VARIETIES OF STATE CRIME AND ITS CONTROL by Jeffrey Ian Ross (Editor). Monsey, N. Y: Criminal Justice Press, 2000. 235 pp. Paper $25.00. ISBN: 1-881798-20-8.

Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University.

The inherent coercive power that every government must lawfully have at its disposal to maintain state functioning, combined with government's inertial legitimacy, has produced the historic truism that greater crimes against humanity have been perpetrated by governments and states than by individuals or private criminal enterprises. The control of criminal behavior by government actors must therefore be a core function of any state that aspires to be called civilized and wishes to be included within the community of nations that measure up to the legal/political criteria of the rule of law. Even states whose adherence to the rule of law is evidenced in
may ways (e.g., judicial independence, legislative oversight, a vigorous press, review commissions, prosecution of state actors) nevertheless can expect some level of governmental illegality (e.g., Human Rights Watch 1998). When such illegality is systematic or egregious it may be denominated state crime, a species of political crime whose harm, in Hall's (1960: 212-46) sense, includes the undermining of confidence in a government that is lawful, constitutional, and democratic.

VARIETY OF STATE CRIME AND ITS CONTROL consists of seven separately authored case studies of state crime in advanced democracies and short introductory and concluding chapters by Jeffrey Ross. This book was preceded by another edited volume (Ross 1995) addressing definitional, conceptual,
theoretical and methodological issues about state (or governmental) crime, making the present volume a part of a long range exploration of the issue. The present volume examines states that share similar economic, political and structural characteristics, an approach that is well justified in the Introduction. Given that levels of corruption and human rights abuses in many third world or failed states are far worse, a volume including studies of such states would tempt readers to join in Norfolk's deluded rationalization of Henry's crimes to More: "Thomas, this isn't Spain, you know" (Bolt 1960: 53).

The case studies, in general, review two manifestations of state crime-- governmental corruption and illegality by military and police forces. It is instructive that military-police wrongs are reviewed in nations that have experienced major ethnic and political insurgency: the United Kingdom, Canada and Israel (as well as in the United States study), while the studies of France, Italy, and Japan focus primarily or exclusively on political corruption. The concentrated focus of the latter studies (and that of Israel) produced more penetrating analyses than the other chapters that attempt to cover the gamut of political illegality and misconduct.

According to David Potter, the legal and structural features of its electoral system may explain Japan's chronic political corruption. Despite many legal impediments to excessive campaign spending, until 1994 House of Representative elections "were conducted in multiparty constituencies, with voters given a single nontransferable vote" (p. 185). The dominant Liberal Democratic Party (LDP) ran more candidates than seats in many districts, generating, among other things, campaign organizations loyal to the candidate rather than to the party. The need to maintain these personal organizations between elections created funding pressures that were largely satisfied by large corporations. They, in turn, gained access to LDP brokerage "between the business community and the powerful state bureaucracy" (p. 187). Persistence political corruption continued despite widespread reports in the press because of ingenious methods of circumventing campaign finance laws, practices similar to "soft money" contributions in American politics, the lack of enforcement by Japan's criminal justice system, and pork barrel
induced voter apathy. In 1993 the LDP lost control of the House of Representatives for the first time since 1958, leading to structural reforms such as a reduction in the number of House seats and the replacement of multi-member constituencies with 300 single member constituencies and 200 seats selected by proportional representation. Potter concludes that these structural reforms have the potential to reduce endemic political corruption in Japan, but he cautions that the problem may not significantly improve without a sea change in public attitudes.

The study of Italy by Donatella della Porta and Alberto Vannucci offers a more ambitious explanation, positing that both costs and benefits of political corruption and the attitudes of civic virtue held by public officials and ordinary citizens influence levels of corruption. Causes of Italy's endemic political corruption have included cold war influence, deeply rooted organized crime, and widespread misadministration that has spawned clientelism. Despite structural supports for corruption, the 1990s has been a period of judicial exposure (the "clean hands" movement) creating "the most serious political crisis in the history of the Italian republic" that has targeted thousands of political actors, including four ex-Prime Ministers, and has "unveiled a scene of corruption and political illegality involving
the entire political class of the country and broad sectors of its business community" (p. 156).

A structural similarity between Italy and Japan has been the attenuation of political competition--the long absence of turnover in the national government, and in Italy, "strong ideological identifications [that] have limited electoral mobility, rendering voting behavior impervious to political scandals" (p. 171). Della Porta and Vannucci raise concerns about the extent to which Italian mass media are receptive to political pressure, a major concern with the return of Silvio Berlusconi to power. An especially interesting factor to legal scholars, is the "intensity of legislative production" (p. 164). Italy has more than 100,000 laws in force, and passes
almost 600 annually, compared to France's 7,000 laws in place and an annual average passage of 93. The larger number of "legally binding regulations"
has generated more cases, overloaded the administrative tribunals, caused lags in decisions, and made a mess of this legal system, increasing "normative overlaps, assimilation, partial abrogation, exceptions and contradictions needing to be resolved at the judicial level" (p. 165). This in turn has clogged commerce and has led many business people to circumvent the law, opening another avenue for corruption. This is strikingly reminiscent of Lon Fuller's inclusion of the constancy of law over time as one of the eight cannons of legality (the "morality that makes law possible") and warning against too frequent changes of law (Fuller 1969: 79-81). The important lesson is that too many laws may undermine the rule of law.

Jim Wolfreys classifies examples of state crime in France under those justified by raison d'etat (mostly military abuses associated with the disengagement from Algeria), corruption, and white-collar crime (e.g., the AIDS contaminated blood scandal). His explanations of state crime offer interesting points of divergence from those offered for Japan and Italy. For example, Wolfreys suggests that intensified rivalry between left and right parties during the 1980s caused "partisan rivalry to impinge upon matters of state" (p. 131). If Wolfreys' explanation is sound, then perhaps one-party political domination ought to be discounted as an explanatory variable of political corruption, i.e., political corruption will occur, depending on other conditions, whether or not there is political competition. It seems to
me that corruption is more likely in systems dominated for long periods of time by one party (e.g., Mexico; China), but Wolfreys' analysis should lead to more detailed empirical analysis of the relationship between political corruption and political competition. Perhaps the greater power of the executive under the Gaullist Fifth republic, or other intervening variables, better explain political corruption than does competition.

Wolfreys closely analyzes the reasons specific to French history and politics that help to explain apparently increasing levels of political corruption, but he is eager to go beyond his evidence and broadly condemn the governments of all advanced industrialized countries. To posit that corruption is "an intrinsic feature . of statecraft" in such polities (p. 141) is not more enlightening than to say that criminality (or at least serious social deviance) exists in every society. Wolfreys, having demonized
the rule of law at the outset of his study (it legitimizes the integral illegality of the modern state, p. 120), gets to his main point at the conclusion. It is a Marxist view that the state (or "government" in international law terminology) exists to protect the "ruling class in society," that the "state acts as a barrier to genuine freedoms," and that only limiting the accumulation of private wealth at its source and increasing "popular participation in the running of state institutions" will cure the ills of state crime (pp. 142-43). Although he does see a subordinate role for structural reforms, his recital of Marxist catechism raises too many questions, in light of the collapse of communism, to be useful to scholars. It seems to me that we have learned too much about government in the twentieth century to rely on nineteenth century clich‚s to control government illegality in the twenty-first. Without arguing that "this isn't Spain you know," explorations of corruption in corporatist states, or a comparison of
governmental criminality in the more capitalist United States with Western European social democracies is called for. Oddly enough, given Wolfreys' support for participatory politics, he does not refer to Benjamin Barber's (1984) thorough consideration of the difficulties and possibilities of participatory politics. A deeper problem is a failure to note the contradictions of state socialism, wherein greater central control resulted from Lenin's early experiments to flatten government institutions precisely to achieve greater popular participation (Savelsberg 2000) and a failure to appreciate Michels iron law of oligarchy and the tradition of Weber which instructs that the "extension of democracy has propelled forms of bureaucratic authority" (Espeland 2000: 1080). A short case study need not provide a full treatise on a theory of government, but Wolfreys concludes that his specific structural recommendations will not work and his brief conclusion displays no indication that a more complete analysis of controlling state crime would be anything other than trite Marxist analysis.

Reuben Miller analyzes three incidents occurring in Israel in the 1980s--the Bus #300 incident, the frame-up of Izat Nafsu (a Circassian IDF officer), and the soft treatment of right-wing Jewish terrorists-that brought home to the wider Israeli public that crimes had indeed been committed by internal security organizations cloaked with secrecy. "Once these events were exposed, they were bitterly condemned and widely criticized by the media, the political left and the civil rights and peace movements" (p. 101) As a result, six investigations by five commissions generated "public exposure [which] forced the truth out of the secretive Shabak" (p. 111). Miller raised a point made by della Porta and Vannucci-the control of state illegality depends not only on mechanisms of control but on the attitudes of
a civil society, which "are the product of complex processes of socialization," that make violations of law repugnant to authority figures and to the general public (p. 150). "Israeli self-image rests on the idea that it is a democracy and models itself after the West European socialist democracies. It takes pride in being the only democracy in the Middle East" (p. 111). This creates a tension between its genuine security needs, which fosters dangers of government illegality, and the rule of law. More recently Israeli government and society engaged in a remarkably open discussion of whether interrogation methods constituted torture and the Israeli Supreme Court outlawed such practices (Clark 2000). Miller's competent analysis properly does not go farther than necessary for his case study, but it is
worth realizing that the Israeli situation is more complex. In addition to the security-liberty tension that exists in every constitutional democracy, Israeli Jews (secular and religious) confront a tension between existence as a people and the universalistic ethos of a multi-ethnic polity exemplified (often in the breach) by the United States. This tension also exists in a Europe experiencing mass immigration from South and East, but in the case of Israel it raises existential questions with very deep roots.

The case studies of the three Anglophonic common law countries are less satisfactory than the studies of the civil law nations, in part because they each cover too much ground and do not provide a rigorous analytic or theoretic focus. Jeffrey Ross' study of the United Kingdom briskly reviews crimes committed by the military, national security agencies, and the police (a fair number occurred in the 1970s when IRA terrorism in England was rampant). He then catalogues the numerous commissions established to inquire into misconduct and recommend changes that appear to have ameliorated the situation, but he offers no theoretical or structural analysis. Legalists may note that the sociological approach to crime in these essays includes not only acts sanctioned by positive law but also other harms deemed unlawful by the authors. Without doubt, an important task of criminology and criminal law theory is to examine the crimes on the books and behaviors not formally
criminal to assess what ought to be a prosecutable crime (Hall, 1960). However, this demanding exercise of evaluating social harm can, if not grounded in careful analysis, lead to bizarre conclusions. Thus, Ross charges Great Britain with the commission of state crimes of omission by negligently allowing Soviet spies (including the notorious quartet of Burgess, Maclean, Philby and Blunt) to infiltrate its security agencies from the 1930s to the 1980s (p. 15). With such an expansive definition, crime, like beauty, is surely in the eye of the beholder. It is one thing for a government to fall upon an expos‚ of moles in the state's security services; it is another to convict the prime minister of treason by omission. Ross provides a telling, if inadvertent, lesson for the need for the principle of legality in a working democracy.

One has to feel sorry for Canada, never quite living up to the expectations and reality of its big neighbor to the South-even in political deviance. A close reading of Raymond R. Corrado and Garth Davies' study shows that Canada does not have much state crime to speak of today. They describe in detail what apparently was a good deal of provincial corruption in the 1940s to the 1970s (a period when corrupt big city political machines declined in the United States). They skim over national level corruption in the 1980s under conservative prime minister Brian Mulroney (are "[b]latant patronage appointments to government positions" crimes?", p. 66). Their review of illegal activities by the Mounties (RCMP) and security services also focus on the 1970s. To my surprise the dramatic events of the 1970
October Crisis in Quebec that led Pierre Trudeau to impose a state of emergency are buried in a footnote. Having very little actual state crime to report, their essay includes a longish section on theoretical perspectives that are more general textbook vignettes than attempts to explain specific events and to provide a usable theoretical foundation for the control of state crime, which, after all, is a practical goal. Thus they canvass the limited ability of legislation to effect meaningful change, organizational culture, the power elite's "higher immorality," a self-contradictory analysis of the role of the mass media, and the political system (their proposed
reform is to break the party domination characteristic of parliamentary systems and model the Canadian national legislature more on the U. S. Congress!). They conclude that the best way to control political crime is by elevating political culture to a higher level through greater education and political involvement (p. 82). Reaching for empyrean heights is a sure sign that the authors do not have a working solution for controlling state crime, but that may simply reflect the fact that Canada does not have much of a problem in this department.

I found the study of controlling state crime in the United States by Stephen C. Richards and Michael J. Avey the least satisfactory. Yes, the Red Squads violated our most fundamental constitutional ideals and were a cold war (and before) excrescence on the body politic, but the authors simply assert and make no effort to demonstrate that current FBI counter-terrorism intelligence has the same malignant autonomy (p. 39). There is not the slightest recognition of efforts by ultra-conservative members of Congress acting within the last decade to hobble the FBI out of solicitude for armed, racist, right wing extremist groups. Their rant on union busting is almost irrelevant. The influence of violent corporate behavior is a minuscule cause of the anti-labor climate in the United States, in comparison to huge economic forces including globalization, immigration, the rise of the information economy, and higher levels of education. Viewing the sad state of organized labor through the lens of the Pinkerton era is a diversion. Richards and Avey conclude with a long catalog of police abuses and conclude with a prescription that even Hollywood has accepted--end the war on drugs. I don't think they list more examples of egregious police behavior than I have folded into an undergraduate criminal procedure textbook (Zalman 2002). My concern is that their one sided name-calling (the United States is a "thug state") seriously misses the complexity of what many sociologists and political scientists observe in our genuine, if flawed, constitutional democracy. My own take, drawing on such studies, is that criminal justice practices in the United States are ambiguous, often exhibiting practices and policies that one would expect in an autocratic state, while at the same time moving in clearly democratic directions (Zalman 2000). The authors tout higher education for police as a solution to police brutality, an unproven assumption about which
they examine none of the research literature. They advance the utopian and unnecessary suggestion that formal police ranks be eliminated while completely ignoring the growing trend of community and problem-solving policing.

In the very brief concluding chapter Ross mentions an element missing from most of the studies that I thought should be included throughout, namely the constitutional structures of the various polities that create a framework within which more specific mechanisms must work. This recognition comes too
late to provide more than an afterthought. The best of the studies on the states within the civil law tradition provide interesting analyses of corruption that may be of interest to comparative politics scholars. The studies of state repression by security organs seemed rather thin on the whole, and I was surprised that none of the authors at least alluded to Kirchheimer's (1961: 25-45, 119-172) magisterial analysis of the repression of political organizations by Western democracies during the cold war. The authors are rather ill-informed in their analyses of domestic police organizations and there is not much of use here to criminal justice and
police scholars.

REFERENCES:

Barber, Benjamin. 1984. STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE. Berkeley; University of California Press.

Bolt, Robert. 1960. A MAN FOR ALL SEASONS. New York: Vintage Books.

Clark, Melissa L. 2000. "Note: Israel's High Court of Justice Ruling on the General Security Service Use of "Moderate Physical Pressure": An End to the
Sanctioned Use of Torture?" INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW, 11:145-82.

Espeland, Wendy Nelson. 2000. "Bureaucratizing Democracy, Democratizing Bureaucracy," LAW & SOCIAL INQUIRY, 25:1077-1109.

Fuller, Lon L. 1969. THE MORALITY OF LAW, REVISED EDITION. New Haven,: Yale University Press.

Hall, Jerome. 1960. GENERAL PRINCIPLES OF CRIMINAL LAW, SECOND EDITION. Indianapolis: Bobbs-Merrill.

Human Rights Watch. 1998. SHIELDED FROM JUSTICE: POLICE BRUTALITY AND ACCOUNTABILITY IN THE UNITED STATES. New York: Human Rights Watch.

Kirchheimer, Otto. 1980 [1961]. POLITICAL JUSTICE: THE USE OF LEGAL PROCEDURES FOR POLITICAL ENDS. Westport, CN: Greenwood Press; [Princeton University Press].

Ross, Jeffrey Ian. 1995. CONTROLLING STATE CRIME: AN INTRODUCTION. New York: Garland Publishing.

Savelsberg, Joachim J. 2000. "Contradictions, Law, and State Socialism," LAW & SOCIAL INQUIRY, 25:1021-48.

Zalman, Marvin. 2000. "Criminal Justice and the Future of Civil Liberties,
"CRIMINAL JUSTICE REVIEW, 25(2): forthcoming.

Zalman, Marvin. 2002. CRIMINAL PROCEDURE: CONSTITUTION AND SOCIETY. THIRD
EDITION. Upper Saddle River, NJ: Prentice Hall.

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Copyright 2001 by the author, Marvin Zalman.