Notes
Introduction
1. Tim Newburn, "'Tough on Crime': Penal Policy in England and Wales,â Crime and Justice 36, 1 (2007) 457-458.
2. Steven Pinker, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes (New York 2011) 47-56.
The debates over Pinker's numbers are disÂcussed in the conclusion here. Arriving anecdotally at a similar conclusion is James Sharpe in A Fiery and Furious People: A History of Violence in England (London 2016).3. Max Nordau, Degeneration (London 1898) 40; Cesare Lombroso, Crime (Boston 1911) 43; Emile Durkheim, The Division of Labour in Society, 2nd ed., trans. W. D. Halls (orig. ed. 1893; reprint, Houndmills 2013) 42, page citations referring to the Houndmills edition.
4. Sarah A. Seo, Policing the Open Road: How Cars Transformed American Freedom (Cambridge MA 2019) 12-13; Frank R. Baumgartner et al., Suspect Citizens: What 20 Million Traffic Stops Tell Us about Policing and Race (Cambridge 2018) 5.
5. US Department of Justice, Crime and Justice Atlas 2000 (Washington DC 2000) 40. Adding driving under the influence, drunkenness, liquor laws, and drug abuse together for 2017 gives a total of 30.4 percent of total arrests, which is larger than even traffic violations, whose true size is submerged in the category "all other offenses," at 31.2 percent. Percentages calculated from the figures in FBI, "Table 29: Estimated Number of Arrests," Uniform Crime Reporting Program, Crime in the United States 2017, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages /tables/table-29.
6. Cal Winslow, "Sussex Smugglers," in Douglas Hay et al., eds., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (New York 1975) 147; Clive Emsley, Crime and Society in England, 1750-1900, 4th ed. (Harlow 2010) 29.
7. The Week, 13 December 2019.
8. Manuel Eisner, "Long-Term Historical Trends in Violent Crime," Crime and Justice 30 (2003) 96-98.
9. Randolph Roth, "Homicide in Early Modern England 1549-1800," Crime, his- toire et societes 5, 2 (2001) 55; Randolph Roth, American Homicide (Cambridge MA 2009) 13-14; Robert R. Dykstra, "Body Counts and Murder Rates: The Contested Statistics of Western Violence," Reviews in American History 31, 4 (2003) 556.
10. Eisner, "Long-Term Historical Trends in Violent Crime,â 107.
11. Starting in the early 1990s, the US murder rate declined from around 6.5/100,000 to 4.4/100,000 in 2014 (FBI, "Table 1: Crime in the United States by Volume and Rate per 100,000 Residents, 1998-2017," Uniform Crime Reporting ProÂgram, Crime in the United States 2017, https://ucr.fbi.goV/crime-in-the-u.s/2017/crime -in-the-u.s.-2017∕topic-pages∕tables∕table-1).
12. Norbert Elias, The Civilizing Process (London 2000).
13. Peter Baldwin, Contagion and the State in Europe, 1830-1930 (Cambridge 1999) 410-413.
14. Hubert John Pragnell, Early British Railway Tunnels: The Implications for Planners, Landowners, and Passengers between 1830 and 1870, University of York Railway Studies (October 2016) 233-234, http://etheses.whiterose.ac.uk/16826/1 /Railway%20tunnels%20recovered%203.pdf; Sonya Sawyer Fritz, "âA Room of Her Very Own': Privacy and Leisure in the Victorian Girl's Bedroom," Girlhood Studies 8, 2 (2015) 46-47.
15. Peter Baldwin, "The Return of the Coercive State: Behavioral Control in MulÂticultural Society," in T. V. Paul et al., eds., The Nation-State in Question (Princeton 2003) 114.
Chapter 1
1. Durkheim, Division of Labour, 60.
2. The theme of E. Adamson Hoebel, The Law of Primitive Man (Cambridge MA 1954).
3. Jan Assmann, The Price of Monotheism (Stanford 2010) 54.
4. Alan E. Bernstein, The Formation of Hell: Death and Retribution in the Ancient and Early Christian Worlds (Ithaca 1993) 3, 61, 160-161, 200-201.
5. Plato, Phaedo, trans. David Gallop (Oxford 1975) 107c.
6. Trevor J. Saunders, Plato's Penal Code: Tradition, Controversy, and Reform in Greek Penology (Oxford 1991) 53.
7. Remi Brague, The Law of God (Chicago 2007) 14; Yonglin Jiang, The Mandate of Heaven and the Great Ming Code (Seattle 2011) 9; R. P. Peerenboom, Law and MoralÂity in Ancient China: The Silk Manuscripts of Huang-Lao (Albany 1993) 5.
8. Derk Bodde, "Basic Concepts of Chinese Law," Proceedings of the American Philosophical Society 107, 5 (1963) 378.
9. Hoebel, Law of Primitive Man, 260; Henry Maine, Ancient Law (London 1861) 218.
10. Helen Silving, "The Oath," Yale Law Journal 68 (1959) 1335, 1383; Richard H. Underwood, "False Witness," Arizona Journal of International and Comparative Law 10 (1993) 229; Michael D. Gordon, "The Invention of a Common Law Crime: Perjury and the Elizabethan Courts," American Journal of Legal History 24, 2 (1980) 148.
11. Kent Flannery and Joyce Marcus, The Creation of Inequality (Cambridge MA 2012) 55.
12. Saunders, Plato's Penal Code, 34-38.
13. Raffaele Pettazzoni, The All-Knowing God (London 1956) 20-21.
14. Leviticus 26:14-18.
15. Genesis 4:9-10.
16. J. Walter Jones, The Law and Legal Theory of the Greeks (Oxford 1956) 97.
17. Christine Hayes, What's Divine about Divine Law? (Princeton 2015) 2.
18. Paula Fredriksen, Sin: The Early History of an Idea (Princeton 2012) 18.
19. Israel Drapkin, Crime and Punishment in the Ancient World (Lexington 1989) 276.
20. Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, 2nd ed. (Cambridge 1898), 1:130.
21. Cynthia Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge 1987) 3.
22. Emsley, Crime and Society in England, 188, 196; Craig B. Little and Christopher P. Sheffield, "Frontiers and Criminal Justice: English Private Prosecution Societies and American Vigilantism in the Eighteenth and Nineteenth Centuries,â American SocioÂlogical Review 48, 6 (1983) 797.
23. Daniel Klerman, "Settlement and the Decline of Private Prosecution in Thirteenth-Century England," Law and History Review 19 (2001) 8; Prosecution of Offenses Act 1985, c. 23, sec. 6(1); Alec Samuels, "Non-Crown Prosecutions: ProsecuÂtions by Non-police Agencies and by Private Individuals," Criminal Law Review (1986) 34; David Friedman, "Making Sense of English Law Enforcement in the Eighteenth Century," University of Chicago Law School Roundtable 2 (1995) 476; Bruce P. Smith, "The Emergence of Public Prosecution in London, 1790-1850," Yale Journal of Law and Humanities 18 (2006) 29.
24. Michael Cavadino and James Dignan, Penal Systems: A Comparative Approach (London 2006) 165, 178-179.
25. Strafgesetzbuch, §123, §247, §183, §§293-294.
26. Gerhard O.W. Mueller, "Tort, Crime, and the Primitive," Journal of Criminal Law, Criminology, and Police Science 46 (1955) 312; Jones, Law and Legal Theory of the Greeks, 116-117.
27. Montesquieu, Spirit of the Laws, 6:9.
28. Immanuel Kant, The Philosophy of Law, trans. W. Hastie (Edinburgh 1887) 197; Peter J. Steinberger, "Hegel on Crime and Punishment," American Political SciÂence Review 77, 4 (1983) 860.
29. Tom R. Tyler, Why People Obey the Law (Princeton 2006) passim.
30. Hence, Marxism, which insisted that behind the democratic facade lay only class oppression, also refused to accept the claim of law to be self-imposition, regardÂing even democratically decided law as akin to that forced on subject populations.
31. David Philips, "âA New Engine of Power and Authority': The InstitutionalizaÂtion of Law-Enforcement in England 1780-1830," in V. A. C. Gatrell et al., eds., Crime and the Law (London 1980) 158; Penry Williams, The Tudor Regime (Oxford 1979) 232; Michael R. Weisser, Crime and Punishment in Early Modern Europe (Atlantic Highlands 1979) 65; Victor Bailey, "The Shadow of the Gallows: The Death Penalty and the British Labour Government, 1945-51," Law and History Review 18, 2 (2000) 306.
In Mamers in eighteenth-century France, only 9 percent of criminal trials eventually resulted in sanctions. Alfred Soman, "Deviance and Criminal Justice in Western Europe,â Criminal Justice History 1 (1980) 7.32. Thomas Andrew Green, Verdict according to Conscience: Perspectives on the EngÂlish Criminal Trial Jury 1200-1800 (Chicago 1985) 310.
33. Both the punisher, whose energies are sapped by harshness, and the punÂished must be considered. Jiangnan Zhu, "Do Severe Penalties Deter Corruption? A Game-Theoretic Analysis of the Chinese Case," China Review 12, 2 (2012) 12.
34. Albrecht Funk, Polizei und Rechtsstaat: Die Entwicklung des staatlichen Gewalt- monopols in Preussen 1848-1914 (Frankfurt 1986) 320.
35. Edward Jenks, A Short History of English Law, 6th ed. (London 1949) 347.
36. Anna Bindler and Randi Hjalmarsson, The Fall of Capital Punishment and the Rise of Prisons: How Punishment Severity Affects Jury Verdicts, University of GothenÂburg, School of Business, Economics, and Law, Working Papers in Economics 674 (October 2016) 5, 21.
37. Michel Foucault, Discipline and Punish (New York 1977) 82.
38. Leon Radzinowicz, History of English Criminal Law (London 1948) 1:93.
39. Thomas A. Green, "Societal Concepts of Criminal Liability for Homicide in Mediaeval England," Speculum 47, 4 (1972) 671; Green, Verdict according to Conscience, 32.
40. Crown Prosecution Service, Annual Report and Accounts (2014-2015) 69, https:// www.cps.gov.uk/publications/docs/annual_report_2014_15.pdf. The rate in US state courts in 2006 was 94 percent (US Bureau of Justice Statistics, "Felony Sentences in State Courts, 2006," http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2152). Among federal cases, 91 percent ended in conviction in 2011-2012 US Department of Justice, Federal Justice Statistics 2012: Statistical Tables (January 2015) NCJ 248470, table. 4.2
41. The conviction rate was almost 92 percent in 2017: Table D-4.
U.S. District Courts-Criminal Defendants Disposed of, by Type of Disposition and Offense, during the 12-Month Period Ending September 30, 2017, http://www.uscourts.gov /sites/default/files/data_tables/jb_d4_0930.2017.pdf; Gabor T. Rittersporn, "Terror and Soviet Legality: Police vs Judiciary, 1933-1940," in James Harris, ed., The AnatÂomy of Terror: Political Violence under Stalin (Oxford 2013) 187.42. Brian Chapman, Police State (New York 1970) 82.
43. Alfred C. Kinsey et al., Sexual Behavior in the Human Male (Philadelphia 1948) 392.
44. David A. Harris, "âDriving while Black' and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops," Journal of Criminal Law and Criminology 87 (1997) 558; Seo, Policing the Open Road, 27.
45. Barton L. Ingraham, Political Crime in Europe (Berkeley 1979) 6.
46. John Baker, "Revisiting the Explosive Growth of Federal Crimes," Heritage Foundation, 16 June 2008, https://www.heritage.org/report/revisiting-the-explosive -growth-federal-crimes; Revised Statutes of the United States (Washington DC 1875), US Statutes at Large, vol. 18, pt. 2, chap. 36, https://www.loc.gov/law/help/statutes-at-large /43rd-congress/c43-DC.pdf; US Code (2018 ed.) 12:749-1230, 13:1-407, https://www.govinfo.gov/content/pkg/USCODE-2018-title18/pdf/USCODE-2018-title18.pdf.
47. Mila Sohoni, "The Idea of âToo Much Law,'" Fordham Law Review 80 (2012) 1606; William J. Stuntz, "The Pathological Politics of Criminal Law," Michigan Law Review 100 (2001-2002) 513-518.
48. John C. Coffee Jr., "Does âUnlawful' Mean âCriminal'? Reflections on the Disappearing Tort/Crime Distinction in American Law,â Boston University Law Review 71 (1991) 216.
49. Ezekiel 18:13.
50. Chad Baruch, "In the Name of the Father: A Critique of Reliance upon Jewish Law to Support Capital Punishment in the United States,â University of Detroit Mercy Law Review 78 (2000) 54; F. W. Maitland, "The Deacon and the Jewess: Or Apostasy at Common Law," Transactions of the Jewish Historical Society of England 6 (1908-1910) 260; Aibek Ahmedov, "Religious Minorities and Apostasy in Early Islamic States," Journal of Islamic State Practices in International Law 2 (2006) 1, 5.
51. Gary A. Anderson, Sin: A History (New Haven 2009) 3.
52. Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of AmerÂican Government (New York 2005) 51-52.
53. Islamic law does not insist very firmly on creditors' rights to repayment. As a result, in some places, such as Egypt and the Gaza Strip, there are no bankruptcy laws, and debtors are still jailed. See "Why Hamas Jails People Who Can't Pay Their Debts," Economist, 2 August 2018.
54. Tawny Paul, The Poverty of Disaster: Debt and Insecurity in Eighteenth- Century BritÂain (Cambridge 2019) 33; Caleb Foote, "The Coming Constitutional Crisis in Bail," UniÂversity of Pennsylvania Law Review 113, 7 (1965) 991; Jason J. Kilborn, "Foundations of Forgiveness in Islamic Bankruptcy Law," American Bankruptcy Law Journal 85 (2011) 344.
55. Paul H. Haagen, "Eighteenth-Century English Society and the Debt Law," in Stanley Cohen and Andrew Scull, eds., Social Control and the State (New York 1983) 225.
56. Gordon Wright, Between the Guillotine and Liberty: Two Centuries of the Crime Problem in France (New York 1983) 84.
57. Floyd Seyward Lear, Treason in Roman and Germanic Law (Austin 1965) 29; Inga Glendinnen, Aztecs (Cambridge 2014) 56; J. A. Sharpe, Crime in Early Modern England 1550-1750, 2nd ed. (Harlow 1999) 74.
58. Williams, Tudor Regime, 144.
59. William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago 1990) 224; F. L. Attenborough, ed., The Laws of the Earliest English Kings (Cambridge 1922) Ine cap 2; Allgemeines Landrecht fur die Preuβischen Staaten (1794) pt. 2, §738.
60. J. M. Beattie, Policing and Punishment in London, 1660-1750 (Oxford 2001) 169-70; Steve Hindle, "The Keeping of the Public Peace," in Paul Griffiths et al., eds., The Experience of Authority in Early Modern England (Basingstoke 1996) 219.
61. Saunders, Plato's Penal Code, 245.
62. Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (Cambridge 1984) 137.
63. Strafgesetzbuch, Bavaria, 1813, art. 401.
64. Edward Delman, "When Adultery Is a Crime," Atlantic, 2 March 2015.
65. David Nash, "Analyzing the History of Religious Crime: Models of âPassive' and âActive' Blasphemy since the Medieval Period," Journal of Social History 41, 1 (2007) 14.
66. With organized religion having abandoned the everyday duties of witches, such as exorcism, a market has opened up for others to enter. See "Demand for Exorcists Is Soaring in France," Economist, 20 July 2017.
67. Christina Larner, "Crimen Exceptum: The Crime of Witchcraft in Europe,â in Gatrell et al., Crime and the Law, 50.
68. "Witches Are Still Hunted in Indiaâand Blinded and Beaten and Killed," Economist, 21 October 2017.
69. "Vatican Gives Official Backing to Exorcists," Guardian, 2 July 2014; Adrita Biswas, "The Vatican to Train Exorcists," International Business Times, 26 February 2018,∙Jason Horowitz, "âShut Up, Satan': Rome Course Teaches Exorcism, Even by Cellphone," New York Times, 19 April 2018.
70. Art. 54; Corinne Treitel, A Science for the Soul: Occultism and the Genesis of the German Modern (Baltimore 2004) 201; Robin Levinson-King, "Canada's Last Witch Trials," BBC News, 30 October 2018.
71. Sharpe, Crime in Early Modern England, 121, 123. The last woman punished as a "scold" in the United States was ducked in Jersey City in 1889. Darius Rejali, Torture and Democracy (Princeton 2007) 282.
72. George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (New York 1996) 47.
73. Kelling and Coles, Fixing Broken Windows, chap. 2.
74. Defamation suits made up a large and eventually majority portion of all cases in certain courts in England starting in the late sixteenth century. See J. A. Sharpe, "âSuch Disagreement betwyx Neighbors': Litigation and Human Relations in Early Modern England," in John Bossy, ed., Disputes and Settlements (Cambridge 1983) 170-171. Examples of defamatory language in this period are given in David Cressy, Dangerous Talk: Scandalous, Seditious, and Treasonable Speech in Pre-m odern EngÂland (Oxford 2010) chap. 2.
75. Ann C. Motto, "âEquity Will Not Enjoin a Libel': Well, Actually, Yes, It Will," Seventh Circuit Review 11, 2 (2016) 272; Hannah Rogers Metcalfe, "Libel in the BlogoÂsphere and Social Media," Charleston Law Review 5 (2011) 486; Ian Burrell, "Libel Cases Prompted by Social Media Posts Rise 300% in a Year," Independent, 19 October 2014; "Online Defamation Cases in England and Wales Double," BBC News UK, 26 August 2011, http://www.bbc.com/news/uk-14684620; Leslie Yalof Garfield, "The Death of Slander," Columbia Journal of Law and the Arts 35 (2011) 42; James Lasdun, Give Me Everything You Have: On Being Stalked (London 2013) 110.
76. Durkheim, Division of Labour, 113, 123-127.
77. Clive Emsley, "Repression, âTerror,' and the Rule of Law in England during the Decade of the French Revolution," English Historical Review 100, 397 (1985) 807-808; John J. Merriam, "Natural Law and Self-Defense," Military Law Review 206 (2010) 80.
78. Weisser, Crime and Punishment, 21; Lawrence M. Friedman, The Republic of Choice (Cambridge MA 1990) 142.
79. Amanda Vickery, "An Englishman's Home Is His Castle? Thresholds, BoundÂaries, and Privacies in the Eighteenth-Century London House," Past and Present 199 (2008) 148; Weisser, Crime and Punishment, 45.
80. Radzinowicz, History of English Criminal Law, 1:709-710.
81. Beattie, Policing and Punishment, 125-126; Clive Emsley, The English Police, 2nd ed. (Harlow 1996) 76.
82. Stuntz, "Pathological Politics," 556; Steven N. Gofman, "Car Cruising: One Generation's Innocent Fun Becomes the Next Generation's Crime," Brandeis Law Journal 32 (2002) 6.
83. Markus Dirk Dubber, "Policing Possession: The War on Crime and the End of Criminal Law," Journal of Criminal Law and Criminology 91, 4 (2001) 874.
84. John Braithwaite, Crime, Shame, and Reintegration (Cambridge 1989) 40-41.
85. John C. Coffee Jr., "From Tort to Crime: Some Reflections on the CriminalÂization of Fiduciary Breaches and the Problematic Line between Law and Ethics," American Criminal Law Review 19 (1981) 127-128; Coffee, "Does 'Unlawful' Mean 'Criminal'?," 202; Samuel W. Buell, Capital Offenses: Business Crime and Punishment in America's Corporate Age (New York 2016) 41-45.
86. French penal code, revision of 13 May 1863, art. 406, §2; Carl Ludwig von Bar, A History of Continental Criminal Law (Boston 1916) 340.
87. Coffee, "Does 'Unlawful' Mean 'Criminal'?," 200.
88. Peter W. Huber, Liability: The Legal Revolution and Its Consequences (New York 1989).
89. Stephen F. Smith, "Overcoming Overcriminalization," Journal of Criminal Law and Criminology 102, 3 (2012) 546.
90. Vern L. Bullough, "Age of Consent: A Historical Overview," Journal of PsyÂchology & Human Sexuality 16, 2-3 (2004) 37-38; Kate Sutherland, "From Jailbird to Jailbait: Age of Consent Laws and the Construction of Teenage Sexualities," William and Mary Journal of Women and the Law 9 (2003) 314.
91. John Pratt, "Scandinavian Exceptionalism in an Era of Penal Excess," British Journal of Criminology 48 (2008) 287; Julian V. Roberts et al., Penal Populism and Public Opinion: Lessons from Five Countries (New York 2003) 130.
92. Stuntz, "Pathological Politics," 513; "Violence against Women: Government Bill 1997/98:55," Swedish Government Offices, Fact Sheet, 1999.
93. California penal code, §288a.
94. Bernard E. Harcourt, "The Collapse of the Harm Principle," Journal of CrimiÂnal Law and Criminology 90, 1 (1999) passim.
95. Act of 26 July 1873; von Bar, History of Continental Criminal Law, 340.
96. Alex S. Vitale, The End of Policing (London 2017) chap. 5.
97. Julius R. Ruff, Violence in Early Modern Europe (Cambridge 2001) 35-39.
98. John Boswell, The Kindness of Strangers: The Abandonment of Children in WestÂern Europe from Late Antiquity to the Renaissance (New York 1988) 58-60; Benjamin F. Martin, Crime and Criminal Justice under the Third Republic (Baton Rouge 1990) 4.
99. Simon Szreter, "The Right of Registration: Development, Identity RegistraÂtion, and Social Security," World Development 35, 1 (2007) 71.
100. Kim Brooks, Small Animals: Parenthood in the Age of Fear (New York 2018).
101. Paul G. Chevigny, "From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime," Law and Social Inquiry 26, 4 (2001) 804.
102. Peter Baldwin, The Copyright Wars (Princeton 2014).
103. John Crook, Law and Life of Rome (Ithaca 1967) 253.
104. James Barr Ames, "Law and Morals," Harvard Law Review 22, 2 (1908) 103;
S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London 1981) 384-385; Huw Beverley-Smith et al., Privacy, Property, and Personality: Civil Law PerspecÂtives on Commercial Appropriation (Cambridge 2005).
105. Helen Pringle, "Are We Capable of Offending God?,â in Elizabeth Burns Coleman and Kevin White, eds., Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society (Canberra 2006) 31; Lorenz Langer, Religious Offence and Human Rights: The Implications of Defamation of Religions (Cambridge 2014) 370-377.
106. Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York 2007) 4.
107. Morris M. Kleiner, "Occupational Licensing,â Journal of Economic PerspecÂtives 14, 1 (2000) 190.
108. Prosecuting those who hurt animals has thrown up its own issues: Why pets but not farmed animals? Why do reformers who reject reliance on imprisonment for other crimes retain it for animal harm? See Justin Marceau, Beyond Cages: Animal Law and Criminal Punishment (Cambridge 2019).
109. The Dangerous Dogs Act of 1991 in Britain determines which kinds of dog are not pets, for example.
110. Christopher D. Stone, "Should Trees Have Standing? Towards Legal Rights to Natural Objects," Southern California Law Review 45 (1972). The Whanganui River in New Zealand has been given legal standing. "Innovative Bill Protects Whanganui River with Legal Personhood," New Zealand Parliament, 28 March 2017, https:// www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui -river-with-legal-personhood/. As has the Amazon forest in Colombia: Anastasia Moloney, "Colombia's Top Court Orders Government to Protect Amazon Forest in Landmark Case," Reuters, 6 April 2018, https://www.reuters.com/article/us-colombia -deforestation-amazon/colombias-top-court-orders-government-to-protect-amazon -forest-in-landmark-case-idUSKCN1HD21Y.
111. Michael E. Tigar, "The Right of Property and the Law of Theft," Texas Law Review 62, 8 (1984) 1454; George P. Fletcher, "The Metamorphosis of Larceny," HarÂvard Law Review 89, 3 (1976) 471-474.
112. Michael D. Gordon, "The Perjury Statute of 1563," Proceedings of the AmeriÂcan Philosophical Society 124, 6 (1980) 444.
113. Yannis D. Kotsonis, "Taxes and the Two Faces of the State since the EighÂteenth Century," in John L. Brooke et al., eds., State Formations (Cambridge 2018) 239; Richard S. Willen, "Religion and the Law: The Secularization of Testimonial ProÂcedures," Sociological Analysis 44, 1 (1983) 57-62; Underwood, "False Witness," 248.
114. Coffee, "Does âUnlawful' Mean âCriminal'?," 202-204; Fletcher, "MetamorÂphosis of Larceny," passim; Smith, "Overcoming Overcriminalization," 559-560.
115. R. J. V. Lenman, "Art, Society, and the Law in Wilhelmine Germany: The Lex Heinze," Oxford German Studies 8 (1973) 98; Protokoll uber die Verhandlungen des Parteitages der Sozialdemokratischen Partei Deutschlands, Hannover, 9-14 October 1899 (Berlin 1899) 86-87; Franz v. Liszt, Lehrbuch des Deutschen Strafrechts, 16th and 17th ed. (Berlin 1908) 619.
116. Kristen E. Eichensehr, "Treason in the Age of Terrorism: An Explanation and Evaluation of Treason's Return in Democratic States," Vanderbilt Journal of Transnational Law 42 (2009) 1496.
117. David S. Ardia, "Freedom of Speech, Defamation, and Injunctions,â WilÂliam and Mary Law Review 55, 1 (2013) 12; Yang-Ming Tham, "Honest to Blog: Balancing the Interests of Public Figures and Anonymous Bloggers in Defamation Lawsuits," Villanova Sports and Entertainment Law Journal 17 (2010) 231.
118. Tabatha Abu El-Haj, "Defining Peaceably: Policing the Line between ConÂstitutionally Protected Protest and Unlawful Assembly," Missouri Law Review 80 (2015) 971.
119. Stuntz, "Pathological Politics," 515; Erik Luna, "The Overcriminalization Phenomenon," American University Law Review 54 (2005) 704; Stuart P. Green, "Why It's a Crime to Tear the Tag off a Mattress: Overcriminalization and the Moral ConÂtent of Regulatory Offenses," Emory Law Journal 46 (1997).
120. Markus D. Dubber, The Dual Penal State (New York 2018) chap. 4. A similar theme informs Gary Gerstle, Liberty and Coercion: The Paradox of American GovernÂment from the Founding to the Present (Princeton 2015).
121. R. A. Duff, "Criminalizing Endangerment," Louisiana Law Review 65 (2005) 961.
122. Clive Emsley, "âMother, What Did Policemen Do When There Weren't Any Motors?' The Law, the Police, and the Regulation of Motor Traffic in England, 1900Â1939," Historical Journal 36, 2 (1993) 366; Seo, Policing the Open Road, 50-51.
123. Sanford H. Kadish, "The Crisis of Overcriminalization," Annals of the AmeriÂcan Academy of Political and Social Science 374 (1967) 158;James R. Copland and Rafael A. Mangual, Overcriminalizing America, Manhattan Institute (August 2018) 7, https://media4.manhattan-institute.org/sites/default/files/R-JC-0818.pdf.
124. Elizabeth E. Joh, "The Paradox of Private Policing," Journal of Criminal Law and Criminology 95, 1 (2004) 121-122.
125. Douglas Kim, "Asset Forfeiture: Giving Up Your Constitutional Rights," Campbell Law Review 19 (1997) 528-529, 541; Todd Barnet, "Legal Fiction and ForÂfeiture: An Historical Analysis of the Civil Asset Forfeiture Reform Act," Duquesne Law Review 40 (2001) 94. The standard work on asset forfeiture is Leonard W. Levy, A License to Steal: The Forfeiture of Property (Chapel Hill 1996). Some reform has now been introduced with the Civil Asset Forfeiture Reform Act of 2000: see Michael Van den Berg, "Proposing a Transactional Approach to Civil Forfeiture Reform," UniverÂsity of Pennsylvania Law Review 163 (2015) 875-879. There are similarities in the UK Proceeds of Crime Act of 2002: see Simon Hallsworth and John Lea, "Reconstructing Leviathan: Emerging Contours of the Security State," Theoretical Criminology 15, 2 (2011) 148.
126. Didier Fassin, The Will to Punish (New York 2018) 40; Azam Ahmed, "FightÂing as Masked Vigilantes, Brazil's Police Leave a Trail of Bodies and Fear," New York Times, 20 December 2019.
127. Edward Peters, Torture, exp. ed. (Philadelphia 1996) 117.
128. Swedish penal code, chap. 23, sect. 6, https://www.government.se/content assets/5315d27076c942019828d6c36521696e/swedish-penal-code.pdf; Andrew AshÂworth and Lucia Zedner, Preventive Justice (Oxford 2014) 101.
129. Dubber, Dual Penal State, 41-42.
130. John H. Langbein, Torture and the Law of Proof (Chicago 1976) 47-48.
131. Model Penal Code, 211.2; Douglas N. Husak, "The Nature and Justifiability of Nonconsummate Offenses,â Arizona Law Review 37 (1995) 162-165.
132. Neal Kumar Kaytal, "Conspiracy Theory," Yale Law Journal 112 (2003) 1310.
133. Andrew Ashworth and Lucia Zedner, "Just Prevention: Preventive RatioÂnales and the Limits of the Criminal Law," in R. A. Duff and Stuart P. Green, ed., Philosophical Foundations of Criminal Law (Oxford 2011) 283.
134. Ira P. Robbins, "Double Inchoate Crimes," Harvard Journal on Legislation 26 (1989) 96.
135. Laura Meli, "Hate Crime and Punishment: Why Typical Punishment Does Not Fit the Crime," University of Illinois Law Review 3 (2014) 926; Erik Bleich, "The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies," Journal of Ethnic and Migration Studies 37, 6 (2011) 925-926.
136. Dubber, Dual Penal State, 25
137. Regina v. Saunders, 2 Plowd. 473 (1575), quoted in Francis Bowes Sayre, "Criminal Responsibility for the Acts of Another," Harvard Law Review 43, 5 (1930) 696.
138. Richard Mowery Andrews, "Boundaries of Citizenship: The Penal RegulaÂtion of Speech in Revolutionary France," French Politics and Society 7, 3 (1989) 93; John H. TateJr., "Distinctions between Accessory before the Fact and Principal," Washington and Lee Law Review 19, 1 (1962) 96.
139. Markus D. Dubber, "Criminalizing Complicity," Journal of International Criminal Justice 5 (2007) 979-980.
140. Joshua Dressler, "Reassessing the Theoretical Underpinnings of Accomplice Liability," Hastings Law Journal 37 (1985) 102.
141. Marc Morje Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York 2017) 47.
142. Dubber, "Policing Possession," 843; Michael Heyman, "Losing All Sense of Just Proportion: The Peculiar Law of Accomplice Liability," St. John's Law Review 87 (2013) 142.
143. French penal code, 1810, art. 126; Neil K. Kaytal, "This Conspiracy Theory Should Worry Trump," New York Times, 23 August 2018.
144. These debates are occurring in congressional hearings as well: House of Representatives, Over-criminalization of Conduct/Over-federalization of Criminal Law: Hearing before the Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, 111th Cong., 1st sess., 22 July 2009, Serial 111-67, https://www.govinfo.gov/content/pkg/CHRG-111hhrg51226/html/CHRG-111hhrg51226.htm; House of Representatives, Reining in Overcriminalization: Assessing the Problem, ProÂposing Solutions: Hearing before the Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, 111th Cong., 2nd sess., 28 September 2010, Serial 111-151, https://www.govinfo.gov/content/pkg/CHRG-111hhrg58476/html/CHRG -111hhrg58476.htm.
145. Paul H. Robinson and Michael T. Cahill, "The Accelerating Degradation of American Criminal Codes," Hastings Law Journal 56 (2005) 638. Further references to the overcriminalization literature are in the conclusion.
146. Zephyr Teachout, "The Unenforceable Corrupt Contract: Corruption and Nineteenth Century Contract Law," N.Y.U. Review of Law and Social Change 35 (2011) 681; Zephyr Teachout, Corruption in America (Cambridge MA 2014) 232; Nick Corasaniti, "Why the 'Bridgegate' Scandal Could Backfire on Prosecutors,â New York Times, 3 July 2019.
147. Elisabeth K. Friedrich, "Insider Trading after Newman: The Impact on Financial Institutions," Journal of Taxation and Regulation of Financial Institutions 29, 4 (2016) 23; Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (New York 2017) 306.
Chapter 2
1. Durkheim was among the first to note the gods' role as enforcers. Division of Labour, 72. Since then, an entire school of social psychology has emerged to pursue this insight. See Harvey Whitehouse et al., "Complex Societies Precede Moralizing Gods throughout World History," Nature, 20 March 2019; Lizzie Wade, "Birth of the Moralizing Gods," Science, 349, 6251 (2015) 919.
2. Thorkild Jacobsen, "Primitive Democracy in Ancient Mesopotamia," Journal of Near Eastern Studies 2, 3 (1943) 169.
3. Dominic D. P. Johnson, "God's Punishment and Public Goods," Human Nature 16, 4 (2005) 412; Whitehouse et al., "Complex Societies Precede Moralizing Gods"; Edward James, "'Beati Pacifici': Bishops and the Law in Sixth-Century Gaul," in Bossy, Disputes and Settlements, 33.
4. Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford 1986) 80; James, "Beati Pacifici," 33.
5. Ara Norenzayan, Big Gods: How Religion Transformed Cooperation and Conflict (Princeton 2013) 7.
6. Michael Puett, "Genealogies of Gods, Ghosts, and Humans: The CapriciousÂness of the Divine in Early Greece and Early China," in G. E. R. Lloyd et al., eds., Ancient Greece and China Compared (Cambridge 2018) 168, 171; Jones, Law and Legal Theory of the Greeks, 48.
7. Saunders, Plato's Penal Code, 51.
8. Matthew 5:21-48.
9. Edward Muir, Mad Blood Stirring: Vendetta and Factions in Friuli during the Renaissance (Baltimore 1993) 69-70.
10. Mueller, "Tort, Crime, and the Primitive," 314; Brian E. McKnight, The QualÂity of Mercy: Amnesties and Traditional Chinese Justice (Honolulu 1981) 63-64.
11. Wayne A. Meeks, The Origins of Christian Morality (New Haven 1993) 114Â115; P. D. King, Law and Society in the Visigothic Kingdom (Cambridge 1972) 147-148.
12. Larner, "Crimen Execeptum," 69; Francis Young, Magic as a Political Crime in Medieval and Early Modern England (London 2018) 23; Christine Caldwell Ames, RighÂteous Persecution: Inquisition, Dominicans, and Christianity in the Middle Ages (PhiladelÂphia 2009) 182-190.
13. Deuteronomy 30:16-18.
14. Leviticus 26.
15. Mark Gretason, "Crime, Guilt, and Punishment in the Old Testament,â Law and Justice 147 (2001) 140-141.
16. Exodus 22:22-24.
17. "Capitulary of Charlemagne Issued in the Year 802," in Ernest F. HenderÂson, ed., Select Historical Documents of the Middle Ages (London 1896) 198; Gretason, "Crime, Guilt, and Punishment," 144; Joel F. Harrington, The Faithful Executioner: Life and Death, Honor and Shame in the Turbulent Sixteenth Century (New York 2013) 33.
18. Robert Parker, Miasma: Pollution and Purification in Early Greek Religion (Oxford 1983) 112-115, 133, 193.
19. Mueller, "Tort, Crime, and the Primitive," 311-312.
20. Tacitus, Germania, chap. 7.
21. However, influencing divinities was a motive for human sacrifice only in some cultures. Dean Sheils, "A Comparative Study of Human Sacrifice," Behavior SciÂence Research 4 (1980) 246.
22. Burr Cartwright Brundage, A Rain of Darts: The Mexica Aztecs (Austin 1972) 97.
23. Philip Williamson, "State Prayers, Fasts, and Thanksgivings: Public Worship in Britain 1830-1897," Past and Present 200 (2008) 123; Frank M. Turner, "Rainfall, Plagues, and the Prince of Wales: A Chapter in the Conflict of Religion and SciÂence," Journal of British Studies 12, 2 (1974) 50-51.
24. Michael D. Coe, "Religion and the Rise of Mesoamerican States," in Grant D. Jones and Robert R. Kautz, eds., The Transition to Statehood in the New World (CamÂbridge 1981) 164-165.
25. Alan Strathern, Unearthly Powers: Religious and Political Change in World History (Cambridge 2019) 35; David F. Greenberg and Valerie West, "Siting the Death PenÂalty Internationally," Law and Social Inquiry 33, 2 (2008) 309.
26. Zhongjiang Wang, Order in Early Chinese Excavated Texts (Houndmills 2016) 94, 127.
27. Robert F. Ekelund Jr. et al., "The Economics of Sin and Redemption: Purgatory as a Market-Pull Innovation?," Journal of Economic Behavior and Organization 19 (1992) 3-5.
28. Dominic Johnson, God Is Watching You: How the Fear of God Makes Us Human (New York 2015) 71-73, 227-229; Christine Caldwell Ames, "Does Inquisition Belong to Religious History?," American Historical Review 110, 1 (2005) 24.
29. Attenborough, Laws of the Earliest Kings, Wihtred cap 3-4; King, Law and Society in the Visigothic Kingdom, 127.
30. Dominic Johnson and Oliver Kruger, "The Good of Wrath: Supernatural Punishment and the Evolution of Cooperation," Political Theology 5, 2 (2004) 161Â162; Kristin Laurin et al., "Outsourcing Punishment to God: Beliefs in Divine Control Reduce Earthly Punishment," Proceedings of the Royal Society: Biological Sciences 279, 1741 (2012) 3278; Dominic Johnson, "Why God Is the Best Punisher," Religion, Brain, & Behavior 1, 1 (2011) 79, 82; Azim F. Shariff and Ara Norenzayan, "Mean Gods Make Good People: Different Views of God Predict Cheating Behavior," International Journal for the Psychology of Religion 21 (2011) 85, 92; Alan Bernstein, "Thinking about Hell," Wilson Quarterly 10, 3 (1986) 78.
31. Von Bar, History of Continental Criminal Law, 399; Sharpe, Crime in Early Modern England, 8.
32. Martin Lewison, "Conflicts of Interest? The Ethics of Usury,â Journal of BusiÂness Ethics 22, 4 (1999) 329, 333.
33. Pieter Spierenburg, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present (Cambridge 2008) 146.
34. Anne-Marie Kilday, "âMonsters of the Vilest Kind': Infanticidal Women and Attitudes to Their Criminality in Eighteenth-Century Scotland," Family and ComÂmunity History 11, 2 (2008) 106.
35. Joel F. Harrington, The Unwanted Child: The Fate of Foundlings, Orphans, and Juvenile Criminals in Early Modern Germany (Chicago 2009) 68; Spierenburg, History of Murder, 150; Soman, "Deviance and Criminal Justice," 9. Infanticide was reduced from murder to manslaughter in Britain only in 1922, but most women convicted were pardoned, not executed. Bailey, "Shadow of the Gallows," 313.
36. Benoit Garnot, "La legislation et la repression des crimes dans la France moderne (XVI-XVIIIe siecle)," RevueHistorique 293 (1995) 80.
37. Kenneth Pennington, The Prince and the Law, 1200-1600 (Berkeley 1993) 132.
38. Numbers 5:12-28; Paul R. Hyams, "Trial by Ordeal: The Key to Proof in the Early Common Law," in Morris S. Arnold et al., eds., On the Laws and Customs of England (Chapel Hill 1981) 103; Bartlett, Trial by Fire and Water, 84; Jones, Law and Legal Theory of the Greeks, 136-137.
39. Patrick Wormald, "Charters, Law, and the Settlement of Disputes in Anglo- Saxon England," in Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe (Cambridge 1986) 160.
40. Margaret H. Kerr et al., "Cold Water and Hot Iron: Trial by Ordeal in EngÂland," Journal of Interdisciplinary History 22, 4 (1979) 574, 580-581.
41. Two pilgrims returned from Jerusalem. One detoured to a shrine; the other, arriving home first, was accused of having murdered his companion. Put to the ordeal, he failed and was executed. When the other eventually arrived, consternaÂtion ensued. John W. Baldwin, Masters, Princes, and Merchants: The Social Views of Peter the Chanter and His Circle (Princeton 1970) 326-327.
42. Finbarr McAuley, "Canon Law and the End of the Ordeal," Oxford Journal of Legal Studies 26, 3 (2006) 476-477, 482-483; Charles M. Radding, "Superstition to Science: Nature, Fortune, and the Passing of the Medieval Order," American HistoriÂcal Review 84, 4 (1979) 960, 965-966.
43. Bartlett, Trial by Fire and Water, 88; Deuteronomy 6:16; Matthew 4:7.
44. A. S. Diamond, Primitive Law Past and Present (London 1971) 47.
45. Matthew 5:33.
46. Silving, "The Oath," 1330;Jones, Law and Legal Theory of the Greeks, 139; Hindle, "Keeping of the Public Peace," 221.
47. And yet a malevolent vision of hell has recently again become part of popuÂlar culture. See Hanre Janse van Rensburg and Ernest van Eck, "Hell Revisited: A Socio-critical Enquiry into the Roots and Relevance of Hell for the Church Today," HTS Teologiese Studies 64, 3 (2008) 1501-1503; and Brooks B. Hull and Frederick Bold, "Hell, Religion, and Cultural Change," Journal of Institutional and Theoretical Economics 150, 3 (1994) 451.
48. R. I. Mawby, Comparative Policing Issues (London 1990) 16.
49. Norman Yoffee, "Law Courts and the Mediation of Social Conflict in Ancient Mesopotamia,â in Janet Richards and Mary van Buren, eds., Order, LegitiÂmacy, and Wealth in Ancient States (Cambridge 2000) 48.
50. Michael Gagarin, Early Greek Law (Berkeley 1986) 20-22.
51. Iliad, 18:497-508; Hans Julius Wolff, "The Origin of Judicial Litigation among the Greeks," Traditio 4 (1946) 31-33; Jones, Law and Legal Theory of the Greeks, 258.
52. Peters, Torture, 12.
53. Hubert J. Treston, Poine: A Study in Ancient Greek Blood-Vengeance (London 1923) 85; Drapkin, Crime and Punishment, 174-175.
54. Peters, Torture, 19; Drapkin, Crime and Punishment, 180; Gagarin, Early Greek Law, 139.
55. Virginia J. Hunter, Policing Athens: Social Control in the Attic Lawsuits, 420Â320 BC (Princeton 1994) 62-63.
56. Drapkin, Crime and Punishment, 236; Edward Peters, Inquisition (New York 1988) 12-17.
57. Michael Gagarin, Drakon and Early Athenian Homicide Law (New Haven 1981) 117; Drapkin, Crime and Punishment, 238.
58. David J. Seipp, "The Distinction between Crime and Tort in the Early Common Law," Boston University Law Review 76 (1996) 63.
59. Plato, Laws, bk. 9, chap. 13; Douglas A. MacDowell, The Law in Classical Athens (Ithaca 1978) 114; Green, Verdict according to Conscience, 30; von Bar, History of Continental Criminal Law, 8, 12; Parker, Miasma, 112; Attenborough, Laws of the Earliest English Kings, Alfred cap 42.
60. Attenborough, Laws of the Earliest English Kings, Wihtred cap 25; Green, VerÂdict according to Conscience, 30, 80-81; Thomas A. Green, "The Jury and the English Law of Homicide, 1200-1600," Michigan Law Review 74 (1976) 429; Jesse L. Byock, Viking Age Iceland (London 2001) 109, 213.
61. Gagarin, Drakon, 118; von Bar, History of Continental Criminal Law, 12.
62. McKnight, Quality of Mercy, 50.
63. Green, Verdict according to Conscience, 42; J. M. Kaye, "The Early History of Murder and Manslaughter," Law Quarterly Review 83 (1967) 577.
64. Green, "Jury and English Law," 438, 458; von Bar, History of Continental Criminal Law, 14; Tigar, "Right of Property," 1447.
65. Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen (New York 2010) 22.
66. Cynthia Lee, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (New York 2003) 20; Donna K. Coker, "Heat of Passion and Wife KillÂing: Men Who Batter/Men Who Kill," Southern California Review of Law and Women's Studies 2, 71 (1992) 1.
67. French penal code, art. 324; Lama Abu-Odeh, "Crimes of Honour and the Construction of Gender in Arab Societies," in Mai Yarman, ed., Feminism and Islam (New York 1996) 143; Eliza Earle Ferguson, "Judicial Authority and Popular Justice: Crimes of Passion in Fin-de-Siecle Paris," Oxford Journal of Social History 40, 2 (2006) 296; Richard E. Nisbett and Dov Cohen, Culture of Honor: The Psychology of Violence in the South (Boulder 1996) 2.
68. Italian penal code, art. 587; Donatella Barazzetti et al., "Gender Violence Effects Indicators. National Report: Italia. Daphne Project âProposing New Indicatoors [sic]: Measuring Violence's Effects. GVEI,'" (Rende, Italy: University of Calabria, July 2007) 3, http://www.surt.org/gvei/docs/national_report_italy.pdf.
69. In Houston in 1969, 40 percent of those arrested for killing a relative were released without prosecution, compared to 24 percent of those who had killed a stranger. Donald Black, "Crime as Social Control," American Sociological Review 48 (1983) 40.
70. Lawrence M. Friedman and William E. Havemann, "The Rise and Fall of the Unwritten Law: Sex, Patriarchy, and Vigilante Justice in the American Courts," BufÂfalo Law Review 61, 5 (2013) 1008-1009; Hendrik Hartog, "Lawyering, Husbands' Rights, and âthe Unwritten Law' in Nineteenth-Century America," Journal of AmeriÂcan History 84 (1997) 83; Lisa Appignanesi, Trials of Passion: Crimes in the Name of Love and Madness (New York 2014) 4, 337.
71. Joyce Lee Malcolm, "Self-Defence in England," Journal on Firearms and Public Policy 23 (2011) 63; Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (Norman 1991) chap 1.
72. Stuntz, "Pathological Politics," 513.
73. Compositionâthat is, making whole or restitutingâwas the term used in the Middle Ages for values paid for harms done.
74. William Ian Miller, Eye for an Eye (Cambridge 2006) 25.
75. The talionic principle is stated emblematically in Exodus 21:23-25.
76. Keith M. Brown, Bloodfeud in Scotland 1573-1625 (Edinburgh 1986) 242; Jeremy Wormald, "Bloodfeud, Kindred, and Government in Early Modern ScotÂland," Past and Present 87 (1980) 85-86.
77. Bertha Surtees Phillpotts, Kindred and Clan in the Middle Ages and After (CamÂbridge 1913) 253-255; Miller, Bloodtaking, 186-187, 198.
78. Christopher Boehm, Blood Revenge: The Enactment and Management of Conflict in Montenegro and Other Tribal Societies (Lawrence 1984) 61.
79. Mark Edward Lewis, Sanctioned Violence in Early China (Albany 1990) 89-90.
80. Robert H. Lowie, The Origin of the State (New York 1927) 54; von Bar, History of Continental Criminal Law, 5.
81. J. M. Wallace-Hadrill, "The Bloodfeuds of the Franks," in J. M. Wallace- Hadrill, ed., The Long-Haired Kings (London 1962) 129; Drapkin, Crime and PunishÂment, 57.
82. A. Hofmeister, "Die Gerichtsscene im Schild des Achill, Ilias XVIII, 497Â508," Zeitschrift fur vergleichende Rechtswissenschaft 2 (1880) 449; Walter Leaf, "The Trial Scene in Iliad XVIII," Journal of Hellenic Studies 8 (1887) 124.
83. Von Bar, History of Continental Criminal Law, 11-12; Drapkin, Crime and PunÂishment, 281.
84. 2 Samuel 4.
85. Peter Stein, Legal Institutions: The Development of Dispute Settlement (London 1984) 21.
86. King, Law and Society in the Visigothic Kingdom, 86, 93; Tacitus, Germania, chap. 21.
87. Phillpotts, Kindred and Clan, 68; Alan Harding, Medieval Law and the FoundaÂtions of the State (Oxford 2002) 37; "Capitulary of Charlemagne,â 198-199.
88. James Buchanan Given, Society and Homicide in Thirteenth-Century England (Stanford 1977) 73; Wormald, "Bloodfeud, Kindred, and Government," 55.
89. Harding, Medieval Law, 73; David Cohen, Law, Violence, and Community in Classical Athens (Cambridge 1995) 70.
90. John K. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 1537-1609 (Cambridge 1992) 3, 90-91; Mary Elizabeth Perry, Crime and Society in Early Modern Seville (Hanover 1980) 2.
91. Roland Axtmann, "âPolice' and the Formation of the Modern State: Legal and Ideological Assumptions on State Capacity in the Austrian Lands of the Habsburg Empire, 1500-1800," German History 10 (1992) 42; Nancy Shields Koll- mann, Crime and Punishment in Early Modern Russia (Cambridge 2012) 25.
92. Richard L. Kagan, "A Golden Age of Litigation: Castile 1500-1700," in Bossy, Disputes and Settlements, 156. The situation was similar in England: Sharpe, "Such Disagreement," 170-171.
93. Ruff, Violence, 81; Miller, Bloodtaking, 5, 20-21, 181; Jesse L. Byock, Feud in the Icelandic Saga (Berkeley 1982) 27; Brown, Bloodfeud, 239-242.
94. Pierre Lascoumes et al., Au nom de l'ordre: Une histoire politique du Code Penal (Paris 1989) 138.
95. D. E. Mills, "Kataki-Uchi: The Practice of Blood-Revenge in Pre-modern Japan," Modern Asian Studies 10, 4 (1976) 525-526.
96. Treston, Poine, 5; Stephen Wilson, Feuding, Conflict, and Banditry in NineÂteenth Century Corsica (Cambridge 1988) 53; Boehm, Blood Revenge, 66, 114.
97. Dan Bilefsky, "In Albanian Feuds, Isolation Engulfs Families," New York Times, 10 July 2008; Mark S. Weiner, The Rule of the Clan (New York 2013) 85.
98. Von Bar, History of Continental Criminal Law, 13; Drapkin, Crime and PunishÂment, 282.
99. Byock, Viking Age Iceland, 313; Otto Brunner, Land and Lordship: Structures of Governance in Medieval Austria (Philadelphia 1984) chap. 1; Hillay Zmora, State and Nobility in Early Modern Germany: The Knightly Feud in Franconia, 1440-1567 (CamÂbridge 1997) 6-9.
100. Miller, Bloodtaking, 192, 280; Byock, Viking Age Iceland, 79, 207-210.
101. Spierenburg, History of Murder, 29; Boehm, Blood Revenge, 108; Max Gluck- man, "The Peace in the Feud," Past and Present 8 (1955).
102. Exodus 21:30.
103. Drapkin, Crime and Punishment, 18, 23, 234; Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford 2012) 29.
104. Henry of Bracton, On the Laws and Customs of England, ed. Samuel E. Thorne and George E. Woodbine (Cambridge MA 1977) 2:410; Attenborough, Laws of the Earliest English Kings, ^thelberht cap 34-55, 64, Alfred cap 44-77.
105. J. M. Wallace-Hadrill, Early Germanic Kingship in England and on the ContiÂnent (Oxford 1971) 41.
106. Numbers 35:31-32.
107. Walter Ullmann, The Medieval Idea of Law as Represented by Lucas de Penna (London 1946) 144.
108. Mueller, "Tort, Crime, and the Primitive," 311.
109. Treston, Poine, 3-4; von Bar, History of Continental Criminal Law, 123; Kler- man, "Settlement and Decline of Private Prosecution," 6.
110. Perry, Crime and Society in Early Modern Seville, 68; Phillpotts, Kindred and Clan, 96, 123-124.
111. Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics 87, 4 (1977) 285-287; Randy E. Barnett, "Getting Even: Restitution, Preventive Detention, and the Tort/Crime Distinction," Boston University Law Review 76 (1996) 159; Pratt, "Scandinavian Exceptionalism," 134.
112. Stephen Schafer, "Restitution to Victims of Crime: An Old Correctional Aim Modernized," Minnesota Law Review 50 (1965) 249.
113. Samuels, "Non-Crown Prosecutions," 37; Thomas Erdbrink, "Mercy and Social Media Slow the Noose in Iran," New York Times, 9 March 2014.
Chapter 3
1. A. Esmein, A History of Continental Criminal Procedure (Boston 1913) 62.
2. Emile Durkheim, "Two Laws of Penal Evolution," in Steven Lukes and Andrew Scull, eds., Durkheim and the Law (Basingstoke 2013) 95.
3. Paul Grimley Kuntz, The Ten Commandments in History (Grand Rapids 2004) 18.
4. Emile Durkheim, Suicide, ed. George Simpson, trans. John A. Spaulding and George Simpson (orig. French ed. 1897; Glencoe 1951) 337.
5. Carl Wennerlind, Casualties of Credit: The English Financial Revolution, 1620Â1720 (Cambridge MA 2011) 131; Jonathan R. T. Hughes, The Governmental Habit Redux: Economic Controls from Colonial Times to the Present (Princeton 1991) 49.
6. Chevigny, "From Betrayal to Violence," 788.
7. Ullmann, Medieval Idea of Law, 148.
8. Matthew 5:38-48.
9. Durkheim, Division of Labour, 72. Durkheim goes further to argue that punÂishment continues to be inspired by broadly theological concerns, protecting someÂthing higher, even as it becomes secular. Division of Labour, 77, 110.
10. Drapkin, Crime and Punishment, 55-56.
11. Genesis 9:5-6.
12. Plato, Laws, 768a; David Cohen, Law, Sexuality, and Society: The Enforcement of Morals in Classical Athens (Cambridge 1991) 227-228.
13. Treston, Poine, 144. The Cheyenne, too, regarded murder as a sin, afflicting the whole tribe with supernatural consequences. Hoebel, Law of Primitive Man, 157.
14. Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Cambridge MA 1999) 70.
15. Deuteronomy 21:1-9.
16. Andrew Lintott, Violence in Republican Rome (Oxford 1999) 41; Tacitus, GerÂmania, chap. 12.
17. Arthur P. Wolf, Incest Avoidance and the Incest Taboos (Stanford 2014) 98; DiaÂmond, Primitive Law, 62.
18. Daniel Schiff, Abortion in Judaism (Cambridge 2002) 16.
19. R v. Brown [1993] 2 All ER 75, 4, 37, http://www.bailii.org/uk/cases/UKHL/1993 /19.html. A similar logic can be found in Plato's Laws and among the Bantu monarÂchies of Africa (Saunders, Plato's Penal Code, 263; Lowie, Origin of the State, 93).
20. John Baker, An Introduction to English Legal History, 5th ed. (Oxford 2019) 571.
21. Immanuel Kant, Metaphysics of Morals, trans. Mary Gregor (Cambridge 1996) 6:333.
22. David Friedman, "Beyond the Tort/Crime Distinction,â Boston University Law Review 76 (1996) 110; Seipp, "Distinction between Crime and Tort," 78-79.
23. Von Bar, History of Continental Criminal Law, 71, 115-116. A similar argument has been made for Anglo-Saxon tenth-century law in Wormald, "Charters," 165.
24. Seipp, "Distinction between Crime and Tort," 74; Richard E. Laster, "CrimiÂnal Restitution," University of Richmond Law Review 5 (1970) 76.
25. J. M. Beattie, Crime and the Courts in England 1660-1800 (Princeton 1986) 39; Friedman, "Making Sense of English Law Enforcement," 486-487.
26. James Q. Wilson, Varieties of Police Behavior (Cambridge MA 1968) 176.
27. Laster, "Criminal Restitution," 76, 86-87. An exception is that marriage to the victim of seduction can prevent prosecution for that crimeâbut not for statutory rape.
28. Numbers 35:31. "For blood it defileth the land: and the land cannot be cleansed..., but by the blood of him that shed it," it continued (35:33).
29. Miller, Bloodtaking, 190.
30. Robert Nozick, Anarchy, State, and Utopia (New York 1974) 65-68.
31. Friedland, Seeing Justice Done, 32; King, Law and Society in the Visigothic KingÂdom, 91.
32. Coffee, "Does âUnlawful' Mean âCriminal'?," 222; George Kateb, "PunishÂment and the Spirit of Democracy," Social Research 74, 2 (2007) 303.
33. Josef Pieper, The Concept of Sin (South Bend 2001) 51-52.
34. Deuteronomy 17:12; Joshua 7:1-15.
35. J. B. Bury, History of Greece, 2nd ed. (London 1922) 172; Treston, Poine, 78-79.
36. Tim Whitmarsh, Battling the Gods: Atheism in the Ancient World (New York 2015) 237; Pollock and Maitland, History of English Law, 1:3; Leonard W. Levy, TreaÂson against God: A History of the Offense of Blasphemy (New York 1981) 110.
37. Glendinnen, Aztecs, 70-72; Garcilaso de la Vega, Royal Commentaries of the Incas and General History of Peru (Austin 1966) 97.
38. Paolo L. Rossi, "The Writer and the Man," in Trevor Dean and K. J. P. Lowe, eds., Crime, Society, and the Law in Renaissance Italy (Cambridge 1994) 175.
39. Nash, "Analyzing the History of Religious Crime," 8; Garnot, "La legislation et la repression des crimes," 78; Philip S. Gorski, "The Protestant Ethic Revisited: Disciplinary Revolution and State Formation in Holland and Prussia," American JourÂnal of Sociology 99, 2 (1993) 279.
40. Sharpe, Crime in Early Modern England, 215; Axtmann, "âPolice' and the ForÂmation of the Modern State," 42; Stuart Banner, The Death Penalty (Cambridge MA 2002) 14.
41. In June 2015, a group of Western tourists on Mount Kinabalu in Malaysia caused outrage by stripping, and a subsequent deadly earthquake was blamed on their disrespect. Andreas Illmer, "Playboy Model Angers Maori with Nude Shoot on Sacred Mountain,â BBC News, 3 May 2017, http://www.bbc.co.uk/news/world-asia -39789508.
42. Drapkin, Crime and Punishment, 64, 69, 71; Baruch, "In the Name of the Father," 56; Leviticus 24:16.
43. Gagarin, Drakon, 164; Tacitus, Germania, chap. 12; von Bar, History of ContiÂnental Criminal Law, 72; Laster, "Criminal Restitution," 73.
44. Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York 1978) 17.
45. Leon R. Yankwich, "Law and Order under the Incas," Southern California Law Review 22 (1949) 149; Mueller, "Tort, Crime, and the Primitive," 321.
46. Drapkin, Crime and Punishment, 237.
47. Drapkin, Crime and Punishment, 69.
48. George M. Calhoun, The Growth of Criminal Law in Ancient Greece (Berkeley 1927) 16-17, 85; Treston, Poine, 23, 146, 93.
49. Theodor Mommsen, Romisches Strafrecht (Leipzig 1899) 614; von Bar, History of Continental Criminal Law, 16; Treston, Poine, 4.
50. Green, Verdict according to Conscience, 5; Given, Society and Homicide, 5; DiaÂmond, Primitive Law, 74; Green, "Societal Concepts," 669-670.
51. MacDowell, Law in Classical Athens, 53; Jones, Law and Legal Theory of the Greeks, 253.
52. Danielle S. Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton 2000) 39; Calhoun, Growth of Criminal Law, 78.
53. Von Bar, History of Continental Criminal Law, 39.
54. King, Law and Society in the Visigothic Kingdom, 88, 92; "Capitulary of CharÂlemagne," 199.
55. Mommsen, Romisches Strafrecht, 1043; Jones, Law and Legal Theory of the Greeks, 183.
56. Richard M. Fraher, "The Theoretical Justification for the New Criminal Law of the High Middle Ages," University of Illinois Law Review 3 (1984) 578; McAuley, "Canon Law and the End of the Ordeal," 495.
57. Julius Goebel Jr., Felony and Misdemeanor: A Study in the History of Criminal Law (Philadelphia 1976) 36; Harding, Medieval Law, 75.
58. Friedland, Seeing Justice Done, 36.
59. W. Ullmann, "Some Medieval Principles of Criminal Procedure," Juridical Review 59, 1 (1947) 7-9.
60. McAuley, "Canon Law and the End of the Ordeal," 495; Fraher, "Theoretical Justification," 582.
61. John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge MA 1974) 144.
62. Jean Michel Antoine de Servan, quoted in Lascoumes et al., Au nom de l'ordre,
25.
63. Maine, Ancient Law, 217; Gagarin, Early Greek Law, 63; MacDowell, Law in Classical Athens, 57.
64. Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law: Law, SociÂety, and Politics in Fifth-Century Athens (Berkeley 1986) 15; MacDowell, Law in ClassiÂcal Athens, 129-131.
65. Mueller, "Tort, Crime, and the Primitive,â 309.
66. Goebel, Felony and Misdemeanor, 64-68, discussing Frankish law of the sixth century. Yet seventh-century Visigothic law is said not to distinguish clearly between crimes and torts. King, Law and Society in the Visigothic Kingdom, 87.
67. Esmein, History of Continental Criminal Procedure, 336.
68. Fletcher, "Metamorphosis of Larceny," 479-480; Goebel, Felony and MisdeÂmeanor, 66.
69. Spierenburg, Spectacle of Suffering, 2-3; Langbein, Prosecuting Crime, 211-212; Harding, Medieval Law, 19.
70. Pollock and Maitland, History of English Law, 1:37; James B. Given, Inquisition and Medieval Society: Power, Discipline, and Resistance in Languedoc (Ithaca 1997) 21.
71. Bartlett, Trial by Fire and Water, 132; Harding, Medieval Law, 33.
72. Max Weber, Economy and Society (Berkeley 1978) 762.
73. Genesis 18:21; Luke 16:1-2.
74. Langbein, Prosecuting Crime, 130-131; Esmein, History of Continental Criminal Procedure, 114-115.
75. Fraher, "Theoretical Justification," 582.
76. Green, Verdict according to Conscience, 97.
77. Langbein, Prosecuting Crime, 216-217, 177, 198-199; Weisser, Crime and PunÂishment, 94-95.
78. Weisser, Crime and Punishment, 96-97; Herrup, Common Peace, 68; Koll- mann, Crime and Punishment, 205.
79. Bruce Lenman and Geoffrey Parker, "The State, the Community, and the Criminal Law in Early Modern Europe," in Gatrell et al., Crime and the Law, 26-27; Diamond, Primitive Law, 92; Green, "Jury and the English Law," 416.
80. R. van Caenegem, "The Law of Evidence in the Twelfth Century," in Stephan Kuttner and J. Joseph Ryan, eds., Proceedings of the Second International ConÂgress of Medieval Canon Law (Vatican City 1965) 297-298.
81. Goebel, Felony and Misdemeanor, 76-77; van Caenegem, "Law of Evidence," 300.
82. Klerman, "Settlement and Decline of Private Prosecution," 5-6; Given, SociÂety and Homicide, 98-99.
83. Green, Verdict according to Conscience, 105-106.
84. Langbein, Prosecuting Crime, 22-24, 35.
85. Beattie, Crime and the Courts, 35.
86. Ullmann, "Some Medieval Principles," 23-24; Richard M. Fraher, "IV Lat- eran's Revolution in Criminal Procedure," in Rosalio Castillo Lara, ed., Studia in honorem Eminentissimi Cardinalis Alphonsi M. Stickle (Rome 1992) 103; W. Ullmann, "Reflections on Medieval Torture," Juridical Review 56, 3 (1944) 130; Goebel, Felony and Misdemeanor, 70-75.
87. Ullmann, "Some Medieval Principles," 4; Given, Inquisition and Medieval Society, 21-22; Esmein, History of Continental Criminal Procedure, 19-20.
88. Treston, Poine, 226; Gagarin, Drakon, 119; King, Law and Society in the Visigothic Kingdom, 113.
89. Leviticus 24:16.
90. Plato, Laws, bk. 9, chap. 12.
91. MacDowell, Law in Classical Athens, 254; Treston, Poine, 423.
92. Lewis, Sanctioned Violence, 92.
Chapter 4
1. Exodus 22:28.
2. Pandias M. Schisas, Offences against the State in Roman Law (London 1926) 3, 20.
3. Ingraham, Political Crime in Europe, 30-31.
4. Derek Bodde and Clarence Morris, Law in Imperial China (Cambridge MA 1967) 41; Bodde, "Basic Concepts,â 392. However, in the Ming treason was punished only by beheading, not by slow slicing of the body. Jiang, Mandate of Heaven, 96.
5. Pollock and Maitland, History ofEnglish Law, 1:300.
6. David Lorton, "The Treatment of Criminals in Ancient Egypt: Through the New Kingdom," Journal of the Economic and Social History of the Orient 20, 1 (1977) 14; Lewis, Sanctioned Violence, 28.
7. John Bellamy, The Tudor Law of Treason (London 1979) 202-205; "Historical Concept of Treason: English, American," Indiana Law Journal 35, 1 (1959) 71.
8. Treason Act 1814, 54 George III, c. 146. But by 1820 decapitation and the other dismemberments were no longer inflicted. V. A. C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (Oxford 1994) 298-299.
9. In the United States, treason remains punishable by death. Eichensehr, "TreaÂson in the Age of Terrorism," 1500.
10. John Bellamy, The Law of Treason in England in the Later Middle Ages (CamÂbridge 1970) 13; Treston, Poine, 220; Lex Quisquis, 397, quoted in S. H. Cuttler, The Law of Treason and Treason Trials in Later Medieval France (Cambridge 1981) 8.
11. Bruce G. Trigger, Understanding Early Civilizations (Cambridge 2003) 237.
12. Allgemeines Landrecht fur die Preufiischen Staaten, Part 2, chap. 20, pt. 2, §95; Strafgesetzbuch fur das Konigreich Baiern (Munich 1813), art. 118.
13. Stephen C. Thaman, "Marxist and Soviet Law," in Markus D. Dubber and TatÂjana Hornle, eds., Oxford Handbook of Criminal Law (Oxford 2014) 317; Mark Edele and Michael Geyer, "States of Exception: The Nazi-Soviet War as a System of VioÂlence, 1939-1945," in Michael Geyer and Sheila Fitzpatrick, eds., Beyond TotalitarianÂism: Stalinism and Nazism Compared (Cambridge 2009) 385.
14. Manuel Eisner, "Killing Kings: Patterns of Regicide in Europe, AD 600Â1800," British Journal of Criminology 51 (2011) 563-564.
15. Goebel, Felony and Misdemeanor, 45; Jiang, Mandate of Heaven, 155.
16. Eisner, "Killing Kings," 568-569.
17. G. R. Elton, Policy and Police: The Enforcement of the Reformation in the Age of Thomas Cromwell (Cambridge 1972) 387-391.
18. "Historical Concept of Treason," 74; Walter G. Simon, "The Evolution of Treason," Tulane Law Review 35, 4 (1961) 687.
19. 33 Henry VIII, c. 23; Bellamy, Tudor Law of Treason, 38.
20. Jonathan K. van Patten, "Magic, Prophecy, and the Law of Treason in ReforÂmation England,â American Journal of Legal History 27 (1983) 10-11.
21. George P. Fletcher, "Ambivalence about Treason," North Carolina Law Review 82 (2003-2004) 1614; J. Richard Broughton, "The Snowden Affair and the Limits of American Treason," Lincoln Memorial University Law Review 3 (2015) 15.
22. Thomas Jefferson wrote of treason codes that "they do not distinguish between acts against the government and acts against the oppressions of the govÂernment; the latter are virtues; yet they have furnished more victims to the execuÂtioner than the former." Quoted in Cramer v. United States, 325 US 1 (1945) n. 28.
23. Stuart E. Abrams, "Threats to the President and the Constitutionality of Constructive Treason," Columbia Journal of Law and Social Problems 12 (1975-1976) 379-380. In the various colonial laws, treason included only levying war and aiding and adhering to the enemy. Richard Z. Steinhaus, "Treason: A Brief History with Some Modern Applications," Brooklyn Law Review 22 (1955-1956) 256.
24. James Willard Hurst, Law of Treason in the United States (Westport 1971) chap. 4; Herbert L. Packer, "Offenses against the State," Annals of the American AcadÂemy of Political and Social Science 339 (1962) 78.
25. Hurst, Law of Treason, 5-6, 144.
26. US Constitution, art. 3, §3; Steinhaus, "Treason," 258.
27. "The History of Treason," Law Coach 2 (1921-1922) 147.
28. Broughton, "Snowden Affair," 17-18; J. H. Leek, "Treason and the ConstituÂtion," Journal of Politics 13, 4 (1951) 609; Hurst, Law of Treason, 195. The Sedition Act of 1798 (allowed to expire in the years immediately following Jefferson's election in 1800), which charged as misdemeanors the uttering, publishing, or printing of false and malicious writings against the government, was a spasm in the other direction, as was the Sedition Act of 1918 and the Wilson Act of 1940. Leek, "Treason and the Constitution," 618-619.
29. Hurst, Law of Treason, 7, 198-201; Carlton F. W. Larson, "The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem," University of Pennsylvania Law Review 154 (2005-2006) 901-902.
30. The numbers vary: see Mary Connery, "Hung, Drawn and Quartered? The Future of the Constitutional Reference to Treason," Trinity College Law Review 5 (2002) 73; Leek, "Treason and the Constitution," 616.
31. John N. Hazard and William B. Stern, "âExterior Treason': A Study in ComÂparative Criminal Law," University of Chicago Law Review 6, 1 (1938) 78; Leek, "TreaÂson and the Constitution," 617.
32. George Washington pardoned the insurrectionaries of the Whiskey Rebellion of 1794 to undercut hardcore dissent from the new republic. Erin Creegan, "National Security Crime," Harvard National Security Journal 3 (2011-2012) 380. But some SouthÂern residents were prosecuted for treason consisting of adherence to the North. Cramer v. United States, 325 US 1 (1945), n. 14.
33. Cramer v. United States, 325 US 1 (1945) 26.
34. Bruno S. Frey, "Why Kill Politicians? A Rational Choice Analysis of Political Assassinations," Working Paper Series, Institute for Empirical Research in Economics, University of Zurich (2007) 3; Abdelilah Bouasria, "Elian Gonzalez: The Messiah of Fidel Castro,â Journal of the International Relations and Affairs Group 1, 1 (2011) 107. Attempts on Castro's life are documented in the film 638 Ways to Kill Castro (2006).
35. Zaryab Iqbal and Christopher Zorn, "Sic semper tyrannis? Power, RepresÂsion, and Assassination since the Second World War," Journal of Politics 68, 3 (2006) passim.
36. Otto Kirchheimer, Political Justice (Princeton 1961) 34-35.
37. Connery, "Hung, Drawn, and Quartered?," 65.
38. A. H. J. Greenidge, "The Conception of Treason in Roman Law," Juridical Review 7 (1895) 230.
39. Van Patten, "Magic, Prophecy, and the Law of Treason," 4. To be precise, traiÂtors forfeited their lands to the king, but felons' land escheated. Pollock and Maitland, History of English Law, 1:351. This was one of the motives that prompted the developÂment of trusts in English common lawâto prevent land of those declared enemies by the king from escheating to him. G. R. Elton, "The Law of Treason in the Early Reformation," Historical Journal 11, 2 (1968) 216; Bellamy, Tudor Law of Treason, 10.
40. Kathleen A. Parrow, "Neither Treason nor Heresy: Use of Defense Arguments to Avoid Forfeiture during the French Wars of Religion," Sixteenth Century Journal 22, 4 (1991) 706.
41. Montesquieu, Spirit of the Laws, 12:7.
42. Lear, Treason, 152; Samuel Rezneck, "The Early History of the Parliamentary Declaration of Treason," English Historical Review 42, 168 (1927) 504; Bellamy, Tudor Law of Treason, 42-43; Carla Hesse, "The Law of the Terror," Modern Language Notes 114, 4 (1999) 717; 27 Elizabeth I, c. 2.
43. Admittedly charged with defamation, not treason. Thomas Fuller, "Thai Man May Go to Prison for Insulting King's Dog," New York Times, 14 December 2015; Austin Ramzy and Wai Moe, "Myanmar Poet Who Wrote of Penis Tattoo Is Convicted of Defaming Ex-Leader," New York Times, 24 May 2016.
44. Simon, "Evolution of Treason," 699; Connery, "Hung, Drawn, and Quartered," 68-69; Paul T. Crane, "Did the Court Kill the Treason Charge? Reassessing Cramer v. United States and Its Significance," Florida State University Law Review 36 (2008-2009) 636-639; Eichensehr, "Treason in the Age of Terrorism," 1457.
45. G. A. Kelly, "From Lese-Majeste to Lese-Nation: Treason in EighteenthÂCentury France," Journal of the History of Ideas 42, 2 (1981) 269-270.
46. MacDowell, Law in Classical Athens, 176; Lear, Treason, xix, 28; Barrington Moore Jr., "Cruel and Unusual Punishment in the Roman Empire and Dynastic China," International Journal of Politics, Culture, and Society 14, 4 (2001) 734.
47. Gretason, "Crime, Guilt, and Punishment," 142; Romans 13:1. Early colonial statutes in North America cited more elliptically relevant sources, from Samuel and Numbers. Hurst, Law of Treason, 69-70.
48. Innocent III, Vergentis in senium, decretal letter, 25 March 1199. See Helga Schnabel-Schule, "Das Majestatsverbrechen als Herrschaftsschutz und Herrschaftskri- tik," Aufklarung 7, 2 (1994) 35; Peters, Torture, 53; Kenneth Pennington, "âPro peccatis patrum puniri': A Moral and Legal Problem of the Inquisition," Church History 47, 2 (1978) 137.
49. Levy, Treason against God, 169; Parrow, "Neither Treason nor Heresy," 707; Garnot, "La legislation et la repression des crimes," 78.
50. W. H. Greenleaf, "James I and the Divine Right of Kings,â Political Studies 5, 1 (1957) 47; Schnabel-Schule, "Majestatsverbrechen," 36.
51. Hesse, "Law of the Terror," 708; von Bar, History of Continental Criminal Law, 279-281. Lese-majeste divine was abolished in the new penal code of 1791. This term was used also by Calvin. Levy, Treason against God, 131.
52. Florike Egmond, "The Cock, the Dog, the Serpent, and the Monkey: Reception and Transmission of a Roman Punishment, or Historiography as History," InternaÂtional Journal of the Classical Tradition 2, 2 (1995) 167, passim; Mary Nagle Wessling, "Infanticide Trials and Forensic Medicine: Wurttemberg 1757-93," in Michael Clark and Catherine Crawford, eds., Legal Medicine in History (Cambridge 1994) 118.
53. Moore, "Cruel and Unusual Punishment," 747.
54. James Fitzjames Stephen, A History of the Criminal Law of England (London 1883) 3:95.
55. Art 13. Attempts on the emperor were punished as parricide. Art 86. AmpuÂtation was abolished in 1832 and parricide was no longer singled out in the penal code of 1994.
56. Shigenori Matsui, "Constitutional Precedents in Japan: A Comment on the Role of Precedent," Washington University Law Review 88, 6 (2011) 1674.
57. In the Roman Empire and in the English statute of 1351. Lear, Treason, xiv- xv, 30.
58. Cuttler, Law of Treason, 29.
59. 28 Henry VIII, c. 24; Bellamy, Tudor Law of Treason, 36.
60. "Editor Defends Diana over Mirror Letters," BBC News, 31 August 2000, http://news.bbc.co.uk/1Zhi/uk/905239.stm.
61. Lear, Treason, xvi.
62. Greenidge, "Conception of Treason," 229.
63. Elmer Truesdell Merrill, "Some Remarks on Cases of Treason in the Roman Commonwealth," Classical Philology 13, 1 (1918) 35.
64. Schisas, Offenses against the State, 6.
65. Isaac J. Colunga, "Untangling a Historian's Misinterpretation of Ancient Rome's Treason Laws," Journal Jurisprudence 9 (2011) 11-15, 17; C. W. Chilton, "The Roman Law of Treason under the Early Principate," Journal of Roman Studies 45 (1955) 74-75; von Bar, History of Continental Criminal Law, 42.
66. As an aside, until 2003 the US Secret Service was the police arm of the TreaÂsury and had as its main functions investigating counterfeiting and other violations of money as well as protecting the president.
67. Lear, Treason, 29.
68. Adalbert Erler and Ekkehard Kaufmann, eds., Handworterbuch zur Deutschen Rechtsgeschichte (Berlin 1971) 1:649.
69. Lear, Treason, chaps. 5 and 6. The Nazis used the same terminology. Georg Dahm, "Verrat und Verbrechen," Zeitschrift fur die gesammte Staatswissenschaft 95, 2 (1935) 291-292.
70. Brunner, Land and Lordship, 222-223.
71. The English Treason Act 1351 (25 Edward III, st. 5, c. 2) codified this. Petty treason involved a servant killing his master or a wife her husband. The penalties were slightly milder than for high treasonâno quartering, but still drawing and hanging. Lear, Treason, 241-242.
72. As distinguished from Landesverrat, which includes acts of outright collaboÂration and aid to an enemy, as opposed to internal sedition.
73. Simon, "Evolution of Treason,â 685; Foster, quoted in Hurst, Law of Treason, 43.
74. King, Law and Society in the Visigothic Kingdom, 40-41; Harding, Medieval Law, 38, 44.
75. Treason Act 1351, 25 Edward III, st. 5, c. 2.
76. Greenleaf, "James I," 45.
77. Quentin Skinner, "The State," in Terence Ball et al., eds., Political Innovation and Conceptual Change (Cambridge 1989) 124.
78. Lewis, Sanctioned Violence, 205.
79. Lear, Treason, 14.
80. Simon, "Evolution of Treason," 681; Elton, "Law of Treason," 211.
81. Ralph E. Giesey et al., "Cardin Le Bret and Lese Majesty," Law and History Review 4, 1 (1986) 28-29.
82. Lear, Treason, 40: Brian Z. Tamanaha, On the Rule of Law (Cambridge 2004) 24.
83. Ann Lyon, "From Dafydd ap Gruffydd to Lord Haw-Haw: The Concept of Allegiance in the Law of Treason," Cambrian Law Review 33 (2002) 37; Bellamy, Law of Treason, 10; Cuttler, Law of Treason, 5.
84. That rebellion against a tyrant is not treason was also identified in the Golden Bull of Hungary in 1222, the Peace of Fexhe of the Principality of Liege, and the Joyeuses entrees of Brabant in 1356. M. Denis Szabo, "Political Crimes," Denver Journal of International Law and Policy 2 (1972) 13.
85. Richard L. Greaves, "Concepts of Political Obedience in Late Tudor England," Journal of British Studies 22, 1 (1982) 25; Gordon, Controlling the State, 125-126.
86. D. Alan Orr, Treason and the State: Law, Politics, and Ideology in the English Civil War (Cambridge 2002) 4, 176.
87. Thomas Hobbes, Leviathan, chap. 21.
88. Szabo, "Political Crimes," 8-10.
89. Bellamy, Law of Treason, 64.
90. Michael Jones, "'Bons Bretons et bons Francoys': The Language and Meaning of Treason in Later Medieval France," Transactions of the Royal Historical Society 32 (1982) 96.
91. Orr, Treason and the State, 19.
92. Bellamy, Law of Treason, 206-207; Brackett, Criminal Justice and Crime in Late Renaissance Florence, 127-128.
93. Conrad Russell, "The Theory of Treason in the Trial of Strafford," English HisÂtorical Review 80, 314 (1965) 37, 46; Orr, Treason and the State, 183, 4.
94. Every Man His Own Lawyer (New York 1768) 266, quoted in Larson, "ForgotÂten Constitutional Law," 901.
95. Strafgesetzbuch fur das Konigreich Baiern, art. 300. Articles 309 and followÂing include detailed accounts of libel and other trespasses against the sovereign, his wife, and heir.
96. French penal code, 1810, art. 86.
97. Fritz van Calker et al., Verbrechen und Vergehen gegen den Staat und die Staats- gewalt (Berlin 1906) 26, 103-104, 111. However, insulting and defaming the monarch were crimes much less regulated and prosecuted in England than in most other EuroÂpean nations.
98. Treason Act of 1695, 7 & 8 William III, c. 3, s. 6.
99. Treason Act of 1795, 36 George III, c. 7.
100. Treason Act of 1800, 39 & 40 George III, c. 93. The Treason Act of 1817 also removed other protections from the statute of 1695 for those who assaulted the monarch. 57 George III, c. 6 s. 4, repealed by Crime and Disorder Act 1998, c. 37.
101. Giles St. Aubyn, Queen Victoria (London 1991) 161-163.
102. Treason Act of 1842, 5 & 6 Vict., c. 51. Until the Security from Violence Act 1863, which punished robbery with violence, the firearms violation was the only crime punished by whipping. Jennifer Davis, "The London Garotting Panic of 1862,â in Gatrell et al., Crime and the Law, 208.
103. Crime and Disorder Act 1998, c. 37.
104. Eichensehr, "Treason in the Age of Terrorism,â 1450-1451.
105. Kelly, "From Lese-Majeste to Lese-Nation," 272-273, 283-284.
106. French penal code, art. 86.
107. Thomas R. Robinson, "Treason in Modern Foreign Law," Boston University Law Review 2 (1922) 102.
108. Ernst J. Schuster, "'Lese-Majeste' in Germany," Journal of the Society of ComparaÂtive Legislation, n.s. 41 (1901) 43; Reichsstrafgesetzbuch (1871), §§94-104; Robinson, "Treason in Modern Foreign Law," 108. Thirteen European nations still make insulting the head of state a crime. Economist, 4 June 2016.
109. Reichsstrafgesetzbuch (1871), §80.
110. Robinson, "Treason in Modern Foreign Law," 99. The Prussian Code of 1794 made similar distinctions: Hoch and Landesverrat and then Majestatsbeleidigung, pt. 2, chap. 20, sect. 5, §196.
111. Robinson, "Treason in Modern Foreign Law," 98; Calker et al., Verbrechen und Vergehen, 28-29; Thomas Vormbaum, A Modern History of German Criminal Law (Berlin 2014) 153.
112. Law of 21 July 1922; Richard J. Evans, Rituals of Retribution: Capital PunishÂment in Germany, 1600-1987 (London 1996) 505-506.
113. Strafgesetzbuch, §81.
114. French penal code, 1994, art. 410-411. Other aspects of these fundamental interests are "the balance of its natural surroundings and environment, and the essenÂtial elements of its scientific and economic potential and cultural heritage."
115. George P. Fletcher, "The Case for Treason," Maryland Law Review 41, 2 (1982) 199.
116. 18 USC §871; Abrams, "Threats to the President," 351.
117. The killing of John F. Kennedy's assassin, Lee Harvey Oswald, by Jack Ruby was blamed on the federal authorities' inability to take the case out of local hands. US Senate, Judiciary Committee Report 89-498, 21 July 1965, 2, 6.
118. 18 USC §1751; Abrams, "Threats to the President," 379.
119. Simon, "Evolution of Treason," 687; Bellamy, Tudor Law of Treason, 16-17; "History of Treason," 147.
120. "Historical Concept of Treason," 73.
121. Bellamy, Law of Treason, 207-208.
122. Penal ordinance of 1532, Emperor Charles V, art. 127; Peter Blickle, "The Criminalization of Peasant Resistance in the Holy Roman Empire," Journal of Modern History 58 (1986) S88.
123. Blickle, "Criminalization of Peasant Resistance,â S91-93.
124. Orr, Treason and the State, 173.
125. Cramer v. United States, 325 US 1 (1945) 21.
126. Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (orig. ed. 1941; reprint, Oxford 2017) 49.
127. Angela K. Bourne and Fernando Casal Bertoa, "Mapping âMilitant DemocÂracy': Variation in Party Ban Practices in European Democracies (1945-2015)," EuroÂpean Constitutional Law Review 13 (2017) 230.
128. Thomas R. Robinson, "Treason in Roman Law," Georgetown Law Journal 8 (1919-1920) 20.
129. Hurst, Law of Treason, 70.
130. US Constitution, art. 4, §4.
131. Andrews, "Boundaries of Citizenship," 93.
132. Decree of 4 December 1792, http://artflsrv02.uchicago.edu/cgi-bin/philo logic/getobject.pl?c.32:43.baudouin0314.
133. French penal code, 1810, art. 87. The Belgian penal code of 1867 gave much the same definition of treason.
134. Hurst, Law of Treason, 49; Calker et al., Verbrechen und Vergehen, 4.
135. These are the themes of Ingraham, Political Crime in Europe, chapters 13-15. But Ingraham makes of this trend a return to the old importance of treason rather than the historical anomaly it seems in retrospect to have been. Similar themes are found in Margaret Boveri, Treason in the Twentieth Century (New York 1963) 6-8 and passim.
136. Packer, "Offenses against the State," 83; Abrams, "Threats to the President," 358; Szabo, "Political Crimes," 16.
137. The English concept of high treason is confusingly closer to the German Landesverrat than to Hochverrat. Landesverrat is giving away state secrets to foreign powers. Hochverrat is violently undermining the constitutional order. Strafgesetzbuch, §§94, 81. In the US Constitution, treason is defined as levying war against the states or aiding and giving comfort to their enemies. Only in the penal code is sedition mentioned as internal attempts to overthrow the government. Sedition is rebellion against the authority of the United States or its laws. 18 USC §2383. And there is a crime of advocatÂing the overthrow or destruction of the government. 18 USC §2385.
138. Williams, Tudor Regime, 376; Elton, "Law of Treason," 222, 231-232; Orr, Treason and the State, 18. Earlier examples are given in in I. D. Thornley, "The Treason Legislation of Henry VIII," Transactions of the Royal Historical Society 11 (1917) 107Â109. An overview is given in Cressy, Dangerous Talk, chap. 3. The Treason Act 1534 was repealed in 1547 under Edward VI.
139. Abrams, "Threats to the President," 374-376; Cuttler, Law of Treason, 47. By the seventeenth century, spoken words alone were no longer thought to constitute treason.
140. Andrews, "Boundaries of Citizenship," 92-93.
141. New York Act, 30 March 1781, cited in Cramer v. United States, 325 US 1 (1945) n. 13.
142. Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York 1987) 149; Tom W. Bell, "Treason, Technology, and Freedom of Expression," Arizona State Law Journal 37 (2005) 1028-1029.
143. Abrams, "Threats to the President," 352, 355-356.
144. Michael Lobban, "From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c1770-1820," Oxford Journal of Legal Studies 10 (1990) 307-309; El-Haj, "Defining Peaceably," 967.
145. 18 USC §§2383-2384. But anyone convicted of insurrection was punished with only up to ten years in prison and forbidden to hold office. These paragraphs were based on laws of 17 July 1862 and 31 July 1861, respectively. Revised Statutes of the United States, 2nd ed. (Washington DC 1878) §§5334, 1036; 5336, 1037.
146. Creegan, "National Security Crime," 381-382.
147. 18 USC §§2385-2386.
148. Crane, "Did the Court Kill the Treason Charge?" 684; Hazard and Stern, "âExterior Treason,'" 81; Broughton, "Snowden Affair," 10; Eichensehr, "Treason in the Age of Terrorism," 1472.
149. The Rosenbergs were convicted only of conspiring to spy because the statute of limitations on espionage had run out. Packer, "Offenses against the State," 87.
150. Treason Felony Act 1848, 11 & 12 Vict., c. 12; Radzinowicz, History of EngÂlish Criminal Law, 5:461.
151. Treachery Act 1940, 3 & 4 George VI, c. 40.
152. French penal code, 1994, arts. 411-2 to 411-11, 412-1 to 450-5.
153. Hazard and Stern, "Exterior Treason" 85-86.
154. Harry Soderman and John J. O'Connell, Modern Criminal Investigation, 5th ed. (New York 1962) 499.
155. Martin van Creveld, The Rise and Decline of the State (Cambridge 1999) 401-402.
156. Richard Moran, "The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800)," Law and Society Review 19, 3 (1984) 493, 495.
157. Eric H. Monkkonen, Police in Urban America, 1860-1920 (Cambridge 1981) 63.
158. United States v. Lawrence, 26 F. Cas. 887 (C.C.D.C. 1835) (No. 15,557), cited in William F. Duker, "The Right to Bail," Albany Law Review 42 (1977) 90; Foote, "Coming Constitutional Crisis," 992.
159. Ingraham, Political Crime in Europe, 128.
160. Robert Aitken and Marilyn Aitken, "The M'Naghten Case: The Queen Was Not Amused," Litigation 36, 4 (2010) 55.
161. Though Napoleon III was perhaps suspected of this fabrication unfairly: see Howard C. Payne, The Police State of Louis Napoleon Bonaparte 1851-1860 (Seattle 1966) 268-269.
Chapter 5
1. Mommsen, Romisches Strafrecht, 24; Maine, Ancient Law, 81.
2. Weisser, Crime and Punishment, 21.
3. Figures are surprisingly hard to come by. This paywalled site claims to have some: https://www.statisticbrain.com/arranged-marriage-statistics/.
4. Lintott, Violence in Republican Rome, 7.
5. Vigilantism is "unreasonable self-help action by citizens that tends to disrupt the administration of the criminal justice system.â State v. Johnson, 122 N.M. 696, 930 P.2d 1148 (1996), quoted in Jane Boyd Ohlin and Alvin Stauber, "The ApplicaÂbility of Citizen's Arrest Powers to the Hospitality Industry," Journal of Hospitality and Tourism Research 27, 3 (2003) 345.
6. R v. Brown [1993] 2 All ER 75, 4, http://www.bailii.org/uk/cases/UKHL/1993 /19.html; Barbara Falsetto, "Crossing the Line: Morality, Society, and the Criminal Law," Cambridge Student Law Review 5 (2009) 186-187.
7. Thomas C. Grey, The Legal Enforcement of Morality (New York 1983) 145-146.
8. Patrick Devlin, The Enforcement of Morals (London 1965) 6.
9. Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 (Chapel Hill 1991) 13.
10. Muir, Mad Blood Stirring, chap. 8.
11. Markku Peltonen, The Duel in Early Modern England (Cambridge 2003) 67, 110.
12. Bartlett, Trial by Fire and Water, chap. 6.
13. John W. Baldwin, "The Intellectual Preparation for the Canon of 1215 against Ordeals," Speculum 36, 4 (1961) 616.
14. Grettir's Saga, trans. Denton Fox and Hermann Palsson (Toronto 1974) 39.
15. Bartlett, Trial by Fire and Water, 104-105, 120-122.
16. Bartlett, Trial by Fire and Water, 114.
17. Austrian Aryans did not accept challenges from Jews, for example, unless they were especially persistent. George Weidenfeld, Remembering My Good Friends (London 1994) 60-61.
18. Boehm, Blood Revenge, 87.
19. Ute Frevert, "Honour and Middle-Class Culture: The History of the Duel in England and Germany," in Jurgen Kocka and Allen Mitchell, eds., Bourgeois Society in Nineteenth-Century Europe (Oxford 1993). The Dutch, in contrast, were unimpressed. Pieter Spierenburg, Violence and Punishment: Civilizing the Body through Time (CamÂbridge 2013) 44-45.
20. Beattie, Crime and the Courts, 92.
21. Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven 2001) chap. 4.
22. Spierenburg, History of Murder, 73-78.
23. Appiah, Honor Code, 30; Spierenburg, History of Murder, 182.
24. Banner, Death Penalty, 78; Kollmann, Crime and Punishment, 406.
25. R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge MA 2015) 152; Ryan P. Brown, Honor Bound: How a Cultural Ideal Has Shaped the American Psyche (New York 2016) 16.
26. This is the spirit in which economists have approached vigilantism. Kelly D. Hine, "Vigilantism Revisited," American University Law Review 47 (1998) 1241.
27. Stephen P. Frank, "Popular Justice, Community, and Culture among the Russian Peasantry, 1870-1900," Russian Review 46, 3 (1987) 240-241; Spierenburg, Spectacle of Suffering, 11.
28. Samuel Walker, Popular Justice: A History of American Criminal Justice (New York 1980) 31-32; William C. Culberson, Vigilantism: Political History of Private Power in America (New York 1990) 37.
29. France, Code de procedure penale, art. 73; Germany, Strafprozefiordnung, §127; Malaysia, Criminal Procedure Code, sect. 27.
30. Culberson, Vigilantism, 11.
31. Alan Hunt, Governing Morals: A Social History of Moral Regulation (Cambridge 1999) 60; Roth, American Homicide, 193-194, 266-267; Frederick Allen, "Montana Vigilantes and the Origins of 3-7-77,â Montana: The Magazine of Western History 51, 1 (2001) 4-6; Friedman and Havemann, "Rise and Fall of Unwritten Law," 1021; CulÂberson, Vigilantism, 47; Ira P. Robbins, "Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest," Cornell Journal of Law and Public Policy 25 (2016) 560, 580. In MonÂtana, schools and businesses are still named "Vigilante" as a mark of approval.
32. Stephanie Juliano, "Superheroes, Bandits, and Cyber-nerds: Exploring the History and Contemporary Development of the Vigilante," Journal of International Commercial Law and Technology 7, 1 (2012) 44-45.
33. Culberson, Vigilantism, 5; Elizabeth Dale, Criminal Justice in the United States, 1789-1939 (Cambridge 2011) 47.
34. Sylvia D. Hoffert, "Gender and Vigilantism on the Minnesota Frontier: Jane Grey Swisshelm and the U.S.-Dakota Conflict of 1862," Western Historical Quarterly 29, 3 (1998) 357-359; Walter T. Howard, "Vigilante Justice and National Reaction: The 1937 Tallahassee Double Lynching," Florida Historical Quarterly 67, 1 (1988) 42.
35. One such orgy of lynch violence was the case of George Hughes in Texas in 1930. Beth Crabb, "White Man's Justice for a Black Man's Crime," Journal of Negro History 75 (1990).
36. Tsuyoshi Hasegawa, Crime and Punishment in the Russian Revolution: Mob JusÂtice and the Police in Petrograd (Cambridge MA 2017) chap. 5.
37. Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social InsecuÂrity (Durham NC 2009) 217-218; Juliano, "Superheroes," 58.
38. Franklin E. Zimring, The Contradictions of American Capital Punishment (New York 2003) 90.
39. David Garland, Peculiar Institution: America's Death Penalty in an Age of AboliÂtion (Cambridge MA 2010) 31.
40. Michael J. Pfeifer, Rough Justice: Lynching and American Society, 1874-1947 (Urbana 2004) 29, chap. 4.
41. There were 1,540 lynchings versus 1,215 executions. Terance D. Miethe and Hong Lu, Punishment: A Comparative Historical Perspective (Cambridge 2005) 98.
42. Calculated from figures at Tuskegee University. Tuskegee University Archives Repository, 022 Lynching Information, Monroe Work's Compilation, "Lynching, Whites & Negroes, 1882-1968."
43. Zimring, Contradictions of American Capital Punishment, 89-90.
44. Borge Bakken, "China, a Punitive Society?" Asian Criminology 6 (2011) 40-41.
Chapter 6
1. Ugo Mattei, Basic Principles of Property Law (Westport 2000) 65-67; Barry Nicholas, An Introduction to Roman Law (Oxford 1962) 129-130.
2. Although for many offenses the talionic logic was not in fact eye for eye but an infliction that preventively rendered the offender harmlessâthus, castration for rape, not counterrapeâexcept in Assyria. Diamond, Primitive Law, 98, 102.
3. This description comes from the second-century Christian text Apocalypse of Peter. Meeks, Origins of Christian Morality, 176; Bernstein, Formation of Hell, 285.
4. Beccaria, On Crimes and Punishments, chap. 7.
5. Gerald Dworkin and David Blumenfeld, "Punishment for Intentions,â Mind 75, 299 (1966) 396-399.
6. David Boonin, The Problem of Punishment (Cambridge 2008) 57; Paul H. RobÂinson, "Punishing Dangerousness: Cloaking Preventive Detention as Criminal JusÂtice," Harvard Law Review 114, 5 (2001) 1438.
7. Jeremy Bentham, Principles of Penal Law, in John Bowring, ed., Works of Jeremy Bentham (Edinburgh 1838) 1:396.
8. Bentham, Principles of Penal Law, 398.
9. Drapkin, Crime and Punishment, 211; von Bar, History of Continental Criminal Law, 337, 381.
10. Although Kant was not interested in deterrence, his concern with the bloodguilt that would adhere to that community's members even as they disÂpersed if they failed to carry out the sentence arguably suggested a worry with supernatural anger that introduced a preventive noteâprevention against divine retribution. Kant, Philosophy of Law, 198.
11. Robinson, "Punishing Dangerousness," 1439-1440.
12. Punishing attempted murder less than actual murder made no sense unless the hope was to encourage accomplice behavior as a preferable alternative to primary perpetrator behavior. Dressler, "Reassessing the Theoretical Underpinnings," 114.
13. Such branding was therefore ended after seven years. Beattie, Crime and the Courts, 491.
14. Esmein, History of Continental Criminal Procedure, 235; Radzinowicz, History of English Criminal Law, 1:730; Meghan A. Novisky and Robert L. Peralta, "When Women Tell: Intimate Partner Violence and the Factors Related to Police NotificaÂtion," Violence against Women 21, 1 (2015) 67.
15. Montesquieu, Spirit of the Laws, 6:16. The marginal deterrence, as modern economists would put it, was askew. George J. Stigler, "The Optimum Enforcement of Laws," Journal of Political Economy 78 (1970) 527.
16. Francis Fukuyama, The Origins of Political Order (New York 2011) 130.
17. Amy Adler, "The Perverse Law of Child Pornography," Columbia Law Review 101, 2 (2001) 254-256, 262-265.
18. The Digest of Justinian, trans. Alan Watson (Philadelphia 1985) 1.1.10.
19. Kant, Metaphysics of Morals, 6:332.
20. J. M. Kelly, A Short History of Western Legal Theory (Oxford 1992) 448-449; Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability (Cambridge 2009) 192-196.
21. Hobbes, Leviathan, chap. 28.
22. John Locke, Second Treatise, chap. 2, sec. 8.
23. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford 1907) 170.
24. Von Bar, History of Continental Criminal Law, 4-5; Nicola Lacey, State PunishÂment (London 1988) chap. 2.
25. The logic spelled out by Socrates in Plato, Gorgias, 525A-B.
26. Plato, Protagoras, 324.
27. Walker, Popular Justice, 247.
28. William Blackstone, Commentaries on the Laws of England (Oxford 1765Â1769) 4:249.
29. Hugo Adam Bedau, "Capital Punishment,â in Tom Regan, ed., Matters of Life and Death (New York 1993) 182; Arne Jansson, From Swords to Sorrow: Homicide and Suicide in Early Modern Stockholm (Stockholm 1998) 19, chap. 3; Karin Andriolo, "Murder by Suicide: Episodes from Muslim History," American Anthropologist 104, 3 (2002) 739; Vitale, End of Policing, 79.
30. Dubber, Dual Penal State, 149.
31. That was Alex's objection to hearing Beethoven while being reprogrammed in Stanley Kubrick's film A Clockwork Orange.
32. Friedland, Seeing Justice Done, 62; Drapkin, Crime and Punishment, 27-28; Spie- renburg, Spectacle of Suffering, 76. The deterrent effect of banishment was undercut, however, as Bentham pointed out, by the punishment being inflicted far away from those to be deterred. Also it incapacitated only as far as the source community was concerned, not necessarily the destination society. John Hirst, "The Australian ExperiÂence," in Norval Morris and David J. Rothman, eds., Oxford History of the Prison (New York 1995) 274.
33. Hence, the Soviet Union never imposed life sentences, thinking that all prisÂoners could be rehabilitated. Thaman, "Marxist and Soviet Law," 314.
34. John C. Coffee Jr, "Paradigms Lost: The Blurring of the Criminal and Civil Law Models. And What Can Be Done about It," Yale Law Journal 101, 8 (1992) 1882.
35. Friedland, Seeing Justice Done, 207.
36. Parker, Miasma, 118; Treston, Poine, 140; Hirst, "Australian Experience," 274-275.
37. Herbert L. Packer, The Limits of the Criminal Sanction (Stanford 1968) 44-45; Paul H. Robinson and John M. Darley, "The Utility of Desert," Northwestern UniverÂsity Law Review 91 (1996-1997) 454.
38. Williams, Tudor Regime, 235.
39. David J. Rothman, "Perfecting the Prison," in Morris and Rothman, Oxford History of the Prison, 125; Norval Morris, "The Contemporary Prison," in Morris and Rothman, Oxford History of the Prison, 247; Edgardo Rotman, "The Failure of Reform," in Morris and Rothman, Oxford History of the Prison, 172, 189-190; Robinson and Darley, "Utility of Desert," 464; Bernard E. Harcourt, "The Shaping of Chance: ActuarÂial Models and Criminal Profiling at the Turn of the Twenty-First Century," University of Chicago Law Review 70, 1 (2003) 105-109.
40. Anthony Bottoms, "The Philosophy and Politics of Punishment and SenÂtencing," in Chris Clarkson and Rod Morgan, eds., The Politics of Sentencing Reform (Oxford 1995) 19-21; Harcourt, "Shaping of Chance," 105.
41. Miethe and Lu, Punishment, 211.
42. Andrew Ashworth, "Social Control and âAnti-social Behaviour': The SubverÂsion of Human Rights," Law Quarterly Review 120 (2004) 270-271; Roberts et al., Penal Populism, 127; Barnett, "Restitution," 288-298; Lacey, State Punishment, 11.
Chapter 7
1. Vega, Royal Commentaries of the Incas, 96.
2. Plato, Laws, bk.10, 908a; Jones, Law and Legal Theory of the Greeks, 119.
3. Danielle S. Allen, The World of Prometheus: The Politics of Punishing in DemoÂcratic Athens (Princeton 2000) 202; Crook, Law and Life of Rome, 272.
4. Parker, Miasma, 118; Salima Ikram, Ancient Egypt (Cambridge 2010) 230; Lorton, "Treatment of Criminals,â 7, 30. Similar attempts were made in Rome to eradicate the names of traitors altogether. Chilton, "Roman Law of Treason," 80.
5. Plato, Laws, bk. 9, chap. 12, 873a-c.
6. Michael R. Dutton, Policing and Punishment in China (Cambridge 1992) 78-79; Pollock and Maitland, History of English Law, 1:478.
7. Jakub J. Grygiel, Return of the Barbarians: Confronting Non-state Actors from Ancient Rome to the Present (Cambridge 2018) 35-41.
8. Anthony Giddens, The Nation-State and Violence (Berkeley 1987) 51, 79.
9. Leviticus 18:28-29, 20:3-5.
10. Gagarin, Drakon, 123.
11. MacDowell, Law in Classical Athens, 73; Seipp, "Distinction between Crime and Tort," 64.
12. Treston, Poine, 257; MacDowell, Law in Classical Athens, 117; Jones, Law and Legal Theory of the Greeks, 256.
13. Drapkin, Crime and Punishment, 77-79.
14. Genesis 4:12-21.
15. Bodde and Morris, Law in Imperial China, 78; Byock, Viking Age Iceland, 315.
16. Ames, Righteous Persecution, 150.
17. James Casey, "Household Dispute and the Law in Early Modern Andalusia," in Bossy, Disputes and Settlements, 210; Alan Williams, The Police of Paris 1718-1789 (Baton Rouge 1979) 235.
18. Pieter Spierenburg, "The Body and the State," in Morris and Norval, Oxford History of the Prison, 62; von Bar, History of Continental Criminal Law, 32-33; Chilton, "Roman Law of Treason," 74-76.
19. Law of 28 March 1793; Lascoumes et al., Au nom de l'ordre, 160; Julian Swann, Exile, Imprisonment, or Death: The Politics of Disgrace in Bourbon France, 1610Â1789 (Oxford 2017) 62, 185-188; Patricia O'Brien, The Promise of Punishment: Prisons in Nineteenth- Century France (Princeton 1982) 260.
20. Hirst, "Australian Experience," 264.
21. Given, Society and Homicide, 93; Pollock and Maitland, History of English Law, 1:478; Spierenburg, "Body and the State," 62-63; Williams, Police of Paris, 235.
22. Alice Bullard, Exile to Paradise: Savagery and Civilization in Paris and the South Pacific, 1790-1900 (Stanford 2000) chap. 5; Patricia O'Brien, "The Prison on the Continent," in Morris and Norval, Oxford History of the Prison, 212; Andrews, "Boundaries of Citizenship," 94; Wright, Between the Guillotine and Liberty, 93, 130, 138, 184.
23. Spierenburg, "Body and the State," 76; Miethe and Lu, Punishment, 31.
24. Hirst, "Australian Experience," 293.
25. Hans Mommsen, "The Realization of the Unthinkable: The Final Solution of the Jewish Question in the Third Reich,â in Gerhard Hirschfeld, ed., The Policies of Genocide (London 1986).
26. David L. Hoffmann, "The Conceptual and Practical Origins of Soviet State Violence," in Harris, Anatomy of Terror, 89; Philip Ther, The Dark Side of Nation-States: Ethnic Cleansing in Modern Europe (New York 2014) 180-196.
27. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 69; John A. Davis, Conflict and Control: Law and Order in Nineteenth-Century Italy (Atlantic HighÂlands 1988) 131, 223-226.
28. Kollmann, Crime and Punishment, 243-245; Thaman, "Marxist and Soviet Law," 314-315.
29. Bodde and Morris, Law in Imperial China, 82-84; Frank Dikotter, Crime, PunÂishment, and the Prison in Modern China (New York 2002) 53.
30. Dutton, Policing and Punishment in China, 82.
31. Though do not forget how many are still assassinated abroad by operatives from the regimes they have fled, such as Russians in London and Rwandan opposiÂtion members abroad.
32. Plato, Apology, 37c.
33. "Australia Plans to Deny Passports to Convicted Paedophiles," BBC News, 30 May 2017, http://www.bbc.co.uk/news/world-australia-40089351.
34. The United States has the most elaborate such rules. Britain and France also have sex-offender registries, but they are not made public. Keith Soothill, "Sex Offender Recidivism," Crime and Justice 39, 1 (2010) 151, 189, 191; Roberts et al., Penal Populism, 140; Corey Rayburn Yung, "The Emerging Criminal War on Sex Offenders," Harvard Civil Rights-Civil Liberties Law Review 45 (2010) 448-450; New York Times, 2 October 2005, A20.
35. Joseph Goldstein, "Housing Restrictions Keep Sex Offenders in Prison beyond Release Dates," New York Times, 21 August 2014.
36. Automatic alarms go off if sex offenders approach: Spiegel 32 (2005) 56.
37. Mandatory life sentences are now also possible in Britain. Ashworth and Zedner, Preventive Justice, 156-157; Howard, Unusually Cruel, 44.
38. Dubber, "Policing Possession," 855.
39. Diane Taylor, "Former UBS Trader Kweku Adoboli Vows to Fight DeportaÂtion," Guardian, 18 August 2018; Vanessa Barker, Nordic Nationalism and Penal Order: Walling the Welfare State (Milton Park 2017) 92.
40. Peter John Young, "Punishment, Money, and Legal Order: An Analysis of the Emergence of Monetary Sanctions with Special Reference to Scotland," PhD diss., Edinburgh University, 1987, passim, especially chap. 3.
41. Pat O'Malley, The Currency of Justice: Fines and Damages in Consumer Societies (Abingdon 2009) 58-60, 77-79.
42. And the majority of sentences for antitrust, food and drug, and environmenÂtal offenses. Newburn, "âTough on Crime,'" 446-447; US Sentencing Commission, Overview of Federal Criminal Cases: Fiscal Year 2018 (June 2019) 1, 9, 10, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019 /FY18_Overview_Federal_Criminal_Cases.pdf.
43. Drapkin, Crime and Punishment, 22-26.
44. Charles H. Miller, "The Place of the Fine in Modern Penology,â Proceedings of the American Prison Association (1951) 209-210.
45. Derek A. Westen, "Fines, Imprisonment, and the Poor," California Law Review 57 (1969) 783-785.
46. Green, Verdict according to Conscience, 15, 100-101.
47. Calvin R. Massey, "The Excessive Fines Clause and Punitive Damages," Vanderbilt Law Review 40, 6 (1987) 1253.
48. Tacitus, Germania, chap. 12; Phillpotts, Kindred and Clan, 70.
49. Beth A. Colgan, "Reviving the Excessive Fines Clause," California Law Review 102, 2 (2014) 307.
50. Hence, civil fines are often much larger than criminal fines since civil fines price the behavior that requires restitution. Ashworth, "Social Control," 273.
51. Michael K. Glenn, "The Crime of âPollution': The Role of Federal Water PolluÂtion Criminal Sanctions," American Criminal Law Review 11 (1973) 845-847.
52. Julia Moses, The First Modern Risk: Workplace Accidents and the Origins of EuroÂpean Social States (Cambridge 2018) 30.
53. Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (New York 1939) 174-175.
54. Beattie, Policing and Punishment, 215; Douglas Greenberg, Crime and Law Enforcement in the Colony of New York 1691-1776 (Ithaca 1974) 162-163; Young, "Punishment, Money, and Legal Order," 40.
55. Coffee, "Paradigms Lost," 1882.
56. John P. Dawson, "Specific Performance in France and Germany," Michigan Law Review 57, 4 (1959) 498.
57. Williams, Tudor Regime, 394; Simon, "Evolution of Treason," 694; Levy, TreaÂson against God, 314; Beattie, Crime and the Courts, 459.
58. Alex Harris et al., "Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States," American Journal of Sociology 115, 6 (2010) 1758.
59. "Fighting for Identity," Economist, 17 May 2014.
60. Glenn, "Crime of âPollution,'" 836-838; O'Malley, Currency of Justice, 69.
61. Panos D. Bardis, "Main Features of the Ancient Roman Family," Social Science 38, 4 (1963) 237.
62. Lenman and Parker, "State, Community, and Criminal Law," 20; Pollock and Maitland, History of English Law, 1:56.
63. Wilson, Varieties of Police Behavior, 95; Times (London), 5 July 2019, 8.
64. Michael Dutton, Policing Chinese Politics (Durham NC 2005) 280-281; JonaÂthan R. Zatlin, The Currency of Socialism: Money and Political Culture in East Germany (Cambridge 2007) 121.
65. Mommsen, Romisches Strafrecht, 50; von Bar, History of Continental Criminal Law, 271.
66. Blackstone, Commentaries on the Laws of England, 4:373.
67. Beattie, Crime and the Courts, 456-457; Massey, "Excessive Fines Clause," 1249-1250.
68. Diamond, Primitive Law, 67; Edward M. Peters, "Prison before the Prison," in Morris and Rothman, Oxford History of the Prison, 6; King, Law and Society in the Visigothic Kingdom, 191.
69. Seipp, "Distinction between Crime and Tort,â 83-84; Colgan, "Reviving Excessive Fines Clause,â 334.
70. Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (Cambridge 2001) 212, passim.
71. Kant, Philosophy of Law, 197.
72. Allen, World of Prometheus, 226.
73. Miller, Eye for an Eye, 22; Johnson and Kruger, "Good of Wrath," 167. This was Beccaria's argument, too. On Crimes and Punishment, chap. 20.
74. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 5; von Bar, History of Continental Criminal Law, 274-275.
75. Rothman, "Perfecting the Prison," 112; O'Brien, "Prison on the Continent," 212-214;Emsley, English Police, 219.
76. Rusche and Kirchheimer, Punishment and Social Structure, 172-173.
77. Baldwin, Contagion and the State in Europe, 266-273. Similar dilemmas, fines or jail, were weighed for transmitting venereal diseases. Zeitschrift fur die Bekampfung der Geschlechtskrankheiten 11 (1910) 219; 15, 3 (1914) 94.
78. Crook, Law and Life of Rome, 250.
79. Mommsen, Romisches Strafrecht, 23.
80. O'Malley, Currency of Justice, 33, 40-41; Pollock and Maitland, History of EngÂlish Law, 1:36, 56.
81. Miethe and Lu, Punishment, 135-136.
82. Emsley, "âMother, What Did Policemen Do,'" 363; Seo, Policing the Open Road, 54.
83. The reengineering of fines was unfair in one way but fair in anotherâthat the fine be proportional to the harm caused for everyone, however rich or poor they were. Restitution ran into the same problems, that some could afford it better than others, in which case did one stagger the payments according to wealth? Barnett, "Restitution," 288-298.
84. Saunders, Plato's Penal Code, 347.
85. Miller, "Place of the Fine," 213; Westen, "Fines, Imprisonment, and the Poor," 813; Miethe and Lu, Punishment, 26; Schafer, "Restitution to Victims," 253.
86. Suzanne Daley, "Speeding in Finland Can Cost You a Fortune, If You Already Have One," New York Times, 25 April 2015; Economist, 7 November 2019.
87. Han Shen, "A Comparative Study of Insider Trading Regulation Enforcement in the US and China," Journal of Business and Securities Law 9 (2009) 71.
88. T. F. T. Plucknett, Edward I and Criminal Law (Cambridge 1960) 10.
89. Evgeny Bronislavovich Pashukanis, The General Theory of Law and Marxism (New Brunswick 2003) 176; Lon L. Fuller, "Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory," Michigan Law Review 47, 8 (1949) 1161-1162.
90. Dawson, "Specific Performance," 496-497.
91. J. Berryman, "The Specific Performance Damages Continuum: An Historical Perspective," Ottawa Law Review 17 (1985) 311-312; Charles Szladits, "The Concept of Specific Performance in Civil Law," American Journal of Comparative Law 4, 2 (1955) 209-210, 212-213; Robert Bejesky, "The Evolution in and International ConÂvergence of the Doctrine of Specific Performance in Three Types of States," Indiana International and Comparative Law Review 13 (2003) 393.
92. Klaus Muhlhahn, Criminal Justice in China (Cambridge MA 2009) 186.
93. The Old Testament numbers are disputed. See Gretason, "Crime, Guilt, and Punishment,â 143; Baruch, "In the Name of the Father," 54; William A. Schabas, "Islam and the Death Penalty," William & Mary Bill of Rights Journal 9, 1 (2000) 231.
94. Li Feng, Early China (Cambridge 2013) 289.
95. MacDowell, Law in Classical Athens, 42; Parker, Miasma, 113.
96. Durkheim, "Two Laws of Penal Evolution," 84; Dubber, Police Power, 20; Plucknett, Edward I and Criminal Law, 79.
97. Jens David Ohlin, "Applying the Death Penalty to Crimes of Genocide," American Journal of International Law 99, 4 (2005) 767-768.
98. Beccaria, On Crimes and Punishment, chap. 27.
99. Von Bar, History of Continental Criminal Law, 34.
100. Kollmann, Crime and Punishment, 28; Phillpotts, Kindred and Clan, 82, 165.
101. Quoted in Evans, Rituals of Retribution, 464.
102. Egmond, "The Cock, the Dog, the Serpent," 181; Mommsen, Romisches Strafrecht, 4, 918;James Leigh Strachan-Davidson, Problems of the Roman Criminal Law (Oxford 1912) 1:1; Gretason, "Crime, Guilt, and Punishment," 141.
103. Kateb, "Punishment and the Spirit of Democracy," 280; Evans, Rituals of Retribution, 332.
104. Mommsen, Romisches Strafrecht, 41.
105. Evans, Rituals of Retribution, 495; Lascoumes et al., Au nom de l'ordre, 124; Wright, Between the Guillotine and Liberty, 171, 216.
106. Banner, Death Penalty, 268-270, 282; Zimring, Contradictions of American CapiÂtal Punishment, 52, passim; Garland, Peculiar Institution, 26, 47-50, 277.
107. Borge Bakken, "Moral Panics, Crime Rates, and Harsh Punishment in China," Australian and New Zealand Journal of Criminology 37 (2004) 83-84; Evans, Rituals of Retribution, 624-625, 780-783.
108. Zimring, Contradictions of American Capital Punishment, 30-31; Evans, RituÂals of Retribution, 780-783; Ohlin, "Applying the Death Penalty," 760.
109. Niklas Frank, In the Shadow of the Reich (New York 1991) 3; Philippe Sands, "âThis Our Fathers Did': A Nazi Legacy," Financial Times Magazine, 22 September 2015.
110. Bailey, "Shadow of the Gallows," 309, 333.
111. Randall McGowen, "History, Culture, and the Death Penalty: The British Debates, 1840-70," Historical Reflections 20, 2 (2003) 238.
112. Quoted in Zhang Ning, "Public Opinion and the Death Penalty Debate in China," China Perspectives 81, 1 (2010) 87.
113. Lars-ErikVaale, Dommen til D0den: Dfidsstraffen i Norge 1945-50 (Oslo 2004) 48-52, 58-59, 72; Ohlin, "Applying the Death Penalty," 747-749.
114. Dutton, Policing and Punishment in China, 120; McKnight, Quality of Mercy, 116; Muhlhahn, Criminal Justice in China, 30.
115. Langbein, Prosecuting Crime, 195; Peters, "Prison before the Prison," 24; MacDowell, Law in Classical Athens, 75.
116. Plato, Laws, bk. 10, 908a; Allen, World of Prometheus, 226-227; Mommsen, Romisches Strafrecht, 961; Attenborough, Laws of the English Kings, Alfred cap 1.2, AthÂelstan cap 1.3; Given, Inquisition and Medieval Society, 52-53; Trevor Dean, "Criminal Justice in Mid Fifteenth-Century Bologna,â in Trevor Dean and K. J. P. Lowe., eds., Crime, Society, and the Law in Renaissance Italy (Cambridge 1994) 26.
117. Ames, Righteous Persecution, 157.
118. Peters, "Prison before the Prison," 12, 15; Jay Cohen, "The History of ImprisÂonment for Debt and Its Relation to the Development of Discharge in Bankruptcy," Journal of Legal History 3, 2 (2007) 154-155; Randall McGowen, "The Well-Ordered Prison," in Morris and Rothman, Oxford History of the Prison, 81.
119. Peters, "Prison before the Prison," 32.
120. Langbein, Torture, 28; Peters, "Prison before the Prison," 22, 35; Brackett, Criminal Justice and Crime in Late Renaissance Florence, 51; Beattie, Crime and the Courts, 289-290.
121. Radzinowicz, History of English Criminal Law, 5:441; Ian Christopher Fletcher, "âA Star Chamber of the Twentieth Century': Suffragettes, Liberals, and the 1908 âRush the Commons' Case," Journal of British Studies 35, 4 (1996) 510.
122. Martin, Crime and Criminal Justice under the Third Republic, 259.
123. Bodde and Morris, Law in Imperial China, 87-88.
124. Beattie, Policing and Punishment, 366-367; Langbein, Torture, 30-31, 44; Beattie, Crime and the Courts, 565-569.
125. Langbein, Torture, 38; Beattie, Crime and the Courts, 492-493, 88.
126. Jenks, Short History of English Law, 346-347; Ignatieff, Just Measure of Pain, 15.
127. Weisser, Crime and Punishment, 163; Martin J. Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830-1914 (Cambridge 1990) 308; Las- coumes et al., Au nom de l'ordre, 111; Evans, Rituals of Retribution, 240.
128. Von Bar, History of Continental Criminal Law, 36.
129. Rotman, "Failure of Reform," 176; Muhlhahn, Criminal Justice in China, 231-232.
130. Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton 2015) chap. 3; Heather Ann Thompson, "The Prison Industrial Complex," New Labor Forum 21, 3 (2012) 42.
131. A possible exception to prison labor not paying for itself was galley labor. Friedman, "Making Sense of English Law Enforcement," 493-495.
132. Michael Poyker, "Economic Consequences of the U.S. Convict Labor System," 7 April 2018, https://www.dropbox.com/sZ4fwmbgbzatexc03/CL_Poyker.pdf?dl=0; Thompson, "Prison Industrial Complex," 44.
133. Marco H. D. van Leeuwen, The Logic of Charity: Amsterdam, 1800-1850 (Houndmills 2000) 157; Walker, Popular Justice, 154.
134. Robert Mintz, "Federal Prison Industry: The âGreen Monster,'" Crime and Social Justice 6 (1976) 46; O'Brien, "Prison on the Continent," 204; Morris, "ContemÂporary Prison," 246-247; Wright, Between the Guillotine and Liberty, 85-88.
135. Debtors Act of 1869, 32 & 33 Vict., c. 62, s. 5; Cohen, "History of ImprisonÂment for Debt," 159; Haagen, "Eighteenth-Century English Society," 227.
136. Abed Awad and Robert E. Michael, "Iflas and Chapter 11: Classical Islamic Law and Modern Bankruptcy," International Lawyer 44, 3 (2010) 997-998; Irene Schneider, "Imprisonment in Pre-classical and Classical Islamic Law," Islamic Law and Society 2, 2 (1995) 158-159; Richard E. James, "Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors' Prison System,â Washburn Law Journal 42 (2002) 143-144.
137. Westen, "Fines, Imprisonment, and the Poor," 779; Young, "Punishment, Money, and Legal Order," 259.
138. Spierenburg, "Body and the State," 64.
139. McGowen, "Well-Ordered Prison," 83; Beattie, Crime and the Courts, 571; Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760-1835 (Chapel Hill 1996) 168-169.
140. McGowen, "Well-Ordered Prison," 86, 91, 101; Rothman, "Perfecting the Prison," 118; Thomas L. Dumm, Democracy and Punishment: Disciplinary Origins of the United States (Madison 1987) 108.
141. O'Brien, Promise of Punishment, 26-29; Ignatieff, Just Measure of Pain, 194-196.
Chapter 8
1. Durkheim, Division of Labour, 44.
2. Muhlhahn, Criminal Justice in China, 30.
3. Radzinowicz, History of English Criminal Law, 1:3-4.
4. In China during the Spring and Autumn periods, 770-476 BCE, public punÂishments were, if anything, even worse than in Europe in the 1700s. Dutton, PolicÂing and Punishment in China, 109.
5. Dean, "Criminal Justice in Mid Fifteenth-Century Bologna," 27.
6. Gatrell, Hanging Tree, 15. Masterfully surveyed in Garland, Peculiar Institution, chap. 3.
7. Langbein, Torture, 11-12.
8. Similar exemptions for the literate were found widely in ancient law codes. Diamond, Primitive Law, 96-97.
9. Williams, Tudor Regime, 226; Beattie, Crime and the Courts, 141-145, 452.
10. Sharpe, Crime in Early Modern England, 90-91, 97, 99; Weisser, Crime and PunÂishment, 140.
11. Herrup, Common Peace, 165.
12. Spierenburg, "Body and the State," 60; F. W. Maitland, Constitutional History of England (Cambridge 1926) 478.
13. Garland, Peculiar Institution, 115, 105; Philips, "New Engine of Power," 156.
14. Gatrell, Hanging Tree, 8. Russia did something similar in 1767, as did Austria in 1787.
15. Rothman, "Perfecting the Prison," 114. In 2008, the US Supreme Court reserved death for crimes involving a loss of life, with treason as a possible exception. Eichensehr, "Treason in the Age of Terrorism," 1450, 1500; Creegan, "National SecuÂrity Crime," 429.
16. Evans, Rituals of Retribution, 142.
17. Miethe and Lu, Punishment, 127; Bin Liang et al., "Sources of Variation in ProÂDeath Penalty Attitudes in China," British Journal of Criminology 46 (2006) 130; Dikotter, Crime, Punishment, and the Prison in Modern China, 46-47.
18. Susan Trevaskes, "The Death Penalty in China Today: Kill Fewer, Kill CauÂtiously," Asian Survey 48, 3 (2008) 398; Bakken, "Moral Panics," 79; Banner, Death Penalty, 284.
19. Miethe and Lu, Punishment, 92; Trevaskes, "Death Penalty in China," 400 and passim.
20. Eichensehr, "Treason in the Age of Terrorism," 1450.
21. Garland, Peculiar Institution, chap. 4.
22. The term for such punishment was poena capitis. Mommsen, Romisches Strafrecht, 916. British law did not formally abolish beheading until 1973. Treason Act 1814, sect. 2, repealed by Statute Law (Repeals) Act 1973, c. 39, sch. 1, pt. V.
23. Bodde and Morris, Law in Imperial China, 92.
24. James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (New York 2003) 109-110.
25. A US poll. New Scientist, 6 May 2017, 24.
26. S. E. Finer, The History of Government from the Earliest Times (Oxford 1997) 650; Langbein, Prosecuting Crime in the Renaissance, 144; Feng Li, Early China (Cambridge 2013) 289.
27. Friedland, Seeing Justice Done, 100; Bodde and Morris, Law in Imperial China, 97; Muhlhahn, Criminal Justice in China, 29; Spierenburg, "Body and the State," 59.
28. Peters, Torture, 83; Sharpe, Crime in Early Modern England, 95; Dale, Criminal Justice in the United States, 38; Beattie, Crime and the Courts, 471.
29. Beattie, Crime and the Courts, 541; Wright, Between the Guillotine and Liberty, 140.
30. Rotman, "Failure of Reform," 184; Whitman, Harsh Justice, 152.
31. Gatrell, Hanging Tree, 15-16; Radzinowicz, History of English Criminal Law, 1:268.
32. This story is told well in Friedland, Seeing Justice Done, chaps. 5-7, and Spie- renburg, Spectacle of Suffering, chap. 6.
33. Evans, Rituals of Retribution, 241-246.
34. Beattie, Crime and the Courts, 614.
35. Vormbaum, Modern History of German Criminal Law, 104; Strafgesetz 1852 (Osterreich) §16.
36. Sean McConville, "The Victorian Prison," in Morris and Rothman, Oxford History of the Prison, 147.
37. A smidgen of incapacitative motivation continues to salve our consciences, as in the arguments that terrorists must be held incommunicado to prevent contact with outside coconspirators. Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It (Oakland 2017) 20-23.
38. V. A. C. Gatrell, "The Decline of Theft and Violence in Victorian and Edwardian England," in Gatrell et al., Crime and the Law, 303.
39. Malcolm M. Feeley and Jonathan Simon, "The New Penology," Criminology 30 (1992) 455, 459; Wacquant, Punishing the Poor, 145.
40. Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 (Chicago 1993) 33-34.
41. O'Brien, "Prison on the Continent," 209-212, 220; Morris, "Contemporary Prison," 256.
42. Ruff, Violence in Early Modern Europe, 111-112.
43. An overview on the decline of violence is in Eisner, "Long-Term Historical Trends in Violent Crime.â
44. Tyler, Why People Obey the Law, 22-30.
45. Durkheim, "Two Laws of Penal Evolution," 80.
46. Susan Trevaskes, Policing Serious Crime in China (New York 2010) 17.
47. Dressler, "Reassessing the Theoretical Underpinnings," 95-96.
48. William Rann Kennedy, "The State Punishment of Crime," The Brief 2 (1899-1900) 25.
49. Green, Verdict according to Conscience, 32.
50. Beattie, Crime and the Courts, 336, 411, 420; F. W. M. McElrea, "The Legal Enforcement of Non-utilitarian Morality," Otago Law Review 1 (1965-1968) 206.
51. Guyora Binder, "Punishment Theory: Moral or Political?" Buffalo Criminal Law Review 5 (2002) 330-331; Alan Scheflin and Jon Van Dyke, "Jury Nullification: The Contours of a Controversy," Law and Contemporary Problems 43, 4 (1980) 71; Paul Butler, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," Yale Law Journal 105 (1995) 701.
52. Beattie, Crime and the Courts, 490-491, 336; Spierenburg, History of Murder, 185.
53. Randall McGowen, "Managing the Gallows: The Bank of England and the Death Penalty, 1797-1821," Law and History Review 25, 2 (2007) 251-253.
54. A. Chantemesse and F. Borel, Hygiene international: Frontieres et prophylaxie (Paris 1907) 241. Other examples of self-defeating strict public-health laws are given in Sheldon Amos, A Comparative Survey of Laws in Force for the Prohibition, Regulation, and Licensing of Vice in England and in Other Countries (London 1877) 95.
55. Evans, Rituals of Retribution, 695.
Chapter 9
1. Henry Ansgar Kelly, "Inquisitorial Due Process and the Status of Secret Crimes," in Stanley Chodorow, ed., Proceedings of the Eighth International Congress of Medieval Canon Law (Vatican City 1992) 419-420.
2. Pollock and Maitland, History of English Law, 2:474-475.
3. Abbott Gleason, Totalitarianism: The Inner History of the Cold War (New York 1995)89-107.
4. Schneider, "Imprisonment in Pre-classical and Classical Islamic Law," 161; Ames, Righteous Persecution, 167.
5. Dale's Laws, 24 May 1610, in J. F. Maclear, ed., Church and State in the Modern Age (New York 1995) 35-37.
6. Talal Asad, "Medieval Heresy: An Anthropological View," Social History 11, 3 (1986) 355.
7. Mark 14:64.
8. Mommsen, Romisches Strafrecht, 572; Assmann, Price of Monotheism, chap. 1.
9. Peter Burnell, "The Problem of Service to Unjust Regimes in Augustine's City of God,â Journal of the History of Ideas 54, 2 (1993) 178; Levy, Treason against God, 107-108.
10. Bernard McGinn, "âEvil-Sounding, Rash, and Suspect of Heresy': Tensions between Mysticism and Magisterium in the History of the Church,â Catholic HistoriÂcal Review 90, 2 (2004) 200. Hence, the emphasis in much heresy on the annihilation of the self, which let God speak through the heretic.
11. Michael Frassetto, "Reaction and Reform: Reception of Heresy in Arras and Aquitaine in the Early Eleventh Century," Catholic Historical Review 83, 3 (1997) 391; David J. Nicholls, "The Nature of Popular Heresy in France, 1520-1542," Historical Journal 26, 2 (1983) 271; Shannon McSheffrey, "Heresy, Orthodoxy, and English Vernacular Religion 1480-1525," Past and Present 186 (2005) 50, 61.
12. Levy, Treason against God, 118-119, 227-230.
13. William Allan, "Divine Justice and Cosmic Order in Early Greek Epic," JourÂnal of Hellenic Studies 126 (2006) 8-9.
14. Christoph Riedweg, "The âAtheistic' Fragment from Euripides' âBellerophonÂtes' (286 N 2)," Illinois Classical Studies 15, 1 (1990) 52.
15. Judges 6:25-32.
16. Levy, Treason against God, 18.
17. Alexander Murray, "Confession before 1215," Transactions of the Royal HisÂtorical Society 3 (1993) 60.
18. Terence McKenna, "âTreason against God': Some Aspects of the Law RelatÂing to âBlasphemy,'" Southern Cross University Law Review 5 (2001) 29.
19. Nash, "Analyzing the History of Religious Crime," 6; Moore, "Cruel and Unusual Punishment," 735-736.
20. Robert N. Bellah, Religion in Human Evolution (Cambridge MA 2011) chap. 6; Wolfgang Reinhard, Geschichte der Staatsgewalt (Munich 2000) 260; Durkheim, DiviÂsion of Labour, 227.
21. Gerd Schwerhoff, "Horror Crime or Bad Habit? Blasphemy in Premodern Europe, 1200-1650," Journal of Religious History 32, 4 (2008) 407.
22. Elisheva Carlebach, The Pursuit of Heresy: Rabbi Moses Hagiz and the Sabbatian Controversies (New York 1990) 11.
23. Mommsen, Romisches Strafrecht, 602.
24. Levy, Treason against God, 98, 64-65.
25. Peters, Inquisition, 29.
26. Levy, Treason against God, 92.
27. Claus-Peter Clasen, "Medieval Heresies in the Reformation," Church History 32, 4 (1963) 392.
28. Jiang, Mandate of Heaven, 25-28.
29. Levy, Treason against God, 110; Peters, Inquisition, 41; Schwerhoff, "Horror Crime," 403.
30. Peters, Inquisition, 48.
31. Pieper, Concept of Sin, 50.
32. 1 Samuel 15:23.
33. Isabel Iribarren, "From Black Magic to Heresy: A Doctrinal Leap in the PonÂtificate of John XXII," Church History 76, 1 (2007) 32, 41; von Bar, History of ContiÂnental Criminal Law, 227-228.
34. Witchcraft Act of 1604, 2 James I, c. 12; Cuttler, Law of Treason, 53; Young, Magic as a Political Crime, passim.
35. Jiang, Mandate of Heaven, 76; Kollmann, Crime and Punishment, 28; Walker, Popular Justice, 14.
36. John P. Bartkowski, "Claims-Making and Typifications of Voodoo as a DeviÂant Religion,â Journal for the Scientific Study of Religion 37, 4 (1998) 567-569; Carolyn Webber and Aaron Wildavsky, A History of Taxation and Expenditure in the Western World (New York 1986) 534.
37. Paul Horwitz, "Scientology in Court," DePaul Law Review 47 (1997) 103, 109.
38. Whitmarsh, Battling the Gods, 117-118; Jones, Law and Legal Theory of the Greeks, 95.
39. Plato, Laws, 908a-909a.
40. Mommsen, Romisches Strafrecht, 36, 567, 569-570.
41. Von Bar, History of Continental Criminal Law, 43-44.
42. Mommsen, Romisches Strafrecht, 574-575, 295.
43. Schwerhoff, "Horror Crime," 403.
44. Peters, Inquisition, 45-48; Levy, Treason against God, 162, 169.
45. Quoted in Ethan H. Shagan, "The English Inquisition: Constitutional Conflict and Ecclesiastical Law in the 1590s," Historical Journal 47, 3 (September 2004) 549.
46. R. H. Helmholz, "Natural Law and the Trial of Thomas More," in Henry Ansgar Kelly et al., eds., Thomas More's Trial by Jury (Woodbridge 2011) 56.
47. Levy, Treason against God, 175.
48. Asad, "Medieval Heresy," 356; Ames, Righteous Persecution, 201.
49. Peters, Inquisition, 93.
50. This remains one of the fundamental distinctions between the millions killed by the Nazis and by the Soviets: Jews or other ethnically identified enemies could do nothing, not even betray themselves, to save their lives, but a coerced outward ideoÂlogical conversion punished those who submitted only with the pain of inauthenticÂity. And class identity in the Soviet Union was malleableâthe bourgeoisie could become proletarians through hard labor. Christopher R. Browning and Lewis H. Siegel- baum, "Frameworks for Social Engineering: Stalinist Schema of Identification and the Nazi Volksgemeinschaft," in Geyer and Fitzpatrick, Beyond Totalitarianism, 243-244.
51. Levy, Treason against God, 128-29; Peters, Inquisition, 94.
52. Quoted in Radzinowicz, History of English Criminal Law, 5:447.
53. Peters, Torture, 120.
54. Ingraham, Political Crime in Europe, 121-135; Szabo, "Political Crimes," 8.
55. Eric A. Arnold Jr., Fouche, Napoleon, and the General Police (Washington DC 1979) 159; Payne, Police State of Louis Napoleon, 65-67.
56. F. W. Pethick Lawrence, "The Trial of the Suffragette Leaders," in Jane Marcus, ed., Suffrage and the Pankhursts (London 1987) 55-56.
57. Fletcher, "âA Star Chamber,'" 507-508; Brian Harrison, Peaceable Kingdom (Oxford 1982) 58-59.
58. Radzinowicz, History of English Criminal Law, 5:439.
59. C. J. Bearman, "An Army without Discipline? Suffragette Militancy and the Budget Crisis of 1909," Historical Journal 50, 4 (2007) 879-880; Diane Atkinson, Rise Up, Women! The Remarkable Lives of the Suffragettes (London 2018) 167-168.
60. Maud Ellmann, The Hunger Artists: Starving, Writing, and Imprisonment (CamÂbridge MA 1993) 12; Padraic Kenney, Dance in Chains: Political Imprisonment in the Modern World (New York 2017) chap. 8.
61. Kenney, Dance in Chains, 5.
62. Fletcher, "'Star Chamber,'â 511; Radzinowicz, History of English Criminal Law, 5:445, 461.
63. Greenberg, Crime and Law Enforcement, 76.
64. B. L. Ingraham and Kazuhiko Tokoro, "Political Crime in the United States and Japan," Issues in Criminology 4, 2 (1969).
65. Lionel Wee, "The Hunger Strike as a Communicative Act: Intention without Responsibility," Journal of Linguistic Anthropology 17, 1 (2007) 68.
66. Anja Shortland, Kidnap: Inside the Ransom Business (Oxford 2019) 10, 102, 199.
67. Aogan Mulcahy, "Claims-Making and the Construction of Legitimacy: Press Coverage of the 1981 Northern Irish Hunger Strike," Social Problems 42, 4 (1995) 451; Whitman, Harsh Justice, 127-128.
68. Roscoe Pound, Law and Morals, 2nd ed. (Chapel Hill 1926) 65.
69. John Locke, A Letter concerning Toleration, trans. W. Popple (Huddersfield 1796) 33.
70. Immanuel Kant, Groundwork of the Metaphysics of Morals, 4:436-441; McEl- rea, "Legal Enforcement of Non-utilitarian Morality," 210.
71. Malcolm Davies, "Sisyphus and the Invention of Religion," Bulletin of the Institute of Classical Studies 36 (1989) 18.
72. Norenzayan, Big Gods; Dominic Johnson, God Is Watching You: How the Fear of God Makes Us Human (New York 2016) chap 4.
73. Pettazzoni, All-KnowingGod, 5, 151-152, 164-165.
74. Laurin et al., "Outsourcing Punishment to God," 3272; Plucknett, Edward I and Criminal Law, 64.
75. Jane K. Wickersham, Rituals of Prosecution: The Roman Inquisition and the ProsÂecution of Philo-Protestants (Toronto 2012) 6, 65.
76. Jones, Law and Legal Theory of the Greeks, 141; Allen, World of Prometheus, 104.
77. Ullmann, "Medieval Torture," 134; Esmein, History of Continental Criminal Procedure, 114.
78. Perry, Crime and Society in Early Modern Seville, 88; Levy, Treason against God, 142, 185-186.
79. Jonathan Michael Gray, Oaths and the English Reformation (Cambridge 2013) 176; Susan Banfield, Joan of Arc (London 1988) 88-98.
80. Levy, Treason against God, 148; Ames, Righteous Persecution, 211.
81. Drapkin, Crime and Punishment, 96.
82. Page DuBois, Torture and Truth (New York, 1991) 50-56.
83. Peters, Torture, 13-15; MacDowell, Law in Classical Athens, 245-246.
84. McAuley, "Canon Law and the End of the Ordeal," 498-499; Fraher, "TheoÂretical Justification," 586.
85. Langbein, Torture, 4-8; Bartlett, Trial by Fire and Water, 141. Chinese codes of the Han and T'ang Empires similarly required confession for conviction, and thus they tortured until they got it. Finer, History of Government, 778.
86. Richard M. Fraher, "Preventing Crime in the High Middle Ages: The Medieval Lawyers' Search for Deterrence,â in James Ross Sweeney and Stanley Chodorow, eds., Popes, Teachers, and Canon Law in the Middle Ages (Ithaca 1989) 216.
87. Langbein, Torture, 55-56. The Chinese use of torture was similar. Dutton, PolicÂing and Punishment in China, 114-115.
88. Langbein, Torture, 137-138; Williams, Tudor Regime, 397; Bellamy, Tudor Law of Treason, 109-112, 120.
89. Langbein, Torture, 47-48; McAuley, "Canon Law and the End of the Ordeal," 490-491;Peters, Torture, 44.
90. Vittorio Bufacchi and Jean Maria Arrigo, "Torture, Terrorism, and the State: A Refutation of the Ticking-Bomb Argument," Journal of Applied Philosophy 23, 3 (2006) 360.
91. Rejali, Torture and Democracy, chap. 20. On the compatibility of torture with democracy, see W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (CamÂbridge MA 2018); Bernard E. Harcourt, The Counterrevolution: How Our Government Went to War against Its Own Citizens (New York 2018) 66-69.
92. Jim Dwyer et al., Actual Innocence (New York 2000) 115; Rejali, Torture and Democracy, passim; Walker, Popular Justice, 174-175; Peters, Torture, 124, 172, 177, 119-121 104-105; Martin, Crime and Criminal Justice under the Third Republic, 78.
93. Henry Shue, "Torture in Dreamland: Disposing of the Ticking Bomb," Case Western Reserve Journal of International Law 37 (2006) 234, 237.
94. Ames, "Does Inquisition Belong to Religious History?," 21; Peters, Torture, 46; Bartlett, Trial by Fire and Water, 79.
95. Charles D. Hackett, "Entrance Rites, Confessions of Sin, and Identity In the Sixteenth Century," Anglican and Episcopal History 73, 1 (2004) 18-19, 22-23.
96. John Bossy, "The Social History of Confession in the Age of the ReformaÂtion," Transactions of the Royal Historical Society 25 (1975) 22.
97. Only in the latter half of the twentieth century did confession become more frequent than once a year. Bill Cosgrave, "The Decline of Confessions: Disaster or Return to Normal?" The Furrow 45, 3 (1994) 159.
98. Bossy, "Social History of Confession," 22; Ames, Righteous Persecution, 144; Murray, "Confession before 1215," 51.
99. Theodore A. McConnell, "Confession in Cross-Disciplinary Perspective," Journal of Religion and Health 8, 1 (1969) 77-78.
100. Bossy, "Social History of Confession," 30-33, 36.
101. Murray, "Confession before 1215," 62.
102. R. F. Clarke, "The Practice of Confession in the Catholic Church," North American Review 169, 517 (1899) 829; Murray, "Confession before 1215," 52.
103. Bossy, "Social History of Confession," 26; Ronald K. Rittgers, "Private ConÂfession and the Lutheranization of Sixteenth-Century Nordlingen," Sixteenth CenÂtury Journal 36, 4 (2005) 1066-1068.
104. Rittersporn, "Terror and Soviet Legality," 186.
105. Owen Gingerich, "The Galileo Affair," Scientific American 247, 2 (1982) 143.
106. Iain Lauchlan, "Chekist Mentalite and the Origins of the Great Terror," in Harris, Anatomy of Terror, 20.
107. Gleason, Totalitarianism, 95-98. Aryeh Neier sees such confessions as more patently transactional. "Confining Dissent,â in Morris and Rothman, Oxford History of the Prison, 413.
108. Robert Conquest, The Great Terror (London 1968) 146-147, 550; Robert Sharlet and Piers Beirne, "In Search of Vyshinsky: The Paradox of Law and Terror," International Journal of the Sociology of Law 12 (1984) 166; Harald J. Berman, ed., Soviet Criminal Law and Procedure: The RSFSR Codes, 2nd ed. (Cambridge MA 1972) 66.
109. The modern version of using certain acts as indicators of forbidden attiÂtudes came with the Chinese crackdown on Uighurs and the Karakax list of suspiÂcious activities that prompted detainment, including using Virtual Private Networks and clicking on foreign internet links. Financial Times, 18 February 2020.
110. Peters, Inquisition, 50; Wickersham, Rituals of Prosecution, 85.
111. Wickersham, Rituals of Prosecution, 13-14; R. Po-Chia Hsia, Social Discipline in the Reformation (London 1989) 68.
112. David Shearer, "Stalinist Repression, Modernity, and the Social Engineering Argument," in Harris, Anatomy of Terror, 113.
113. Ning, "Public Opinion and the Death Penalty," 87-88. More than a quarter of all death sentences in China were for such crimes.
Chapter 10
1. Leon Shaskolsky Sheleff, "Morality, Criminal Law, and Politics," Tel Aviv UniverÂsity Studies in Law 2 (1976) 217.
2. Ames, Righteous Persecution, 45, 183.
3. Grey, Legal Enforcement of Morality, 29.
4. Lobban, "From Seditious Libel to Unlawful Assembly," 307-309.
5. Pringle, "Are We Capable of Offending God?," 35.
6. Norenzayan, Big Gods, 131.
7. Solomon Bloom, "The âWithering Away' of the State," Journal of the History of Ideas 7, 1 (1946) 114.
8. Eugene Kamenka and Alice Erh-Soon Tay, "Beyond the French Revolution: Communist Socialism and the Concept of Law," University of Toronto Law Journal 21 (1971) 118; Evgeny B. Pashukanis, Law and Marxism (London 1978) 61, 160, 175-176.
9. Sidney Monas, The Third Section: Police and Society in Russia under Nicholas I (Cambridge MA 1961) 22.
10. Thaman, "Marxist and Soviet Law," 302.
11. V. I. Lenin, The State and Revolution, in Collected Works (Moscow 1974) 25:417.
12. Gretason, "Crime, Guilt, and Punishment," 143.
13. Von Bar, History of Continental Criminal Law, 81.
14. Trigger, Understanding Early Civilizations, 437; Strathern, Unearthly Powers, 38-39.
15. Svend Ranulf, The Jealousy of the Gods and Criminal Law at Athens (London 1933) 1:66.
16. Ingolf Dalferth, "How Is the Concept of Sin Related to the Concept of Moral Wrongdoing?" Religious Studies 20, 2 (1984) 176-178.
17. Riedweg, "The âAtheistic' Fragment from Euripides' 'Bellerophontes,'" 42.
18. David G. Attfield, "The Morality of Sins," Religious Studies 20, 2 (1984) 230.
19. The Scholastic philosophers debated whether some of the Commandments, such as observing the Sabbath, were ceremonial rather than moral. Jean Porter, "Christian Ethics and the Concept of Morality: A Historical Inquiry," Journal of the Society of Christian Ethics 26, 2 (2006) 13.
20. Clasen, "Medieval Heresies," 393, 404.
21. Levy, Treason against God, 245.
22. Gershom Scholem, Sabbatai Sevi: The Mystical Messiah: 1626-1676, 2nd ed. (Princeton 1975) 628; Carlebach, Pursuit of Heresy, 9, 184.
23. Alan Watson, The State, Law, and Religion: Pagan Rome (Athens GA 1992) 4-5; Mary Beard, "The Sexual Status of Vestal Virgins," Journal of Roman Studies 70 (1980) 13.
24. Porter, "Christian Ethics," 3-4.
25. Hobbes, Leviathan, chap. 27; R. J. Spjut, "Hobbes' Definition of Crime," Anglo-American Law Review 13 (1984) 6.
26. Von Bar, History of Continental Criminal Law, 399; Beattie, Policing and PunÂishment, 82.
27. Locke, Letter concerning Toleration, 43.
28. Beccaria, On Crimes and Punishment, chap. 2.
29. Kelly, Short History of Western Legal Theory, 295.
30. Anmerkungen zum Strafgesezbuche fur das Konigreich Baiern (Munich 1813) 2:59-60.
31. Strafgesetzbuch, Bavaria, 1813, art. 400-401.
32. Montesquieu, Spirit of the Laws, 12:4.
33. Charles Donahue Jr., "The Ecclesiastical Courts," in Wilfried Hartmann and Kenneth Pennington, eds., The History of Courts and Procedure in Medieval Canon Law (Washington DC 2016) 249.
34. McKenna, "Treason against God," 33.
35. Ames, Righteous Persecution, 183.
36. Blasphemy Act 1697, 9 William III, c. 35.
37. Levy, Treason against God, 245, 252, 302-306, 313.
38. Quoted in Devlin, Enforcement of Morals, 10.
39. Devlin, Enforcement of Morals, 25.
40. "Laws Penalizing Blasphemy, Apostasy, and Defamation of Religion Are WideÂspread," Pew Research Center, 21 November 2012, http://www.pewforum.org/2012/11 /21/laws-penalizing-blasphemy-apostasy-and-defamation-of-religion-are-widespread/.
41. James R. Moore, "Blasphemy Laws and Hate Speech Codes: Threats to FreeÂdom of Expression, Dissent, and Democracy," International Journal of Humanities and Social Science 3, 18 (2013) 13.
42. Thomas J. Curry, "Church and State in Seventeenth and Eighteenth Century America," Journal of Law and Religion 7, 2 (1989) 262; Kathryn Preyer, "Penal MeaÂsures in the American Colonies," American Journal of Legal History 26, 4 (1982) 342.
43. Nash, "Analyzing the History of Religious Crime," 14; Samuel G. Freedman, "A Man's Existentialism, Construed as Blasphemy," New York Times, 20 March 2009.
44. McKenna, "Treason against God," 35-37.
45. H. L. A. Hart, Law, Liberty, and Morality (Stanford 1963) 44; Nash, "Analyzing the History of Religious Crime,â 13; Pringle, "Are We Capable of Offending God?," 37.
46. Some examples of recent Australian legislation are in McKenna, "Treason against God," 45.
47. Nash, "Analyzing the History of Religious Crime," 14; Gauri Viswanathan, "Blasphemy and Heresy: The Modernist Challenge," Comparative Studies in Society and History 37, 2 (1995) 406-407, 410.
48. McKenna, "Treason against God," 40; Levy, Treason against God, x; ViswanaÂthan, "Blasphemy and Heresy," 400.
49. Jytte Klausen, The Cartoons That Shook the World (New Haven 2009); Langer, Religious Offence and Human Rights, chap. 1.
50. The musical also harbored a surprisingly uncommented-upon denigrating view of Africans. The premise is that all it took to improve the lives of Africans was a bit of mumbo-jumbo improvised by some adolescent Mormons who were paying too little attention in Sunday school to recall the dogma they were sent abroad to preach.
51. Lucien Febvre, The Problem of Unbelief in the Sixteenth Century (Cambridge MA 1985) 462-464.
52. Hobbes, Leviathan, chap. 39, 248; Locke, Letter concerning Toleration, 56.
53. Peter Jimack, "The French Enlightenment II: Deism, Morality, and Politics," in Stuart Brown, ed., Routledge History of Philosophy (London 1996) 5:255-256; Adriano Sofri and Lydia Cochrane, "On Optimism," Critical Inquiry 30, 4 (2004) 754.
54. Alex Schulman, "The Twilight of Probability: Locke, Bayle, and the ToleraÂtion of Atheism," Journal of Religion 89, 3 (2009) 346; Pierre Bayle, Various Thoughts on the Occasion of a Comet (Albany 2000) 180.
55. Ryan McKay and Harvey Whitehouse, "Religion and Morality," Psychological Bulletin 141, 2 (2015) 448.
56. Former French president Franςois Hollande is among the few leaders of major nations to openly acknowledge their atheism, joined by Alexis Tsipras, once prime minister of Greece, and Zoran Milanovic, the current president of Croatia. Alison Lesley, "Current European Leaders Are Leaning towards Atheism," World Religion News, 3 February 2015; Charlie Campbell, "China's Leader Xi Jinping Reminds Party MemÂbers to Be âUnyielding Marxist Atheists,'" Time, 25 April 2016.
57. Stephen, History of the Criminal Law of England, 2:80-81.
58. The Hart-Devlin debate, accounted for in Ronald Dworkin, "Lord Devlin and the Enforcement of Morals," Yale Law Journal 75, 6 (1966).
59. Devlin, Enforcement of Morals, 8-16.
60. In his Moral Limits of the Criminal Law (Oxford 1985) v. 2, Joel Feinberg argued for making offense as actionable as harm. For criticism of this view, see HarÂcourt, "Collapse of the Harm Principle," 130, and Tatjana Hornle, "Offensive BehavÂior and German Penal Law," Buffalo Criminal Law Review 5, 1 (2001) 261-262.
61. Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247 (September 1957) 115-116.
62. John Wolfenden, "Crime and Sin," British Medical Journal 2, 5192 (1960) 142.
63. Calvin Woodard, "Thoughts on the Interplay between Morality and Law in Modern Legal Thought," Notre Dame Law Review 64 (1989) 791-795.
64. Pound, Law and Morals, 43, 96-97.
65. John Warwick Montgomery, "Law and Morality,â Law and Justice 122-123 (1994) 90-91.
66. Hans Kelsen, The Pure Theory of Law (Berkeley 1967) 63-64.
67. A. R. Louch, "Sins and Crimes," Philosophy 43, 163 (1968) 43-45.
68. Kent Greenawalt, "Legal Enforcement of Morality," Journal of Criminal Law and Criminology 85, 3 (1995) 710; Basil Mitchell, Law, Morality, and Religion in a SecuÂlar Society (Oxford 1967) chap. 2.
69. Not enforcing old statutes was in itself a form of changing the law, however. Gordon, Controlling the State, 51.
70. Hart, Law, Liberty, and Morality, 26-27; Gabrielle Viator, "The Validity of Criminal Adultery Prohibitions after Lawrence v. Texas," Suffolk University Law Review 39 (2005-2006) 837; Ethan Bronner, "Adultery, an Ancient Crime That Remains on Many Books," New York Times, 14 November 2012.
71. T. A. Roberts, "Law, Morality, and Religion in a Christian Society," Religious Studies 20, 1 (1984) 81.
72. Steven Shavell, "Law versus Morality as Regulators of Conduct," American Law and Economics Review 4, 2 (2002) 231.
73. The law's expressive function, broached most famously by Durkheim, is surÂveyed in David Garland, Punishment and Modern Society (Chicago 1990) chap. 2.
74. Hans-Dieter Bahr, Die Sprache des Gastes (Leipzig 1994); Seyla Benhabib, The Rights of Others (Cambridge 2004) chap. 1.
75. Uniform Commercial Code, art. 1-201 (19); Montgomery, "Law and MoralÂity," 95.
76. Steinfeld, Coercion, Contract, and Free Labor, 45-47.
77. A. L. Goodhart, English Law and the Moral Law (London 1953) 118.
78. Pound, Law and Morals, 27, 56; Brague, Law of God, 142.
79. French civil code, art. 1131-1133; German civil code, sect. 138, 242.
80. Woodard, "Thoughts on the Interplay between Morality and Law," 788; Miethe and Lu, Punishment, 195.
81. W. Bertelsmann, "The Essence of Mens Rea," Acta Juridica 34 (1974) 44; Nancy Travis Wolfe, "Mala in Se: A Disappearing Doctrine?" Criminology 19, 1 (1981) 138.
82. Pieper, ConceptofSin, 66-67; Aristotle, NicomacheanEthics, bk. 5, chap. 7.
83. Rollin M. Perkins, "The Civil Offense," University of Pennsylvania Law Review 100, 6 (1952) 832; Richard L. Gray, "Eliminating the (Absurd) Distinction between Malum in Se and Malum Prohibitum Crimes," Washington University Law Quarterly 73 (1995) 1375.
84. Morissette v. United States, 342 US 246 (1952) 260. In appeals courts, the disÂtinction between mala in se and mala prohibita was made as late as 1980. Erik Luna, "Principled Enforcement of Penal Codes," Buffalo Criminal Law Review 4, 1 (2000) 526; Rollin M. Perkins, "Criminal Liability without Fault," Iowa Law Review 68 (1983) 1076.
85. Seipp, "Distinction between Crime and Tort," 59-60.
86. Coffee, "Does âUnlawful' Mean âCriminal'?," 195, 239; Coffee, "Paradigms Lost," 1876, 1884-1885.
87. New Jersey and Rhode Island no longer ban incestuous relationships, though they do not recognize marriages within forbidden degrees of consanguinity. "Statutory
Compilation regarding Incest Statutes,â March 2013, https://ndaa.org/wp-content /uploads∕Incest-Statutes-2013.pdf.
88. Joseph Henrich et al., "The Puzzle of Monogamous Marriage," Philosophical Transactions of the Royal Society: Biological Sciences 367 (2012) 657.
89. The German Pirate Party demanded the right to polyamorous unions. EconoÂmist, 22 October 2011, 62; Economist, 28 April 2012, 60.
90. Rajeev Ranjan et al., "(De-)Criminalization of Attempted Suicide in India," Industrial Psychiatry Journal 23, 1 (2014).
91. Attenborough, Laws of the English Kings, Wihtred cap 9-11.
92. Schedule of tariffs, posted in any Swedish taxi.
93. FT Weekend Magazine, 5-6 July 2008, 22-23.
94. Rittersporn, "Terror and Soviet Legality," 181; Thaman, "Marxist and Soviet Law," 320-321.
95. Durkheim, Division of Labour, 64.
96. Goodhart, English Law and the Moral Law, 147.
97. British and American law are among the few that allow testamentary freeÂdom with few restrictions.
98. Sheleff, "Morality, Criminal Law, and Politics," 202-203; Baldwin, Copyright Wars, chap. 8.
99. Julian V. Roberts, "Public Opinion, Crime, and Criminal Justice," Crime and Justice 16 (1992) 135.
100. Coffee, "Does âUnlawful' Mean âCriminal'?," 235-237.
101. Nasser Arshadi and Thomas Eyssell, Law and Finance of Corporate Insider TradÂing (New York 1993) 43-45; Harry V. Ball and Lawrence M. Friedman, "The Use of Criminal Sanctions in the Enforcement of Economic Legislation," Stanford Law Review 17, 2 (1965) 197-198.
102. Buell, Capital Offenses, chap. 7.
103. Bertelsmann, "Essence of Mens Rea," 48.
104. Green, "Why It's a Crime to Tear the Tag off a Mattress," 1565.
105. J. T. Morgan, "The Mythical Erosion of Mens Rea," Natural Resources and Environment 23, 3 (2009) 29; Bill Devall, "Deep Ecology and Radical EnvironmentalÂism," Society and Natural Resources 4 (1991) 248.
106. "Perjury: The Forgotten Offense," Journal of Criminal Law and Criminology 65, 3 (1974) 363.
107. Statute of Winchester, 1285, 13 Edw. I, c. 4.
108. Greenawalt, "Legal Enforcement of Morality," 713-715. Four US states have weak Good Samaritan statutes.
109. T. B. Macaulay et al., The Indian Penal Code as Originally Framed in 1837 (Madras 1888) 140-141.
110. The contrast is narrowed insofar as Anglo-American common law punishes commission by omission more than civil law does. Thus, a parent or guardian who stands by while someone over whom they have a duty of care drowns would be liable for murder or manslaughter. French law recognizes no such commission by omission. Edward A. Tomlinson, "The French Experience with Duty to Rescue," New York Law School Journal of International and Comparative Law 20 (2000) 463.
111. Strafgesetzbuch, §323c; French penal code, art. 223-226; Swiss penal code, art. 128.
112. Sheleff, "Morality, Criminal Law, and Politics,â 214.
113. Grey, Legal Enforcement of Morality, 168-169, 174.
114. Tomlinson, "French Experience," 462, 470-472; Peter M. Agulnick and Heidi V. Rivkin, "Criminal Liability for Failure to Rescue: A Brief Survey of French and American Law," Touro International Law Review 8 (1998) 107-109.
115. Ronald P. Sokol, "The Kindness of Strangers," International Herald Tribune, 3-4 June 2006.
116. Tomlinson, "French Experience," 497.
117. The UN Convention of the Law of the Sea (art. 98) requires all signatories to have legislation making it a duty to render assistance to ships and persons in distress.
118. Roberts, "Public Opinion," 128; Robinson and Darley, "Utility of Desert," 457.
119. Sharpe, Crime in Early Modern England, 182-183; Spierenburg, "Body and the State," 58; Winslow, "Sussex Smugglers," 149.
120. Spierenburg, Spectacle of Suffering, 126; Ruff, Violence in Early Modern Europe, 239.
121. Sanford H. Kadish, "Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations," University of Chicago Law Review 30, 3 (1963) 439-440.
122. Coffee, "Does âUnlawful' Mean âCriminal'?," 237.
123. Roberts et al., Penal Populism, 100; Friedman and Havemann, "Rise and Fall of the Unwritten Law," 1054.
Chapter 11
1. Wallace-Hadrill, "Bloodfeuds of the Franks," 141; Treston, Poine, 227.
2. Specific deterrence of the individual offender could be done privately, of course, but not general deterrence of other potential offenders.
3. "Capitulary of Charlemagne," 199.
4. Fraher, "Preventing Crime," 231.
5. Moran, "Origin of Insanity," 512; Kennedy, "State Punishment of Crime," 20.
6. Meranze, Laboratories of Virtue, 27; Philips, "New Engine of Power," 158Â159; Douglas Hay, "Property, Authority, and the Criminal Law," in Hay et al., eds., Albion's Fatal Tree, 50.
7. Bodde and Morris, Law in Imperial China, 24.
8. "Capitulary of Charlemagne," 198-199.
9. Fraher, "Preventing Crime," 220, 231-232; McAuley, "Canon Law and the End of the Ordeal," 494-495.
10. Schneider, "Imprisonment in Pre-classical and Classical Islamic Law," 166; Given, Inquisition and Medieval Society, 84-85; Ames, Righteous Persecution, 171.
11. Stephen J. Davies, "The Courts and the Scottish Legal System 1600-1747," in Gatrell et al., Crime and the Law, 128; Banner, Death Penalty, 65; Claire Duchen,
"Crime and Punishment in Liberated France: The Case of the les femmes fondues," in Claire Duchen and Irene Bandhauer-Schoffmann, eds., When the War Was Over: Women, War, and Peace in Europe 1945-1956 (London 2000).
12. Most dramatically in the registries put online as of 2018 in Poland: Nina Apin, "Populismus statt Opferschutz," taz.de, 3 January 2018.
13. Trevaskes, Policing Serious Crime in China, 71.
14. Workhouse Test Act 1723; Paul Slack, The English Poor Law 1531-1782 (Houndmills 1990) 40.
15. Poor Law Commissioners' Report of1834, Cd. 2728 (1834) 44.
16. Emile Durkheim, Moral Education (New York 1961) 198-199.
17. Bailey, "Shadow of the Gallows," 312.
18. Beccaria, On Crimes and Punishment, chap. 28; Wright, Between the Guillotine and Liberty, 167, 172; Clive Emsley, Crime, Police, and Penal Policy (Oxford 2007) 33.
19. Davis, Conflict and Control, 128.
20. Liang, "Sources of Variation," 123.
21. Drapkin, Crime and Punishment, 75; Peters, "Prison before the Prison," 17; E. N. Gladden, A History of Public Administration (London 1972) 1:134.
22. Finer, History of Government, 1117; Moore, "Cruel and Unusual Punishment," 731, 752; Miethe and Lu, Punishment, 124-125. In China, the coup de grace was usually given early in the process, and the aim was less physical cruelty than to preÂvent the offender's spirit from regaining its wholeness in a future life. Bodde and Morris, Law in Imperial China, 93.
23. "Historical Concept of Treason," 74; Harrington, Faithful Executioner, 48; Spierenburg, "Body and the State," 52-54; Evans, Rituals of Retribution, 122.
24. Gatrell, Hanging Tree, 70.
25. Friedland, Seeing Justice Done, 56-65.
26. Foucault, Discipline and Punish, 3-5. The Chinese, however, seem not to have turned their executions into spectacles. Muhlhahn, Criminal Justice in China, 40-41.
27. Kollmann, Crime and Punishment, 406; Beattie, Crime and the Courts, 489, 524-525.
28. Plato, Laws, bk. 9, chap. 12.
29. Peter Linebaugh, "The Tyburn Riot against the Surgeons," in Hay et al., eds., Albion's Fatal Tree, 76. As late as 1904, a Massachusetts statute reaffirmed dissection of murderers. Banner, Death Penalty, 78. And in China, dissections of the corpses of poor prisoners continued into the twentieth century. Dikotter, Crime, Punishment, and the Prison in Modern China, 90.
30. Criminal Justice (Scotland)Act 1949, s. 14.
31. Gatrell, "Decline of Theft and Violence," 266-267; Banner, Death Penalty, 12.
32. Langbein, Torture, 40; Weisser, Crime and Punishment, 138; Radzinowicz, HisÂtory of English Criminal Law, 1:76; Gatrell, Hanging Tree, 8-9; Patrick Joyce, The State of Freedom: A Social History of the British State since 1800 (Cambridge 2013) 126.
33. Clive Emsley, Policing and Its Context, 1750-1870 (London 1983) 59; Evans, Rituals of Retribution, 228; Radzinowicz, History of English Criminal Law, 1:288.
34. Gatrell, Hanging Tree, 91-92; Wiener, Reconstructing the Criminal, 93; Evans, Rituals of Retribution, 257-258; Meranze, Laboratories of Virtue, chap. 3.
35. Friedland, Seeing Justice Done, chaps. 5-7; Banner, Death Penalty, chap 6.
36. Beccaria, On Crimes and Punishment, chap. 27.
37. Beccaria, On Crimes and Punishment, chap. 12; Binder, "Punishment Theory,â 335; Bentham, Introduction to the Principles of Morals, 170.
38. Fraher, "Preventing Crime," 231; Adam Smith, Lectures on Jurisprudence, Glasgow ed., ed. R. L. Meek et al. (Oxford 1978) 331.
39. Packer, Limits of Criminal Sanction, 44-45; Robinson and Darley, "Utility of Desert," 454.
40. Beattie, Crime and the Courts, 523; Friedland, Seeing Justice Done, 212; BeccaÂria, On Crimes and Punishment, chap. 28.
41. Spierenburg, "Body and the State," 58; Wiener, Reconstructing the Criminal, 97.
42. Friedland, Seeing Justice Done, chaps. 8-10; French penal code of 6 October 1791, art. 2-5.
43. Evans, Rituals of Retribution, 305, 315; Gatrell, Hanging Tree, 10; Banner, Death Penalty, 156; Friedland, Seeing Justice Done, 270, 275.
44. Beattie, Crime and the Courts, 614; Wright, Between the Guillotine and Liberty, 70.
45. Bakken, "Moral Panics," 80; Susan Trevaskes, "Severe and Swift Justice in China," British Journal of Criminology 47 (2007) 39.
46. Pfeifer, Rough Justice, 136.
47. Foucault, Discipline and Punish, 9.
48. Vaale, Dommen til D0den, 66.
49. Trevaskes, Policing Serious Crime in China, 5.
50. Lucia Zedner, "Policing before and after the Police: The Historical AntecedÂents of Contemporary Crime Control," British Journal of Criminology 46, 1 (2006) 84.
51. Von Bar, History of Continental Criminal Law, 245.
52. Ethan Shagan, The Rule of Moderation: Violence, Religion, and the Politics of Restraint in Early Modern England (Cambridge 2011) 76.
53. Quoted in Nicholas Davidson, "Theology, Nature, and the Law: Sexual Sin and Sexual Crime in Italy from the Fourteenth to the Seventeenth Century," in Dean and Lowe, Crime, Society, and the Law in Renaissance Italy, 78.
54. Pollock and Maitland, History of English Law, 2:475.
55. Sayre, "Criminal Responsibility," 720.
56. Kelly, Short History of Western Legal Theory, 296; Dubber, Police Power, 31.
57. Mommsen, Romisches Strafrecht, 77.
58. Francis Bowes Sayre, "Mens Rea," Harvard Law Review 45 (1931-1932) 985, 1005; Moran, "Origin of Insanity," 487-488; Beattie, Crime and the Courts, 85.
59. Criminal Lunatics Act 1800, 39 & 40 George III, c. 94, detailed in Moran, "Origin of Insanity."
60. Aitken and Aitken, "M'Naghten Case," 54-56.
61. Aristotle, Politics, 1274b; Mommsen, Romisches Strafrecht, 1043.
62. David McCord, "The English and American History of Voluntary IntoxicaÂtion to Negate Mens Rea," Journal of Legal History 11 (1990) 373-776, 381.
63. Oliver Wendell Holmes Jr., The Common Law (Boston 1881) 3.
64. Perkins, "Civil Offense," 833.
65. Michel Foucault, "About the Concept of the âDangerous Individual' in 19 th Century Legal Psychiatry," International Journal of Law and Psychiatry 1 (1978) 1-2, 9.
66. David Bashevkin, Sin*a*gogue: Sin and Failure in Jewish Thought (Boston 2019) chap. 5; Ruth Kara-Ivanov Kaniel, "'Gedolah Aveirah Lishmah': Mothers of the Davidic Dynasty, Feminine Seduction, and the Development of Messianic Thought, from RabÂbinic Literature to R. Moshe Haim Luzzatto," Nashim: A Journal of Jewish Women's StudÂies & Gender Issues 24 (2013) 28.
67. Sanford H. Kadish, "The Decline of Innocence," Cambridge Law Journal 26, 2 (1968) 274; Broughton, "Snowden Affair," 11.
68. Larson, "Forgotten Constitutional Law," 901-902.
69. Regina v. Thurborn, 169 Eng. Rep. 293 (1848); Fletcher, "Metamorphosis of Larceny," 514.
70. Sayre, "Mens Rea," 999-1000.
71. Benjamin A. Mains, "Virtual Child Pornography, Pandering, and the First Amendment," Hastings Constitutional Law Quarterly 37, 4 (2010) 833.
72. Fletcher, "Case for Treason," 206; Meli, "Hate Crime," 926.
73. It remains unclear whether this applies also to primitive law. Mueller, "Tort, Crime, and the Primitive," 304, 327, 331.
74. Gagarin, Drakon, 11-13; qualified in Saunders, Plato's Penal Code, 14-15.
75. Jones, Law and Legal Theory of the Greeks, 262; Drapkin, Crime and PunishÂment, 239-241.
76. Von Bar, History of Continental Criminal Law, 68.
77. Quoted in Sayre, "Mens Rea," 977-978; Peter H. Karlen, "Mens Rea: A New Analysis," University of Toledo Law Review 9, 2 (1978) 205; Pollock and Maitland, HisÂtory of English Law, 1:54.
78. Hales v. Petit, Plowd. 253, 259a (1563), quoted in Sayre, "Mens Rea," 992.
79. Mueller, "Tort, Crime, and the Primitive," 319; Drapkin, Crime and PunishÂment, 96; Genesis 9:5-6.
80. Plato, Laws, bk. 9, chap. 12.
81. Lenman and Parker, "The State, the Community, and the Criminal Law," 31; Teresa Sutton, "The Nature of the Early Law of Deodand," Cambrian Law Review 30 (1999) 14.
82. Mommsen, Romisches Strafrecht, 835; Helmholz, Natural Law in Court, 63; Perry, Crime and Society in Early Modern Seville, 72.
83. Exodus 21:12-14; Deuteronomy 19:4-13.
84. Deuteronomy 22:23-26; Cohen, Law, Sexuality, and Society, 126.
85. Bodde and Morris, Law in Imperial China, 30; Li, Early China, 291.
86. Plato, Laws, bk. 9, chap. 8; Drapkin, Crime and Punishment, 211; Parker, Miasma, 112;Jerome Hall, "Criminal Attempt: A Study of Foundations of Criminal Liability," Yale Law Journal 49, 5 (1940) 790.
87. Von Bar, History of Continental Criminal Law, 8; Treston, Poine, 53, 199; Mac- Dowell, Law in Classical Athens, 113-114.
88. Albert Levitt, "The Origin of the Doctrine of Mens Rea," Illinois Law Review 17 (1922-1923) 118; von Bar, History of Continental Criminal Law, 20.
89. Twelve Tables, Table VIII, §12; Fletcher, "Metamorphosis of Larceny," 477; Drapkin, Crime and Punishment, 233.
90. King, Law and Society in the Visigothic Kingdom, 86, 259-260; Attenborough, Laws of the English Kings, Alfred cap 36; Levitt, "Origin of Mens Rea," 121; Drapkin, Crime and Punishment, 283; Treston, Poine, 53; Mueller, "Tort, Crime, and the PrimiÂtive," 324.
91. Ullmann, Medieval Idea of Law, 144, 147. De Penna went so far as to argue that if the delinquent was not motivated by evil intent, there was no reason to punish.
92. Sayre, "Mens Rea," 980-981, 985.
93. Von Bar, History of Continental Criminal Law, 126.
94. Green, "Societal Concepts of Criminal Liability for Homicide," 669; Green, "Jury and the English Law of Homicide," 419-420.
95. Kaye, "Early History of Murder," 366; Gray, "Eliminating the (Absurd) DisÂtinction," 1374.
96. Sayre, "Mens Rea," 993; Green, Verdict according to Conscience, 30; Kaye, "Early History of Murder," 365-366; Beattie, Crime and the Courts, 91.
97. Karlen, "Mens Rea," 238; Robbins, "Double Inchoate Crimes," 16.
98. Model Penal Code, 240.1.
99. Davis, Conflict and Control, 257; Andrew Ashworth and Lucia Zedner, "PreÂvention and Criminalization: Justification and Limits," New Criminal Law Review 15, 4 (2012) 545.
100. Stuntz, "Pathological Politics," 516.
101. Dubber, "Policing Possession," 835; Dubber, Dual Penal State, 221.
102. Bernadette McSherry, "Expanding the Boundaries of Inchoate Crimes: The Growing Reliance on Preparatory Offenses," in Bernadette McSherry et al., eds., Regulating Deviance: The Redirection of Criminalization and the Futures of Criminal Law (Oxford 2009) 157.
103. Sexual Offences Act 2003 (England and Wales) s. 15.
104. Frederick Schauer and Richard Zeckhauser, "Regulation by Generalization," Regulation and Governance 1 (2007) 69-74; Fletcher, "Case for Treason," 203.
105. Larry Alexander and Kimberley D. Kessler, "Mens Rea and Inchoate Crimes," Journal of Criminal Law and Criminology 87, 4 (1997) 1138-1139.
106. Herbert Wechsler et al., "The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute," Columbia Law Review 61 (1961) 958; Francis B. Sayre, "Criminal Conspiracy," Harvard Law Review 35, 4 (1922) 399.
107. Robbins, "Double Inchoate Crimes," 30-33.
108. Alexander and Kessler, "Mens Rea," 1169-1170.
109. Dworkin and Blumfeld, "Punishment for Intentions," 400-401; Larry Alexander and Kimberly Kessler Ferzan, "Risk and Inchoate Crimes: Retribution or Prevention?," in G. R. Sullivan and Ian Dennis, eds., Seeking Security: Pre-empting the Commission of Criminal Harms (Oxford 2012) 111.
110. Michael T. Cahill, "Defining Inchoate Crime: An Incomplete Attempt," Ohio State Journal of Criminal Law 9 (2011-2012) 753. In ancient China, however, offendÂers who confessed before the authorities discovered their crime could receive reduced punishments. Bodde and Morris, Law in Imperial China, 42. And in the United States, perjury can be recanted in the same proceeding where it was committed. 18 US Code §1623(d).
111. Swedish penal code, chap. 23, sect. 3. In many US states, the accomÂplice hoping to withdraw must also seek to prevent the crime. Carol A. Schwab, "Accomplice Liability under the 1979 Missouri Criminal Code,â Missouri Law Review 44, 2 (1979) 234, 265-266.
112. Kimberly Kessler Ferzan, "Inchoate Crimes at the PunishmentZPrevention Divide,â San Diego Law Review 48 (2011) 1278-1280.
113. Alexander and Kessler, "Mens Rea," 1142.
114. Ferzan, "Inchoate Crimes," 1280; Fletcher, "Metamorphosis of Larceny," 523.
115. Fletcher, "Case for Treason," 198; Robbins, "Double Inchoate Crimes," 9.
116. Wechsler et al., "Treatment of Inchoate Crimes," 1001-1002; Richard J. Hoskins, "A Comparative Analysis of the Crime of Conspiracy in Germany, France, and the United States," NYU Journal OfInternational Law and Politics 6 (1973) 256, 265.
117. Calker et al., Verbrechen und Vergehen, 39-44; Ingraham, Political Crime in Europe, 126-127.
118. Matthew 5:28.
119. Ullmann, Medieval Idea of Law, 144.
120. Pound, Law and Morals, 67.
121. Aquinas, Summa Theologica, first part of the second part, question 91, art. 4.
122. Leviathan, chap. 27.
123. Attenborough, Laws of the English Kings, Wihtred cap 28; Harrington, FaithÂful Executioner, 97; An Act for the Better Prevention of Offences 1851, 14 & 15 Vict., c. 19, §1, quoted in Dubber, "Policing Possession," 924.
124. Kaye, "Early History of Murder," 382; R. v. Taylor (1859) 1 F & F 511, 175 Eng. Rep. 831-32.
125. Hall, "Criminal Attempt," 794.
126. Levitt, "Origin of Mens Rea," 122, 128; Ingraham, Political Crime in Europe, 66.
127. Plutarch, Lives of the Noble Greeks and Romans, "Dion," 9.
128. Lear, Treason, 128; Bellamy, Tudor Law of Treason, 8.
129. Fletcher, "Case for Treason," 198; "Historical Concept of Treason," 72-73; Elton, Law of Treason, 222, 231-232; Orr, Treason and the State, 18.
130. 21 Richard II (1397); Hall, "Criminal Attempt," 795; Young, Magic as a Political Crime, 32; Bellamy, Tudor Law of Treason, 32.
131. Alexander and Ferzan, Crime and Culpability, 192-196; Vormbaum, Modern History of German Criminal Law, 195; Paul H. Robinson and Markus D. Dubber, "The American Model Penal Code," New Criminal Law Review 10, 3 (2007) 320.
132. McKnight, Quality of Mercy, 60.
133. Lorton, "Treatment of Criminals," 13-14.
134. Treston, Poine, 223-224; MacDowell, Law in Classical Athens, 115-116; Mommsen, Romisches Strafrecht, 95, 742.
135. Mueller, "Tort, Crime, and the Primitive," 326; von Bar, History of ContinenÂtal Criminal Law, 68, 102-103.
136. Von Bar, History of Continental Criminal Law, 157; Xavier Rousseaux, "From Case to Crime: Homicide Regulation in Medieval and Modern Europe," in Dietmar Willoweit, ed., Die Entstehung des Offentlichen Strafrechts (Cologne 1999) 150.
137. Hall, "Criminal Attempt," 791, 805; Langbein, Prosecuting Crime, 170.
138. Rex v. Scofield, Cald. 397 (1784) (1786 ed.); Francis Bowes Sayre, "Criminal Attempts," Harvard Law Review 41 (1927-1928) 821-827, 834; Wiener, Reconstructing the Criminal, 68.
139. King v. Higgins, 2 East 5, 102 Eng. Rep. 269 (1801); Hall, "Criminal Attempt,â 809.
140. Regina v. Eagleton, 169 Eng. Rep. 826 (Crim. App. 1855); Robbins, "Double Inchoate Crimes," 13; R. v. Taylor (1859) 1 F & F 511, 175 Eng. Rep. 831-832.
141. Robbins, "Double Inchoate Crimes," 12-14.
142. Regina v. Collins, 9 Cox C. C. 497, 498, 169, Eng. Rep. 1477, 1478 (1865); Hall, "Criminal Attempt," 833.
143. Wechsler et al., "Treatment of Inchoate Crimes," 578; G. L. Peiris, "Liability for Inchoate Crime in Commonwealth Law," Legal Studies 4 (1984) 56.
144. This started with the Model Penal Code in the United States and the CrimiÂnal Attempts Act 1981 in Britain. Wechsler et al., "Treatment of Inchoate Crimes," 573. But in Japan impossible crimes remain unpunished. Peiris, "Liability for InchoÂate Crime," 63.
145. People v. Dlugash, 41 N.Y.2d 725, 363 N.E.2d 1155, 395 N.Y.S.2d 419 (1977); Ira P. Robbins, "Attempting the Impossible," Harvard Journal on Legislation 23 (1986) 422-423, 432-434.
146. Sayre, "Criminal Conspiracy," 396, 401; Hall, "Criminal Attempt," 793.
147. Attenborough, Laws of the English Kings, Ine cap 13; Harcourt, "Collapse of the Harm Principle," 153.
148. Pennington, "âPro peccatis patrum puniri,'" 138.
149. Sayre, "Criminal Conspiracy," 407, 413; Hoskins, "A Comparative Analysis of the Crime of Conspiracy," 267-268.
150. Hoskins, "A Comparative Analysis of the Crime of Conspiracy," 246, 250.
151. Robbins, "Double Inchoate Crimes," 64, 38-40, 45-46.
152. Dubber, "Policing Possession," 907.
153. Fletcher, "Metamorphosis of Larceny," 523; Ferzan, "Inchoate Crimes," 1283.
154. Ashworth and Zedner, "Just Prevention," 284.
155. Bernard Lewis, The Assassins (New York 1967).
156. Ashworth and Zedner, Preventive Justice, 179-180, 184-189.
157. Terrorism Act 2006, s. 5(1).
158. McSherry, "Expanding the Boundaries of Inchoate Crimes," 142, 152-153; Ashworth and Zedner, "Just Prevention," 285.
159. Terrorism Act 2006; Lucia Zedner, "Fixing the Future? The Pre-emptive Turn in Criminal Justice," in McSherry et al., Regulating Deviance, 49; Ashworth and Zedner, "Prevention and Criminalization," 545.
160. Terrorism Act 2000, s. 16(2); McSherry, "Expanding the Boundaries of Inchoate Crimes," 142.
161. Serious Crime Act 2007, s. 2(1)(b); Zedner, "Fixing the Future?," 51.
162. Michael T. Cahill, "Attempt by Omission," Iowa Law Review 94 (2008-2009) 1209, 1236, and passim.
163. Pound quoted in Dubber, Police Power, 127.
164. Jean Floud and Warren Young, Dangerousness and Criminal Justice (Totowa 1981) 155-157.
165. Robinson, "Punishing Dangerousness," 1445-1446.
166. Saunders, Plato's Penal Code, 111; Mommsen, Romisches Strafrecht, 299; Goebel, Felony and Misdemeanor, 70.
167. Attenborough, Laws of the English Kings, Ine cap 18, 37; Pollock and MaitÂland, History of English Law, 1:49; Bodde and Morris, Law in Imperial China, 95; HarÂrington, Faithful Executioner, 31; Walker, Popular Justice, 14.
168. Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge MA 2001) 13-14.
169. Kelling and Coles, Fixing Broken Windows, 244; Lawrence W. Sherman, "Attacking Crime: Police and Crime Control,â in Michael Tonry and Norval Morris, eds., Modern Policing (Chicago 1992) 176-179.
170. David H. Bayley, Police for the Future (New York 1994) 103.
171. Emsley, English Police, 152; Anthony A. Braga and David L. Weisburd, PolicÂing Problem Places: Crime Hot Spots and Effective Prevention (New York 2010).
172. Fraher, "IV Lateran's Revolution," 103.
173. Goebel, Felony and Misdemeanor, 69-75; Peters, Inquisition, 34; Langbein, Prosecuting Crime, 146; Esmein, History of Continental Criminal Procedure, 302.
174. Bartlett, Trial by Fire and Water, 31; Wormald, "Charters," 160; Peters, InquiÂsition, 34; Ames, Righteous Persecution, 149.
175. Ullmann, "Some Medieval Principles," 23-24; Ullmann, "Medieval TorÂture," 130; Mike Macnair, "Vicinage and the Antecedents of the Jury," Law and HisÂtory Review 17 (1999) 574.
176. Peters, Torture, 44-45; Langbein, Prosecuting Crime, 146.
177. Fraher, "Preventing Crime," 224-226; Soman, "Deviance and Criminal JusÂtice," 11.
178. Blackstone, Commentaries on the Laws of England, 4:248.
179. Uberto Gatti and Alfredo Verde, "Cesare Lombroso: Methodological AmbiÂguities and Brilliant Intuitions," International Journal of Law and Psychiatry 35 (2012) 23-24.
180. Floud and Young, Dangerousness, 23-24; Zedner, "Fixing the Future," 39-40; Leon Radzinowicz and Roger Hood, "Dangerousness and Criminal Justice," CrimiÂnal Law Review (1981) 758; Henry J. Steadman and Joseph J. Cocozza, Careers of the Criminally Insane: Excessive Social Control of Deviance (Lexington 1974) chaps. 5 and 8.
181. Only one out of three predictions were accurate. Phil Woods and Gerri C. Lasiuk, "Risk Prediction: A Review of the Literature," Journal of Forensic Nursing 4, 1 (2008) 3.
182. Michael A. Norko and Madelon V. Baranoski, "The State of Contemporary Risk Assessment Research," Canadian Journal of Psychiatry 50 (2005) 19-20.
183. "Advances in AI Are Used to Spot Signs of Sexuality," Economist, 9 SepÂtember 2017; R. Karl Hanson and Monique T. Bussiere, "Predicting Relapse: A MetaÂanalysis of Sexual Offender Recidivism Studies," Journal of Consulting and Clinical Psychology 66, 2 (1998) 349, 351, 356; Gilles Launay, "The Phallometric Assessment of Sex Offenders," Criminal Behaviour and Mental Health 4 (1994) 56.
184. Martha J. Farah et al., "Functional MRI-Based Lie Detection: Scientific and Societal Challenges," Nature Reviews Neuroscience 15 (2014) 124.
185. Frank Ridgeway, Blood in the Face: The Ku Klux Klan, Aryan Nations, Nazi SkinÂheads, and the Rise of a New White Culture, 2nd ed. (New York 1995) 35, 45. Lombroso thought the same of the criminal type. David G. Horn, "Making Criminologists," in Peter Becker and Richard F. Wetzell, eds., Criminals and Their Scientists (Cambridge 2006) 331. Darwin considered blushing uniquely human, found among all Homo sapiens. Christopher Boehm, Moral Origins: The Evolution of Virtue, Altruism, and Shame (New York 2012) 14.
186. Dikotter, Crime, Punishment, and the Prison in Modern China, 208; Ken Alder, The Lie Detectors (Lincoln 2007) 108-109.
187. Robin Marantz Henig, "Looking for the Lie,â New York Times, 5 February 2006; Kelly A. Gates, Our Biometric Future: Facial Recognition Technology and the CulÂture of Surveillance (New York 2011) chap. 5.
188. Henry T. Greely and Judy Illes, "Neuroscience-Based Lie Detection: The Urgent Need for Regulation,â American Journal of Law and Medicine 33 (2007) 380.
189. Aldert Vrij et al., "Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection," Psychological Science in the Public Interest 11, 3 (2010) 94-96.
190. Ian Hacking, The Taming of Chance (Cambridge 1990).
191. Harcourt, "Shaping of Chance," 106.
192. Robinson and Darley, "Utility of Desert," 468.
193. Packer, Limits of Criminal Sanction, 49-51; Douglas Husak, OvercriminalizaÂtion: The Limits of the Criminal Law (New York 2008) 80.
194. Wechsler et al., "Treatment of Inchoate Crimes," 587; Kadish, "Decline of Innocence," 285-286.
195. Norko and Baranoski, "State of Contemporary Risk Assessment," 23.
196. Michael Gottfredson and Travis Hirschi, "The True Value of Lambda Would Appear to Be Zero: An Essay on Career Criminals, Criminal Careers, Selective IncaÂpacitation, Cohort Studies, and Related Topics," Criminology 24, 2 (1986) 217.
197. Steadman and Cocozza, Careers of the Criminally Insane, 150-152; Alan M. Dershowitz, "The Law of Dangerousness: Some Fictions about Predictions," Journal of Legal Education 23 (1970) 25.
198. Garnot, "La legislation et la repression des crimes," 79; Syed Ahmad Huda, "Legal Remedies for the Gypsies: Can the European Legal Frameworks Hold France Liable for the Expulsion of the Roma?" University of Pennsylvania Journal of InternaÂtional Law 33, 4 (2012) 1083.
199. Judith Walkowitz, Prostitution and Victorian Society (Cambridge 1980) 109; Dubber, "Policing Possession," 912-913.
200. Papachristou v. City of Jacksonville, 405 US 156 (1972) 164, quoted in Peter W. Poulos, "Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering," California Law Review 83 (1995) 387.
201. Baumgartner et al., Suspect Citizens, 8-11.
202. Kim Strosnider, "Anti-gang Ordinances after City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law," American Criminal Law Review 39 (2002) 101-103; Lawrence Rosenthal, "Gang LoiterÂing and Race," Journal of Criminal Law and Criminology 99 (2000) 101-102; Kelling and Coles, Fixing Broken Windows, 55-64.
203. R. A. Duff, "Dangerousness and Citizenship," in Andrew Ashworth and Martin Wasik, eds., Fundamentals of Sentencing Theory (Oxford 1998) 153-156.
204. Harcourt, "Shaping of Chance," 117; Nora V. Demleitner, "Abusing State Power or Controlling Risk? Sex Offender Commitment and Sicherung[s]verwahrung," Fordham Urban Law Journal 30 (2003) 1651.
205. Ingraham, Political Crime in Europe, 264; Hsi-Huey Liang, The Rise of Modern Police and the European State System from Metternich to the Second World War (CamÂbridge 1992) 251.
206. Garland, Punishment and Modern Society, 136.
207. Alexis de Tocqueville, Democracy in America, chap. 15, pt. 2.
208. Muhlhahn, Criminal Justice in China, 26-27, 33, 54; Plato, Laws, bk. 10, chap.
15.
209. Peters, Inquisition, 30; Levy, Treason against God, 107-108.
210. Karen Sullivan, "Disputations, Literary and Inquisitorial: The Conversion of the Heretic Sicart of Figueiras," Medium ^vum 78, 1 (2009) 58.
211. Asad, "Medieval Heresy," 356-357; Ames, Righteous Persecution, chap. 4.
212. Gorski, "Protestant Ethic Revisited," 282; Beattie, Crime and the Courts, 473.
213. Beattie, Crime and the Courts, 492, 497-499; Beattie, Policing and Punishment, 54.
214. Radzinowicz, History of English Criminal Law, 1:14, 376.
215. Walker, Popular Justice, 85.
216. Richard F. Wetzell, Inventing the Criminal: A History of German Criminology, 1880-1945 (Chapel Hill 2000) 33-35; Packer, Limits of Criminal Sanction, 54-55.
217. Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (Chicago 2007) 52; Rotman, "Failure of Reform," 174.
218. Walker, Popular Justice, 92-95; Miethe and Lu, Punishment, 95; Harcourt, Against Prediction, 39-40; Whitman, Harsh Justice, 149.
219. David Garland, The Culture of Control: Crime and Social Order in ContemÂporary Society (Chicago 2001) 3-9; Wacquant, Punishing the Poor, chap. 4; Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge 2006) chaps. 5 and 6.
220. Garland, Culture of Control, chap. 3; Feeley and Simon, "New Penology," 467-468.
221. Walker, Popular Justice, 246-249; Harcourt, "Shaping of Chance," 107-109.
222. Hanns von Hofer and Henrik Tham, "Punishment in Sweden," in Vincenzo Ruggiero and Mick Ryan, eds., Punishment in Europe (Basingstoke 2013) 34.
223. Susan R. Klein, "The Return of Federal Judicial Discretion in Criminal SenÂtencing," Valparaiso University Law Review 39 (2005) 693; Harcourt, Against PredicÂtion, 93; Roberts et al., Penal Populism, 35; Howard, Unusually Cruel, 53-57.
224. Howard, Unusually Cruel, chap. 5; Nicola Lacey, The Prisoners' Dilemma: PolitiÂcal Economy and Punishment in Contemporary Democracies (Cambridge 2008) 26-27.
225. Demleitner, "Abusing State Power," 1623; Cavadino and Dignan, Penal Systems, 141; Markus Dirk Dubber, "Theories of Crime and Punishment in German Criminal Law," American Journal of Comparative Law 53, 3 (2005) 698.
226. Floud and Young, Dangerousness, 72-76; Eric S. Janus, Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State (Ithaca 2006) 17.
227. Garland, Culture of Control, 36.
228. O'Brien, "Prison on the Continent," 219. But the French penal code of 1810 also used nonfixed terms with maximums and minimums. Von Bar, History of Continental Criminal Law, 338.
229. Roberts et al., Penal Populism, 36.
230. John Stuart Mill, On Liberty (Boston 1863) 114.
231. Miethe and Lu, Punishment, 140; Giacomo Bono, "Commonplace ForgiveÂness: From Healthy Relationships to Healthy Society,â Humboldt Journal of Social RelaÂtions 29, 2 (2005) 94.
232. Pound, Law and Morals, 65-66; Vernon Palmer, "A General Theory of the Inner Structure of Strict Liability," Tulane Law Review 62 (1988) 1313.
233. Steven Shavell, "Strict Liability versus Negligence," Journal of Legal Studies 9 (1980) 2-3.
234. David A. Moss, When All Else Fails: Government as the Ultimate Risk Manager (Cambridge MA 2002) 233.
235. Jed Handelsman Shugerman, "The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age," Yale Law JourÂnal 110, 2 (2000) 336-337.
236. Copyright violation is also strict liability: see Dane S. Ciolino and Erin A. Donelon, "Questioning Strict Liability in Copyright," Rutgers Law Review 54 (2002), and Francisco Bonet Ramon, "Strict Liability," Louisiana Law Review 42 (1981-1982) 1699-1701.
237. John L. Diamond, "The Myth of Morality and Fault in Criminal Law Doctrine," American Criminal Law Review 34 (1996) 117-118; Francis Bowes Sayre, "Public Welfare Offenses," Columbia Law Review 33 (1933) 58.
238. Coffee, "Does âUnlawful' Mean âCriminal'?," 210-215; Robinson and Darley, "Utility of Desert," 480.
239. James E. Starrs, "The Regulatory Offense in Historical Perspective," in GerÂhard O. W. Mueller, ed., Essays in Criminal Science (South Hackensack 1961) 237-238, 242; Karlen, "Mens Rea," 233-234; Feeley and Simon, "New Penology," 452; Sayre, "Public Welfare Offenses," 58; Sayre, "Criminal Responsibility," 719.
240. Coffee, "Does âUnlawful' Mean âCriminal'?," 216; Coffee, "Paradigms Lost," 1880; Heyman, "Losing All Sense of Just Proportion," 142.
241. Richard A. Epstein, "A Theory of Strict Liability," Journal of Legal Studies 2 (1973) 152-153.
242. John Austin, Lectures on Jurisprudence, 3rd ed. (London 1869) 1:441-443; Richard A. Epstein, "Crime and Tort: Old Wine in Old Bottles," in Randy E. Barnett and John Hagel III, eds., Assessing the Criminal (Cambridge MA 1977) 235-236.
243. Dan W. Morkel, "On the Distinction between Recklessness and Conscious Negligence," American Journal of Comparative Law 30, 2 (1982) 326-327; George P. Fletcher, "The Theory of Criminal Negligence," University of Pennsylvania Law Review 119, 3 (1971) 427.
244. Kyron Huigens, "Virtue and Criminal Negligence," Buffalo Criminal Law Review 1, 2 (1998) 431; James B. Brady, "Punishment for Negligence: A Reply to ProÂfessor Hall," Buffalo Law Review 22 (1972) 108-109.
245. Exodus 21:29; King, Law and Society in the Visigothic Kingdom, 261.
246. Attenborough, Laws of the English Kings, Ine cap 42, Alfred cap 23; King, Law and Society in the Visigothic Kingdom, 220.
247. Friedland, Seeing Justice Done, 41; Harriet Ritvo, The Animal Estate: The EngÂlish and Other Creatures in the Victorian Age (Cambridge MA 1987) 2.
248. Kimmo Nuotio, "Normative and Epistemological Aspects Concerning Legal Liability for Risk-Taking," Hefvrd 18, 71 (1995) 64.
249. R. D. L., "Crimes: Negligence and Criminal Negligence,â Michigan Law Review 24, 3 (1926) 286-287; James B. Brady, "Conscious Negligence," American Philosophical Quarterly 33, 3 (1996) 326.
250. Duff, "Criminalizing Endangerment," 944.
251. Model Penal Code, 2.02(2); Dubber, "Theories of Crime and Punishment," 692.
252. Ashworth and Zedner, Preventive Justice, 101-102; Duff, "Criminalizing Endangerment," 942.
253. Duff, "Dangerousness and Citizenship," 152-153.
254. Claire Finkelstein, "Is Risk a Harm?," University of Pennsylvania Law Review 151 (2003) 963-966.
255. Jerome Hall, "Negligent Behavior Should Be Excluded from Penal LiabilÂity," Columbia Law Review 63 (1963) 635-636.
Chapter 12
1. Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton 2018) 1.
2. Robert Estienne, Dictionnaire Franςois-Latin, 1539, quoted in Williams, Police of Paris, 8.
3. Markus Dubber, however, argues in Dual Penal State that police law continues a powerful and underacknowledged force in American penality.
4. That the English did not give broad regulatory powers to their police leads historians of Britain to odd conclusions, such as interpreting the Victorian spread of behavioral legislation (regarding vagrancy, public drunkenness, prostitution) as a new eruption of policing into conduct formerly controlled only by informal prohiÂbitions, but from a continental perspective this approach was nothing particularly new. See Wiener, Reconstructing the Criminal, 260, for an example.
5. Chapman, Police State, 51; Gerstle, Liberty and Coercion, chap. 2; William J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill 1996) chap. 5.
6. David H. Bayley, Patterns of Policing (New Brunswick 1985) 39; J. J. Tobias, "Police and Public in the United Kingdom," Journal of Contemporary History 7 (1972) 202; Beattie, Policing and Punishment, 77; Chapman, Police State, 38-39. Patrick Colquhoun's Treatise on the Police of the Metropolis stood in the Polizei tradition, but, published in 1797, was late and derivative.
7. Chapman, Police State, 13; Franz-Ludwig Knemeyer, "Polizei," Economy and Society 9 (1980) 174-175; Liang, Rise of Modern Police, 1.
8. Beattie, Policing and Punishment, 124; Joel F. Harrington, Reordering Marriage and Society in Reformation Germany (Cambridge 1995) 123, 210-212.
9. Friedland, Seeing Justice Done, 76-77; Williams, Police of Paris, 26, 30-35, 41, 101; Knemeyer, "Polizei," 177; Axtmann, "âPolice' and Formation of the Modern State," 42, 57; Charles Tilly, "Food Supply and Public Order in Modern Europe," in Charles Tilly, ed., The Formation of National States in Western Europe (Princeton 1975) 441-442.
10. John Merriman, Police Stories: Building the French State, 1815-1851 (New York 2006) 24; Clive Emsley, Gendarmes and the State in Nineteenth-Century Europe (Oxford 1999) 82.
11. Monkkonen, Police in Urban America, 34, chap. 3; Neil Weissman, "Regular Police in Tsarist Russia, 1900-1914,â Russian Review 44, 1 (1985) 56-57.
12. James F. Richardson, The New York Police: Colonial Times to 1901 (New York 1970) 150, 226-228.
13. Robert Reiner, The Politics of the Police, 2nd ed. (Toronto 1992) 69.
14. Raymond B. Fosdick, European Police Systems (New York 1915) 20-21, 113, 128.
15. David H. Bayley, "The Police and Political Development in Europe," in Tilly, Formation of National States, 336; Mawby, Comparative Policing Issues, 46.
16. John Brewer et al., The Police, Public Order, and the State, 2nd ed. (New York 1996) 209.
17. Fosdick, European Police Systems, 147; Reiner, Politics of the Police, 69; Wilbur R. Miller, Cops and Bobbies: Police Authority in New York and London, 1830-1870 (ChiÂcago 1977) 128.
18. Rainer, Politics of the Police, 142, 212.
19. According to some studies, only one-third of police radio calls involved crimiÂnal matters that might lead to arrest. Wilson, Varieties of Police Behavior, 4.
20. Mark Harrison Moore, "Problem-Solving and Community Policing," in Tonry and Morris, Modern Policing, 114; Reiner, Politics of the Police, 139, 97, 141.
21. Bayley, Patterns of Policing, 149; Bayley, Police for the Future, 20.
22. Wilson, Varieties of Police Behavior, 6.
23. Knemeyer, "Polizei," 185-86; Axtmann, "âPolice' and the Formation of the Modern State," 46-47.
24. Allgemeines Landrecht, part 2, title 17, §10.
25. Bayley, Patterns of Policing, 110-111.
26. Gatrell, "Decline of Theft and Violence," 271-272.
27. Liang, Rise of Modern Police, 19.
28. David H. Bayley, "Comparative Organization of the Police in EnglishÂSpeaking Countries," in Tonry and Morris, Modern Policing, 535.
29. Emsley, Gendarmes, 134.
30. Bayley, Patterns of Policing, 204; Roger Lane, "Urban Police and Crime in Nineteenth-Century America," in Tonry and Morris, Modern Policing, 18.
31. Bayley, "Police and Political Development," 373; Reiner, Politics of the Police, 63-68.
32. Richardson, New York Police, 70-71.
33. Liang, Rise of Modern Police, 4.
34. Dorothy H. Bracey, "Policing the People's Republic," in Ronald J. Troyer et al., eds., Social Control in the People's Republic of China (New York 1989) 130.
35. Sherman, "Attacking Crime," 208; Kelling and Coles, Fixing Broken Windows, 86; Bayley, Police for the Future, 8; Rejali, Torture and Democracy, 458-459.
36. Julie Ayling et al., Lengthening the Arm of the Law: Enhancing Police Resources in the Twenty-First Century (Cambridge 2009) 190-206; Treitel, Science for the Soul, 146.
37. Daniel Jutte, The Strait Gate: Thresholds and Power in Western History (New Haven 2015) 92; Williams, Police of Paris, 73, 232; Funk, Polizei und Rechtsstaat, 279; Emsley, English Police, 225.
38. Janus, Failure to Protect, 66.
39. Bellamy, Tudor Law of Treason, 83; Wickersham, Rituals of Prosecution, 97.
40. Karina M. Tehusijarana, "Fears Grow over App to Police Minorities,â Jakarta Post, 26 November 2018.
41. "Violence against Women: Government Bill 1997/98:55," Swedish GovernÂment Offices, Fact Sheet, 1999.
42. Strafgesetzbuch, §§138-139. A few exceptions to the criminalization of knowing of a crime but not reporting it are now carved out for professional secrecy.
43. Sandra Guerra Thompson, "The White-Collar Police Force: âDuty to Report' Statutes in Criminal Law Theory," William and Mary Bill of Rights Journal 11, 3 (2002) 36; Ayling et al., Lengthening the Arm of the Law, 52-55.
44. Robert D. Storch, "The Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England, 1850-1880," Journal of Social History 9, 4 (1976) 482; Ashworth and Zedner, Preventive Justice, 41; Emsley, English Police, 74-75.
45. Richardson, New York Police, 110, 181.
46. Eric Luna, "Race, Crime, and Institutional Design," Law and Contemporary Problems 66 (2003) 185-187.
47. Hindle, "Keeping of the Public Peace," 237 and passim; Hay, "Property, Authority, and the Criminal Law," 36-37; Emsley, Gendarmes, 3.
48. Funk, Polizei und Rechtsstaat, 82.
49. Miller, Cops and Bobbies, 107-108; Gatrell, "Decline of Theft and Violence," 276.
50. Miller, Cops and Bobbies, 64-66; David Philips, Crime and Authority in Victorian England (London 1977) 124-126; Braithwaite, Crime, Shame, and Reintegration, 40.
51. Moore, "Problem-Solving and Community Policing," 149; Kelling and Coles, Fixing Broken Windows, 26.
52. Rosenthal, "Gang Loitering," 113; Butler, "Racially Based Jury Nullification," 697; Tracy L. Meares and Dan M. Kahan, "The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales," University of Chicago Legal Forum 197 (1998) 199; James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (New York 2017).
53. Hunter, Policing Athens, 3, 145-149; Lintott, Violence in Republican Rome, 94; Ikram, Ancient Egypt, 231; Mommsen, Romisches Strafrecht, 298.
54. Susan Trevaskes, "The Private/Public Security Nexus in China," Social Justice 34, 3-4 (2007-2008) 39; Lena Y. Zhong and Peter N. Grabosky, "The Pluralization of Policing and the Rise of Private Policing in China," Crime, Law, and Social Change 52 (2009) 437.
55. Sharpe, Crime in Early Modern England, 106-107; Goebel, Felony and MisdeÂmeanor, 67-68.
56. Statute of Winchester, 1285, 13 Edw. I, c. 4; Henry Summerson, "The Enforcement of the Statute of Winchester, 1285-1327," Journal of Legal History 13, 3 (1992) 233.
57. Weisser, Crime and Punishment, 56; Philips, "New Engine of Power," 160; Beattie, Policing and Punishment, 114, 147.
58. Beattie, Crime and the Courts, 68-69; Beattie, Policing and Punishment, 173, 157.
59. Dale, Criminal Justice in the United States, 9; Emsley, Policing, 37; Merriman, Police Stories, 24; Weissman, "Regular Police in Tsarist Russia,â 49-50.
60. Bayley, Police for the Future, 11; Ohlin and Stauber, "Applicability of Citizen's Arrest Powers," 342; Ayling et al., Lengthening the Arm of the Law, 106.
61. Gary S. Becker and George J. Stigler, "Law Enforcement, Malfeasance, and Compensation of Enforcers," Journal of Legal Studies 3 (1974) 13.
62. Goebel, Felony and Misdemeanor, 68; Brackett, Criminal Justice and Crime in Late Renaissance Florence, 30-31; Bayley, Patterns of Policing, 25.
63. Ruff, Violence in Early Modern Europe, 90.
64. Beattie, Policing and Punishment, chap. 5; Emsley, Gendarmes, 149; Weisser, Crime and Punishment, 160.
65. Martin, Crime and Criminal Justice under the Third Republic, 43; Brown, No Duty to Retreat, 55-60.
66. Emsley, Crime, Police, and Penal Policy, 204; Clifford Shearing, "The Relation between Public and Private Policing," in Tonry and Morris, Modern Policing, 404; David A. Sklansky, "The Private Police," UCLA Law Review 46 (1999) 1212.
67. John A. Chamberlin, "Bounty Hunters: Can the Criminal Justice System Live without Them?" University of Illinois Law Review 1998, 4 (1998) 1195; Andrew DeForest Patrick, "Running from the Law: Should Bounty Hunters Be Considered State Actors and Thus Subject to Constitutional Restraints?" Vanderbilt Law Review 52 (1999) 175.
68. Zedner, "Policing before and after the Police," 90; Bayley, Patterns of Policing, 8-9. On Blackwater, now Academi, in the United States and their Russian equivaÂlents, Wagner, see "How âWagner' Came to Syria," Economist, 2 November 2017.
69. William C. Cunningham et al., The Hallcrest Report II: Private Security Trends (1970 to 2000) (July 1990) 229, https://www.ncjrs.gov/pdffiles1/Digitization/126681 NCJRS.pdf; Creveld, Rise and Decline of the State, 404; Malcolm Anderson, In Thrall to Political Change: Police and Gendarmerie in France (Oxford 2011) 415.
70. Sklansky, "Private Police," 1175; Joh, "Paradox of Private Policing," 55; Trev- askes, "Private/Public Security Nexus," 40; Dutton, Policing Chinese Politics, 294.
71. Sklansky, "Private Police," 1183-1184; Joh, "Paradox of Private Policing," 65.
72. Clive Emsley, "A Typology of Nineteenth-Century Police," Crime, histoire et societes 3, 1 (1999) 34.
73. Emsley, Gendarmes, 17-20, 42; Arnold, Fouche, Napoleon, and the General Police, 13, 24; Payne, Police State, 4.
74. Ruff, Violence in Early Modern Europe, 91; Emsley, Crime, Police, and Penal Policy, 65.
75. Philips, "New Engine of Power," 168-169; Spierenburg, History of Murder, 169.
76. Williams, Police of Paris, 92-93; Liang, Rise of Modern Police, 27; Emsley, GenÂdarmes, 202.
77. Creveld, Rise and Decline of the State, 165.
78. Weissman, "Regular Police in Tsarist Russia," 59; Miller, Cops and Bobbies, 25-32.
79. Emsley, Gendarmes, 58.
80. Garland, Culture of Control, 114; Albert J. Reiss Jr., "Police Organization in the Twentieth Century," in Tonry and Morris, Modern Policing, 51-53; Kelling and Coles, Fixing Broken Windows, chap. 5.
81. John Brewer, The Sinews of Power: War, Money, and the English State, 1688Â1783 (New York 1988) 51.
82. Weisser, Crime and Punishment, 158; Pat Thane, "Government and Society in England and Wales, 1750-1914,â in F. M. L. Thompson, ed., Cambridge Social History of Britain, 1750-1950 (Cambridge 1990) 34; Richardson, New York Police, 142.
83. V. A. C. Gatrell, "Crime, Authority, and the Policeman-State," in Thompson, Cambridge Social History of Britain, 266; Emsley, English Police, 115-118.
84. Abigail R. Hall and Christopher J. Coyne, "The Militarization of U.S. DomesÂtic Policing," Independent Review 17, 4 (2013) 491.
85. Robert W. Thurston, "Police and People in Moscow, 1906-1914," Russian Review 39, 3 (1980) 322.
86. Fosdick, European Police Systems, 126, 93; Mawby, Comparative Policing Issues, 46.
87. Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (Oxford 2018) 144.
88. Derek Lutterbeck, "Between Police and Military: The New Security Agenda and the Rise of Gendarmeries," Cooperation and Conflict 39, 1 (2006) 46-49.
89. Monkkonnen, Police in Urban America, 36.
90. Gatrell, "Crime, Authority, and the Policeman-State," 298; Emsley, English Police, 57-58; Emsley, Crime and Society in England, 133.
91. Nicolas Boring, "Comparative Summary," in Police Weapons in Selected JurisÂdictions, Law Library of Congress, Global Legal Research Center (September 2014) 1, https://www.loc.gov/law/help/police-weapons/police-weapons.pdf; Clare Feikert-Ahalt, "United Kingdom," in Police Weapons in Selected Jurisdictions, 91; Nicolas Boring, "France," in Police Weapons in Selected Jurisdictions, 40.
92. P. A. J. Waddington et al., "Singing the Same Tune? International Continuities and Discontinuities in How Police Talk about Using Force," Crime, Law, and Social Change 52, 2 (2009) 116.
93. Eighty-nine percent of US police departments had such units by 1995. On this issue, see Hall and Coyne, "Militarization of Domestic Policing," 486; Yung, "Emerging Criminal War," 446; Peter B. Kraska and Victor E. Kappeler, "Militarizing American Police: The Rise and Normalization of Paramilitary Units," Social Problems 44, 1 (1997) 7.
94. Karena Rahall, "The Green to Blue Pipeline: Defense Contractors and the Police Industrial Complex," Cardozo Law Review 36 (2015) 1789, 1818; John Paul and Michael L. Birzer, "The Militarization of the American Police Force," Critical Issues in Justice and Politics 1, 1 (2008) 18.
95. Bayley, Police for the Future, 137; Boring, "France," 40-41.
96. Rahall, "Green to Blue Pipeline," 1791, 1786-1787; Reiner, Politics of the Police, 85-89.
97. Peter K. Manning, "Information Technologies and the Police," in Tonry and Morris, Modern Policing, 351.
98. Green, "Jury and the English Law of Homicide," 431; Given, Society and Homicide, 92.
99. Herrup, Common Peace, 144; Sharpe, Crime in Early Modern England, 93; Janelle R. Greenberg and Martin S. Greenberg, "Crime and Justice in Tudor-Stuart England and the Modern United States," Law and Human Behavior 6, 3-4 (1982) 269;
John H. Langbein, "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,â University of Chicago Law Review 50, 1 (1983) 43.
100. Emsley, Crime, Police, and Penal Policy, 124; Benjamin Carter Hett, "The âCaptain of Kopenick' and the Transformation of German Criminal Justice, 1891Â1914,â Central European History 36, 1 (2003) 12-13.
101. James M. Donovan, "Justice Unblind: The Juries and the Criminal Classes in France, 1825-1914," Journal of Social History 15, 1 (1981) 93; Martin, Crime and Criminal Justice under the Third Republic, 184.
102. Cavadino and Dignan, Penal Systems, 178.
103. Percentages of prosecution leading to conviction for 2015: 97.9 percent, France; 91.6 percent, United States; 83.8 percent, United Kingdom; 81.1 percent, Germany. The number of people prosecuted taken from United Nations Office on Drugs and Crime (UNODC) Statistics, https://data.unodc.org/, search string: Crime and Criminal Justice; Criminal Justice; Persons Prosecuted; Total Persons; Total PerÂsons Prosecuted, All Crimes; Count; 2015, relevant country. The number of people convicted taken from UNODC Statistics, https://data.unodc.org/, search string: Crime and Criminal Justice; Criminal Justice; Persons Convicted; Total Persons Convicted; Total Persons Convicted, All Crimes; Count; 2015.
104. McKnight, Quality of Mercy, x; William B. Taylor, Drinking, Homicide, and Rebellion in Colonial Mexican Villages (Stanford 1979) 101; Jeroen Duindam, DynasÂties: A Global History of Power, 1300-1800 (Cambridge 2016) 25.
105. Annie Kensey and Pierre Tournier, "French Prison Numbers Stable since 1988, but Populations Changing," in Michael Tonry, ed., Penal Reform in Overcrowded Times (New York 2001) 146; McKnight, Quality of Mercy, 20.
106. Beccaria, On Crimes and Punishment, chap. 46.
107. The number of police employees is multiplying faster than officers. See Angela K. Dills et al., "What Do Economists Know about Crime?," in Rafael Di Tella et al., eds., The Economics of Crime: Lessons for and from Latin America (Chicago 2010) 276-277; Lutterbeck, "Between Police and Military," 52-53; Kraska and Kappeler, "Militarizing American Police."
108. P. S. Squire, The Third Department: The Establishment and Practices of the Political Police in the Russia of Nicholas I (Cambridge 1968) 47.
109. Wilson, Varieties of Police Behavior, 19; Bayley, Police for the Future, 17.
110. Richard V. Ericson and Kevin D. Haggerty, Policing the Risk Society (Toronto 1997) 19-20.
111. Arnold, Fouche, Napoleon, and the General Police, 13.
112. Herrup, Common Peace, 70; Beattie, Policing and Punishment, 82, 120, 131-132.
113. Quoted in Kelling and Coles, Fixing Broken Windows, 106.
114. Greenberg, Crime and Law Enforcement, 159-161; Miller, Cops and Bobbies, 146; Jerome Hall, "Legal and Social Aspects of Arrest without a Warrant," Harvard Law Review 49 (1936) 579.
115. Miller, Cops and Bobbies, 16; Sklansky, "Private Police," 1184-1185; Ohlin and Stauber, "Applicability of Citizen's Arrest Powers," 347-350.
116. Joh, "Paradox of Private Policing," 64; Roberta Mary Fay, "Citizen's Arrest: International Environmental Law and Global Climate Change," Glendale Law Review 14 (1995) 88-89.
117. Howard E. Wallin, "Citizens' Arrests and the Fourth Amendment,â Touro Law Review 4 (1987) 17-18, 28-30.
118. Samuels, "Non-Crown Prosecution," 33-35.
119. Robbins, "Vilifying the Vigilante," 583; V. F. Nourse, "Self-Defense and Subjectivity," University of Chicago Law Review 68, 4 (2001) 1271-1274; Boaz Sangero, "Heller's Self-Defense," New Criminal Law Review 13, 3 (2010) 454.
120. Beattie, Crime and the Courts, 71-72; Beattie, Policing and Punishment, 121Â122, 197; Williams, Police of Paris, 232.
121. Yair Mintzker, The Defortification of the German City, 1689-1866 (Cambridge 2012) 21.
122. Sklansky, "Private Police," 1187; Maitland, Constitutional History of England, 236, 488-489.
123. Miller, Cops and Bobbies, 54, 7, 63-64; Richardson, New York Police, 190; Gatrell, "Crime, Authority, and the Policeman-State," 266-267.
124. Sally Bedell Smith, "Billionaire with a Cause," Vanity Fair, 2 January 2008, https://www.vanityfair.com/ magazine/1997/05/goldsmith199705?currentPage=5.
125. Sklansky, "Private Police," 1213.
126. Saunders, Plato's Penal Code, 39; Christopher Andrew, The Secret World: A History of Intelligence (New Haven 2018) 37.
127. Peters, Inquisition, 54; Ames, Righteous Persecution, passim.
128. Given, Inquisition, 42-45. In fourteenth-century England, possession of works in English, especially Bibles, was prima facie evidence of heresy. John Baker, "Magna Carta and Personal Liberty," in Robin Griffith-Jones and Mark Hillin, eds., Magna Carta, Religion, and the Rule of Law (Cambridge 2015) 89.
129. Thornley, "Treason Legislation of Henry VIII," 91; Elton, Policy and Police, chap. 8; Bellamy, Tudor Law of Treason, 84-85.
130. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 30; Squire, Third Department, 63.
131. Chapman, Police State, 24; Axtmann, "âPolice' and the Formation of the Modern State," 59.
132. Simon Burrows, "Despotism without Bounds: The French Secret Police and the Silencing of Dissent in London, 1760-1790," History 89, 4 (2004) 526-527; WilÂliams, Police of Paris, 104-106.
133. Mathieu Deflem, "International Policing in Nineteenth-Century Europe: The Police Union of German States, 1851-1866," International Criminal Justice Review 6 (1996) 44.
134. Liang, Rise of Modern Police, 10.
135. Gatrell, "Crime, Authority, and the Policeman-State," 261; Bayley, Patterns of Policing, 195-196; Emsley, English Police, 104-105, 259-261.
136. Deflem, "International Policing," 42-43.
137. Peter Holquist, "âInformation Is the Alpha and Omega of Our Work': BolÂshevik Surveillance in Its Pan-European Context," Journal of Modern History 69, 3 (1997) 422, 439.
138. Liang, Rise of Modern Police, 51; Merriman, Police Stories, 15.
139. Arnold, Fouche, Napoleon, and the General Police, 16; Anderson, In Thrall to Political Change, 270.
140. Payne, Police State, 267-268; Howard C. Payne, "An Early Concept of the Modern Police State in Nineteenth Century France,â Journal of Criminal Law, CrimiÂnology, and Police Science 43, 3 (1952) 379-380.
141. Lane, "Urban Police and Crime," 10-11.
142. Andrew Pepper, Unwilling Executioner: Crime Fiction and the State (Oxford 2016); Matthew Levay, Violent Minds: Modernism and the Criminal (Cambridge 2019).
143. Frank Smyth, Cause of Death: The History of Murder under the Microscope (London 1982) 9.
144. Elizabeth A. Wood, Performing Justice: Agitation Trials in Early Soviet Russia (Ithaca 2005) 16.
145. Reiner, Politics of the Police, 183.
146. Lawrence Frank, "âThe Murders in the Rue Morgue': Edgar Allan Poe's EvoÂlutionary Reverie," Nineteenth-CenturyLiterature 50, 2 (1995) 171.
147. "The Science of Deduction," in Arthur Conan Doyle, The Sign of Four.
148. Arthur Conan Doyle, "The Adventure of the Copper Breeches," in The AdvenÂtures of Sherlock Holmes. And, indeed, it is argued that Peircean abduction is Holmes's method, where, unlike deduction, the conclusion is not logically implied by the rule and premise but requires empirical verification. See Marcello Truzzi, "Sherlock Holmes, Applied Social Psychologist," in Umberto Eco and Thomas A. Sebeok, eds., The Sign of Three: Dupin, Holmes, Peirce (Bloomington 1983) 69-70.
149. Squire, Third Department, 205-207.
150. Eric Monkkonen, "History of Urban Police," in Tonry and Morris, Modern Policing, 550.
151. Weissman, "Regular Police in Tsarist Russia," 48; Thurston, "Police and People in Moscow," 326; Richardson, New York Police, 68.
152. Moss, When All Else Fails, 8, 257-276.
153. Tomlinson, "French Experience," 494-497.
154. Goebel, Felony and Misdemeanor, 64.
155. Bartlett, Trial by Fire and Water, 16-20, 29.
156. Cavadino and Dignan, Penal Systems, 165, 178; Hans-Heinrich Jescheck, "Principles of German Criminal Procedure in Comparison with American Law," VirÂginia Law Review 56 (1970) 245.
157. Conviction rates in 2015 were 98 percent for France and 84 percent for BritÂain. The number of people prosecuted is taken from UNODC Statistics, https://data.unodc.org/, search string: Crime and Criminal Justice; Criminal Justice; Persons Prosecuted; Total Persons; Total Persons Prosecuted, All Crimes; Count; 2015, relevant country. The number of people convicted is taken from UNODC Statistics, https://data.unodc.org/, search string: Crime and Criminal Justice; Criminal Justice; Persons ConÂvicted; Total Persons Convicted; Total Persons Convicted, All Crimes; Count; 2015.
158. Esmein, History of Continental Criminal Procedure, 328-329.
159. George Fisher, "The Jury's Rise as Lie Detector," Yale Law Journal 107, 3 (1997) 583. Ancient Greek courts faced similar problems once oaths were allowed on both sides. Jones, Law and Legal Theory of the Greeks, 137-138.
160. Barbara J. Shapiro, "âTo a Moral Certainty': Theories of Knowledge and Anglo-AmericanJuries 1600-1850," Hastings Law Journal 38 (1986-1987) passim.
161. Hasegawa, Crime and Punishment, 35.
162. Saunders, Plato's Penal Code, 316.
163. William and Mary, 1692, "An Act for encourageing the apprehending of Highway Men,â chap. 8, Rot. Parl., pt. 3, no. 3, v; Hunt, Governing Morals, 34, 44, 47-49;Hsia, Social Discipline in the Reformation, 19.
164. Michael Braddick, State Formation in Early Modern England, c. 1550-1700 (Cambridge 2000) 41; Mark Finnane, Police and Government: Histories of Policing in Australia (Melbourne 1994) 77-78.
165. Williams, Police of Paris, 231; Martin, Crime and Criminal Justice under the Third Republic, 77, 44; Dutton, Policing Chinese Politics, 152.
166. Weissman, "Regular Police in Tsarist Russia,â 49; Thurston, "Police in Moscow," 326.
167. Sheila Fitzpatrick and Robert Gellately, "Introduction to the Practices of Denunciation in Modern European History," Journal of Modern History 68 (1996) 150-151; Catherine Epstein, "The Stasi: New Research on the East German MinÂistry of State Security," Kritika 5, 2 (2004) 322; Sheila Fitzpatrick and Alf Ludtke, "Energizing the Everyday: On the Breaking and Making of Social Bonds in Nazism and Stalinism," in Geyer and Fitzpatrick, Beyond Totalitarianism, 284-285; Michael Dutton, "Toward a Government of Contract: Policing in the Era of Reform," in Borge Bakken, ed., Crime, Punishment, and Policing in China (Lanham 2005) 211.
168. Ayling et al., Lengthening the Arm of the Law, chap. 4; Marc Santora and Stephanie Clifford, "Three Brooklyn Men Accused of Plot to Aid ISIS' Fight," New York Times, 25 February 2015.
169. Kaytal, "Conspiracy Theory," 1312.
170. Gary Lease, "Denunciation as a Tool of Ecclesiastical Control: The Case of Roman Catholic Modernism," Journal of Modern History 68, 4 (1996) 819-820.
171. MacDowell, Law in Classical Athens, 63; Esmein, History of Continental Criminal Procedure, 122.
172. Lawrence Stone, "Interpersonal Violence in English Society 1300-1980," Past and Present 101 (1983) 31.
173. Andrea Zorzi, "The Judicial System in Florence in the Fourteenth and Fifth- teenth Centuries," in Dean and Lowe, Crime, Society, and the Law in Renaissance Italy, 44; Monas, Third Section, 35.
174. Colin Lucas, "The Theory and Practice of Denunciation in the French RevoÂlution," Jounal of Modern History 68, 4 (1996) 774-775.
175. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 30-31, 26, 36.
176. Beattie, Crime and the Courts, 50-51, 134; Bellamy, Tudor Law of Treason, 125; Hughes, Governmental Habit Redux, 42.
177. Williams, Tudor Regime, 150; Beattie, Policing and Punishment, 147, 231, 379.
178. Beattie, Crime and the Courts, 369; Wacquant, Punishing the Poor, 22; Ayling et al., Lengthening the Arm of the Law, 105-106.
179. Karen Freifeld and Edward Krudy, "BNP's Monstrous $9 Billion Fine Is Going toward... New Office Carpets," Business Insider, 24 July 2014; David BenjaÂmin Ross, "Civil Forfeiture: A Fiction That Offends Due Process," Regent University Law Review 13 (2000) 272-273.
180. Kraska and Kappeler, "Militarizing American Police," 9; Bayley, Police for the Future, 82; Kim, "Asset Forfeiture," 529; Barnet, "Legal Fiction and Forfeiture," 100.
181. Insider Trading and Securities Fraud Enforcement Act of 1988, Pub. L. 100-704, 19 November 1988, 102 Stat. 4679; Ayling et al., Lengthening the Arm of the Law, 112.
182. Jutte, Strait Gate, 64.
183. Dwyer et al., Actual Innocence, chap. 3.
184. Noah Clements, "Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony,â Indiana Law Review 40 (2007) 271; Henry F. Fradella, "Why Judges Should Admit Expert Testimony on the Unreliability of EyewitÂness Testimony," Federal Courts Law Review 2 (2007) 3.
185. Smyth, Cause of Death, 19-20; Sung Tz'u, The Washing Away of Wrongs, trans. Brian E. McKnight (Ann Arbor 1981) 4, 62-63, 71, 132.
186. Mark Jackson, "Suspicious Infant Deaths: The Statute of 1624 and Medical Evidence at Coroners' Inquests," in Clark and Crawford, Legal Medicine in History, 75-81.
187. Frank, "Popular Justice," 259. Further evidence also dispelled the idea of floating lungs. Roth, "Homicide in Early Modern England," 39.
188. Spierenburg, History of Murder, 170. The first such case was in Paris in 1902. Martin, Crime and Criminal Justice under the Third Republic, 81.
189. Soderman and O'Connell, Modern Criminal Investigation, 122-123.
190. Smyth, Cause of Death, 18.
191. Cole, Suspect Identities, 88-90.
192. Footprints were used as evidence as early as the seventeenth century. Herrup, Common Peace, 74.
193. Soderman and O'Connell, Modern Criminal Investigation, 256; Dwyer et al., Actual Innocence, 45.
194. Emsley, Crime, Police, and Penal Policy, 182; Smyth, Cause of Death, 75.
195. Dwyer et al., Actual Innocence, 208-214.
196. D. H. Kaye, "Revisiting Dreyfus: A More Complete Account of a Trial by Mathematics," Minnesota Law Review 91 (2007) 829-830; Henry T. F. Rhodes, AlphonseBertillon (London 1956) 174-175.
197. Dana Dryzal, "Blood Stain Pattern Analysis: Applications and Challenges," D.U.Quark 2, 2 (2018); Giovanni Acampora et al., "Bloodstain Pattern Analysis: A New Challenge for Computational Intelligence Community," in Proceedings of the InternaÂtional Conference on Fuzzy Computation Theory and Applications (2014); Vincent Denault et al., "The Analysis of Non-verbal Communication: The Dangers of Pseudoscience in Security and Justice Contexts," Anuario de psicologιa juridica (2019); Vincent Denault and Louise Marie Jupe, "Justice at Risk! An Evaluation of a Pseudoscientific Analysis of a Witness' Nonverbal Behavior in the Courtroom," Journal of Forensic Psychiatry & PsyÂchology 29, 2 (2017); Sophie J. Nightingale and Hany Farid, "Assessing the Reliability of Clothing-Based Forensic Identification," Proceedings of the National Academy of Sciences 117, 10 (2020) 5176.
198. Quoted in Dwyer et al., Actual Innocence, xviii.
199. William C. Thompson, "The Myth of Infallibility," in Sheldon Krimsky and Jeremy Gruber, eds., Genetic Explanations: Sense and Nonsense (Cambridge MA 2013) 230; Kimberly Cogdell Boies, "Misuse of DNA Evidence Is Not Always a Harmless Error: DNA Evidence, Prosecutorial Misconduct, and Wrongful ConvicÂtion," Wesleyan Law Review 17 (2011); Heather Murphy, "When a DNA Test Says You're a Younger Man, Who Lives 5000 Miles Away,â New York Times, 7 December 2019. Planting false evidence was a problem also with fingerprints. Cole, Suspect Identities, 278.
200. Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge MA 2007) chap. 3.
201. Branding ended in France in 1832 or possibly, by some accounts, not until the 1930s; in Holland in 1854; and in China in 1905. Martin, Crime and Criminal Justice under the Third Republic, 80; Soderman and O'Connell, Modern Criminal InvesÂtigation, 68; Smyth, Cause of Death, 111.
202. Cole, Suspect Identities, 27-29.
203. Smyth, Cause of Death, 112-117; Emsley, Crime, Police, and Penal Policy, 187; Cole, Suspect Identities, chap. 2.
204. Page Hinners et al., "Determining Fingerprint Age with Mass Spectrometry Imaging via Ozonolysis of Triacylglycerols," Analytical Chemistry, 3 January 2020.
205. Finnane, Police and Government, 80-82.
206. Michael Kirkpatrick, assistant director in charge, Criminal Justice InformaÂtion Services Division, FBI, testimony before the US House of Representatives,Judi- ciary Committee, 30 March 2004, https://archives.fbi.gov/archives/news/testimony /fbi-fingerprint-program; Cole, Suspect Identities, 198. The claim that the FBI had 160 million fingerprints by the early 1970s seems fanciful. It is made in Walker, Popular Justice, 187, which takes it from Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism (Lexington 1977) 157-159, which gives no verifiable source. Smyth mentions 140 million in 1956 in Cause of Death, 143.
207. Miller, Cops and Bobbies, 119.
208. Laurent Lopez, "Policiers, gendarmes et signalement descriptif," Crime, histoire et societes 10, 1 (2006) 53-54, 65; Merriman, Police Stories, 120. The ancient Egyptians had developed something similar. Soderman and O'Connell, Modern CrimiÂnal Investigation, 68.
209. Wacquant, Punishing the Poor, 272; Anderson, In Thrall to Political Change, 401.
210. Edwin Chadwick, "Preventive Police," London Review 1 (1829) 252, 304-308.
211. Kelling and Coles, Fixing Broken Windows, 50-51.
212. Registration at hotels, strictly enforced in Europe, is more laxly regulated and often only at the local level in the United States, though the use of a credit card to ensure payment has largely erased the difference. Soderman and O'Connell, Modern Criminal Investigation, 13.
213. Davis, Conflict and Control, 107; John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State, 2nd ed. (Cambridge 2018).
214. Kevin D. Haggerty and Richard V. Ericson, "The Militarization of Policing in the Information Age," Journal of Political and Military Sociology 27 (1999) 240, 242.
215. Emsley, "Mother, What Did Policemen Do," 369-371; Reiss, "Police OrgaÂnization," 84; Finnane, Police and Government, 101.
216. Thompson, "Myth of Infallibility," 248; Gates, Our Biometric Future, passim.
217. Patrick Radden Keefe, "Total Recall," New Yorker, 22 August 2016, 56; Paul Mozur, "Inside China's Dystopian Dreams," New York Times, 8July 2018; https:// www.bbc.com/ news/world-asia-china-43751276?ref=gazelle.popsugar.com.
218. Durkheim, Division of Labour, 234; Gates, Our Biometric Future, 83-85.
219. Zedner, "Fixing the Future,â 54.
220. "Advances in AI Are Used to Spot Signs of Sexuality," Economist, 9 SeptemÂber 2017; "Are Programs Better Than People at Predicting Reoffending?" Economist, 17 January 2018.
221. Alec Wilkinson, "Annals of Crime: The Serial-Killer Detector," New Yorker, 27 November 2017.
222. Jessica Saunders et al., "Predictions Put into Practice: A Quasi-experimental Evaluation of Chicago's Predictive Policing Pilot," Journal of Experimental CriminolÂogy 12 (2016) 350-352; Darwin Bond-Graham and Ali Winston, "All Tomorrow's Crimes," SF Weekly, 30 October 2013; Ali Winston, "Palantir Has Secretly Been Using New Orleans to Test Its Predictive Policing Technology," Verge, 27 February 2018.
223. Miller, Bloodtaking, 183.
224. Ruff, Violence in Early Modern Europe, 221.
225. Chadwick, "Preventive Police," 273.
226. The Odyssey, 21.5-7, 46-50; Matthew 16:19; Angela Cervi, "Keys and Locks," in Encyclopedia of Ancient History.
227. Liang, Rise of Modern Police, 119, 251.
228. Summerson, "Enforcement of the Statute of Winchester," 233.
229. Beattie, Policing and Punishment, 84, 215; Chadwick, "Preventive Police," 274, 285.
230. Quoted in Adler, "Perverse Law of Child Pornography," 271. Texas goverÂnor Rick Perry more recently got into hot water by suggesting that electric lights powered by fossil fuels helped cut sexual assault in Africa. "Rick Perry under Fire for Suggestion Fossil Fuels Can Reduce Sexual Assault," Guardian, 2 November 2017.
231. French penal code, 1810, art. 385; Eloise Moss, Night Raiders: Burglary and the Making of Modern Urban Life in London, 1860-1968 (Oxford 2019) 5.
232. Moore, "Problem-Solving and Community Policing," 122, but see also SherÂman "Attacking Crime," 190.
233. Ericson and Haggerty, Policing the Risk Society, 144-145; Nicolai Ouroussoff, "Uncle Sam, Visionary Builder?" New York Times, 19 September 2004. More generally, see Neal Kumar Kaytal, "Architecture as Crime Control," Yale Law Journal 111 (2002); Samia Henni, Architecture of Counterrevolution: The French Army in Northern Algeria (Zurich 2017).
234. Edwin Chadwick calls for the latter in "Preventive Police," 272.
235. Josh Barro, "Here's Why Stealing Cars Went Out of Fashion," New York Times, 12 August 2014.
236. Clifford D. Shearing and Phillip C. Stenning, "From the Panopticon to Disney World: The Development of Discipline," in Anthony N. Doob and Edward L. Greenspan, eds., Perspectives in Criminal Law: Essays in Honour of John Ll. J. Edwards (Aurora 1997).
237. Bodde and Morris, Law in Imperial China, 24; Dutton, Policing and PunishÂment in China, 24, 73, 123; Lewis, Sanctioned Violence, 61; Dutton, Policing Chinese Politics, 165-168.
238. Jonathan Drimmer, "When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System," Houston Law Review 33 (1996) 744; Duker, "Right to Bail," 37; Wendy Davies, "People and Places in Dispute in Ninth-Century Britanny," in Davies and Fouracre, Settlement of Disputes in Early Medieval Europe, 77.
239. Statute of Winchester, 1285, 13 Edw. I, c. 2; Weisser, Crime and Punishment, 92; Given, Society and Homicide, 9-10.
240. Donald V. Kurtz, "The Legitimation of the Aztec State," in Henri J. M. Claessen and Peter Skalnik, eds., The Early State (The Hague 1978) 184; Kollmann, Crime and Punishment, 71, 124.
241. Decret sur la police interieure des communes de la Republique, 10 Ven- demiaire an IV (2 October 1795), https://www.1789-1815.com/loi_10_vend_an4.htm; Frank Biess, Homecomings: Returning POWs and the Legacies of Defeat in Postwar Germany (Princeton 2006) 35; Hazard and Stern, "âExterior Treason,'" 90.
242. Ingraham, Political Crime in Europe, 304; Dershowitz, "Law of DangerousÂness," 28.
243. Criminal Code of Canada, sect. 810; Jian Ghomeshi, "Reflections from a Hashtag," New York Review of Books, 11 October 2018.
244. Allan Y. Jiao, "Crime Control through Saturated Community Policing," International Journal of Comparative and Applied Criminal Justice 21, 1 (1997) 80.
245. Chamberlin, "Bounty Hunters," 1181; Emily Michael Stout, "Bounty HuntÂers as Evidence Gatherers," University of Cincinnati Law Review 65 (1997) 670.
246. Lorton, "Treatment of Criminals," 40-45; Bartlett, Trial by Fire and Water, 50; Hindle, "Keeping of the Public Peace," 218.
247. Blackstone, Commentaries on the Laws of England, 4:250-253.
248. French penal code, 1810, art. 44; O'Brien, Promise of Punishment, 229.
249. Code des delits et des peines, 25 October 1795, art. 19.
250. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Edinburgh 1814) bk. 3, 213; Durkheim, Division of Labour, 233.
251. Manning, "Information Technologies," 355; Bayley, Police for the Future, 26; Cohen, Visions of Social Control, 67-68.
252. Beattie, Policing and Punishment, 120-121.
253. This is the very limited concept meant when it is said that establishing the London Police in 1829 was the triumph of the preventive idea in policing. Emsley, Policing, 119; Miller, Cops and Bobbies, 2.
254. Quoted in Philips, "New Engine of Power," 188.
255. Ashworth and Zedner, Preventive Justice, 34; Emsley, Policing, 94.
256. Monkkonen, Police in Urban America, 40; Lane, "Urban Police and Crime," 12; Sheryl Gay Stolberg, "Does a Uniform Keep Officers in Line? The Baltimore Chief Thinks So," New York Times, 14 April 2017.
257. Reiner, Politics of the Police, 70; Monkkonen, Police in Urban America, 39; Miller, Cops and Bobbies, 33.
258. Williams, Police of Paris, 221; Emsley, Policing, 58; Fosdick, European Police Systems, 239.
259. Richardson, New York Police, 64-66.
260. Carol S. Steiker, "The Limits of the Preventive State," Journal of Criminal Law and Criminology 88, 3 (1998) 774.
261. Kelling and Coles, Fixing Broken Windows, chap. 3, 5, 162-163; Bayley, PatÂterns of Policing, 108-109.
262. Mawby, Comparative Policing Issues, 115; David H. Bayley, Forces of Order: Policing Modern Japan (Berkeley 1991) chap. 2.
263. Bracey, "Policing the People's Republic,â 132; Dutton, Policing Chinese Politics, 259; "China Wants Eyes and Ears on Every Street," Economist, 28 June 2018.
264. Steiker, "Limits of the Preventive State," 803.
265. This future without personal biological secrets is anticipated in the film Gattica (1997). See also "People Leave Molecular Wakes That May Give Away Their Secrets," Economist, 13 February 2020.
266. Moore, "Problem-Solving and Community Policing," 112.
267. Sherman, "Attacking Crime," 184, 172.
268. Langbein, Prosecuting Crime, 145; Hall, "Criminal Attempt," 793; Ashworth and Zedner, Preventive Justice, 30; Blackstone, Commentaries on the Laws of England, 4: chap. 13; Graeme Newman, The Punishment Response, 2nd ed. (New Brunswick 2008) 98.
269. Williams, Tudor Regime, 278, 398; Braddick, State Formation, 150, 164; Wiener, Reconstructing the Criminal, 150; Philips, "New Engine of Power," 168; French penal code, 1810, art. 269-271; Davis, Conflict and Control, 219.
270. Vagrancy Act 1824, 5 George IV, c. 83; Metropolitan Police Act 1829, 10 George IV, c. 44, s. 7.
271. Gatrell, "Crime, Authority and the Policeman-State," 277-278; Liang, Rise of Modern Police, 251.
272. Dubber, "Policing Possession," 894; Luna, "Principled Enforcement," 328Â329; Poulos, "Chicago's Ban on Gang Loitering," 398.
273. Street Terrorism Enforcement and Prevention Act, 1988, California; Stros- nider, "Anti-gang Ordinances," 109.
274. Illinois v. Wardlow, 528 US 119 (2000); Dubber, "Policing Possession," 882; Ashworth and Zedner, Preventive Justice, 52-54.
275. Harcourt, Against Prediction, 9; Creegan, "National Security Crime," 403; McSherry, "Expanding the Boundaries of Inchoate Crimes," 158; Ashworth and Zedner, Preventive Justice, 100.
276. Harcourt, Against Prediction, 2, 103; Baumgartner et al., Suspect Citizens, 8.
277. Stephen A. Toth, Beyond Papillon: The French Overseas Penal Colonies, 1854Â1952 (Lincoln 2006) 23-24; Harcourt, "Shaping of Chance," 117; Demleitner, "Abusing State Power," 1651.
278. Weiner, Reconstructing the Criminal, 342; O'Brien, Promise of Punishment, 289.
279. Habitual Criminals Act, 1869, 32 & 33 Vict., c.. 99.
280. O'Brien, Promise of Punishment, 265; Davis, Conflict and Control, 223.
281. Walker, Popular Justice, 99; McConville, "Victorian Prison," 156; Ashworth and Zedner, Preventive Justice, 45; Cole, Suspect Identities, 217.
282. Robinson, "Punishing Dangerousness," 1435-1436; Harcourt, Against PredicÂtion, 92. Similar legislation passed in Australia. Roberts et al., Penal Populism, 55-56.
283. Gottfredson and Hirschi, "True Value of Lambda," 217.
284. Robinson v. California, 370 US 660, 667.
285. Benno Weisberg, "When Punishing Innocent Conduct Violates the Eighth Amendment: Applying the 'Robinson' Doctrine to Homelessness and Other ConÂtextual 'Crimes,'" Journal of Criminal Law and Criminology 96, 1 (1973) 332-344. Yet most courts have not held that homelessness is a statusâthat is, an involuntary stateâbut rather that it is a condition and therefore not protected. Kelling and Coles, Fixing Broken Windows, 54-55.
286. Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (New York 2017) chap 3; John Eligon and Timothy Williams, "Police Program Aims to Pinpoint Those Most Likely to Commit Crimes,â New York Times, 24 September 2015.
287. Garen J. Wintemute et al., "Extreme Risk Protection Orders Intended to Prevent Mass Shootings," Annals of Internal Medicine 171, 9 (2019) 655; Hannah S. Szlyk et al., "Firearm Suicide as a Human Rights Priority for Prevention," Washington University Journal of Law and Policy 60 (2019) 143; Kraska and Kappeler, "Militarizing American Police," 7.
288. Ashworth and Zedner, Preventive Justice, 15-16; Dubber, "Policing PossesÂsion," passim.
289. Every other thing involved in the production or sale of illegal drugs is also confiscated. 21 U.S. Code §881(a).
290. Susan R. Klein, "Redrawing the Criminal-Civil Boundary," Buffalo Criminal Law Review 2 (1999) 699, 701; Kim, "Asset Forfeiture," 529; Ross, "Civil Forfeiture," 260-262.
291. Edward P. Richards, "The Jurisprudence of Prevention: The Right of Societal Self-Defense against Dangerous Individuals," Hastings Constitutional Law Quarterly 16 (1989) 330-331, 339.
292. Leviticus 15:1-14.
293. Baldwin, Contagion and the State, chap. 5; Peter Baldwin, Disease and DemocÂracy: The Industrialized World Faces AIDS (Berkeley 2005) 53-58.
294. Wendy E. Parmet, "Legal Power and Legal Rights: Isolation and Quarantine in the Case of Drug-Resistant Tuberculosis," New England Journal of Medicine 357 (2007) 434; Lawrence O. Gostin, "Tuberculosis and the Power of the State," University of ChiÂcago Law School Roundtable 219 (1995) 270; Nigel Walker, "Dangerous People," InternaÂtional Journal of Law and Psychiatry 1 (1978) 39.
295. Marie Nissen, "Her er de otte hovedpunkter i den hastelov, regeringen vil have vedtaget i dag," Politiken, 12 March 2020; Sofie Bak Thorup, "Ny hastelov giver mulighed for at tvangsbehandle: Lsgeforeningen bakker op," Politiken, 12 March 2020.
296. Malcolm M. Feeley, "Actuarial Justice and the Modern State," in Gerben Bru- insma et al., eds., Punishment, Places, and Perpetrators (Uffculme 2004) 62.
297. Janus, Failure to Protect, 97-103; Harcourt, "Shaping of Chance," 106; Vitale, End of Policing, 92-93.
298. John N. Mitchell, "Bail Reform and the Constitutionality of Pretrial DetenÂtion," Virginia Law Review 55, 7 (1969) 1231; George W. Pugh, "Administration of Criminal Justice in France," Louisiana Law Review 23, 1 (1962) 21; Cavadino and Dignan, Penal Systems, 178; Foote, "Coming Constitutional Crisis," 963.
299. Cavadino and Dignan, Penal Systems, 145; Bayley, Forces of Order, 144.
300. Ashworth and Zedner, Preventive Justice, 65-66; Shadd Maruna et al., "Putting a Price on Prisoner Release: The History of Bail and a Possible Future of Parole," PunishÂment and Society 14, 3 (2012) 330; Hans Zeisel, "Bail Revisited," American Bar Foundation Research Journal 4 (1979) 774; Thomas H. Cohen and Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts, Bureau of Justice Statistics, Special Report, NCJ 214994 (November 2007), https://www.bjs.gov/content/pub/pdf/prfdsc.pdf.
301. Dershowitz, "Law of Dangerousness," 30; Barbara Gottlieb, "The Pretrial Processing of âDangerous' Defendants," National Institute of Justice, January 1984, reprinted in Report on Bail Reform Act of 1984, H.R. Rep. No. 98-1121 (1984); Anthea Hucklesby, "Police Bail and the Use of Conditions," Criminal Justice 1, 4 (2001) 442.
302. Floud and Young, Dangerousness, 103-105, 107-109; Demleitner, "AbusÂing State Power," passim; Ashworth and Zedner, Preventive Justice, 16; Andrew von Hirsch, "Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons," Buffalo Law Review 21 (1971-1972) 718. India, too, has preventive detenÂtion: Indian Constitution, art. 22.
303. Ashworth, "Social Control," 264.
304. Richards, "Jurisprudence of Prevention," 352-356; Jeslyn A. Miller, "Sex Offender Civil Commitment: The Treatment Paradox," California Law Review 98, 6 (2010) 2101. Civil commitment of the potentially dangerous without due-process protection was then reined back in the 1990s, however, requiring mental illness for detention. Tamara Rice Lave, "Controlling Sexually Violent Predators: Continued Incarceration at What Cost?," New Criminal Law Review 14, 2 (2011) 255-256.
305. Ashworth and Zedner, Preventive Justice, 3, 75, 79-81; Ashworth and Zedner, "Just Prevention," 299. There are even more of such preventive orders: Nonmolestation Orders, Exclusion from Licensed Premises Orders, Football Spectator Banning Orders, Travel Restriction Orders, Sexual Offences Prevention Orders, Foreign Travel Restriction Orders, Risk of Sexual Harm Orders, Drinking Banning Orders, Serious Crime PrevenÂtion Orders, Violent Offender Orders, Terrorism Prevention and Investigation Measures.
306. Ashworth, "Social Control," 266.
307. Stuart Macdonald, "A Suicidal Woman, Roaming Pigs, and a Noisy Trampo- linist: Refining the ASBO's Definition of âAnti-social Behaviour,'" Modern Law Review 69 (2006) 185-189, 197-198; Elizabeth Burney, "The ASBO and the Shift to PunishÂment," in Peter Squires, ed., ASBO Nation (Bristol 2008) 137; Kenan Malik, "Since When Was It a Police Job to Impose Sanctions on Drill Musicians?" Guardian, 9 FebruÂary 2019.
308. Vrij et al., "Pitfalls and Opportunities," 110.
309. Janus, Failure to Protect, 5-6.
310. Hirsch, "Prediction of Criminal Conduct," 733-738; Saunders et al., "PreÂdiction Put into Practice," 351.
311. Floud and Young, Dangerousness, 40-42.
312. Given, Inquisition, 84.
313. Finnane, Police and Government, 75; Allgemeines Landrecht fur die Preufiischen Staaten, pt. 2, title 20, §5; French penal code, 1810, art. 44-50.
314. Walker, Popular Justice, 95-96. On recent developments in parole, see Howard, Unusually Cruel, chap. 6.
315. Kohler-Hausmann, Misdemeanorland, 80; Ashworth and Zedner, Preventive Justice, 156-157.
316. Deuteronomy 22:23-26.
317. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 67-68.
318. Gottschalk, Caught, 198-200; Yung, "Emerging Criminal War," 449.
319. Gottschalk, Caught, 201; Corey Rayburn Yung, "Sex Offender ExceptionÂalism and Preventive Detention,â Journal of Criminal Law and Criminology 101, 3 (2011) passim; Miller, "Sex Offender Civil Commitment," 2101; Demleitner, "AbusÂing State Power," 1640.
320. Kansas v. Hendricks, 521 US 346 (1997); Harcourt, Against Prediction, 14.
321. Title III, §302, of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, 120 Stat. 587, codified at 18 USC §4248; Yung, "Sex Offender Exceptionalism," 978-979; Klein, "Redrawing the Criminal-Civil Boundary," 685, 702-703.
322. Michaela Poborilova, "Virtual Child Pornography," Masaryk University JourÂnal of Law and Technology 5, 2 (2011) 252.
323. Our Sexual Future with Robots (2017) 27-28, https://responsible-robotics -myxf6pn3xr.netdna-ssl.com/wp-content/uploads/2017/11/FRR-Consultation-Report -Our-Sexual-Future-with-robots-1-1.pdf. The literature on automaton sex is growing: see, for example, Kate Devlin, Turned On: Science, Sex, and Robots (London 2018); David Levy, Love and Sex with Robots: The Evolution of Human-Robot Relationships (New York 2008); John Danaher and Neil McArthur, eds., Robot Sex: Social and Ethical Implications (Cambridge MA 2018); Kathleen Richardson, Sex Robots: The End of Love (Cambridge 2019).
324. Gabrielle Russell, "Pedophiles in Wonderland: Censoring the Sinful in Cyberspace," Journal of Criminal Law and Criminology 98, 4 (2008) 1468-1469, 1488.
325. PROTECT Act of 2003, Pub. L. 108-21 (30 April 2003), 117 Stat. 678, §501 Findings, 9-15; Mains, "Virtual Child Pornography," 811-812; Paula Bird, "Virtual Child Pornography Laws and the Constraints Imposed by the First Amendment," Barry Law Review 16 (2011) 165-166; Sofya Peysakhovich, "Virtual Child PornograÂphy: Why American and British Laws Are at Odds with Each Other," Albany Law JourÂnal of Science and Technology 14 (2004) 815.
326. Adler, "Perverse Law of Child Pornography," 216.
327. On whether possessing child pornography is preventive of or precipitating toward greater harm, the literature is ambivalent. See Drew A. Kingston et al., "The Importance of Individual Differences in Pornography Use," Journal of Sex Research 46 (2009).
328. Peysakhovich, "Virtual Child Pornography," 805-806, 819; Mains, "Virtual Child Pornography," 814.
329. Adler, "Perverse Law of Child Pornography," 254-256, 259-260, 262-263.
330. Criminal Justice and Public Order Act 1994, c. 33, sect. 84; Richard Stone, "Extending the Labyrinth: Part VII of the Criminal Justice and Public Order Act 1994," Modern Law Review 58, 3 (1995) 391-392.
331. Peysakhovich, "Virtual Child Pornography," 821. Dutch law prosecutes virtual child porn. Poborilova, "Virtual Child Pornography," 251. Even in Japan, where laws on child pornography are lax, Tokyo sought to pass a municipal law that covers "nonexistent minors" as well. Economist, 20 March 2010.
332. Child Pornography Prevention Act, 1996; Mains, "Virtual Child PornograÂphy," 821.
333. PROTECT Act, 2003, 18 USC §1466A.
334. 18 USC §1466A(c).
335. 18 USC §2256(8)(B).
336. 18 USC §2256(11).
337. 18 USC §2252(c)(1)(2).
338. US v. Kutzner, Case No. CR-10-0252-S-EJL, Sentencing Memorandum, 2010; Sean Michael Robinson, "Criminal Contexts: The Simpsons 'Child' Pornography Case and Its Implications,â Comics Journal, 28 January 2011, http://classic.tcj.com/news /sean-michael-robinson-criminal-contexts-the-simpsons-child-pornography-case-and -its-implications/; Keisha April, "Cartoons Aren't Real People Too: Does the RegulaÂtion of Virtual Child Pornography Violate the First Amendment and Criminalize SubÂversive Thought?," Cardozo Journal of Law and Gender 19 (2012) 259-262.
339. United States v. Whorley, 550 F.3d 326, 331 (4th Cir. 2008), discussed in April, "Cartoons Aren't Real People," 253-256.
Conclusion
1. These are the themes masterfully identified and analyzed by Garland, Wac- quant, and Gottschalk, among others.
2. Patrick Sharkey, Uneasy Peace: The Great Crime Decline, the Renewal of City Life, and the Next War on Crime (New York 2018); John J. Donohue, "Understanding the Time Path of Crime," Journal of Criminal Law and Criminology 88, 4 (1998) 1427; Brian Levin and Sara-Ellen Amster, "Making Hate History: Hate Crime and Policing in America's Most Diverse City," American Behavioral Scientist 51, 2 (2007) 320.
3. Dubber, "Theories of Crime," 699-700; Michael Tonry, "Why Aren't German Penal Policies Harsher and Imprisonment Rates Higher?" German Law Journal 5, 10 (2004) 1187-1188. Dubber, however, also sees neoretributionism as common to all liberal democracies. Dual Penal State, 3-4.
4. Cavadino and Dignan, Penal Systems, 33-34; Joachim T. Savelsberg, "KnowlÂedge, Domination, and Criminal Punishment," American Journal of Sociology 99, 4 (1994) 916. Total years of imprisonment sentenced increased fourfold for some crimes in Sweden in the late twentieth century, however. Von Hofer and Tham, "PunishÂment in Sweden," 35-36.
5. This is a leitmotif of Didier Fassin, Prison Worlds: An Ethnography of the Car- ceral Condition (Cambridge 2017) 21 and passim.
6. Miethe and Lu, Punishment, 204.
7. Simon, Poor Discipline, 57; William Alfred Morris, The Frankpledge System (London 1910) 2.
8. Egon Bittner, The Functions of the Police in Modern Society (Chevy Chase 1970) 15.
9. Friedrich Nietzsche, On the Genealogy of Morality, ed. Keith Ansell-Pearson, trans. Carol Diethe (Cambridge 2006) 47.
10. Langbein, Torture, 45-49.
11. Carlo Cattaneo (1840), quoted in Davis, Conflict and Control, 153; Charles Dickens, quoted in Ignatieff, Just Measure of Pain, 197.
12. Herbert Marcuse, "Repressive Tolerance," in Robert Paul Wolff et al., A CriÂtique of Pure Tolerance (Boston 1965) 84-85.
13. Pace Dennis Smith, "The Civilizing Process and The History of Sexuality: Comparing Norbert Elias and Michel Foucault,â Theory and Society 28 (1999) 79-80. And see also Spierenburg, Violence and Punishment, 86-90.
14. Michel Foucault, "Technologies of the Self," in Technologies of the Self: A Seminar with Michel Foucault, ed. Luther H. Martin et al. (Amherst 1988) 19, 27.
15. Michel Foucault, "The Concern for Truth," in Foucault Live (Interviews, 1966Â84), ed. Sylvere Lotringer (New York 1989) 296.
16. Bob Jessop, The State (Cambridge 2016) 166-167.
17. Peter L. Bernstein, Against the Gods: The Remarkable Story of Risk (New York 1996).
18. Abram de Swaan, In Care of the State (New York 1988) 164; Franςois Ewald, "Insurance and Risk," in Graham Burchell et al., eds., The Foucault Effect (Chicago 1991) 207.
19. James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven 1998); David L. Hoffmann, Cultivating the Masses: Modern State Practices and Soviet Socialism, 1914-1939 (Ithaca 2011); David L. HoffÂmann, Stalinist Values: The Cultural Norms of Soviet Modernity, 1917-1941 (Ithaca 2003); Rainer Zitelmann, Hitler: The Policies of Seduction (London 2000).
20. Nikolas Rose, "Governing âAdvanced' Liberal Democracies," in Andrew Barry et al., eds., Foucault and Political Reason: Liberalism, Neo-Iiberalism, and Rationalities of Government (Chicago 1996) 58.
21. This is the theme of Nathan Stoltzfus, Hitler's Compromises: Coercion and ConÂsensus in Nazi Germany (New Haven 2016).
22. Christian Gerlach and Nicolas Werth, "State ViolenceâViolent Societies," in Geyer and Fitzpatrick, Beyond Totalitarianism, 139-151.
23. Dubber, Dual Penal State, 108-109.
24. Thomas Lemke, "An Indigestible Meal? Foucault, Governmentality, and State Theory," Distinktion 15 (2007).
25. This is a theme of Joseph Henrich, The Secret of Our Success: How Culture Is DrivÂing Human Evolution, Domesticating Our Species, and Making Us Smarter (Princeton 2017).
26. Elman R. Service, Origins of the State and Civilization (New York 1975) chap. 3.
27. Maine, Ancient Law, 75-78; Henry Sumner Maine, Lectures on the Early History of Institutions, 7th ed. (London 1914) 70.
28. Lowie, Origin of the State, 5; Henrich, Secret of Our Success, 155-156.
29. Norman Yoffee, Myths of the Archaic State (Cambridge 2005) 23-27; Timothy Earle, How Chiefs Come to Power: The Political Economy in Prehistory (Stanford 1997) 14; Robert L. Carneiro, "The Chiefdom: Precursor of the State," in Jones and Kautz, Transition to Statehood in the New World, 37-38.
30. Kirk Endicott, "Peaceful Foragers: The Significance of the Batek and Moriori for the Question of Innate Human Violence," in Douglas P. Fry, ed., War, Peace, and Human Nature (Oxford 2013) 246-247; Peter M. Gardner, "South Indian Foragers' Conflict Management in Comparative Perspective," in Fry, War, Peace, and Human Nature, 301-303.
31. Jean Briggs, Never in Anger: Portrait of an Eskimo Family (Cambridge MA 1970) 256-261; Morten H. Fried, The Evolution of Political Society (New York 1967) 12-13; Christopher Boehm, "The Biocultural Evolution of Conflict Resolution between Groups," in Fry, War, Peace, and Human Nature, 321; Boehm, Moral Origins, 85-86.
32. Patricia Crone, Pre-industrial Societies: Anatomy of the Pre-modern World (Oxford 2003) 51.
33. William Seagle, "Primitive Law and Professor Malinowski,â American AnthroÂpologist 39 (1937) 282-285.
34. Bronislaw Malinowski, Custom and Crime in Savage Society (London 1926) 14, 30-31, 54.
35. Steven J. Garfinkle, "Was the Ur III State Bureaucratic?," in Steven J. Garfinkle and J. Cale Johnson, eds., The Growth of an Early State in Mesopotamia: Studies in Ur III Administration (Madrid 2008) 56-58. But even this is challenged for the Assyrian state. See Nicholas Postgate, Bronze Age Bureaucracy: Writing and the Practice of Government in Assyria (Cambridge 2013) 2, 331-332.
36. Li Feng, Bureaucracy and the State in Early China: Governing the Western Zhou (Cambridge 2008) chap. 5; Li, Early China, 147-149.
37. Karl A. Wittfogel, Oriental Despotism (New Haven 1957); James C. Scott, Against the Grain: A Deep History of the Earliest States (New Haven 2017).
38. The willingness of civil society to play along with what the regime wanted has been a theme of recent histories of both Nazi Germany and the Soviet Union, as has been its opposing pendant, the mounting of resistance. For similar themes in China, see Borge Bakken, The Exemplary Society: Human Improvement, Social Control, and the Dangers of Modernity in China (Oxford 2000) 2.
39. Roland H. Bainton, "The Left Wing of the Reformation," Journal of Religion 21, 2 (1941) 133. On Kiryas Joel, see David Myers and Nomi Stolzenberg, American Shtetl (Princeton forthcoming).
40. Rudyard Kipling's story "Thrown Away" in Plain Tales from the Hills has an example.
41. William A. Robson, Civilization and the Growth of Law (London 1935) 75.
42. Malinowski, Custom and Crime, 117.
43. Richard Wrangham, The Goodness Paradox: The Strange Relationship between Virtue and Violence in Human Evolution (New York 2019) 20 and passim; Henrich, Secret of Our Success, chap. 11.
44. Johan Grolle, "Those Who Obeyed the Rules Were Favored by Evolution," Spiegel, 22 March 2019.
45. John M. Hobson, The Wealth of States: A Comparative Sociology of International Economic and Political Change (Cambridge 1997) 10-15; Margaret Levi, Of Rule and Revenue (Berkeley 1988) 124; Kotsonis, "Taxes and the Two Faces of the State," 233; Bittner, Functions of the Police, 18.
46. Elias's belief that the process took place only in early modern Europe has been one of the most serious criticisms leveled against him, though still sparing his basic insight: see Hans Peter Duerr, Der Mythos vom Zivilisationsprozef, 5 vols. (Frankfurt 1988-2002); Jon Ploug Jorgensen, "Taming of the Aristoi: An Ancient Greek Civilizing Process?" History of the Human Sciences 27, 3 (2014).
47. Bernal Diaz, The Conquest of New Spain, trans. J. M. Cohen (London 1963) 233. However, during ritual dances the Aztecs simply parted the feathers of their loincloths to urinate in place. Miguel Leon-Portilla, ed., The Broken Spears: The Aztec Account of the Conquest of Mexico, exp. ed. (Boston 1992) 73.
48. Peter N. Stearns, Battleground of Desire: The Struggle for Self-Control in Modern America (New York 1999) 14; Anderson, In Thrall to Political Change, 152.
49. Marc Linder and Ingrid Nygaard, Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time (Ithaca 1998).
50. Kerstin Decker, "Das Topfchen und der Hass,â Tagesspiegel, 5 May 1999; KerÂstin Decker, "Das Topfchen und das Fremde," in Lothar Probst, ed., Differenz in der Einheit (Berlin 1999).
51. Katie Engelhart, "The Powerful History of Potty Training," Atlantic, 20 June 2014.
52. M. V. Hughes, A London Family, 1870-1900 (Oxford 1991) 438-439.
53. Allan Mitchell, The Divided Path: The German Influence on Social Reform in France after 1870 (Chapel Hill 1991) 270-271; Allan Mitchell, "Obsessive Questions and Faint Answers: The French Response to Tuberculosis in the Belle Epoque," Bulletin of the History of Medicine 62, 2 (1988) 223-225; Samuel K. Cohn Jr., Epidemics: Hate and Compassion from the Plague of Athens to AIDS (Oxford 2018) 435.
54. Peter Ward, The Clean Body (Montreal 2019); Jean-Pierre Goubert, The ConÂquest of Water: The Advent of Health in the Industrial Age (Cambridge 1989) chaps. 2-4 and 9; Georges Vigarello, Concepts of Cleanliness: Changing Attitudes in France since the Middle Ages (Cambridge 1988) 173-174, 224.
55. Spierenburg, Violence and Punishment, 134-135; Corinne Treitel, Eating Nature in Modern Germany: Food, Agriculture, and Environment c. 1870 to 2000 (Cambridge 2017) 75; Marketline Industry Profile, Global Oral Hygiene (February 2019) 7.
56. Anne Glenconner, Lady in Waiting: My Extraordinary Life in the Shadow of the Crown (London 2019) 162.
57. Kinya Tsuruta, "Japanese Perceptions of Westerners in Modern Fiction," in Keizo Nagatani and David W. Edgington, eds., Japan and the West: The Perception Gap (Aldershot 1998) 51-52; George A. DeVos and Hiroshi Wagatsuma, "Cultural Identity and Minority Status in Japan," in Lola Romanucci-Ross et al., eds., Ethnic Identity, 4th ed. (Lanham 2006) 123. More generally, see B. R. Myers, The Cleanest Race: How North Koreans See Themselves and Why It Matters (Brooklyn 2010).
58. Bruno Bettelheim, Children of the Dream: Communal Child-R earing and Its Implications for Society (London 1971) 36-37, 141-143.
59. Sandra Kahn and Paul R. Ehrlich, Jaws: The Story of a Hidden Epidemic (StanÂford 2018). And this from the savant who alerted us to the perils of overpopulation!
60. Reginald G. Smart, "Is the Post-war Drinking Binge Ending? Cross-National Trends in per Capita Alcohol Consumption," British Journal of Addiction (1989) 746; Jussi Simpura and Thomas Karlsson, "Trends in Drinking Patterns among Adult Population in 15 European Countries, 1950 to 2000," Nordisk Akohol- & Narkotika- tidskrift 18 (2001) 33, 37.
61. OECD, International Transport Forum, Road Safety Annual Report 2018, 54.
62. James Miller, The Passion of Michel Foucault (New York 1993) 259-262.
63. John Rechy, The Sexual Outlaw (New York 1977) 31.
64. Baldwin, Disease and Democracy, chap. 8; Peter Baldwin, "Can There Be a Democratic Public Health? Fighting AIDS in the Industrialized World," in Susan Gross Solomon et al. eds., Shifting Boundaries of Public Health (Rochester 2008) 39-40.
65. Roland Piana, "Dying without Morphine," New York Times, 30 September 2014. In Senegal, the average patient who needs morphine gets 13 milligrams of it a year, compared with 55,704 milligrams in America. "Of Puritans and Pain," EconoÂmist, 31 January 2019.
66. Surveying the literature to disagree, see R. Brian Ferguson, "Pinker's List: ExagÂgerating Prehistoric War Mortality,â in Fry, War, Peace, and Human Nature, 113-114.
67. Curtis W. Marean, "An Evolutionary Anthropological Perspective on Modern Human Origins," Annual Review of Anthropology 44 (2015) 538-539; Azar Gat, "Social Organization, Group Conflict, and the Demise of the Neanderthals," Mankind Quarterly 39, 4 (1999) 443.
68. Jonathan Haas and Matthew Piscitelli, "The Prehistory of Warfare," in Fry, War, Peace, and Human Nature, 176-178.
69. Robert L. Kelly, "From the Peaceful to the Warlike: Ethnographic and Archaeological Insights into Hunter-Gatherer Warfare and Homicide," in Fry, War, Peace, and Human Nature, 156; Mark N. Cohen, "The Ecological Basis of New World State Formation," in Jones and Kautz, Transition to Statehood in the New World, 111.
70. Ferguson, "Pinker's List," 121-122; R. Brian Ferguson, "The Prehistory of War and Peace in Europe and the Near East," in Fry, War, Peace, and Human Nature, 201-202.
71. Scott, Against the Grain, 46, 117.
72. Robert L. Carneiro, "Political Expansion as an Expression of the Principle of Competitive Exclusion," in Ronald Cohen and Elman R. Service, eds., Origins of the State (Philadelphia 1978) 205-210.
73. Pinker, Better Angels of Our Nature, 47-56.
74. John G. Rule, "Wrecking and Coastal Plunder," in Hay et al., eds., Albion's Fatal Tree, 174-175; Sharpe, Fiery and Furious People, 14, 34; Allan Silver, "The Demand for Order in Civil Society," in David J. Bordua, ed., The Police (New York 1967) 17-19.
75. Gordon, Controlling the State, 198; Tabatha Abu El-Haj, "All Assemble: Order and Disorder in Law, Politics, and Culture," University of Pennsylvania Journal of ConÂstitutional Law 16 (2014) 952, 961.
76. Miller, Cops and Bobbies, 109.
77. Robert W. Malcolmson, Popular Recreations in English Society 1700-1850 (CamÂbridge 1973) 95-96; Robert D. Storch, "The Problem of Working-Class Leisure: Some Roots of Middle-Class Moral Reform in the Industrial North, 1823-50," in A. P. Dona- jgrodzki, ed., Social Control in Nineteenth Century Britain (London 1977) 146-149.
78. Schneider, "Imprisonment in Pre-classical and Classical Islamic Law," 164; Philip S. Gorski, The Disciplinary Revolution: Calvinism and the Rise of the State in Early Modern Europe (Chicago 2003) 79-113; Michel Foucault, "Governmentality," in Burchell et al., Foucault Effect, 91-92; Gerhard Oestreich, Neo-Stoicism and the Early Modern State (Cambridge 1982) 155-165.
79. Gregory Clark, The Son Also Rises: Surnames and the History of Social Mobility (Princeton 2015).
80. Giovanna Procacci, "Social Economy and the Government of Poverty," in Burchell et al., Foucault Effect, 160-162.
81. Alison Wolf, The XX Factor: How the Rise of Working Women Has Created a Far Less Equal World (New York 2013).
82. Nikolas Rose, Powers of Freedom (Cambridge 1999) 61-78.
83. Morris Janowitz, "Sociological Theory and Social Control," American Journal of Sociology 81, 1 (1975) 83-85; David J. Rothman, "Social Control: The Uses and Abuses of the Concept in the History of Incarceration," in Cohen and Scull, Social Control and the State, 107-108.
84. Roscoe Pound, Social Control through Law (New Haven 1942) 18.
85. Marcuse, "Repressive Tolerance,â 90, 110.
86. John A. Mayer, "Notes towards a Working Definition of Social Control in Historical Analysis," in Cohen and Scull, Social Control and the State, 19.
87. Margaret E. DeLacy, "Grinding Men Good? Lancashire's Prisons at MidÂcentury," in Victor Bailey, ed., Policing and Punishment in Nineteenth Century Britain (London 1981) 184-189.
88. David E. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston 1971); Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (New York 1961).
89. Bernard E. Harcourt, "Should We Aggregate Mental Hospitalization and Prison Population Rates in Empirical Research on the Relationship between Incarceration and Crime, Unemployment, Poverty, and Other Social Indicators?" Chicago Unbound (2006). Similar figures for France are given in Fassin, Prison Worlds, 289-290.
90. Michel Foucault, Power/Knowledge (New York 1980) 156.
91. Donald Black, The Behavior of Law (New York 1976) 107.
92. Braithwaite, Crime, Shame, and Reintegration, 86, 171.
93. Michael Shalev, "Israel's Domestic Policy Regime," in Francis G. Castles, ed., The Comparative History of Public Policy (Cambridge 2002) 100-116, 139-140; Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (New York 1994) 3-31, 61-87; Will Kymlicka, "The Multicultural Welfare State?" in Peter A. Hall and Michele Lamont, eds., Successful Societies (Cambridge 2009) 226-253; Robert Putnam, "E Pluribus Unum: Diversity and Community in the 21C," Scandinavian Political Studies 30, 2 (2007) 137-166.
94. This is the logic of the argument in Baldwin, "Return of the Coercive State," and David Garland, "Penal Controls and Social Controls: Toward a Theory of AmeriÂcan Penal Exceptionalism," Punishment and Society 21, 1 (2019). However, Garland's supposition that welfare policies bolster the traditional institutions of socialization, such as the family, is debatable, and precisely the opposite is often claimed for themâ with daycare undermining family control, old age homes hollowing out family soliÂdarity, and the like.
95. Peter Baldwin, "State and Citizenship in the Age of Globalisation," in Peter Koslowski and Andreas Follesdal, eds., Restructuring the Welfare State (Berlin 1997) 113-117; Peter Baldwin, "Riding the Subways of Gemeinschaft," Acta Sociologica 41, 4 (1998) 378-379.
96. Italy now has measles vaccination rates lower than Ghana. "The Campaign against Vaccination," Economist 19 January 2019; "How to Inoculate against Anti- vaxxers," New York Times, 19 January 2019.
97. Garland, Culture of Control, passim; Thomas Mathiesen, "The Future of ConÂtrol Systems: The Case of Norway," in David Garland and Peter Young, eds., The Power to Punish (London 1983) 137.
98. Stuntz, "Pathological Politics," 519-520.
99. Most of the literature on overcriminalization cited elsewhere here takes a modÂerately Leftist approach, but see also ACLU Pennsylvania, More Law, Less Justice (October 2019), https://www.aclupa.org/sites/default/files/field_documents/more_law_less_jus- tice_10.16.2019_read_this_version.pdf. From the Right, see Paul J. Larkin Jr., The Extent of America's Overcriminalization Problem, Heritage Foundation (9 May 2014), https:// www.heritage.org/report/the-extent-americas-overcriminalization-problem; Copland and Mangual, Overcriminalizing America; Paul Rosenzweig and Brian W. Walsh, One Nation under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty (Washington DC 2010); Paul Craig Roberts and Lawrence M. Stratton, The TyrÂanny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the ConstituÂtion in the Name of Justice (New York 2008).
100. Gary Fields and John R. Emshwiller, "Federal Offenses: As Criminal Laws Proliferate, More Ensnared,â Wall Street Journal, 23 July 2011.
101. Fields and Emshwiller, "Federal Offenses"; Dubber, "Criminalizing ComÂplicity,â 997.
102. William Seagle, There Ought to Be a Law: A Collection of Lunatic Legislation (New York 1933) 7.
103. James Bryce, "Laissez Faire,â in his The American Commonwealth (London 1888).
104. S. J. Barrows, "New Crimes and Penalties,â Forum (January 1900) 539.
105. Katharine K. Baker, "Sex, Rape, and Shame,â Boston University Law Review 79 (1999) 687.
106. Sexual Offences Act 2003; Reiner, Politics of the Police, 143; Jeannie Suk, "Criminal Law Comes Home,â Yale Law Journal 116 (2006) 8, 58-59; Simon, Governing through Crime, chap. 6.
107. Garland, Culture of Control, 132; John Conyers Jr., "The Incarceration Explosion,â Yale Law and Policy Review 31 (2013) 379.
108. Mary Fulbrook, The People's State: East German Society from Hitler to HonÂecker (New Haven 2005) 70-71; Amy Qin, "Chinese City Uses Facial Recognition Technology to Shame Pajama Wearers,â New York Times, 21 January 2020; James E. Starrs, "The Regulatory Offense in Historical Perspective,â in Gerhard O. W. Mueller, ed., Essays in Criminal Science (South Hackensack 1961) 254; Strosnider, "Anti-gang Ordinances,â 110, 133; Danielle Demetriou, "Japanese School Pupils Told: Dye Your Hair Black to Fit in,â Telegraph, 22 May 2019; Benhabib, Rights of Others, 183-185.
109. Bouke de Vries, "The Right to Be Publicly Naked: A Defence of Nudism,â Res Publica 25 (2019) 408-409.
110. Ken Jennings, Planet Funny: How Comedy Took Over Our Culture (New York 2018) 252.
111. Samuel Brenner, "âNegro Blood in His Veins': The Development and DisÂappearance of the Doctrine of Defamation per se by Racial Misidentification in the American South,â Santa Clara Law Review 50 (2010) 338-341.
112. Jonathan Petropoulos, Artists under Hitler (New Haven 2014) 160; Dietz Bering, The Stigma of Names: Antisemitism in German Daily Life, 1812-1933 (Ann Arbor 1992) 249; Roger Karoutchi and Olivier Babeu, Jean Zay (Paris 2006) 85-86.
113. Baker, "Revisiting the Explosive Growth of Federal Crimes,â 1; Copland and Mangual, Overcriminalizing America, 7.
114. James A. Strazella, The Federalization of Criminal Law, American Bar AssoÂciation, Task Force on Federalization of Criminal Law (Chicago 1998) 7. This growth of federal criminal provisions was due in part to the federal government's encroachment on what had been largely a local state matter. See Susan A. Ehrlich, "The Increasing Federalization of Crime,â Arizona State Law Journal 32 (2000).
115. Lucia Zedner, "Is the Criminal Law Only for Citizens? A Problem at the Borders of Punishment," in Katia Franko Aas and Mary Bosworth, eds., The Borders of Punishment: Migration, Citizenship, and Social Exclusion (Oxford 2013) 41; Dutton, "Toward a Government of Contract," 191.
116. Smith, "Overcoming Overcriminalization," 544.
117. Creveld, Rise and Decline of the State, 166.
118. 2016: 1.3 million active military personnel, 933,000 law enforcement employees, 650,000 officers, 810,000 private-security employees. Office of the Under Secretary of Defense, Personnel and Readiness, Population Representation in the MiliÂtary Services: Fiscal Year 2016 Summary Report, 2, https://www.cna.org/pop-rep/2016 /summary/summary.pdf; Federal Bureau of Investigation, 2016 Crime in the United States, table 25, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables /table-25; Statista, Security Services in the U.S. (2018) 26.
119. UK Ministry of Defence, UK Armed Forces Quarterly Service Personnel Statistics, 1 July 2018 (23 August 2018) 1, https://assets.publishing.service.gov.uk/government /uploads/system/uploads/attachment_data/file/735105/20180701-_SPS.pdf; House of Commons Library, "Police Service Strength," 19 April 2018, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN00634; CoESS, "Facts and Figures, Private Security in Europe 2015," 1 July 2017, http://www.coess.org/newsroom.php?page=facts -and-figures.
120. Quoted in Baumgartner et al., Suspect Citizens, 8.
121. The class disparities of justice are the subject of countless justifiably angry exposes, of which Tony Platt's Beyond These Walls: Rethinking Crime and Punishment in the United States (New York 2018) serves as a good example.
122. Arthur Cleveland Hall, Crime in Its Relations to Social Progress (New York 1902) 274-276, 326-329.
123. Some comparative figures for the last two decades of the twentieth century are given in US Bureau of Justice Statistics, Cross- National Studies in Crime and Justice, NCJ 200988 (September 2004) ix, xi.
124. 2.7 percent of adults had ever served time in state or federal prisons in 2001 compared to 1.3 percent in 1974. This average varied widely, of course, by sex and ethnicity, from 0.3 percent of white women to almost 17 percent of Black men in 2001. Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974Â2001, Bureau of Justice Statistics Special Report, NCJ 197976 (August 2003).
125. Georgina Sturge, UK Prison Population Statistics, House of Commons Library, Briefing Paper CBP-04334, 23 July 2019, 5, https://researchbriefings.parliament.uk /ResearchBriefing/Summary/SN04334.
126. Alex Kozinski and Misha Tseytlin, "You're (Probably) a Federal Criminal," in Timothy Lynch, ed., In the Name of Justice (Washington DC 2009) 44; Luna, "Overcriminalization Phenomenon," 726.
127. Amy Lerman and Vesla Weaver, Arresting Citizenship: The Democratic ConseÂquences of American Crime Control (Chicago 2014) 30-36; Kohler-Hausmann, MisdeÂmeanorland, passim.
128. Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice Statistics, Special Report, NCJ 244205 (April 2014).
129. Thomas P. Bonczar and Allen J. Beck, Lifetime Likelihood of Going to State or Federal Prison, Bureau of Justice Statistics, Special Report, NCJ 160092 (March 1997).
130. Kohler-Hausmann, Misdemeanorland, 77-78; Daniel Ohana, "Gunther Jakob's Feindstrafrecht," in Markus D. Dubber, ed., Foundational Texts in Modern Criminal Law (Oxford 2014) 355; Zedner, "Is the Criminal Law Only for Citizens?" 42; Vormbaum, Modern History of German Criminal Law, 253.
131. Michael Tonry, "Ethnicity, Crime, and Immigration," in Michael Tonry, ed., Ethnicity, Crime, and Immigration (Chicago 1997) 6. In a misguided spirit of equality, the French do not collect data on ethnic minorities, thus blinding themÂselves statistically to the problem. According to informal tallies, the overrepresenÂtation of minorities in prison is even worse in France than in the United States (Fassin, Prison Worlds, 61-63).
132. Lacey, Prisoners' Dilemma, 144-146; OECD, Society at a Glance 2006, chart C02.2, 105.
133. Tonry, "Ethnicity, Crime, and Immigration," 12; Loic Wacquant, "âSuitable Enemies': Foreigners and Immigrants in the Prisons of Europe," Punishment and SociÂety 1, 2 (1999) 216-217.
134. Brian Bell and Stephen Machin, "Immigration and Crime: Evidence for the UK and Other Countries," Migration Observatory, 13 November 2013, 6, http://www.migrationobservatory.ox.ac.uk/wp-content/uploads/2016/04/Briefing-Immigration_ and_Crime.pdf.
135. Barker, Nordic Nationalism, 91-92.
136. Muhlhahn, Criminal Justice in China, 21.
137. Paul Weithman, "Augustine's Political Philosophy," in Norman Kretzmann and Elenore Stump, eds., Cambridge Companion to Augustine (Cambridge 2001) 238.
138. Frank E. Manuel and Fritzie P. Manuel, Utopian Thought in the Western World (Cambridge MA 1979) 56-58, 419, 423, 544, 546, 735-736; Krishan Kumar, Utopianism (Milton Keynes 1990) 56-57.
139. P. J. Proudhon, Idee generale de la revolution au dix-neuvieme siecle, 2nd ed. (Paris 1851) 339; Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Cambridge MA 2011) chap. 1.
140. Robert Sharlet, "Stalinism and Soviet Legal Culture," in Robert C. Tucker, ed., Stalinism (New Brunswick 1999) 168-178; Kamenka and Tay, "Beyond the French Revolution," 125.
141. Alan Hunt, "Foucault's Expulsion of Law," Law and Social Inquiry 17, 1 (1992). Though others argue that this is due largely to Foucault's only late interest in other forms that law has taken in the era of governmentality. Pat O'Malley and Mariana Valverde, "Foucault, Criminal Law, and the Governmentalization of the State," in Dubber, Foundational Texts, 323.
142. Durkheim, Division of Labour, 59-64, 79-80, 83.
143. Axel Hannerz, Cultural Complexity: Studies in the Social Organization of MeanÂing (New York 1993).
144. Robinson and Darley, "Utility of Desert,â 474.
145. Steven Lukes and Devyani Prabhat, "Durkheim on Law and Morality: The Disintegration Thesis," Journal of Classical Sociology 12, 3-4 (2012) 370-371, 378-380.
146. Durkheim, "Two Laws of Penal Evolution," 98.
147. I share some of the view of the state's omnicompetence, although when it is argued in a purely theoretical way, with little historical backing, it suffers from unfalÂsifiability. See Peter J. Steinberger, The Idea of the State (Cambridge 2004) 176-187.
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