oc View: On Crimes and Punishments
(Richard E. Rosenberg, Michigan Criminal Lawyer Blog, June 19, 2013)
In his introduction to the Jane Grigson translation of Cesare Beccaria’s On Crimes and Punishments (Oxford UP, 1964), Mario Cuomo says that in the forty years since he first read Dei delitti e delle pene (1764) “… America’s Criminal justice system and the world it functions in have changed almost beyond description. Crime has become not only dramatically more common but commonly far more violent.” This was written in 1996, so the earlier less criminal and less violent time to which he refers is the mid-fifties. That was my time, my growing up time.
Where I grew up, and with whom I grew up where the criminal class of that day. In the south Bronx, St. Mary’s Park, the Rebels of the Bronx fought the Amboy Dukes in knife fights and with zip guns, and occasionally real guns, the pride of any gang. Mulvey was stabbed between the ribs and crawled half a mile to Lincoln Hospital where he died in the emergency room. The Italian tough who lived across the street in our all Irish neighborhood bullied his way around until his face was slashed and his remarkable, handsome face became a grotesque mask. His spirit was crushed and the joy of life drained out on the gutter with his blood and he never came out except when he had to go to school.
This was the time when Morris High School was among the first integrated schools in the Nation, and it was so before the Supreme Court’s decision in Brown v. Board of Education of Topeka. When I graduated in 1956 a boy was shot on the steps of the school with a shotgun and killed. I used to say – see, look how tough a place that was. 
Cuomo is right, such a thing would be merely an incident now, and not an absolutely shocking major instance of the violence of life in the Bronx. We thought we were tough, hard bitten, that we knew the score, random disaster and defeat was built into the fabric of things and if we rose above our beginnings, it was chance and not merit at work.
We were without illusions in the disenchanted world. Our future was essentially blocked – we could look across the east river to fairy land Manhattan without hope – we would become crooks or cops and we understood that. And that acceptance was what made us as rough as life was rough – we could take anything and dish it out too.
And in fact this was roughly true. About half the kids I grew up with ended up in jail or prison. My brother became a cop. A cousin was a rather infamous cop, named by the Manhattan Madam in her book as a bag man – he denied it, and was acquitted of corruption charges within the police department. I myself became a criminal defense lawyer. We were in fact, and not just in our own minds, a hard lot.
But that time was, as Cuomo says, different from what exists today. Alongside all that violence, all that cynicism, Colin Powell was a student at Morris High School at the same time as I was. Our school was considered the second best school in New York for music, after the High School of Music and Arts. Morris put on a production of Brigadoon that took second place in city wide competition, not second after Music and Art but after Erasmus, the Brooklyn H.S. where Barbara Streisand was a student. I don’t recall what it was they put on that beat us. So though a gritty realism seemed natural 
and rational, the sheer vitality of that City and those people was something of a denial of the truth we thought could not be denied.
And in my neighborhood at least, we knew who ran things. “The same people who run things everywhere, the crooks, the cops and the big rich.” (A statement variously attributed to Dashiell Hammett, Raymond Chandler, and that most prolific of all truth speakers – Anno.) My friends and I were stopped, searched, arrested and beaten up by police, because we were who we were – and we were the bad guys. But I at least did not feel too gloomy about things – things were, after all, just the way it was. That was the order of the world. Perhaps that was a matter of personality, perhaps an innate cheerfulness, perhaps just a matter of being young and insensitive to poverty and blocked possibilities. But still, we knew if we were to run things, or have any say at all in their running, we were limited to two trades, cop or crook.
Yet however much we were in the wrong, we were sensitive, perhaps made more sensitive to advantage being taken of us by authorities who already had everything while we had nothing – except our sense of outraged dignity, outraged humanity. We learned that the supposed guarantees of our rights were not for us, we were not included. The police, the schools, the powerful could and did violate them when it came to us and only us.
That last has not changed among the disenfranchised of America. My pals were dirt poor Irish, who 
lived in a tiny enclave of our own, one of the patches in the patchwork quilt that was New York of the 50’s, and we shared the disenfranchisement of the impoverished with our Italian, Puerto Rican, and Black neighbors living in their own little spaces. Less so disenfranchised, it seemed, were the impoverished Jews, Germans, who lived in contiguous patches of the South Bronx. Blacks, Hispanics, perhaps others are now the principle recipients of the special attentions that deprivation of rights entails.
Cuomo’s observation that crime has increased, is paralleled by other and equal truths – crime has increased because what is criminal has increased, that laws criminalizing behavior that was previously legal have multiplied with breathtaking rapidity. More than 500 Federal crimes have been placed on the books every decade! And the penalties for crimes have multiplied in tandem with their number. So crime has increased. And the stakes have increased as well. The main driver of crime now, and of criminal violence now as before, is prohibition – prohibition of drugs now, of alcohol in the 20’s and early 30’s. Draconian penalties make for huge profits, huge risks, and ruthless struggle for control of that trade. Add a law enforcement regime which is funded by the drugs and profits seized from the crooks, along with the proceeds of forfeiture of the property of persons charged with these crimes, and you have guaranteed corruption on a scale to match the crime sought to be 
controlled, and new crime: official crime. Add draconian sentences, and privatize prisons and you have created a vested interest in the creation of prisons, jails, and more and more layers of corruption. Do not stop there. Add the felony of resisting arrest by even asking why one is being stopped, why one is being arrested. The values we think of as defining civilization and particularly of the United States sink beneath the weight of – what should one call this – law gone mad.
Examples abound.
The now almost universal crime of driving while black, despite having a president who is more or less black, has not changed that one whit. Rather than recite what is obvious, the truth of the complaints made by the black community aren’t just a matter of ancient history, but are reflected in current arrest, conviction and imprisonment statistics.
Some realization of these facts is becoming more general.
Senators Pat Leahy and Rand Paul “… hope to reduce the cruelty, the irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.”
George Will, in an op-ed piece in the Washington Post for June 5, 2013, Leahy and Paul plan on mandatory 
sentencing makes sense, from which that quotation is taken, is quite right about each of these factors: costs, of course; but even more importantly, irrationality and cruelty. More on this in a minute, but Will provides some startling facts. “Such crimes are multiplying at the rate of more than 500 a decade …” “More than 80,000 people are sentenced in federal courts every year. There are an estimated 4,500 criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration.” And ” the federal criminal population [is] currently approximately 219,000, about half serving drug sentences – has expanded 51 percent since 2000, and federal prisons are at 138 percent of the their supposed capacity. African Americans are 13 percent of the nation’s population but 37 percent of the prison population, and one of three African American men spends time incarcerated.”
Oddly enough, or perhaps not so oddly, George Will recommends to his readers, “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day.” Silverglate’s book is mostly devoted to the injustice visited on the poor boys of Wall Street, harassed by all sorts of vague, arbitrarily applied, and in fact inscrutable laws regulating business or potentially doing so, and are a dangerous infringement of our freedom. And this is true of course. Yet, consider that the Feds thought it worthwhile to imprison Martha Stewart but not a single one of the tycoons who destroyed the world economy. While the average white businessman could be imprisoned for three felonies everyday as a result of all these laws, they are not so imprisoned. But the black citizens of the inner
cities are actually and not merely potentially the victims of our legal regime.
Crime has increased, violence has increased, and as Cuomo also says our security has decreased – but these are artifacts of changes in a very large measure brought about by the law itself.
I have defended the accused for 30 years in the face of an ever greater assault on civil and human rights, on the freedoms Americans thought they were entitled to and the justice they would receive if charged with an offense. Contemplating the helplessness of most people in the face of the power of the government, all the way back to my days in the Bronx, the effect on me has been most exactly captured by William Blake: “Every outcry of the hunted hare, a fiber from the brain does tear.” That is how I feel about the criminal justice system today.
Richard E. Rosenberg is a criminal defense attorney from Ferndale, and creator of the Michigan Criminal Lawyer Blog. His office is located at 26393 Dequindre
Madison Heights, Michigan 48071, and his website is http://www.themichigandefenseattorney.com.
