The Essential Criminology Reader

Stuart Henry

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367096878
• eBook ISBN: 9780429976223
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Initially designed to accompany Mark Lanier and Stuart Henry's best-selling Essential Criminology textbook, this new reader is an up-to-date companion text perfect for all students of introductory criminology and criminological theory courses. The Essential Criminology Reader contains 30 original articles on current developments in criminological theory. Commissioned specifically for The Reader, these short essays were written by leading scholars in the field. Each chapter complements one of 13 different theoretical perspectives covered in Lanier and Henry's Essential Criminology text and contains between two and three articles from leading theorists on each perspective. Each chapter of The Reader features: a brief summary of the main ideas of the theory the ways the author's theory has been misinterpreted/distorted criticisms by others of the theory and how the author has responded a summary of the balance of the empirical findings the latest developments in their theoretical position policy implications/practice of their theory

1

Classical and Rational Choice Theories

So-called classical ideas about crime and justice, originating in the eighteenth-century writings of European philosophers, are important for several reasons. First, they laid the foundations for many justice systems around the world, including the most expensive and largest system in the United States. This set of ideas then indirectly led to the scientific study of crime when positivist theorists subsequently criticized classical scholars for “armchair theorizing” and for ignoring the facts of crime; the irony here is that the earlier versions were not theories at all but simply philosophies about how crime should be addressed by society. Finally, classical thought about crime and justice is still relevant today, not least because so many correctional and behavioral strategies employed by justice systems are based on the set of principles that these ideas embodied.

The basic idea underlying classical theory is that humans are economic actors and that crime is a rational choice that people make from a range of behavioral options; in this way, people choose what they perceive to be in their best interests. Consequently, the underlying assumption is that humans, as rational goal-directed beings, conduct a cost/benefit analysis before engaging in behavior. Whether the key early thinkers of the classical period, such as the Italian marquis Cesare Beccaria and the British philosopher Jeremy Bentham, actually made such simplistic assumptions about human behavior is debated by contemporary criminologists. Indeed, when these ideas were implemented during the French Code of 1791, it was recognized that not everyone had the same ability to reason, and this modification to “pure” classicism was labeled “neoclassicism.”

From the classical perspective, the general role of law (as well as specific laws) is assumed to be based on a consensus among the population. The social contract—that we all give up some liberties in exchange for an ordered and secure society—is another integral component. Those who break the law do so for hedonistic, selfish reasons and thereby violate the interest of the wider society.

Most of the criminal justice policies modeled on the classical perspective revolve around the idea of due process and include what are now considered basic individual “rights.” These rights include the sovereignty of the individual, the presumption of innocence, efficiency of crime detection and law enforcement, restraint on the power of government, and fairness in the administration of justice. These rights became crucial because the ideas were developed in response to brutal, unfair, and cruel systems of justice found in the preclassical period in Europe. Following the early impact of classical ideas, scientific discoveries concerning the origins of crime led to several criticisms. For example, clearly we are not all created equal; this acknowledgement led to concepts such as limited rationality, imperfect rationality, and reduced capacity.

Contemporary classical theories, called neoclassical or, more recently, rational or situational choice theories, recognize that there are limits to the freedom of individuals to behave fully or perfectly rationally. They have gone beyond the framework of general laws and penalties to provide a disincentive to crime and have provided concrete policy and practice initiatives designed to reduce crime; these initiatives are based on analyzing and manipulating the costs, risks, opportunities, incentives, and provocations to crime, known generally as “target hardening.” Rational choice and routine activities theorists focus on design, security, and surveillance measures that reduce the rewards of crime. This approach transcends the early focus of classical theorists on the law, legal systems, rights, and government. The new focus also places some responsibility on the potential victim as well for creating and maintaining crime-free environments.

1.1

Free Will and Determinism?

Reading Beccaria’s Of Crimes and Punishments (1764) as a Text of Enlightenment

Piers Beirne

University of Southern Maine

Written by the Italian lawyer and Enlightenment philosopher Cesare Beccaria (1738-1794) and published anonymously in 1764, the short treatise Of Crimes and Punishments is traditionally heralded as the first text in the history of premodern criminology. Incontestably, it was a groundbreaking humanist tract that opposed capital punishment, judicial arbitrariness, and judicial interrogation by torture, and that championed the rule of law, deterrence, and incarceration. The proposals for the reform of criminal law made by Of Crimes and Punishments were an instant and dazzling success, appealing to a large cross-section of intellectuals, politicians, and lawyers throughout Western Europe and colonial America.

Today, nearly every criminology textbook contains a stock of complacent assumptions about Beccaria’s intentions, chief among them that Of Crimes and Punishments transformed the practice of eighteenth-century criminal law and justice. Since then, many commentators have inferred that the work (1) was primarily a humanist project, inspired by French philosophy and motivated by the author’s humanitarian opposition to judicial barbarism; and (2) had as its chief objects (a) the reform of judicial irrationality and (b) the institution of a utilitarian approach to punishment based on a calculus of pleasure and pain.

In concert, these assumptions have led to the view that Beccaria was the founder of classical criminology; his thinking is characterized by a rational calculus based on the doctrine of the social contract and the belief that human action results from the exercise of free will by reasoning individuals.

Various authors have chipped away at this comfortable consensus on Of Crimes and Punishments. In particular, Foucault (1979, 73-103) has argued that neither Beccaria’s classical criminology nor its effects were the projects of genuinely enlightened or humanitarian reform but were two among many artifacts peculiar to a new disciplinary power. Others have contradicted the view that Beccaria was a radical pioneer. He has been described as far more conservative, pro-aristocratic, and pro-capitalist than other Enlightenment theorists because he deliberately equivocated on dangerous issues such as materialism and spiritualism. Beccaria’s intervention in criminal jurisprudence, for example, continues to be regarded as “humanist” because it opposed the barbaric practices of the ancien regime, or “revolutionary” because it was in the vanguard of the Italian Enlightenment in exposing religious intolerance, or “conservative” because it did not embrace materialism as did others. Even Beccaria’s intervention in judicial history has been dismissed as a fairy tale, his humanism ridiculed because he did not know that the process of abolishing judicial torture had already been initiated through a decisive transformation of the medieval law of proof (Langbein 1976; Hirst 1986).

Of Crimes and Punishments shares with many Enlightenment treatises a certain lack of clarity. The vivid humanism in its forty-seven rambling chapters is a mask behind which some of Beccaria’s other arguments lie hidden; these can be discerned only with some difficulty and not a little speculation. Accordingly, neither the structure nor the content of Beccaria’s discourse should be taken at face value. To understand how and why this is so, some indication must be given of the conditions of the work’s production as an Enlightenment text.

The Influence of the “Science of Man”

First, reflecting contemporary eighteenth-century thought, some of the arguments in Of Crimes and Punishments employed a deterministic discourse that is diametrically opposed to the classical notion of free will commonly attributed to it. Among Enlightenment thinkers, this scientific discourse was variously referred to as “geometry,” “moral geography,” “political arithmetic,” “number,” and the “science of man”—terms and principles that Beccaria also used. Several key features of this new science are plainly recognizable in Of Crimes and Punishments, including the doctrines of utilitarianism, probabilism, associationism, and sensationalism.

Utilitarianism is the idea that punishment is justified by the end result, which must benefit the wider society. The doctrine of utilitarianism operated for Beccaria as a core justificatory argument for the state’s right to punish, and it is positioned prominently at the beginning of his text. With it, Beccaria attempted to forge linkages—as had the Scottish philosopher Francis Hutcheson before him—among the rule of law, justice, and the economic marketplace. In doing this, Beccaria employed probabilism, associationism, and sensationalism throughout the book, and he wielded these three doctrines in concert as mechanisms with which to advance his chosen strategies for punishment. To understand Beccaria’s thinking, one must explore each of these concepts in some depth.

Probabilism: Rationalizing and Clarifying Law and the Administration of Justice

Beccaria’s attempt to apply “probability” and “number” to matters of punishment reflects his dependence on the ideas of wise governance by contemporary authors of the period, such as the British philosopher John Locke. Beccaria also drew inspiration from the English statistician and physician Sir William Petty (1623-1687). Petty’s staunch criticism of physical punishments was one of his many contributions to science. In his Treatise of Taxes & Contributions, Petty urged that pecuniary fines, made over to the Commonwealth as “reparations,” were far better than physical punishments, which not only deprive the state of useful labor but benefit no one. Beccaria also drew on Hutcheson’s utilitarianism, which was explicitly formulated in mathematical and economic terms: “Action is best, which procures the greatest happiness for the greatest numbers.” Hutcheson meant this literally and mathematically; the original title of Hutcheson’s Inquiry contained the words “with an attempt to introduce a mathematical calculation in subjects of morality,” and when he attempted to calculate the precise incidence of “perfect virtue” and “moral evil,” he did so strictly by way of algebraic equations (1725, 187-193).

Near the beginning of Of Crimes and Punishments, Beccaria asserted his intention of “going back to general principles” to uncover the rampant political and judicial errors “accumulated” over several centuries. He abhorred uncertainty, objected to “arbitrary notions of vice and virtue” (Beccaria 1764, 4), and sometimes complained that “despotic impatience” and “effeminate timidity” transform “serious trials into a kind of game in which chance and subterfuge are the main elements” (1764, 24). He also derided “the errors and passions that have successively dominated various legislators” (1764, 15), including the useless tortures “multiplied” with prodigious and useless severity; the punishment of crimes that are “unproven”; and the horrors of a prison, “augmented” by “uncertainty”— “that most cruel tormentor of the wretched” (1764, 4). At the same time, Beccaria bemoaned the unhappy fact that it is impossible to prevent all disorders in the universal strife of human passions because they increase at the compound rate of population growth and the intertwining of public interests; these, in turn, cannot be directed toward the public welfare with geometric precision. In political arithmetic, one must substitute the calculation of probability for mathematical exactitude (1764, 14).

Beccaria’s advocacy of probability extended to each stage of the criminal justice system, including the clarity of the law itself; judicial torture; witnesses and evidence; jurors; and sentencing practices. Here, his remarks were partly addressed to enlightened lawmakers, “the legislator who acts like the good architect, whose role is to oppose the ruinous course of gravity and to bring to bear everything that contributes to the strength of his building” (1764, 15).

On the Clarity and Certainty of Law

Beccaria urged that only a fixed, understandable, and predictable law could provide citizens with personal security, reduce the number of crimes based on ignorance and uncertainty, and liberate them from judicial arbitrariness. The law itself must be unambiguous because only with “fixed” and “immutable” laws can citizens “calculate precisely the ill consequences of a misdeed” (1764, 12). Moreover, he stated that fixed law that is enforced, strictly interpreted, and universally applied removes many from the petty tyrannies of judges and lawyers.

In addition, for minor and less heinous crimes, there should be a statute of limitations that relieves citizens of “uncertainty” regarding their fate; but such time limits “ought not to increase in exact proportion to the atrocity of the crime, for the likelihood of crimes is inversely proportional to their barbarity” (1764, 56).

On Judicial Torture

Beccaria’s support of probabilism also explains how Of Crimes and Punishments viewed judicial torture. On humanist grounds, Beccaria opposed the practice of interrogating an accused with methods of torture. However, he was not opposed to the infliction of physical pain on others because he vigorously supported noncapital corporal punishment “without exception” for crimes against persons and for crimes of theft accompanied by violence (Beccaria 1764, 37, 40). Yet he insistently opposed judicial torture because of its inefficiency as a method ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Preface and Introduction: Beyond Theory Textbooks
• 1 Classical and Rational Choice Theories
• 2 Biological and Biosocial Theories
• 3 Psychological Theories
• 4 Social Learning and Neutralization Theory
• 5 Social Control Theories
• 6 Social Ecology and Subcultural Theories
• 7 Anomie and Strain Theories
• 8 Conflict and Radical Theories
• 9 Feminist and Gender Theories
• 10 Postmodernism and Critical Cultural Theory
• 11 Anarchism, Peacemaking, and Restorative Justice
• 12 Left Realist Theories
• 13 Integrated Theories and Pause for Reflection
• Contributor
• Index