Student Handbook of Criminal Justice and Criminology

John Muncie, David Wilson

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135334338
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Written by some of the leading criminologists in the country, this new title is a 'one-stop shop' for those who teach, study or are interested in criminology and the criminal justice systems of the UK.

PART 1
APPROACHING CRIMINAL
JUSTICE AND
CRIMINOLOGY

CHAPTER 1
CONTEMPORARY CRIMINOLOGY, CRIME AND
STRATEGIES OF CRIME CONTROL¹

John Muncie

SUMMARY

This introductory chapter is designed to illustrate the linkages between criminological theory and some major criminal justice strategies. It does so in order to make the important point that theory matters. Most criminal justice policies are, either implicitly or explicitly, justified by and grounded in particular theoretical formulations. In turn, every theory put forward to explain crime is premised upon a variety of beliefs about the nature of criminal behaviour (and human nature) and offers potential solutions. In certain circumstances, crime control policies and strategies change as theorising about crime changes. However, we should not expect any criminal justice system to operate solely through any one philosophical principle or theoretical position. Rather, we are more likely to encounter the simultaneous existence of a number of crime control strategies working alongside, or against, each other. Similarly, we should remain mindful that certain policies may be based on erroneous theoretical connections and are driven as much by political motivation as by theoretical purity or scientific assessments of ‘what works’.

The chapter introduces and discusses some of the major philosophical positions on crime control and explores their theoretical underpinnings. For ease of reference it does so under the generic headings of punishment, treatment, prevention and tolerance:

Punishment

Classicism and deterrence

Conservatism, incapacitation and retribution

Treatment

Individual positivism and rehabilitation

Prevention

Sociological positivism, left realism and social reform Rational choice theory and situational crime prevention

Tolerance

Social construct theory, diversion and non-intervention

Critical criminology, decarceration and abolition

From the outset, it is important to register that none of these positions is likely to be found in pure or uncontested form. Criminal justice is a far more complex and hybrid affair. In most criminological literature, criminal justice is viewed as a technical or policy issue rather than as a philosophical or theoretical one. In contrast, this chapter is designed to reveal how a critical appreciation of crime control philosophies and strategies is a prerequisite for understanding, explaining and challenging the current bewildering array of public and private responses to crime.

KEY TERMS

Positivism; neo-conservatism; abolitionism; just deserts; labelling; proportionality; tolerance; punishment; treatment; rehabilitation; deterrence; retribution; restorative justice; relative deprivation; welfare; crime control; classicism; rational choice; determinism; prevention.

PUNISHMENT

There would seem to be a near universal human belief that society has the right to react against those who transgress its behavioural borderlines. The ‘common sense’ response seems to be castigation and punishment. Punishment, however, has no rigid boundaries. Lacey (1988: 15) warns us that:

There is no one neat, polished final justification for punishment: there are only arguments for and against it, which apply differently not only within different political systems but also according to the social and economic conditions holding in different societies in which the institutions exist.

Nevertheless, three essential ideas seem to be present in most modern definitions of punishment:

• It is deliberately administered by state officials on an individual who is legally defined as being subject to the laws of that state.

• Because it involves intentional deprivation and suffering, it requires some normative justification that the pain/deprivation/suffering is warranted.

• Its primary purpose is usually represented as being the instrumental one of reducing or containing rates of criminal behaviour.

The dominant philosophical justifications for punishment are typically to be found in incapacitation, retribution, just deserts and deterrence.

Classicism and deterrence

Understanding crime and its causes

A deterrent model of crime control was first formulated by the 18th century classical school of criminology. According to the classical school, crime is rational, self-interested and freely chosen behaviour. Human behaviour is shaped by the pursuit of maximum advantage, pleasure and happiness and the avoidance of pain, unhappiness and costs. Each individual can decide what is ‘pain’ or ‘pleasure’. In line with a social contract theory of society, individuals rationally determine what is in their own self-interest and act accordingly. For classical criminology, the result of individuals seeking to satisfy their instrumental or expressive desires can impinge on the interests and, more importantly, the rights of others. It thus developed the utilitarian principle of ‘the greatest happiness of the greatest number’. The primary purpose of criminal law is to protect the well-being of the community, not to punish offenders. Laws protect the community when they deter the commission of crime and minimise the severity of crimes committed. Hence, a well-ordered state would construct a criminal justice system that would persuade people that law-abiding behaviour was in their best interests. From these premises came the notion of psychological hedonism — we calculate pleasures and pains in advance of action and regulate our conduct by the results of such calculations. As a result, classicism constructs a penal philosophy based on the precise calculations of rational people (Beccaria, 1764).

Policy implications

The logic of classicism is that the individual who has committed a crime will find the punishment so unpleasant that the offence will not be repeated. In the long run, the individual’s punishment serves a general deterrence. As a result, classicism looks to the prevention of future crime.

Deterrence is based on the premise of affording rational, self-interested individuals good reasons not to commit crimes. Since the punishment must be one that can be calculated, it must be the same for all individuals, regardless of age, mentality, social status or gender. It is a theory premised on equal treatment for all. Individual differences stemming from personal experiences or social factors are denied or ignored. It is the act that should be judged, not the individual. Clemency, pardons and mitigating circumstances are excluded. To do otherwise would violate the equal rights of all individuals. The punishment should fit the crime, not the individual (Roshier, 1989):

• the pain of possible punishment must exceed the potential pleasure of committing an offence;

• the less certain the punishment for a given offence, the more severe it should be; conversely, the more certain the punishment, the less severe it should be;

• punishment should avoid the evils of over- and under-punishing offences;

• punishment should be public, prompt and certain rather than necessarily severe. Punishment should publicly symbolise the offence, so that if a crime is committed the offender can be sure that punishment will follow; and

• preventing future crime is more significant than punishing past offences. Prevention requires that laws should be clear, simple and universally supported.

Such principles had a considerable impact on the reformation of the criminal justice system across Europe and the USA in the latter half of the 18th century and they continue to do so largely in the form of neo-conservative and rational choice theories (see below). Deterrence assumes two major forms, both of which are designed to make it clear that crime does not pay. General deterrence is aimed at controlling entire populations, whilst individual deterrence is targeted at the known offender. Its ultimate sanction is the death penalty. However, legislators have also found that insistence on the principle of strict proportionality could not be sustained for all. Groups such as children may not be able to fully calculate the ‘pleasures and pains’ of their actions and should therefore be excluded from the full rigours of the law. Neo- classical principles of punishment, although retaining the core doctrine of free will, came to acknowledge that proportionality should be adjusted to take account of individual circumstances. In this sense neo-classicism paved the way for positivist discourses about the causes of crime and the treatment of offenders (see below).

Conservatism, incapacitation and retribution

Understanding crime and its causes

Traditionally conservatism has typically regarded crime as a violation or disturbance of the divine or moral order. It also rests primarily on the doctrines of free will and rational action. Like classicism, it assumes that human beings are free to choose between alternative actions and therefore deliberate wrongdoing should be requited by appropriate penalties. Contemporary conservative (or what has been termed neo-conservative) theorising on crime draws on this heritage but is also heavily informed by notions of moral culture, moral decline and parental permissiveness. Amongst its formative ideas are the following propositions:

• The search for the causes of crime in terms of predisposing social factors (deprivation, unemployment, poverty) is misguided because improvements in social conditions in the 1950s and 1960s did not herald a decrease in crime, but rather an increase (Wilson, 1975).

• Crime, essentially, has biological roots which are not amenable to individual treatment or social engineering. Wicked people exist; nothing avails but to set them apart from the innocent (Wilson, 1975). Thus, it is impractical to try and ‘cure’ crime (Wilson and Herrnstein, 1986).

• Individuals commit crime through rational choice. Lack of self-control and a lack of individual responsibility are at the root of all criminal responsibility (Gottfredson and Hirschi, 1990).

• Crime is a symptom of declining moral standards epitomised by 1960s permissiveness, welfare dependence, liberal methods of child-rearing, family breakdown, illegitimacy, single parenting and the lack of effective means of discipline. Collectively, these factors have been instrumental in the development of a dependent, demoralised and dangerous ‘underclass’ (Murray, 1990).

Neo-conservatism stresses the need for strong government and social authoritarianism in order to create a disciplined and hierarchical society in which individual needs are subordinate to those of the ‘nation’. For neo-conservatives, most forms of mitigation act simply to absolve individuals of responsibility for their actions and offer a ‘culture of excuses’ for criminality. James Q Wilson (1975: 41-42), for example, argues that criminality is accounted for by the existence of rationally calculating ‘lower class’ people who attach little importance to the opinion of others, are preoccupied with the daily struggle for survival and are ‘inclined to uninhibited, expressive conduct’. But in a later work, Crime and Human Nature (1986), he also forwards a bio-social explanation of behaviour. ‘Personality traits’, such as impulsiveness and lack of regard for others, are related to biological predispositions and cited as key factors in criminality, particularly when these traits are found in ‘discordant families’. He continues to argue that criminality rests on choice — but it is a choice that is mediated by a genetic ability to develop a conscience. The criminal, as described by Wilson and Herrnstein (1986: 61), is a person without a conscience, but who is capable of reacting to a variety of influences in which ‘the larger the ratio of the rewards (material and non-material) of non-crime to the rewards (material and non material) of crime, the weaker the tendency to commit crimes’. For Gottfredson and Hirschi (1994), the key factor underlying criminal behaviour is lack of self-control. Crime may not be an automatic consequence of low self-control, but is viewed as its primary distinguishing feature. In turn, self-control derives from effective socialisation. Thus, the major ‘causes’ of low self-control, it is argued, are ineffective child-rearing, poor parental supervision and discipline, working mothers and broken families: in short, a lack of self-control in the home.

In these ways, neo-conservatives contend that crime cannot be eliminated; it can only be reduced to socially acceptable levels. The state should target its efforts on repeat offenders and on specific high-crime neighbourhoods. Successful crime control requires tough and swift punishment for the targeted ‘criminal class’, with retribution and selective incapacitation as the most potent weapons that the state has available.

Policy implications

Incapacitation assumes that offenders will commit a certain number of crimes over a given time if they remain in society and that a substantial reduction in the total crime rate can be achieved through incarceration. This is the only theory of crime control, according to its supporters, that manifestly works. During the 1980s and 1990s, incapacitation became the dominant rationale particularly for the penal system in the United States. Right-wing commentators argued that ‘prison works’ because imprisoned criminals cannot victimise law-abiding citizens, and people who have been victims of crime have had the source of their fears removed from society. ‘Tough on the criminal’ policies have inspired habitual offender laws, such as ‘three strikes and you are out’, which permit courts to impose indefinite detention for repeated, however minor, offences. It has also been argued that life in prison should be made as stark as possible through establishing boot camps, eliminating privileges and by making prisoners work in chain gangs. In tandem, incapacitation has resulted in a massive private prison building programme in the United States and provided justification for the reintroduction of the death penalty (Zimring and Hawkins, 1995).

Retribution features prominently in Western notions of criminal justice because it is viewed as the most fundamental human response to crime and deviance. It is ‘natural’ to resent and to retaliate against any harm done or attempted against ourselves or against those with whom we empathise. Such ideas are deeply ingrained in many theological texts, such as the lex talionis, the Mosaic doctrine expressed in Exodus 21: 23–25, ‘and if any mischief follows, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe f...