma.s.s of black slaves made up the bottom layer of society. Slaves were defined in law as chattels-items of property. They could be bought and sold like cattle, or mortgaged, or given away. They themselves could own nothing. They could not legally marry or exercise any civil rights. They were subject, too, to draconian laws. After all, the very essence of slavery, the pillar on which it rested, was the master's absolute control of the body and soul of the slave. Both custom and law sh.o.r.ed up this system of control.

The criminal law of slavery was complex. As we have seen, each colony had developed a code of laws about master and slave. The northern codes, of course, came to an end when the norther