Crime and Punishment in American History - Lawrence M. Friedman [5]
The people inside the system of criminal justice include, among others, the experts who draft the criminal codes and tinker with the language, and the legislatures that make the codes into laws. But usually we think of a different cast of characters when we think of criminal justice. We think of police, detectives, narcotics agents, judges, juries grand and small, prosecutors and defenders, prison guards and wardens, probation officers, parole board members, and others of this stamp. These people are familiar to us from daily life (everybody has some contact with police), or from the mass media, or from popular (or unpopular) culture. People seem to have an insatiable appetite for reading about crime. They devour books and magazines about true crime; and even more so the imaginary crimes in Sherlock Holmes or Agatha Christie or Raymond Chandler. And where would movies be, or television, without crime and punishment?
Many in the cast of characters just mentioned are professionals, or semiprofessionals, whose lives revolve around matters of crime. Lay people, too, have a role—as jurors, for example. This is also, of course, the story of a much larger cohort of lay men and women: people accused of breaking the law; and their manifold victims. Their story is not, in the main, pleasant or uplifting; the lives caught up in the web are so often ruined, blasted, and wasted lives; through these pages parade example after example of foolishness, vice, self-destruction; selfishness, evil, and greed. It is a story with few, if any, heroes; and few, if any, happy endings. But it is important to the country; and it exerts a weird fascination.
Main Themes
As I have said, the story of American criminal justice is long and extremely complicated. The amount of detail is discouraging; the fifty states, and the three-plus centuries of time, add more complexity. But there is one grand, general approach; and a number of main themes run throughout the book. They do not tie everything together in a few neat packages—that would be a delusion—but they are crucial to the telling of the tale.
As to the approach: this is a social history of crime and punishment. The overarching thesis is that judgments about crime, and what to do about it, come out of a specific time and place. This seems so obvious it hardly needs stating. But the consequences are extremely important. This is not a history of “criminal law” as lawyers would conceive of it; it is not an intellectual history of penology or criminology; it is not about the philosophy of good and evil. It is about a working system and what makes it tick. And it is told from an outside perspective—from a perspective tinged with the viewpoint of the social sciences.
This means that I assume, at every step of the way, that the shape of the system, and what it does, is not accidental or random or “historical” —and is definitely not shaped by some intellectual or philosophical tradition. Rather, what makes the system is social structure (the way society is organized) and social norms (people’s ideas, customs, habits, and attitudes). These interact chemically with the context, and with what is happening in the world—with specific events and situations; for example, the sheer size of the country, its climate and geography, its natural resources; plagues, depressions, and wars; and with human-made factors of change, like the invention of the telephone or the automobile.
If crime itself is a social concept, then the reaction to it is social squared. Is crime entirely a social construct? Are there acts that are inherently crimes? The older writers made a distinction between acts that were, as Blackstone put it, mala in se, that is, evils in themselves, “crimes against