Crime and Punishment in American History - Lawrence M. Friedman [9]
There are some myths and ideals about criminal justice that most people accept without thinking. When men or women are put on trial, we assume the point is to find out whether the defendants are guilty, plain and simple. If they are innocent, they must go free. But the dramatic side, the teaching side, is not so concerned with guilt and innocence. Acts of injustice may send very powerful messages, too. If a white woman accused a black man of insolence or assault, in, say, Mississippi in 1900, his guilt or innocence almost did not matter. He had to be punished. The southern system of power and domination demanded that this message be sent. This, too, was American criminal justice doing its work.
CRIME, CRIMINAL JUSTICE, AND CULTURE
Crime is behavior; and its roots must lie somewhere in the personality, character, and culture of the people who do the acts we condemn. People commit crimes, not “the system.” This much is obvious. It seems equally obvious that behavior reflects what society makes out of people, or fails to make. Committing a crime means that some message was aborted or ignored, some lesson unlearned, some order countermanded, or, at times, some small piece of social rebellion committed. But messages of deviance and misbehavior came from somewhere, too; they were not inborn. And much the same sort of thing can be said about reactions to crime; they, too, occur in individuals, though socially structured and shaped.
Hence the story of crime and punishment over the years is a story of social changes, character changes, personality changes; changes in culture ; changes in the structure of society; and ultimately, changes in the economic, technological, and social orders. These changes are what this book is about. In Puritan Massachusetts, an unmarried man and woman, caught having sex in the barn, could be fined, or put in the stocks, or whipped. A few adulterers even swung from the gallows. In the 1990s, in most states, the couple having sex in the barn is not committing a crime at all, whether married or not. In many cities, a person who is curious can buy a ticket to a theater and watch people make love live, or on film. It is hard to imagine what Cotton Mather, or Thomas Jefferson, would have made of such goings-on.
This book is the story of how such amazing changes in norms took place; and what was in the background, and, if possible, why. This brings us to the third of our main themes: the relationship between crime, criminal justice, and American culture. Very roughly, we will describe three periods, three cultures, three ages of criminal justice: the colonial period, the nineteenth century, and our own times. These periods do not separate from each other neatly; and are of course impossible to sum up, even for our limited purposes, in a single formula. But it will help in organizing our thoughts, and in understanding the past, if we look at three states of culture, which correspond to three forms of freedom.
Freedom, as I use the word, is not a term of philosophy or political theory. It is a word that describes two things, one subjective, the other (relatively) objective. Nobody is free if she feels unfree. But objectively, freedom describes a specific social situation. It is a situation of rights; it is, moreover, a situation of loose ties, of light command, of strained authority ; an attenuation of what is, after all, the more common human condition, historically speaking: tight societies, trying to control the thoughts and actions of their subjects.
Feeling and reality do not necessarily live in harmony. But they have an obvious relationship. American history is, in a way, a history of more and more freedom. I say this not to celebrate this country, only to describe it. Nobody could