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Most Americans would consider crime to be a pressing national issue. However, few are informed about the makeup and history of the American criminal justice system. Understanding the criminal justice system can aid in understanding one of our nation’s most pressing issues. In his seminal work, Crime and Punishment in American History, Lawrence M. Friedman summarized a general history of American criminal justice from the seventeenth century to the 1970s. Friedman conveyed the thesis that judgements about crime, and what to do about it, come out of a specific time and place by providing a social history of crime and punishment. Friedman described the system as being made by the way society is organized and the social norms interacting with the context of the time period as well as with specific events and situations. Friedman divided the work into three different periods; colonial America, from the Revolution to the close of the nineteenth century, and the twentieth century. In each of these periods, Friedman articulated that crime and the institutions that respond to it have been shaped by larger social forces at work. This assertion supported the overarching thesis that judgements about and responses to crime are shaped by the time and place in which they occur. Overall, this book provided a fascinating account of the evolution of criminal justice in American history and how the changing values of society are shaped and enforced over time.
The American criminal justice system took root in the colonial period. During that era, hierarchical village theocracies that had little need for paid constables and punished people with the purpose of stressing repentance and acceptance back into society. Punishment for a large majority of crimes was public, communal, and humiliating which furthered the purpose of stressing repentance. Time in the stocks, for example, offered a certain humiliation that might encourage one to take steps towards reintegrating into society. During that era, the punishment oftentimes correlated to the nature and the severity of the crime that was committed. An adulterer, for example, might be branded with the letter “A.” Friedman described trials during this era as “an occasion for repentance and reintegration: a ritual for reclaiming lost sheep and restoring them to the flock.” This description revealed the extent to which criminal justice and society shaped one another in a symbiotic relationship. Because religion and restoring individuals was important to the society it became a significant component of the criminal justice system. Friedman’s overarching thesis supported the notion that the values of the people of this time period are reflected in their reactions to crime. During the colonial period the significance of religion is prevalent given punishment in matters pertaining to religion could be as severe as banishment or death.
The second time period Friedman addressed was the span from the Revolution to the close of the nineteenth century. Friedman noted that the post-Revolutionary age was one of reform in criminal justice. The rejection of English customs characterized society and the fact that it also characterized criminal justice reform further strengthens Friedman’s thesis that criminal justice correlated with situational contexts. The English criminal justice system did not suit the revolutionary thought process and the republican criminal justice system looked different. In England, the role of the lawyer was less prominent than that of the judge, Judges were responsible for investigating, developing evidence, and presenting that evidence to other judges who were responsible for making the decision. Another difference between the English criminal justice system and the republican criminal justice system was the emphasis on spoken word. Oral testimony was the most significant component of the English trial with lawyers carrying out examination and cross-examination before the judges. Finally, the English criminal justice system relied on private prosecution which meant that there was no district attorney or public prosecutor. Anyone who was a victim of a crime was responsible for bringing the perpetrator to justice, they would have to fund their own prosecution. In the American criminal justice system on the other hand, trials looked much different. Judges no longer carried the burden of investigation and bringing perpetrators to justice became the responsibility of the government as opposed to being the responsibility of the individual. These differences demonstrated the relationship between the evolution of the American criminal justice system and changing culture.
The final time period Friedman addressed was the twentieth century. In the twentieth century, criminal justice became less centered around the states and more of the business of the federal government. An example from this era can be found in the account of the Chief Justice Earl Warren Court. The Warren Court widened the scope of civil liberties; but, the subsequent proliferation of violent crime that occurred was a product of individualism combined with profitable drug trafficking which shifted the pendulum of public opinion towards order and away from law. The relationship between crime and liberty was dependent with crime serving as a consequence of liberty. Further, the malleability of the criminal justice system is evident in this era as Alfred Kinsey brought about change in public opinion regarding sex. Kinsey brought human sexuality to the forefront with the famous “Kinsey Report.” This report was an empirical study of the sex lives of American men that brought about the message that illegal sexual behavior was a common occurrence. Kinsey revealed that ninety-five percent of the American male population were technically sex offenders and that when taken literally the idea of locking up all sex offenders meant that five percent of the population would have to support the other ninety-five percent of the population’s imprisonment. When Kinsey worked to make the human sex life less taboo, Friedman noted a subsequent liberalization of fornication and sodomy laws which demonstrated the relationship between the changing values of society and the change in the law. This example revealed the extent to which public opinion had the power to incite change in the criminal justice system.
Ultimately, Friedman’s work was successful in offering a comprehensive history of American criminal justice. The areas he highlighted are a phenomenal group of topics for introducing to a reader who wants to obtain a generalized understanding of the American criminal justice system. Friedman’s work articulated not only this generalized understanding of the American criminal justice system but placed an emphasis on the way that it changed and developed over time. His work conveyed the thesis that judgements about crime and what to do about it come out of a specific time and place. Further, Friedman articulated that the values of society and culture are reflected in the way the law punishes certain acts. Friedman’s ultimate view was that the problem of crime cannot necessarily be solved, meaning we cannot just entirely wipe out the existence of crime. Friedman instead proposed that what the public must really want is to contain crime, reducing it to more manageable levels of activity so that violence may be kept under control. Friedman claimed that the problem of crime can be traced back to changes in culture and was ultimately a product that was produced by our society as a whole. Friedman ultimately asserted that crime must be the price that we pay for the nature of our free and open society. To Friedman, crime is the price of free will and there is nothing to be done but pay the price.
Abigail Cheek is a McConnell Scholar in the class of 2023. She is studying psychology, history, and political science at the University of Louisville.