Chapter 4

Law social control and theoretical considerations of criminality

Law and society

Hills (1971) believe that consequences of society that use law to symbolize morality include overburdening law
enforcement and judicial administration.

Morality crimes are brought before courts effectiveness of justice system to deal with more serious crime is
compromised

Furthermore by branding certain behaviours as criminal, the criminal justice system may actually encourage the
growth of organized crime

Larsen and Burtch(1999) criminal law best example of an influential groups attempts to control behaviour of
Canadian

Law acts as instrument of coercion by imposing criminal sanctions or penalties to enforce obedience to law or
behaviour that is considered threatening to dominant group values

Murder, robbery and assault threat to society

Using criminal law to control morality is unacceptable

State may inadverntly be contributing to problems of crime control by attempting to control moral behaviour in
victimless crimes : crimes considered to have no victim because participants are willing such as drug use,
prostitution and pornography.

Hills (1971) also believes that criminal sanctions against victimless behaviours are gambling sexual deviation
obscenity drugs or prostitution are almost unenforceable

Charter infringements on legal rights of defendents involving illegal search and seizure false arrest harassment,
entrapment and crimes

Using criminal law to prosecute victimless crime provide breeding ground for bribery and police corruption

These law are violated with impunity encourage disrespect for legal process and cynicism toward criminal justice
system

Cruel and unusual punishment by supreme court of Canada sentence of seven years for marijuana possession

Review impacts of criminilazation process for wide variety of moral crimes it not be more in keeping goal of moral
and societal responsibility

Criminal laws as a mechanism of social control

Informal: unwritten codes of behaviours that majority of small groups follow in everyday social interaction where
no formal sanction for failing to follow informal codes behaviours conformity is maintained through social pressure
from other group members
formal control: are those that are legislated and form the written body of our civil and criminal legal codes. Statutory
law for example dictates interpersonal behaviours through our highway traffic laws or behaviour related to business
practice if violated negative sanction can be served

Grana and Ollenburger(1990) note that internalization of formal and informal social control is an ongoing part of
socialization process

- Learn who we are

- We should relate to society
- What are relationship with others

Socialization process are control mechanism that dicate how we learn skills and knowledge how we can realize our
aspiration and how we can recognize our limitation

Learn who in society occupies position of influence and power

Through socialization the individual learn to accept distruct or reject authority to admire, fear or hate others in
society

Sanctions whether they are positive or negative are affected by gender ethnicity or social stats

Rush (1994) Social control is way in which societies encourage conformity.

Criminal law and social change

- Used to promote social control

- Transform society

Colanization of Canada by English and French in 17th century example of use of law to define legal role and status
of aboriginal peoples

Legislation Indian act aboriginal people became ward of state and totally depend on federal government for
necessities of life

Caputo, Kennedy, Reasons and Brannigan (1989) argue that colonizers used the law to deculturate and destroy
social and economic organization of aboriginal people in Canada

Aboriginal people have been left with an incarceration rate that is 10 times higher then for any other racial or ethnic
group in Canada

Use of criminal law to creat subordinate and dominant groups is an example of negative effet that law has on a
changing society

Law can creat positive change in society Grana and Ollenburger(1999) note that changing patternds of domestic
rlation cause change in divorce law which also have an effect on society view of marriage

Canadian rights and freedom has a dramatic effect on criminal law on concept of justice in society

Courts can creat law rather then enforce them as an instrument of social change
Vago(2000) note positive and negative effects of using law for this purpose because criminal and civil law have
power to impose negative sanction they encourage society to overcome its resistance to change

If law support equal employment opportunities for designated groups then employers may be reluctant will accept
these legally sanctioned societal change to avoid negative sanctions imposed for non compliance example of
coercive effect of law

Vago views of powerful can negate views of oppressed or majority

Society also enacts public policy through criminal law

- Legalization of abortion
- Descriminization of homosexuality
- Abolition of capital punishment
- Enactment of gun control legislation

State always attempt control behaviour and using law most effective method of ensuring compliance

Major means of societal change

Acceptance of laws will be positive if laws are presented as rational and fair to all groups

Enforcement is immediate criminal justice system is committed to public policy and punishment are clearly defined
then compliance will outweigh resistance

Causes of crime: criminals are rational actor who choose their actions

- Have free wills and engage in criminal behaviour

- Transgressor of law influced by social economic and cultural environment
- Larger social forces are criminogenic or crime causing
- Operation of market or state or at relative economic deprivation reason for criminality
- Crime is multifaceted

Theoretical Consideration of Criminality

Four branches of criminological theories

How crime has been viewed in past centuries

- Cause of crime was seen as the result of evit or supernatural foreces

- Deviant members were supposedly possessed by evil forces
- Solution was to wipe out evil from individual
- 15th century Spanish inquisition, catholic church obtained confessions through brutal torture
- Before or during public execution
- 17th century places such as salem, massachusette famous trial by ordeal designed to reveal a sign of God’s
will brutal execution practices included burying alive, burning at the stake, quartering, beheading, stoning
and breaking on wheels
- Death major punishment
- Non lethal forms were unsavoury branding, pillorying and whipping
- This punishment became revolting on segment of population
- 17th and 18th century enlightenment think captured much sentiment leading to rethinking of sin as of crime
and atonement as punishment.
- Result classical approach was formed way to reform barbaric and unfair punishments were standard in
dark ages
- Classical theory offered a naturalistic rather then supernatural explanation for criminal behaviour both
enlightment and classical thinkers would argue crime was not a possession of person by evil external forces
rather then crime was product of rational individual free will

Classical

- Began in 1700s and early 1800

- Roots in enlightenment birth of classical school
o Reform movement
o Spread through out Europe by philosophers who rejected belief that church doctrine was sufficient
and rational account of how people existed in relation to institution, society and other people
o In 1748 treatis L’Esprit des Lois( spirit of laws) Baron de Montesquieu repudicated torture and
espoused a rational basis for administration of criminal law
o 1762 Jean- Jacques rousseau wrote social contract in which he argued that people could be made
bad not by God but by social institution he believed a concerted effort should be made to reform
these institution
- School held that men and women are rational beings
- Crime was result of exercise of free will
- And punishment would be effective in reducing incidence of crime since negated pleasure to be derived
from crime commissions
- Work to area of criminal law and punishment
- Two main proponents of classical criminology
o Cesare Beccaria of Italy
o Jeremy Bentham of England
Both believed that criminal law should mainly operate to deter crime that this function could best
be achieved through following princicple

Rationality: people free will to commit crime and make rational decision to engage in criminal behaviours as a
result deterrence is an important factor in policy making because potential offenders would think rationally about the
rewards and punishment of a given offence

Transparency: Lwas need to be known prior to commissions of crime potential lawbreakers must be aware of law
and punishment must be clear and just

Proportionality: Punishment must be commensurate with criminal act and harm caused. The focus is to eliminate
arbitrary and unjust punishment

Humaneness: punishment must be just and fair and not tied to power of those in position of authority.
Humaneness is strongly tied to concept of proportionality and reflects level of social harm that crime inflicts

Bentham important for his happiness principle brought notion of hedonism into business of governance
- Pleasure/pain calculus : individual seeks to maximize his own happiness and maximize pain
- Hedonistic calculus: pain from crime always had to be greater than pleasure derived from it

Cesare Beccaria

- Famous for his small volume On Crime and Punishmend

- Published anonymously in 1764
- Denounced by catholic church
- Following enlightenment thinkers and social contract thinkers

John Locke and Thomas Hobbes, Beccaria argued that punishment was necessary instrument to deterrence of crime

- Always better to prevent crimes than punish them 1765-1963

- Vigorous his opposition to arbitrary powers of magistrate
- Beccaria Argued against rights of judges to interpret law
- Legal punishment ought to be reserved for acts that harmful to society he hoped to restrict of punishment to
secular consideration

Principles tenets of classical theory

- Social contract: when an individual is bound to society only by his or her own consent therefore society is
responsible for him or her
- Free will where individual are free to make their own choices to act
- People seek pleasure and avoid pain
- Punishment should be used as deterrent to criminal behaviour
- Punishment should be based upon seriousness of crime
- Punishment for identical crime should be identical

Modern Classical/Choice theory

Focus of classical school was operation of criminal law rather than on cause or conditions of crime

Unnecessary to think much about criminal per se because they were like other members of society simply rationale
thinks could be deterred from crime through good policy

Concept of

Backlash against liberal criminal justice policies of 1960 these theories enjoyed renewed interest in 1970

Deterrence Theory: holds that people can discouraged from commiting crime by punishment and preventive
measure

- General deterrence: use of punishment to inhibit crime rate or behaviour of specific population
o Predicts a inverse relationship between crime rates and certainty, celebrity(swiftness) and severity
of punishment
- Specific deterrence: entails encouraging activity of a particular individual through such steps as
incarceration, electronice monitoring or shaping
o Effect of incarceration or other penal sanction are measure through recidivism rates or chances of
a person returning to criminal activity after realease.

Rational Choice Theory: modern day proponents and it argued that some offenders at least are rational decision
makers who seek benefits from criminal behaviours

- In view of Cornish and Clarke(1987)

o Offenders make decision and choices in committing crime
- Everyone is a rational calculator and exercise freewill but some are limited in their ability to calculate
o Further argue that we need to be crime specific according to authors, rational choice theory has
more promise by emphasizing particular crime rather than general dsposition to offend
 Decision to commit an offence would depend on type of crime
- Decisions to offend are based on offenders evaluation of a situation
o Two steps of decision making in offending
 Involvement decision(deciding to become involved or stop participating in form of
offending
 Event decision : tactics of carrying out an offence
- Seek to evaluate offenders decision making
- By seeing offences as having properties including skill levels, payoff, and costs that structure an offenders
choice

Routine activity Theory:

- Brand of rational choice theory suggest lifestyle contribute significantly both volume and type of crime
found in any society
- Described as victimization theory because it places emphasis on role of the victim within the criminal act
- Crime is opportunistic by nature people will in absence of deterrence , exploit illegal chances come their
way
- Involves convergence of three distinct variables
o Suitable targets
 Felson and Cohen(1979)
 Importance to criminal opportunity of perception of target vulnerability
 Dramatic expansion in production and proliferation of portable durable goods
after world war II these goods were suitable because they had value in black
market like stereos, television computers and automobile
- Capable guardians
o Absence of protection of targets
o Capable guardian is police
o Logical assumption if police are present or available then the likelihood of crime occurring would
be minimal
- Motivated offenders:
o Absence or presence of people who are sufficiently motivated to commit crime act
o Number to motivator exist
o Motivation is more likely to prevalent in societies that value wealth
o Legitmate opportunity to gain wealth are scare, people are also likely to be motivated to commit
criminal acts to satisfy goal
- Combination of motivated offender and a suitable target with lack of capable guardianship thus produces a
situation in which crime is more likely to occur

Biological positivitism:

- Positivistism: primary a reaction to those enlightenment

o Enlightenment thinker stressed the negative influence of traditional institution
 Such as church and class system which granted only some people rights
- Required that institution adapt scientific discoveries about nature of humanity and society and acknowledge
leading role of scientific knowledge in societal evolution
- Nature of human existence didn’t have to be taken as given but could be perfected through social
engineering
 Positivist criminology:
- Positivist scientific method
o Involves deductive reason through systematic observation
o Evidence
o Objective facts
- When evildoer became criminal popular understanding early Italian school criminal anthropologist like
Cesare Lombroso, Enrico Ferri and Raffaele Garofalo
o Discovering any unique traits to account for deviation of this class of persons from population as
whole
 By separating a sample of convicts from control sample of soldiers or other representing
general population
 Set about distinguishing two populations through systametic observation and scientific
measurement
 Lombroso Discovered that criminal have more physical abnorminlities than general
population
 Using Darwinian theory argued that these traits were ‘atavism’ or throwbacks to
previous evolutionary stages of human development
 Later work and work of other Italian school of positivists also explored
environment as conditioner of criminal behaviour
- Feeble mindedness and genetic or hereditary traits body types or somatotypes (Sheldon 1949)
psychological influences and sociological influences after (Quetelet work in 1831 on social statistics.
o Following Alfred binet invention of IQ
 Attempt to link criminality to inferior intelligence
 Government could categorize people into distinct population groupings
 Royal commission on feeble-minded was appointed in 1920 in Ontario to examine
possibility of categoirizng institutional people
 Work became problematic when better methodology found
o That soldier were at least as likely to be feeble-minded as prisoners
 Eugenics: social engineering through the controlled breeding
for inherited qualities thrived up in 1920 scientific circles was
enforce as late as 1970 alberta’s provisional police
- Correctional literature developed a treatment philosophy that thrived in policy document until 1970.
- Albeit controversial
o More conservative attitude towards crime and punishment has rejuventated trait theory and
implication of biological factors in criminal behaviours
o Pierre van den Bergie (1974) Edmund O Wilson (1975) and James Q Wilson and Richard
Herrnstein(1985) among other revied assumption that biology is related to behaviours
 It include biochemical theories related to hormones and diet neuropsychological theories
related to brain chemistry and structure theories related to genetics psychological trait
theories and sociological theories
 Sees crime as an offshoot of behaviour that maximize chance of an individual
genetic reproduction within environmental constraints
o Too complex and numerous to be reviewed here

Sociological : individual seen either as being born to commit crime or as making rational decision to commit acts of
deviance or criminality

Social relationship and factors were not considered

Lived in a society full of complex relationship with other people and institution

Interaction shape us give or deny opportunity, reward or punish bevhaiour or help to set our expectation of
ourselves and society

Sociological structure (social conditions or structural components)

- Seek explanation within characterstics of society itself

- Macrotherotical because it focuses on crime rates rather then criminal behaviour (Williams and McShane
1999)
- Social factors and conditions influence individual attitude and behaviours
- Criminality : advocates structural approach argue that economic, educational, religious and political system
would have great influence over crime rates within society
- Number of theories
o Social disorginzation theories: Robert Park, Clifford Shaw and Henry Mckay(1942) hypothesized
relationship between social disorganization and movement of population through Chicago
 Used various census data to confirm that there is internal migration from city from
transitional zone outward and the rates also decline farther into suburbs a person moves
 Highly transient communites were more crime prone because they are socially
discouraged
 Higly transient communities can be found where members of the community move in and
out which makes area higly unstable
 Put resident who live in such areas are more interested in upgrading by moving into
suburb areas
 Which leave poorer resident to toil in the area
 People do not stake in the community a result these transitional areas are more likely to
be disorganized
 All the blamed cannot be put on residents
 These area lack essential services such as social education, health and housing
 In essence source of control such as family, school, business community and social
services are weak and disorganized
o strain theory: A study of sociology Emile Durkheim (1987/1951)
 found that suicides were more numerous during period of economic and political
instability and crisis
 this condition of normlessness, or anomie to which suicide is a response
 absence of sufficient regulation in society
 unleashes passions and aspiration of individuals in other acts some of which will
be criminal

1938 Robert K Merton later modified and developed strain theory

 Developed the modes adaptation to help explain how people react to divergence in goals
of society and the means to achieve those goals
 Developed a complicated chart-must work to earn

Modes of adaptation Cultural goals Institutionalised goals

Conformity + +
Innovation + -
Ritualism - +
Retreatism - -
Rebellion + +
- -

Conformity : rather than steal or drug deal to gain extra income to pay off debt or
buy a house an individual may take on an extra job, work overtime or go back to
school to gain more resources for cultural goal of financial success or security

Innovation: who aspire to goal but has insufficient means must adapt rhought an
innovation may engage in illegal business

Rituatlism: in which individual has no great aspiration for cultural goal and so is
onctent to follow institutionalized means goes through motions

Retreat: someone who neither aspire cultural goals nor follows prescribed means a
drug addicts alcoholic

Rebel Seek to substitute society cultural goal with different ones possibly through
political revolution

More recent development in Strain theory

Steven Messener and Richard Rosenfeld(1994) added to grouwing list of theorist in strain tradtion by arguing that
American dream of material success attained through individual competition is a double edged sword. Individual
success comes at a cost and that cost in other societal tasks that are not primarily economic in nature

Education once ideally an end in itself is increasingly supported only where it can be shown to add economic value
to individual and social life

American dream itself exert pressure toward crime because it invites an anomic cultural environment where people
adopt any anything goes attitude in pursuit of personal goals

Theory is like Relative deprivation theory by Blau and Balu 1982

- Views crime as result of all frustration experienced by people who are relatively poor and who live near
others who are econoimically advantaged
o Elliot Currie(1998) argues that market societies are particularly prone to violent crime because
they chip away at informal suppot network withdraw public provision and force most people to
make hard choice between low wage labour and unemployment much of this argument restates
Willem Bonger’s work first published in 1916 in which he argues that the drive to economic
success in capitalist society pushes riche and poor alike into criminality

o cultural devince theory: begin with premise that we live in a complex society in which there is
disagreement about conduct norms

 among different levels of class structure and across ethnic groups

 Thorsten Sellin (1958) argue that members within subculture have to adapt to conduct
norms of these groups which may put their conduct in conflict with conduct norms and
legal norms of dominant culture
 Rastafarian culture as smoking marijuana is part of Rastafarian spiritual practice but
possession is illegal in Canada
 Miller 1958 Wolfgang and Ferracutti 1967 looked at difference in values of norms
between dominant culture and subcultural pockets of inner city population
 Argued that these subculture could be distinguished in their focus on machismo, honour
excitement, fate autonomy and street smartness culture because it sometime require
actions such as defence of honour that will be illegal tow prominent culture deviance
theory include
- Albert Cohen’s Deliquent boys
o Albert Cohen 1955 argues that at least some of crime attributed to people from lower class
background is committed by delinquent boys who act show their rejection of middle class values
which cannot hope to measure up to
o Through negativistic and non utilitarian criminal activity in order to reclaim their status
o Argues that middle class measure rod consist of number of values
o Including ambition individual responsibility cultivation of skill respect of property and deferred
gratification
o More formidable challenges to people whose background have deprived them of various capital
social economic or moral
- and Richard Cloward and Lloyd Ohlin’s differential opportunity

Differential Opportunity

- legitimate opportunity exist

- also illegitimate opportunity
- no one have access to
- time where many have joined a criminal gang
- had been available or accepting of us
- law abiding citizen such access is not routinely available for most adolescents

Social processes theory (learning and interaction)

- Examine means by which criminal behaviours are developed social process theories include social learning
theories, social control theories and labelling theories.
Social learning theories

- Maintain scoialization plays important role in development of criminal behaviour

- Suggest that youthful offenders are taught to believe that criminal or deviant behaviour is acceptable and
possibly legitimate behaviours
 Differential association: Edwin Sutherland’s in 1934
o Criminality is normally learned behaviour
o Argued that criminal behaviours is learned in interaction with
 Other persons in a process of communication (1966)
 Learned within intimate personal groups and learning includes techniques for committing
crimes and movtives, attitude and rationalization that group use to favourably define
behaviours even though it may violate laws
 More time a person spends in company of those violate the law more person learns
techniques of crime and more a person learn to see activity in a favourable light

Differential reinforcement: B.F Skinner (operant conditioning)

- Burgess and Akers (1996) contend

o Learning of criminal behaviours is heavily influenced by rewards and punishment meted by family
and or friends
o Potential offender decide to commit an offence by weighing potential rewards or risks
o Like differential association, differential reinforcement
 Criminal behaviour is learned with close, intimate personal groups,
 Argues that mass media can also influence learning of behaviours

Neutralization or Drift theory

- Proposed by David Matza and Gresham Skyes

o Youth learn ways to neutralize convential values or attitude
o They will drift back and forth from convential and criminal behaviours
o Offender will learn how rationalize his or her actions before behaviours
 Mentally justify actions
 Otherwise person will not be able to override dominant social values which teach that
criminal or delinquent behaviour are wrong

In 1961 developed five ways

- Denial of responsibility: offender would justify criminal act by claiming that it was beyond his or her
control or it was not his or her fault
- Denial of injury: offender would justify criminal act by claiming that it did not hurt anyone
- Denial of Victim: offender would justify criminal act by claiming victim deserved what he or she received.
Victim was asking for it
- Condemnation of Condemners: cooffender justify by claiming that focus should not be on act but on those
who have condemned act(essentially shifting blame to others)
- Appeal of higher Loyalities: offender would justify by claiming loyality to group (peer, family or otherwise
supersedes legal codes and or other noms values

Social control theories:

- Advocate notation that potential offender learn attitude, technique and rationalization for commiting crime
- Argue that born good but learn to be bad
- Humans are born bad but learn to be good
- Control perspective would argue that crime is an innate or natural behaviour and social control mechanism
- Both informal and formal operate to prevent potential criminal from acting us.
- Albert Reiss(1951)
o Contended that failure of a personal control leads to criminality
o Failed to consider impact of family environment and community controls
o Ideas of lack personal control
- Walter Reckless Contaminate Theory (1967)
o Claimed each person has inner and outer control that pull or push potential offenders toward
delinquency
o For reckless containment was ability to resist criminal inducement
o Provide sociological and psychological to criminal behaviour
 Internal include personal factors such as restlessness, discontent, hostility, rebellion,
mental conflict, anxieties and need for immediate gratification
 external pressure includes adverse living conditions, relative deprivation, poverty,
unemployment, limited opportunity and general inequalities
 external pulls include deviant companions, criminal subculture and media influences
- Travis Hirschi(1969)
o Person’s bond to society prevents him or her from engaging criminal behaviours
o Weaking of ties that bind people to society produce criminality
o Individual with greater bond to society have greater stake in conformity
o And less inclined to commit criminal acts
o Four elements of social bonds to convential society
 Attachment
 Commitment
 Involvement
 Belief

Social Reaction and Labelling theories

- Focuses on biology, nature, and social environment of individual

- Whether individual choose to commit criminal acts or whether these acts are externally determined
- Follows social learning inasmuch
- Agree that criminal behaviour is learned
- More emphasis on interaction between social control agents such as courts, police and schools and
individual
- Remind that Sutherland calls definition favourable to commission of crime followed by social reaction to
criminal act
- These reaction help us to shape individual identity
- According to Labelling theories
o When a judge tells youth
 You are formost a theif this formal reactions label the youth and youth is more likely to
act according to this label
o Howard Becker
 Broke from consensus view of criminality
 Deviant behaviour is behaviour that people so label (1963)
 Argue that rather than focusing on how social group create deviance by making
rules whose infraction constitute deviance becker argued that much more
attention needs to be given on social reactors than individual desiginated agents
of social control as criminal
 Lemert 1967
o Primary deviance and secondary

Conflict/ critical theories :

Concerned with explaining how social control agents and agencies behave

- There is an ongoing contest of power and criminal law and various agencies of enfocement act either
directly or indirectly in interest of power