SOME LEGAL DEFINITIONS
Legally, a crime is an act made punishable by law. A criminal is one who has committed such a legally forbidden act. Yet there are other criteria which determine whether a person may be dealt with as a criminal.
1. Regardless of his act, he must be of competent age. Under English common law a child under seven could not commit a crime because he was held not capable of feeling a sense of guilt
– and so was not responsible. In American states the age of criminal responsibility is fixed by statute or constitutionally considerably above the common law limit. Very young children may of course be dealt with in juvenile courts. They may be punished as well as treated constructively under the faction that the court acts in loco parentis (as a parent would act) and in the best interests of the child.
2. Criminal acts must also be voluntary and engaged in without compulsion. Compulsion as defined by courts must be evident and immediately related to a particular criminal act. Impulsion towards a life of crime may have extended over a long period of time in the form of the influence of parents, associates, or conditions. But such indirect influences of the past, however compelling will not be recognized in court as destroying that voluntary nature of acts which is requisite to criminal behavior.
3. Especially in the case of serious crimes, the criminal must be shown to have had criminal intent: he must have meant to do wrong. Usually criminal intent is tested in terms of his knowledge of right and wrong and of the nature and consequences of his behavior. If it can be shown that a man who killed another did not know that it is wrong to kill or that death may result if one points a loaded gun at another and pulls the trigger, he will be judged irresponsible, being without mens rea. Though in the case of some sample crimes, like running a stop light, the question of intent will not be raised, intent must be present to constitute most serious crimes. A wrongful motive need not be shown. A motive is the reason for crime; it is the subjective aspect of the causation of crime. Bigamy is no less a crime when the accused is actuated by religious motives, and euthanasia, the killing at the request of or for the benefit of the killed, is murder. On the other hand, a man who, intending to make hog feed, produced illicit corn whiskey, was held not guilty of crime.
4. Our criminal law also often recognizes degree of intent as necessary to constitute particular crimes. Thus to carry a heavy penalty, an assault may have so be shown to have been perpetrated “maliciously” or “wantonly,” or a personal injury to have resulted from negligence.
* Donald R. Taft and Ralph W. England, Criminology 3-17 (1964).
5. Finally, to constitute a crime an act must be classed legally as an injury to the state and not merely as a private injury, or tort. In ancient societies many acts now defined as crimes were considered only private injuries to be avenged by the injured party or by his family or friends. But as society became more and more complex, a large number of acts once considered torts became crimes. It is indeed increasingly difficult to discover acts without general social consequences. We still have a vast number of injuries dealt with through private suit under the civil law, in which the court acts as the arbitrator between the contestants and awards damages. Some offenses may be tried either under the civil or the criminal law. We shall later discuss white-collar crimes, which is usually tried under civil procedure but may be tried as crime. In the United States, with its puritanical heritage, there has been a tendency to define as crimes many forms of personal behavior which on the European continent are rarely treated as crimes. That tendency has created the problem of unenforceable law and has set the stage for serious rackets created when satisfactions forbidden by law, such as gambling or prostitution, are nevertheless in wide demand by at least a large minority of the people.
THE SOCIAL VIEWPOINT
From the social point of view, the legal definition of crime may be less important than other considerations. Two aspects of the social view of injuries and crimes may be noted.
1. Injury acts are defined by group mores, either derived from the past or from the more current opinions of the people or of dominant subgroups which set patterns, define the moral code and award status to those who keep the codes and deny it to those who do not. Criminal law has been much influenced by these group definitions of morals but is not synonymous with them. Socially disapproved acts may be looked upon as immoral, sinful, inconventional, or criminal. Tested by the awarding of social status, it is not even clear that acts made punishable at law are held the most serious types of social injuries. Fornication is traditionally an immoral act, but it is punishable as crime in only something like half of the states and actually punished in a very small percentage of cases. On the other hand, the white-collar crimes of businessmen are made punishable as crimes at law, and yet those who indulge in false advertising or gain monopoly advantages over others usually do not lose status in their social groups. As a general label, the term “unconventional” is less damning than the term “criminal.” But many a hostess might prefer to invite to her party a man who had a past record for some forms of criminal behavior, rather than one who, though with a clean crime record, nevertheless solves his food indecorously into his mouth. A man without church affiliations may laugh if he be called a sinner, but he who cherishes his membership in an orthodox religious group will cringe when so labeled. Thus, from the societal viewpoint the seriousness of acts is defined by their effects upon social status. When one discovers the seriousness of some noncriminal acts, he gains perspective. He will be less ready to generalize that all criminals are our most dangerous citizens.
2. Secondly, in our traditional criminal law, a criminal is one who in the past committed, generally with evil intentions, an act made punishable by law. From the societal viewpoint we are more concerned to protect society against future acts than to requite the criminal for past acts.
The concern is not with past wickedness but rather with possible future dangerousness. Of course the social definition does not neglect a man’s past behavior, since past behavior may suggest his possible future behavior. But socially the future is always the major consideration. From the repeat societal viewpoint the purpose of punishment is not to balance accounts or to take vengeance upon a criminal, but to assure that he will not repeat his crimes. Punishment will be used when it is the only way to prevent repetition or when it will deter others from committing crimes. If future crime can be prevented through constructive treatment without encouraging criminal acts by other, it is both more effective and more socially satisfying than is punishment.
It is a nice question how far a state may shift to this emphasis on the future. Actually every constructive program, such as probation or parole, and every crime prevention program implies some concern over the future. Some states are successfully using paid specialists to estimate, on the basis of past records, the relative possibilities of different types of parolees repeating if they are released. Criminologists are in general agreement on the soundness of the trend toward concern for the future with its emphasis on the individualization of treatment.
Yet, if this trend is to succeed we must also be aware of difficulties, needs and dangers involved. (1) We need increased knowledge of the causes of crime. (2) Criminology is not opposed to punishment per se. When the changes needed in the lives of criminals are known, it does not follow that their lives may be adequately controlled to bring these changes about. John may need a new wife, but where is the lady willing to take the chance? Jack would be a safe risk if he could change his residence from slum to avenue, but the change is too costly. Jim will succeed if he can be employed at a satisfying job and if he is not handed because of his past record, but these needs are not easy to bring about. (3) Too great control over the future of our citizens is inconsistent with democracy and smacks a bit of authoritarianism. Such control has been most complete in totalitarian states. We cannot push men about like pawns on a chessboard without endangering liberties which may be held more precious than the absence of crime. (4) Much of the general public and many influential groups have not yet accepted the validity of concern for the future and the desirability of constructive aid to criminals. The public still relies principally upon deterrent punishment. Moreover, the typical criminal himself accepts the traditional view and defines justice as equal treatment of men for the same acts, rather than in terms of an estimate of their future needs and behavior.
The principle of concern over future dangerousness appears to be sound, and most criminologists are eager to see the difficulties named overcome. To this end, indeterminate sentence laws, which leave the nature of punishment or treatment open, to be determined by administrative authorities after thorough study of each case, are advocated and are already in use. Indeed, the individualization of treatment of criminals has become the earmark of effective effort to protect society against crime. The word “individualization”, however, should not be taken as
meaning treatment as an individual, for the use of groups’ methods is increasingly proving its value, and the delinquent is seen as very largely a group product.
The social conception of the nature of the criminal implies less concern with his intent as a measure of his wickedness and less search for responsibility. We are, of course, concerned with intent in the sense of the attitude of the criminal. A man who meant to commit a crime may continue to do so as long as his antisocial attitude remains. But intent may be no index of dangerousness. Those who habitually drive recklessly without intending to hit anyone are often more dangerous than men who deliberately and intentionally commit some kinds of crime. Most of the legally insane are not dangerous but pitiably diseased, but some few with delusions of persecution but without antisocial intent are extremely dangerous. Professional killers are rare, but they are clearly greatly to be feared. Typical murderers, however—public opinion to the contrary notwithstanding—are rarely dangerous in the sense of being likely to repeat their acts. Murder usually results from stresses and strains which are not often repeated in the life of one who murders. A robber or a forger, on the other hand, has often lived under social conditions which make change of attitudes and behavior difficult to bring about. That some of our most feared criminals are least often repeaters is borne out by statistics of parole.
Similarly, either the nature of a man’s personality or the nature of his social relations may define him as a dangerous person, though he has committed no crime.
NATURE AND SCOPE OF CRIMINOLOGY
The term “criminology” is used both in a general and special sense. In its broadest sense criminology is the study (not yet the complete science) which includes all the subject matter necessary to the understanding and prevention of crime and to the development of law, together with the punishment or treatment of delinquents and criminals. In its narrower sense criminology is simply the study which attempts to explain crime, to find our “how they get that away.” If this latter narrower definition is adopted, one must recognize related fields, including penology, concerned with the treatment of adult criminals, crime detection, the treatment of juvenile delinquents, and the prevention of crime. The treatment of delinquency and crime cannot be wholly separated from their explanation, since one of the reasons for crime and for its continuance into adult life is the damage done by ineffective treatment both of juveniles and adults. Ultimately we shall hope to show that both crime and the treatment of crime are parts of dynamic processes of social relations, crime evoking punishment and other reactions and these reactions in turn cooking reactions of criminals as they are deterred, “reformed,” or stimulated to further crime.
If any science is to explain any kind of phenomena consistently, these phenomena must be reasonably homogenous. Criminology as a behavioral science or study faces an almost unsolvable difficultly because of the extreme diversity of types of behavior our legislators have seen fit to make punishable as crimes. To mention but a few of these types, does it seem logical that we should be able to explain in terms of a common theory behavior as diverse as the running of stop lights, the raping of women, robbery, huge racketeering syndicates, treason, murder, and the white-collar crimes of some businessmen? Not all of these crimes express the same attitudes of mind, not even a universal consciously antisocial attitude. Not all are conflict behavior, or exploitative behavior, or either wholly rational or wholly emotional behavior.
Facing this dilemma, criminologists have attempted various solutions. Valuable research has concentrated its attention on particular kinds of crime, such as professional thieving, embezzlement, murder, sex crime and white-collar crime. Cressey has gone further and believes he has arrived at sociologically meaningful subdivisions by isolating types of embezzlement. Cressery’s plan would seem to lead us to theories as to the causes of specific crimes, rather than to any general theory of crime.
Other criminologists, such as E. H. Sutherland, have tried to discover processes or relationships which will explain all crime, in spite of its great variety. Thus we have theories of social disorganization and differential association, theories of delayed maturation, theories of economic exploitation, theories of anomie or normlessness, theories of subgroup influence, and so forth.. But we shall find that it seems that not all crime can be explained in terms of any given social process or relationship.
Very many criminologists have given much of the effort to find a single theory explaining crime without having abandoned the effort to discover why men commit crime. Starting with evidence derived from case studies and many other sources, they list factors found in the life processes of criminals. They are able to determine fairly well the interrelationship of these factors in individual cases. They then find particular factors which often repeat themselves in many cases, such, for example, as gang membership, lack of status in constructive groups, tensions in homes, and sense of failure in competition. Discovery of such single repeating factors does not prove them causes of crime, since the meaning of any life experience may be different for one criminal than for another. This is because one factor or experience is, in different cases, combined with different accompanying factors which give the total gestalt and meaning which express themselves in criminal behavior. However, it is very significant when we find clusters of factors repeating themselves in many cases. The multifactor approach does seem to meet the dilemma of the criminologist in considerable measure. A large proportion of children in our type of society whose fathers have deserted the home, who have lived in city slums, who have experienced a sense of failure in competitive relations, who have lost status in constructive groups and joined juvenile gangs, who have come to believe that everyone has a racket, and whose early misbehavior has not been dealt with effectively either in the home or by schools and other social agencies—a large proportion of such children seem to appear continually in our juvenile courts, and many of them later in our adult courts. The discovery of repeated incidents of such combinations of experiences enables us to develop approximations to theories of crime. Such specific life experiences may often be shown to be by-products of the culture of our society.
THE IMPORTANCE OF CRIMINOLOGY
Interest in the study of criminology is of course partly due to recognition of the costliness of crime already mentioned. Estimates of the cost of crime in the United States some years ago sometimes ran as high as $18 billion a year. They would probably run substantially higher today. But there seems little value in attempting even to guess at that cost, since the most serious costs cannot be measured in dollars and cents. Moreover, if such an effort were to include an assessment of the cost of white-collar crime and of exploitation not defined as crime but similar in nature, the figure would be enormously increased. The value of personal injuries defies calculation even though it has to be decided by our courts. The psychological cost seen in fear of crime, worry over unguarded property, fear for personal security, the embittering effect of hatred and suspicion of one citizen for another in a society where mutual confidence, respect, and cooperation are so sorely needed—such costs are indeed great and incalculable.
Note should also be taken of sentimental interest in the crime problem. Fear, desire for revenge, a certain fascination, and a morbid interest either in the victim or the perpetrator of crime, such emotions help explain the prominence given to crime in the press and on television programs and even the large registrations in some college courses in criminology. It has been somewhat extravagantly said that morbid interest in crime express unconscious desire to be criminals—a desire to throw off the restraints of civilized existence. It is clear that sentimental interest in crime, whether taking the form of negative hate or positive morbid sympathy, is not what is needed for the objective understanding and prevention of crime, and that its prevalence may be listed as a factor in the causation of crime.
When combined with understanding and a balanced consideration of all the values involved, interest in the criminal is essential to the explanation of crime and to intelligent protection against it. No child enters life as a criminal. The attempt to unravel the processes by which what women call a “perfectly adorable baby” is wrapped and twisted by life’s experiences into the personality of a calculating robber, burglar, kidnapper, or a Hitler, is a fascinating task which enlists the interest and challenges the intelligence of the criminologist.
This interest is enhanced by the discovery of the wide variety of human traits which the criminal possesses and the wide variety of types of which the criminal class is composed. Paradoxical though it sounds, one may hardly even describe criminals as a class as antisocial. Their criminal acts are indeed by definition antisocial, and no one would minimize the seriousness of some of them. Yet their criminal behavior on investigation is often found to be but one aspect of their total behavior. A typical prison population is largely made up of defeated men, overcome with apathy. Uninformed people are often astonished to discover that some prisoners love dogs, are fond of children, or will fight bravely for a cause. One finds, of course, morose and sullen specimens so soured by the consciousness that their behavior is despised, and by absence of genuine friendships, that they seem to be devoid of every human or kindly trait. But such are the exception. The senior writer once knew a forger with 35 years’ experience who had served eight prison sentences but whom he would have trusted with a loan of $1,000. Robbers may be generous, murderers kindly, and prostitutes on occasion sympathetic. On the other hand, stress on the humanity of criminals may well be exaggerated. (The fascination of the criminal personality for the student lies rather in the fact that study shows him to be even in his most ugly characteristics a product of life’s experiences.) As the student in criminology turns back the pages of such a life, as he would turn back the pages of a book, from the moment of the last terrible crime toward its beginning, sooner or later, if his analysis is complete, he finds an unsoiled page. The satisfaction of thus coming to understand life’s failure is one of the fascinating rewards of the criminologist.
There are many types of criminals, but there is no criminal type. The farm hand of low intelligence who stumbles into delinquency literally not knowing how it happened is a common type which rarely “makes”to the newspapers. The young city gangster, who has graduated from a juvenile gang far more naturally than he ever graduated from school, is a type differing radically from the farm hand. The pampered child of the rich, the kidnapper, the drunken sot, the brains of the underworld, the bank robber, the embezzler, the professional killer, the drug addict, the young girl sex delinquent – none of these are true types, because they vary so much within their groups. Moreover, more varied than the types of crime they commit are the roads by which they have entered crime. An understanding of the road to failure is of as great interest as is the story of the road to fame.
The study of criminology is also background for a profession and an opportunity for social service. Unfortunately, the difficult task of remaking character is at times entrusted to untrained political appointees, but not always. Police staffs, lawyers, prosecuting attorneys, judges and jurors, probation officers, parole agents and members of parole boards, wardens and guards, statisticians, detectives, and a growing list of technically trained specialists, including medical men, psychologists, sociologists, social workers, psychiatrist, educators, directors of prison industries, recreational leaders – these and others constitute personnel who need training which includes a knowledge of criminology.
Some would say that the chief value of criminology to the student is not knowledge of crime but a positive or naturalistic philosophy of life to be derived from it. The reader must decide for himself, as he proceeds, first whether that philosophy is true, and secondly whether it makes for human weal or woe. In this context we might mention that there are two extreme philosophies with reference to the explanation of human behavior. At one extreme is the position that human behavior is essentially unpredictable because man is free to choose the course he will pursue. This view conceives of the offender as choosing to be social or antisocial, criminal or noncriminal. Its proponents go through life classifying people in accordance with their behavior as “sheep” or “goats.” The line between the two categories is conceived of as easily drawn and basically significant. The explanation of crime in terms of this philosophy is simple, because it is not pushed beyond the fact of bad choices; since the choices have no causes, they exist in their own right and are not products. From this viewpoint the task of preventing crime consists in the apprehension of the “goats” (criminals) and in showing them that bad choices are costly. From this viewpoint also, justice consists in requiting the doers of bad deeds in proportion to the badness of their acts, and every crime has its just and proportional punishment.
The opposite philosophy is equally concerned over the danger of crime. It implies equal willingness to punish when, and only when, punishment seems the only way to protect society. It conceives of crime and the criminal, however, as products. To the determinist the prevention of crime must always consist in creating conditions which will make for socially useful behavior as surely as different conditions produce crime. To him punishment as a process of balancing accounts with criminal is futile, though pain as a method of influencing behavior is useful when it is the most efficient means of social defense and when the end is worth the cost of punishment. Criminology in conjunction with other sciences of behavior at least tends towards a deterministic position. In so doing it creates many problems, but it also relieves us of the rational basis for praise, blame, hatred, and remorse. If such a philosophy is desirable, it is a chief argument for the study of criminology.