Political Crime in Europe: A Comparative Study of France, Germany, and England

Political Crime in Europe

BARTON L. INGRAHAM

Political Crime in Europe

A COMPARATIVE STUDY OF FRANCE, GERMANY, AND ENGLAND

UNIVERSITY OF CALIFORNIA PRESS

Berkeley / Los Angeles / London

University of California Press Berkeley and Los Angeles, California University of California Press, Ltd.

London, England

Copyright © 1979 by

The Regents of the University of California

ISBN 0-520-03562-3

Library of Congress Catalog Card Number: 77-83103 Printed in the United States of America

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Contents 1

Contents 1

Preface

Acknowledgments

CHAPTER 1

The Positivist Definition of Crime

The Repressive Response

Functions of Criminal Law

Analytical Definition of Crime

CHAPTER 2

Political Crimes in Western Civilization—Nature of the Offense

Why Acts of Betrayal and Acts Challenging or Hindering Political Authority in the Past Have Been Regarded as Crimes

The Preventive Aspects of Laws Dealing with Political Crime

The Switch from Prevention through Repression to Prevention by Regulation

Conclusion

section one: Prologue CHAPTER 3

The Monarch as the Object of Protection versus the State as the Object of Protection

The Enlightenment and the Doctrines of Liberalism

France

Germany

Great Britain

Conclusion

section two: The French Revolution and the Period of Reaction (1789-1830)

CHAPTER 4 France (1789-1830) The French Revolution, 1789-1795:

The Napoleonic Period, 1799-1814

The Restoration of the Monarchy and Its Problems in an Age of Revolution, 1815-1830

Francois Guizot—The Liberal View of Political Crime

Summary

CHAPTER 5 Germany (1789-1830) Counterrevolutionary Laws of the 1790s

Revolutionary Activity and Measures Adopted to Maintain the Status Quo

Treatment of Political Crime in the Bavarian Penal Code of 16 May 1813

Legal and Philosophical Views Concerning Political Crime

Summary

CHAPTER 6

Measures Taken to Immunize England from the Effects of the French Revolution, 1790-1800

Postwar Repression of Early Labor Riots and Rebellions, 1816-1820

The Growth of Liberalism in the Decade Preceding the Passage of the Reform Bill of 1832

Trials for Treason, Sedition, and Other Political Crimes, 1792-1831

The Liberalism of Jeremy Bentham

Summary

SECTION three: /4 Time of Ferment (1830-1851): Springtime of the Policy of Leniency

CHAPTER 7

Reforms in the Law on Political and Press Crimes

The Law of 28 April 1832 and the Lenient Penal Treatment of Political Offenders

The Testing of These Laws

The Second Republic (1848-1851)—Return to Repression

CHAPTER 8

The Disturbances Triggered by the July Revolution of 1830 and the Second Wave of Repression

The Penal Code Revisions of Wiirttemberg, Hesse, Baden, Nassau, Saxony, and the Thuringian States

The Penal Code of the Prussian States, 14 April 1851

The 1848 Revolution and Its Aftermath

CHAPTER 9 Great Britain (1830-1848) Period of Ferment, 1830-1848

Legal Developments

The Policy of Leniency

Summary

section four: A Time of Consolidation (1852-1914): The Summer of the Policy of Leniency

CHAPTER 10

Louis Napoleon and the Second Empire (1851-1870)

The Third Republic until the First World War (1870-1914)

CHAPTER 11

The Nature of the System Established by Bismarck

The German Penal Code of 15 May 1871

Subsequent Legislation and Political Repression

Summary

CHAPTER 12

The Period of Quiescence, 1849-1905

Political Crime in Ireland, 1858-1891, and Measures Taken for Its Suppression

Aliens, Anarchists, and Extradition

Further Developments in the Law of Sedition

The Policy of Leniency—Continued

The Last Days of Liberalism: 1906-1914

Summary

SECTION FIVE: Political Crime in an Age of Ideology (1914-1970): The Autumn and Withering of the Policy of Leniency

Major Changes in the Twentieth Century and Contributing Causes

Positivism and Political Crime: The Early Positivists (Lombroso, Ferri, and Garofalo)

Fascism and Political Crime

Decline of Positivism

CHAPTER 13 France (1914-1970) The Third Republic and the Interbellum Years, 1918-1939

The Fourth and Fifth Republics, 1945-1970

CHAPTER 14 Germany (1914-1970) The Weimar Republic, 1919-1933

Control of Political Crime in Nazi Germany, 1933-1945

The Federal Republic of (West) Germany, 1949-197067

Summary

CHAPTER 15 Great Britain (1914-1970)

War and Postwar Emergency Legislation

Control of Speech and Press Offenses, Public Meetings, and Demonstrations of a Violent or Seditious Nature

Decline of the Policy of Leniency toward Political Offenders

Summary

CHAPTER 16

Review

Lessons

Conclusion

APPENDIX A

— APPENDIX B

Bibliography

Table of Statutes Cited

Index

Preface

Today one hears the expressions political crime, political criminals, and political prisoners bandied about in the press and in public discussion with little precision of meaning. They are used, more often than not, in a pejorative sense.¹ To many Americans these terms suggest the legal persecution of unpopular dissident groups or individuals for their political, religious, or ideological beliefs, and therefore lend themselves easily to polemical discussion. With little discrimination the speaker may apply them to those operations of the criminal justice system which he detests and to those objects of it with whom he sympathizes. Almost invariably the very same operations carried on by governments with which the speaker sympathizes against those groups or individuals whom he detests are not regarded as political or, if they are recognized as such, are not viewed as persecutions.² Current usage is so highly subjective that for analytical purposes popular definitions must be rejected as worthless. With such usage, it is simply a question of whose ox is being gored.

‘See Lance Morrow, Who (and What) Is a Political Prisoner? 98 Time 18-19 (6 September 1971).

² Note, for example, the almost complete editorial silence observed in the liberal and radical press with respect to rightist victims of government repression: Robert Shelton (Imperial Wizard of the Ku Klux Klan convicted of contempt of Congress in September 1965 for failure to turn over the records and membership lists of his organization to the House Un-American Activities Committee), George Lincoln Rockwell (leader of the American Nazi Party, whose headquarters were padlocked in 1965 by the Internal Revenue Service for nonpayment of taxes and who experienced several state prosecutions for his political activities), and Major General Edwin Walker (arrested in October 1962, charged with inciting rebellion, insurrection, and seditious conspiracy for leading students in an attack on federal marshalls attempting to desegregate the University of Mississippi at Oxford, and subsequently confined by federal authorities at the government hospital in Springfield, Missouri for psychiatric evaluation). Except for the political coloration of the defendants, it is not immediately apparent what distinguishes their prosecutions from those of Angela Davis, Huey Newton, Philip and Dan Berrigan, or Dr. Spock.

There exist, nonetheless, such things as political crimes, political criminals, and political prisoners. The problem for the social analyst is to define each term in such a way that, regardless of the cultural, political, or historical setting, the phenomena may be recognized, identified, and separated from other phenomena which are distinct in some important aspect. It is one of the objectives of this book to formulate a theoretical model of the criminal law in operation and to place political crimes and criminals within the framework of that model.

The renewed interest of scholars in the United States in the subjects of political crimes, political trials, and political prisoners during the last ten years probably reflects the events of those years and the intense political conflict between the Johnson and Nixon administrations and their critics.1 But contemporary American scholarly analysis of the political aspects of political crimes, trials, and prisoners is lacking in three respects. First, American scholars tend to view political crime and political justice as aberrations and distortions of criminal law and its administration, notwithstanding their persistent and frequent appearance in American history. Thus, former Senator Charles Goodell states in Political Prisoners in America,

But what I believe is most disturbing about repeated and continuing abuse of the criminal process to control dissent is that with no apparent gain to any interest, our criminal and political systems are ominously distorted. We rely on our criminal system to protect us from attacks on person and property.2

Second, a lack of analysis is manifested in confusion over terminology. Not only is there a lack of agreement as to terms, but discussions of political crime seldom relate in any theoretically consistent way to discussions of political trials and prisoners. We are told by the authors of two recent books analyzing political trials that they may be defined independently of the charge brought against the defendant, which may or may not involve a political offense.3 It is sufficient if the prosecution is politically motivated. Political prisoners, in some quarters, are members of oppressed minorities who have been imprisoned neither for the commission of political crimes nor as the result of a political prosecution.4

Third, American discussions of political crimes, offenders, and prosecutions tend to be based too much in contemporary American history and to reflect too greatly local legal and moral issues. For example, the issues discussed in this country in connection with political crime and its repression revolve almost totally around First Amendment concerns involving the suppression of dissent and the moral and legal propriety of civil disobedience. While it is true that political crime always has included within its ambit the expression of political opinion challenging the authority of rulers and hindrance of their policies out of moral conviction, the idea that these matters somehow subsume the entire area of political crime lends to the American treatment of the subject its peculiarly parochial and innocent flavor. The American preoccupation with these rather mild forms of political crime reflects the fact, not that the United States has never experienced political violence, but that such violence so rarely has taken a revolutionary form.5

This volume examines the problem of political crime and its control in societies where the exact conditions of the American environment do not prevail. American authors often overlook the fact that the problems which the United States has faced recently in the legal management of internal dissent and political conflict are worldwide and that there is a rich body of materials which can be drawn from foreign sources to aid in analysis. I shall attempt to advance the discussion, first, by an analysis of the nature of political crime and the measures used for its control in the context of other kinds of crimes and crime control measures and, second, by placing the discussion in its historical context and in the context of a comparative analysis of laws and crime control measures applied in three Western European countries during the last two hundred years.

The three European nations chosen as case studies—France, Germany, and Great Britain—illustrate six central theses of this book. For the sake of clarity, and to assist the reader in following my argument, these six central theses will be listed at the outset in the form of propositions, support for which will be offered in the historical and legal materials which follow.

a. those which are seen as involving betrayal of allegiance to principles or persons that bind the political order; b. those which are viewed as involving a challenge to, or hindrance

of, political authority.

Whenever an act is seen as possessing one or both of these qualities, it will be dealt with in a political manner.

2. Governments deal with political offenses by employing all manner of criminal, civil, and purely administrative measures to suppress them or reduce their harmful effects.

3. Whenever the moral component (that is, the morality or immorality) of any kind of politically deviant behavior becomes ambiguous or doubtful, there will be a shift in the manner of administering the laws from a punitive and condemnatory to a preventive and regulatory mode; conversely, when the offense regains its moral component, there will be a shift back to more punitive measures of repression. This shift in governmental response is observed not only in the realm of political crime but is found in the legal response to all forms of illegal deviant behavior.

4. On the whole, for reasons having to do with the preservation of political power and authority, the preventive uses of criminal and other laws and procedures are emphasized at all times and the administration of political justice constantly reflects this emphasis. In countries with a liberal democratic tradition the use of laws and procedures for prevention rather than for punishment is poorly understood and runs into continual conflict with basic traditional principles of criminal responsibility and due process in the determination thereof. As a result, the preventive uses of law always appear to liberal critics to be illegal and unconstitutional overreaction on the part of governments which employ such tactics. In liberal democracies there is inevitably a conflict between measures taken by governments in self-defense against illegal political opposition and the principles on which the liberal legal order is based, causing governments in such countries either to justify such measures as temporary emergencies or to carry out such measures under the guise of ordinary crime control.

5. Even though legislation in this area is highly reactive, in the sense of being the product of particular, politically significant events, prevailing political philosophy greatly affects the form such legislation takes. The political philosophy shared by most members of the government, including the legal fraternity, limits and shapes the legal measures adopted to meet the political exigencies of the age. It is not true that governments adopt whatever measures of repression are both necessary and efficient in suppressing perceived dangers. The influence of ideology is strong. Frequently, the measures adopted fall far short of what is required for effective repression, and this is largely due to moral values and political beliefs which restrain governments from taking the kinds of draconian measures that are within their powers.

6. Nevertheless, in liberal Western democracies the use of legal measures for political repression has on most occasions been successful in protecting the State from the violence of its enemies, even though governments have been forced to hedge on the strict application of liberal principles. Contrary to popular belief, repressive measures, when used with restraint, have not led to the spreading or strengthening of political opposition (the metastasis theory), but instead have subdued it and forced it into legitimate and peaceful modes of expression. Moreover, the limited use of legal repression for defensive purposes has not led to the growth of a police state. More often it has been the failure to employ limited measures of repression during a period of weakness and division which has led to the polarization of factions within society, the defeat of democracy, and the introduction of a dictatorial regime.

1 On the subject of political trials, see Theodore L. Becker (ed.), Political Trials (Indianapolis: Bobbs-Merrill, 1971); Leon Friedman, Political Power and Legal Legitimacy: A Short History of Political Trials, 30 Antioch Review 157-170 (summer 1970); on the subject of political crime and criminals, see Marshall B. Clinard and Richard Quinney, Criminal Behavior Systems: A Typology (New York: Holt, Rinehart and Winston, 1967), pp. 177-246; Stephen Schafer, The Concept of the Political Criminal, 62 Journal of Criminal Law, Criminology, and Police Science, 380-387 (1971); on the subject of political prisoners, see Charles Goodell, Political Prisoners in America (New York: Random House, 1973); Willard Gaylin, In the Service of Their Country: War Resisters in Prison (New York: Viking, 1970).

2 Goodell, Political Prisoners, p. 172.

3 Becker, Political Trials, pp. xii, xv; Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 B.C. (Cambridge, Mass.: Harvard University Press, 1968), p. 6.

4 Morrow, Who (and What) Is a Political Prisoner.

5 See Edward Pessen, Why the United States Has Never Had a Revolution—Only ‘Revolutions,’ 72 Southern Atlantic Quarterly 29—42 (winter 1973).

1. For analytical purposes, political crime is best defined in terms of the societal and governmental reaction to politically deviant behavior. All political offenses have tended to fall under two broad categories:

Acknowledgments

This book represents years of research and communications with various experts in the fields of criminal law and the sociology of law. I should now like to express my indebtedness and appreciation to the following scholars who helped guide my path with many valuable suggestions: Dr. Phillip Selznick of the University of California, Berkeley; Dr. Peter P. Lejins, University of Maryland; Dr. Gerhard O. W. Mueller, Rutgers University; M. Marc Ancel, President of France’s Court of Cassation; Professor Dr. Joseph Haussling and Professor Dr. Hans-Jurgen Kemer of West Germany; and Mr. Joseph O. Losos of St. Louis, Missouri. Helping out with translations from German were Tony Peters of the Netherlands and Mrs. Senta Pugh, formerly of West Germany, now a U.S. citizen. Thanks also go to Mrs. Ethel Thom and many others for typing the several versions of this lengthy manuscript.

1

PART A

A Theory of Political Crime

CHAPTER 1

Problems of Definition: Is Political Crime Criminal?

The focus of this book is on societal reaction to various forms of political crime and the effect of this reaction on the definition of persons as political criminals and on the legal measures adopted by governments to punish and regulate these offenders and prevent future offenses. This work will not focus on the behavioral or psychic characteristics of individuals who engage in political crime. It is my position that societal reaction to behavior determines, ultimately, what behavior is regarded as criminal and what criminal behavior is regarded as political.

It is necessary first to define political crime and the political criminal before even beginning to discuss the behavioral or psychic characteristics of offenders of this type. To avoid circularity, a definition of behavior should import definitional criteria external to the theory used to explain the behavior. Otherwise, one’s definition of a certain behavior embodies one’s theories of that behavior and proves the theory at the same time by excluding from consideration all empirical evidence inconsistent with the theory.

Examples of such circular definitions are numerous in the field of criminology, but one of the more recent ones in the area of political crime is Stephen Schafer’s definition of the political criminal.¹ Schafer recognizes a distinction between a convictional criminal who commits a crime from altruistic motives, being absolutely convinced of the morality of his actions, and the conventional criminal who acts from selfish motives. He would limit the term political criminal to cases of convictional crime and call conventional

¹ Stephen Schafer, The Concept of the Political Criminal, 62 Journal of Criminal Law, Criminology, and Police Science 380-387 (1971).

crime committed in the name of politics pseudo-political criminal behavior. While such a dichotomy between offender types may be both possible and useful for some purposes (for example, for diagnosis), Schafer never makes clear in his discussion what deprives selfishly motivated crime committed in the name of politics of its political nature, or why a government or a people should react differently (and thus make a distinction) to crime which threatens their vital interests according to whether or not the offender’s motives were altruistic or selfish. The danger to those vital interests is the same in both cases—perhaps being even greater when the offender’s motives are convictional than when they are selfish,

The definition of political crime formulated here will be sociological (analytical) rather than legal. As Edwin Schur has observed,² the perspectives of the sociology of law and jurisprudence overlap in many places; it is mainly a question of where the emphasis is placed. The sociology of law uses the methods of the social sciences in examining the social and political factors at work in legislation, in the administration of laws, and in changes in those laws over time. Jurisprudence attends more to a philosophical discussion of what the law should be; building its analysis on discussion of doctrine, it sometimes fails to keep distinct and separate the questions of what the law is in practice from what it purports to be in doctrine. In this work discussion of legal doctrines will be avoided, except insofar as doctrine reveals the psychic and social processes at work in the justification of what is done by officials and enforcers in the name of the law.

A sociological study of criminal law, or some aspect of it, must begin by taking into account the different goals that underlie legal and analytical definitions. All legal definitions may be characterized as policy definitions. That is, acts are subsumed under a legal term according to the jurist’s or lawmaker’s desire that they be treated in a similar way in the fulfillment of a certain policy. Thus, legal definitions already embody their results, their conclusions. For a court with the power of deciding what the law will be, calling an act a civil wrong rather than a criminal offense is merely a decision that the act will be handled in the future in the manner of civil wrongs rather than crimes. It usually does not assist us in understanding the essential differences between civil and criminal wrongs, assuming there are any, nor does it help us understand why some acts are defined and handled one way and other acts other ways. For this reason, Papadatos’s complaint in his treatise on political crime that all definitions of political crime proposed to date by legal analysts "have been dictated in advance by the conclusions which they would be expected to

²Edwin Schur, Law and Society: A Sociological View (New York: Random House, 1968), pp. 17-18.

reach,"³ is not an objection to legal definitions of political crime alone, but applies to all legal definitions.

Analytical (scientific) definitions also are definitions with a purpose, the purpose being primarily to explain for better understanding. This may be done in various ways according to the interest of the scientist. One may state the conditions necessary for the application of the term so that phenomena with theoretically related or similar attributes may be grouped under the same term, or one may simply establish indicators to test operationally an underlying theory. In almost every case, the definition will embody preliminary hypotheses about the factors one suspects will be critical in explaining the phenomena, whether it be their origin, operation, causes, or functions. But the definition at this stage must be loose and flexible so as to adjust to the results of research.⁴

The danger of adopting legal definitions of political crime for analytical purposes lies in their delimitation of the subject matter in accordance with the objectives of their formulators. These objectives have nothing to do with the understanding of the phenomenon itself.

In seeking an analytical definition of political crime, our first task will be to attempt to understand the nature of crime and to ask what is criminal about political crime? The question may seem facetious until one realizes that the criminality of political crime has been argued and disputed by many, in recent times and in the past.

The Positivist Definition of Crime

Positivism in the social sciences, which still probably represents the dominant modality of thought in the area of criminology, tries to be realistic and scientifically objective by taking the social and legal order as given. In the belief that the word crime is simply a label attached to certain kinds of behavior by the criminal law, positivists’ definitions of crime tend to hew rather closely to the legal definition. Thus, although the formulation of the definition differs in minor respects depending on the criminologist, the positivist basically defines crime as that behavior which violates the criminal laws of the State.⁵ In other words, whatever authoritative organs of the State, such as courts and

³Pierre A. Papadatos, Le Delit politique: Contribution ά Ϊetude des crimes contre Vetat, these no. 507 (Geneva: Librairie E. Droz, 1954), p. 71.

⁴ Abraham Kaplan, The Conduct of Inquiry: Methodology for Behavioral Science (San Francisco: Chandler, 1964), p. 72.

⁵ Edwin H. Sutherland and Donald R. Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. P. Lippincott, 1966), p. 4; Jerome Michael and Mortimer J. Adler, Crime, Law and Social Science (New York: Harcourt, Brace, 1933), p. 5; Paul Tappan, Who Is the Criminal? 12 American Sociological Review 96-102 (February 1947); Richard Quinney, The Problem of Crime (New York: Dodd, Mead, 1970) pp. 4-8; and see Herman and Julia Schwendinger, Defenders of Order or Guardians of Human Rights? 5 Issues in Criminology 123-157 (summer 1970), pp. 124-129.

legislatures, choose to call criminal is criminal. Implicit in this approach is the confinement of one’s analysis of crime and legal behavior with respect to crimes to those categories of behavior officially defined as criminal.

Criminologists, including sociologists studying legal behavior, are not entirely happy with this approach. On examination it appears that virtually any kind of behavior—moral, immoral, or morally neutral, deviant or nondeviant, harmful or harmless, public or private—is capable of being labeled criminal and at one time or place has been so labeled. This phenomenon is commonly referred to as the relativity of crime.⁶

When Roscoe Pound looked at penal legislation in the United States in the 1920s, he found that there were hundreds, if not thousands, of criminal statutes in every state covering an enormous variety of behavior, and that the number of these statutes had been steadily increasing over a hundred-year period.⁷ The situation today has not changed substantially, notwithstanding the reform and codification by some states of their criminal laws; lawyers still speak of the crisis of overcriminalization.⁸ The proliferation of criminal laws has deprived the concept of crime of whatever stable content it might once have had. It can no longer be said (if it ever could have been) that crime represents a community judgment as to what is truly reprehensible behavior. Thus, criminal behavior has become almost coextensive with noncriminal behavior, sharing all the attributes of noncriminal behavior and possessing no essential character of its own, except the random and arbitrary characteristic that it has been subjected to the possible application of a penalty by the criminal law. This development has caused some criminologists to despair of ever constructing a science of criminal behavior whose principles would not be equally applicable to noncriminal behavior. ⁹

The positivist definition of crime, therefore, tells us only what behavior has the potential of being proceeded against criminally and labeled as crime. It tells us nothing about the behavior itself, how criminal behavior differs from noncriminal behavior, what the societal reaction to it will be, and whether it will be handled criminally, or civilly, or will be ignored.

The Repressive Response

Virtually any act is capable of being defined as criminal by the State (that is, capable of being prohibited by law and having this prohibition enforced

⁶Sutherland and Cressey, Principles, pp. 6-7.

⁷Roscoe Pound, Criminal Justice in America (New York: Henry Holt, 1930), pp. 15-20.

⁸Sanford H. Kadish, The Crisis of Overcriminalization, 374 Annals of the American Academy of Political and Social Science 157-170 (November 1967).

⁹See, for instance, Robert Mclver, Social Causation (Boston: Ginn, 1942), p. 88; Thorsten Sellin, Culture Conflict and Crime (New York: Social Science Research Council, bull. #41, 1938), pp. 17-32.

through the use of criminal sanctions). This is especially true when law, including criminal law, is viewed as an instrument of effectuating social policy objectives, for then criminal law will be overburdened with many functions unsuited to the sanctions it must employ.

While it is true that a wide range of behavior is capable of being defined as criminal, it is not true that every act has an equal chance of being so labeled. Which acts are and which acts are not is not simply a function of what society’s leaders regard as the most effective way of dealing with a social problem or of effectuating a social policy. If this were the case, the scope of the criminal laws probably would be much narrower than it is today.

Human responses to the behavior of other humans—including the responses of legislators and enforcement officials—are not governed exclusively by rational considerations but also by emotions such as hostility, indignation, fear, annoyance. There are three categories of acts which have strong tendency to arouse these negative emotional responses: (1) highly immoral acts, which violate central values of the society or of its dominant groups and which arouse their hostility, indignation, and sometimes fear and anxieties; (2) repetitive breaches of public order, which strain the patience of authorities or influential groups and which seem to defy control through other methods; and (3) politically dangerous acts, which seem to threaten the sovereignty of a people or the authority or vital interests of those in charge of making and enforcing the laws. These three categories of acts tend to produce the desire to inflict suffering on the wrongdoer or to eliminate any further activities of a similar kind on his part or on the part of others similarly disposed. This desire shall be referred to henceforth as the repressive response.

That these three classes of behavior have the greatest probability of evoking a repressive response is substantiated by a wealth of material. Both Radcliffe-Brown and Diamond have noted in their anthropological studies of primitive law that a public punitive reaction expressing the moral indignation of the community most often follows actions which violate tribal taboos (highly immoral acts), repeated breaches of tribal norms (repetitive breaches of public order), or direct offenses against constituted authority or against persons in whom that authority rests (politically dangerous acts).1 Many sociological studies of sentencing practices in the United States confirm that penal sanctions are most likely to be imposed and probation and parole denied when the offender has committed a serious and morally reprehensible crime, is a habitual offender, or continuously challenges the authority of those who attempt to con trol his conduct.2 According to a nationwide survey conducted in 1965 by the editors of the Harvard Law Review of the administration of juvenile delinquency laws, the juvenile delinquents most likely to be processed all the way through the system and to receive sentences to institutions, rather than being diverted out of the system on probation or early release into the custody of their parents, were (1) serious crime violators, (2) refractory types who were not duly submissive and contrite in the presence of authority, and (3) recidivists and incorrigibles whose lengthy records of previous offenses caused the authorities to give up on them.3 This finding is supported by several other studies which show that in interaction with police the same three classes of juveniles are disproportionately referred to court for further action rather than being diverted out of the system.4

Although the repressive response is often an expression of emotions of hostility, indignation, fear, and annoyance, it is not devoid of practical considerations. For instance, the failure to respond vigorously and aggressively to highly immoral or politically dangerous acts might be construed as a sign of lack of commitment of authorities to central values of the system or to their authority position in the face of direct challenges.5 In the case of repetitive wrongs, other means of control may have been tried and found inefficacious. The mere fact, however, that an activity is considered harmful in some way to social interests meriting the protection of the law is usually not sufficient to ensure the arousal of emotion and the repressive response. Therefore, every act which is deemed harmful to a societal interest or to the effectuation of social policy does not have the same chance of becoming defined as crime.

Exactly what acts will be regarded as falling within one of these three categories differ from culture to culture and within the same culture over time. It depends on various factors, such as the value system of the society, its basis of political organization and political philosophy, the tolerance level of the society for disruptive forms of behavior, and so forth. It is important to realize, however, in studying the reactions of humans to the behavior of others, that how the act is viewed symbolically is often more significant than how it may be viewed as to its effects from a disinterested or abstract point of view.6 Men regard acts not only according to their effects but also as forms of communication, representing in behavior the ideas and attitudes of the actor. These symbolic expressions of ideas and attitudes have as great a potential for arousing the emotions of others as the actual outcome of any act. It may be that symbolic expressions possess the greatest potential for arousal of emotion.

An analytical definition of crime, therefore, ought to take into account those aspects of behavior, whether because of their effects or their symbolism, which produce a repressive response—the most characteristic feature of the law of crimes and the administration of criminal justice.

1 A. R. Radcliffe-Brown, Primitive Law, in Encyclopedia of the Social Sciences (New York: Macmillan, 1933), IX: 202-206; A. S. Diamond, Primitive Law, Past and Present (London: Methuen, 1971), pp. 167, 191, 221, 295, 400.

2 Robert Carter and Leslie Wilkins, Some Factors in Sentencing Policy, 58 Journal of Criminal Law, Criminology, and Police Science 503-514 (December 1967) (the four most significant factors in deciding for or against probation: seriousness of the crime, confinement status, prior record, and number of arrests); Henry Allen Bullock, Significance of the Racial Factor in the Length of Prison Sentences, 52 Journal of Criminal Law, Criminology, and Police Science 411—417 (November-December 1961) (seriousness of the offense, offender’s plea before the court [an indicator of defendant’s attitude toward authority], and type of area [urban v. rural] where tried); Edward Green, Sentencing Practices of Criminal Court Judges, American Journal of Corrections 32-35 (July-August 1960) (the seriousness of the crime, number of charges on which offender convicted, prior criminal record); and see National Parole Institutes, Selection for Parole, Parole Resources Book, part 2 (April 1966), pp. 162-163 (considerations in parole decisions).

3 Juvenile Delinquents: The Police, State Courts and Individualized Justice, 79 Harvard Law Review 775-810 (February 1966), pp. 778-782.

4 Irving Piliavin and Scott Briar, Police Encounters with Juveniles, 70 American Journal of Sociology 206-214 (September 1964); Carl Werthman and Irving Piliavin, Gang Members and the Police in David J. Bordua (ed.), The Police: Six Sociological Essays (New York: John Wiley, 1967), pp. 70-74; and see Thomas D. Gill, When Should a Child Be Committed? 4 National Probation and Parole Association Journal 1-6 (1958).

5 J. Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970), pp. 100-105.

6 See Joseph R. Gusfield, On Legislating Morals: The Symbolic Process of Designating Deviance, 56 California Law Review 54-59 (1968).

Functions of Criminal Law

The repressive response usually manifests itself in two ways: (1) in the condemnation of behavior that is felt to be morally reprehensible, and (2) in the prohibition of the activity condemned in the sense of absolute prevention. Condemnation serves the function of preserving important values of the society and of vindicating the sense of violated right of the victims and their sympathizers.1 Mere words of condemnation are seldom adequate to express the degree of emotion or level of commitment which lies behind the official response; people usually expect some more tangible evidence that the authorities share their outrage, and punishment—the infliction of suffering and deprivation— satisfies that requirement. As Durkheim observed almost a century ago, the intensity of the punishment will not be in relation to the harm which the violation causes, objectively viewed in terms of its physical or pecuniary consequences, but rather in relation to the intensity of the emotion which the violation generates.2

Law performs a great variety of functions in modern societies. Among some of the more important functions are the resolution of disputes, the maintenance of public order, the protection of the polity and its members from external and internal enemies, the preservation of authority relationships, the maintenance of important values, the regulation of activities to enhance public welfare and safety, and the allocation, division, and limitation of official power.3

Criminal law is not used effectively in the settlement of disputes between private persons and organizations. The effect of its use in aggravating the level of conflict in the early history of labor-management relations in this and other Western countries should be ample proof of the truth of this assertion. Punishment, which awards victory to one side and defeat to the other and which attempts to suppress claims that the losing side advances with deep conviction as to their rightness, will seldom go far in restoring amicable and peaceful relations between disputants. Durkheim probably was mistaken when he assigned the use of repressive and restitutive sanctions to different developmental stages of society.4 People in primitive (mechanical) societies seem no more disposed than people in modern (organic) societies to employ a collective punitive sanction in order to settle a private dispute.5 Where the disputants are unable to settle their differences among themselves, they are not punished; instead, an attempt is made to mediate their dispute and to encourage them to arrive at some mutually satisfactory compromise. In modern societies this mediation process takes place within the structure of formal litigation and adjudication in which, on the face of things, one party seeks total vindication at the expense of his adversary. In fact, however, most civil disputes are settled out of court, with the plaintiff receiving some, but not all, of his demands.6 Indeed, the legal system encourages such compromise.

Criminal law is also not used effectively in the limitation of official power, although republican Rome with its treason prosecutions of dangerously demagogic politicians7 and the vestigial modern counterpart, the legislative im peachment process,²³ provide at least two examples of its being used exactly for this purpose. For one thing, it is unreasonable to expect official violators to use their own judicial machinery to punish themselves. For another, there is no longer any great need for such severity; milder solutions have been invented. Today official power is constrained by constitutions which allocate, divide, and limit its exercise. Courts often are given the authority to review and occasionally nullify extensions of official power beyond their jurisdictional boundaries.

Criminal law has been used to perform the remaining functions, however. Since endangering any of these interests (public order, internal and external security, authority relationships, important values, public welfare and safety) does not necessarily elicit a repressive response, it is obvious that the criminal sanction, punishment, at present performs more functions than condemnation and absolute prevention (prohibition). These remaining functions relate mainly to the maintenance of public order and the regulation of activities for the public welfare and safety.

Regulation and prohibition both involve an attempt to prevent future law violations. However, there are important differences between them. To regulate an activity is to permit it to continue, but subject to constraints which seek to direct it into the least harmful or most beneficial channels. Punishment has been found to be useful in accomplishing this, since some people do not respond to any other motivator. To allow an activity to continue, however, suggests that the activity, although harmful in some of its manifestations, is not considered evil in all of them—in other words, it may be mildly displeasing but is basically tolerable under control. Activities that are regulated by criminal law are given the name mala prohibita, that is, things that are wrong because prohibited by law, not intrinsically evil. When punishment is applied in this context, its use is entirely instrumental: if it is ineffective in inducing compliance, people will regard it as having lost its usefulness. Punishment also may be supplemented with other control measures or be withheld or withdrawn completely, if compliance is more effectual in that way.

Prohibition, or absolute prevention, on the other hand, suggests more than mere regulation of behavior; it suggests an attempt to eradicate the behavior through total suppression or by driving it so far underground that it no longer obtrudes on the public consciousness. As Norval Morris has remarked, It is impossible to regulate behavior that you prohibit.²⁴ It goes without saying that

²³Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973). See especially chap. 1 on the English impeachment process, which is more criminal than its American counterpart.

²⁴Norval Morris, Crimes without Victims: The Law Is a Busybody, New York Times Magazine, 1 April 1973, pp. 10-11, 58-62; quotation, p. 11.

such an effort to efface offensive behavior can be generated only by the strongest moral sentiments of reprobation or by the most intense fear of it. When punishments are used for this purpose, their function is not only instrumental but also symbolic. An attempt is made to convey through them the message that not only should all such activities cease in the future, but all thinking about such activities should cease. This is why it is so difficult for utilitarian reformers to remove criminal laws performing such functions from the statute books merely by showing that punishments are ineffective in ensuring compliance or that they do more social harm than good.²⁵

It is often impossible in reading a criminal statute to determine whether it is attempting to regulate activities through the instrumental application of criminal sanctions or whether it is attempting to prohibit and condemn them. One has to look at the administration of the law to make this determination. Where regulation is the purpose, one may expect to find milder penalties, greater leniency shown when the offender exhibits repentance and a willingness to comply, and punishments imposed and withdrawn according to his compliance and the threat he poses of future misbehavior.²⁶ In general, one will see more concern with the general effects of the law on others than with their effects on the offender himself.

There is, of course, nothing uniquely criminal about the function of regulating human conduct to avoid human conflict and to provide for the general safety and welfare. Equity decrees, administrative regulations, and even many judicially ordered treatments of problem behavior (drug addiction, mental illness, juvenile delinquency) perform this function in the civil law, and there is no apparent reason why all regulation could not be carried out within the civil law. Criminal law might be confined to behavior that typically arouses

²⁵ See, for instance, Edwin M. Schur in Schur and H. A. Bedau, Victimless Crimes: Two Sides of a Controversy (Englewood Cliffs, N.J.: Prentice-Hall, 1974).

²⁶See Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 University of Chicago Law Review, 423-449 (1963). Illustrations of this procedure of remitting penalties when the defendant changes his attitude and submits to regulation can be observed in two Selective Service Law cases which arose during the Vietnam War. David P. O’Brien of Cambridge, Massachusetts, burned his draft card in protest over the conduct of that war, was arrested, convicted, and sentenced to a six-year prison term. After an unsuccessful appeal to the United States Supreme Court (United States v. O'Brien, 391 U.S. 367 [1968]), O’Brien had a change of heart and agreed to abide by the draft laws in the future. As a result, a six- year prison sentence was revoked, he was freed, and placed on probation. See Boston Draft Card Burner Freed, Associated Press news release in Daily Californian, 14 November 1968, p. 2. A similar experience was had by Erik Whitehom (Palo Alto, California), whose mother would not allow him to register for the draft and who was convicted of failure to register in U.S. District Court in San Francisco in May 1969. After evidencing a change of attitude (which entailed a repudiation of parental control) and a willingness to abide by Selective Service regulations, Whitehorn had his four-year sentence canceled. See Impressed Judge Frees Whitehom, Oakland Tribune, 26 August 1969, p. E-7, cols. 1 and 2.

the repressive response, and its sanctions and procedures could be designed to maximize the accomplishment of its unique objectives. In any event, I am imposing that limitation on my definition of crime for analytical purposes.

1 Feinberg, Doing and Deserving, ibid.; Sir James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883), 11:81-82.

2 Emile Durkheim, The Division of Labor in Society (New York: Free Press, 1964), p. 72.

3 On functions of law, see Harold J. Berman, Nature and Functions of the Law (Brooklyn: Foundation Press, 1958), pp. 34-40; H. L. A. Hart, The Concept of Law (London: Oxford University Press, 1961); Talcott Parsons, The Law and Social Control, in William M. Evan (ed.), Law and Sociobgy: Exploratory Essays (New York: Free Press, 1962), pp. 56-72; Edwin Schur, Law and Society, pp. 79-82; E. Adamson Hoebel, The Law of Primitive Man (Cambridge, Mass.: Harvard University Press, 1961), pp. 275-287.

4 See Durkheim, Division of Labor, ibid.

5 For evidence contradicting Durkheim’s thesis, see Richard D. Schwartz and James C. Miller, Legal Evolution and Societal Complexity, 70 American Journal of Sociology 159-169 (September 1964).

6 Perhaps as much as 90 percent of all civil litigation is ultimately concluded this way.

7 Erich S. Graen, Roman Politics and the Criminal Courts, 149-78 B.C. (Cambridge, Mass.: Harvard University Press, 1968).

Analytical Definition of Crime

Based on the foregoing analysis, I propose the following definition of crime: Crime is any act or omission or course of behavior deemed to be wrongful and injurious to the society as a whole or to its political leaders which they, acting through their law makers, interpreters, and enforcers, seek to punish or permanently prevent from recurring,1

Now, to review the separate elements of the definition:

1. A crime always involves an act (including a failure to act if there is a legal duty to act under the circumstances), even if that act is as inconsequential as uttering a thought or entering into an agreement or understanding with others. Even in the case of heresy, the heresy must be manifested in some way by behavior which brings the heresy to the attention of the authorities. Crime also may involve a course of behavior leading to a status (such as the social parasite in the Soviet Union) which arouses the repressive response toward persons having such a status.

2. The act must be deemed to be wrongful (in the sense of highly immoral, extremely dangerous, or intolerably annoying or vexing) either by the authorities entrusted with administering the law or by the people of the society. It is not sufficient that it merely be deemed injurious to the public welfare. This element distinguishes crime, as defined here, from regulatory offenses (mala prohibita), which do not contain the moral component implicit in the use of the word wrongful. Regulatory offenses purposely are excluded from the analytical definition of crime presented here.

3. The act must be deemed injurious to the society as a whole. What distinguishes crime from civil wrongs is the public nature of the wrong in the case of crime.2 Acts injurious to the political leaders of the society, especially those which threaten their authority, are likely to be viewed also as injurious to the society as a whole, if not by members of that society, then certainly by the political leaders themselves and their enforcement agencies. The indicator of the public nature of the act is that third parties (in advanced societies, agencies of the State) customarily assume a central role in the disposition of the case. By central role I mean that once the matter gets into their hands, they, and they alone, have the discretion of carrying it through to final disposition and, in the case of the kinds of acts embodied in the definition, usually do so.

4. Finally, the sanction imposed must be for the purpose of punishment (infliction of suffering on the offender for a wrongful and injurious act) or for the purpose of permanently preventing the recurrence of the offense. Insofar as the sanction is employed primarily for the purpose of deterring others from committing the offense (general deterrence) or reforming the offender (rehabilitation), the law is being used for a regulatory, not criminal, purpose.²⁹

The foregoing analytical definition of crime will undoubtedly meet with several objections. First, it may be argued that I have limited my definition essentially to those acts which were crimes at common law two hundred years ago,³⁰ and that such a definition simply ignores a vast number of acts which have been made criminal since then by legislation. Second, it may be argued that an analytical definition of crime which ignores the legal designation of acts as crimes overlooks the very real consequences that flow from such labeling, consequences that will analogize these acts (and the way they are handled pro- cedurally) to other acts legally designated as crimes whether they bear any intrinsic similarity to each other or not. Finally, it may be argued that the definition is not complete, in that no act is a crime unless and until someone with the power to decide adjudges it to be such. Such a realist would insist, at least, that I substitute the word adjudged for the word deemed in my definition.

My answer to the first objection is a frank admission that my analytical definition of crime does not include all acts that have been labeled criminal under the laws of modern Western nations. The definition also includes some acts and proceedings labeled civil.³¹ But my analytical definition is not designed

²⁹ See Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), part 1, chap. 3, which reveals the utilitarian purposes behind general deterrence (assuring general compliance with the law and acting as a socializing device for instilling conforming attitudes in people, pp. 39-45) and behind rehabilitation (so changing the personality of the offender that he will conform to the dictates of the law, p. 53). Both are excellent examples of the regulatory use of legal sanctions.

³⁰ "All serious common-law offenses are classed as mala in se, to which are added all breaches of the public peace or order, injuries to person or property, outrages upon public decency or good morals, and willful and corrupt breaches of official duty." Marshall and Clark, Treatise on the Law of Crimes, p. 117. References to common-law offenses in American law refer to offenses recognized as criminal by English law at the time of the American Revolution.

³‘For instance, sexual psychopath proceedings in most instances and juvenile delinquency proceedings in many instances. Proceedings to deport undesirable aliens, although civil proceedings, are also often used to punish crimes. to explain which acts are, or will be, given one or the other label. It is designed to ignore labels, and to look to the underlying functions of law in order to explain the way law is actually administered by the people who use it.

The approach taken here recognizes the possibility that a people may use an old law and its