How to Inspire Fear with
Punishment, not Reduce Crime

Punishment...

…if anything ever so little should be found to have been deferred by the procurator who has departed, he shall be forcibly deprived of the very appearance of honor, and stripped of all his former dignity, he shall incur the fitting punishment of flogging and torture…and shall suffer disgraceful and shameful [humiliations] continuously until the whole undiminished amount of our largesses is deposited among the stores. Theodosian Code, 32, Procurators.

Crime was rising in both the cities and countryside in the Roman Empire of the fifth century. As this excerpt from the law code demonstrates, the response towards crime from any quarter was extremely punitive. The above excerpt, after all, refers to a former high official who may have absconded with "anything, ever so little." However, there was also widespread resentment at the unequal treatment of the law. Priscus, a diplomat from Constantinople sent to negotiate with Attila in 440, debates a former captive of the Huns, a Greek, who had chosen to remain with the Huns. The Greek argues that Roman law is unfair:

"If the transgressor of the law be of the monied class, it is not likely that he pays the penalty of his wrongdoing; if he should be poor and ignorant of how to handle the business, he endures the penalty according to the law--if he does not depart life before his trial."

Salvianus, in several different sermons implies that the peasants who could leave did so in droves, and that they were justified in welcoming the rule of the barbarians, because of the rank injustice, the heavy punishments and the crime and corruption of the Empire. The law, as I demonstrated in the section on the rich , the law also treated men unequally according to legal class status: whether they were honestii or humilii.

Questions: Was crime increasing, if so why, and what did the Empire do about it?

There was a general perception that crime was continually getting more and more out of control, and evidence I'll go into below showed that the perception was probably accurate. What did the Empire's governors try to do about the crime problem? As the excerpt from the code above implies, the government's response was more and more punishment. Another approach was to put the burden of proof on the accuser--with a vengeance: "…he shall have the right to bring a criminal charge for violence, not unaware that if he should not be able to prove the crime charged, he will undergo the same sentence as that which the accused would otherwise have received." There were also draconian threats against judges who were reluctant to pass sentences as strict as the Emperors wished, yet there was no such thing as a sentence to a long term in prison. Punishments were more on the lines of loss of property and honors for nobility, then exile and then beheading, while for common people there was flogging, torture and then death by crucifixion or by even more horrible methods. The idea of confining people in prison in lieu of punishment is a relatively modern one. People were confined for long periods in the Empire of the fifth century, but only because the courts didn't get around to deciding their cases, something the Emperors inveighed against in many parts of the law codes.

Apparently there were no real provisions for civilian police forces. Either municipalities hired armed men to enforce laws, especially the collection of taxes, or units of the army were called in if they were available.

There were large military campaigns against bandit gangs in the countryside on occasion, and in some places their relative lack of success was demonstrated by the army having to go back and carry out the same campaigns again and again. The Empire also used secret agents, many also from the army. The effect of relying on the army, according to Ramsey McMullen, was that the whole government was militarized, and even civilian bureaucrats ended up wearing approximations of military uniforms, and holding quasi-military titles.

It is not clear that there was any effective civilian police force in the late Roman Empire, either in the cities or in the countryside. On the large estates, the landlord, and his designated managers took on the function of prosecutor and judge; their role was legally recognized. There were many laws, too, about the powers of owners over slaves, explicitly absolving them of killing a slave, for example, as long as the death had been caused for disciplinary purposes and had not been intended.

Whenever such chance attends the beating of slaves by their masters that the slaves die, the masters shall be free from blame if by the correction of very evil deeds they wished to obtain better conduct…. Title 12 The Disciplinary Correction of Slaves

The landowners were the guardians of their land, and over all its inhabitants. Later decrees made it clear that coloni, who were legally free but were humilii in status, were indistinguishable from slaves for the purposes of crime and punishment. The managers had unofficial enforcers. The lords could (and did) condemn to death people they found (or thought) to be wrongdoers. Their methods of execution were probably not as elaborate as those used in the cities, but the idea was the same: harsh punishment will deter evildoers. Of course many were not condemned to death, merely flogged (sometimes to death), or sent off to the mines (usually a death sentence), or to the army.

The general approach towards criminal behavior in the late Roman Empire was that it must be deterred through the most terrible punishments that could be devised. There were no statistics on the effects of these policies, so we have only rather gross measures to look at. For example, in 472, Sidonius approves his relative's decision to "put off so perilous an expedition [to come visit him at his estate] and refusing to expose the fortunes of a family like yours to such a hazard." This was a simple trip, but the state of the roads, largely because of the prevalence of roving bandit bands, was "perilous." That doesn't sound as if crime had diminished, does it? Whole areas of Gaul were simply given over to the "bacaudae," or bandit gangs, and even roads in central Italy were not safe for the unarmed traveler. Everyone complained about insecurity in the countryside, not just from the occasional barbarian invaders, but from the apparently ever-increasing numbers of bandits preying on travelers and on anyone not adequately defended. Archeological evidence is also important here: more and more country villas and more and more towns, not just on the borders, but all over Gaul, Spain, Africa and Italy, built fortification walls to defend themselves. If insecurity had not been increasing, the walls would not have been necessary. And everyone knew that the cities were literally run by gangs identifying with the colors of their favorite chariot teams.

A short digression into the 21st Century: have you ever been to a third world country where there is an abrupt divide between the middle class and the bulk of the population? In Venezuela and in India the wealthy and the merely well-to-do have walls around their compounds; in Venezuela they used to be topped with broken glass; now they have rolls of barbed wire and security guards. In Caracas, the locks on up-scale apartments look like those you see on bank vaults. Why? Because, their societies look a lot like Rome in the latter parts of the fourth and the fifth centuries: fewer and fewer well-to-do, wealthier wealthy and a vast underclass that has nothing to lose. It is a direction in which we could be headed, as well.

Did extreme punishments work in Fifth Century Rome? First of all, what do I mean by "extreme?" Anyone convicted of thievery, violence or treason could be condemned to death. Only aristocrats had the "honor" of being beheaded. Everyone else could be sent to death in the amphitheater. There was a regular part of the venatione, about the middle of the day of the games, when criminals were led out into the coliseum. That was when the less sadistic went for their afternoon dinners, but the steadfast game-goers remained to watch the criminals die. The condemned were either left to their own devices, without weapons in the face of wild beasts like lions and bears goaded to attack, or they were tied to stakes before the enraged beasts were released into their presence. However, this capital punishment was too much like simple entertainment for later law-makers, and after all, many people didn't stay to watch, didn't get the message. Furthermore, the continued perception was that crime was out of control. Apparently it was, so officials decided that death by wild beasts did not provide a sufficient deterrent to crime. Therefore, ever more painful and brutal means of execution were devised. A parricide, it was decreed, would be sown

"into a leather sack and, confined within its deadly closeness, he shall share the companionship of serpents…he shall be thrown into the neighboring sea or into a river so that while still alive he may begin to lose the enjoyment of all the elements, that the heavens may be taken away from him while he is still living and the earth when he is dead."

Another form of execution was the slow burning of the victim on a lamp post on the public streets. Lawgivers argued that this method of execution should surely act as a deterrent, since the victim's moans and cries of anguish could be heard for hours on streets you couldn't avoid, and besides, his fire illuminated the night streets, discouraging other criminals--at least so went the theory.

Did these terrible punishments work? Since the Empire disintegrated of its own weight soon afterwards, in part because it could not provide even basic security for its citizens, the obvious answer is: No, it didn't work. But these punishments may have had another (possibly intended) effect: terrifying the people into submission. Although the Empire disintegrated, there never was a popular uprising beyond the immediate dismemberment of an Emperor like Maximus, who had failed to defend them.

Is an exclusively punitive approach to crime more of a deterrent to revolution than it is to crime? Does it teach people to be submissive subjects, instead of active citizens?

Today also, there is a widespread perception that crime is increasing, although crime statistics appear to show the opposite. Our response to the perception of rising crime, however, is illuminating; it is to revert to the kind of treatment towards lawbreakers that was expected in the fifth century, as exemplified by that first excerpt of the Theodosian Code: punishment and revenge. It is the way we think about crime in the contemporary period as well, but it wasn't always that way. The trend in punishment has been towards stiffer penalties as the "conservative revolution" has taken hold. This has been going on at least since the reinstatement of the death penalty in 1977, perhaps even dating back to the beginning of the "war on drugs," marked by the Rockefeller drug laws of 1974. The rationale for harsher penalties is reminiscent of the thinking of the Emperors and Senators of the fifth century: deterrence. The more awful the punishment, goes this thinking, the less likely people will commit the crime. But does this work? It has worked about as well as it did in the fifth century.

According to NY State Corrections Commissioner Thomas Couglin, III, testifying in 1993

"In 1974, the year after the Rockefeller drug laws were enacted, there was a total of 713 new prison commitments for drug felonies. In 1992, there were more than 11,000 drug felony commitments. Cumulatively through 1992, nearly 75,000 individuals have been committed under the Rockefeller drug laws. Yet, the extremely punitive aspects of the Rockefeller drug laws do not appear to have had any deterrent effect whatsoever on the drug problem.

"Because of widespread availability, the prices for both heroin and cocaine have recently fallen, according to media reports. Crack is reportedly sold for as low as 75 cents a hit. Heroin is down to $5 a bag, with levels of purity higher than five years ago. It appears there are so many dealers that they are cutting prices to stay in business at all. So the Rockefeller drug laws have lost any deterrent effect they might once have had."

Demonstrating the hardiness of the harsh punishment approach, however, the Rockefeller drug laws have still not been repealed as of late 2005.

It is difficult to prove that the death penalty does not deter murder, but statistics do imply that it does not. In fact the statistics look as if capital punishment may promote murder, despite fewer murders taking place in the nation, or, another way to put it is: the nation is becoming less violent, but capital punishment might be keeping it more violent than it would be without it. The lowest murder rates in the US in 2004, and consistently for years, have been in the Northeast where there have been the fewest executions; the murder rates are highest in the South where 80% of all executions have taken place. In fact, as executions rose in death penalty states (after it was reinstated in the 1970's and 1980's), the gap between them and non-death-penalty states in murder rates also rose; that is murder rates fell in non-death penalty states much more rapidly than in death-penalty states from 1990 through 2003. The average for death penalty states in 1990 was 9.5 murders per 100,000 people and for non-death-penalty states the only slightly lower rate of 9.16. By 2003 the respective rates had both fallen, but for death-penalty states it was 5.91, while for non-death penalty states it had fallen to 4.1.

What accounts for the overall drop in murder rates in both classes of states (and falling rates of other violent crime, too)? Better policing, especially community policing seems to have played a role; demographics, i.e. an aging population, a smaller young adult cohort, and possibly even the abortion of unwanted children may also account for falling rates. But it doesn't look as if the death penalty has anything to do with it; it may even increase the prevalence of violence, since the rates in death penalty states have come down more slowly, the gap between the two classes of states has widened from 4% to 44%. Why? Perhaps, if the state sanctions murder in its name, then murders by others remain more acceptable.

The argument for the death penalty is consistently promoted by conservatives, however. As one proponent puts it, "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers." In other words, what's so bad about killing people?

Trying young people as adults is another example of how our criminal justice system has become more punitive. Juvenile law tends to treat children as if they can be rehabilitated; they are often confined, but their records are expunged on reaching adulthood, they are required to go to school, and so on. Juveniles tried as adults, however, are treated as if they are irredeemably criminals; they are thrown into adult prisons--where they will probably be raped as a matter of course--and they are no more entitled to education than their adult colleagues. The ages at which states can treat a child as an adult are astounding: Oklahoma age 7, Nevada age 8, Colorado age 10, Oregon age 12, Georgia, Illinois, New Hampshire and New York age 13, California, Idaho, New Jersey, Texas and Idaho age 14. All other states have no age cut-off at all.

The inclusion of states like New York and New Jersey in this list, usually considered fairly liberal states, may have become more politically acceptable because of one celebrated case, the so-called "wildings," who were convicted of raping and beating a young woman in Central Park, the Central Park Jogger. The whole treatment of the case was a media circus in which the adolescents picked up by the police were condemned as young psychopaths, the beginning of a new breed. The only problem was: they weren't guilty of the crime, although they had been beating up people in the park; the real rapist finally came forward thirteen years later. In any case, the perception has been that violence by children has increased substantially. According to an article in USA Today "from 1985 to 1994, the number of delinquency cases waived to criminal court rose from 7,200 to 12,300, a 71% increase." In the latter instance, apparently there were more juvenile cases; the percentage of juvenile cases waived didn't appreciably change.

How we deal with first-time offenders has changed, however, much of it for the worse. Boot camps for first-time and juvenile offenders have been instituted in some states, their rationale being that they will scare the kids straight, and teach them discipline. But the National Mental Health Association states that they are not effective, and that they may be counterproductive. Instead of counseling teens who may need sympathy and support, they are subjected to humiliation and sadistic "discipline." Rates of recidivism from the graduates of these programs, according to NMHA are as high, or higher, than those from more conventional incarceration, or from supervised probation programs. In fact there are some reports that boot camp offenders are more likely to be re-arrested, or re-arrested more quickly, than those given more traditional sentences. The same appears to be true of boot camps for adult first offenders. But what boot camps represent is "getting tough" on crime. It is a more sophisticated and somewhat more humane version of deterrence theory of crime.

"Getting tough" on crime may also be a low cost alternative. It appears to cost less than to carry out social welfare programs, or to have community policing. In the fifth century there really were no police, because neither the Imperial government nor the municipalities could afford something like that. At the same time, the dole was becoming less and less reliable. The substitute, if you will, was threats of more and more draconian punishment. In other words, the nearly bankrupt empire could not send the army into the countryside against bandits, municipalities had no money for bucellarii--except to collect taxes--but both could threaten horrible punishments, and even carry them out on the random chance that someone was caught (or someone was accused, usually a political enemy). The effect on criminals was probably insignificant; on people's more generalized fear, it was probably significant.

What is not treated, when you concentrate on punishment and deterrence, are the actual reasons most people commit crimes in the first place. For example, with hurricane Katrina, there were looters in the flooding streets of New Orleans. Some of these were probably professional criminals simply responding to the opportunities as they saw them; they had been driven to crime a long time ago, because there were so few jobs, or possibly because their "homies" had already drifted into it. There were others who were probably drug addicts, like those who pillaged medical and veterinary clinics as soon as they were abandoned. However, there were also many men and women who were desperate for food and water, especially on behalf of their children. Would you expect someone to allow his children to die, when he knew there was food in an abandoned supermarket? That would have made most of us into "looters," I think.

And yet the punitive approach to crime does not take these complexities into account. It is like the Republican candidate for a local legislative office who dismissed Democratic proposals for a possible bail fund for those charged with non-violent crimes, in order to cut costs at the local jail, saying, "I don't want to spend taxpayer's money to put criminals on the streets."

And once in prison? The alternatives are: to lock them up and "throw away the key," i.e. act is as if you are, by making prison a simple people freezer, stacking them up like cordwood, if possible, with never a thought about what will happen when convicts complete their sentence, except maybe hoping they have "learned their lesson." Or prisons can offer programs that might help inmates learn to better cope with life "on the outside," by providing them education and job training. In 1994, as I have related elsewhere, the newly elected Governor Pataki of New York, insisted that all state funded college prison programs had to close. He was so insistent that he actually called up the president of the local community college, who had been trying to cobble together alternative funding to keep the program running, and told him, personally, that all state funds to the college would be withdrawn if he persisted. Pataki's rationale was simple. Prison should be for punishment. Rehabilitation, the reform idea of the New Deal and afterward, was out. People were sent to prison to be punished. Criminals only deserved punishment.

It was irrelevant that people would be released from prison with the same lack of job skills they had when they went into prison, because programs available for upgrading them had been cut. So, we are not to worry about the thousands, or hundreds of thousands (actually over 2 million) of men and women who are crowded together in conditions most of us would consider hellish, who will get out at the end of their sentences (or earlier with time off for good behavior). They will get out with no more skills for coping on the outside than they had before they went to prison, except possibly more criminal skills learned from their fellow inmates. They probably ended up in prison in the first place because they had few or no skills, except for the criminal activity that landed them there. My experience of prisoners (I taught in that college program) was that they were just as bright and had just as much potential as students on the outside, but their schooling had been deficient, for many so had their parenting, while their neighborhoods had been deadly. Well over half of all prisoners and over 70% in metropolitan states like NY are from minority communities, and unemployment rates for people like them are usually twice or more above the local average. Have you ever witnessed the three card Monte players on city streets? They are highly skilled in what they are doing, and in the way they con their customers; they are not stupid, but they likely have few other avenues for figuring out how to make a living.

Prison reform advocates imply that the no-programs policy is really political; it is intended as an employment program: keep the prisons full and keep the prison guards from small upstate towns and cities gainfully employed, which gains legislators and Congressmen support from those otherwise depressed regions. In New York, the prisons are major economic actors in many rural parts of the state; they probably are in the (politically overrepresented) rural parts of other states as well. Their economic interests surely do include full enrollment in their prisons; the prisons, the guards and the staff manning them become politically important. Draconian sentencing is in their interest, and in the interest of the police and prosecutors, as well; it keeps the machine well-manned.

So far, we rarely have the military taking up police duties, because we have the Posse Comitatus Act, which prohibits the military from police work. It's a little ironic that George W. Bush began talking about the repeal or modification of Posse Comitatus after the Katrina disaster and because of anxieties about the bird flu. It is ironic, because the Romans had much experience with the army acting as a police force: it was not a successful experiment.

When the Empire turned to the army for law enforcement, it often got more than it bargained for. Soldiers were sent out on missions to destroy bandit bands, but they were known to turn around and become bandits themselves, or to set themselves up as independent "tax" collectors, or to shake down wealthy merchants in a town under their control. They would also man checkpoints and extort "fees" from everyone passing by. Over time, government functions were increasingly militarized, which not only changed the style of the bureaucracy, but increased the power of the army in domestic politics. This was one of the reasons why figures like General Stilicho, General Apsur, General Ricimer and General Aetius became the most powerful people in government in the fifth century. Only Aetius was a Roman; the others were Romanized barbarians.

It is likely that Emperor Valentinian III murdered Aetius in the throne room because he was jealous of his power. According to some accounts, Valentinian was urged on by Senator Maximus. Once Aetius was out of the way it was easy for Maximus to get rid of the Emperor and be named Emperor in his place, but Emperor Maximus only lasted a few months, since Aetius was not there to prevent the Vandals from attacking Rome. Maximus was torn apart bodily by an enraged mob just before the Vandals sacked the city.

In the fifth century, torture of suspects was acceptable, and according to Claudian's panegyrics, even influential people were tortured under the rule of his patron's opponents: Rufinus and Eutropius. It is likely that if they did it, his patron, Stilicho, did so as well. Of course, the torturers could come to bad ends as well. Both Rufinus and Eutropius were torn to pieces by Stilicho's troops, while Stilicho was later (honorably?) beheaded in the amphitheater--when he lost favor with Emperor Honorius.

Torture is something we supposedly don’t approve of in our more enlightened era--at least that used to be the case. Now, George W. Bush insists that if the victim is suspected of terrorism and has the misfortune to be captured in one of our conquered territories, he'll keep his options "open." Even if he is a US citizen flying into some place like Chicago (like Jose Padilla), but has been declared an "enemy combatant" by the President, the government claimed he could be tortured, or mistreated in order to extract information, even though the President stated in Panama, "we don't torture."

Besides, by the government's redefinition of torture, even the CIA rarely tortured at all. The definition of torture was redefined to include only pain so intense it would signal system failure, i.e. death. So, pulling off a finger, or wiring and shocking the genitalia wouldn't qualify; the victim won't die from something "minor" like that. The President lobbied hard to prevent the Senate from passing anti-torture legislation, the justification being? We have to keep our options open when dealing with terrorists. Or people he says are terrorists. [Will the House Senate Conference keep the anti-torture language, or kill it?]

What does this do, keeping the option open? Does it stop terrorists? Of course not. Does it provide good information on other terrorists? Intelligence specialists say it does not, because information dragged out of the victim through torture is inherently unreliable.

Think about it for a minute. Imagine you are picked up, through no fault of your own, for terrorist activity (just being at the wrong place at the wrong time). It's the first you have heard of the charges against you; you know nothing about anything remotely related to terrorism, but despite your denials, you are thrown into a tiny cell without windows, with the light on all hours of the day and night. First of all you are kept awake by the "investigators," so that you are severely sleep deprived. Then they threaten you, but you don't know anything, so you can't tell them what they want to hear. So they beat you up, with the same result. So, they start to use more painful methods: what we would call torture, even if the Pentagon says it doesn't fit their definition of it. I know that if someone was torturing me and I knew nothing of what he wanted, but wanted him to stop, I'd tell him whatever I could think of, or whatever I figured out was what he was looking for. You want names? Sure, I'll give you names. Everyone I ever had a beef with, like my Town's Republican Superintendent, and his council members, and the head of the Planning Board, maybe, or maybe just the guy across the street. Or, if I'm really desperate, and they still don't stop, I'll start telling them the names of my friends. Now, I know they are no more terrorists than I am, but they are going to be picked up and interrogated as well.

Or they'll demand to know: "what are your plans? What are you going to blow up, and how and when and where?"

In early October, 2005, the Bloomberg New York City administration said it had received warning of a terrorist attack in the subway and that bombs would be carried in backpacks or baby carriages. For three days the whole city was in a panic; transit police were deployed in droves; anyone with a backpack or baby carriage was subject to search, BUT nothing happened. No bombs were found; no bombs exploded.

Where do you think that "information" probably came from? Since it had been discounted by some intelligence sources even before it was announced, it's likely that it came from a torture interrogation. So, in hindsight what did it do? It terrorized anyone and everyone in or near the city. It did not prevent terror, but it contributed to terrorizing the populace, which is what terrorists intend, isn't it? You could say in this instance (and in many others) that the torturers, the government and the terrorists were all working towards common goals: ensure that people are afraid, very afraid.

Keeping open the option of torture does make the government more powerful: it gains the power to literally terrorize its own people, since the President can also name anyone an "enemy combatant," at least according to what he claims are his powers as Commander-in-chief. That's sure to make people nervous about speaking out, or of converting to Islam, perhaps, or of defending others who have been accused. This is also why it is extremely important to the President to name people to the Supreme Court who are so deferential to executive power that they won't stop him as he aggrandizes more and more power, so that he begins to look more like a fifth century Emperor than a democratic leader of the 21st. It's probably why he nominated Harriet Miers to the Supreme Court to replace Sandra Day O'Connor; Miers was sure to defer to him on any claim of presidential power; who cared what her views on abortion might be. He figured it would be an easy nomination, he'd get what he wanted most and the selection would not be subject to the knock-down drag-out fight like the one for Alito. After all, the outcome for the latter would be much less certain. And yet Alito is also likely to be highly deferential to claims of executive privilege and powers held by the Commander in Chief; he just wasn't on Bush's personal staff. It's a wonder that Bush didn't name John Yoo, from the Justice Department's Legal Council; Yoo provided the legal rationale for the Commander in Chief holding powers that were superior to both Congress and international treaties. We will probably see more of his legal arguments in any case.

Why was crime probably increasing in the fifth century, i.e. what were the root causes of the instability in the countryside and in the cities and can we learn from this?

If you try to assess the reasons for criminal activity, beyond the undeniable fact that a few people are simply amoral for whatever reason, you have to look at social conditions and ask yourself: what is it in these conditions which will promote crime?

There are simple conditions that police have applied recently in the "broken window" theory. The theory states that if a building has broken windows and they are not replaced, vandals will break more of them, and soon may occupy the building, sell drugs, start fires, contribute to the decline of the whole neighborhood, and crime will rise. In New York City, the application of this theory: cleaning up the streets, insuring that damage to buildings was quickly repaired, and putting more police on the streets resulted in a quick and dramatic decline in crime of all kinds.

However, in the fifth century empire just the opposite conditions were taking place: whole cities were in decline, because trade was becoming more and more difficult, the dole, an hereditary right, was beginning to fail, or to be less than reliable, buildings were abandoned as the population fell, creating the equivalent of many "broken windows."

Yes, the population was probably falling; there are many reasons why. With the beginning of Imperial withdrawal from far-flung outposts like Dacia and Britain, there were fewer and fewer captives being brought to the cities as slaves, because there were no newly conquered territories. The last exception to this was caused by an invasion of Goths and others led by Radagaisus just at the beginning of the fifth century. His invasion collapsed in central Italy's Appenines, and the thousands of captives resulting drove down the price of slaves to absurd levels. But that was an exception Ordinarily, there were fewer provincials or foreigners coming to Rome, or even to Ravenna (the de-facto western capital in the fifth century) drawn by opportunities to make money, or to gain advantageous positions. Sidonius did come to Rome on behalf of his fellow Gallic landowners, and he did rise to the high office of Consul for a few short months, but he didn't stay. Other reasons for the population decline? Prices for everything were rising, a development that was aided by a government willing to issue more and more value-less silver-(coated) and copper coins (people were forced to receive them in lieu of government payments for goods and services). Opportunities were more and more limited, not only by law (most positions were hereditary), but also by a shrinking economy. Therefore there were fewer and fewer reasons to have children, and they cost more to raise, or rather, they cost more to raise than people could afford, since they were having a hard enough time simply surviving.

There are other reasons for imperial population decline as well; the civil wars of the third century had killed many and created much destruction, and the depredations of the barbarians in the fourth and fifth centuries also killed many people. At one point in accounts of Attila, he gloried in the destruction he wrought on the border areas in the Balkans, virtually destroying cities like Sirmium (near modern Belgrade), which had been an Imperial seat. He left the area a wasteland strewn by the bones of the slain. He also dismantled the city of Aquileia, stone by stone, so that it could no longer act as a fortress protecting the northeastern entrance to the Italian peninsula; it never rose again. While the Huns were particularly rapacious, there were other invading peoples like the Vandals, who also put whole populations to the sword. The more sophisticated barbarian tribes, like the two branches of the Goths (Visigoth and Ostrogoth) may not have killed so many, at least in the countryside, because they realized they could live off their labor the way the Senatorial class had done before them.

But, if you were a peasant in those times, would you welcome another child? There may not have been condoms, and there certainly was nothing like "the Pill," but people still had ways of preventing conception; they had every reason to try.

So, there were "broken windows" all over the place. Even in cities like Ravenna there were many ruins, despite gaining a new lease on life when Honorius withdrew there because it could be easily defended; in Ravenna there were ruins like the former imperial palace that had possibly been erected as early as Julius Caesar; it covered acres, and was supposedly a refuge for anyone fleeing government agents.

The point I'm making here is that there were many reasons for rising crime rates. The cities were largely policed by the color gangs, the countryside could be periodically disrupted by bandits, and bandits gained strength from every invasion, however slight. When invaders roamed Italy and Gaul, not all of them remained with their leaders; many simply hived off on their own to carry off whatever they wanted; many joined local bands. Also, battles always provided opportunities for picking up weapons.

The growth of crime in Italy and Gaul in the late Empire might have looked a bit like Iraq today. Terrorist groups, insurgent forces all take advantage of the turmoil and of the proliferation of weapons in Iraq, and if it hadn't been for the collapse of Saddam Hussein's army, and the omnipresence of American troops, there would be fewer weapons for the taking by terrorists and insurgents. You might ask what kept crime in check in Saddam's Iraq? The answer is: a strong-armed government and its secret police.

So, where does that leave the US in the 21st Century? We are not facing a declining population, yet; however our population is growing largely because of immigration. We are facing a polarization of income and wealth, however, so that the Latin American model--a few very rich who protect themselves against the many poor--may begin to look like our future. And, if we begin to face major economic difficulties caused by our cavalier monetary and trade policy, it is possible that immigrants will stop flooding to our shores, and then we, too, could face either slow population growth, or even population decline.

What is interesting about the conservative approach to crime, however, is that despite our very different situation now, the conservative approach to lawbreaking is much more similar to that of the fifth century than you might expect. It covers the range, from the county legislative candidate I mentioned earlier to George W. Bush presiding over the most executions as governor of Texas of any state governor, and not exactly hiding the fact. He didn't increase the number of Federal crimes subject to capital punishment only because his predecessor had already done that.

The more significant change in the US's approach to treatment of crime, however, during George W's reign has been how we view terror and terrorism, and how his judicial appointees view criminals. I am not going to go into a whole treatment of conservative jurisprudence on the rights of defendants versus the rights of victims, but there is clearly a tendency to "err" on the side of strict punishment, to remove defendant rights to adequate defense and appeals and to characterize demands for them as "trivial," or as "coddling" criminals. The result of our tougher approach to crime? Advocates will point to lower rates of crime, but that is most likely due to demographic factors, i.e. fewer youths of prime ages for criminal activity, and better policing. We can also look at recidivism rates, but there have been no studies I'm aware of that have looked at the effect of de-funding skills and education programs in prison. However, in a massive study by the Department of Justice, it does appear that rates of recidivism, that is re-arrest and re-conviction rates for offenders, has actually gone up from 1983, when the previous study was done, to 1994, from a rate of 62.5% to 67.5%. There was, however, a very careful study done on recidivism in Maryland, Minnesota and Ohio, comparing participants and non-participants in educational programs provided in prison. In all three states, rates of return to prison were lower for participants, and their legal earnings were somewhat higher, differences significant enough for the authors to say that the education programs paid for themselves.

There is another aspect to our whole prison complex, and that is the political results created by the extraordinary number of people sent to prison (over two million and counting, the largest prison to population ratio of any industrialized country). The results became apparent to the nation when Jeb Bush in 2000 directed the Florida Elections Commission to purge the rolls of convicted felons, not only of Florida convicts, to whom the state denies voting rights, but to purge it of felons from other states many of whom do not deny voting rights. It was the first time many people became aware of the political effect such disenfranchisement entailed; large percentages of black males, who would have voted disproportionately Democratic, were denied the vote. It was a way to continue Jim Crow politics with a new spin, but it was also one part in the complex puzzle that made it possible for the selfish class to consolidate power in George W. Bush and a Republican Congress.

And then there is the question of how our legal system has been changed by the "War on Terror." If terrorists can be put away indefinitely and made inaccessible in hard to reach places like Guantànamo, then what happens to our civil rights, like our right to an adequate defense? This question becomes even more relevant when defense lawyers themselves are convicted of aiding terrorists when they are acting in their capacity as defense lawyers. Lynne Stewart, defending the blind cleric Sheik Omar Abdel Rahman, was convicted of providing material aid to terrorism (and faces 30 years in prison), because she contravened the Special Administrative Measures (SAMS) placed around her client, and made public some of Rahman's statements; she claimed she publicized them as part of her defense strategy. As the cited article concludes, "Her conviction creates a grave danger of chilling legal representation for accused terrorists due to the lack of clear guidelines and notice regarding the application of criminal statutes to the lawyers who defend them."

"Chilling." It is a chilling view of the world that our leaders are trying to create, one in which "either you are with us, or you are against us," in which there is only black and white, good and evil, in which criminals are "others," and dissenters are unpatriotic at best, and maybe terrorists. You don't have to round up very many people arbitrarily, nor detain many people for indefinite lengths of time without charges, nor spirit them off through "extraordinary rendition" to countries that really torture, for people to become afraid of their government. That, I think, is the ultimate intent, as it was in the fifth century, of the punitive approach to both crime and terrorism: to make people fearful of government and of authority more generally. The hard punishment approach doesn't stop crime, and without any other international policy, such as humane development aid and restructured trade, it won't stop terrorism, either. But it will make people fearful.

Fearful people do not rebel. They become passive and easily manipulated. A fairly widely accepted explanation for the great revolutions of history is that there were rising aspirations among the people who became revolutionaries, that the people who revolted were somewhat better off than they had been and that those expectations were dashed by recent economic or political reverses. But if people are beaten down, they do not revolt; if they are persuaded that life is not going to get better, and that sticking your head up is going to get it blown off, then they will submit. Maybe this is one of the reasons why the opposition Democrats have been so timid, why the peace movement has so far been unsuccessful; after all, there is an ongoing "War on Terror."

Which brings us to the Patriot Act. Reams have been written about it, and in the Congressional debate to renew it, more criticism has surfaced. There are many aspects to this complicated act, but a quote from ACLU, staff attorney Jameel Jaffer puts it in perspective: he was speaking of the National Security Letters that are now used routinely to sweep up information from all of us. He mentions "the profound chilling effect" of this kind of surveillance and goes on to explain: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits [al-Jazeera's Web site] or who visits the Web site of the Federalist Society."

As I pointed out before, there were no popular rebellions in fifth century Rome. People were too scared of authority, however dysfunctional it had become. What will it take for most Americans to stand up, to recognize oppression and government terror when they see it?

Perhaps it will be the revelations of lying by people in power, the revelations that, no, Saddam had not tried to re-establish a nuclear program, or had links to al Qaeda, and that those who said he did were not only lying, but had ulterior motives. Or revelations that torture at places like Abu Ghraib was actually caused by policy-making at the highest level.

Perhaps, it might be something smaller, like people realizing that something as simple as a bail loan fund program, something humane, can actually help reduce crime more effectively than imprisonment, and even can save taxpayers money, and that the people who inveigh against "taxpayer's money putting criminals on the streets," are either extremely shortsighted, very limited in their view of the world, or have ulterior motives.

But none of these realizations can happen if people are only fed misinformation by the news media, if all they see are the stories picked under the criterion: "if it bleeds, it leads." Then they will only be scared the more, of individual law-breakers, and of sticking their necks out, instead of resisting the overweening, corrupt and corrupting power of the government.

In the fifth century, the wealthy thought they could just continue to lord it over their underlings once the collapse came, that they could charm and buy their way in the barbarian kingdoms. The Dark Ages were not kind to them. The corporate class today appears to think it can preside even after a collapse, perhaps from afar, "living in pleasant places anywhere in the world." The Dark Ages that could ensue, however, would not be kind to them, either.