Crime and Punishment in American History - Lawrence M. Friedman [4]
In a criminal case, in theory at least, society is the victim, along with the “real” victim—the person robbed or assaulted or cheated. The crime may be punished without the victim’s approval (though, practically speaking, the complaining witness often has a crucial role to play). In “victimless crimes” (gambling, drug dealing, certain sex offenses), there is nobody to complain; both parties are equally guilty (or innocent). Here the machine most definitely has a mind of its own. In criminal cases, moreover, the state pays the bills.a
All sorts of nasty acts and evil deeds are not against the law, and thus not crimes. These include most of the daily events that anger or irritate us, even those we might consider totally outrageous. Ordinary lying is not a crime; cheating on a wife or husband is not a crime in most states (at one time it was, almost everywhere); charging a huge markup at a restaurant or store is not, in general, a crime; psychological abuse is (mostly) not a crime.
Before some act can be isolated and labeled as a crime, there must be a special, solemn, social and political decision. In our society, Congress, a state legislature, or a city government has to pass a law or enact an ordinance adding the behavior to the list of crimes. Then this behavior, like a bottle of poison, carries the proper label and can be turned over to the heavy artillery of law for possible enforcement.
We repeat: crime is a legal concept. This point, however, can lead to a misunderstanding. The law, in a sense, “creates” the crimes it punishes; but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning. Justice is supposed to be blind, which is to say impartial. This may or may not be so, but justice is blind in one fundamental sense: justice is an abstraction. It cannot see or act on its own. It cannot generate its own norms, principles, and rules. Everything depends on society. Behind every legal judgment of criminality is a more powerful, more basic social judgment, a judgment that this behavior, whatever it is, deserves to be outlawed and punished. We will return to this point.
CRIMINAL JUSTICE
This is, if anything, an even vaguer term. It is not easy to describe or define this system. In fact, there is no single meaning; the criminal justice system is an umbrella label for certain people, roles, and institutions in society. What these have in common is this: they all deal in some significant way with crime—they define crime; or they detect crime; or they prosecute or defend people accused of crime; or they punish crime.
Of course, as we said, in a very real sense it is society that makes the decisions about what is and is not crime. “Society” is another abstraction ; what we mean is that these are collective decisions. Not everybody is part of the collective that makes the decision. When we say “society” we really mean those who call the tunes and pay the piper; it would be worse than naive to imagine that everybody’s opinion counts the same, even in a country that is supposed to be democratic. To take one obvious example: the criminal law of slavery in the nineteenth-century South was a product of “society,” but the slaves themselves had almost no say in the matter. This must be clearly understood. The rich and powerful, the articulate, the well positioned, have many more “votes” on matters of definition than the poor, the weak, the silent.
In any event, after “society,” as it were, makes social judgments, the criminal justice system goes to work. It refines and transforms the list, interprets it according to its own lights, and does whatever is to be done about