Cognitive Theories of Crime involve the development of people's ability to make judgments. Psychologists and criminologists have detailed a variety of theories of developmental psychology and moral psychology and its relationship to crime. Jean Piaget suggested that there are two stages in the cognitive development of judgment. The first stage involves the "acceptance of rules as absolute." For instance, in order for a child to develop judgment, he or she must realize from a young age that the rules his or her parents make are unchanging in nature and apply directly to them. The second step describes the "spirit of law." This is basically a realization that the law has consequences, that if one acts counter to the law, it will affect them. Lawrence Kohlberg also researched the development of moral judgment, describing six steps, which were then divided into three stages: "pre-conventional," "conventional," and "post-conventional." These stages represent Kohlberg's stages of moral development. In the "pre-conventional stage," the first two steps, the goals in life are to maximize pleasure and minimize pain, and the desire to gain reward without punishments or consequences. Kohlberg suggested that most criminals are stuck in this stage. The next stage, the "conventional stage," involves people following the rules absolutely in order to gain social approval and respect. People feel empathy and guilt in this stage, and according to Kohlberg, most people are in this stage. The final stage, the "post-conventional stage," involves people judging rules according to their own values along with a sense of there being a universal justice. Most people do not reach this stage.
The Functionalist Theory of Crime involves a macro level theory of crime. Functionalism assumes that: society is a living organism, comprised of social institutions that overlap, and that social institutions work to keep society in order. Emile Durkheim suggested that crime is functional because it has always existed in society, making crime a normal part of society. Crime serves as a guide for acceptable social behavior, and it creates consensus among people in a society on what is deviant. Durkheim also suggested that deviance brings social change, which is a positive and needed aspect in all societies. Too much crime, however, results in weakened social consensus and social order, leading to anomie, a state of normlessness, which no society can survive for long.
The Social Disorganization Theory of Crime is an ecological perspective on crime, dealing with places, not people, as the reason crime happens: where one lives is causal to criminality; the physical and social conditions a person is surrounded by create crime. The assumption of this theory is that people are inherently good, but are changed by their environment. According to this theory, five types of change are most responsible for criminality. They are: urbanization, migration, immigration, industrialization, and technological change. If any one of these aspects occurs rapidly, it breaks down social control and social bonds, creating disorganization.
The Strain Theory of Crime proposes that crime occurs when a person is unable to attain their goals through legitimate means. Robert K. Merton described strain by showing different ways an individual can meet their goals. Conformity is the method by which most people achieve what they want: a person conforms to the ideals and values of mainstream society. Merton said that criminals use "innovation" to achieve their goals, which means that they agree with the goals that mainstream society offers, but seek or require different means to achieve them. He also identified other ways in which individuals achieve their own goals, including "retreatism," "rebellion," and "ritualism." Strain theory was modified by Robert Agnew (2005) when he said that it was too tied to social class and cultural variables and needed to take into account a more universal perspective of crime. Three components of Agnew's modification of strain theory are: failure to achieve positive goals, loss of some positively valued stimuli, and presentation of negative stimuli. He suggested that these cause strain between a person and the society they live in, resulting in a negative affective state, which may lead to criminal activity.
Crime as a Function of Family and Community
It has long been suggested that a core family is a valuable preventative measure to crime. However, the relationship between criminal activity and a strong family has a number of different dimensions.
"Collective efficacy" in neighborhoods is often thought of as the foundations for preventing violent crime in communities. Collective efficacy holds that there is social cohesion among neighbors, common values of neighborhood residents, an informal social control, and a willingness to regulate crime or deviance amongst neighbors. This collective efficacy requires the presence of strong families, each member committed to each other and their neighbors.
The studies of Mary Pattillo-McCoy (2000) examined collective efficacy, but brought a startling new revelation to light. Her study on Groveland (a middle class typically African American neighborhood in Chicago), concluded that collective efficacy can lead to a unique pattern of violent crime. Groveland had a strong collective efficacy; however, gang violence was also prevalent. The neighborhood gang members participated in violent activity, but since they were involved in the collective efficacy, they kept violent crime out of their home neighborhood. They did not want their families or friends put in harm's way due to their gang activity. This unique take on collective efficacy shows how strong family and neighborhood bonds can foster, as well as prevent, violent crime.
Travis Hirschi (1969) suggested an idea called "social bond theory." The underlying idea of this theory is that the less attachment a person has to society, the more likely they are to participate in activities that harm society or go against mainstream social values. Hirschi contended that attachment to friends and family, commitment to family and career, involvement in education and family, and belief in the law and morality will ensure that a person will not undertake criminal activities. If even one of these variables is weakened, the chances one will participate in crime increases. This is an element of "social control theory," which states that people's bonds and relationships are what determine their involvement in crime.
Elijah Anderson (2000) identified families as perhaps the most important factor in criminality. Anderson is responsible for the idea of the "code of the street," which are informal rules governing interpersonal behavior, particularly violence. His studies identified two types of families in socially disorganized neighborhoods: "decent families" and "street families." Decent families, he said, accept mainstream social values and socialize their children to these values, sometimes using the knowledge of the "code of the street" to survive. Street families have very destructive behaviors and a lack of respect for those around them. They apparently have superficial ties to the community and other family members, only vying for respect of those around them. Anderson argued that street families breed criminals, suggesting that the family one is raised in could possibly identify if a person will become a criminal.
Age, Race, and Gender
The idea of crime being specific to a particular age, race, or gender has been examined thoroughly in criminology. Crime is committed by all types of people, men and women, of any age. There is evidence, however, that these different variables have important effects on crime rates, which criminal theories attempt to explain.
Studies in criminology detail what is popularly known as the "age-crime curve," named for the curve of the graph comparing age as the independent variable to crime as the dependent variable. The graph shows an increase in crime in teenage years, tapering off and decreasing in the early to mid-twenties, and continuing to decrease as age increases. This "age-crime curve" has been discovered in nearly every society, internationally and historically.
In 2002, according to the Uniform Crime Report in the United States, 58.6 percent of violent crime offenders were under the age of 25, with 14.9 percent being under the age of 18. A disturbing trend in the U.S. from the very end of the twentieth century has been the increasing incidence of homicides and other violent assaults by teenagers and even younger children, occurring in the context of robberies, gang-related incidents, and even random shootings in public places, including their own high schools.
In 2002, according to the Uniform Crime Report in the United States, whites made up 59.7 percent of all violent crime arrestees, blacks comprised 38.0 percent, and other minorities 2.3 percent.
Historically, through phrenology and biology, scientists attempted to prove that certain people were destined to commit crime. However, these theories were proven unfounded. No race or culture has been shown to be biologically predisposed towards committing crimes or deviance.
The Social Disorganization Theory of Crime explains instances of urban crime, dividing the city into different regions, explaining that the transitional zone, which surrounds the business zone, is the most notorious for crime. For example, the transitional zone is known for deteriorated housing, factories, and abandoned buildings. In urban areas, minorities are usually inhabitants of the transitional zone, surrounding them in urban decay. This urban decay results in strain (as described in Agnew's strain theory) and leads to criminal activity, through their having been disenfranchised from mainstream goals. In other words, society's failure to maintain urban transitional zones is a major factor in minorities committing crimes.
Elijah Anderson, an African American who has written much on the subject of race and crime, claimed that institutions of social control often engage in "color coding," such that an African American is assumed guilty until proven innocent (Anderson 2000). Others have noted that social institutions are victims of institutional racism. For instance, in The Rich Get Richer, and the Poor Get Prison, Jeffrey Reiman examined the differences between white middle to upper class teenagers and black lower class teenagers and how they were treated by the police. The difference he discovered for even first time offenders of both white and black teenagers was unsettling. White teenagers typically were treated with respect, their parents are informed immediately, and often jurisdiction and punishment was given to the parents to decide. However, black teenagers were often held over night, their parents informed later or not at all, and first time offenders treated like multiple offenders.
Thus, overall, there appear to be many different aspects of society responsible for the preponderance of minority crime.
Gender distribution in criminal behavior is very disproportionate. In 2002, according to Uniform Crime Report in the United States, men made up 82.6 percent of violent crime arrestees.
There are different gender theories and criticisms that attempt to explain gender discrepancies, usually referred to as the "gender-ratio problem of crime." While it is still uncertain why women do not engage in violent crime at nearly the rate that men do, there are many sociological theories that attempt to account for this difference.
The Marxist-Feminist approach suggests that gender oppression is a result of social class oppression, and that feminine deviance and crime occurs because of women's marginalized economic position within the legitimate world and the world of crime. For instance, prostitution represents those at the top of the hierarchy abusing those at the bottom of the hierarchy through corruption of wage labor. Women do not engage in violent crime because gender and capitalistic oppression disenfranchises them from mainstream criminal activities.
The Liberal-Feminist approach assumes that gender represents one of many competing categories in a society. For example, another competing category could be elderly citizens, or the impoverished, or minority cultures. Those who agree with this approach support initiatives designed to improve women's standing in the existing social structure, but do not wish to challenge the system as a whole. A liberal-feminist would argue that prostitution is acceptable because it represents a business contract between two people: one person pays for a rendered service. Liberal-feminists suggest that low levels of violent crime among women are a result of their social category, that there is no perceived benefit for females to engage in violent crime.
The Radical-Feminist approach is opposite to the liberal-feminist approach. Radical-feminists argue that gender is the most important form of social oppression. Through this approach, women need to start a social movement to create a new system with equality written into the social structure. To a radical-feminist, prostitution is a form of gender oppression that needs to end. Radical-feminists argue that some women are driven to violent crime because of perceived hopelessness and abandonment by society because of the oppression of a patriarchal society.
Crime and Punishment
Generally, in the criminal justice system, when a crime is committed the perpetrator is discovered, brought to trial in a court, and if convicted, receives punishment as prescribed by the penal system. Penologists, however, have differing views on the role of punishment.
Punishment is as much to protect society as it is to penalize and reform the criminal. Additionally, it is intended as a deterrent to future crimes, by the same perpetrator or by others. However, the efficacy of this is not universally accepted, particularly in the case of capital punishment. A desired punishment is one that is equal to the crime committed. Any more is too severe, any less is too lenient. This serves as justice in equilibrium with the act of crime. Punishment gives the criminal the tools to understand the way they wronged the society around them, granting them the ability to one day possibly come to terms with their crime and rejoin society, if their punishment grants the privilege.
Punishmment as deterrence can take two forms:
- Specific: The intention underlying the penal system is to deter future wrongdoing by the defendant, if convicted. The punishment demonstrates the unfortunate consequences that follow any act that breaks the law.
- General: The punishment imposed on the particular accused is also a warning to other potential wrongdoers. Thus the function of the trial is to gain the maximum publicity for the crime and its punishment, so that others will be deterred from following in the particular accused's footsteps.
Theoretical justification of punishment
A consistent theoretical problem has been to justify the state's use of punishment to coerce compliance with its laws. One of the earliest justifications was the theory of natural law. This posits that the standards of morality are derived from or constructed by the nature of the world or of human beings. Thomas Aquinas said: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. William Blackstone (1979) described the thesis:
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original (41).
John Austin, an early positivist, developed a theory based on utilitarian principles, which deviates slightly from natural law theory. This theory accepts the calculating nature of human beings and the existence of an objective morality, but, unlike natural law theory, denies that the legal validity of a norm depends on whether its content conforms to morality, i.e. a moral code objectively determines what people ought to do, and the law embodies whatever norms the legislature decrees to achieve social utility. Similarly, Hart (1961) saw the law as an aspect of sovereignty, with lawmakers able to adopt any law as a means to a moral end. Thus, the necessary and sufficient conditions for the truth of a proposition of law were simply that the law was internally logical and consistent, and that state power was being used with responsibility.
Dworkin (2005) rejected Hart's theory and argued that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offered a theory of compliance overlaid by a theory of deference (the citizen's duty to obey the law) and a theory of enforcement, which identified the legitimate goals of enforcement and punishment. According to his thesis, legislation must conform to a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make and enforce.
History of Criminal Law
The first civilizations had codes of law, containing both civil and penal rules mixed together, though these codes were not always recorded. According to Oppenheim (1964), the first known written codes were produced by the Sumerians, and it was probably their king Ur-Nammu (who ruled over Ur in the twenty-first century B.C.E.) who acted as the first legislator, creating a formal system in 32 articles. The Sumerians later issued other codes including the "code of Lipit-Istar" (last king of the third dynasty of Ur, Isin, twentieth century B.C.E.). This code contained some 50 articles and has been reconstructed by the comparison among several sources. Kramer (1971) adds a further element: "The Sumerian was deeply conscious of his personal rights and resented any encroachment on them, whether by his King, his superior, or his equal. No wonder that the Sumerians were the first to compile laws and law codes" (4).
In Babylon, Driver and Mills (1952-1955) and Skaist (1994) describe the successive legal codes, including the code of Hammurabi (one of the richest of ancient times), which reflected society's belief that law was derived from the will of the gods. Many of the states at this time were theocratic, and their codes of conduct were religious in origin or reference.
While modern legal systems distinguish between offenses against the "State" or "Community," and offenses against the "Individual," what was termed the penal law of ancient communities was not the law of "Crimes" (criminal); it was the law of "Wrongs" (delicta). Thus, the Hellenic laws (Gagarin 1986 and Garner 1987) treated all forms of theft, assault, rape, and murder as private wrongs, and action for enforcement was up to the victim or their survivors (which was a challenge in that although there was law, there were no formalized courts in the earliest system).
It was the Romans who systematized law and exported it to their empire. Again, the initial rules of Roman law were that assaults were a matter of private compensation. The significant Roman law concept was of dominion (Daube 1969). The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as if it was a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property (so, for example, the rape of a female slave, would be the subject of compensation to the pater as having trespassed on his "property") and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of monetary compensation (modern damages). Similarly, in the consolidated Teutonic Laws of the Germanic tribes (Guterman 1990), there was a complex system of money compensations for what would now be considered the complete range of criminal offenses against the person.
Even though Rome abandoned England sometime around 400 C.E., the Germanic mercenaries who had largely been enforcing the Roman occupation, stayed on and continued to use a mixture of Roman and Teutonic law, with much written down by the early Anglo-Saxon kings (Attenborough 1963). But, it was not until a more unified kingdom emerged following the Norman invasion and the king attempting to assert power over the land and its peoples, that the modern concept emerged, namely that a crime is not only an offense against the "individual," it is also a wrong against the "state" (Kern 1948, Blythe 1992, and Pennington 1993). This is a common law idea and the earliest conception of a criminal act involved events of such major significance that the "state" had to usurp the usual functions of the civil tribunals and direct a special law or privilegium against the perpetrator. The Magna Carta, issued in 1215, also granted more power to the state, clearing the passage for legal procedures that King John had previously refused to recognize. All the earliest criminal trials were wholly extraordinary and arbitrary without any settled law to apply, whereas the civil law was highly developed and generally consistent in its operation. The development of the idea that it is the "state" dispensing justice in a court only emerged in parallel with or after the emergence of the concept of sovereignty.
In continental Europe, Vinogradoff (1909) reported the persistence of Roman law, but with a stronger influence from the church (Tierney 1964, 1979). Coupled with the more diffuse political structure based on smaller state units, rather different legal traditions emerged, remaining more strongly rooted in Roman jurisprudence, modified to meet the prevailing political climate. In Scandinavia, the effect of Roman law was not felt until the seventeenth century, and the courts grew out of the things (or tings), which were the assemblies of the people. The cases were decided by the people (usually the largest freeholders dominating), which later gradually transformed into a system of a royal judge nominating a number of most esteemed men of the parish as his board, fulfilling the function of "the people" of yore.
Crime has existed in all societies, and that efforts to legislate, enforce, punish, or otherwise correct criminal behavior have not succeeded in eliminating crime. While some have concluded that crime is a necessary evil in human society, and have sought to justify its existence by pointing to its role in social change, an alternative view is that the cause of crime is to be found in the problems of human nature and human relationships that have plagued us since the origins of human history. Correcting these problems would effectively remove the source of crime, and bring about a peaceful world in which all people could realize their potential as individuals, and develop satisfying, harmonious relationships with others.
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