The prosecution of those behaviors we commonly call vice strikes me as pointless. Consider, if you will, the war on drugs. Prosecutors can lock up drug peddlers by the prison full, but no sooner are one set of dealers taken into custody, than another set appears. The demand for some products is so high that sellers will always be found. That’s just the way it is.
Theodore Roosevelt learned that the hard way during his brief tenure as a police commissioner in New York City during the 1890s. Roosevelt decided to try to shut down prostitution and to enforce blue laws prohibiting Sunday liquor sales. He waged a glorious war, and then beat a hasty retreat out of town after a few battles that left him more bruised than triumphant.
Roosevelt’s tenure on the police commission is the subject of Richard Zacks’ new book, Island of Vice: Theodore Roosevelt’s Doomed Quest to Clean Up Sin-Loving New York (Doubleday, New York, 2012). I read the book as part of trial preparation for a case involving a current spasm of prosecutorial virtue: I represent a woman named Anna Gristina, known to the tabloids in New York as the "Soccer Mom Madam," and held for months on a $2 million bond in Rikers Island. What is it about sex that makes the city, or at least law enforcement, so crazy? Let’s face it: If selling sex is against the law, the city island should be condemned as a nuisance.
Zacks didn’t really provide answers to these larger questions. His focus was on one brief moment in time. Young-man Teddy came roaring into town after a stint in Washington as a civil service commissioner. His appointment to the police commission gave him a different and more visible stage. Roosevelt made the most of it, allying himself with reform politicians in the red-hot war over control of city government against the forces of Tammany Hall.
I admire Roosevelt. Did New Yorkers like to drink on Sunday? Never mind, let’s close the beer halls. Were cops accepting graft to permit brothels to thrive? Let’s clean out the police department. Was a fellow commissioner in the way of Teddy’s vision of what was good and true for New York? Then try to force him from office. All the while, Roosevelt kept his options open on the national scene, writing constantly to Massachusetts Senator, and Brahmin, Henry Cabot Lodge. "Life," as Roosevelt was fond of saying, "is strife."
Although Roosevelt succeeded briefly in making it difficult to sell liquor on Sundays, in the end, the beer halls reopened and Roosevelt was treated by city politicos as a radioactive crank. His own party, the Republicans, sometimes barred him from speaking on behalf of candidates for office: Roosevelt was just too divisive a figure. Yes, he was correct in a punctilious and tedious way about enforcing the letter of the law. Blue laws against the sale of liquor on Sundays were on the books, the product of a state legislature reflecting a largely rural state. Roosevelt’s determination to force the police to enforce the law is almost laudable.
Zachs is at his best recounting the hearings and trials that pitted Roosevelt against long-time police officers and captains. It should be a mandatory read for any young lawyer embarking on a career in municipal law. Roosevelt forced out William Devery, accused of turning a blind eye toward brothels and thereby earning a fortune. But Devery won his job back in the courts, and later became police chief. New York got the chief it wanted, effectively driving the heady moralist out of town.
One gets a sense of the rough and tumble world of the courts in that era through the following anecdote:
"Devery walked up and down the courthouse corridors, smoking long black cigars and talking to friends.... At midnight, the judge asked an officer to inquire whether the jury had reached a verdict; they had not. He ordered the twelve men locked in the small jury room, to sleep on the floor or chairs, with deliberations to resume at 10:30 the next morning."
A judge doing likewise in our time would no doubt face impeachment proceedings.
Roosevelt carried a big stick and swung it hard and often as a police commissioner. But he neither closed the brothels, nor stopped the sale of liquor for long. Vice isn’t so much a sin that invades the human spirit as it is an expression of ordinary need. Railing against rum, women and good times is really the aberration. We call prostitution one of the world’s oldest professions for a reason. It is the intermittent moralists who flare emerge briefly and often with violence that require explanation. Once folks calm down and get the moralism shaken out of them, life, and ordinary vice, goes on.
I can’t say Zach’s book taught me much about the prosecution of vice in New York City. But it was nonetheless a great read. He tells a story well. Teddy Roosevelt is always larger than life; he was a hurricane of a man, given, one might say, to moralistic excess. I wonder, really, why we don’t call such excess vice? If desire is a crime, then who is not a criminal?