Crime and Punishment in American History

Lawrence Friedman’s excellent book Crime and Punishment in American History is a sweeping history of the American criminal justice system, with a focus on how changes in our laws and enforcement mechanisms over time have been driven by broader shifts in American society:

This book is about the American experience of crime; more accurately, it is about the social reaction to crime. It is an attempt to sketch out the history of the criminal justice system in the United States, from its colonial beginnings right up to the present day…

Before some act can be isolated and labeled as a crime, there must be a special, solemn, social and political decision. In our society, Congress, a state legislature, or a city government has to pass a law or enact an ordinance adding the behavior to the list of crimes. Then this behavior, like a bottle of poison, carries the proper label and can be turned over to the heavy artillery of law for possible enforcement.

We repeat: crime is a legal concept. This point, however, can lead to a misunderstanding. The law, in a sense, “creates” the crimes it punishes, but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning. Justice is supposed to be blind, which is to say impartial. This may or may not be so, but justice is blind in one fundamental sense: justice is an abstraction. It cannot see or act on its own. It cannot generate its own norms, principles, and rules. Everything depends on society. Behind every legal judgment of criminality is a more powerful, more basic social judgment, a judgment that this behavior, what it is, deserves to be outlawed and punished.

Beginning with the colonial period and proceeding through the late twentieth century, Friedman shows how our conception of crime — and the punishments we administer — have evolved in significant ways. In the early 1800s, for example, a number of laws addressed crimes of morality (e.g., adultery, gambling, drinking, etc.) that are not illegal today, and did so with uniquely shameful punishments: 

New England settlements of this sort had both the will and the ability to enforce laws against fornication, sins of the flesh, minor vices, and bad behavior. They punished these offenses the way autocratic fathers or mothers punish children; they made heavy use of shame and shaming. The aim was not just to punish, but to teach a lesson, so that the sinful sheep would want to get back to the flock. Punishment tended to be exceedingly public. The magistrates loved confessions of guilt, open expressions of remorse. They loved to enlist community, the bystanders; their scorn, and the sinners’ humiliation, were part of the process. Hundreds of colonial sinners were forced to sit in the stocks – in full public view. Punishment was sometimes tailored to fit the crime, to point up the moral more vividly. Samuel Powell, a servant, stole a pair of breeches in Accomack Country, Virginia, in 1638. Part of his punishment was to “sitt in the stocks on the next Sabboth day…from the beginninge of morninge prayer until the end of the Sermon with a pair of breeches about his necke.”

Severity was not the point in punishing minor sins. The point was repentance and a good swift lesson…A servant, Danial, in western Massachusetts (1654), had profaned the sabbath “in idle walkinge about and not comeinge to the Ordinances of the Lord”; his employer also complained of “grievous idleness in neglecting his busyness for Severall days.” Daniel had been warned before; he promised “amendment; but grew worse and worse.” At this point, he was sentenced to five lashes on his bare back, “well laid on,” as the phrase commonly went.

These forms of punishment were effective because most Americans at the time lived in close-knit, local communities where the impact of shame was felt more acutely. This is also the reason such punishments persisted in the South much longer than in the North, which was rapidly urbanizing:

South Carolina, perhaps the most conservative state in the slave belt, never built [a penitentiary system]. Whipping and shaming punishments (and the gallows) stayed on the books in South Carolina. The very arguments that made the prison seem preferable in the North, did not work in South Carolina, where “face-to-face contact remained important and where honor was accorded great protection.” The more “primitive” punishments, in other words, survived in this more primitive section of the country. Here were the fewest cities, factories, mines. Traditional punishment suited this almost feudal social system: the honor code, shame and humiliation, corporal punishment.

Later sections explore more recent developments, including the expansion of crime to include financial offenses (such as tax fraud and embezzlement) and drug use (the criminalization of narcotics was a relatively modern phenomenon), as well as the rise of plea bargaining as a tool for prosecutors to avoid increasingly costly trials. 

Friedman also brings a broader international perspective to his account, as when he notes the relatively populist nature of the entire American criminal justice system: 

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

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

American judges, too, are in a way less professional than judges in most other countries. They are not trained as judges; only as lawyers (and in earlier years, sometimes not even that). Federal judges are appointed; and they serve during “good behavior,” which means, in effect, for life or as long as they want. But in the states, in the nineteenth century, a strong and successful movement switched the state courts to elective systems.

[...]

The American police…were less “professional” than their British counterparts from the very start; they dipped into local politics — indeed, they were drenched in it. They were full-time workers in the system, to be sure, but there was no job training, no requirements or prerequisites, and not much real control over behavior on the beat. Amateurism of a sort went all the way to the top of the force.

I also liked how he links punishments to supply and demand:

In fact, all criminal justice, whatever else can be said about it, is economic in one crude, primary sense: its rules are attempts to fix prices or ration behavior. Suppose it is a crime to shoot deer out of season; the punishment is a good stiff fine. One way to describe the law is to say that it tries to raise the price of shooting deer. If it succeeds, it rations, or controls, deer hunting. If the price is high enough, nobody will shoot deer (or almost nobody). Stiffening a penalty, then, is like raising a price. As rationing gets tighter, control is greater — and demand for the behavior, other things being equal, falls off.

We can apply the same analysis to the whole criminal code, even laws against murder and rape. In a sense, the codes set prices, and regulate the supply and demand of murder and rape. It seems cold-blooded to look at homicide law in this way; most people would say they want no murders at all, and if you asked them, they would say, vehemently, that they would not license murder, at any price. But in one sense that is exactly what the penal code does; it fixes a price. Certainly, there are other ways to understand why there are laws against murder and rape, and what makes them tick. But the price-rationing aspect is worth keeping in mind.

Friedman even brings fresh perspective to seemingly well-known events like the Salem witch trials, which were primarily about social control:

It was the defiant, the hostile, the impudent who were put to death in Salem. Those who accepted the legitimacy of the court and humbly confessed their crimes were convicted but their lives were spared. In the end, nineteen people were executed, two people died in prison, and one man, Giles Corey, was pressed to death under rocks (the so-called peine forte et dure), because he stood mute and refused to plead or to testify…

There have been many attempts to explain the Salem episode. A number of factors were at work. Town rivalries and factions worked as irritants beneath the surface, perhaps. There was a gender aspect, too. Not all witches were women, but most of them were, and older women at that. In some subtle and not so subtle ways, the war against witches was also a war against women: or at least against disorderly, troublesome, deviant women. In Puritan thought, order and hierarchy were “cherished values”; and those who rebelled against order “were the very embodiments of evil.” The “subordination of woman” was part of the natural order; the witch symbolized, or embodied, a kind of double rebellion — of woman against man, and woman against the godly society. Like Even in the Garden of Eden, she transmitted sin to man.

This is a wide-ranging and highly intelligent social history, with information of substance on nearly every page. Highly recommended.