The Griswold Griswold case, for all its quirky language, seems to be snugly secure in the pantheon of legal doctrine; no one dares attack it, if only because the idea of making contraception a crime seems so out of the question in the 1990s. case, for all its quirky language, seems to be snugly secure in the pantheon of legal doctrine; no one dares attack it, if only because the idea of making contraception a crime seems so out of the question in the 1990s. Roe v. Wade Roe v. Wade is another story. Its later history, too, has been highly complex. The Court's decision in the case was a solid seven to two. But the controversy refused to die down. In the years after is another story. Its later history, too, has been highly complex. The Court's decision in the case was a solid seven to two. But the controversy refused to die down. In the years after Roe v. Wade Roe v. Wade, abortion moved, surprisingly, into the very center of the political stage. The decision was denounced and defended in terms that became more and more strident over the years. Republican Party platforms from 1980 on promised to amend the Const.i.tution "to restore protection of the right to life for unborn children." In the event, the Republicans, though they won three presidential elections, could not deliver on this promise.

The Supreme Court was a different matter. As old justices dropped off and Reagan and Bush appointees took their place, the Court moved to the right on this issue. In the eighties, the Court chipped steadily away at Roe v. Wade Roe v. Wade without actually overruling it, until the fate of the decision hung by a hair. Some states pa.s.sed repressive statutes, and challenges to these cases climbed inexorably toward the Court. In 1992, by the slimmest of margins, the Court reaffirmed the core idea of Roe and refused to overrule it. without actually overruling it, until the fate of the decision hung by a hair. Some states pa.s.sed repressive statutes, and challenges to these cases climbed inexorably toward the Court. In 1992, by the slimmest of margins, the Court reaffirmed the core idea of Roe and refused to overrule it.119 Pro-choice forces breathed a sigh of relief. Bush's defeat in November 1992 made Roe seem, for the moment, una.s.sailable. Pro-choice forces breathed a sigh of relief. Bush's defeat in November 1992 made Roe seem, for the moment, una.s.sailable.

Obscenity and p.o.r.nography How much control should law and authorities exercise over obscenity and p.o.r.nography-that is, over "dirty" books, pictures, and language? This is another old and th.o.r.n.y issue. It has a rather convoluted history, but, on the whole, twentieth-century law has followed one pretty clear trajectory: the law has gotten less and less harsh, more and more permissive. First soft core and then hard core have come leering out of the closet. But there have been countermovements, and a backlash-some of it from a fairly unexpected source.

In the nineteenth century, it was taken for granted that states and cities could put p.o.r.nography under the ban and punish people who made it or sold it. What pa.s.sed for obscene or p.o.r.nographic was a far cry from what would pa.s.s as such today. Works were banned that would not bring a blush to the cheek of the most delicate plant in our times. There were, in fact, few decided cases, perhaps because p.o.r.nography, though common enough, hardly dared show its face in public. p.o.r.nography was strictly underground. Like bodies, it was best kept under wraps. cr cr Victorian prudery and modesty made it impossible to discuss or portray many serious social issues. Literary quality or high purpose did not protect a book or play if it was "offensive." In 1905, George Bernard Shaw's play Mrs. Warren's Profession Mrs. Warren's Profession was banned in New Haven. When the play opened in New York, the police commissioner bought himself a box seat. After the curtain fell, he arrested the producer, the manager, and two actresses. In this instance, prudery lost its case; the New York Court of Special Sessions acquitted the defendants. The play, the court thought, was simply not obscene. was banned in New Haven. When the play opened in New York, the police commissioner bought himself a box seat. After the curtain fell, he arrested the producer, the manager, and two actresses. In this instance, prudery lost its case; the New York Court of Special Sessions acquitted the defendants. The play, the court thought, was simply not obscene.122cs James Joyce's Ulysses Ulysses was the subject of a landmark decision in 1933. Random House wanted to publish an American edition of this twentieth-century masterpiece, but Joyce was pretty strong medicine for the delicate sensibilities of official America. The publisher tested the waters by importing a copy, which was seized by customs; the issue of obscenity was then tried in a federal court in New York. Judge John M. Woolsey gave the novel a clean bill of (legal) health. The book contained words generally considered "dirty words" and had graphic descriptions of s.e.x. But it was not written with "the leer of the sensualist," and it had no "dirt for dirt's sake." was the subject of a landmark decision in 1933. Random House wanted to publish an American edition of this twentieth-century masterpiece, but Joyce was pretty strong medicine for the delicate sensibilities of official America. The publisher tested the waters by importing a copy, which was seized by customs; the issue of obscenity was then tried in a federal court in New York. Judge John M. Woolsey gave the novel a clean bill of (legal) health. The book contained words generally considered "dirty words" and had graphic descriptions of s.e.x. But it was not written with "the leer of the sensualist," and it had no "dirt for dirt's sake."124 The Court of Appeals affirmed this decision. The Court of Appeals affirmed this decision.ct The Ulysses Ulysses case was ahead of its time. The s.m.u.t police were still in the saddle in Ma.s.sachusetts. In 1930, the Supreme Judicial Court of Ma.s.sachusetts upheld the conviction of a bookseller in Cambridge who sold a copy of case was ahead of its time. The s.m.u.t police were still in the saddle in Ma.s.sachusetts. In 1930, the Supreme Judicial Court of Ma.s.sachusetts upheld the conviction of a bookseller in Cambridge who sold a copy of Lady Chatterley's Lover Lady Chatterley's Lover to an investigator from the Watch and Ward Society. to an investigator from the Watch and Ward Society.125 At least At least Lady Chatterley Lady Chatterley was a shocker in its day. What, however, can be said about the conviction-same court, same year-of one Friede? was a shocker in its day. What, however, can be said about the conviction-same court, same year-of one Friede?126 Friede had sold a book to Daniel J. Hines, a lieutenant of the Boston Police Department (we can only guess at his literary tastes), which was "obscene" and "indecent" and might corrupt the young. The book in question was Theodore Dreiser's Friede had sold a book to Daniel J. Hines, a lieutenant of the Boston Police Department (we can only guess at his literary tastes), which was "obscene" and "indecent" and might corrupt the young. The book in question was Theodore Dreiser's An American Tragedy An American Tragedy, a novel that would be rated, today, PG at worst. Until the thirties, the U.S. Customs Department, ever vigilant, banned works by such p.o.r.nographers as Aristophanes, Balzac, Defoe (Moll Flanders (Moll Flanders and and Roxana), Roxana), Flaubert, and Voltaire Flaubert, and Voltaire (Candide). (Candide).127 The venerable First Amendment protects freedom of speech.cu It does not protect "obscenity," but where should we draw the line? In fact, until well into the twentieth century, there was very little decisional law on this question. No case reached the Supreme Court before the end of the Second World War. It does not protect "obscenity," but where should we draw the line? In fact, until well into the twentieth century, there was very little decisional law on this question. No case reached the Supreme Court before the end of the Second World War.

In fact, there was no definite ruling on obscenity until 1957, in Roth v. United v. United States. States.128cv Defendant Roth had been convicted of violating the federal law against mailing "obscene" material. The Supreme Court affirmed his conviction. But the opinion of the Court left the issue unresolved, to say the least. The case pointed in two directions at once. On the one hand, it upheld the right to punish makers and sellers of obscene literature. Free speech had limits, and obscenity was outside the boundaries. But the Court did not do much of a job of Defendant Roth had been convicted of violating the federal law against mailing "obscene" material. The Supreme Court affirmed his conviction. But the opinion of the Court left the issue unresolved, to say the least. The case pointed in two directions at once. On the one hand, it upheld the right to punish makers and sellers of obscene literature. Free speech had limits, and obscenity was outside the boundaries. But the Court did not do much of a job of defining defining obscenity. The best test Justice Brennan could come up with was this: Would "the average person" think that the "dominant theme of the material" was its appeal "to prurient interest"? obscenity. The best test Justice Brennan could come up with was this: Would "the average person" think that the "dominant theme of the material" was its appeal "to prurient interest"?

In 1966, the Supreme Court faced that formidable woman, f.a.n.n.y Hill, heroine of John Cleland's p.o.r.nographic cla.s.sic, Memoirs of a Woman of Pleasure Memoirs of a Woman of Pleasure. This famous book was written in 1750, which makes it somewhat older than the First Amendment itself. For more than two hundred years, it had an underground or semiunderground existence, circulating from clammy hand to clammy hand. Now, in the 1960s, it emerged into the sunshine, published by a reputable publishing house, endorsed as serious literature (of a minor sort) by various professors of English-but banned as obscene in Ma.s.sachusetts. The Supreme Court disagreed with Ma.s.sachusetts. Justice Brennan now came up with a stricter test: a "book cannot be proscribed unless it is found to be utterly without redeeming social value," even if it is "patently offensive." 130 130 Whatever the formula, the times were definitely changing. This was not a book like Whatever the formula, the times were definitely changing. This was not a book like An American Tragedy, An American Tragedy, or even or even Ulysses; Ulysses; it was written precisely to stir up "prurient interests," and its main defense was good English and two hundred years under its belt. Respectable opinion had changed since f.a.n.n.y Hill first saw the light of day. The record showed, according to Justice Douglas, that when the book appeared boldly in public, in 1963, there was "an unusually large number of orders ... placed by universities and libraries," and that the "Library of Congress requested the right to translate the book into Braille." it was written precisely to stir up "prurient interests," and its main defense was good English and two hundred years under its belt. Respectable opinion had changed since f.a.n.n.y Hill first saw the light of day. The record showed, according to Justice Douglas, that when the book appeared boldly in public, in 1963, there was "an unusually large number of orders ... placed by universities and libraries," and that the "Library of Congress requested the right to translate the book into Braille."131 f.a.n.n.y Hill's victory was definitely a straw in the wind. The Supreme Court has been, on the whole, quite hostile to censorship disguised as antipomography. The day is past when bluenoses can freely use obscenity laws to suppress serious books. But the main source of change is not the courts, but society itself, which has become vastly more tolerant of s.e.xual expression. s.e.x and the body are not secret subjects anymore. People say and do things on stage, in the movies, and in literature that would have been unthinkable a century ago-even a generation ago. Indeed today's "normal" Hollywood movie has love scenes and "dirty" words that were taboo as recently as the fifties. An occasional skirmish between parents and teachers in a high school library is about all that remains of the Watch and Ward mentality. There are rumblings about TV and rock lyrics, and puffs of smoke from the Bible Belt, but (formal) censorship of anything but triple-X, hard-core p.o.r.nography is completely dead. cw cw Today, there are tons of books, magazines, plays, and movies that n.o.body would claim any value for as literature or anything else. Their value is that they are s.e.xually exciting, period. Does anything anything go? In general, courts still find the issue of out-and-out hard-core p.o.r.nography somewhat troubling. Judges and justices have gone this way and that, searching for the elusive "bright line," the magic formula, or even a halfway, wishy-washy formulation, to serve as a legal "test" for what can or cannot be banned. They have never found one. Legal arguments have marched up one side of the hill, so to speak, and down the other. All one can say is that there is something called "obscenity," but what it is, legally speaking, n.o.body really knows. go? In general, courts still find the issue of out-and-out hard-core p.o.r.nography somewhat troubling. Judges and justices have gone this way and that, searching for the elusive "bright line," the magic formula, or even a halfway, wishy-washy formulation, to serve as a legal "test" for what can or cannot be banned. They have never found one. Legal arguments have marched up one side of the hill, so to speak, and down the other. All one can say is that there is something called "obscenity," but what it is, legally speaking, n.o.body really knows.

Does it depend on community standards? If so, prudery is in deep trouble. The public, not the courts, has set the trends. The reality is, s.e.x magazines are on sale in drugstores and bookstores; they lie around on coffee tables and in barbershops. The normal fare goes beyond anything the Victorians dared think of in their most fevered erotic fantasies. In every major city (and some minor ones), there are theaters that show X-rated movies-movies that leave nothing to the imagination, and which show every conceivable permutation and combination of s.e.x in mind-boggling detail and repet.i.tion. In most cities, the police do nothing about adult bookshops, adult movie houses (both gay and straight), and a.s.sorted s.e.x shops. In smaller cities and towns, there are occasional crackdowns, but the general atmosphere is inescapably permissive.

The fight against "filth" has never abated, of course, although these have been lean years for upholders of the faith. In the most recent generation, religious and conservative opposition to p.o.r.nography has gained what seems an unlikely ally. One wing of the feminist movement joined in the battle against p.o.r.nography. The real problem of p.o.r.nography, according to Catherine MacKinnon and others, is that it is part of a system of gender oppression: p.o.r.nography displays, and produces, the s.e.xual subordination of women. MacKinnon and Andrea Dworkin drafted a model ordinance that attacked p.o.r.nography on this basis. The ordinance defined p.o.r.nography as the "graphic s.e.xually explicit subordination of women, whether in pictures or in words." "p.o.r.nography," to be subject to the ordinance, had to contain one or more of certain elements: for example, women "are presented as s.e.xual objects who enjoy pain or humiliation," or who like to be raped, or are shown as s.e.xual objects "tied up or cut up or mutilated," or "penetrated by objects or animals," or in "scenarios of degradation, injury, abas.e.m.e.nt, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions s.e.xual," or presented "as s.e.xual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display."132 Minneapolis adopted the ordinance, but its mayor vetoed it. The proponents had more luck in Indianapolis, but the ordinance was promptly challenged in the courts. In 1985, the Court of Appeals for the Seventh Circuit found the Indianapolis ordinance unconst.i.tutional. Judge Easterbrook, writing for the court, called the ordinance a form of "thought control." It establishes, he said, an "approved" view of women, "of how they may react to s.e.xual encounters, of how the s.e.xes may relate to each other." Those who "espouse the approved view may use s.e.xual images"; others may not. This, said the judge, could not be const.i.tutionally done.133 The battlers on behalf of the ordinance have not, of course, given up. But prospects for success, in this country, do not seem very bright. This is because the climate of opinion is essentially unfavorable. Whatever the merits of the feminist case against p.o.r.nography, any any significant move to repress "dirty" books, movies, and pictures just does not seem to be in the cards in the nineties. This is surely true of big cities-small towns and suburbs may be a different matter. It is not easy to disentangle the kind of p.o.r.nography MacKinnon opposes from the freedom of s.e.xual expression in general. Nor does it seem likely that the country as a whole will turn back to the way things were in the past. The era of the self, the antirepressive era, is not minded to go in for banning movies and books. Obscenity and p.o.r.nography, it seems, are here to stay. significant move to repress "dirty" books, movies, and pictures just does not seem to be in the cards in the nineties. This is surely true of big cities-small towns and suburbs may be a different matter. It is not easy to disentangle the kind of p.o.r.nography MacKinnon opposes from the freedom of s.e.xual expression in general. Nor does it seem likely that the country as a whole will turn back to the way things were in the past. The era of the self, the antirepressive era, is not minded to go in for banning movies and books. Obscenity and p.o.r.nography, it seems, are here to stay.

Drug Laws: The Great Exception The counterrevolution we have described has taken its time in some fields, gone rapidly in others, zigged a bit and zagged a bit; but the general trend has been crystal clear. The great exception to the trend concems narcotics-drugs. In the nineteenth century, as we saw, drug laws hardly mattered. There were scattered bits of legislation here and there, aimed at "opium dens" and the like, but, in general, addiction was not a crime, nor was the plain, unvarnished sale or use of narcotics. This situation changed radically in the twentieth century.

The first rumblings were in the state legislatures. A New York law of 1905 declared cocaine, morphine, and opium to be "poisons," not to be sold at retail without a warning label.134 Congress pa.s.sed an Opium Exclusion Act in 1909. Congress pa.s.sed an Opium Exclusion Act in 1909.135 But the first major landmark of the drug wars was the Harrison Narcotic Drug Act, a federal statute pa.s.sed in 1914. But the first major landmark of the drug wars was the Harrison Narcotic Drug Act, a federal statute pa.s.sed in 1914.136 This was, in form, a tax statute, but the aim was to put an end to the drug traffic. It applied to opium and its derivatives, and also, very notably, to "coca leaves" and This was, in form, a tax statute, but the aim was to put an end to the drug traffic. It applied to opium and its derivatives, and also, very notably, to "coca leaves" and their their derivatives. This was a significant step; it put cocaine in the same pariah cla.s.s as heroin and morphine. derivatives. This was a significant step; it put cocaine in the same pariah cla.s.s as heroin and morphine.

The Harrison Act was not in itself particularly controversial. Rather, as one scholar has put it, it seemed like a "routine slap at a moral evil." n.o.body defended defended drug use. The road of addiction seemed to lead downward, almost inevitably, to crime and insanity. Moreover, drugs were a.s.sociated with unpopular subgroups. As David Musto observes, "Cocaine raised the specter of the wild Negro, opium the devious Chinese, morphine the tramps in the slums." These drugs were like infectious pestilences; they were liable to burst out of their dens and hovels and spread among respectable people unless they were firmly dealt with. drug use. The road of addiction seemed to lead downward, almost inevitably, to crime and insanity. Moreover, drugs were a.s.sociated with unpopular subgroups. As David Musto observes, "Cocaine raised the specter of the wild Negro, opium the devious Chinese, morphine the tramps in the slums." These drugs were like infectious pestilences; they were liable to burst out of their dens and hovels and spread among respectable people unless they were firmly dealt with.137 Webb v. United States (1919) was a test case. Webb was a practicing physician in Memphis, Tennessee; Goldbaum was a retail druggist in that city. Webb prescribed morphine for habitual users; Goldbaum filled these prescriptions. Was this acceptable under the Harrison Act? The Supreme Court, in a brief opinion, said flatly no. To prescribe drugs not as a "cure" but to keep the user "comfortable by maintaining his customary use" was a "perversion" of the meaning of the act. (1919) was a test case. Webb was a practicing physician in Memphis, Tennessee; Goldbaum was a retail druggist in that city. Webb prescribed morphine for habitual users; Goldbaum filled these prescriptions. Was this acceptable under the Harrison Act? The Supreme Court, in a brief opinion, said flatly no. To prescribe drugs not as a "cure" but to keep the user "comfortable by maintaining his customary use" was a "perversion" of the meaning of the act.138 This was not entirely unreasonable, as a reading of the statute. There were certainly abuses. One reads accounts of "dope doctors" who, for a trivial fee, were pleased to write out prescriptions for drugs.139 The Minnesota drug statute, pa.s.sed in 1915, made it unlawful to "prescribe for the use of any habitual user." The Minnesota drug statute, pa.s.sed in 1915, made it unlawful to "prescribe for the use of any habitual user."140Still, the net effect of Webb was to make addiction itself a crime; to put the drug trade, and drug use, completely beyond the pale, and on a national level.

At first, to be sure, the drug problem did not loom very large in national consciousness. The Columbus, Ohio, police, who arrested almost two thousand people for liquor violations in 1929, made exactly nine arrests for "violation of narcotic laws."141 The federal government was somewhat more active. More than half of the women inmates of the Federal Industrial Inst.i.tution for Women, in Alderson, West Virginia, in October 1935, were in prison on narcotics charges (264 out of 505). The federal government was somewhat more active. More than half of the women inmates of the Federal Industrial Inst.i.tution for Women, in Alderson, West Virginia, in October 1935, were in prison on narcotics charges (264 out of 505).142 Congress established a Federal Bureau of Narcotics in 1930. Harry Anslinger directed the Bureau. He believed, quite pa.s.sionately, that the drug trade was a ma.s.sive national threat. Congress established a Federal Bureau of Narcotics in 1930. Harry Anslinger directed the Bureau. He believed, quite pa.s.sionately, that the drug trade was a ma.s.sive national threat.143 The Bureau was a tireless source of propaganda against marijuana and the way it destroyed young minds. The Marijuana Tax Act of 1937 added this substance to the list of the d.a.m.ned. The Bureau was a tireless source of propaganda against marijuana and the way it destroyed young minds. The Marijuana Tax Act of 1937 added this substance to the list of the d.a.m.ned.144 Since then, the federal government, and most state governments, have never looked back, never wavered, always stuck like glue to a single policy of prohibition, prohibition, and more prohibition: interdiction at the source, the arrest of users and pushers, draconian punishments, and, on the official level, no understanding, no mercy, no letup in the war. In the sixties, marijuana and harder drugs burst out of the ethnic enclaves; they became part of the lifestyle of young rebels and would-be rebels. This generated still more panic.

Because of this national panic (some of it justified) and because any major problem in our day is a federal federal problem, the federal government was sucked further and further into the pit of drug-law enforcement. In 1973, Congress created a Drug Enforcement Administration. The size of this agency has swollen in the last two decades. The "war on drugs" now consumes billions of dollars every year; it is fought in the streets, in the air, along the coasts, and even in foreign countries. problem, the federal government was sucked further and further into the pit of drug-law enforcement. In 1973, Congress created a Drug Enforcement Administration. The size of this agency has swollen in the last two decades. The "war on drugs" now consumes billions of dollars every year; it is fought in the streets, in the air, along the coasts, and even in foreign countries.

The public hysteria over drugs is not, of course, totally wrongheaded; drug addiction and its criminal consequences are worth worrying about. But perhaps the question to ask is: Why, in an age that has relaxed so noticeably its att.i.tudes on s.e.x, vice, and gambling, does drug prohibition still stand so firm? The average person seems to a.s.sociate drugs with certain enormous evils: the corruption of the young (their own children, perhaps); the wasted, impure lives of the urban undercla.s.s, much of it black or Hispanic, and the explosion of violent crime, mostly in the cities. Nothing would be worse than condoning the evils of drugs.

Of course, the programs, state and federal, have been largely exercises in futility. Sane voices speak out from time to time for a more rational course of action.145 But n.o.body listens. There is political capital in fighting a war on drugs. A number of states have relaxed their sanctions against use of marijuana. But n.o.body listens. There is political capital in fighting a war on drugs. A number of states have relaxed their sanctions against use of marijuana.146 But few public figures dare speak out for legalization of hard drugs, or even for a healthy debate on the subject. Draconian force is the only language the drug enforcers speak. Mothers who smoke crack are arrested. Dealers and users by the thousands are swept up off the streets. Many people sincerely believe that addicts are responsible for most of our violent crime: they rob to get money for a high; and on this high they rape and rob and kill, wantonly, cruelly. Certainly, turf wars and drug deals add hundreds of victims to urban slaughter. Force generates force; war breeds counterwar. The prisons are jammed top to bottom with men and women convicted under drug laws. But few public figures dare speak out for legalization of hard drugs, or even for a healthy debate on the subject. Draconian force is the only language the drug enforcers speak. Mothers who smoke crack are arrested. Dealers and users by the thousands are swept up off the streets. Many people sincerely believe that addicts are responsible for most of our violent crime: they rob to get money for a high; and on this high they rape and rob and kill, wantonly, cruelly. Certainly, turf wars and drug deals add hundreds of victims to urban slaughter. Force generates force; war breeds counterwar. The prisons are jammed top to bottom with men and women convicted under drug laws. cx cx Is this really the only way? Is this really the only way?

16.

THE MECHANICS OF POWER: SOME TWENTIETH-CENTURY ASPECTS.

The Modern Police The master trend in police history has been toward what we have called, somewhat loosely, professionalization. It is no longer the case that anybody who knows an alderman and is young and reasonably healthy can become a police officer. Even in the nineteenth century, there was a trend toward upgrading police work, training the men, and holding them to certain standards. This trend continued in the twentieth century. Police work has also become far more specialized.

The job itself got harder, more complex. For one thing, as time went on, there was more to it than strolling around the streets with a billy club. The old-time policeman or detective did not have to know much of anything about crime-fighting devices. There was no such thing as forensic science. There were no radios, no telephones, no equipment of any kind. Scientific detection was, essentially, a twentieth-century invention. The Bertillon system (as we have seen in chapter 10) came in toward the end of the nineteenth century in Europe; and fingerprinting followed close on its heels. A detective from Scotland Yard demonstrated the technique at the St. Louis World's Fair, in 1904. St. Louis established the first fingerprint bureau in America.1 The automobile also had an important impact on the policeman. The ordinary cop had once simply trudged his way through his "beat"; by the 1960s, he (or she) was far more likely to be sitting in a patrol car-so much so, that in the eighties there was a move to get the police out of their cars and back onto the sidewalks. Radios, telephones, and walkietalkies became standard equipment for police. In the early thirties, systems of radio communications were set up in cities all over the country. In 1934, Cincinnati established a modem crime laboratory, with ballistics equipment, X ray, and a polygraph, among other things. In 1935, the police department of Kansas City, Missouri, put two-way radios into patrol cars.2 Inevitably, such "improvements" changed the nature of police work. A cop on foot was a familiar cop, a neighborhood cop; he knew his beat, and the beat knew him. He was also pretty much on his own. Headquarters was far away; he was beyond its beck and call. But now a ton or more of steel separated the motorized officer from the community; police cruising in patrol cars were strangers to the dark, dangerous streets; these police tended to feel alien, beleaguered; the locals, for their part, thought of them as an outside, occupying force.

A policeman in a car, moreover, was, for the most part, a "reactive" patroller. He went where he was "dispatched." Mr. and Ms. Public called the police, perhaps on an emergency line. Headquarters radioed to officers in cars, telling them where they were needed. Consequently, the police spent less time "trawling" for drunks, disorderly persons, and the like.3 At the same time, the new communications technology made it easier for headquarters to control and to monitor patrolmen from a distance. Rank and file police drew closer to headquarters, but further psychologically and socially from the men, women, and children in the area they were supposed to patrol. At the same time, the new communications technology made it easier for headquarters to control and to monitor patrolmen from a distance. Rank and file police drew closer to headquarters, but further psychologically and socially from the men, women, and children in the area they were supposed to patrol.4 This increase in social distance was in a way inevitable. Technology should not get all the blame. Americans have always been rolling stones. In the twentieth century, more and more, they tended to roll from the countryside into the big cities; and from neighborhood to neighborhood, and city to city. It was a transient population, more and more suspicious of authority. Police were especially distant, socially speaking, from the folks who lived in the most crime-ridden and problematic areas. They were also likely to be a different race.

This social distance was magnified by other ways in which the police became more professional: police had to be better educated, and they had to pa.s.s tests, like other civil servants. They had to know something about their jobs. In the first decades of the century, August Vollmer, Police Chief of Berkeley, California, was a leader in the movement to upgrade the quality of the police. In 1916, Vollmer developed the "first formal academic law-enforcement program," at the University of California at Berkeley. The program began to turn out "college cops" for Vollmer at a time when most policemen did not even have a high school diploma.5 One of Vollmer's most notable disciples was O. W. Wilson. He embodied the mixture of practical experience and university training that Vollmer pioneered. Wilson, the son of a Norwegian-American lawyer, started out as a patrolman in Berkeley. In 1928, he took over the police department of Wichita, Kansas, where he battled against corruption and preached the gospel of motorized patrol cars. At various times in his career he taught at Berkeley and Harvard, and served as a consultant to a flock of police forces.6 In 1960, in the wake of a police scandal that was sordid even by Chicago standards, Mayor Richard Daley appointed Wilson superintendent of police with the mandate to clean out the Augean stables of Chicago's force. In 1960, in the wake of a police scandal that was sordid even by Chicago standards, Mayor Richard Daley appointed Wilson superintendent of police with the mandate to clean out the Augean stables of Chicago's force.7 Professionalizing did not come easily; or at one great gulp. An important aspect of the process was to cut the cords that tied the police to local politicians. The days when aldermen simply signed men up pa.s.sed into history. The police became part of the civil service in New York in 1883, in Chicago in 1895. By 1915, 122 of the nation's 204 largest police departments were under civil service.8 Of course, the requirements of the job were not that onerous. In Boston, in 1930, a budding policeman had to be not less than twenty-five nor more than thirty-five years old, "not less than 5 feet 8 inches in height in bare feet," and "not less than 135 pounds without clothing." Boston also required at least an elementary school education, with extra points for anything beyond that. Of course, the policeman also had to pa.s.s a civil service exam. Of course, the requirements of the job were not that onerous. In Boston, in 1930, a budding policeman had to be not less than twenty-five nor more than thirty-five years old, "not less than 5 feet 8 inches in height in bare feet," and "not less than 135 pounds without clothing." Boston also required at least an elementary school education, with extra points for anything beyond that. Of course, the policeman also had to pa.s.s a civil service exam.9 Despite these trends, the old problems still haunted the police: problems of discipline, graft, and corruption-and of police brutality. The Wickersham Commission, in its report on the police, more than thirty years after the Lexow Commission (see chapter 7), recommended an end to the "corrupting influence of politics"-a pious recommendation unlikely ever to be fully realized. The commission called for better training, advanced technology, good record-keeping, and state bureaus of criminal investigation and information.10 A lot was done over the years along these lines, but politics, graft, and corruption could not be exorcised with incantations, nor even with moderate reforms. A lot was done over the years along these lines, but politics, graft, and corruption could not be exorcised with incantations, nor even with moderate reforms.

Some of the reasons are hardly mysterious. There is a deep hunger for the illegal, and a lot of money chasing illegality-the most obvious case is drugs; and there are whole communities where support for official norms, and for what the police have to do, is shallow or downright negative. Under such conditions, a department of the pure and uncorrupt cannot exist.

Another issue is the norms of the police themselves. The police are a tight, beleaguered group. They develop their own subculture, and it is a subculture of tough, macho conservatism. There are few card-carrying members of the American Civil Liberties Union among the police. The police do dirty, dangerous work, and they can hardly be expected to smother their "enemies" with empathy. They see human beings at their worst, and that certainly colors their philosophy of life.

They also believe in fighting fire with fire. Police brutality was part of a more general system of police power. It rested on a simple credo: the battalions of law and order had the right, if not the duty, to be tough as nails with criminals. Force was the only language the criminal understood. Force was also necessary in self-defense, when "dealing with thugs and gunmen," as the mayor of New York put it in December 1914. How this worked out in practice is suggested by a minor incident that month: Patrolman McCloy, in Brooklyn, ran up against an eighteen-year old no-good, Peter Gaimano, who struck at him with a blackjack and ran. McCloy caught up with Gaimano and his cronies, and wielded his nightstick to "good advantage." He "dragged Gaimano to the street, and was on his way to the station house when the gangsters seemed to swarm from all directions. He used his night stick so efficiently that the ruffians fled." But all this time Gaimano was "unconscious" and had to be hospitalized.11 An outside observer might wonder whether McCloy hadn't used a bit more force than was called for. The police also carried guns, and were not afraid to use them on "thugs." An outside observer might wonder whether McCloy hadn't used a bit more force than was called for. The police also carried guns, and were not afraid to use them on "thugs."

Police brutality has a long, dishonorable history, not only on the street, but also in the station house. Here was the domain of the "third degree"-various ways of getting information out of suspects by inflicting "suffering, physical or mental."12 This rather bland phrase conceals a whole world of torture and abuse-beatings with nightsticks and rubber hoses, and sometimes worse. Perhaps one of the most gruesome examples, if the account can be trusted, comes from the twenties in New York City. The police had before them a burly man, a Polish-American, strongly suspected of beating another man to within an inch of his life. The rubber hoses were getting the police exactly nowhere. So they called in a dentist, a "police buff," who "carefully selected an old dull drilling burr and began slowly drilling into the pulp chamber of a lower rear molar in the region of a nerve." This technique did the trick; the ac cused began to sing. This rather bland phrase conceals a whole world of torture and abuse-beatings with nightsticks and rubber hoses, and sometimes worse. Perhaps one of the most gruesome examples, if the account can be trusted, comes from the twenties in New York City. The police had before them a burly man, a Polish-American, strongly suspected of beating another man to within an inch of his life. The rubber hoses were getting the police exactly nowhere. So they called in a dentist, a "police buff," who "carefully selected an old dull drilling burr and began slowly drilling into the pulp chamber of a lower rear molar in the region of a nerve." This technique did the trick; the ac cused began to sing.13 Commission followed commission, investigation followed investigation; but brutality always managed to survive. The Wickersham Commission devoted one of its reports ("Lawlessness in Law Enforcement") to the problem of brutality and the third degree. The commission doc.u.mented and exposed many horrible examples. But it was not easy to attack the police ethos, to puncture the subculture, or to convince the police that force was unnecessary. Moreover, the police enjoyed an enormous amount of discretion as far as the lower levels of society were concerned. Southern blacks were always fair game. And what the police did to drunks, hoboes, and the poor in general was largely invisible. It happened in the back alleys, in the station houses, on the streets, out of sight of the bright lights and boulevards of due process. In the realm that was theirs, the police were were the law; they beat, they hara.s.sed, they hounded drunks, prost.i.tutes, b.u.ms. And they arrested thousands of men and women every year for vagrancy, loitering, and similar "crimes"; or simply hauled them in "on suspicion." the law; they beat, they hara.s.sed, they hounded drunks, prost.i.tutes, b.u.ms. And they arrested thousands of men and women every year for vagrancy, loitering, and similar "crimes"; or simply hauled them in "on suspicion."

Often, there was no legal basis for these dragnet and residual arrests. In 1930, a New York businessman, a Mr. Turner, went to Dallas on business. He tried to make a phone call from a public phone booth; the line was busy. He went to a second booth, then a third-still busy. A policeman watched him go from booth to booth and decided the man was a thief: he "had entered three booths-he must have been pilfering nickels." Turner was arrested-over his protest, of course-and held incommunicado for forty-eight hours. He was, "to all intents and purposes," simply "kidnapped."14 After this unpleasantness, the police let Turner go; but unlike the thousands of drunks and vagrants, he screamed b.l.o.o.d.y murder. It turned out that the Dallas police had arrested 8,526 people in 1929 "on suspicion"; less than 5 percent of them were charged with a crime. There was something of a public scandal over this "trial-and-error" style of crime control, but the police chief of Dallas was baffled by the uproar. What was all the fuss about? The practice, he admitted, "is not legal. But," he added, apparently without any sense of irony, "illegality is necessary to preserve legality."15 At the turn of the century, a police captain told young Cornelius Willemse, new on the New York City police force, that his job was to "protect the good people and treat the crooks rough." The nightstick was not to be used on "inoffensive citizens," but rather on "thieves and crooks." As to "real bad crooks," any force was justified: "They're enemies of society and our common foe."16 The rules of restraint, in short, did not apply to these "crooks"; or, for that matter, to sc.u.m of all sorts. There seems little doubt that most of the white, middle-cla.s.s public agreed with this (and still does). It is what one might call the "sausage theory" of law and order: so long as the taste is good and the results are right, we would just as soon stay out of the kitchen and not know what went into the sausage. The rules of restraint, in short, did not apply to these "crooks"; or, for that matter, to sc.u.m of all sorts. There seems little doubt that most of the white, middle-cla.s.s public agreed with this (and still does). It is what one might call the "sausage theory" of law and order: so long as the taste is good and the results are right, we would just as soon stay out of the kitchen and not know what went into the sausage.cy Or perhaps it is another example of the double standard in criminal justice. But this two-faced system was not a historical accident, and tc call it "hypocrisy" is no help in understanding it. It is a system of social control, a system that demands high ideals; but at the same time demands deviations from those very same ideals-for a good reason of course. It also a.s.sumes (unconsciously) that the criminal justice system is better off with a double system, than at either alternative pole: the pole of pure due process, that is, the pole of the bleeding hearts; and the pole of the raw and brutal "police state."

The double standard was at work in many, though not all, police functions. It was very noticeable in the "trawling" function-keeping order in public places. There was less of a double standard for traffic crimes and traffic control-that staple of twentieth-century police work-partly because drivers of cars were, on the whole, the better cla.s.s of citizen. Even when dealing with drunks, the police were often careful to distinguish between respectable drunks, middle-cla.s.s men on a binge; and the dirty common drunk.

Police work was thus drenched through and through with cla.s.s consciousness. Leonhard Fuld, writing in 1909, deplored the fact that even "the most highly respectable member of the community, of exemplary character, habits, and a.s.sociations," ran the danger of arrest on a misdemeanor charge, which meant placement in a "station-house cell together with felons, drunkards, and men guilty of every vice. A night spent in such surroundings will inflict more hardship and suffering upon an honest man than almost any indignity to which he might be subjected." 17 17In fact, police departments (and police courts) tried to avoid undue discomfort to the comfortable cla.s.ses. One example ill.u.s.trates this point. In San Diego, California, in 1915, when drunks were arrested, and held overnight, they went to "Sunrise Court." Here, if they had no police record or prior convictions, and if they had a job and family, they were released. The rest, of course, were tramps or b.u.ms or drunkards, and they got quite different treatment.18 Personnel In the twentieth century, there were major changes in police organization and personnel. We have already noted that police were put under civil service and made to pa.s.s tests and get training. For their part, the police began to form unions in some cities. In the late nineteenth century, there had been a certain number of "benevolent societies" and fraternal organizations among the police. But only in 1919 did the American Federation of Labor (AFL), under "gra.s.sroots pressure," endorse the idea of actual unions for police. The AFL quickly chartered some thirty locals.19 But the course of police unionism did not run smooth. In Boston, the police, to the disgust of city officials, went over to the union. On September 9, 1919, most of the men walked off the job.20 This was the famous Boston Police Strike. It caused a tremendous furor. While the cat was away, some mice went in for looting and violence. Newspapers all over the country hysterically magnified what was happening in Boston. The This was the famous Boston Police Strike. It caused a tremendous furor. While the cat was away, some mice went in for looting and violence. Newspapers all over the country hysterically magnified what was happening in Boston. The San Francisco Examiner San Francisco Examiner cried out "Gangs Range Streets, Women Are Attacked, Stores Are Robbed"; the cried out "Gangs Range Streets, Women Are Attacked, Stores Are Robbed"; the Wall Street Journal Wall Street Journal went so far as to predict that "Lenin and Trotsky [were] on their way." went so far as to predict that "Lenin and Trotsky [were] on their way."21In Boston, a volunteer force, including students and faculty from Harvard, tried to fill the gap, and Governor Calvin Coolidge called out the militia. The strike was smashed, the strikers lost their jobs, and Coolidge went on to the White House, where he compiled an enviable record of torpor. The union movement suffered a setback it took decades to recover from.22 In one important regard, police in the twentieth century did draw closer to local communities and the general population. For a long time, the stereotype of a policeman had been the Irish cop: very male, very white. In the nineteenth century, a certain number of "matrons" had been attached to the police; but women on the regular force were out of the question. Mrs. Lola Baldwin, of Portland, Oregon, early in the twentieth century, was apparently the first non-male to serve as a regular member of a police force. In 1910, Los Angeles took the plunge: Mrs. Alice Stebbins Wells joined the department. Mrs. Wells took an active role in the national movement to add women to the ranks of the police. 23 23 By 1914, the Los Angeles department had eight policewomen. By 1914, the Los Angeles department had eight policewomen.24 Many other cities hired women after 1910, but the numbers were typically very small, and nowhere were they accepted as equals of men. Mostly they worked with young offenders, or with women in trouble; sometimes they patrolled dance halls and penny arcades-places where young people might congregate. Mary Hamilton, the first policewoman in New York, wrote that "Danger lurks in parks, playgrounds, beaches, piers, and baths unless there is someone to watch over these pleasure haunts experienced enough in recognizing a devastating evil."25 Women had "peculiar value ... as preventive agents in working with women and girls." Women had "peculiar value ... as preventive agents in working with women and girls."26 With such an att.i.tude, of course, the movement stagnated. A survey in 1946 found that only 141 out of 417 key cities had any policewomen at all. With such an att.i.tude, of course, the movement stagnated. A survey in 1946 found that only 141 out of 417 key cities had any policewomen at all.27 In 1968, however, Indianapolis broke the final taboo: it a.s.signed two women to regular patrol duty. In 1968, however, Indianapolis broke the final taboo: it a.s.signed two women to regular patrol duty.28 Since then, there has been steady progress, but policing remains essentially a man's job, and the world of the police remains a man's world. Since then, there has been steady progress, but policing remains essentially a man's job, and the world of the police remains a man's world.

It was a slow process, too, to open up the force to blacks and members of other minorities. In 1930, blacks made up about 4 percent of the force in Philadelphia, 2 percent in Pittsburgh and Chicago, 1 percent or less in a number of cities, including Cleveland, Detroit, and New York.29 This situation seemed glaringly out of tune in the period after This situation seemed glaringly out of tune in the period after Brown v. Board of Education. Brown v. Board of Education. The combination of a strong civil rights movement and the ma.s.s migration of blacks from the rural South finally brought about change in the composition of police forces, as we shall see. The combination of a strong civil rights movement and the ma.s.s migration of blacks from the rural South finally brought about change in the composition of police forces, as we shall see.

Hiring women and blacks-and Hispanics, Chinese, and even openly gay officers-was more than a sop to demography. It was at least potentially a minor coup d'etat within the police. The police entered the twentieth century as an army against crime and the criminal cla.s.s; they took their norms and values in part from the respectable elites, in part from the macho, working-cla.s.s white culture of which they were a part. A mere sprinkling of blacks and women here and there probably had little effect on the normative world of the police. Corruption and brutality remained, along with racism and a ragbag of social prejudices. But personnel changes in the seventies and eighties carried at least the promise promise of a more accountable, more heterogeneous force. Unfortunately, as the police got (somewhat) better, the criminals got worse; and this no doubt had a curdling effect on the norms and culture of the people in blue. of a more accountable, more heterogeneous force. Unfortunately, as the police got (somewhat) better, the criminals got worse; and this no doubt had a curdling effect on the norms and culture of the people in blue.

Political Crime In one stretched-out sense, many or most crimes are political: they are conscious or unconscious acts of rebellion against the duly const.i.tuted order. A few crimes have deliberately political motives, although the crime itself is not what people usually call political. An occasional revolutionary or terrorist might want to blow up a government office, or rob a bank to pay for the expenses of terror. There has been less of this in the United States than in most countries-certainly less than the hysteria over "reds" or "anarchists" or "Wobblies" would suggest. On the whole, though, few crimes are meant to be deliberate attacks on the political or economic system, or on some piece of it, or on the rules and norms that undergird that system.

There is another kind of political crime. All governments, alas, seem tempted to make it a crime to be part of the opposition. In many societies, to criticize the government is to sign one's own death warrant. The United States has a far better record than most countries at putting up with dissenters, but the record is far from perfect.

Wars and national crises are particularly bad times for freedom of speech and the right to protest. Toleration wears thin during emergencies ; civil liberties go out the window. During the Civil War, Abraham Lincoln's record was hardly ideal. He suspended the writ of habeas corpus, and there was far too much military justice (or injustice).30 To a degree, this was understandable. After all, the Civil War was a ma.s.sive rebellion: half the country consisted of traitors (from the northern standpoint), and the fighting raged on American soil. It was a uniquely dangerous war. To a degree, this was understandable. After all, the Civil War was a ma.s.sive rebellion: half the country consisted of traitors (from the northern standpoint), and the fighting raged on American soil. It was a uniquely dangerous war.

The first World War should have been much better. Yet in June 1917, Congress pa.s.sed an elaborate Espionage Act; an amendment to the act, in 1918, outlawed sedition-it was a crime to "incite or attempt to incite" insubordination or disloyalty among soldiers and sailors; or to utter, print, or publish "any disloyal, profane, scurrilous or abusive language about the form of government of the United States; or the Const.i.tution;" or to come out with any "language intended to incite, provoke, or encourage resistance to the United States or to promote the cause of its enemies."31 The excuse was the war; and the war certainly legitimized a campaign against internal enemies. The statutes were, in a real sense, merely part of a longer campaign against radicals, especially the "Wobblies," members of the Industrial Workers of the World.32 The first notable cases on freedom of speech before the U.S. Supreme Court grew out of the purge of leftists that followed pa.s.sage of these laws. In The first notable cases on freedom of speech before the U.S. Supreme Court grew out of the purge of leftists that followed pa.s.sage of these laws. In Schenck Schenck v. v. United States United States (1919) (1919)33, Socialists had been tried for mailing circulars to men about to join the army. The circulars pa.s.sionately argued that the draft violated the Const.i.tution, and that the war was a conspiracy of capitalists and politicians. The defendants were charged under the Espionage Act and convicted. They appealed, and lost; as a consolation prize, Oliver Wendell Holmes, Jr., enunciated one of the most famous phrases in Supreme Court history. Freedom of speech, he said, does not encompa.s.s "words ... used in such circ.u.mstances and ... of such a nature as to create a clear and present danger a clear and present danger that they will bring about ... substantive evils that Congress has a right to prevent" (emphasis added). that they will bring about ... substantive evils that Congress has a right to prevent" (emphasis added).34 Abrams v. United States (1919) (1919)35 was an appeal brought by Jacob Abrams and some a.s.sociates who had been arrested for distributing leaflets (in English and Yiddish) that attacked President Wilson as a hypocrite and argued that "allied capitalism" wanted to "crush" the Russian Revolution. The Supreme Court affirmed their conviction. Only Holmes and Brandeis dissented; Holmes, in his opinion, reminded the majority that "time has upset many fighting faiths" and that "the best test of truth is the power of the thought to get itself accepted in the compet.i.tion of the market." But Abrams and his friends went to prison because of their "fighting faiths." was an appeal brought by Jacob Abrams and some a.s.sociates who had been arrested for distributing leaflets (in English and Yiddish) that attacked President Wilson as a hypocrite and argued that "allied capitalism" wanted to "crush" the Russian Revolution. The Supreme Court affirmed their conviction. Only Holmes and Brandeis dissented; Holmes, in his opinion, reminded the majority that "time has upset many fighting faiths" and that "the best test of truth is the power of the thought to get itself accepted in the compet.i.tion of the market." But Abrams and his friends went to prison because of their "fighting faiths."36 Paranoia swept the country during the war; dissent was simply not tolerated. In 1918, John Fontana, a Lutheran minister in Salem, North Dakota, was indicted under the Espionage Act. He stood accused of interfering with the military and naval forces of the country, causing mutiny, and obstructing the draft. All this in darkest North Dakota. Fontana, it seems, was pro-German; he thought the sinking of the Lusitania Lusitania was justified, prayed for the success of the German armies, and told people not to buy Liberty Bonds. Or so it was alleged. Moreover, in his church, people said, "Old Glory" was "not to be seen nor ... the Star Spangled Banner heard." A federal district court jury found Fontana guilty. The judge thundered at him that Fontana had "cherished foreign ideals.... That is the basic wrong of these thousands of little islands of foreigners that have been formed through our whole limits.... They have striven ... to make foreignness perpetual. That is disloyalty." Fontana got three years in the federal prison at Leavenworth. was justified, prayed for the success of the German armies, and told people not to buy Liberty Bonds. Or so it was alleged. Moreover, in his church, people said, "Old Glory" was "not to be seen nor ... the Star Spangled Banner heard." A federal district court jury found Fontana guilty. The judge thundered at him that Fontana had "cherished foreign ideals.... That is the basic wrong of these thousands of little islands of foreigners that have been formed through our whole limits.... They have striven ... to make foreignness perpetual. That is disloyalty." Fontana got three years in the federal prison at Leavenworth.37 After the war, the struggle against radicals continued, but with a somewhat different excuse. Bolshevism replaced Kaiser Wilhelm as the main target. This was the period of the infamous "red scare" and the so-called Palmer raids. On January 2 and 6, 1920, agents of the Department of Justice, under orders from Attorney General A. Mitch.e.l.l Palmer, arrested thousands of members of the Communist and Communist Labor parties in raids across the country.38 There was hardly a shred of justification for these raids, and nothing about the raids even remotely resembled due process. But millions of Americans seemed to support the plan to get rid of filthy, bomb-throwing, dangerous, alien reds. There was hardly a shred of justification for these raids, and nothing about the raids even remotely resembled due process. But millions of Americans seemed to support the plan to get rid of filthy, bomb-throwing, dangerous, alien reds.

It was an age of ultra-Americanism, not to say jingoism; an age of flag-waving. The flag, of course, had to be the American flag; in fact, any other flag was legally suspect. Only the Stars and Stripes, and flags of the state, could be carried in a parade or "publicly displayed," according to an Arizona law of 1919. It was, in fact, a crime to display other, offensive flags, or parade around with them; specifically verboten verboten was any "red or black flag, or banner, with or without any letters, inscription or design thereon." was any "red or black flag, or banner, with or without any letters, inscription or design thereon."39 Arizona was not alone; twenty-four states pa.s.sed red-flag laws in 1919, and another flock of eight followed suit in 1920. Arizona was not alone; twenty-four states pa.s.sed red-flag laws in 1919, and another flock of eight followed suit in 1920.40 But flag laws were small potatoes. Many states pa.s.sed more stringent and far-reaching laws against radicals, Bolsheviks, and the like. Idaho began a trend in 1917 when it enacted a law against "criminal syndicalism." This, according to the statute, was the "doctrine which advocates crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." Anyone who advocated such things, "by word of mouth or writing," or justified such acts, or organized "any society, group or a.s.semblage of persons formed to teach or advocate ... criminal syndicalism," was guilty of a felony. The punishment could be as much as ten years in prison.41 Within a year, six states pa.s.sed similar legislation. And in 1919, California, egged on by the rabid propaganda of Harrison Gray Otis of the Within a year, six states pa.s.sed similar legislation. And in 1919, California, egged on by the rabid propaganda of Harrison Gray Otis of the Los Angeles Times Los Angeles Times-and even more so by the fallout from a bomb that went off on the governor's back porch-pa.s.sed its own version, so that any attempt to justify "criminal syndicalism ... by spoken or written words," or to put out any book, pamphlet, or poster advocating or abetting this dreaded doctrine, was a crime.42 The Oakland Oakland Tribune Tribune applauded this law, because it allowed a "summary policy ... toward dynamiters, Bolshevists, I.W.W. and the whole brood of anarchists. It should be enough to know of their general tendency and sentiments without having to fasten specific crimes upon them." So much for due process. In fact, the statute did not sit rusting on the shelf. During its years of vigor, 531 men and women were charged with violating this law, and 264 were actually tried. Of these, 164 defendants were convicted and 31 acquitted; sixty-nine trials resulted in a hung jury. No less than 52 of the convictions, however, were reversed by the Court of Appeal, and 2 by the California Supreme Court. applauded this law, because it allowed a "summary policy ... toward dynamiters, Bolshevists, I.W.W. and the whole brood of anarchists. It should be enough to know of their general tendency and sentiments without having to fasten specific crimes upon them." So much for due process. In fact, the statute did not sit rusting on the shelf. During its years of vigor, 531 men and women were charged with violating this law, and 264 were actually tried. Of these, 164 defendants were convicted and 31 acquitted; sixty-nine trials resulted in a hung jury. No less than 52 of the convictions, however, were reversed by the Court of Appeal, and 2 by the California Supreme Court.43 The most notorious case, and the only one to reach the U.S. Supreme Court, was Whitney Whitney v. v. California. California.44 This was an appeal brought by Charlotte Anita Whitney, a strong, outspoken woman active in "progressive" political circles in California. Ms. Whitney had been at a convention in Oakland, which aimed to organize a California branch of the Communist Labor Party. The convention adopted a rather militant platform; ironically, Ms. Whitney was opposed to this platform. But she stuck with the party nonetheless. She was arrested-and convicted-for violating the syndicalism act. She appealed all the way to the Supreme Court; but lost again. A state, said the Supreme Court, had the power to punish those who "abused" the rights of free speech, a.s.sembly, and a.s.sociation "by joining and furthering an organization" that menaced the "peace and welfare of the State." This was an appeal brought by Charlotte Anita Whitney, a strong, outspoken woman active in "progressive" political circles in California. Ms. Whitney had been at a convention in Oakland, which aimed to organize a California branch of the Communist Labor Party. The convention adopted a rather militant platform; ironically, Ms. Whitney was opposed to this platform. But she stuck with the party nonetheless. She was arrested-and convicted-for violating the syndicalism act. She appealed all the way to the Supreme Court; but lost again. A state, said the Supreme Court, had the power to punish those who "abused" the rights of free speech, a.s.sembly, and a.s.sociation "by joining and furthering an organization" that menaced the "peace and welfare of the State."

The state of Georgia, for its part, dusted off an old statute (dating from the late 1860s), which made it a crime punishable by death (!) to incite "insurrection" against Georgia. "Circulating insurrectionary literature" was also a serious crime under this law and carried a long prison term. The a.s.sistant solicitor general of the state, John H. Hudson, a rabid red-baiter, unearthed this draconian gem, and from 1930 on used it to arrest and try members of the Communist Party and other such menaces to Georgia. In 1932, Angelo