On Crime and Punishment
Rosenberg, Bernard
WINSTON CHURCHILL ONCE SAID that the public attitude toward criminals constitutes "a sure test of the level of civilization." 1 If so, then these essentials of the liberal doctrine as...
...Hernandez, the defendant may plead that he mistakenly but in good faith took the girl to be eighteen years of age or older...
...He defined the official delinquent as a friendless youth, moving under maximum exposure to arrest, usually on the street because there was no other place for him to be...
...All of this is rationalized and sustained by controlled philosophic thought, as interpreted by the leaders to implement their political aims...
...BERNARD ROSENBERG unprosecuted, and consequently unpunished...
...Safeguards built into criminal law are a political shield against authoritarian and totalitarian rule...
...22 The historical record shows refinements and variations (the use of boiling cauldrons from which stones had to be retrieved, or two- and three-fold ordeals), but in essence this was the judicial process...
...nor are they argus-eyed agents of the conformist behavior that society theoretically demands...
...It is an understatement to conclude that "This class bias in somewhat less flagrant forms was to have a long history in English law and has not entirely ended at the present time...
...26 Michael Waltzer, The Revolution of the Saints (New York: Atheneum, 1968), p. 7. 27 John Watson, Which Is The Justice...
...An alternative to the blood feud, a legal process, had to be worked out...
...So long, however, as democratic forms persist and we continue to cherish them, protecting the weak against the strong must remain uppermost in our minds...
...No higher priority has as yet totally eclipsed or absolutely subordinated that concept of justice which runs like a golden thread through British and American criminal law...
...24 Class bias, complicated by race, never ceased to operate...
...T T HIS ARGUMENT has taken two contemporary American criminologists to a point where they see current police practice as the bearer of a serious totalitarian potential...
...Moreover, it was not the function of the law to enforce moral virtue as such, but simply to serve the needs of a particular society...
...Yet it is this stratum, and not only in a corner of California, that supplies most of the known-because-reported cases...
...So long as we rely only on people for the production of incriminating evidence, most "immorality" goes undetected, 3 Jerome H. Skolnick and J. Richard Woodward, "Bureaucracy, Information and Social Control" in The Police, David J. Bordua, ed...
...It is usually considered too dangerous to hire these "potential" criminals...
...These leaders of the court may be called doomsmen or elders or wisemen but in all cases they were 20 Ibid., p. 16...
...In the case of the hundred court the elders of the court could be ordinary peasants...
...A veteran English magistrate, reflecting on his long career, finds it most appropriate in 1969 to use as the epigraph to a book of selected memoirs 27 this passage from King Lear (IV:6) : See how yon' justice rails upon yon' simple thief...
...To be pigeonholed as offenders they must first have been convicted...
...The poor, moreover, are likely to discover that unhappy truth early in life...
...England, with its many lakes and streams, seems to have favored the ordeal of water, in which the defendant, bound hand and foot, was flung into a body of water...
...sometimes ask not only whether an applicant has ever been convicted, but also whether he has ever been arrested on charges, and sometimes even whether he has ever received a summons...
...We are some distance from that extremity...
...Attacker and defender, criminal and victim, and their kindred, all governed by an unshakable belief in collective or consanguineous responsibility, involved one another in endless acts of retaliation...
...Moots reached a verdict by invoking divine aid as it was made manifest in the ordeal and by compurgation...
...Survivals of the very old tradition remain in virtually every society, including our own...
...New York: JohnWiley and Sons, 1967), pp...
...25 High treason could be committed only against the king, or rather, against his "highness," his majestas, a term pointing to the sublime office and function of him who was major...
...BERNARD ROSENBERG unlimited enforcement efficiency...
...20 By modern standards, the violence of medieval Europe was prodigious...
...As Cantor writes, Beyond this, a rich man who was oblivious to the heavenly perils of perjury and who had powerful relatives and friends of like dispositions could commit murder and robbery with impunity...
...Cantor informs us that "It was a process almost exclusively designed for those who were peasants or who were `ill-famed,' which to the medieval mind with its strong class biases meant almost the same thing...
...Loopholes are specified...
...they correctly perceive ethical issues that transcend crime and punishment...
...99-136...
...Therefore, one cannot lightly dismiss either Selznick's disturbing question or his implicit answer...
...Since a 1964 California Supreme Court decision, People vs...
...For a condition where every offender has an equal chance of being known and "processed" presupposes the politicization, criminalization, and totalitarianization of everything...
...Actually, in waxing and waning its precarious nature is clearly exposed...
...96-97...
...Sparer reports a study made by the New York Civil Liberties Union of employment agency practices, in which fully 75 percent of the agencies sampled ask job applicants about arrest records, and "as a matter of regular and automatic procedure," would not refer those with arrest records irrespective of any judicial determination that may have been made...
...By the same token, no mere vassal, but only a subject could commit high treason...
...and Negroes are involved in far fewer of the cases...
...There is sweeping abrogation of constitutional guarantees...
...B B EFORE SUPRAFAMILIAL CONTROL or centralized state authority came into being, when man's existence was still coterminous with the band, the clan, and the tribe, reparation and revenge were identical...
...In this respect we have remained faithful to the traditions of AngloSaxon law...
...23 As long as society is divided into the noble and the ignoble (which is to say, always and everywhere, and with or without ideological support) special provision must also be made for those of wealth and prominence...
...A defendant was unlikely to survive either the ordeal of hot iron or the ordeal of cold water...
...In this too we have remained faithful to the tradition of Anglo-Saxon law...
...There, statutory rape is an offense that occurs when a man has sexual intercourse with a willing girl, under the age of eighteen, who is not his wife...
...Liberty, however, is only inefficiency in false face...
...Thus, during revolution, law, especially criminal law, is used as a party weapon...
...No royal persona could, and where the monarchy survives, none can today commit a crime...
...Nevertheless, for the period studied, more cases of statutory rape were reported in Mountain City than in Westville, where, for instance, 40 cases came to the attention of Westville police in 1961...
...a He quotes from a New York memorandum, which in his opinion accurately describes one countrywide form of inequity: The major handicap from an arrest record appears to be in securing and retaining employment, membership in a labor organization, or apprenticeship training...
...wergelds, swore that his oath could be taken as "clean," in other words, that he was a man of good repute...
...They and slightly older youths comprise the hard core of our highly publicized crime problem...
...The premodern world (and a whole assortment of metaphysical underpinnings) had to decompose before that rule could become a widely held ideal...
...Later on, out of school and out of work, countless numbers of them are disqualified from employment, from job training, and from service in the Armed Forces because they are held to be "poor risks"—with "records" they cannot erase...
...it was the first obligation of the court to urge them to accept it...
...If he chooses to make the "pinch," it will be a first arrest in about one case out of four...
...The first task of the folk moot was to build upon the old Germanic tradition that the blood feud could be abrogated in return for monetary compensation, the Wergeld (literally, man-money), to the dead man's kin...
...The statutory language used in New York is similar to that of other jurisdictions...
...Those who press wish to achieve greater and greater enforcement efficiency in the same limited area of class and race that has never ceased to be their concern...
...The authors ask us to consider what would happen if public policy of this sort extended into other institutional spheres...
...Over two decades ago, Jerome Hall summed up several traits common to revolutionary authoritarian movements: Special police are exempt from legal constraint: they arrest, try, execute, and exile without legal restraint...
...In a meticulous examination of the police process, Skolnick and Woodward reveal many pertinent details, and of these one emerges as decisive: The Mountain City family support division does not systematically report violations it discovers while taking welfare applications, and it is largely to this difference in policy that the different outcome is attributable...
...To a large extent the police, who are our official guardians of that morality, have been prevented from achieving full success, or total competence, by their very human limitations...
...The difficulties of slum-bred youths are thus compounded...
...Job applicants, as well as would-be apprentices and soldiers, with "records," can lie about their past, which is itself an actionable practice, or they can compromise themselves by admitting the truth...
...e Skolnick and Woodward, op...
...If there is no penal law directly covering an act, it shall be punished under the law of which the fundamental conception applies most nearly to the said act...
...Then the historian cannot refrain from ruminating upon what he has just written: "Those who are horrified by this deep social prejudice might reflect on the kinds of people who have suffered capital punishment in the United States, noting the overwhelming proportion of Negroes and poor people...
...The perversion of this principle exercises thoughtful judges, legal philosophers, and criminologists...
...offenses are reported more quickly...
...When threatened by efficient law enforcement, it has loudly demanded Twelve Tables, codes, bills of rights, declarations of the rights of man, and fullfledged written constitutions—all for the purpose of protecting the weak against the strong, and the individual against the state...
...With plague and hunger never far behind, only so much manslaughter, murder, and robbery-by-stealth could remain unchecked...
...The system implies an increase in police efficiency which will be further facilitated by improved technology...
...18 The arbitrariness which this Act exudes lasted only as long as National Socialism...
...Actual fluctuation in rates remains unknown and unknowable, but when information about welfare recipients is exchanged with police officials, a larger than ordinary number of these people will be included as offenders...
...ON C1t1ME AND Pt1NISI1M$NT Hall has referred us to the Russian Penal Code of 1926 which stated that: A crime is any socially dangerous act or omission which threatens the foundations of the Soviet political structure and that system of law which has been established by the Workers' and Peasants' Government for the period of transition to a Communist structure...
...As to the administration of justice: It was here above all that the rights of the individual had suffered most in the past and here that it was most necessary to build secure lines of defense against the encroachments of the State...
...They offer public schools as an example: "Many acts routinely dealt with by school officials under the label of school discipline—petty theft, carrying of knives, assaults, sport `pools'— could conceivably be reported to the police for criminal processing...
...He sees the open exposition of this philosophy in Justice Jackson's statement that, "The forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think a greater danger to a free people than the escape of some criminals from punishment...
...E E VERY FEW MONTHS, CRIME is reported to be on the upswing, but it is not accidental that the full force of penal and social sanctions falls only on some offenders...
...Walter Ullman, the eminent medievalist, has shown that in terms of ecclesiastical and secular law, people of every age were defined as minors, requiring the undisputed protection of their overall superiors who, in turn, had been deputized by God to act in loco parentis...
...Those in the upper and middle reaches of American society are not given to lodging complaints that would reveal the sexual indiscretions of their offspring...
...Mere arrest cannot be equated with guilt, especially when, "According to a recent estimate based on 1963 F.B.I...
...o Loc...
...If instant exposure and swift punishment followed the commission of all acts defined at this moment as violations of existing statutes, then our society would be nothing but an enormous prison...
...Unlawful conduct which results in arrest and adjudication is overwhelmingly found among the young...
...Everyone actually demands "liberty...
...Of course no one literally demands "inefficiency," which as an ideal has always been in bad 14 Ibid., p. 96...
...Fiftyone years after the October Revolution, James Reston supplied a pertinent postscript...
...By and large, and handy-dandy, Shakespeare's Fool knew enough to ask the question without which no criminological answer is worth a moment's notice...
...Adjudications of "Delinquency," "Youthful Offender," and "Wayward Youth"—all are supposed to be purely "civil," and never "criminal" proceedings...
...Seagle finds most justices of the Supreme Court of the United States expounding the view that efficiency in criminal law enforcement is irreconcilable with decency and liberty— which, in the profoundest sense, renders it unconstitutional...
...cit., p. 112...
...It was on this social necessity that Anglo-Saxon society founded the folk or community court...
...In a unique blend of Hellenistic, Roman, and Christian elements, the High Middle Ages produced a high legal synthesis...
...It did endure until Anglo-Norman times and then, in uneven stages after 1066, to the indigenous Angle and Saxon nations...
...And what of the folk court...
...7 Paul Goodman, Growing Up Absurd (New York: Random House, 1960...
...This position declares that insofar as a society attempts to legislate sin out of existence, seeking thereby to govern priThe reference is a famous one and appears, among many other places, in the concluding chap ter of a book by John Barron Mays, Crime and the Social Structure (London: Faber & Faber, 1967), p. 228...
...He might be dealt with by the kin of the victim, but the court could not convict him...
...At best the rule of law never fully banished gross inequality before the law...
...Petty treason" was of a lower order: it consisted in murder of the master by his servant, murder of the bishop by a clerk or a layman of his diocese, or murder of the husband by the wife...
...From the late sixth century onwards, a folk court or moot operated, at least among the leading warrior class in the small kingdoms of Wessex, Kent, Northumbria, and Mercia...
...And yet the curious system, which comprises so large a part of our cultural heritage, carried with it in embryonic form what we today would call the rule of law...
...Indeed the establishment of every limitation upon political power has been a tacit recognition of the undesirability of legal efficiency...
...15 Ibid., pp...
...Hence, for the record, poor men have a far greater propensity to commit acts of statutory rape than rich men...
...Skolnick and Woodward draw our attention not only to new means for observing and recording transgression—hidden microphones, wiretaps, high-power binoculars— but also to the computerized and centralized information they supply...
...Today's slum school is one of many conduits through which some of these children are remanded to punitive and "rehabilitative" agencies where detention rather than education is the rule...
...His conclusion is unexceptionable...
...shall be withheld from public inspection...
...Thus Anglo-Saxon process tended to provide one procedure for the rich and the powerful and another for the poor and the unknown...
...Once in power, the Bolsheviks, the Nazis, the Maoists, and the Fidelistas, having enjoyed such civil liberty as they found (sometimes a great deal, sometimes very little), destroyed every vestige of the rights on which they had capitalized...
...199-208...
...The policeman, who enjoys a social status higher than that boy and his family, must decide whether or not to include him in a roundup of "suspects...
...Far from attaining impartial justice, such that "each actual offender has an equal chance" of being apprehended and punished, we would achieve a marked enlargement of the discriminatory treatment chronically accorded underdogs...
...no person adjudicated a juvenile delinquent .. may be denominated a criminal by reason of such adjudication...
...When two humane criminologists, Richard R. Korn and Lloyd W. McCorkle, ask, "How far may the State go in enforcing social values...
...Parents from the lowest stratum of that society, though they may appear somewhat less reluctant, are also not overeager to act as complainants...
...14 Except for an additional appraisal, all this could still relate to unlimited efficiency...
...If so, why the difference between Westville and Mountain City in numbers and in racial composition (67 percent Negroes compared to 22 percent...
...ON CRIME AND PUNISHMENT judge of the court in which he was convicted...
...Even now, it is impossible for them to be everywhere...
...Further: "All police records relating to the arrest and disposition of any person under this article...
...But once again, as with Selznick, sight has been lost of a differential, selective, and invidious process...
...If still more police discipline is substituted for the fairly rigid school discipline that already prevails, then an even larger number of dark, or not so dark, and impoverished youth will be caught directly in the coils of the law...
...12 Such youths are hauled into station houses where their names appear on police blotters...
...Those who have not collapsed into totalitarianism, like those who have wrenched themselves free from its confinement, are better protected in their struggle for "the individual against the state" than they are in their struggle for "the weak against the strong...
...unions, and sections of the government disqualify precisely those whose employability is in the first place most restricted...
...Humanity has constantly drawn back from legal efficiency as from the brink of an abyss...
...By the eighth century, moots were differentiated into local courts, called hundreds and others, encompassing subkingdoms or whole kingdoms, which were designated as shires...
...Years ago, Austin Porterfield found no statistically significant difference between the waywardness of court children and college or precollege students...
...Uliman's 24 Ibid., p. 38...
...Yet we greatly doubt whether that question is quite the right one...
...The body politic" and related imagery, as Michael Waltzer has pointed out, served to justify a rigid hierarchy of persons which gradually supplanted the chaos of feudal arrangements...
...The urban public school, year by year, comes closer to being synonymous with the slum school, in contrast to the private school, the parochial school, and the suburban white school...
...Subjects were not entitled to invoke the help of a law court except against those of equal or subordinate status...
...The defendant thus had a choice between probable death by 21 Ibid., p. 37...
...ON CRIME AND PUNISHMENT drowning and certain death by hanging...
...These offenses, petty theft and so forth, cover a large part of juvenile delinquency...
...An organic, functional, collectivist metaphor—precluding any such novel idea as individual citizenship—underlay the whole conception...
...odor...
...Subjects, not yet citizens, were divested of will: they could only obey...
...The puny human factor diminishes before an awesome technology...
...19 Whoever attacked also ineluctably provoked defense and counterattack— setting two families in motion, touching off a vendetta or blood feud...
...Christian churchmen initially found it repugnant, but while they added oaths and efforts to extract confessions, the ordeal had become so essential a part of Anglo-Saxon life, that it could not be extirpated...
...Most of these "suspects" are released after questioning, but their job opportunities have been endangered without any proof of guilt...
...The persons most affected by this practice are almost invariably those who reside in disadvantaged areas, of whom a high proportion are Negro and Puerto Rican...
...In compurgation, the defendant swore to his innocence, and oath-helpers, graded by their 22 Loc...
...chised citizenry...
...Again, divine intercession was called for but in a much less exacting and arduous manner than the harsh method reserved for the common populace...
...To set limits on the reaches of the law is, in effect, to assert that the individual is himself a social end...
...So far it is only a criminological nightmare that threatens to materialize as mechanical detection replaces merely human effort in order to maintain "law and order...
...6 And so they are —not always, or the public schools would be depopulated, but often enough to help overcrowd nearly every reformatory in the land...
...BERNARD ROSENBERG O O NE CANNOT OVEREMPHASIZE this point: discriminatory treatment before the law in a formal framework of equality weighs heavily, oppressively (and among both victims and offenders, more consciously than ever) on the poor...
...Skolnick and Woodward conclude that the Westville policeman is significantly more successful than his Mountain City counterpart in locating "crime," not because of his superior skill nor his more rational administration, but basically because he taps welfare records...
...1 s Ibid...
...The court could decide only who should have the privilege of compurgation and how weighty the oath-helpers needed to be...
...a Loc...
...For a while, with the spread of equalitarianism from Western Europe, the ideal seemed to have triumphed...
...It sought, without the sophistication of Roman law—which left no perceptible mark on early Britain—to determine who committed murder and robbery by stealth...
...in the case of the shire court they would always be the great warlords in the community...
...Skolnick and Woodward have shown that consequential public policy can be set when welfare department records are transmitted by a family support division to police officials...
...At this writing, the United States has still declined to opt fully for such "law and order" as Moscow confers on a disenfran 17 Ibid., p. 42...
...More Negroes live in Westville, but not nearly enough to account for the disproportionate ratios...
...But as police efficiency increases, the crime rate looks more alarming, and totalitarian control draws closer...
...Skolnick and Woodward explain this difference as the statistical artifact that it is...
...Special tribunals for the trial of political offenders may be depended upon to effectuate the will of the government...
...Given a national population nearly half of which was born after 1945, those in the 1621 age bracket are by far the largest criminal category...
...it is filled with children who learn soon enough that they belong to persecuted minorities...
...king the polity...
...How could it be otherwise when, "The blood feud in Anglo-Saxon society was as central to social life as employment and taxes are today...
...nonsupport, the family division may be instrumental in reporting crimes outside its sphere...
...BERNARD ROSENBERG sagas, of all epic literature—whether that of nomadic tribesmen, or more settled peoples like the ancient Greeks, Romans, Icelanders, Gauls, and Anglo-Saxons...
...Skolnick and Woodward address themselves to one small but paradigmatic situation in the state of California...
...If this assertion is construed as a pure value judgment —which some of us view also as a demonstrable fact—no one need feel constrained to accept it...
...All are barred, as are neighbors, pressmen, and laymen at large, from scrutiny of presumably private and confidential documents...
...To prohibit an action unnecessarily increases rather than decreases crime...
...New York: Thomas Y. Crowell, 1968), p. 470...
...The research is concerned with all statutory rapes reported in two jurisdictions: that of the Westville Police Department between January 1962 and October 1963 (a total of 235 cases) and, for comparative purposes, that of a nearby community, Mountain City, where 87 cases were reported for the year 1961...
...Private employers, craft 11 Ibid., p. 472...
...On this datum all authorities are agreed—as they are agreed on the low socioeconomic status of most youthful offenders...
...The population of Mountain City is larger than that of Westville...
...Neither the rules of evidence nor rational procedure for the interrogation of witnesses had come into being...
...Norman F. Cantor, in his history of England, graphically describes how they worked: Whether it was the hundred or the shire court, the leading men of the community presided and arrived at decisions by a kind of consensus of the meeting...
...In short, it has always demanded inefficiency as an inalienable right of man...
...Punishment was carefully graded to the litigant's social position...
...As a result, many of the features of the Westville cases are lacking in Mountain City: fewer reporting persons wait until they are certain the girl is pregnant before reporting the offense...
...Guarantees of confidentiality and anonymity notwithstanding, this experience can blight the rest of the boy's life...
...At the time of this study, no allowance was made if the male honestly and with reason believed the girl to be over the age of consent...
...No one presses for truly 13 Richard R. Korn and Lloyd W. McCorkle, Criminology and Penology (New York: Henry Holt & Co., 1959), p. 97...
...More opaque, subdued, and genuinely humane in the modern era, its recrudescence is apparent as crime becomes a public obsession...
...Teen-agers (and subteen-agers), not deemed to have reached the age of reason, are technically irresponsible...
...The regular upswing can be partially attributed to greater efficiency in detecting and reporting crime committed not just by any citizen but by a certain kind of citizen...
...8 Edward V. Sparer, who cites this estimate, goes on to say, "Despite the court's finding that such persons are not guilty, social punishment for the fact of arrest is often quick to follow...
...Men like Cesare Beccaria and Wilhelm von Humboldt (who believed that the evils occasioned by police regulations outweighed those they prevented) set forth a general position that not even its Western heirs can take for granted...
...Social critics like Paul Goodman have characterized the average public schools as an institution very much like a penal colony...
...it These exceptions do not include possibly prejudiced employers, union leaders jealously guarding the ethnic exclusivity of their membership, or personnel in nonjudicial branches of the federal government...
...as the head rules the body, medieval writers argued, so God the world and the 25 Walter Ullman, The Individual and Society in the Middle Ages (London: Methuen & Co., 1967), p. 21...
...Appeal is limited or non-existent...
...Special courts exist to protect them from being branded as criminals...
...Privileged information is released, legislative intent is contravened, and anyone who in his minority was justly or unjustly charged with an offense can be incriminated...
...and, handy-dandy, which is the justice, which is the thief...
...12 Austin L. Porterfield, "Delinquency and Its Outcome in Court and College," American Journal of Sociology, November 1943, pp...
...In the first instance, every fullblown twentieth-century dictatorship, whether of the Right or the Left, has taught us anew how heavily civil liberty and the principle of legality depend upon criminal law...
...Alternatively, young people sign waivers to their legal right of confidentiality...
...A remnant of old Roman law, elaborated by medieval jurists, namely, "What pleases the prince has the force of law," is quoted in modem canon law to this day...
...By it, law, already apotheosized in the Invisible Ruler, was literally embodied in the visible ruler...
...Specifically created to uncover fraud and 5 Philip Selznick, "Foundations of the Theory of Organization," American Sociological Review, February 1948, p. 84...
...In cases where the Criminal Code makes no direct reference to particular forms of crimes, punishments or other measures of social protection are applied in accordance with those Articles of the Criminal Code which deal with crimes most closely approximating, in gravity and in kind, to the crimes actually committed...
...Reston, writing from Russia for the New York Times on November 21, 1968, noted: "Moscow has its own `law and order.' If justice is `incidental' to order, as J. Edgar Hoover is reported to have said the other day, he would be happy in Moscow...
...4 One agency in possession of facts otherwise unavailable to the public passes them on to another agency...
...5 Selznick's question answers itself in the negative...
...London: Allen & Unwin, 1969...
...It was their second task to prepare lists of wergelds for every possible kind of violence, from the loss of a toenail, to the killing of a slave, to the killing of a nobleman or king (the king's wergeld was placed so high that no man, no matter how many cattle he owned, could afford to pay it)2 1 The folk moot was designed to inhibit and, if possible, to abolish the exercise of family vengeance...
...In the former, he touched a piece of red-hot iron, and if after three days his hand showed signs of festering, he was promptly hanged...
...WINSTON CHURCHILL ONCE SAID that the public attitude toward criminals constitutes "a sure test of the level of civilization...
...16 And, we may say that this is still so, long after the revolution has run its course...
...Compurgations against indictments in the folk court were for noblemen what ordeals were for peasants...
...This theme is the subject matter of all 19 Norman C. Cantor, The English (New York: Simon and Schuster, 1968), p. 33...
...We agree with them that "To press for unlimited enforcement efficiency is, in effect, to assert that the ends justify the means...
...1 If so, then these essentials of the liberal doctrine as set forth by Leon Radzinowicz should not be forgotten: Since law, and especially criminal law, placed restrictions upon individual freedom, there should be as little of it as possible...
...The term, blood feud, suggests kinship, which always mattered most, rather than bloodshed, which was often present...
...Most important in primitive or preliterate and early Western law was that "Injury was scaled in accordance with the seriousness of the trespass and the social evaluation of the aggrieved party...
...Perfected or not, any system of surveillance and enforcement consisting solely of human contacts, is necessarily fallible...
...17 Similarly in Nazi Germany, the Act of June 28, 1935, provided that: Any person who commits an act which the Law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of penal law and sound popular feeling, shall be punished...
...Jerome H. Skolnick and J. Richard Woodward offer their empirical findings to underscore a real and present dangers They know how easily the delicate legal fabric can be torn apart when law becomes the major device for imposing conventional morality...
...Arrested, booked, interrogated, and discharged as innocent, now has "a record," ostensibly unavailable to others who represent a society that wishes to protect him even if his conduct has been judged wrongful or harmful...
...Presumption of innocence should be the guiding principle: the maxim, so fashionable at the beginning of the nineteenth century, that it is better that ten guilty persons escape than that one innocent man should suffer, tersely expressed this deeply felt concern...
...The kin were not required to take the wergeld and waive the right of revenge...
...In a strict hierarchical order, thought to be ordained by Almighty God, no inferior could legitimately bring any accusation against a superior...
...Sparer emphasizes the abuse, not to say the impropriety and near illegality, which most heavily penalizes young people who, in any event, are three or four times less employable than their more advantaged peers...
...crime reports approximately two and one-half million persons arrested annually for non-traffic offenses are not convicted...
...These criminologists believe that for their kind of data, Philip Selznick has posed the most appropriate question, namely, "Do we need or want agencies of control so efficient and so impartial that every actual offender has an equal chance of being known and processed...
...If he sank he was innocent and if he floated he was guilty, on the premise that water, being a holy element, would not receive a guilty man...
...In the feudal theocracy, no layman could charge a cleric with any crime...
...If A tells B, and B—using its broadly discretionary powers of enforcement— decides to prosecute, nonvoluntary complaints are found, and statutory rape looks like a serious matter...
...16 Jerome Hall, General Principles of Criminal Law (Indianapolis: Bobbs-Merrill, 1947), p. 57...
...as the angels stand below God in nine ranks and orders, so the nobler parts of the body politic below the king and the priests of the body of Christ below the Pope 26 Waltzer maintains that the inequality thus defended also established persistent patterns of obedience and deference...
...Applications for both public and private employment 8 Edward V. Sparer, "Employability and the Juvenile 'Arrest' Record," Work, Youth, and Unem ployment, Melvin Herman, Stanley Sadofsky, Bernard Rosenberg, eds...
...inevitably the men of greater substance and influence whose task was to work out and perpetuate legal processes in accordance with customary law...
...The key paragraph follows: Power can be curbed only by making the law inefficient...
...Its spirit, by which the rule of law was temporarily expunged for Germans, has proved to be more durable in Soviet Russia...
...That such criminal justice shows no sign of abatement is a major component in the strife besetting America...
...t3 The inference is valid and we salute the praiseworthy sentiment that underlies it...
...10 The disadvantaged boy living in a "highdelinquency area" may seem disrespectful, uppity, mischievous, or idle...
...That much should have been learned by anyone who has lived through the past 50 years of world history...
...Korn and McCorkle, in passages innnediately preceding their critical question, draw upon a prominent legal authority, William Seagle, who neatly circumscribes the area...
...ON CRIME AND PUNISHMENT yet to be adopted, the propensity is officially less pronounced...
...This is a policeman's paradise, and `crime in the streets' is manageable...
...Wholesale arrests of "suspects" on vagrancy charges are often made when a crime or a "rumble" has occurred in a high-delinquency area...
...T T HE IDEA OF INDIVIDUAL AUTONOMY was alien to all feudal law...
...BERNARD ROSENBERG answer is, "One can best understand the meaning of the Munt [moot] if one compares it to the guardianship of a child: it is the kind of protection which a father affords to a child, or a guardian to his ward, or in AngloSaxon and Anglo-Norman England, the husband to his wife...
...Where this reporting system has 4 Ibid., p. 111...
...Every grave offense directed at an individual was also aimed at his whole clan or tribe: extended families avenged themselves on extended families, as retaliation followed upon retaliation...
...Available figures grossly distort both the incidence and the distribution of an offense whose actual magnitude we cannot know...
...The police have always needed to persuade, pay, threaten, or coerce informants to help them gather intelligence...
...Hark, in thine ear: change places...
...Cantor argues that the folk court provided an element of rationality: "Only those defendants were put to the ordeal who were either commonly suspected of guilt"—which is an element of rationality—"or were of the lower social strata"—which is something else...
...Data banks, with instant retrieval, which may include police, court, probation, school, welfare, and health records, are already underway...
...2 Leon Radzinowicz, Ideology and Crime (London: Heinemann, 1966), p. 2. vate morals by criminal law, it reverses the historic trend away from tyranny...
...Pending a politically calamitous resolution of our many social and economic crises, which would require us to suspend the Constitution and the Bill of Rights, we are markedly more vulnerable on the second score than on the first...
...In the end, it must have been too enervating and too dangerous to be borne...
...such records shall be open to inspection upon good cause shown by the parent, guardian, next friend, or attorney of that person upon the written order of a judge of the family court in the county in which the order was made or, if the person is subsequently convicted of a crime, of a 10 Loc...
...That the criminalization of many common acts helps to account for our crime problem is another matter...
...Emphasis added.] 15 "Protecting the individual against the state" is without any possible respite a matter of the utmost urgency...
...To which Seagle appends an aphorism of his own: "The inefficiency of the criminal law is indeed the pride of democracy...
...And all have fairly free access to them...
...Gradually, the blood feud gave way to other forms of reparation, "composition," or compensation...
...It exposes much that would remain unexposed about the "wicked ways" of those in an affluent society who receive public assistance...
...Christendom, of which Britain was a part after the seventh century, sorely needed an authority both broader and more powerful than that of angry kinsmen...
Vol. 18 • February 1971 • No. 1
