The Problem of Crime: A Peace and Social Justice Perspective 087484908X

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NORTH CAROLINA WESLEYAN COLLEGE

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Third Edition

A Peace and Social Justice Perspective

Richard Quinney John Wildeman

The Problem of Crime A Peace and Social Justice Perspective

Third Edition

*

The Problem of Crime A Peace and Social Justice Perspective Third Edition

Richard Quinney Northern Illinois University

John Wildeman Hofstra University

m Mayfield Publishing Company Mountain View, California London • Toronto

Copyright © 1991 by Mayfield Publishing Company All rights reserved. No portion of this book may be reproduced in any form or by any means without written permission of the publisher. Library of Congress Cataloging-in-Publication Data Quinney, Richard The problem of crime: a peace and social justice perspective/ Richard Quinney and John Wildeman. p. cm. Includes bibliographical references and index. ISBN 0-87484-908-X 1. Criminology. I. John Wildeman, John, 1937- . II. Title. HV6025.Q55 1990 364—dc20 90-39575 CIP Manufactured in the United States of America 10

98765432

Mayfield Publishing Company 1240 Villa Street MountainView, California 94041 Sponsoring editor, Franklin C. Graham; managing editor, Linda Toy; produc¬ tion editor, Carol Zafiropoulos; copy editor, Lauren Root; text and cover design, Jean Mailander. The text was set in 10/121/2 Janson and printed on 50# Glatfelter Spring Forge by Thomson-Shore. Cover: . . .never ceasing effort to remove its barriers shall we make ... for PEACE (1978), poster, by U. G. Sato. Courtesy, the artist. Excerpt from “The Aims of Criminal Law” by Henry M. Hart in Law and Contemporary Problems 23(summer, 1958), © 1958, Duke University School of Law. Reprinted by permission. Excerpts from Criminology, 9th edition, by Edwin H. Sutherland and Donald R. Cressey (Lippincott, 1974) reprinted by permission of the estate of Donald Cressey. Excerpt from “There Is No Time” (Lou Reed) © 1988 Metal Machine Music. All rights administered by Screen Gems-EMI Music Inc. 6920 Sunset Blvd., Hollywood, CA 90028. All rights reserved. Used by permission.

Contents

PREFACE

vii

CHAPTER 1

Crime and Social Order

The Concept of Crime 1 Legal Order and the State 5 The Nature of Criminal Law The Rise of Criminal Justice Social Justice 15 CHAPTER 2

The Study of Crime

1

8 13

17

The Substance of Criminology 17 The Meaning of Criminal Statistics

22

Sources of Criminal Statistics 23 Modes of Inquiry in Criminology 31 The Way of Awareness 38 CHAPTER 3

Origins: Criminology from Its Beginnings to the Twentieth Century 40

Early and Classical Prescientific Thought About Crime Nineteenth-Century Sociological Criminology 48 Nineteenth-Century Biological Criminology 54 CHAPTER 4

Early Twentieth-Century to Contemporary Criminology

61

The Early Years: Eclectic Criminology 61 Mid-Twentieth-Century Sociological Criminology Late Twentieth-Century Criminology 70

C.

64

43

VI

Contents

CHAPTER 5

Some Problems of Crime and Control

Current Mainstream Theory Domestic Violence Computer Crime

88

91 96

Private Police 99 Peacemaking Alternatives

106

CHAPTER 6 Peace and Social Justice 110 Awareness of Human Suffering 110 Right Understanding

113

Compassion and Service

115

The Way of Peace and Social Justice REFERENCES 120 INDEX 137

116

86

Preface

We begin with a fundamental realization: No amount of thinking and no amount of public policy have brought us any closer to understanding and solving the problem of crime. The more we have reacted to crime, the farther we have removed ourselves from any understanding and any reduction of the problem. In recent years, we have reformulated the law, punished the offender, and quantified our knowledge. Yet the United States remains one of the most crime-ridden nations. In spite of all its wealth, economic development, and scientific advances, this country has one of the worst crime records in the world. With such realization, we return once again—as if starting anew—to the subject of crime, a subject that remains one of our most critical indicators of the state of our personal and collective being. What is to be said is nec¬ essarily outside of the conventional wisdom of our understanding of the problem and of our society’s attempt to solve it. Several beliefs underlie our arguments in this book: (1) Thought of the Western rational mode is conditional, limiting knowledge primarily to what is already known; (2) Each life is a spiritual journey into the unknown and the unknowable, beyond the ego-centered self; (3) Human existence is characterized by suffering; crime is suffering; and the sources of suffering are within each of us; (4) Through love and compassion, beyond the egocentered self, we can end suffering and live in peace, personally and col¬ lectively; (5) Crime can be ended only with the ending of suffering, only

VI1

viii

Preface

when there is peace and social justice, and (6) Understanding, service, jus¬ tice—all these—flow naturally from love and compassion, from mindful attention to the reality of all that is, here and now. A criminology of peacemaking—a nonviolent criminology of compassion and service—seeks to end suffering and thereby eliminate crime. These observations and assumptions serve as the basis for our revision of The Problem of Crime. We build on the critical and Marxist foundations of the previous edition. In this revision we extend the perspective to incor¬ porate the ultimate goals of peace and social justice. There can be no solution to the problem of crime without peace and social justice. They are the beginning of a world free of crime. We are grateful to the following reviewers of the text for their many excellent suggestions: John F. Galliher, University of Missouri—Columbia; Ronald C. Kramer, Western Michigan University; Robert F. Meier, Washington State University; Dragan Milovanovic, Northeastern Illinois University, and Martin D. Schwartz, Ohio University. Richard Quinney John Wildeman

Crime and Social Order

The problem of crime begins as a problem of society. The initial problem is not that of crime, but the failure of a society to provide an authentic existence. To focus on the problem of crime outside its social context is to avoid the deeper meaning of crime in contemporary society. Likewise, to neglect the larger social order and its internal contradictions is to ignore the possibilities of creating a world liberated from the oppression and the crime that result from these contradictions. Our critical understanding of crime must be related to the larger context that makes crime possible. Our understanding is ultimately for the transformation of society.

THE CONCEPT OF CRIME Important words go beyond the assigned boundaries of their dictionary meanings. A critical interpretation of the historical development of words in any language would bear witness to this. Crime is one such important word, a word that signifies different meanings to many different people and is always straining at the boundaries of its conventional meaning. To a great extent the meaning of crime depends upon the social location from which one is approaching the problem of crime. Thus, crime begins to have meaning for us in the course of formulating an idea of crime related to our experience, an idea that is meaningful for our lives. The

1

2

Crime and Social Order

concept necessarily depends upon the interests and perceptions of those who are constructing the concepts. There are, for instance, the concepts of crime held by the legal authorities of the state, including the police, lawyers, and judges. Criminologists, those who study crime, often construct their own ideas of crime. And, of course, various attitudes are held by the general public toward crime. All of the meanings of the word are ultimately rooted in different perceptions of reality. In other words, diverse concepts of crime, rooted in diverse social histories, are employed simultaneously for different purposes. Therefore, in order to gain an understanding of crime, we must first consider its multiple meanings. The objective is to develop an understanding of crime that will be of maximum use in our critical investigations. The various conceptions of crime differ from one another primarily in the extent to which they refer to the criminal law, that is, to the degree they conform to the state’s definition of crime. On the other hand, the nonstate definitions of crime go beyond its legal meaning. For example, a completely subjective definition of crime and the criminal was noted by an early sociologist in the suggestion that the criminal is “a person who regards himself as a criminal and is so regarded by society” (Burgess, 1950, p. 35). On other occasions sociologists have argued that because criminal laws change in the course of time, vary from one locality to another, and are often arbitrary, the legal categories of crime do not provide satisfactory units for scientific analysis (Lindesmith & Dunham, 1941). Using a different approach, Thorsten Sellin (1938), in broadening the scope of criminology, suggested that criminology includes the study of the violation of all “con¬ duct norms.” But it is important to note that Sellin did not extend the concept of crime beyond violation of the criminal law, stating that “it is wiser to retain that term crime for the offenses made punishable by the criminal law and to use the term abnormal conduct for the violations of norms whether legal or not” (p. 32). Edwin H. Sutherland (1949) proposed a definition of crime that has been adopted by most sociologists. The essential characteristic of crime is that it is behavior which is prohib¬ ited by the State as an injury to the State and against which the State may react, at least as a last resort, by punishment. The two abstract criteria generally regarded by legal scholars as necessary elements in a definition of crime are legal descriptions of an act as socially harmful and legal provision of a penalty for the act. (p. 31)

Following this conception, an act is a crime only when it is in violation of a criminal law. The importance of the criminal law to a definition of crime was force¬ fully presented in 1933 by Jerome Michael and Mortimer J. Adler in their

The Concept of Crime

3

examination of the field of criminology. According to their argument, there would be no crime without criminal law. 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 law produces the behavior which it prohibits, 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, (p. 5)

Michael and Adler concluded that “the most precise and least ambiguous definition of crime is that which defines it as behavior which is prohibited by the criminal code” and that “this is the only possible definition of crime.” Later, C. Ray Jeffery (1956) was to similarly argue: “Where does crime exist, if not in the legal codes?” (p. 671). The legalistic definition of crime was taken to its extreme by Paul W. Tappan (1947), who suggested that “only those are criminals who have been adjudicated as such by the courts (p. 100). But Tappan’s conception of crime is not as legalistic as it might appear at first glance. In this con¬ ception, Tappan recognized the important and essential point that a person is a criminal by the fact that a definition has been imposed on him or her by others, in particular, by the authorities of the state who are charged with the administration of the law. The labeling of persons and behaviors as criminal—the imposition of a legal category—is nothing other than a social enterprise. While not necessarily implying that the person must reach the stage of being adjudicated in the courts before he or she is regarded as criminal, a writer some time ago defined the criminal in terms of the legal action of others: A criminal is one who acts in such a way that organized society, in the form of the community of which he is a part, is compelled to declare that the act and the actual or potential consequences of that act are a menace or injury to it, and is forced to take steps to suppress further activities of his along similar lines. (Levitt, 1922, p. 90)

In a similar fashion, Richard R. Korn and Lloyd W. McCorkle (1959) have offered a definition of crime that indicates that an act is not a crime until the offender is caught, tried, and punished, crime thus being “an act or omission ascribed to a person when he is punished by the authorities in continuous political control over the territory in which he is” (p. 46; see also Turk, 1964). To a number of criminologists, then, crime is a legal status that is assigned to behaviors and persons by authorized agents of the state. More recently the question has been raised as to whether the legalistic concept of crime limits the criminologist to the established order and its

4

Crime and Social Order

_ Table 1.1: The Concepts of Crime I.

Legal Concept: Crime as a legal category assigned to conduct by authorized agents of the state. Level of Meaning (corresponds to stage of legal process): 1. Crime = Violation of criminal law formulations (formulation stage) 2. Crime = Arrest (arrest stage) 3. Crime = Prosecution (prosecution stage) 4. Crime = Conviction (conviction stage)

II. Social/Popular Concept: Crime as conduct that does not necessarily involve either the violation of a criminal law or the application of the legal category to the conduct. Level of Meaning: Crime = Violation of human rights

official version of reality. The argument has been presented by Herman and Julia Schwendinger (1970) and others following their lead, that a legalistic concept prevents criminology from examining—or even ques¬ tioning—the existing institutions and arrangements of the society as them¬ selves criminal. There is, indeed, the danger that a sole reliance on the state’s definition of crime can lead to an uncritical acceptance of the exist¬ ing order. As unwitting ancillary agents of power, many criminologists often provide the kind of information that governing elites can find useful in manipulating and controlling those who threaten the established system (Hartjen, 1972). This discussion leads ultimately to the development of a critical and nonviolent criminology. We recognize, then, that several concepts of crime coexist. Each concept serves the interests of those who treasure it. As shown in the table above, these concepts can be separated into two basic groups and five levels of meaning. The first four levels correspond to the legal concept of crime. Crime, according to these four levels of meaning, refers to the legal category that is assigned to conduct by authorized agents in a politically organized society. Each of these first four levels of meaning depends upon a certain stage of the legal process in which the category of crime is applied—formu¬ lation of criminal law, arrest, prosecution, and conviction. The fifth concept of crime is the one employed by the public (and sometimes by criminologists) to refer to conduct that does not necessarily involve either the violation

Legal Order and the State

5

of a criminal law or the application of the legal category to the conduct. Undoubtedly several meanings of crime are contained within this last pop¬ ular conception of crime, all involving a violation of basic human rights. The notion of crime as social injury, social harm, or a violation of human rights is, in effect, basic to those who strive to improve the human condition, for it provides the intellectual and practical tools for the reconstruction of society.

LEGAL ORDER AND THE STATE The legal order of a society is recognized as the official regulator of the various realms of social life. Although several different kinds of norm¬ ative systems operate to control behavior, the law of the state establishes the formal restraints for all members of the society. And associated with law are the formal means of assuring compliance with the official regulations. The legal system in a society is thus regarded as the prime example of formal social control. Accordingly, the law consists of (1) explicit rules of conduct, (2) planned use of sanctions to support the rules, and (3) desig¬ nated officials to interpret and enforce the rules (Davis, 1962). Roscoe Pound (1943), the legal scholar, observed that as societies have increased in complexity, the law as a formal means of control has developed to regu¬ late social life. Regulation of the members of society has tended to shift from the informal controls of the family and religion to the formal control of the state. Pound noted that “in the modern world law has become the paramount agent of social control. Our main reliance is upon force of a politically organized state” (p. 20). In addition to the concept of law as a type of formal social control, virtually all legal scholars and social scientists have defined it in terms of the body of rules created and enforced by a sovereign state. The state is seen as a political community that governs a territory and all the inhabitants within it through the use of authorized power and through the threat or application of punitive sanctions. Yet, certain scholars have departed from this prevailing view of law. Max Weber (1954), for example, conceived of legality as a legitimated pattern of normative rules, whether the rules are of the state or fall outside the province of the state. According to Weber, all legal orders are “externally guaranteed by the probability that coercion, to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose” (p. 5). However, Weber was clear in distinguishing between the law of the state and the law of other bodies:

6

Crime and Social Order

We shall speak of “state” law, i.e., of law guaranteed by the state, only when, and to the extent that, the guaranty for it, that is, legal coercion, is exercised through the specific, i.e., normally direct and physical means of coercion of the political community. . . . Wherever the means of coercion which constitute the guaranty of a “right” belong to some authority other than the political, for instance, a hierocracy, we shall speak of “extra-state law”, (pp. 14, 16)

Subsequent writers, taking Weber as a point of departure, have argued that “the traditional view of law as an integral part of the state has tended to obscure the fact that law exists in nonstate contexts as well” (Evan, 1962, p. 183). They point out that the growth of large-scale organizations is the representative characteristic of modern life and that in industry, govern¬ ment, education, medicine, and so on, the bureaucratic principle—the principle of rational coordination—prevails. Moreover, there is a modern trend toward a convergence of governmental and nongovernmental forms of organization and modes of action, a blurring of the public and private sectors of economy and society. Government today includes many activities not directly related to the functions of the state, and many private organizations tend to be quasi-public in operation. This phenomenon has prompted Philip Selznick(1961, 1963) to write the following in regard to the concept of legality: A kind of legality seems to develop within these large enterprises. In both public and private bureaucracies, authority and rule-making tend to take on the impersonality, the objectivity, and the rationality of a legal system. (1963, p. 88)

Although in basic agreement with Weber’s concept of legality, Selznick (1968) takes exception to the notion that a legal order exists only when there is a coercive apparatus for purposes of norm enforcement. In modern organizations, legality may be achieved through authority rather than coer¬ cion. The legal order, according to this conception, is primarily an authoritative order, and to understand the distinctively legal the observer must look to that special kind of obligation in which persons act in accordance with authoritatively determined norms. A major reason for expanding the concept of legality to include rules outside those of the political state is that such an expansion may provide for the comparative study of public and private normative orders in modern society. Likewise, the traditional concept of legality is called into question when there is a desire for the comparative study of primitive and early historical normative orders in relation to the legal systems of modern societies. To the anthropologist, interested in the study of primitive law, the problem is that of differentiating between custom and law in primitive

Legal Order and the State

7

society. Bronislav Malinowski (1926), in his study of a primitive society on the Trobriand Archipelago, proposed and utilized the following “an¬ thropological definition of law”: The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another. They are sanctioned not by a mere psychological motive, but by a definite social machinery or binding force, based, as we know, upon mutual dependence, and realized in the equivalent arrangement of reciprocal services, as well as in the combination of such claims into strands of multiple relationship. The ceremonial manner in which most transactions are carried out, which entails public control and criticism, adds still more to their binding force, (p. 55)

The anthropologist Hoebel (1954), using a more restricted definition of law in distinguishing between law and other kinds of norms and sanc¬ tions, suggested that “a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting” (p. 28). A definition of law that is even more limited in range is the one proposed by A. R. Radcliffe-Brown (1956): “Law will therefore be regarded as coterminous with that of organized legal sanctions. The obligations imposed on individuals in societies where there are no legal sanctions will be regarded as matters of custom and convention but not of law” (p. 212). In this latter conception of law, some societies have no law, only customs that are supported by other kinds of sanctions. After reviewing the various anthropological definitions of law, Ronald L. Akers (1965) has proposed a formulation for comparative purposes that, while not as restrictive as the definition by Radcliffe-Brown nor as broad as some other definitions, limits law to a normative system that is sanctioned by a third party (person or agency) other than the offender, the offended, or their relatives: “A social norm is law if its breach is met by physical force or the threat of physical force in a socially approved and regular way by a socially authorized third person” (p. 306). Each definition of law is formulated for a particular purpose. For comparative purposes, either the comparison of highly complex normative orders in modern societies or the comparison of primitive and modem orders, a broad definition of law or legality may be useful. Moreover, what is essential to any definition, in addition to purpose, are the theoretical assumptions that underlie the formulation of the definition. For example, an assumption about the importance of rationality in social order will lead to one definition of law; a belief in the importance of sanctions will lead to another definition. And related both to the purpose of the observer

8

Crime and Social Order

and the theoretical assumptions is a more general theory about the role of law in society and the relation of law to the political and economic organization of the state. (See the most recent extended discussion of the theoretical foundations of law in Milovanovic, 1988.)

THE NATURE OF CRIMINAL LAW Criminal law is the ultimate form of legal control in the state. With its provisions for punishment and sanction, the criminal law stands ready to repress, among other things, any conduct that threatens the state. The concept of criminal law developed when the custom of private or commu¬ nity redress of wrong was replaced by the principle that the state is injured when it or one of its subjects is harmed. Thus, the right of the community to deal with wrongdoing was taken over by the state as the “representative” of the people. The state could now act by means of the criminal law to protect its own interests and those of the dominant economic class that it served. In formalized language, what is criminal law and how does it differ from other forms of law? In answering this question, Henry M. Hart, Jr. (1958), has suggested that such inquiry should be approached from the view that criminal law is a “method,” a way of doing something. The criminal law “is concerned with the pursuit of human purposes through the forms and modes of social organization, and it needs always to be thought about in the context as a method or process of doing something” (p. 403). What then are the characteristics of this method? 1. The method operates by means of a series of directions, or com¬ mands, formulated in general terms, telling people what they must or must not do. Mostly, the commands of the criminal law are must-nots,” or prohibitions, which can be satisfied by inac¬ tion. “Do not murder, rape, or rob.” But some of them are “musts,” or affirmative requirements, which can be satisfied only by taking a specifically or relatively specifically described kind of action. “Support your wife and children,” and “File your income tax return.” 2. The commands are taken as valid and binding upon all those who fall within their terms when the time comes for complying with them, whether or not they have been formulated in advance in a single authoritative set of words. They speak to members of the community; in other words, in the community’s behalf, with all the power and prestige of the community behind them.

The Nature of Criminal Law

9

3. The commands are subject to one or more sanctions for disobe¬ dience which the community is prepared to enforce. 4. What distinguishes a criminal from a civil sanction, and all that distinguishes it, is the judgment of community condemnation which accompanies and justifies its imposition. ... If this is what a “criminal” penalty is, then we can say readily enough what a “crime” is. It is not simply anything which a legislature chooses to call a “crime.” It is not simply anti-social conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a “criminal” penalty. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. 5. The method of the criminal law, of course, involves something more than threat (and, on due occasion, the expression) of com¬ munity condemnation of anti-social conduct. It involves, in addition, the threat (and, on due occasion, the imposition) of unpleasant physical consequences, commonly called punishment. . . . The condemnation plus the added consequences may be con¬ sidered compendiously, as constituting the punishment. (Hart, 1958, p. 403) The above attempt to distinguish criminal law from other types of law is basically consistent with the long legal tradition that places empha¬ sis on (1) the relation of the act or omission to society and (2) the nature of the reaction to the violation. Thus, Ronald M. Perkins (1957) has defined a crime as “any social harm defined and punishable by law” (p. 5). From this definition it is obvious that not all conduct that may be regarded as “social harm” in a society is regulated by law. For example, the tremendous social harm wrought by unemployment in our capitalist economy is not regarded as criminal according to Perkins’s definition. Likewise, not all conduct subject to punishment by the law is recognized in the society as “social harm.” These latter forms of conduct, while technically part of the written law, are not usually subjected to formal detection and prosecution by the state. In other words, law consists of more than the written law. There is, in addition, a “law in operation” that relies upon considerable discretion in the interpretation and appli¬ cation of the laws on the statute books. When this living law is considered alongside the written law, it is possible to regard criminal law as strictly formal regulation of behavior that is deemed harmful to society and that is formally subject to punishment by the state. Thus, rules are criminal laws if, and only if, they (1) have been created by the state, (2) contain provisions for punishment to be administered upon substantiation of

10

Crime and Social Order

their violation, and (3) provide for the punishment to be administered by the state in the name of society. The basic conceptual difference, then, between criminal and civil law is that criminal law defines conduct that is believed to be against the interest of the society, whereas civil law refers to conduct that is against the interest of the individual. In other words, a crime in the legal sense is a social wrong and a tort is a civil, or private, wrong. The distinction, however, is not always easy to maintain in practice. The practical difficulty is that any given act or omission may at the same time involve both a criminal and a civil wrong. The conventional view is that crime is an offense against the state, while, in contrast, a tort in violation of civil law is an offense against an individual. A particular act may be considered as an offense against an individual and also against the state, and is either a tort or a crime or both according to the way it is handled. A person who has committed an act of assault, for example, may be ordered by the civil court to pay the victim a sum of $500 for the damages to his interests, and he may also be ordered by the criminal court to pay a fine of $500 to the state. The payment of the first $500 is not punishment, but payment of the second $500 is punishment. This distinction between individual damage and social harm is extremely difficult to make in the legal systems of nonliterate societies, where court procedures are relatively informal. Even in modern society, the distinction is dubious, for it rests upon the assumption that “individual” and “group” or “state” are mutually exclusive. For practical purposes, the individual is treated as if he were autonomous, but in fact an act that harms an individual also harms the group in which he has membership. Also, in modern society the indefiniteness of the distinction between torts and crimes is apparent when the victim of an act which is both a tort and a crime uses the criminal law as a method of forcing restitution which could not be secured with equal facility in the civil courts. ($utherland & Cressey, 1974, p. 8)

Regardless of the practical problem of administering criminal and civil law, the question remains as to the origin of the legal concept of crime. Some legal scholars maintain, as did Weber (1954, p. 50), that the distinction between tort and crime was unknown in primitive law and in the otherwise complex legal systems of ancient societies. One difficulty in establishing the beginnings of criminal law has been the failure to distin¬ guish between crime as a concept and crime as a term. The Oxford English Dictionary gives the fourteenth century as the date of the earliest reference to the word crime. If one is looking for crime in the English vocabulary, this may be true. On the Continent, the term causae criminates was recorded as early as A.D. 614 in the edict of the Merovingian King Chlotar. Thus,

The Nature of Criminal Law

11

since the word “crime” is French, and French was not a part of the English legal vocabulary until after the Norman Conquest of 1066, one would hardly expect to find “crime” in early English legal terminology. An early English legal concept of crime was most likely incorporated in the AngloSaxon terms synn, gylt, and undoed. It is apparent, nevertheless, that the modern concept of crime did not become firmly established in English law until the reign of Henry II (1154-1189). Before Henry’s time, crime was basically a wrong against an individual and the kinship group, to be remedied by either blood or money. Cases were decided almost solely by battle and by compurgation. As a vigorous king, Henry was instrumental in strengthening his government and in reorganizing the judicial system (Sayles, 1966, chap. 21). He created the Curia Regis, a legislative, executive, administrative body, which was a court of law as well. In doing this, Henry centralized the government in the king, removing authority from the local courts of the barons and the Church. With a centralized government and the machinery for its effective administration, Henry could insist that crime was a wrong against the state. Crime consequently violated the “King’s Peace.” On the basis of legal and historical scholarship, Gerhard O. W. Mueller (1955) has shown that crime exists as a concept in early formalized codes of law. The concept of crime appears in the Babylonian code of Hammurabi of about 2270 B.C., in the law codes of ancient Palestine, in the Twelve Tables of Roman law, and in Germanic law. In the Germanic legal code, Legas Barbarorum, tort law is indicated in section Lex Thuringorum: “Who not willfully by some accident kills a human being or wounds him, shall pay lawful compensation.” And the concept of crime is indicated in section Lex Saxonum: “Who conspires either against the kingdom or the life of the king of the Francs or his sons, shall be punished with capital punish¬ ment.” We may thus conclude that, while not always expressed in the most explicit terms, the concept of crime as a wrong against society has distin¬ guished most modern systems of law. Crime in the modern sense of the concept, then, means a wrong against a politically organized society repre¬ sented by the state. Contemporary criminal law is actually composed of two separate and distinct bodies of rules, the substantive criminal law and the procedural criminal law. The substantive criminal law consists of a description of the acts that are forbidden and the punishments that may be imposed when the laws are violated. The procedural law describes how the state will deal with violators. At the same time, procedural law provides the alleged violator with pro¬ tection from unjust treatment by the state. Procedural law specifies the course of action that is to be followed at several stages of the legal process, that is, the appropriate procedure for (1) the complaint, (2) the warrant,

12

Crime and Social Order

(3) the arrest, (4) the preliminary hearing, (5) the accusation, (6) the arraignment, (7) the trial, (8) the sentence, (9) appellate review, and (10) executive clemency. Modern criminal law, both substantive and procedural, is derived from four basic sources. The majority of rules that define conduct as criminal are found in (1) constitutions, (2) statutes, (3) court decisions, and (4) administrative regulations. Constitutional law consists primarily of procedural rules and basic principles that serve as guides for future enact¬ ments and decisions. Statutory law is composed of the enactments of legisla¬ tive bodies. These laws are for the most part compiled in state and federal volumes, variously termed The Criminal Code, The Penal Code, Penal Law, and the like. In addition to such compilations, many “noncode” criminal statutes have been enacted by legislatures. These statues, pertaining primar¬ ily to commerce, agriculture, health, and welfare, are not found in the respective criminal codes but are scattered throughout the statute books. Common law, the third basic source of criminal law, consists of precedents based on earlier judicial decisions. Court decisions, sometimes collectively called “case law,” deriving from particular cases before the courts, become a part of the body of rules that are used for future determination in similar or analogous cases. This application by courts of rules announced in previous decisions is referred to as stare decisis, which means “let the decision stand.” This principle is fundamental to English and American law, although it is the practice on occasion for a higher court to overrule judicial precedents. Administrative law, the fourth source of criminal law, is composed of the regulations and rulings that are made by the numerous federal, state, and local administrative agencies. These agencies are granted authority by the legislative and executive branches of government to establish and enforce policies for the sphere of activity for which they are responsible. Within the last hundred years in the United States, and in many other countries as well, there has developed an elaborate system of administrative agencies concerned with business and public welfare. A vast bulk of criminal law has been created by these agencies. The laws are enforced and the cases are adjudicated by these agencies in the name of the government. All of the above forms of criminal law rest on a legal ideology called the ‘rule of law.” According to the rule of law, we are all bound by the law and are expected to accept the existing legal system and the political economy upon which it is based. In the United States the legal system is a reflection largely of a capitalist economy. As such, the ideology of law, or the rule of law, promotes the capitalist system in this country. Alter¬ natives to the existing legal system—and to the society upon which it rests are not readily perceived and encouraged. The capitalist ideology attempts to keep alternative forms of existence from arising.

The Rise of Criminal Justice

13

It is the capitalist legal ideology that characterizes legal efforts to control crime in the United States. Crime is regarded as a legal problem that must be controlled and punished. Changes in the society and economy that would reduce crime—and promote peace and social justice—are not given high priority in a capitalist system. Over the last few decades, the United States has entered a new stage of crime control. Criminal legislation, law enforcement programs, and judicial activity have all rapidly increased. These efforts in crime control mark the attempt by the state to respond to the crisis criminal activity represents in contemporary society. Instead of changing the social and economic system to relieve or eliminate its inherent contradictions, the state has reacted by protecting the existing order. In waging “war on crime,” the state has sought to preserve domestic order by means of the criminal law. And central to this effort is a legal ideology around a particular notion—a capitalist notion—of “justice.” The result is the emergence of the “criminal justice system.”

THE RISE OF CRIMINAL JUSTICE Justice as an ideal rests on a concrete historical foundation. In practice, justice is inevitably shaped by social reality: It is an integral part of the social, economic, and political structure of society. Rather than being removed from the material world, justice plays a crucial role in establishing and reproducing social order. Nowhere is justice more important—in theory and practice—than in capitalist society. The concept of justice has evolved with the development of capitalism. At each stage of economic development, the particular notion of justice has been tied to the material basis of production, playing a part in securing the existing order. The struggle between classes, central to developing capitalism, is regulated by capitalist justice. However mystified its definition in the popular mind, justice is a social norm that is a directive for guiding human action. Actions are judged in terms of the directive, and justice is dispensed according to some notion of equality for people in similar situations. But as social norm, following our Greek heritage, justice complies with the interests of the stronger, mainly with the needs of the ruling class as expressed in law. To our contemporary mind, questions of justice are generally restricted to a consideration of “equal justice”—and severely limited even within that realm. Again following the Greek path, justice originates in the belief that equals should be treated equally and unequals unequally. In practice this has come to mean that discrimination in dispensing justice for infractions

14

Crime and Social Order

should not occur beyond what is justified by relevant differences. This leaves wide open such questions as the concrete meaning of equality, the social reality of equality and inequality, the existence of class conflict and state power, and the struggle for a better society beyond a narrow sense of justice. Justice in contemporary capitalist society equates the limited idea of equal justice with the formulation and administration of positive law. Capi¬ talist justice, in other words, is made concrete in the establishment of legal order. All notions of goodness, evil, and the earthly kingdom become embodied in capitalist law. And in everyday life questions of justice are confined to whether or not the law is arbitrarily administered. Justice is grounded, not in some alternative idea of social good or natural order, but in the survival needs of the capitalist system. Judgment is now in the hands of legal agencies of the capitalist state. Legality and the “rational” administration of the law have become the capitalist symbols of justice. The capitalist notion of justice is most explicitly represented in the application to the problem of crime. Since the mid-1960s, with the increasing crisis of capitalism in all areas of social welfare, official and public attention has focused on rising crime and its control. A solution to the crisis has become simply that of fighting the domestic enemy—crime. In a presidential message to Congress in 1965, the “war on crime” was launched. The President declared that “we must arrest and reverse the trend toward law¬ lessness,” suggesting that “crime has become a malignant enemy in America’s midst” (“Crime, Its Prevalence,” 1965). Congress responded by enacting the Omnibus Crime Control and Safe Streets Act, noting in its opening statement the scale of the project: “Congress finds that the high incidence of crime in the United States threatens the peace, security and general welfare of the Nation and its citizens. To prevent crime and to insure the greater safety of the people, law enforcement efforts must be better coordi¬ nated, intensified, and made more effective at all levels of government” (“Omnibus Crime Control,” 1969). A new form of crime control was being established in capitalist society. Not only was the war on crime intensified by legislation, presidential com¬ missions, and policy research by liberal academicians, but the capitalist state was now instituting a new system of domestic control. Especially with the newly created federal agency, the Law Enforcement Assistance Administration (leaa), with appropriations amounting to millions of dollars, all levels of government were involved in planning and implementing an apparatus to secure the existing capitalist order (see Quinney, 1974, esp pp. 95-135). In the process, a new terminology was created: that of criminal justice. Theoretically the terminology updates the ideology of “law and order.”

Social Justice

15

But adding to the conventional image, the terminology of criminal justice recognizes the new emphasis being placed on maintaining the existing order through the tools and agencies of the capitalist state. In practice criminal justice represents an innovation in control, indeed, the establish¬ ment of a new system of control, a criminal justice system. With the euphe¬ mism of criminal justice, a new system of control has been established and (at the same time) justified. Today we are all attuned in one way or another to criminal justice.

SOCIAL JUSTICE There is an alternative to the capitalist notion of justice. In sharp contrast to the capitalist model is the idea of justice as distribution according to need. This latter form of justice is appropriate for a society based on cooper¬ ative social relations, a communal society, and a developing socialist society (Miller, 1974). It assumes that human beings behave (or are capable of behaving) cooperatively and altruistically without the use of financial rewards or penal sanctions. Although not likely to be found in capitalist societies, this notion of justice nevertheless has its own tradition. It is found in early and latter-day communal and religious movements, with basic elements present in socialist countries today. As capitalist society continues to develop its own contradictions and crises, the contrasts between divergent conceptions of justice become evident. The classic debate about the dichotomous meaning of justice still dominates contemporary social science and ethical discourse. The debate is that between Socrates and Thrasymachus which Plato chronicles in the first book of the Republic (Pitkin, 1972, pp. 169-192). When the question “What is justice?” is posed, Thrasymachus responds that “justice is the interest of the stronger,” elaborating that what is regarded as just in a society is determined by the ruling elite acting on its own interest. Later Socrates gives his formulation of justice as “everyone having and doing what is appropriate to him,” that is, people trying to do the right thing. But the modern historical consciousness of Western civilization is also deeply rooted in the Judeo-Christian prophetic tradition, a wellspring of which is the urge toward justice in human affairs. The identification of religion with political economy can in fact be seen in the scriptures of the Hebrew prophets, who looked on all history as the divine law in human life. The highly ethical religion of the Old and New Testaments sees hu¬ man society from the perspective of a holy and just God who forgives human beings but also judges them. The prophetic soul is hopeful and

16

Crime and Social Order

optimistic in the “confidence that God will form a better society out of the ashes of the present world” (Dombrowski, 1936, p. 26). The prophetic meaning of justice as social justice is in sharp contrast to the capitalist notion of justice. Distinct from capitalist justice, with its emphasis on human manipulation and control, prophetic social justice is a form of address that calls human beings to an awareness of their historical responsibility and challenges them to act in ways that will change the existing human condition (see Quinney, 1980). Human fulfillment is found in the exercise of moral will in the struggle for a historical future. The pessimistic character of a deterministic and predictive materialism is overcome in the prophetic hope for a humane and spiritually filled existence. Through the prophetic tradition, a tradition also present in the voice of Marxism, a meaning of justice that can transform the world and open the future is once again emerging.

2 The Study of Crime

Fundamental problems in the contemporary study of crime center on the substance of criminology, the meaning of criminal statistics, and modes of thought in criminology. In offering a peace and social justice perspec¬ tive, ultimately we will describe a way of thinking and being that is appro¬ priate to this developing perspective—the way of awareness.

THE SUBSTANCE OF CRIMINOLOGY The diversity of today’s criminology is to a great extent a reflection not only of the different intellectual and practical backgrounds of those who focus their attention on crime but also a reflection of their immediate, concrete reasons for studying crime. The selection of subject matter, the development of theoretical perspectives, and the particular methodology chosen in criminology have been dependent upon the location and interests of the observer in reference to the possible objects of study. What, then, is criminology? One conception of criminology is that of a discipline consisting of a cluster of fields that bear some relation to crime. These fields may embody diverse theoretical points of view or they may constitute a synthesis of perspectives. In addition, some of the fields may be devoted to the practical application of knowledge about crime. Such a conception of criminology as a unitary and autonomous science

17

18

The Study of Crime

was advocated in the late 1950s in a report prepared by members of the International Society of Criminology for UNESCO (Carroll & Pinatel, 1957, p. 15). However, a unified field of criminology may never be achieved because of the fact that several quite different intellectual and occupational enter¬ prises are engaged in the study and control of crime. In noting this diverse nature of criminology, Stanton Wheeler (1962) lists five types of contribu¬ tors to criminology: 1. Those persons who are directly involved in daily programs of crime control—a police commissioner, the director of a parole agency, a prison administrator, etc. 2. Those who train persons for professional roles in crime processing or control—faculty of schools of police or correctional administration, etc. 3. Those who are involved in policy research within a correctional or crime control system—the research staff of a state or federal agency, etc. 4. Those whose primary allegiance is to a particular academic discipline such as sociology, but who typically apply the knowledge of the discipline to problems of crime and its control. 5. Those whose contributions to criminology came essentially as side products of their primary pursuits within an academic discipline—a psychologist who studies delinquents in order to learn about conscience developments or aggression, a sociologist who finds prisons interesting because of what they can reveal for a sociology of power, (p. 141) If criminology should ever achieve any unity, it will be through a concern for a concrete problem rather than through the development of a single theoretical perspective. Although criminology is not a single disci¬ pline with any unity, there is a clearly identifiable dominant current in the history of criminology in Western society: a commitment to positivism as a methodology. In spite of the tremendous variety of its theories and research efforts, the history of criminology in Western societies has been until recently unified by the positivist assumption that crime exists as a reality independent of the reactions of others to the behavior called criminal. Thus, until fairly recent times, criminal law and its administration, or the processes by which behavior is labeled as criminal, have been seriously neglected as subjects of study in criminology. Emphasis on the offender as the principal subject matter of criminology has been to a great extent

The Substance of Criminology

19

due to the acceptance of the positivistic position. (For an extended discussion of this theme, see Quinney 1970, chap. 1.) Following the work of Lombroso, criminologists have assumed that there is a sharp distinction between the criminal and noncriminal. Subsequent research has thus been devoted to discovering why and how the offender behaves as he or she does and how he or she differs from the nonoffender. The explanation of crime has been sought in the makeup and behavior of the person. Emphasis on the individual offender to the neglect of criminal law was sharply criticized by C. Ray Jeffrey as far back as 1959: The importance of the Positive School is that it focussed attention on motivation and on the individual criminal. It sought an explanation of crime in the criminal, not in the criminal law. This is true of every theory of criminal behavior which is discussed in the textbooks today, even though the explanation is in terms of social and group factors rather than in terms of biological factors. The shift in criminological thinking has been from a biological to a sociological and psychological explanation of behavior, not in terms of a shift in interest from the criminal to crime. The emphasis is still upon the individual offender, not crime, (p. 9)

Criminologists have until recently avoided studying criminal law for a variety of reasons. The reasons include a fear of being legalistic; a lack of knowledge about the law; adherence to a status quo position, that is, accepting law and society as they exist; and the belief that the study of criminal law and its operation is unrelated to an explanation of crime. In recent times, however, criminologists have turned their attention to crim¬ inal law as a result of such forces as the development of a sociology of law within sociology; the social science emphasis in the more progressive schools of law; the availability of research funds for the study of law in a social context; and a questioning of the existing system of law and justice, brought about in part by a developing social consciousness among students of crime. As has been suggested by Austin T. Turk, the criminology of the future must focus on the explanation of the “criminality” of behavior, that is, on the labeling of behavior as criminal: If the primary aim of “criminological” research per se is not to develop theories of criminal behavior—if, indeed, any attempt to do so is doomed to failure—it follows that the traditional image of criminology as the scientific discipline that seeks to do just that is not an image which can be accepted by those who are interested in the distinctive problems of explaining criminality. (Turk, 1964, p. 460)

Modern criminal research can effectively be divided into three inter¬ related areas of study: (1) the formulation and administration of criminal law, (2) the development of persons and behaviors that become defined

20

The Study of Crime

as criminal, and (3) the social reactions to crime. In regard to the first area, attention is focused on crime as a legal definition that is imposed upon human activity by agents of society charged with the formulation and administration of criminal law. In the second area, interest centers on the process by which persons who become defined as criminal acquire their values and self-conceptions through their associations with others in social and cultural contexts. Important in the sociological study of criminally defined behavior is the relation of the forms and amounts of such conduct to the social arrangements in the society. The Marxian analysis of social structure and crime has become important in the development of critical, or radical, criminology. The third subject area, social reactions to crime, has always been of interest to the sociologist. Criminology textbooks have tended to devote at least half of their contents to such matters as crime control, prevention, and treatment. As far as criminological research is concerned, students of crime have investigated such correctional topics as the social organization of the prison, rehabilitation, and probation and parole, and have on occasion engaged in community programs for the prevention of crime and delinquency. Sociologists have studied informal reactions to crime as evidenced by public attitudes toward it. Such study can lead to an understanding of the subjective realities that people construct in regard to crime. With the construction and diffusion of these realities, crime becomes a part of the social reality of the society. Finally, the sociology of crime consists of the study of the interrelation¬ ships between the three subject areas of criminal law. For example, the defining of persons as criminal is influenced by the nature and extent of criminally defined behavior. The development of careers in crime is affected by social reactions. And to mention another of several possibilities, social reactions to crime influence the defining of persons and behaviors as criminal. Criminology as delimited by the above subject areas and their interrelations provides considerable scope for the development of significant sociological theory and research. However, no matter what the substance of criminology, future developments in the study of crime will be influenced by the larger assump¬ tions that underlie criminology. That is, the future of criminology will be closely tied to notions about the scientific enterprise and ideological assump¬ tions about the state and the relation of the sociologist to the state. The two ideologies that have dominated most research and theory in academic criminology have been those of liberalism and conservatism. Although the liberal ideology is by no means monolithic nor consistent, as Anthony Platt (1974) has observed, most of its domain assumptions are shared by criminologists. Following this liberal ideology, criminologists

The Substance of Criminology

21

have tended (1) to follow a legalistic definition of crime, accepting the definitions of the state, (2) to support reformist measures in the rehabili¬ tation of “criminals” and amelioristic reforms of society, (3) to reject gen¬ eral theory and macroscopic historical analysis, favoring pragmatism and social behaviorism, and (4) to be susceptible to cynicism and a lack of passion, ignoring the possibility of far-ranging changes in society. These liberal values are translated into the kinds of research criminologists con¬ duct, the theories they construct, and the way in which they are ideologically tied to the state. Moreover, by pursuing a narrow scientific model, also supported by the liberal ideology, criminologists tend to find their interests tied to those of the state. The conventional scientific model eliminates the possibility of dealing with values on an explicit basis. This means that the state is only superficially criticized for relatively minor failings; it is presumed right merely because it exists and has the authority. The only time that a policy might be questioned is when “scientific evidence” appears to make that policy unsound, that is, when a policy is either inefficient or uneco¬ nomical. At any rate, a narrow conception of science prevents criminol¬ ogists from making moral judgments beyond the scientific-technocratic control ethos of the state. The conservative ideology in criminology emphasizes the description of criminal behavior, in particular, and suggests that mechanisms of stronger social control need to be devised and implemented. The conser¬ vative ideology in criminology, which increased in the presidential years of Nixon, Reagan, and now Bush, assumes that human beings are in need of external control. The forms of control to be utilized are those of deterrence and punishment. There is little concern for changing the larger society to create a more humane existence. Controlling the offender rather than building a just society is the form of conservative criminology. Critical criminology, in contrast, seeks to break the hold of conven¬ tional liberal and conservative criminology and exposes the fundamental political and economic causes of crime and delinquency. It constructs definitions of crime that are in the interests of oppressed peoples and exploited classes. The legal and extralegal strategies of coercion employed by the state and its supportive institutions are critically understood. The critical criminology that has emerged in both the United States and European countries combines theory with practice. The important problem is not to “scientifically” understand the laws of the objective world, for the sole purpose of description and at best explanation, but to apply the knowledge of investigation in changing the world. Rejecting as false the distinction between theory and practice, this emergent crimi¬ nology seeks to change the social world while investigating it. Theory

22

The Study of Crime

without practice is false theory; and practice without theory can only lead to irrational action and cynicism. This is a criminology that is a force in transforming society, a criminology that is part of the movement for peace and social justice.

THE MEANING OF CRIMINAL STATISTICS A serious problem for criminology is the meaning and use of criminal statistics. Criminal statistics are ultimately used for political purposes. There seems to be an innate compulsion in the modern mind to count things and to keep a record of the counts, thus rendering that which is counted more amenable to control. Moreover, criminal statistics collected by various government agencies serve as the primary forms of data for much criminological research and as indicators of the amount of crime in society. The use of these statistics is, at the same time, a cause of consid¬ erable controversy among criminologists. Much of the controversy re¬ volves around the issue of the collection of criminal statistics, but also pertinent is the issue of their meaning and use. The meaning and use of crime statistics depends to a great extent upon the prior ideological assumptions of the person using them. Thus, we may distinguish at least three different approaches: the conservative, the liberal, and the critical. The conservative’s approach to criminal statis¬ tics is grounded in a classical set of assumptions about human behavior: Statistics on crime reflect conscious human choices to violate the social contract. Crime is freely chosen behavior, the result of the victory of passion over reason. Criminal statistics, therefore, are thought of as actual mea¬ sures of offense against a reified social contract. Politically, such a use of crime statistics suggests that the lower classes have more need of external control, for the concentration of crime in this segment of society reflects a weaker, more tenuous, commitment to the social contract. The liberal’s approach to criminal statistics incorporates a greater readi¬ ness to excuse. That is, the liberal conceptualizes all behavior as deter¬ mined to a great extent by a complex of social and psychological forces beyond the control and sometimes even recognition of the individual. This is a world view that embraces positivist as opposed to classical assump¬ tions about human nature and behavior, and the important question for liberal criminology is, therefore, What can empirical research reveal to us by way of statistical measures about the determinants of criminal behav¬ ior? What causal factors should be selected to investigate? This approach to the meaning and use of criminal statistics sees them as indicators of the variables that cause people to commit crime.

Sources of Criminal Statistics

23

Finally, a critical criminology would employ statistics on crime in a manner that radically differs from either of the above approaches. The critical theorists Taylor, Walton, and Young (1974) have argued that: The statistics, for all the criticisms that have been levelled at them . . . can fruitfully be used as evidence of the underlying trends occurring in the wider social structure. For example, criminal statistics over the years can be read and used as evidence of the enthusiasm with which the ruling class is prosecuting individuals and groups under different sets of laws and for different sets of social behaviors, (p. 454)

Critical criminologists have also argued that crime statistics can be used fruitfully as indicators, not of how bad things are, but of how good they are for the propertied classes. That is, they indicate the extent of compliance in capitalist society. Crime statistics indicate the degree to which the working class accepts or rejects the current distribution of wealth and property.

SOURCES OF CRIMINAL STATISTICS Most of the available criminal statistics that criminologists have relied upon in their research and generalizations have been derived from official sources, that is, from the statistics gathered by agencies of government. In fact, there is the tendency in criminology to regard only official statis¬ tics as valid. Accordingly, criminal statistics have been defined in the fol¬ lowing way: “By criminal statistics we mean (a) uniform data on offenses or offenders expressed in numerical terms; (b) derived by official agencies (police, prosecutors, courts, penal institutions, etc.) from their records; (c) classified, tabulated, and analyzed in order to establish relationships between or among the classes of items tabulated; and (d) published—prefer¬ ably annually—in a uniform manner” (Sellin, 1953, p. 163). The regularized collection of official criminal statistics by governmental agencies in the United States has not had a noteworthy history. The state of New York started to collect judicial statistics in 1829. Eventually, during the nineteenth century, twenty-four other states adopted the practice. The statistics were derived from reports sent by state attorneys or clerks of criminal courts to state officials. The collection of official statistics up to 1908 in the United States was summarized by Louis Robinson (1933) as follows: To sum up the situation existing at the end of the period 1829 to 1908, twenty-five states were collecting judicial statistics and twenty-three states statistics of prisoners, an impressive total were it not that with rare exceptions both kinds of statistics were of very doubtful value serving no scientific purpose. Police statistics were mentioned occasionally in

24

The Study of Crime

laws but that is about as far as they got. The Federal Government had tried from time to time in a half-hearted way to collect judicial crim¬ inal statistics, also, police statistics, but failed in each attempt. Its efforts to collect statistics of prisoners had, however, met with reasonable suc¬ cess. In the 1904 report, the earlier mistake of making the statistics relate solely to a point of time was rectified but the length of time intervening between the statistical inquiries was discouragingly long. (p. 126; see also Gehlke, 1931)

The official statistics that are available for use in criminological research are collected by several levels of government: federal, state, and local. The sources may be further divided according to the administrative stages at which the statistics have been compiled. The criminal statistics most com¬ monly used by criminologists are based on local police department reports gathered by the federal government. In 1927, at a convention of the Interna¬ tional Association of Chiefs of Police, a Committee on Uniform Crime Reports was appointed. Two years later the committee published a guide for the collection of police statistics titled Crime Reporting: A Complete Manual for Police. In 1930, the Federal Bureau of Investigation took over the system of reporting police statistics and issued the first bulletin of the Uniform Crime Reports. The Uniform Crime Reports'were, published monthly at first, then quarterly until 1944, and semiannually until 1957. Since 1958 the Uniform Crime Reports have been issued annually, with preliminary reports being prepared on a quarterly basis. Statistics on matters of prosecutions, dismissals, acquittals, convic¬ tions, prison sentences, fines, and probation are compiled and published as judicial statistics. In 1932, the United States Bureau of the Census began to publish such statistics for state courts but discontinued the task in 1947. Some states continue to collect their own court statistics. How¬ ever, because of great variations in collection procedures, state comparisons are nearly impossible. On the federal level, the Administrative Office of the United States Courts publishes an Annual Report that compiles the judicial statistics of the federal courts. In regard to juvenile delinquency, judicial statistics of youth who appear before selected local courts have been published since 1946, under the direction of the Children’s Bureau of the United States Department of Health, Education and Welfare, in a series known as Juvenile Court Statistics. Statistics on prisoners have been published annually since 1926 in National Prisoner Statistics. Presently under the direction of the Federal Bureau of Prisons of the United States Department of Justice, this report includes information on the number of commitments to state and federal penal institutions as well as information on prison populations and discharges. The Federal Bureau of Prisons also issues an annual report entitled Federal Prisons, which provides statistical data on persons convicted of violations

Sources of Criminal Statistics

25

of federal laws. In addition to the federally gathered statistics, several state departments of corrections issue periodic reports on prisoners within their jurisdictions. Further sources of criminal statistics include the reports of a number of other governmental and private agencies. Included are such reports as the following: Vital Statistics in the United States, which incorporates the reports of homicide submitted by local coroners; special reports occasionally published by the United States Treasury Department; reports of special offenses against the Federal Deposit Insurance Corporation; information on certain federal violations reported in the Annual Report of the Attorney General of the United States; records of burglaries and robberies committed against member banks of the American Bankers Association; reports of state departments of public welfare; and special surveys and reports of historical interest, such as Criminal Justice in Cleveland of 1922, The Missouri Crime Survey of 1929, the Survey of the Administration of Justice in Oregon of 1932, and the series of reports in the state of New York in the late twenties by the Commission on the Administration of Criminal Justice. (For a discussion of these and other surveys, see Peterson, 1945.) An important source of criminal statistics in the 1970s was the National Crime Panel (1974). Surveys were made of crime in selected metropolitan centers across the country. Under the actual administration of the U.S. Bureau of Census and sponsored by the Law Enforcement Assistance Administration, the panel measured the extent to which individual adults (persons over twelve), households, and commercial establishments were being victimized. It gathered nationwide data on victim characteristics, relationship between victim and perpetrator, time and location of offense, degree and amount of injury or loss suffered, and whether or not the incident was reported to the police. The surveys, now discontinued, were a result of the recommendations made by the 1967 President’s Commission on Law Enforcement.

Criminal

Statistics as Measures of the Amount of Crime

Because most collections of criminal statistics have been gathered for pur¬ poses other than those explicitly intended in any particular criminological research, the appropriate use of criminal statistics by the criminologist is an important issue. Basically, all criminal statistics represent the operations of agencies that are charged with the administration of criminal law. Most criminologists, and the general public for that matter, have attempted to use criminal statistics as measures of the “actual amount of criminality” in any given geographical area or in the country as a whole. There is indeed controversy over the issue of the appropriateness of criminologists using official criminal statistics as raw data in their scientific research.

emzabeth

26

The Study of Crime

Thus, Austin Turk (1972) argues: It is genuinely puzzling that scientists have been so persistent in trying to carry on research using second-hand and, for their purposes, virtually useless data collected by non-scientists for non-scientific purpose, and that they have for so long, in Sellin’s words, “permitted non-scientists to define the basic terms of inquiry.” (p. 8)

When criminal statistics are used for the purpose of assessing the “true” incidence of criminality, a number of valid criticisms may indeed be raised concerning the methods of collection. Appraisals such as the following have relevance if criminal statistics are used to indicate actual criminality: The statistics about crime and delinquency are probably the most unreliable and most difficult of all social statistics. It is impossible to determine with accuracy the amount of crime in any given jurisdiction at any particular time. Some behavior is labeled “delinquency” or “crime” by one observer but not by another. Obviously a large propor¬ tion of all law violations goes undetected. Other crimes are detected but not reported, and still others are reported but not officially re¬ corded. Consequently any record of crimes, such as crimes known to the police, arrests, convictions, or commitments to prison, can at most be considered an “index” of the crimes committed. But these “indexes” of crime do not maintain a constant ratio with the true rate, whatever it may be. We measure the extent of crime with elastic rulers whose units of measurement are not defined. (Sutherland & Cressey 1974, p. 25)

On the basis of such criticisms, numerous suggestions and recommen¬ dations have been made to improve the collection of criminal statistics, especially to improve the procedures used in the Uniform Crime Reports. (See, for example, Lejins, 1966; Pittman & Handy, 1962; Robinson, 1966; Wilkins, 1965; and Wolfgang, 1963.) A principal difficulty in the use of available criminal statistics as indexes of criminality in the United States results from the lack of uniform reporting. Because of the political orga¬ nization of the United States, each of the fifty states represents a separate political jurisdiction. Each state has its own constitutional provisions, penal codes, courts, criminal procedures, and systems of law enforcement. Furthermore, the administration of criminal law in each state is not cen¬ tralized but is, instead, a localized activity. These political facts create considerable variation in the recording of criminal offenses and thus pro¬ hibit the comparability of information on criminal offenses from state to state and from one locality to another within states. Thorsten Sellin pointed out as long ago as 1931 that “the value of a crime rate for index purposes decreases as the distance from the crime itself in terms of procedure increases” (p. 346). That is, police records are

Sources of Criminal Statistics

LI

more reliable measures of the actual incidence of criminal offenses than arrest statistics, arrest statistics are more reliable than court statistics, and court statistics are more reliable than prison statistics. The implication is that many offenses are “lost” between the records of police and prose¬ cution. It is with an awareness of these facts that criminologists usually use the police records to make inferences about the extent of criminality. The principal source of such information is found in the statistics desig¬ nated as “crimes known to the public.” These statistics, as contained in the annual Uniform Crime Reports, consist of the offenses that are recorded by the police departments of approximately eight thousand jurisdictions in the United States. For purposes of the annual report, the offense records of the local police departments are grouped into offense categories. Several of the categories (murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny of fifty dollars and over, and motor vehicle theft) are combined and designated by the Federal Bureau of Investigation as the “Index of Crime.” Perhaps the most critical problem in the use of official criminal statis¬ tics as indicators of the incidence of criminality, even when “offenses known to the police” are employed, is that there exists an unknown amount of criminality that never becomes a part of the public record. For various reasons many criminal offenses are never reported to the police or, when reported, are not recorded by the police. Any given violation of the crim¬ inal law is likely to carry with it a certain probability that it will come to the attention of the law enforcement agencies. The probability that an offense will not be reported or recorded is related to a number of factors: (1) Some offenses are known only to the offender, and, thus, are not likely to be reported by the offender. (2) Because of a lack of knowledge of the criminal law, victims and witnesses will not report criminal violation. (3) Witnesses to an offense may not want to report the offense because of inconvenience, embarrassment, fear, or lack of interest in law enforce¬ ment. (4) The victim or witness may fear the possibility of being implicated in the violation or in other violations if investigated. (5) The victim or witness may fear reprisal if the criminal offense is reported. (6) Friends and relatives may try to protect the offender and, therefore, not report the offense. (7) The victim may fear unfavorable publicity and embarrass¬ ment. (8) Social values and public opinion do not favor the full enforce¬ ment of certain criminal laws. (9) Some criminal offenses because of their nature are not readily visible to the general public or law enforcement agencies. (10) Law enforcement agencies may wish to conceal some criminal offenses (based on Clinard, 1963, and Sellin, 1963). Biasing influences on arrest records for all categories of crime further distort our perception of the real world and what is actually happening. Many special forms of reported offenses are not collected in the traditional

28

The Study of Crime

sources of criminal statistics. Among these offenses are those that occur in commerce and industry, management-labor relations, union manage¬ ment, income-tax reporting, and social security and public administration. These offenses are for the most part dealt with by state and federal regula¬ tory agencies. The statistics in regard to these offenses, therefore, are in the files and reports of the respective agencies. Such criminal records do not usually become a part of official criminal statistics. Reliance on the traditionally collected criminal statistics obscures the prevalence of these and other crimes. Official statistics thus serve better as indicators of the reaction of society to certain kinds of offenses than as measures of the amount of criminality in society, and if we are looking for the rates of crime in American society, we are not likely to find them in the statistics gathered thus far by government agencies.

The Meaning of Crime Rates The use of official criminal statistics as measures of the incidence of criminal¬ ity is thus a questionable practice. Furthermore, to criticize the existing criminal statistics and to advocate better crime-reporting procedures is to accept the assumption that official statistics can in themselves serve as indexes of the actual amount of crime. Nevertheless, official criminal statis¬ tics continue to be used as indicators of criminality in society. Numerous studies have drawn upon official statistics in the attempt to draw conclu¬ sions about the extent of crime and delinquency and the characteristics of offenders. The conclusions often reached in the use of official criminal statistics is that the crime rate is higher than it “should be” and that, in addition, the crime rate has continued to increase steadily since World War II. The student of crime, and the entire public, will continue to be periodically reminded that the crime rate for the current year is higher than that of previous years. Newspapers report as news the releases of the annual Uniform Crime Reports. We are reminded by the FBI that our crime rate con¬ tinues to increase sharply. Once knowing that the crime rate is increasing, we are expected to experience collective alarm. The reader is not usually! however, provided with the additional information that it is not certain what the criminal statistics mean. They may mean only that law enforcement procedures change from year to year. The crime rate may not reflect the actual amount of crime so much as it reflects the way police departments operate and change in their operations. It may well be that the wrong question is being asked of our criminal statistics. Official criminal statistics, in the first place, represent only a fraction of some unknown amount of offensive behavior in any given geographical area. In this use of criminal statistics, there is much “hidden

Sources of Criminal Statistics

29

criminality,” and the statistics are “dark figures.” Second, because most of human behavior can at some time be labeled as criminal by those with the authority to so label, the statistics reflect the policies and behaviors of the agencies engaged in the administration of criminal law. The fact is that all human behavior has a probability of becoming defined as criminal in one of the stages of criminal procedures. Thus, the conception of official criminal statistics must be broadened to include the fact that criminal statistics also represent the process of labeling behavior as criminal. Rather than assuming that criminal statistics indicate only the incidence of criminal behavior, it must be assumed as well that criminal statistics reflect differentials in the administration of criminal law. (Such an approach to criminal statistics is suggested in Kitsuse & Cicourel, 1963, Newman, 1962; and Wheeler, 1967.) These two conceptions of criminal statistics may not necessarily be regarded as mutually exclusive. A third meaning of criminal statistics is that they reflect a combination of the first two conceptions, that is, that they reflect a mixture of the incidence of criminality and the administration of criminal law. A fourth meaning of criminal statistics, on a distinct conceptual level, is that they are indicators of the socially recognized volume of crime. In this conception, official statistics are viewed as production figures from the standpoint of the society. Whether there is more or less “actual” criminality, strict or lenient administration of criminal law, or some combination of criminality and administration is not the issue. The crucial question is why societies and their agencies report, manufacture, or produce the volume of crime that they do. With a similar notion in mind, Donald R. Cressey suggested that the kind of reporting system that is devised in a society serves useful purposes for the varying personnel that are engaged in the control, treatment, and prevention of crime. A vagueness in criminal statistics is useful because it decreases the wide range of ideological and theoretical commitments of the many persons dealing with criminals. Thus, Cressey (1957) suggested a “sociology of crime reporting”: The kind and amount of statistics compiled on crime and delinquency are in a very real sense, an index of social concern about crime and delinquency. Why do we report and compile what we can do? What pressures are there on workers in the field to report some deviations and not others? What pressures are there for and against establishment of uniform categories for reporting and compilation? Why do we ask the personnel who are in direct contact with criminals to look at what they look at? (pp. 240-241)

For us, then, the meaning of criminal statistics can be stated as follows: They represent the nature and extent of crime recognized in any given society or jurisdiction at any particular time.

30

The Study of Crime

Politics of Crime Rates In the final analysis, crime rates have to be understood as political devices. It is for political purposes that criminal statistics are gathered. And, like¬ wise, it is according to political needs that criminal statistics are interpreted. American crime rates are thus subject to a great manipulation from their inception to their use. It is impossible to know from any statistic the “true” rate of crime. Whether crime is increasing or decreasing in American society is a question that can never be answered in any objective way beyond the politics of the times. Crime rates, therefore, are used to justify or instigate a multitude of political (including social and economic) interests. High crime rates, for example, are used by the police to rationalize the need for more personnel and equipment. At the same time crime rates cannot be drastically reduced by the police without jeopardizing the allocation of further appropriations. The contradiction is that the police have an interest in maintaining both a high and low rate of crime concurrently. In recent decades politicians have made crime rates an issue in their political campaigns. Many candidates for various offices have promised to reduce the crime rate. Barry Goldwater, the Republican presidential candidate, introduced “law and order” into the campaign of 1964. The rhetoric was escalated by the candidates in the 1968 presidential campaign. Each candidate developed his own version of law and order as a battle cry in the campaign. Richard Nixon, then the Republican candidate, touched it off in his acceptance speech at Miami, charging that “some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal (quoted in Cook, 1968, p. 38). In even greater detail, Nixon presented his position on law and order in a paper entitled “Toward Freedom from Fear. His position was made clear: “Just as justice dictates that innocent men go free, it also means that guilty men must pay the penalty of their crimes. It is the second part of justice to which the nation must begin to address itself in earnest. ... By now Americans, I believe, have learned the hard way that a society that is lenient and permissive for criminals is a society that is neither safe nor secure for innocent men and women” (quoted in Reiss, 1968, p. 3). The Democratic candidate, Hubert Humphrey, responded by promising to halt “rioting, burning, sniping, mugging, traffic in narcotics, and disregard for law.” But he added that “the answer lies in reasoned effective action by our authorities, not in attacks on our courts, our laws or our Attorney General” (quoted in Cook, p. 38). The former governor of Alabama, George Wallace, running as an independent candidate, took the extreme position on the law and order issue. His solution was simple: Free the police of all restraint. Wallace

Modes of Inquiry in Criminology

31

repeated his position every place he went, usually bringing the house down with the message: “If you walk out of this hotel tonight and someone knocks you on the head, he’ll be out of jail before you’re out of the hos¬ pital, and on Monday morning they’ll try the policeman instead of the criminal. That’s right, we’re going to have a police state for folks who burn the cities down. They aren’t going to burn any more cities” (quoted in Cook, p. 38). The law and order issue was becoming a racist euphemism for suppressing the demands of blacks in the urban ghettoes. The law and order issue, with its own variations, was repeated in the presidential election of 1972. This time, Richard Nixon, the incumbent, argued that the crime rates were actually decreasing during his administra¬ tion. George McGovern, the Democratic candidate, refuted Nixon’s use of criminal statistics. A “numbers game” was being played with the American crime rates. McGovern nevertheless found it necessary to offer similar law and order programs for the control of crime. Crime control now was clearly a means for protecting the destruction of the established order. The use of crime and criminal statistics for political ends continues to this day. Each presidential election, and many of the congressional and local elections, incorporates issues of crime into the campaign. Once elected, political officials use crime for their own political ends. The current “war on drugs” is the latest instance of the politics of crime. By turning atten¬ tion to crime, the larger problems of contemporary society are being ig¬ nored. Rather than facing the deeper sources of crime, requiring exten¬ sive changes in the society, only the symptoms are being addressed. Critical inquiry and awareness are yet to enter the political realm. Only now are they beginning to inform our understanding of crime in the field of criminology.

MODES OF INQUIRY IN CRIMINOLOGY Criminologists examining their research—their techniques, rules, and meth¬ ods for studying crime—divide it into general categories, the traditional “research methods” of criminology. Very generally the kinds of methodolo¬ gies used in studying crime are: (1) statistics on the characteristics of crime; (2) statistics on traits and conditions of criminals; (3) the individual case study of criminals; (4) the study of the criminal in the natural setting of the everyday world; and (5) the experimental method. Actual research is much more complicated than these categorical meth¬ ods indicate. All research is essentially a process, requiring choices at many stages during the research. The methods are many and are combined in various ways during the research. Methodological decisions are made on

32

The Study of Crime

such diverse matters as the kind of research case to be used, the type of research population and sample, the sources of data to be collected, the techniques for gathering data, and the methods for analyzing the research figures. The design that organizes the research is just the first problem in criminological work; research findings must be related to a body of theory. At all stages there is an interplay between theory and research. In fact, it is often the theory of crime chosen by the researcher that determines which methods will be used. Ultimately, however, the student of crime has to work with much broader assumptions than those needed for research—assumptions con¬ cerning ontology (the philosophical study of being) and epistemology (study of knowledge). That is, the criminologist is constantly faced with assumptions about reality and the grounds of knowledge which shape the accumulating facts about crime. What we know as criminology is formed more by such assumptions, including our own values and ideology, than by the concrete methods of research. Research methods are inextricably linked to the criminologist’s notions about the world. When we discuss criminological research and thought, we can divide the different approaches into more general forms, modes of inquhy con¬ taining assumptions about reality. The various modes can be divided into (1) the positivist, (2) the social constructionist, (3) the phenomenological, and (4) the critical. These modes of inquiry underlie the historical types of criminology discussed in chapters 3 and 4.

Positivism The positivist mode of inquiry follows a simple epistemology that absolutely separates the knower from the known, assuming that objectivity is possible. Unhampered by emotion or bias of subjectivity, positivists believe that an order exists independent of the observer. The observer’s cognitive apparatus (intellectual ways of getting knowledge about perceptions or ideas) ideally does not affect the nature of what is known. With enough knowledge, accumulated systematically, the scientist can predict future events and control their occurrence. An orderly universe could be established by knowledge and by manipulating the external world. With the mechanistic conception about how social facts are related, positivists usually present their explanations as governed by causality, the connection between cause and effect. They do not examine nor do they consider the philosophical assumptions by which the observer operates (see Louch 1969). Nor do they accept that the explanation depends upon the kinds of things investigated or that it requires describing the unique

Modes of Inquiry in Criminology

33

context in which every event occurs. Likewise, positivists refuse to recog¬ nize that to assess and make statements about human actions is to engage in a moral endeavor; they see their activity as “value-free,” free from the biases of the observer. The intellectual failure of positivism is that it is not reflective—the positivist makes little or no attempt to examine or even question the meta¬ physics or methods of inquiry, to turn the activity of explanation back upon itself, to be introspective, to look inside the self. Positivist thought has also failed politically because it accepts the status quo, the way things are. Positivists do not question the established order, just as they do not examine scientific assumptions. The official reality, the ideology that emphasizes bureaucratic organization, modern technology, centralized authority, and scientific control, is the one within which positivists operate and which they accept, support, and take for granted (see Schaar, 1970, esp. pp. 303-308). Criminologists who have adhered to positivism consequently have devoted almost all their efforts to established interests. Traditionally they have concentrated on the violator of criminal law, not the legal system itself (see Jeffery, 1956). They usually try to solve the crime problem by changing the law breaker, not the legal system. Some criminologists, real¬ izing that law itself is problematic and open to question, have turned to the study of law. But for the most part even these studies have been based on the positivist mode of thought. Following the positivist mode of inquiry, criminologists have developed their own wisdom about social and political life, but their research and theory have done little more than provide a rationale for the established order, the status quo. No social theory that would allow for human liber¬ ation from oppression of any kind has been found and it now seems that positivistic thought cannot provide liberating conceptions of human exis¬ tence. Instead, we must turn to alternative modes of inquiry.

Social Constructionism Social constructionist thought begins with a recognition of philosophical idealism, an ontology that questions the existence of an objective reality apart from the individual’s imagination. Social constructionists assume that objects cannot exist independently of our minds; that they are ideas, not things, and that any reality is significant only as long as it can be perceived. The epistemological assumption is that observations are based on mental constructions instead of raw apprehension of the physical world. The social constructionist is primarily interested not in the correspondence between “objective reality” and observation, but in that between observation

34

The Study of Crime

and the utility of such observation in understanding our own subjective, multiple worlds. Following these assumptions, the social scientist’s constructs have to be upon the world created by social actors. Alfred Schutz (1963) conceptual¬ ized the problem: “The constructs of the social sciences are, so to speak, constructs of the second degree, that is, constructs of the constructs made by the actors on the social scene, whose behavior the social scientist has to observe and explain in accordance with the procedural rules of his science” (p. 242; also see Berger & Luckman, 1966). The world that is important to the social constructionist, then, is the one created by the social actions of human beings by interaction and communication with others. This social reality involves the social meanings and the products of the subjective world of everyday life. The social constructionist mode of inquiry is a major advance over positivist inquiry in the crucial area of reflexivity, in turning back to con¬ sider its own techniques. Social constructionists question the process by which we know instead of taking it for granted; they reflect on our activity as observer, using to advantage the social and personal character of obser¬ vation. But this reflexivity does not extend to a political position, and possible political action, a shortcoming inherent in the constructionist mode of inquiry. Moreover, social constructionist thought generally concentrates on the world of meanings created by social actors. It emphasizes, especially in ethnomethodological studies (which are meant to describe the actual world, or environment, of social actors), the construction of social order. Such concentration often ignores a world of events and structures inde¬ pendent of the social actors consciousness. This is the conservative side of social constructionist thought, making it inadequate for a critical perspective. Therefore, it is often necessary to revise or reject the world as some social actors conceive it. Social constructionists do give us the beginnings for examining multiple versions of reality, which might allow us to tran¬ scend the official reality, and ultimately, our current existence. But they fail to provide a yardstick for judging whether one reality has more good in it than another. Social relativism (refusing to take a value position) prevents a critical understanding of the social world. The social constructionist perspective, however, has given new vitality to the study of crime. Departing significantly from positivist studies, social constructionists have turned to the questionable legal order. Crime and other stigmatized or banned behaviors are examined first as categories created and imposed upon some persons by others (Becker, 1963). Crime exists because the society constructs and applies the label crime. Criminal

Modes of Inquiry in Criminology

35

law, too, is not separate from society, but is itself a construction, created by those who are in power. The administration of justice is a human social activity that is constructed as various legal agents interpret and impose their order on those they select for processing. The social reality of crime is thus a procedure whereby conceptions of crime are constructed, crim¬ inal laws are established and administered, and behaviors are developed following the definition of crime (Quinney, 1970). Social constructionist thought stops here, although, to be sure, it is critical in its own way. It offers the libertarian ideal that individuals should not be controlled by others, that people must be free to pursue their potential, that social order is created for political purposes. (Critiques of the labeling perspective in sociology and criminology are found in Goode, 1975; Manders, 1975; Manning, 1975; Rains, 1975; and Wellford, 1975.) Nevertheless, social constructionist thought does not show what a new world should look like, and without such an image our understanding of reality lacks a critical perspective.

Phenomenology Phenomenological inquiry departs markedly from the positivistic and social constructionist inquiries in its basic intention. The other modes are aimed at explaining social life, but phenomenological thought begins by examining how we understand the world. Explanation as a form of thought is itself examined. Though they differ considerably among themselves, phenomenologists generally agree that our knowledge of the physical world comes from our experiences. But, they continue, when we talk about the physical world we are not limited by our actual experiences; we are able to talk about possible experiences, and so we alter our perception of things in the world. As long as a physical object exists in the world, it is possible to perceive it. We are capable of perceiving the essence of things. Phenomenological thought attempts to transcend commonly assumed knowledge about the world and our place in it. It allows us to remove ourselves momentarily from our concrete experiences. The German phi¬ losopher Martin Heidegger describes this kind of thought: “Meditative thinking demands of us not to cling one-sidedly to a single idea, nor to run down a one-track course of ideas. Meditative thinking demands of us that we engage ourselves with what at first sight does not go together at all” (Heidegger, 1966, p. 53). A comportment that enables us to keep open the meaning hidden in the world, in the arrangements of modern society, is described by Heidegger as “openness to the mystery.” By this openness and a “releasement toward things,” in meditative thinking, we seek our

36

The Study of Crime

true nature. And, Heidegger adds, “They grant us the possibility of dwelling in the world in a totally different way. They promise us a new ground and foundation upon which we can stand and endure in the world of technology without being imperiled by it.” It is in the transcendental thinking of the phenomenologists that we find the inspiration for moving beyond the conventional wisdom of the age, including our contemporary knowledge of crime and the legal order. Instead of reifying the social order (treating it as if it had concrete existence), or giving an account of ordered existence, the movement is toward transcend¬ ing our experience. This is a necessary step as we begin to act in a way that will demystify the social world. The primary interest is not in develop¬ ing a new social science (still a reified science) but in creating a new exist¬ ence free of all reifications. Phenomenological inquiry by itself, however, is incomplete for attaining our objectives. Although it provides a drastic and necessary move beyond the other modes of inquiry, it lacks the critical edge that would allow us to truly transcend the present, in life as in mind. (Critiques of the phe¬ nomenological perspective in sociology are found in McNall & Johnson, 1975; and Thio, 1974.) Phenomenology does make us question the assump¬ tions by which we know and by which we live. This is its major achieve¬ ment. But we need a form of thought that allows us to actively change the existing order. We thus turn to the development of critical thought.

Critical Inquiry The critical mode of inquiry is a radical philosophy—one that goes to the roots of our lives, to the foundations and the fundamentals, to the essen¬ tials of consciousness (see Zaner, 1970, esp. pp. 112-113, 117). In rooting out presuppositions we are able to assess every actual and possible experi¬ ence. The operation is one of demystification, removing the myths created by the official reality. Conventional experience is revealed as a reification of the social order, exposing the underside of official reality. The classical philosophical tradition holds the attitude that ideas are to inform and shape actions, that life is to be enlightened by thought. Conceived in this way, thought itself is necessarily critical. In fact the chief characteristic of thinking, Hannah Arendt (1971) writes in an essay on thinking and moral considerations, is that it interrupts all doing, all ordinary activity. We are momentarily removed from our worldly associations; it is as though we enter into a different existence. Arendt adds that thinking, the quest for meaning—rather than the scientist’s thirst for knowledge for its own sake-can be felt to be ‘unnatural,’ as though men, when they begin to think, engage in some activity contrary to the human condition” (p. 424). She concludes that only with thought that is aimed

Modes of Inquiry in Criminology

37

toward ideals (with the desiring of love, wisdom, beauty, and justice) are we prepared with a kind of thought that promotes a moral existence. Only when we are filled with what Socrates called eros, a love that desires what is not, can we find what is good. Without critical thought we tend to be bound to the only form of social life we know—the current one. We are not then free to choose a better life; our only activity further supports the system in which we are bound. Our current cultural and social arrangements, supported as they are by the bureaucratic-technological system of production and distribution, are a threat to individual freedom—including the freedom to know that this system is oppressive and may be altered. Such a system can keep opposition from growing within it. In aspiring to the rewards that the system holds out to us, we are unable to consider an alternative existence. Such is the message of Herbert Marcuse (1964) in his discussion of the “one-dimensional” character of our present reality (p. 9). Only by negating the present system can we experience something else. A critical philosophy allows us to break with the ideology of the age, for built into critical thinking is the ability to think negatively, through oppositions. This dialectical form of thought, by allowing us to entertain alternatives, enables us to question current experience and better understand what exists (Marcuse, 1960, pp. vii-xiv, 3-29). Instead of merely looking for an objective reality, we are interested in opposing, or negating, the established order, which will make us better able to understand what we experience. By applying the dialectic mode of thought, we can comprehend and surpass the present. Moreover, dialectical thinking moves us to reconstruct our lives. In order to reject something we must have some idea of what things could be like. Here a critical philosophy must ultimately develop a Marxist per¬ spective. In the Marxian notion of the authentic human, being we are pro¬ vided with a concrete image of the possible. Current realities are judged by how much they alienate human beings. The imagery is transcendental, rising above common thought to attain what is natural to us by removing that which obstructs our lives. It is in contradicting an oppressive exist¬ ence, between what exists and what is authentically human, that we under¬ stand our reality and collectively act to bring about a liberating existence. To think in a Marxian fashion is to be fundamentally critical. Marxism is the philosophy of our time that takes as its focus the oppression produced by a capitalist society. It is the form of analysis that is historically specific, that is related to concrete time and place, and that locates the problems of the age in relations between the economic classes (Sartre, 1963; also see Horowitz, 1971-1972; and Oilman, 1971). A Marxist critique provides a form of inquiry that allows us to transcend in thought and action a capitalist existence.

38

The Study of Crime

Contrary to both liberal and orthodox interpretations, Marxism is highly creative thought, open to the interpretation of each generation. And with the changes in capitalism itself, from industrial capitalism to advanced monopoly capitalism, new and critical readings of Marx are necessary.

THE WAY OF AWARENESS There is a mode of inquiry that assumes the critical mode but ultimately goes beyond it. This is the way of awareness. (For an extended discussion, see Quinney, 1988.) The way of awareness is essentially critical in that it sees things as they actually are, yet it goes beyond the critical mode of thought in its meditative character, requiring a quieting of the mind and an opening of the heart. Correct thought and action come out of such awareness. The way of awareness is the appropriate mode for the developing peace and social justice perspective in criminology. It is the presumed objectivity and rationality of modem science and its personal and social consequences that critical thought seeks to avoid, especially in the way of awareness. For, as one humanistic philosopher has noted, the mind trained in such science “over a number of years becomes cold, dry, uncaring, always atomized, cutting, analyzing. This kind of mind has lost the capacity for empathy, compassion, love” (Skolimowski, 1986, p. 3 06). Our mode of thinking affects the way we live, and in the meantime we have not gotten any closer to understanding. We seek a mind that, instead of producing conflict and violence, heals—a compassionate mind rather than an objective mind. The compassionate mind is found beyond the boundaries of the Western scientific mind. We humans and this is what especially makes us human—have constructed webs of significance within which we have suspended ourselves. The Dhammapada (1936), the ancient text of Buddhism, thus states, “All that we are is a result of what we have thought” (p. 3). And it is our human nature not only to be suspended in webs of significance but to try to understand them, to search for their meaning. Living in the world of shared meaning not being enough, we humans desire to understand the world. We attempt to remove ourselves from the world of everyday life in order to understand it in a new light. For what reason do we do this? But even this question is a further removal of our lives—through thought_ from the lived experience. The human mind is a busy and insatiable cre¬ ation, craving always what is not. Thus we come to the realization that rational thought alone cannot answer the important existential questions of being human, of being human m relation to the whole world. Cultivation of the vital energy of the universe,

The Way of Awareness

39

rather than mere intellectual speculation, is the way to self-realization and to an understanding of our shared existence. The way is simple, perhaps too simple and accessible for the rational, complex academic mind to readily comprehend. Without awareness—without mindfulness—we are unknowingly attached to our ideas, our thoughts, our mental constructs, taking these productions to be reality itself. Many of our concepts are so deeply ingrained in our minds, in our culture, and in our education, that we forget that they completely condition our perceptions of reality. In unconscious attachment to these mental productions, we are chained in the cave, observing merely the shadows of appearance on the walls before us. Awareness is a breaking of the chains of conditioned thought and a viewing of reality beyond the shadows. In awareness we develop insight into the nature of the concepts we use to interpret what we think is reality. We discover our attachment to the concepts; and we then are able to move beyond the concepts to see the way things are in the moment of their occurrence. We may continue to use the concepts in living our lives and in interpreting the world in our contemporary condition. Joseph Goldstein (1983) tells the story which illustrates this: In Bodhgaya, which is where many of us studied in India, there was an elephant. Often the elephant would be walking down the road as we would be going into town. We would be walking mindfully, really slowly, paying attention. When we saw the elephant coming down the road we did not just stand there saying “seeing, seeing,” we moved out of the way. Use the thought process when appropriate, (p. 37)

With awareness, we use concepts without being a slave to them, knowing that they convey a conventional reality and that there is an underlying reality. The understanding mind, then, is the watching mind. It is a mind that is universal, original, something which is always with us. It is not a mind for which we strive, desiring to attain enlightenment, for enlightenment will come only with seeing things as they are. It is this understanding, this awareness, that places us in the proper position to know the world, to do what still might be called a critical criminology, a criminology with awareness. Ultimately, only through awareness—beyond conditioned thought—can we understand reality as it truly is. We then begin to live in a way that takes us beyond the problems and destructions of contemporary existence, beyond the problem of crime. We would not, then, leave society but transcend it, not withdraw from fellowship with others but renounce the appearances of reality in order to live fully in a spiritual life of love, union, and compassion with all beings. We would be part of the process of creating a world without crime.

3 Origins: Criminology from Its Beginnings to the Twentieth Century

From its earliest beginnings in the eighteenth-century Enlightenment, the primary focus of criminology has been on retribution, punishment, and vengeance in the cause of maintaining an existing social order. Historically, the focal concerns of Western criminology have not cen¬ tered on the themes of personal peace and social justice. Up until the present era, we have had a reactionary criminology of violence and repres¬ sion in defense of an existing social order rather than a criminology of peace, justice, and liberation. The historical drift in criminological theory has been that if crime is violent and wreaks violence on our fellows and our social relations, then the effort to understand and control crime must be also violent and repressive. As a consequence, the more the Western world has reacted to crime with institutionalized violence, the further away it has moved from any radical understanding and effective reduction of crime and crime rates. Criminology is only beginning in our era to come to the realization that all human existence is characterized by unnecessary suffering and that crime is a manifestation of that suffering. Our social institutions wreak violence on all of us, but more on some of us than on others; and we in turn react violently to one another. Our institutions separate and isolate us from one another instead of binding us together. The sources of suffer¬ ing are within each of us, as well as within the larger social institutions and systems we construct to try to solve our common problems of living.

40

Origins: Criminology from Its Beginnings to the Twentieth Century

41

Crime can be dealt with effectively only with the ending of suffering, which is to say, only when there is peace and justice among us. This means that only when we ourselves as well as our social institutions realize peace and social justice w'ill we be able to effectively reduce our crime rates. Thus it is that a criminology of peacemaking is now beginning to emerge in our time. It is a nonviolent orientation in criminology. It is an orientation that dovetails with a progressive social agenda that strives to alleviate both the terrible suffering of the citizens who make up the under¬ class in America as well as the inner anguish and meaninglessness we all experience from time to time in our lives, an anguish and emptiness that easily breeds greed and selfishness. Criminology is only now beginning to recognize human suffering and incorporate it into its way of thinking about crime. It has not always been so in the history of Western criminol¬ ogical theory. Our relations with one another on the personal and individual level are pathologically flawed with an excess of violence and hostility. We have been conditioned to accept this as the normal human situation. Conse¬ quently, our society overflows with the violence and brutality of poverty, hunger, racism, homelessness, drugs, and abuses of many kinds. Our suf¬ fering is destroying us on both the personal and the social level. And we wonder why our crime rates are so intolerably high. Indeed, given these social conditions, does it not make more sense to ask rather why are they not much higher? Throughout its history, Western criminology has not been attuned to the awareness that inner personal peace and objective social justice only come with a realization of the essential unity of the human experience— the “oneness” of us all. This awareness is not an empty dream, not an impossible quest. In our time we are just beginning to see that this goal is realized and realizable in a society where social institutions truly serve all the people equally. In other words, in place of lives lived primarily for personal gain and personal accumulation we now are starting to understand that the truly just society—and hence the crime-free society—demands a new social consciousness in each citizen. Crime is with us only as long as we want it to be with us, as long as we are unwilling to forge a new social order of just distribution, inner peace, and social justice: in short, a social order that reduces human suffering to an absolute minimum. It took a long time for criminology to come to an awareness of these truths. For criminology to rise to this level of social consciousness took some two hundred years of evolutionary struggle, an evolution that we will review in this chapter and the next. Over these two hundred and some years, criminology has grown and striven toward the objective goal of becoming scientific, a positive science;

42

Origins: Criminology from Its Beginnings to the Twentieth Century

and it has—with periodic setbacks—largely succeeded in this attempt. But the excess of objectivity and pseudorationality that characterizes much of contemporary “scientific” criminology is in our day being subjected to a growing suspicion: “Human suffering is invisible through the lense of sci¬ entific positivism” (Wildeman, 1983, p. 8). A great deal of contemporary positivist criminology has not gotten us any nearer to an understanding of crime or of human suffering, even after two hundred years of evolution. It remains for the most part a criminology of violence and domination, one devoid of the themes of peace and social justice. Another current in the history of the development of criminology is this: In the course of its historical evolution, criminology has gradually come to an awareness that crime is largely an indication of and reaction to social oppression. Social oppression is itself largely the product of per¬ sonal greed, egoism, narcissism, and the lust for power and control over the lives of others. These drives have, in turn, been more and more linked by social theorists to the alienation of human beings, and alienation force¬ fully fostered and maintained by postmodern, capitalist, industrial societies. In addition, the history of Western criminology up to our present era has been a search for a stable social order, one supported and maintained by violence, domination, and coercion. In fact, criminology developed as a reaction to the emergence of modern society in the revolutions of eigh¬ teenth- and nineteenth-century Europe. In their efforts to harness and control these revolutions, the early, classical criminologists enlisted the canons of reason and rationality as instruments of social control. Later, as we will see, criminologists turned to science in their efforts to discover the elusive “laws of society” as the prime instrument of domination and control. Whatever seemed to threaten a given social order was defined negatively as a violation of the laws of nature itself. So it was that crime was automatically defined solely as behavior that threatened to overturn the social order. Consistent with this stance, criminologists have not conceived of crime as a signal that something was awry and perverse in the existing order. They have not seen crime as a social indicator of injustice and social in¬ jury. Instead, criminologists have historically regarded crime as a path¬ ology that must be controlled by violence and repression, or—in the liberal era by treatment which, although well-intentioned, was itself typi¬ fied by violence and repression. In spite of all these unifying themes in the historical development of criminology, there has emerged no clear cumulative theoretical growth. That is, no consistent line of theoretical development can be found that leads to a well-developed, integrated body of knowledge (see Giddens, 1987, and Zeitlin, 1989). For example, there is very little in nineteenth-

Early and Classical Prescientific Thought about Crime

43

century criminological theory that we can look back on today to find the nascent elements of twentieth-century criminological theory. Criminology is virtually devoid of this type of developmental progress in its analytical or conceptual schemes, a progress that is found, for example, in chemistry or biology—or to a lesser extent in economics. Our interpretation of the history of criminology is based on the as¬ sumption that ideas about crime, its nature and causes, depend on and are related to the structure of a society at any given time. Thus, any historically given reality of crime is to be understood in relation to the particular social-structural arrangements of the society (see Lynch, 1988, a review of Jones, 1987). This chapter demonstrates that the study of crime has been characterized by a number of divergent and con¬ flicting theoretical perspectives that exist in relative isolation from one another. This is true of both mainstream criminology in the West as well as of what has been loosely called “Marxist” criminology (O’Malley, 1987). In what follows here we will review this odyssey, this fascinating jour¬ ney of criminology from its earliest prescientific beginnings to today. The major theoretical perspectives will be presented in their historical context and according to the role they have played as dominant themes or paradigms for the study of crime. In this chapter we will see three theoretical perspectives, or para¬ digms, that can be identified in the development of criminology before the twentieth century, perspectives embraced roughly by three time per¬ iods: (1) early, classical criminological thought about crime and justice, (2) nineteenth-century sociological criminology, and (3) nineteenth-century biological criminology—the Italian School.

EARLY AND CLASSICAL PRESCIENTIFIC THOUGHT ABOUT CRIME Although it may be correct to locate the beginnings of modern, scientific criminology in the first half of the nineteenth century, crime has been a topic of speculative, analytical thought for centuries. Most social and political philosophers as well as theologians have found it necessary and useful to reflect upon and make observations about crime. Plato, in his Republic, suggested that “man’s gold has always been the cause of many crimes.” Aristotle noted in Politics that “poverty engenders rebellion and crime.” St. Augustine, in his great work The City of God, refers to the great pagan heroes of ancient Rome as men who “indulged in neither public crime nor private passion,” subordinating their private property to the public

44

Origins: Criminology from Its Beginnings to the Twentieth Century

welfare. The permissibility of theft “in the greatest need” was expressed by the great scholastic theologian Thomas Aquinas in his Summa Theologica. Aquinas’s argument was simple: If you or your child is starving, it is appro¬ priate to steal some bread in spite of the law of the land. Sir Thomas More in his Utopia argued that criminality is a reflection of the nature of the state. For More, a benign and just state was a state that did not have to deal with brigands and lawbreakers because it was a state that realized peace and justice. These early thinkers found a discussion of crime indispensable for observations about individual behavior, the nature of state, church, and community, and the ideal condition of mankind in a relatively simple world—simple, that is, compared to our own. The concerns about peace and social justice that may have occupied these early thinkers were embedded in and hidden beneath their concerns for a stable and secure social order, one dominated by a small stratum of elites. Under earlier religious world views in the West, crime was traditionally and uncritically attributed to the influence of powers outside of, or beneath, this world: the legions of hell. George Void (1958, pp. 5-6) has referred to this kind of theological explanation of crime as the “demonological” explanation: “The devil made me do it,” as modern sophisticates would say. The ideas of “sin” and “moral defect” occupied popular thought and much of the writing between the sixteenth and early nineteenth centuries. The criminal was viewed as having in some way an improper, evil relation to other-world powers. In the case of female deviants, the answer was simple: They were witches and to be treated as such. In historical retrospect we can detect a common theme in these reflec¬ tions. It is this: Crime is not due to unequal and unjust social relations and social structures, but rather it is due to individual faults—pacts with the devil, possession, sin, selfishness, and even madness. Indeed, nowhere are the themes of social justice, peacemaking, and personal peace found in these reflections about the nature and causes of crime, nor are these themes to be found in the social reactions to crime that characterized these historical eras. The Enlightenment of the eighteenth century marked a radical shift from previous thinking about crime. With these thinkers and writers of eighteenth-century humanitarian rationalism came a naturalistic approach to crime, criminal behavior, and eventually the legal structure itself. That is, human reason began to emerge as the dominant causal force behind all human behavior, deviant as well as conforming. The intellectuals and writers of the Enlightenment gradually began to see criminal behavior as rooted in human beings themselves instead of in supernatural or preternatural forces. Everything was undergoing rapid change in the eighteenth century as die newly emerging capitalist organization

Early and Classical Prescientific Thought about Crime

45

of production increasingly replaced feudal arrangements of production, and Europe was inevitably being led by historical forces toward the French Revolution and its epoch aftershocks. The early emergence of industrial capitalism inevitably led to the Enlightenment; the Enlightenment, in turn, inevitably led to the French Revolution, and with all this came new ideas about crime and crime control. When philosophers and jurists devoted their attention to crime, it was now primarily in respect to the relation of the offender to the criminal law. Among the French were Montesquieu, who in 1748 in UEsprit des lois considered criminal justice at length; Voltaire, who expressed opposition to the arbitrariness of justice; and Marat, who criticized legislation in 1780 in his Plan de legislation criminelle. French socialists also gave considerable attention to crime, especially Fourier and Enfantin. A number of English utopian writers, anarchists, and early socialists observed and criticized the administration of the criminal law and penal policies in relation to social conditions. Following the French Revolution came others writing in this same libertarian tradition of the Enlightenment. In England there appeared Charles Hall’s Effects of Civilization on People of European States in 1805, Robert Owen’s A New View of Society in 1816, W. Thompson’s Inquiry into the Principles of the Distribution of Wealth, Most Conducive to Human Happiness in 1824, and Peter Kropotkin’s influential 1883 pamphlet, Prisons and Their Moral Influence on Prisoners, a work that proved to be an early forerunner of numerous modern critiques of penal systems. Without question, however, the most important ideas in prescientific criminological thought to emerge during the Enlightenment are to be found in what is commonly referred to as the classical school of crimi¬ nology. Here in the classical school we see beginning to take shape for the first time in European thought the recognition of the importance of le¬ gal justice in relation to criminal behavior. Attention to the legal dimen¬ sions of justice as embodied in a concrete social system of the administration of justice was a giant step forward in thinking about crime and punish¬ ment. The classical school of criminology represents the culmination of the eighteenth-century humanitarian rationalism that preceded the appli¬ cation of scientific methods to the study of human behavior. It marked the end of an era—the prescientific era. Guided by the assumption of a human ability to reason and to control one’s own human destiny, the classical writers directed their attention to the relation of people to the legal structures of the state. Reacting to the legal practices of the time, these writers protested vigorously against the inconsistencies and injus¬ tices of the criminal law and its arbitrary administration. They proposed instead reforms that were more in keeping with their conception of human nature and the legal system. The two indisputable giants of the classical school of criminology are

46

Origins: Criminology from Its Beginnings to the Twentieth Century

Cesare Beccaria (1738-1794) andjeremy Bentham (1748-1832). The pub¬ lication of Tratto dei Delitti e delle Pene by Cesare Beccaria in 1764 (translated in 1767 as Essay on Crimes and Punishment) established the classical school of criminological thought for the period. Other classical writers of this period included William Blackstone, Samuel Romilly, Ludwig Feuerbach, and Robert Peel. By far, the most influential of these classical writers was Beccaria. Among the most enlightened and progressive humanists of his day, this Jesuit-trained scholar was deeply influenced by the negative-critical radical thought of the philosophers of the Enlightenment. He saw the criminal justice systems of his time as a massive obstacle to human liberation, and he was outraged by the arbitrary administration of justice that characterized these criminal justice systems. To correct these contradictions, he urged that criminal law be restructured in accordance with what he saw as “the natural rights of man,” rights that people possess independently of the state. Human justice had to be brought more into line with divine and natural justice. Accordingly he argued that judges should not interpret the criminal law in their judgments, and to make this completely discre¬ tionary interpretation less necessary, Beccaria pressed for more clear and more concise wordings of penal statutes. Obscure law filled with cryptic ref¬ erences and phrases must be discarded. It can be said today that Beccaria launched a moral crusade for the rule of law over the rule of people, for formal rationality of the law over substantive rationality. Beccaria was also an enlightened humanist in his ideas for penal reform, urging only the amount of punishment of the criminal that was deemed necessary for society’s protection. His place in the history of criminology is secured by the fact that he laid the solid foundation for the far-reaching legislative changes in substantive and procedural criminal law that were to come later in both England and on the European continent. Beyond his concern for reform in the administration of criminal law, Beccaria was the leading influence in the construction of a new penology toward the end of the eighteenth century. His writings, in particular, his On Crimes and Punishments, were a singular force in bringing about the end of public executions in Europe around 1790 (Maestro, 1973, and Fou¬ cault, 1977). He was the leading figure in the penal reform movement that eventually led to the replacement of public torture and execution with imprisonment. He even drew up a prison design, which he named the panopticon (the all-seeing), which remains to this day the basic architec¬ tural design for prisons in the Western world. From any one point in Beccaria s prison, anyone could see the activities of anyone else. It is a world of virtually total social control behind high stone walls, a world wherein the lawbreaker could do penance for his crimes. A penitentiary.

Early and Classical Prescientific Thought about Crime

47

Beccaria wanted a society of kind and civilized people, and he believed that the abolition of cruel punishments, including the death penalty, would contribute to the formation of such a society” (Maestro, 1973, p. 158). What we are seeing today is the emergence of a criminology that is finally a step ahead of Beccaria in its vision of a kind and just society Today’s emerging criminology of peace and social justice also seeks a society of kind and civilized people, a society that not only does not execute its way¬ ward citizens, but one that does not produce wayward, violent citizens by its brutalizing social institutions, in sum, a society of peace and social justice. Unknowingly, Beccaria and his contemporaries in the classical school stood at the bedside of a dying feudalism, and they witnessed the birth of a new era. This new era saw the ascendency and domination of a new mode of production and its new ruling class, the bourgeoisie: capitalism and the capitalist class. However, because the eighteenth century was a period of transition, it could give these men no clear insight into the class relations “of what would eventually become recognizable as an historically specific mode of production, that of capital” (Brown, 1986, p. 2). Thus, classical theory was historically determined to reflect and represent the interests of the rising bourgeoisie as embodied in the new legal positivism that was taking shape largely under the leadership of Jeremy Bentham (Postema, 1986). According to Bentham’s slogan of “the greatest happiness of the greatest numbers,” utility was the measure of all goodness. In practice, however, this tended to mean that the good of society was placed before the rights of the people. The whole of classical theory has been summed up as follows: 1. All people being by nature self-seeking are liable to commit crime. 2. There is a consensus in society as to the desirability of protect¬ ing private property and personal welfare. 3. In order to prevent a “war of all against all” (Hobbes), men freely enter into a contract with the state to preserve the peace within the terms of this consensus. 4. Punishment must be utilized to deter the individual from violat¬ ing the interests of others. It is the prerogative of the state, grant¬ ed to it by the individuals making up the social contract (Locke). 5. Punishments must be proportional to the interests violated by the crime. Punishment must not be in excess of this, neither must it be used for reformation; for this would encroach on the rights of the individual and transgress the social contract. 6. There should be as little law as possible, and its implementation should be closely delineated by due process.

48

Origins: Criminology from Its Beginnings to the Twentieth Century

7. The individual is responsible for his actions and is equal, no matter what his rank, in the eyes of the law. Mitigating circumstances or excuses are therefore not to be allowed or entertained in court (formal rationality) (Taylor, Walton, and Young, 1973, p. 2). Thus it happened that classical criminological theory was destined to be a theory of social control, contributing to the establishment of a new form of social control in place of the old forms of social control that had been swept away by the French Revolution. As such it necessarily represented the interests of the new dominant class, the rising bourgeoisie.

NINETEENTH-CENTURY SOCIOLOGICAL CRIMINOLOGY European Criminology The issue of central concern in this period of the historical development of criminology is the appearance of scientific criminology, that is, the introduction of a crude and primitive positivism into the study of crime. With the classical school we saw human free will and reason enter onto center stage to oust supernatural forces in the quest for an understanding of crime. Now, in the nineteenth century, we see the entrance of scientific positivism and, with it, social determinism, taking center stage. With the birth of social science, the study and understanding of crime became a whole new ball game: now for the first time in the history of thinking about crime, intellectuals began thinking of crime as a socially patterned form of behavior. This was a truly revolutionary development. The break¬ through discovery was made that crime rates had an astonishing and unex¬ pected regularity over the years. There had to be a reason for this, for regularity does not happen by chance. And the person who is chiefly—but not solely responsible—for this new awareness, this new discovery, was Adolphe Quetelet. Quetelet’s intuition that society caused crime marked a profound theo¬ retical departure from the crude realism of. . . classical jurisprudence, and the criminal code and flew in the face of the idea that criminals freely chose to engage in wickedness. (Bierne, 1987a, p. 1158; also see Bierne, 1987b) The regularity and stability of crime rates over time was to be sought for and found in the relatively stable and predictable nature of social forces, forces grounded in society itself. Predictable amounts of crime are pro¬ duced by the same social forces operating over time. This “discovery” was

Nineteenth-Century Sociological Criminology

49

a forerunner of the essential sociological insight that was to be more clearly and definitively articulated by Emile Durkheim at the turn of the century, but without its class struggle implications which were to be out¬ lined by Marx in the intervening years. It is not an exaggeration to argue that, in what is perhaps Adolphe Quetelet’s greatest work, A Treatise on Man, translated in 1842, the idea of social causation was born. Indeed, the notion of social causation was to take many years to mature into the kind of scientific positivism that constitutes the core of today’s criminology, but the methodology had clearly emerged. Quetelet’s work proved to be scandalous and heretical to the jurisprudential elite of his time, for it appeared to clearly contradict the classical notion of the freely acting legal subject. His ideas amounted to a deterministic heresy, for, indeed, “if crimes had social rather than indi¬ vidual causes, then perhaps criminals could not be held strictly accoun¬ table for their misdeeds” (Beirne, 1987a). Quetelet himself frequently disavowed this “heretical determinism” in his subsequent works, affirming his belief in the almighty and in the influence of what he referred to as “divine power” in the lives of humans. Quetelet’s place in this historical emergence of modern, scientific criminology is at best problematic and tentative. Perhaps his philosoph¬ ical position and substantive contribution to the history of criminology is best summed up as follows: ... at most, Quetelet was a reluctant determinist who neither disowned the classical doctrine of free will nor denied the determinate character of social behavior ... it is perhaps fair to say that Quetelet provided the positivist core of a deterministic criminology that subsequendy domi¬ nated the labors of Lombroso, Goring, and Bonger, who emphasized, respectively, biologism, mental hereditarianism, and economism.” (Beirne, 1987a)

Quetelet was not alone in bringing about these intellectually exciting developments and new ways of thinking about crime. During the early and middle nineteenth century a number of scholars began gathering and analyzing crime statistics. Alexander von Oettinger of Germany, one of the pioneers in the analysis of crime statistics, devoted considerable attention to problems on the measurement of crime in his Moralstatistik. A name frequently associated with Quetelet and also with the later development of the ecology school of criminology is that of A. M. Guerry, who, in charge of judicial statistics for Paris, analyzed (through the use of ecological maps) rates of crime against the person and against property for the regions of France. Numerous other European writers of the period interpreted crime as a function of one or another or combination of factors in the

50

Origins: Criminology from Its Beginnings to the Twentieth Century

social environment. We now turn to some of the more significant of these investigations. In England, roughly between 1830 and 1860, a great deal of interest was shown in the geographical distribution of crime (Levin and Lindesmith, 1937; Levin, 1937). Influenced by the impact of social change brought about by the emergence of capitalist industrial forms and the accompa¬ nying growth of cities, several English writers turned their attention to social problems, especially crime and the behavior of the criminal classes, brought about by these changes. In 1839, Rawson W. Rawson published a paper on “An Inquiry into the Statistics of Crime in England and Wales” in th t Journal of the Statistical Society of London. In the same journal, Joseph Fletcher, Rawson’s successor as honorary secretary of the Statistical Society of London, reported on rates of crime in relation to social characteristics of geographical areas. In an attempt to associate crime rates with charac¬ teristics of the countries of England and Wales, Fletcher refuted theories based on poverty, ignorance, and density of population, and proposed a theory that crime was a profession in which persons receive training in certain kinds of neighborhoods and in prisons and jails. Henry Mayhew, one of the founders of Punch, made detailed ecological analyses of crime in London. In a book titled Those Who Will Not, Mayhew noted for various types of crimes the locations of the offenses and residences of the offenders. Other works by Mayhew included London Labor and London Poor, published in 1854, and The Criminal Prisons of London, published in 1862. In his Irish Facts and Wakefield Figures, John T. Burt in 1863 suggested that habitual crime is the result of “criminal classes already existing” and that “crime is reproductive.” These early forays into a positivist criminology were, in hindsight, of critical importance: They began to conceptualize individual behavior as in large measure the outcome of social forces beyond personal, individual control. These nineteenth-century investigations, however, did not yet recognize that human suffering, and hence crime, arise out of disunity and separation—Durkheim was to later call it anomie, and Marx was to call it alienation. Both concepts, anomie and alienation, marked the con¬ dition of human beings under capitalist relations of industrial production, although the implications of each concept were considerably different. Human suffering, both on the individual and social level, was not yet rec¬ ognized as an explicit condition of law-violating behavior. These studies, as well as those mentioned below, marked only a vague dawning of an awareness of crime as a manifestation of the human condition of separa¬ tion of vital interests. Marx and his revelations regarding the inner nature of capitalist, industrial society were yet to come.

Nineteenth-Century Sociological Criminology

51

A realization of the need for a healing of separation in order to end suffering and thereby halt crime was to be a long time coming. But these nineteenth-century developments created the framework that eventually made possible the emerging insights into the true causes and nature of crime in our day. Only now are we beginning to step over a new threshold of understanding: The healing of human separations of class, race, gender, and faith, is necessary if human suffering—that is, crime, its antecedents and its consequences—is to be ended. In addition to the studies noted above, several monumental works that related in one way or another to social conditions and crime were published during the nineteenth century in England. At the beginning of the century, Patrick Colquohoun (1806), magistrate for the counties of Middlesex, Surry, Kent, and Essex, published the seventh edition of Trea¬ tise on the Police of the Metropolis. In this study he investigated the origins of criminal offenses and made observations on such topics as deficient laws, ill-regulated police, habits of “the lower orders,” bad education, idle servants, and ill-regulated public houses. The primary purpose of Colquohoun’s book was to criticize existing criminal law, punishment, and police procedures. In 1873—1876, Luke O. Pike published in two volumes A History of Crime in England, subtitled Illustrating the Changes in the Laws in the Progress of Civilization: Written From the Public Records and Other Contemporary Evidence. The book is an impressive work of scholarship, extensively documented, and for the criminologist, a source of descriptive material on crime over a long period of time, including material on the reactions to crime. Crime is discussed by Pike as being relative to changing criminal laws. Another notable contribution to the study of social conditions and social life, including criminal behavior, is the monumental, multivolumed work of Charles Booth, Life and Labour of the People of London, first published as a two-volume work in 1889 and 1891, then in nine volumes from 1892 to 1897. Booth was a merchant, shipowner, and manufacturer who, while benefiting from industrialization and the burgeoning growth of capitalist and bureaucratic forms of social organization, was concerned about the concomitant changes in social conditions. He, apparently like others in his station, felt a moral obligation to improve society. As his biographers T. S. Simey and M. B. Simey (1960) observe: “Booth appears to be a true Victorian insofar as he acclaimed the positive values of industrial and com¬ mercial enterprise, but sought at the same time to devise methods of com¬ bating the evils that had resulted from it” (p. 4). Booth was a practical man who believed that social policy should be guided by facts, and he set

52

Origins: Criminology from Its Beginnings to the Twentieth Century

out to gather the facts. What resulted was essentially an application of scientific inquiry to the understanding of social problems.

American Reformism and the Study of Crime “The poverty of the people made prosperity possible . . . Rich is the country that has plenty of poor” (Heller, 1988, p. 121). This irony is a rather accurate reflection of American society during the latter half of the nineteenth century following the Civil War. Americans, particularly the elites, came to equate crime with the evils of sin, pauperism, and immorality. Crime was one of the conditions falling within the domain of the reform¬ ism that characterized the waning years of that century in the United States. This reformism, rooted in and shaped by principles of romanticism, humanitarianism, democracy, and the religious idea of community, cre¬ ated an awareness of social problems. Various behaviors and conditions became defined as problems inappropriate to the American idea. Crusades, movements, and organizations flourished in the attempt to attack such evils as intemperance, slavery, poverty, mental illness, idleness, defective education, war, and discrimination against women. In addition, criminal and penal codes were rewritten in an attempt to achieve a more humane and rational justice. These developments are of particular significance in light of the gradual emergence of the themes of peace and social justice in criminological thought in the United States. Although the healing of separation was not yet seen as an explicit precondition to the attainment of social justice, and hence the end of human suffering and crime, thinkers, policy makers, and administrators were nonetheless becoming more humane and less violent in their dealings with the wrongdoer. There was a dawning awareness that the most promising road toward social tranquility and ultimately social peace was through the development of compassion and loving-kindness toward others within the individual as well as within all social institutions. What follows illustrates this developing awareness as well as the role played in it by the newly emerging social sciences in this country. The conception of social science as a systematic body of knowledge for the purpose of reform and the alleviation of suffering became an im¬ portant part of the American academic community (see House, 1936, pp. 331-337). In many of the elite colleges and universities around the country, newly established social science departments designed and offered courses on the basis of specific social problems, with criminology among the first sociology courses in the curriculum. Thus, the study of crime, as well as the study of other social problems, became at an early time an integral part of academic sociology. Other concerns and investigations

Nineteenth-Century Sociological Criminology

53

on the social causes of crime came from persons associated with such humane organizations as the National Prison Reform Congress, the Na¬ tional Conference of Charities and Corrections, National Prison Congress, and the Society for Alleviating the Miseries of Public Prisons. In their explanation of crime in terms of social conditions that give rise to human suffering, most of the writers assumed that the operation of any single factor could only partially explain the phenomenon of crime. Although they pointed to associations, they believed that a multiplicity of individual as well as social causes operated to produce crime. Of the many factors taken into consideration, those most popular in the explana¬ tion of crime were of an individual nature rather than a social-structural nature. They were such factors as drinking, lack of trade education, desire for luxuries, poverty, dearth of religious and moral principles, idleness, abnormal family relations, bad company, and, in general, civilization itself. With few exceptions, notably environmental theory, most of these “causes” of crime can be traced to flaws in the individual’s personality rather than to flaws in the social structure. (We will be seeing more of this “individual reductionism” when we look at ninteenth-century biological criminology.) Immigrants, mostly from Europe, were flocking to this country by the millions to fuel the insatiable need for cheap labor power on the part of rapidly expanding industrial capitalism. As a result, crime in the growing cities became a serious problem and the focus of attention for several writers in the last half of the nineteenth century. Examples of this trend are Charles Loring Brace’s The Dangerous Classes of New York and Edward Crapsey’s The Nether Side of New York (1892). The latter observes: With its middle classes in large part self-exiled, its laboring population being brutalized in tenements, and its citizens of the highest class indifferent to the common weal, New York drifted from bad to worse, and became the prey of professional thieves, ruffians, and political jugglers, (p. 9)

A number of religious leaders, such as Washington Gladden in Applied Christianity and Walter Rauschenbusch in Christianity and the Social Order.; argued at the turn of the century for a religion that would adjust Christianity to the problems of this world, wishing to create a kingdom of God on earth. The social gospel had reached maturity. Religious and humanitarian indignation over social problems was also expressed to the public in such popular books as In His Steps by Charles M. Sheldon and If Christ Came to Chicago by W. T. Stead. Thus, a combination of social, religious, and political movements, including the social gospel, humanitarianism, pre¬ muckraking thought, and emerging progressivism, joined to focus critical public and intellectual attention on crime as a social problem. Crime was a condition that was not appropriate to the American character. It was,

54

Origins: Criminology from Its Beginnings to the Twentieth Century

in fact, downright unpatriotic. Such was the naivete, or perhaps simply innocence, of the times. The use of the environmental theory of crime and delinquency pro¬ vided a rationale for judicial and correctional reform. In 1884 the theory was forcefully brought to public attention by the publication of Peter Altgeld’s Our Penal Machinery and Its Victims. Altgeld’s passionate argument that poverty lay at the bottom of most crime and delinquency received wide attention. In Ashtabula, Ohio, the book came to the attention of a young country lawyer, Clarence Darrow (1857-1938), a man who was to become one of this country’s greatest criminal lawyers. Throughout his illustrious career, Darrow defended cases and pursued justice on the basis of the environmental argument. Speaking to an audience of inmates at the infamous Cook County jail in Chicago in 1902, Darrow (1961) pushed environmentalism to its limit: “There is no such thing as crime as the word is generally understood. If every man, woman and child in the world had a chance to make a decent, fair, honest living, there would be no jails and no lawyers and no courts” (p. 136j^. Academic criminology in the United States, however, was to be influ¬ enced only minimally and at most only indirectly by the ideas on crime that emanated from these several sources in nineteenth-century America. Sociological criminology in the twentieth century was more influenced by the new social science, by European positivism, and by the criminol¬ ogical writings of European thinkers than by the humanistic leads provided by the reformers, prison administrators, humanitarians, social workers, and socially conscious literati of the late nineteenth century. A peace and social justice perspective in criminological theory was to await further development in our own times, a development which, as we shall see, is in keeping with and a reflection of the global social-structural develop¬ ments of late twentieth-century capitalism.

NINETEENTH-CENTURY BIOLOGICAL CRIMINOLOGY Max Weber (1958), the eminent German sociologist of the early part of this century, studied differences between religions of the East and reli¬ gions of the West and the social consequences of these differences. Eastern religions, he concluded, are to a great extent based on what Buddhists call metta, or a feeling of essential connectedness with one’s fellow humans. On the contrary, Western religions, particularly Protestantism, are more founded upon the essential idea of the individual’s unique and independent relationship with the deity, or upon the fundamental separation of human from human. Weber then went on to relate this religious tenet to what

Nineteenth-Century Biological Criminology

55

he called “the spirit of capitalism.” A half century earlier, Karl Marx had identified this fundamental separation of human from human and had called it alienation; and he also related this condition of alienation to capitalism. However, Marx reasoned that alienation is the fundamental condition of human beings under capitalist relations of production, whereas Weber saw it as the indispensable precondition for the appearance and development of capitalism. Our Western understanding of and reaction to crime is firmly em¬ bedded in this Judeo Christian religious world view of the autonomous, isolated individual. As a result, a theory of crime that basically locates crime and criminal responsibility in the individual, isolated from others— as opposed to the realm of the social—resonates with this world view. Furthermore, not only does a theoretical framework for thinking about crime evolve from this religious world view, but also a set of policies for dealing with criminals develops from it. Consequendy, the history of Western penal practices has for the most part been characterized not by compassion and a sense of shared suffering, but rather by violence and coercion directed against the isolated, self-determined individual who freely chooses to violate the law. On the theoretical level, what was to prove to be an immensely influential “school,” or theoretical framework for thinking about crime and criminals, developed in Europe in the second half of the nineteenth century. It is what we have called nineteenth-century biological criminology, and its core proposition is that the criminal is biologically different from normal, lawabiding people. The autonomous, isolated, freely acting lawbreaker of the Judeo Christian world view is transformed and reappears as the biologically flawed individual. Something is “wrong” with this person, and the flaw is to be found in biological differences. Let us now begin to consider this momentous shift in thinking about crime and criminals. Many historians of criminology erroneously attribute the beginnings of modern, scientific criminology to the work of the Italian physician Cesare Lombroso and his students and disciples, usually referred to as the Italian School. The central error in this view of the historical develop¬ ment of criminology is the assumption that attributing crime to some flaw in the individual’s biological or psychological structure is somehow more “scientific” than attributing crime to flaws in the social structure that formed and socialized that individual. Examples of this mistaken view of the origins of scientific criminology are not difficult to find. Barnes (1931), in his review of criminology in Encyclopedia of the Social Sciences, writes: “The originators of modern crim¬ inology are Cesare Lombroso (1836-1909), Enrico Ferri (1856-1928), and Raffaele Garofalo (1852-1934), who together are designated as the

56

Origins: Criminology from Its Beginnings to the Twentieth Century

Italian School. Lombroso’s work became the point of departure for the science” (p. 585). In a survey of criminology, Radzinowicz (1962) has given a similar evaluation, noting that “virtually every element of value in con¬ temporary criminological knowledge owes its formulation to that remarkable school of Italian criminologists who took pride in describing themselves as ‘positivists’” (p. 3). Conclusions such as these are faulty in that they overlook the fact that the study of crime and criminals had already evolved well beyond theological and metaphysical categories to an objective, empir¬ ical study and analysis of crime and its relationship to elements in the carrier society. As we have seen, these developments began back in the middle of the eighteenth century during the Enlightenment and had moved forward through the nineteenth century scientific investigations of Quetelet, Bonger, Guerry, Rawson, and others. A reading of the history of criminology, therefore, clearly demonstrates that there was a scientific study of crime well before the appearance of the Italian School. The history of criminology also makes it clear that the prior writings were more pertinent to the sociological study of crime than was the work of the Italian writers, which was based on a number of erroneous biological assumptions. This earlier work on the social aspects of crime and crime in relation to sociological variables was every bit as scientifically valid as the work of Lombroso and his followers. In fact, in the long run it was to be proven more scientifically valid, as the work of the Italian School was soon discredited and rendered obsolete. Thus, the myth that Lombroso and the Italian School marked the beginnings of scientific crim¬ inology is largely discredited today. What Lombroso and his followers actually did, as Yale Levin and Alfred R. Lindesmith (1937) noted some years ago, was to change the conception of crime and the focus of attention, not necessarily to make the study of crime and criminals more scientific or objective. Far from it, because “For centuries the criminal had been regarded as a human being living in society; Lombroso’s contribution seems to have been to have inaugurated the study of the criminal as an animal or as a physical organ¬ ism” (Levin, 1937, p. 664). In studying the individual criminal, the isolated criminal ripped out of any social setting whatsoever and existing in a sort of social vacuum, the Lombrosians turned attention away from the perspec¬ tive that crime is truly a social phenomenon. In this connection, William Chambliss (1988) has observed that “For the biological theorist, the starting point for the study of crime is the individual, he or she becomes the basic unit of analysis, and his or her physical or genetic codes become the ultimate components” (p. 20). Yet there is more to it than that. In isolating the individual from the social, the Italian School moved a step backward and away from a peace

Nineteenth-Century Biological Criminology

57

and social justice perspective on crime. The net ideological payload of their perspective and the work based on it was to place the blame for crim¬ inality on some biological defect of the individual. This twisted orientation was to appear later on in a peculiar predisposition to blame criminality on some psychological defect of the individual, a defect stemming somehow from an “improper” socialization into conventional social values. The next step in this progression, obviously, is to change the lawbreaker and not even to consider the social institutions that produced him or her. So much for the concepts of social justice and the inner peace and tranquility that comes from empathizing with the sufferings of our fellows caused by social injustice. And there is even more at stake here than that. The root issue, the radical issue (“root” in Latin is radix, from which comes our word “radical”), is racism. Long before Lombroso, Garofalo, and Ferri—back in the age of the Roman empire—philosophers and writers such as Tertullius, Cicero, and Marcus Aurelius explained the wild behavior of the blond, blue-eyed Germanic “barbarians to the north” on the basis of biological differences between the educated, civilized Romans and the uncivilized clods that roamed the northern provinces. In other words, there is a long history in Western tradition and in European culture of using biological explanations to account for behavioral differences. This is basically what racism is: a rationalization of human behavioral variations on the basis of genetic and biological variations. The criminal, or “the other” for that matter, is bio¬ logically inferior. Not too far down that road lies racism; and the work of the Italian School, unfortunately, and with disasterous results, stim¬ ulated a racist ideology in Europe and America in subsequent generations. It also reflected the various group superiority themes that were already prevalent in Europe at that time. Indeed, consider this: In his 1911 book, Crime: Its Causes and Remedies, Lombroso (1968) titles chapter 3 “Crime and the Influence of Race” and discusses therein such topics as “virtuous savages—criminal centers—Semitic race—Greeks in Italy and in France— cephalic index—color of hair—Jews—gypsies” (pp. 21-42). Indeed, there were others before Lombroso who developed theories alluding to the criminal as a definite physical type. The physiognomy of Johann Kaspar Lava ter in the latter part of the eighteenth century and the phrenology of Franz Joseph Gall at the beginning of the nineteenth are part of the general background of thought on the relation between physique, character, and behavior. English prison physicians in the mid¬ nineteenth century, James Bruce Thompson, George Wilson, and others, with the aid of statistics attempted to demonstrate that the criminal is a distinct physical type. They published their work under such titles as “Statistics of Prisoners: Their Mental Conditions and Diseases,” “Criminal

58

Origins: Criminology from Its Beginnings to the Twentieth Century

Lunatics of Scotland,” “The Hereditary Nature of Crime,” and “On Moral Imbecility of Habitual Criminals as Exemplified by Cranial Measurement.” Thus it is that the publication of Lombroso’s magnum opus, L'Uomo delinquente, in 1876 marked the synthesis of a line of thought that had been developing in Europe for quite some time. According to Lombroso, the criminal is an atavistic phenomenon, a person born criminal, a throwback to a more primitive, savage human. The criminal is thus a reproduction in our time of a primitive stage the human race passed through in the course of evolution from apes to modern humans. In a speech at the Con¬ gress of Criminal Anthropology in Turin in 1906, Lombroso recalled his “discovery”: In 1870 I was carrying on for several months researches in the prisons and asylums of Pavia upon cadavers and living persons, in order to determine upon substantial differences between the insane and crimi¬ nals without succeeding very well. Suddenly the morning of a gloomy day in December, I found in the skull of a brigand a very long series of atavistic anomalies, above all an enormous middle occipital fossa and a hypertrophy of the vermis, analogous to those found in inferior inver¬ tebrates. At the sight of these strange anomalies, as a large plain ap¬ pears under an inflamed horizon, the problem of the nature and of the origin of the criminal seemed to me resolved; the characters of primi¬ tive men and of inferior animals must be reproduced in our time. (Goring 1913, p. 13)

Toward the end of his life, Lombroso modified his thoughts on the born criminal. He divided criminals into three classes, born criminals, insane criminals, and criminaloids; and he conceded that biological atavism did not apply to all criminals. Nevertheless, most criminals remained radi¬ cally flawed, inferior, degenerate, or defective in some way. Consequently, the appearance of a peace and social justice perspective in criminology was pushed further into the future. The most distinguished pupil of Lombroso was a young Socialist, Enrico Ferri. Although he never rejected biological causation of crime, Ferri emphasized the role of various kinds of interrelated factors: “The factors of crime can be divided into individual or anthropological, physical or natural, and social (de Quiros, 1911, p. 20). Most important, perhaps, Ferri (1967) was to carry on the methodology of positivism, completely rejecting in his dissertation (at the age of twenty-one) and in his subsequent work, the classical idea of free will. The most complete statement of his thought was published in 1884, La sociologica ci’iminale. Raffaele Garofalo, the final recognized member of the triumverate of Italian positivistic criminologists, although placing greater emphasis than the others on psychological factors, similarly rejected the doctrine of free wdl in support of the positivism of the nineteenth century.

Nineteenth-Century Biological Criminology

59

The failure of positivistic criminology is quite likely directly related to its stance on the issue of criminal responsibility. The classical school’s idea of criminal responsibility as grounded in the concept of free will, continued to be the basis for the penal codes of Italy itself, the homeland of the biological positivists. In contrast to the classical position, the posi¬ tivists proposed a kind of responsibility based on the needs of society rather than on free will and the moral guilt of the offender. Criminal justice, according to the positivists, was to be found in the determination of whether the person is the perpetrator of an offense and then application of the mea¬ sure that will prevent the person from committing further offenses. The positivists’ stand on criminal responsibility, being in opposition to classical ideas among most European intellectuals and the teachings of the Ro¬ man Catholic Church, became an extremely unpopular position. Positivis¬ tic criminology in general was made suspect and was regarded as dangerous. In their later careers, both Ferri and Garofalo easily adapted themselves to Mussolini’s Fascist regime. Their political alignment may not be accidental or a matter of practical compromise. As Void (1958) has indicated, the general orientation of extreme positivism is consistent with totalitarianism: The end of Ferri’s career, assent to Fascism, highlights one of the impli¬ cations of positivistic theory, namely, the ease with which it fits into totalitarian patterns of government. It is centered on the core idea of the superior knowledge and wisdom of the scientific expert, who, on the basis of his studies, decides what kind of human beings his fellow men are who commit crime.... There is an obvious similarity in conception of the control of power in society between positivism and the political reality of centralized control of the life of the citizen by a governmental bureaucracy indifferent to democratic public opinion, (pp. 35-36)

In the rest of Europe, at the end of the nineteenth century, criminology was marked in large measure by the controversy between the substantive biological theory of the Italian positivists and the sociological orientation of other European scholars. The Lombrosians received sharp criticism from European social scientists, such as Gabriel Tarde, Henri Joly, and William Bonger, who were following the sociological perspective of Guerry and Quetelet. According to Herbert Bloch and Gilbert Geis (1970), “The best criticism of Lombroso remains that of the French anthropologist Paul Topinard (1830-1911), who gave criminology its name and who, when shown a collection of Lombroso’s pictures of asymmetric and stigmatic criminals, remarked wryly that the pictures looked no different than those of his own friends” (p. 89). Such was the hostility directed against Lombroso and his followers by other European criminologists at the Second International Congress of Criminal Anthropology in Paris in 1889 that he and his followers, out of protest, did not even attend the Third Congress at Brussels in 1892.

60

Origins: Criminology from Its Beginnings to the Twentieth Century

There is a most important lesson to be drawn from all this. It is a lesson about the social impact of what often passes as scientific progress and development. Although the ideas of Lombroso and biological crimi¬ nology were rejected by the European social scientific community, these pernicious ideas nevertheless continue to contaminate European and American thinking about crime and criminals up to the present day (see Lindesmith and Levin, pp. 667-670). The reasons for this infiltration of flawed scientific ideas into public mythology about crime and criminals are most instructive. They are as follows. 1. The natural sciences held scholastic weight, especially biology, which was central to Lombroso’s theory. 2. The use of the terms new and positive gave prestige and excite¬ ment to the approach, capturing the spirit of the late nineteenth and early twentieth centuries. 3. The idea of physical features as indicators of character had a long, acceptable tradition in Europe, going back at least to the Romans. 4. The ideas and methods of positivistic, biological criminology were accepted and perpetuated by personnel with high prestige in Europe: physicians, psychiatrists, lawyers, and magistrates. 5. Emphasis on group and individual inferiority supported nation¬ alistic political structures that were shortly to lead to World War I and to the horrors that lay beyond. 6. The positivist and biological orientation lent itself favorably to increases in social control by the state at the dawn of the mod¬ ern era of capitalist development and expansion.

4 Early TwentiethCentury to Contemporary Criminology

In this chapter we will be following the exciting developments of twentiethcentury criminology, principally as these developments unfolded in the United States. This will be divided somewhat arbitrarily into three time periods. First, we will look at the early years when eclecticism was the dominant scheme (a little bit of this, a little bit of that, with no coherent theoretical unity). Second, we will review the mid-century work, lasting roughly from the years following World War I through to the mid-1960s. Finally, we will reflect on late twentieth-century developments in crimi¬ nology, including the emergence of a sociology of criminal justice and a critical criminology.

THE EARLY YEARS: ECLECTIC CRIMINOLOGY A true sociological criminology in Western societies did not really begin to emerge and take root until sociology itself finally became an accepted discipline in the universities of the Western world after World War I. In addition, during the first two decades of the twentieth century, class con¬ flict—primarily in the form of struggles over unionism and the rights of workers to form unions—was heating up as capitalist production matured, ripened, and forged ahead in Europe and in the United States. As a conse¬ quence of the turbulence and confusion wrought by these developments,

61

62

Early Twentieth-Century to Contemporary Criminology

neither a true sociological criminology nor a criminology of peace and social justice could find fertile soil in the United States. It was to take the terrible toll of human suffering wrought by two world wars and more before Western criminology was eventually to come to an awareness that its social responsibility lay not only in the study of crime but also in fostering public policies and social institutions that allevi¬ ate the social conditions that breed human suffering and hence crime. This fundamental insight was to prove to be the inevitable final result of the earlier work of the nineteenth-century sociological criminologists Quetelet, Bonger, and their students, criminologists who first located crime in the realm of the social. Nevertheless, the opening two decades of this century saw some sig¬ nificant developments in the ongoing effort to understand and control crime. Most of these were still focused on characteristics of the individual —heredity, mental health, race, family background, and so forth—because of the earlier nineteenth-century biological school of Lombroso and his disciples. This multiple-factor, eclectic approach lacked theoretical inte¬ gration but was to remain influential in American criminological circles well into the 1920s and even into the 1930s in some cases. Old ideas die hard. Examples of this potpourri approach abound: E. A. Hooton’s revival of Lombrosian criminal anthropology in his research on the assumed bio¬ logical inferiority of criminals, published as The American Criminal; William H. Sheldon’s writings, especially, Varieties of Delinquent Youth, on body types and constitutional inferiority; and some of Sheldon and Eleanor Glueck’s work, notably, Physique and Delinquency; and A. H. Estabrook’s The Jukes in 1915. During this period a whole host of studies similar to that of Estabrook focused on families with inferior genes which purportedly produced the criminal population. The notion was that an inferior gene pool produced individual criminals (see Rafter, 1988). Lombroso would have been most interested in this research, for, under the guise of science, it focused exclusively on biological flaws in the individual in its effort to explain the problem of crime. Then there appeared Charles Goring’s important work The English Convict, wherein Goring challenged the biological assumptions of the Lombrosians by concluding that there is no such thing as a born criminal. Nevertheless, Goring failed to transcend the level of individual causation. He remained bogged down in the school of individual determinism by turning the attention of criminologists away from biological characteris¬ tics to the study of psychological characteristics, especially defective intelli¬ gence, as a cause of criminal behavior. As intelligence testing came into vogue immediately before World War I, an increasing number of scholars began to apply intelligence tests

The Early Years: Eclectic Criminology

63

to criminals in the attempt to prove a causal relationship between crime and “feeblemindedness.” Henry H. Goddard (1920), an enthusiastic supporter of this notion of feeblemindedness as a cause of criminality, estimated in his book on the subject that over 50 percent of criminals were “feebleminded.” In a subsequent work, he concluded, “It is no longer to be denied that the greatest single cause of delinquency and crime is low-grade mentality, much of it is within limits of feeblemindedness” (p. 74). Emphasis on a multitude of factors in the causation of crime was a reaction by criminologists to the practice of explaining crime in terms of one particular class of phenomena. The search for causal factors or variables, their measurement and correlation to criminal behavior, also reflected the growing new trend toward empiricism and quantification in the social sci¬ ences in general. The multiple-factor approach to theories of crime cau¬ sation had, as we have already seen, been present in many of the writings before the beginning of this century. However, it was in reaction to par¬ ticularistic, that is, reductionist, theories, especially the biological theories reminiscent of the Italian School, that many research scholars in the first part of this century insisted that criminal behavior was a product of a large variety of factors that could never be organized into general propositions because each criminal act was caused by a different set of factors. The heaviest individualistic emphasis in the study of criminal behavior during this eclectic period, and extending further into the century, is found in the field of psychiatry. While various branches of psychiatry are concerned with the relation of mental illness to deviant social behavior, psychoanalytic psychiatry has developed the most elaborate explanations of criminal behavior. Following the work of Freud, psychoanalytic psychiatrists in their study of criminal cases have related the criminal act to such concepts as innate impulse, mental conflict, personality disorders, and repression. Crime, in most of the psychoanalytic theories, has represented a form of substitute behavior. For example, in their study published under the title New Light on Delinquency and Its Treatment, William Healy and Augusta Bronner (1936) summarized their theory as follows: “Unsatisfying human relationships form obstruction to the flow of normal urges, desires, and wishes in the channels of socially acceptable activities. The deflected current of feelings of being inadequate, deprived or thwarted in ego or love satisfactions turns strongly into urges for substitutive satisfactions” (p. 5). These first two decades of American criminology were not completely lacking in important insights, research studies, and conceptual improvements in the study of crime and criminals. Just as any other rather arbitrarily defined period in the history of the growth of criminology, the eclectic period had its false starts and its dead-end roads. However, as we have tried to show in the foregoing paragraphs, the work of this period was

64

Early Twentieth-Century to Contemporary Criminology

largely random research without the guiding light of integrated theory. It was like a gate without a fence, mortar without bricks, or a door without a frame. That is, it lacked a total context within which it gained meaning and coherence. It lacked a relationship among its parts. Perhaps the most succinct expression of the spirit of this period is grasped by the following quotation from Cyril Burt’s The Young Delinquent (1925): “Crime is assignable to no single universal source, nor yet to two or three: it springs from a wide variety, and usually from a multiplicity, of alternative and converging influences” (p. 26). Finally, in evaluating the research and theory of this period in crimi¬ nology, we must keep in mind the material conditions of the time in the United States and in the Western world at large. It can be characterized as a time of groping for a new order, a time of casting about for the new to be born from the womb of the old. The new century had not yet really found its meaning either in the world of material production or in the world of mental production, that of the intellect and the sciences, while at the same time the old century had not yet quite grown cold in the grave. The imperialist holocaust of World War I was still brewing silently be¬ neath the surface; the Bolshevik revolution was building unseen toward world-shaking eruption; the United States was just discovering its Promethean productive capacities; and old European alliances were being renegotiated in the light of advances in both foreign markets and delicately shifting balances of power. Within this context, criminological thought could not help but reflect a certain internal disarray. There was still a great deal of room to avoid questions of social justice, peace, and progressive social restructuring. The Western world did not yet know exactly what peace and social justice meant, nor did it realize exactly what it was that had to be restructured. It would soon find out with a vengeance: World War I.

MID-TWENTIETH-CENTURY SOCIOLOGICAL CRIMINOLOGY And so it was that criminology gradually and in a haphazard manner evolved into the sociological work of the mid-twentieth century and what we have designated as mid-twentieth century criminology, which began to take shape in the years between World War I and World War II. Mid-twentieth century sociological criminology embraces the fifty-year period between the 1920s and the 1960s. It was early in this period that the giants of mid¬ twentieth-century American criminology entered: Edwin Sutherland and Robert K. Merton. The appearance in American universities in the mid-193Os of sociol¬ ogists of the stature of Sutherland and Merton marked an early maturation

Mid-Twentieth-Century Sociological Criminology

65

in American criminology (Laub, 1983). While following the canons of scientific discourse, they nevertheless managed to communicate an implicit message in their work: that the road to ending the scourge of crime is to be sought through compassion and enlightened insight into how social structures produce disabled and disadvantaged people, rather than through disembodied theories of science and the calculations of conditioned thought. The marketplace principles of strict reciprocity could only lead to harsh punishments for offenders and hence to an escalation of violence and suf¬ fering. Sutherland and Merton both reasoned that we cannot end our own suffering from the hands of criminals without first ending the suffering of our fellows who learn to commit crime, who produce crime rates. This reasoning is the road to social justice and equal opportunity for all. Beyond this insight lies the deeper conclusion that in a liberated society we cannot end our own suffering without ending that of our fellow citizens. But this deeper insight was to become clearer in the criminology of the latter years of the twentieth century with the emergence of the theory and practice of peacemaking in the development of a progressive criminology. Mid-twentieth-century sociological criminology was dominated by a relatively small number of influential theorists located within the main¬ stream of the bourgeois, academic principles that were taught in American universities during those years (Walker, 1987). The work of criminologists in this period was bound within and united by a common set of assumptions about what society is actually like. For one thing, they all strove to break from the Lombrosian tradition that interpreted criminal behavior as personal failure. They all had this in common: They saw crime in relation to societal conditions. With the work of these criminologists, the criminal and criminal behavior were presented as the spin-off of flawed social structures and no longer as simply the behavior of flawed individuals. Attention was finally returning to social conditions and social structures themselves as the root, or radical, factors in crime. But these insights did not come out of the blue. They were rooted in the material conditions of the mid-twentieth century, principally in the post -World War II economic prosperity that this country enjoyed. But before these later developments can be discussed in any detail, it will be useful to briefly consider their predecessors in earlier twentiethcentury criminology and in American thought in general. Social change had been rapid and far-reaching during the early years of the century. Urbanization, massive immigration and population growth, along with unprecedented geographical mobility, characterized America during these years. Optimism reigned as the dominant attitude and outlook among virtually all social classes (Radzinowicz, 1962). Broader philosophies came into vogue, consonant with the excitement of the rapidly changing times: pragmatism, behaviorism, legal realism, economic determinism, and

66

Early Twentieth-Century to Contemporary Criminology

antiformalism (White, 1949). Sociological jurisprudence and legal real¬ ism flourished and eventually developed into a sociology of law. Revolu¬ tionary thinkers as diverse as John Dewey, Roscoe Pound, Thorstein Veblen, and Justice Oliver Wendell Holmes all articulated an exciting new world view called relativism. This same relativism made the study of crime in the United States radically different from previous efforts to understand it. In being removed from an absolute conception of the world, the student of crime could finally begin to see it as behavior in violation of legal codes that were often oppressive and as rebellion against unjust social conditions. And the legal codes themselves could now be seen as defending and protecting certain economic arrangements that frustrated the realization of social justice. Without crime being romanticized, the behavior of the offender could thus be interpreted as an unconscious and prepolitical indictment of existing social institutions and practices. Among the more significant events in the development of criminology during the opening decade of the twentieth century had been the estab¬ lishment of the American Institute of Criminal Law and Criminology at Northwestern University in 1908 (see Wigmore, 1909). The Institute rep¬ resented the first formal recognition of American criminology as an acade¬ mic discipline, and it provided a forum for the publication of what eventu¬ ally came to be known as the Journal of Criminal Law and Criminology. Maurice Parmelee, perhaps more than any other single person at the beginning of the century, brought about the union of sociology and crim¬ inology. Parmelee, in The Principles of Anthropology and Sociology, published in 1908, had already suggested the possibility of a sociological criminology. Ten years later, in the first American attempt at a comprehensive exposition of criminological knowledge, Parmelee (1918) discussed in his Criminology the social sources of crime. His work marks the true beginnings in the United States of a transition from the general, eclectic study of crime to a sociological level of explanation. Building on Parmelee s foundation, and of central importance in the history of sociological criminology, is the University of Chicago and the Chicago School. The distinctively sociological orientation of the scholars of criminal behavior who were gathered together here under the able lead¬ ership of Albion Small in the 1920s and 1930s supported the notion that criminal behavior is similar to any other social behavior (Clinard, 1951). Crime has its roots in the social structures and institutions that foster it, just as do all other forms of human behavior. Four criminologists are of cardinal importance in this period of the Chicago School: Robert Park, Ernest Burgess, Clifford Shaw, and Frederick Thrasher. All four are distinguished by their common commitment to

Mid-Twentieth-Century Sociological Criminology

67

grass roots empiricism and a research method that called for data gathering in the real world outside university walls. This meant that criminologists had to go out and immerse themselves in the communities they were studying. Park (1925) and Burgess joined forces in an effort to map out the spatial, or ecological, distributions of crime rates in the city of Chicago. Thrasher (1927), in his monumental study of over 1,300 gangs in Chicago, traced the transition of adolescent males from isolated members of slum ghettos to members of unified, integrated delinquent gangs. In a related effort, Shaw (1930, 1938) demonstrated that delinquency rates were con¬ centrated in deteriorated, socially disorganized areas of the city. Through a number of case studies, including The Jack-Roller, he shifted his attention from physical factors in the environment to a consideration of the social relationships of offenders with other offenders. The larger implications of the work of the Chicago School became more clear as time went on: The causes of criminal behavior could eventually be discovered if only criminologists were supplied with research funds to carry out empirical studies of crime and criminals in the tradition of sci¬ entific positivism. This conclusion, however, was already being cast into serious doubt by the investigations of two professors from the University of Chicago’s arch-rival, Columbia University. Jerome Michael, from Co¬ lumbia’s law faculty, and Mortimer Adler, from the philosophy faculty, published a report in 1933, Crime, Law, and Social Science. In this report they concluded that any attempt to isolate the “causes” of crime was—in their words—“absurd” (p. 169). In spite of its severe criticism of criminology’s positivist method, the Michael and Adler report forced criminologists to the realization of the importance of criminal law as a labeling device in defining the scope and boundaries of the discipline of criminology. Crime, Law, and Social Science was a seminal work, providing criminologists with a guide that would serve as a basis for the further development of criminology. Their perspective was to be “rediscovered” and put to use by the social reaction theorists and the labeling theorists of the late 1960s and early 1970s. In addition, Michael and Adler are to a large extent credited with the later development of a sociology of criminal justice that was born and matured in the 1970s to become an integral part of the discipline. At the end of the decade of the 1930s, Thorsten Sellin (1938) introduced the concept of culture conflict as a tool for the analysis of crime. Sellin’s view was of great importance in developing the awareness introduced by Michael and Adler that crime can be usefully understood as behavior that is defined as such by legal norms. Crime was viewed as a matter of conflict between different conduct norms embedded in different, often clashing cultures, and legal norms are the official embodiment of the conduct norms

68

Early Twentieth-Century to Contemporary Criminology

of certain segments of the state—the segments that enjoy the most access to political power. This line of theory was later refined and sharpened by conflict theorists under the leadership of George Void (1958). The conflict theories of Sellin, Void, and others introduced dialectical thinking into American criminology for the first time. A dialectical under¬ standing of crime essentially sees crime as the result of two opposing forces locked in struggle: the forces of those who define criminal law, and hence what criminal behavior is, and the forces of those who are defined as criminal as a result of their behavior. Simply expressed, this means that without the “good guys” there are no “bad guys.” Without the Lone Ranger, there is no Billy the Kid. Thus, law makers and lawbreakers are thought of as rhythmic lovers, and their offspring is what we call crime. This dialectic methodology was to be built upon in later years by the critical criminologists of the 1970s (see, for example, Chambliss, 1975, and Quinney, 1977). But the developments of the decades of the fifties and sixties intervened. Sutherland’s theory of differential association had originally been pub¬ lished in 1924. Over the years, and with the collaboration of Donald Cressey, the theory of differential association gradually took the form of a series of propositions: Criminal behavior is learned in the social context of primary groups; the two things that are learned are techniques of committing crimes and a set of attitudes and definitions of the law as either favorable or unfa¬ vorable; exposure to more definitions of the law as unfavorable, and hence to be broken, over definitions of the law as favorable, and hence to be adhered to, will result in criminal behavior; and these differential associ¬ ations vary in priority, intensity, frequency, and duration. In sum, for Sutherland, delinquent behavior is learned in small, intimate groups. Because learning is the central dynamic of Sutherland’s theory, it is essentially a psychological theory as opposed to a sociological one. The theory of dif¬ ferential association has most frequently been challenged on the grounds of empirical verification. How can the theory be tested by data? It is simply not possible to retrace the exposures of individual persons throughout their life cycles to definitions of the law as either favorable or unfavorable. Donald Cressey and others have responded to this critique with a limited degree of success (Cressey, 1952; Short, 1965; Hirschi, 1969; Matsueda, 1982; DeFleur & Quinney, 1966). On the other hand, Merton’s anomie theory, which first appeared in 1938, is essentially a sociological theory of crime causation, for the central dynamic here is the stress caused by the disjunction of social and cultural variables. The stress caused by the lack of fit between culture goals that are universally held out to people, the legitimate means to reach those goals, and the unequal availability of these means to people differentially located in the social structure, results in an erosion of people’s commitment to these socially approved means—or to a state of anomie. In the face of

Mid-Twentieth-Century Sociological Criminology

69

this, individuals resort to one of five “modes of adaptation”: conformity, innovation (the criminal mode), ritualism, retreatism (the drop-out mode), or rebellion (the revolutionary mode). Twenty some years after Merton’s original formulation, and following Merton in the Durkheim tradition of anomie theory, Richard Cloward and Lloyd Ohlin (1960) accentuated the social distribution of illegitimate means and opportunities in the pursuit of culture goals (see also Cloward, 1959). Thus, depending on the differential availability to adolescents of illegitimate means, three ideal types of subculture form: the criminal sub¬ culture, based upon rational behavior to reach purely economic goals (orga¬ nized crime); the conflict subculture, based upon gang struggle for territorial control; and the retreatist subculture, which stresses withdrawal through drug use. Two other notable criminological theories of crime causation domi¬ nated the late 1950s; both were psychological in their central dynamics of explanation, and both concerned themselves with the question of how adolescents become delinquent. Albert Cohen (1955) borrowed the concept of reaction-formation from psychology to explain why lower- and workingclass youths exhibit a disproportionate amount of nonrational, delinquent behavior. Ill-equipped to perform successfully on the stage of middle-class values that dominates the system of education in this country, these ado¬ lescents choose a stage of their own, a stage whereupon they can perform successfully and thus protect their self-image. They turn the dominant middle-class value structure on its head and exhault its opposite, which results in nonutilitarian, nonrational law-violating behavior. In a seminal article, Gresham Sykes and David Matza (1957) likewise relied upon the psychological dynamic of ego-defense in order to explain juvenile delinquency. Instead of learning attitudes toward the law, as Sutherland had argued, adolescents learn one or more of five justifications, or rationalizations—mechanisms that enable them to “have their cake and eat it too.” They can violate legal norms while at the same time maintaining a respectable self-image, immune from the disapproval of others as well as that stemming from their own conscience. In one way or the other, Sykes and Matza argue, these techniques of neutralization sever the bonds between the individual and an act and between the act and its consequences. The five techniques are: denial of responsibility (“I couldn’t help it”); denial of injury (“nobody was really hurt”); denial of the victim (“he or she asked for it”); condemnation of the condemners (“you dare to accuse me!”); and appeal to a higher loyalty (“I didn’t do this for my own personal gain”). Concern for the delinquent behavior of urban youth became a domi¬ nant theme in the criminology of the fifties and on into the mid-sixties. The structure and composition of American cities were changing rapidly

70

Early Twentieth-Century to Contemporary Criminology

and drastically during this postwar decade, and adolescents were adapting to these transformations with innovative changes of their own in their struggle for self-definition in a confusing and increasingly hostile environ¬ ment. Thus, the theories of the 1950s, most notably those of Cohen, Cloward and Ohlin, and Matza and Sykes, along with Walter Miller (1966), Lewis Yablonski (1962), and James Short and Fred Strodtbeck (1965) addressed themselves to the new forms of delinquent organization and behavior. Times change and people change along with the times: they learn to think differently, to interpret their experiences differently, to see the world and their own behavior as well as the behavior of their fellow humans in a different light. Thus, the “objective,” noncommitted, value-free theories that characterized twentieth-century criminology up to the late 1960s began to give way with stunning rapidity to the tumultuous theoretical struggles that dominated criminology in the United States roughly from the Vietnam War through to our own day. We now take up these struggles and the new modes of thought they introduced into criminology as well as into our own lives and into our thoughts about crime and criminals.

LATE TWENTIETH-CENTURY CRIMINOLOGY A convenient watershed to mark the period of late twentieth-century crim¬ inology is the year 1970. Of course, historical events and developments are all rooted in prior sociohistorical forces in a dynamic and dialectic unity of past and present; and to set a definite point in time for a particular school of thought or new theoretical framework is arbitrary and artificial. Nonetheless, it is a useful and necessary device for organizing past and present experiences. Approximately around the opening of the 1970s, a number of new and innovative movements began to take shape within criminology itself. Exciting and dizzying developments, they were themselves the results of several interrelated larger forces in the carrier society: 1. The bitter and devisive struggle against the Vietnam War and its atrocities; 2. The resurgence of the civil rights movement under the leader¬ ship of Dr. Martin Luther King; 3. The domestic civil unrest that racked the country between 1966 and 1976, striking down old idols and values; 4. The increasing polarization of university students across the entire country;

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5. The increasing availability of material by and about Karl Marx, along with the rapid assimilation of Marxist ideas and concepts into the theoretical frameworks of the various social sciences; 6. The gradual marshalling of forces of the advocates of women’s liberation; 7. The counterculture, drugs, hippies, and the intense cultivation of inner subjectivity; 8. A dawning awareness of the critical role played by the state in the creation and control of deviance (see Cohen & Scull, 1985); and the concommitant eagerness of criminologists to scrutinize more thoroughly the criminal justice system itself; 9. A turning to the way of peace and social justice as indispensable to the new world being born. Out of these dynamic social currents and movements, and out of the new social formations that resulted, were to appear several new directions in American criminology. Specifically, four unprecedented theoretical foci arose: (1) the rebirth of critical inquiry under the banner of critical crim¬ inology; (2) the closely related emergence of a new and enduring theoret¬ ical framework: Marxist criminology; (3) the formation of an entirely new branch of criminology in America: criminal justice studies; and (4) the entrance of women: the gender barriers in criminology begin to crumble. The remainder of this chapter explores each of these exciting and often controversial developments, interpreting each one in its own way as a separate contribution to the emergence of a criminology of peace and social justice.

Critical Criminology A radical skepticism and questioning of the basic assumptions upon which our master institutions are built was one of the results of the protest activities of the sixties and seventies. People began to ask why, in a society as affluent, comfortable, and democratic as ours is reputed to be, are so many of our fellows impoverished, exploited, oppressed, malnourished, imprisoned, unem¬ ployed, downtrodden, helpless, and disenfranchised. Questions such as these constituted the very spirit of the times. The young as well as the old became acutely aware of the sufferings of their fellows in contrast to the hypocrisy of the official reality proclaimed by the nation’s leaders. It was this spirit that stimulated and nurtured the rebirth of critical think¬ ing in America during these years. Critical criminology was an inevitable manifestation of the social forces unleashed by contemporary historical developments.

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Early Twentieth-Century to Contemporary Criminology

It is not by chance that the 1970s saw the birth of critical thought in the ranks of American criminologists. Not only did critical criminology challenge old ideas, but it went on to introduce new and liberating ideas and interpretations of America and of what America could become. If social justice is not for all in a democratic society—and it was clear that it was not—then there must be something radically wrong with the way our basic institutions are structured. This critical criminology that developed in the seventies was not without historical precedent, and it was by no means novel. It was grounded in the critical social philosophy of the mid-eighteenth century, in the thinking of the social critics of the Enlightenment period, an intellectual rebellion that eventually led to the French Revolution. Critical thinking in general involves a continual and ongoing analysis of contemporary society in all of its various aspects. It is a radical questioning of the justness and effective¬ ness of all our social institutions. It begins and ends with the overwhelming question: Is this particular set of institutionalized social arrangements the best of all possible ways to achieve the fullest development and realization of the human potential of all the people? Many criminologists began to emancipate themselves from the concrete, unquestioned socioeconomic realities of the time and reach out for an understanding of the more basic social forms that constitute capitalist society. For example, for the first time criminologists began to look seri¬ ously at social arrangements such as private ownership of the means of production, the sale of human labor power as a commodity, the funda¬ mental class structure of our society, the injustices in the ways in which our society distributes wealth and power, and the class biases of our criminal justice system (Taylor et ah, 1973; Quinney, 1970). All of these social realities were now seen as part and parcel of the problem of crime in America. No longer could crime be understood apart from the capitalist structure of America itself. Crime in America inhered in capitalism and in capitalist institutions. The call went out for an expansion of the definition of crime beyond what the state says it is. There developed a keen realization that a critical criminology must go beyond the official definitions of crime established by the state and state crime control agencies (Schwendinger & Schwendinger, 1970; American Friends Service Committee, 1971; Schur, 1971; Quinney! 1974). Criminology must serve the needs of all the people rather than just the interests of a few narrow segments of our society, segments defined in terms of the elites who enjoy a hegemony over the state’s policy and law-making powers. This “new criminology” sought to free itself from service to the few and to lay bare the contradictions of our master institutions, contradictions that created an antihuman and criminogenic social structure.

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The critical criminology that began to flourish in the 1970s essentially tried to realize two goals: first, to analyze crime in American life through a critical inspection of the contradictions of our master institutions and, second, to define crime as more than just behavior in violation of the law of the state but also as behavior that causes social harm and social injury to great numbers of our people. Crime was now conceptualized as insti¬ tutionalized behavior in violation of basic human rights. Of course, all this produced a burst of creative activity and no little controversy, as American criminology of the time posed a serious threat to the power structure. As David Greenberg (1986) was to point out in retrospect a decade and a half later: It was differences in power, then, that explained why the police, courts, and prisons dealt almost entirely with victimless crimes and the relatively minor delicts of the poor, while systematically ignoring the loss of life and well-being for which the upper classes are responsible through imperialistic wars, genocide against indigenous peoples, systematic racism and sexism, maintenance of dangerous working conditions, manufacture of unsafe products, and environmental pollution, (p. 168) Criminologists writing in the 1970s focused critiques on the classism, sexism, and racism inherent in the actual operations of the various agencies of the criminal justice system in the United States (Chambliss & Seidman, 1971; Reiman, 1979; Quinney & Wildeman, 1977). Outside of criminology, other critical social scientists of the seventies were beginning to turn their attention to critiques of a variety of institu¬ tional processes in the United States. For example, the tools used by the capitalist class to educate a reliable and dependable cohort of workers fit to enter the labor pool of capitalist production attracted the attention of Samuel Bowles and Herbert Gintis (1976). Bowles and Gintis analyzed the processes whereby the American educational institution produced disciplined and compliant workers well suited to fuel the capitalist production machine. Thus, American education was critiqued as both reflecting and meeting the needs of capitalist production. The critical and progressive criminologists of this period were deeply influenced by the philosophical analyses of the Frankfort School of social research, and in particular by the work of Jurgen Habermas (1973), Max Horkheimer and Theodore W. Adorno (1972), and Herbert Marcuse (1964, 1973). These critical thinkers of the Frankfort School, whose thought so influenced American criminology in the 1970s, did not identify themselves as orthodox Marxists of the Communist/Stalinist variety of Marxism. Strictly speaking, the work of American criminologists during this period is not correctly identified as Marxist at all, although some have confused the critical/progressive criminology of these years with Marxist criminology

74

Early Twentieth-Century to Contemporary Criminology

as such (Mugford, 1974). It is possible to be critical and progressive without subscribing to orthodox Marxism. In fact, one of the leading figures of the Frankfort School, Theodore Adorno, was criticized as being “anti-Marxist” (Editors, 1974). If the criminology of the seventies could be called Marxist at all, it was an immature expression of neoMarxist thought in the United States at that time. A closer and more self-conscious identification of critical/progressive thought with Marxism in American criminology was to come later, influenced by the Berkeley School of Criminology under the leadership of Tony Platt and Paul Takagi (“Berkeley’s School,” 1976). The early thrust of critical thinking in American criminology in the 1970s attacked advanced industrial soci¬ ety itself, not just the capitalist forms of advanced industrial society. It was a radical form of cultural criticism, or Kulturkritik (Bohrer, 1984). The early critical/radical criminologists of this period, influenced by the critical theory of the Frankfort School, were infused with a vision of the essential unity of truth and goodness, facts and values, theory and praxis. The central concern was to develop emancipated forms of social organization, forms that would free humans from the “constraints of unnecessary domination in all its forms” (McCarthy, 1975, p. xviii). This orientation, of course, dovetailed with all the stirring social movements of the 1970s that sought racial and gender equality, while resolutely opposing the Vietnam War. It is here that we find the early ingredients of a growing criminology of peace and social justice. Part and parcel of the intellectual foment of the times was the evolution of what came to be called the “New Left,” an amalgam of social criticism that had a common aversion to all forms of capitalist domination but lacked a clear and coherent political agenda. The new school of critical/radical criminologists did their part by challenging the staid and hitherto unquestioned assumptions of con¬ ventional criminology and by offering new definitions of crime that departed from previous state, or legalist, definitions. They began to formulate a definition of crime as behavior that is molded and determined by capitalist institutions of social control as well as by a culture of violence and exploitation (Walker, 1987). In addition to these developments, the New Left criminology of the times was increasingly succumbing to the growing influence of the writings of the Chinese revolutionary hero and leader Mao Tse-tung. Translations ofMao’s essays were becoming more and more available to radical elements in the academic community as well as to oppositional groups in the United States in conjunction with the anti—Vietnam War efforts of social acti¬ vists. Stressing praxis and focusing on the interests of the oppressed and exploited classes of capitalist society, Mao’s writings provided a rich source of theoretical inspiration for the critical thinkers of the age.

Late Twentieth-Century Criminology

75

Gradually a new awareness was dawning on critical criminologists in the United States and elsewhere: A dialectical methodology must be used in the effort to understand crime and criminals. During this crucial period, students of crime had begun to question scientific positivism as the only way—the only methodology—suited for the study of crime. Students of crime indeed recognized that the dominant current in the history of Western criminology had been its commitment to positivism, with the assumption that crime exists as an objective reality independent of the reaction of the organized state (Wildeman, 1971). As a result, criminology now began to turn its research efforts to a close scrutiny of the operations and functions of those capitalist institutions that both define crime and then enforce the definitions—legislative bodies, the police, and the courts. All are organs of the capitalist state. The paramount insight of the times was this: Since it is the state that has a monopoly on the use of violence and on the definition of what constitutes crime, it is the behavior of the capitalist state itself that calls for critical investigation. The work that resulted from this insight was eventually to contribute to the emergence of a peace and social justice framework in criminology. Yet another influential theoretical development which contributed to the emergence of critical criminology in the 1970s was labeling theory, which had become quite popular by the mid-1960s. Labeling theory was associated with the work of people like Howard S. Becker (1963), Kai Erickson (1962), John Kitsuse (1962), and Edwin Schur (1971), and owed an intellectual debt to George Void and other conflict theorists as well as to the symbolic interaction tradition. Briefly summarized, according to labeling theory, social institutions themselves create deviants through the process of labeling some individuals who are somehow perceived as “differ¬ ent” from others, whereas in reality it is the label that makes them deviant. The focus is on the reaction of social audiences to the norm-violations of individuals. Howard S. Becker pronounced the classic formula: Social groups create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labeling them as outsiders. From this point of view, deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an “offender.” (Becker, 1963, pp. 8-9; for a critique see Paternoster & Iovanni, 1989)

So it is that the legal process itself cannot be separated from the actual creation of crime and criminals. The connection between criminally defined behavior and the entire legal process came under the close scrutiny of William Chambliss by 1969. He and others had begun to investigate the role of legislative and judicial

76

Early Twentieth-Century to Contemporary Criminology

bodies in capitalist society and the objective reality of crime. A year earlier, Aaron Cicoural (1968) had become interested in how institutions that were intended to mete out juvenile justice were themselves instrumental in creating delinquency. Jerome Skolnick (1966) had even earlier investigated the dysfunctions of police work in his influential and seminal work Justice Without Trial. Then in the early 1970s Tony Platt (1974), Richard Quinney (1972) and others offered radical alternatives to legal oppression as well as some hopeful prospects for a radical criminology. The theme was one of critical inquiry, a radical questioning of existing social institutions—but there were not yet any concrete radical proposals for the reconstruction of capitalist society. That was to come later. The part played by class and organizational interests in the legal defi¬ nition of crimes such as prostitution was investigated, as well as was the role of the law itself in the causation of crime and other social problems (Roby, 1969; Rose, 1968). A host of questions arose regarding the very power to define crime and delinquency and about the crisis of law and order itself (Gould, 1969; Harris, 1970). By the mid-to late 1960s, Quinney (1965, 1969) was calling for a radical reformulation of our notions of human life in society in relation to the problem of crime, and he gathered together a series of influential articles on crime written in the critical tradition. The critical questioning of the status quo of late twentieth-century capitalism and the world of crime and crime control had just begun.

Marxist Criminology In the beginning there seemed to be no doubt that there was such a thing as “Marxist criminology.” But the doubts and the questions were soon to surface. The first question was a basic one: how to portray crime in capitalist society. What perception of crime constitutes a proper starting point for a truly Marxist analysis? Those who advanced the Marxist position in the late 1970s and the 1980s criticized other radical criminologists, whom they characterized as revisionists who portrayed crime in a romantic light. In other words, the Marxists argued, crime should not be presented simply as rebellion against capitalist repression and exploitation. It should not be depicted as a social good or as a socially desirable activity. That is, some Marxists of the eighties began to argue that the radicals of the seventies were naive and unsophisticated when they depicted crime as revolution¬ ary activity aimed at overthrowing the capitalist system (Hinch, 1983). The second question was whether crime is best defined as “social harm” and “social injury,” or whether it is best defined in the legalistic, state mode: “Crime is what the state says it is” (Greenberg, 1981; this issue is

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also discussed in O’Malley, 1987). Third, for Marxist criminology, what is the correct use and definition of the concept of “class”? How are objective and subjective elements to be incorporated into the idea of class and class struggle? (Reiman & Headlee, 1981, “Meeting the Challenge,” 1982). Finally, the question of an idealist versus a materialist analysis of crime was posed, a question that really sums up all the others. (These issues are fully examined in Wildeman, 1984.) If critical/radical criminology is to become truly “Marxist,” what must it look like? And, even more important, is there such a thing as a “Marxist criminology” in the first place? These debates were to occupy the attention of many criminologists on the left during the decade of the eighties, the reactionary decade. These were by no means sterile, academic debates. At root the issue was this: Can critical criminologists find a coherent theoretical framework for the analysis of crime, a framework based outside capitalist institutions, capitalist ideology, and capitalist consciousness? It was the project of establishing a Marxian theoretical guidepost, or weathervane, for understanding and controlling crime and criminals, one which could further direct empirical research leading to solid policy recommen¬ dations. Furthermore, the theoretical guide must also embrace a criminology of peace and social justice as an integral part of its policy recommendations. And this during the Reagan years, years dominated by harsh and oppressive measures in reaction to crime. It was hard to be a Marxist in the America of the 1980s. It was just a little bit easier than trying to swim up a waterfall. The following discussion reviews various attempts to address these problems within a critical/progressive model of crime and crime control. The political atmosphere in the United States has been unique in its impact on the study of crime. In general, liberal political regimes such as those of Presidents Johnson and Carter fostered great diversity on the left. And conservative, reactionary regimes, the “hard-liners” such as those of Presidents Reagan and Nixon, tended to foster orthodoxy on the left as well as on the right. This sets the stage for the ideological struggles among the Marxists of the 1980s. Marxist criminology shifts our attention from just street crime to the larger structures and forces that dominate the lives of our people. It throws the spotlight of theory upon those social structures and forces that produce both the greed of the inside trader as well as the brutality of the rapist or the murderer. And it places those structures in their proper context: the material conditions of class struggle under a capitalist mode of production. Several propositions characterize the essence of what at this point in the evolution of American criminology is known as Marxist criminology. These propositions are interrelated, and they are to be understood as constituting a totality.

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Early Twentieth-Century to Contemporary Criminology

First, though the word crime is certainly not itself a creation of Karl Marx, all that the word signifies can best be understood and explained within the framework of Marx’s theoretical categories. This is to say, all the behavior contained under the heading crime is best understood in the context of the class struggle mediated by the capitalist state. Though crime is a valid object of Marxist theoretical analysis, “it does not qualify auto¬ matically for inclusion as a Marxist theoretical concept” (O’Malley, 1987, p. 77). The ideas, concepts, and theory central to Marxian analysis help us understand behavior that deviates from capitalist norms, laws, and in¬ stitutions as well as behavior that conforms to these laws and institutions. Second, crime must be taken to mean more than simply what the state says is crime. To so limit our definition of crime is to remain within the restrictive confines set by agencies of state control, which is a most unscien¬ tific way to proceed. The key to the problem of definition of crime is to retain the state definition of crime while at the same time extending the concept to include actions that cause social harm or social injury to large numbers of people. Third, state-defined deviance as well as social harm are behaviors whose significance is only grasped within the context of the class struggle. Class itself, in turn, is first and foremost an objective category, one deter¬ mined by a person’s relation to the means of production. Marxist crimi¬ nologists recognize the reality and the primacy of the goal of control over the means of production in the class struggle. They also stress class control over consciousness, ideology, and values in society as an essential tool in explaining the meaning and causes of crime. Thus, the notion of class is more than simply a descriptive category, describing the different crimes characteristic of different socioeconomic status groups, that is, the crimes of the rich and the crimes of the poor. In the Marxist usage, class becomes an analytical tool, a tool that makes possible an explanation of criminal behavior, not simply a description of it. Finally, Marxist criminology relies on the concept of alienation as indispensable to any explanation of crime. Alienation is the name Marx gave to the condition of people living out their lives under the capitalist organization of production and the social institutions characteristic of this organization of production. Alienated human beings are the result of a severing, a cutting, of the relationship of people to the product of their work, of the relationship of people to their productive activity itself, to the world of nature, and finally a severing of the relationship of people to themselves (Oilman, 1976). Criminal behavior is thus understood in the first instance as the behavior of human beings alienated by capitalist social structures and institutions.

Late Twentieth-Century Criminology

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In a very real sense, the Marxist criminology of the 1980s brought criminology full turn back to the sociological criminology of the nineteenth century. It places unlawful behavior back in its proper context, its social context. But this time the social context is much broader, reaching far beyond the nineteenth-century variables of population density, food prices, birth rates, and so forth. This time the social context is the very organization of production itself, along with the wealth-distribution mechanisms that characterize it. It is important to note here that the early eighties were marked by a certain degree of conflict between the Marxists of the Berkeley School (mentioned earlier) who developed a somewhat orthodox approach, rep¬ resented in the journal Crime and Social Justice during those years, and other critical criminologists. However, the friction between the Marxists and other critical criminologists, gradually evaporated during the Reagan years, so that by the end of the decade there remained no discernible dif¬ ferences between what is now variously called Marxist, critical, or progressive criminology. There is a clear lesson here: The repressive climate of the conservative years of the eighties led to a closing of ranks on the part of critical, progressive, and Marxist criminologists. At this point in its growth and development, critical/Marxist criminology does not constitute a theory. It is more appropriately characterized as an alternative construction of the reality of social control. Jim Thomas and Aogan O’Maolchatha (1989) write: Yet the “truth” of critical criminology . . . lies in an ability to transcend ... dominant ideas and to reshape them in ways that suggest new theoretical insights and empirical directions, (p. 144)

According to Thomas and O’Maolchatha, this criminology is really an invitation to struggle; it is thus a far different project than utopianism. These same authors identify as a “sampler” four new directions in which critical criminology is moving today: 1. British Realism, which strives to reconcile radical theory with realistic social policy, principally by beginning with the assump¬ tions that crime is a real problem and that crime control must be taken seriously. The central thrust here is to make the work of radical criminology of practical use to policy makers in the criminal justice system, while at the same time remaining critical. 2. The Criminology of Peacemaking, represented in the present work. 3. Feminism, about which more will be said below, where the entrance of women into criminology is discussed.

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Early Twentieth-Century to Contemporary Criminology

4. Postmodernist Criminology (also loosely referred to as “deconstructionist criminology”), which represents a crimi¬ nological version of “traditions influenced by recent conti¬ nental philosophy, cultural analysis, semiotics, linguistics, and poststructuralism” (p. 164). As we move into the last decade of the twentieth century, critical crim¬ inology is alive and flourishing, having attained a measure of maturity and internal integration. Numerous scholars, researchers, and theoreticians are working within this paradigm today. (For a sampling of some of the work of these criminologists, see Barak, 1988; Beirne & Hunt, 1988; Bohm, 1986; Chesney-Lind, 1988; Friedrichs, 1981; Michalowski, 1985; Milovanovic, 1988; Pepinsky, 1988; Platt & Takagi, 1988; Quinney, 1989; Schwartz, 1989; and Schwendinger & Schwendinger, 1983.)

Criminal Justice Studies Even as critical and Marxist criminologies were evolving from the mid1960s onward, another—quite different—development was taking place in Americans’ reaction to crime. It was a reactionary movement in response to the public’s fear of crime, a fear whipped to near fever pitch by the Johnson administration in the decade of the sixties. The reference here is to the rise of criminal justice. The rise of criminal justice in the capitalist state is discussed in chapter 1. What remains here is simply to locate in his¬ torical context the criminal justice studies movement that resulted from it. We go back briefly to the year 1931, the year following the onset of the Great Depression. That was also the year the Wickersham Commission, a presidentially appointed commission charged with the task of studying the problems of crime of those times, proposed a series of measures for more efficient crime control. It recommended a comprehensive plan for fighting crime, ranging from compiling more accurate crime statistics to building more effective and professional law enforcement bodies. (The Wickersham Commission’s fourteen reports covered the following topics: prohibition, criminal statistics, deportation, the child offender, federal courts, criminal procedure, penal institutions, probation and parole, crime and the foreign-born, lawlessness and law enforcement, costs of crime, causes of crime, and the police.) Not a great deal of concern with issues of peace and social justice here. Then, thirty-six years later, in 1967, another presidential commission appointed to study crime made its report to the American people: the President’s Commission on Law Enforcement and Administration of Jus¬ tice (the Katzenbach Commission). (The year 1967 marked the beginning of the nation’s agonizing struggle over the Vietnam War. Evidently every

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81

time the nation enters a period of crisis, a “war on crime” is declared.) The Katzenbach Commission told Americans that crime was caused by a disorganized society and that the solution was to be found in a vast increase in resources poured into the criminal justice system. The dominant theme of the report recommended efforts to eradicate the social conditions that fostered high crime rates. But this recommendation was quickly lost forever in the race to increase funds for law enforcement and to make it more effective and efficient in its fight against crime. As a direct response to this report, in 1968 Congress passed the Omni¬ bus Crime Control and Safe Streets Act. A major part of this legislation established the Law Enforcement Assistance Administration LEAA). In its early years the budget for LEAA exceeded $850 million per year. By 1982, when LEAA was abolished, it had spent more than $5 billion in the fight against crime, money principally spent on law enforcement and prison construction (Cole, 1988, p. 2). With this kind of money floating around, mainstream criminologists as well as community college, college, and university administrations, both public and private, immediately grew eager to study the structure and operations of the official agencies that make up the criminal justice system on the federal, state, and local levels. Today the field of criminal justice studies is massive, embracing a broad range of topics, including police administration, law, courts, prisons, criminal procedure, crime statistics, criminal justice data, juvenile delinquency, and on and on. The criminal justice system as well as criminal justice studies constitute an entirely new form of social technology, or social engineering. By 1988 there were at least four hundred criminal justice studies schools, departments, programs, or institutes on our nation’s campuses, where students could earn every de¬ gree from the B.A. to the Ph.D. in one or another area of criminal justice. An extraordinarily wide variety of U.S. government agencies, com¬ missions, and departments as well as private sources provide weekly, monthly, and annual reports, hearings, statistics, and other information on all aspects of criminal justice. For example, there is the National Criminal Justice Ref¬ erence Service: Document Retrieval Index, the Criminal Justice Abstracts, the Criminal Justice Periodical Index, the Criminology and Penology Abstracts, the Police Science Abstracts, and Sources for the Study of the Administration of Criminal Justice. And then there are annual reviews: Criminology Review Yearbook and Sage Criminal Justice System Annuals. There are bibliogra¬ phies such as Crime and Punishment in America: A Historical Bibliography, and Jack Kinton’s Criminology, Law Enforcement, and Offender Treatment. There are dictionaries and encyclopedias; there are directories and hand¬ books; and, finally, there are statistical sources: the U.S. Federal Bureau of Investigation’s Uniform Crime Reports for the United States and the U.S.

82

Early Twentieth-Century to Contemporary Criminology

Justice Department’s Sourcebook of Criminal Justice Statistics. Data on crime and crime control are, indeed, abundant. The forces behind this massive accumulation of data and information are generally motivated toward greater state control. That is, the aim is to develop more efficient mechanisms whereby state agencies can effec¬ tively maintain and protect inequalities in existing economic and political structures. The goal is rarely that of examining how our state crime control apparatus is oppressing the underclass and restricting people’s abilities to gain control over their own lives. The purpose of criminal justice programs and criminal justice studies is less to understand the oppressed than it is to render the control of the oppressor more efficient. Over twenty years ago, Herbert Packer (1968), a distinguished and respected social scientist and jurist, drew a distinction between two models of the criminal process. He called them the due process model and the crime control model. These models parallel the high-risk view versus the low-risk view of law (Nonet & Selznick, 1978). The crime control model stresses the priority of the repression of crime and hence favors repressive policies; the due process model places primary importance on the individual and hence favors individual rights. Likewise, the conservative low-risk view of law argues that “The separation of law and politics should be sharp, and defiance of the law must be put down with firmness,” whereas the progressive high-risk view of law realizes that “law characteristically upholds a specific kind of order in the form of received moral codes, systems of status, and patterns of power” (Nonet & Selznick, 1978, p. 6). It is the crime control model, combined with the low-risk view of law, that has been the dominant force in most criminal justice studies programs in the United States. The due process model and the high-risk view of law, stressing themes of peace and social justice, have thus far taken the backseat. Certainly the dual themes of harsh repression and harsh punish¬ ment have towered over themes of liberation, alternative rehabilitation programs, and social change during the decades of the 1970s and 1980s. This has been the result of capitalist crime control. Consequently, as Jeffrey Reiman (1987) has persuasively argued, criminal justice and criminal jus¬ tice studies convey a partisan view of the reality of the whole capitalist system. But changes are taking place. Criminal justice studies are even now beginning to gradually incorporate more of a peacemaking perspective in their curricula. Programs and proposals on mediation and conflict resolu¬ tion are being considered and debated. Instead of a criminal justice system founded on and perpetuating violence, consideration is now being given to the humanistic alternatives rehabilitation and reconciliation. A recent example of this is found in Douglas McDonald’s widely acclaimed Punishment

Late Twentieth-Century Criminology

83

without Walls: Community Service Sentencing in New York City (1987). There has been a recognition of the need to foster and promote what the Southern Christian Leadership Conference calls “liberation life styles,” life styles which would free people from drugs, alcohol, and joblessness (Lowery, 1987). Finally, awareness is growing of the pressing necessity to eliminate the brutalizing social conditions that breed human suffering and hence crime. This we call a criminology of peacemaking (also see Pepinsky and Quinn ey, 1991).

Women Enter Criminology The final significant development in the structure and composition of late twentieth-century criminology in the United States is the remarkable degree to which women have entered the field (Moyer, 1985; Price & Sokoloff, 1982; Simon, 1976). This comparatively sudden appearance of women is not only true for criminology but is also true for the closely related profes¬ sion of law. According to Statistical Abstracts, in 1974 law degrees were conferred on 25,986 men and on 3,340 women. By 1986 that calculus had changed drastically, for in that year 23,322 law degrees went to men, while 13,218 went to women. This in only twelve years. Since 1941 the first thirty-two presidents of the American Society of Criminology (ASC) have been men. However, in 1989Joan McCord became the first woman to head the Society. A sampling of the 1987-1988 ASC Membership Directory shows approximately 610 female members out of a total of about 2,100 members, or shortly under 30 percent of the total membership. Of these 610 female members, 175 are members of the recently formed Division on Women and Crime. An interesting figure becomes clear when we look at the number of papers presented by women at the annual meetings of the ASC. At the 1988 annual meetings, 29.4 percent of the papers presented were authored by women (356 women made pre¬ sentations out of a total of 1,210 ). This figure matches almost exactly the total percentage of women in the association. The women members have achieved substantial, if not equal, participation in the profession. And these figures are up from those of 1985, when about 25 percent of those presenting papers were women. (These totals were arrived at from a random sampling of the 1985 and 1988 Programs and Proceedings of the ASC as well as the ASC Membership Directory, 1987-1988.) Perhaps a review of the contents and subject matter of the papers presented by women will shed some light on at least some of the reasons they have been increasingly attracted to the field in the past decade. In 1985 many women presented papers on rehabilitation and prison reform as well as alternatives to prison, such as community corrections centers

84

Early Twentieth-Century to Contemporary Criminology

and reparations toward sentence reduction. Other topics included female offenders in all areas of law violation, from substance abuse to homicide, to juvenile delinquency and adolescent gangs. In 1986 an interest was shown in victim participation in parole release decisions, prison guard review, and electronic surveillance as a sentencing alternative. Spouse abuse, substance abuse, and the growing problem of incarcerated mothers received much attention. Finally, for women, the crime of rape ranked as the most frequently addressed topic that year. In 1987 the most commonly addressed issue by the women members of the ASC was family violence and homicide—spouse abuse and spouse murder as well as child abuse. In the 1988 program, family violence was again the topic most often researched, particularly family violence directed toward children. And, as in past years, the crime of rape was seriously examined. (These figures result from a random sampling of the papers presented at the ASC meetings from 1985 through 1988.) It is risky to speculate just why women have made such an impact, and so fast. Of course, over the decades of the seventies and eighties, women have become increasingly visible and active in politics, education, business, and other master institutions, though as a result of sexism and structured patriarchy, they still continue to be by and large barred from the higher echelons of society. At the other end of the world of crime and crime control, increasing numbers of women are being arrested, convicted, and imprisoned (Reid, 1988, pp. 168-172). This is not surprising, for as women come to participate more and more in the class struggle and in social life in general—institution building—they are bound to become objects of the greater pressures of class and gender control. In 1973 Dorie Klein published an article in the journal Issues in Crimi¬ nology, which first called attention to the possibility of a feminist criminol¬ ogy (Klein, 1973). Then in 1976 Carol Smart (1976) published a landmark work, Women and Criminology: A Feminist Critique, wherein she introduced for the first time an explicit and clearly formulated feminist critique to the study of crime and crime control. As is obvious from the above survey of women’s activities in the ASC, dramatic developments have taken place since these early breakthroughs. Feminist critics such as Kathleen Daly (1989), Daly and Meda Chesney-Lind (1988), Bell Hooks (1987), and Sally Simpson (1989), among others, are arguing for a radical feminism that challenges and struggles to overturn white, male, capitalist domination and privilege not only in criminology and the criminal justice system, but in all our institutions. Briefly summarized, feminist theory falls into three broad categories: (1) liberal feminism, which argues that gender discrimination is not systemic; (2) socialist feminism, which conceptualizes both relations

Late Twentieth-Century Criminology

85

of production and relations of reproduction as creations of the capitalist patriarchy; and (3) radical feminism, which locates the origins of patriarchy in male aggression and control of women’s sexuality (Simpson, 1989). The criminology of peacemaking, as well as critical criminology in general, are greatly advanced and enriched by the entrance of women into the field. New questions are being asked, new perspectives are being in¬ troduced, and new solutions are being advanced. The turning point in our approach to crime in the United States—from violence, punishment, and oppression to peace, equality, rehabilitation, and the economic liber¬ ation of the oppressed segments of our society—unquestionably is being furthered by the participation of women in the struggle.

5 Some Problems of Crime and Control

There is the problem of crime, and then there are problems of crime. In this chapter we first review selected mainstream theories of crime in the United States. Following this, we look in some detail at three areas of crime and crime control that currently are and will continue to be the focus of much attention into the nineties: the most common form of domestic violence, called spouse abuse, or simply woman abuse; computer crime; and the privatization of policing. All three topics are related to the dual issues of social justice and peacemaking. Domestic violence in the form of woman abuse is the very antithesis of peacemaking, for it is in the home that violent responses to frustration—whether it is the violence of crime or the violence of crime control—are first learned. Computer crime is related to social justice in that the behavior itself involves stealing the intellectual productions of others as well as their money, while the laws prohibiting it expand further our bourgeois notions of private property. And the privatization of the police function of the state tests the very limits of civil rights and civil liberties. Finally, we conclude with an overview of peacemaking alternatives in the struggle for social justice, alternatives we are gradually being led to adopt indeed, being forced to adopt by the very historical circumstances in which we find ourselves.

86

Some Problems of Crime and Control

87

The problem of crime in American society is starkly reflected in the number of our citizens under correctional supervision (jail, probation, prison, or parole). In 1986 there were 3,239,026 such persons, 1.8 percent of the U.S. adult population. Of these, 34 percent were black and 65 percent were white, 87 percent were male and 13 percent were female (U.S. Department of Justice, 1989). The offenses that brought these people to prison break down as follows (Schlesinger, 1987):

Murder and manslaughter

6%

Rape and other sexual assaults Robbery

5% 14%

Aggravated assault Burglary Larceny Drugs

7% 26% 11% 8%

Auto theft, fraud, all other

23%

Furthermore, our criminal justice system is most generous in handing out prison time for convictions. We have come to equate justice with pun¬ ishment alone, and we get nothing for it. At both the state and federal levels, the overall average time an inmate spends in prison in this country is twenty-six months. We have a higher ratio of citizens behind bars than any of the other advanced industrial nations: for example, for the crimes of robbery, theft, and burglary, the United States has 47 persons in prison per 100,000 adult population; Great Britain has 17 per 100,000; and the Federal Republic of Germany has 13 per 100,000 (U.S. Department of Justice, 1987b). We have been dealing with the problem of crime in such a manner as to have earned the worst of both worlds: the highest crime rates as well as the highest ratio of our citizens behind bars—not to mention the highest per capita expenditure on crime control (see Currie, 1985). Urgency spurs our search for peacemaking alternatives. We can no longer afford the way of violence, punishment, vengeance, and suffering. In today’s world, violence no longer works, if, indeed, it ever did. Our overwhelming need at the end of this century is to realize social justice. Peacemaking alternatives will be addressed at the end of the chapter. Our first task, then, is to review a number of select middle-range theories of crime that commanded the attention of much of mainstream criminology during the 1980s.

88

Some Problems of Crime and Control

CURRENT MAINSTREAM THEORY Many of the dilemmas and contradictions in mainstream, or “bourgeois,” criminology in the United States at the end of the twentieth century are the result of a certain theoretical chaos that marks the field. To a great extent, this chaos is deeply rooted in the myths dominating much of main¬ stream thinking about crime, myths that include the following notions: Crime is increasing; most crime is committed by the poor; some groups are more law-abiding than others; white-collar crime is nonviolent; regula¬ tory agencies prevent white-collar crime; rich and poor are equal before the law; drug addiction causes crime, and law makes people behave them¬ selves (Pepinsky & Jesilow, 1984). Methodologically and statistically, main¬ stream criminology is highly sophisticated. But the fact is that it has no central guiding theory. With these initial observations, we can go on to the substance of contemporary developments in bourgeois criminology, a some¬ what difficult trek over uneven terrain. In the 1980s, certain theories enjoyed ascendancy: motivational theories, strain theory, cultural transmission theory, containment theory, and con¬ trol/conflict theory (Cullen, 1984). In the general tradition of mainstream American sociology, these theories were in consensus about the lack of a one-to-one determinant relationship between motivational variables and any specific form that deviant behavior might take. This “indeterminancy of deviant outcomes” is in line with the works of sociological greats such as Merton, Parsons, Shaw, Thrasher, McKay, and Sutherland, all of whom stressed the principle of indeterminancy. Consequently, there was a search for structural variables. The question was, “What are the social-structural conditions under which these deviant motivations become actualized in the form of law violating behavior?” (Liska & Chamlin, 1984). Juvenile delinquency, long a favorite research area for mainstream criminology, particularly since the 1950s, continued in the 1980s to be the object of considerable attention. But the models, methodologies, and statistical tests grew considerably more sophisticated than they were in the 1950s. For example, control theory, first developed by Hirschi (1969) in the late 1960s, became one of the dominant theories of delinquency. Control theory holds that juveniles are “controlled” or prevented from delinquent acts by four interrelated social bonds: attachment, commit¬ ment, involvement, and belief. Control theory was first tested with crosssectional data by Hindelang in 1973 and by Empey in 1982; and subse¬ quently it was subjected to more rigorous scrutiny by a longitudinal test using panel data from a national sample of adolescent boys (Agnew, 1985). According to the later, more sophisticated tests, Hirschi’s 1969 theory appears to have been prematurely accepted as valid, and the earlier,

Current Mainstream Theory

89

cruder cross-sectional studies greatly exaggerated the importance and predictive value of control theory. Other delinquency research focused on factors such as high school drop-out rates and delinquency rates, race and class and delinquency, and age structure and differentials in delinquency rates (Thornberry, 1985; Elliott & Ageton; 1980). The relationship between America’s age structure and crime was established. Further methodological developments enabled criminologists to distinguish between symmetric, bidirectional causality and asymmetric, unidirectional causality. Resulting research showed that the age structure-crime relationship is symmetric (Sampson, 1986). This conclusion supports the general agreement regarding the lack of a oneto-one determinant relationship between motivational variables and de¬ linquent or criminal behavior. Noteworthy was the absence of many of the biological, sociopsychological variables that were receiving attention elsewhere. Finally, the socioeconomic context of official reactions to ju¬ venile delinquency was another emerging object of investigation. Sampson reported finding that police reactions to juvenile delinquents were more dependent upon and molded by the socioeconomic status of the neigh¬ borhood of the juvenile than by any other single factor. Police reactions to juvenile delinquents are in fact contextual in nature. These reactions have more to do with the officers’ perception of the delinquent’s neighbor¬ hood than they have to do with the individual delinquent (Sampson, 1986). During the course of the 1980s, mainstream criminology in the United States shifted perceptibly to the right. Increasingly strident and sometimes even demanding voices were raised with regard to the positive effectiveness of capital punishment as a strategy for curbing violent personal crime. Arguments for capital punishment were constructed and presented in estab¬ lishment publications as legitimate, usually veiled in the form of a “liberal dialogue.” More and more frequently we saw research reports on such topics as the effectiveness of harsher punishments, preventive detention, and the need for massive public expenditures on increased prison capacity. The privatization of prison management attracted favorable attention. This allows the state to lease, sell, or consign prison management, admin¬ istration, and operation to the private sector for the ultimate generation of private profit from the products of prisoner labor and constitutes, in effect, a social policy that stops just short of corporate-run slavery with the state’s blessing. Research grants to study more efficient surveillance of criminals on probation and parole through the use of electronic moni¬ toring devices permanently fixed to their bodies were easily obtained. The role of unemployment in the etiology of crime came under attack and was virtually reinterpreted. Ever since the pioneering work of William Bonger and his students, it has been an accepted tenet of criminology that

90

Some Problems of Crime and Control

unemployment rates and crime rates are positively correlated. Quetelet (1842) also spoke of this relationship as part of his concept of the social mechanics of crime. The relationship has been demonstrated empirically time after time in both cross-national studies and within-nation studies. During the eighties, however, as a result of some powerful new methodo¬ logical tools (panel models, intraseries and cross-series lagged effects), researchers maintained that this relationship had been spurious all along and that “there may in fact be no relationship between unemployment and heightened motivation to commit crime” (Parker & Morwitz, 1986). Perhaps when unemployment rates are up fewer material goods and money are lying around for the criminal to snatch up, because times are tough for everyone in a period of economic slowdown. Or perhaps it is because during periods of high unemployment more people are at home guarding their possessions instead of out there working at the point of production. Explanations such as these were being seriously advanced in the literature. The crime/unemployment connection was challenged in an even more subtle way. A linear panel model now enables the analyst to take advantage of a nonrecursive model of the relationship between crime and unemploy¬ ment (Thornberry & Christenson, 1984; Cantor & Land, 1985). Now it appears that crime causes unemployment. This is certainly quite clear in the case of the individual; a criminal record in the United States surely does severely limit an individual’s chances on the job market. But there was not much new or startling information here. We have known this since the days of branding criminals on their foreheads. The upshot of all this was that some segments of mainstream criminology, by attacking the relationship between law-breaking behavior and the economic base, shifted the spotlight away from the realm of the social and back to a focus on individual responsibility for crime. This was not only a conservative shift to the right, it was reactionary, the message being that the fault lies not in the system but in ourselves. A further conservative shift to the right during this decade came with the 1985 publication of James Q. Wilson’s and Richard Herrnstein’s con¬ troversial book Crime and Human Nature (1985). Their thesis is reductionist in nature. It attempts to explain criminal behavior within the context of individual factors as opposed to social factors. The fundamental thesis is that biological and psychological traits predispose certain individuals to¬ ward criminality. Their review of 1,300 research studies led them to con¬ clude that biological traits along with psychological traits rooted in the biological composition of a person predispose that person toward criminal behavior. Criminals, therefore, are physically different from “the rest of us.” They are of lower intelligence than we good, law-abiding folk; they are impulsive, and they are “insufficiently socialized.”

Domestic Violence

91

However, the authors have been criticized in that they failed to deduce any testable hypotheses from their theory (Gibbs, 1985). They have been further criticized on the grounds that they have confused correlation with causation and for their “selective use of poor data to support a muddled ideology” (Kamin, 1986). Over the centuries, such monocausal theories that explain undesirable behavior have normally appealed to the masses, precisely because of their simplicity and purity: To understand them does not require a great deal of thought. Some critics of Wilson and Herrnstein are even persuaded that their work constitutes a renewed challenge to sociology to clarify and redefine the social forces operative in the etiology of behavior that the state has defined as criminal (Cohen, 1987). Crime and Human Nature was but one more example of the increasing attention paid to the individual by the mainstream criminology of the eighties. The most frequent methodology was the use of longitudinal stud¬ ies of stratified birth cohorts of high-risk groups, studied over time (see, for example, Farrington, Ohlin, & Wilson, 1986). The danger posed by co¬ hort studies, longitudinal studies, and criminal career studies is that they can very easily lead to repressive policies of selective incapacitation, pre¬ ventive detention, and other crime control measures characteristic of a to¬ talitarian state. “Federal policy has been captured by the career criminal notion,” lamented Michael Gottfredson and Travis Hirschi (1986) in the mid-eighties. Finally, apart from their chilling policy implications, these designs are criticized on the grounds that they are ineffective, they require huge outlays of funds, and they yield little data of practical or theoretical use. Finally, we come to the rational choice model of criminality. Closely related to that of Wilson and Herrnstein, it consists of a set of somewhat simplistic assumptions regarding human behavior in general, and it is rem¬ iniscent of Beccaria and Bentham’s classical, prescientific, image of human behavior as the product of freely acting, completely rational beings. Behavior is depicted here as taking place in some sort of vacuum, entirely apart from the realm of the social. Also called the “economic model,” it assumes that “when individuals are faced with choices of action, they evaluate them according to their consequences and will prefer those with the highest anticipated ratio of rewards to costs” (Barlow, 1987, p. 76). People commit crime simply because doing so seemed at the time to maximize their own self-interest. This is rather thin soup with which to explain the complexity of human behavior, criminal or not.

DOMESTIC VIOLENCE The phrase domestic violence is rather pallid, considering all the ugly forms of law-violating behavior it embraces: spouse/partner abuse, including

92

Some Problems of Crime and Control

homicide; child abuse, sexual and otherwise; child neglect; and elder/parent abuse—and all of this within the confines of what we like to think of as the loving, nurturing family group. Somehow, the two words domestic and violence just do not seem to go together. Although we zero in on spouse abuse in the following discussion, most of the processes and forces at work here are also symptomatic of the other forms of domestic violence. We choose spouse abuse because it seems to be the most common form of domestic violence as well as the most widespread example of woman abuse in general. Young children who see their fathers wreak physical and psy¬ chological violence upon their mothers quickly come to define this as acceptable behavior—the way things work. Ever since the 1979 publication of Richard Gelles’s pioneering work Family Violence and of Lenore Walker’s The Battered Woman the same year, and the 1980 publication of Murray Straus’s work Behind Closed Doors: Violence in the American Family, things have not been quite the same in the way we think about the American family. Our ideas and idealized per¬ ceptions of what happens within its confines have been radically changed. We have come to know a portion of the truth, and it is not at all pleasant. Domestic violence appears to be so prevalent and destructive that, “even using conservative estimates, family violence will probably be the crime of the ’90s” (Geffner, 1989). The violence and oppression that pervades virtually every aspect of the rest of our institutions can now be seen as rooted in and originating in the family unit and from here spreading out into other social spaces, not unlike a virus. But the dialectic is ever at work: The violence that pervades our master institutions, in turn, bounces back as it were and influences the nature of intimate family interaction. An old Russian proverb gives us an insight into the peasant notion of common sense in dealing with women: “A woman is not like a jug. She won’t crack if you hit her a couple of times.” This bit of folk wisdom contrasts sharply with the following quote from an inmate in New York State’s Bedford Hills Correctional Facility for Women: “I don’t feel that these painful experiences [of an abused spouse] should end up with one dead and the other in prison (Testimony, 1985). A typical opening quip in an undergraduate course on marriage and the family is, “What group would you avoid if you wished to avoid a high probability of being physi¬ cally abused?” The answer: the family. The literature on spouse abuse is extensive, though it is of relatively recent origin. It began to emerge in the 1960s, and it can be roughly divided into academic and professional on the basis of the educational background and immediate concerns of the authors. In both the academic and the professional literature, spouse abuse is presented as the result of a series of complex, interrelated factors ranging from the stresses caused

Domestic Violence

93

by our modern capitalist, industrial society to neurological disorders, bio¬ chemical imbalances, and substance abuse (Roy, 1982). Spouse abuse is explained as the result of a number of sociological and psychological forces at work on and within the individual batterer and his set of relationships both with his family of orientation as well as with his family of generation. (We use the male pronoun here, for although the woman partner is some¬ times the batterer, this is an extremely rare occurrence.) In addition, the legal profession is giving increasing attention to this problem. Legal concepts such as automatic reliance, self-defense, equal force, imminent danger, and expert testimony are being used with varying degrees of success in defending battered women who end up in court for the final act of self-defense, the murder of an abusive partner (Price, 1985; Schneider, 1980; Walker, Thyfault, & Browne, 1982; Burstein, Fields, & Digirolamo, 1984). The part played by law enforcement and court inter¬ vention in domestic violence has come under close scrutiny, eliciting inter¬ mittent praise and criticism recently. Connecticut was the seventh state to enact a strong domestic violence bill designed specifically to protect battered spouses, and since then at least twenty-eight other states have followed suit with special domestic violence legislation. Essentially, this legislation mandates a seven-point measure requiring, among other things, arrest in cases of domestic assault whether or not the victim is willing to sign a complaint, court hearings the day following the assault, and a reha¬ bilitation program for first-time misdemeanor offenders involving a fine, plus compulsory attendance at a series of classes on the causes of rage and physical violence. A recent study concludes that “legal and extralegal inter¬ ventions can provide nonviolent alternatives for victims of male partner abuse” (Browne & Williams, 1989). The availability of such legal and extralegal interventions was found to be associated with a decline in femaleperpetrated homicides. The psychological theory of learned helplessness is perhaps the most useful tool in helping us understand why a woman remains in a battering relationship, typically for many, many years. Learned-helplessness theory is derived from clinical experiments. Dogs are placed in metal cages; they are given intermittent and random electric shocks. At first they do every¬ thing within their power to escape the cage, often damaging themselves in their attempts. After a time, and following a number of these shock episodes, the animals stop their escape efforts and become increasingly passive with each successive shock. Next, the experimenter opens the door of the cage and continues the random shocks. The dogs, even with the cage door open, do not move. They are unable to escape a situation that has, in effect, taught them they are helpless. They have learned that they are helpless to escape, and they have become completely passive. The

94

Some Problems of Crime and Control

experimenter then drags them to the door of the cage several times before they again learn that they have an escape route after all. Each dog must relearn that it has effective control over its environment. Cruel as these experiments seem to us, they nevertheless yield a valu¬ able lesson in human behavior. People trapped in a relationship that inter¬ mittently and randomly “shocks” them, causes them physical pain, and from which they see no escape, soon learn that this is the way it is, and the path of least resistance appears the only path available to them. They have, in effect, “learned” to be helpless. No one, neither friends, family, children, law enforcement personnel—not even therapeutic personnel such as social workers—can convince them that they do have a way out of the relationship, an open cage door. It is virtually impossible for the bat¬ tered spouse to see the open door when she sees herself as totally isolated and operating alone in an environment devoid of support systems. Cour¬ age fades quickly when we think we are completely alone. Learned helplessness theory meshes well with intermittent reinforce¬ ment theory, according to which the woman is treated with a great deal of tenderness, affection, and love by the guilt-ridden mate in-between these random episodes of violence, in-between her random “shocks.” Intermittently, her love for him and her perceived dependence on him is reinforced with a great deal of positive behavior on his part. Thus, the cycle is doomed to constant repetition until—in all too many cases—in desperation she finally takes effective but disastrous action. She slays him. She is free of her problem and has finally found relief. But now she faces another kind of cage, a very real one: prison. Estimates of the incidence of domestic violence vary widely. This is because it is private behavior and consequently often does not appear in official statistics. Further, different groups hold different norms for seeking help from official agencies and revealing what is viewed as strictly private and personal matters. Many women fear to seek help for the obvious reason of making matters worse for themselves and their children. Finally, the term spouse abuse itself is variously defined, and this adds to the difficulty in arriving at an accurate estimate of just how widespread and common the problem is. Compounding it is psychological, or emotional, abuse, which is equally damaging as is physical abuse. Are incidents such as public insults and humiliations to be included in a definition of spouse abuse? Authorities are split on this issue, with the more committed inclined to include psychological mistreatment in defining spouse abuse. The prob¬ lem of measurement remains. One textbook cites studies indicating that serious incidences of spouse abuse occur in 50 to 60 percent of all couples, married or not. At some time in their relationship, 25 to 50 percent of all wives are physically

Domestic Violence

95

abused by their husbands. Wife beating is estimated by the Federal Bureau of Investigation to be the most frequently occurring crime in America. Thirty-seven percent of wives in divorce actions mentioned their husband’s physical abuse as a reason for seeking the divorce (Eitzen, 1989). Another text states that approximately two to four thousand women are beaten to death every year by their spouses. Battery is the single major cause of injury to women, “more significant than auto accidents, rapes, or muggings” (Reid, 1985, p. 273). Domestic violence is the monopoly of no single segment of American society. No age group, race, ethnic, or religious group, nor educational, nor socioeconomic level is immune from it. It is omnipresent, infecting all levels and segments of our society. At the same time, however, many authorities are of the opinion that the poor and minority groups are over¬ represented in partner abuse statistics simply because their behavior is the most visible to public agencies such as hospital emergency wards and public clinics, as opposed to treatment in the private offices of personal physicians. The problem is so common that, although its victims may fail to see it as a shared problem, researchers immediately see its commonalities. One leading authority reported as follows: After completing about 20 interviews (of battered women) it became clear to me that the battering histories of the women had some striking similarities. The stories became so repetitious that I found myself fdling in their omissions. The women began to react to me as if I had super¬ natural powers. How could anyone guess what they had gone to such great lengths to keep hidden? (Walker, 1979).

Approximately 17 percent of all homicides in the United States are com¬ mitted in the home between family members, and a shade under 4 per¬ cent of all murders and nonnegligent manslaughters known to the police are committed by women slaying their mates. In the vast majority of these cases, the wife finally killed her abusive husband of many years (McGarrell & Flanagen, 1985). Approximately eight hundred mothers in state prisons across the land each year are doing time for finally taking the life of an abusive partner (Browne, 1986). For New York State, we have more precise data from a survey of female inmates at Bedford Hills Correctional Facility, inmates incarcerated in connection with domestic violence. (These data are based on a 60 percent response rate from the 540 female inmates at Bedford Hills in 1985, that is, 320 people.) According to this survey, conducted in July of 1985, 58 inmates, or 30 percent of those responding, reported having been abused by their husbands, common-law spouses, or boyfriends. Of the 110 women incarcerated for murder or manslaughter, 26, or 24 percent of the total

96

Some Problems of Crime and Control

of 110, reported killing their abusive mates. On the average, women in prison in New York State for slaying an abusive spouse have 2.3 dependent children. We also have some demographic data on these women, data compiled from the Public Hearing on Domestic Violence, held at Bedford Hills in September, 1985. Nine of the inmates incarcerated for killing an abusive spouse testified at the hearing. The average length of time they were married to their abusive spouses was 16.3 years. Seven were white and two black. None of them had any prior arrest record, for either violent or nonviolent crimes. Their average age at the time of the hearing was 38.5 years. These women were being incarcerated for periods of between 6 and 21 years on a variety of manslaughter charges. In America, people who need help are all too often dealt punishment in place of assistance, and in the case of spouse abuse, it is the children who suffer the most from this subtle form of state violence: the violence of incarceration. Each issue of the Family Violence Bulletin, published by the Family Violence Research and Treatment Program of the University of Texas at Tyler, Texas, contains a complete bibliography of the volum¬ inous material being written about crimes of domestic violence.

COMPUTER CRIME Guns don t kill people. People kill people,” is one of the many illogical and misleading slogans of the National Rifle Association. A variant of this slogan with regard to white-collar crime is, “Computers don’t commit crime. People commit crime.” The truth is, of course, that people use tools to gain their own ends and serve their own interests, whether these ends or interests be law-abiding or criminal and whether the tools be guns or computers. White-collar crime, in the classic formulation of Edwin Sutherland, is something people who wear white shirts to work do while they are at work. For Sutherland (1949), white-collar crime is, “A crime committed by a person of respectability and high social status in the course of his occupation” (p. 9). An updated, “criminal justice” version defines white-collar crime as “nonviolent crime for financial gain committed by means of deception by persons ... having professional status or specialized technical skills” (U.S. Department of Justice, 1981, p. 215). Another, simpler definition is “nonviolent crime for financial gain committed by deception” (U.S. Department of Justice, 1986c). Included specifically are the following categories of crime: tax fraud, lending and credit fraud, wire fraud, embez¬ zlement, forgery/counterfeiting, and regulatory offenses. A great many of these offenses are federal offenses. Most of these crimes, plus several other crimes such as theft of information, destruction of data, and copyright violations, are carried out through the use of computers.

Computer Crime

97

According to the Department of Justice, white-collar defendants are for the most part white, nonhispanic males, younger than forty, who had not attended college. However, white-collar defendants are more likely to have attended college than are non-white-collar defendants (U.S. Department of Justice, 1987a). Here we have another burgeoning area of criminal behavior—of the nonviolent variety—which is most likely to receive a great deal of attention through the next decade and into the next century. It merits some special reflection, because it calls our attention to the complex relationship between the development of computer technology and the world of crime and crime control. A social system such as our own, one that depends upon computers and electronic data transfer, is at serious risk if computer abuse goes unchecked. Deviance always strikes at the heart, the core structures, of a system. The principal studies of computer crime address a common problem that can be summed up as follows: How can we adapt our legal system to computer technology while still preserving our values of privacy, private property, and liberal democracy? In other words, how can we keep the state’s use of the computer from eroding our constitutionally guaranteed rights and freedoms? And how can we construct a legal system that prevents misuse of computer technology by individuals? The first concern is with the harm wrought upon private individuals and groups through the criminal use of computers by large corporations and by the state, not only to invade privacy but to illegally control individual access to major societal resources, such as credit, insurance, health care, and other social benefits. The second concern is with crimes involving harm wrought by individuals or groups to private corporations or to some segment of the public sector, such as the state or federal government, through, for example, “raiding” Pentagon computers and securing highly sensitive military information or executing all the various forms of credit card fraud. This latter concern is the most common theme in the literature: unauthorized or outright criminal appro¬ priation of money, services, or information by individuals. Computer crime is expanding our concept of what private property is. What formerly was not defined as private property is now being so defined by law; and things formerly considered to be in the public sector and accessible to everyone are being rapidly drawn into the circle of private property. For example, some forms of information are being transformed into private property. A Department of Justice monograph defines a com¬ puter program as “a form of intellectual property (a valuable, intangible asset consisting of ideas, processes, and methods) that is relatively new and eludes analogy to previously existing products (Computer Crime, 1982). And the Florida Computer Crimes Act of 1982, (815.01 -.07) set early precedent for other states to follow when it created a new category of private property

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which it called “intellectual property.” Implied here is more than just the traditional notion of copyright of an idea or of a literary work. In fact, some state statutes aimed at criminalizing computer abuse have followed the 1979 Federal Computer Systems Protection Act, and simply defined all information as property (Raysman & Brown, 1985). The California Penal Code, Section 502, defines property as follows: “Property includes, but is not limited to, financial instruments, data, computer programs, docu¬ ments associated with computer systems and computer programs, or copies thereof, whether tangible or intangible, including both human and com¬ puter system readable data, and data while in transit.” It would be diffi¬ cult to find a clearer example of the legal expansion of the concept of private property. The emergence of computer crime directs our attention to the rapid transformation of the social meaning of private property. Computer crime raises a host of perplexing new questions: what kind of people are these, who use the computer to commit crimes? How are they rehabilitated—or can they be rehabilitated? What is their recidivism rate? What are their motives? These and other questions trouble us when thinking about computer criminals. After all, those rare birds who are caught at the game—and they are not many, according to official estimates are people whose life profiles and styles depart significantly from those of the “traditional criminal” (“Computer Progress,” 1984; Becker, 1980, p. 13; also see “A Basic Checklist,” 1984; Pfuhl, 1985; Hollinger & Lanza-Kaduce, 1986). Motives range from greed and personal gain to such things as seeking a competitive edge, Yankee “know how,” marketing strategy, game-playing, ego gratification, revenge, American corporate ethics, and extortion. Except perhaps for extortion, this list of motives is fairly representative of motives for most goal-oriented human behavior in capitalist societies. Among the ranks of computer criminals are amateurs, crazies, ideologues, bureaucrats, experimenters, “hackers,” and so forth. The fact is that there are virtually no data on what kind of people use computers illicitly or illegally. We simply do not know much about them, if, indeed, there is a them, as opposed to “us.” This lack of data is accounted for by the fact that, according to FBI estimates, only 1 percent of all computer crime is detected, only 14 percent of that detected is actually reported, and less than 4 percent of these cases result in jail or prison sentences (Becker, 1980, pp. 6-7). One early empirical study that attempted to draw a profile of computer criminals, a study based on a mere seventeen cases, has shown that these people are young, possess computer and management skills, and have no prior criminal record. Noteworthy is the fact that there is absolutely nothing “out of the ordinary” about them. They are not antiestabhshment, nor are they political revolutionaries. They do not constitute

Private Police

99

a class or category of persons, nor are they stigmatized in any way as a group (Kraus & MacGahan, 1979). The only thing they seem to have in common is that they are computer sophisticates—they know how to use computers. The computer criminal does not actually “take” anything in the physical sense. It is not like stealing a few dozen pairs of shoes or cars, nor is it like a bank robbery, for that which is “stolen” is never physically touched. Instead, valuables—however defined, whether as information, data, commodity ownership or capital—are shifted, redefined, and some¬ times wiped out through electronic symbol manipulation. There is a total absence of any kind of violence or the threat of violence in computerassisted crime. People do not customarily use computers to strike their fellows over the head. The first empirical study of computer crime in the United States inves¬ tigated 184 out of the nation’s 785 largest corporations. Corporations responding to the survey calculated their losses from computer-related crime at a total of $12.25 million for the twelve-month period ending November 1, 1985. But the investigators concluded that this figure was greatly underestimated because corporations are most reluctant to expose to the public their losses from fraudulent employees. Reporting would have a severe negative effect on the organization’s image, not to speak of skyrocketing insurance rates. Only 30 of the 184 corporations responding said they had reported a majority of the incidents to law enforcement authorities. Most firms regarded these incidents as purely internal affairs. The most frequent crimes reported were, in rank order: theft of com¬ puter hardware, use of computers for employee benefit, theft of computer software, destruction or alteration of data, embezzlement of corporate funds, destruction of computer hardware and software, fraud against the corporation, theft of output and input data, and, finally, extortion or black¬ mail (O’Donoghue, 1986). Most corporations rely upon either internal security experts or outside, hired security experts to stem their losses to computer crime rather than depending upon public law enforcement officials. And this takes us to our next problem of crime: contract policing, or private police.

PRIVATE POLICE The privatization of policing is just one part of the larger question of whether or not to shift the state’s criminal justice responsibilities to the private sector. A related question involves the privatization of punishment, that is, penology and corrections: who should be given the responsibility of managing convicted criminals (Durham, 1989). And these questions

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are themselves part of a yet more universal question: Under what arrange¬ ments and in what circumstances can public ends best be met through private means (Donahue, 1989)? We focus on the privatization of policing here because we think it touches the most sensitive of social justice nerves. Historically, the use of private police, or contract policing, in the United States began in the 1890s. In the latter half of the nineteenth century, capitalist industrial development underwent rapid and massive expansion. This industrial expansion was fueled by the unprecedented in¬ flux of immigrant labor from Europe. This influx, in turn, was accompanied by widespread labor unrest and by efforts to organize the working classes of immigrant laborers. As a response, the capitalist sector stimulated the explosive growth of private security; and in the subsequent labor struggles, it became common practice to use private security guards—often no more than hired thugs—to combat efforts to unionize. The infamous Pinkerton Detective Agency and the Burns Detective Agency stand out as the capitalist sector’s most effective and repressive tools in the early struggle to dominate and control labor. By 1893, however, the federal employment of private security in any capacity whatsoever was prohibited by the passage of the “Pinkerton Law” (27 Statute 591, 5 U.S. Code 53, enacted March 3, 1893). In our own day, contract policing flourishes mightily, aided by the eager cooperation of police departments across the country. Even as federal, state, and local governments extract ever-increasing tax revenues from citizens for law enforcement budgets, crime rates ranging from corporate crime to street crime continue to escalate. Private citizens, neighborhood communities, and, more significantly, multinationals and other large cor¬ porations in the banking and finance, retail, insurance, manufacturing, and construction sectors are expending more and more of their resources on contract policing. Criminal justice expenditures on all levels of govern¬ ment totaled a record $46 billion in 1985. The portion of this total that was allocated to law enforcement, the largest, stood at $22 billion (U.S. Department of Justice, 1986a, 1986b). These revenues bought Americans the full-time employment in law enforcement of 693,245 men and women. In the country at large, there are 52.8 criminal justice employees per 10,000 population. And yet by any official measure, whether it be Uniform Crime Reports, the National Crime Panel, or the various studies of the Bureau of Justice Statistics, our crime rates continue to rise. On the other hand, the growth of private policing in the United States has been much more dramatic and rapid than that of the public police. In 1970, the number of private police was roughly the same as the number of public police. Since 1970, private police have grown to outnumber public police by a factor somewhat over two to one (Cunningham & Taylor, 1984; U.S. Department of Justice, 1984; Platt, 1987). Thus, we can con¬ servatively estimate the number of private police employed in the United

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States to stand around one and a half million. In terms of dollars, the business of contract policing is lucrative indeed. By 1977 the “private security service market,” as the industry refers to itself, was already valued at $2.7 billion. In less than ten years—by 1986—contract policing was valued at $7.9 billion. Further, demand for security services has been pro¬ jected by the Freedonia Group, Incorporated, to increase at a $9.1 percent annual rate and to reach a value level of $12.3 billion by 1991 (Group, 1987). How does surrogate policing fill the gap left by the inability of public police to provide effective police protection and investigative activities? Do contract policing arrangements realize social and individual justice in the absence of public accountability? Does contract policing actually (and paradoxically) increase state control? The answers to these questions are pressing, for individual rights of privacy, freedom, and security are at stake. Two main issues present themselves: the issue of contract policing and social justice and the issue of contract policing and the social control power of the state. First, the issue of contract policing and social justice. One of the principle objections to the whole idea of contract policing is that private police are just that: private. They do not work for nor are they in the employ of law enforcement institutions supported by taxpaying, voting citizens. The argument continues: Contract police constitute a police power beyond the direct control of the state, of procedural law, and of the democratic process in general. In the long run, contract policing—particularly, the employment of off-duty public police by private firms and private interests—radically undermines the public interest. Some commentators see in private police the possible beginnings of a slow transition to a total¬ itarian police state (O’Tool, 1978; Hougan, 1978; Kakalik, 1971), or more genteelly phrased, “to a disciplinary society” (Johnston, 1989). According to one of two possible arrangements, private interest groups and organizations (i.e., shopping malls, corporations, neighborhoods) employ off-duty public police. The police functions most frequently purchased by the private sector are “traffic control and pedestrian safety, order main¬ tenance at major events, security and protection of private persons and property; routine law enforcement for public housing, parks, and airports; and plainclothes details” (Reiss, 1988, p. 2). Such personnel are basically serving a public agency and a private employer at the same time, though in different roles and functions. Off-duty police who moonlight are not operating as public law enforcement officers, for their pay in this case is coming from the private interest they are serving at the time. The second arrangement is that public police employ private police; for example, the Department of Justice purchases the data files of private intelligence¬ gathering firms such as the Law Enforcement Intelligence Unit (LEIU),

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which is essentially a private club, the members of which are law enforce¬ ment officers from urban police forces across the country. Both of these arrangements constitute potential threats to the civil liberties of American citizens. The first, however, clearly constitutes the greatest and most widespread threat. In this case, all the powers, experience, and training of the public police, paid for by taxpayers, are made available on a contractual basis to the private sector. And these powers and expertise are all exercised with a great deal less scrutiny, review, administrative super¬ vision, and legal control than that which stems from procedural law. Albert Reiss (1988), who has pioneered in empirical investigation of contract policing, has drawn up a list of problems and questions confronting police managers when public police exercise police powers under private employment (pp. 4-6; Reiss cites Cunningham & Taylor, 1985). They are as follows: 1. Who is responsible for employee injury when a public officer is injured while in the employ of a private firm? 2. Who is liable for the actions of a public officer under private contract

his home department or the private employer?

3. Which organization is ultimately legally responsible for control of the work of a police officer under these circumstances? 4. Who is responsible for the supervision of a police officer’s actions while under private contract? Related to this is the ques¬ tion of which agency is to deal with any misconduct of an officer in these situations? Public interest can easily be corrupted when a police officer serves private interests. 5. Who is responsible for fraudulent misrepresentation, extortion, and the use of coercion on the part of the officer so employed?' 6. Finally, where are internal or external complaints lodged?

Reiss also identifies three distinct management models for the private employment of sworn officers: (1) the officer contract model, in which each officer finds his or her own secondary (private) employment; (2) the union brokerage model, in which the police union finds paid private work for its members; and (3) the department contract model, in which the police department itself contracts directly with private employers Some departments even rent out their equipment, such as police helicopters, and patrol cars, to private organizations. Aside from the initial investigations of criminologists like William Reiss, William Cunningham, Todd Taylor, and a few others, it is simply not known how many public police across the nation are hired out to

Private Police

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private concerns or under what arrangements. Nor do we have any data on how this increasingly common practice actually results in invasions of citizens’ civil rights. All that is known for certain is that the use of public authorization to legitimate private police work runs a dangerous risk of state authority ensuring private interests to the exclusion of public goals and citizens’ rights. The same risks are faced by other Western democracies in Great Britain, Canada, and Europe (South, 1989; Johnston, 1989). Agents from the federal intelligence community have gone into con¬ tract policing by the tens of thousands over the years. These individuals, no longer motivated by patriotism, but rather by profit and private inter¬ est, are not bound by their law enforcement oaths as public servants. In fact, senior police administrators constitute the major reservoir of talent for leadership, supervision, and command in the contract police industry. Under the administrative leadership of this elite segment of contract po¬ lice is the roughly 90 percent of the industry’s personnel who are guards, watchmen, or patrol officers—referred to in private security lingo as the “mercenaries,” or those who perform the “sentry function.” One student of the contract police industry has noted that the profit sharing which often results from the successful operation of private police can be a powerful stimulus to circumventing the safeguards that the law provides citizens of civil society. The incentive of a great deal of money earned from a successful “sting” operation, for example, can unglue the most ethical private policeperson, whether he or she be a sworn officer or not. This incentive, or more properly, this temptation, is not there for public police working as public police; profit sharing in the solution of crimes or the breakup of a crime syndicate is not the tradition of law enforcement in the United States. All a sworn officer may hope for is a citation and points toward promotion. It is like the private bounty hunter who is well rewarded for the capture of a horse thief, as opposed to the Texas Ranger who, upon doing the same thing, receives no special honorar¬ ium. Further, private persons in the employ of a contract police organization can legally perform many operations such as entrapment, interrogations, and searches, whereas public police are forbidden by law from doing these things. A confession of guilt beaten out of a suspect by a private policeperson is admissible evidence in a court of law, whereas a confession similarly obtained by a sworn agent of the state is definitely not admissible (Marx, 1987; also see Marx, 1986). Contract police, whether sworn officers or not, still retain the legal status of private citizen under the law, and private citizens are legally free to act toward other private citizens in ways that are forbidden to sworn officers working in their official capacity. All of these considerations, and others as well, would seem to lead to the inescapable conclusion that our need for contract police in the United

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States, a need that springs from the development of late twentieth-century capitalism, produces a very real and serious threat to civil liberties. The state has failed, it would seem, in two ways. Not only has it failed to protect us and our possessions but—and this is the argument here—it has failed to protect our constitutionally guaranteed rights and freedoms. It has failed to realize social justice. The second issue at stake is that of contract police and the social control power of the state. It has become common to argue that the rise of contract policing in the United States is a reflection of the breakdown in our criminal justice system and an anomic decline in Americans’ regard for law. This argument leads to the conclusion that the increasing prevalence of contract policing is a clear sign of the decreasing power of state control, a sign of the erosion of the social control power of the state. Another logical consequence of this position is that the growth of private security “spreads out” the power of the state, diluting it, as it were, in such a manner as to inhibit the growth of centralized, totalitarianlike police con¬ trol. As a consequence, the rise of contract policing may be taken as a welcome sign of the democratization of social control. Thus, the reasoning goes, the failure of the state and state law enforcement institutions has been a failure to protect us individually and collectively against one another, and this failure has led to the proliferation of contract policing and the rise of a more democratic, “people power” type of social control outside the direct reach of the central power of the state. A more persuasive, alternative argument is this: With the growth in the numbers of employees and firms as well as in the scope and operations of contract police, comes a massive increase in the social control power of the state. Those who argue for this position do not see the criminal justice system as inadequate or failing. They see contract policing as a natural complement to, or maidservant of, the state, indeed permitting even more effective and efficient law enforcement. Thus, according to one advocate of contract policing, private security makes an invaluable contribution to the public weal. Its absence would be disastrous to law and order, and the operation of the criminal justice system. It constitutes the largest avail¬ able untapped, unstructured, dormant resource for the prevention and control of crime” (Lipson, 1975, p. vii). This position dovetails with the public image presented by the chief spokespeople of the private security industry: without contract policing, crime, both white-collar and street crime, would overwhelm us. The extent of cooperation between public and private police is such that the latter constitute a subtle, almost crypto-official arm of the state. The only difference is that contract police are less constrained by courts and legislation. The interface between these two social control institutions

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is fuzzy, blurred, and ill-defined indeed. The technology of the one is the technology of the other. The subculture of contract police is shared by the subculture of public police, and vice versa. Their “working personal¬ ity,” and their perceptions of the world are similar, and their domain assump¬ tions regarding human nature are identical. Indeed, on paper the two are distinct institutions, deriving their legitimacy and authority from differ¬ ent legal and social sources, but in actual practice they are one. Contract police are simply the paraprofessionals of public police. They share infor¬ mation freely. Referring to the institution of contract police, one observer uses the phrase, “tiny theatres of private control” that supplement the more extensive and centralized state social control apparatus (Reichman, 1987). The two are virtually one in reality, given interlocking public/pri¬ vate networks of surveillance and shared intelligence. The forces of social control converge in this confusing and blurred terrain, and the end result, the outcome, is a quasi-official extension of the intelligence and surveillance powers of the state, unfettered by the need to conform to the rigid, precise limitations of constitutional law. The links may be tangled and the cooper¬ ation at the interface between the two may not always be smooth, but nevertheless those links and the cooperative sharing of attitude, data, tech¬ niques, and the rest are all very real. Sometimes it is easier to get a perspective on the familiar through the lense of the unfamiliar. To better grasp the fact that the social control power of the state in the United States is extended and strengthened by the growth of private policing, it is helpful to see how private policing clearly extends the social control function in a nation state quite different from our own in its culture, traditions, and history. The People’s Republic of China’s Beijing Review reports with apparent pride that security services in China have been creating a new market in recent years. Three new contract police firms have been established in Beijing, one of which is the Beijing Electronic Security Services Company. Employees of this new company are “mostly retired policemen and ex-servicemen. . . . All guards sent by the company dress in dark blue uniforms (a copy of the uniforms of public police officers throughout China) and are armed with cudgels and walkietalkies. ... It plans to set up a broadcasting station to keep in contact with the public security bureau and assist public security policemen in maintaining order” (Wang, 1988, p. 28). Clearly, these developments rep¬ resent a further extension of the totalitarian control of the “Communist Regime” and of the social control apparatus of the Chinese state. Is it not the same in the United States with regard to the institutionalization of contract policing? Since the end of the Mao era, in a series of faltering steps, China has been gradually “opening to the world.” It began to relax formal state and

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Some Problems of Crime and Control

party control in order to promote economic growth. The traumatic events of the spring-summer period of 1989 will surely arrest this momentum temporarily. No one knows for sure, but indications are that the Chinese version of glasnost will eventually be resumed after leadership power struggles have worked themselves out, and a Chinese version of democracy is ultimately implemented again. Part of this Chinese version of glasnost will have to again involve a cautious and gradual limitation of the centralized state’s broad and oppressive powers of social control. It strikes us as curious that at this point in the history of postrevolu¬ tionary China, the phenomenon of contract policing should begin to emerge and presumably expand rapidly in the near future. The suggestion is, of course, that in the United States the same or analogous process has been well under way for quite some time. That is, contract policing has flourished in response to the courts’ progressive limitations and careful definitions of the police powers of the state. Contract policing thus neutralizes the legal limitations and restrictions on the capitalist state’s powers of social control in areas of surveillance, intelligence gathering, data sharing, and even physical coercion. Whether it be in socialist China or in the capitalist United States, what we see happening is the same phenomenon: contract policing rein¬ forcing and extending the social control powers of the centralized state. The private and public sectors are no longer two separate entities. How could it be otherwise, given the overwhelming and stifling power of cen¬ tralized state control—capitalist or socialist—in the latter decades of the twentieth century?

PEACEMAKING ALTERNATIVES In the old days, the way of violence taught that making people suffer would keep them in line. We argue otherwise for a new age. The way of violence has outlived its time. A criminology of peacemaking is developing. Enlightened criminal justice decision makers and others are realizing that lengthy prison terms are empty political gestures in dealing with the drug problem. Treatment programs offer more realistic and humane hope. Imprisoning mothers whose babies are born addicted is not only ineffective, it is cruel. WTiat is gained by punishing those who need help and treatment for an addictive habit contracted from the world they are forced to live in? Sealing off the nation s borders with barbed wire and trenches is equally fruitless. Eliminating the grinding poverty and hopelessness of our cities, eliminating those social forces that drive our fellows to addiction—these are realistic alternatives that offer promise and deliverance. As for capital

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punishment, Clarence Darrow (1961), that giant of American criminal lawyers, had it right a long time ago when he said, “Hanging men in our county jails does not prevent murder. It makes murderers.” A bit later in the same address, he spoke of prisons and jails: If you would wipe [jails] out there would be no more criminals than now. They terrorize nobody. They are a blot upon any civilization, and a jail is an evidence of the lack of charity of the people on the out¬ side who make the jails and fill them with the victims of their greed. (pp. 136-140)

Treatment, rehabilitation, alternatives to prisons, mediation, the real¬ ization of social justice, giving all the people decent and real life chances: These are the ways of peacemaking. These and other peacemaking alternatives to the way of violence are not a “quick fix,” and they call for considerably more money and dedicated effort. But the goals are within our reach, and they are worth stretching out for. “The future is in reach” (Reed, 1989). There are many peacemaking alternatives to the antiquated way of violence that paralyzes our present criminal justice system. These alterna¬ tives range from the moderate to the radical. For example, “problem-ori¬ ented” policing can replace reactive policing. Instead of police endlessly responding to an interminable series of felonies in the area of an abandoned building where addicts and pushers congregate, the police could organize the neighborhood to renovate the building and recover the neighborhood while at the same time urging other city agencies to set up drug treatment houses in that neighborhood. The prosecutor’s office is in an even better position than the police to effect problem-oriented responses to crime. Most misdemeanors can be dealt with by having the offender make repar¬ ation: For example, turnstile jumpers and other subway offenders can be made to serve a sentence by keeping a subway station clean and presentable for an allotted period of time, and they can perhaps be given a stipend for doing so. This model of problem-oriented prosecution has already been successfully implemented in New York City and in Dade County, Florida (“Fighting,” 1989). Furthermore, the priorities of our criminal justice system are gradually beginning to shift to reflect the reality of human relations in our time. We are beginning to see that it is irrational to put a man in prison for stealing a purse, while applauding and admiring a man who steals a fortune through corrupt financial dealings. According to this old proposition of the way of violence, “the blame diminishes as the guilt increases” (F. Schiller, quoted in Herman, 1989). What we are developing is a humane and rational view of crime and criminals, a view that sees the problem as one rooted in a deficient social system rather than simply in flawed individuals. Those

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who continue to vigorously oppose this view reflect the thinking of groups and associations that “propagate militant nationalism, imperial expansion, racism, anti-socialism, militarism, and support a strong, authoritarian gov¬ ernment” (Vokov, 1978; quoted in Marrus, 1987, pp. 10-11). We recognize this way of thinking as distinctive of the Nazi Party under Hitler. It was the way of violence. In distinct contrast, compassion is part of the equation of a criminology of peacemaking, but not a hypocritical compassion that would remember the homeless, the disenfranchised, and the criminal just as long as the rest of us remain free to “pursue our glorious path of self¬ advancement” (Hitchens, 1988). The dual themes of peacemaking and social justice are transforming our thinking even in the mundane and gritty arena of research and data gathering. In the past, the crime control model of criminal justice relied upon and activated evaluative research: “How effective are our programs in controlling people and crime?” was the principle question. But increasingly we are seeing criminology turn to needs-assessment instead of evaluative research. Needs-assessment research, following the peace and social justice model, seeks rather to gather data bearing on the more fundamental ques¬ tion of “What is lacking in the lives of our fellows that gives them no alter¬ native but a life of crime and violence?” Herein lie lasting solutions to the problem of crime. This new and progressive social transformation being born at the end of the century in the United States and elsewhere embraces the way of peace and social justice in dealing with crime and it rests squarely on tra¬ ditional Western principles of civil society. This tradition envisions a society of freedom and peace, one united not by the authority of the centralized state or the needs of the market but by “respect for human rights, cultural diversity, socially responsible commerce, religious tolerance and environ¬ mental prudence” (Morley, 1988). We have finally begun to look forward again after a long time looking backward. It is happening, but only with struggle. Criminologists such as Elliott Currie are noting the winding down of the “conservative revolution” and the advent of a “human-ecological” approach to crime. The way of peace is growing in the wake of the loss of credibility of the conservative model of punishment and violence. In an article looking toward the twenty-first century, Currie (1989) tells us: I believe that a forward look is especially important now, for unless I’m greatly mistaken, we have reached a turning point in our approach to crime in the United States. We are poised uneasily at the end of one criminological era and the beginning of a new one, and it will be up to us to define just what the new one will look like. (p. 5)

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He goes on to sketch out some of the guiding themes of a criminology of peace and social justice: 1. The expansion of high-quality, intensive early education for chil¬ dren at risk of growing up uneducated. 2. The expansion of physical and mental health services for highrisk youth and for their parents. 3. A greater commitment to family support programs, especially against domestic violence, including child abuse. 4. More consistent delivery of the basic services that many young offenders need. 5. A commitment to accessible, nonpunitive drug abuse treatment. Other criminologists and advocates of the way of peace and social justice are developing and experimenting with policies involving the twin strategies of mediation and reconciliation, especially in community-level conflicts such as racial, land, and housing disputes (Kraybill, 1988). The conflict-resolving technique of mediation is being used between victim and offender, parents and adolescents, and between victim and offender groups. Mediation is proving to be a viable alternative to the judicial model in many cases, even those involving violent crime (Wright & Galaway, 1989; Umbreit, 1988). Another development is the practice of “informal justice,” consisting of out-of-court settlements that provide benefits to victims as well as to offenders and involving the use of personnel trained and experienced in techniques of mediation. Capital punishment is vigorously rejected by a criminology of peace and social justice. Capital punishment never worked before, and it will not miraculously reduce violent crime now. It is rejected on several grounds: It is unequally applied; it has no deterrent effect; it is barbaric and puts the United States in the company of countries like South Africa and Iran; it sets a model of violence for citizens; it is rooted in revenge; and it degrades human dignity. Response to crime should restore what was lost to the victim, be rehabilitative, be equally applied, and be reconciliatory of individuals’ differences. Death as punishment fails on each account (see Radelet, 1989; also see Galliher, 1989, esp. pp. 253-254). We now move on to an in-depth exposition of the spiritual philosophy underlying the peace and social justice perspective.

6 Peace and Social Justice

The peace and social justice perspective continues to develop in crimi¬ nology. There are proposals and programs on mediation, conflict resolution, and reconciliation; there is the movement to abolish the death penalty; and there are humanist programs of rehabilitation and community orga¬ nization. These are the practices of a criminology of peacemaking, a criminology that seeks to alleviate suffering and thereby reduce crime (see Quinney, 1988). This is a criminology that is based necessarily on human transformation in the achievement of peace and justice. Human transformation takes place as we change our social, economic, and political structure. And the message is clear: Without peace within us and in our actions, there can be no peace and justice in our results. Peace is the way.

AWARENESS OF HUMAN SUFFERING Suffering is the condition of our existence. The forms of suffering are all around us. In our personal lives, tensions and anxieties abound. Each day we experience physical pains in our bodies and psychological hurts in our hearts and minds. Our interpersonal relations often are carried out in violence of one kind or another, if only in the withholding of what might be offered. We have created societies that are filled with the sufferings of poverty, hunger, homelessness, pollution, and destruction of the environment.

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Awareness of Human Suffering

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Globally, nations are at war and threaten not only one another but all of earthly life with nuclear destruction. All these human problems, or forms of suffering, are a result of how we have lived our lives, moment by moment, day by day. The threat of nuclear war began as suffering on a very personal level and escalated gradually and systematically to a collective condition (Walsh, 1984). The forms of suffering are symptoms of the suf¬ fering within each of us. If social and global suffering is ever to be ended, we must deal with the suffering of personal existence. What is involved, finally, is no less than the transformation of our human being. Political and economic solutions without this transformation inevitably fail. The solution is very near to us. There is no shortcut to the ending of suffering. The reconstruction of our existence—the ending of suffering—begins by giving attention to the mind. It is this mind—a modern mind that is busy and scattered—that creates its own suffering. To be able to observe the mind as it is, to be able to see clearly with the mind, we begin with what must seem at first a paradox: letting go. Stephen Levine (1979), the author of A Gradual Awakening, observes: “In letting go of who we imagine ourselves to be, letting go of our thinking, our attempt to control the world, we come upon our natural being which has been waiting patiently all these years for us to come home” (p. 39). This open state of mind is what one Zen master calls a “beginner’s mind.” He writes: “If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few” (Suzuki, 1970, p. 21). We are ready to see things as they really are—beyond concepts and theories—when we have no thought of achieve¬ ment, no thought of self. When our mind is open and thus compassionate toward all things, it is boundless in its understanding. Without awareness, we humans are bound to the suffering caused by a grasping mind. Being attached to our thoughts, we take the thoughts to be our true selves. The mind that is attached to its own thoughts is the mind of a self-centered and possessive being. All conditioned and attached thought arises from the discursive mind of the ego-centered self. That is why the sacred texts of the esoteric traditions, such as the wisdom literature of early Hinduism as found in the Upanishads and the Bhagavad Gita, suggest that truth can be known only through union with Brahman, through that which is beyond the ego-self and its attempt at purely rational thought. In contemplation and meditation, we can see the essence of all things as they rise and pass away. The higher wisdom, the awareness of reality, can be attained only with the loss of the conditioned ego and with the realization of the transcen¬ dental Self. In other words, the essence of our existence is the interpenetration

112

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of ourselves with all things. In Samadhi, a treatise on self development in Zen Buddhism, Mike Sayama (1986) writes: “The task before us is no longer to differentiate from nature and develop the ego, but transcend the ego and realize true Self that is one with the universe” (p. 12). Only then can one be at home; peace and harmony come with the awareness of the oneness of all things and the transcendence of the small self to the wholeness of reality. All of this is to be found outside of the abstracting interpretations of the rational mind. As we mature we move beyond the rational and linear mode of thought to a more intuitive and transcendent mode. We lose the grasping and craving self of the individualized ego and find ourselves in the realm of the universal Self. It is not natural—it is unhealthy—for the academic (the sociologist or criminologist) to continue strictly in the rational mode of speculative and dualistic thought as he or she matures, although this is the approved and rewarded form for the modern academic. To continue solely in the rational mode of thought is retrogressive for the maturing person, and for a discipline as well. The author of Samadhi concludes: “At the most mature level of human being, a person realizes the true self which is one with the universe and experiences a meaning beyond question and articulation. Such a person transcends anxiety, is fearless and is moved by compassion” (Sayama, 1986, p. 98). Rather than a life primarily of acquisition and scholarly production, life now demands an inner awakening, a spiritual development. One no longer clings to rationality and the ego as the final realities; one is not trapped in the world of interpretive abstractions taking form according to attachments of an ego-centered existence. Once we have mastered ra¬ tionality and moved to the possibilities of perennial wisdom, we can begin to live in compassionate oneness with all that is; we can begin to under¬ stand the world by fully being aware of it. The truth is that no amount of theorizing and rational thinking can tell us much about reality. To enter the essential realm requires a mind that is unattached and compassionate. In a book on perennial wisdom, Aldous Huxley (1970) writes: “It is a fact, confirmed and re-confirmed during two or three thousand years of religious history, that the ultimate reality is not clearly and immediately apprehended, except by those who have made themselves loving, pure in heart and poor in spirit” (p. x). When we allow the higher Self to dwell in the depth of the particular self—when the ego-centered, rational self is lost—we can attend to the unknown and unknowable mysteries of the world. And the final expression of this realization may not be in more talk and more words, but in silence. Saint John of the Cross observed, “For whereas speaking distracts, silence and work collect thoughts and strengthen

Right Understanding

113

the spirit” (quoted in Huxley, 1970, p. 218). With the wisdom gained by awareness, there may be no further need to talk and to write discursively. One then practices what is realized—with attention and silence, in charity and humility, in the service of others.

RIGHT UNDERSTANDING The way to awareness—and thus the ending of suffering—begins with right understanding. An understanding of the true nature of reality involves the recognition that everything is impermanent, that nothing remains the same. Within the flux of reality is the fact that every action brings a certain result. For instance, whenever our actions are motivated by greed, hatred, or delusion, the inevitable result is suffering. All of this occurs within a reality that is beyond the abstractions of a grasping and craving mind. The true reality, beyond human conceptions, is what Zen Buddhism refers to as “nothingness,” “emptiness,” or “the void”—sunyata. In a recog¬ nition of the fullness of the unnameable, of emptiness, we may begin to see clearly and compassionately the concrete reality of our existence. With this understanding, as Alan Watts (1957) notes, we are “at the point where there is nothing further to seek, nothing to be gained” (p. 125). When we are empty—within the emptiness of all—we are in the realm of ultimate reality. Beyond Western scientism, there is liberated action freed of the sepa¬ ration of ourselves from the world. Watts quotes a Zen line: “Only when you have no thing in your mind and no mind in things are you vacant and spiritual, empty and marvelous” (p. 131). This takes us beyond the products of Western thought, that is, beyond the malaise and destruction that have resulted from being separated from the ineffable reality of our existence. By a “dropping off of body-and-mind,” as Keiji Nishitani (1982) of the Kyoto School of Japanese Zen terms it, we allow ourselves to live in the wonder of absolute nothingness. We return to a home—we arrive at the “home-ground”—where all things are in harmony with what they actually are and ought to be. It is a “coming home with empty hands,” and each being has found its place among all other things. But let us beware, even this talk takes us into the place of mental abstractions— where we again lose touch with reality. Being on the simple path of right understanding, we create thought, words, and deeds that will end our suffering. The forest monk Achaan Chah (1985) writes, “Only when our words and deeds come from kindness can we quiet the mind and open the heart” (p. 50). Our work is not only to grow in wisdom and compassion but also to help others in their suffering.

114

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This takes place not necessarily in further theoretical work, but in momentby-moment, day-by-day, step-by-step awareness of what actually is. We are on a wandering path to emptiness, to an awareness of the fullness and wholeness of all things. That we, as criminologists, are to be engaged in spiritual work in order, among other things, to eliminate crime may require further reflec¬ tion. To be fully human presupposes the development within oneself of a quality of being that transcends material existence. It is a quality that is not acquired automatically, but one that develops slowly and needs to be tended carefully. Through inner work, we forge a link between the profane and the sacred—indeed, all of life becomes fdled with the sacred. Such a quality within each of us assures a life of growing wisdom, compas¬ sion, and service. Nothing any longer is profane, without the transcendent dimension. The simplest actions, from eating and walking to talking and working, have a sacramental character, signifying something beyond themselves. Our lives are within a realm that demands a spiritual as well as material existence. This is why the great religious traditions continue to emphasize a constant discipline of recollection, meditation, study, prayer, and con¬ templation, and at least some measure of solitude and retirement. The Trappist monk Thomas Merton (1979) thus writes: “If the salvation of society depends, in the long run, on the moral and spiritual health of in¬ dividuals, the subject of contemplation becomes a vastly important one, since contemplation is one of the indications of spiritual maturity. It is closely allied to sanctity. You cannot save the world merely with a system. You cannot have peace without charity” (p. 8). Seeing the truth, in con¬ templation and meditation, we are on a path that promotes a humane and peaceful existence. This is a reality that we can attain only in a life lived in the depth of the sacred. A life devoted to criminology cannot avoid the importance of this truth. Care has to be given to the inner life of each of us. This life of giving attention to spiritual matters, of going beyond the self to all that is in the world, is a socially committed life. The contem¬ plative life is not self-indulgent, for social issues cannot be faced appro¬ priately without inner spiritual preparation. Oppression in the world is caused by selves that are not spiritually aware, by those who live by greed, fear, egoism, and the craving for power over others. As Jacob Needleman (1980, pp. 212-219) observes in Lost Christianity, the “outer” world is not out there, and the

inner world is not solely one of personal emotions

and thoughts. Both are of the same space, in interpenetration of every¬ thing. The objective is a compassionate living of each moment with all other beings—for the ending of suffering.

Compassion and Service

115

COMPASSION AND SERVICE We are all of us interrelated—and “not just people, but animals too, and stones, clouds, trees” (Aitken, 1984, p. 10). Those who are enlightened in the service of others—the bodhisattvas of the world—realize fully the reality of the interpenetration of all things. Experiencing the ephemeral and transparent nature of reality—being aware of the oneness of all things—we can know the potential of peace and harmony. Were there complete perfection and unity, there would be no suffering. Suffering has arisen out of disunity and separation from the embracing totality and can be ended only with the return of all sentient beings to a condition of wholeness. We have fallen from the grace of wholeness into a separation from one another and from the ground of all being, a sepa¬ ration that is assured by craving and grasping selves, by selves that are really an illusion. If human beings were constantly and consciously in a proper relationship with the sacred and with the natural and social envi¬ ronment, there would be only as much suffering as creation makes inevitable. But our own created reality is one of separation, and therefore one of suffering. Thus the healing of separation is necessary if suffering is to be ended. To begin to end suffering, we must be aware of the causes of suffering within ourselves and search for the reasons that make us suffer. The Tibetan Buddhist master Kalu Rinpoche (1987) says that the suffering we experience in the world “is caused by the six afflictions—ignorance, desire, pride, anger, jealousy, and greed” (p. 13). The most hopeful way to attain world peace, to end global suffering, he adds, is by developing within ourselves compassion and loving-kindness toward others. In the practice of loving-kindness, what Buddhists call metta, there develops a feeling of caring and connectedness. From within, thoughts of goodwill and benevolence are extended outward, embracing all others in an increasingly wider circle. In compassion, the suffering of others is rec¬ ognized—out of one’s own suffering—and the suffering is shared. Jack Kornfield (1985) writes: “Compassion is the tender readiness of the heart to respond to one’s own or another’s pain without grief or resentment or aversion. It is the wish to dissipate suffering. Compassion embraces those experiencing sorrow, and eliminates cruelty from the mind” (p. 63). Looking directly at suffering, both the suffering in the world and the suffering in one’s own heart and mind, we love others (as ourselves) and act in compas¬ sion to end suffering—to heal separation. We begin our practice, then, by being aware of the ways in which suffering are manifested in each of us. “The more conscious we are in dealing with our own suffering, the more sensitive we will be in treating

116

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the pain of others” (Dass & Gorman, 1985, p. 86). Our responsibility is to do what we can to alleviate the concrete conditions of human suffering. “We work to provide food for the hungry, shelter for the homeless, health care for the sick and feeble, protection for the threatened and vulnerable, schooling for the uneducated, freedom for the oppressed” (p. 87). Acknowledging what is, acting as witnesses in this shared reality, without attachment and judgment, we open ourselves to all suffering. Acting out of compassion, without thinking of ourselves as doers, we are witnesses to what must be done. The path to the ending of suffering is through compassion rather than through the theories of science and the calculations of conditioned thought. Our sufferings are, in fact, exacerbated by science and thought. The dis¬ coveries necessary for dealing with suffering are within our being. The truth that relieves suffering lies in the concrete moment of our awareness, an awareness that frees us from conditioned judgments, creates loving¬ kindness within us, and allows us to realize the absolute emptiness of all phenomena. As long as there is suffering in this world, each of us suffers. We cannot end our suffering without ending the suffering of all others. In being witnesses to the concrete reality and in attempting to heal the separation between ourselves and true being (the ground of all existence), we necessarily suffer with all others. But now we are fully aware of the suffering and realize how it can be eliminated. With awareness and compassion, we are ready to act and to serve others.

THE WAY OF PEACE AND SOCIAL JUSTICE From the inner understanding of our own suffering, we are prepared to act in a way of peace. As in Mahatma Gandhi’s philosophy of satyagraha— truth force—social action comes out of the informed heart, out of the clear and enlightened mind. The source of social action is within the human heart that has come to understand fully its own suffering and there¬ fore the suffering of others. If human actions are not rooted in compas¬ sion, these actions will not contribute to a peaceful and compassionate world. “If we cannot move beyond inner discord, how can we help find a way to social harmony? If we ourselves cannot know peace, be peaceful, how will our acts disarm hatred and violence?” (Dass & Gorman, 1985, p. 165). The means cannot be different from the ends; peace can come only out of peace. “There is no way to peace,” said A. J. Muste. “Peace is the way.” In other words, without inner peace in each of us, without peace of mind and heart, there can be no social peace between people and no peace

The Way of Peace and Social Justice

117

in societies, nations, and in the world. To be explicitly engaged in this process, of bringing about peace on all levels, of joining ends and means, is to be engaged in peacemaking. In peacemaking, we attend to the ulti¬ mate purpose of our existence—to heal the separation between all things and to live harmoniously in a state of unconditional love. The radical nature of peacemaking is clear: No less is involved than the transformation of our human being. Indeed, we will be engaged in action, but action will come out of our transformed being. Rather than attempting to create a good society first and then trying to make our¬ selves better human beings, we have to work on the two simultaneously. The inner and the outer are the same. The human transformation in relation to action is described by Thich Nhat Hanh (1985), the Vietnamese Buddhist peace activist, as a realization that begins in the human heart and mind: To realize does not only mean to act. First of all, realization connotes transforming oneself. This transformation creates a harmony between oneself and nature, between one’s own joy and joy of others. Once a person gets in touch with the source of understanding and compassion, this transformation is accomplished. When this transformation is present, all one’s actions will carry the same nature and effect—protecting and building life with understanding and compassion. If one wishes to share joy and happiness with others, one should have joy and happiness within oneself. If one wishes to transmit serenity, first one should realize it oneself. Without a sane and peaceful mind, one’s actions could only create more trouble and destruction in the world, (p. 2)

The transformation of ourselves and the world becomes our constant prac¬ tice, here and now. The practice is in the true sense spiritual and religious. In Buddhist terms, we become enlightened in the practice, and in Christianity the transformation involves an inner conversion—a new age coming in both cases only when we have made ourselves ready. As Ronald G. Musto (1986), a commentator on the Catholic peace tradition, writes, “Peace is not so much political revolution as personal conversion; it is not individual human ego and power at stake, but God’s will to peace that only humans can accomplish on earth, as they are the recipients of God’s gift and challenge to peace” (p. 251). And there can be no peace without justice. A good social life—one based on equality, with the elimination of poverty, racism, sexism, and violence of all kinds—is a peaceful existence. The Old Testament Isaiah (32:17) states, “Justice will bring about peace, right will produce calm and security.” Peace, the result of all the benefits of the covenant, is granted to those who fulfill the covenant by living in justice. “Peace and justice,” Musto (1986) observes, “are thus inextricably bound: cause and effect,

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journey and goal” (p. 13). By living the covenant—by creating justice—there is peace. The peacemakers are truly “the children of God.” All of this is to say, to us as criminologists, that crime is suffering and that the ending of crime is possible only with the ending of suffering. And the ending both of suffering and of crime—the establishing of justice—can come only out of peace, out of a peace that is spiritually grounded in our very being. To eliminate crime—to end the construction and perpetuation of an existence that makes crime possible—requires a transformation of our human being. We as human beings must be peace if we are to live in a world free of crime, in a world of peace. We are fully aware by now that the criminal justice system in this country is founded on violence rather than on peace. It is a system that assumes that violence can be overcome by violence, evil by evil. Criminal justice at home and warfare abroad are of the same principle of violence. This principle sadly dominates much of our criminology. Fortunately, more and more criminologists are realizing that this principle is funda¬ mentally incompatible with a faith that seeks to express itself in compassion, forgiveness, and love. Recognizing that the criminal justice system is the moral equivalent of the war machine, resistance to one goes hand in hand with resistance to the other. The resistance must be in compassion and love, not in terms of the violence that is being resisted. A definition of “nonviolence” by a recent resister is appropriate: “Nonviolence is a method of struggling for human liberation that resists and refuses to cooperate with evil or injustice, while trying to show goodwill to all opponents encountered in the struggle, and being willing to take suffering on oneself, rather than inflicting it on oth¬ ers” (Taylor, 1986, p. 1). We are back again to the internal source of our ac¬ tions: Action is the form the essence of our being takes. Thich Nhat Hanh (1985), whose thoughts follow that same definition of nonviolence, writes: The chain reaction of love is the essential nature of the struggle. The usual way to generate force is to create anger, desire, and fear in people. Hatred, desire, and fear are sources of energy. But a nonviolent struggle cannot use these dangerous sources of energy, for they destroy both the people taking part in the struggle and the aim of the struggle itself. Nonviolent struggle must be nurtured by love and compas¬ sion (p. 2).

When our hearts are filled with love and our minds with willingness to serve, we will know what has to be done and how it is to be done. Such is the basis of a nonviolent criminology. We begin, then, by attending to the direction of our innermost being, the being that is the whole of reality. Out of this source, all action follows! In the words of Lao Tzu (1963),

No action is taken, and yet nothing is

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left undone” (p. 184). Everything is done out of compassion to help lessen the suffering of others. Living in harmony with the truth, we do everything as an act of ser¬ vice. Criminology can be no less than this, a part of the reality of all that is—a way of peace.

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