gordon 1973

http://cad.sagepub.com/Crime & Delinquency

http://cad.sagepub.com/content/19/2/163The online version of this article can be found at:

DOI: 10.1177/001112877301900204

1973 19: 163Crime & DelinquencyDavid M. Gordon

Capitalism, Class, and Crime in America

Published by:

http://www.sagepublications.com

can be found at:Crime & DelinquencyAdditional services and information for

http://cad.sagepub.com/cgi/alertsEmail Alerts:

http://cad.sagepub.com/subscriptionsSubscriptions:

http://www.sagepub.com/journalsReprints.navReprints:

http://www.sagepub.com/journalsPermissions.navPermissions:

What is This?

- Apr 1, 1973Version of Record >>

at University of Groningen on May 8, 2014cad.sagepub.comDownloaded from at University of Groningen on May 8, 2014cad.sagepub.comDownloaded from

http://cad.sagepub.com/

http://cad.sagepub.com/content/19/2/163

http://www.sagepublications.com

http://cad.sagepub.com/cgi/alerts

http://cad.sagepub.com/subscriptions

http://www.sagepub.com/journalsReprints.nav

http://www.sagepub.com/journalsPermissions.nav

http://cad.sagepub.com/content/19/2/163.full.pdf

http://online.sagepub.com/site/sphelp/vorhelp.xhtml



163

Capitalism, Class, andCrime in America*

DAVID M. GORDONResearch Associate, Center for Educational Policy Research, Harvard University

Research Associate, National Bureau of Economic Research, 1971-72

B.A., 1965, Harvard College; Ph.D. (Economics), 1971, Harvard University

Conventional public analyses of crime, both conservative andliberal, begin with the assumption that crimes are committed byirrational individuals who constitute a threat to a rational socialorder. Sharing that initial assumption, conservatives and liberalsdiverge in their policy approaches to deterring criminality. Somerecent orthodox economic analyses of crime, having begun to re-lax the assumption, view crime as a process of rational choice bycriminals; they offer the possibility of "optimal" crime preven-tion policies through the application of conventional economicmodels.A radical economic analysis of crime, which this paper tries to

formulate, suggests that the present character of crime in Amer-ica flows almost inevitably from the structure of our social andeconomic institutions. Many kinds of crime represent perfectlyrational responses to the conditions of competition and inequal-ity fostered in capitalism; examples of this rationality are white-collar crime, organized crime, and ghetto crime. Many of themost important differences among crimes flow from the duality of our systems of justice and law enforcement, and that duality inturn reflects the biases of the State in capitalist societies. It seemsunlikely that we shall be able to solve the problem of crime inthis country without first effecting a radical redistribution of power in our basic institutions.

IKE A BRUSH FIRE, crime in theL United States has seemed recentlyto be raging out of control. The pub-lic, the government, and the expertshave all raced to cool the blaze.In one way or another, we have

all been drawn into the fight. Withslogans and occasional compassion,with weapons, courts, prisons, and pa-trols, especially with perplexity andconfusion, we have probably served inthe end to frustrate our own good

*This paper was originally written as

&dquo;Class and the Economics of Crime&dquo; to

appear in J. Weaver, ed., Political Economy:Radical and Orthodox Approaches (NewYork: Allyn and Bacon, 1973) . A few changeshave been made from that original version. Itappeared in an abridged form under the

same title in Review of Radical Political

Economics, Summer 1971, and it draws on

some material in David M. Gordon, ed.,Problems in Political Economy: An Urban

Perspective (Lexington, Mass.: D. C. Heath,1971) . Permission has been granted by bothpublishers.

at University of Groningen on May 8, 2014cad.sagepub.comDownloaded from


164

intentions, to fan the flames ratherthan douse them. We seem to have asmuch trouble understanding the prob-lem of crime as we do effecting itssolution.

Weanwhile, amidst the confusion,orthodox economists have been strid-

ing elegantly to our rescue. Cool, fear-less, the perfect picture of profession-alism, they have been promising to

guide us toward &dquo;optimal&dquo; crime pre-vention and control. Off with our

silliness! Off with our psychologicalmuddle-htadednessl Gary Becker, a

sort of guru among them, explainshow easily we can understand it all:A useful theory of criminal behavior

can dispense with special theories of ano-mie, psychological inadequacies, or inher-itance of special traits and simply extendthe economist’s usual analysis of choice.&dquo;1As I have read and thought recently

about she problem of crime in theUnited States, I’ve found myself re-turning over and over to the sameconclusions-that the public’s under-standing of the problem is mistaken,that the government’s policy respons-es are misguided, and that the recentorthodox economic analyses havebeen misleading. This paper attemptsto amplify those impressions. I havenot tried to present a detailed briefagainst the conventional wisdom andthe orthodox economic view. Instead,I intend to articulate my differenceswith those positions by formulating analternative, radical analysis of crimi-nal behavior and by evoking an alter-native normative view of an appropri-ate social response to crime.The paper has five sections. The

first offers a brief descriptive summaryof the nature and extent of crime in

the United States. The second surveyssome conventional public perspectiveson the problem of crime, while thethird outlines recent t orthodox eco-

nomic approaches to the problem.In the fourth section, I sketch theframework of a radical economic an-

alysis of crime in the United States. Inthe final section, I amplify an alterna-tive normative view of the appropri-ate social response to criminal behav-ior.2

1. Crime in America

To compare analytic approaches tothe problem of crime, one must first

clarify its empirical dimensions. Sever-al useful summaries of the nature andextent of American crime are easilyavailable, especially in the summaryreport by the President’s Crime Com-mission and in Ramsey Clark’s recentbook.3 Relying primarily on the basic

1. Gary Becker, "Crime and Punishment:An Economic Approach," Journal of PoliticalEconomy, March-April 1968, p. 170.

2. I am not an expert on crime and I havenot pursued extensive research about the

problem. The thoughts in this paper draw

mainly on some limited elementary reading;as a layman in the field, I offer these

thoughts with considerable hesitation, whichhas especially affected my style of argument.Since I do not speak with authority, I have

tried wherever possible to include quotesfrom respected and respectable "authorities"to support my arguments.

3. President’s Commission on Law En-

forcement and Administration of Justice, TheChallenge of Crime in a Free Society (Wash-ington, D.C.: U.S. Government PrintingOffice, 1967) ; Ramsey Clark, Crime in Ameri-ca (New York: Simon and Schuster, 1970).For some useful summaries of the basic data,see the first two reading selections in the

chapter on crime in David M. Gordon, ed.,Problems in Political Economy: An Urban

Perspective (Lexington, Mass.: D. C. Heath,1971). Another useful summary of informa-tion about "urban crime" can be found in

Marvin E. Wolfgang, "Urban Crime," in

James Q. Wilson, ed., The MetropolitanEnigma (Cambridge, Mass.: Harvard Univer-sity Press, 1968). For much more detailed

information, see the appendices to President’s



165

facts documented in those sources, Ihave tried in the following paragraphsto outline the most important ques-tions about the problem of crimewhich any analysis must try to resolve.

It seems important to emphasize,first of all,,that crime is ubiquitous inthe United States. Our laws are so

pervasive that one must virtually re-tire to hermitage in order to avoid

committing a crime. According to a

national survey conduoted in 1965 bythe President’s Crime Commission, 91

per cent of all adult Americans &dquo;ad-mitted that they had committed actsfor which they might have receivedjail or prison sentences.&dquo;4 The CrimeCommission also found that in 1965&dquo;more than two million Americanswere received in prisons or juveniletraining schools, or placed on

probation&dquo;-well over 2 per cent ofthe labor force. Criminal behavior, it

appears, is clearly a norm and not anaberration.5

Given that ubiquity, it seems equal-ly important to emphasize our ex-

traordinary selectivity in our atten-

tion to the problem of crime. Wefocus all our nearly paranoid fearsabout &dquo;law ’n’ order&dquo; and &dquo;safe

streets&dquo; on a limited number of crimeswhile we altogether ignore manyother kinds of crime, equally serious

and of much greater economic impor-tance.

One can sketch the dimensions ofthis selectivity quite easily. The crimeson which the public does concen-

trate its fears and cannons are often

lumped together as &dquo;urban&dquo; or &dquo;vio-lent&dquo; crimes. These crimes can be

usefully summarized by those forwhich the FBI accumulates a generalstatistical index. Seven &dquo;Index Crimes&dquo;are traced in the Bureau’s peri-odic Crime Report: willful homicide,forcible rape, aggravated assault, rob-bery, burglary, larceny (of more than$50), and motor vehicle theft. To-

gether, these seven crimes encompassthe raging fire in fear of which wehide inside our homes.Some basic facts about these seven

fearsome crimes are well known. The

measured incidence of the IndexCrimes has been increasing rapidly inthe United States in the past ten to fif-teen years. The Index Crimes occurtwice as frequently in large cities as

they do on average throughout the

country. Within large cities, they oc-cur most frequently in ghetto areas.

The threat and tragedy of violentcrime notwithstanding, almost all of

these crimes are economically moti-vated ; as Clark notes quite simply,&dquo;their main purpose is to obtain mon-

ey or property.&dquo;7 Seven-eighths of themare crimes against property; only one-eighth are crimes against the person,and many of the relatively few &dquo;vio-

lent&dquo; crimes actually occur inadvert-ently in the process of committingcrimes against property.

Commission, op. cit. supra, Corrections

(1967), The Courts (1967) , and Crime andIts Impact—An Assessment (1967). For someinteresting comments on the Crime Commis-sion Report, see James Q. Wilson, "Crime inthe Streets," The Public Interest, No. 5, Fall1966.

4. President’s Commission, Challenge ofCrime, op. cit. supra note 3, p. v.

5. One should add, of course, that these

figures refer only to those harmful acts whichactually violate some law. Many other tangi-bly harmful acts, like faulty manufacture ofautomobiles or certain kinds of pollution,have not yet been declared illegal.

6. Clark also notes, op. cit. supra note 3,that the increase may be misleading, simplybecause many kinds of crime are much more

likely to be reported these days than werecomparable crimes, say, thirty years ago.

7. Id., p. 38.



166

A large part of the crime againstproperty is committed by youth. Clarkconcludes from the scattered statisticsthat half of all property crime is com-mitted by persons under twenty-one.8Certainly more important in consider-ing the evolution of public attitudes,blacks commit disproportionate num-bers of these seven Index Crimes (andare also disproportionately the victimsof the same crimes) . Although arrestrates bear an obviously spurious rela-tionship to the actual incidence ofcrime, some of the figures seem quiteastonishing.9 In 1968, for instance,official statistics indicate that 61 percent of those arrested for robbery wereblack and nearly half of those arrestedfor aggravated assault were black,despite the fact that blacks constituteonly 12 per cent of the population. Asastonishing as those figures sometimesseem, however, the public exaggeratethem further; public attitudes oftenappear to presume that all of theIndex Crimes are committed by blacksand that every black male is on the

verge of committing a crime.The crimes to which the public and

the media choose to pay almost noattention seem just as obvious. Manykinds of relatively hidden profitablecrimes, most of them called &dquo;white-collar&dquo; crimes, occur with startling

frequency. Tax evasion, price fixing,embezzlement, swindling, and con-

sumer fraud capture billions of dol-lars every year.

Illicit gains from white-collar crime farexceed those of all other crime combined.... One corporate price-fixing conspiracycriminally converted more money each

year it continued than all of the hundredsof thousands of burglaries, larcenies, orthefts in the entire nation during thosesame years. Reported bank embezzlementscost ten times more than bank robberieseach year.10The selectivity of public opinion is

matched, moreover, by the biases ofour governmental system for the en-forcement and administration of jus-tice, which prosecutes and punishessome crimes and criminals heavilywhile leaving others alone. Some de-fenders of the system occasionally ar-gue that it concentrates most heavilyon those crimes of the greatest magni-tude and importance, but the data donot support this view: the IndexCrimes on which the system focusesaccount for small proportions of thetotal personal harm and property lossresulting from crime in the UnitedStates. For example, deaths resultingfrom &dquo;willful homicide&dquo; are one-fifthas frequent as deaths from motor ve-hicle accidents; Although many ex-

perts ascribe nearly half of motor ve-hicle accidents to mechanical failure,the system rarely pays attention to

those liable for that failure. Theeconomic loss attributable to IndexCrimes against property-robbery,burglary, and so on-are one-fifth thelosses attributable to embezzlement,fraud, and unreported commercial

theft, and yet the system concentratesalmost exclusively on the former.One can much more reasonably ar-

8. Id., p. 54. Violent crimes, on the otherhand, are more frequently committed byadults. As Clark explains it (p. 55) , "It takeslonger to harden the young to violence."

9. The reason that the arrest rates may bespurious is that, as Clark (op. cit. supra note3) and Ronald Goldfarb ("Prison: TheNational Poorhouse," The New Republic,November 1969) have especially noted blacksare much more likely than whites to bearrested whether they have committed a

crime or not. Despite that immeasurable biasin the arrest statistics, it is nonethelessassumed that blacks commit a larger percent-age of most crimes than their share of urban

populations 10. Clark, op. cit. supra note 3, p. 38.



167

gue, as many have in other contexts,that the selectivity of our police,courts, and prisons corresponds mostclosely to the relative class status ofthose who perpetrate different crimes.We seem to have a dual system of

justice in this country, as both theCrime Commission and Goldfarbhave most clearly shown.ll The pub-lic system concentrates on crimes com-mitted by the poor, while crimes bythe more affluent are left to privateauspices. Our prisons function, as

Goldfarb notes, like a &dquo;national poor-house,&dquo; swallowing the poor, chewingthem up, and occasionally splittingthem back at the larger society. Whenthe more affluent get in trouble, in

contrast, private psychiatric and coun-seling assistance supplant prosecution:&dquo;In the classes of offenses committed

by rich and poor equally, it is rarelythe rich who end up behind bars.&dquo;12

Finally, none of the system’s selec-tivity works as intended. The publicseems to think that concentration ona few crimes will at least improve theeffectiveness of the system in control-

ling those few crimes-leading to

greater prevention and deterrenceand perhaps to greater rehabilitation.Buoyed by that hope, the various gov-ernments in the United States spentroughly $4.2-billion on police, prisons,and the courts in 1965, while privateindividuals and corporations spent anadditional $1.9-billion on preventionand insurance. And yet, despite thosebillions, our systems of enforcementand administration of justice appear

considerably to exacerbate the crimi-nality they seek selectively to control.The prisons in particular, as Clarknotes, are veritable &dquo;factories ofcrime&dquo;: &dquo;Jails and prisons in theUnited States today are more oftenthan not manufacturers of crime. Ofthose who come to jail undecided,capable either of criminal conduct orof lives free of crime, most are turnedto crime.&dquo;13 More generally, very fewof those who get started in crime ever

actually leave it as a result of the

system’s deterrent or rehabilitativeeffects. According to Clark’s statisti-cal summaries, roughly half of thosereleased from prison eventually re-

turn, and fully 80 per cent of seriouscrime is committed by &dquo;repeaters&dquo;-by those who have been convicted ofcrime before.14These very brief descriptive obser-

vations clearly suggest the questionsan economic analysis must seek to

answer about the problem of crime:Why is there so much crime? Why dothe public and government concen-trate so selectively on such a small

part of the criminal activity in this

country? And why do all our billionsof dollars fail so miserably in curbingeven that small part of the total prob-lem ?

2. Conventional Public AnalysesConventional public analyses of

crime divide roughly into two views-&dquo;conservative&dquo; and &dquo;liberal&dquo;-the spe-cific features of which correspond tomore general &dquo;conservative&dquo; and &dquo;lib-eral&dquo; perspectives on social problems.The two perspectives begin fromsome relatively common general viewsof society and its governments, diverg-ing more and more widely as they

11. President’s Commission, op. cit. supranote 3, and Goldfarb, supra note 9.

12. Goldfarb, supra note 9, p. 312 (em-phasis in the original) . It is one thing to citethis "duality" as fact, of course, and quiteanother thing to explain it. I cite it now as a

phenomenon requiring explanation and shalltry to explain it later.

13. Clark, op. cit. supra note 3, p. 313.14. Id., p. 55.



168

debate the specifics of crime preven-tion and control,15

The conservative perspective on

crime has an appealing simplicity,16Since conservatives believe that thesocial &dquo;order&dquo; is ultimately rationaland is adequately reflected in the lawsof our governments, they also believethat those who violate it can be re-

garded as irrational citizens and socialmisfits. As such, criminals should be

punished regardless of the social forcesthat may well have produced their

criminality; they represent a threat tothe safety and property of those whoact with civility and reason, and theyshould be isolated until society can besure of their good behavior. The moreviolent the crimes, the more seriouslywe must regard their consequences.

Since criminals (and especially vio-lent ones) act irrationally, we candeter and prevent their actions onlyby responding to them with compara-bly irrational actions-principally bythe threat or application of raw force.Toward that end, conservatives en-

gage in two kinds of policy calcula-tions. First, they discuss the potentialdeterrence of a variety of crime-

prevention techniques: if f onlyenough deterrent force could be mus-tered, they assume, crime could be

stopped; typically, ithey urge more po-lice and more equipment to preventcrime. Second, they tend to favor pre-ventive detention as a necessary

means of protecting she social orderfrom the threat of probable criminali-ty ; they make their argument, normal-ly, on relatively pragmatic grounds.17

Liberals tend to agree with conserv-atives, ultimately, that the social or-der tends toward rationality. They aremore likely to pay attention to imper-fections in the social order, however,and are therefore more likely to favorgovernment action to correct those

imperfections. As a justification for

government action, they usually relyon what has been called the &dquo;pluralis-tic&dquo; view of democratic governments-that those governments generallyact in everyone’s interests because

they are constantly checked and bal-anced by the competition of manydifferent interest groups for the favorsof government action,18Given those general predilections,

15. For an easy reference to the differencesbetween the general "liberal" and "conserva-tive" views, see "General Perspectives—Radi-cal, Liberal, Conservative" in Gordon, op. cit.supra note 3, Ch. I. For a good example oftraditional discussion of the problem, see Ed-win H. Sutherland, Principles of Criminology,6th ed. (Philadelphia: Lippincott, 1960).

16. For the clearest exposition of the con-servative view on crime, see the chapter oncrime in Edward C. Banfield, The Unheaven-ly City (Boston: Little, Brown, 1970).

17. Banfield (id., p. 184) has clearly for-mulated the conservative equation: "In anyevent, if abridging the freedom of personswho have not committed crimes is incompati-ble with the principles of free society, so,

also, is the presence in such society of personswho, if their freedom is not abridged, woulduse it to inflict serious injuries on others.There is, therefore, a painful dilemma. Ifsome people’s freedom is not abridged bylaw-enforcement agencies, that of others willbe abridged by law breakers. The question,therefore, is not whether abridging the free-dom of those who may commit serious crimesis an evil—it is—but whether it is a lesser or a

greater one than the alternative."For the increasing tendency of the Nixon

Administration to apply the conservative per-spective in its policies toward crime, see

Richard Harris, Justice (New York: Dutton,1970). For a superb analysis of the legalaspects of the major Nixon crime legislation,see Herbert Packer, "Nixon’s Crime Programand What It Means," New York Review of Books, Oct. 22, 1970.

18. For a summary of the general liberalperspective, see Ch. 1 in Gordon, op. cit.

supra note 3. For a good statement of thepluralist argument, see Arnold Rose, The

Power Structure: Political Process in America

(New York: Oxford University Press, 1968).



169

liberals tend to regard the problem ofcriminal activity as a much more com-plicated dilemma than do their con-servative counterparts.19 Since the so-cial order can be viewed as an ulti-

mately rational state, those who vio-late it can indeed be regarded as &dquo;irra-tional.&dquo; At the same time, however,liberals regard the interactions of in-dividuals with society as extremelycomplex processes, fraught with im-perfections in -the allocation and dis-tribution of social rewards. Throughthose imperfections, some individualsare much more likely than others tobe pushed toward the irrationality ofcriminal behavior. Criminality shouldbe regarded as irrationality, but weshould nonetheless try to avoid blam-

ing criminals for their irrational acts.And since different individuals are

pushed in very different ways by dif-ferent social circumstances, there is awide variety of behavior among crimi-nals. As the Crime Commission con-cludes : &dquo;No single formula, no singletheory, no single generalization canexplain the vast range of behaviorcalled crime.&dquo;2o

Some of these heterogeneous crimesare more serious than others, liberalscontinue, because they are more vio-lent and therefore more threatening.Liberals tend to agree with conserva-tives and ;the FBI that the FBI CrimeIndex adequately encompasses the po-tentially most violent crimes. But lib-

erals tend to disagree with conserva-tives in arguing that these kinds of

relatively violent crimes cannot sim-ply be prevented by force, that theycannot ultimately be curbed until thesocial imperfections which underliethem are eliminated. The prevalenceof &dquo;violent&dquo; crime among youth,blacks, and ghetto residents derivesfrom the diseases of poverty andracism in American society, most lib-erals have finally concluded. Giventhose basic social imperfections, as theCrime Commission argues, &dquo;it is prob-able that crime will continue to in-

crease... unless there are drastic

changes in general social and econom-ic conditions.&dquo;21Can we do nothing about crime

until we eliminate the sores of pover-ty and racism? Liberals respond ontwo different levels. On the one hand,they argue that we can marginallyimprove our prevention of crime andour treatment of criminals if we canat least marginally rationalize our sys-tem of enforcement and administra-tion of justice. We need more re-

search, more analysis, more technology,more money, better administration,and more numerous and professionalpersonnel.22 And since liberals placeconsiderable faith in the dispassionatebeneficence of the government, theyexpect that the government’s respons-es to crime can be improved simplyby urging the government to makethose improvements.

19. The clearest expressions of the liberalview of crime are contained in three reportsof Presidential commissions published in thelate 1960’s: President’s Commission, The

Challenge of Crime, op. cit. supra note 3;National Advisory Commission on CivilDisorders, Report (New York: Bantam

Books, 1968) ; National Commission on theCauses and Prevention of Violence, To Estab-lish Justice, To Insure Domestic Tranquility(New York: Bantam Books, 1970).20. Op. cit supra note 3, p. v.

21. Id., p. 5.22. Wolfgang writes (supra note 3, p.

275), "Urban crime might be reduced bysignificant proportions if more talent, time,and funds were put into public use to

produce the kind of research findings neces-sary to make more rational informed deci-sions." The Commission on Violence con-

cluded (op. cit. supra note 19, p. 40) , "Wereiterate our previous recommendations thatwe double our national investment in thecriminal justice process...."



170

On another level, liberals arguestrongly-and in relatively sharp op-position to many conservatives-thatwe should not tolerate abridgments ofcivil liberties while we wait for ourultimate solutions to the problems ofcrime. Though a bit confused and

rarely articulated with any real coher-ence, the liberals’ defense of civil lib-erties appears to derive from the highpriorities they conventionally placeon social equality and justice, whileconservatives seem to be more swayedby their own concern for social orderand the preservation of the integrityof private property. However con-

fused its sources, this debate betweenliberals and conservatives cannot easi-

ly be ignored. &dquo;A coincidence ofevents has heightened the traditionaltensions between the forces of enforce-ment and of justice, and has greatlyincreased the likelihood of a constitu-tional crisis somewhere down theline.&dquo;23

In short, the conventional liberaland conservative analyses of crime

pose fairly simple answers to the mostimportant questions about crime.

They argue that criminals are essen-tially irrational, with liberals addingthat such irrationality sometimesseems, in one sense or another, par-tially justified. They agree that weshould concentrate most heavily ontrying to prevent the most violentcrimes, and they both conclude that

the admitted selectivity of publicopinion and governmental responseroughly corresponds to the degree ofviolence latent or manifest in differ-ent kinds of crime. Conservatives sus-

pect that we have failed to curb thoseespecially violent kinds of crimes be-cause we have not been willing to

apply enough force to deter and pun-ish those kinds of criminals. Liberals

suspect that we have failed because

poverty and racism are deeply rootedin our society but that we can at leastmarginally improve our enforcementand administration of justice in theshort run through more rational pub-lic policies and that we can ultimatelycurb crime through public action toeliminate the basic social causes ofcrime.

3. Orthodox Economic AnalysisIn the past few years, redressing a

historic neglect, several orthodoxeconomists have tried to clarify ouranalysis of criminal behavior and ourevaluation of alternative public poli-cies to combat it.24 Although a fewnineteenth-century classical econ-omists like Jeremy Bentham had

originally applied economics to the

analysis of the problem of crime,

23. Fred P. Graham, "Black Crime: TheLawless Image," Harper’s, September 1970, p.68. This debate, indeed, has some fascinatinghistorical roots, for both the liberal andconservative positions have borrowed in verydifferent ways from classic nineteenth-centuryliberalism, especially from the work of JohnStuart Mill. For one of the clearest compari-sons of the two perspectives and their com-mon legacies, see Robert Paul Wolff, The

Poverty of Liberalism (Boston: Beacon Press,1968).

24. For the most notable pieces of therecent literature, see Becker, supra note 1;

George Stigler, "The Optimum Enforcementof Laws," Journal of Political Economy,May-June 1970; Lester C. Thurow, "Equityand Efficiency in Justice," Public Policy,Summer 1970; and Gordon Tullock, GeneralStandards: The Logic of Law and Ethics,Virginia Polytechnic Institute, 1968, unpub-lished manuscript, and "An Economic Ap-proach to Crime," Social Science Quarterly,June 1969 Some attempts have been made toapply the orthodox analysis empirically; forone such attempt, still unpublished at thetime of writing, see William Landes, "AnEconomic Analysis of the Courts," NationalBureau of Economic Research, 1970, unpub-lished manuscript.



171

economists since then have generallyleft the problem ,to sociologists andpsychologists. Recent advances in neo-classical micro-economic theory per-mit us, we are now told, to &dquo;extendthe economist’s usual analysis ofchoice&dquo; to an analysis of criminal be-havior and its &dquo;optimal&dquo; preventionand punishment. Since each of therecent applications of orthodoxeconomics outlines the mode of analy-sis rather clearly and since the ap-proach so directly reflects the more

general predispositions of orthodoxmicro-economics, a few brief observa-tions about its underlying assump-tions are sufficient in order to clarifyits differences from both the &dquo;publicperspectives&dquo; outlined above and theradical analysis developed below.The central and most important

thrust of the orthodox analysis is thatcriminal behavior, like any othereconomic activity, is eminently ration-al ; in this important respect, theeconomists differ fundamentally withconventional liberal and conservative

public analyses. Becker formulatesthis central contention quite simply:A person commits an offense if the

expected utility to him exceeds the utilityhe could get by using his time and otherresources at other activities. Some personsbecome &dquo;criminals,&dquo; therefore, not be-cause their basic motivation differs fromthat of other persons, but because theirbenefits and costs differ.25

More specifically, individuals are as-

sumed to calculate the returns .to andthe risks of &dquo;legitimate&dquo; employmentand &dquo;criminal&dquo; activity and base theirchoices between those two modes of

activity on their cost/benefit calcula-tions. Stigler adds: &dquo;The details of

occupational choice in illegal activity

are not different from those encoun-tered in the legitimate occupa-tions.&dquo;26Given those assumptions of ration-

nality, orthodox economists argue thatwe can construct some &dquo;optimal&dquo; so-

cial policies to combat crime. Theyassume, first of all, that there is a

social calculus through which thecosts and benefits of criminal offensesto each member of society can betranslated into a common metric-thecalculus is conveniently expressed interms of a &dquo;social welfare function.&dquo;

Society (through its several govern-ments) should then try to minimizethe &dquo;social loss&dquo; from criminal offensesas measured by the social welfarefunction. In their formulation of the

parameters of these calculations, theyhypothesize that criminals respondquite sensitively in their own deci-

sion-making to variations in the leveland probability of punishment. Theyalso assume that, as Becker puts it,&dquo;the more that is spent on policemen,court personnel, and specializedequipment, the easier it is to discoveroffenses and convict offenders.&dquo;27

They then proceed to the final argu-ment : we can choose (through ourgovernments) some combination of

punishment levels and social expendi-tures-with expenditures determiningthe probability of capture and convic-tion-which will minimize our sociallosses from crime subject to the rev-enue constraints in our public andprivate budgets.Behind the orthodox economic an-

alysis lie two fundamental assump-tions. First, although the assumptionis rarely made explicit, the economistsobviously assume that, in a democrat-ic society, everyone’s preferences have

25. Supra note 1, p. 176.26. Stigler, supra note 24, p 530.27. Supra note 1, p. 174.



172

an equal chance of influencing thefinal outcome and that public policyformulations can adequately reflect

the costs and benefits of criminaloffenses to all individuals in society.Without that assumption, the basisfor minimization of social &dquo;losses&dquo;

through a social welfare function isundercut.28

Second, the orthodox economists as-sume some simple and identifiable

relationships among the amount of

money we actually spend on preven-tion and enforcement, the amount of

prevention and enforcement we

would like to achieve, and theamount of prevention and enforce-ment we can actually achieve. Thisinvolves the assumption, noted above,that larger expenditures automaticallyincrease the probability of apprehen-sion and conviction. It also involvesanother, related assumption-that thelevel of government expenditures onprevention and punishment accurate-ly reflects society’s desired level of

prevention and enforcement insteadof, for example, the influence ofvested interests in maximizing expend-itures. If a state or locality spendsmore on its police, courts, and

prisons, ceteris paribus, orthodoxeconomists assume that they do so

because they seek to deter crime moreeffectively through the expected in-crease in the probability of arrest andpunishment.

4. A Radical AnalysisThis section outlines the structure

of a radical analysis of crime in theUnited States. Many points in the

argument will seem quite obvious,simple elaborations of common sense.Other points will bear some impor-tant similarities to one or another ofthe views described in the precedingsections. Taken all together, however,the arguments in the following analy-sis seem to me to provide a more

useful, coherent, and realistic inter-

pretation than ’the more conventionalmodels. In the analysis, I have tried assimply as possible to apply some gen-eral hypotheses of radical economicanalysis to a discussion of the specificproblem of crime in this country. Myintention, quite clearly, is to arguethat we cannot realistically expect to&dquo;solve&dquo; the problem of crime in theUnited States without first effecting afundamental redistribution of powerin our society.

I have divided the analysis into fiveseparate parts. The first sketches themajor hypotheses of the general radi-cal framework through which I havetried to view the problem of crime.The second tries to explain a basicbehavioral similarity among all the

major kinds of crime in the UnitedStates. Given that fundamental simi-

larity, the third part seeks to explainthe most important dimensions of

difference among various crimes in

this country. Given a delineation ofthe sources of difference among crimes,the fourth part attempts a histor-ical explanation of the origins of

28. Becker admits (supra note 1, p. 209)that the analysis is hampered by "the absenceof a reliable theory of political decision-

making." Tullock is the only one who makesthe underlying political assumption preciseand explicit. He writes (op. cit supra note24, General Standards, p. II-2) : "My first

general assumption, then, is that the readeris not in a position to assure himself of

special treatment in any legal system. Thatis, if I argue that the reader should favor alaw against theft, one of the basic assump-tions will be that he does not have a real

opportunity to get a law enacted which

prohibits theft by everyone else but leaveshim free to steal himself." He adds that this

assumption "will ... underlie all of the

specific proposals" he makes in his

manuscript.



173

those sources of difference-an analy-sis, as it were, of the underlying causesof some immediate causes of differ-ence. The fifth ,part argues that wecannot easily reverse history, cannoteasily alter the fundamental socialstructures and trends that have pro-duced the problem of crime today. Afinal paragraph provides a brief sum-mary of the central hypotheses of theentire argument.

A. SOME GENERAL ASSUMPTIONS

The radical analysis of crime out-lined in this section applies severalbasic radical assumptions or hypothe-ses.29 It presumes, first of all, that thebasic structure of social and economicinstitutions in any society fundamen-tally shapes the behavior of individu-als in that society and, therefore, thatone cannot in fact understand thebehavior of individuals in a societylike the United States without first

understanding the structures and bi-ases of the basic &dquo;system-defining&dquo; in-stitutions in this country. It argues,furthermore, that the &dquo;social relationsof production&dquo; in capitalist societies

help define an economic class struc-

ture and that one cannot therefore

adequately understand the behaviorof individuals unless one first exam-ines the structure of institutionallydetermined opportunities to whichmembers of the respective economicclasses are more or less confined.3o

The analysis depends, at another

level, on the radical theory of the

State, according to which radicals hy-pothesize that the activities of the

State in capitalist societies serve pri-marily to benefit members of the capi-talist class-either directly, by be-

stowing disproportionate benefits

upon them, or indirectly, by helpingpreserve and solidify the structure ofclass inequalities upon which capital.ists so thoroughly d~pend. 31 The rad-ical analysis expects, finally, that vari-ous social problems in capitalist socie-ties, although they may not have beencreated by capitalists, cannot easily besolved within the context of capitalistinstitutions because their solutionwould tend to disrupt the functioningof the capitalist machine. If the dis-

ruptive potential of solutions to suchproblems therefore inclines the Stateto postpone solution, one can expectto solve those problems only by chang-ing the power relationships in soci-

ety so that the State is forced ,to serveother interests than those of the capi-talist class.32

29. For a summary of those basic perspec-tives in richer detail, see my introduction toCh. 1 in Gordon, op. cit. supra note 3, andthe selection by Edwards and MacEwan inRichard Edwards, Arthur MacEwan, et al.,"A Radical Approach to Economics," Ameri-can Economic Review, May 1970 (reprintedin Gordon, ibid.) .

30. For an amplification of these conten-tions, see Gordon, op. cit. supra note 3, andespecially Edwards and MacEwan, supra note29. There is some confusion, admittedly,

about the proper definition of the concept ofclass in the radical literature, in part becauseMaix himself used the term in several differ-ent meanings. For a useful discussion of thedifferent kinds of meaning of the concept, seeStanislaw Ossowski, Class Structure in theSocial Consciousness (New York: Free Press,1963) , trans. by Sheila Patterson. For a cleardescription, however short, of the analyticlink in the Marxist analysis between the"social relations of production" and thedefinition and determination of "economic

class," see Robert Tucker, The Marxian

Revolutionary Idea (New York: W. W. Nor-ton, 1969).

31. For a useful discussion of the radical

theory of the state, see Paul Sweezy, "TheState," ch. XIII of The Theory of CapitalistDevelopment (New York: Monthly ReviewPress, 1968), partially reprinted in Gordon,op. cit. supra note 3; and Ralph Milliband,The State in Capitalist Society (New York:Basic Books, 1969).



174

Each of these general hypothesesunderlies all of the more specific hy-potheses about crime which follow.

B. COMPETITIVE CAPITALISM AND

RATIONAL CRIME

Capitalist societies depend, as radi-cals often argue, on basically competi-tive forms of social and economic in-teraction and upon substantial ine-

qualities in the allocation of socialresources. Without inequalities, itwould be much more difficult to in-duce workers to work in alienatingenvironments. Without competitionand a competitive ideology, workersmight not be inclined to struggle toimprove their relative income and

status in society by working harder.Finally, although rights of propertyare protected, capitalist societies donot guarantee economic security to

most of its individual members. Indi-viduals must fend for themselves,finding the best available opportuni-ties to provide for themselves and

their families. At the same time, his-

tory bequeaths a corpus of laws andstatutes to any social epoch which mayor may not correspond to the social

morality of that epoch. Inevitably, atany point in time, many of the &dquo;best&dquo;

opportunities for economic survival

open to different citizens will violatesome of those historically determinedlaws. Driven by the fear of economicinsecurity and by a competitive desireto gain some of the goods unequallydistributed throughout the society,many individuals will eventually be-come &dquo;criminals.&dquo; As Adam Smithhimself admitted, &dquo;Where there is no

property, ... civil government is notso necessary

In that respect, therefore, radicals

argue that nearly all crimes in capital-ist societies represent perfectly ration-al responses to the structure of institu-tions upon which capitalist societiesare based. Crimes of many differentvarieties constitute functionally simi-lar responses to the organization ofcapitalist institutions, for those crimeshelp provide a means of survival in asociety within which survival is nev-er assured. Three different kinds ofcrime in the United States provide themost important examples of this func-tionally similar rationality among dif-ferent kinds of crime: ghetto crime,organized crime, and corporate (or&dquo;white-collar&dquo;) crime.84

It seems especially clear, first of all,that ghetto crime is committed bypeople responding quite reasonably tothe structure of economic opportuni-

32. The argument is best illustrated bythe "problems" of racism and sexism in

capitalist societies. Capitalists did not createthe problems but the phenomena of racismand sexism serve useful functions in theUnited States through their pervasiveness.They help forge large pools of cheap laborand help divide the labor force into highlystratified competitive groups of workers,among whom united worker opposition to

capitalists becomes relatively more difficult todevelop. If one somehow erased the phe-nomena of racism and sexism by creating aperfect equality of opportunities among theraces and sexes, the process through whichcapitalists are able to accrue their profits andkeep the working class divided would be

substantially threatened. In that respect, onecan hardly expect capitalists to favor theeradication of racism and sexism spontane-ously, although they might be forced to

move toward their eradication if the costs ofnot doing so become too high. For more onthis kind of reasoning, see the chapters onemployment, education, and poverty in Gor-don, op. cit, supra note 3.

33. Adam Smith, The Wealth of Nations(New York: Modern Library, 1937) , p. 670.34. This is not meant to imply, obviously,

that there would be no crime in a communist

society in which perfectly secure equal sup-port was provided for all. It suggests, quitesimply, that one would have to analyze crimein such a society with reference to a differentset of ideas and a different set of institutions.



175

ties available to them. Only rarely, itappears, can ghetto criminals be re-

garded as raving, irrational, antisociallunatics.35 The &dquo;legitimate&dquo; jobsopen to many ghetto residents, espe-cially to young black males, typicallypay low wages, offer relatively de-

meaning assignments, and carry theconstant risk of layoff. In contrast,

many kinds of crime &dquo;available&dquo; inthe ghetto often bring higher mone-tary return, offer even higher socialstatus, and-at least in some cases likenumbers running-sometimes carryrelatively low risk of arrest and pun-ishment.36 Given those alternative

opportunities, the choice between

&dquo;legitimate&dquo; and &dquo;illegitimate&dquo; activi-ties is often quite simple. As ArthurDunmeyer, a black hustler fromHarlem, has put it:

In some cases this is the way you getyour drug dealers and prostitutes and

your numbers runners.... They see thatthese things are the only way that theycan compete in the society, to get somesort of status. They realize that therearen’t any real doors open to them, and

so, to commit crime was the only thing todo, they can’t go back.37

The fact that these activities are often

&dquo;illegal&dquo; sometimes doesn’t really mat-ter ; since life out of jail often seems asbad as life inside prison, the deterrenteffect of punishment is negligible.Dunmeyer expresses this point clearlyas well:

It is not a matter of a guy saying, &dquo;I

want to go to jail [or] I am afraid of

jail.&dquo; Jail is on the street just like it is onthe inside. The same as, like when youare in jail, they tell you, &dquo;Look, if you dosomething wrong you are going to be putin the hole.&dquo; You are still in jail, in thehole or out of the hole. You are in jail inthe street or behind bars. It is the same

thing... 38

35. Our knowledge of ghetto crime drawsprimarily from the testimony of several ex-

ghetto criminals, as in Claude Brown, Man-child in the Promised Land (New York:Macmillan, 1965) ; Eldridge Cleaver, Post-Prison Writings and Speeches (New York: ARamparts Book by Random House, 1969) ;George Jackson, Soledad Brother (New York:Bantam Books, 1970) ; and Malcolm X, Auto-biography (New York: Grove Press, 1964).For more analytic studies, see Clifford Shawand Henry McKay, Juvenile Delinquency andUrban Areas (Chicago: University of ChicagoPress, 1969) ; and Marvin E. Wolfgang andFranco Ferracuti, The Subculture of Violence(New York: Barnes and Noble, 1967). Forinteresting evidence on the different attitudestoward crime of poor and middle-class youth,see Leonard Goodwin, "Work Orientations ofthe Underemployed Poor," Journal of Hu-man Resources, Fall 1969. For a bit of

"analytic" evidence on the critical interactionbetween job prospects and rates of re-

cidivism, see Robert Evans, Jr., "The LaborMarket and Parole Success," Journal of Hu-man Resources, Spring 1968.

36. For more on the structure of jobsavailable, see Ch. 2 in Gordon, op. cit. supranote 3. One often finds informal support forsuch contentions. A Manhattan prostituteonce said about her crimes, "What is there tosay. We’ve got a living to earn. Therewouldn’t be any prostitution if there weren’ta demand for it." Quoted in the New YorkTimes, May 29, 1970. A black high school

graduate discussed the problem at greaterlength with an interviewer in Herb Goro,The Block (New York: Random House,

1970) , p. 146: "That’s why a lot of brothersare out on the street now, stinging, robbingpeople, mugging, ’cause when they get a job,man, they be doing their best, and the whiteman get jealous ’cause he feel this man coulddo better than he doing. ’I got to get rid ofhim!’ So they fire him, so a man, he lose hispride.... They give you something, andthen they take it away from you.... And

people tell you jobs are open for everybodyon the street. There’s no reason for you to be

stealing. That’s a lie! If you’re a thief, I’d

advise you to be a good thief. ’Cause youworking, Jim, you ain’t going to succeedunless you got some kind of influence."

37. Claude Brown and Arthur Dunmeyer,"A Way of Life in the Ghetto," in Gordon,op. cit. supra note 3, p. 292.

38. Id., p. 293. A friend of Claude Brown’smade a similar point about the ineffec-



176

In much the same way, organizedcrime represents a perfectly rationalkind of economic activity.39 Activitieslike gambling and prostitution are

illegal for varieties of historical rea-

sons, but there is a demand for thoseactivities nonetheless. As Donald

Cressey writes: &dquo;The American con-federation of criminals thrives becausea large minority of citizens demandsthe illicit goods and services it has forsale.&dquo;4° Clark makes the same point,arguing that organized crimes are es-sentially &dquo;consensual crimes...,desired by the consuming public.&dquo;41The simple fact that they are both

illegal and in great demand provides asimple explanation for the secrecy,relative efficiency, and occasional vio-lence of those who provide them. Innearly every sense the organization ofthe heroin industry, for example,bears as ra,tional and reasonable a

relationship to the nature of the prod-uct as the structures of the tobaccoand alcoholic beverages industriesbear to the nature of their own prod-ucts.42

Finally, briefly to amplify the thirdexample, corporate crime also repsresents a quite rational response to

life in capitalist societies. Corpora-tions exist to protect and augment thecapital of their owners. If it becomesdifficult to perform that function oneway, corporate officials will quiteinevitably try to do it another. WhenWestinghouse and General Electric

conspired to fix prices, for instance,they were resorting to one of manypossible devices for limiting the po-tential threat of competition to theirprice structures. Similarly, when Fordand General Motors proliferate newcar model after new car model, eachdiffering only slightly from its sib-

lings, they are choosing to protecttheir price struotures by whateconomists call &dquo;product differentia-tion.&dquo; In one case, the corporationswere using oligopolistic power quitedirectly; in the other, they rely on thepower of advertising to generate de-mand for the differentiated products.In the context of the perpetual andhighly competitive race among corpo-rations for profits and capital accumu-lation, each response seems quite rea-sonable. Sutherland made the same

points about corporate crime andlinked the behavior of corporations tolower-class criminality:

I have attempted to demonstrate thatbusinessmen violate the law with greatfrequency.... If these conclusions are

correct, it is very clear that the criminalbehavior of businessmen cannot be ex-

plained by poverty, in the usual sense, orby bad housing or lack of recreationalfacilities or feeblemindedness or emotion-al instability. Business leaders are capa-ble, emotionally balanced, and in no

tiveness of the threat of jail (Brown, op. cit.supra note 35, p. 412) : "When I go to jailnow, Sonny, I live, man. I’m right at home....When I go back to the joint, anywhere I go,I know some people. If I go to any of the jailsin New York, or if I go to a slam in Jersey,even, I still run into a lot of cats I know. It’salmost like a family."

39. For two of the best available analysesof organized crime, see Donald Cressey, Theft of the Nation: The Structure and Operationsof Organized Crime (New York: Harper &

Row, 1969) ; and Norval Morris and GordonHawkins, The Honest Politician’s Guide to

Crime Control (Chicago: University of Chi-cago Press, 1969) .

40. Cressey, op. cit. supra note 39, p. 294.41. Clark, op. cit. supra note 3, p. 68.42. As Cressey (op. cit. supra note 39)

points out, for instance, it makes a great dealof sense in the heroin industry for the

supplier to seek a monopoly on the source ofthe heroin but to permit many individual

sellers of heroin at its final destination,usually without organization backing, be-

cause the risks occur primarily at the con-sumers’ end.



177

sense pathological.... The assumptionthat an offender must have some such

pathological distortion of the intellect orthe emotions seems to me absurd, and ifit is absurd regarding the crimes of busi-nessmen, it is equally absurd regardingthe crimes of persons in the lower eco-

nomic class.43

C. CLASS INSTITUTIONS ANDDIFFERENCES AMONG CRIMES

If most crime in the United Statesin one way or another reflects thesame kind of rational response to the

insecurity and inequality of capitalistinstitutions, what explains the mani-fold differences among different kindsof crimes? Some crimes are muchmore violent than others, some aremuch more heavily prosecuted, andsome are much more profitable. Why?As a first step in explaining differ-

ences among crimes, I would applythe general radical perspective in a

relatively straightforward manner andargue quite simply that many of themost important differences amongdifferent kinds of crime in this coun-

try are determined by the structure of fclass institutions in our society and bythe class biases of the State. That

argument has two separate com-

ponents.First, I would argue that many of

the important differences amongcrimes in this society derive quite di-rectly from the different socio-econom-ic classes to which individuals belong.Relatively afHuent citizens have accessto jobs in large corporations, to insti-tutions involved in complicated papertransactions involving lots of money,and to avenues of relatively unob-trusive communication. Members ofthose classes who decide to break the

law have, as Clark puts it, &dquo;an easier,less offensive, less visible way of doingwrong.&dquo;44 Those raised in poverty, onthe other hand, do not have such easyaccess to money. If they are to obtainit criminally, they must impinge onthose who already have it or direct itsflow. As Robert Morgenthau, a

former federal attorney, has written,those growing up in the ghetto &dquo;will

probably never have the opportunityto embezzle funds from a bank or to

promote a multimillion dollar stockfraud scheme. The criminal wayswhich we encourage [them] to choosewill be those closest at hand-fromvandalism to mugging to armed rob-bery.&dquo;45

Second, I would argue that the bi-ases of our police, courts, and prisonsexplain the relative violence of manycrimes-that many of the differencesin the degree of violence among dif-ferent kinds of crime do not cause the

selectivity of public concern aboutthose crimes but are in fact caused bythat selectivity. For a variety of histor-ical reasons, as I noted above, we havea dual system of justice in this coun-try; .the police, courts, and prisons paycareful attention to only a few crimes.It is only natural, as a result, thatthose who run the highest risks ofarrest and conviction may have to relyon the threat or commission of vio-lence in order to protect themselves.Many kinds of ghetto crimes generateviolence, for instance, because the

participants are severely prosecutedfor their crimes and must try to pro-tect themselves however they can.

Other kinds of ghetto crimes, like thenumbers racket, are openly tolerated

43. Edwin H. Sutherland, "The Crime of

Corporations," in Gordon, op. cit. supra note3, p. 310.

44. Clark, op. cit. supra note 3, p. 38.45. Robert Morgenthau, "Equal Justice

and the Problem of White Collar Crime,"The Conference Board Record, August 1969,

p. 20.



178

by the police, and those crimes rarelyinvolve violence. It may be true, as

Clark argues, that &dquo;violent crime

springs from a violent environ-ment,&dquo;46 but violent environmentslike the ghetto do not always produceviolent crimes. Those crimes to whichthe police pay attention usually in-volve violence, while those which the

police tend to ignore quite normallydo not. In similar ways, organizedcrime has become violent historically,as Cressey especially argues,47 princi-pally because its participants are oftenprosecuted. As long as that remainstrue, the suppliers of illegal goodsrequire secrecy, organization, and a

bit of violence to protect their liveli-hood. Completely in contrast, corpo-rate crime does not require violencebecause it is ignored by the police;corporate criminals can safely assumethey do not face the,threat of jail anddo not therefore have tao cover theirtracks with the threat of harmingthose who betray them. When Lock-heed Aircraft accountants and execu-tives falsified their public reports inorder to disguise cost overruns on theC-5A airplane in 1967 and 1968, forinstance, they did not have to forceDefense Department officials at knife-point to play along with their falsifica-tions. As Robert Sherrill reports in hisinvestigation of the Lockheed affair,the Defense Department officials wereentirely willing to cooperate.48 &dquo;This

sympathy,&dquo; he writes, &dquo;was reflectedin orders from top Air Force officialsto withhold information regardingLockheed’s dilemma from all reportsthat would be widely circulated.&dquo; If

only local police were equally sympa-

thetic to the &dquo;dilemmas&dquo; of street-

corner junkies, the violent patterns ofdrug-related crimes might be consid-erably transformed.49

In short, it seems important to viewsome of the most important differ-ences among crimes-differences intheir violence, their style, and their

impact-as fundamental outgrowthsof the class structure of society andthe class biases of our major institu-tions, including the State and its sys-tem of enforcement and administra-tion of justice. Given that argument,it places a special burden on attemptsto explain the historical sources of theduality of the public system of justicein this country, for that duality, cou-pled with ,the class biases of other

institutions, plays an important rolein determining the patterns of Ameri-can crime.

D. THE SOURCES OF DUALITY

One can explain the duality of ourpublic system of justice quite easily, itseems to me, if one is willing to viewthe State through the radical perspec-tive. The analysis involves answers totwo separate questions. First, one

must ask why the State ignores certainkinds of crimes, especially white-collarcrimes and cor,porate crimes. Second,given that most crimes among the

poor claim the poor as their victims,one must ask why the State bothersto worry so incessantly about thosecrimes.

The answer to the first questiondraws directly from the radical theory

46. Clark, op. cit. supra note 3, p. 39.47. Cressey, op. cit. supra note 39.48. Robert Sherrill, "The Convenience of

Being Lockheed," Scanlan’s Monthly, August1970, p. 43.

49. It is possible to argue, as this pointsuggests, that heroin addicts would not be

prone either to violence or to crime ifheroin were legal and free. The fact that it isillegal and that the police go after itsconsumers means that a cycle of crime andviolence is established from which it becomes

increasingly difficult to escape.



179

of the State. According to the radicaltheory, the government in a capitalistsociety like the United States exists

primarily to preserve the stability ofthe system which provides, preserves,and protects returns to the owners ofcapital. As long as crimes among thecorporate class tend in general to

harm members of other classes, likethose in the &dquo;consuming&dquo; class, theState will not spontaneously move toprevent those crimes from takingplace. On the other hand, as Paul

Sweezy has especially argued,50 theState may be pressured to prosecutethe wealthy if their criminal practicesbecome so egregiously offensive thattheir victims may move to overthrowthe system itself. In those cases, theState may punish individual membersof the class in order to protect theinterests of the entire class. Latent

opposition to the practices of corpora-tions may be forestalled, to pick sever-al examples, by token public efforts toenact and enforce antitrust, truth-in-

lending, antipollution, industrial safe-ty, and auto safety legislation. As

,James Ridgeway has most clearlyshown in the case of pollution,51however, the gap between the enact-ment of the statutes and their effec-tive enforcement seems quite caver-

nous.52

The answer to the second questionseems slightly more complicated histo-rically. Public responses to crime

among the poor have changed period-ically throughout American history,varying according to changes in the

patterns of the crimes themselves andto changes in public morality. Thesubtlety of that historical processwould be difficult to trace in this kindof discussion. But some patterns doseem clear.

Earlier in American history, as

Clark has pointed ou~t,53 we intendedto ignore many crimes among the

poor because those crimes rarely im-pinged upon the lives of the moreafHuent. Gambling, prostitution, dope,and robbery seemed to flourish inthe slums of the early twentieth cen-tury, and the police rarely moved tointervene. More recently, however,some of the traditional patterns ofcrime have changed. Two dimensionsof change seem most important. Onthe one hand, much of the crime hasmoved out of the slums: &dquo;Our con-

cern arose when social dynamics andpopulation movements brought crimeand addiction out of the slums andinflicted it on or threatened the pow-erful and well-to-do.&dquo;54 On the other

hand, the styles in which ghetto crimi-nals have fulfilled their criminal in-tent may have grown more hostilesince World War II, flowing through

50. Sweezy, supra note 31.51. James Ridgeway, The Politics of Ecol-

ogv (New York: Dutton, 1970).52. This rests on an assumption, of course,

that one learns much more about the priori-ties of the state by looking at its patterns ofenforcement than by noting the nature of itsstatutes. This seems quite reasonable. The

statutory process is often cumbersome,whereas the patterns of enforcement can

sometimes be changed quite easily. (Stigler,supra note 24, makes the same point.) Fur-

thermore, as many radicals would argue, theState in democratic societies can often supportthe capitalist class most effectively by selec-tive enforcement of the laws rather than by

selective legislation. For varieties of relativelycomplicated historical reasons, selective en-

forcement of the law seems to arouse less fearfor the erosion of democratic tradition than

selective legislation itself. As long as we havestatutes which nominally outlaw racial ine-

quality, for instance, inadequate enforcementof those laws seems to cause relatively littlefuror; before we had such laws in this

country, protests against the selective statutescould ultimately be mounted.

53. Clark, op. cit. supra note 3, pp. 55-56.54. Id., p. 55.



180

what I have elsewhere called the

&dquo;promised land effect.&dquo;55 As ClaudeBrown points out, second-generationNorthern blacks-the slum-born sonsand daughters of Southern migrants-have relatively little reason to hopethat their lives will improve. Theirparents migrated in search of bettertimes, but some of chose born in theNorth probably believe that their ave-nues for escape from poverty have

disappeared.The children of these disillusioned col-

ored pioneers inherited the total lot oftheir parents-the disappointments, the

anger. To add to their misery, they had

little hope of deliverance. For where doesone run to when he’s already in the

promised land?56

Out of frustration, some of the crime

among younger ghetto-born blacks

may be more vengeful now, more

concerned with sticking it to whitey.Coupled with the spread of ghettocrime into other parts of the city, thissymbolic expression of vengefulnessundoubtedly heightens the fear that

many affluent citizens feel about ghet-to crime. Given their influence withthe government, they quite naturallyhave moved toward increasing publicattention to the prevention and pun-ishment of crimes among the poor.Once the patterns of public duality

have been established, of course, theyacquire a momentum and dynamic alltheir own. To begin with, vested in-terests develop, deriving their liveli-hood and status from the system. The

prison system, like the defense indus-try, becomes a power of its own, withaccess to public bureaucracies, withworkers to support, and with power todefend. Eldridge Cleaver has made

special note of this feature of our

public system:

The only conclusion one can draw isthat the parole system is a proceduredevised primarily for the purpose of run-ning people in and out of jail-most ofthem black-in order to create andmaintain a lot of jobs for the white

prison system. In California, which I

know best-and I’m sure it’s the same in

other states-there are thousands andthousands of people who draw their liv-

ing directly or indirectly from the·prisonsystem; all the clerks, all the guards, allthe bailiffs, all the people who sell goodsto the prisons. They regard the inmates asa sort of product from which they alldraw their livelihood, and the part of the

crop they keep exploiting most are theblack inmates.57

In much the same way, the policebecome an interest and a power oftheir own.58 They are used and

manipulated by the larger Society toenforce the law selectively: &dquo;We send

police to maintain order, to arrest, tojail-and to ignore vital laws alsointended to protect life and to pre-vent death....&dquo;59 As agents of selec-tive social control, the police also

inevitably become the focus of in-

creasing animosity among those theyare asked selectively to control.

Manipulated by the larger society,hated by chose at the bottom, the

55. Gordon, op. cit. supra note 3.56. Brown, op. cit. supra note 35, p. 8.

57. Cleaver, op. cit. supra note 35, p. 185.58. For some useful references on the

police, see Paul Chevigny, Police Power (NewYork: Pantheon, 1969) ; William Westley,Violence and Police (Cambridge, Mass.:

M.I.T. Press, 1970) ; and James Q. Wilson,Varieties of Police Behavior (New York:

Basic Books, 1969). For a review of that

literature, with some very interesting com-ments about the police, see Murray Kemp-ton, "Cops," New York Review of Books,Nov. 5, 1970. For one discussion of the firsthints of evidence that there may not, in fact,be any kind of identifiable relationship be-tween the number of police we have andtheir effectiveness, see Richard Reeves, "Po-lice : Maybe They Should Be Doing Some-thing Different," New York Times, Jan. 24,1971.

59. Clark, op. cit. supra note 3, p. 137.



181

police tend to develop the mentalityof a &dquo;garrison.&dquo;60 They eventuallyseek to serve neither she interests ofthe larger society nor the interests ofthe law but the interests of the gar-rison. One reaches the point, finally,where police interests interject an in-termediate membrane screening the

priorities of the state and society onthe one hand and the interests oftheir victims on the other. &dquo;Whenenforcement of the law conflicts withthe ends of the police, the law is notenforced. When it supports the endsof the police, they are fully behind it.When it bears no relation to the endsof the police, they enforce it as a

matter of routine.&dquo;61

E. THE IMPLAUSIBILITY OF REFORM

One needs to ask, finally, whetherthese patterns can be changed and thetrends reversed. tan we simultaneous-ly eradicate the causes of crime andreform our dual system of justice? Atthe heart of that question lies the

question posed at the beginning ofthis essay, for it simultaneously raisesthe necessity of explaining the fail-ures of our present system to preventthe crime it seeks most systematicallyto con~trol.

I would argue, quite simply, thatreform is implausible unless we

change the basic institutions uponwhich capitalism in the United Statesdepends. We cannot legitimately ex-pect ,to eradicate ithe initial causes ofcrime for two reasons. First, capital-ism depends quite substantially on thepreservation of the conditions of com-petition and inequality. Those condi-tions, as I argue above, will tend tolead quite inevitably to relatively per-vasive criminal behavior; withoutthose conditions, (the capitalist system

would scarcely work at all. Second, asmany have argued, the generalpresence of racism in this country,though capitalists may not in facthave create it, tends .to support andmaintain the power of the capitalistsas a class by providing cheap laborand dividing the working class. Giventhe substantial control of capitalistsover the policies and priorities of theState, we cannot easily expect to prodthe State to eliminate the fundamen-tal causes of racism in this country. Intat respect, it seems likely that theparticular inequalities facing blacksand their consequent attraotion to the

opportunities available in crime seemlikely to continue.Given expectations that crime will

continue, it seems equally unlikelythat we shall be able to reform our

systems of prosecution and punish-ment in order to mitigate their harm-ful effects on criminals and to equal-ize their treatment of different kindsof crime. First and superficially, as Inoted above, several important andpowerful vested interests have ac-

quired a stake in the current systemand seem likely to resist efforts to

change it. Second and more funda-

mentally, the cumulative effect of thepatterns of crime, violence, prosecu-tion, and punishment in this countryplays an important role in helpinglegitimize and stabilize the capitalistsystem. Although capitalists as a classmay not have created the current pat-terns of crime and punishment, thosepatterns currently serve their interestsin several different ways. We should

expect that the capitalists as a classwill hardly be able to push reform ofthe system. Given their relative reluc-tance to reform the system, we should

expect to be able to push reform onlyin the event that we can substantiallychange the structure of power to

which the State responds.60. Westley, op. cit. supra note 58.61. Ibid.



182

The current patterns of crime and

punishment support the capitalist sys-tem in three different ways.

First, the pervasive patterns of se-

lective enforcement seem to reinforcea prevalent ideology in this societythat individuals, rather than institu-tions, are to blame for social prob-lems. Individuals are criminally prose-cuted for motor accidents because of

negligent or drunken driving, for in-stance, but auto manufacturers are

never criminally prosecuted for the

negligent construction of unsafe carsor for their roles in increasing thelikelihood of death through air pollu-tion. Individual citizens are often

prosecuted and punished for violenceand for resisting arrest, equally, butthose agents of institutions, like policeand prison guards, or institutionsthemselves, like Dow Chemical, are

never prosecuted for inflicting unwar-ranted violence on others. These pat-terns of selectivity reinforce our per-vasive preconceptions of the invulner-ability of institutions, leading us to

blame ourselves for social failure; thispattern of individual blame, as Ed-wards and MacEwan have especiallyargued,62 plays an important role inlegitimizing the basic institutions ofthis kind of capi,talist society.

Second, and critically im,portant,the patterns of crime and punishmentmanage &dquo;legitimately&dquo; to neutralizethe potential opposition to the systemof many of our most oppressed citi-zens. In particular, the system servesultimately ,to keep thousands of menout of the job market or trapped inthe secondary labor market by perpet-uating a set of institutions whichserves functionally to feed large num-bers of blacks (and poor whites)through the cycle of crime, imprison-

ment, parole, and recidivism. The sys-tem has this same ultimate effect in

many different ways. It locks up manyfor life, first of all, guaranteeing thatthose potentially disaffected souls

keep &dquo;out of trouble.&dquo; As for thosewhom it occasionally releases, it tendsto drive,them deeper into criminality,intensifying their criminal and vio-lent behavior, filling their heads withparanoia and hatred, keeping themperpetually on the run and unable,ultimately, to organize with others tochange the institutions which pursuethem. Finally, it blots their recordswith the stigma of criminality and, bydenying them many decent employ-ment - opportunities, effectively pre-cludes the reform of even those whovow to escape the system and to go&dquo;straight.&dquo;63The importance of this neutraliza-

tion should not be underestimated. Ifall young black men in this countrydo not eventually become criminals,most of them are conscious of the trapinto which they might fall. The lateGeorge Jackson wrote from prison:&dquo;Blackmen born in the U.S. and for-tunate enough to live past the age ofeighteen are conditioned to accept theinevitability of prison. For most of us,it simply looms as the next phase in asequence of humiliations. &dquo;64 Andonce they are trapped, the cycle con-tinues almost regardless of the will ofthose involved. Prison, parole, andthe eventual return to prison becomestandard points on the itinerary.Cleaver has written:

I noticed that every time I went backto jail, the same guys who were in

62. Supra note 29.

63. For the most devastating story abouthow the neutralization occurs to even themost innocent of ghetto blacks, see Eliot

Asinof, People vs. Blutcher (New York:

Viking, 1970).64. Jackson, op. cit. supra note 35.



183

Juvenile Hall witli me were also there

again. They arrived there soon after I gotthere, or a little bit before I left. Theyalways seemed to make the scene. In theCalifornia prison system, they carry youfrom Juvenile Hall to the old folks’ colo-ny, down in San Luis Obispo, and waitfor you to die. Then they bury you there.... I noticed these waves, these gener-ations ... graduating classes moving upfrom Juvenile Hall, all the way up.65And those who succeed finally in un-derstanding the trap and in pullingthemselves out of it, like Malcolm X,Claude Brown, Eldridge Cleaver, andGeorge Jackson, seem to succeed pre-cisely because they understood howdebilitating the cycle becomes, howtotally dehumanizing it will remain.Another black ex-con has perfectlyexpressed the sudden insight whichallowed him to pull out of the trap:

It didn’t take me any time to decide Iwasn’t going back to commit crimes. Be-cause it’s stupid, it’s a trap, it only makesit easier for them to neutralize you. It’shard to explain, because you can’t say it’sa question of right and wrong, but of

being free or [being] trapped.66If the system did not effect this neu-tralization, if so many of the poorwere not trapped in the debilitatingsystem of crime and punishment, theymight gather the strength to opposethe systems that reinforces their mis-

ery. Like many other institutions inthis country, the system of crime andpunishment serves an important func-tion for the capitalist class by dividingand weakening those who might po-tentially seek to overthrow the capi-talist system. Although the capitalistshave not created the system, in any

direct sense, they would doubtlesslyhate to have to do without it.67The third and perhaps most impor-

tant functionally supportive role ofthe current patterns of crime and

punishment is that those patterns al-low us to ignore some basic issuesabout the relationships in our societybetween institutions and individuals.

By treating criminals as animals andmisfits, as enemies of the state, we arepermitted to continue avoiding somebasic questions about the dehumaniz-ing effects of our social institutions.We keep our criminals out of sight, sowe are never forced to recognize anddeal with the psychic punishment weinflict on them. Like the schools andthe welfare system, the legal systemturns out, upon close inspection, to berobbing most of its &dquo;clients&dquo; of thelast vestiges of their personal dignity.

65. Cleaver, op. cit. supra note 35, pp.154-55.

66. Bell Gale Chevigny, "After the Deathof Jail," Village Voice, July 10, 1969; partiallyreprinted in Gordon, op. cit. supra note 3.

67. One should not underestimate the

importance of this effect for quantitative as

well as qualitative reasons. In July 1968, forinstance, an estimated 140,000 blacks were

serving time in penal institutions at federal,state, and local levels. If the percentage ofblack males in prison had been as low as theproportions of white men (by age groups),there would have been only 25,000 blacks injail. If those extra 115,000 black men werenot in prison, they would likely be unem-

ployed or intermittently employed. In addi-tion, official labor force figures radicallyundercount the number of blacks in the

census because many black males arc simplymissed by the census-taker. In July 1968,almost one million black males were

"missed" in that way. On the conservative

assumption that one-fifth of those "missingmales" were in one way or another evadingthe law, involved in hustling, or otherwise

trapped in the legal system, a total of 315,000black men who might be unemployed were itnot for the effects of the law were not

counted in "measured" unemployment statis-tics. Total "measured" black male unemploy-ment in July 1968 was 317,000, so that the

total black unemployment problem might benearly twice as large as we "think" it is were

it not for the selective effects of our police,courts, and prisons on black men.



184

Each one of those institutions, in itsown way, helps us forget about theresponsibilities we might alternativelyassume for providing the best possibleenvironment within which all of uscould grow and develop as individu-als. Cleaver sees this &dquo;role&dquo; of the

system quite clearly:Those who are now in prison could be

put through a process of real rehabilita-tion before their release.... By rehabili-tation I mean they would be trained forjobs that would not be an insult to theirdignity, that would give them some senseof security, that would allow them to

achieve some brotherly connection withtheir fellow man. But for this kind ofrehabilitation to happen on a large scalewould entail the complete reorganizationof society, not to mention the prisonsystem. It would call for the teaching of anew set of ethics, based on the principleof cooperation, as opposed to the present-ly dominating principle of competition.It would require the transformation ofthe entire moral fabric .... 68

By keeping its victims so thoroughlyhidden and rendering them so appar-ently inhuman, our system of crimeand punishment allows us to forgethow sweeping a &dquo;transformation&dquo; ofour social ideology we would requirein order to begin solving the problemof crime. The more we forget, themore protected the capitalists remainfrom a thorough re-examination ofthe ideological basis of the institu-tions upon which they depend.

It seems useful to summarize brieflythe analysis outlined in this section,in order both to emphasize the con-nections among its arguments and toclarify its differences with other&dquo;models&dquo; of crime and punishment.Most crimes in this country share a

single important similarity-they rep-resent rational responses to the com-

petitiveness and inequality of life incapitalist societies. (In this emphasison the rationality of crime, the analy-sis differs with the &dquo;conventional pub-lic analyses&dquo; of crime and resemblesthe orthodox economic approach.)Many crimes seem very different at

the same time, but many of theirdifferences-in character and degreeof violence-can usefully be ex-

plained by the structure of class insti-tutions in this country and the dualityof the public system of the enforce-ment and administration of justice.(In this central deployment of theradical concepts of class and the class-biased State, the analysis differs funda-mentally with both the &dquo;public&dquo; andthe orthodox economic perspectives.)That duality, in turn, can fruitfullybe explained by a dynamic view of theclass-biased role of public institutionsand the vested interests which evolveout of the State’s activities. For manyreasons, finally, it seems unlikely thatwe can change the patterns of crimeand punishment, for the kinds of

changes we would need would appearsubstantially to threaten the stabilityof the capitalist system. If we managedsomehow to eliminate ghetto crime,for instance, the competitiveness, ine-qualities, and racism of our institu-tions would tend to reproduce it. Andif, by chance, the pattern of ghettocrime was not reproduced, the capital-ists might simply have to invent someother way of neutralizing the poten-tial opposition of so many black men,against which they might once againbe forced to rebel with &dquo;criminalacts.&dquo; It is in that sense of fundamen-

tal causality that we must somehowchange the entire structure of institu-tions in this country in order to elimi-nate the causes of crime.

68. Cleaver, op. cit. supra note 35, pp. 179,182.



185

5. A Normative View of Crime

Strangely enough, I find it easiest toevoke an alternative normative viewof crime and to compare it with ourcurrent social responses to the prob-lem by drawing on a recent exchangein the legal literature.

In a widely heralded article writtenin 1964, Herbert Packer, a leadingAmerican legal expert on criminal

process, argued that most legal discus-sion of criminal procedure involves aconflict (or dialogue) between two

different models of the criminal proc-ess. He called one of these the

&dquo;Crime Control Model&dquo; and the otherthe &dquo;Due Process Model.&dquo; The em-

phases embodied in each model close-ly resemble the difference in emphasisbetween the general conservative andliberal views of crime, respectively, asdescribed in the second section of thisarticle. The Crime Control Model,according to Packer, &dquo;is based on the

proposition that the repression of

criminal conduct is by far the most

important function to be performedby the criminal process.&dquo; The DueProcess Model, on the other hand,derives from the &dquo;concept of the pri-macy of the individual and the com-

plementary concept of limitation onofficial power.&dquo;189

In reply to Packer’s article, JohnGriffiths argued that Packer’s two

models represent qualitatively similarviews of the relationship between thecriminal and society, deriving fromsome common ideological assump-tions about the law.70 Griffiths calls

this set of shared assumptions the&dquo;Battle Model of the Criminal Proc-ess.&dquo; He argues that both the &dquo;con-

servative&dquo; and &dquo;liberal&dquo; views derivefrom a common vision of conflict and

hostility between the aberrant, devi-ant individual on the one hand andthe social &dquo;order&dquo; on the other. Toillustrate the communality of the twomodels proposed by Packer, Griffiths

suggests a third &dquo;model&dquo; which closelyresembles what I presume to be theradical vision of how society shouldrespond to its &dquo;criminals.&dquo; He callsthis the &dquo;Family Model of the Crimi-nal Process,&dquo; suggesting that society’streatment of criminals could easily bepatterned after the treatment byfamilies of those family members whobetray the family trust. The FamilyModel begins from an assumption,Griffiths writes, of &dquo;reconcilable-even mutually supportive-interests, astate of love.&dquo;71 In contrast to theBattle Model, the Family Modelwould propose that &dquo;we can make

plain that while the criminal has

transgressed, we do not therefore cuthim off from us; our concern anddedication to his well-being continue.We have punished him and drawnhim back in among us; we have notcast him out to fend for himself

against our systematic enmity.&dquo; As inthe best families, society would workactively, supportively, and lovingly torestore the state of trust and mutual

respect upon which the family andsociety should both be based. Ratherthan forcing the criminal to admit hisfailure and reform himself, we wouldall admit our mutual failures and seekto reform the total community-inwhich effort the criminal would playan important, constructive, and edu-cative role.

69. Herbert Packer, "Two Models of theCriminal Process," University of PennsylvaniaLaw Review, November 1964.

70. John Griffiths, "Ideology in CriminalProcedure, or a Third ’Model’ of the Crimi-nal Process," Yale Law Journal, January1970. 71. Id., p. 371.



186

The Battle Model, as Griffiths de-scribes it, obviously reflects not only&dquo;liberal&dquo; and &dquo;conservative&dquo; views ofcrime but the manifest reality of oursocial treatment of criminals in this

country; it is reflected exactly in a

psychiatrist’s recent description of theideology underlying the California

prisons:The people who run these places ...

believe that the way to get a man’s behav-ior to change is to impose very strictcontrols and take away everything hevalues and make him work to get it back.But that doesn’t make him change. It justgenerates more and more rage and hostil-

ity.72

The Family Model, in contrast, illus-trates the fundamentally different pri-orities which might motivate institu-tional responses to criminal behaviorin a radically different kind of society,one in which human needs were

served and developed by social institu-tions rather than sacrificed to the in-terests of a single dominant class.That vision of social response mayseem like a very distant dream in this

country, but it seems like a dream

worthy of all our most determined

pursuit.

72. Quoted in the New York Times, Feb.7, 1971, p. 64.



gordon 1973

Documents

view crime

whitecollar crime

organized crime

ghetto crime

problem of crime

kinds of crime

crime delinquencydavid

economics of crime toappear