Crime And Punishment In American History Part 6

American diversity is obvious: a rainbow of colors, shapes, habits, and human designs. The h.o.m.ogeneity is just as real. In parts of the Old World, in the past, every valley had its own dialect, every village was an island; few people traveled outside a short radius of distance. Villages, groups, and towns grew more and more different over time, like the beaks of Darwin's finches. But America in the 1990s is one country in a blindingly literal sense. Satellite communication and jet airplanes make a mockery of distance and time. Even those too poor or sick or stuck in their rut to move about themselves have a window on the whole country (and the world) through the nearest television set.

One of the most profound trends in the history of government, law, and society in this century is the drift or pull or rush toward the center. The national government has become more and more powerful, has done more and more, matters more and more, fills more and more of our political and social consciousness. Yet the states have by no means withered away. Their governments are more important than ever in an absolute absolute sense-they do more, tax more, spend more. But compared to the federal government, they have consistently lost power and influence. Schemes to revitalize the states, the periodic "new federalisms" and the like, are always dead on arrival. The big show, the main show, is now Washington, D.C.; and the big gun is the president, not the governor or the mayor. sense-they do more, tax more, spend more. But compared to the federal government, they have consistently lost power and influence. Schemes to revitalize the states, the periodic "new federalisms" and the like, are always dead on arrival. The big show, the main show, is now Washington, D.C.; and the big gun is the president, not the governor or the mayor.

In the twentieth century, the state boundaries have become increasingly porous. They are more or less arbitrary boundaries, to begin with; there is no big culture difference between North and South Dakota, or, for that matter, between Maine and Florida. Even the differences in culture between regions-the South, New England, the West-are slacking off, because of migration from region to region, and, more important, the transmission of sounds, pictures, people, and bytes across s.p.a.ce. Cars stream freely across state lines; they hardly even slow down. There are no border guards, no customs declarations. Yet one point has to be made. Jurisdiction Jurisdiction stops at the border: the boundary between North and South Dakota is a fine mesh that lets everything flow through except one: the law. The penal code of North Dakota means nothing once you cross the frontier into South Dakota. stops at the border: the boundary between North and South Dakota is a fine mesh that lets everything flow through except one: the law. The penal code of North Dakota means nothing once you cross the frontier into South Dakota.

In the nineteenth century, there was less traffic across the lines; and it was slower. We have stressed American mobility in the nineteenth century. Still, there were physical limits. It took months to get from Missouri to Oregon in, say, 1850; the trip was grueling and dangerous. Eventually, the railroad cut the trip to about a week. Cars were soon as fast, and more convenient. Then the airplane made distance meaningless. Jet travel eliminated, for all practical purposes, the places in between. When you fly from coast to coast, you don't go through through the midwest; you just fly over it. the midwest; you just fly over it.

This is physical travel. Ideas and pictures travel even faster. The whole country watches the president on TV-simultaneously. This is new. Technology makes this one country, with one capital, one primary center of power.

Federal Crimes These facts of twentieth-century life do not automatically translate into changes in criminal justice. But if the central government swells and bloats, that must have consequences. In our century, federal laws have piled one on top of the other, and then some: laws about taxation, welfare, business regulation, and the like. The Internal Revenue Code is perhaps the most awesome and convoluted of all federal statutes. The income tax dates from 1913.6 The tax code is not, of course, a criminal code, but cheating on taxes is most definitely a crime, including failure to file a return or filing a "false or fraudulent return." The tax code is not, of course, a criminal code, but cheating on taxes is most definitely a crime, including failure to file a return or filing a "false or fraudulent return."7 The Internal Revenue Service makes some startling arrests of prominent people; countless millions were and are aware of the shadow of the IRS, looking over their shoulders. The Internal Revenue Service makes some startling arrests of prominent people; countless millions were and are aware of the shadow of the IRS, looking over their shoulders.

The federal leviathan grew and grew in the twentieth century, and this expanded the sheer number number of federal crimes, big and small. In the same session that enacted the income-tax law, Congress made it a crime to take commercial sponges "measuring when wet less than five inches in their maximum diameter" from the Gulf of Mexico or the Straits of Florida; it became a crime also to violate the Cotton Futures Act. of federal crimes, big and small. In the same session that enacted the income-tax law, Congress made it a crime to take commercial sponges "measuring when wet less than five inches in their maximum diameter" from the Gulf of Mexico or the Straits of Florida; it became a crime also to violate the Cotton Futures Act.8 Each session of Congress peppered the statute books with regulatory crimes. The New Deal accelerated the process; and there was no letup in the post-New Deal world. Each session of Congress peppered the statute books with regulatory crimes. The New Deal accelerated the process; and there was no letup in the post-New Deal world.

In the nineteenth century, Congress was a caged tiger. But the tiger burst out of its cage in the twentieth century. The Mann Act (the so-called White Slave Law), pa.s.sed in 1911, was a remarkable instance of the tiger on the loose.9 This law put the federal government squarely into a life-area (s.e.x), which had been as purely state and local a concern as anything in the whole legal system. And this was only the beginning; next came tougher drug laws-the start of a long, unhappy marriage-and then Prohibition, which came and went. This law put the federal government squarely into a life-area (s.e.x), which had been as purely state and local a concern as anything in the whole legal system. And this was only the beginning; next came tougher drug laws-the start of a long, unhappy marriage-and then Prohibition, which came and went.

Congress took another giant step in 1919, when it pa.s.sed the so-called Dyer Act, the National Motor Vehicle Theft Act. This law, in essence, made it a crime to drive a stolen car across state lines, or to deal in stolen cars that had moved across state lines.10 In In Brooks v Brooks v. United States United States (1925), the Supreme Court unanimously upheld the law, even though it seemed to stretch the power of Congress under the "interstate commerce" clause of the Const.i.tution. Chief Justice Taft cited the Mann Act, "the radical change in transportation" brought about by the automobile, and "the ease with which evil-minded persons can avoid capture." The Chief Justice spoke darkly, too, of "elaborately organized conspiracies" to steal cars and spirit them away into other states. It was this situation that had "roused Congress to devise some method for defeating the success of these widely spread schemes of larceny." (1925), the Supreme Court unanimously upheld the law, even though it seemed to stretch the power of Congress under the "interstate commerce" clause of the Const.i.tution. Chief Justice Taft cited the Mann Act, "the radical change in transportation" brought about by the automobile, and "the ease with which evil-minded persons can avoid capture." The Chief Justice spoke darkly, too, of "elaborately organized conspiracies" to steal cars and spirit them away into other states. It was this situation that had "roused Congress to devise some method for defeating the success of these widely spread schemes of larceny."11 In short, new technology, with its lightning speed and crushing power, was beyond the reach of the thin arms of local government; the federal government alone could save the day. In short, new technology, with its lightning speed and crushing power, was beyond the reach of the thin arms of local government; the federal government alone could save the day.

Leviathan grows especially fat during wartime. The First World War, no exception to this rule, stretched the powers and capacities of the federal government. The war brought with it still more federal crimes, though mostly temporary ones: evicting the family of a soldier or sailor, or repossessing goods sold to a serviceman on the installment plan.12 The war also revived treason and espionage as issues. The great Red Scare, right after the end of the war, plunged the federal government into the dirty and dubious business of sniffing out dissenters, squashing left-wing opinion, looking hysterically for wild-eyed anarchists and bushy Bolsheviks, and generally trampling on the right of free speech (see chapter 16.) The war also revived treason and espionage as issues. The great Red Scare, right after the end of the war, plunged the federal government into the dirty and dubious business of sniffing out dissenters, squashing left-wing opinion, looking hysterically for wild-eyed anarchists and bushy Bolsheviks, and generally trampling on the right of free speech (see chapter 16.) Probably nothing in the first half of the twentieth century matched Prohibition in expanding the federal crime effort. The Prohibition Amendment, which outlawed the liquor trade, was followed by the Volstead Act (1919), which provided the teeth and the mechanism for carrying this out (see also chapter 15.) Prohibition is often described as a dead letter, but it was an extremely lively corpse. The a.s.sistant attorney general in charge of Prohibition, Mabel Willebrandt, reported in 1924 that the federal courts were "staggering" under a load of liquor cases-over 22,000 cases were pending at the end of the fiscal year.13 The federal war against demon rum used some newfangled weapons, such as wiretapping; for this and other reasons, many important const.i.tutional cases, on such issues as illegal searches and seizures, came out of a Prohibition background. The federal war against demon rum used some newfangled weapons, such as wiretapping; for this and other reasons, many important const.i.tutional cases, on such issues as illegal searches and seizures, came out of a Prohibition background. br br Prohibition sputtered to an inglorious end at the beginning of the New Deal period in the thirties. In general, the New Deal sucked power away from the states and into the federal government, in response to the crisis of the Great Depression. The crime role of the central government also increased. In March 1932, a great crime horrified the country: the kidnapping of Charles Lindbergh's baby. Lindbergh was, of course, an American hero, the first person to fly solo across the Atlantic Ocean. The Lindberghs paid the ransom, but the baby boy had, in fact, been murdered the day he was kidnapped. Bruno Hauptmann, an immigrant carpenter, was arrested, tried, and executed for the crime. Meanwhile, Congress reacted to the uproar by pa.s.sing the so-called Lindbergh Act, which made it a federal crime to take across state lines anybody who had been "unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted or carried away ... and held for ransom or reward."16 Walter Weisenberger, president of the St. Louis Chamber of Commerce, argued before the House Judiciary Committee that if federal force could follow prost.i.tutes and stolen cars, why not the fiend who stole a child "from the mother's breast." Walter Weisenberger, president of the St. Louis Chamber of Commerce, argued before the House Judiciary Committee that if federal force could follow prost.i.tutes and stolen cars, why not the fiend who stole a child "from the mother's breast."17 In 1934, the Lindbergh Law was tightened: the death penalty was added. If the victim was missing for seven days, a In 1934, the Lindbergh Law was tightened: the death penalty was added. If the victim was missing for seven days, a presumption presumption arose that some state line had been crossed and the FBI could enter the picture. arose that some state line had been crossed and the FBI could enter the picture.18 Lindbergh Act cases were never much of a burden on the courts, of course. But the law reflected a national mood, a feeling that the federal government and its agencies had a role to play in crime-fighting. Crime had become interstate. Crime was not just a few evil men, skulking in local comers. Twentieth-century criminals had wheels and wings. Moreover, like big business, crime was no longer a mom-and-pop, small-time affair. Now there was organized organized crime as well. Organized crime was run along the lines of a business, with "capital investment, a regular payroll, and problems of manufacture, distribution, and retailing." Some kinds of crime cried out for scale, for "coordination" or "consolidation." For example, bookmaking needed a wire service. Small-time gamblers lacked enough capital to cover their losses on an unlucky day. Larger organizations thus had a compet.i.tive edge. crime as well. Organized crime was run along the lines of a business, with "capital investment, a regular payroll, and problems of manufacture, distribution, and retailing." Some kinds of crime cried out for scale, for "coordination" or "consolidation." For example, bookmaking needed a wire service. Small-time gamblers lacked enough capital to cover their losses on an unlucky day. Larger organizations thus had a compet.i.tive edge.19 The FBI grew big and strong on the basis of the idea and the reality of large-scale crime, as we shall see. The FBI grew big and strong on the basis of the idea and the reality of large-scale crime, as we shall see.

In 1934, Congress pa.s.sed a flock of new penal laws. One of these made it a crime to rob a national bank; another criminalized "extortion by means of telephone, telegraph, radio"; another, the National Stolen Property Act, made it a crime to transport "any goods, wares, or merchandise, securities or money" worth $5,000 or more across state lines, or to receive this kind of stolen property, knowing it to be stolen.20 Still another act made it a crime to flee from one state to another to avoid prosecution for murder, kidnapping, burglary, robbery, mayhem, rape, a.s.sault with a deadly weapon, or extortion accompanied by threats of violence, or to flee across state lines to avoid giving testimony in criminal proceedings. Still another act made it a crime to flee from one state to another to avoid prosecution for murder, kidnapping, burglary, robbery, mayhem, rape, a.s.sault with a deadly weapon, or extortion accompanied by threats of violence, or to flee across state lines to avoid giving testimony in criminal proceedings.21 That same year, Congress pa.s.sed a National Firearms Act, which taxed and regulated the sale of guns, including machine guns. Violations of the act were, of course, federal offenses. That same year, Congress pa.s.sed a National Firearms Act, which taxed and regulated the sale of guns, including machine guns. Violations of the act were, of course, federal offenses.22 The Federal Courts These laws, and later criminal statutes pa.s.sed by Congress, had a c.u.mulative effect on the federal courts. At the beginning of the century, as we have seen, the federal courts handled few criminal cases. The number rose with the number of federal crimes. For example, for the year 1915, the U.S. attorney general reported that 135 people were convicted of violating federal meat inspection laws; and there were even three convictions (with fines) for violating a migratory bird law.23 In the Prohibition years, vast numbers of liquor cases poured into the federal courts. In the fiscal year 1924, in addition, no less than 590 cases were "disposed of by the imposition of fines" under the migratory bird law. There were also 264 food-and-drug cases in that year, and 183 of these resulted in fines. In the Prohibition years, vast numbers of liquor cases poured into the federal courts. In the fiscal year 1924, in addition, no less than 590 cases were "disposed of by the imposition of fines" under the migratory bird law. There were also 264 food-and-drug cases in that year, and 183 of these resulted in fines.24 In the fiscal year ending June 30, 1940, there were 48,856 criminal cases in the federal district courts of the forty-eight states. Prohibition was over, but even so, almost half of these (23,448) were liquor cases, mostly for violations of liquor tax laws. There were 3,504 immigration act violations; the Motor Vehicle Theft Act contributed 2,309 cases; narcotics laws, 3,572; postal law violations (including postal frauds), 3,195. The Mann Act contributed a healthy 663 cases; and there were 2,587 cases of counterfeiting and forgery. The rest was a miscellaneous, and somewhat surprising lot-890 violations, for example, of the Migratory Bird Act, which is quite a flock of birds.25 Criminal caseloads in federal courts do not show constant, linear growth. In 1961, the number of cases had declined to 28,460. Liquor cases had largely disappeared from the dockets. Auto theft, with 5,098 cases, was the largest single category, and there were 1,524 narcotics cases. By fiscal year 1973, the federal criminal docket had climbed back up to 40,367. Auto theft cases were down to a mere 1,960, but there had been a huge jump in narcotics cases (to 8,817), and there was a significant number of cases under other federal statutes, including 136 criminal cases involving civil rights.bs The federal criminal docket continued to grow in the 1980s. In 1985, 53,060 men and women were tried in federal court on criminal charges27 in 1990, the total was 65,359. Of these, 23,193 were drug defendants. The next largest category was fraud, with 9,685 defendants. There were 8,662 cases of drunk driving, which seems surprising; but these were drunks who drove in national parks and other federal enclaves. The old liquor tax offenses had shriveled to a mere 13 defendants, and auto thefts were down to 363. in 1990, the total was 65,359. Of these, 23,193 were drug defendants. The next largest category was fraud, with 9,685 defendants. There were 8,662 cases of drunk driving, which seems surprising; but these were drunks who drove in national parks and other federal enclaves. The old liquor tax offenses had shriveled to a mere 13 defendants, and auto thefts were down to 363.28 What is most noteworthy about this catalogue of cases is its somewhat erratic quality. State dockets fluctuate, too, but there is a fairly steady and predictable diet of a.s.sault, burglary, theft of various forms, and the like. The federal docket is all fits and starts. Prohibition came and went. The effort to catch auto thieves came and went. The Mann Act came and went. Today, drug offenses have taken over these empty nests. The progress of regulatory offenses has been somewhat steadier, though here, too, there are peaks and troughs. Federal criminal justice, then, has been more subject to the changing winds of politics, to fashions and movements, than the state systems; it has been more ancillary, less fundamental in its focus.

It is still true today that the sum of the state systems completely dwarfs the federal system. Felony prosecutions in federal courts amount to less than 2 percent of the national total. In the 1980s, according to one estimate, there were about one million felony filings in state courts; if misdemeanors, traffic cases, and the like, are thrown in, the total goes over ten million.29 In 1990, there were said to be 1,790,428 criminal filings in Texas alone. In 1990, there were said to be 1,790,428 criminal filings in Texas alone.30 Federal filings, quant.i.tatively at least, are a spit in the ocean. Federal filings, quant.i.tatively at least, are a spit in the ocean.

One other factor must be mentioned. In the twentieth century, the standards standards of criminal procedure have been nationalized to a considerable degree. This was most blatantly the work of the Supreme Court under Earl Warren, and it reached its climax in the fifties (see chapter 14.) States can no longer ignore what the federal courts say about the Bill of Rights. They must pay attention to federal standards. of criminal procedure have been nationalized to a considerable degree. This was most blatantly the work of the Supreme Court under Earl Warren, and it reached its climax in the fifties (see chapter 14.) States can no longer ignore what the federal courts say about the Bill of Rights. They must pay attention to federal standards.

Law Enforcement and Corrections The federal government was such a bit player in criminal justice in the nineteenth century that it did not even have a prison it could call its own before 1891, except for soldiers and sailors.31 It boarded out its other prisoners in state and local jails. In January 1877, twenty-five of the fifty inmates in the Alameda County, California, jail were federal prisoners. Most of them were Chinese, sentenced for "peddling or selling unstamped matches or cigars," a federal tax crime. In 1887, Congress made it illegal for states to "hire or contract out the labor" of federal criminals housed in their prisons and jails. It boarded out its other prisoners in state and local jails. In January 1877, twenty-five of the fifty inmates in the Alameda County, California, jail were federal prisoners. Most of them were Chinese, sentenced for "peddling or selling unstamped matches or cigars," a federal tax crime. In 1887, Congress made it illegal for states to "hire or contract out the labor" of federal criminals housed in their prisons and jails.32 Up to this point, the prisoners had cost the states little or nothing; now they began to charge by the head for putting up these prisoners. Up to this point, the prisoners had cost the states little or nothing; now they began to charge by the head for putting up these prisoners.33 In 1905 in California, the federal government was paying forty cents per day per prisoner. In 1905 in California, the federal government was paying forty cents per day per prisoner.34 In 1891, Congress authorized construction of three federal prisons. The first one open for business was Fort Leavenworth, in Kansas. It had originally been a military fort. The Department of Justice took it over in 1895. A second prison opened in Atlanta in 1902; the third prison was a converted territorial jail on McNeil Island in Puget Sound.35 These three were the only federal prisons until 1925. By 1930, there were five, one of them a women's prison, the Federal Industrial Inst.i.tution for Women, which opened in 1927 at Alderson, West Virginia (see chapter 18). In 1930, Congress pa.s.sed an act creating a federal Bureau of Prisons within the Department of Justice. The attorney general under this act had power to "establish and conduct industries, farms, and other activities; to cla.s.sify the inmates, and to provide for their proper treatment, care, rehabilitation, and reformation." These three were the only federal prisons until 1925. By 1930, there were five, one of them a women's prison, the Federal Industrial Inst.i.tution for Women, which opened in 1927 at Alderson, West Virginia (see chapter 18). In 1930, Congress pa.s.sed an act creating a federal Bureau of Prisons within the Department of Justice. The attorney general under this act had power to "establish and conduct industries, farms, and other activities; to cla.s.sify the inmates, and to provide for their proper treatment, care, rehabilitation, and reformation."36 The federal prison system, like most state systems, came to consist of specialized inst.i.tutions. They have ranged from the more relaxed, "country club" prisons, to the grim steel-and-concrete dungeons of ultra-maximum security, reserved for the most desperate or despised of prisoners. This was the role of "The Rock," the notorious prison at Alcatraz Island, a wind-swept and jagged bit of land in San Francis...o...b..y, which began its career in 1934.

Alcatraz is on a hill, looking out deceptively at the lights and towers of San Francisco, shimmering across a narrow but treacherous body of water. No one, as far as is known, ever made good an escape from Alcatraz, except in the movies. Alcatraz housed Al Capone and dozens of other hardened criminals or plain lost souls. It shut its doors in 1963, rotted for a while, was occupied for a spell by a group of militant Native Americans, then restored somewhat. It is now a major tourist attraction. Every day, hundreds of Americans and foreign visitors take the ferry from San Francisco, scurry up from the dock, poke their noses into the bare, metallic cells, stare at the naked walls, laugh at the jokes of the guides, and buy souvenir T-shirts to remember their visit.

Alcatraz is "history," but the federal prison system is far from quaint and historical. It shows no signs of turning into Disneyland, or a theme park of yesterday's crime. The number of federal prisoners has grown steadily over the years. In 1890, there were fewer than 2,000 federal prisoners ; in 1915, there were about 3,000;37 by 1930, the numbers had reached 26,000 (half of these, however, were military prisoners); by 1930, the numbers had reached 26,000 (half of these, however, were military prisoners);38 on January 1, 1940, there were 20,000 nonmilitary prisoners; in 1980, slightly under 25,000; the drug wars boosted the figures so that by the mid-1980s the number of prisoners ranged between 35,000 and 40,000. on January 1, 1940, there were 20,000 nonmilitary prisoners; in 1980, slightly under 25,000; the drug wars boosted the figures so that by the mid-1980s the number of prisoners ranged between 35,000 and 40,000.39 On December 31, 1989, the system housed 53,347 men and women-86.6 percent of them sentenced, 13.4 percent awaiting sentence. On December 31, 1989, the system housed 53,347 men and women-86.6 percent of them sentenced, 13.4 percent awaiting sentence.40 The Bureau of Prisons controlled some forty-seven inst.i.tutions in various parts of the country. The Bureau of Prisons controlled some forty-seven inst.i.tutions in various parts of the country.41 Of course, there are vastly more state than federal prisoners, in 1992 as in 1900. But the federal system is slowly catching up. In 1910, there were 66,831 prisoners in state inst.i.tutions as compared to 1,904 in federal prisons-thirty-five times more. In 1940, the figures were 146,325 and 19,260, respectively; by then the state totals were only seven and a half times as great. In 1980, 261,292 men and women were in state prisons, 41;085 in federal prisons, a ratio of about six to one.42 But there are still, today, about twice as many prisoners in California's prisons (about 100,000) as in the whole federal system. It remains to be seen what the future will bring. But there are still, today, about twice as many prisoners in California's prisons (about 100,000) as in the whole federal system. It remains to be seen what the future will bring.

As the federal law of crimes has grown, so, too, has federal law enforcement, which did not amount to much before 1900. In 1908, a Bureau of Investigation was created inside the Justice Department. This was the rather Napoleonic brainchild of Attorney General Charles J. Bonaparte (who was, in fact, a relative of Napoleon). Bonaparte had asked for authority to hire investigators. When Congress failed to give him what he wanted, he struck out on his own. He issued an order organizing a small investigating staff. The president, Theodore Roosevelt, who had Napoleonic tendencies of his own, transferred eight agents from the Secret Service to this brand-new bureau.43 President Taft's attorney general, George W. Wickersham, ratified the action. President Taft's attorney general, George W. Wickersham, ratified the action.44 Out of this bureau, and these modest beginnings, grew the famous (and sometimes notorious) Federal Bureau of Investigation (FBI). In 1921, J. Edgar Hoover became a.s.sistant director of the agency, and in 1924 he took over as director. Hoover dominated the agency from then until his death in 1972, a period of some forty-eight years. During that time, presidents came and went, but Hoover stayed. He exercised immense power, surviving the gyrations and perturbations of politics. He became, in the words of one critic, "the greatest untouchable in American history."45 Franklin Roosevelt's administration must shoulder some of the responsibility for boosting the FBI's power. When Congress created a flock of new federal offenses in 1934, the FBI was given the job of enforcement. 46 46 Hoover, a master of publicity, made full use of his authority; he "skillfully manipulated the media," turning a number of "otherwise ordinary criminals" into "public enemies." Hoover, a master of publicity, made full use of his authority; he "skillfully manipulated the media," turning a number of "otherwise ordinary criminals" into "public enemies."47 When, in the thirties, the FBI caught dangerous crooks on the order of John Dillinger (or took credit for catching them), its reputation and mystique grew to heroic size. The FBI was fearless, incorruptible, efficient, bold-a magnificent army in the war against crime. Or so it seemed. When, in the thirties, the FBI caught dangerous crooks on the order of John Dillinger (or took credit for catching them), its reputation and mystique grew to heroic size. The FBI was fearless, incorruptible, efficient, bold-a magnificent army in the war against crime. Or so it seemed.

Hoover ran a tight ship. His own views were xenophobic and reactionary. The FBI was a most reluctant ally, if it was an ally at all, in the battle for civil rights. It is true that Hoover was an early opponent of the n.a.z.i regime, and he was against interning j.a.panese-Americans in camps during World War II.48 But whenever it was a question of "communism," "leftism," or "subversion," Hoover was like a man obsessed. He came to see a communist under every bush. His right-wing paranoia poisoned much of the work of the FBI: its vendetta against Martin Luther King, Jr., is a good example. But whenever it was a question of "communism," "leftism," or "subversion," Hoover was like a man obsessed. He came to see a communist under every bush. His right-wing paranoia poisoned much of the work of the FBI: its vendetta against Martin Luther King, Jr., is a good example.49 In the fifties and sixties, the FBI, more and more, turned into a kind of "political police," an "independent security state within the state." In the fifties and sixties, the FBI, more and more, turned into a kind of "political police," an "independent security state within the state."50 The FBI was, in many ways, a law unto itself. It was widely believed, too, that Hoover's secret dossiers, filled with "dirt" on politicians and other leaders, gave him vast power and made him impregnable in office. The FBI was, in many ways, a law unto itself. It was widely believed, too, that Hoover's secret dossiers, filled with "dirt" on politicians and other leaders, gave him vast power and made him impregnable in office.

The FBI did come to stand for the latest in forensic science, blood tests, fingerprinting-in short, professionalism. It preached this gospel of crime detection to local law-enforcement officials.51 It also got involved in some mundane but useful tasks. One of these was the gathering of crime statistics. The Uniform Crime Reporting (UCR) program, run by the bureau, goes back to the 1920s. A committee of the International a.s.sociation of Chiefs of Police prepared a plan for gathering uniform crime statistics in 1929. Seven crimes (the "index" crimes) were listed: murder and manslaughter, rape, robbery, aggravated a.s.sault, larceny, burglary, and motor vehicle theft. Arson was added in 1979. The FBI set out standardized definitions for these crimes; and from 1930 on, the UCR has produced the most widely used index of American criminality. It also got involved in some mundane but useful tasks. One of these was the gathering of crime statistics. The Uniform Crime Reporting (UCR) program, run by the bureau, goes back to the 1920s. A committee of the International a.s.sociation of Chiefs of Police prepared a plan for gathering uniform crime statistics in 1929. Seven crimes (the "index" crimes) were listed: murder and manslaughter, rape, robbery, aggravated a.s.sault, larceny, burglary, and motor vehicle theft. Arson was added in 1979. The FBI set out standardized definitions for these crimes; and from 1930 on, the UCR has produced the most widely used index of American criminality. 52 52 Whether these figures are good enough, however, has come to be questioned. Not all crimes are reported to the police, after all. "Victimization" studies turn up figures quite different (and higher) than those of the UCR. These studies start from the other end-that is, by asking people if they have been victims of crime. Nonetheless, the federal role in putting together some useful numbers numbers is not to be sneezed at. is not to be sneezed at.

The Syndicate One factor that fed the movement toward federal involvement was fear of organized crime, "the syndicate," or the "Mafia." The Mafia was supposed to be a giant criminal conspiracy made up of Italian gangsters (Sicilians, to be specific). The Mafia was blamed for the murder of the police chief of New Orleans, in 1890.53 Prohibition was an era of crime syndicates, an age of celebrity gangsters, men like Al Capone-many of them Italian. When Prohibition died, there were plenty of other lines of illegal work to replace it-gambling, vice, extortion. People found it easy to believe that some sinister web united crime factions in the various cities. Prohibition was an era of crime syndicates, an age of celebrity gangsters, men like Al Capone-many of them Italian. When Prohibition died, there were plenty of other lines of illegal work to replace it-gambling, vice, extortion. People found it easy to believe that some sinister web united crime factions in the various cities.

The Mafia flared up again as an issue in the 1950s. Senator Estes Kefauver of Tennessee headed a special committee of Congress to investigate racketeering and organized crime.54 The Kefauver Committee claimed it uncovered a lot of dirty linen, and it made superb use of publicity in the process. The committee's message was that the Mafia had its tentacles in every major city; it was growing rich and powerful on the spoils of vice and crime. The eye of the television cameras covered the work of Kefauver's committee; the hearings were one of the earlier demonstrations of the sinister power of The Kefauver Committee claimed it uncovered a lot of dirty linen, and it made superb use of publicity in the process. The committee's message was that the Mafia had its tentacles in every major city; it was growing rich and powerful on the spoils of vice and crime. The eye of the television cameras covered the work of Kefauver's committee; the hearings were one of the earlier demonstrations of the sinister power of this this medium, whose tentacles were in the process of spreading everywhere, too. One especially dramatic moment came during the testimony of the gangster Frank Costello: the camera avoided Costello's face, focusing instead on his hands "as he crumpled a handkerchief, interlocked and picked at his fingers, grasped for a gla.s.s of water, stroked his eyegla.s.ses" and "rolled a little ball of paper between his thumb and index finger." The TV images suggested a faceless, hidden man, a man of "immense conspiratorial power." medium, whose tentacles were in the process of spreading everywhere, too. One especially dramatic moment came during the testimony of the gangster Frank Costello: the camera avoided Costello's face, focusing instead on his hands "as he crumpled a handkerchief, interlocked and picked at his fingers, grasped for a gla.s.s of water, stroked his eyegla.s.ses" and "rolled a little ball of paper between his thumb and index finger." The TV images suggested a faceless, hidden man, a man of "immense conspiratorial power."55 Viewed in the cold light of hindsight, Kefauver seems to have produced little in the way of hard evidence. But he produced a lot in terms of images and headlines, which to Kefauver and others on his committee were far more important. Viewed in the cold light of hindsight, Kefauver seems to have produced little in the way of hard evidence. But he produced a lot in terms of images and headlines, which to Kefauver and others on his committee were far more important.

The FBI, somewhat reluctantly, formed a special unit to fight "racketeers" and interstate syndicates in the 1950s. In the early sixties, the Justice Department under Attorney General Robert Kennedy also paid special attention to crime families and their networks.56 Whether any of this burst of activity did much good is also doubtful. But the Mafia theme was endlessly fascinating to the general public. Whether any of this burst of activity did much good is also doubtful. But the Mafia theme was endlessly fascinating to the general public.

Was there a national national Mafia, connected by ties of blood and sacred oaths? The evidence was, in fact, rather slim (or at least controversial); but the media hardly cared. The Mafia made good reading-good fodder for movies, books, and magazine articles. The mystique of the gangster, a theme of the silver screen in the thirties and forties, was perhaps a throwback to the theme of the beloved outlaw and the western gun-fighter. Western movies were even more popular than gangster movies, in this period. Perhaps Jesse James, Billy the Kid and Wyatt Earp paved the way for James Cagney and Scarface, and Mafia, connected by ties of blood and sacred oaths? The evidence was, in fact, rather slim (or at least controversial); but the media hardly cared. The Mafia made good reading-good fodder for movies, books, and magazine articles. The mystique of the gangster, a theme of the silver screen in the thirties and forties, was perhaps a throwback to the theme of the beloved outlaw and the western gun-fighter. Western movies were even more popular than gangster movies, in this period. Perhaps Jesse James, Billy the Kid and Wyatt Earp paved the way for James Cagney and Scarface, and The G.o.dfather. The G.o.dfather. There is and has been a good deal of romance connected with the outlaw-at least with certain outlaws. Then, too, the twentieth century is the age of the celebrity and celebrity culture. It hardly mattered who the celebrities were: they could be boxers, presidents, rock-and-roll stars-or notorious criminals. John Gotti, on trial in New York in 1992 for racketeering and murder, had what amounted to an adoring claque at his trial. His autograph, after all, was as good as a movie star's. There is and has been a good deal of romance connected with the outlaw-at least with certain outlaws. Then, too, the twentieth century is the age of the celebrity and celebrity culture. It hardly mattered who the celebrities were: they could be boxers, presidents, rock-and-roll stars-or notorious criminals. John Gotti, on trial in New York in 1992 for racketeering and murder, had what amounted to an adoring claque at his trial. His autograph, after all, was as good as a movie star's.

The notion of a vast, hydra-headed crime syndicate had other values, too. It was a simple and satisfying explanation for at least some some of the crime that plagued the nation. It put the blame on a single monster, an identifiable presence, a defeatable enemy-and a foreign enemy, at that. This belief was much more comforting than the main competing theory: that crime was a diffuse, poisonous substance that came, as it were, from nowhere, an invisible enemy, subtle and mysterious. Or the idea that crime had deep, difficult social and economic roots. Moreover, if the Mafia was a reality, who better to fight this vast interstate octopus than the federal government, the only ent.i.ty capable of fighting and winning the war against crime? Only of the crime that plagued the nation. It put the blame on a single monster, an identifiable presence, a defeatable enemy-and a foreign enemy, at that. This belief was much more comforting than the main competing theory: that crime was a diffuse, poisonous substance that came, as it were, from nowhere, an invisible enemy, subtle and mysterious. Or the idea that crime had deep, difficult social and economic roots. Moreover, if the Mafia was a reality, who better to fight this vast interstate octopus than the federal government, the only ent.i.ty capable of fighting and winning the war against crime? Only national national power had any hope of destroying organized crime. power had any hope of destroying organized crime.

Crime as a National Issue Neither George Washington nor Abraham Lincoln mentioned crime on the streets in their messages to Congress or in their inaugural addresses. President Herbert Hoover was the one to break the long silence, in 1929. "Crime is increasing," he said in his inaugural address. He proposed a federal commission to study the problem. This became the famous Wickersham Commission, the National Commission on Law Observance and Enforcement. It was chaired by George W. Wickersham, who had been Taft's attorney general.57 The commission did a ma.s.sive job. It published fourteen reports in 1931, on a variety of issues: police behavior, penal inst.i.tutions, the causes of crime.58 The reports were hardly a whitewash; the commission excoriated and threatened and pointed out and exposed; it accused the criminal justice system of brutality, corruption, and inefficiency. Morris Ploscowe, writing for the commission, asked whether the sorry state of crime and criminal justice did not suggest something fundamentally wrong in "the very heart of ... government and social policy in America." The reports were hardly a whitewash; the commission excoriated and threatened and pointed out and exposed; it accused the criminal justice system of brutality, corruption, and inefficiency. Morris Ploscowe, writing for the commission, asked whether the sorry state of crime and criminal justice did not suggest something fundamentally wrong in "the very heart of ... government and social policy in America." 59 59 But in the end, the reports sat on the shelf; not much came of the commission's many recommendations. But in the end, the reports sat on the shelf; not much came of the commission's many recommendations.

Crime popped out again as a major national issue after World War II, and n.o.body was able to put the jinni back in the bottle after that. Most presidential candidates did not try. In the campaign of 1964, the Republican candidate, Barry Goldwater, made a great fuss over law and order; when he accepted the nomination at the Republic convention, Goldwater spoke of "violence in the streets" and the "growing menace [of crime] to personal safety, to life, to limb and to property."60 Presumably the federal government ought to do something about the problem. Goldwater lost the election; but the winner, Lyndon Johnson, picked up this issue, which was obviously dynamite. Presumably the federal government ought to do something about the problem. Goldwater lost the election; but the winner, Lyndon Johnson, picked up this issue, which was obviously dynamite.

In 1965, Congress pa.s.sed the Law Enforcement a.s.sistance Act (LEAA). Under this law, the attorney general could make grants to improve local law enforcement. The Office of Law Enforcement a.s.sistance administered the program. Johnson also established a Commission on Law Enforcement and the Administration of Justice; his mandate to the commission sounded a somber message: "Crime is a sore on the face of America. It is a menace on our streets.... It is a corruptor of our youth.... We must bring it under control.... We have taken a pledge not only to reduce crime but to banish it."61 Of course, Johnson's war on crime did not banish crime any more than his war on poverty abolished poverty. The year 1968 was another election year. It was also a year of serious rioting, the year in which Robert Kennedy and Martin Luther King, Jr., were a.s.sa.s.sinated; and in which George Wallace, roaring up out of the white South, frightened mainstream politicians with his blatant appeals to racism-and his shouts about law and order. Richard Nixon, the Republican candidate, for his part blasted away at the decisions of the Supreme Court, which (he said) coddled criminals and worse. Partly in response to these rumblings, Congress pa.s.sed the Omnibus Crime Control and Safe Streets Act.62 This law set up a separate body, the Law Enforcement a.s.sistance Administration, within the Department of. Justice, to handle the new This law set up a separate body, the Law Enforcement a.s.sistance Administration, within the Department of. Justice, to handle the new war war on crime. on crime.63 Mostly, the weapon of this war was money. The LEAA during its ten years or so of vigorous life was mostly a tube for siphoning money out of the federal government and funneling it to the states, in the form of grants. The strategy of the act was to "establish the federal government as a source of money and technical a.s.sistance to state and local agencies." These agencies would "use this a.s.sistance to support planning, self-study, and new and innovative projects."64 Billions of dollars flowed out of Washington. The grants to local agencies were supposed to foster innovation, to stimulate research on issues of law enforcement. Whether they ever accomplished much is doubtful. Ultimately, LEAA faded out of the picture. But crime has stubbornly remained an issue, a rude, insistent item on the national agenda. Candidates run for federal office on anticrime platforms; they accuse each other of being soft on crime, and they promise, once in office, to do Billions of dollars flowed out of Washington. The grants to local agencies were supposed to foster innovation, to stimulate research on issues of law enforcement. Whether they ever accomplished much is doubtful. Ultimately, LEAA faded out of the picture. But crime has stubbornly remained an issue, a rude, insistent item on the national agenda. Candidates run for federal office on anticrime platforms; they accuse each other of being soft on crime, and they promise, once in office, to do something something (not usually specified) about the terrible problems of violence and corruption. (not usually specified) about the terrible problems of violence and corruption.

It is easy for people to vent their anger on crime. The anger is justified after all. But it is also a way to vent feelings against poverty, race, and other issues for which crime is a convenient stand-in. Politicians pick up these fears and emotions on their antennae and broadcast what they think their people want to hear.

In general, today, the public, or at least some large part of it, has gotten the message. It holds the federal government responsible for a good deal of what it finds wrong with criminal justice. The narcotics nightmare is a good example. The federal government, as we shall see, has been in this quagmire since 1914. It digs itself in deeper and deeper; it spends more and more, flailing about madly, fighting, spending, arresting. The programs, state and federal, have been, on the whole, exercises in futility; but frustration only fuels a desperate determination to get tougher.

The federal government, in fact, may be helpless to do anything about drugs. Drugs flood into the country; there are millions of people buying, selling, sniffing, snorting, shooting up, smoking, and the like. Still, the federal government has the muscle and the jurisdiction to make a big noise, to mount campaigns, to wage "wars," with airplanes, Coast Guard cutters, and all sorts of paraphernalia. After all, there is precious little that Michigan or the city of Omaha can do to keep heroin and cocaine away from their streets and houses. And the American public, by and large, refuses to believe that some problems simply do not have current solutions, at least not workable ones. (This is true of crime in general, not merely the drug dilemma; we will come back to this theme in chapter 20.) When all is said and done, despite all the hoopla, the federal role in criminal justice is limited, and will stay limited in the foreseeable future. The irony is that recent conservative presidents, who have long mouthed slogans about states' rights and local government, have been more zealous than the liberals in denouncing crime, drug use, and the like. They have thus helped keep alive the myth that the federal government can actually do something about the problem. In fact, there is not much the federal government can can do, at least under present laws and jurisdictional arrangements. Of course, the federal government could pay state and local governments-could support criminal justice systems, police systems, prisons, and the like. But the federal government is loath to put its money where its mouth is. do, at least under present laws and jurisdictional arrangements. Of course, the federal government could pay state and local governments-could support criminal justice systems, police systems, prisons, and the like. But the federal government is loath to put its money where its mouth is.

Very few national politicians dare to say this out loud. Most of them seem anxious to make political hay out of criminal justice. In his State of the Union Address on January 28, 1992, President George Bush declared in ringing terms that "we must do something about crime," especially "violent street crime." A "tired woman on her way to work at six in the morning on a subway deserves the right to get there safely," he said. "Congress," he begged, "pa.s.s my comprehensive crime bill.... Help your country."65 But the comprehensive crime bill he referred to, which was then languishing in Congress, was anything but but comprehensive, as the president must have known. It would do nothing much for the woman on the subway. It would have, at best, microscopic influence on crime. The national government was not and is not in control of criminal justice. At best, it has been a kind of Broadway angel, handing out money but never running the show. And even here it has mostly been a tightwad. comprehensive, as the president must have known. It would do nothing much for the woman on the subway. It would have, at best, microscopic influence on crime. The national government was not and is not in control of criminal justice. At best, it has been a kind of Broadway angel, handing out money but never running the show. And even here it has mostly been a tightwad.

The truth is, national politicians never wanted wanted to be in charge. They wanted no part of the real system of criminal justice. The real system is complicated, dirty, and a mess. Whoever touches pitch, gets defiled, or at least entrapped, and criminal justice is a tarpit of colossal proportions. to be in charge. They wanted no part of the real system of criminal justice. The real system is complicated, dirty, and a mess. Whoever touches pitch, gets defiled, or at least entrapped, and criminal justice is a tarpit of colossal proportions.

13.

CRIME ON THE STREETS; CRIME IN THE SUITES.

MOST CITIZEN-CERTAINLY MOST MEMBERS OF THE MIDDLE CLa.s.s-WILL probably go through life without running afoul of the more serious parts of the criminal justice system. Many will be victims of crime-robbed, burglarized, a.s.saulted. A great many will be called up for jury service; some will wriggle out of this duty, but a fair number will actually serve, though perhaps not at a criminal trial. Only a minority will ever be tried for a felony or spend time in prison or jail. Yet there is one part of the system that almost everybody will have to deal with, and probably more than once. That part is traffic law.

Traffic Law This vast system is almost entirely a development of the twentieth century. Traffic law existed in the nineteenth century, in the horse-and-buggy era, but only in a rudimentary way (see chapter 5). Today, in the age of the automobile, traffic law processes an incredible volume of petty offenses and transgressions, and a good sprinkling of more serious offenses.

Almost everybody who drives-and that means, by now, almost every healthy adult-is bound to be "guilty" of some traffic or auto sin; even the best drivers. In cities, it is hard to avoid getting a parking ticket every once in a while. The smaller traffic offenses, on the whole, carry very little moral intensity or bite. People who would immediately call the police to report a thief or a shoplifter would never do the same for a speeder, or someone they saw making an illegal U-turn. Spumed lovers expose some "victimless crimes"; irate ex-employees turn in tax evaders; but almost n.o.body snitches on people who violate traffic laws. Enforcement depends on the traffic police, and on them alone. And, to be sure, the police car, prowling up and down the streets, or roaring down the highway with sirens blasting and lights flashing, is a familiar part of the landscape.

The automobile made its first appearance on the streets, for all practical purposes, in the first decade of this century. It was, at the outset, a toy of the rich. But it was an exciting and dangerous toy, and it evoked regulation and police activity early on. In the last three months of 1906, the New York City police made 646 arrests for violations of laws and ordinances relating to motor vehicles.1 As early as 1905 in California, driving an unregistered vehicle was a misdemeanor. Soon afterward, driving without a license became another. In 1925, the minimum age for a driver's license was fixed at fourteen; and habitual drinkers, drug addicts, and the "feeble-minded" were barred from licensure. As early as 1905 in California, driving an unregistered vehicle was a misdemeanor. Soon afterward, driving without a license became another. In 1925, the minimum age for a driver's license was fixed at fourteen; and habitual drinkers, drug addicts, and the "feeble-minded" were barred from licensure.2 In 1931, the minimum age was raised to sixteen. In 1931, the minimum age was raised to sixteen.3 In New York in 1910, the law required all drivers to drive "in a careful and prudent manner and at a rate of speed so as not to endanger ... property ... or ... life or limb"; any speed over thirty miles an hour, if persisted in for a quarter-mile or more, was "presumptive evidence" of careless, imprudent driving. In New York in 1910, the law required all drivers to drive "in a careful and prudent manner and at a rate of speed so as not to endanger ... property ... or ... life or limb"; any speed over thirty miles an hour, if persisted in for a quarter-mile or more, was "presumptive evidence" of careless, imprudent driving.4 This statute also made hit-and-run driving a felony. This statute also made hit-and-run driving a felony.5 By 1940, the United States had became an automobile society. The volume of traffic offenses was astronomical: traffic offenses had replaced drunkenness and loitering as the basic fodder of justice. At the beginning of the 1940s, 212 cities with a combined population of 45,420,696 reported more than 6,000,000 violations of traffic and motor vehicle laws.6 Of course, most of these violations were small potatoes. But in California, in the first six months of 1950, 6,407 jail sentences were handed down in motor vehicle cases, 2,377 combinations of fines and jail, 232,079 fines, and 299,214 instances of "forfeitures" (practically speaking, the same as a minor fine). Of course, most of these violations were small potatoes. But in California, in the first six months of 1950, 6,407 jail sentences were handed down in motor vehicle cases, 2,377 combinations of fines and jail, 232,079 fines, and 299,214 instances of "forfeitures" (practically speaking, the same as a minor fine).7 The numbers have continued to rise, as automobiles choke the roads and highways, and millions of people, living in the land of suburban sprawl, use the automobile as their lifeline-connecting them to work, shopping, and the outside world in general. Everybody, as we have said, even the most timid and correct of souls, breaks some some traffic rules. But there are rules and there are rules. At the bottom end, many traffic offenses are not even treated as criminal; they are handled administratively, and their criminal-law aspects have shriveled to a vestige. traffic rules. But there are rules and there are rules. At the bottom end, many traffic offenses are not even treated as criminal; they are handled administratively, and their criminal-law aspects have shriveled to a vestige.

Thus, a person who parks overtime and gets a "ticket" will get an order to appear in court and face the music. But this is not a serious threat: if the car-owner chooses not to contest, she can "forfeit" the "bail" and send in a check instead. This "bail," of course, is nothing but a small fine masquerading as something else. In Ma.s.sachusetts, starting in 1965, traffic violators could plead guilty by mail, waive trial, and send in a fine based on a fixed catalogue of penalties.8 In some states, the minor offenses are not called crimes at all but "infractions." These "infractions," along with other minor traffic offenses, are staggeringly common. In North Carolina, in one twelve-month period (1989-1990), there were 1,200,000 motor vehicle crimes and infractions in the district courts; this was double the number of all other criminal cases. In some states, the minor offenses are not called crimes at all but "infractions." These "infractions," along with other minor traffic offenses, are staggeringly common. In North Carolina, in one twelve-month period (1989-1990), there were 1,200,000 motor vehicle crimes and infractions in the district courts; this was double the number of all other criminal cases.9 In 1988, in the district courts of Michigan (the base of the judicial system), 633,979 cases of traffic misdemeanor were filed-about twice as many as all other felony and nontraffic misdemeanor put together. In 1988, in the district courts of Michigan (the base of the judicial system), 633,979 cases of traffic misdemeanor were filed-about twice as many as all other felony and nontraffic misdemeanor put together.10 In many localities, traffic matters got handled by munic.i.p.al courts, police courts, justices of the peace, and sometimes by specialized departments of munic.i.p.al court. Large cities often had separate traffic courts.11 By whatever name, such courts were the absolute bottom of the judicial system. Society never saw fit to equip its traffic courts with the trappings of majesty. American courts in general do not go in for ritual and pomp, but traffic courts are the extreme case. Physical conditions in these courts could be quite primitive. In one large southern city, around 1940, the traffic court shared a converted bas.e.m.e.nt with the local jail. The courtroom was "filthy. A terrible odor prevails and on a humid, summer day the place is almost unbearable." Of sixty courtrooms inspected at that time in various cities, nine were rated "inexcusable," and more than half were declared fit to be condemned. By whatever name, such courts were the absolute bottom of the judicial system. Society never saw fit to equip its traffic courts with the trappings of majesty. American courts in general do not go in for ritual and pomp, but traffic courts are the extreme case. Physical conditions in these courts could be quite primitive. In one large southern city, around 1940, the traffic court shared a converted bas.e.m.e.nt with the local jail. The courtroom was "filthy. A terrible odor prevails and on a humid, summer day the place is almost unbearable." Of sixty courtrooms inspected at that time in various cities, nine were rated "inexcusable," and more than half were declared fit to be condemned.12 The traffic court judge, as one would expect, did not have the prestige and dignity of higher-grade judges. A study of South Carolina in the 1960s found a "distressing lack of formality and dignity." The judges "conducted court in street attire or workclothes, rather than judicial robes."13 George Warren, who studied traffic courts around 1940, reported that some judges seemed to treat "the proceedings in these courts as a joke.... Instances of familiarity and light by-play with defendants, of pleasantries with women violators and of the use of good-natured profanity were observed." George Warren, who studied traffic courts around 1940, reported that some judges seemed to treat "the proceedings in these courts as a joke.... Instances of familiarity and light by-play with defendants, of pleasantries with women violators and of the use of good-natured profanity were observed."14 As a result, the defendant "leaves the traffic court without ... a heightened consciousness as to safety problems" and without "a feeling of respect." As a result, the defendant "leaves the traffic court without ... a heightened consciousness as to safety problems" and without "a feeling of respect."15 The root of this evil was, perhaps, the fact that defendants did not-and do not-see themselves as criminals, but rather as unlucky people who got caught breaking a rule that everybody breaks once in a while. The judges probably felt no different. Traffic crime is middle-cla.s.s crime. For much of the century, the poor did not own cars, and even now, most car-owners (like most people in general) are solid members of the solid middle cla.s.s. A "crime" that everybody in this group commits is unlikely to carry much of a stigma.

This att.i.tude came to the surface in a 1958 American Bar a.s.sociation report on traffic matters in Oklahoma. The report concluded that traffic cases should be treated differently from other police court cases, because "traffic offenders are of a different cla.s.s of people than drunks, thieves, prost.i.tutes, and similar offenders and should not be compelled to mingle with the latter when summoned into a court of justice."16 Most people would probably concede the need for traffic laws, and for enforcing them. But they think of their own "punishment" as a kind of traffic tax, and an unfair tax at that, because its incidence is so random and irregular. Most people would probably concede the need for traffic laws, and for enforcing them. But they think of their own "punishment" as a kind of traffic tax, and an unfair tax at that, because its incidence is so random and irregular.

Drunk Driving Att.i.tudes toward drunk driving are generally much less cavalier. The formal legal system takes driving "under the influence" fairly seriously. In 1910, in New York, it was a misdemeanor to operate a motor vehicle "while in an intoxicated condition"; the second offense was a felony and could bring a prison term. Violators were in danger of losing their licenses; and owners of vehicles driven by drunks could lose their "certificate of registration" as well.17 In 1926, New York created a new felony: causing serious bodily injury by driving while intoxicated. In 1941, a further statute on drunk driving allowed courts to "admit evidence of the amount of alcohol in the defendant's blood," as "shown by a medical or chemical a.n.a.lysis of his breath, blood, urine, or saliva." The statute also laid down the rule that a blood-alcohol level of more than 1.5 percent was "prima facie evidence" of intoxication. In 1926, New York created a new felony: causing serious bodily injury by driving while intoxicated. In 1941, a further statute on drunk driving allowed courts to "admit evidence of the amount of alcohol in the defendant's blood," as "shown by a medical or chemical a.n.a.lysis of his breath, blood, urine, or saliva." The statute also laid down the rule that a blood-alcohol level of more than 1.5 percent was "prima facie evidence" of intoxication.18 In 1953, New York took a further step; it enacted an "implied consent" law. Any driver with a license was "deemed" to have allowed the police to run a "chemical test of his breath, blood, urine or saliva" to see how much alcohol he had in his system. Of course, this "consent" was pretty much coerced. If a driver decided to be unreasonable and withhold consent, or refused to allow the tests to be given when stopped on the road, the state could use this stubbornness as an excuse to revoke his lic