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September|October 2003
Root Causes By Adam Cohen
The Quest to Be Called a Tribe By Michael Nelson
elsewhere

Root Causes

Turn-of-the-century Chicago had a radical idea: Don't just punish crime, but reform criminals and the society that produced them.

By Adam Cohen

"GEE, OFFICER KRUPKE," A SONG IN WEST SIDE STORY, offers a wry juvenile-delinquent's-eye view of criminal justice circa 1957. Members of the Jets gang explain that crime is the fault of society, not the individual. ("Society's played him a terrible trick/And sociologic'ly he's sick!") Its root causes, they argue, lie in economic and social disadvantage. ("Hey, I'm depraved on account I'm deprived.") And criminal tendencies are best addressed, the Jets insist, by medical professionals. ("This boy don't need a judge, he needs an analyst's care!")

Throughout most of American history, crime was viewed as a straightforward problem of men—and, more rarely, women—exercising their free will for evil ends. The law was there to tell people how to act, this classic view of crime held, and it was their duty to conform. "Let reverence for the laws . . . be taught in schools, in seminaries, and in colleges," Abraham Lincoln implored in a speech in 1838. "[L]et it become the political religion of the nation."

Yet by the mid-20th century, this conventional wisdom had been turned on its head. The progressive view that crime was society's doing had become so widespread that it was a suitable topic of satire for Broadway musicals. Michael Willrich's thoughtful new work, City of Courts: Socializing Justice in Progressive Era Chicago, helps us understand how America's ideas about crime and criminals were so radically transformed. Willrich, an assistant professor of history at Brandeis University, makes the provocative argument that progressive ideas about criminal law—what he calls "socialized justice"—got their start not in the ivy-covered halls of the academy or the U.S. Supreme Court, but in an unlikely legal backwater: the Chicago Municipal Court.

Willrich's study is ambivalent about the phenomenon he describes and he gives short shrift to some important parts of the story, notably race. But City of Courts is nonetheless a needed addition to American legal history and one that resonates today. With the legal pendulum swinging further away from defendants' rights with every Supreme Court term, Willrich's account can serve as a roadmap for those who want to restore more context—and compassion—to the criminal law.

IN THE EARLY 20TH CENTURY, federal judges struck down progressive legislation and forced their conservative vision on the nation. In 1905, the Supreme Court handed down Lochner v. New York, invalidating a New York law setting a maximum 10-hour workday for bakers as "meddlesome interferences with the rights of the individual." During the reactionary era that followed, the court routinely held that laws enacted to protect the health and safety of ordinary Americans violated the rights of big business.

But 1905 was also the year in which Chicago overhauled its municipal court system. Turn-of-the-century Chicago was a hub of progressive thought, centered in institutions like Jane Addams's Hull House—the famed settlement house that offered aid to immigrants and the poor—and the social science departments of the University of Chicago. When reformers pushed through the Municipal Court Act of 1905, they instantly wiped away an entrenched system of criminal courts that was as corrupt as it was dysfunctional.

Before the new court legislation, Chicago, like many small towns and villages, relied on a system of justices of the peace, individual judges who were not required to have any legal training. Their courts—popularly known as "justice shops"—dispensed jurisprudence in rough form. Few rules of procedure applied, politicking and favoritism were rampant, and the justices of the peace generally kept a share of the fines they imposed.

The progressive reform of the Chicago courts had two main components: a structural overhaul of the court system itself and a more scientific approach to handling crime and criminals. The structural re-forms followed the principles of the German sociologist Max Weber, who observed that modern governments are rules-oriented and rely heavily on bureaucratic structure. In place of the "justice shops," which were informal and widely dispersed around the city, the new regime created a modern judicial apparatus based in a central court building. The judges were legally trained professionals under the administrative guidance of a chief justice who were given clear rules and procedures to follow. And as the court reform movement gained momentum it adopted another progressive ideal: specialization. Dedicated courts were set up to handle domestic relations, moral offenses, and delinquent adolescents.

The new specialized courts helped in the second major innovation of the court-reform movement, undertaking a more scientific approach to meting out justice by digging down to the social causes of crime. As Willrich observes, a criminal case "was only the starting point for a much broader set of investigations and interventions that aimed not so much to punish crime but to reform criminals and the larger social world that had produced them." It was an article of faith among progressives that if individuals with distinct kinds of problems—wayward women, troubled youths, unreliable husbands—could be subjected to attention and treatment tailored to their specific difficulties, they could be cured of their antisocial behavior.

In the Domestic Relations Court, the judges used their authority to fix problems in the families that appeared before them. Much of the caseload was made up of husbands and fathers whose crime was failing to support their wives and children adequately, or failing to support them at all. Tough-minded male judges worked closely with more compassionate female social workers—a team approach that Ida Tarbell, the great muckraking journalist, approvingly called "a confessional and a hand of authority." The goal was not to send the laggard men to jail, but rather to inculcate in them an appreciation of their "natural and legal duty" to support their families.

The Boys' Court was the nation's first juvenile court designed to handle older boys from 17 to 21. Like other cities, Chicago believed that young people should be treated differently before the law, because they were less capable of forming the requisite intent to commit crimes and more amenable to being turned around and put on the right path. But the Boys' Court of Chicago was the only one in the nation with such a high age cut-off, born of a reformist belief that even these older boys deserved special consideration. When it started up, the headline in The Chicago Tribune declared, "Mercy Opens Boys' Court," and the emphasis was on looking for ways to give the defendant moral and social guidance, and a second—and third, and fourth—chance. "I have been in the Boys' Court seven times in a year," one youthful defendant told a representative of the Children's Bureau. "I got five breaks and got off light the other times, and I was guilty every time and done lots worse than they caught me for."

In Morals Court, judges applied the same forgiving approach to the scourge of prostitution. Reformers had long objected that justices of the peace generally dealt with prostitution simply by imposing fines—which often made the situation worse, by increasing the amount of money the women had to bring in. The progressives argued instead for probation, which would allow trained social workers to help guide the women toward more salubrious work. But few Chicago prostitutes asked for probation, and those who did often gave false names and addresses to elude the therapeutic guidance the court system had in mind. In a mockery of progressive ideals, the city's prostitutes took advantage of having their own court by making it a meeting place where johns and pimps could scope out, and arrange encounters with, the women.

One of the most innovative reforms of the Chicago Municipal Court—and one of the most troubling—was the Psychopathic Laboratory. Progressives are generally associated with the idea that social environment causes crime, and the Chicago reformers certainly believed that. But what is less well known is that they also believed strongly that biology and heredity played a role. For them, the cause was not nature or nurture, but both. Harry Olson, a former prosecutor who was the court's first chief justice, was a committed eugenicist. He believed, as many of his progressive contemporaries did, that "feeblemindedness"—a vaguely defined mental infirmity—was often the cause of criminality. The Psychopathic Laboratory was where these beliefs were put into action.

The laboratory served as an adjunct to the Chicago Municipal Court. Tens of thousands of defendants who appeared to have some kind of mental incapacity were referred to the laboratory, as were complainants and witnesses. Its director used primitive psychological tests, such as asking a subject to look at a picture and draw it from memory, to declare thousands of people hereditary mental defectives, with a propensity to commit crime. Many of his subjects—nearly 70 percent of the men and 90 percent of the women, according to one study—were committed to institutions for the feebleminded or insane. Willrich tells of one defendant whose family was distraught when he did not receive the expected one-year prison sentence for stealing rings; he was instead sent to an institution, where the length of his stay would be indeterminate.

WILLRICH GIVES AN ADMIRABLY DETAILED ACCOUNT of the workings of the Municipal Courts, though his analysis has some blind spots. He does not fully make the case that Chicago's reforms ushered in progressive law on a national scale. He describes how many states established "judicial councils" in the 1910s and 1920s that imposed Chicago-style bureaucratization on their court systems. But progressive law went on to have quite a run, championed by the Warren Court and by lower-court judges like David Bazelon and J. Skelly Wright. The line between the Municipal Court Act of 1905 and later innovations, such as Judge Bazelon's refashioning of the standard for being found not guilty by reason of insanity in Durham v. United States, remains largely unexplored.

And Willrich does not give race the attention it deserves. Chicago was one of the North's most racially polarized cities; its 1919 race riots were among the nation's bloodiest, with 38 people killed and more than 500 injured. But Willrich devotes little space to how blacks' experience with socialized criminal law differed from whites'. He is puzzled as to why the Boys' Court released 70 percent of its young defendants in 1914, far more than the city's other criminal courts, but only 26 percent in 1926, far less. He does not consider the possibility that, as the Great Migration of the 1910s and 1920s flooded Chicago with young black men, the white judges of the court may have been less inclined to see young delinquents as good men temporarily on the wrong path.

For all its virtues, socialized law had some significant drawbacks. Because the focus was less on adjudicating guilt and innocence than on addressing the social problems inherent in the case, defendants were often stripped of the due process rights they would have had in a straightforward criminal trial. The progressive approach to crime was often a license for social workers and similar types to intrude on the lives of poor and working-class people and impose middle-class morality on them. Judges and court-appointed professionals had no compunction about telling husbands that they could not drink or ordering them to work longer hours. Nor did judges hesitate to tell men how much they had to spend on the upkeep of their households or women how much they could pay for a new hat.

It is the eugenics portion of the reform agenda, however, that had the darkest implications. The same instincts that led to the creation of the Psychopathic Laboratory led progressives to enact state sterilization laws that authorized involuntary sterilization of "feebleminded" women. The targets of these laws were often not women who were mentally deficient but those who had engaged in sex outside of marriage or otherwise shocked middle-class sensibilities. If the Chicago Municipal Court was responsible for a more enlightened national approach to crime and criminals, it must also bear some responsibility for Buck v. Bell, the notorious 1927 Supreme Court decision upholding Virginia's eugenic sterilization law. Carrie Buck's real offense, it now seems clear, was becoming pregnant out of wedlock. The Supreme Court readily accepted Virginia's dubious determination that Buck and her infant daughter were mentally defective and ruled—under Oliver Wendell Holmes Jr.'s rallying cry, "Three generations of imbeciles are enough"—that Buck could be sterilized against her will. That decision, which was joined by progressive hero Louis Brandeis, paved the way for some 60,000 women to be involuntarily sterilized based on dubious evaluations of their mental fitness.

It would be a pleasure to report that Willrich has come to grips with this bittersweet history of socialized law in an interesting way, or that he has ideas for how the good aspects of reform could have been separated from the bad. But he concludes with the literary equivalent of a shrug, saying that even if we accept that the forces of society and heredity can overwhelm individual choice in producing criminality, "the question of what to do with this knowledge remains stubbornly elusive."

Still, the book makes it clear there was much to admire in the reformers' agenda and that it was, in many ways, a considerable improvement on the system it replaced. The issue of socialized law is worth considering not because it is in fashion but because we have been rapidly moving away from it. In recent decades, when the criminal law has entered the public debate at all, it has been in anti-progressive sound bites. Nancy Reagan's advice to "Just Say No" to drugs was a bumper sticker for the free will theory of criminal law. George Bush's 1988 ads saddling Michael Dukakis with Willie Horton were a sneering assault on the idea of parole and of turning troubled lives around.

The backward swing of this pendulum has been particularly pronounced in the courts, which have been hard at work reviving individualistic notions of criminal law. The Supreme Court's current thinking on the subject was evident last March when it upheld California's "three strikes and you're out" law. In one of the paired cases, a man was given a 50-year sentence for shoplifting $153.54 worth of children's videotapes. The court majority, which rejected an Eighth Amendment challenge claiming that the sentence was cruel-and-unusual punishment, showed no interest in considering the root causes of the crimes, even though the video shoplifter engaged in his petty theft to support a drug habit, and the defendant in the second case, who limped out of a golf pro shop with golf clubs concealed in his pants leg, had AIDS and was blind in one eye.

TO SEE THE IMPACT OF THESE RESURGENT NOTIONS of individualistic law, you need only look at the nation's prisons and jails. The inmate population has, for the first time in history, passed two million, and it continues to rise. Many of these prisoners are behind bars because of laws that require heavy sentences for small-time drug offenders or repeat petty criminals. This soaring prison and jail population is a huge expense for financially strapped state and local governments. And it is the easy way out, writing people off rather than doing the hard work of addressing root causes and trying to turn lives around.

In the current political climate, it is hard to imagine this changing any time soon. Even with crime rates plummeting to their lowest levels in decades, politicians are as eager as ever to present themselves as tough on crime. The present administration is on an ideological mission to fill the federal courts with judges who lack compassion for, and even interest in, the criminal defendants who come before them. Probation, parole, and alternatives to incarceration seem to exist only because of inertia; conservatives have not yet succeeded in wiping them out entirely.

It is a hostile environment for socialized law. But at the start of the 20th century, it was much of the same. The greatest contribution of City of Courts may be the lesson it offers to those unhappy with the status quo: that once upon a time, a small group of men and women helped change a nation's legal culture by thinking idealistically—and acting locally.

Adam Cohen is a member of the Editorial Board of The New York Times and co-author of American Pharaoh: Mayor Richard J. Daley: His Battle for Chicago and the Nation.

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