“Enforce it or repeal it.”
How familiarily the sentiment rings in our ears! And how unerringly we jump to the conclusion that it is the liquor law to which it refers!
A stranger to the United States, unfamiliar with the present situation and its background, would infer from all the clamor that among all our multitude of laws the prohibition law stood out unique for the failure or inadequacy of its enforcement. The truth is, on the contrary, that the uniqueness of the prohibition law lies in the fact that it is about the only important law that any one expects to be enforced. At first glimpse this statement may seem fantastic —but let us see.
Law is one of the most ancient, as it is the most concrete and explicit, of social expedients. One of the earliest consequences of an emerging group consciousness was the selection of certain acts of the individual to be placed under that definite proscription of the community which is law. It was natural that the first of the acts so designated should be those involving the greatest social injury, and at the same time most likely to be committed; specifically, attacks upon life and upon property. From time immemorial, therefore, all societies have had some form of laws against murder and against theft, and a considerable part of the energies of all states has been devoted to the enforcement of these laws. One might be justified in expecting, accordingly, that after uncounted centuries of effort in this direction the most modern and “civilized” states should have virtually mastered this problem, and that certainly in the United States the laws against murder and theft would be almost perfectly enforced. What are the facts?
That we have not succeeded in eliminating murder in the United States is a matter of all too common knowledge. It is perhaps not so generally known that our efforts in this direction are becoming steadily less successful. In 1882 the homicide rate was about 3 per 100,000 of the general population. In 1900, according to the careful compilations of Dr. Frederick L. Hoffman, the rate in twenty-eight American cities, stood at 5.1 per 100,000. Since then it has increased steadily until in 1924 it reached 10.3 per 100,000, having more than doubled in a quarter of a century.
Some consolation for this situation, possibly, might be found if we were improving our technique for dealing with those guilty of these crimes. Unfortunately just the reverse is true. According to the figures of the Chicago Tribune, in 1882 the number of executions amounted to 8.25 per cent of the murders committed, in 1890 it was 2.37 per cent, and in 1899, 2.1 per cent. What the rate is at present, it is difficult to say, the Chicago Tribune apparently having discontinued its statistics, and official figures being notoriously lacking.
The Homicide Bureau of the District Attorney’s office of New York in 1920 investigated six hundred and seventy-nine killings which were reported as possible homicides. The bureau presented evidence to Grand Juries in one hundred and thirty cases, and obtained seventy-eight indictments. The net result in convictions for first degree murder was just one.
Strange that we hear no one crying out for the repeal of the law against murder!
Our record in the matter of theft is similar, though not capable of quite such concise statement.
In both these respects the showing of the United States is humiliating when compared with that of foreign countries. Mr. Raymond b. Fosdick in his “Crime in America and the Police,” has given us some illuminating contrasts. “London in 1916, with a population of seven millions and a quarter, had nine premeditated murders. Chicago, one-third the size of London, in the same period had 105, nearly twelve times London’s total. In the year 1916, indeed — and it was not an exceptional year — Chicago with its 2,500,000 people had twenty more murders than the whole of England and Wales put together with their 38,000,000 people. New York City in 1916 had exactly six times the number of homicides (murder and manslaughter) that London had for the same year, and only ten less homicides than all of England and Wales. In 1917 New York had six times more homicides than London and exceeded the total homicides of England and Wales by 56. In 1918 New York again had six times more homicides than London, and exceeded the total homicides of England and Wales by 67. This contrast cannot be attributed to the peculiar conditions in London induced by the war.”
There is much more to the same effect, showing that these conditions are not peculiar to two or three cities, but are characteristic of American cities, and that the showing for theft is at least as bad as that for murder. The figures for robbery are startling. In 1915 New York City reported 838 robberies and assaults with intent to rob where London had 20, in 1916 New York had 886 and London 19, in 1917 New York had 864 and London 38, and in 1918 New York had 849 and London 63.
Do these facts indicate an enforcement of the laws against murder and theft? If not, why is it that we see no organized movement to repeal the whole basic criminal law of the country?
The simple fact is that we do not expect the ordinary laws, the laws of long standing, to be enforced. Some laws are better enforced than those against murder and theft, such as the traffic regulations of our great cities, or the compulsory education laws. Others are presumably less well enforced, as, perhaps, the speed laws governing travel on the open highways or the laws against personal smuggling of goods. But no law is perfectly, and very few laws any where near perfectly, enforced. The steady stream of convicts passing in and out of our jails and penitentiaries, the long succession of those found guilty who pay their fines, are living witness to this truth. And they represent onlv a fraction of the failures of law enforcement, for a large proportion of those who commit crimes—Garofalo says at least half—are never caught, and a large proportion of those who are caught are never convicted.
It must be recognized that convictions for crimes, even though they reach one hundred per cent, do not represent law enforcement. Law exists for the purpose of coercing persons to perform certain acts and of restraining them from committing other acts. The effectiveness of the enforcement of a given law is to be judged by the extent to which those who are impelled to neglect a required act, or to perform a forbidden act, are constrained to behave contrary to their impulses. The attachment of penalties to laws implies in advance that infractions are expected to take place. The punishment of violators exists for essentially the same purpose as the law itself, that is, for its preventive or deterrent effect, to keep the forbidden act from being performed. There is no social utility in the punishment of wrong-doers merely for the sake of suffering. Unless a law with its penalties reduces in some measure the frequency of the proscribed behavior, even though convictions and punishments reach one hundred per cent, it were better that the law did not exist. If it does reduce proscribed behavior, with or without convictions and punishments, it is to that extent justified, and may be considered to be, to that extent, enforced.
It is clear, then, that the enforcement of a given law is to be measured not by the absolute number of violations or convictions, nor by the relation of convictions to violations, but by the relation between the frequency with which the act would be committed without the law and the frequency with which it is actually committed under the law. Putting it in personal terms, it is a question of how many people who would indulge in certain behavior in the absence of the law are restrained from such behavior (and how often) because of the law.
Judged in this way, it is safe to say—all the safer because there is no possibility of proof one way or the other—that the prohibition statutes are at least as well enforced as the average of our laws, and much better enforced than the basic laws against murder and theft. The ratio between the number of cases in which liquor is now bought and sold, and the number of cases in which it would be bought and sold without the prohibition laws, is much smaller than the ratio between the actual number of murders and thefts, and the number that would be committed if there were no laws covering those acts.
These statements may seem sufficiently startling. Their justification is to be found in some further consideration of the origin, nature, and functions of criminal law.
The chief objective of organized society, the primary reason for its existence, is the control of individual behavior. In a world of struggle the interests of individuals are always running counter to each other. In numberless ways, the pursuit of unchecked, unmodified impulses by one individual inevitably results in injury, pain, or deprivation to one or more other individuals. Unless individuals can be induced to subordinate their conflicting personal interests to the greater common interests of social cooperation, organized society can not function efficiently, can not, in fact, exist.
In the effort to secure voluntary conformity to social norms society marshals all its resources, enlists all its institutions and sanctions. The family, the church, the school, the press, and the state, however much they may differ in other objectives, are all united in the effort to induce people, consciously or unconsciously, deliberately or automatically, to forego or modify the pursuit of immediate personal impulses and desires in the ways, and to the extent, required for the smooth functioning of the social mechanism of whatever community they belong to.
Every native instinct or impulse that can be directed toward the promotion of conformable behavior is utilized. But among them all, one stands out far exceeding all the others in its practical effectiveness. This is the desire for approbation, frequently in sociological parlance, for want of a better term, called “vanity.” The desire for approbation is universal among all normal human beings, and manifests itself in two aspects, the desire for self-approbation, and the desire for the approbation of the group. The two are often inextricably intertwined, particularly as the second is usually indispensable to the first. The first requirement for a good opinion of one’s self is the conviction that one enjoys the good opinion of others. From the point of view of social control, therefore, it suffices to confine attention to the desire for the approbation of the group. This approbation of the group inheres in what is usually referred to as public opinion and public sentiment.
From the earliest dawn of self-consciousness upward, our conduct is governed, to an extent unbelievable until one evaluates it searchingly, by the desire for the good opinion of others. This is the force that determines what kind of clothes we shall wear, what games we shall play, how we shall decorate and adorn ourselves, how our meals shall be ordered, what topics we shall discuss and in what language, to say nothing of the more vital matters included in the moral code itself. The range of this force includes everything between the most rationally, controlled volition and the primeval “instinct of the herd.” The most remarkable thing about it is that for most people, most of the time, it is sufficient. The great majority of social units, the great bulk of the time, are held to the necessary degree of social conformity by the force of vanity alone.
In an ideal state of society, all social units all of the time would be controlled by vanity, supported and augmented by such other forces as produce willing conformity, like altruistic love. This is much the most economical form of social control. It requires no cumbersome and obtrusive machinery. It is also much the most pleasant, especially because it is so largely unconscious. But unfortunately it is never completely adequate.
In every society, there are always some people, a small minority, who can never, even in the most ordinary exigencies of life, be effectively controlled through vanity and its allied forces. And there is a large majority, approximating totality, who in the more or less aggravating crises of life require something more potent than vanity to hold them to strict conformity. Since these are just the persons and the situations from which the most grievous social injuries are likely to arise, it is imperative that society have at its command some other resources to supplement the mild ones just discussed.
Two such residuary resources are conspicuous in society’s arsenal—fear and force. These are normally employed, in the order named, when vanity fails. For certain types of persons, and for certain kinds of temptations, when vanity is impotent fear avails. When fear will not deter, society is compelled to fall back upon its last expedient and compel at least a factual acquiescence by a resort to force.
It is for the employment of fear and force primarily that there has been created that organized aspect of the community that we call the state, the expressed will of which is the law. It is the basic function of the state to apply to the more recalcitrant members of society those agencies of control to which alone they will respond. It is to the state alone—with minor exceptions as in the case of parents and teachers—that the right to use force is exclusively reserved. Consequently, the state can make the most effective use of fear, because it can back up its threats. The development in recent years of many distinctly constructive or regulative functions of the state should not be allowed to obscure its basic character.
The law, then, and par excellence the criminal law, is an explicit description of certain prescribed modes of behavior, conformity to which will be secured when necessary, by force if that is possible; if it is not possible to secure complete conformity, then violations will be punished by the forcible infliction of pain or deprivation. As already observed, the provision of penalties indicates that it is not expected in the case of any law that full conformity can be secured even by the most rigorous application of fear and force.
We are accustomed to think of the law, therefore, as a great restraining influence, hedging us about on every side with barriers and restrictions. But the extraordinary truth is that for most of us, most of the time, the law is not a restraining agency at all. It simply does not touch us. The great bulk of the things that the criminal law tells us we must not do, most of us would not do if there were no law whatsoever. Of the readers of this page, there are very few who have ever been restrained from committing anything even approaching a basic crime because there was a law against it. Only a small proportion of the members of an ordinary society ever experience an effective impulse to commit murder, robbery, arson, rape, mayhem, assault and battery, forgery. The great majority of those who do have such impulses would be adequately restrained by vanity if there were no law. And the tragic lesson of centuries of penology is that the small remainder, who are not restrained by their own good impulses nor by vanity, are also not restrained by fear or force, so that the enforcement of law, in so far as it is effected at all, takes the form mainly of mere punishment. Punishment, of course, of certain sorts will effectually restrain the individual concerned for the period of its duration.
The meaning of all this is that most of us, while we conform to the law, are not habituated to obeying the law, using “obey” in the sense of doing for the sake of the law that which we would not do without it. Some of the more recent forms of laws referred to above—game laws, traffic regulations, sanitary ordinances—have fortunately, given us a little education along this line. But they do not touch us very deeply, and have not as yet inclined our hearts to do unhesitatingly and cheerfully that which is inconvenient, distasteful, costly, or even painful just because the law requires it.
Perhaps the closest parallel to the prohibition laws that our legal system afford is that furnished by the customs regulations. Here we are dealing with a type of conduct that has no inherent moral implications at all—the bringing home freely of articles legally acquired in foreign countries. On the contrary, this conduct is of a sort that attracts the very “best” elements in society, the wealthy, the cultured, the moral, the intelligent, the self-respecting. Furthermore, it is conduct which, in the opinion of many of the best informed members of the community—including almost all professional economists—is thoroughly in harmony with social utility as well as personal profit. But it happens to be conduct which the majority of the voters has condemned as prejudicial to the best interests of society, and which is accordingly prohibited by law.
Here, then, is an almost ideal test case. Here is a law that seriously and irritatingly infringes upon personal liberty with reference to conduct that is intrinsically quite blameless. It requires tens of thousands of eminently respectable persons to refrain from doing something, which they are strongly impelled to do, for no other reason on earth than that there is a law against it. What happens? We all know what happens. They do it anyway. That is to say, a very high percentage do it to just the degree that they think they can do it and get away with it. A customs broker of long experience in New York once remarked that there was not a woman living who would not beat the customs if she could. This was doubtless an exaggeration. But who can doubt that the customs laws are so extensively and consistently evaded that if non-enforcement were a valid ground for repeal they ought all to be stricken from the books forthwith? If there is any set of laws so badly enforced as to “create disrespect for law” it is these.
The very day after the foregoing words were written, the newspapers announced the existence of a ring of gem smugglers who, according to the estimates, run in diamonds from Antwerp alone to the value of $45,000,000 annually. At about the same time another newspaper paragraph proclaimed that the smuggling of aliens into this country now exceeds in magnitude the illegal production of liquor — though the item fails to specify on just what basis immigrants and alcohol are compared. But the point is, obviously, if the prohibition statutes must be repealed upon the ground of non-enforcement, why not also the whole immigration law?
It is significant that prohibition is now seldom debated on its merits, that is upon the social desirability of preventing people from drinking intoxicating liquors. Some of the standard lines of attack are summarized below, and their fallacy indicated, in order to throw into high relief the real nature of the predominant objections to the prohibition law.
1. “You can’t make people good by law.” Of course you can’t make people good by law. The purpose of the law is not to make people good, but to make them orderly and harmless. No moral objective should ever be associated with any law. Ordinarily, for the reasons explained, the law runs parallel to the moral code. But the aim of law is not goodness but safety and efficiency, On the whole, laws probably add to the total volume of badness rather than of goodness. For persons who are restrained merely by, fear have certainly not acquired any virtue thereby, and those who are not restrained add to the guilt of the act itself the extra guilt of law-breaking.
2. The prohibition laws interfere with personal liberty. Certainly they do. That is the nature of all law. If personal liberty were not inimical to social progress there would be no need of law. The only question is whether, in each particular case, the loss of liberty involved in a given law is more than offset by the gain in social stability, efficiency, order, and security. This must be worked out in each case on its own merits; it cannot be settled by a general dictum. If the gain more than offsets the loss, the law is justified. If it does not, the law should not be passed.
3. The innocent are made to suffer with the guilty; that is, those whose conduct would be socially innocuous without the law are compelled to go to unnecessary extremes. This, too, is inherent in many forms of law. In the case of game laws, speed regulations, “pistol-toting” laws, etc., it is precisely those conscientious persons who could be trusted to do no harm without the law who will be put to the most inconvenience by their efforts to obey the law, while those who most need the law will continue to do as they please. Here again it is a question of whether the net gain is worth the price.
4. Wholesale violations destroy respect for law. What do you mean by respect for law? It can mean only one of two things. It may mean a willingness to do something that you do not want to do just because the law requires it. According to that definition, violations are an evidence, not a cause, of disrespect for law. Or it may mean a naive faith that the law can be used to make other people do something that they do not want to do. If that is the definition, the sooner we find out what the real potency and limitations of the law are the better. The present situation is undoubtedly helping to reveal the true nature of law. Whether we respect it or not depends upon what we discover it to be.
The real truth, of course, is that every such situation does not create disrespect for law, it reveals disrespect for law. It shows the law up for what it is, and does the same for a vast number of those who plume themselves on being law-abiding citizens. It shows how lamentably small is the proportion of citizens who will refrain from an act which they regard as both pleasurable and innocent just because it is illegal. They are ready to support enthusiastically those laws that aim to prevent “real criminals” from doing injurious things that they themselves have no effective impulse to do. But the laws that touch them in a tender spot are “unwarranted infringements on personal liberty.”
Arguments of this sort are for the most part pure camouflage, or at best what the psychologists nowadays call “rationalizations.” Clearing them away lays bare the real ground for most of the clamor for repeal, which is simply this, that millions of perfectly respectable and self-respecting, conscientious, orderly people want to do what the law forbids, and see no earthly harm in doing it. They are not habituated to obeying the law for its own sake, and suddenly to do so with respect to a matter of as great interest as the use of alcoholic drinks would require a revolution in their social motivation which they are not prepared to undergo. Consequently they have no intention of obeying the law, yet they dislike thinking of themselves as law-breakers. They are ill at ease in the face of wholesale violations of the law by themselves and others like them. It is not so difficult to put up with a farcical enforcement of the laws against murder, burglary, and arson because the people who break those laws are “bad” people anyway, and not much worse for having broken a law. Furthermore, in so far as any of them are caught and punished that is so much pure gain. But to have a law broken by innumerable “good” people, who thereby incur a certain imputation of badness, is intolerable. Consequently, the only, recourse appears to be to repeal the law. There is doubtless a further incentive in the inconvenience caused to them in their law-breaking by the degree of enforcement that is actually achieved.
The true significance, therefore, of the present Prohibition situation is found in the light that it sheds on the whole position of law in a modern democratic state. There are two main points at issue. The first is the entire question of majority rule. To be sure we often hear it asserted, as another of the stock arguments of the opposition, that the prohibition laws were not passed by a majority but “put across by, an organized minority.” The answer to this is that all laws, as far as those actively responsible for them are concerned, are passed by minorities. The bulk of the people is never vigorously and positively behind any measure. There can be no doubt that the Prohibition Amendment and the Volstead Act were passed in full accord with our established machinery of legislation, expressly designed to register the will of the majority. We are flatly confronted by the questions, what kind of a government we have, what kind we think we have, and what kind we want to have.
It is too obvious for comment that the smaller the number of people whose impulses are crossed by a given law the less disturbance will the law make, and the better will its enforcement appear to be. But by the same token, the less necessary will such a law be. Granting that the law is justified—that is, that the safety and order secured will more than offset the loss of individual liberty—the more people there are who desire to break it the more necessary it is. The maximum justification for a law would exist if fifty-one per cent of the population perceived rightly that a certain type of behavior was socially beneficial, and forty-nine per cent were unwilling to adopt that line of behavior. But such a law would also involve a maximum difficulty of enforcement. There is no escape from frankly facing the question whether in matters that deeply touch us all we believe in majority rule or not. Are we ready to concede that in certain types of legislation not a simple majority, but a two-thirds, or a three-fourths, or a four-fifths majority shall be required? If so, how shall these types of legislation be determined, and how shall the variable majorities be assigned? Ought the enactment of any new coercive law to be delayed until public opinion and sentiment have developed so far that the law will actually restrain only a small fraction of the population? If so, how small? Are frequent violations of a law legitimate grounds for repealing the law? If so, what is the correct ratio?
Or do we really believe that a majority, even a small majority, has a right to pass a law binding upon the entire group, putting the minority under obligation to obey the law conscientiously, even while working perhaps for its legitimate repeal on reasonable grounds? If so, we can hardly justify the minority in violating the law at will and then using the violations as an argument for repeal. These are questions worthy of the most serious consideration. They lie at the very foundation of our theory of democratic government. The arguments are by no means all on one side. But the answer is vital, for when theory and practice clash, one or the other must be revised or disaster will follow.
The second point illuminated by the present Prohibition situation, closely allied indeed to the one just discussed, is the possibility of developing the directive, regulative, constructive (as contrasted with the repressive and coercive) aspects of the law which, as has been observed, are so characteristic of the modern state and so necessary for the efficient functioning of the modern community. No sociological law is better substantiated than the one which declares that increasing social complexity necessitates increasing social constraint. There is no doubt that increasing complexity is distinctly characteristic of present social evolution. But there is grave doubt as to whether society will be able to impose the degree and variety of social constraint that are required to keep its own towering edifice from toppling. This constraint will have to do more and more with types of conduct which are intrinsically innocent and devoid of moral implication, but which impede the smooth and orderly functioning of a complicated society, or which threaten the legitimate interests of the various members of such a society. Conformity to this type of constraint will not be supported by any moral scruples nor by any of the ordinary sanctions of “right” behavior. If conceded at all, it must rest either upon a personal appreciation of the social utility of the measure in question—which will probably continue to be deficient among the great mass of the people for a long time to come—or else upon genuine respect for law as law, which means a willingness to obey even though one either does not understand or does not agree.
The prohibition law, rightly interpreted, is exactly a measure of this kind. Its supporters have made a grievous mistake in defending it on moral grounds. As a moral measure Prohibition, just like every other moral legal measure, is indefensible. Its justification, if any, rests upon its necessity as a measure of order, security, efficiency, and the safeguarding of interests. It is not a question whether I consider my neighbor a bad man because he drinks a glass of beer, but whether I have a right to be protected against having a drunken automobile driver run over my child at a street crossing. Individual conduct becomes daily more significant to the welfare of the rest of humanity. In the interests of humanity, therefore, it must be increasingly controlled. The Prohibition law is an exceptionally conspicuous example of this kind of constraint. The true test of its defensibility has already been indicated—if the gain in social security more than offsets the loss in individual liberty then it is a good law, and should be retained. To concede that it must be repealed, merely became it can not he enforced is to confess our society bankrupt of the resources indispensable for its own future protection and maintenance.
In the last analysis, however, it must not be forgotten that control by law is the most expensive, painful, and generally unsatisfactory form of control that society exercises. The goal of intelligent social engineering should be to reduce it to a minimum, supplanting it by control through vanity, love in its various forms, and any other appeal that will produce voluntary conformity. As a part of this program, sanctions must be built up in favor of law-abiding-ness itself. In some way or other conscientious people must be made to feel the same social condemnation for the violation of a law that they now do for a breach of the moral code. Only in this way will the society of the future be able to maintain the operation of the increasing system of regulative laws which will be necessary for its existence, and at the same time avoid the harsh, irritating, and socially disruptive measures which accompany the enforcement of law by resort to fear and force. To defend the repeal of any regulative law on the ground that it does not express the moral conviction of a great proportion, even a majority of the people, or that it interferes with the enjoyment of personal liberty, or that it is not perfectly enforced, is to pave the way for a more disastrous social chaos than is likely to result from the wildest lucubrations of the reddest radical who was ever deported to Russia.