Book Reviews
Rebellion and Political Crime
InAmerica
Stanley Cohen
Review of Nicholas N. Kittrie and Eldon Wedlock, Jr.,The Tree of Liberty: A
Documentary History ofRebellion and Political Crime inAmerica. Baltimore:
The JohnsHopkins University Press, 1986.
There are (at least) six ways of unraveling the connections between crime
and politics. The first is to understand how the crime problem is grasped by
different ideologies ?
liberal, conservative, socialist, anarchist. The second is
to redefine the theoretical differences in criminology as being really political
in nature. The third is to justify and then use the category "crimes against the
state." The fourth is to find thepolitical forces behind the creation and admin?
istrationof criminal law. The fifth is to explain in political terms the causes
and consequences of criminal action. The sixth is to understand when and why
politics becomes criminal and why crime becomes political.
For as long as there have been alternatives to positivist and managerial
criminology, all of these questions have been on the agenda. The final one,
?
the question of establishing criteria for defining violations of law as
though
?
has made cowards of us all. The answers thatwere tentatively
"political"
the criminal as crypto-political hero, crime as
advanced in themid-1960s ?
an inarticulate equivalent to political action, the notion of the politicization of
deviance ?
have all been repudiated as idealist, romantic, anarchist, Fanonist,
irresponsible, or whatever. But instead of stickingwith thequestion and trying
to find some other answers, ithas been abandoned. The radical struggle is now
to appropriate the street crime issue from theRight: a political enterprise, of
course (the first of those links between politics and crime that I listed), but not
the same as examining the borders between crime and politics. In a sense, it is
victimization thathas now been politicized, rather than criminal action. Simi?
larly, radical interest in political crime "proper" has become more self-con
is a Professor in the Faculty of Law, Institute of Criminology, Hebrew Uni?
COHEN
STANLEY
are Visions of Social Con?
versity, Mount Scopus, Jerusalem, 91905 Israel. His most recent books
trol and Against Criminology.
Social Justice Vol.
15,Nos. 3-4
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
197
198
Cohen
tamed. Questions of repression, surveillance, and the threatof state terrorism
are posed with little reference to the terrainofmainstream criminology.
The problem, to be sure, is intractable. It is difficult to find a clear criterion
?
legal definition, motivation and subjective meaning, objective conse?
?
to establish when an offense or offender is
quences, or all of them together
political in character. It is nearly as difficult to know what is a "political trial"
or a "political prisoner." It's all too tempting, then, to surrender to common
sense and proceed pragmatically towhatever it is that interestsus.We all more
or less understand which crimes, criminals, trials, and prisoners are "really"
?
and these can be considered in theirown termswithout worrying
political
toomuch about boundary disputes.
This is also Kittrie and Wedlock's
solution. They open their anthology on
a
in
with
crime
America
definition
fromWebster's Dictionary that
political
they immediately and correctly acknowledge to be "obviously impoverished";
the political criminal is someone "involved or charged...with acts against the
government or a political system." They thenproceed in their brief, yet sug?
gestive, "Introduction" (10 pages to a volume of 714 pages) to enrich this
definition. Political criminals might not necessarily engage in "acts"; their
crime might be a failure to perform legal duties (an unwillingness "to render
active service or offer verbal adherence to the state and its endeavors") or
mere membership by birth in a suspect population (simply belonging to a cer?
tain gender, race, or ethnic group). A crime need not be directly "against the
government" to be political; itmight be action in support of any collective
grievance or claim, motivated by all sorts of ideological, religious, economic,
or social concerns, and directed at nongovernmental institutions.Political of?
fendersmight not be charged according to the criminal code, but rather sanc?
tioned by various extralegal measures (such as exclusion, expulsion, exile,
curfews, confiscation, confinement, withdrawal of passports or licenses, with?
holding eligibility for voting or government employment, restraining orders,
or civil injunctions).
As the editors recognize, these are not the only complications in any dic?
tionarydefinition. And being aware of them hardly helps inknowing just what
to select for an anthology on political crime. There are two furtherproblems.
The first stems from the reluctance of American criminal law and jurispru?
dence (following English common law) to take into account assertions of po?
liticalmotivation and conviction, and demands of conscience, as justifications,
excuses, or defenses for illegal conduct. Only criminal intentmatters in deter?
mining guilt. There is no formal equivalent in the legal or correctional system
of the special political status awarded by certain forms of international law,
some European law, and bodies such as Amnesty International. (The editors
trace this back to political "original sin." A nation bom by treason and revolu?
tion assumes that the resultant democracy provides sufficient legitimate av
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
Rebellion and Political Crime inAmerica
199
enues for dissent. It becomes heresy to propose that ends might sometimes
justify illegal means.)
The second problem lies in the difference between the definitions offered
by the offender and those preferred by the state. In the case of "pure" political
crime, these definitions will coincide. But the offender's own claim to political
motivation may be at odds with the interests of the state in relegating him or
her to the status of common criminal (depoliticization). Or else the offender
professes allegiance to the state, but is subjected to the special pains and
penalties reserved for those seen as threatening to dominant interests.
An awareness of these problems not only makes an "objective and neutral
definition" impossible; it also hardly provides a practical guide for selecting
the raw material for a comprehensive anthology on the history of political
crime inAmerica. The editors' solution iswise and respectable: to err by in?
clusion rather than by exclusion. That is, they aim not to construct a strict
definition but instead to provide, in the lexicon ofmathematics, an open rather
than a closed set of materials. "The boundary of the open set is indefinite,
vague, amorphous, and indiscernible." All phenomena that stem from the con?
cept's very ambiguity are eligible for inclusion.
The result is a collection of 401 sets of documents arranged in chronologi?
cal order. They startwith "The Colonial Heritage" (first entry: King Edward
Hi's Treason Law of 1352) and end with two chapters entitled "Contemporary
Political Conflict and Domestic Security" (last entry: the 1985 Wayte case on
the unconstitutional enforcement of draft legislation) and "International Ter?
rorism and Human Rights" (last entry: 1984-1985 U.S. legal decisions to
combat state-sponsored international terrorism). In between there is the fa?
miliar and uninterrupted roster of dissent, violence, rebellion, and legal repres?
sion: not only Benedict Arnold, Nat Turner, John Brown, JohnWilkes Booth,
Eugene Debs, Emma Goldman, Susan Anthony, the Rosenbergs, Cesar
Chavez, theBerrigans...and the other famous men and women whose convic?
tions have evoked themajesty of the law, but also the countless other nameless
people whose very existence stamped them as criminal enemies of the state.
The documents that represent those moments of history are statutes, court
cases, diary entries, speeches, manifestos, and media reports. The weighting is
ratherheavily on the side of official reports and legal documents: reactions to
political crime rather than original subjective justifications. In a sense, this is
justified by the sheer extent and intensityof the political prohibitions which
American society has developed. Sedition, the education of Blacks, advocacy
of anarchy, voting by women, advocating abortion, teaching evolution, office
?
all these have been criminalized.
holding by communists, going on strike
The extraordinary range of these laws and themechanisms for enforcing them
(loyalty oaths, surveillance, security investigations, confinement of suspect
populations) justifies the editors' inclusion of somuch material devoted to ex
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
200
Cohen
?
planation and rationalization. This culminates in a separate chapter
?
which is an in?
"Contemporary Political Conflicts and Domestic Security"
current
for
of
and
methods
with
crime.
laws
ventory
dealing
political
Only oc?
on
seem
stress
rather
than
does
the
reaction
motivation
wrong.
casionally
Thus, although it is interesting enough to be reminded (Document No. 307)
from theWritings of Spiro T. Agnew that "There Are Proper Ways toProtest,"
we hear rather less from those he condemns (for example, from the inmates of
Attica, whose voices were certainly recorded and available).
The editors seem to apply other selection criteria which are not quite as
"open" as they claim. "State terrorism," for example (the term is President
Reagan's), calls forth some documents about American legislation to combat
international terrorismof theBeirut, Damascus, and Libyan varieties, but there
are no examples ofU.S.-sponsored state violence. Neither Chile nor Nicaragua
appears in the index and the CIA appears only twice: two sets of documents
from the 1974-1975 Nixon-era revelations about themassive, illegal, domes?
tic intelligence operations against the antiwar movement and other dissident
groups. In fact, themore we move from history to the contemporary period,
the less "open" the editors seem to be. Thus, in introducing material from
"The Age of Protest" (1961-1976),
theywarn the reader thatmany of these
documents should be approached with skepticism: "searching behind the os?
tensible political language for a serious and meaningful political motive or
goal." The issue is now "authenticity": the rhetoric of revolution may be a
fashionable way of shielding less noble purposes. Besides political criminality,
there is "pseudo-political criminality."
At still other points, it is theirvery openness about the question of defini?
tionwhich gets Kittrie and Wedlock
into trouble. Thus, introducing a fasci?
nating chapter on struggles of Native Americans, women, Blacks, and labor
between 1871-1916, theynote the "considerable criminal conduct" associated
with these groups: nightriders took part in acts of terrorism;women sought to
cast illegal votes; Native Americans rose in defense of their land and commu?
nity; workers illegally struck, boycotted, and rioted. Then, rather puzzlingly,
they comment: "But this chapter is replete with thericher material of political
criminality as well." Why the "but" and why the "as well"? Are these not rich
enough cases of political criminality?What the editors mean is that although
the struggle of these groups forpolitical and civil rights was a major portion of
political criminality in post-Civil War America, "none of these groups sought
to do anything thatwas inherently or fundamentally criminal: malum in se"
Their actions ?
living on ancestral property in conformity with traditional
cultural values, organizing for economic power, asserting the right to vote, etc.
?
are not usually the type "deemed inimical to the social order." Such rea?
sons, though, were sufficient to justify harassing, punishing, and even killing
these people.
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
Rebellion and Political Crime inAmerica
201
The editors are obviously making an importantconceptual distinction here:
on the one hand, there are clearly acknowledged criminal acts knowingly car?
ried out for political reasons and on the other, there is social and political ac?
tion (defending tradition, asserting rights,making claims) which is repressed
through the criminalizing power of the state. By (correctly) admitting both
these categories into their selection, they allow us to view thewhole range of
the subject. To assert, however, that the first form is somehow "richer," more
real (malum in se) than the other bypasses the problem of determining the po?
litical nature of crime. The editors pose thewhole issue in termsof conflicts of
allegiance. This gives them two quite distinct categories of political crime: the
punishment of individual violations of laws and the oppression of peoples
whose allegiance to the status quo is suspect. This distinction may be real
enough, but there are issues of power and legitimacy that transcend the crite?
rion of "conflicts of allegiance." Above all, there is the cognitive gap and the
power differential between the claim tobe acting politically and the state's de?
nial of political legitimacy.
A furtherproblem in Kittrie and Wedlock's
approach is their revisionist
but eventually optimistic view of American society. They go out of theirway,
to be sure, to criticize the bland, harmonious vision of American history (the
myth of peaceful progress) which plays down all elements of adversity, blood?
shed, conflict, and strife.They note several times that the episodes they record
are not mere temporary digressions from a 300-year storyof harmony. And ?
?
they do jus?
leaving aside theiramnesia about contemporary state violence
tice to the historical record of legal repression and crimes of the powerful.
Note, for example, the documentation on the ethnocide of Native Americans,
the terrorist acts by white Southerners to diminish the political power of
Blacks (and thepassivity or collusion of the state toward these crimes), as well
as the treatmentof Japanese-Americans. The ultimate message, however, is
benign. It is precisely this record of strife,violence, and upheaval which ac?
counts for America's unique "success in molding a pluralistic society," its
"peculiar sensitivity to questions of justice and equality." Political crime be?
comes a series of "challenges and responses" which lead to liberty and social
diversity. Thus Thomas Jefferson'swords which give thebook its title:
a little rebellion now and then is a good thing.... What signify a few
lives lost in a century or two? The tree of libertymust be refreshed
from time to timewith the blood of patriots and tyrants.It is its natu?
ral manure.
But at what price? The happy idea of latent functions, like the tragic idea
of historical necessity, hides some terrible facts. Blood and manure remain
blood and manure. No bland accounts of the "positive functions of deviance"
can be sustained without an overall balance of cost and benefit or, above all,
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
202
Cohen
without a sense of an alternative political order. No doubt this sense has been
truncated in America; as the editors note, the resort to extralegal politics has
generally been part of a reformist rather than a resurrectionarymission. Most
of these political criminals were indeed seeking littlemore than their share of
thepluralistic spoils (although not all of them: neither Emma Goldman in the
1890s normany rebels of the 1970s). The anthology too often strikes a note of
self-congratulation: how repression and injustice lead to the triumphof justice
and pluralism. As the old Yiddish saying goes: "it's all right for thewinners."
Theory and politics aside, though, this is a wonderful book. With great re?
sourcefulness and care, the editors have assembled a collection as comprehen?
?
to think about the
sive as we need?
there is certainly nothing else like it
multiple forms taken by resistance, rebellion, political crime, and government
responses inAmerica. Besides the chronological organization of the 401 doc?
ument sets, there is a name index, a table of legal cases, and a "Concordance"
that allows easy reference to groups of subjects (such as "Conscription,"
"Native Americans," or "Treason"). Each document is prefaced by a crisp
summary of the relevant historical and political background.
In the end, the documents speak for themselves, whether in the resonant
voices of the rebels, in the interchanges in the courtroom, or even in the formal
discourses of legality.
Open any page at random. Here is one year, 1970. Timothy Leary:
"Sabotage, jam the computer.... There is no compromise with a machine....
Resist, endure, do not collaborate"; a doctor's letter to his son, just after the
Kent State shootings: "There are constitutional ways to change theu.S. gov?
ernment and I agree that it desperately needs changing. However, if you
choose to change itby revolution, expect to get shot."
Or go back to October 1945 to the cross-examination of a psychiatrist at
the trialof Ezra Pound:
in
Question: Would the fact that somebody believed likeMussolini
or
his theories,
political philosophies, and the fact thatothers joined
in his beliefs, and were otherwise normal, make them abnormal?
Answer:
I think that is a question of politics rather thanpsychiatry.
Or Vanzetti's letters in 1927 and "Big Bill" Haywood testifyingbefore the
in 1915. Or further back to Clarence
Industrial Relations Commission
Darrow's
1898 defense of workers in theKidd case: "Why, gentlemen, the
only difference that I can see between the state's prison and George M.
Paine's factory is Paine's men are not allowed to sleep on thepremises." Or to
the official discourse of earlier times: the 1855 Louisiana Black Code (as the
editors note, "the firstcomprehensive system of legal racial apartheid inmod?
ern history");
the judge
in 1853 sentencing Mrs. Margaret Douglas
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions
"for
203
Rebellion and Political Crime inAmerica
teaching colored children to read"; the 1777 Maryland Act to "Punish Certain
Crimes andMisdemeanors and Prevent theGrowth of Toryism."
Everyone will find theirown favorites, and no review can do justice to the
diversity and richness of selection. From an educational point of view alone,
this anthology is indispensable. Supplemented with theoretical and political
?
items less easily found on reading lists?
this is theway to in?
sensitivity
troduce a course on political crime.
ICIENCE
? ISSUE NO. 4
Extraterrestrial
1988
intelligence
Watching television
Trials of forensic science
Women scientists inbiography
Chernobyl: nobody's to blame?
in India
Environmentalism
? ISSUE NO. 5
'New bad
future':
Subscriptions: 4 Issues for
?20/US$35
Individual,
?35/US$55
Institutional,
single copy ?5.95/US$9
1989
Robocop
and 1980s' sci-fi films
Joseph
Need
ham's
Darwin:
man
and metaphor
vision
Italy'sTechnoCity
Story
CUITURE
of a contact-lens
wearer
FREE ASSOCIATION BOOKS
26 Freegrove
Road
London N7 9RQ
Credit cards (24 hours):
01-609 5646
This content downloaded from 128.95.104.66 on Fri, 27 Feb 2015 05:52:10 UTC
All use subject to JSTOR Terms and Conditions