Who is a Criminal Anyway?

One of the most interesting things about modern criminology is that, ultimately, it tracks the rise of the modern state. Believe it or not, in primitive times, there were fewer crimes. Seriously. When you look at the ancient law books and you look at their penal codes, the lists of crimes are actually very, very short. You may be asking yourself has the human condition changed so fundamentally that we’re now committing different crimes or we’re committing fewer crimes?

You know the answer to that. The answer is no. What changed really is the relationship of the state to the individual. It’s easy to understand why in olden times, and I’m talking about as recently as 400 years ago, that there was very little crime in the law books.

First, it’s a demographic reality. People just simply did not live that long. If you lived past the age of 22, you were considered lucky. The childhood mortality as recently as the 1800s was quite high.

It’s not uncommon for American families, for example, to have twelve children only to have three of them live to adulthood and of those adult children, only one would actually go on to have kids.

That was all too common, and it used to be worse as you get closer and closer to the Dark Ages. That’s how bad things used to be.

So, in terms of criminality, good luck throwing people in jail or punishing them because they didn’t live that long.

The second reason why there was less imprisonment or less criminality was the fact that the role of the state focused on the basics. It looked at basic things like stealing or killing. That’s pretty much it, and there was really not that much to regulate informal terms because most people worked on the farm. They were peasants, and the range of activities that would constitute criminal activities was actually pretty narrow and well defined.

The third factor involves the availability of police power. As recently as 400 years ago, police power was in the hands of local lord or, in the case towns, the local authorities. Interestingly enough, they are the judge, the jury and the execution. Meaning there doesn’t have to be a law published somewhere for them to accuse you of a crime, say that it’s intrinsically wrong, and just punish you on the spot. The punishment is also quite brutal because remember there is no fixed central government.

As recently as 400 years ago, politics was extremely decentralized and fragmented. The whole concept of a king was actually quite a novel concept of an all-powerful absolute king with absolute power was quite a novel concept for a lot of countries or polities in Europe and elsewhere.

A lot of the power was in the local authorities, and it was really a judgment call. They would say to you that you did something wrong, and it was serious enough so, they are going to have you flogged. After your whipping, you can go home.

However, if you’re out of luck, and they think that you did something that is really out of the ordinary, you get your throat slit or killed after a judge pronounced his sentence. That’s if you’re lucky enough to get sentenced by a judge. In many, cases the local authorities were the judges themselves, and there was no appeal.

You have to look at the role of punishment from this perspective because as the state became all powerful, and started to regulate all modes of human behavior, then criminality starts to increase. In other words, the more loss, the more criminals. This is just a logical manifestation of playing out of the process.

Keep this in mind because as society becomes more and more complex, there are more and more regulations and, by extension, more and more laws to break, and as our health sciences continue to evolve, and people start living longer, there are more and more people to throw in jail.

I raise this issue not because I am throwing a suspicious light at the power of the bureaucratic state. Instead, I am drawing your attention to the disconnect between the increase in criminality, at least as it exists in the books, and our means for punishing such criminality. This disconnect or this bad fit continues to grow and grow, and that’s why we have reached the ridiculous situation we have now.

The United States, which is supposed to be the land of the free and the home of the brave, is also the biggest warehouse of human beings. It doesn’t fit. That’s where we are right now and something has to give.