Crime and Punishment in American History.

Lawrence M. Friedman BasicBooks, 10 East 53rd St., New York, NY 10022. 577 pp., $30.

Few of us doubt, it seems, that America has a crime problem. Or more precisely, that the tide of lawlessness is lapping at our front doors and threatening to flood the very security, real or imagined, that we expect our government to provide.

Many think our problems would abate if the criminal justice system just got tougher with criminals. In his State of the Union address in January, President Clinton asserted that "violent crime and the fear it provokes are crippling our society." Most accept this as a given. The President urged Congress to enact anti-crime measures to lock up three-time violent offenders for life, put 100,000 more police officers on the streets, and create boot camps for juveniles who violate the law.

As if to punctuate a year in which crime and the perhaps failing criminal justice system grabbed headlines, the major dailies reported a few days after the President's address that gunshot wounds would probably kill more people annually than auto accidents by the year 2003.

Into this climate of fear and obsession with crime and criminal justice comes Lawrence Friedman's book, Crime and Punishment in American History. Friedman, a professor of law at Stanford University, delivers a compelling and generally well-written account of criminal justice during three roughly distinct periods in U.S. history: colonial America, the Revolution to the end of the 19th century, and the 20th century.

A tentative conclusion, and major theme, of Friedman's is that "the siege of crime may be the price we pay for a brash, self-loving, relatively free and open society." Also: "[Crime] is part of us, our evil twin, our shadow; our society produced it. It is part of the American story, the American fabric." Given these conclusions, many scholars might be tempted to pronounce crime control efforts hopeless and, instead, explicate on the inevitable anarchy that lies ahead. Friedman declines to forecast further degeneration; however, the implication of his conclusion is nonetheless disturbing since it leaves little room for doubt.

The dominant thesis of the book, which Friedman admits is self-evident, is that "judgments about crime, and what to do about it, come out of a specific time and place." This is made quite clear in reading Part I (the colonial period). Colonial communities were tightly organized and tightly run. Criminal justice was the business of amateurs; community leaders made and enforced the laws. The justice system also was patriarchal; that is, it punished offenders ("sinners") and brought them back into the fold.

The influence of religion on shaping criminal codes and the justice system in colonial America cannot be overstated, according to Friedman. Thus, it is not surprising that blasphemy, general lewdness, and bad behavior were crimes, sometimes resulting in brutal punishments--whipping, branding, nailing an offender's ear to the pillory, and, in some cases, death. Due process as we know it did not exist. There were few trained lawyers or, for that matter, judges. In any event, Friedman states that community leaders had a certain hostility toward lawyers. (Does this sound familiar?)

In general, Friedman does an excellent job of summarizing the elements of criminal justice in each of the given time periods, and then driving home his point with vivid anecdotes. One criticism of the book may be that it relies too heavily on anecdotes to describe the early justice system. However, Friedman notes that the literature on criminal justice in some periods--ironically, the 19th century more so than the colonial period--is not as developed as one may think.

Nevertheless, the description of criminal justice from the Revolutionary War to the end of the 19th century is fully explored. Three themes dominate: the impulse to reform the law and make it conform to republican ideals; the evolution toward professionalism (police, prosecutors and defense lawyers, judges, and prison administrators); and the influence of American social conditions, particularly the mobility of American life. While not yet jetting from one coast to the other, Americans no longer lived in isolated clans.

In Part II, and, for that matter, throughout his book, Friedman elaborates fully on the effects of criminal justice on two historically oppressed groups in America: women and African-Americans. (Justice-system treatment of juveniles and other minorities also is sprinkled throughout the book.) The Bill of Rights meant one thing to white men, and quite another to women and African-Americans. Slavery, of course, was not considered a "crime," whereas a white who helped a slave escape in Kentucky committed a "crime" punishable by death. Virginia was a little more lenient than Kentucky. A free person who spoke out against slavery could be jailed for up to a year or fined up to $500.

By their very nature, the final chapters of this book are less about history than they are about the current criminal justice system: the "drug war" (and the somewhat analogous Prohibition), the rise in white-collar and organized crime, the Warren Court's effort to put teeth in "due process" and the apparent back-lash, prisoners' rights, the increasing professionalism police organizations.

In the final chapter, aptly titled "A Nation Besieged," Friedman argues that there may be little more we can do to contain crime. For one thing, we cannot and will not adopt the savage and draconian measures that might actually deter crime. For example, Americans today would not accept a criminal justice system in which thieves had a hand cut off or citizens caught with drugs were summarily and publicly executed (as is the case in Malaysia). Partly as a result of this, Friedman accepts the quite defeatist view that there may be nothing for Americans to do but grit their teeth and pay the price. Although not an entirely satisfactory conclusion to the problems of criminal justice, Friedman nonetheless offers an insightful book that is highly readable at the same time.

David Ransom is a lawyer and writer in ATLA's Public Education Department.