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01/01/94

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LAW PROFESSOR TACKLES MYTHS ABOUT CRIME IN AMERICA

STANFORD -- American society shows its changing values by tinkering with the criminal justice system, says Lawrence Friedman, a Stanford University law professor, in a book-length history of crime and punishment in this country. Reforms that will substantially lower the crime rate are unlikely, however, because of cultural taboos.

"If you add up all the taboos we have - against legalization of drugs, real gun control, paying taxes for social programs we might at least try - it's hard not to come to the conclusion that there isn't much we can do about crime," Friedman said.

Many of the taboos, he added, are rooted in our demand for individual freedom, a demand that has grown substantially over time.

"This is an extremely mobile, technologically advanced individualist country with weak structures of authority and very weak traditions," Friedman said. "On the whole, that is very positive and the way we want things, but I believe the price we pay is an outburst of crime."

He gives an example for comparison.

"At one time in South Korea, they had an absolute curfew between midnight and 5 a.m.," he said. "The police kept everyone off the streets. It was as hard on burglars as other citizens and very effective at squelching crime. But most Americans would consider that an unacceptable inroad on their personal lives."

In Crime and Punishment in American History, published recently by Basic Books, Friedman shows that a wide range of human activities have been "criminalized, de-criminalized and re- criminalized" over time, but there's little evidence that reforms lower crime rates, he said.

The crime rate went down in the late 19th century, "but nobody knows why," Friedman said. "It certainly wasn't anything the criminal justice system was doing different than it had done before."

The rate of serious crime is at an all-time high today, and is higher than in comparably industrialized countries, he writes. So, too, is imprisonment for crime.

"We've had a rash of prison buildings, harsher sentences, guidelines for mandatory punishment for this and that. I don't think we have much to show for it, do you?" the legal historian asked an interviewer on a recent day when the morning newspapers were littered with proposals for fighting crime at the local, state and federal levels.

So what accounts for the crime rate? Are there any answers in history?

"Paradoxically," Friedman said, "one of the greatest values of history is in showing its own irrelevance at some point. It can at least clear away some of the myths."

Using colorful anecdotes from old newspapers and court and police records, Friedman's book tackles myths about Puritanism, Prohibition and the Wild West, among others. He shows, for example, that Americans haven't always been puritanical about sex; they have "zigged and zagged" on punishment of "victimless" crimes such as adult fornication or teenage sex.

Despite Prohibition's reputation for failure, it probably did work to curb drinking and drunkenness, Friedman writes, and it may not have been responsible for the rise of organized crime.

Examining the frontier record, Friedman concludes that the Wild West is not responsible for high crime today, as some popular myths hold. The West was lawless in some times and places, he found, but not uniformly, and some of the "lawless" were not cowboys but "civilized" San Francisco gentlemen who, disturbed by the leniency of working class juries, took up vigilantism.

Even if the West was as lawless as people like to believe, Friedman argues, "most of us never lived on the frontier, we aren't descendants of people who lived on the frontier. Do we really think that there's a lot of shooting going on in the inner city of Boston because there were cowboys?"

What about ethnic pluralism or the legacy of racial slavery as causes? Friedman's book shows how the South used criminal justice to keep the economic system of slavery in place and details police corruption and brutality in the North.

"It's very hard to say how much of a factor that is," he said. "It's a sensitive subject because racial minorities are arrested and imprisoned out of all proportion to their share of the population.

"But I'd like to remind people that if you factored out all black arrests and the black imprisonment rate - let's just say we are going to ignore these and look at the statistics for the white population - arrests and imprisonment are still vastly higher than in England or Japan. So whatever the racial issues involved, it's clear that there's a more general social problem."

What does Friedman think about putting more policeman on the streets, as the president proposes, or using the National Guard as police in cities, as the mayor of Washington, D.C., proposed?

"A store is not going to be robbed when there is a policeman standing in front of it night after night," he said. "It would be foolish to deny that would have an effect, but how many police can you have? Forty million?"

Would gun control help?

"I think guns are a symptom, not the disease, but an important symptom," he said. "Basically nobody is killed in England by guns during the course of a year. We have a propensity to violence, and the instruments of violence are widely distributed. That's a terrible combination."

"Real" gun control, however, is not likely to occur, he said, because it is one of our cultural taboos related to our demand for individual rights.

America in the colonial period was not interested in individual rights, and really made no distinction between sin and crime, Friedman writes. Small communities used punishment to bring sinners back into the fold. Fornication, idleness and non- attendance at church were the most frequently punished crimes in 17th-century Massachusetts.

The unprecedented social and physical mobility of the 19th century gradually transformed the new republic into a loose society of strangers, he writes. Swindles and frauds became easier; wanted criminals could flee punishment.

"People who had uprooted themselves, shaken off clumps of their past along with chunks of their context" were free to both "climb up and fall down" the social ladder as well, he writes.

"The image of a young man who moves on to seek his fortune is a positive one in our history. The image of the hobo is a negative one, and the line between them is sometimes rather indistinct," he said.

Eventually, "tight, face-to-face, vertical relations of authority in small communities" were replaced by "the horizontal authority of peer groups and the big world of the cities."

Since World War II, television has weakened the local community further, he said.

"Now a person doesn't have to leave the house to look at images and ideas from all sorts of places and compare themselves with others," Friedman said.

Other countries also experience television, but American culture may be the first "celebrity culture," Friedman said. "At least," he said, "it seems less in character for Japan or Finland to put Elvis Presley on a postage stamp."

"A celebrity is not a hero," Friedman said. "A celebrity is someone who's famous for being a heightened form of the average person. It's interesting to note that the career of a rock star or sports star is very similar to the career of a criminal - they make money very fast; it's a young person's game. I think we have a culture in which we worship that particular kind of success."

While the vast majority of people don't turn to crime to become celebrities, he said, a culture that has such celebrity values will likely produce more who will try that route than one that admires gray-haired Nobel Prize winners and CEOs of corporations.

"Amy Fisher became a celebrity by shooting somebody," he said. "Her story became immensely valuable. I don't think that's irrelevant to our crime problem."

-kpo/crime-

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