Crime and Punishment in American History - Lawrence M. Friedman [165]
What was the point of a decision like this? Perhaps the point lay in the ideology of judges and lawyers. The profession believed in strict procedural justice. Hypertrophic appeals gave the appearance of meticulous justice. Like the great show trials, and the trials in which an underdog won, there was perhaps some propaganda value in cases of reversal of conviction on technical grounds. These cases were trying, in their own clumsy way, to send a message to the profession, and to the outside world. The message was this: our system is dedicated to fairness; it is absolutely obsessed with the rights of defendants. This was, of course, a matter of pride, and an answer to people who said the system was biased or unfair. Lawyers themselves may have liked to hear this message. For the larger public, such a message legitimated and defended the system by parading an exaggerated image of justice. Did the message, in fact, get through? Did it affect behavior? Very doubtful. The public never knew, or cared, about the technical work of high courts.
III
CRIMINAL JUSTICE IN THE TWENTIETH CENTURY
12
A NATIONAL SYSTEM
BEFORE THE TWENTIETH CENTURY, CRIMINAL JUSTICE WAS OVERWHELMINGLY the business of the states, not the federal government. Of course, the federal government did have its responsibilities; the District of Columbia had a full-scale penal code, all the trappings of city law enforcement, and a prison system as well.1 All the states outside of the original ones had had their larval periods as “territories,” and territorial law was federal; territorial courts were federal courts. These territories had their criminal codes and their systems of criminal justice. Moreover, by the twentieth century, the United States had become something of an empire; and the federal government was ultimately responsible for its colonies and dependencies, wherever they were.
The federal sphere also included a certain number of cases coming out of the armed services, handled through courts-martial.2 Murder and other crimes on the high seas, aboard ships, were subject to national jurisdiction, as were crimes committed on navigable waters (and, later, on airplanes), in national parks, and in odd bits of federal property inside the states, such as forts, magazines, arsenals, dockyards, and the like.3
All this was certainly not insignificant; but when all is said and done, the federal government was not a major player in criminal justice. The list of specifically federal crimes was not very long: immigration offenses, customs violations, tax fraud, crimes on the high seas, smuggling, and a few others. In the Northern District of California between 1851 and 1891, district judge Ogden Hoffman handled about 2,800 criminal matters, or roughly 70 a year, and they were quite a miscellaneous lot. Some came out of admiralty: there were 30 cases of desertion at sea, and 199 in which sailors claimed they were beaten. The biggest bulge was made by the 1,066 prosecutions for offenses relating to business taxes or licenses. There were also 272 federal liquor violations, 71 cases of selling liquor to Indians, 142 cases of smuggling opium, 313 cases of naturalization fraud, 102 mail offenses, 96 cases of counterfeiting, 94 cases of false voter registration, and 49 cases of cutting federal timber.4
For the fiscal year that ended in June 1889, the federal district courts in the country as a whole handled 14,588 criminal cases. Over 5,600 of these were “internal revenue cases”; and the bulk of these were most likely cases of moonshining and other violations of the national laws that taxed liquor. According to the report of the U.S. attorney general, exactly twelve cases, in the entire federal system, fell under the heading of “civil rights.”5
There is no easy way to compare these federal figures with figures on state criminal justice, but, obviously, the federal contribution was a drop in the bucket. The situation changed dramatically in the twentieth century. The states, to be sure, remain primarily responsible for most matters of crime