Chapter 1 Crime and Crmnal Law

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CHAPTER 1 CRIME and CRIMINAL LAW

CRIME in General

Crime, commission of an act or act of omission that violates the lawand is punishable by the state. Crimes are considered injurious to society orthe community, as distinguished from torts and breach of contract, whichtend to wrong only private individuals or corporations and not society as awhole.

As defined by law, a crime includes both the act, or actus reus, andthe intent to commit the act, or mens rea. Criminal intent involves anintellectual apprehension of factual elements of the act or acts commandedor enjoined by the law. It is usually inferred from the apparently voluntarycommission of an overt act. There are also crimes of strict liability, in whichit is not usually necessary for the prosecution to prove any mental element:such crimes are created by statute.

CRIMINAL LIABILITY

Criminal liability is relieved in the case of insanity. Legal minors are

also relieved of criminal liability, as are people subjected to coercion orduress to such a degree as to render the commission of criminal actsinvoluntary. In most countries, crimes are defined and punished according tostatutes. Punishments may include death, imprisonment, exile, fines,forfeiture of property, removal from public office, and disqualification fromholding such office.

Unless the act of which a defendant is accused is expressly defined bystatute or common law as a crime, no indictment or conviction for thecommission of such an act can be legally sustained. This provision isimportant in establishing the difference between government by law andarbitrary or dictatorial government.
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peoples swept across Europe, so new customs and forms of law wereestablished. Some historians argue that it is impossible to speak of criminallaw much before the 12th century. It was in the 12th century that Romanlaw, specifically the Justinian Code, was revived, especially in theuniversities of Italy. This revival encouraged kings and princes to seek to

expand their own authority, particularly over wrongdoers and rivals. It wasnot until 1532, however, that the Holy Roman Empire issued a full legal codethe Constitio Criminalis Carolina. Moreover, change within differentterritories occurred at different times and never at the same pace. By theclose of the 16th century the relatively centralized kingdom ofEngland had aseries of royal laws more or less implemented within its boundaries; theEnglish system was one ofcommon law. The kingdom ofFrance, however,whose borders were continuing to expand, had several hundred separatecodes and these were, as in much of continental Europe, generally a mixtureof local customary law and Roman law.

While, from the 12th century, formal criminal laws may have begun tobe written once again, records from the Middle Ages of the proceedings incourts are few, and basing any estimates of crime on the number of trials forwhich documents remain is futile. From the early modern period, when adegree of rigour began to be introduced into their record keeping, it ispossible to construct some statistics from court records. But there was avariety of courts: borough or burgess courts (in the towns), seigneurialcourts, royal courts, and church courts. In addition, there were three formsof legal competence: high, middle, and low justice. There were alsooverlapping jurisdictions, and offences were muddied by plaintiffs to the

extent that some cases brought before church courts manifestly had originsin secular arguments and injuries. All of which makes the collection ofstatistics for specific offences in the early modern period difficult. Thecollection of criminal statistics by emergent nation states did not beginseriously until the early 19th century, by which time most courts dealingwith criminal matters were essentially state courts. At best, however, theseare the statistics of crimes reported to police institutions. No one hassuccessfully explained how the historian might assess or estimate whatcriminologists call the dark figure of crimes that were not reported andhence were never included in these statistics.

Measuring and analysing punishment is more simple, but not as simpleas is often assumed. The traditional view was one of linear development.This charted a shift from brutal punishments inflicted on the body during theRoman, medieval, and early modern periods, to the development of theprison during the early 19th century, with the reformation of the offenderconsidered as even more important than his or her punishment. The realityappears to have been far more complex and a variety of punishments have
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been used over time involving the use of banishment and fines, as well asexecution, mutilation, and incarceration (see Capital Punishment). Moreover,while from the early Middle Ages princes and towns increasingly sought toimpose their laws on the territories that they claimed, in many areas theymet resistance. Some gentry, for example, who considered that their social

standing and common sense gave them the right to make decisions andjudgments about various injuries and offences, disliked the idea ofprofessional lawyers quoting Latin and using foreign precedents in thecourts. And in rural areas especially, communities still sought to resolveinjuries and punish miscreants in their own way without recourse to princeor town.

CRIMINALS

The concept of the criminal is relatively recent. But a series ofstereotype offenders appear to have been present in the Middle Ages. Thesewere gradually reshaped in the early modern period, and then remoulded asthe criminal class or classes, or simply as criminals, principally during the19th century.

Robber knights and robber barons were a phenomenon of the MiddleAges eventually brought under control by the armed might of kings andprinces but also, it has been argued, by an increasing gentility of mannersamong the ruling elites (see Feudalism). The growth of capitalism led to a

new kind of robber baron whose offences were not necessarily against thelaw. However, capitalism and industrialization fostered the development ofthe white-collar offender who defrauded both companies and investors. Ithas been estimated that as many as one in six of the company promotions inVictorian Britain were fraudulent. But, aside from various relatively short-lived panics about individual robber barons in the feudal world, or aboutwhite-collar offenders in the capitalist world, criminal stereotypes haverarely been situated among the elite.

At times the robber knights of the Middle Ages might have been

scarcely distinguishable from bandits, but bandits have had a much longerexistence. Bandits could acquire a romantic aura, but often not until aftertheir deaths. Robin Hood is the obvious example, and a man who, allegedly,robbed the rich to give to the poor. There is doubt about the existence ofRobin Hood himself, but plenty of other bandits acquired his romantic imagefrom the Middle Ages onward. In reality, however, few ever showed muchsolidarity with the peasantry and the poor. Bandit groups appear most oftento have been united by kinship and friendship. They commonly had links
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with some local power holders who might even employ them as their ownstrong-arm men. Individuals sometimes embarked on bandit careers fired bymotives of revenge for personal wrongs. They could also be involved inlarge-scale entrepreneurial activity such as smuggling and rustling. Theinternal customs barriers in countries such as ancien rgime France, for

example, created magnificent opportunities for smuggling, both petty andlarge scale. The best-known bandit of 18th-century France, Robert Mandrin,was involved in massive contraband expeditions with large numbers ofarmed escorts to protect his enterprise and fight off police and troops. Thebandit of the medieval and early modern period was, in this respect, aforerunner of the modern gangster involved in the illegal entrepreneurialtrafficking of alcohol, drugs, and people.

Bandits might also be drawn from marginal groups. In the Middle Agesthere was concern about the rootless vagabond. Of course, there wereindeed vagabonds and beggars, some of whom, most notoriously desertersand discharged soldiers still armed with their military weaponry, could bedangerous. There were also groups, such as entertainers, tinkers, and Roma(Gypsies), whose way of life put them on the road. Particular trades werestigmatized because of the filth or general unpleasantness that surroundedthemknackers (slaughterers of horses), skinners, and tanners are theobvious examples. These were considered dishonourable peopleunehrlicheLeute they were called in the German landswho, while their tasks might bebased in the urban world, were compelled to live on the edge, or evenoutside, of the towns. Also significant among the marginalized and theostracized, were Jews. These individuals and groups, excluded by rural and

urban communities, are found in court records charged with various offencesfrom highway robbery to arson. The problem is in assessing the extent towhich the stigmatization was self-fulfilling. Once such individuals wereexcluded, denied ordinary civil rights, and labelled as dangerous, there couldhave been a strong incentive for them to commit criminal acts as the bestway, perhaps the only way, of ensuring a living.

The obsession with the vagrant as criminal had a remarkable longevityfrom the medieval period until well into the 19th century. The men whoargued for a reform of the English police in the late 18th and early 19thcenturies, for example, all expressed concern about vagabonds and thoseindividuals who, the reformers believed, preferred a life of idleness andlooked for luxury, rather than indulging in respectable labour for an honestwage. Yet while there were continuities in the perception of the offender,there were also shifting perceptions regarding his or her motivation, andthese are easier to substantiate than a shift from violence to theft.
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As European society became more secular so the perception ofcriminal offending shifted from a form of sin, prompted by the Devil, to theresponsibility of the offender making rational choices. This shift was gradual,but was accelerated by a series of developments particularly during the 18thcentury. First, the population began to grow faster than the economy, and

thousands were forced on to the roads looking for work; a conservativeestimate has it that 5 per cent of the population of the German lands were inthis situation at the beginning of the 18th century. Some of these probablydid resort to brigandage and highway robbery, but the large numbers on theroads served to increase insecurity and fears of crime and criminals. At theend of the 18th century the behaviour of crowds during the FrenchRevolution accentuated fears about the urban poor. In the early 1840s aFrench police administrator, Henri Frgier, coined the term les classesdangereuses, and this struck a chord with those among the propertiedclasses fearful of revolution, and fearful especially of the poor in theburgeoning slums of the big cities and the new industrial regions. It waseasy to elide dangerous classes and criminal classes.

Towards the end of the 19th century, influenced by newunderstandings of evolution, a school of criminological thought emergedperceiving the criminal less as someone morally responsible acting as aresult of free will, and more as an individual dominated by his or herphysiological nature. The principal mover in this way of thinking was CesareLombroso, who claimed to have begun to develop his ideas while serving asa military doctor during the Brigands War of the 1860s in the south of Italy,and specifically when he examined the head of a notorious, dead brigand,

Giuseppe Vilella. Lombroso constantly refined his notion of the born criminal,as did his successors. They increasingly included a number of other elementsas working upon the potential offender: feckless parents, drink, poorhousing, and so forth. Such ideas suited well with contemporary concernsabout race degeneration and the science of eugenics. It encouraged somegovernments, notably in some states in the United States and inScandinavia, to introduce sterilization into their penal policy; and it found itsworst manifestation in Nazi Germany.

Away from the stereotypes of bandits, vagrants, members of thecriminal class, and born criminals, however, some generalizations can bemade about criminals through time. First, the evidence suggests that themajority of people responsible for both offences against property andoffences against the person were men, and primarily young men. Womenfigure most prominently in offences relating to prostitution. In somecountries the evidence of recidivism (relapsing back into crime), and this isobviously something that depends on the kind of careful records kept fromthe 19th century, suggests that women were repeat offenders in greater
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numbers than men. This is probably due to the stigma of prison, and to thedifficulty experienced by women with this stigma in finding respectable workand restoring some vestige of expected feminine morality. Most propertycrimes did not involve violence or the threat of violence. A high percentageof assaults, from pub brawls to rapes, generally seem to involve people who

knew each other, even people who were related. There was stranger-on-stranger violence, especially in offences involving bands of brigands,burglars disturbed in the act, individual highwaymen, or footpads(unmounted highwaymen). But the violence of professional criminals wasoften committed among those themselves as, for example, when criminalgangs fought over territory for illegal enterprises such as prostitution, illicitgambling, or the supply of heavily taxed or prohibited goods.

In the medieval and early modern periods, unless an offence wasspecifically directed against a prince or a state, it was generally up to thevictim, or the victims relatives and friends, to pursue and often even toapprehend the offender. Some individuals went to considerable expense toget valuable property returned. In 18th-century England, for example,victims of horse theft often advertised in newspapers or had handbillsprinted and circulated; a horse, after all, was a valuable property. Suchadvertisements often met with success. Entrepreneur thief-catchers alsoestablished themselves. They lived by fees and rewards from the State forthe apprehension of serious offenders, or fees and rewards from victims.Sometimes they simply negotiated with offenders for the return of stolenproperty rather than apprehending them and bringing them to trial.

CRIME THEORIES

To understand criminal justice, it is necessary to understand crime.Most policy-making in criminal justice is based on criminological theory,whether the people making those policies know it or not. In fact, most ofthe failed policies (what doesn't work) in criminal justice are due tomisinterpretation, partial implementation, or ignorance of criminologicaltheory. Much time and money could be saved if only policymakers had a

thorough understanding of criminological theory. At one time, criminologicaltheory was rather pure and abstract, with few practical implications, but thatis not the case anymore. For example, almost all criminologists today use alegalistic rather than normative definition of crime. A legalistic definition ofcrime takes as its starting point the statutory definitions contained in thepenal code, legal statutes or ordinances. A crime is a crime because the lawsays so. Sure, there are concerns about overcriminalization (too many laws)and undercriminalization (not enough laws), but at least on the surface, a
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legalistic approach seems practical. It is also advantageous to a normativedefinition, which sees crime as a violation of norms (social standards of howhumans ought to think and behave), although there are times whencriminology can shed light on norms and norm violators.

Every criminological theory contains a set of assumptions (about humannature, social structure, and the principles of causation, to name a few), adescription of the phenomena to be explained (facts a theory must fit), andan explanation, or prediction, of that phenomenon. The assumptions arealso called meta-theoretical issues, and deal with debates like those overfree will v. determinism or consensus v. conflict. The description is astatistical profile, figure, diagram, or table of numbers representing thepatterns, trends, and correlates of the type of crime taken as an exemplar(most appropriate example) of all crime. The explanation is a set ofvariables (things that can be tweaked or changed) arranged in some kind ofcausal order so that they have statistical and meaningful significance.Criminological theories are primarily concerned with etiology (the study ofcauses or reasons for crime), but occasionally have important things to sayabout actors in the criminal justice system, such as police, attorneys,correctional personnel, and victims.

There are basically thirteen (13) identifiable types of criminologicaltheory, only three (3) of which are considered "mainstream" or conventionalcriminology (strain, learning, control). The oldest theory (biochemistry)goes back to 1876 and the last four theories (left realism, peacemaking,feminist, postmodern) have only developed in the past twenty-five years.

The following table illustrates, with more information about each theorybelow the table:

Theory Causes Policy

1. Biochemistry

heredity, vitamin deficiency,allergy, tumor, toxins, braindysfunction, hormonalimbalance

isolation, treatment

2. Psychology low intelligence,psychopathy, stress treatment, counseling

3. Ecology disorganized neighborhoodscommunityempowerment

4. Strain economic goal blockage increased opportunities

5. Learning imitation, reinforcement more effective negative


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schedulesreinforcement, more useof positive reinforcement

6. Control socialization, low self-controlchild-rearing, socialbonds

7. Labeling shunning, identity immersion nonintervention,reintegration

8. Conflictpower differentials,competition

increased equality

9. Radical class struggle, capitalism praxis, socialism

10. Left Realism predatory relationshipsmore effective policeprotection

11. Peacemaking inner suffering and turmoil spiritual rejuvenation

12. Feminist gender inequity, patriarchy end sex discrimination

13. Postmodernhierarchical privileges andlanguage

more informal socialcontrol

1. Biochemistry is known by many names: biological, constitutional(having to do with the structure of the body's morphology), genetic, andanthropological criminology. The oldest field is criminal anthropology,founded by the father of modern criminology, Cesare Lombroso, in 1876. Hewas one of the first exponents of thepositivistapproach to explaining crime,positivism meaning a search for the causes of crime using scientific method,

as opposed to the classicalapproach, which relies upon free will as the maincause of crime. Historically, theories of the biochemistry type have tried toestablish the biological inferiority of criminals, but modern biocriminologysimply says that heredity and body organ dysfunctions produce apredisposition toward crime.

2. Psychological criminology has been around since 1914, and attempts toexplain the consistent finding that there is an eight-point IQ differencebetween criminals and noncriminals. That gap isn't enough to notice, but itmight make them more impulsive and foolhardy, and even smart people

with high IQs are vulnerable to folly. Other psychocriminologists focus onpersonality disorders, like the psychopaths, sociopaths, and antisocialpersonalities.

3. Ecological criminology was the first sociological criminology, developedduring the 1920s at the Department of Sociology at the University ofChicago. Hence, it is also called Chicago School sociology. Ecology is thestudy of relationships between an organism and its environment, and this


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type of theory explains crime by the disorganized eco-areas where peoplelive rather than by the kind of people who live there.

4. Strain, sometimes called by the French word anomie, is a 1938American version of French sociology, invented by the father of modern

sociology, Emile Durkheim (1858-1917). This type of theory sees crime asthe normal result of an "American dream" in which people set theiraspirations (for wealth, education, occupation, any status symbol) too high,and inevitably discover strain, or goal blockages, along the way. The onlytwo things to do are reduce aspirations or increase opportunities.

5. Learning theories tend to follow the lead of Edwin Sutherland's theoryof differential association, developed in 1947, although ideas about imitationor modeling go back to 1890. Often oversimplified as "peer group" theories,learning is much more than that, and involves the analysis of what ispositively and negatively rewarding (reinforcing) for individuals.

6. Control theories in criminology are all about social control. Only thosecalled containment or low-self control theories have to do with individualpsychology. Control theory has pretty much dominated the criminologicallandscape since 1969. It focuses upon a person's relationships to theiragents of socialization, such as parents, teachers, preachers, coaches, scoutleaders, or police officers. It studies how effective bonding with suchauthority figures translates into bonding with society, hence keeping peopleout of trouble with the law.

7. Labeling theory was a child of the 1960s and 1970s which sawcriminals as underdogs who initially did something out of the ordinary, andthen got swept up in a huge, government-sponsored labeling or shunningreaction. It argues that anyone facing such an overwhelming, negativelabeling social reaction will eventually become more like the label becausethat is the only way out for their identify formation. It points out thatsometimes its best to do nothing (for minor offending), and that there arefew reintegrative rituals designed to help people fit back into theircommunities.

8. Conflict theory holds that society is based on conflict betweencompeting interest groups; for example, rich against poor, managementagainst labor, whites against minorities, men against women, adults againstchildren, etc. These kind of dog-eat-dog theories also have their origins inthe 1960s and 1970s, and are characterized by the study of power andpowerlessness.


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9. Radical theories, also from the 1960s and 1970s, typically involveMarxist (referring to Karl Marx 1818-1883) critiques of capitalist societywhich allows things to exist like millions of billionaires and millionaires whilethe vast majority of people live in poverty or just get by. Such fundamentaleconomic disparities reflect basic contradictions in the way work is organized

into demoralizing, brutalizing, and oppressive conditions. Crime is seen as areflection of class struggle, a kind of primitive rebellion with criminalsbehaving as rebels without a clue. Only through praxis (informed actionbased on theoretical understanding) will the new socialist society be formedand crime will go away.

10. Left realism is a mid-1980s British development that focuses upon thereasons why people of the working class prey upon one another, that is,victimize other poor people of their own race and kind. It wants the policeto have more power in protecting poor people, but on the other hand,doesn't want the police to be invasive or intrusive.

11. Peacemaking criminology came about during the 1990s as the studyof how "wars" on crime only make matters worse. It suggests that thesolution to crime is to create more caring, mutually dependent communitiesand strive for inner rebirth or spiritual rejuvenation (inner peace).

12. Feminist criminology matured in the 1990s, although feminist ideashave been around for decades. The central concept is patriarchy, or maledomination, as the main cause of crime. Feminists also tend to call for moreattention to female points of view.

13. Postmodern criminology matured in the 1990s, althoughpostmodernism itself (as a rejection of scientific rationality to the pursuit ofknowledge) was born in the late 1960s. It tends to focus upon howstereotypical words, thoughts, and conceptions limit our understanding, andhow crime develops from feelings of being disconnected and dehumanized.It advocates replacing our current legal system with informal social controlssuch as group and neighborhood tribunals.

This has been only the briefest of overviews on crime theories. There ismuch, much more, and the reader is encouraged to find out more, includingthe comparative advantages and weaknesses of different theories.

PRINTED RESOURCES


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Bohm, R. (2001).A Primer on Crime and Delinquency Theory. Belmont, CA:Wadsworth.Cullen, F. & R. Agnew (1999). Criminological Theory. Los Angeles, CA:Roxbury.

DeKeseredy, W. & M. Schwartz (1996). Contemporary Criminology. Belmont,CA: Wadsworth.Jones, D. (1987). A History of Criminology. Westport, CT: Greenwood.Lilly, J., F. Cullen & R. Ball (1995). Criminological Theory. Thousand Oaks,CA: Sage.Maxim, P. & P. Whitehead (1998). Explaining Crime. Woburn, MA:Butterworth-Heinemann.Shoemaker, D. (2000). Theories of Delinquency. NY: Oxford Univ. Press.Vold, T., T. Bernard & J. Snipes (1997). Theoretical Criminology. NY: OxfordUniv. Press.Williams, F. & M. McShane (1998). Criminological Theory. Cincinnati, OH:Anderson.

Chapter 1 Crime and Crmnal Law

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