Professor Lawrence Friedman . . . Crime and Punishment in American
History provides a valuable perspective to current policy debates. .
. .Professor Friedman provides a panoramic view of four centuries of
American criminal justice. The author divides this expanse into
three eras: the colonial period, seventeenth and early eighteenth
centures; the republican period, from the Revolution to late
nineteenth century; and the twentieth century. Each period
emphasizes Professor Friedman's predominant themes.
criminal justice is not the application of abstract principles, but
a social construction. The criminal justice system is reactive to
the prevailing social structure and social norms. Criminal justice
is the history of "the dominant morality, and hence a history of
power." A high price is paid in the form of crime and social
disorder for the "rich culture of liberty."
Small, close-knit, hierarchical, religious communities marked the
colonial period. Judges and prosecutors were usually part-time lay
people. In some colonies, defendants invariably requested trial by
judge alone. In other colonies, trial by jury was customary. Missing
church, uttering a blasphemy, and fornicating were considered
criminal behavior. The public perceived criminals as members of the
community who had gone astray. The courtroom was a public platform
for the transgressor to repent. Reintegration into the community (if
the iniquity was not too great) was the common goal.
Public punishment was a necessary concomitant of this philosophy.
Incarceration was rare and contrary to the prevailing theory of
public shame and redemption. Whipping, branding, and mutilation,
were more common penalties. The community banished repeat offenders.
Death by hanging could be adjudged for incorrigibles or for serious
crimes (including adultery or buggery in some colonies). In the
northern colonies, capital punishment was rare. Malefactors were
pardoned after expressing contrition. This was not true in the
South, where black slaves more often felt the noose.
Professor Friedman asserts that the colonies were theocracies or
autocracies. Sin and crime were correlative. The law was divine,
often with citations to the Bible. The courts were a secular arm of
the church. Colonial criminal justice systems reaffirmed the
community's religious aim and reflected popular culture.
The influx of immigrants, territorial growth, and the Industrial
Revolution enervated the colonial restrictions. The decline of the
homogeneous colonial community resulted in the need for alternate
means of social control. According to Professor Friedman, the
impulse to reform the law, the evolution toward professionalism, and
the mobility of American life defined the early republican period
through the nineteenth century.
Enlightened political philosophy (the Bill of Rights is a notable
example) transformed criminal justice. A desire for humane
punishment replaced the emphasis on public retribution. For example,
the American penitentiary was conceived as a place of quiet, soulful
penitence. Reintegration in the community remained the intent. By
the 1820s, incarceration generally replaced most types of corporal
punishment. However, whipping remained a "familiar institution" in
the South (and in the Navy) for many more years.
The professionalization of the police and prosecutors also was a
"social invention" of this period. Amateur constables and watchmen
could not contend with the increasing lawlessness. A professional
police force was better able to enforce social constraints over new
immigrants, the homeless, and other groups. The wave of large-scale,
urban riots that *299 occurred between 1830 and 1865 underscored the
need for a quasi-military police force.
Professor Friedman's term, "mobility," refers to the physical
movement of people across a large continent, as well as social
progress. The ability to change one's social standing affected the
nature of crimes. Mobility encouraged "trust" crimes, such as fraud
and seduction, and violent crimes, by providing greater gain and
opportunity to bolt and start anew. Mobility and innovation made
crime more difficult to detect. It reinforced the drive to
professionalization, especially in law enforcement. Professor
Friedman points to the rise of the Federal Bureau of Investigation
as an example of the federal government's expanding role in
combating increasingly sophisticated and mobile crime.
According to Professor Friedman, social and political factors have
influenced the definition of crime itself. Race, gender, and class
had a profound impact on the actions considered criminal in American
history. Professor Friedman's discussion of slave codes reveals that
the law--with the full support of the courts--sought not only to
preserve the status quo, but to ingrain the futility of considering
freedom. Professor Friedman posits that the same type of social
control is evident in the criminal justice system's approach to
gender relations and the trade union movement.
As part of his study of the dominant culture's control mechanism,
Professor Friedman examines the strong American brand of "lawless
law." Dueling, lynchings, vigilante movements, and urban riots are
surveyed. These were secret supplements to the law which were
another effective means of social regulation.
Professor Friedman posits that social mobility greatly contributed
to a climate of reform. Citizens demanded more individual rights.
Consequently, a higher degree of racial and gender fairness exists.
[Professor Note: Although significant racial and gender disparities
continue to exist in the criminal justice system] "Crimes of the
self" are unfortunate by-products of this progress. Professor
Friedman asserts contemporary crime is best explained "in terms of
exaltation of the self, a 20th century pathology."
Professor Friedman chronicles this century's crimes, criminals, and
trials--the Lindbergh kidnapping, Leopold and Loeb, the Rodney King
beating, and the O.J. Simpson double-murder trial. He contends our
culture values celebrity and fame as the glorification of the
individual. In America, even criminals become celebrities. "Being
famous becomes almost *300 an end in itself. It distorts our view of
what a hero is. It distorts our view of authority."
Professor Friedman concludes with the disheartening facts of the
current state of affairs. In the process, he also convincingly
debunks the myths of frontier heritage and "soft" parenting as
causes of the crime problem. However, he candidly admits he has no
better explanation than his psychological theory for the origin.
Professor Friedman decries the politicians' shrill response to the
problem as "punitive, irrational, and ineffective." "[B]uilding more
prisons and putting more people in them is an exercise in futility."
"An important lesson from the past is that the source of crime lies
not in weakness in the criminal justice system but in the great
marrow of society."
Professor Friedman does not believe that the criminal justice system
can deter crime to any greater extent than it does now. Most crimes
never are reported. Most criminals never are caught. The criminal
justice system is diffuse and fragmented. Americans are unwilling to
have it any other way. Americans are unwilling to pay in currency or
lost freedom for a truly national, hierarchical justice system. In
short, the criminal justice system is marginal and cannot compete
with the culture.
[T]he "crime problem" flows largely from changes in the culture
itself; it is part of us, our evil twin, our shadow; our own
society produced it. It has been a central theme of this book
that criminal justice systems are organic, rooted in society.
Crime is no different. It is part of the American story, the
American fabric. Perhaps--just perhaps--the siege of crime may
be the price we pay for a brash, self-loving, relatively free
and open society.
[W]e are likely to bump along more or less as we are. The siege
of crime and all the misery it brings, both to those who commit
it and those who are victimized, is a high price to pay for our
liberty. It is a high cost that is badly and unfairly
distributed. But for now, at least, there may be nothing to do
but grit our teeth and pay the price.
. . .