Law 6107     Criminal Law
Professor Vernellia R. Randall
The University of Dayton School of Law

Crime and Punishment in American History


01 Introduction
02 Basic Elements
03 Property Crimes
04 Person Crimes
05 Defenses
06 Anticipatory Offenses
08 Criminal Justice

Major W. Renn Gade

Major W. Renn Gade, Book Review: Crime and Punishment in American History, 146 Military Law Review 297 (Fall, 1994)(footnotes admitted).

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.

First, 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.

. . .


Always Under Construction!

Always Under Construction!

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Vernellia Randall.  All Rights Reserved

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