Changing Times, Changing Crimes

Courtesy of Denver Public Library - Western History Museum
Courtesy of Denver Public Library – Western History Museum

Over the past nearly century and a half, the State of Colorado has incarcerated vast numbers of individuals of all ages, genders, and races at the facilities in and around Cañon City.[1] For the rest of the citizens of the state, these individuals’ incarceration establishes a binary relationship between law-abiding and criminal populations—with the reduction of the identity of offenders, in view of most others to simple criminality. The faceless offender is often constructed as the embodiment of social deviance by those outside the prison walls. But are these persons’ actions against the law what makes them criminals? In a society with a highly codified penal system, crimes are understood to be acts against moral rectitude, understood as absolute, as enshrined in statutes. An examination of the changing nature of crime across time complicates this understanding of the character of law, revealing how norms, values, and morals of a society have been historically contingent. Crimes and sentences offer a method for evaluating social normativity across history.

Scholars working in various periods have attempted to define crime in their respective works. Very rarely, however, do they produce an exact description. Early twentieth-century political prisoner (as she claimed) and activist Kate O’Hare begins her work In Prison with a discussion as to the arbitrary nature of criminalization. Her work cites a 1911 address to the Academy of Political Science by William M. Ivins defining crime as the “point of conflict between the individual and society.”[2] O’Hare suggests that often the public sees crime as the framing of good or bad in respective historical periods and geographical regions. This view of crime as socially and politically constructed is, however, inconsistent with a vision that good and bad are to be upheld as inherent and immutable characterizations. As O’Hare contends, the identification of crime as such is a device to protect the interest of those in power, applying the law across boundaries of class and gender with unequal effect.[3] This observation is echoed in The New Jim Crow, the work of contemporary lawyer and activist Michelle Alexander. Here Alexander argues that laws, especially those waging the “war on drugs,” construct a legal and penal system to uphold social and racial class structures.[4] Correspondingly, Michel Foucault, in his seminal 1967 work Discipline and Punish, a lengthy discourse on the development of penal systems, had proposed the identification of crime as for the protection of the social body by the state. Foucault’s study affirms the normative value of penal systems.[5] Defining crime and further understanding the criminalization of certain acts is evidently a complicated matter, but it is clear too that the criminalization of certain acts changes over time to help enforce social normativity through the suppression of deviance.


Crime and Punishment

Foucault was chiefly concerned with early modern Europe.  Late nineteenth-century intake records from the Colorado State Penitentiary (CSP) in 1899-1900 provide comparative insight, from a different place and time, into the types of crimes and punishments. Comparison here of the frequency of specific crimes and the length of corresponding sentences in CSP records will suggest the social values of the young western state in response to Foucault’s reading of the European past. In the early years of CSP, now known as Colorado Territorial Prison, murder was the most punished crime, often accorded a life sentence or the death penalty. Other violent crimes were also heavily punished. Rape drew a sentence as great as forty years. Assault to kill, rob, or rape garnered a maximum of twenty years. Manslaughter, distinct from murder even prior to the twentieth century, led to a sentence of up to forty years. Other less common violent crimes like “sodomy,” “train wrecking,” or “obstruction of railroad” saw sentences of fifteen, ten, and fourteen years, respectively. Nevertheless, some violent crimes stood out as anomalies, drawing shorter sentences. Arson, kidnapping, and “administering poison” drew maximum sentences of only three years. Meanwhile relatively short sentences were accorded most property crimes. The likes of larceny and burglary represented the more harshly penalized variety of property crime, yet led to sentences of no more than eleven years and, more often, sentences of less than six years. Robbery, the most violent of the property crimes, drew the longest sentence of fourteen years. Less physical and more crafty property crimes or crimes against individual rights such as forgery, embezzlement, bigamy, “receiving stolen goods,” “false pretenses,” counterfeiting, conspiracy, and perjury were often only punishable by a few years imprisonment.[6]

The physically violent nature of many crimes of early Colorado both reflected and elicited a distinct array of social values. The pattern of criminalization suggests a society which hoped to normalize an acceptable level of violence. In the culture of the “Wild West,” the early state aimed to curb the gun-slinging idealization and bravado of pioneer society. The rugged reputation of the frontier was attractive to fortune-seeking men who often came from deprived economic circumstances or limited social contexts back East. A predominantly male demographic thrived off of the machismo of an economy based in adventure: mining, army work, trailblazing, and railroad labor. Consider the modern cultural portrayal of the frontier: images of bandits and vigilantes, saloon shootouts, barroom brawls, bounty hunters, bank robbers, and justice serving sheriffs cloud the public imagination. Recent historical interpretation often challenge this image of the western frontier, but nonetheless pioneer society was clearly an environment ripe for physical unrest, moral instability, and social deviance through criminal behaviors.

The violent crime patterns of early Colorado also suggest the sense of value communities shared. For most men and women traveling West, moveable goods had limited use. Sometimes the greater part of personal property was left back East, even if was substantial, but more migrants were members of lower social classes lacking much material wealth. In addition, most of these migrants came to seek their fortune as miners, offering their services as explorers, hunters, and mountain men, or sought to work as laborers for the railroad. These people’s greatest and often only economic asset was their physical strength. Violent crimes, therefore, were the most salient criminal activity in the public consciousness because the social body saw it as the greatest threat. The character of historical sentencing suggests that a family whose father was lost at the hands of a murderer was robbed not only physically and emotionally of a person, but also of the economic power of the family unit. A traveling miner attacked by bandits on the road might be less concerned with the few dollars he lost in the act than with the ruin of his economic potential from the injuries he sustained that prevented him from work.


Changing nature of crime

Criminal activity had largely been transformed eight years later, by the 1960s, suggesting a reformulation of social values in the intervening decades. Property crimes had quickly outpaced violent crimes as the primary offense of the time. Compared to the early records which saw murder crimes at a rate of at least one per twenty, a review of nearly 100 criminal records from 1961-1962 revealed no more than three murders.[7] Instead the record books were bursting with sentences for forgery, larceny, non support, confidence games, and “no account check.”[8]

In addition to changes in types of crime, CSP’s early days and the mid-twentieth century criminal sentencing system was also transformed in a fashion suggesting parallel change in the social characterization of the variety of crimes and sentences. While the concept of culpability (legally termed mens rea) clearly existed in Colorado’s the early penal system, as is evident in the differing sentences for the same crimes in prison records, that notion developed in the course of the twentieth century. This change follows a national trend politicized by the release of the Model Penal Code in 1962 by the American Law Institute as a measure to standardize states’ criminal justice systems.[9] In the ‘61-’62 records, criminal sentences of first degree murder, second degree murder, and manslaughter were differentiated, as well as distinctions between statutory rape, sexual assault, and violent rape.[10] Mid-twentieth-century sentences, obviously more specific, were aimed at interpreting each crime from a  perspective of forethought and intentionality, suggesting a greater social emphasis on the fragility of the human mental condition for both criminal offenders and their victims.

The slew of new criminal sentences appearing by mid-century were much more complex and numerous than those testified in earlier prison records. A greater emotional connection to crimes, evident in the appearance of sentences for “joyriding” and aggravated robbery, marks intake records.[11] These crimes suggest that emotions motivated or suppressed criminal acts. The introduction of life sentences, along with penalties for indecent liberties and confidence games, meanwhile imply shifting social concerns.  The new crimes of the middle twentieth century reflected a new materialism. Surrounded by the prosperity of a post-industrial age, the growing, educated middle class placed a greater worth in protecting the mental vulnerability of elements in the social body. The most numerous crimes punished at CSP were property-related, but are also more covert than their late nineteenth-century analogues. Confidence games, forgery, and non-support testified to a new, “sneaky” sort of crime.  Its discovery shattered the sense of security and stability founded in material things in a way that simple theft could not.  Meanwhile, punishable crimes like rape threats and indecent liberties, perceived as attacks beyond prevention, represented a challenge to mental security. Secret by nature, sex crimes posed a special threat to social security. When earlier concerns had focused on the economic potential of the individual human body, identification of newer crimes pointed toward a society identifying more abstract social concerns, constructs like numbers representing currency in bank accounts, along with public identities, and investments. Since the public did not feel it needed to secure basic needs, it might now move up twentieth-century humanistic psychologist Abraham Maslow’s “hierarchy of needs” to concern itself with more complex deficits.[12] This new wave of crime represented a certain maturation of the public to a greater level of Maslowian actualization.   No longer were criminal laws aimed at protecting means to economic survival, rather they sought to create a sense of mental security.


Recent crime trends

Early twenty-first century crime reflects yet another shift in social value as expressed in criminalization. An examination of crime statistics and data from the Colorado Department of Criminal Justice in the past forty years shows several important trends. The first is a marked increase in incarceration rates from 1981 to present despite a continuing decrease in both property and violent crimes. Traced over a smaller period, crime rates specific to crime type show a general trend of steadiness or gradual decrease. Property crimes greatly outnumber violent crimes today as they did in 1961. Drug crimes also appear as a new and separate category, occurring at an arrest rate even higher than that of property crimes.[12] While drug-related crimes become effectively a massive new category of criminality after the 1960s, substance abuse a crime itself appeared as early as the 1930s when medical records from the Colorado State Penitentiary show inmates doing time for possession of alcohol during the Prohibition era.[13] Intake records from 1961 also show arrests for “possession of illegal narcotics.”[14] Recent data demonstrate the meteoric increase in drug crimes with respect to both frequency and severity of punishment. As Michelle Alexander argues, the political “War on Drugs” responsible for this new increase was an attempt to use the criminal justice system to replace decaying or dead legal discriminatory systems that kept social and racial hierarchies in place.[15]

In Alexander’s compelling construction, the increase in drug crime as well as the other notable trends of recent crime statistics emphasizes that modern ideals of criminalization are fundamentally about control. This conclusion is affirmed by the longitudinal evidence of criminality in Colorado.  The basic premise of criminal systems is to create social normativity, but contemporary criminal justice operates more complexly than by simple suppression of deviance. It represents micromanagement of criminal activity and individuals’ daily lives. In a context of round-the-clock electronic news reporting and social media-based portrayal of the chaotic nature of a global world, Coloradans (and Americans more broadly) were by the late twentieth century led to desire a feeling of security found only in management of the miniscule.  More and more arrests seemed necessary to make a chaotic world look orderly. Trends in criminal justice now parallel the rise of new mass surveillance systems aimed at creating a similar sense of control. Effectively countering these means of creating a sense of stability, however, is the chronologically coordinated rise of international terrorism aimed solely at shattering that sense of psychological security, with complex implications for Americans’ view of domestic criminality—and their corrections institutions’ management of persons convicted of violent offenses in particular.


Sentencing changes

This micromanagement is reflected in today’s prisons as well. Newspaper articles from the Pueblo Chieftain, Cañon City Daily Record, Denver Post, and Colorado Springs Gazette from the 1990 up to the present show an increasing severity in Colorado prison policies. Department of Corrections officials have been directly accorded the power to increase inmates’ length of stay. No longer are sentences extended only for obvious misbehaviors and antisocial behavior like assault; things as benign as tattoo removal can garner an extension. Something as random as flinging feces at a correction officer can extend an inmate’s sentence to the length of that accorded rapists and murderers in the early days of CSP.

Along with the growing use of correctional policies to extend prison stays, the likelihood of pardon or parole has decreased for inmates of all types. Adolescent felons are examples of policy changes under this pattern. According to a 2006 Denver Post Article “Teen Crime, Adult Time,” policy changes in response to the increased involvement of juveniles in violent crime during the summer of 1993 made Colorado one of fourteen states allowing juveniles as young as fourteen years of age are charged as adults with sentences of life in prison without parole. 1,244 such cases have been tried, 44 of which have been prosecuted among perpetrators as young as age 15, in an attempt to crackdown on juvenile crime ramped up since 1998.[16] This policy change represented a shift in focus from reform to punishment as compared with historical high profile cases of juvenile justice. In 1893, eleven-year old Anton Woode was sentenced to 25 years in prison for killing a man on a hunting expedition. After his release, however, Woode was able to move to the East, change his name and become successful. Analogously, in 1947 twelve-year old Jimmy Melton was sentenced to life in adult prison. Warden Roy Best removed him from the general prison population and gave the young convict a room in the warden’s house as well as access to private tutors to continue his education. Jimmy was eventually given parole.[17] Both of these child murderers had killed in cold blood with very little motive, but while many adolescents today are receiving life sentences for robbery or assault, as fewer than three percent of juvenile life imprisonment trials are related to homicide.[18]

Both lengthy prison sentences and new policies regarding prosecution of crime, such as those perpetrated by young people, make Colorado the fifteenth most heavily incarcerated state, according to one 2009 report mentioned in The Denver Post. This report cites the increase in the length of prison stays and change in prosecution policy as reasons for the increase in incarceration from one in every 102 individuals in 1982 to one in every 29 in 2009.[19] Apparent in this shift in sentencing patterns is an absorption with thoroughness valorized in American government generally and here driving inflation of prison populations, hence accelerated social control. A society engulfed in information and efficiency of means is reflected in a criminal justice system that attempts to be complete. While one might argue that the system itself is not necessarily efficient, it aims to provide such an image.

Paradoxically, contemporary criticism of the criminal justice system resists forceful social control such as that system has attempted to achieve. Those who point out the inconsistency between rising incarceration rates and dropping crime rates also call for a greater sense of accuracy in corrections rather than the bloated prison populations. Individuals who call for a more efficient and effective system of reform agree with corrections officials in their aim to make the criminal justice system more effective at limiting crime and rehabilitating criminals. The difference lies only in that the state seems to equate bigger and better while its critics want to eliminate the former in the execution of the latter. Either way, the ultimate goal of creating a more comprehensive system of control suggests widespread anxiety about social disorder and criminality. Even if critics do not want more people in jail, they do want the right people there, and they want them fixed (normalized) and corrected before they are permitted to rejoin society. Critics may decry association with ideals of control but they too desire effective reform of prisoners, necessitating a normalizing force manifesting as control in one way or another.

The long story of crime in Colorado is bound up with the state’s, the nation’s, and the world’s material and moral values. Whether criminal codes have protected economic potential, propped up psychosocial actualization, or ameliorated public hysteria, they have successively been instrumental in both expressing and defining normalcy so that society may function in the uniform, characteristic, and predictable way perceived as progressive. This progress is understood as driven by the sense of security created by a normalizing public force. By changing patterns of criminalization, society can redefine social normativity. Critics of a system must examine how their goals align with the social norms they claim to enshrine and protect. The current state of the criminal justice system thus reflects a perception of discomfort with a contemporary posture toward criminality.  Change is only possible by stitching up the structural wound that the normalizing force of criminalization currently bandages. Those who worry about the failure of contemporary prisons are also interested in examining the social forces that make the criminal. Broad social change is necessary to correct today’s prison problem, but this revolution must attack the source of crime. Economic changes drove a redefinition of crime as principally property-based and removed the insecurity of economic potential invested entirely in the body, shifting criminalization patterns in the first half of the twentieth century. Another economic or sociopolitical revolution might affect the change in patterns of criminalization necessary to reform today’s prisons. This revolution could come from precisely aimed policy changes enacted by those who understand that, as Dostoevsky says, “[t]he degree of civilization in a society can be judged by entering its prisons.”[20]

[1] Originally researched and drafted by Ian Carey.

[2] Kate O’Hare, In Prison (New York: Alfred A. Knopf, 1923; repr. Seattle: University of Washington Press, 1977), 3.

[3] Ibid.

[4] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2011), 58.

[5] Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Random House, Inc., 1995).

[6] State of Colorado, Board of Corrections, Biennial Report. . .1899-1900, 68-69.

[7] State of Colorado, Colorado State Penitentiary, Criminal Records 08/22/61-3/21/62, Museum of Colorado Prisons.

[8] Ibid.

[9] Paul H. Robinson and Markus D. Dubber, An Introduction to the Model Penal Code (Philadelphia: University of Pennsylvania, 1999).

[10] Criminal Records 08/22/61-3/21/62.

[11] Ibid.

[10] Abraham Maslow, “A Theory of Human Motivation,” Psychological Review 50 (1943): 370-396.

[12] State of Colorado, Department of Criminal Justice, Crime Statistics.

[13] State of Colorado, Colorado State Penitentiary, Inmate Medical Records, 1932, Museum of Colorado Prisons.

[14] Criminal Records 08/22/61-3/21/62.

[15] Alexander, 71.

[16] Miles Moffeit and Kevin Simpson, “Teen Crime, Adult Time,” Denver Post, February 19, 2006.

[17] Charlie Brennan, “Boy Killer made Colorado History,” Rocky Mountain News, May 29, 1996.

[18] Moffeit and Simpson.

[19] “Report: 1 in 29 in Colorado in Criminal Justice System,” Denver Post, March 2, 2009.

[20] Fyodor Dostoevsky, The House of the Dead (1862), trans. Constance Garnett, as quoted by Fred R. Shapiro, The Yale Book of Quotations (New Haven: Yale University Press, 2006), 210.