The Olde Crimes of Dueling and…Bastardy


Dueling was still a reportable offense in Depression-era America

Abortion…fornication…bastardy…buggery…sodomy…miscegenation…seduction — all were reportable sex offenses apart from rape in the America of 1930. We know this from a fascinating volume that turned up in the IPA Collection that we are now digitizing for widespread academic and scholarly access.

Before 1930, the nation had few reliable ways of assessing the threat posed by crime — a menace that Prohibition would soon magnify to epidemic proportions. But that year the International Association of Chiefs of Police (IACP), founded in 1894, began collecting crime statistics from its members to hand over to J. Edgar Hoover’s Bureau of Investigation (it wouldn’t be the Federal Bureau of Investigation until 1935) for what became the highly-regarded Uniform Crime Reporting Program. https://www.fbi.gov/about-us/cjis/ucr/ucr

There was, however, one big hitch. Back in 1930, states had wildly varying statutes defining crimes and their various degrees. Before a national census could be compiled, there would have to be a consensus of what constituted reportable crime.

That daunting task was overseen by (of course!) Bruce Smith, America’s leading police expert from (of course!) the Bureau of Municipal Research and successor Institute of Public Administration. And those acknowledged as assisting included (of course!) Smith’s longtime mentor and associate, Luther Gulick. Their efforts were codified in the aforesaid volume called “Uniform Crime Reporting: A Complete Manual For Police.”

uniform cover

This was the second edition of a book that had first appeared the year before and was included in the extensive IPA library acquired by Baruch College, along with thousands of files from the Bureau of Municipal Research and personal papers of Gulick.

uniform cover page2

So what does it tell us?

The effort to compile a reliable set of national crime statistics goes back to at least 1871 when the National Police Convention met in St. Louis. Foreign countries like France, Austria-Hungary, Sweden, Holland, Denmark and Turkey “submitted data which were considered of value” while an inquiry to U.S. states “yielded practically nothing.” Little happened over the next half century but in 1927, the IACP formed a Committee on Uniform Crime Records. Still, police departments balked at submitting data, fearing that a rise in crime figures would be held against them. Advocates noted that health authorities were not held liable for outbreaks of disease, and by 1929 a system for uniform reporting was outlined in the first edition of the manual. The Government would furnish the monthly forms “with return envelopes requiring no postage,” Hoover wrote in the Preface, adding, “the cooperation of peace officials is earnestly requested.”

Smith and IACP grappled with the thorny problem of standardizing the counting and definitions of crime. Most measurements of crime started with people arrested. But what about unsolved crimes? The book suggests the benchmark: offenses known to the police. One thief could burglarize a dozen apartments, or a dozen thieves could burglarize one. How to count those? How many crimes were “cleared by arrest?” A single arrest could solve dozens of crimes, while dozens of arrests might solve one. How many crimes were solved by convictions? The police usually didn’t know — the judiciary kept those records. What about crimes in the rural countryside? Who kept those figures?

And what was a crime anyway? The states each had complicatedly nuanced legal definitions of murder and manslaughter, rape, robbery, assault and larceny. They were widely divergent on felonies and misdemeanors. In Delaware, felons were usually whipped — but misdemeanants were often punished more harshly, with longer imprisonment. New Jersey had no felonies — only misdemeanors and high misdemeanors. Possessing burglar’s tools was a felony in half the states, a misdemeanor in the others.

The description of crime and punishment circa 1930 was eye-popping. Abortion was a misdemeanor in Nebraska and Oklahoma, a felony almost everywhere else. Seduction, widely punished as a felony, was only a misdemeanor in Pennsylvania and South Carolina, as was sodomy, elsewhere usually a felony. Indecent exposure was a felony in Oregon, a misdemeanor in most other states.

In Arkansas, Colorado, Oregon, Pennsylvania  and Vermont, “concealing the death of a bastard,” a child conceived out of wedlock, was a felonious homicide. Seventeen states, including New York, also punished as felonious homicide the killing of a person in an out-of-state duel. Challenging someone to a duel, “posting as a coward,” and serving as a second or surgeon at a duel were felonies almost everywhere.

In Montana, it was a felonious homicide to fire a gun or missile at a stagecoach, and a felony to exhibit a motion picture of a train robbery.

The dividing line between petit and grand larceny was $5 in Maryland (worth $69.78 today) and $500 in Rhode Island.

“Indecent liberties” were considered harshly punishable as rape in New York and Connecticut and a dozen other states and territories. (The Philippines and Hawaii were still territories then.) So was “publishing the name of a woman attacked” in Florida and South Carolina. “Assault with intent to commit the infamous crime against nature” was a felony in New Jersey, Nebraska, Nevada and Utah.

It Oklahoma, it was rape to have sexual intercourse with a woman “under belief the accused is her husband, such belief being induced by artifice practiced by him…”

Other sex crimes on the books in various states that the IACP recommended reporting as lesser offenses, so-called Part II Classes, included: abduction and compelling to marry, adultery and fornication, bastardy, bigamy and polygamy, buggery, incest and marriage within prohibited degrees, intercourse with an insane, epileptic or venereally diseased partner, miscegenation, prostitution and sodomy.

Other such lesser offenses included lotteries, “riot, rout or affray”, blasphemy, vagrancy, desecrating the flag, “displaying red or black flag,” violation of quarantine and prize fights.

It’s a wonder that Smith and the IACP managed after all to compile the reporting forms that today constitute the widely respected Uniform Crime Reporting Program. But even now, the FBI says, it is “undertaking a  wholesale redesign and redevelopment of the system.”


Sing Sing, 1916

Sing Sing Prison Watch

modern day artifact: timepiece celebrating America’s onetime “Bastille on the Hudson”

What could be more timely? Out of the files of the IPA collection pops a study of New York State’s prisons 100 years ago. One striking revelation: Over the past century, the state’s population behind bars has risen more than tenfold — from under 4,900 to more than 53,000! (And that’s not counting the nearly 10,000 now in New York City lockups).


How timely? Wednesday’s New York Times headlined the nation’s mass incarceration paradox, with record numbers of prisoners serving longer terms even as crime dipped to historic lows. http://www.nytimes.com/2015/08/12/upshot/how-to-cut-the-prison-population-see-for-yourself.html?_r=0&abt=0002&abg=0

It didn’t happen by accident. The 220-page typed report dated July 1916 by the Bureau of Municipal Research, makes for often curious reading. For example, it finds little fault with prison conditions (although we know from our own research that harsh scandals abounded) while investigating how the state might reap more income from prisoner labor.

Here’s a sample: “…in fact, the health of the prisoners receives more consideration than does that of the average man outside the prison…”

The (to us) strangely stilted conclusions — uncharacteristic of the usually rigorous and unsparing surveys by the Bureau — might be laid to the pro-disciplinary tenor of the times or the proclivities of the writer, one Mr. Lindholm, and his BMR superiors at the time. No fault could be laid to Luther Gulick, then a Columbia University post-graduate newly enrolled in the BMR’s Training School for Public Service under Charles Beard.

The 1916 report looked at New York’s flagship penal institution and death house, Sing Sing, up the river from Manhattan, as well as Auburn, Clinton at Dannemora, Great Meadow north of Albany, and eight other reformatories, prison farms and hospitals.

Notably, Sing Sing’s population was 1,538 on Sept, 30, 1915; a century later it held about 200 more. Meanwhile the national homicide rate dropped by about half, to 4.5 per 100,000 in 2013, and an even lower 3.3 in New York State. http://repository.cmu.edu/cgi/viewcontent.cgi?article=1137&context=hsshonors



aerial view of Sing Sing about 30 miles north of New York City on the east bank of the Hudson

“Much thought is given by the prison authorities to providing physical necessities or what may be called the ‘creature comforts’,” begins a section on “Care of Prisoners.” It goes on to aver: “During the past two years many improvements of this kind have been made.  The food is fair and luxuries may be purchased by the prisoners; the clothing is inconspicuous, and in most cases of good quality; the beds are comfortable; hours of rising and retiring, and, in most cases, work and play, are such as may be adapted to physical health  — in fact, the health of the prisoners received more consideration than does that of the average man outside the prison.”

Indeed, the report continues, prisoners are more distressed by psychological factors than physical ones. “In this respect much is being done to to interest the prisoners and take their minds away from themselves and their past — also to cause them to take an optimistic view of life.” As for problems, one of the biggest, it says, are resentments over allowing wealthier prisoners or those earning more in the prison shops to draw on their deposits for luxury purchases, while others are turned into their servants.

Oh, and another problem, the report concedes, are the cells — “veritable dungeons.”

A typical cell was only three and a half feet wide and seven feet deep; for two men it was five feet eight inches wide and seven feet deep — “unpardonable and unnecessary,” the report chides. And yet, it asks, what can the warden do “when several hundred more prisoners are sent to him than he has cells”?

But the cells were reported in good condition, with no signs of vermin (although they seemed to have been suddenly cleaned to remove “undesirable conditions” uncovered in earlier inspections).

To our eyes, the report glosses over wretched conditions at Sing Sing where no fewer than nine wardens came and went from 1913  to 1916. One was the great penal reformer Thomas Mott Osborne who had committed himself  for a week to a cell in Auburn to test conditions, and later, as warden of Sing Sing, was even more repulsed by what he found there, cages sunk in damp gloom with no plumbing — prisoners used slop buckets that they emptied in the Hudson on the way to breakfast. “Unspeakably bad,” Osborne pronounced them. “To call them unfit for human habitation is to give them undeserved dignity. They are unfit for pigs.”

Osborne’s fate was to be framed by a spurious sodomy charge and hounded out of Sing Sing. He collapsed and died on the street in Auburn in 1926 at the age of 67 –clad in a mysterious disguise.


Thomas Mott Osborne (right) served two terms as warden of Sing Sing and was pilloried for his reforms

His reformist mantle would be taken up by Lewis E. Lawes who took over as Sing Sing’s warden in 1920 and served until 1941, campaigning against the death penalty even as he reluctantly carried out 303 executions in the electric chair, earning accolades as America’s greatest penologist. Also outraged by the abusive conditions he found there — four years after the BMR report — Lawes opened Sing Sing to entertainment, including first-run Hollywood movies, and sports, particularly baseball and football: Sing Sing’s “Black Sheep” were said to play in the “Big Pen” conference.


Warden Lewis Lawes (standing center) with his Sing Sing baseball squad and daughter.

(Here’s a shameless plug:)


But back to the 1916 BMR report. Almost half the text is given over to a study of prison industries, and how the shops could be made more productive, to the inmates and the state. Prisoners produced official stationary, beds, bedside tables, school desks, brooms, mats, blankets, towels, shoes, stockings, ash and rubbish cans, and manhole covers (in the days before they were outsourced to India).

But what was the purpose? To train inmates in an honest trade and earn them modest stipends for their luxuries and a nest egg upon their release? Or to gain revenue for the state? No one seemed sure.

Either way, the report said, the system was dysfunctional. The production was pitifully small. “It is perfectly safe to assume that the health of the prisoners would not be impaired if their tasks were trebled. It is also safe to assert that the present method induces a ‘loafing diathesis’ that is destructive to all healthy impulses.”

What was the answer? The report offered two possibilities: “Some form of compensation acceptable to the prisoners” or “brute force.”