Crime and Punishment in American History - Lawrence M. Friedman [52]
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POWER AND ITS VICTIMS
IN EVERY SOCIETY, PEOPLE ARE RANKED IN A KIND OF PYRAMID, WITH A MORE or less clear top, middle, and bottom; probably in every society there are more people on the bottom than on the top; in every society there are definite rules about how and why one moves from bottom to top, or in the other direction, or whether it is possible to make certain moves at all. Every society, in short, has a structure, a system of stratification, a way of sorting people out among positions and roles.
Laws and legal institutions are part of the system that keeps the structure in place, or allows it to change only in approved and patterned ways. The criminal justice system maintains the status quo. This may sound more sinister and oppressive than it needs to be. Most people, in most societies, want the status quo, or parts of it. However small and pitiful their holdings, they want to keep what they have; they don’t want other people to take their “property” by force. They want some kind of bodily security, too. But even if the legal system “neutrally” protects what people have, as well as their place on the pyramid, clearly some people are higher up and have more than others. Law protects power and property; it safeguards wealth; and, by the same token, it perpetuates the subordinate status of the people on the bottom.
The American republic was supposed to be founded on justice, equality, opportunity. It had thrown off old yokes. Old types of authority were so many rotting corpses; the Americans buried them. Compared to much of the rest of the world, this was an amazing experiment in democracy—and in social mobility; these aspects of the social order affected every American institution, from top to bottom, not least of all criminal justice.
But when we look back from where we sit today, with the wise cynicism of hindsight, we see the warts and the failures more clearly. We see a republic created, on the whole, by and for white Protestant men; behind the flag-waving and the Fourth of July parades, we see the hideous grinning faces of inequality, oppression, biasses overt and covert, cruelty, lack of understanding, intolerance. This was no pure or ideal democracy; far from it. It was a democracy of assumptions—assumptions about race, class, gender, religion, and lifestyle—a democracy that rested on definite cultural postulates. If we put these postulates together, we can construct a more balanced picture of America: a half-democracy, an adolescent democracy, a smug democracy. Of course, people were aware of such blemishes as slavery (it was perfectly obvious); and it was a fact that women did not vote or take part in much of the system of American life. But most people probably thought these were natural, not artificial, hierarchies.
Natural or not, criminal justice followed, as it always did, the pattern of social norms. It fell, as it has always fallen, more heavily on the underclass, on the deviants, on the “outs.” This is so almost by definition. Indeed, criminal law was (and is) part of the official process of labeling and identifying who is in and who is out, who is deviant and who is mainstream. Criminal justice was the strong arm of the stratification system. It was part of the process that made subordination real. And subordination was real, most notably, for American blacks; also for members of other minority races; and for the poor, the deviant, the unpopular.
Race
In the southern colonies, and in the southern states, a large mass of black slaves made up the bottom layer of society. Slaves were defined in law as chattels—items of property. They could be bought and sold like cattle, or mortgaged, or given away. They themselves could own nothing. They could