SOC 291 by theory6

SOC291: CRIMINOLOGY

Module 2 Summary Rational Choice and Trait (Biological and Psychological) Theories Introduction Your textbook discusses many criminology theories. At first glance, most of these theories are confusing and difficult to understand. It does not help that within the social sciences, criminology probably has more explanations (theories) for crime than any other social science discipline. The modern student of criminology must understand the historical roots of how crime has been explained, considered and acted upon because these ideas, even ancient ones repeatedly resurface and are given credence and importance, even to this day. Although individual preferences vary, it is probably a good idea to maintain a notebook summarizing theoretical statements (name of the theory, the major category of the theory (positivist, social process, conflict, etc.), the important statements made concerning the theory, the significant names associated with the theory, and the time periods of major influence of the theory). This strategy will assist in keeping all of the theoretical statements organized in a condensed manner, and will be especially helpful in studying for the examinations. Criminological theories influence and help to shape a society’s perception of crime, attitudes toward offenders and victims, and beliefs about what can and should be done to prevent and/or control crime. In general, theories may be divided into two broad categories, intuitive theories and grounded theories, often a combination of the two. Intuitive theories are based upon suppositions based upon ideas, social custom, or even personal attitudes based upon power and/or greed. Grounded theories are founded in research and examination, and in a best case scenario evolve in a cyclic fashion that serves to develop, refine, and then reexamine the theory. In the case of grounded theories, they usually begin with observations, proceed to scaling and measurement, leading to making empirical generalizations then using inductive reasoning to form the basis for an explanation (theory). From the theoretical statement, deductive reasoning is employed to form hypotheses about how the theory would apply to a variety of situations, which are then tested, leading to a new set of observations – and the process of theory refinement (or negation) begins anew. Naturally, scientists prefer rigorously examined and tested grounded theories, but some intuitive theories are very credible, beneficial to society, yet defy research and testing. It all combines together to create the world of criminological study, and is at the same time a fascinating yet complicated and frustrating area of human social life.

Demonology

The emergence of a pair of social reformers that apparently had had enough of the horrific state of the human condition in the mid1700s, was brought about by the dismal state of affairs in England and Europe Copyright © 2015 by Thomas Edison State College. All rights reserved.

at that time. Criminologists often refer to this time (before 1750 or so) as the period of “demonology,” thus alluding to the notions that antisocial acts were caused by possession by demons and/or some other influence as dictated by “scripture” or some other mythological directive, or simply the directive of some authority, such as a monarch, feudal lord, military dictator, or cleric. One of the most interesting areas of study has been to observe the various laws and customs surrounding the treatment of homosexuals down through the ages. In places and at times considered a matter of choice or personal preference, homosexuality has been “demonized” in many societies, primarily those socalled “revealed” religions originating in the Middle East: Judaism, Christianity, and Islam. However, in other places and times for socalled “naturebased” religions, such as North American aboriginal tribal religions, homosexuality was seen as a minority but naturallybased condition, often seeing the homosexual as a person of abnormal wisdom and accorded respect in the community. What is most interesting, then, is to observe how customs, views, and laws have changed as various societies have evolved into the present. In any event, as life became ever more “cruel, nasty, brutish, solitary, and short” as the 1800s approached, to men emerged to question the statusquo as to how criminal activity was treated. In the England of Jeremy Bentham of the 1700s, there were 36 different offenses that merited execution, including the theft of a loaf of bread and poaching game on the king’s lands, whether done by adults or children. Likewise, in Cesare Beccaria’s Italy, penalties were so brutal and severe that this lowlevel nobleman wrote his small but powerful critique of the legal system, “On Crimes and Punishment” under an assumed name. In other words, the “good old days” were not all that good.

Classical Theory Well, we (in criminology) had to call it something – so we named it “Classical Theory.” The term relates to something that is from the past, traditional – as in “classical” music. The founders of what we now call Classical Theory in criminology, Cesare Beccaria and Jeremy Bentham, did not use the term. As if criminological theory is not complicated enough, the various forms and definitions socalled “Classical Theory” has taken since its inception, has wandered off into three parts: Classical Theory, NeoClassical Theory (“new” classical theory), and New Classicism (also called “new” classical theory). In struggling with these definitions, many writers of encyclopedias and even (gasp!) criminologists get these definitions wrong! So, to set the matter straight, about the best definition of the threepath journey of “Classical Theory” I have ever seen was crafted by Dr. Cecil Greek, which he composed for his undergraduate criminology course at Florida State University. Dr. Greek, now a professor at the University of South Florida (2015), was most gracious in granting me permission to use his words in straightening out this theoretical morass, as follows: The Classical Schools, as Clarified by Dr. Cecil Greek The Classical School

These notes refer to the classical school [ Cesare Beccaria and Jeremy Bentham ], subsequent revisions of this model [frequently referred to as the neoclassical school], and contemporary versions of classical thought [rational choice models]. Before preceding to discuss Beccaria it may be important to discuss the state of criminal justice in Europe to which the classical school was responding. Europe was leaving behind its long history of feudalism and absolute monarchy and turning toward the development of modern nation states that ruled based on rational decisionmaking powers. However, criminal justice was one of the areas that needed to be updated. Throughout Europe [except in England] the use of torture to secure confessions and force selfincriminating testimony had been widespread. Michel Foucault's description of the execution of Damiens for attempted regicide shows just how brutal traditional justice could be in France. In England, the standard penalty for conviction of a felony was death. In addition, capital punishment had been combined with estate forfeiture, leaving the felon's widow and children penniless. The "corruption of blood" made it legally impossible for the convict's parents to pass own their wealth to their own grandchildren. Many accused Englishmen allowed themselves to be crushed to death ( peine forte et dure ) rather than risk a trial and leave their families destitute. It was with knowledge of such history that Beccaria developed his ideas concerning criminal behavior and how best to control it. However, Beccaria and other utilitarians did not develop their ideas in a vacuum. There were other Enlightenment thinkers such as Hobbes , Locke , and Rousseau who helped to create the intellectual climate in which Beccaria worked. There were a number of beliefs about human behavior that most "reasoned" intellectuals shared. These included:

(1.) The belief that pain and suffering were a natural part of the human condition.

(2.) Humankind is a rational species.

(3.) What controls behavior is the human will.

(4.) Although supernatural [and natural] forces might influence the will, in regard to specific actions the will was free to choose.

(5.) The principal means of controlling behavior is fear, particularly fear of pain or punishment. In this way the will could be directed to make correct choices.

(6.) Since the state had the right to punish behavior, it ought to do so in an organized manner which included the centralized administration of law enforcement, courts, and correctional practices.

Other important points to be made about Beccaria.

1. Beccaria did not develop a new explanation for criminal behavior. He merely accepted the takenfor granted beliefs of his era. He sought solely to rationalize punishments.

2. Beccaria opposed allowing judges the type of broad discretion they then enjoyed.

3. The ultimate source of law must be the legislature, not the judiciary. Beccaria is here attacking the common law tradition. Today's conservatives attack judicial activism, i.e., in the recent U.S. Supreme Court.

4. The principal role of the judiciary is in determining guilt, not deciding on punishments.

5. A truly rational system of criminal justice would be based on a scale of crimes and punishments: e.g. first, second, and third degree felonies. Each would be assigned a specific punishment that included ascending severity based on the level of seriousness of the offense.

6. The severity of the crime for which one is ultimately punished must be based upon the actual act committed, not the level of intent involved. If you only intended to maim someone but they died as a result of the injuries inflicted, the perpetrator must be charged with murder.

For a rational system of criminal justice to work, punishment must be certain, swift, and proportional. The ultimate goal was to insure that the benefits of crime never outweighed the potential pain from punishments the offender would receive. As rational, calculating human beings, most would avoid crime under such a system. Certainty required that all offenders be punished; the more criminals who escaped punishment the less the impact on the minds of others contemplating such behavior. Swiftness was also important. If too long a time lapsed between the crime and its punishment, this would also lessen the deterrent effect on future criminality. Beccaria’s emphasis on proportionality led him to oppose the use of the death penalty for all but the most serious crimes. Capital punishment would have no impact if its use were for minor offenses. The Neoclassical School A number of criminal justice historians have noticed the pendulum like nature of criminological theory. Once a particular model becomes "dominant" its antithesis is argued by “reformers.” The neoclassical approach in criminology is not a true antithesis but a form of revisionism. Neoclassical criminologists recognized that the free will approach had a number of shortcomings. Among them was the English jurist William Blackstone . Neoclassical criminologists considered the types of criminal behavior best explained by the classical model and what types of criminal behavior the model is inadequate to explain. Some of the objections pointed out by neoclassical thinkers included exceptions long accepted by criminal justice systems. These included classic criminal defenses such as selfdefense or mistake of fact. Also, long recognized was the fact that not all persons were completely responsible for their own actions. For example, should children be expected to behave with the same level of responsibility as adults? When does a child become fully responsible for their own actions? Also noted was the fact that same people appeared to be compelled by forces beyond their rational control. While a supernatural "possession" model had previously accounted for some of this behavior, the decline in belief in supernatural forces was matched by an increasingly positive treatment toward "mental illness" type explanations. There were some who behaved "irrationally." Separating the rational from the irrational has become a continuing problem for modern criminal justice systems. Another area of long legal concern was whether individuals can be influenced by others to do things they would not normally do, and whether they should be exonerated by the courts in such instances. Duress and entrapment are criminal defenses based on this premise. Modern Versions of the Classical School Within criminology the classical school's importance diminished as positivist explanations of criminal behavior emerged and became dominant. However, most modern criminal justice systems have never rejected free will explanations of criminal behavior. In the United States and some other constitutional democracies, the classical model has been thwarted more by the system in which it is implanted (one requiring an adversarial procedure and due process) than by positivism.

The classical model has reemerged in criminology and American jurisprudence as the "justice model" and rational choice explanations. These approaches are advocated by theorists such as David Fogel, Ernest van den Haag, James Q. Wilson, and Ronald Clarke. Collectively they would favor the following:

1. Doing away with indeterminate sentencing and its replacement with various forms of determinate sentencing, including sentencing guidelines, mandatory sentences, habitual offender statutes, etc.

2. Truth in sentencing. One should serve one's full sentence and not receive an early release through parole or prison overflow control policies.

3. The use of the death penalty . Most favor decreasing the amount of time between sentencing and execution by limiting the appeals process. (Bentham and Beccaria both opposed the death penalty as a punishment so severe it would have no deterrent effect.)

4. Doing away with the exclusionary rule altogether or the allowing of additional "good faith" exceptions for law enforcement infringements and defendants' due process rights.

Revisiting Beccaria and Bentham What would Cesare Beccaria and/or Jeremy Bentham say if they were alive today?" Let's assume the question is: "Why do people sell illegal drugs?" Cesare Beccaria was an Italian lawyer and minor nobleman (his full name was Cesare BonesanaBeccaria, Marquis of Gualdrasco and Villereggio) and was born in 1738 and died in Milano in 1794 at age 56. Considered a jurist, politician, philosopher, and criminologist, he was one of the most influential Enlightenment thinkers. His answer to the above question would probably be “People are rational and exercise free will. They sell illegal drugs because they choose to do so, and to prevent them from choosing to do so the government should: 1. Make certain people know what the laws are; 2. Have a fair system of justice where people are faced by their accusers and have public trials; and 3. Have punishments that are fair and appropriate to the offense, certain and swift, and promptly administered. Beccaria would oppose brutal punishments like those used in his day, which included solitary confinement in filthy dungeons, being chained to walls, and barely fed substandard food. Beccaria would also oppose capital punishment because it is inconsistent with his view of the “social contract.” Jeremy Bentham was an English lawyer and lived from 1748 to 1832, dying at age 82. If you asked Bentham how to stop people from selling illegal drugs, he probably would say: “The government should precisely calculate the amount of pain and pleasure associated with the act of selling illegal drugs. The government then should impose a penalty greater than the pleasure one might derive or get from selling illegal drugs.” This is called the “moral calculus” theory. Both Beccaria and Bentham believed the government's actions against its citizens should be subject to public scrutiny and limited. These ideas are embedded in the U.S. Constitution and its Bill of Rights. Copyright © 2015 by Thomas Edison State College. All rights reserved.

Below are noted the first ten Amendments to the United States Constitution. These are called the Bill of Rights and they limit or control the action government agencies can take against citizens. Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in timeof war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the Copyright © 2015 by Thomas Edison State College. All rights reserved.

United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Social Contract The Social Contract philosophy is what forms the basis for the theories advanced by the Classical School. Today, people still discuss social contract ideas. An interesting discussion of the Social Contract philosophy can be found in an article written by Robert Grant [published in the Humanist, Jan/Feb 2000, Vol. 60, Issue 1, Pages 18 to 24]. Grant has worked as a lawyer and judge in New York. Grant writes: My own position is that human rights are not legal fictions conferred by governments but are inherent features of our nature as human beings. And while it is clear that our knowledge and understanding of human rights are relatively modern, human rights themselves are as old as humanity. . . we can define what we mean by the social contract. It is the compilation of all our basic or natural duties. The social contract is that fundamental compact that consists of the rules imposing basic duties, assigning rights, and distributing the benefits of political, social, and economic cooperation, unanimously agreed to by reasonable people in a state of perfect equality and absolute impartiality. This contract is not the result of a historical event; it is the result of rational and legal analysis and hypothesis. The reasonable person test asks: Would reasonable people agree to this or that duty? Would their agreement be unanimouscrosscultural, crossgenerational? The answers are usually given by lawyers, judges, politicians, philosophers, professors, and sometimes by popular vote. While the assembly of reasonable people is hypothetical and their deliberations behind "the veil of ignorance" a parable, the social contract that results from this rational analysis is real. It is the fundamental compact that is assumed to exist in every society.

The Positivist School The Positivistic School of thought emerged during the mid 1800s and early 1900s. It was very popular during the late 1800s and until the mid 1900s. Some people continue to believe in some of the principles articulated in this school of thought this is why we study the Positivist School. Copyright © 2015 by Thomas Edison State College. All rights reserved.

Biological Theories Biological theories suggest a relationship between crime and a person’s biological/physical makeup. This includes heredity, ethnicity, race, diet, and other variables related to the physical aspect of a person’s being. The initial or first biological theories are heavily influenced by the work of Charles Darwin. Darwin argued that humans and other life forms on this planet evolved over great expanses of time, asserting that the most fit survived. Darwin’s theory is controversial because he claimed that humans also evolved, and evolved from apes. This theory of evolution was and is controversial because it clashes with the basic ideas advanced by many religions – that God created man. Cesare Lombroso, an Italian physician who lived from 1835 until 1909 (age 73), was from a wealthy Jewish Italian family. His initial plan was to become a scholar in literature and linguistics, but later changed his mind and ended up as an army surgeon by age 24. By the time he was 43, he had become a professor of forensic medicine and hygiene in Torino and prior to that, for eight years was in charge of the Insane Asylum at Pesaro. His famous volume titled “Criminal Man” (L’uomo delinquente) went through five editions, each time expanding in numbers of pages until the last work contained over 2,000 pages. Lombroso contended that criminals were atavistic “throwbacks” that were reminiscent of apes and lower primates. He interviewed condemned criminals, usually pirates, shortly before their executions and then conducted postmortem examinations of them to collect his observations and measurements. These condemned men were probably not informed that the scholarly gentleman would be cutting them to pieces on the following day. Another founder of the “Italian School of Criminology” was Enrico Ferri, a lawyer and socialist, as well as a student of Lombroso. He lived from 1856 until 1929, and added a sociological dimension to Lombroso’s work. To this day, thanks to the enormous influence that Lombroso had in his lifetime, schools of criminology in Italy and in those countries enormously influenced by Italian culture, such as Argentina, are located medical colleges. In asking Lombroso and Ferri the same question posed above to Beccaria and Bentham, their answers may be: Lombroso: “People sell illegal drugs because they are criminal. Criminals are biologically inferior and predetermined to violate the law. Criminals engage in this criminal behavior because their subhuman nature forces them to do so. In order to stop people from selling illegal drugs, some type of genetic engineering would be useful – given the state of our current science and technology.” Lombroso would probably also recommend long prison terms. Ferri: “Sellers of drugs should be sent to prison. But social conditions should be improved, including the provision of inexpensive housing for the poor.” Both Lombroso and Ferri believed people were forced to commit crimes or did not freely choose to violate the law. Lombroso emphasized the "biological determinants". Ferri emphasized social conditions. Lombroso urged use of the scientific method when studying crime. For this he should be commended. However, please note that Lombroso's theories are severely criticized, in part, because of the racebased aspects of his ideas. Lombroso claimed that one can look at the physical characteristics of a person and Copyright © 2015 by Thomas Edison State College. All rights reserved.

determine whether he might be a criminal. Part of the problem with this idea is that Lombroso’s physical characteristics of a criminal resembles the physical description of persons of African descent. Obviously, such a shortsighted view of the phenomenon of crime stalled then and continues to hinder our efforts to understand this complex social problem. Psychological Theories

At and after the turn of the 20th Century, lawyers still were very much interested in society's response to criminal behavior. However, other professional disciplines took the lead in trying to explain why people engage in intolerable acts. In the United States, among the questions American lawyers would try to answer were: Which acts are so offensive to a civilized society that they should be outlawed? How should the law define or describe criminal conduct? What do our federal and state constitutions allow the government to do to those violating our criminal laws? What are constitutionally permissible penalties for violation of our criminal laws? As lawyers turned their attention to legal issues, psychologists, biologists, and sociologists tried to identify the "causes" or etiology of crime. Textbooks discuss various theories indicating there is a relationship between crime and a person's mental condition. These theories can be grouped or classified under the heading of "psychological theories of crime causation.” These psychological theories of crime causation were heavily influenced by the work of Sigmund Freud. Freud is the founder of a field of study we call "psychoanalysis.” According to Freud, there are three basic aspects of a person's psyche: id [powerful urges]; superego [moral code or conscience]; and ego [moderates superego and id]. Presumably, when a person's psyche is out of balance, then s/he has some sort of mental disorder and is more likely to engage in socially unacceptable conduct. Those studying crime and applying this concept likely would say a mental disorder causes a person to commit a crime. If a pharmacist sells legal drugs illegally, is this criminal conduct caused by a mental disorder? Is it just plain, old fashioned greed? If we believe the criminal conduct is caused by a mental disorder, then should we apply the Classical School's punishment philosophy which is based on the pleasure/pain principle. The brain and how it works or functions is the focus of psychology, psychiatry, neurophysiology, and many other disciplines. Criminologists may use some of the work completed by people in these other disciplines to help them explain what causes crime. Some theorists believe intelligence is related to crime. These theorists argue persons with lower intelligence are more likely to commit crime than persons with higher intelligence. What is intelligence? This depends on the person with whom you speak. There is a lot of controversy about IQ and IQ tests. We will not review this controversy, but what we will do is examine how this variable or factor called “intelligence” is used to explain criminal conduct. Let's assume we know what intelligence is. Let's also assume intelligence is something that can be measured. How would we measure it? We could measure it using Stern's intelligence quotient, Copyright © 2015 by Thomas Edison State College. All rights reserved.

also known as “IQ.” IQ. According to Stern, IQ = (MA/CA) x 100, where MA=mental age and CA=chronological age. If we measure intelligence this way, then a score of 60 or less is not good [way below average intelligence]; a score of 110 is good [average intelligence]; and a score of 145 is very good [way above average intelligence]. Theorists arguing intelligence is related to crime say persons with low intelligence more frequently engage in crime. Assume as true that corporate executives and other well educated white collar professionals are at or above average intelligence. Now, can we use this intelligence theory to explain Enron, Worldcom, Tyco or other purported white collar crimes? Can we use this theory to explain why the pharmacist sells legal drugs illegally? Obviously, this intelligence theory is flawed. Would it be a better theory if it claims to attempt only to explain why people engage in violence? Would it be better if it attempts only to explain road rage, which is a type of violence? Would it be a better theory if it attempts only to explain why people engage in road rage near a high school football stadium parking lot right after a hotly contested game between old rivals is won on a lastsecond field goal, which may be a type of situational violence? On a different slant, could intelligence theory explain why the less intelligent criminals among us committing “conventional” crime (“street” crime versus “suite” crime), such as burglary, larceny, or robbery, are more often caught due to simple flubs and errors, where the more clever perpetrators escape detection? Clearly, these and most, if not all, crime and delinquency theories often raise more questions than they answer. This is why criminology is such a fascinating area of study.