CHAPTER 1 CRIME and CRIMINAL LAW

CRIME in General
commission of an act or act of omission that violates the law and is punishable by the state. Crimes are considered injurious to society or the community, as distinguished from torts and breach of contract, which tend to wrong only private individuals or corporations and not society as a whole. As defined by law, a crime includes both the act, or actus reus, and the intent to commit the act, or mens rea. Criminal intent involves an intellectual apprehension of factual elements of the act or acts commanded or enjoined by the law. It is usually inferred from the apparently voluntary commission of an overt act. There are also crimes of strict liability, in which it is not usually necessary for the prosecution to prove any mental element: such crimes are created by statute.

Crime,

CRIMINAL LIABILITY
Criminal liability is relieved in the case of insanity. Legal minors are also relieved of criminal liability, as are people subjected to coercion or duress to such a degree as to render the commission of criminal acts involuntary. In most countries, crimes are defined and punished according to statutes. Punishments may include death, imprisonment, exile, fines, forfeiture of property, removal from public office, and disqualification from holding such office. Unless the act of which a defendant is accused is expressly defined by statute or common law as a crime, no indictment or conviction for the commission of such an act can be legally sustained. This provision is important in establishing the difference between government by law and arbitrary or dictatorial government.

FELONY vs. MISDEMEANOR

English law formerly distinguished between a felony and a misdemeanor, but this distinction was abolished in 1967, and the significant practical difference now rests on the type of trial applicable for the offence. Crimes can be divided into the most serious, which are triable only on indictment (before a jury), the least serious, which are triable only summarily (before magistrates), and those triable either way (before either jury or magistrates). The first category includes rape and murder; the second category the majority of motoring offences; and the third category theft and assault.

CRIME AND PUNISHMENT

General patterns of crime in the European world across the past two millennia, and the changes in the sanctions deployed against offenders. Crime is the word commonly used to describe actions that the laws of a community or a state deem to be wrong. The laws, in turn, prescribe various sanctions or punishments for the perpetrators of crimes. Crime is not an absoluteit is defined by law. Hence, while some activities such as theft or murder have been labelled as crimes in most societies, other activities, such as adultery and heresy, have been criminalized and decriminalized as attitudes and beliefs within different societies have changed. Measuring shifts in crime patterns over time, and between societies, is fraught with difficulties, and not simply because different societies have different laws and hence different definitions.

CRIMINAL LAW
The Babylonian Code of Hammurabi is possibly the earliest legal code, but much Western law had its origins in Ancient Rome. In 451 BC the Roman Republic issued the Law of the Twelve Tables that were to constitute the basis of Roman law. Theft and assault were considered to be offences against private individuals, and consequently required the victim to prosecute the offender before the appropriate magistrates and the assembly of citizens. Additions were made to these laws over time, new courts were developed during the Roman Empire, and a degree of uniformity was consequently imposed over much of Europe. But as the empire retreated and disintegrated in the west, from the 5th century AD, and great migrations of

peoples swept across Europe, so new customs and forms of law were established. Some historians argue that it is impossible to speak of criminal law much before the 12th century. It was in the 12th century that Roman law, specifically the Justinian Code, was revived, especially in the universities of Italy. This revival encouraged kings and princes to seek to expand their own authority, particularly over wrongdoers and rivals. It was not until 1532, however, that the Holy Roman Empire issued a full legal code the Constitio Criminalis Carolina. Moreover, change within different territories occurred at different times and never at the same pace. By the close of the 16th century the relatively centralized kingdom of England had a series of royal laws more or less implemented within its boundaries; the English system was one of common law. The kingdom of France, however, whose borders were continuing to expand, had several hundred separate codes and these were, as in much of continental Europe, generally a mixture of local customary law and Roman law. While, from the 12th century, formal criminal laws may have begun to be written once again, records from the Middle Ages of the proceedings in courts are few, and basing any estimates of crime on the number of trials for which documents remain is futile. From the early modern period, when a degree of rigour began to be introduced into their record keeping, it is possible to construct some statistics from court records. But there was a variety of courts: borough or burgess courts (in the towns), seigneurial courts, royal courts, and church courts. In addition, there were three forms of legal competence: high, middle, and low justice. There were also overlapping jurisdictions, and offences were muddied by plaintiffs to the extent that some cases brought before church courts manifestly had origins in secular arguments and injuries. All of which makes the collection of statistics for specific offences in the early modern period difficult. The collection of criminal statistics by emergent nation states did not begin seriously until the early 19th century, by which time most courts dealing with criminal matters were essentially state courts. At best, however, these are the statistics of crimes reported to police institutions. No one has successfully explained how the historian might assess or estimate what criminologists call the dark figure of crimes that were not reported and hence were never included in these statistics. Measuring and analysing punishment is more simple, but not as simple as is often assumed. The traditional view was one of linear development. This charted a shift from brutal punishments inflicted on the body during the Roman, medieval, and early modern periods, to the development of the prison during the early 19th century, with the reformation of the offender considered as even more important than his or her punishment. The reality appears to have been far more complex and a variety of punishments have

been used over time involving the use of banishment and fines, as well as execution, mutilation, and incarceration ( see Capital Punishment). Moreover, while from the early Middle Ages princes and towns increasingly sought to impose their laws on the territories that they claimed, in many areas they met resistance. Some gentry, for example, who considered that their social standing and common sense gave them the right to make decisions and judgments about various injuries and offences, disliked the idea of professional lawyers quoting Latin and using foreign precedents in the courts. And in rural areas especially, communities still sought to resolve injuries and punish miscreants in their own way without recourse to prince or town.

CRIMINALS
The concept of the criminal is relatively recent. But a series of stereotype offenders appear to have been present in the Middle Ages. These were gradually reshaped in the early modern period, and then remoulded as the criminal class or classes, or simply as criminals, principally during the 19th century. Robber knights and robber barons were a phenomenon of the Middle Ages eventually brought under control by the armed might of kings and princes but also, it has been argued, by an increasing gentility of manners among the ruling elites (see Feudalism). The growth of capitalism led to a new kind of robber baron whose offences were not necessarily against the law. However, capitalism and industrialization fostered the development of the white-collar offender who defrauded both companies and investors. It has been estimated that as many as one in six of the company promotions in Victorian Britain were fraudulent. But, aside from various relatively shortlived panics about individual robber barons in the feudal world, or about white-collar offenders in the capitalist world, criminal stereotypes have rarely been situated among the elite. At times the robber knights of the Middle Ages might have been scarcely distinguishable from bandits, but bandits have had a much longer existence. Bandits could acquire a romantic aura, but often not until after their deaths. Robin Hood is the obvious example, and a man who, allegedly, robbed the rich to give to the poor. There is doubt about the existence of Robin Hood himself, but plenty of other bandits acquired his romantic image from the Middle Ages onward. In reality, however, few ever showed much solidarity with the peasantry and the poor. Bandit groups appear most often to have been united by kinship and friendship. They commonly had links

with some local power holders who might even employ them as their own strong-arm men. Individuals sometimes embarked on bandit careers fired by motives of revenge for personal wrongs. They could also be involved in large-scale entrepreneurial activity such as smuggling and rustling. The internal customs barriers in countries such as ancien rgime France, for example, created magnificent opportunities for smuggling, both petty and large scale. The best-known bandit of 18th-century France, Robert Mandrin, was involved in massive contraband expeditions with large numbers of armed escorts to protect his enterprise and fight off police and troops. The bandit of the medieval and early modern period was, in this respect, a forerunner of the modern gangster involved in the illegal entrepreneurial trafficking of alcohol, drugs, and people. Bandits might also be drawn from marginal groups. In the Middle Ages there was concern about the rootless vagabond. Of course, there were indeed vagabonds and beggars, some of whom, most notoriously deserters and discharged soldiers still armed with their military weaponry, could be dangerous. There were also groups, such as entertainers, tinkers, and Roma (Gypsies), whose way of life put them on the road. Particular trades were stigmatized because of the filth or general unpleasantness that surrounded themknackers (slaughterers of horses), skinners, and tanners are the obvious examples. These were considered dishonourable people unehrliche Leute they were called in the German landswho, while their tasks might be based in the urban world, were compelled to live on the edge, or even outside, of the towns. Also significant among the marginalized and the ostracized, were Jews. These individuals and groups, excluded by rural and urban communities, are found in court records charged with various offences from highway robbery to arson. The problem is in assessing the extent to which the stigmatization was self-fulfilling. Once such individuals were excluded, denied ordinary civil rights, and labelled as dangerous, there could have been a strong incentive for them to commit criminal acts as the best way, perhaps the only way, of ensuring a living. The obsession with the vagrant as criminal had a remarkable longevity from the medieval period until well into the 19th century. The men who argued for a reform of the English police in the late 18th and early 19th centuries, for example, all expressed concern about vagabonds and those individuals who, the reformers believed, preferred a life of idleness and looked for luxury, rather than indulging in respectable labour for an honest wage. Yet while there were continuities in the perception of the offender, there were also shifting perceptions regarding his or her motivation, and these are easier to substantiate than a shift from violence to theft.

As European society became more secular so the perception of criminal offending shifted from a form of sin, prompted by the Devil, to the responsibility of the offender making rational choices. This shift was gradual, but was accelerated by a series of developments particularly during the 18th century. First, the population began to grow faster than the economy, and thousands were forced on to the roads looking for work; a conservative estimate has it that 5 per cent of the population of the German lands were in this situation at the beginning of the 18th century. Some of these probably did resort to brigandage and highway robbery, but the large numbers on the roads served to increase insecurity and fears of crime and criminals. At the end of the 18th century the behaviour of crowds during the French Revolution accentuated fears about the urban poor. In the early 1840s a French police administrator, Henri Frgier, coined the term les classes dangereuses, and this struck a chord with those among the propertied classes fearful of revolution, and fearful especially of the poor in the burgeoning slums of the big cities and the new industrial regions. It was easy to elide dangerous classes and criminal classes. Towards the end of the 19th century, influenced by new understandings of evolution, a school of criminological thought emerged perceiving the criminal less as someone morally responsible acting as a result of free will, and more as an individual dominated by his or her physiological nature. The principal mover in this way of thinking was Cesare Lombroso, who claimed to have begun to develop his ideas while serving as a military doctor during the Brigands War of the 1860s in the south of Italy, and specifically when he examined the head of a notorious, dead brigand, Giuseppe Vilella. Lombroso constantly refined his notion of the born criminal, as did his successors. They increasingly included a number of other elements as working upon the potential offender: feckless parents, drink, poor housing, and so forth. Such ideas suited well with contemporary concerns about race degeneration and the science of eugenics. It encouraged some governments, notably in some states in the United States and in Scandinavia, to introduce sterilization into their penal policy; and it found its worst manifestation in Nazi Germany. Away from the stereotypes of bandits, vagrants, members of the criminal class, and born criminals, however, some generalizations can be made about criminals through time. First, the evidence suggests that the majority of people responsible for both offences against property and offences against the person were men, and primarily young men. Women figure most prominently in offences relating to prostitution. In some countries the evidence of recidivism (relapsing back into crime), and this is obviously something that depends on the kind of careful records kept from the 19th century, suggests that women were repeat offenders in greater

numbers than men. This is probably due to the stigma of prison, and to the difficulty experienced by women with this stigma in finding respectable work and restoring some vestige of expected feminine morality. Most property crimes did not involve violence or the threat of violence. A high percentage of assaults, from pub brawls to rapes, generally seem to involve people who knew each other, even people who were related. There was stranger-onstranger violence, especially in offences involving bands of brigands, burglars disturbed in the act, individual highwaymen, or footpads (unmounted highwaymen). But the violence of professional criminals was often committed among those themselves as, for example, when criminal gangs fought over territory for illegal enterprises such as prostitution, illicit gambling, or the supply of heavily taxed or prohibited goods. In the medieval and early modern periods, unless an offence was specifically directed against a prince or a state, it was generally up to the victim, or the victims relatives and friends, to pursue and often even to apprehend the offender. Some individuals went to considerable expense to get valuable property returned. In 18th-century England, for example, victims of horse theft often advertised in newspapers or had handbills printed and circulated; a horse, after all, was a valuable property. Such advertisements often met with success. Entrepreneur thief-catchers also established themselves. They lived by fees and rewards from the State for the apprehension of serious offenders, or fees and rewards from victims. Sometimes they simply negotiated with offenders for the return of stolen property rather than apprehending them and bringing them to trial.

CRIME THEORIES
To understand criminal justice, it is necessary to understand crime. Most policy-making in criminal justice is based on criminological theory, whether the people making those policies know it or not. In fact, most of the failed policies (what doesn't work) in criminal justice are due to misinterpretation, partial implementation, or ignorance of criminological theory. Much time and money could be saved if only policymakers had a thorough understanding of criminological theory. At one time, criminological theory was rather pure and abstract, with few practical implications, but that is not the case anymore. For example, almost all criminologists today use a legalistic rather than normative definition of crime. A legalistic definition of crime takes as its starting point the statutory definitions contained in the penal code, legal statutes or ordinances. A crime is a crime because the law says so. Sure, there are concerns about overcriminalization (too many laws) and undercriminalization (not enough laws), but at least on the surface, a

legalistic approach seems practical. It is also advantageous to a normative definition, which sees crime as a violation of norms (social standards of how humans ought to think and behave), although there are times when criminology can shed light on norms and norm violators. Every criminological theory contains a set of assumptions (about human nature, social structure, and the principles of causation, to name a few), a description of the phenomena to be explained (facts a theory must fit), and an explanation, or prediction, of that phenomenon. The assumptions are also called meta-theoretical issues, and deal with debates like those over free will v. determinism or consensus v. conflict. The description is a statistical profile, figure, diagram, or table of numbers representing the patterns, trends, and correlates of the type of crime taken as an exemplar (most appropriate example) of all crime. The explanation is a set of variables (things that can be tweaked or changed) arranged in some kind of causal order so that they have statistical and meaningful significance. Criminological theories are primarily concerned with etiology (the study of causes or reasons for crime), but occasionally have important things to say about actors in the criminal justice system, such as police, attorneys, correctional personnel, and victims. There are basically thirteen (13) identifiable types of criminological theory, only three (3) of which are considered "mainstream" or conventional criminology (strain, learning, control). The oldest theory (biochemistry) goes back to 1876 and the last four theories (left realism, peacemaking, feminist, postmodern) have only developed in the past twenty-five years. The following table illustrates, with more information about each theory below the table:

Theory 1. Biochemistry

Causes

Policy

heredity, vitamin deficiency, allergy, tumor, toxins, brain isolation, treatment dysfunction, hormonal imbalance low intelligence, treatment, counseling psychopathy, stress disorganized neighborhoods economic goal blockage imitation, community empowerment increased opportunities

2. Psychology 3. Ecology 4. Strain 5. Learning

reinforcement more effective negative

schedules 6. Control 7. Labeling 8. Conflict 9. Radical 10. Left Realism socialization, low self-control shunning, identity immersion power competition differentials,

reinforcement, more use of positive reinforcement child-rearing, bonds nonintervention, reintegration increased equality praxis, socialism more effective protection police social

class struggle, capitalism predatory relationships

11. Peacemaking inner suffering and turmoil 12. Feminist 13. Postmodern gender inequity, patriarchy hierarchical language privileges

spiritual rejuvenation end sex discrimination social

and more informal control

1. Biochemistry is known by many names: biological, constitutional (having to do with the structure of the body's morphology), genetic, and anthropological criminology. The oldest field is criminal anthropology, founded by the father of modern criminology, Cesare Lombroso, in 1876. He was one of the first exponents of the positivist approach to explaining crime, positivism meaning a search for the causes of crime using scientific method, as opposed to the classical approach, which relies upon free will as the main cause of crime. Historically, theories of the biochemistry type have tried to establish the biological inferiority of criminals, but modern biocriminology simply says that heredity and body organ dysfunctions produce a predisposition toward crime. 2. Psychological criminology has been around since 1914, and attempts to explain the consistent finding that there is an eight-point IQ difference between criminals and noncriminals. That gap isn't enough to notice, but it might make them more impulsive and foolhardy, and even smart people with high IQs are vulnerable to folly. Other psychocriminologists focus on personality disorders, like the psychopaths, sociopaths, and antisocial personalities. 3. Ecological criminology was the first sociological criminology, developed during the 1920s at the Department of Sociology at the University of Chicago. Hence, it is also called Chicago School sociology. Ecology is the study of relationships between an organism and its environment, and this

type of theory explains crime by the disorganized eco-areas where people live rather than by the kind of people who live there. 4. Strain, sometimes called by the French word anomie, is a 1938 American version of French sociology, invented by the father of modern sociology, Emile Durkheim (1858-1917). This type of theory sees crime as the normal result of an "American dream" in which people set their aspirations (for wealth, education, occupation, any status symbol) too high, and inevitably discover strain, or goal blockages, along the way. The only two things to do are reduce aspirations or increase opportunities. 5. Learning theories tend to follow the lead of Edwin Sutherland's theory of differential association, developed in 1947, although ideas about imitation or modeling go back to 1890. Often oversimplified as "peer group" theories, learning is much more than that, and involves the analysis of what is positively and negatively rewarding (reinforcing) for individuals. 6. Control theories in criminology are all about social control. Only those called containment or low-self control theories have to do with individual psychology. Control theory has pretty much dominated the criminological landscape since 1969. It focuses upon a person's relationships to their agents of socialization, such as parents, teachers, preachers, coaches, scout leaders, or police officers. It studies how effective bonding with such authority figures translates into bonding with society, hence keeping people out of trouble with the law. 7. Labeling theory was a child of the 1960s and 1970s which saw criminals as underdogs who initially did something out of the ordinary, and then got swept up in a huge, government-sponsored labeling or shunning reaction. It argues that anyone facing such an overwhelming, negative labeling social reaction will eventually become more like the label because that is the only way out for their identify formation. It points out that sometimes its best to do nothing (for minor offending), and that there are few reintegrative rituals designed to help people fit back into their communities. 8. Conflict theory holds that society is based on conflict between competing interest groups; for example, rich against poor, management against labor, whites against minorities, men against women, adults against children, etc. These kind of dog-eat-dog theories also have their origins in the 1960s and 1970s, and are characterized by the study of power and powerlessness.

9. Radical theories, also from the 1960s and 1970s, typically involve Marxist (referring to Karl Marx 1818-1883) critiques of capitalist society which allows things to exist like millions of billionaires and millionaires while the vast majority of people live in poverty or just get by. Such fundamental economic disparities reflect basic contradictions in the way work is organized into demoralizing, brutalizing, and oppressive conditions. Crime is seen as a reflection of class struggle, a kind of primitive rebellion with criminals behaving as rebels without a clue. Only through praxis (informed action based on theoretical understanding) will the new socialist society be formed and crime will go away. 10. Left realism is a mid-1980s British development that focuses upon the reasons why people of the working class prey upon one another, that is, victimize other poor people of their own race and kind. It wants the police to have more power in protecting poor people, but on the other hand, doesn't want the police to be invasive or intrusive. 11. Peacemaking criminology came about during the 1990s as the study of how "wars" on crime only make matters worse. It suggests that the solution to crime is to create more caring, mutually dependent communities and strive for inner rebirth or spiritual rejuvenation (inner peace). 12. Feminist criminology matured in the 1990s, although feminist ideas have been around for decades. The central concept is patriarchy, or male domination, as the main cause of crime. Feminists also tend to call for more attention to female points of view. 13. Postmodern criminology matured in the 1990s, although postmodernism itself (as a rejection of scientific rationality to the pursuit of knowledge) was born in the late 1960s. It tends to focus upon how stereotypical words, thoughts, and conceptions limit our understanding, and how crime develops from feelings of being disconnected and dehumanized. It advocates replacing our current legal system with informal social controls such as group and neighborhood tribunals. This has been only the briefest of overviews on crime theories. There is much, much more, and the reader is encouraged to find out more, including the comparative advantages and weaknesses of different theories.

PRINTED RESOURCES

Bohm, R. (2001). A Primer on Crime and Delinquency Theory . Belmont, CA: Wadsworth. Cullen, F. & R. Agnew (1999). Criminological Theory. Los Angeles, CA: Roxbury. DeKeseredy, W. & M. Schwartz (1996). Contemporary Criminology. Belmont, CA: Wadsworth. Jones, D. (1987). A History of Criminology. Westport, CT: Greenwood. Lilly, J., F. Cullen & R. Ball (1995). Criminological Theory. Thousand Oaks, CA: Sage. Maxim, P. & P. Whitehead (1998). Explaining Crime. Woburn, MA: Butterworth-Heinemann. Shoemaker, D. (2000). Theories of Delinquency. NY: Oxford Univ. Press. Vold, T., T. Bernard & J. Snipes (1997). Theoretical Criminology. NY: Oxford Univ. Press. Williams, F. & M. McShane (1998). Criminological Theory. Cincinnati, OH: Anderson.