Saturday, September 11, 2010

The Classical School and conservative criminology

The roots of the American criminal justice system are mixed in nature, divided between what is known as the Classical School of criminology - consisting of the works of Cesaria Beccaria and Jeremy Bentham - and the works of the Enlightenment thinkers. Despite their differences, together they helped to civilize the Western world by fighting against the use of torture and for the rule of law. It was from these reforms that the modern penal system was born.

However, it was a conflict in philosophies and views of man’s nature that would eventually lead to “conservative” criminology. While the Enlightenment was driven by praise for man’s use of reason and his free will, the Classical School held a more mechanistic view, particularly in the utilitarianism of Bentham.

The deterrence theory of the Classical School

In the Classical School, there is no fundamental difference between the natures of criminal or law abiding behavior. Criminals, like others, are “rational” beings who pursue pleasure and avoid pain. Humans are universally vulnerable to these pleasures and pains. Bentham outlined 14 types of “simple pleasures” and 12 types of “simple pains”. The pleasures included example such as, “pleasures of the senses”, “pleasures of benevolence”, and even “pleasures of power” and “pleasures of malevolence”. Some pleasures have complementary pains, such as “pains of the senses” and, curiously, “pains of benevolence”.

If the pleasures of an action outweigh the pains, the result is the action. Criminals are those who judge the pleasures of crime to be greater than their pains. The problem for society, then, is how to weigh the system in favor of law abiding behavior. This is done primarily through punishment, deterring criminal behavior by stacking the painful consequences against it. Both the severity of punishment and certainty of punishment are variables adding to the calculation. Beccaria believed that punishment was most effective soon after commission of the crime; this creates a close mental association between the crime and the punishment, deterring future offenses. The certainty of punishment and the timing of punishment, then, are more important to the theory than severity.

“Rational” as used in the Classical School, merely refers to this calculation of pleasures and pains. It is in this respect deterministic. A person can make a mistake in the calculation, or can be ignorant of the possible consequences of their behavior, but knowledge of pleasures or pains has a direct effect on decision making. The appeal by Beccaria to associate unwanted behavior with pains actually calls to mind animal training, as opposed to human cognition.

Determinism in conservative criminology

The notion that crime can be reduced and prevented by manipulating pleasure and pain inputs is at the foundation of conservative criminology. There is a variety of theories and policies, but they each attack the same problem on different fronts. For example, laws have been adjusted either with respect to the severity of punishment (think 3 strike laws and mandatory minimum sentencing) or to the certainty of punishment (as in “zero tolerance” enforcement).

There are also theories on the effect social influences have on behavior. Social control theories suppose that strong bonds to family or community encourage law abiding behavior, because deviance will lead the offender to be ostracized from loved ones. This pain becomes a deterrent complementing the deterrent of institutional punishment. As Travis Hirschi, author of the most popular social control theory put it,

To violate a norm is…to act contrary to the wishes and expectations of other people. If a person does not care about the wishes and expectations of other people—that is, if he is insensitive to the opinion of others—then he is to that extent not bound by the norms. He is free to deviate.

To reduce crime, then, parents and authority figures form bonds with children. Notice the intent of this strategy: children do not behave themselves because they have formed a rational conviction, but because they do not want to upset others. They have become “socialized”.

The focus on control of criminality echoes an earlier point from the Classical School, that criminals are not different from the rest of us. Criminality results from the failure to suppress it, sounding very much like Hobbes. From Hirschi:

The question, “Why do they do it?” is simply not the question the theory is designed to answer. The question is, “Why don’t we do it?” There is much evidence that we would if we dared.


Conservatives are known for their advocacy of “retributive justice”. Because individuals have free will, and because they should know better, criminals deserve to be punished for their actions. And punishment should be fair, meaning it should be proportionate to the evil of the crime committed. However in practice, sentencing bears little relationship to this principle. According to the United States Sentencing Commission in FY 2008, the national average length of imprisonment for drug trafficking was 83.2 months. For manslaughter, it was 48.5 months. The discrepancy is due to the alleged deterrent value of the sentence, and the elimination of drugs is a high priority in the justice system. The utter failure of the “war on drugs” serves as good evidence of the error of this approach.

Of course the main problem with this school of thinking is that humans are not robots. There is no universal list of what constitutes pleasure or pain for each man, and they do not always seek the first and avoid the second. Criminals, and in fact many law abiding people, can often be downright self-destructive.

Theories of socialization face similar difficulties, despite their popular appeal. In Inside the Criminal Mind, Stanton Samenow notes that parents of delinquent children are often caring and have tried exhaustively to create an environment of discipline and encouragement. Yet their child’s misbehavior is perceived as reflective of poor parenting skills:

The counselor sees that the youngster is behaving outrageously and seems to be getting away with it. But the counselor may not realize that for years the child has thwarted nearly all parental attempts at disciplining him.

Which brings me to my last point. Conservative theories have a “nothing to see here” approach when it comes to criminal behavior, and this inhibits development. There is little to no interest in what the criminal thinks, because such interest would first require ditching the assumption that everyone thinks the same way. Perhaps also because these theories are widely (and falsely) recognized to be based on the premise of free will, the authors believe it themselves. As a result, by focusing exclusively on the punishment and socialization of offenders, they cripple their ability to understand why neither strategy works as planned.

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