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By Root 1901 0

an act “pertaining to the guarding of machinery”; failure to comply with an order of the chief inspector resulted in a fine, the proceeds to “inure to the benefit of the county hospital for tuberculosis.”29 One extremely elaborate law created a building code for Ohio; it contained detailed rules about building standards for theaters, assembly halls, churches, school buildings, asylums, hospitals, hotels, club and lodge buildings, workshops, factories, and “mercantile establishments” —all in the interests of safety and fire protection. The statute was more than 140 pages long. As usual, there was criminal icing on this cake: it was “unlawful” for owners and builders to violate the law.30 In addition to all these state laws, there are thousands upon thousands of local ordinances, in New York City and in Keokuk alike, concerning liquor sales, land use, the obstructing or cleaning of sidewalks, weights and measures, dry cleaners, taxicabs, and almost every imaginable activity of urban life.

Most specialists in “criminal law” or “criminal justice” know very little about these laws, or about their enforcement. Police officers do not concern themselves with price-fixing or violations of the Securities and Exchange acts. To be sure, some local ordinances are vigorously policed. In New York City in 1907, nearly 6,000 people were arrested for violating health laws; and there were scattered arrests under factory laws, laws about steam boilers, pure food laws, tenement house laws—even thirty-five arrests for violating the city’s Game and Forest Law!31 But most regulatory crimes, including most of the major ones, exist in a kind of shadow-land between crime and noncrime.

Moral views about the quality of acts, of course, are not timeless and unchanging. Regulatory laws and their criminal provisions are generally pinned to a particular period. They do not represent inelastic judgments about good and evil. Indeed, sometimes they are quite specific responses to emergencies. Rent control, for example, was imposed during both of the world wars of this century, and was largely repealed at war’s end.

During the Second World War, moreover, there was an elaborate system of price control, which meant, of course, a huge black market—and black market crime.32 Meat and gasoline were rationed; prices and rents were fixed. There were countless violations. The Office of Price Administration (OPA) and the Justice Department imposed 259,966 sanctions between 1942 and 1947; and there were 13,999 cases of criminal prosecution. The government won 93 percent of the cases it brought to trial, but judges imposed “extremely mild sentences”: 74.4 percent of those convicted were fined or put on probation; only a quarter got any imprisonment. 33

A black market cannot survive without customers, without support from the general public; but it also cannot survive without support from inside business itself. A study by the sociologist Marshall Clinard showed that many wholesale dealers in meat, during the war, were convinced that the laws were unfair, the regulations ridiculous. These offenders refused to think of themselves as real criminals. The OPA, in the opinion of these meat wholesalers, “just made a bunch of crooks out of honest men.”34 No doubt people differentiated among violations: gouging on rents was worse than fiddling a bit with extra meat rations. Dealing in black-market gas was a temporary crime, and violation did not seem terribly harmful to most people.

Of course, a meat dealer who broke the law would have a strong need, psychologically, to defend himself, to convince himself he was not a “crook.” So, too, the customer who wanted extra meat, or the steak-house that needed the meat to stay in business. The wartime controls were sudden laws—they made crimes out of behaviors that had been perfectly legal before. It was a complicated—perhaps impossible—job to regulate the prices of absolutely everything and the rents of millions of apartments. To be sure, a patriotic glow surrounded the war effort. This surely kept the rate of violation lower than