class: center, top, title-slide # Classical Criminology ## SOC371 ### Chuck Lanfear ### Jan 6, 2021<br>Updated: Jan 6, 2021 --- # Overview 1. Historical Context * European Despotism * The Enlightenment * Beccaria 2. Theoretical Assumptions * Rationality * Social Contract 3. Principles of Justice * Punishment * Criminal Law 4. Criticisms --- class: inverse # Historical Context --- # 18th Century Europe A "successful despotism", characterized by: * Arbitrary power of aristocracy and church * Laws against criticism of state and religion. ??? Power of church and state was fairly absolute, and beyond question. -- * Militarized police with extensive spying ??? Secrete police were commonplace to spy and report anyone working against government... or just doing anything frowned upon by church or crown. -- * Torture widespread for compelling testimony or doling punishment * Secret accusations and presumption of guilt ??? Vicious, severe torture could be used in almost any case, including without evidence of crime--to GET evidence of crime. This could happen when someone accused another in secret, and without someone knowing what they were accused of. Interestingly presumption of innocence dates back to at least the Code of Hammurabi almost 4000 years ago But hammurabi also codified class stratification -- * Widespread corruption ??? Amidst these conditions, a social and intellectual shift was occurring. --- # The Enlightenment A philosophical and scientific response to the social context of continental Europe. ‍Grounding: Reason and empiricism * Emergence of social sciences--"a science of man" * Theories of governance: natural laws as basis of order ??? Large expansion and formalization of physical sciences seemed naturally to suggest we could do the same for the social world. Could derive natural laws as foundations for government. For many, today (and then) envisioned a return to an idealized Greece of Plato Be wary of beautiful visions of the past written by the wealthy and powerful or those they support. -- ‍Values: Liberty, progress, and religious tolerance * People should be free to do as they wish without harming others. * Response to religious conflict--Thirty Years' War ??? 1618 to 1648; Killed upwards of 8 million including 20% of Germany. Began with the Second Defenestration of Prague when Bohemian protestants threw Holy Roman Emperor Ferdinand's reps out a window then elected a king. -- ‍Goals: Reform system to protect individual rights -- ‍Results: Undermined authority of monarchy and church--French revolution * Not necessarily democratic: Plato's "philosopher king" ??? The Enlightenment thinkers were a new form of aristocracy, apart from feudal system Naturally, they felt the best people to rule the land looked a lot like them. Might ask, why was European aristocracy willing to consider reforms? There was a mix of feeling threatened by potential uprising, the popularity of the ideas, and wanting to be seen as a philosopher king. --- # Beccaria .pull-left70[ *On Crimes and Punishments* (1764) was a reformist manifesto and indictment of European justice system. ] .pull-right30[ .image-100[  ] ] ??? A response to the appalling conditions of continental Europe -- Like virtually all influential works, a conversation with other thinkers rooted in context. * Inspired by English justice system * Social contract from John Locke and Thomas Hobbes -- In turn, widely influential: * Jeremy Bentham, most directly * "Founding Fathers" of the United States ??? Elements can be found in US constitution -- Like most academic work we will study, it begins with a series of strong assumptions. Proposed policies emerge logically from these assumptions. --- class: inverse # Theoretical Assumptions --- # Human Behavior (Micro) Individuals are rationally self-interested: -- * Free Will + There are no external influences on behavior + Therefore, people are *responsible* for their behavior -- * Hedonism + People seek pleasure + People avoid pain -- * Rationality + People evaluate the consequences of all potential actions + They choose the result with highest pleasure and least pain -- .centernote[ *Individuals know what is best for them and act accordingly.* ] --- # Utilitarianism (Macro) Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong." ??? Assumptions of rationality lead to utilitarian philosophy. Key idea: The morality of an act can be determined solely by the pleasure and plain produced by it. That which produces pain is evil. Judge people and government only by consequences of action. -- *If individuals know best how to satisfy their needs and wants...* ??? What is the implication for policy? -- *... to maximize the utility of all, we should avoid restricting them.* ??? What is the problem with this? -- This breaks down if individuals maximize utility at the expense of others. *This necessitates a deal--a contract--between individuals and society* ??? What if different people derive different utility from the same (disposable) object? Redistribution is a key element of later conceptions of utilitarianism--but people quite wary of government in this period. Bentham and later John Stuart Mill built considerably on this logic--obvious flaws are likely to have been addressed (e.g. moral *rules*, tendencies vs certainties) Dostoevsky's Brothers Karamazov--is it right to sacrifice a child for the happiness of all --- # Social Contract ‍Consensus: Protect individual rights and property rights * Maximize individual utility ??? Allow people to maximize their utility but protect their rights -- The Contract: Exchange freedom to harm for protection of own rights * Punishment is *only* justified by social contract. * Montesquieu: "every punishment which does not arise from absolute necessity is tyrannical" -- No basis to restrict behavior which does not infringe on others' wellbeing. * Beccaria: Legalize suicide; abolish death penalty * Bentham: Legalize homosexual sex; grant women's suffrage ??? All behavior is utility maximizing--including perceived harm to self! It gets fuzzy when insanity enters the mix--this is irrationality Also gets fuzzy when definitions of harm are widened John Stuart Mill's response: We cannot accept offense or disagreement as forms of harm, or there is no end to what can be legally proscribed. --- class: inverse # Principles of Justice --- # Punishment Curtail severity * Severe punishments reduce utility needlessly -- Proportional severity * Crimes against property punished by fines * Imprisonment only when the crime deprives others of freedom ??? Punishment should be in proportion to the crime Issues with this? What about fining those who cannot pay--debtors prisons. How do you determine what is proportional? -- *Deterrence* not reform as goal * Just sufficiently severe to prevent crime * Make world a better place, not exact vengeance ??? Issues with this? How do we calibrate severity? How do we deal with unpunished crimes? -- ‍Goal: *Make crime the irrational choice.* ??? By making just barely overwhelming the pleasures of crime with punishment, one can prevent crime. Calibration is an eternal problem though. Particularly problematic if pleasure from an act differs for everyone. Bentham believed it was quantifiable--the felicific or hedonic calculus. But Betham was also a bit of a weird guy. At his request, his clothed skeleton and wax head are on display at University College, London. --- # Criminal Law Terms of Social Contract * Clear delineation of expectations * Written in common language ??? Terms of social contract should be clear and know to all No one should be ignorant of their social obligations -- Minimization of Law * "To prohibit an action unnecessarily increases rather than decreases crime." (Radzinowicz 9) ??? It is unreasonable to have a criminal code which is arcane --- # Administration No Ex-Post Facto Legislation * Something cannot be made retroactively illegal ??? You cannot change a contract after it is signed -- Minimal Discretion * Fully described laws and punishments * Judges only determine if a law was broken * Punishments uniform regardless of circumstances of offender ??? Judges cannot punish for uncodified behavior All crimes have specific punishments attached to them No mitigating circumstances No difference between first and repeat offenders -- Protection of Rights * Notice of charges * Guaranteed counsel * Presumption of innocence ??? Built largely off the English system Large deviation from original presumption of guilt--an accusation was sufficient for torture. --- # Crime Prevention Moral education ??? Individuals should desire and prefer higher pleasures -- Reward good behavior ??? Bolster this by rewarding seeking higher pleasures; increase the pleasure of conformity -- Punishment is last resort * Certainty, not severity, critical element for prevention ??? If one will always be caught, undue severity isn't needed, and the calculus is clear -- Little consideration for structural causes of crime ??? A starving person stealing bread; Bentham says we can justify the first-order evil (theft) but not the second (deprivation of bread from owner). --- class: inverse # Criticisms --- # Marxist Critique Reforms achieve justice only in egalitarian society -- Capitalist mode of production is unequal * Bonger: Capitalism *precipitates* crime by creating unequal access to life necessities * Capitalism *creates* selfish individualism by encouraging accumulation * Most crime will disappear under equal distribution -- Law is part of capitalist superstructure * Protects and legitimizes system * Serves the wealthy + White collar crime not punished + Poverty is criminalized + Working is enforced + Organization is legally suppressed ??? Consider that in the late 1800s through early 1900s labor strikes were put down by military or hired guns Slavery persisted deep into the 1800s in the US--facilitated capitalist gains -- .centernote[*Should strive for equality!*] --- # Feminist Critique Patriarchy * Government and law controlled by men * Has lessened in US but inequities in wages, politics, family persist -- Law reproduces patriarchy * Domestic violence is private affair, not treated seriously * Common law ruled out spousal rape * Law *maintains* status quo * Equal rights amendment prohibited unequal treatment + ... but was never ratified + 25 state-level ERAs + Race still has stricter protections than sex ??? Only ratified by 35 of needed 38 Idaho, Kentucky, Nebraska, Tennessee and South Dakota *revoked* their ratifications -- .centernote[*Should strive for equality!*] --- # Critical Race Theory Civil rights * Suppressed overt discrimination * Did not change historical legacy or social structure * Institutional discrimination survives ??? For all talk of liberty and equality, slavery lasted 100 years longer in US than Europe -- Law reproduces status quo * Hard to address institutional discrimination * Some areas of law racially biased * Agents of law enforce racial hierarchy ??? Jim Crow appeared after slavery abolished Many laws--such as zoning laws--are still tools for segregation and exclusion Drug laws and stop and frisk mainly enforced on minorities -- .centernote[*Should strive for equality!*] --- # Critical Summary Main critical viewpoints share a logic: 1. Structural problems exist + Source and form of problems differs + e.g. capitalism; patriarchy; colonialism or white supremacy -- 2. Law protects existing structure -- 3. Equality should be the goal + Vision of equality is different under each critique -- 4. Equality can be achieved only through dismantling existing structure --- class: inverse # Questions ??? Can start writing questions --- # For Next Time ### Readings: * Kauzlarich, David, and David O. Friedrichs. 2005. "Definitions of Crime." * Hemmens, Craig. 2005. "Defenses to Criminal Liability: Justifications and Excuses" ### Things to pay attention to: 1. Definitions of Crime * These matter for how we study it, and what criminality means. 2. Departures from Classical School * Context matters * Crime may not be result of rational process * External influences may exist