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Published online by Cambridge University Press: 28 October 2011
It hardly needs to be said that public opinion is much agitated by the problem of crime. Polls show that people rank crime as one of the most serious issues facing society. A constantly growing amount of effort and research has gone into the question of what to do about crime. It is only natural that the interest in crime should spill over into many disciplines, including history, though, until recently, very few studies focussed on this chapter of social history and only a handful of these were quantitative. The number of such studies is now starting to grow.
1. ‘Crime was the biggest concern for Americans. Lawlessness in general, drug abuse, and criminal acts by public officials were all in the top five issues.’ New York Times, June 4, 1976, 12 (reporting an Associated Press poll)Google Scholar. See also Conklin, John E., The Impact of Crime (New York, 1975) 76–77Google Scholar.
A survey in 1975 asked a sample of the population whether the government was spending too much, enough, or too little on ‘halting the rising crime rate’. Of those who responded 974 said ‘too little’, 345 ‘about right’, and only 81 ‘too much’. National Data Program for the Social Sciences Spring 1975 General Social Survey (Ann Arbor, 1975) 98Google Scholar.
2. See for example, Monkkonen, Eric H., The Dangerous Class, Crime and Poverty in Columbus, Ohio, 1860–1885 (Cambridge, Mass., 1975)CrossRefGoogle Scholar; Hindus, Michael S., Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, 1980)Google Scholar; Greenberg, Douglas, Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca, 1976)Google Scholar; Ayers, Edward L., Vengeance and Justice: Crime and Punishment in the 19th Century American South (New York, 1984)Google Scholar. Gurr, Ted Robert, Rogues, Rebels and Reformers, A Political History of Urban Crime and Conflict (Beverly Hills, 1976)Google Scholar looks at cross-national data. See also Wilson, James Q. and Herrnstein, Richard J., Crime and Human Nature (New York, 1985) 439–58Google Scholar.
3. California Penal Code §17 defines felonies as crimes punishable by death or by imprisonment in the state prison. ‘Every other crime’, the section goes on to say, ‘is a misdemeanor’.
4. For additional legal background on the county, see Friedman, Lawrence M. and Percival, Robert V., ‘A Tale of Two Courts: Litigation in Alameda and San Benito Counties’, 10 Law & Society Review 267 (1976)CrossRefGoogle Scholar (reporting on a study of civil litigation). The criminal justice system of the county from 1870 to 1910 is treated in greater detail in Friedman, Lawrence M. and Percival, Robert V., The Roots of Justice: Crime and Punishment in Alameda County, California, 1870–1910 (Chapel Hill, 1981)Google Scholar [hereinafter cited as Roots of Justice].
5. Some of these are cases of petty crimes or violations of ordinances, for example Maria Rogers, Crim. No. 53 (1880), convicted of allowing two cows to ‘run at large upon a public street’ of the town of Alameda, contrary to ordinance. Others seem to be cases pursued out of spite. Another example, Mary McGladry, Crim. No. 257, 1881, brought to justice in Glen Township Justice Court, was charged with beating her stepson ‘about the head and face with a butcher knife’. A jury found her guilty, and sentenced her either to pay $30, or work off her fine at $1 a day in the County Jail. From this case, Mrs. McGladry appealed—and lost again.
6. Eisenstein, James and Jacob, Herbert, Felony Justice (Boston, 1977) 190Google Scholar.
7. Registers and files are public records open (in theory) to anyone who wishes to look at them. But they record all sorts of vice and misery, and in practice only lawyers and a few stray scholars ever look at them. To avoid embarrassment to people who might still be alive, or to their families, we do not use full names for defendants in files opened after 1910.
8. There was, it seemed, some question whether the Grand Jury was a worthwhile institution. A Grand Jury report filed March 24, 1897 complained that it was ‘common practice to speak slightingly of Grand Juries and their usefulness and their work… [I]n our opinion the money invested in Grand Juries by our county is well spent. The fact that a Grand Jury is in existence is to a certain extent a restraint upon crime, and it is public notice to all citizens who have grievances that they can come before such juries with their complaints at any time and that they will be investigated.’
9. ‘In some cases, such as trials for capital offenses, and important civil cases, the judges will sit together, and will sometimes, when deemed proper, exchange departments with each other.’ Statement of Superior Court Judge A. M. Crane, Oakland Tribune, January 5, 1880, 3.
10. Annual Report of the California Judicial Council 38 (1927).
11. Two departments handled civil non-jury trials, six took care of jury trials. One department spent about one-half of its time on domestic relations and the other one-half in hearing short civil trials without juries. The presiding judge, chosen annually from among themselves by the fourteen judges, was the last ‘department’. He assigned trial cases among departments, also conducted hearings on ‘demurrers, motions and other preliminary matters’, and tried civil non-jury cases ‘as his time permits’. Alameda County Government (1955), 39.
12. On this point, see Friedman, Lawrence M., ‘Notes Toward a History of American Justice’, 24 Buffalo Law Review 111 (1974)Google Scholar; on police behavior, there is a notable literature, including, for example, Haller, Mark H., ‘Historical Roots of Police Behavior: Chicago, 1890–1929’, 10 Law and Society Review 303 (1976)CrossRefGoogle Scholar; Miller, Wilbur R., Cops and Bobbies: Police Authority in New York and London, 1830–1870 (Chicago, 1977)Google Scholar; Walker, Samuel, Popular Justice: A History of American Criminal Justice (New York, 1980)Google Scholar; Robert M. Fogelson, Big-City Police (Cambridge, Mass., 1977).
13. Fuller, Hugh N., Criminal Justice in Virginia (New York, 1931) 72–73Google Scholar.
14. Roots of Justice, supra note 4 at 26–35.
15. See Lane, Roger, ‘Urbanization and Criminal Violence in the 20th Century: Massachusetts as a Test Case’, in Graham, H. D. and Gurr, Ted R., Violence in America: Historical and Comparative Perspectives (Washington, D.C., 1969)Google Scholar; Gurr, Ted Robert, Rogues, Rebels and Reformers, A Political History of Urban Crime and Conflict (Beverly Hills, 1976)Google Scholar; Lane, Roger, Violent Death in the City: Suicide, Accident and Murder in 19th Century Philadelphia (Cambridge, Mass., 1979)Google Scholar; Wilson, James Q. and Herrnstein, Richard J., Crime and Human Nature (New York, 1985)Google Scholar.
16. California Penal Code 1909, §156.
17. California Penal Code 1909, §608c.
18. E.g., Frank B., Crim. No. 9,632, information filed January 21, 1926 (seventeen-year-old girl).
19. California Penal Code 1170; on the abolition, see Feeley, Malcolm F., Court Reform on Trial: Why Simple Solutions Fail (New York, 1983) 142–47Google Scholar.
20. It is instructive to compare data for Cuyahoga County (Ohio) Common Pleas Court, for three sample years. (The jurisdiction of this court was roughly equivalent to the Superior Court of Alameda County.) Overall, the figures show great similarity to those of Alameda County, as presented in Table 3. In Cuyahoga County in 1902, for example, property crimes comprised sixty-nine percent of cases while crimes against persons constituted twenty-one percent. In 1935, property crimes were sixty-five percent of the criminal docket, crimes against persons nineteen percent and public order offenses nine percent. In 1970, property crimes were forty-nine percent of the docket, crimes against persons twenty percent, public order offenses nineteen percent and drugs nine percent.
21. Klockars, Carl B., The Professional Fence (New York, 1974)Google Scholar; Walsh, Marilyn E., The Fence, a New Look at the World of Property Theft (Westport, 1977)Google Scholar.
22. Crim. No. 155 (1880). The defendant received an eight year sentence. Of course, not all sex crimes are victimless—certainly not Crim. No. 4057 (1906) (‘lewd and lascivious act’) where defendant was accused of molesting a ten year old girl. Bigamy and non-support are also morals crimes with well-defined victims.
23. As early as 1899, however, the legislature enacted a statute forbidding any unathorized person from bringing any ‘opium, morphine, cocaine, or other narcotics’, or liquor or firearms, onto the grounds of state prisons or reformatories. California Penal Code 1909, §180a. On the history of drug laws, see Musto, David F., The American Disease: Origins of Narcotic Control (New Haven, 1973)Google Scholar; Duster, Troy, The Legislation of Morality: Law, Drugs and Moral Judgment (New York, 1970)Google Scholar.
24. California Laws 1907, ch. 102, §8. ‘Preparations of opium containing less than two grams of opium to the fluid ounce’ were excepted.
25. California Laws 1929, ch. 216.
26. California Comprehensive Data Systems, Criminal Justice Profile for Alameda County, Department of Justice, Division of Law Enforcement, Bureau of Criminal Statistics, Sacramento, California, 1975.
27. See Health & Safety Code §11,000; California Penal Code §1000–1000.5 (both adopted in 1972).
28. See Kaplan, John, Marijuana, The New Prohibition (New York, 1970)Google Scholar.
29. A few first names are ambiguous, and the first names of Chinese defendants, as romanized, do not provide reliable information on sex. But in the early years the Chinese population was overwhelmingly male—92.4% in 1900—and one can safely assume that nearly 100% of Chinese defendants were male. See Beach, Walter G., Oriental Crime in California (New York, 1932) 11Google Scholar. In any event, any errors here would alter the results only in minor ways.
30. On women in prison, see Freedman, Estelle B., Their Sisters' Keepers, Women's Prison Reform in America, 1830–1930 (Ann Arbor, 1981)CrossRefGoogle Scholar.
31. County of Alameda Charter, sec. 27 (1927).
32. The first public defender's office was set up in Los Angeles County in 1914, by county charter; and the city of Los Angeles followed in 1915. The legislature expressly authorized counties to establish public defender offices in 1921, Cal. Government Code, Sec. 27700; San Francisco immediately took advantage of the law. There was, apparently, widespread dissatisfaction with the assigned counsel system. ‘The Public Defender’, 3 California Law Review 314 (1915)Google Scholar; see also Goldman, Mayer C., The Public Defender (New York, 1974) 15–23Google Scholar.
33. Skolnick, Jerome H., Justice Without Trial, Law Enforcement in Democratic Society (New York, 1966) 260–62Google Scholar. This is a study of the police in Oakland (disguised as Westville), and the figures are for the public defender's office in Alameda County (disguised as La Loma County).
34. See Table 4.
35. California Penal Code §987 (enacted in 1872): ‘If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.’
36. Transcript, Proceedings in Justice Court, City of Alameda, in Crim. No. 8711 (1924) (emphasis added). See also Judah B., No. 6360 (1916): the defendant said to the judge at preliminary examination, ‘I believe you have the power to assist me in obtaining an attorney who will appear for me’. The judge said, ‘I can continue the matter… and try and see if I can get some attorney … I can't compel an attorney to appear for you, it is simply by solicitation.’
37. People v. Crowlay, 13 Cal.App. 322, 109 Pac. 493 (1910); People v. Campos, 10 C.A.2d 310, 52 P.2d 156 (1954).
38. Skolnick, Jerome, Justice Without Trial (New York, 1966) 262Google Scholar.
39. See Henderson, Lynne N., ‘The Wrongs of Victims Rights’, 37 Stanford Law Review 937, 1003 (1985)CrossRefGoogle Scholar; Jonathan D. Casper, American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, 1972) 100–17.
40. Hermann, Milton, ‘A Note on Plea Bargaining and Case Pressure’, 9 Law & Society Review 515 (1975)CrossRefGoogle Scholar.
41. Roots of Justice, supra note 4 at 175–78; Friedman, Lawrence M., ‘Plea Bargaining in Historical Perspective’, 13 Law & Society Review 247 (1979)CrossRefGoogle Scholar.
42. See Oakland Tribune, November 5, 1883, 2, ‘A Chinese Conspiracy’. According to the story, a ‘Chinese cucumber picker… was murdered on Jones' ranch’. A man was arrested, on the testimony of Chin Ah Cheung. But the defendant convinced the court that Chin was lying, trying to frame the defendant and inherit his young wife. The magistrate let the defendant go, and Chin was arrested, ‘on a charge of perjury, but the District Attorney, not being certain that he had sufficient evidence to convict, ordered his discharge’.
43. Biennial Rpt., Att'y Gen'l Cal. (1946), pp. 58–59. Carter, Lief H., The Limits of Order (Lexington, Mass., 1974) 161Google Scholar, reports that only ninety-seven—about ten percent of 965 felonies prosecuted in the county in 1960, went to trial before a jury. The defense won twenty-eight of these. There were thirty bench trials, and the defense won one-half.
44. Kalven, Harry and Zeisel, Hans, The American Jury (Boston, 1966)Google Scholar.
45. California Penal Code sec. 1203, enacted in 1872, gave the judge the right to take into account, at a summary hearing, and on the suggestion of either side, ‘circumstances… either in aggravation or mitigation of … punishment’. The law was amended in 1903, to give the judge power to grant probation to defendants over sixteen, ‘if it shall appear by the record furnished by the probation officer’ that there were ‘circumstances in mitigation of the punishment’.
The section was further amended in 1911. The 1911 changes made more explicit the process of referring the case to a probation officer, who would investigate and report, ‘recommending either for or against release upon probation’.
46. See, for example, Crim. No. 8711 (1924).
47. California Penal Code, §1170, effective July 1, 1977, abolished the indeterminate sentence.
48. These figures are quoted in Gault, Robert H., ‘The Indeterminate Sentence Law a Success’, 12 Journal of the American Institute of Criminal Law and Criminology 5 (1921)Google Scholar.
49. Moley, Raymond, Our Criminal Courts (New York, 1930) 162–63Google Scholar.