Crime and Punishment in American History - Lawrence M. Friedman [67]
The issue boiled up again in the 1870s; more and more, this was becoming an industrial nation, and the raw, jagged conflict between labor and capital moved to the center of the stage in the decades after the Civil War. The issue was not one-sided. Labor, after all, had the vote; and they had some clout in certain legislatures. Some states passed laws to defend unions and unionization; in Illinois, for example, under a law of 1893, it was an offense to prevent workers “from forming, joining and belonging to any lawful labor organization,” or to coerce workers “by discharging or threatening to discharge” them because of union activity.90
Labor law, then, was part of a battle fought in part on the streets, in part in the courtroom, in part in the legislature. Some states passed laws to outlaw the blacklist, or the “yellow dog” contract, which forced employees to promise not to join a union.91 But it would be a mistake to imagine that labor got its way, especially when the courts are factored into the operation. As the war heated up, some of the courts brought out heavy artillery. In the older conspiracy cases, punishments had been fairly mild. But now, at the end of the century, judges unveiled a new, very powerful tool to be used against strikers and unions: the labor injunction. 92 If management could get a court order “enjoining” (forbidding) a strike, or ordering the union to end it, then if workers or union leaders disobeyed, they were in contempt of court, and a judge had the power to throw them in prison—quickly and without any actual trial.
Strictly speaking, an injunction was a tool of civil, not criminal, law. But it was, in effect, a way to guarantee punishment of organized labor; and violators of injunctions were treated as if they were criminals. There were technical as well as political objections to the labor injunction, but from 1880 on, it proved itself in the war against organized labor. Injunctions were issued in Baltimore in 1883, in Iowa in 1884, and during the railroad strikes of 1886. From then on, as Felix Frankfurter and Nathan Greene put it, cases “grew in volume like a rolling snowball.”93
The Supreme Court laid to rest any doubts about the labor injunction in 1895, in the famous case of In re Debs.94 Traditionally, courts had no authority to enjoin commission of a crime. This was one of the technical objections to the use of the labor injunction. In Debs, the Court, speaking through Justice Brewer, swept this objection to one side. The injunction was “not simply to enjoin a mob and mob violence”; its “scope and purpose” was to restrain “forcible obstructions of the highway along which interstate commerce travels and the mails are carried.” The message for the labor movement was unmistakable.
Nineteenth-century criminal justice was not, in short, blindfolded Justice. It was very definitely the servant of power, the protector of privilege. Probably this is the case in every society. In fact, the question is not: Do the scales tilt, but how much, and in what direction? If we tried to give a grade to nineteenth-century criminal justice in the United States, a lot would depend on what we were comparing it to, and through whose eyes we were observing it. The black judgment on the system would be far grimmer than the judgment of whites. Of course, taken all in all, American justice in the nineteenth century stands up fairly well, if measured against the standards of justice in tyrannies and dictatorships. But for us, looking backward, a century or two later, its blind spots, flaws, and rampant