CRIME AND PUNISHMENT

The following Bicentennial Essay is the seventh in a series that has been appearing periodically, surveying how America has changed in its 200 years. On the eve of the Revolutionary War, many colonists--and not only Tories--feared that if rebellion came, "the bands of society would be dissolved, the harmony of the world confounded, and the order of nature subverted." Crime and lawlessness would surely accompany any challenge to authority, especially one involving a resort to arms.

It did not happen--not, at least, during the war. In retrospect, that is remarkable. In 1776 there were no municipal police forces and almost no prisons. If a person was the victim of a crime, he would have to find and even apprehend the offender himself. There were sheriffs who could and did make arrests, but only on the basis of warrants issued by courts; there was no provision for arrest on "probable cause," and if a sheriff acted as if there were, he was liable to be sued. Almost everybody was entitled to a trial by jury, but the jury, unlike today's juries, could settle questions of law as well as ones of fact. It was not unusual in those tumultuous days for a person charged with a crime to face a jury composed of sympathetic friends who were quite prepared to ignore a judge's instructions and acquit the accused even though the law and the facts were plainly against him.

Mob action was so common and in the eyes of many so legitimate as to constitute, by 1776, a conventional method of political action. The Boston Tea Party was hardly an isolated case: the mob also rioted to keep food from being shipped out of the colony during lean times, to prevent men from being impressed into the British navy, and to halt the collection of unpopular customs duties. The men who made up these mobs were, as likely as not, also the men to be found sitting in New England town meetings and on local juries.

Accordingly, these were not mobs in the modern sense--that is, collections of unrelated roustabouts looking for fun or profit. As University of Massachusetts Historian Pauline Maier has written: "The Boston mob was so domesticated that it refused to riot on Saturday and Sunday nights, which were considered holy by New Englanders." Indeed, often the "mob" served quite legal ends, as when the hue and cry was set up to apprehend a thief, or when measures had to be taken to deal with public health problems. Small wonder, then, that a member of a mob was rarely convicted for his riotous actions. In the 20th century we have become accustomed to seeing theft and looting accompany mob action, but surprisingly that association did not exist in the 18th century.

Crime not only did not increase during the Revolutionary War, but most of it, at least in New England, continued to involve religious and moral, not acquisitive or violent, offenses. William E. Nelson, analyzing the records of seven populous Massachusetts counties, finds an average of 23 prosecutions for theft each year before 1776 and 24 a year in the five years after 1776, hardly indicative of a crime wave. But there was an average of 72 prosecutions for sexual offenses each year before 1776 and 58 a year from 1779 to 1786, along with about 24 prosecutions a year for religious offenses, like missing church on Sunday.

We have always thought of our colonial forebears as rather puritanical. That there were so many prosecutions on moral and religious charges suggests that this was, indeed, their attitude; that there were so many offenders to be prosecuted suggests that they were not always puritanical in practice. In fact, what appears to be a morals case may have been, in part at least, a budgetary issue. The hundreds of women prosecuted for fornication before 1776 were almost exclusively the mothers of illegitimate children; county officials were eager to prove moral lapses to avoid rendering public assistance to fatherless offspring.

Punishments for criminals in 1776 were in theory quite severe but in practice much less so. In New York 16 crimes were punishable by death, and in Delaware 20. The great majority of convictions, however, resulted in fines or mild forms of corporal punishment--the stocks or the pillory. Banishment from the community in the early colonial period was a serious penalty, for it was by no means clear that a person could survive outside the tiny settlement. Still, severe measures were not unknown. Historian Allan Nevins calculated that in Pennsylvania during the Revolutionary period an average of five felons a year were executed, mostly for robbery or burglary. Because of the public expense, few felons were imprisoned.

Some of the reasons for the relatively low crime rate in the Revolutionary period are obvious. For one thing, cities, the breeding grounds of crime, were quite small. In 1760, Philadelphia, the largest city in the colonies, had a population of only 23,000; Boston had only 16,000 inhabitants, making it equivalent in size to present-day Concord. Furthermore, many of the young men, who inevitably cause a disproportionate amount of mischief, were off fighting with George Washington.

Other reasons are less obvious but perhaps more important. As University of Pennsylvania Historian Michael Zuckerman points out, the colonies before and during the Revolution were made up of isolated communities that used a common method to achieve political consensus, mobilize for collective action, and control crime: the public manipulation of reputations and the creation of a powerful nexus of human interdependence. Majority opinion not only dominated political decision making, but controlled most public and much private conduct as well. This is why there was such frequent resort to humiliation as a penalty. Stocks, pillory, and tar and feathers were effective because the opinion of one's townsmen was so important. The colonists paid a price for government by communal consensus: there was not much privacy, and what we now regard as liberties of conscience often existed only at the pleasure of public opinion.

Though the Revolutionary period was an era of profound political change, it was not until after the war had ended that America saw the results in new laws and changed behavior. The Revolution was above all a struggle to protect and enhance liberty, and though liberty was at first thought to mean only freedom from Britain, in the end the concept extended to a wide range of human affairs. Some prominent men, like President Timothy Dwight of Yale, feared that the new liberality would mean an end to all morality.

In 1786 Massachusetts "decriminalized" fornication, substituting a fine for criminal indictment; in time even that was rarely collected. The law against missing church on Sunday was not seriously enforced after the 1780s; by the 1790s there were only half as many prosecutions a year for religious offenses as before the Revolution. The freedoms granted the non-established, unofficial churches were enlarged, culminating in the passage of the First Amendment to the Constitution. The importation of slaves was forbidden in every state but Georgia and South Carolina, and the outright abolition of slavery occurred in Massachusetts, New Hampshire and Vermont. In 1786 the Pennsylvania legislature reduced the number of crimes for which death was the penalty, and in 1794 it limited execution to those convicted of willful homicide.

The liberalization of the law was followed by an increase in crime. (Whether the former helped cause the latter is unknown and probably unknowable.) Nelson found that, while there were only 23 or 24 prosecutions a year for property crime in Massachusetts before and during the Revolutionary War, by 1784 that figure had more than doubled and by 1790 more than tripled. Of course the population was increasing as well, and so the rate at which crimes were being committed may not (no one knows) have gone up as sharply. But indisputably there was more crime and there were more criminals. The effectiveness of communal control by force of public opinion was fading.

Cities were growing rapidly in size: by 1830 the population of New York City was 242,000, of Philadelphia 80,462. Though not yet industrialized, the cities were nonetheless violent. The decades of the 1830s and 1840s were among the most tumultuous in our history. Rioting became commonplace for reasons that were partly economic (depressions that put artisans out of work or immigration that put them in competition with cheaper labor), partly religious (Catholics, Masons and Mormons were attacked and their buildings burned), partly political (the early anti-slavery agitation), and partly sporting (the drunker members of volunteer fire companies enjoyed pitched battles on their way to or from a conflagration). As many as a thousand lives may have been lost to mob action in the decades preceding the Civil War.

The response to these conditions was the creation of new, specialized institutions to deal with what had once been left to spontaneous and communal control. At the time of the Revolution, the "police" were nothing but night watchmen who set up the hue and cry if a fire broke out or a horse died in the street. But big cities began to suffer more noisome problems. By the 1820s one out of every 65 Bostonians was, according to Haverford College Historian Roger Lane, engaged in selling liquor. The dozen "houses of infamous character" that nourished in the West End of Boston were raided in 1823 by a party of citizens led by Mayor Josiah Quincy. In 1837 a riot between volunteer firemen and an Irish funeral procession was so serious that a militia cavalry regiment of 800 horsemen was required to restore order. As a result of these disturbances, a professional police force was created, modeled after the new London police. In 1863 this force, aided by the militia, put down the Boston Draft Riot; during its course, the previously unarmed police had to acquire weapons and, in its aftermath, decided, with legislative approval, to arm themselves on a regular basis.

Though rioting led to the professionalization of the police, ordinary crime occupied their time and liquor control determined their relations with the public. Between 1860 and 1869 there were 70 murders in Boston. Theft, especially pickpocketing and burglary, were common, and there were some spectacular bank robberies. The Civil War produced great riches for some but, until the perfection of the Yale lock in 1865, there was no effective way of protecting such wealth. In 1864 alone, the Boston police reported that nearly a million dollars had been stolen. Professional detectives emerged who would attempt to recover the loot in exchange for a fee, usually about 10% of the proceeds.

This free-enterprise detective service was quite satisfactory to many citizens, but another aspect of police work was quite disagreeable. The state legislature kept trying to control or ban the sale of liquor in rowdy Boston, and the police were instructed to enforce the unpopular laws. As one might expect, there soon developed a pattern of sporadic, selective enforcement accompanied by charges of corruption and harassment met by countercharges of hypocrisy and stupidity.

Along with the police, the penitentiary was invented. As community control weakened, institutional control increased. But imprisonment was not simply or even primarily an expedient; it was seen as a reform. Gone would be the humiliation of the stocks and pillory, the pain of the whipping post, the agonies of the gallows. In their place would be an institution devoted not simply to confining but also to rehabilitating the offender. In the penitentiary--literally, a place where one repents--the native innocence of man could be restored by the proper combination of solitary reflection and spiritual guidance. The high hopes of the reformers proved, of course, impossibly Utopian--probably in theory, certainly in practice. As crime increased, the prisons were soon overcrowded, and thus neither solitude nor guidance was any longer possible. More important, the breakdown of familial and communal controls that had made prisons necessary in the first place ensured that the prisons could not be successful--how does one reform in a year or two a personality that has been deformed by a decade or two of neglect or abuse?

Within a hundred years after the Revolution, the form--and the problems--of crime and law enforcement had been set in ways that have endured to the present. The community had ceased to be self-regulating and had turned over more and more functions once performed by families and neighbors to policemen, wardens, penitentiaries, almshouses and asylums. The police could maintain order--the mob was no longer tolerated--but they could not prevent crime; they could enforce laws, but not unpopular ones; criminals might fear prison, but they were not reformed by it. With immigration approaching flood levels, the normal disputes over the nature of public order and the sources of criminality were intensified by ethnic cleavages and the distaste for "foreigners." Though evangelical revivals took place from time to time, the police no longer played a large role in enforcing a religious code: in 1884 the Boston police made only 53 arrests for fornication but 16,780 for drunkenness.

In this century crime rates have risen and fallen in response to complex forces we do not well understand. Until the FBI began to keep track of crime in the 1930s, there were not even any national figures to show these changes. The FBI Uniform Crime Reports, though imperfect, reveal some remarkable trends. For example, during the 1930s, reported rates of robbery and burglary declined more or less steadily in spite of (or perhaps because of) adverse economic conditions. In the 1960s the reported rates of these crimes rose despite (or again, perhaps because of) general prosperity.

The crime wave that began in the early 1960s and continues today has been all the more disturbing to citizens because it followed nearly three decades of low or at least stable crime rates. Rising crime during a period of rising prosperity was a profound shock, particularly following an era of political calm, apparent national unity, and widespread optimism about the strength and virtue of American society. No doubt Americans of the 1830s were equally shocked when the tumult and licentiousness of the Jacksonian era followed on the remembered--and perhaps exaggerated--heroics of the Revolutionary years.

America in the 1960s and 1970s has found it harder to respond to crime than America in the 1830s. Earlier, we dealt with the problem by creating new institutions--the police, the prison, the asylum, corporations, the mass political party, local self-government--through which to control dangerous impulses and channel constructive ones. Today there are virtually no institutions left to invent: crime increases in spite of police, prisons, and public and private government. For a long time, and to our great disadvantage, we clung to the myth that there was a bureaucratic or governmental alternative to familial and communal virtue, that what parents, neighbors, and friends had failed to do, patrolmen, wardens, counselors and psychiatrists could provide. We struggled to maintain the hope that the police and schools could prevent crime and that prisons and treatment programs could rehabilitate criminals.

We were wrong. We are coming to the unhappy realization that the police can rarely prevent crime and can solve at best only a small fraction of offenses. We now know that prisons cannot rehabilitate offenders. Hundreds of experimental studies on the treatment of criminals reach the same conclusion: no matter what form rehabilitation takes--vocational or academic training, individual or group counseling, long or short sentences, probation or parole--it does not work. We must finally concede that it is naive to suppose we can take a convict who has devoted a good part of his life to misbehavior of every sort and transform his character.

We enter our Bicentennial year confused, properly humbled, but not necessarily despondent. The conditions of life in the innermost parts of many of our older cities have become, in Thomas Hobbes' phrase, "solitary, poor, nasty, brutish, and short." The near collapse of family structure and communal life in these areas has created, for tens of thousands of people, especially young ones, a social catastrophe that the conventional institutions of a free society are, in the short run, powerless to correct. But for different people and at different times, much the same thing happened: in the cities of the 1830s, the 1880s, the 1910s. Those who survived were the strong, the mobile and the lucky.

From the vantage point of 200 years we should have only modest expectations for what our institutions, facing these problems, can accomplish. We will not eliminate the causes of crime, nor will we rehabilitate offenders in any large numbers. But if prisons cannot rehabilitate, at least they can punish and isolate. Society must be able to protect itself from dangerous offenders and impose some costs on criminal acts. Since most serious crime is committed by repeaters, separating them from the rest of the community, even for relatively brief periods, may produce some reductions in crime. Though recent studies suggest that certainty of punishment significantly deters crime, sentencing in our criminal courts is an irrational process that sometimes results in cell mates serving widely disparate terms for the same offense. Uniform standards for sentencing must replace the idiosyncratic discretion of judges. If our judges cannot be wise, at least they can become consistent. Similarly, if detectives cannot solve many crimes, at least patrolmen ought to be properly deployed to catch more offenders. And if citizens cannot remake ravaged communities, at least governments and private programs can assist them in moving up and out of these dismal neighborhoods. For the rest, patience. The American character is still evolving, and in the decades ahead may become many things--even less criminal.

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