Crime and Punishment in American History - Lawrence M. Friedman [8]
This pricing or rationing function is one of the most obvious ways in which the criminal justice system works in society. It centralizes and socializes the punishment function; it supplements private punishment (ostracism, hitting, scolding). It acts as a substitute for private violence—for blood feuds and vengeance, for a dog-eat-dog society. In general, we do not let people “take the law into their own hands,” although this idea still has romantic appeal. How well the system works, how effective it is, is another question.
There is another, more subtle, function of criminal justice: symbolic, ideological, hortatory. Perhaps it is only a more sophisticated way of accomplishing the first function. When we punish children, we sometimes say we are “teaching them a lesson.” The lesson is about what will happen if they don’t mend their ways. Criminal justice “teaches a lesson” to the people it punishes; and also to the public at large. It is also a kind of banner or flag that announces the values and norms of society. By making burglary a crime, by chasing and arresting burglars, by putting them in prison, the system sends a message about burglary: burglary is wrong, is evil, is deserving of pain, incarceration, disgrace.
Thus criminal justice tells us where the moral boundaries are; where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually, through asserting and enforcing them. (There are lessons from nonenforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.)
The teaching function of criminal justice, its boundary-marking function, is exceedingly important.8 Criminal justice is a kind of social drama, a living theater; all of us are the audience; we learn morals and morality, right from wrong, wrong from right, through watching, hearing, and absorbing. The sections of the penal code, written in crabbed legal language, harbor an unwritten subdocument, a subdocument of community morality. The penal code, after all, can be read as a kind of Sears Roebuck catalogue of norms; it lists things considered reprehensible, and tells us, by the degree of punishment, roughly—very roughly—how reprehensible they are. Groups that dominate society display their power most brutally and nakedly in the police patrols, riot squads, and prisons; but power expresses itself also in the penal codes and in the process of labeling some values and behaviors as deviant, abnormal, dangerous—criminal, in other words.
In short: criminal justice is not just an enumeration of forbidden acts, and what their punishments might be—a price list for disfavored behavior. It is also a guide book to right and wrong conduct, an ethical inventory. If the penal code announces that the punishment for burglary is five years in prison, that is not merely a statement about the (expected) price of burglary. It also pronounces the judgment of society (or some part of society) on burglary: and the punishment, when we compare it to other punishments for other crimes, tells us roughly how evil burglary is—again, as compared to other criminal acts.
This, then, is a second major theme: the history of criminal justice is not only the history of the forms of rewards and punishment; it is also a story about the dominant morality, and hence a history of power. Take burglary again: the rules against it are also rules of power. The system throws its arms of protection