Crime

An Analytical Appraisal

Manuel Lopez-Rey

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415177337
• eBook ISBN: 9781136265327
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This is Volume III of fifteen in a series on the Sociology of Law and Criminology. Originally published in 1970, this study analyses crime and touches on areas of the extent, as a social problem, the expansion and distribution of crime and a theory on juvenile delinquency.

1 The extent of crime

Crime is increasing in developed as well as in developing countries. This increase is sometimes denied in the developing countries, partly because criminal statistics and other sources of information are lacking or inaccurate, partly because poor or primitive conditions or serious political unrest make crime less significant, and partly owing to political propaganda. Occasionally we are told that improvement in material living conditions will take care, not only of the increase, but of crime itself. Unfortunately, in practice, the improvement is often seriously handicapped by the pursuance of political policies which absorb most of the existing financial resources. As for the theory that crime may be reduced or even eradicated by the improvement of material conditions, experience shows that Although this improvement may reduce some forms of crime, it creates others, sometimes more serious than those that previously existed. This does not mean that the improvement should be blamed, but simply that far more reforms than simply better living conditions are required before crime is reduced to what may be regarded as reasonable proportions.

In the developed countries, statistics as well as other information exist, but they are not always as complete and reliable as they should be. Generally, the increase and the seriousness of crime are admitted, although here and there attempts are made to minimize both by semi-scientific but comforting explanations. Sometimes the increase cannot be established because of the difficulty in determining the number of cases not brought to court or not prosecuted. As regards juvenile delinquency, a practice which seems to be gaining ground in some countries is that of considering as cases of civil law real cases of juvenile delinquency—a device which allows their exclusion from juvenile delinquency statistics.

The distinction between developed and developing countries, although somewhat equivocal, is essential in criminal policy matters. It is equivocal because countries are always developing, even if slowly or in a haphazard way. It is acceptable if by ‘developing’ we understand a condition of retarded or insufficient development in certain respects. The term ‘developing’ is a terminological victory in the international arena for the less developed countries which resented being called ‘under-developed’. Their feelings on the matter were stated quite clearly at the Second United Nations Congress in 1960 when the subject Prevention of Types of Criminality resulting from Social Changes and Accompanying Economic Development in Less Developed Countries was discussed. Shortly afterwards, following further complaints, the United Nations dropped the terms ‘less-developed’ and ‘under-developed’.

The distinction is important because, owing to their characteristics and resources and the fact that crime differs from country to country, criminal policies cannot be the same for developed and developing countries or, for that matter, for all countries of the same group. It is illusory to maintain that the lack of development is confined to the economic field. The widespread belief among leaders, representatives, government officials and even professionals in developing countries is that as soon as their countries catch up in this field with developed countries, they will automatically reach the coveted category of developed. Certainly the developed countries will not be so obliging as to stop their development and wait until their levels are reached by the developing countries. Needless to say, in some ways the gap, especially in the economic field, may be considerably reduced or even disappear, but in some ways the constant process of development may even increase the gap between the developed and developing countries. In one way or another, the distinction between developed and developing countries is here to stay. This does not mean that the countries in each category will always be the same, but that victory in the battle of development is always difficult, whatever the efforts made or the bilateral or international aid received.

As far as crime is concerned, developed countries are far more vulnerable than developing countries. One of the reasons is that the greater the development, the greater are the individual and collective expectations and consequently the frustration, conflict and social protest. Some developed countries, such as the United States, have been unable to cope with crime as a social problem.

Since in one way or another all countries are developing, the question arises—and the answer is one of the main purposes of this book—of how criminal policy should be planned as part of public policy and what elements are to be considered in the planning. Admittedly, there are many difficulties in planning, and many difficult and opposing forces, but any planning is far better than no planning at all. With the aid of planning the problem of crime can be more easily handled. Nowadays it would be inexcusable not to plan for criminal policy matters, up to now almost exclusively dealt with empirically. What has to be remembered is that in planning the greatest priority belongs to the protection of human rights.

The point of departure of any criminal policy is to ascertain as nearly as possible what is the extent of crime. Fundamental to this is to know as exactly as possible what crime is, a knowledge that only criminal law is able to provide and without which no criminal justice would ever be possible. It may be argued that criminal justice can be dispensed with and replaced by something more in accordance with scientific knowledge. Putting aside the question of what should be understood by ‘scientific’, the fact is that although scientific findings can assist in reaching criminal justice, they cannot replace it. It has been suggested—a sociologically destructive suggestion—that the concept of criminal responsibility should be abandoned. I say ‘destructive’, first, because nowadays no society can reasonably function without justice, even if its meaning changes as a result of progress; second, because justice is an essential human need deeply felt by everyone, including offenders. As such, this need is inherent in the human spirit and cannot be put aside for scientific theories. In fact, quite a number of criminal offences reflect a quest for justice which, although erroneously pursued, cannot be ignored. It is equally true that offenders are primarily interested in getting justice and secondarily in being rehabilitated. The preference given to rehabilitation to the detriment of justice helps to explain the failure of contemporary criminology and penology. Third, because if the concept of justice is considered unnecessary, it will in all probability be replaced by social defence, protection or security, scientific treatment or something similar, all of which, although admissible as components of justice, are subordinate to it; and finally, because if the concept of responsibility is put aside in criminal matters, logically the same should be done in other fields such as parental care, administrative functions, payment of debts and compliance with obligations of any sort.

The theory that the legal definition of crime is conventional and its boundaries cannot be recognized by science makes little sense. To begin with, all definitions, including those having a fundamental character, are conventional, but conventional does not mean artificial, arbitrary or lacking a sound scientific basis. No less conventional than the definition of crime as a legal concept are in natural science the concepts of cause, causation, causality, result, law and species, to mention only a few. The same happens with personality, character, structure, system, type, model, etc., used sometimes too ambitiously in sociology, psychology, and psychiatry. The fact that the meaning of all these and similar terms is not uniform everywhere and to everyone, and that here and there their validity is denied, in no way reduces their importance as basic and indispensable conventional terms, without which it would be practically impossible nowadays to describe individual and collective life as well as socio-economic development and scientific and technological progress. Occasionally one of these fundamental concepts is replaced by a new one or emerges under a different label, but these and other changes only serve to confirm the necessity of fundamental conventional concepts. More specifically, as a non-causal but essentially attitudinal concept, crime is indispensable to society. Its main function is to express an extreme form of social reproach vis-à-vis certain extreme forms of behaviour. As such, whatever have been its modal variations, is has shown greater conventional stability than many other scientific concepts.

Social life requires fundamental definitions in many fields in order to make progress. Certainly their number should not be unnecessarily multiplied, but neither should it be reduced. It is possible that the term ‘crime’ may eventually be replaced by some other term—but the fundamental meaning will remain the same. Whatever name is used, a definition has to be given to ensure certainty and guarantees for the individual. An attempt has already been made by those using the terms ‘deviation’, ‘deviant behaviour’, ‘antisocial conduct’, etc., to designate in a generic term not only what at present is regarded as crime but also what is quite erroneously called social pathology. The most significant contributions to this naturalistic way of thinking are confusion, scientific wandering, social injustice and frequent infringement of human rights.

The mistake often made by those criticizing the conventional character of the definition of crime is to identify it as a fundamental socio-juridical concept with the numerous legal definitions given by criminal law. As the expression of an extremely severe social reproach, the concept of crime has changed less than is thought. As in the past, although with different contents in some respects, it is reduced to a few social commandments, the main beneficiaries of which are the individual, the family and society and the fundamental forms of their respective organization. Like sin and virtue, crime offers very little room for anything new. What may be new are the historical forms or modalities that the commission of crime adopts. These modalities are often given preferential treatment by criminal law through a series of definitions, the social value of which is doubtful in a number of cases. Among them is homicide: as a single, basic socio-juridical concept the definition of homicide should suffice to embrace all possible forms of killing. Instead, the criminal codes maintain a series of substantive legal entities such as murder, manslaughter in various degrees, reckless killing, involuntary homicide, homicide by negligent use of vehicle or weapon, homicide by an intoxicated user of firearms, homicide resulting from negligent control of vicious animals, etc. Mutatis mutandis, the same applies to the numerous cases of bodily injury, abortion, sexual offences, etc. Obviously these and many other historical modalities defined by criminal law are conventional and certainly not fundamental. It is hoped that many of them will eventually be dispensed with, but it would be erroneous to identify them with the basic sociojuridical concept of crime.

As a concept to maintain distinction between two main categories of offenders—juveniles and adults—‘delinquency’ is at least as equivocal as the term ‘developing’. In most European and Latin American countries and in quite a few African countries, ‘delinquent’ applies to any person who has committed a criminal offence, and dilinquance and delincuencia refer to crime or criminality. In English-speaking countries and their imitators, delinquency embraces not only crime in the strict sense but also any form of misdeed committed by a minor. The humanitarian and paternalistic reasons for the use of the term are praiseworthy, but it is obvious that the present extent and gravity of the problem of juvenile delinquency demands a different approach.

The matter was discussed at the 1955 and 1960 United Nations Congresses, where pleas were made for the definition of ‘delin-quency’ and even of the more vague concept of ‘pre-delinquency’ so ably used to build up prediction techniques and tables. After detailed discussion, the 1960 Congress recommended ‘that the scope of the problem of delinquency should not be inflated’ and that ‘the meaning of the term delinquency should be restricted as far as possible to violations of criminal law and that even for protection, specific offences which would penalize small irregularities or maladjusted behaviour of minors, but for which adults would not be prosecuted, should not be created’.¹ Unfortunately, for reasons which will be discussed in Chapter 3, many countries still maintain, and in quite a number of cases are entangled by, the present incongruous concept of delinquency as the counterpart of crime. In this book, unless otherwise indicated, the term ‘delinquency’ means the offences committed by juveniles for which an adult would be prosecuted.

Although the legal definition of crime is the only possible point of departure to determine the extent of crime, it should be kept in mind that as a fact crime may remain undetected or unknown, detected or known but unreported, or detected or known and reported. Each is related to the others but independent, inasmuch as it is determined by a series of factors which although sometimes identical, act in a different way; each raises its own problems and has to be studied by different approaches and techniques. The numerical extent of undetected crime may be guessed through sometimes elaborate methods, but not accurately determined. Whether it is greater than the other two kinds of crime put together is a matter for conjecture. Probably it is greater than either of them taken separately. Detected but unreported crime is crime found out by or known to the police, any other official, agency or individual, or brought up by criminological or other research. Due to many factors, its extent fluctuates considerably and cannot be definitely established. Detected and reported crime is not only known but also in one way or another acted upon by the police and certain public officials and agencies. With exceptions, sometimes important, it becomes the content of different types of criminal statistics.

These three aspects constitute the whole extent of crime, which is fluctuating enough owing to the number of variables involved. Even if all these could be determined and the approximate ratio between the three different kinds of crime established, it would be illusory to identify the total obtained with crime as a social problem. Certainly the fact of knowing the total numerical amount of crime would be of considerable help in tackling the problem it constitutes, but in dealing with social problems it should be kept in mind that the numerical expression is not the same thing as the social magnitude of the problem itself. The remark is made because, as a sequel of the growing transplantation into criminology of mathematical methods, there is a tendency to consider that the mathematical presentation of the crime problem is of decisive importance in dealing with it. There is no doubt that every effort should be made to ascertain as nearly as possible the numerical extent of a social problem, but there is no doubt either, that in view of the number and changeable character of the variables involved, no exact numerical presentation of a social problem is possible. Even if it were obtainable, its value would be transitory. Consequently, since other non-numerical and no less important elements should be considered, criminal policies should not, within reasonable limits, be restricted because an accurate account of the totality of crime is lacking.

Another question is whether the numerical extent of crime as one of the aspects of crime as a social problem should preferably refer to offences or offenders or both. Contrary to the criminological slogan that the offender and not the offence is what counts, as a social problem the numerical determination of crime is more relevant than that of the offenders. In order to avoid misunder-standing, it should be added that this preference for the numerical expression of crime as a series of acts does not mean that the corresponding figures about offenders should be neglected but on the contrary pursued as far as possible for comparison and policy reasons, nor does it mean that the treatment that offenders deserve should not be improved as much as possible.

Can the three categories of crime above be reduced to two—viz. known and unknown crime, reported and unreported, or detected and undetected crime? The temptation to reduce them is attractive, but like many other temptations it should be resisted, because no dichotomy is clear enough to convey the different kinds of knowledge about the factual existence of crime. Admittedly the three categories suggested are not sufficiently exhaustive or clear cut, but certainly this division is preferable. The two-term classification of reported or recorded and unreported or unrecorded crime is a deceptive oversimplification, inasmuch as it often requires involved and not always satisfactory explanations of what unreported or unrecorded is. In her excellent essay ‘Recorded and Unrecorded Criminality in Finland’ (1966), Professor Inkeri Anttila, after referring to the different meanings of ‘unrecorded criminality’ and giving some examples of definitions, fails to provide a clear concept of it and thus inevitably recorded criminality is equally confusing.² The impression obtained from these and other passages of her paper is that ‘recorded’ and ‘registered’ are used as interchangeable terms. Actually they are different, since according to general usage registered means a particular formal way of recording. In any case, the concept of ‘unrecorded criminality’ as equivalent to what ‘nowadays usually refers to police statistics’ is controversial, even if quotation marks are used to designate unrecorded crime. Apparently what is meant is that registered or recorded crime is that judicially adjudged as such. Here again, the erroneous identification already mentioned between crime and the legal status of the criminal appears. It should be noted that in an equally excellent essay, Christie, Andenaes and Skirbekk use the term ‘officially registered criminals’ to refer to those declared guilty by court or equivalent procedure.

The key to this entangled terminology lies in the still confused meaning of the expression ‘dark number’ and the meaning that the terms ‘recorded’ and ‘unrecorded’ should have for research purposes. Recorded crime should be understood as that for which written evidence is made by the public official or agency in pursuance of their duties, even if informally made and kept. Quite often in minor cases the police put down the particulars of juvenile offenders and the offence committed and take the offender to his parents for closer parental attention or supervision, without further action. In the case of a second offence the juvenile is brought before the court, but the particulars previously taken by the police are not produced. In France this practice is becoming more and more frequent, with results which I am told are satisfactory. For research purposes this type of recording should not be excluded. The same applies to similar practices with respect to adult offenders. The practice of destroying criminal records or invalidating them and making them inaccessible because legally they are non-existent, should be discontinued in the interests of research. This does not preclude the records being used for rehabilitation purposes. Putting aside the importance that any previous criminal record has for subsequent treatment, research into the extent of crime, of which recidivism is an important aspect, will be seriously handicapped as long as individual records are destroyed or cannot be examined because legally they do not exist. The difficulties of keeping criminal records for years are considerably reduced if, after a reasonable period of time, they are replaced by microfilm.

Indeed, research into the extent of crime is still influenced by the dark number theory which, as befits its name, was always somewhat obscure. N. Oba, its main pioneer, grouped together under this heading unknown crime, the undetected offender and the offenders who, although detected, were declared free because of lac...

Table of contents

• Cover
• Half Title
• The International Library of Sociology
• Full Title
• Copyright
• Dedication
• Contents
• Biographical Note
• Introduction
• 1 The extent of crime
• 2 Crime as a social problem
• 3 The theory of juvenile delinquency
• 4 The expansion and distribution of crime
• 5 Final considerations
• Notes
• Index