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