Vol. 4 No. 2 (February, 1994) pp. 23-26
CRIME AND PUNISHMENT IN AMERICAN HISTORY by Lawrence Friedman.
New York: Basic Books, 1993. 577 pp. Cloth $30.00.
Reviewed by Susette Talarico (University of Georgia)
Contemporary political rhetoric is full of law and order themes.
In his recent State of the Union address, President Clinton
focused atypical Democratic attention on crime, while New York's
Governor Cuomo regularly invokes baseball analogies in his
emphasis on "three strikes and you're out." Reminiscent
of Republican oratory of the 1960s and 1970s, these and other
Democratic politicians have clearly embraced the "get
tough" perspective reflected in contemporary public opinion.
Whether concern about upcoming election battles or sincere
conviction that "tougher" policies are appropriate
drives this rhetoric is, to some degree, anyone's guess. What is
not uncertain, however, is the general limitation of the law and
order perspective. Simply put, how government (i.e. criminal
justice system) responds to criminal offenders has little to do
with crime. Anyone who questions this assertion needs to read
Lawrence Friedman's fine book on the history of criminal justice
in the United States. If contemporary political rhetoric and
public opinion polls are to be believed and if my suggestion is
followed, Friedman should become a rich man. He will deserve to
be.
In CRIME AND PUNISHMENT IN AMERICAN HISTORY, Friedman, a noted
legal scholar, looks at the development of the criminal justice
system in American history. Although he devotes considerable
attention to types of crime and corresponding legal definitions,
he emphasizes that his is not a study in criminological theory.
Theories of crime, particularly those directed to individual
decision-making and behavior, are not highlighted. Rather,
Friedman looks at how patterns of crime and the criminal justice
system itself have changed over time and at how these patterns
and developments are intrinsically related to the broader social,
economic, and political systems that make up American culture.
Designed for both the popular and professional audience,
Friedman's comprehensive history of American criminal justice is,
in my judgment, one of the best treatments of this dimension of
American government. After a short introduction (which starts,
interestingly, with the 17th Century case of one Thomas Hogg and
alleged bestiality), Friedman takes the reader through three
major periods in American history. These include the 150+ years
of the colonial period, the time from the Revolution through the
end of the 19th Century, and 20th Century criminal justice. In
each, Friedman offers an excellent summary of legal, historical,
and social scientific research -- an accomplishment that is not
sacrificed to dull or turgid prose. Quite the contrary, this is
an engaging book that will appeal to a variety of readers.
Central to this reader-friendly style are Friedman's frequent
description of individual cases, pithy summaries of court cases
and decisions, and timely reference to and quotation from state
and federal penal codes. Although the chapter endnotes may
frustrate the academic reader who yearns for in-text citations,
the references are copious and preceded by a helpful
bibliographic essay.
Substantively, Friedman emphasizes that his is a social history
of crime and punishment. This is the central and underlying theme
of the book. Arguing that "judgments about crime, and what
to do about it, come out of a specific time and place,"
Friedman points out that social structure and social norms drive
both our very definition of criminal law and the criminal justice
system charged with its enforcement. To be sure, this is not a
novel argument and Friedman is clear in his debt to the legal
historians and other scholars who advance or support this thesis.
But rarely has such an important point been set out in such
comprehensive and compelling fashion.
Criminologists and legal scholars have long argued that the
definition of crime is, to a large degree, artificial. Variations
from one period to another and from one jurisdiction to another
in the same time period illustrate this point graphically.
Friedman clearly acknowledges this but extends the
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argument by emphasizing that crime is what society or "at
least some dominant elements" in society see as threatening.
Not surprisingly, this definition varies in the three historical
periods. In the colonial period, for example, the criminal
justice system served as "another arm of religious
orthodoxy." Crimes, then, consisted of many offenses that
seem alien to contemporary, secular culture. These include, of
course, blasphemy as well as the blue laws that lingered well
into the 20th Century. Similarly, in the 20th Century, we witness
a plethora of regulatory offenses as government struggles to keep
pace with expanding commerce and technology.
As he traces criminal justice in the three, aforementioned
periods of American history, Friedman takes pains to point out
how changes in the system reflect more general changes in
American society. In colonial America, for example, crime and
criminal justice was a function of the small-scale, orderly, and
rather religious society. The system of justice was
correspondingly informal with no full-time, professional public
servants as we know it today. As Friedman puts it, "colonial
justice was a business of amateurs." Religion and ideology
helped shaped criminal justice in this period, not only in the
particular definitions of crime that were noted earlier but also
in the paternalistic and moralistic cast to criminal punishment.
Some features of colonial criminal justice, though, evoke
contemporary parallels. For example, criminal trials served as
popular forms of entertainment and were few and far between, much
as they do in contemporary culture. They were, however, shorter
and more brutal than 20th Century due process-directed
proceedings.
Although colonial America did not have an aristocracy, society
was profoundly hierarchical and, according to Friedman, popular.
The autocratic and religious systems were generally effective in
nurturing social stability. Of course, colonial social order
sometimes exacted a heavy price and Friedman's account of the
notorious Salem witchcraft trials provide a good illustration.
But generally, the informal and rather private system of criminal
justice served as a viable counterpart to the autocratic control
generally accepted by the citizenry.
With the revolution, criminal justice gradually moved away from
the control of amateurs or laypersons and began to take on the
more formal characteristic that eventually developed into
contemporary professionalism. Friedman provides an interesting
discussion of the relationship between the fledgling government
and more republican forms of criminal justice. Even prior to this
gradual shift, though, criminal justice in the late 18th and 19th
Century was always different from England. As Friedman
emphasizes, British justice was both authoritarian and monarchic.
Although the American variety was not always (and still is not)
democratic, the distribution of power was decidedly different. As
we will see shortly, this difference (i.e. decentralization of
political authority with an emphasis on local criminal justice)
makes effective criminal control in the U.S. an illusion.
Contributing to the distinctiveness of criminal justice in the
republican period were inescapable features of American society.
These included social and geographic mobility, the abundance of
land, and rampant immigration. Clearly, these social developments
made the small-scale, informal, religiously directed social
control of the colonial era ineffective. Not surprisingly, formal
police departments and the penitentiary system emerged in this
period. Nineteenth century mobility, however, also contributed to
the legal and social system's preoccupation with discipline and
self-control. As the general social order changed, those in
authority (and Friedman emphasizes that criminal law and justice
has not been democratically defined) reinforced prevailing norms
by emphasizing individual, moral codes. Many of these (e.g.
sexual or moral offenses) were written into criminal law.
Although this emphasis on personal morality predated the
republican period, there was an important difference in the ways
the laws were both enforced and accepted. Friedman refers to
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this as the Victorian compromise. Although on the surface
republican America continued the colonial emphasis on personal,
sexual morality, enforcement seems to have been more sporadic
and, perhaps, hypocritical. Certainly, the double standard was
alive and well in the 19th Century. That women and other
politically less powerful bore the brunt of criminal justice is
not surprising as throughout the book Friedman emphasizes that
criminal law inevitably falls hardest on society's disadvantaged.
That society needed the kind of reassurance that even sporadic
enforcement provided is also indisputable. The mobility of
American society in the 19th Century had a profoundly disturbing
effect on society. Most obvious, of course, is the fact that
migration disrupts community, and this, in turn, makes social
control more difficult. In the republican period, then, the
Victorian compromise helped to maintain some sense of stability
and was generally effective, if only because authority structures
were still definitely vertical. With the 20th century, all this
changed.
In several interesting and thought-provoking chapters, Friedman
explains that the 20th century is the "age of the
self." This carries some disturbing consequences for
criminal law in particular and social control in general. It
also, as he persuasively points out, makes comprehensive crime
control impossible. With more emphasis on individual rights and
the general process of democratization, authority structures have
taken on more horizontal and less vertical shape. This, in turn,
contributes to the dissolution of formerly effective means of
social control. Add in continued mobility and migration, dramatic
changes in our economic system, and continuing racial tensions,
and there are sobering implications for crime control and
criminal justice, and for our current emphasis on "law and
order."
Space precludes a full discussion of these (after all, Friedman's
book runs for 500+ pages!) but two deserve particular mention.
These include increased emphasis on federal authority in criminal
justice, and the efficacy of capital punishment. Friedman details
the growth in federal criminal law, federal law enforcement
authorities, and efforts to set national standards for criminal
process -- all features of 20th century American politics. All
this increased federal presence does not substitute for state and
especially local prerogatives in and dominance of criminal
justice. But it has given the general impression that the federal
government is responsible for criminal justice -- an expectation
that is powerfully though erroneously held today. Presidential
and congressional rhetoric to the contrary, there is little that
Washington can do about crime and probably even less that the
citizenry would, in the final analysis, tolerate.
A second illustration of the contradictory impulses in American
politics regarding crime and criminal justice can be found by
looking at capital punishment. As Friedman emphasizes, Americans
have always been uncomfortable with the death penalty. To be
sure, there were public and even popular executions in the
colonial period and also in the 19th and early 20th Centuries.
But generally, American history suggests that there has always
been a limit to the number of executions that our society will
tolerate. In all three periods that Friedman highlights, capital
punishment was applied, sometimes more often than others. But in
each, it is clear that Americans seemed to want a sufficient
number to keep the penalty alive but not too many to extract
excessive social costs. This, of course, means that capital
punishment has been and is applied in a rather capricious and
arbitrary fashion. And Friedman is quick to point that social
evolution can be "as ruthless and clever as Mother Nature
herself." But it does suggest that the kind of efficiency
that law and order requires is not easily applied in a culture
that distrusts centralized authority, that deliberately divides
political power accordingly, that increasingly highlights the
rights of individuals, and that never applied capital punishment
to as many offenses as the mother country.
In the last half of the book where Friedman considers 20th
century criminal justice, he emphasizes that "American
history is, in a way,
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a history of more and more freedom." Although he draws no
explicit judgment about the value of this change (these are,
deliberately, left to the reader), he warns that contemporary
efforts to control crime run against some formidable obstacles.
These obstacles derive from 20th century changes in the social,
economic, and political order but also rest on rather constant
features of criminal punishment in our society. Again, space
precludes a comprehensive summary but a few points bear
repetition and emphasis. Throughout the book, Friedman emphasizes
that the criminal justice system only really operates at the
margins of society. In virtually every era, including our own,
most citizens obey the law. To be sure, Friedman acknowledges
that less serious violations (e.g. parking and traffic today) are
and probably always have been pretty common. But the serious
crimes that instill fear in the public are generally confined to
a distinct minority. So, efforts to "toughen" criminal
law are not likely to bear much fruit as there is only so much
that any society can do with those who have not been socialized
or assimilated.
Complicating this, of course, is the question of race, and
Friedman deals with its relationship to criminal justice in
comprehensive form. From his review of the brutality of slave
codes, through 19th century Jim Crow laws, and to the
discrimination in both legal and illegal (e.g. lynching) justice,
Friedman acknowledges that African-Americans have not been
treated equally at the hands of criminal law. This is, however,
somewhat inevitable as the arm of justice, Friedman emphasizes,
falls more heavily on the disadvantaged than the affluent. This,
too, should come as no surprise as law generally reinforces the
status quo because it is typically defined by those in power.
Friedman doesn't make much of this last point, not because he is
not sympathetic but because he recognizes that there has always
been a gap between what the law says and how it is applied. He
is, then, not uncritical but certainly not surprised. In the
final analysis, his message is sobering and one that should be
heeded by political leaders and public citizens who clamor for
law and order. In the final chapter, a section that should be
required reading for any legislator tempted to "solve"
the crime problem by harsher penalties and related crackdowns,
Friedman considers what we know about the problem of crime in our
history, about the particularly difficult problem of violent
crime, and the context in which it occurs. Suggesting that,
perhaps, there is some connection between contemporary violence
and historical antecedents (e.g. "swaggering gunfighters,
southern duelist, lynch mobs, gang members"), Friedman
concludes that "In neighborhoods without exit or hope, this
terrible code mixes with drugs, drug money, the weakness of the
family, the decline of traditional authority, the exaltation of
individualism and choice, the vulgarity of media messages, the
rampant narcissism and consumerism of American society, and the
easy cheap arsenal of guns, to form a witch's brew of crime,
social pathology, and violence" (p. 455).
Friedman offers no solution to the problem of contemporary crime
and, in fact, notes that in the final analysis it may simply be
the price Americans have to pay for a society that distrusts
governmental authority, insists on decentralized political
structures, prizes individual freedom, and promotes values that
make social control difficult, in his words, "a brash, self-
loving, relatively free, and open society." Suggesting this,
Friedman clearly does not present himself in ideological terms
and seems to eschew popular liberal as well as conservative
thought. But far and away his most compelling message, if you
will, is directed at those politicians and even citizens who
argue that harsher penalties and tougher justice will solve the
problem of crime. Effective criminal sanctions depend on two
things, Friedman emphasizes, effective socialization and swift
and equally efficient penalties. For a variety of social,
economic, and political reasons, neither is really possible in or
acceptable to American society. We would do well to pay heed.
Copyright 1994