The existence of the criminal relies on the existence of crime. Whether the criminal merely attempts the act or completes his task, under the law he is tried and punished as a criminal. The actions considered damaging to social order are laid out in the New York Penal Code. It is these codes which first and foremost shape the image of the criminal, by classifying the people capable of committing crimes, laying out the actions punishable as crimes, and prescribing the punishment to be given.[1] The Penal Code of the late nineteenth century separates offenses into felonies and misdemeanors. While a criminal is one who commits a crime, it is clear by looking at the disparity of sentencing for felonies and misdemeanors that the nineteenth century state viewed felons as far more threatening to civic order than lesser criminals. Writer Oliver Barbour writes that a felony within the Revised Statutes of 1882 “shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in a state prison.”[2] Paired with sentencing patterns of the nineteenth century, the classifications of the New York Penal Code labeled the criminal most dangerous to civic order being the criminal against property.

The New York Penal Code separated offenses into felonies and misdemeanors. The distinction made in the Revised Statutes of 1882 is clear: felonies are punishable with incarceration in state prison or death, and any action which does not receive those punishments is a misdemeanor, such as battery, nuisance, petit larceny, and libel. However, the law does not name all offenses which can be considered misdemeanors. Since these crimes receive lighter punishments than felonies, the focus of this essay will be on felonies, which are punishable by incarceration in prisons such as Sing Sing.

Oliver Barbour’s treatise on the Penal Code of 1882 lists first the crimes punishable by death, murder and treason. These are the most severe crimes, with punishments left over from the English tradition of capital punishment. In the early nineteenth century, first degree arson was punishable by death. The Act of 1860’s legislature redefined first degree arson as punishable by no less than ten years in a state prison.[3] Murder and treason were punishable by death throughout the century. By listing these crimes as punishable by death, and not imprisonment, the state indicates that persons who commit one of these two acts are so dangerous to civic order that they must be permanently removed through execution.

Felonies also include offenses affecting the administration of justice and offenses against the public peace and public morals. Examples of crimes against the administration of justice are perjury, bribery, corruption, and assisting in the escape of a convict.[4] Crimes against the public peace consist of bigamy, incest, and dueling.[5] These acts made up a very small percentage of crimes committed from 1860-1880 when compared with crimes against property rights.[6]

Offenses against the person received lighter sentences than offenses against property. Offenses against the person include rape, manslaughter, mayhem, and kidnapping. Crimes against property include forgery, larceny, burglary, and arson. Crimes against property rights made up the overwhelming majority of cases in the nineteenth century New York City. Larceny and robbery were the dominant cases, making up 74% of cases in 1865, 79.3% in 1870, 72.7% in 1875, and 77.4% in 1880.[7] Crimes against the person occurred much less, or at least were prosecuted less often. Assault and battery were punished less severely than crimes against property rights.[8] Larceny and robbery were punished with an average of two year terms.[9] Crimes of physical violence such as rape and manslaughter were punishable for much longer terms than larceny or robbery, but never made up more than 5.0% of cases in a given year.[10] What these practices reveal is that the law viewed physical violence (excluding murder) as less detrimental to society than theft. For assault and battery, the less numerous court cases may have shown the state that the crimes against the person were simply less threatening to order than the vast number of crimes against property. Rarer than assault and battery, manslaughter and rape both received long sentences, ranging from 2 to 20 year sentencing, signaling that persons committing such crimes were very damaging to society and had to be incarcerated in state prison.

Imprisonment in the second half of the nineteenth century was essentially the harshest punishment that could be given out because of limitations on the use of the death penalty. Because execution was reserved for murderers and traitors, cases of which were rare, it would appear that imprisonment in state prison was reserved for criminals who posed a severe threat to society but had not committed actions that justified execution. Their crimes were limited to damaging civic order and the economy, not the lives of New York citizens. This puts imprisoned felons in a special situation where their removal from society is only temporary, yet the state nevertheless views them as a menace to order. In the eyes of the state, it is this group which needed the most attention, a group of mainly thieves. In 1886 New York Police Inspector Thomas Byrnes’ Professional Criminals of America describes a group of people “making a livelihood by crime.”[11] They are exclusively crimes against property, such as larceny, shoplifting, and forgery.[12] These are crimes committed normally by members of the lower socio-economic classes who used crime as a mode of employment. By applying the steep punishment of incarceration to these offenses, the state reveals that it considered the primary threat to be these professional criminals who would not only commit crimes, but commit them consistently. These thieves, burglars, counterfeiters, and pickpockets represent the professional criminals which committed the majority of nineteenth century crime in New York. [13]

The Penal Code assigned some of the harshest punishments to crimes against property. To the lawmakers in New York at the time of the Revised Statutes of 1882, the magnitude of professional crime was the primary concern. The law viewed the criminal as a professional thief who, if not adequately punished and reformed, would continuously threaten the public because they were individuals who had made their criminal action into a profession. In this way, the law shaped the idea of the most dangerous criminals as those who committed crimes against property.

 

[1] Barbour, A Treatise on the Criminal Law, 320-351.

[2] Ibid, 358-377.

[3] Kuntz, Criminal Sentencing, 272-283.

[4] Ibid, 283-284.

[5] Ibid, 185, 286.

[6] Ibid, 274-282.

[7] Ibid, 284.

[8] Byrnes, Thomas. Professional Criminals in America, (New York: Cassel and Company, 1886), 1.

[9] Ibid, 1-51.

[10] Ibid, Introduction and Preface.

[11] Ibid, 221.