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American Academy of Political and Social Science

No Excuse for Crime


Author(s): Ernest van den Haag
Source: The Annals of the American Academy of Political and Social Science, Vol. 423,
Crime and Justice in America: 1776-1976 (Jan., 1976), pp. 133-141
Published by: Sage Publications, Inc. in association with the American Academy of
Political and Social Science
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ANNALS, AAPSS, 423, Jan. 1976

No Excuse for Crime

By ERNEST VAN DEN HAAG

ABSTRACT: Criminologists often regard offenders as vic-


tims of conditions beyond their control or as "political
prisoners," punished for "the inevitable consequences"
of their socioeconomic status (S. I. Shuman). However,
offenders do not become "political prisoners" unless their
offenses were addressed to the sociopolitical system. Nor
do crimes "inevitably" arise from poverty anymore than
corruption inevitably arises from power. Therefore, neither
poverty nor power are legal excuses. Criminal law always
is meant to perpetuate the existing order, although Richard
Quinney objects because the burden of legal restraint falls
most heavily on the disadvantaged who are most tempted
to disrupt the legal order. Yet the criminal law is meant
to restrain those tempted to violate it. Quinney's view that
socialism will solve "the crime problem" appears bereft
of evidence. The comparative crime rates of blacks and
whites are analyzed and the punitive and social reform
approaches compared. They are found to be not alternative
but cumulative.

Professor van den Haag is Adjunct Professor of Social Philosophy at New Yo


University and Lecturer in Psychology and Sociology at the New School for
Social Research. This essay is based upon a chapter from his forthcoming boo
Punishing Criminals concerning a very old and painful position.
133

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134 THE ANNALS OF THE AMERICAN ACADEMY

"Environment is the root of all evil- bilitation of offenders is inhuman and


and nothing else! A favourite phrase. wasteful.3
And the direct consequence of it is
that if society is organized on normal GHETTOES AND "POLITICAL
lines, all crimes will vanish at once, PRISONERS"
for there will be nothing to protest
against, and all men will become, Most criminologists are not quite
righteous in the twinkling of an eye."' so explicit. But some are. Consider
two. S. I. Shuman, Professor of Law
and Psychiatry at Wayne State Uni-
XCEPT in narrowly specifiableversity goes farther than Bator. Shu-
conditions, the law does notman maintains that "if the ghetto
see offenders as victims of condi- victim does what for many such per-
sons is inevitable and is then incar-
tions beyond their control. But
criminologists often do.2 Paul Bator cerated . . . he is in a real sense a
describes views shared by many:political prisoner," because he is
. . . that the criminal law's notion of
punished for "the inevitable conse-
just condemnation is a cruel hypocrisy
quences of a certain socio-political
visited by a smug society on the psycho-status."4 If these consequences were
indeed "inevitable," the punish-
logically and economically crippled;
ment would be unjust, as Professor
that its premise of a morally autonomous
will with at least some measure of choice Shuman argues. Why, however,
whether to comply with the values ex- would the (unjustly) punished of-
pressed in a penal code is unscientific fender become a "political prisoner,"
and outmoded; that its reliance on as Professor Shuman also claims?
punishment as an educational and de- All punishments are imposed, or
terrent agent is misplaced, particularlysanctioned, by the political order
in the case of the very members ofwhich the law articulates. Are all
society most likely to engage in criminal
convicts, then, political prisoners?
conduct; and that its failure to provide
for individualized and humane reha- or all those unjustly punished? or all
convicts who come from disadvan-
taged groups? If such a definition
1. Fedor Dostoevski, Crime and Pun- were adopted, every convict, all
ishment (1866). Dostoevski's novel is disadvantaged convicts, or every-
directed against this notion, which he puts one unjustly punished would be a
in
the mouth of one of Raskolnikov's friends.
political prisoner. "Political pris-
The notion itself is still around. Thus, Alex
oner"
Thio in The American Sociologist, vol. 9, no. would become a synonym for
"convicted," for "disadvantaged," or
1 (February 1974), p. 48: ". . . laws benefit
for "unjustly punished."
the powerful, for it is much easier and less
costly for them to punish the powerless If we want to distinguish between
criminals than to eradicate the cause of the
political and other prisoners, a "polit-
crimes by changing the basic structure of
society . . . laws, by virtue of enabling theical prisoner" must be defined as
powerful to perpetuate the social-structuralsomeone imprisoned because he
causes of murder, rape, arson and burglary,
ensure the perpetuation of those crimes."
2. To legally excuse an offense, it must be3. Paul Bator, "Finality in Criminal Law
shown that external conditions were such and Federal Habeas Corpus for State Pris-
that a reasonable person, acting with normaloners," Harvard Law Review 76 (1963).
diligence could not have avoided his act-4. S. I. Shuman, Wayne Law Review, March
unless it is shown that the offender lacked 1973, pp. 853-4. Professor Shuman's argu-
the mental competence to know what he was ment is more intelligent than most, but
otherwise prototypical.
doing or that what he was doing was wrong.

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No EXCUSE FOR CRIME 135

ghetto victims who do not commit


tried to change the political system.
The aim of his crime determines crimes are extraordinary."
whether or not the criminal is Surely "extraordinary" is wrong
political; the offender who intended
here as a statistical generalization:
personal enrichment cannot become
most poor people do not commit
a political criminal independently of those who do are extra-
crimes;5
his actual intent, simply because a
ordinary, not those who don't. Per-
penalty is imposed for "the in- haps Professor Shuman means that it
evitable consequences of a socio- takes more resistance within than it
political status," which led him to does outside the "ghetto" not to
enrich himself illegally. If any un- commit crimes, which is quite likely.
lawful attempt to improve one's per- But "inevitability"? Here, the anal-
sonal situation within the existing ogy with epilepsy or heart dis-
order "because of the inevitable con- eases is unpersuasive. Such condi-
sequences of a certain socio-political tions serve as legal excuses only be-
status" is a political crime, then all cause they produce seizures beyond
crimes committed by severely de- the control of the person affected.
prived persons are political. But is These seizures are legal excuses
the ghetto dweller who becomes a only when they are the cause of the
pimp, heroin dealer, or mugger a crime or injury or of the failure to
political criminal just as the one who control it. Otherwise a "weak heart"
becomes a violent revolutionary? or an epileptic condition is not an
Ordinarily, an offender who did not excuse. Thus, proverty could not be
address the political order is not re- an excuse, unless it can be shown
garded as a political criminal, to produce seizures beyond their
whether he is a victim of politics control which cause the poor to com-
or not, whereas an offender whosemit crimes.
crime did address the political order Poverty does not produce such
is a political criminal, even if he isseizures. Nor would poverty deprive
not a victim of politics. This usagethe victim, if he were to experience
permits a meaningful distinction,a seizure (of criminality?), of control
which Professor Shuman obliterates in the way an epileptic seizure does
by making "political" refer to pre- the epileptic. Poverty affects motiva-
sumptive causes rather than to overt tion and increases temptation, as
intentions. does sexual frustration or, some-
times, marriage-hardly an uncon-
INEVITABLE CRIMES? trollable seizure. To have little or
no money makes it tempting to steal;
Professor Shuman goes on to claim
that the poverty-stricken person is more
tempted than the rich. But a poor
arguing that inevitability is too strong a person is not shorn of his ability to
connection between crime and poverty control temptation. Indeed it is to
or ghetto existence because not all such
persons commit crimes, is rather like 5. Perhaps they do-if questionnaires
arguing that epilepsy or heart attack rather than conviction records are fol-
ought not to excuse because not all lowed. (The reliability of questionnaire data
epileptics or persons with weak hearts
is as questionable as that of police records.)
are involved in a chain of events which It seems likely that about three times as
results in injury. many crimes are committed as are recorded.
If so, the statement "most poor people
He adds that "those poverty or do not commit crimes" remains correct.

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136 THE ANNALS OF THE AMERICAN ACADEMY

him that the legal threat is ad- powerful, not because, as he sug-
dressed. He is able to respond to itgests, poverty is causally more re-
unless he suffers from a specific lated to crime than wealth; rather,
individual defect or disease which he sees deprivation as morally un-
makes him incompetent. just and painful, and power and
There is a generous and strong wealth as morally undeserved and
moral bias in Shuman's arguments, pleasant, wherefore he wants to
although he does not seem fully excuse the poor and punish the
aware of it. The bias was already wealthy.6 He is morally prejudiced
noted by Friedrich Nietzche when against those corrupted by unde-
he wrote in Beyond Good and Evil: served wealth-whom he gives no
"[writers] are in the habit of taking sign of excusing-and in favor of
the side of criminals." Stated in those corrupted by unjust depriva-
undisguised moral terms, thetion. argu-
ment goes: the poor are entitled The
to generosity of his prejudice
rob or rape because of the injustice leads Shuman to overlook a logical
they suffer-poverty. The moral error in his argument. In some sense,
nature of the argument is concealed everybody is what he is, and does
by an erroneous factual claim:what poor he does, as a result of his
offenders can't help committing genetic inheritance and the influ-
crimes and, therefore, should not encebeof his environment-poverty
held responsible. or wealth or power-that interacted
The nonfactual, moral nature withorhis genetic inheritance and pro-
bias of the argument is easilyduced re- him and his conduct. This is
vealed if "power" is substituted no for
more the case for the poor than
"poverty." Suppose one were to for the rich, for criminals than for
credit fully Lord Acton's famous say-noncriminals. However, there is no
ing: "Power tends to corrupt and ab-reason to believe that, except in
solute power corrupts absolutely."individual cases (which require
Those who hold power, then, couldspecific demonstration), genetics, or
be held responsible for criminal acts the environment, so compel actions
only to some degree, since they live that the actor must be excused be-
in conditions which tend to corruptcause he could not be expected to
them. Those who hold "absolute control them.
power" can not be held responsible Unless none of us is responsible
for criminal acts at all. They for wouldwhat he does, it would have to
be
be "power victims," as ghetto dwell- shown why criminals, or why
ers are "ghetto victims." Their poor criminals, are less able to con-
rapes would be political acts, andtrol their conduct and therefore
they would be political prisoners
when punished for them. Power 6. What are the psychological reasons
would become a legal excuse. "Ab- (the scientific or causal as distinguished
solute power" would be an absolutefrom the moral ones they rationalize) for
excusing the slum-dwelling robber (who
excuse.
wishes to support his habit, or girl friend)
This does not appearand to not be what (who wishes to take
the embezzler
Shuman advocates. Yet he urges his girl friend to Acapulco)? Wherein is the
that poverty (or slums) should be an embezzler's ambition, greed, wish for
prestige, sexual desire less strong, less
excuse since-like power-it leads excusable, or less predetermined by his
to crime. Shuman wants to excuse character and experience than the slum
the poor and not the wealthy and
dweller's?

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No EXCUSE FOR CRIME 137

less responsible than others. This


that only under the appropriate
conditions can human possibilities
cannot be shown by saying that they
be realized," Quinney concludes
are a product of the conditions they
live in. We all are. Nor can non- that "criminal law is an instrument
.. to maintain and perpetuate the
responsibility be claimed by show-
ing that their living conditions are social and economic order,"
existing
as though revealing something
more criminogenic than others.
interesting, or linked to the capi-
Greater temptation does not excuse
talist order. Yet the criminal law
from responsibility or make punish-
always defends the existing order
ment unjust. The law, in attempting
to mete out equal punishment,and those who hold power in it by
does
not assume equal temptation. penalizing those who violate it; and
When it is used to excuse crime the legal order never can do less
than articulate the "social and
in the way advocated by Shuman,
economic order," capitalist or so-
moral indignation about squalor,
however well justified, may have
cialist. How could it be otherwise?
the paradoxical effect of contributing
If, within a given social order, some
to high crime rates. Crime becomes people lawfully are richer or more
less odious if moral disapprovalpowerful
of than others, the criminal
poverty, slums, or ghettoes becomeslaw must inter alia defend their ad-
intense, pervasive, and exculpatoryvantages.
enough to suggest to the "under- Further, in any social order those
privileged" that they are entitled who
to are not affluent and powerful
take revenge through crime and, are more tempted to rebel, or to
when they do, to be spared punish- take what is not theirs, than those
ment. Those inclined to offenses who are-who need not take what
will perceive the reduced certainty
they already have. Hence, the bur-
and severity of punishment in such a the law falls most heavily on
den of
moral climate as a failure of society
the least privileged: the threats and
to defend its social order. Offend-
punishments of the criminal law
ers, not unreasonably, will attrib-
are meant to discourage those who
ute this failure to doubts about the
are tempted to violate it, not those
justification of the social order and to
who are not. Marxists are as right in
guilt feelings about those deprived
saying that the criminal law is ad-
by it, who are believed to be "driven
dressed disproportionately to the
to crime" and, when caught, to be
poor as Anatole France was in his
unjustly punished "political pris-
witticism: "the law in its majestic
oners.
equality forbids rich and poor alike
In my opinion, Shuman . . is wrong,
to steal bread." However, that
but Richard Quinney7 is embarass-
discovery is about as interesting
ing. After explaining "critical as the disclosure that the prohibition
philosophy" (the Frankfurt pseu- law was meant to restrain drinkers
donym of Marxism) at remarkable rather than the teetotalers who im-
length by means of pronouncements posed it. The criminal law would
such as, "a critical philosophy is be redundant if it did not address
radically critical," and "Marx held those tempted-by taste or social
position-to break it.
7. Richard Quinney, Critique of Legal
Quinney also asserts that with
Order: Crime Control in a Capitalist So- socialism "law as we know it" will
ciety (Boston: Little Brown & Co., 1974). disappear, for "the crime problem"

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138 THE ANNALS OF THE AMERICAN ACADEMY

will be solved "once society hasasre- often black as the criminals.


moved all possibility of hatred" (The victims of property crimes com
(August Bebel). Trotsky held similarmitted by blacks and of assaultive
views: under socialism crimes concerned with property,
man will be incomparably stronger,
such as robbery, are more often
white.)
more intelligent, more subtle. His body Some figures may give an
will be more harmonious, his move- idea of the gross difference. In 1970
ments more rhythmical, his voice blacks in the United States ac-
more musical; his style of life will counted for about 60 percent of
acquire a dynamic beauty. The average arrests for murder and, according
type of man will rise to the level of an the FBI's figures, for 65 percent
Aristotle, Goethe, Marx. From this the arrests for robbery.10 (Black
mountain crest, the new peaks will rise.8 constitute 12 percent of the popula

Bebel and Trotsky had no experi- tion.) The difference between blac
ence of socialism when they.wrote. and white crime rates may well b
Richard Quinney must be congratu- explained by different environ
lated for managing to preserve or ments. What has been said in the
regain his innocence, untainted by preceeding section should prevent
the available theoretical and prac- confusion of such an explanation
tical experience. Bereft ofQuinney's with a justification for individual
innocence, I do not foresee a society offenders.
-socialist or otherwise-in which However, simple comparisons of
black and white crime rates are
men will not quarrel and envy each
other, wherefore the criminal misleading.
law They ignore the fact
that a greater proportion of black
will have to restrain them and protect
the social order against thoseare whoyoung and poor, and the young
are, or feel, disadvantaged by and poor of any race display the
it. At
present the societies which claim to crime rates. In other words,
highest
be socialist seem to use legal the
pun-age- and income-related vari
ishments more than others.9 I see no ances must not be attributed to
reason for maintaining that futurerace. The age-specific crime rates of
socialist societies-whatever form blacks are only slightly higher than
those of whites on the same socio-
of socialism they adopt-will need
criminal law any less. economic level."1 The remaining
difference cannot be attributed to
racially discriminating law enforce-
BLACK CRIME RATES

Crime among blacks occurs at 10.a F. B. Graham, "Black Crime: The


Lawless Image," Harper's Magazine,
rate about 10 times higher than September 1970, p. 64.
among whites, when blacks and 11. See M. A. Forslund, "A Comparison of
whites are compared as groups. Negro and White Crime Rates," Journal of
Most crimes are intraracial. The Criminal Law, Criminology and Police
victims of violent crimes are almost Science 61 (June 1970); E. R. Moses, "Negro
and White Crime Rates," in M. E. Wolfgang
et al., eds., The Sociology of Crime and
8. Leon Trotsky, Literature and Revolu- Delinquency (New York: John Wiley & Sons,
tion, (New York: Russell & Russell, 1957). 1970); R. M. Stephenson and F. R. Scarpitti,
9. Solzhenitsyn's Gulag Archipelago is "Negro-White Differentials in Delinquency,"
only the latest illustration of this well- Journal of Research in Crime and Delin-
known phenomenon. quency 5 (July 1968).

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No EXCUSE FOR CRIME 139

ment.12 What discrimination there is


ished even faster than the difference
between white poor and nonpoor.
may lead in the opposite direction.
The difference between black and
Crime is less often reported in black
communities, and police are less white crime rates has not decreased.
inclined to arrest blacks for crimes
Clearly the crude economic explana-
tion-poverty-won't do. Possibly
against blacks then they are to arrest
whites for crimes against whites. resentment of the remaining dis-
The difference in crime rates parities has not decreased as these
should not come as a surprise. disparities have become fewer and
Blacks have been oppressed for less a considerable. Resentment, then,
long time. Many are recent migrants could have prevented the black
from rural to urban areas who have crime rates from falling as blacks
the usual difficulties ofacculturation become less deprived and the black-
faced by most immigrants. Their ac-white difference in economic and
cess to the labor market was, andsocial status become smaller.14
still is, limited because of lack of Continuing cultural differences,
training due to past discrimination. created by historical circumstances,
probably contribute to the differ-
All this has some effect on the legiti-
mate opportunities available to ence in crime rates of blacks and
them and, as importantly perhaps, whites as well; but we know too
on the ability of individuals to utilizelittle as yet to usefully describe, let
what opportunities there are. alone explain, these cultural dif-
Thus, we should expect a some-ferences. Phrases such as "the
what higher crime rate for blacks, culture of violence" merely describ
and no explanation in current eco- what is yet to be understood.1
nomic terms is needed. Such an ex- Surely crime is largely produced
planation would not be supported by
the available data. Between 1960
14. For teenagers, the economic pic-
and 1970, the medium income of ture is darker. And teenagers account for
white families went up 69 percent; much crime. One-third of black teenagers
that of black families doubled. were unemployed in 1971, against 15 per-
cent of white teenagers. The high unem-
Whereas only 3 percent of black
ployment rate probably contributed to high
families earned more than $10,000 crime arates in both cases, and the differ-
year in 1951, 13 percent did so encein
in the unemployment rate of white and
1971.13 Thus disparity between the
black teenagers contributed to the differ-
income (and the social status) of ence in crime rates. The high teenage un-
employment rates may be caused at
blacks and whites, though it re- least in part by minimum wage legislation,
mains considerable, has been dimin-which requires that teenagers be paid a
minimum, which often exceeds what their
12. See D. J. Black and A. J. Reiss, Jr., production is worth to employers. (The
"Police Control of Juveniles," American minimum wage rate for most other workers
Sociological Review 35 (January 1970); E. rarely is above what they are worth to
Green, "Race, Social Status and Criminal employers.)
Arrest," American Sociological Review 35 15. Ghettoization does not explain
(June 1970). much, for, except for black ghettoes, the
13. The figures used are in dollars of incidence of crime in ghettoes (ethnically
constant purchasing power, that is, they ex-segregated slums) is low. In Chinese or
clude the effects of inflation; they are takenJewish ghettoes there was little crime. On
from Ben J. Wattenberg and Richard M. the other hand, variances in crime rates
Scammon, "Black Progress and Liberal everywhere are associated with ethnic
differences.
Rhetoric," Commentary, April 1973, p. 35.

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140 THE ANNALS OF THE AMERICAN ACADEMY

the life styles generated by the sub- the combination that produces h
cultures characteristic of those who crime rates and explains the varian
commit it. But does this tell us more among groups. But recognition of t
than that crime is produced by a importance of poverty as a crimin
crime-producing subculture? genic condition should not lead
to neglect individual differenc
ENVIRONMENT AND PERSONALITY Enrico Ferri, unlike some of his
latter-day followers, did not neglect
What are we to conclude? Many
them. He wrote:
people, black and white, living
under the conditions ordinarily If you regard the general condition of
associated with high crime rates-misery as the sole source of criminality,
then you cannot get around the difficulty
such as poverty or inequality-dothat out of the one thousand individuals
not commit crimes, while many
living in misery from the day of their
people not living under these condi-birth to that of their death, only one
tions do. It follows that these condi- hundred or two hundred become crimi-
tions are neither necessary nor nals. ... If poverty were the sole
sufficient to cause crime. Crime rates
determining cause, one thousand out of
have risen as poverty and inequalityone thousand poor ought to become
have declined. It follows that high criminals. If only two hundred become
crime rates need not depend on criminals, while one hundred commit
more poverty or inequality and are suicide, one hundred end as maniacs,
the other six hundred remain honest in
not remedied by less. More resent-
their social condition, then poverty
ment may increase crime rates even
alone is not sufficient to explain crim-
when there is less poverty-but inality.17
resentment is hard to measure and
may increase with improving condi-
tions, as was pointed out by Alexis de THE LEGAL AND THE
Tocqueville.16 SOCIAL APPROACH
Since the incidence of crime
Surely it is futile to contrast en-
among the poor is higher than vironmental
among (social) with individual
the nonpoor, it is quite likely that
(psychological) causation, as though
when combined with other ingredi-
they were mutually exclusive alter-
ents-not always easily discerned-
natives. Instead, we might ask in
poverty and inequality do produce
quantitative terms:
high crime rates, probably by affec-
ting motivations and temptations. 1. How much of the variance in
Thus, poverty may be an important crime rates-among social groups,
element-though neither indispen- or between two time periods-is
sable nor sufficient by itself-in controlled by specific differences in
social conditions?
16. Democracy in America. For example: 2. Which of these (a) can be
changed; (b) at what cost, monetary
"It is natural that the love of equality should or otherwise?
constantly increase together with equality 3. At what cost can we then re-
itself, and that it should grow by what it
feeds on .. ." duce the crime rate in general, or
". .. The mere fact that certain abuses have
been remedied draws attention to the others 17. Enrico Ferri, The Positive School of
and they now appear more galling; peopleCriminology, ed. Stanley E. Grupp (Pitts-
may suffer less, but their sensibility is burgh: University of Pittsburgh Press, 1968),
exacerbated . . " p. 60.

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No EXCUSE FOR CRIME 141

the variance, by changing social


meant public urinals. But the
conditions? What specific social
principle applies to any change in
change is likely to bring about what the social or physical environment,
specific change in crime rates and andin the questions it poses are al-
variances? ways: (1) What is the ratio of the cost
To illustrate: if we assume that X of the change in social conditions to
the benefit (the reduction in crime
percent of the variance between
black and white crime rates is ex-
rates) compared to the ratio of a
change in other variables (for ex-
plained by the lower employment
ample, expenditures on police;
rates of black males, then we might
higher or more regular punishments)
be able to predict that a rise of X
to the benefit (the reduction in crime
percent in the employment rate of
black males would lead to a decline
rates)? (2) Given these ratios, which
change is preferable in view of
of X percent in the crime rate or other
in merits or demerits?
the variance. There are all kinds of
Parking violations can be reduced
pitfalls in such a simplified model.
by better policing, higher fines, and
Employment rates, for instance,
more public garages. Very high fines
are determined by a variety of fac-
would help, but may not be toler-
tors. Richard Cloward came to grief
able. More public garages will help,
by assuming that employment rates
but may be too costly. Without some
are determined exclusively by em-
punishment for violation, there
ployment opportunities.18
would be no incentive to use public
Still, in the apt words of Enrico
garages, and without some legiti-
Ferri: "Certain discreet shelters
mate opportunity, it is likely that
arranged in convenient placesthe con-
law will be violated unless
tribute more to the cleanliness of
punishments are extremely severe
cities than fines or arrests."19 Ferri and certain. The alteratives-"im-
prove social conditions" and "in-
18. See Daniel Patrick Moynihan's Maxi- crease punishment"-are not mutu-
mum Feasible Misunderstanding (New York:
ally exclusive. They are cumulative.
The Free Press, 1969) for an analysis of
these pitfalls. The question is, which combination
19. Enrico Ferri, Criminal Sociology promises the greatest benefits at the
(New York: Agathon Press, Inc., 1917), p. 24.least cost.

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