C H A P T E R 2
Crime and the Nature of Law
SUMMARY
The concept of crime is not well understood by most people. It goes well beyond the rather imprecise boundaries of street crime or the limited issues of violence and theft that are a major focus of mass media news and entertainment. In fact, crime includes thousands of offenses, the majority of which do not come to the public’s attention.
Drawing on standards of what constitutes sin or immoral behavior, people have often defined crime as violations of natural law. However, this definition implies that all individuals define right and wrong the same way. Sociologists argue that people’s ideas about appropriate and inappropriate behavior are culturally and historically specific. That is, social scientists choose to focus on the processes through which crime comes into being, and they suggest that crime is a social construction that changes over time and in different contexts. Scholars have argued that not all deviant behavior is criminal behavior and that not all criminal behavior is deviant behavior. Rather, criminal and deviant behaviors are defined by culture.
The only precise definition of crime, then, is a more legalistic one. As such, crime is an intentional act or omission in violation of criminal law (statutory and case law), committed without defense or justification, and sanctioned by the state as a felony or misdemeanor.
Explanations of why people commit crimes are numerous. Biological theories of crime are grounded in the concept of biological determinism, a notion suggesting that the causes of crime are the result of some biological or physical element -- that criminals may be “born,” not made. Biological theories tend to be weak, however, because the influences of environmental, cultural, social, and legal factors are generally ignored. Sociocultural theories of crime causation examine criminality in terms of how it may be related to society and culture. From this perspective, the focus shifts from the individual level to a whole range of sociocultural questions: What are the characteristics of situations in which crime tends to occur? Why is crime more common in certain places, within certain groups, and under certain circumstances than in others? What is the process by which some persons become criminal while others do not? Why is it that some behaviors are defined as criminal while others are not?
It would be unrealistic to expect that any one theory of crime could explain all forms of criminal behavior. It is likely that each theory or various combinations of theories explain different kinds of lawbreaking. In all probability, however, there are as many reasons for engaging in criminal behavior as there are different kinds of crime.
CHAPTER TOPIC OUTLINE
1. Perspectives on Crime
a. Because of media portrayals of crime, most Americans have a distorted image of what constitutes crime. Crime is seen as intrinsically evil, threatening individual rights, civil liberties, and the foundations of society. In actuality, there are thousands of different types of offenses, the majority of which rarely come to our attention unless they are propelled into the national consciousness by some media event. (See Exhibit 2.1, Victims and Justice: Drag Racing.)
b. Street crime is a widely used concept, but its explicit content and boundaries have been
poorly defined. (Further material on street crime appears in the Supplementary Lecture Materials section of this chapter.)
2. Exhibit 2.2, Law and Criminal Justice: Natural Law
a. Natural law refers to a body of principles and rules that are considered to be uniquely fitting for and binding on any community of rational beings.
b. The idea of natural law suggests that there are natural crimes, but there is no single and unchanging concept of natural law or natural crimes. Even incest has varying meanings from one society to the next.
3. Crime as a Social Construction
a. The definition of behavior as criminal or deviant comes from social groups; deviant behavior is behavior that people so label.
b. The mechanisms through which behavior becomes viewed as deviant involve a process of discovery undertaken by crusading reformers and rule creators. Such was the case with the Prohibition amendment.
c. Not all deviant behavior is criminal (picking one’s nose in public), and not all criminal behavior is deviant behavior (certain sexual activities among consenting adults).
d. Differing conceptions of certain behaviors as immoral or illegal are illustrated in Exhibit 2.3, International Perspectives on Crime and Justice: Men, Women, and Marital Rights in the Muslim World.
4. The Legal Definition of Crime
a. The word crime comes from the Latin crimen, meaning “judgment, accusation, or offense.”
b. Crime is an intentional act or omission in violation of criminal law (statutory and case law),
committed without defense or justification, and sanctioned by the state as a felony or misdemeanor.
5. Crime Is an Intentional Act or Omission
a. A person may wish to commit a crime, or think of committing a crime, but the crime does not occur until some action takes place.
b. Conspiracy to commit crime involves an act of agreement, an object, a plan, and an overt act.
· Parties to a crime may include abettors, accessories before the fact, and accessories after the fact.
c. Failure to act can be a crime if there is some legal duty to do so in a particular case.
· People v. Beardsley
· Misprision of felony
6. Criminal Intent
a. Mens rea
b. General and specific intent
c. Vicarious liability
7. Violation of Criminal Law
a. Criminal law refers to the branch of jurisprudence that deals with offenses committed against the safety and order of the state.
b. Criminal law includes statutory law, case law, and common law.
c. Robinson v. California
8. Defense or Justification
a. The insanity defense
· M’Naghten Rule
· Durham Rule
· The Hinckley case
· Guilty but mentally ill or guilty but insane
· See also Careers in Criminal Justice exhibit: Forensic Psychologist.
b. Mistake of fact
c. Mistake of law
· Lambert v. California (See Supplementary Lecture Materials.)
d. Duress and consent
e. Entrapment
· Inducement
f. Justification
· Self-defense
· Justifiable versus excusable homicide
g. Other defenses: There have been many attempts to use unique and interesting defenses, but these defenses are not allowed in most courts
h. Exhibit 2.4, Gender Perspectives on Crime and Justice: The Postpartum Depression Defense
9. Sanctioned by the State: nullum crimen sein poena
10. Felonies and Misdemeanors
a. Mala in se crime
b. Mala prohibita crimes
c. “Violations”
11. Criminal Law
a. American law draws from Greek, Roman, and Catholic Church law
b. Common law
c. Other sources of criminal law
· Constitutional law
· Statutory law
· Federal and state constitutions
· Administrative law
12. Theories of Crime Causation
a. Biological theories of crime are grounded in the concept of biological determinism: criminals are born, not made.
· Criminal anthropology -- Cesare Lombroso observed and measured the physical attributes of criminals and found them to be similar to those found in savages or prehuman people. He concluded that the criminal was an atavism, and therefore he maintained that the criminal was born a criminal.
· Heredity -- The belief that criminal tendencies might be inherited.
· Constitutional inferiority and body types -- Since the turn of the 20th century, there have been several studies addressing the notion of a “criminal body type,” with some rejecting the hypothesis and others supporting it. For example, William H. Sheldon’s body types: endomorph, ectomorph, mesomorph.
· Aberrant chromosomes -- Advancements in the fields of molecular biology and micropathology have led to a suggested link between chromosome abnormality and criminal behavior.
· Crime and human nature -- James Q. Wilson and Richard Herrnstein’s book Crime and Human Nature speculated that at least a portion of criminality is innate. Heavily influenced by studies of IQ and constitutional inferiority, the authors proposed the existence of a particular personality type with features that made a person more likely to value crime.
b. Sociocultural theories of crime examine criminality in terms of how it may be related to society and culture.
Social and Cultural Structure Theories:
· Social disorganization theory –Shaw and McKay’s theory directly links high crime rates to neighborhood ecological characteristics.
· Anomie -- Merton’s use of the concept of anomie to develop a general theory of criminal behavior led to the development of five different modes of adaptation people employ to deal with the conflict between cultural goals and institutionalized means: conformity, ritualism, innovation, retreatism, and rebellion.
· General strain theory – In an expansion of the concept of anomie, Agnew theorizes that criminality is the direct result of negative affective states that are produced by negative social relationships. This “strain” creates negative emotions that can lead to deviant and criminal behavior. There are four general types of strain that individuals may encounter: the failure to achieve positively valued goals, the disjunction of expectations and achievements, the removal of previously attained positive achievements, and exposure to negative stimuli.
· Culture, conflict, and cultural deviance theory – Crime can emerge from, or be a direct result of, conflict between the norms, values, and goal orientations of a social or cultural group and the legal codes that have been imposed by an alternative group that has greater power to shape public policy.
o Sellin: Culture Conflict and Crime
o Cloward and Ohlin: differential opportunity theory
o Miller: “focal concerns”
Social and Cultural Process Theories:
· Social and cultural learning theory and differential association -- These theories examine criminality and how it is learned. Differential association suggests that criminal behavior is learned within the context of intimate social groups that are criminal.
· Social control theory -- Hirschi’s theory centers on how individuals are constrained by their social structure and the mechanisms that prevent criminality. He proposes four “social bonds” as measures of an individual’s tie to conventional society: attachment, commitment, involvement, and beliefs.
· Labeling theory – This theory focuses on the process of interaction through which behaviors become defined as criminal and how the labeling process can bring about more criminality. Lemert made the important distinction between primary and secondary deviation.
Importantly, it is unrealistic to expect that any one theory of crime causation could explain all forms of criminal behavior. It is likely that each theory or various combinations of theories explain different types of lawbreaking. See Exhibit 2.5, Research on Crime and Justice: A Theory of Crime and Rehabilitation for Drug-Involved Offenders, and Exhibit 2.6, Gender Perspectives on Crime and Justice: Theoretical Explanations for Violence Against Women.
Other Topics of Interest:
Critical Thinking in Criminal Justice: The Insanity Plea, Texas Style: Is Texas a state full of mothers about to go off the edge?
Careers in Criminal Justice: Forensic Psychology
Famous Criminals: Osama bin Laden
KEY TERMS AND CONCEPTS
abettor entrapment
accessory after the fact felony
accessory before the fact general strain theory
administrative law labeling theory
anomie Lambert v. California
case law mens rea
civil law misdemeanor
common law misprision of felony
conspiracy M’Naghten Rule
constitutional law natural law
crime primary deviation
criminal law Robinson v. California
defense secondary deviation
deviance social control theory
differential association social disorganization theory
differential opportunity theory statutory law
differential reinforcement theory vicarious liability
Durham Rule
LERNING OBJECTIVES
After a thorough study of Chapter 2, students should be able to answer the following questions:
1. What is crime?
2. What is the meaning of “natural law”?
3. What is the process through which some behaviors come to be defined as criminal?
4. What is the legal definition of crime, and what is the meaning of each element in this definition?
5. What are the differences between the various types of law?
6. What are the various defenses to criminal liability?
7. What is the nature of criminal intent?
8. Where do our criminal laws come from?
9. What are some of the general theories of crime causation?
SUPPLEMENTARY LECTURE MATERIALS
CRIME IN THE STREETS
What exactly is crime in the streets or, more popularly, street crime? Does it include such happenings as murder, rape, and robbery? Or is it limited only to those crimes that occur on a city street? Almost a decade after street crime first became a popular topic in both political and public discussions, members of the House Select Committee on Crime, in the midst of hearings on the subject during the week of April 9–13, 1973, suddenly discovered that they had been focusing their efforts and resources on a totally undefined term.
Street crime has no generally accepted definition, and the label itself is somewhat misleading in that burglaries and indoor robberies (about half of all robberies, and about one-fourth of all urban robberies) are frequently categorized as street crime though they occur off the street. Street crime is generally not organized criminal activity, although there is increasing evidence of organization in burglary and auto theft rings. Street crime could be defined as those crimes of robbery, rape, assault, and the like, committed by strangers; (but) this definition would exclude four-fifths of all reported murders, nonnegligent manslaughters, and aggravated assaults and almost two-thirds of all reported rapes.
Their discussions went on for five days. Despite the uncertainty, the deliberations culminated in a report of some 266 pages that offered recommendations on ways to reduce this phenomenon, whose content and boundaries they had never even properly explained or defined. See House Select Committee on Crime, Street Crime: Reduction Through Positive Criminal Justice Responses (Washington, DC: U.S. Government Printing Office, 1973).
THE FIGHTING-WORDS DOCTRINE AND OTHER VERBAL OFFENSES
Under the Anglo-American system of law, people cannot be punished for their thoughts or beliefs. Moreover, the First Amendment of the Constitution provides that “Congress shall make no law. . . abridging the freedom of speech.” Despite the First Amendment, legislatures have placed restrictions on certain forms of verbal communication. For example, there are laws against defamation and slander, abusive or obscene telephone calls, loud speech intended to disturb others, certain obscene communications, language that obstructs law enforcement officers in the performance of their duty, and speech that urges others to engage in unlawful conduct. Moreover, there are what have become known as “fighting words.”