Crime and Justice in Society 9780316729017

Citation preview

Crime and Justice in Society Richard

Quinney

CRIME AND JUSTICE IN SOCIETY

v{J)

i

CRIME AND JUSTICE IN SOCIETY

Richard Quinney New York University

Little, Brown and Company • Boston

COPYRIGHT ©

1969,

BY LITTLE, BROWN AND COMPANY (iNC.)

ALL RIGHTS RESERVED. NO PART OF THIS BOOK MAY BE REPRODUCED IN ANY FORM OR BY ANY ELECTRONIC OR

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INCLUDING

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Preface Men have their ideals. The myth is that they are realized in practice. Justice is such an ideal. The American colonists, imbued with the liberal thought of the European enlightenment, made justice the basis of their democratic govern¬ ment. The Massachusetts Bill of Rights of 1780 captured the essence of the ideal: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.” A similar notion of justice was written into the Declaration of Independence and the American Bill of Rights. The ideal of justice is fundamental to criminal law. Whenever the legal cate¬ gory crime is used, it is assumed that justice weighs all men impartially on her scales in deciding the criminality of each. Criminal law in practice, it follows, is the achievement of criminal justice. Yet, through our experiences and ob¬ servations we know that criminal law does not operate impartially. The com¬ plicated machinery of the legal system contains devices whereby cases are necessarily individualized according to numerous extralegal factors. Partly by design, legal actions are hidden behind a system that dispenses the law accord¬ ing to its own administrative rules. Only in the public drama that surrounds the criminal law are we presented with an image of the credibility of justice. Guided by the ideal of justice, we are currently being led to inquire into the nature of criminal law. A consideration of justice is in large measure responsible for the intellectual rapprochement that is occurring between the social sciences and law. Persons in various disciplines are now asking: How is criminal law formulated and administered? As a consequence, a considerable body of re¬ search is accumulating in an area that may be called the sociology of criminal law. In this book I have brought together a good portion of the research on the sociology of criminal law. I have organized the material according to stages of the legal process. The book is thus divided into sections on formulation of criminal law, enforcement of criminal law, judicial administration of criminal law, and administration of penal and correctional policy. All the selections per¬ tain to criminal justice in that law is being practiced. But more important, the findings and discussions are directed toward justice as an ideal. Before presenting the research, I have attempted to formulate a sociological theory of criminal law. In a reformulation of sociological jurisprudence, I have proposed a sociological theory of interests. The theory consists of a number of propositions about criminal law in politically organized society, the interest structure of society, the unequal distribution of power and the conflict which characterize the interest structure, and the formulation and administration of criminal law within the interest structure of politically organized society. The v

VI

Preface

theory is intended to provide a perspective for the integration and synthesis of the research presented here on the sociology of criminal law.

Crime and Justice in Society is intended to serve several needs. First, the book provides a needed supplement for college and university courses in criminology, social problems, and sociology of law. Criminal law cannot be ignored in these courses: criminal law gives behavior its quality of criminality. Second, the book furnishes the law student with a sociological approach to criminal law. Third, the practicing lawyer should benefit from the sociological approach and the research findings. Fourth, the book will be of interest to the general reader. Criminal law is not only that which is found in statutes, court decisions, and administrative rulings; it is also a process. An understanding of criminal law in action is a primary objective of the book. But ultimately we are led to questions that are provoked by a sense of justice. I am obviously indebted to all those who have paved the way for a sociology of criminal law. I want to thank the persons who have given me permission to include their works in this book.

Richard Quinney

Contents Intxoduction: Toward a Sociology of Criminal Law Trends in Theoretical Criminology

1

Research in the Sociology of Criminal Law

S

A Sociological Theory of Criminal Law

20

Conclusion

30

Section 1.

Formulation of Criminal Law

George Lee Haskins, A Rule to Walk By.

33

William J. Chambliss, A Sociological Analysis of the Law

of Vagrancy.

55

Andrew Sinclair, The Law of Prohibition.

69

Edwin H. Sutherland, The Diffusion of Sexual Psycho¬

path Laws.

88

Howard S. Becker, The Marihuana Tax Act.

Section 2.

98

Law Enforcement

Wayne R. LaFave, Police Discretion.

109

John P. Clark, Isolation of the Police: A Comparison of

the British and American Situations.

126

Elaine Cumming, Ian Cumming, and Laura Edell, Police¬

man as Philosopher, Guide and Friend. T. C. Esselstyn, The Social Role of a County Sheriff. Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping. David J. Bordua and Albert J. Reiss, Jr., Command, Con¬ trol, and Charisma: Reflections on Police Bureaucracy. William A. Westley, Violence and the Police. Arthur Niederhoffer, On the Job.

147 161 169 194 206 217

Irving Piliavin and Scott Briar, Police Encounters with

Juveniles.

239

Jerome H. Skolnick, The Working Policeman, Police “Pro¬

fessionalism,” and the Rule of Law.

Section 3.

250

Judicial Administration

Abraham S. Blumberg, The Criminal Court as Organiza¬

tion and Communication System.

267

Frederic Suffet, Bail Setting: A Study of Courtroom In-

.•

292

teraction. vii

viii

Contents

David Sudnow, Normal Crimes: Sociological Features of

the Penal Code in a Public Defender Office.

308

Seymour L. Halleck, Current Psychiatric Roles in the

Legal Process. Rita James Simon, Status and Competence of Jurors.

336 358

Harry Kalven, Jr. and Hans Zeisel, The Pattern of Dis¬

agreement Between Jury and Judge. Stuart S. Nagel, Judicial Backgrounds and Criminal Cases.

370 384

Robert M. Carter and Leslie T. Wilkins, Some Factors in

Sentencing Policy.

396

Henry Allen Bullock, Significance of the Racial Factor in

the Length of Prison Sentences. Edward Green, Sentencing Practices of Criminal Court Judges.

Section 4.

417 430

Administration of Penal and Correctional Policy

Norman S. Hayner, Correctional Systems and National

Values.

441

Francis A. Allen, Criminal Justice, Legal Values and the

Rehabilitative Ideal.

449

Donald R. Cressey, Limitations on Organization of Treat¬

ment in the Modern Prison. Elmer H. Johnson, The Parole Supervisor in the Role of Stranger.

460 4gg

Marvin E. Wolfgang, Arlene Kelly, and Hans C. Nolde,

Comparison of the Executed and the Commuted Among Admissions to Death Row.

500

Index to Authors

519

Index to Subjects

524

Introduction: Toward a Sociology of Criminal Law What is crime? As the history of criminology indicates, this is a crucial question. Indeed, definitions have guided criminologists in selecting subject matter and developing theoretical perspectives. Today, as always, one’s feelings about the word “crime” provide one with the vision for study¬ ing crime. Currently we are involved in reformulating criminology;

our

endeavors are increasing in scope. Let us, then, sketch the trends in theoretical criminology, review recent research that broadens criminology, and present a sociological theory that integrates and synthesizes the sociology of criminal law.

TRENDS IN THEORETICAL CRIMINOLOGY A history of the study of crime would show a progression from an absolute conception to a relativistic one. In early studies and writings we find that the observer’s standard determined what constituted crime. That conception was consistent with the criminologist’s interest in “the criminal.” In the last few years, however, realizing that crime is defined differently by each legal system, students of crime increasingly have relied upon society’s legal definitions as the standards for the study of crime. Thus, criminologists have expanded their investigation to include not only criminally defined persons and behaviors, but also the ways in which persons and behaviors are defined as criminal. Awareness of criminal law and inquiries into its formulation, enforcement, and administration are perhaps the most significant developments in the modern sociological study of crime. Criminal law was studied only sporadically by criminologists before this recent trend. For a time in the eighteenth century, before crime came to be studied “scientifically,” the relationship of man to the state’s legal structure received considerable attention.1 Reacting against contemporary legal prac¬ tice, writers in the so-called “classical school” protested the inconsistencies and injustices in the criminal law, proposing reforms that were in keeping with a humanitarian, rationalistic conception of man. It was important for theoretical criminology that these writers defined crime strictly according to legal terms. Central to the classical school was the doctrine of nullum crimen

sine lege — no crime without a legally defined harm. 1 gee C. Ray Jeffery, “The Historical Development of Criminology,” in Hermann Mannheim (ed.), Pioneers in Criminology (London: Stevens & Sons, 1960), pp. 364-394. 1

2

Introduction

As scientific methods began to be applied to human behavior, the legal definition of crime receded into obscurity in the latter part of the nineteenth century, remaining there well into this century. The “positive school” of criminology that developed at the end of the nineteenth century, especially among several Italian students of crime, turned criminologists from their in¬ terest in the law and violation of specific legal codes to the study of “crimi¬ nals.” The positivists, attempting to overcome the criminal law’s relativism, resorted to a nonlegal concept of crime. Crime, thus, began to be regarded as an act against the law of nature. The nonlegal conception of crime has dominated American criminology. Revisions of the nonlegal conception have, nevertheless, been suggested on occasion. The need for returning to a legal conception of crime was illustrated dramatically in the early 1930’s with a report by Michael and Adler on the state of knowledge in criminology.2 Critical of the past research directed toward the etiology of criminal behavior, Michael and Adler suggested that it was the criminal law that defined the scope and boundaries of criminology. They wrote: “If crime is merely an instance of conduct which is proscribed by the criminal code it follows that the criminal law is the formal cause of crime. That does not mean that the law produces the behavior which it pro¬ hibits, although, as we shall see, the enforcement or administration of the criminal law may be one of the factors which influence human behavior, it means only that the criminal law gives behavior its quality of criminality.”3 Michael and Adler forcefully observed that “the most precise and least am¬ biguous definition of crime is that which defines it as behavior which is pro¬ hibited by the criminal code” and, further, that “this is the only possible definition of crime.”4 A strong adherent of a legal definition of crime was the legally trained sociologist, Paul W. Tappan. Though he advocated explaining an offender’s behavior, Tappan warned, “Our definitions of crime cannot be rooted in epithets, in minority value judgments or prejudice, or in loose abstractions.”5 Tappan recognized that a person is a criminal only because his behavior has been defined as criminal by the state. In answering his own question, “Who is the Criminal?” Tappan went so far as to propose that “only those are crimi¬ nals who have been adjudicated as such by the courts.”6 Several criminologists subsequently have called for a sociological study 2 Jerome Michael and Mortimer J. Adler, Crime, Law and Social Science (New York: Harcourt, Brace, 1933). •'■Michael and Adler, Crime, Law and Social Science, p. 5. j Michael and Adler, Crime, Law and Social Science, p. 2. 5 Paul W. Tappan, Crime, Justice and Correction (New York- McGraw Hill, 1960), p. 10.

6 Paul W. Tappan, “Who Is the Criminal?” American Sociological Re¬ view, 12 (February, 1947), p. 100.

A Sociology of Criminal Law

of criminal law.

C.

Ray Jeffery, after

3

reviewing diverse definitions

of

crime, suggested that crime should be studied within the framework of the criminal law.1 From the criminal law we would be able to ascertain under what conditions behavior becomes defined as criminal and how legal codes interact with other normative systems. Jeffery’s concluding statement suc¬ cinctly expressed his concern for a sociology of criminal law: The sociology of criminal law would provide us with a framework for the study of crime, and at the same time it would enable us to differentiate between the criminal and the non-criminal. The legal criterion is the only standard that differen¬ tiates the two groups. Further studies of the personality makeup of the offender, of the type engaged in for the past fifty years, are never going to furnish a differen¬ tial. An explanation of criminal behavior is going to depend upon an explanation of behavior. Such an explanation necessarily involves many non-sociological factors. It is to be questioned at this time whether the sociologist has to be so concerned with human motivation. It seems to the writer that the sociologist would do better to be more concerned with group reactions to certain types of behavior. The study of social structure is sociological; the study of human motivation is only quasisociological. A study of social systems in relation to the topic “law and society” would eventually lead to a theory of crime.7 8 Void illustrated how important criminal law is to the study of crime in observing that there exists a dual problem of explanation in criminology: “Crime always involves both human behavior (acts) and the judgment or definitions (laws, customs, mores) of fellow human beings as to whether specific behavior is appropriate and permissible, or is improper and forbidden. Crime and criminality lie in the area of behavior that is considered improper and forbidden. There is, therefore, always a dual problem of explanation — that of accounting for the behavior, as behavior, and equally important, ac¬ counting for the definitions by which specific behavior comes to be considered as crime or non-crime.”9 In considering this dual problem further, Turk observed that the problem that is distinctly criminological is the study of criminality.10 He argued that 7 C. Ray Jeffery, “The Structure of American Criminological Thinking,” Journal of Criminal Law, Criminology and Police Science, 46 (January February, 1956), pp. 658-672. 8 Jeffery, “The Structure of American Criminological Thinking,” p. 672. 9 George C. Void, Theoretical Criminology (New York: Oxford Uni¬ versity Press, 1958), pp. v-vi. For recent discussions of the dual problems of behavior and definition, see David J. Bordua, “Recent Trends: Deviant Behavior and Social Control,” Annals of the American Academy of Political and Social Science, 369 (January, 1967), pp. 149-163; Jack P. Gibbs, “Con¬ ceptions of Deviant Behavior: the Old and the New,” Pacific Sociological Review, 9 (Spring, 1966), pp. 9-14; Ronald L. Akers, “Problems in the Sociology of Deviance: Social Definitions and Behavior,” Social Forces, 46 (June, 1968), pp. 455^165. 10 Austin T. Turk, “Prospects for Theories of Criminal Behavior,” Jour-

4

Introduction

the criminal law determines the criminal status of persons and behavior, and only an explanation of such criminality is an explanation of crime. Thus, because the legal definition of behavior determines what is regarded as crimi¬ nal, it is necessary for the criminologist to study how criminal law is formu¬ lated and administered.11 In addition to the writers in theoretical criminology, many sociologists and social scientists have become interested in the law as a subject for study. Most important, the social sciences and law are converging in an intellectual move¬ ment which defines and combines the mutual interests of social scientists and legal scholars.12 To ensure the exchange of ideas between the various dis¬ ciplines attending to legal matters, the Law and Society Association was formed in 1964. In the first issue of the Association’s journal, the editor de¬ scribed the new convergence of law and the social sciences: During the past decade, each of the social sciences has found it necessary to face legal policy issues of highest relevance to the disciplines themselves and to the so¬ ciety as a whole. In political science, the decision process in the courts and admin¬ istrative agencies has been explored to an extent which parallels earlier and continuing work on the legislatures. Political scientists have also turned their at¬ tention to the implementation of legal decisions, especially where the institutions of government have been seen as an important determinant of the impact of law. Sociologists, too, are showing increasing interest in the legal process. Their studies have been concerned with the manner in which the population is affected by law in such areas as civil rights, poverty, and crime. Both professions have joined with the anthropologists in studying the relationship between society and culture on the one hand and the nature and operation of legal institutions on the other. In addi¬ tion, other professional groups — notably economists, social workers, clinical and social psychologists, and psychiatrists — are increasingly called upon for informa¬ tion thought to be of value in the formulation of legal policy. Above all, the legal profession has moved from a position of reluctant consumer of such information to an active participant in the research process.13 The research resulting from this convergence and the recent research in criminology form the basis for a sociology of criminal law. New theoretical frameworks for studying crime are certain to be the consequence.

nal of Criminal Law, Criminology and Police Science, 55 (December 1964) pp. 454-461. ) /> 11 Richard Quinney, “Crime in Political Perspective,” American Behavioral Scientist, 8 (December, 1964), pp. 19-22; Richard Quinney, “Is Criminal Brltish J°urnal of Criminology, 5

(April,

1 -' See Gilbert Geis, “Sociology, Criminology, and Criminal Law,” Social Problems, 7 (Summer, 1959), pp. 40-47. J3 Richard D. Schwartz, “From the Editor,” Law and Society Review, 1 (November, 1966), p. 6.

A Sociology of Criminal Law

5

RESEARCH IN THE SOCIOLOGY OF CRIMINAL LAW Roughly a decade of labor by social scientists has resulted in extensive empirical research on criminal law, a good portion of which is included in this book. This research can be reviewed and presented according to the

stages of the legal process. For analytical and practical purposes these stages may be divided into the formulation of criminal law, enforcement of criminal law, judicial administration of criminal law, and administration of penal and correctional policy. Formulation of Criminal Law Criminal law, as an aspect of public policy, is established to govern the lives and affairs of the inhabitants of a politically organized society. The con¬ cept of criminal law emerged only when the custom of private vengeance was replaced by the principle that the community as a whole is injured when one of its members is harmed. Thus, the right to act against a wrongdoing was taken out of the hands of the immediate victim and his family and was, in¬ stead, granted to the state as the representative of the people. The turning point in the emergence of criminal law in the Western world occurred in Athens at the beginning of the sixth century b.c. when in order to forestall a possible revolution, the ruling aristocrats granted citizens the right to initiate prosecutions with the support of the state.14 This step protected citizens from one another and from government itself, in this case the lower class of Athens from aggression by the rich and powerful. In other societies criminal law could develop only with the achievement of a political unity that allowed a law to be established and administered in the name of a centralized government. In England, therefore, the country’s politi¬ cal development also marked the development of criminal law. According to Jeffery, important change began in the latter part of the eleventh century and continued throughout the twelfth.15 With the Norman invasion of 1066 and the strong rule of the Norman kings, the old tribal-feudal system of law was replaced by a criminal law that lay in the hands of a central authority, the Crown. In order to place law under the jurisdiction of the King’s government, several types of courts were created, writs were devised to carry cases out of baronial courts and into the King’s courts, and eventually a “common law” 14 See George M. Calhoun, The Growth of Criminal Law in Ancient Greece (Berkeley: University of California Press, 1927). 15 C. Ray Jeffery, “The Development of Crime in Early English Society, Journal of Criminal Law, Criminology and Police Science, 47 (March-April, 1957), pp. 647-666.

6

Introduction

was established for the justice of all men. This new system determined of¬ fenses which clearly violated the peace of the King and country. It was during the fifteenth century in England that the modern law of theft was formulated into criminal law by a case known as the “Carrier’s Case.” As documented and interpreted by Jerome Hall,16 the Carrier’s Case of 1473 demonstrates how changing social conditions and emerging social in¬ terests bring about the formulation of a criminal law. The judges in the case departed from precedent by introducing the notion that a person trusted with another’s property could commit a trespass upon that property. According to Hall, the legal reformulation of trespass was shaped by fifteenth-century England in the following ways: We are now in a position to visualize the case and the problem presented to the judges as a result of the legal, political and economic conditions described above. On the one hand, the criminal law at the time is clear. On the other hand, the whole complex aggregate of political and economic conditions described above thrusts itself upon the court. The more powerful forces of the time were inter¬ related very intimately and at many points: the New Monarchy and the nouveau riche the mercantile class; the business interests of both and the consequent need for a secure carrying trade; the wool and textile industry, the most valuable, by far, in all the realm; wool and cloth, the most important exports; these exports and the foreign trade; this trade and Southampton, chief trading city with the Latin countries for centuries; the numerous and very influential Italian merchants who bought English wool and cloth inland and shipped them from Southampton. The great forces of an emerging modern world, represented in the above phenom¬ ena, necessitated the elimination of a formula which had outgrown its usefulness. A new set of major institutions required a new rule. The law, lagging behind the needs of the times, was brought into more harmonious relationship with the other institutions by the decision rendered in the Carrier’s Case.17 Another basic legal concept that developed in early English law is that of vagrancy. In analyzing the law of vagrancy, Chambliss has shown how the vagrancy statutes changed in England according to emerging social inter¬ ests.18 The first full-fledged vagrancy law, enacted in 1349, regulated the giving of alms to able-bodied, unemployed persons. After the Black Death and the flight of workers from landowners, the law was reformulated in order to force laborers to accept employment at a low wage. By the sixteenth cen¬ tury, with increased emphasis on commerce and industry, the vagrancy statutes were revived and strengthened. In other words, formulations and changes in the vagrancy statutes were brought about by powerful interest groups. Merrilir°l9S2)HaI1’

^ ^ S°dety’ 2nd ed- (Indianapolis: Bobbs-

17 Hall, Theft, Law and Society, p. 33. 18 William j . Chambliss, “A Sociological Analysis of the Law of Va¬ grancy, Social Problems, 12 (Summer, 1964), pp. 67-77.

A Sociology of Criminal Law

7

The vagrancy laws emerged in order to provide the powerful landowners with a ready supply of cheap labor. When this was no longer seen as necessary and par¬ ticularly when the landowners were no longer dependent upon cheap labor nor were they a powerful interest group in society the laws became dormant. Finally a new interest group emerged and was seen as being of great importance to the society and the laws were then altered so as to afford some protection to this group.19 Eventually the vagrancy laws came to serve, as they do today, the purpose of controlling persons and activities regarded as undesirable to the community. The laws of the American colonies developed, for the most part, within the tradition of the English common law.20 Yet local conditions shaped some of the colonial laws. The Massachusetts Bay Colony was faced with the critical problem of finding the proper place for law in a religious community. While the colony had been chartered as a commercial enterprise in 1630, the prin¬ cipal objectives of the settlers clearly were religious and social. Relating law to such objectives was resolved by constructing a legal system based on Biblical authority. The Scriptures served as the most appropriate source for establishing a government in accordance with God’s word. As Haskins has shown, most provisions in the Puritan’s legal code were annotated by chapter and verse from the Old Testament, and many incorporated biblical phrase¬ ology.21 In such a fashion, the state’s authority was condoned and supported by religion. Ultimately, this meant that the welfare of the whole, rather than that of the individual, was the state’s chief concern. One of the most dramatic modern attempts to control morality through law is found in the enactment of the Volstead Act and its ratification in the Eighteenth Amendment in 1920. In a social history of prohibition, Sinclair observed that the movement to place a ban on drinking and the liquor trade was an assertion of the rural Protestant mind against the emerging urban culture. The successful activities of the dry interest groups instituted the era of prohibition: Through the many roots of prohibition — rural mythology, the psychology of excess, the exploited fears of the mass of the people, the findings of science and medicine, the temper of reform, the efficiency of the dry pressure groups, their mastery of propaganda, the stupidity and self-interest of the brewers and distillers, the necessary trimming of politicians, and the weakness of the elected representa¬ tives of the people — through all these channels the sap of the dry tree rose until 19 Chambliss, “A Sociological Analysis of the Law of Vagrancy,” p. 77. See Roscoe Pound, “The Development of American Law and Its Devi¬ ation from English Law,” Law Quarterly Review, 67 (January, 1951), pp. 49_66 21 George Lee Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), pp. 141-162. Also see Kai T. Erikson Wayward Puritans: A Study in the Sociology of Deviance (New York: John Wiley & Sons, 1966); Edwin Powers, Crime and Punishment m Early Massachu setts (Boston: Beacon Press, 1966). 20

8

Introduction

the legal prohibition of the liquor trade burst out new and green in the first month of 1920. The roots had been separate; yet they were all part of a common Ameri¬ can seed. They combined and contributed to the strength of the whole. The AntiSaloon League, bent on its particular reform, was the heir and beneficiary of many interactions in American life. As the drys stood on the threshold of victory at the opening of the twenties, they could see manifest destiny in the success of their cause. They seemed to be the darling army of the Lord. Behind them appeared to lie one mighty pattern and purpose. Before them hung the sweet fruits of victory.22 But prohibition failed as law just as it failed as a noble cause. An outdated morality could not be enforced through criminal law. Some criminal laws, not unlike other passions and conveniences, experience periods of popularity. The formulation of sexual psychopath laws is an in¬ stance of such fashion in law. Beginning in the late 1930’s and extending into the 1950 s, over half the states in the United States enacted sexual psycho¬ path laws. In analyzing the diffusion of these laws, Sutherland noted that certain phases preceded the enactment of the laws,23 such as arousal of fear by a few serious sex crimes, agitation stemming from fear within the com¬ munity, and the appointment of a committee to study the problem and to make recommendations. Sutherland further observed that the principal inter¬ est group backing the sexual psychopath laws, as determined by the composi¬ tion of the investigation and proposal committees, has been that of psychia¬ try. The provisions of the sexual psychopath occupational interests of psychiatrists.

laws

thus

promote

the

Behind the formulation of all laws is an enterprising group that stands to benefit in some way from a particular law. As both Becker and Lindesmith have documented, criminal laws that regulate the sale and possession of drugs reflect actions of the Federal Bureau of Narcotics.24 Its role in the enactment of the Harrison Act of 1914 and the Marihuana Tax Act of 1937 has created public suspicion and fear of drug use. Today the use of any type of drug by a segment of the population — be the drug addictive or not, a narcotic drug, marihuana, or a psychedelic drug — arouses the public to such an extent that it often calls for repressive legislation. The Federal Bureau of Narcotics has defined its interests as total restriction of drugs and complete enforcement of the law. These interests have become the standards by which the public now judges the use of drugs. Research on criminal law has demonstrated that criminal laws are formu22 Andrew Sinclair, Era of Excess: A Social History of the Prohibition Movement (New York: Harper & Row, 1964), p 170 23 Edwin H. Sutherland, “The Diffusion of Sexual Psychopath Laws ” American Journal of Sociology, 56 (September, 1950), pp 142-148 - Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (New York: The Free Press of Glencoe, 1963), pp. 135-146- Alfred R Press^ 1%5), pp* 3-3°Wd *** UW (Bloomin8ton:

Indiana University

A Sociology of Criminal Law

9

lated within a social context that involves the promotion of the interests of certain groups in society. This is the social nature of criminal law. Law Enforcement

Criminal law does not provide specific instructions for the enforcement of the law. In spite of popular conception, law enforcement, as LaFave has in¬ dicated, is largely a matter of discretion.25 The arrest of a person is an opera¬ tional step that involves a decision to interfere with the freedom of someone suspected of criminal conduct. Police discretion in law enforcement rarely becomes known to the public. Recently, however, social scientists have turned their attention to the study and explanation of law enforcement. We are now beginning to understand the nature of law enforcement. Each police department operates within a community. Generally, however, the police in all communities must function in a sphere of their own, isolated within the community. The requirements of law enforcement, as Clark de¬ scribes the situation, contribute to this isolation.26 Among the forces that come into play are the intrusion of police activity into the private interests of citizens, resentment against the police, the reminder that the police expose deviance in the community, and the secretive operations of the police. Yet, in spite of the inevitable isolation of the police in communal life, to view police activity solely in terms of community hostility and strict en¬ forcement of the law misses an important aspect of the role of the police, since one of its principal functions is to promote peace in the community.27 Each day the policeman may be as much a “peace officer” as a “law officer.” The supportive role of the police has been documented in a study of the telephone calls received at the desk of a metropolitan police department. An analysis of the calls showed that nearly half were requests for support of some kind, such as requests for assistance in personal problems, requests for health services, and assistance in handling problems of children and incapaci¬ tated persons. The police, thus, are engaged in many activities that are not directly related to law enforcement, but which uphold the community’s welfare. Studies of police activity in different communities sustain the fact that the police have functions other than law enforcement. Esselstyn, in a study of the 25 Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody (Boston: Little, Brown, 1965), pp. 63-82. 26 John P Clark, “Isolation of the Police: A Comparison of the British and American Situations,” Journal of Criminal Law, Criminology and Po¬ lice Science, 56 (September, 1965), pp. 307-319. , . 2? Michael Banton, The Policeman in the Community (London: laviSt

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