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Well, for one thing, enforcing laws does make it less likely that those particular laws will be broken. The police can’t completely eliminate fraud, but enforcing fraud deters at least some potential con artists from practicing their devious craft. If there’s a behavior that people in a society want there to be less of, putting cops on the case is a good idea even if they can’t stop every single criminal.
For another thing, though, enforcing crime may actually have benefits for the rest of society. Besides the fact that everyone else sees the law upheld and is taught to think twice before breaking the law themselves, the enforcement of laws can be something that brings people together. Being united in disapproval, after all, is still being united. Whether it’s petty crime in a neighborhood or sensational crime that makes national headlines, crime gives everyone something to talk about and to agree on. In effect, monitoring and supporting law enforcement is part of mainstream culture, and like all mainstream culture (see Chapter 5), it can create a common denominator that unites even people who are very different.
In ancient Rome, crowds would fill the Coliseum to watch criminals be thrown to the lions; in medieval society, public hangings were popular entertainment. Societies today are a little more delicate than that, but spectacular criminal trials can still draw attention across a country — even around the world.
The Social Construction of Crime
Although some crimes (for example, kidnapping) are very widely outlawed and others (for example, pumping your own gas) are outlawed only in a few places, all crime is socially constructed in that each society has to decide for itself what counts as a “crime.” In this section, I explain how crime is constructed in two places: in the courts and on the streets.
In the courts
In 1692, over two dozen people in Salem, Massachusetts were executed, or died in prison, as part of a series of events that became known as the Salem Witch Trials. Men and women were convicted of witchcraft based on confessions forced through means like being pressed by rocks, and by the highly dubious testimony of neighbors — sometimes neighbors with a grudge to bear — who said that they had been haunted or cursed by the accused.
It’s one of the most shocking episodes in American history, and it’s been widely studied and discussed; Salem itself remains a popular destination, especially around Halloween, for tourists curious to see the town where the trials took place.
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Many accounts portray the witch trials as a sort of inexplicable craze that overtook an otherwise normal town, but sociologist Kai Erikson wrote an entire book (Wayward Puritans: A Study in the Sociology of Deviance) explaining why the trials, though tragic, make sense in social context. Seventeenthcentury New England Puritans were God-fearing people who sincerely believed that the Devil was at work on Earth in very concrete ways and that the courts were an appropriate place for his deeds to be exposed and punished. What’s more, their legal system gave individual judges tremendous leeway in interpreting and enforcing the law.
By contrast, in U.S. law today, not only is it illegitimate to prosecute supernatural crimes, a much higher standard of evidence is required for criminal convictions — particularly where capital punishment is a possibility — and the jury system makes it harder for any one judge to go on a personal crusade. Today, an event like the Salem Witch Trials is almost unthinkable; although it was exceptional even in colonial America, the legal system at that time was constructed such that an event like it may have been a very real possibility in any number of communities.
Erikson’s study provides a good, if extreme, example of how crimes are constructed in the courts and in the legislatures. An activity — witchcraft — that most Americans today don’t even believe is possible was genuinely feared
in colonial America, and it was considered the proper business of the courts to stamp it out. In every society, laws are made and ruled upon in organizations (for example, courts and legislatures) that have the often-difficult task of deciding where to draw the line between behavior that ought to be punishable and behavior that ought not.
What counts as a “crime” varies from year to year — even day to day — as societies officially change their minds and change their laws. Here are just a few examples of debates that are taking place in societies today:
Should abortion be legal, or illegal?
Should it be legal or illegal to drive a car, or run a factory, that pollutes the atmosphere?
Should it be legal or illegal to use portions of copyrighted material in recordings you create and then sell? If legal, how large a portion should you be allowed to use?
Legislatures in countries around the world might decide either way on any of these questions. If they decide one way, the activity in question becomes a crime, and those who engage in it are subject to punishment. If they decide the other way, the activity becomes as unpunishable as witchcraft.
Complicating matters even further is the fact that no law is completely unambiguous; it’s up to courts to decide whether the law applies in any given situation. Often this is simply a matter of establishing whether or not a violation
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of the law occurred (did the suspect, in fact, steal that car?), but in other cases courts need to take highly ambiguous laws and decide how to fairly enforce them according to appropriate social standards.
In Minneapolis, for example, the city where I live, there is a law against keeping as pets animals that are “wild by nature.” Clearly this means that keeping a hippo in the house is a no-no, but I could walk into any pet store and buy a parrot. Are parrots somehow, by nature, domestic? What about a turtle, or a fish?
As it happens, the law was intentionally written to be ambiguous, so that courts could have leeway to decide on a case-by-case basis whether the keeping of a particular animal is inappropriate. The neighboring city of St. Paul, meanwhile, decided to take action to prevent what its city council saw as a potentially dangerous fad, and explicitly outlawed the keeping of sugar gliders.
If you had confessed to witchcraft in Massachusetts four hundred years ago, you might have been put to death. Today, proudly self-described witches run souvenir shops there. If I had a sugar glider in my pocket right now, sitting in Minneapolis, I’d be a law-abiding citizen . . . but if I were to take my pet across the Mississippi River to St. Paul, I’d be a criminal. “Crime” is what people say it is — nothing more and nothing less.
On the streets
Police officers are on the front lines of the fight against crime, and their heroic efforts — often in the line of serious danger — keep citizens safe every day. But how do they decide how best to keep people safe: which laws to enforce, and when, and how? It’s not always obvious.
Sometimes it’s clear what cops have to do. They may come across a theft in progress, or witness an egregious violation of someone’s rights, or be called to an urgent situation that demands immediate action. Often, though, police officers have a great deal of leeway in deciding when, where, and how to enforce the law.
Even in well-policed societies, it’s impossible to enforce every law. For example:
On the freeway, people routinely exceed posted speed limits by modest margins, gambling that as long as they don’t push the envelope too far, the police won’t ticket them.
Most jaywalkers would be shocked to be stopped by a cop.
Large numbers of people break copyright laws every day by burning CDs or sharing music online.
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Marijuana is widely — often openly — used in countries where it’s officially illegal.
Few people reach legal drinking age without ever having known the taste of alcohol, and at college campuses across the United States drinking
is a primary social activity despite being nominally illegal for the large majority of undergraduate students.
As with the “exotic animal” law I mention earlier, some of the laws prohibiting these activities were written with the full understanding that they would be unenforceable in most cases; they’re there to be selectively enforced, at the discretion of the law enforcement officers and the courts.
Other laws, though — for example, laws against murder, rape, violent assault, and large-scale theft — are written to be enforced as universally as possible, and possible violations can merit exhaustive investigations. On the streets, police officers need to decide how to divide their time and attention so as to prevent the worst crimes and prevent as many lesser crimes as possible.
This adds another level to the social construction of crime. The first level takes place in legislatures and courtrooms, and the second level takes place on the streets. If I know I’m not going to be caught at a crime, it de facto becomes not a crime at all.
In legal and academic use, the term de jure means “officially,” and the contrasting term de facto means “in reality.” In many cities, riding a bicycle on the sidewalk is de jure a crime (insofar as there are laws against it) but de facto legal (insofar as you’re unlikely to pay any penalty for it).
It’s clearly necessary for police officers to have this flexibility, but it creates the possibility for unfairness. For example, many women believe that male police officers will be less likely to give them speeding tickets if the women cry when they’re pulled over. Even if this isn’t true, it’s reasonable to think that it might be!
More troublingly, some police officers discriminate by race when deciding which possible crimes (or crimes in the making) to pursue. A song by the group Spearhead says that “it’s a crime to be black in America”; the truth behind the lyric is that in many neighborhoods, racial minorities are viewed with suspicion and are apt to get away with a lot less than whites. Despite concerted efforts by political and law enforcement leaders, discrimination in law enforcement is not apt to go away any time soon — no sooner than
racism generally is apt to disappear. People dressing a certain way, or having a certain color of skin at the wrong place in the wrong time, unfairly risk mistreatment or undue suspicion.
The bottom line: “crime” is defined in legislatures, in courts, and on the streets.