Definitions of Crime and Approaches to Punishment

Legal definitions of crime and our approaches to punishment have changed over time in response to changing moral views and convictions about justice. In this essay I will argue that criminal perspectives are continuously changing with time, that these changes come as a result of changes in society, and that these changes lead to a change in the perception of the fundamental nature of justice which in turn has an impact on law and approaches to punishment.

The dominant criminal perspective is continuously changing because new events always have an impact on our moral views and fundamental conceptions of justice. This can be proven by analyzing the past and showing that important economic and political developments as well as historical events and situations have led to the transition from one criminal perspective to another.

Demonology is the oldest known perspective on deviance. It is based on the idea of supernatural powers and the belief that humans are constantly torn between forces of good and evil. In this ideology, people do not choose deviance of their own accord, but instead succumb to the influence of evil through temptation or possession. “Each act of sin or deviance is also a transgression against God,” which means that every act of deviance is also considered an act against the whole order of nature. This is an important aspect of demonology because it links the interests of everyone together meaning that a crime not only affects the victim, but all of humanity.

According to Durkheim, in “societies characterized by mechanical solidarity, social cohesion was based upon likeness and similarities among individuals in society, and largely dependant on common rituals and routines” . Such a society would be characterized by severe repressive law because the individuals would share a strong common morality and feel that each crime greatly offended them. Trial by ordeal was the common method used to determine innocence or guilt in the demonic era. This would consist of torturing the accused with the belief that “God fortified the innocent to preserve during the ordeal of their diagnosis” . Although this method may seem very extreme and inhumane to people today, at the time it was practiced people believed that “there was little profit in preserving the body at the expense of the soul” .

The demonic criminal perspective reflects strong common morality which is characteristic of the social organization at that time. The severe punishment is the method of preserving the strong morality.

In the 18th century during the Age of Enlightenment, “changes in the structure of the European population disrupted the community-based strategies of social control that were associated with the demonic period” . The population of many countries doubled or even tripled within a short period of time and because of industrialization people were concentrated densely in major cities rather than dispersed across the land. “As density increases it becomes more likely that people who meet one another will be anonymous strangers. This anonymity increases the potential for deviance in that it loosens bonds of informal control which people experience when in the presence if well-known others” .

The classical perspective began with individualization which is characteristic of a larger population. With larger communities, strong common morality starts to disappear because individuals no longer feel as deeply connected with each of their neighbors in society. Different values, opinions and beliefs start to characterize different groups of people rather than society as a whole which means that common morality is weakened. Certain crimes no longer cause an outrage among all members of society which means that severe punishment begins to loose support and an “attempt to reform the legal system and to protect the accused against harsh and arbitrary action on the part of the state” gains support.

Individualization along with industrialization leads to specialization which creates the notion of free will seeing as people have more choice of profession and those in different professions gain different ideas and beliefs. The idea of free will then leads classical thinkers such as Bentham to “place emphasis on the crime, not the criminal. Bentham was much more concerned with the consequences of the act rather than the motivation for the act” because if people choose to commit a crime of their own free will, then they should be punished for that crime to the same degree as any other offender who has committed the same crime. According to the hedonists’ psychology, humans are “rational hedonists whose actions were based on a rational assessment of the available alternatives for maximizing pleasure and minimizing pain” . Therefore, at the core of the classical perspective is the idea that rational punishment was necessary to preserve order in society by acting as a deterrent against criminal behavior. This is different from the demonic perspective where punishment was irrational and lacked varying degrees of severity for different offences because any deviant act was believed to be caused by the same evil supernatural force.

Beccaria contributes to the classical perspective and the decrease in severity of punishment by arguing that the certainty of punishment is the most effective deterrent to crime. He believes that if punishment quickly follows a crime, people will begin to associate crime and punishment together very quickly in their mind. If an individual immediately thinks of punishment when thinking of crime, they will most likely reconsider their actions. Severity of punishment may initially impact crime rates, but will eventually loose effect if there is no certainty that they will have to serve the punishment. Analyzing the tale of the Ring of Gyges helps make this clear because the majority of people agree that more crimes will be committed once there is a guarantee that there are no consequences to actions. Therefore, if this is true, then the reverse stating that there are guaranteed consequences to actions, would mean less crimes. Certainty as described by Beccaria means getting as close as possible to guaranteed consequences for deviant behavior.

Another great thinker, Thomas Hobbes, also contributed significantly with his views that without the laws set by the state, social life would not be able to function orderly. People would be in constant conflict with those who have different beliefs and interests. The classical perspective therefore came about because of changes in society which caused individuals to be seen as responsible for their actions, unlike the demonic perspective which blamed supernatural forces. Since individuals had free will, it was logical to think that if crime outweighs the cost of punishment, people will commit crimes.

As industrialization continues and technological advancements progress at an increasing rate, specialization also increases to an even greater extent. According to Durkheim, as the division of labor increases, members of society become dependent on one another since they rely on others to perform specific tasks in order to survive. This organic solidarity is characterized with “a greater concern with restitution rather than severe punishment” . That is to say, since members of society began to have an increasing dependence on one another, punishment was replaced with the desire to treat and restore criminals so that they could return to completing their tasks in society which others depended on.

As the power of science becomes apparent due to its ability to explain nearly all phenomena and to allow for technological advancements, it becomes inevitable that individuals in the “nineteenth century would attempt to apply scientific methods to the study of the criminal” . Adolphe Quetelet for example took the approach of analyzing statistics to determine crime patterns in society because he believed that the statistics could be used to determine the causes of crime. Quetelet showed that the same crimes were committed each year at approximately the same rate and therefore concluded society itself was the cause of crime and that analyzing statistics would help us learn how to organize society to lower crime rates. Marx also believes social organization, in particular the preserved inequality in the capitalist system, is the cause of crime. Marx suggests socialism as a new social organization that would eliminate crime.

Cesare Lombroso also used the scientific method for his anthropological and biological determinism. He hoped to find a method to identify individuals capable of the most violent crimes so that they can be isolated before causing harm. He studied individuals using measurements, and compiled statistics and data which could then find common traits shared amongst criminals. He also considered anthropological, social and economic data. All these new scientific methods assume that the criminal is in some way different from the non criminal and that proper analysis using the scientific method can be used to identify criminals.

The positive school of criminology becomes the dominant criminal perspective as focus is shifted away from the crime and moved towards the study of the criminal and the reasons which would lead to deviant behavior. Once positivists believe they can explain crime using the scientific method, the idea of determinism replaces free will because it becomes believed that there is a reason beyond choice which makes one individual more prone to deviance than another. The study of criminal law is replaced with the “study of the individual offender and his medical, psychological, and social characteristics” . Once again, the change in dominant criminal perspective leads to a change in the methods of punishment. With positivism, punishment is actually rejected in favor of correctional treatment. The view of justice is also shifted towards the idea of individual justice, meaning that different individuals committing the same crime should not receive the same punishment because there are other factors which must be considered beyond the action itself. Furthermore, the punishments cannot be equal because each offender will require a different therapeutic treatment. The idea of rehabilitation also leads to new correctional ideas such as probation and indeterminate sentences which are aimed at reintegrating criminals in society safely.

In conclusion, criminal perspectives change with time and these changes are the result of changes in society. The change from demonology to the classical school of thought was the result of an increase in population and industrialization which caused changes in the way individuals associate with one another and also led to increased individualism. The change to positivism was then the result of increased specialization in conjunction with the growing popularity of science which had provided solutions to complex laws of nature and helped with further technological developments. The legal definition of crime changes continuously with the different perspectives because “we do not condemn [an action] because it is a crime, but it is a crime because we condemn it” . This means that as our moral values and beliefs change, the actions which we condemn also change, therefore affecting and changing the law. Criminal punishment changes with the different criminal perspectives in order to satisfy the dominant values and beliefs. Therefore, during the demonic era, severe punishment was the response to crime in order to free the body of evil and to protect the strong morality of the society. With the classical perspective, the idea of free will requires that punishment have different levels of severity in response to different crimes. This is because the offender chooses his action, whereas in the demonic era the offender was always an evil supernatural force regardless of the crime and thus punishment varied little in severity. The classical school also shifts away from corporal punishment towards imprisonment. With positivism, it is believed that the scientific method can be used to explain criminal behavior. Punishment becomes less severe yet again because the role of penitentiary systems if shifted towards restitution and reintegration into society, rather than imprisonment alone. In the present and future, the ultimate goal is certainly to reduce or completely eliminate crime. Some theorists like Durkheim argue that crime is normal and actually has important functional roles in society. Marx on the other hand argues that socialism would eliminate inequality and therefore eliminate crime completely since high crime rates were characteristic of areas where the differences in wealth of individuals were very high. Whether crime is normal or can be eliminated, the general consensus is that crime rates are affected by changes in social organization and some theorists like Enrico Ferri have suggested state implemented preventative measures in order to reduce crime.

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References: Pfohl, Stephen. The Demonic Perspective: Otherworldly Interpretations of Deviance. Images of Social Control: A Sociological History. Pfohl, Stephen. The Classical Perspective: Deviance as Rational Hedonism Johnson, H. The Evolution of Punishment and Corrections Clarence Ray, Jeffery. The Historical Development of Criminology Vold, G. Emile Durkheim, p.103

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