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By Root 1616 0

acts of vandalism, and the like; some of these, too, can be little bursts of petty treason. There are crimes of passion—violence generated by thwarted love, jealousy, hatred that rises to the level of obsession. There are also crimes of addiction—crimes that arise from failure of control; crimes that stem from what some of us might consider flaws of character, or overwhelming temptation; this can be as minor as public drunkenness, or as horrific as rape. Lastly, there are what we might call subcultural crimes—acts that are defined as crimes by the big culture, yet validated in some smaller social grouping: Mormon polygamy in the nineteenth century, for example.

All crimes are acts that society, or at least some dominant elements in society, sees as threats. The threat may be physical (street crime) and affect the quality of life. Rape and sexual assault terrorize women and reinforce a rigid gender code. Morals crimes attack the way of life of “decent” people. Certain white-collar crimes—antitrust violations, securities fraud—strike a blow at the economy, regulatory crimes pollute the atmosphere, or the market. Traffic codes ration space on city streets and highways, and attempt to avoid strangulation; traffic crimes upset this public order. And so it goes. The sense of threat, and ideas about what to do about dangers, change prismatically from period to period, and are different in different social groupings.

THE FUNCTIONS OF CRIMINAL JUSTICE

Crime, as we have seen, is a slippery, variable, protean concept; and criminal justice is equally variable—mutable, time-dependent, culture-dependent. Criminal justice is a particular kind of reaction to crime; and it is worthwhile to say a word or two about its functions (or assumed functions) in society: What is it that this huge, unwieldy system is supposed to do for us?

The answer seems obvious: fight crime. Every society probably has some way to control and limit intolerable behavior. Even blood feuds and vengeance have to follow the rules, in societies that recognize vengeance and feuds. A community in which “anything goes” would tear itself apart in no time; it would make the Beirut of the 1980s look like a Sunday school picnic.

But criminal justice has no monopoly on the business of restraining evil inclinations. It isn’t fear of jail that keeps most of us from robbing, pillaging, raping, murdering, and thieving. Powerful restraints, levers, and controls run the machinery of our selves; governors inside our brains and bodies, reinforced by messages from families, institutions, schools, churches, and communities. Even without police, courts, and jails, they work for most of us, most of the time. b Strong informal controls keep most people in line.

But not everybody. Very, very few social norms are so deeply rooted in the mind that they enforce themselves universally. In our own society, it is hard to think of a good example. If there is a crime on the books, we can be sure there are also violators; many, in fact. This is so, no matter how repulsive the crime—murder, rape, incest, and so on—and no matter how fierce the potential punishment. The taboo against cannibalism may be an exception. The idea of eating human flesh disgusts people; there are so few violators of this norm that cannibalism is not even specifically listed as a crime in the penal codes. When a case does crop up, we tend to assume that the person must be thoroughly unhinged. The rare exceptions are people driven half-mad with hunger—the Donner party, for example, in the nineteenth century. Yet some societies (it is said) allow members to eat human flesh. The taboo is cultural, not instinctual.7

No other norms, alas, seem quite so self-enforcing. Many need help from criminal justice. The help comes in the form of sanctions-rewards and punishments. The punishments are especially obvious. The burglar goes to prison. Embezzlers pay heavy fines. In a few extreme cases, people die in the electric chair or the gas chamber.

Punishments are a common, obvious element in our lives; we take punishment for granted.