Crime and Punishment in American History - Lawrence M. Friedman [179]
Regulatory Crime
There have always been regulatory crimes, from the colonial period onward, as we have noted (see chapter 5.) But the vast expansion of the regulatory state in the twentieth century meant a vast expansion of regulatory crimes as well. Each statute on health and safety, on conservation, on finance, on environmental protection, carried with it some form of criminal sanction for violation. Sometimes a criminal charge was at the very heart of the statute. The very first words of the Food and Drug Act of 1906 declared it “unlawful” to manufacture “any article of food or drug which is adulterated or misbranded” and to sell that article in “interstate commerce.”26 Legislators would attach a criminal tail to every important regulatory law. So, for example, the National Labor Relations Act of 1935, passed during the high days of the New Deal, created various categories of “unfair labor practice,” and gave to an administrative agency, the National Labor Relations Board, the power to define, regulate, and enforce the rules through administrative action. Still, at the end of the act, there was a doorway into the criminal justice system. It was a crime for anyone “wilfully” to “resist, prevent, impede or interfere with any member of the Board or any of its agents or agencies in the performance of their duties.”27
The twentieth-century Leviathan, in short, does not shrink from the use of criminal sanctions. Its main regulatory weapons, of course, are administrative; technically these remedies are not “punishment” in the criminal sense. Take, for example, occupational licensing. Sam B. Warner and Henry B. Cabot, of Harvard Law School, writing in 1937, found that fifty-eight jobs or activities required a license in Massachusetts (up from seventeen in 1886): driving a car or an airplane, practicing law and medicine; working as an embalmer, nurse, or dentist; selling securities, running a lodging house, hunting and trapping animals; operating a Turkish bath.28 Losing your driver’s license, or your license to practice dentistry, was a serious detriment, regardless of whether you called it “punishment” or gave it some other name.
The vast expansion of the federal regulatory apparatus is the most obvious source of the new regulatory crimes—violations of antitrust laws, securities fraud, civil rights violations, polluting the air or water, and so on. But state governments have not been bashful, either, about rushing headlong into the administrative era. Most states have literally hundreds of regulatory laws, and more are passed every year in every state. The general effect of all this activity seems to be cumulative. Wholesale extinction may be going on in the animal kingdom, but it does not seem to be much of a problem among regulatory laws. These now exist in staggering numbers, at all levels. They are as grains of sand on the beach.
Offenses against state laws, often in fifty separate versions, run parallel to federal offenses in some instances; in others, the states go their own way. There are state food laws, health laws, sanitary laws, antitrust laws, and so on. Other laws (occupational licensing, for example) mostly lack federal equivalents. In Ohio, in 1911 alone, forty-nine criminal statutes were passed. The overwhelming majority of these made or amended regulatory statutes. One act required manufacturers to report serious work accidents, on pain of a fine. Another forbade certain banks from using the word state in their name or title. Another regulated the sale of commercial fertilizer, and punished noncompliance; still another amended