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Who is the Criminal?

Author(s): Paul W. Tappan


Source: American Sociological Review, Vol. 12, No. 1 (Feb., 1947), pp. 96-102
Published by: American Sociological Association
Stable URL: https://www.jstor.org/stable/2086496
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WHO IS THE CRIMINAL?*

PAUL W. TAPPAN
New York University

WHAT IS CRIME? As a lawyer-sociolo- the growth of a scientific system of hypoth-


gist, the writer finds perturbing the eses possessing universal validity.'
current confusion on this important Recent protestants against the orthodox
issue. Important because it delimits the sub- conceptions of crime and criminal are di-
ject matter of criminological investigation. A verse in their views: they unite only in their
criminologist who strives to aid in formulat- denial of the allegedly legalistic and arbi-
ing the beginnings of a science finds himself trary doctrine that those convicted under
in an increasingly equivocal position. He the criminal law are the criminals of our
studies the criminals convicted by the courts society and in promoting the confusion as
and is then confounded by the growing to the proper province of criminology. It is
clamor that he is not studying the real crim- enough here to examine briefly a few of the
inal at all, but an insignificant proportion of current schisms with a view to the difficul-
non-representative and stupid unfortunates ties at which they arrive.
who happened to have become enmeshed in
technical legal difficulties. It has become a I
fashion to maintain that the convicted popu- A number of criminologists today main-
lation is no proper category for the empirical tain that mere violation of the criminal law
research of the criminologist. Ergo, the manyis an artificial criterion of criminality, that
studies of convicts which have been con- categories set up by the law do not meet the
ducted by the orthodox, now presumably
outmoded criminologists, have no real mean- 1 The manner in which the legal definition of the
criminal is avoided by prominent sociological schol-
ing for either descriptive or scientific pur-
ars through amazingly loose, circumlocutory de-
poses. Off with the old criminologies, on scription may be instanced by this sort of defini-
with the new orientations, the new horizons! tion: "Because a collective system has social validity
This position reflects in part at least the in the eyes of each and all of those who share in

familiar suspicion and misunderstanding held it, because it is endowed with a special dignity
which merely individual systems lack altogether,
by the layman sociologist toward the law. To
individual behavior which endangers a collective
a large extent it reveals the feeling among system and threatens to harm any of its elements
social scientists that not all anti-social con- appears quite different from an aggression against
duct is proscribed by law (which is probably an individual (unless, of course, such an aggression
hurts collective values as well as individual values).
true), that not all conduct violative of the
It is not only a harmful act, but an objectively
criminal code is truly anti-social, or is not so evil act [sic!], a violation of social validity, an
to any significant extent (which is also un- offense against the superior dignity of this collective
doubtedly true). Among some students the system. . . . The best term to express the specific
opposition to the traditional definition of significance of such behavior is crime. We are aware
that in using the word in this sense, we are giving
crime as law violation arises from their desire
it a much wider significance than it has in crimi-
to discover and study wrongs which are abso- nology. But we believe that it is desirable for
lute and eternal rather than mere violations criminology to put its investigations on a broader
of a statutory and case law system which basis; for strictly speaking, it still lacks a proper
theoretic basis. . . . Legal qualifications are not
vary in time and place; this is essentially
founded on the results of previous research and not
the old metaphysical search for the law of made for the purpose of future research; therefore
nature. They consider the dynamic and they have no claim to be valid as scientific gen-
relativistic nature of law to be a barrier to eralizations-nor even as heuristic hypotheses."
Florian Znaniecki, "Social Research in Criminology,"
*Manuscript received December 2, 1946. I2 Sociology and Social Research 207, (I928).

96

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WHO IS THE CRIMINAL? 97

demands of scientists because they are of a able to research, the criminologist may be
"fortuitous nature" and do not "arise in- deluded further into assuming that there is
trinsically from the nature of the subject an absoluteness and permanence in this un-
matter."2 The validity of this contention defined category, lacking in the law. It is
must depend, of course, upon what the na- unwise for the social scientist ever to forget
ture of the subject matter is. These scholars that all standards of social normation are
suggest that, as a part of the general study relative, impermanent, variable. And that
of human behavior, criminology should con- they do not, certainly the law does not, arise
cern itself broadly with all anti-social con- out of mere fortuity or artifice.3
duct, behavior injurious to society. We take
it that anti-social conduct is essentially any II
sort of behavior which violates some social In a differing approach certain other crim-
interest. What are these social interests? inologists suggest that "conduct norms"
Which are weighty enough to merit the con- rather than either crime or anti-social con-
cern of the sociologist, to bear the odium of duct should be studied.4 There is an unques-
crime? What shall constitute a violation of tionable need to pursue the investigation of
them?-particularly where, as is so com- general conduct norms and their violation.
monly true in our complicated and unin-
It is desirable to segregate the various
tegrated society, these interests are them- classes of such norms, to determine relation-
selves in conflict? Roscoe Pound's suggestive ships between them, to understand similari-
classification of the social interests served ties and differences between them as to the
by law is valuable in a juristic framework, norms themselves, their sources, methods of
but it solves no problems for the sociologist imposition of control, and their conse-
who seeks to depart from legal standards in quences. The subject matter of this field of
search of all manner of anti-social behavior.
social control is in a regrettably primitive
However desirable may be the concept state. It will be important to discover the
of socially injurious conduct for purposes of individuals who belong within the several
general normation or abstract description, it categories of norm violators established and
does not define what is injurious. It sets no to determine then what motivations operate
standard. It does not discriminate cases, but to promote conformity or breach. So far as
merely invites the subjective value-judg- it may be determinable, we shall wish to
ments of the investigator. Until it is struc- know in what way these motivations may
turally embodied with distinct criteria or serve to insure conformity to different sets
norms-as is now the case in the legal sys-
of conduct norms, how they may overlap
tem-the notion of anti-social conduct is and reinforce the norms or conflict and
useless for purposes of research, even for the
weaken the effectiveness of the norms.
rawest empiricism. The emancipated crim- We concur in the importance of the study
inologist reasons himself into a cul de sac:
of conduct norms and their violation and,
having decided that it is footless to study
convicted offenders on the ground that this ' An instance of this broadening of the concept of
is an artificial category-though its mem- the criminal is the penchant among certain anthro-
bership is quite precisely ascertainable, he pologists to equate crime with taboo. See, especially,
must now conclude that, in his lack of stand- Bronislaw Malinowski, Crime and Custom in Sav-
age Society, (I936), and "A New Instrument for
ards to determine anti-sociality, though
the Study of Law-Especially Primitive," 5I Yale
this may be what he considers a real scien- L. J. I237, (0944). Compare William Seagle, "Primi-
tific category, its membership and its char- tive Law and Professor Malinowski," 39 American
acteristics are unascertainable. Failing to de- Anthropologist 275, (I007), and The Quest for Law,
fine anti-social behavior in any fashion suit- (Iq40). Karl Llewellyn and E. Adamson Hoebel,
The Cheyenne Way, (Iq4I) and E. Adamson
Hoebel, "Law and Anthropology," 32 Virginia L. R.
2 See, for example, Thorsten Sellin, Culture 835, (I946).
Conflict and Crime, pp. 20-21, (1938). 4Sellin, op. cit., pp. 25 ff.

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98 AMERICAN SOCIOLOGICAL REVIEW

more particularly, if we are to develop a depredations against society have been on


science of human behavior, in the need for a small scale, who have blundered into diffi-
careful researches to determine the psycho- culties with the police and courts through
logical and environmental variables which their ignorance and stupidity. The impor-
are associated etiologically with non-con- tant criminals, those who do irreparable
formity to these norms. However, the im- damage with impunity, deftly evade the
portance of the more general subject matter machinery of justice, either by remaining
of social control or "ethology" does not mean "technically" within the law or by exercis-
that the more specific study of the law- ing their intelligence, financial prowess, or
violator is non-significant. Indeed, the di- political connections in its violation. We
rection of progress in the field of social con- seek a definition of the white collar crim-
trol seems to lie largely in the observation inal and find an amazing diversity, even
and analysis of more specific types of non- among those flowing from the same pen, and
conformity to particular, specialized stand- observe that characteristically they are loose,
ards. We shall learn more by attempting to doctrinaire, and invective. When Professor
determine why some individuals take hu- Sutherland launched the term, it was ap-
man life deliberately and with premedita- plied to those individuals of upper socio-
tion, why some take property by force and economic class who violate the criminal law,
others by trick, than we shall in seeking at usually by breach of trust, in the ordinary
the start a universal formula to account for course of their business activities.5 This
any and all behavior in breach of social in- original usage accords with legal ideas of
terests. This broader knowledge of conduct crime and points moreover to the significant
norms may conceivably develop through in- and difficult problems of enforcement in the
duction, in its inevitably very generic terms, areas of business crimes, particularly where
from the empirical data derived in the study those violations are made criminal by re-
of particular sorts of violations. Too, our cent statutory enactment. From this fruitful
more specific information about the factors beginning the term has spread into vacuity,
which lie behind violations of precisely de- wide and handsome. We learn that the
fined norms will be more useful in the white collar criminal, may be the suave and
technology of social control. Where legal deceptive merchant prince or "robber baron,"
standards require change to keep step with that the existence of such crime may be
the changing requirements of a dynamic so- determined readily "in casual conversation
ciety, the sociologist may advocate-even with a representative of an occupation by
as the legal profession does-the necessary asking him, 'What crooked practices are
statutory modifications, rather than assume found in your occupation?' '6
that for sociological purposes the conduct Confusion grows as we learn from an-
he disapproves is already criminal, without other proponent of this concept that, "There
legislative, political, or judicial intervention. are various phases of white-collar criminal-
ity that touch the lives of the common man
III
almost daily. The large majority of them
Another increasingly widespread and se- are operating within the letter and spirit of
ductive movement to revolutionize the con- the law. . . ." and that "In short, greed,
cepts of crime and criminal has developed not need, lies at the basis of white-collar
around the currently fashionable dogma of crime."7 Apparently the criminal may be
"white collar crime." This is actually a
particular school among those who contend E. H. Sutherland, "Crime and Business," 217
that the criminologist should study anti- The Annals of the American Academy of Political
social behavior rather than law violation. and Social Science ii2, (1941).
"Sutherland, "White-Collar Criminality," 5
The dominant contention of the group ap-
American Sociological Review I, (1940).
pears to be that the convict classes are 7Harry Elmer Barnes and Negley K. Teeters,
merely our "petty" criminals, the few whoseNew Horizons in Criminology, pp. 42-43, (I943).

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WHO IS THE CRIMINAL? 99

law obedient but greedy; the specific qual- not tolerate a nomenclature of such loose and
ity of his crimes is far from clear. variable usage. A special hazard exists in the
Another avenue is taken in Professor employment of the term, "white collar crim-
Sutherland's more recent definition of crime inal," in that it invites individual systems
as a "legal description of an act as socially of private values to run riot in an area
injurious and legal provision of penalty for (economic ethics) where gross variation ex-
the act."8 Here Ihe has deemed the conno- ists among criminologists as well as others.
tation of his term too narrow if confined to The rebel may enjoy a veritable orgy of
violations of the criminal code; he includes delight in damning as criminal most anyone
by a slight modification conduct violative he pleases; one imagines that some experts
of any law, civil or criminal, when it is would thus consign to the criminal classes
"socially injurious." any successful capitalistic business man; the
In light of these definitions, the norma- reactionary or conservative, complacently
tive issue is pointed. Who should be con- viewing the occupational practices of the
sidered the white collar criminal? Is it the business world might find all in perfect order
merchant who, out of greed, business acumen, in this best of all possible worlds. The re-
or competitive motivations, breaches a trust sult may be fine indoctrination or catharsis
with his consumer by "puffing his wares" achieved through blustering broadsides
beyond their merits, by pricing them be- against the "existing system." It is not
yond their value, or by ordinary advertising? criminology. It is not social science. The terms
Is it he who breaks trust with his employees "unfair," "infringement," "discrimination,"
in order to keep wages down, refusing to "injury to society," and so on, employed by
permit labor organization or to bargain col- the white collar criminologists cannot, taken
lectively, and who is found guilty by a labor alone, differentiate criminal and non-criminal.
relations board of an unfair labor practice? Until refined to mean certain specific actions,
May it be the white collar worker who they are merely epithets.
breaches trust with his employers by in- Vague, omnibus concepts defining crime
efficient performance at work, by sympa- are a blight upon either a legal system or a
thetic strike or secondary boycott? Or is it system of sociology that strives to be ob-
the merchandiser who violates ethics by un- jective. They allow judge, administrator, or
der-cutting the prices of his fellow mer- -conceivably-sociologist, in an undirected,
chants? In general these acts do not violate freely operating discretion, to attribute the
the criminal law. All in some manner breach status "criminal" to any individual or class
a trust for motives which a criminologist which he conceives nefarious. This can ac-
may (or may not) disapprove for one rea- complish no desirable objective, either po-
son or another. All are within the frame- litically or sociologically.9
work of the norms of ordinary business prac-
tice. One seeks in vain for criteria to deter- 9In the province of juvenile delinquency we may
mine this white collar criminality. It is the observe already the evil that flows from this sort
of loose definition in applied sociology. In many
conduct of one who wears a white collar and
jurisdictions, under broad statutory definition of
who indulges in occupational behavior to delinquency, it has become common practice to
which some particular criminologist takes adjudicate as delinquent any child deemed to be
exception. It may easily be a term of propa- anti-social or a behavior problem. Instead of re-
quiring sound systematic proof of specific repre-
ganda. For purposes of empirical research
hensible conduct, the courts can attach to children
or objective description, what is it? the odious label of delinquent through the evalua-
Whether criminology aspires one day to tions and recommendations of over-worked, under-
become a science or a repository of reason- trained case investigators who convey to the judge
ably accurate descriptive information, it can- their hearsay testimony of neighborhood gossip and
personal predilection. Thus these vaunted "socialized
tribunals" sometimes become themselves a source
8 Sutherland, "Is 'White-Collar Crime' Crime?" of delinquent and criminal careers as they adjudge
ic American Sociological Review I32, (I945). individuals who are innocent of proven wrong to

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ioo AMERICAN SOCIOLOGICAL REVIEW

Worse than futile, it is courting disaster, Even less than the unconvicted suspect can
political, economic, and social, to promulgate those individuals be considered criminal who
a system of justice in which the individual have violated no law. Only those are crim-
may be held criminal without having com- inals who have been selected by a clear sub-
mitted a crime, defined with some precision stantive and a careful adjective law, such
by statute and case law. To describe crime as obtains in our courts. The unconvicted
the sociologist, like the lawyer-legislator, offenders of whom the criminologist may
must do more than condemn conduct de- wish to take cognizance are an important but
viation in the abstract. He must avoid defi- unselected group; it has no specific mem-
nitions predicated simply upon state of mind bership presently ascertainable. Sociologists
or social injury and determine what par- may strive, as does the legal profession, to
ticular types of deviation, in what directions, perfect measures for more complete and ac-
and to what degree, shall be considered curate ascertainment of offenders, but it is
criminal. This is exactly what the criminal futile simply to rail against a machinery of
code today attempts to do, though imper- justice which is, and to a large extent must
fectly of course. More slowly and conserva- inevitably remain, something less than en-
tively than many of us would wish: that is tirely accurate or efficient.
in the nature of legal institutions, as it is in Criminal behavior as here defined fits very
other social institutions as well. But law has nicely into the sociologists' formulations of
defined with greater clarity and precision social control. Here we find norms of con-
the conduct which is criminal than our anti- duct, comparable to the mores, but consider-
legalistic criminologists promise to do; it ably more distinct, precise, and detailed, as
has moreover promoted a stability, a se- they are fashioned through statutory and
curity and dependability of justice through case law. The agencies of this control, like
its exactness, its so-called technicalities, and the norms themselves, are more formal than
its moderation in inspecting proposals for is true in other types of control: the law de-
change. pends for its instrumentation chiefly upon
IV police, prosecutors, judges, juries, and the
Having considered the conceptions of an support of a favorable public opinion. The
innovating sociology in ascribing the terms law has for its sanctions the specifically
"crime" and "criminal," let us state here the enumerated punitive measures set up by the
juristic view: Only those are criminals who state for breach, penalties which are addi-
have been adjudicated as such by the tional to any of the sanctions which society
courts. Crime is an intentional act in viola- exerts informally against the violator of
norms which may overlap with laws. Crime
tion of the criminal law (statutory and case
law), committed without defense or excuse, is itself simply the breach of the legal norm,

and penalized by the state as a felony or mis- a violation within this particular category
demeanor. In studying the offender there can of social control; the criminal is, of course,
be no presumption that arrested, arraigned, the individual who has committed such acts
indicted, or prosecuted persons are criminals of breach.
unless they also be held guilty beyond a Much ink has been spilled on the extent
reasonable doubt of a particular offense.'0 of deterrent efficacy of the criminal law in
social control. This is a matter which is not

a depraved offender's status through an administra-


subject to demonstration in any exact and
tive determination of something they know vaguely measurable fashion, any more than one can
as anti-social conduct. See Introduction by Roscoe conclusively demonstrate the efficiency of a
Pound of Pauline V. Young, Social Treatment in
Probation and Delinquency, (1937). See also Paul a violator of the law: to assume him so would be
W. Tappan, Delinquent Girls in Court, (I947) and in derogation of our most basic political and ethical
"Treatment Without Trial," 24 Social Forces, 306, philosophies. In empirical research it would be
(I946). quite inaccurate, obviously, to study all suspects or
' The unconvicted suspect cannot be known as defendants as criminals.

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WHO IS THE CRIMINAL?

moral norm." Certainly the degree of suc- norms and sanctions deteriorate. Criminal
cess in asserting a control, legal or moral, law, crime, and the criminal become more
will vary with the particular norm itself, its significant subjects of sociological inquiry,
instrumentation, the subject individuals, the therefore, as we strive to describe, under-
time, the place, and the sanctions. The effi- stand, and control the uniformities and var-
ciency of legal control is sometimes confused iability in culture.
by the fact that, in the common overlapping We consider that the "white collar crim-
of crimes (particularly those mala in se) inal," the violator of conduct norms, and the
with moral standards, the norms and sanc- anti-social personality are not criminal in
tions of each may operate in mutual sup- any sense meaningful to the social scientist
port to produce conformity. Moreover, unless he has violated a criminal statute.
mere breach of norm is no evidence of the We cannot know him as such unless he has
general failure of a social control system, been properly convicted. He may be a boor,
but indication rather of the need for con- a sinner, a moral leper, or the devil incar-
trol. Thus the occurrence of theft and hom- nate, but he does not become a criminal
icide does not mean that the law is in- through sociological name-calling unless po-
effective, for one cannot tell how frequently litically constituted authority says he is. It
such acts might occur in the absence of law is footless for the sociologist to confuse issues
and penal sanction. Where such acts are of definition, normation, etiology, sanction,
avoided, one may not appraise the relative agency and social effects by saying one
efficacy of law and mores in prevention. thing and meaning another.
When they occur, one cannot apportion
blame, either in the individual case or in V

general, to failures of the legal and moral To conclude, we reiterate and defend the
systems. The individual in society does un- contention that crime, as legally defined, is
doubtedly conduct himself in reference to a sociologically significant province of study.
legal requirements. Living "beyond the The view that it is not appears to be based
law" has a quality independent of being upon either of two premises: i. that of-
non-conventional, immoral, sinful. Mr. Jus- fenders convicted under the criminal law
tice Holmes has shown that the "bad man are not representative of all criminals and
of the law"-those who become our crim- 2. that criminal law violation (and, there-
inals-are motivated in part by disrespect fore, the criminal himself) is not significant
for the law or, at the least, are inadequately to the sociologist because it is composed of
restrained by its taboos. a set of legal, non-sociological categories ir-
From introspection and from objective relevant to the understanding of group be-
analysis of criminal histories one can not havior and/or social control. Through these
but accept as axiomatic the thesis that the contentions to invalidate the traditional and
norms of criminal law and its sanctions do legal frame of reference adopted by the
exert some measure of effective control over criminologist, several considerations, briefly
human behavior; that this control is in- enumerated below, must be met.
creased by moral, conventional, and tradi- i. Convicted criminals as a sample of
tional norms; and that the effectiveness of law violators:
control norms is variable. It seems a fair in- a. Adjudicated offenders represent the
ference from urban investigations that in closest possible approximation to those who
our contemporary mass society, the legal have in fact violated the law, carefully se-
system is becoming increasingly important lected by the sieving of the due process of
in constraining behavior as primary group law; no other province of social control
attempts to ascertain the breach of norms
'For a detailed consideration of the efficacy of
with such rigor and precision.
legal norms, see Jerome Michael and Herbert
Wechsler, "A Rationale of the Law of Homicide," b. It is as futile to contend that this
37 Columbia Law Review 70I, 126i, (I937). group should not be studied on the grounds

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I02 AMERICAN SOCIOLOGICAL REVIEW

that it is incomplete or non-representative as norms; as an important characteristic of


it would be to maintain that psychology law, such lag does not reduce the relevance
should terminate its description, analysis, of law as a province of sociological inquiry.
diagnosis, and treatment of deviants who From a detached sociological view, the sig-
cannot be completely representative as se- nificant thing is not the absolute goodness
lected. Convicted persons are nearly all or badness of the norms but the fact that
criminals. They offer large and varied these norms do control behavior. The soci-
samples of all types; their origins, traits, dy- ologist is interested in the results of such
namics of development, and treatment in- control, the correlates of violation, and in
fluences can be studied profitably for pur- the lags themselves.
poses of description, understanding, and con- d. Upon breach of these legal (and so-
trol. To be sure, they are not necessarily cial) norms, the refractory are treated of-
representative of all offenders; if charac- ficially in punitive and/or rehabilitative
teristics observed among them are imputed ways, not for being generally anti-social,
to law violators generally, it must be with immoral, unconventional, or bad, but for
the qualification implied by the selective violation of the specific legal norms of con-
processes of discovery and adjudication. trol.
c. Convicted criminals are important as e. Law becomes the peculiarly important
a sociological category, furthermore, in that and ultimate pressure toward conformity to
they have been exposed and respond to the minimum standards of conduct deemed es-
influences of court contact, official punitive sential to group welfare as other systems of
treatment, and public stigma as convicts. norms and mechanics of control deteriorate.
2. The relevance of violation of the crim- f. Criminals, therefore, are a sociologically
inal law: distinct group of violators of specific legal
a. The criminal law establishes substan- norms, subjected to official state treatment.
tive norms of behavior, standards more clear They and the non-criminals respond, though
cut, specific, and detailed than the norms in differentially of course, to the standards,
any other category of social controls. threats, and correctional devices established
b. The behavior prohibited has been con- in this system of social control.
sidered significantly in derogation of group g. The norms, their violation, the me-
welfare by deliberative and representative chanics of dealing with breach constitute
assembly, formally constituted for the pur- major provinces of legal sociology. They are
pose of establishing such norms; nowhere basic to the theoretical framework of so-
else in the field of social control is there ciological criminology.12
directed a comparable rational effort to elab- "2For other expositions of this view, see articles
orate standards conforming to the predom- by Jerome Hall: "Prolegomena to a Science of
inant needs, desires, and interests of the Criminal Law," 89 University of Pennsylvania Law
community. Review 570, (I94I); "Criminology and a Modern
Penal Code," 27 Journal of Criminal Law and
c. There are legislative and juridical lags Criminology 4, (May-June, I936); "Criminology,"
which reduce the social value of the legal Twentieth Century Sociology, pp. 342-65, (I945).

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