Reading Notes: Friedman, Ch. 5
Friedman, Lawrence M. 2002. Law in America: a short history. New York, NY: Modern Library.
Chapter 5: Crime & Punishment in the Republic
1. Definition of Crime:
a. Behaviors that the state undertakes to punish.
b. Varies based on culture, time, and place.
c. Exists in every society.
2. Crime & Punishment in Colonial America
a. All “evil acts” are crimes. Sin = Crime; violations of moral code were punished on a regular basis. No such thing as a “victimless crime.” (76)
i. Example: fornication/adultery, idleness, breaking Sabbath
b. Except for debt, crimes rarely resulted in imprisonment. Death penalty and banishment were reserved for “hopeless cases” but all colonies did this to some extent. Punishments were public and bodily, meant to teach the offenders the errors of their ways. (77-79)
i. Example: public degradation, branding, whipping, sitting in the stocks
ii. Even the death penalty was carried out in the public square – the hangman.
c. These practices did not apply to slaves.
3. Criminal Justice in the Nineteenth Century
a. The rise of the penitentiary was brought about as urban areas grew and bonds of tight-knit communities were severed. (81)
i. Movement against death penalty and public executions. (89-90)
ii. Replaced the hangman; goal was to remove the offenders from society and bring about rehabilitation through discipline and detachment from the outside world. (81)
iii. Another goal was “making the system more rational” by creating a “code” – if an act was not defined by this code, it could no longer be considered a criminal act. (82) This was meant to make the system more scientific and professional; to focus on the offender, not so much the offense. (87)
b. Police forces began cropping up in U.S. cities by 1850 and nearly every city had a police force by the late 19th century. (82)
i. “Corruption and brutality were rampant.” (83)
c. Reforms in the late 19th century
i. penitentiaries were replaced by “reformatories” which were less harsh.
ii. Inderterminate sentences, probation, and parole were inventions meant to deal with each offender and crime on a case-by-case basis. (83-85)
1. Probation problematic because power shifted to the probation officer and much of their determinations were arbitrary and not bound by evidence. (85)
iii. People’s concern grew about the treatment of juveniles in the system, and this brought about the rise of juvenile courts. (85-86)
1. Problematic because it wasn’t bound by code, and youths could be sent to “prison” (reformatories, industrial schools, etc) for things not considered crimes for adults.
2. Also used to deal with abused/neglected/abandoned children and children who lived in undesirable situations on the streets or in “houses of ill-repute”
iv. Struggles to define “insanity,” as only those of sane mind could be convicted of a crime. (87-88)
1. Problematic because arguments would ensue regarding the sanity of the accused, but despite best efforts to be scientific, it would come down to gut feelings of the jurors.
d. Other issues in 19th Century Criminal Justice:
i. The death penalty was used less and less and the list of capital crimes became shorter – eventually being reduced to just three: treason, murder, and rape. Public executions were mostly done away with, gallows were erected in private yards at the jails. The electric chair was brought into use in New York in the 1880s (and over time, several states adopted this method).
ii. Criminal Justice “System” is a bit of a misnomer, as it implies order and “clean lines of authority.”
1. Legislatures, police, prosecutors, judges, and juries do not make a linear hierarchy, each operating independently of the others.
2. A tiered criminal court system processes cases differently in each tier.
a. Plea-bargaining began sometime in the 19th century and has kept many cases out of trial courts since.
b. For the first time, defendants were given the right to testify for themselves.
c. Rules of evidence became more and more complicated in jury trials.
iii. The early 19th century produced the “Victorian Compromise” which acknowledged so-called victimless crimes and punished only the most blatant offenders. By the late 19th century (into the 20th century), this had shifted again and “the battle against immorality heated up.”
a. The Comstock Law of 1873 made it illegal to distribute “filth” through the mail.
b. An 1895 federal outlawed interstate lotteries.
c. The temperance movement began in the 19th century and brought on prohibition of alcohol (the 18th Amendment) and the Volstead Act which enforced it in the 1920s.
d. A 1907 Arkansas law which banned the manufacture, distribution, and sale of cigarettes was brought on by this same “battle against immorality.”
e. Abortions became a criminal act.
f. Legal controls on sexual behavior were tightened. The age of consent was raised from 10 (common law) to 16 in most states and as high as 18 in some (CA, NE, ND, and TX). A frenzy over the “white slave trade” (prostitution trafficking) ensued leading to the Mann Act of 1910. The “red-light abatement movement” was an attempt to close down red-light districts.
iv. Selling and using drugs were not crimes. Some regulation existed in the form of laws and ordinances aimed at opium dens, but otherwise was not an issue in the 19th century.
a. New technology and social change created the need for changes to the criminal code and new techniques for “controlling unwanted behavior”
i. The automobile (invented in the early 20th century) made certain types of crimes easier (bank robberies, for example).
ii. Rise in “organized crime” (Mafia, criminal gangs).
iii. Late 20th century computers and the introduction of hackers and “cyberporn.”
b. The federal government became significantly involved in criminal justice matters.
i. First federal prison opened in 1891, on the rise into the 20th century
ii. Federal legislation increased the number and importance of federal crimes: the Mann Act, the National Motor Vehicle Theft Act, draft evasions, sales of black market beef, tax fraud and evasion, narcotics and prohibition cases, etc.
1. 1910: 15,371 total federal criminal cases
1932: 70,252 Prohibition cases alone
1932: 70,252 Prohibition cases alone
c. Crime became an issue of national importance and a focus of presidential politics.
d. J. Edgar Hoover’s FBI brought the federal government “into the law enforcement business”
i. “ten most wanted” list was subject of public fascination
e. The advent of mass media (radio, TV, movies) brought national attention to local issues
f. Enormous increases in violent crime after 1950 led to enormous changes in policy agendas and implementation
i. Supreme Court and state legislatures’ policy agendas at odds: Warren’s court was expanding rights for criminal defendants while states were tightening laws, building more/bigger prisons, dismantling institutions that provided too many rights & privileges for prisoners
1. California’s 3-strikes law
2. Indeterminate sentences abolished in several states; mandatory sentencing took its place.
a. “Truth in Sentencing Laws” implemented in some states ensured that convicts served at least 85% of sentence
3. Parole system heavily challenged, eliminated outright in some states.
ii. Federal government gave “incentive grants” for building prisons to states that had tighter laws (listed above).
iii. The rise of the “American gulag” in the late 20th century
1. 1997: 1.6 million men and 133K women in prison + 3.9 million on probation/parole
2. 1998: California had more prisoners than France, GB, Germany, Japan, Singapore, & Netherlands combined.
3. Violence, extortion, rape became commonplace in prisons; “factories for crime”
g. Other issues in 20th Century criminal justice:
i. in the first half of the 20th century, the movement away from the death penalty continued – some states abolished it completely (WI, MI, HI), others reserved it only for murder (and rape, in the South, if it was committed by black men against white women).
1. 1950 Gallup poll: slight majority AGAINST death penalty; spiked after the 1950s (declined again in the 2000s)
2. Furman v. Georgia (1972): SCOTUS declared all existing death penalty statutes unconstitutional in a 5-4 decision
3. 1976: Georgia came up with a plan for the death penalty acceptable to SCOTUS – case-by-case consideration for death penalty, mitigating factors taken into account by jury, statutory list of “aggravating circumstance,” mandatory review of each case by GA Supreme Court. Other states followed suit with similar laws.
4. Capital punishment remains a complicated issue –
a. some states do not allow it; some allow it but rarely if ever use it; some states have hundreds on death row but rarely execute anyone.
b. Most executions occur in Southern and border states.
c. Texas accounts for 1/3 of all executions (248 executions between 1976 & 2001)
d. Inmates wait on death row for years, sometimes decades, to be executed.
ii. The 19th century’s focus on sexual behaviors was replaced by the war on drugs in the 20th century
1. The War on Drugs contributes tremendously to the rise of inmate populations. Life imprisonment for serious drug offenses is possible in some states.
2. Billions of dollars spent by federal government on drug enforcement.
iii. The CJS has a disproportionate impact on racial minorities (particularly African-Americans), and this has increased over time.
1. 1939: 26% of prison population was black
2. 1985: 46% of prison population was black
3. 1999: 2.8 times as great as the rate in 1980; 8.2 times as great as the rate for whites.
4. Almost 1/3 of all black males were in prison, jail, or on probation/parole in the 1990s
5. The death penalty applied disproportionately to blacks.
6. The war on drugs affects blacks disproportionately
i. Crack v. Powder cocaine – crack receives harsher treatment; 95% of all federal crack prosecutions brought against blacks