Who has prosecuted crime and what they were pursuing have changed dramatically over the course of human history.

Gods and kin groups were the first enforcers; religious edict and customary precepts preceded statute and law. But the state eventually took up crime and its suppression as important tasks.

Crime and authority are joined at the hip. Without official stric­ture, no crime. As dirt is matter out of place, weeds unwanted plants, and deviance behavior we disapprove of, so crime is action at odds with the law. Yet it took most of human development for this to become true. Of course, law is more than statute. Long before legal codes, custom and religious precept wove fabrics of regulation. Law, as Durkheim pointed out, was formulated only when custom began to lose its hold.¹ Custom had no badges, truncheons, or penitentia­ries, but it unleashed collective violence against those who snubbed its strictures. Norms were enforced communally long before laws formalized such obligations.²

At first, the supernatural policed this world, whether as mere sor­cery or the divine itself. Gods punished offenses before kings did. Four thousand years ago, Egypt's Middle Kingdom brought forth a concept of hell peopled by sinners. Individuals faced judgment, and punishment became a matter for both this and the next life.³ Jus­tice in this world is rare. No wonder humanity's longing for a fair shake demanded immortality of the soul and an afterlife. If death were but extinction, or if postmortem life were a morally neutral twi­light zone, then evil would rarely be punished, or virtue rewarded.⁴ As Socrates says in Plato's Phaedo, if death were a separation from everything, it would be a godsend for the wicked.⁵ But postmortem punishment could be only retributive, at its worst an eternal suffer­ing for a momentary lapse in the mortal world.

The ancient Chinese did not see law as connected to the divine, though this view may have been as due to polytheism's inherent morcellization of divine power as to any lack of feeling for the super- natural.⁷ Conversely, Egyptian pharaohs were powerful enough to feel no need for a source of law beyond themselves. Yet most other major ancient civilizations did connect law and the super­natural: Mesopotamians, Jews, Indians, Greeks, Romans, Muslims, Incas, Aztecs, and, of course, Christians.⁸ Their earliest injunctions were religious, or at least supernatural, enforced by higher pow­ers. Taboos were rules imposed by transcendent forces, sins their violation.⁹ When there were identifiable gods, sometimes they did the enforcing. In Greece and Rome, those struck by lightning were denied regular burials because they were assumed to have been punished directly by Zeus as perjurers. Since he handled matters, there was no need for human law on the subject.¹⁰

Yet it remained unclear why Greek gods bothered to punish mor­tals. They did enforce order and balance, especially curbing our excesses of vengeance. But they acted for the same reason as their human subjects: anger at being wronged, not enforcement of code or principle. Why any specific offenders were punished, for what, and even that they had been brought to heel—all that was unclear. In early societies, everything happened for a reason—spirits or gods offended, witchcraft invoked, magic gone wrong—nothing by chance.¹¹ Offenders whom something ill befell therefore pre­sumed they were being chastised.¹² Gods' favorite tool for punish­ing humans was the weather, which could often be hard to divine.¹³ Sin and crime were largely fused since both violated divine will.

Yahweh was a lawgiver and enforcer, laying waste to followers who disobeyed him, threatening them with misery sevenfold their transgressions.¹⁴ Violating his covenant with his tribe was sin. Hebrew law was divine because it was God's word. When Cain slew Abel, God, in the absence of any other humans than their parents, was judge, jury, and prosecutor, and the ground where blood had spilled was the only witness.¹⁵ Among the ancient Greeks, law was ultimately given by the gods, with codes submitted to the oracle at Delphi for approval.¹⁶ Yet divine law was also seen, as among the Romans too, as distinct from the gods, an abstract realm of ratio­nality and natural order. Though formulated by the gods, it was also independent of them, not merely an expression of their will.¹⁷ Christianity, in turn, was equally abstract and universal but more magnanimous. It regarded sin in terms of mortal weakness and divine forgiveness, Christ having died to save humans from their own evil. Penitence, not punishment, brought the sinner back into the fold.¹⁸

Supernatural edicts did not govern all human action in antiquity. Worldly law regulated much everyday behavior even as the divini­ties watched over what concerned them. But the overlap between edict and law was far greater than it later became. Secular and reli­gious offenses were eventually distinguished, enforced respectively by state and church—though some cultures, notably Islam, continued to conflate the two.¹⁹ The state came to punish acts that violated secu­lar law, which—as the gods were pushed aside—began to define the only enforceable public sanctions.

The state thus came late to enforcing law and chastising offend­ers. Even law formulated in statute was in place before the state did any punishing, whether among the ancient Jews or on ninth­century Iceland. Replacing the gods, the state eventually got to decide what crime was and what transgressions were punishable. Yet if the state is five thousand years old, assuming this power took it more than four millennia.

Except for the transgressions that affected it directly—treason, sacrilege—the state lacked until recently the will or ability to keep order and enforce norms. For most of history, disputes were resolved communally among the directly interested parties. Self-help was how conflict was dealt with, as it remains today among sovereign nations. When people harmed each other, kin groups righted the balance, shedding blood as vengeance or transferring value as compensa­tion. Such private justice only gradually fell under the state's remit. A judicial system, with the state punishing violations of collective norms, was achieved incipiently by the ancient Greeks, Romans, and Chinese, but not again in the West until the Middle Ages. The state eventually defined crime by laying down the law, and it provided the means to deal with it: surveilling, policing, trying, sentencing, and punishing. As the state took on such tasks, broad changes followed. Punishing shifted from resolving conflicts between kin groups to publicly imposing generalized norms whose violation offended the whole collectivity.

Even then, the road stretched out ahead. Echoes of private jus­tice from the deep past could long be heard. In the 1790s, 80 per­cent of criminal cases in England were still initiated by the victims, who also bore the costs. In the latter half of the eighteenth cen­tury, courts finally began paying the expenses of bringing success­ful felony prosecutions.²² Not until 1879 did the English establish a national system of public prosecutors, and it took another century for it to be made effective. Even today, prosecutions are sometimes handled privately in Britain. Shoplifters, for example, are often left to retailers to pursue.²³ Authorities elsewhere enjoy a wide range of discretion whether to prosecute or not, ranging from extensive in Japan to almost nonexistent in Finland.²⁴ In Japan and Germany, some crimes remain prosecutable only if the victim asks for it. Such Antragsdelikte in Germany include breach of the peace, domestic theft, exhibitionism, and poaching fish.²⁵ Islamic law allows the families of murder victims to forgive killers—often for payment— and thus spare them death. And the role of the family, once the main enforcer, still shines through in contemporary disputes over how publicly to prosecute spousal violence, marital rape, and child abuse. But, on the whole, the state now leads in dealing with crime.

As the state came to monopolize punishment, it resented pri­vate parties poaching on its turf. Having once been the only means of redress, self-help was eventually forbidden, though vigilantism and other informal means of victims enforcing justice on their own have not vanished even today.

As the state came to dominate law's enforcement, punishments grew more moderate and subtle. Two major changes were at work. With emergence of representative government—initially republican­ism and eventually democracy—laws no longer needed to be enforced by drastic means. Only despotic governments required severe pun­ishments, Montesquieu observed. In republics (he included also monarchies), citizens were impelled to behave as much by honor, vir­tue, and fear of disapproval as by punishment.²⁷ Subjects had to be coerced, but citizens motivated themselves to obey. He might have added that the nature of law also changed, making it less burden­some to follow. Laws emerged from decisions taken ultimately by citizens who, obeying them, conformed to what they had mandated their representatives to pass. Breaking the law now came closer to the self-inflicted harm that Immanuel Kant and G. W. F. Hegel discussed: thieves whose own right to property was undermined by their refusal to respect that of others.²⁸ Described most generally, laws came to be self-imposed, and obedience was self-will. Legitimate law was vol­untarily obeyed.²⁹ Those regimes that most deviated from this par­ticipatory ideal—autocracies and totalitarianisms—also imposed the harshest punishments.³⁰

Yet the lesser need for force when there is a political consensus was not the whole story. Yes, the state and society grew evermore symbiotic as political participation widened into democracy. But the state also grew increasingly able to enforce the measures result­ing from this participatory process. The more powerful the state became, the less it had to flex its muscles.

In this process, the tools at the state's disposal changed dra­matically. The savage brutality of early punishments gave way to a subtler but also more regularized and broader enforcement. Spec­tacular inflictions of pain in public were less needed to deter as the authorities developed new means of anticipating and preventing crime. Torture was no longer necessary to extract testimony once the burden of proof imposed by Roman law loosened in the late seventeenth century to allow conviction without two eyewitnesses or a confession. Subjects could now be punished on less evidence, as they were in those countries that did not insist on such a high standard in the first place, such as England. Banishment, mutila­tion, death, and other cheap, cruel punishments were less urgently required once society marshaled the resources to afford the compar­ative mildness of incarceration. Capital punishment was less press­ing once the state successfully suppressed private vengeance. The state, in sum, no longer needed to show who was boss.

A state able to assert its might only intermittently had to hope for powerful deterrent effects from spectacular public demonstrations of it. At 1800, Britain's criminal code was startlingly savage. Well more than two hundred capital offenses were enforced, mainly for forms of theft and often for trivial acts. Yet most violations were without consequence. Offenders went uncaught; if caught, unpros­ecuted; if prosecuted, unconvicted; if convicted, unhanged. In sixteenth-century England, only 10 percent of those convicted of capital crimes were actually hanged. Even in the first half of the twentieth century, 45 percent of men and 90 percent of women condemned to die had their sentences reduced to life in prison.³¹

Harsh punishments could be imposed only sporadically on any­thing other than abject subjects without provoking resistance.³² In any case, such severity absorbed resources otherwise available for other forms of enforcement.³³ The harsher the punishment, the less it served an everyday function.

In contrast, the powerful omnipresent modern state hums away in the background, ensuring compliance less through manifest dis­plays than by regular, predictable, moderate sanctions that it rein­forces by a spectrum of behavioral encouragements—all rendered more effective by its subjects' voluntary compliance. The stronger the state, the less draconian it needs to be. The law makes clear what transgressors can expect, and the judiciary metes it out.³⁴ Moderate, foreseeable law enforcement was a core demand of the Enlighten­ment philosophes, seeking to reform the early modern state's grisly, sporadic flailing about. The English Reform Act of 1835 illustrates the point: it abolished the death penalty for many of the two hundred existing capital offenses and simultaneously extended to all munici­pal boroughs the system of policing that London had introduced in 1829.³⁵ The law became both more lenient and better enforced. As the English state reduced the number of capital crimes in the nine­teenth century, its conviction rates rose. Juries no longer resisted condemning defendants to their deserts when the balance between offense and sanction seemed just.³⁶ Appearing merciful, the state in fact punished more citizens. It was nicer and yet more effective.

Yet more than rationality and humanitarianism were at stake here. Michel Foucault's mantra was certainly true: the point was to punish better, not less.³⁷ But better also meant less or at least less savagely. The contemporary state's ability to relinquish much of the armamentarium of sanctions demonstrated its growing effec­tiveness. It once brandished a panoply of pain: branding, flogging, mutilation, banishment, shame, death. Today it relies largely on prison and fines. That fines are the most common sanction shows how moderate punishments have become. In earlier eras, almost no defendant pled guilty, most were acquitted, and the convicted some­times were hanged. The law's grasp was intermittent, localized, and sanguinary. Today it is constant, broad gauged, and comparatively low key. In early nineteenth-century England, a quarter of defen­dants were acquitted.³⁸ Today, many fewer are. Since prosecutors have done their homework, because offenders are no longer threat­ened with disproportionately harsh punishments, and because plea bargains grease the rails of justice, most accused plead guilty.³⁹ Almost 80 percent of defendants before British magistrates' courts enter guilty pleas, as do more than 90 percent of felony offenders in the United States.⁴⁰ And of those tried, the vast majority are con­victed. The 92 percent conviction rate achieved in the United States compares favorably with the 95 percent under Joseph Stalin's trials in the late 1930s.⁴¹