Yet It Continues
And yet, for all the state's subtlety, for all the cooperation between the penal code and other means the state uses to modify citizens' conÂduct (school, market, workplace, family), the number and reach of its laws, the range of the formal and explicit codex of behavioral preÂscription, continue to expand.
The state has not withered away. Quite the contrary, it has grown. It is often noted that were every law puncÂtiliously enforced, all citizens would be criminals.42 The Kinsey report in 1948 argued that laws criminalizing sexual acts then considered deviant made 95 percent of the (male) population potential crimi- nals.43 According to a police rule of thumb, a motorist followed for three blocks will end up committing a violation. Already in the 1930s, it was estimated that traffic laws—strictly observed—were violated 2.5 million times daily in the United States.44 Assuming no recidivism, every single man, woman, and child thus crossed the law seven times annually. Few actions do not trespass one law or another.45Whether the range of criminalized behavior has narrowed or widÂened is hard to say, but it certainly has changed. As actions once outlawed have been removed from the penal code, new ones have been added. The number of laws in the penal code has massively increased. True, many statutes duplicate or add only nuance to proÂhibitions already on the books. And many earlier laws accrete, rarely being removed. But even as some acts have been decriminalized, the range of offenses has also expanded. The US republic enforced half- a-dozen federal crimes at its birth, a couple hundred in the late nineÂteenth century, and more than four thousand today. The federal penal code has expanded massively, from eight pages in the 1875 version to almost nine hundred in the 2018 edition.46 Illinois has ten types of kidnapping offenses, thirty sex offenses, and forty-eight assault crimes.
Virginia has twelve forms of arson and attempted arson, sixÂteen kinds of larceny and receiving of stolen goods, and seventeen types of trespass crimes.47 Including regulations, not just penal statÂute, would add another ten thousand crimes. Perhaps some three hundred thousand US regulations are criminally enforceable.48At first, all manner of actions were punished—crimes, torts, sins, and immorality, not to mention acts that today fall under health, labor, safety, zoning, economic, housing, and many other regulaÂtions. Crimes punishable by death in early colonial America included idolatry, witchcraft, blasphemy, bestiality, sodomy, and adultery, most of which are no longer even offenses. Usury was once conÂsidered a sin, violating natural and religious law and punishable by death.49 Today it underpins banking—though only covertly in the Islamic world. Apostacy was once a capital crime in many religions, including Christianity, but is so today only in Islam, where it is not decreed in the Quran.50 Only gradually were things sorted out. Sin, as violation of God's commands, was left to the church as religion separated from the state. It retains a sense of a collective, endurÂing transgression rather than of an individual moral lapse, as when slavery is described as a stain that needs cleansing.51 Penal law once governed ideological and theological beliefs as well as countless behaviors that we now consider personal choices but that once were the province of sartorial, sexual, sumptuary, or consumption codes. With the Enlightenment, however, authority's role was understood as preserving order, not morality. Only acts that directly harmed others were to be banned. Matters of conscience and private belief ceased being the state's concern. Moral wrongs fell to individuals and their conscience, only rarely did they remain the remit of the penal code. Disputes over individual harms were now sorted by the interested parties within the civil law.
The state also spawned other regulatory instruments to police many activities that were once covered by the penal code: workÂplace and food safety, public health, labor relations, unemployÂment, zoning, competition and monopolies, construction, trade, opening hours, and so forth. What we regard as social problems today were earlier handled by criminal law. Vagabonds, vagrants, beggars, Roma, prostitutes, demobilized soldiers, and other marginÂals, if away from the local community responsible for their upkeep, were shooed off elsewhere by penal sanctions.52 Credit markets were policed by debt slavery and debtor's prison.53 The law allowed creditors to target debtors' bodies, not their property. Debtors used to outnumber conventional criminals by far in prison, threefold in early nineteenth-century America. In Islamic jurisprudence, wherein corporal punishments were the primary coercive mechaÂnism, unpaid debt was the predominant basis for imprisonment.54 The aim was coercive—forcing debtors to pay what they owed. SenÂtences were indeterminate—until payment or creditors were othÂerwise satisfied.55 Modern bankruptcy—with a proper discharge of debt—emerged from reform of this self-contradictory system in the early eighteenth century. Ultimately, it was back-stopped by jail, but—barring fraud—most cases came to be resolved without resort to prison.56 The problem was moved out of the penal code and into economic regulation.
The actions left behind in the penal code are what we now think of as crimes—murder, theft, fraud, and the like. Offenses in this narrow modern sense have become the province of the state alone: they are acts that not only leave behind victims but also are seen to harm society as a whole. As crime's focus narrowed, many public concerns were relegated to the private sphere. Sartorial rules once punished Romans who wore clothes in imperial purple, Aztec comÂmoners in sandals, and Elizabethan Englishmen sporting felt hats on Sundays.57 Working on the Sabbath was forbidden, as was sacÂrilege and drunkenness.
With a few exceptions, owning more than one loom was a penal offense in Tudor England.58 Medieval Iceland and England punished parents who failed to baptize their infants; Austria sanctioned mothers who took babies into their beds at night.59 Being out and about at night without pressing reason was once illegal, as was sleeping during the day.60The ancient Greeks made stealing the clothes off a person in public (Iopodusia) a crime for which one could justly be killed on the spot.61 In early modern Holland, undressing a child was singled out as a crime—not for the reasons we might imagine, but because the cost of clothing made it worth stealing.62 Once a broad variety of sexual behaviors was forbidden, including homosexuality, sodÂomy, fornication, and adultery. Today, only necrophilia, bestialÂity (with exceptions), and pedophilia are uniformly illegal. Incest was once defined expansively, criminalizing marriage with a broad range of family relations, including in-laws. Until 1907, British widowers could not marry their former wives' sisters. For another fourteen years, deceased brothers' widows remained forbidden fruit. Adultery was once a capital crime, one of the three inviolaÂble sins in the Bible, along with idolatry and murder. By the early nineteenth century, though, Bavaria punished it only if the harmed party insisted.63 Today adultery has largely vanished from the penal code—outside the remaining theocracies and eighteen US states.64
Once illegal and immoral, suicide is now considered a mentalÂhealth issue. Abortion, once punished as a variant of homicide, is increasingly treated as a regulatory problem. Euthanasia may be moving in this direction, too. Formerly a pressing public concern, blasphemy has been privatized. The initiative to prosecute it must come from a private party, claiming offense—if, indeed, the act can be pursued at all.65
Witchcraft these days is at most a public nuisance (Santeria and other practices that include animal slaughter).
As a crime, it has fallen victim not only to the general removal of religion from the state's purview but also to a widespread skepticism of its effiÂcacy.66 Sorcerers are no longer charged with attempted murder however intensely they incant their spells and curses.67 Indeed, in India, where village witches are still persecuted in their commuÂnities, accusations of witchcraft have been criminalized.68 But the Catholic Church continues to fear the dark arts and trains priests in exorcism.69 The Bavarian police code had special provisions against occult activities. And in Canada, hucksters who prey on the psychoÂlogically vulnerable can still be convicted for practicing dark arts.70 Cursing, once an invocation of occult powers and thus a serious affront, is now just a harmless annoyance. Scolding, which used to be a major disturbance of the peace, no longer counts as a transgresÂsion.71 Public drunkenness has moved from being the reason for a majority of arrests in the United States in the 1940s and 1950s to causing a small fraction of that today.72 Public disorders that earlier led to arrest (begging, public sleeping, vagrancy) have been (partly) decriminalized.73 Slander, libel, and defamation became harder to commit as our ancient honor cultures, with their easily raised insults, faded.74 (Digital technologies, however, facilitate such offenses, and the rates of their commission appear to be rising, but at the same time they are making slander increasingly archaic.75)