An Introduction to Critical Criminology

Ugwudike, Pamela

• Publisher: Policy Press
• Year: 2015
• ISBN:
  9781447309611
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Critical criminological theories and perspectives are typically major components of Criminology degree courses. An Introduction to Critical Criminology is the first accessible text on these topics for students of criminology, sociology and social policy. Written by an experienced lecturer who specialises in the topic, it offers an in-depth but accessible introduction to foundational and contemporary theories and perspectives in critical criminology. In doing so, it introduces students to theories and perspectives that challenge mainstream criminological theories about the causes of crime, and the operation of the criminal justice system. With the inclusion of boxed examples, key points and sample essay questions An Introduction to Critical Criminology is ideal for students of Criminology because it explores in detail a vast array of critical criminological theories and perspectives.

Part One
Foundational critical criminology

ONE

What is critical criminology?

Introduction

Critical criminology has no standard definition. DeKeseredy and Dragiewicz (2012: 1) point out that ‘The definition of critical criminology is subject to much debate and there is no widely accepted precise formulation’. Perhaps this is because it comprises several variants. It is a fluid and vast field of study. It encompasses perspectives that sometimes emphasise divergent themes, use diverse methodologies and espouse different ideologies.

Its origin has also been the subject of much contention. As noted in the introductory chapter, some cite the UK and US as the ‘birthplaces of critical criminology’ (DeKeseredy and Dragiewicz, 2012: 6). Others, notably, van Swaaningen (1999: 6), trace its origins to several Western European countries. Van Swaaningen (1999) provides a useful overview of the development of critical criminology in Europe. He sets out the work of those he describes as the ‘European precursors of critical criminology’. For example he cites the work of the scholars Colajanni, Merlino and Turati, who, as far back as the 19th century, when Lombroso founded the positivist school, critiqued Lombroso’s work for failing to account for the role of social class and the exploitation of the lower classes in crime causation. This is consistent with subsequent arguments that were put forward by the Marxist criminologists from the 1970s onwards. Van Swaaningen (1999) also draws attention to the work of the French scholar Manouvrier, who presented arguments in the 19th century that are similar to the position of the Zemiologists.¹ As noted earlier, Zemiologists propose that the label of ‘crime’ should be discarded because it does not sufficiently accommodate the harmful activities of the powerful in society. Others cited by van Swaaningen include the Dutch penal scientist Clara Wichmann and the German scholars Julius Vargha and Theodor Reik, who tendered arguments in the early 20th century that are similar to contemporary abolitionism.² In the period after the Second World War, van Swaaningen writes that others, ranging from the Utrecht scholar Ger Kempe to the Leiden criminologist Willem Nagel, introduced conflict perspectives. Van Swaaningen (1999: 10) describes them as the much-overlooked ‘continental precursors of critical criminology in the 1950s’. In addition, van Swaaningen points to the influence of critical scholars in the Frankfurt school, and the French structuralists Michel Foucault and Louis Althusser. Also worthy of mention are the Italian neo-Marxists, including Antonio Gramsci, who heavily influenced the work of scholars in the Birmingham School. For example, Stuart Hall and his colleagues drew on Gramsci’s ideas about the ideological strategies that states employ to legitimise authoritarian policies.³

An important reason why the US and the UK are identified as the birthplaces of critical criminology is that much of the work that is described as critical criminology today has been influenced to varying degrees by critical perspectives on crime and social control that became popular in the 1970s. Key examples are the interactionist sociology of deviance⁴ (Becker, 1963, 1967) and Marxist criminology (Taylor et al, 1973; Chambliss, 1975). However, van Swaaningen reminds us that, added to the early European critical criminologists, others who have not been particularly influenced by the critical tradition that dominated the field in the US and the UK in the 1970s include scholars from Europe whose work in the 1980s can be categorised as critical criminology because of their critique of criminal laws and penal practices. Examples include the work of the Italians Alessandro Baratta and Luigi Ferrajoli, the Spanish writer Perfecto Andres Ibanez, the Dutchman Antonie Peters, and the German texts edited by Klaus Luderssen and Fritz Sack (see generally, van Swaaningen 1999).

The foregoing suggests that the term ‘critical criminology’ can be, and has been, applied rather inconsistently to a diverse range of theories and perspectives from various jurisdictions. To complicate matters, textbooks in the field describe these theories and perspectives (often interchangeably) as radical, socialist, Marxist, New or Theoretical criminology (see, eg, Russell, 2002; Downes and Rock, 2011). However, it is perhaps intellectually unproductive to delve into arguments over what should constitute the universal descriptor for the field. It is perhaps more important to focus (as this text intends to do) on key insights that have emerged from the foundational and contemporary perspectives in the field. Therefore, in this text, I have used the term ‘critical criminology’ as it is now commonly used in critical criminological texts and journals. The term encompasses an array of theoretical traditions that trace the origins of crime, deviance and several social problems, such as gender and racial inequality, to an unequal social order.

Given its varied and contested history, and also given that it comprises somewhat diverse perspectives, trying to define critical criminology is likely to be, at best, a mammoth task, and, at worst, a fruitless one. Nevertheless, it is possible to identify key features that critical criminological perspectives share in common. Although the perspectives invariably focus on differing explanatory and methodological themes, most of the perspectives share some or all of the following features in common:

• a critique of orthodox or mainstream criminological theories;

• an anti-essentialist conception of human identity, including deviant identity;

• a description of deviance as the product of social construction; and

• an ideological view that deviance and its control are inextricably linked to power dynamics in society.

What I have just outlined above are some of the main features that distinguish most critical criminological perspectives from mainstream or orthodox criminology. It is worth adding that, as mentioned earlier, although critical criminological perspectives share some features in common, they emphasise different explanatory themes. Below, there is a more detailed exploration of the three features just listed. Subsequent chapters in the text reveal the occasionally divergent explanatory themes that the critical criminological perspectives covered emphasise.

Deviance as a problematic concept: critiquing mainstream criminology

Downes and Rock (2011: 346) observe that, in the 1960s, there was a ‘shift from criminology to the sociology of deviance’. Central to this shift was a fundamental critique of mainstream criminology and the idea that human conduct, such as crime and deviance, has immanent proprieties by which it can be identified. A key development in this context is the interactionist sociology of deviance that became popular through the work of Howard Becker in the 1960s, and the other critical criminological perspectives that drew on aspects of Becker’s work. These perspectives, including Marxist criminology, went on to dominate the field through much of the early to mid-1970s.

Critical criminology is critical of mainstream criminological theories. Its main criticism is that the mainstream theories do not view crime and deviance as problematic concepts. Rather, they accept unquestioningly that behaviour defined as deviance has immanent deviant properties (Downes and Rock, 2011). Equally, critical criminologists criticise mainstream theories for accepting without question the definition of crime offered by the criminal law. How does the criminal law define crime? Broadly, it defines crime as an act or omission that violates the law and is punishable by law. The two main elements of a crime or offence are: mens rea, which is the mental element (the guilty mind); and actus reus, which is the act or the omission (the guilty act).⁵ Critical criminologists criticise mainstream theories for accepting this definition without question. They are accused of: taking the criminal law’s definition for granted; focusing on street crimes and other crimes that are typically committed by less-powerful individuals; tracing the causes of crime to the individual involved in crime; and portraying the individual either as a rational actor or as a victim of predisposing factors, or both. They are also accused of assisting the state in the pursuit of its social and other policy agendas. The definition of critical criminology offered by David Friedrichs (2009: 10, emphasis in original), who is a key writer in the field and has written extensively about the crimes of the powerful, encapsulates these themes:

Critical criminology is an umbrella term for a variety of criminological theories and perspectives that challenge core assumptions of mainstream (or conventional) criminology in some substantial way and provide alternative approaches to understanding crime and its control. Mainstream criminology is sometimes referred to by critical criminologists as establishment, administrative, managerial, correctional, or positivistic criminology. Its focus is regarded as excessively narrow and predominately directed toward individual offenders, street crime and social engineering on behalf of the state.

Before we explore critical criminology’s critique of mainstream criminology in more detail, it is perhaps useful to briefly explore the tenets of the mainstream theories. The mainstream theories that have attracted the ire of critical criminologists are classicism, positivism (in particular) and variants of both theories.

The classical school of criminology: a brief review

Although philosophers and theologians began to think and write about crime as far back as the medieval period (Carrabine et al, 2009), many criminological texts identify classicism as the first established theory of crime in modern society. It emerged in the mid-18th century. In that period, religious views dominated explanations of human behaviour, including crime. The penal system was capricious and punishments were barbaric. The system appeared to protect the property, pecuniary and other interests of the ruling class. Minor offences, particularly property offences, were punishable by death in an economic system that was rooted in the historic legacy of the aristocracy. A feudal system of production prevailed, and the aristocrats were the main owners of property, particularly landed property. They were powerful and they ruled much of ancient Europe. They appointed magistrates and police to regulate the behaviour of the masses and maintain social order. Whatever judicial system existed was not centralised and was, as such, characterised by widespread judicial discretion. Judicial rulings were often arbitrary, disproportionately punitive and designed to protect the interests of the ruling class.

Cesare Beccaria (1738–94) is widely regarded as the founding father of the classical school of criminology. He was a reformer and he advocated an equitable legal system that would recognise that human beings are rational beings who deserve rational responses to their actions. He proposed penal codes that would ensure clarity of punishment. Jeremy Bentham (1748–1832) is also considered to be a key proponent of the classical school of criminology. He began to write in the late 18th century, and he also advocated a more rational penal system. Bentham proposed a system that promotes the doctrine of ‘utilitarianism’. This doctrine states that moral actions are actions that produce maximum utility, benefit or consequences for the majority of people. From Bentham’s utilitarian perspective, actions should be judged by their outcomes. Those that produce the greatest utility are moral actions. As long as an action produces maximum benefit for the greatest number of people, it is morally justifiable even if it occasionally causes hardship for a few. For example, utilitarian theorists believe that punishing a few innocent people may be necessary if the greatest benefit for the greatest number of people can be achieved. According to Bentham (1776, quoted in Burns and Hart, 2008: 393)): ‘it is the greatest happiness of the greatest number that is the measure of right and wrong’. The moral worth of punishment should therefore be judged on the basis of its consequences.

Bentham may be described as a ‘reductivist’ because he proposed that punishments should also reduce crime (Cavadino and Dignan, 2007). He designed the ‘panopticon’, which he envisaged would be a prison that would facilitate the covert observation of prisoners. Although such observation would not be constant, the prisoners would believe that they are under constant surveillance, and this presumption should achieve the dual objectives of punishment and reform. The prisoners would complete the tasks that they are given and would also exhibit good behaviour if they believe that they are under constant observation. This highlights Bentham’s commitment to reductivism. He believed that a penal sanction should produce an outcome – it should also reform the offender. As a reductivist, Bentham also argued that deterrent punishment represents a rational response to crime. Broadly conceived, deterrent punishment is based on the notion that human beings are rational beings who calculate the costs and benefits of an action. Where the benefits appear to outweigh the costs, an individual is likely to engage in that action. Therefore, deterrent punishment is required to ensure that the costs of crime outweigh its benefits. Studies have since challenged the validity of key presumptions that underpin deterrence theory, particularly the notion that the cost of crime, such as the increased severity of punishment, is an effective deterrent (Blumstein et al, 1978; Cook, 1980; Nagin, 1998; Doob and Webster, 2003).⁶

The foregoing suggests that classical criminology sought to develop a legal system that is cognisant of the nature of human beings as rational beings. It grew out of the Enlightenment and the emergence of the ‘modern world’ or of ‘modernist society’ (Milovanovic, 2011a: 150) in the mid-17th century. In this period there was a shift away from spiritual explanations of crime and the use of barbaric and chaotic punishment systems, towards more rational explanations of crime and responses to crime across Western Europe (Carrabine et al, 2009: 81; Sherman, 2011). Sherman (2011: 423, emphasis in original) defines the Enlightenment as:

an intellectual movement encouraging people to think for themselves, rather than accepting the opinions of church and state authorities … it was also an effort to apply intellectual reasoning to the analysis of complex problems long seen as matters of faith or emotion. (See also Gay, 1996, cited in Sherman, 2011: 423)

Pratt and colleagues (2011: 7) observe that:

at the heart of the Enlightenment was the use of reason and logic to improve political systems, enhance social justice, and generally better the lot of humanity.… All Enlightenment devotees sought to bolster justice in social and political institutions; the criminal justice system was therefore a primary target of reformers’ writings and commentaries.

A broad intellectual development accompanied the Enlightenment era, particularly the view that the social actor is a rational being who is capable of responding to a rational system of punishment (Cohen, 1988). Such a rational system would incorporate punishments that are celeritous, certain, proportionate and enshrined in the law. These Enlightenment ideals influenced the early classicists. Indeed, the advent of the Enlightenment and the intellectual change it brought in its wake influenced the early proponents of the classical school and their search for more humane legal and penal systems. As Cohen (1988: 3) put it, the early classicists, like Beccaria (1738–94) and Bentham (1748–1832), were ‘Enlightenment thinkers’ who sought to reform the existing penal system by replacing the ‘archaic, barbaric, repressive or arbitrary’ criminal law system with a system that would draw on the liberal values or ideals that emerged with the Enlightenment. Added to its origins in the age of the Enlightenment, classicism also emerged when broader shifts were occurring within other disciplines. These disciplines sought to align themselves with new scientific approaches to studying the natural world. There was an effort to develop scientific understandings of human beings as rational beings.

Classicism has been criticised on several grounds. The presumption that human behaviour is predicated upon rational decision-making has attracted criticism from those who point to situations where the presumption of rationality is perhaps untenable. Children and the mentally disabled are examples of people who may not always be capable of rational decision-making. Furthermore, as critical criminologists would argue, classicists focus on the offence and overlook wider structural factors, such as power and wealth inequality and socioeconomic disadvantage. According to critical criminologists, structural factors may circumscribe the choices available to individuals. As Downes and Rock (2011: 259) observe: ‘“classical criminology” and its neo-classical variants are viewed as incapable of reconciling forms of inequality … and the extension of rationality … to those who offend against the law’.

Having set out a skeletal description of the classical school, I now turn to a description of the second mainstream theory that critical criminologists criticise, namely, positivism. Quite unlike extreme variants of classicism, which overlook differences between individuals and focus narrowly on the offence committed and how best to respond to it, positivism focuses on the individual who committed the offence and how best to respond to, or treat, the individual. In other words, while classicists focus on the response that crime deserves, positivists emphasises the treatment that the perpetrator requires. Positivists believe that we can apply scientific techniques associated with other disciplines, such as psychiatry, to the study of the social world in order to identify causal relationships between different aspects of it. Thus, we can study individuals and identify the factors that cause them to offend, and the treatment that can address those factors.

Positivist criminology: an overview

Positivism emerged in the 19th century at a time when scientific explanations of natural phenomena were gaining ascendancy. Positivists formed the view that with scientific diagnostic methods, they could identify the causes of crime and prescribe the appropriate treatment. From this perspective, treatment, not punishment, is considered to be the most effective response to crime. This view of the causes of crime and strategies for responding to crime underpinned the rehabilitative penal ideal that some argue emerged in the late 19th century, reached its epoch in the post-war years and suffered a decline in the 1970s (see, generally, Garland, 2001). The circumstances of its decline have been explored and contested at length elsewhere (...