The Criminology of Criminal Law

William Laufer

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351484299
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto penale

The Criminology of Criminal Law considers the relation between criminal law and theories of crime, criminality and justice. This book discusses a wide range of topics, including: the way in which white-collar crime is defined; new perspectives on stranger violence; the reasons why criminologists have neglected the study of genocide; the idea of boundary crossing in the control of deviance; the relation between punishment and social solidarity; the connection between the notion of justice and modern sentencing theory; the social reaction to treason; and the association between politics and punitiveness. Contributors include Bonnie Berry, Don Gottfredson, David F. Greenberg, Marc Riedel, Jason Rourke, Kip Schlegel, Vered Vinitzky-Seroussi, Leslie T. Wilkins, Marvin E. Wolfgang, and Richard A. Wright. The Criminology of Criminal Law concludes with an analysis of the results of a study on the most cited scholars in the Advances in Criminological Theory series. This work will be beneficial to criminologists, sociologists, and scholars of legal studies. Advances in Criminological Theory is the first series exclusively dedicated to the dissemination of original work on criminological theory. It was created to overcome the neglect of theory construction and validation in existing criminological publications.

Foreword

Criminal Law and Criminology: Synergy or Allergy

G.O.W. Mueller

Years ago the editors of Advances in Criminological Theory decided to devote an issue to the central question of the relationship between criminology and criminal law. This question is as old as criminology itself, namely about a century. The most obvious approach might have been an invitation to submit papers on the relation or interaction between criminal law and criminology. Yet it was feared that the result might have been a melange of philosophical/doctrinal papers differing little from the positions staked out over the last 100 years: the question of dominance or subservience between the two disciplines; the issue of the possibility (or necessity) of complete integration of the two disciplines; or indeed the need for their further fragmentation. Most obvious here would be the long perceived but never enunciated trend toward further polarization along the lines: What criminology is to criminal law, criminal justice is to criminal procedure.

None of these or similar findings might have been helpful in assessing, whether in philosophical or utilitarian terms, the current relationship between criminal law (in the broadest sense) and criminology (again, in the broadest sense).

Instead, the editors decided to invite scholars, whose work had always shown an explicit or implicit involvement with the two disciplines, to submit papers of their choice. This approach, it was hoped, might permit some conclusions about the extent of synergy or allergy between the two disciplines. As it turned out, some concordant findings mark the totality of chapters in this volume of the Advances. Yet, whether these are of direct practicality, or whether their implications lie in the distant future, remains to be seen.

Keeping the leitmotiv in mind, The Criminology of Criminal Law, or, as reformulated in this foreword, Criminal Law and Criminology: Synergy or Allergy, the chapters clearly fall into two categories. There are those pointing to an existing or potential synergy (part I), and those demonstrating more allergy than synergy (although there is always hope for the future).

Part I

Part I begins with C. Ray Jeffery’s "Criminology and Criminal Law: Science versus Policy and the Interaction of Science and Law." Jeffery is a scholar who has devoted a life of research and advocacy to the integration of law and criminology. He himself has impacted the crime prevention scene significantly—including by stimulating legislation, although, as Matthew B. Robinson notes in part II, Jeffery’s work never had the impact it should have had. Nevertheless, Jeffery, the scholar who learned his criminology from Sutherland, his psychology from Skinner, and his law from Jerome Hall, has remained steadfast in his call for closing the gap between science, law, and politics.

Marc Riedel discusses an area virtually ignored by criminal law: stranger violence. To the extent that law has considered it (recently), it was done so without regard to scientific findings. Like lawyer-criminologist Hans von Hentig half a century ago, Riedel finds certain times and places more prone to stranger violence. Should legislation, as distinct from police deployment, endeavor to provide more protection for such times and places, as did medieval legislation of the French, English, and German kings (God’s peace, King’s peace), etc.? Yet, without an impact study, we would be ill advised to emulate such precedents (yet we have: drug-free school zones, etc.). Riedel is right in calling for effective legislation, and that means science-based legislation.

James B. Jacobs’s and William S. Laufer’s contributions must be assessed in conjunction with each other, as both discuss forms of criminality which have largely been ignored by criminologists. Jacobs discusses a seemingly mundane form of crime, drunk driving. Laufer calls our attention to the most horrific criminality: genocide. Why have criminologists shied away from either topic? Yet legislators—local, national and international—had to deal with both categories of criminality—unaided by research. We cannot blame legislators for devising largely ineffective, often merely ceremonious, remedies. We can only blame ourselves for not having laid the scientific groundwork for dealing with criminality beyond the penumbra of "ordinary" crimes to which criminological attention has been devoted traditionally.

Per contra, Deborah Denno provides us an example of a very successful interaction between criminal law and criminology: the emergence over the last quarter century of the criminologist as an expert witness in court. With Denno’s chapter we have entered the criminal justice sphere of criminology.

Starting with the police, Carl B. Klockars and Sonya Kutnjak Inkovich offer a fascinating comparative study on the measurement of police delinquency in Croatia and the United States. Offense seriousness measurements have indeed had a pronounced impact on (mostly administrative) practice, for example, the Uniform Crime Report (UCR), though with little impact on legislation. (I only wish the authors had included questions on the use of force against "others"—especially ethnic minorities! That might have contributed to answering Laufer’s unanswered question.)

Also in the law enforcement sector is Bernard Cohen’s "Police Enforcement of Quality-of-Life Offending," seriously questioning the broken-windows-quality-of-life-continuum approach as productive for crime reduction, and warning of undesirable side effects such as threats to Bill of Rights protections, police abuse of force, and corruption. Here, too, criminologists have had no impact on legislation, but considerable influence on "the law" as administered in the streets. Desirable or undesirable? Only rigorous testing can achieve socially desirable results, as Cohen warns.

Moving from law enforcement to sanctioning, Paul E. Tracy and Kimberly Kempf-Leonard demonstrate that "the relationship between criminological research and the criminal law, and most importantly the inplications of the former on the latter, may be evidenced with respect to juvenile law." They are critical of the current trend—unsupported by research—to waive juveniles into the adult criminal justice system. Policy changes are necessary, especially with the expected increase in the juvenile population, but only if based on empirical evidence.

Edna Erez and Leslie Sebba address us with a powerful plea for reorientation of our entire approach to crime control (especially as to sanctioning) from an offender-based system toward a victim-based system of individualization, albeit standardized individualization. They note well that all of the massive legislation aimed at easing the lot of victims has not been conducive to victim individualization in the liberal sense. Once again, such legislative impact as criminologists may have had in the sphere of victim protection either has not reached far enough, or has been misdirected. The question remains, how do we best impact the legislatures and the courts with our research?

Concluding part I is Claire Souryal and Charles Wellford’s "Sentencing Disparity and Sentencing Guidelines," a highly critical criminological evaluation of the effect of legislated sentencing guidelines. While these have gone a long way in reducing sentence disparities, legislation has not yet succeeded in ridding our system of ugly remnants of racial bias in the length and frequency of prison sentences.

Summing up the findings of part I, one can only conclude with a mixture of delight and despair. Yes, the infant science of criminology has some successes to book in terms of legislation, court procedures, and administrative application of crime prevention approaches. Yet, a true synergy has not been achieved, while the desirability and possibility of a synergy are clearly demonstrable. Is it that criminologists, as scientists, and lawyers as normative thinkers, talk different languages? The former think in terms of cause and effect, the latter in terms of syllogistic logic or precedents? What keeps us apart?

Part II

The reason, Leslie Wilkins suggests, lies far deeper than a difference in reasoning processes. In fact, he urges criminologists to give up their simplistic cause and effect thinking. As much as this linear thought process might be understandable to law makers, it rarely leads to satisfactory results and consequently produces dissatisfaction with criminology. Instead, Wilkins wants punishment policy—the nerve center of criminology—to be based on commensurate complexity. Thus, we should move

from	towards
search for simple cause effect models	search for appropriate models which can accommodate commensurate complexity
concentration of power	extension of participation in decisions to all those involved in the event
symbolism, ritual, drama and display	economic analysis and use of managerial techniques with good communication,
to cite but a few of his theorems.

What Wilkins proposes cannot be accomplished overnight. It requires a whole new approach to criminology, including the training of a new generation of criminologists and, yes, of criminal law specialists and legislators. Yet, all of the papers in Part II are demonstrative of the need for commensurate complexity. Thus, Kip Schlegal and David Eitle, in Back to the Future: A Reminder of the Importance of Sutherland in Thinking about White Collar Crime, reject the simple (almost juridical) normatization of organized crime by some scholars, who then are able to criticize normatized white-collar crime. The issue is far more complex. White-collar crime never was intended to be a juridical, normative concept of the type to which legislators can easily address themselves. It is a scientific concept whose commensurate complexity must be recognized before it can serve as a platform from which to devise and legislate control mechanisms.

Similarly, even the law-defined concept of treason, as Vared Vinitzky-Seroussi demonstrates, is far from uncomplicated. The findings "indicate that even treason can be understood, if not accepted," and had the author extended his inquiry from Pollard to Colonel von Stauffenberg, the conclusion might have been that treason can be necessary and honorable. Commensurate complexity!

In "Technological and Other Changes: Boundary Crossings in the Control of Deviance," Bonnie Berry demonstrates that the difference between the good and the bad, the permitted and the prohibited, is anything but a static Mason-Dixon line. It is, rather, like armies of the North and South moving forward and backward, controlling this territory today and abandoning it tomorrow, thereby changing the law that governs slavery. I should not blame Berry for my civil war analogy—it simply seemed demonstrative to me, especially since, once again, it exemplifies commensurate complexity over time and space.

Yet another demonstration of commensurate complexity is Matthew B. Robinson’s "Theoretical Development of CPTED" in which he showed that C. Ray Jeffery’s enormous contribution to criminological theory did not have any major impact on legislation, precisely because Jeffery has always been aware of commensurate complexity—a phenomenon not resting at the level of practical implementation but rather at the preceding level of thought and research.

"Measuring Justice: Unpopular Views on Sentencing Theory," by Don M. Gottfredson, reads as if Gottfredson had read Wilkins’s chapter beforehand. (He had not.) Moving away from bipolar approaches, whether they be crime-punishment, or crime-punishment-deterrence (or incapacitation), he wants us to pay attention to precursors, particularly the creation of quantifiable measures, and measurement itself. Similarly, David F. Greenberg argues that punishment policy is anything but a cause-effect (crime-punishment) phenomenon. Rather, it is a highly complex process, largely determined by socio-political-economic factors which aim at moving society in a given direction, e.g., from a laissez-faire society to a welfare state, or, as now, vice versa.

Included in part II which, after all, is demonstrative of more allergy then synergy, is the contribution by MacDonald and Tennenbaum, on "Justifiable Homocides by Civilians." It is a contribution which would have provided Marvin Wolfgang great pleasure, if he had occasion to read it. After all, it provides behavioral science meaning to logically cold criminal law tests of "justifiable homocide." The appearance, in part II of this volume, makes an important point: there may not be much distance between the synergy and the allergy between criminal law and criminology.

It is time to come to the one prominent intellectual thread which ties all the contributions to this volume of the Advances together. Who has been the persistent advocate for basing criminal law on criminology (see Jeffery’s chapter); who identified stranger homicide, decades ago (see Riedel’s chapter); who called for a behavioral science based concept of criminal law (see MacDonald and Tennenbaum); who first gauged the severity of crime, whether mundane (see Jacobs’s chapter) or horrific (see Laufer’s chapter), or juvenile (see paper by Klockars and Kutnjak Inkovich); who was the first to advocate the criminologist as expert witness in court, and served as such (see Denno’schapter); who enabled us to understand juvenile offenders within their birth cohorts (see chapter by Tracy and Kempf-Leonard); who discovered victim-precipitation and called for victim-orientation in criminal justice (see chapter by Erez and Sebba); who called national attention—and that of the U.S. Supreme Court—to racial disparities in sentencing (see chapter by Souryal and Wellford), and who is it who never embraced simplistic notions but, with the attributes of a Renaissance man, explored all cultural, historical, social, political, and economic aspects before offering criminological solutions to complex social problems (see the entire part 2)?

Marvin E. Wolfgang

Director, Sellin Center for Studies in Criminology and Criminal Law, to whom we, his associates, colleagues, former students and collaborators, dedicate this volume of Advances in Criminological Theory. Ad multos annos, Marvin!

In retrospect, our wishes were not fulfilled. Marvin Wolfgang left us before this volume appeared in print.

Part 1

1
Criminology and Criminal Law

Science versus Policy and the Interaction of Science a...

Table of contents

• Cover Page
• Title Page
• Copyright
• Editors
• Dedication
• Editor’s Note
• Foreword
• Part I
• 1 Criminology and Criminal Law
• 2 A Perspective on Stranger Violence
• 3 Researching and Conceptualizing Drunk Driving
• 4 The Forgotten Criminology of Genocide
• 5 Criminologists as Expert Witnesses in Criminal Law Cases
• 6 The Measurement of Police Delinquency
• 7 Police Enforcement of Quality-of-Life Offending
• 8 Sanctioning Serious Juvenile Offenders
• 9 From Individualization of the Offender to Individualization of the Victim
• 10 Sentencing Disparity and Sentencing Guidelines
• Part 2
• 11 Punishment Policy and Commensurate Complexity
• 12 Measuring Justice
• 13 Punishment, Division of Labor, and Social Solidarity
• 14 Back to the Future
• 15 The Social Reaction to Treason within a Pluralistic Society
• 16 Technological and Other Changes
• 17 The Theoretical Development of “CPTED”
• 18 Justifiable Homicide by Civilians
• 19 The Most-Cited Scholars and Works in Criminological Theory