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This is a copy of a review of Uncle Sam's Policemen: The Pursuit of Fugitives Across Borders, by Katherine Unterman (Harvard University Press, 2015), H-Diplo, 2016.
Also online from the journal, with a response from the author.
Please cite as: Deflem, Mathieu. 2016. Review of Uncle Sam's Policemen: The Pursuit of Fugitives Across Borders, by Katherine Underman. H-Diplo, XVIII(4). Online: https://networks.h-net.org/node/28443/discussions/145539/h-diplo-roundtable-xviii-4-uncle-sam’s-policemen-pursuit-fugitives#_Toc462522863.
In Uncle Sam's Policemen, Katherine Unterman traces the history of the legal regulation of extradition concerning the rendition of fugitives from justice involving the United States of America. Becoming to a historian, Unterman has written her book chronically, but rather than following certain periodizations, her narrative reveals themes, problems, and shifts in how legal rendition has been organized from about the middle of the 19th century until the advent of World War II.
Unterman's book begins with highlighting the role of technology in enabling an ever increasingly smaller world during the 19th century. Advances in technologies of transportation affected the nature of criminality and law enforcement alike as international movements across borders became more possible and likely. Under these circumstances, national laws had to be applied to essentially transnational phenomena of crime. The newly emerging crimes in the United States Unterman argues, were not only increasingly international but also different in other qualitative respects as they were intrinsically tied up to developments of modernization and urbanization. International fugitives were typically far removed from the violent offenders of old as they were thought to be cunning in illegally exploiting economic opportunities, such as through embezzlement.
Most of Unterman's focus in this book is on extradition as the legal instrument that regulates rendition, i.e. the transfer of a criminal suspect across jurisdictional borders. Extradition treaties with the USA developed very slowly after 1840, when there were none, through the turn of the century, when the United States had signed some 58 treaties with 36 nations, and thereafter when the international extradition system expanded greatly. The expansion of extradition treaties changed how the United States related to and was conceived of in relation to the rest of the world.
Unterman unravels the history of extradition on the basis of an analysis of legal rulings and selected case studies. The majority of cases, not surprisingly, pertain to Canada, but Mexico and to some extent even Europe were involved as well. Most fugitives from American justice were on the run for having committed economic crimes. Their policing across borders provided a role in the protection of capitalism, although arguments of morality were used as well to highlight the justice concerns in bringing rule violators to trial. The primary role in international policing in the United States in the 19th century was fulfilled by private detectives, especially the famous Pinkerton National Detective Agency. Such detectives could legitimately pursue a fugitive from justice across the border, but were legally not allowed to engage in arrests on foreign soil. Cleverly, private detectives would lure fugitives back to the United States on the basis of false promises.
In 1886, the U.S. Supreme Court in Ker v. Illinois ruled that a fugitive from justice returned to the United States could stand trial even if the return was made possible by a kidnapping. Involving the abduction of a fugitive by an agent of the Pinkerton agency on behalf of the federal government, the case showed how non-state actors involved with formal policing duties effectively blurred the distinction between public and private law enforcement. Inasmuch as international police work with US involvement was in these early years developed, the Pinkertons as a result came to be equated with American police even though they mostly acted on the basis of private clients.
In the early part of the 20th century, more and more extradition treaties were passed, and the notion came to be defended more and more resolutely that there should be no place to hide from the increasingly longer arm of American law. Unterman suggests that developments in technology and intelligence work had a role in this ever expanding international system of law enforcement, but also that there was an imperial logic at work. Additionally, the borders of the United States itself were increasingly closed as the notion of the new world as a nation of asylum waned. While the formal notion prevailed that fugitives could not be returned for political crimes, concerns over disorder and crime increased as well and often interfered with the traditional ideal of the United States as the land of the free. Anarchist and other radicals could and were therefore deported as a form of camouflaged extradition as long as they could be connected to criminality.
As the 20th century unfolded, extradition and international police work moved steadily towards greater participation by federal government agencies, especially the Federal Bureau of Investigation (FBI). Founded in 1908 as the Bureau of Investigation, the agency especially took on more and more powers after the appointment of J. Edgar Hoover as Director in 1924 and the combined impact of the gangster era and the reform movement of the 1930s. From then on, developments continued steadily in the direction of an ever-increasing expansion of international police work to the point, Unterman argues, that in the post-9/11 world the United States government has created an empire of control and law enforcement that at times even positions itself above the law.
Reviewing the merits of Unterman's historical work, my ideas here are expressed from the background of my expertise in the sociology of law and social control, especially the historical conditions of international policing and the origins of international police organizations. As such, it will cause no surprise that my own take as a sociologist is more theoretically inclined than is expected of a historian like Unterman. The obvious differences in perspective and method between the historian of society and the historical sociologist need not be recounted. However, Unterman does provide food for thought on the explanatory mechanisms of what drives the internationalization of crime and its policing, specifically by highlighting the role of technology, modernization, urbanization, and capitalism. However, no elaborate arguments are made on how these issues played a role in advancing the development of extradition. Instead, Unterman posits correlations, such as between the monetary nature of international crimes and their policing by private detectives. The author makes similar arguments about the role of international extradition in advancing American power in terms of a global empire. A comprehensive theory of the relation between economy, politics, and law must underlay such claims, but Unterman does not develop it in this work.
The companion side to Unterman's historical outlook is her focus on the legal dimensions of extradition. Thus, we learn much in this book about the development of the laws and constitutional regulation of extradition treaties and their assumed repercussions for the relevant practices of private and public detectives. Yet, a very strong assumption is hereby implied by Unterman but never explicitly addressed nor clarified as she assumes a rationality model based on an efficient calculation of means to account for the relation between international criminality and its enforcement. In Unterman's perspective, the notion is present, though not presented, that detectives not only act on behalf of wealthy clients but also do their work because of monetary considerations, that laws are made as instruments necessary to effectively respond to the increasing threat of international crime, and that detective agencies are in their international work guided by whatever legal provisions that are in place. These are very strong claims that must be formulated an analyzed more precisely.
At the very least, one can ask questions that might lead to answers that would not be supportive of some of Unterman's implied claims. Much sociological work, by example, has been developed to show that the construction of law in the form of legislation and judicial decision-making serves many purposes, not all of which are tied to immediate and explicitly stated legal goals, but that can also be of a political of cultural nature and even be influenced by purely situational factors. The implied rationality model in Unterman's work can also be questioned from an institutional perspective of policing. In my own research, for example, I have shown that international police work is guided by internal dynamics of highly bureaucratized organizations that become independent from their political roots and can act outside of the constraints of legal provisions. [1] Absent such a clearly defined organizational focus, Unterman's work occasionally lacks clarity about the relevant actors, whether they are individuals, legal institutions, political offices, and/or police organizations. Most strikingly, the author repeatedly speaks of 'Americans' without a specification of who these might be, whether they are a specific set of powerful and influential actors or refer to the majority of the American citizenry. [2]
A different history will be presented of cross-border policing when the focus of the social-science scholar of policing shifts from a purely legal and doctrinal plane to the level of institutions that enact international police practices on the ground. In this respect, a relatively straightforward illustration related to Unterman's research is the fact that international police work in Europe was more developed during the 19th century than in the United States not only because of the proximity of states on the European continent, but also, and more importantly, because Europe's nations had well developed and gradually more and more bureaucratizing systems of central and national police agencies. Such conditions of advanced professional law enforcement did not exist in the United States until well into the 20th century. In other words, an institutional history must at least complement, and might possibly alter the picture presented in, Unterman's legal history.
However, regardless of any theoretical issues and differences in perspective, much useful information is presented in this book. As an archeology of the legal history of extradition in the United States, Unterman's work surely has much to offer, not least of all because the multiple histories of aspects of law enforcement, especially on an international scale, are still not widely known among historians and social scientists with a more generalist or different focus. No scholar of society, regardless of specialty, can legitimately get away with not knowing about the usual big issues of politics and economy, but, even in our post-9/11 world, an ignorance about law enforcement is still all too common and all too routinely excused. For excavating important elements in the history of international policing as well as for its attention to historical detail, I therefore welcome Unterman's engaging book.
Notes
[1] Mathieu Deflem, Policing World Society: Historical Foundations of International Police Cooperation (Oxford, UK: Oxford University Press, 2002); Mathieu Deflem, “Bureaucratization and Social Control: Historical Foundations of International Police Cooperation,” Law & Society Review Vol. 34, No. 3 (2000), 601-640.
[2] By example, Unterman writes that changes in transportation evolved such that "Americans exhibited a novel style of geographical thinking" (p. 7), and that increasing concerns over terror brought about that "Americans loosened their practice of protecting individuals" (p. 161).
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