Crime

Crime is the category of behavior to which criminal justice is a response. It has several defining features that make it “unwanted” behavior, including the extent of harm to its victims, the intent and culpability of the criminals, degree of public consensus over its moral significance, the severity of society’s response, and the visibility of its effects.

Although different crimes share some common features—such as the use of instruments of power to gain advantages over others—crime is not a single kind of behavior but a category that comprises multiple types of behavior, each with its own range of causes. Criminologists study crime, its causes, and society’s criminal justice responses. What is defined as crime determines how big a problem society confronts, which areas of society are affected, what resources are put into policing to control the crime, and what systems of justice should be deployed to deal with it.

What behaviors are considered criminal has varied through history and among different cultures and in different situations. This is because behaviors that are defined as crimes essentially reflect values, or express what the legal scholar Jerome Hall termed “disvalues.” Anthropologists and sociologists have observed that values, and therefore behaviors that are sufficiently unwanted to be designated “crimes” by societies, change over time, depending upon the cultures, and are subject to the interpretation of meaning of local contexts and social situations.

The seriousness of offensive behavior depends upon the interpretation of the meanings of acts, and these are affected by society’s concept of who the acts allow to be victims. Moreover, since crime is defined by laws, and laws are made by legislators and politicians with particular interests, what comes to be defined as criminal need not reflect a universal set of harmful behaviors, but those that lawmakers consider significant. Sociopolitical factors as well as economic and political interests affect what legislators judge to be sufficiently offensive to be criminalized.

Some behaviors that are considered harmful to American society and its members fall within American definitions of crime. These behaviors include such acts as murder (homicide), rape, robbery, theft, physical violence, and arson. At the same time, other behavior that can be equally or even more harmful, are excluded from the definition. Examples include industrial pollution, creating dangerous working conditions for employees, faulty product manufacture, and violations of food and safety standards. Such acts are typically designated as white-collar crimes and are usually subject to administrative regulation, rather than criminal law, and are thus often technically not considered “crimes.” Since the 1980s, the United States has seen an accelerating movement to criminalize many white-collar and corporate harms and to subject their perpetrators to criminal sanctions.

Views of Crime

In their 1933 book Crime, Law and Social Science, social philosophers Jerome Michael and Mortimer Adler clarified the legal view of crime in the United States. They stated that criminal law itself gave behavior its quality of criminality. By this they meant that any behavior that has not been designated—by case or statutory law—as a felony or a misdemeanor offense is not a crime.

The law crudely distinguishes crimes by their seriousness, and this is indicated by the severity of the punishment associated with individual offenses. A crime is called a felony if it is punishable by a prison sentence, usually of more than a year, or by the death penalty; it is a misdemeanor if punishable by a fine or a prison sentence of less than a year (typically served in a jail). Felonies and misdemeanors are typically categorized as crimes against persons such as murder, rape, and assault; crimes against property, such as theft, burglary, arson, and fraud; and crimes against morality and public order, such as substance abuse and rioting. The law also distinguishes between two kinds of acts: those seen as bad in and of themselves (mala in se) and those legislated as crimes (mala prohibita).

Criminals are, by definition, persons who commit crimes. They may include collectivities, such as criminal corporations, as well as criminal individuals. Sociologist Paul Tappan argued in 1949 that to be a criminal one had to be convicted by a court of law. To be found guilty of a crime a person or collectivity has to have both criminal intent (mens rea, or a guilty mind) and have acted voluntarily (actus reus) meaning that a perpetrator must act willingly rather than being coerced. In the case of a corporation or organization, the “criminality” that produces criminal harm is seen to be in the collective mind, such as that of a board of directors, or an agency policy. Since the mid-twentieth century the strict legalistic view has been increasingly challenged.

There are several deficiencies with the narrow legal view. First, what is included is historically and culturally relative, meaning that at different periods in history and in different cultures and places, the behaviors that are defined as criminal change, not least because values change or are different. For example, it was once not considered criminal to use cocaine, for a man to rape his wife, or for symbols of racial hate to be directed at members of minority groups. In the twenty-first century, smoking in public places and in government buildings is widely banned and defined as a crime.

In 1939, sociologist Edwin Sutherland pointed out that the criminal law is biased; it includes some harms but excludes others, particularly those produced by corporations, which are handled as violations of administrative regulations rather than as violations of criminal laws. Increasingly in the second half of the twentieth century this regulatory approach changed as white-collar crime was seen as a significant omission from criminal law. However, critics have pointed out that “socially injurious acts” by the powerful—whether corporations, organizations, or state agencies—still manage to largely escape being classified in law as crimes.

This relates to a third problem with the narrow legal view that highlights its selectivity because of the influence of power on the legislative process as a result of judges’ affinity for business ideology and because of legislators’ ties to business, and being subject to industry lobbyists and political action committees financed by interested parties.

Moral Consensus and Cultural Conflict Views

A fundamental assumption embodied in the legalistic view is that criminal laws reflect a moral sentiment of the public. What is defined as a crime is behavior that arouses moral indignation, or as nineteenth century French sociologist Émile Durkheim stated, behavior that “shocks the common conscience.” The difficulty with this view is that such indignation is filtered through interested legislators and moral entrepreneurs rather than being tied specifically to the state of public opinion. For this reason, the early conflict sociologist Thorsten Sellin argued in 1938 that value-neutral social scientists, rather than politicians, should map which behaviors the public is concerned about enough to ban by identifying naturally occurring “conduct norms” and use these as the basis to construct laws. Indeed, there have been some studies that index public views about crime, which have revealed that previously ignored harms by corporations and professionals such as doctors are rated as more serious than many more conventional crimes of violence, yet the latter are typically reacted to more severely.

The argument that crime is a variable rather than a fixed body of behaviors reflecting social values that are subject to change led some to the view that cultures and even subcultures within a society should be allowed to develop their own laws, depending upon their norms of conduct, rather than having these imposed by the dominant group of a mainstream culture. Indeed, in this view what Sellin called “culture conflict” comes into play, wherein different subcultural groups have conflicting allegiance to their own cultural norms and societal laws, which may clash. This tendency can be seen in immigrants to the United States, who may have norms different from those of mainstream Americans.

Immigrants from Mediterranean and Middle Eastern honor cultures believe that private family vengeance should be taken on those who dishonor a family, such as by having sexual relations outside marriage. Acts of private vengeance are illegal by American criminal law. In a clash between laws and norms, which should prevail? Are there generalized social values that transcend the specific interests of mainstream culture and its subcultures and serve a functional value to society as a whole, as implied by Hall’s view of crime as an expression of “disvalues”? Alternatively, do the values of a society, and thereby the behavior banned by criminal law, depend upon which interest groups and which major political forces mobilize most effectively to criminalize the behavior of those most threatening to themselves?

The Social Conflict View

Those who see conflicts of interest, whether based on wealth, status, political power, honor, religion, etc., as the driving forces of society, believe that the behavior most criminalized is that which offends those in positions of power. These critics are also concerned with the broader question of values tied to banned behavior. They say that the idea of “appropriate” or “wanted” behavior, versus “unwanted” behavior, as used by some analysts, such as the Law Commission of Canada in its deliberations on What Is a Crime? (2004), begs several critical questions. Not least of these is who decides what counts as unwanted. The key issue is how far behavior interpreted as “unwanted” is the result of powerful audiences finding the behavior problematic/unacceptable or harmful to them, rather than to the society as a whole.

As sociologist Howard Becker pointed out in his studies of social deviance, it is important to consider the role of those interest groups (moral entrepreneurs) who can whip up moral support and advocacy, through the media, for turning some “problem behaviors” into “deviance” or “crimes.” According to this view, the questions can be reframed: To whom is a particular behavior problematic? On what basis is it problematic, implying a need to distinguish between harmful and morally unacceptable? Who decides that this behavior should be acted upon?

This view is ultimately concerned with the politics of defining behavior as “unacceptable”? Which levels of society are involved and which are excluded? Whose views prevail in “opinion” or popular culture, and whose views are translated into formal law? How do those who prevail draw on the resources of government, agencies, and media to defeat others who may have different views? Clearly there are political struggles between interested groups over what is defined as crime. In part this involves the fight to control the symbolic meaning of laws, but it also involves the issues of whose behavior is criminalized and what behavior counts as punishable and in what ways.

Social Interactionist and Situational Constructionist Views

Social constructionism, the idea that people construct their social worlds through symbolic meanings and shared discourse, sees a significant role played by the media in defining crime. It is not just that the media influence the content of definitions of crime by shaping what actions people take as serious and offensive, but also that the media are used as resources in the struggle over some groups asserting their interests over others. As British criminologist Stanley Cohen first noted, one way of doing this is to create a “moral panic” about some kinds of behavior, although the actual behavior need not have actually occurred, and the demonized offenders need not actually engage in the practices that have been claimed. Of central concern of constructionists and critical theorists is how groups with different resources gain equal access to the media in asserting their position; how they make truth claims that lead to the banning of behavior and how the production of mass mediated images of “crime” is shaped by those in positions of power?

Rather than taking consensus or conflict as significant factors in defining crime, some social constructionists see the situational context and the interaction between local actors as important. For example, criminologists Leroy Gould, Gary Kleck, and Marc Gertz see crime defined as a social event, involving many players, actors, and agencies. Beyond the criminals and victims, a “crime event” includes bystanders and witnesses, police officers, and members of political society. A crime event is a particular set of interactions among criminals, crime targets, police, community, and society’s institutional agencies. This social situational view of crime emphasizes the complexities associated with defining crime by recognizing its socially constructed nature. The local situation involves the claim making and legitimating process by local community agencies, and that necessarily involves issues of power.

Critical Conflict View

Critical theorists also question how the interests of the powerful influence the selection of societal responses, or penalties, such that the most punitive seem to disproportionately affect the powerless (resulting in their predominance in the criminal justice system), yet the most harmful offenses are committed by those who receive the least punitive sanctions (resulting in their relative absence from the criminal justice system). For example, multimillion-dollar corporate fraud receives considerably less punitive sentencing than conventional street crimes of burglary or robbery.

Critics ask how the powerful avoid having their “unwanted” yet harmful behavior criminalized and how they seem to attract the most constructive societal responses, such as rewards for conforming to regulation? There appears to be one law for the rich and another for the poor. For example, in the past the punishment for using crack cocaine, a drug used mostly by African Americans, was significantly longer than the punishment for using powder cocaine used primarily by White Americans. The ratio of sentence lengths for crack to powder cocaine was 100:1. As a reflection of changing social mores, the Fair Sentencing Act (FSA) was passed by Congress in 2010 to close the disparity between sentences for crack and powder cocaine offenses, reducing the sentence ratio to 18:1.

If people want to use less punitive criminal law in responses to “unwanted” behavior, argue these theorists, equity should prevail between responses to the crimes of the powerful compared with crimes of the powerless. To deal with these concerns it would be necessary to criminalize and punish some crimes of the powerful, while decriminalizing and regulating the behaviors of the powerless.

Critical criminologists Herman and Julia Schweindinger and Richard Quinney built on the early work of Sutherland to suggest that definitions of crime need to be more expansive and include behavior that violates the human rights of others and the socially injurious acts by the structurally powerful toward the powerless in society. For example critical theorist Raymond Michalowski used the term “analogous social injury” to describe a range of currently legal behaviors by corporations, organizations, and state agencies that produce social, environmental, and health problems. Examples are promoting cigarette and alcohol production and distribution and setting work production targets that force employees to cut health and safety protective practices.

Postmodernist and Power-as-Crime Views

Postmodernist-influenced constitutive criminologists such as Dragan Milovanovic, Bruce Arrigo, and Stuart Henry have developed definitions of crime that take account of the total context of powerful relations and the situational context. Postmodernism rejects claims that knowledge is true or can be true. Instead, like social constructionists, its advocates believe that “claims to know” are simply power plays used to dominate others. For example, Henry and Milovanovic define crime as an agency’s (individual, corporation, or organization) ability to make a negative difference to others. They define crimes as:

nothing less than moments in the expression of power such that those who are subjected to these expressions are denied their own contribution to the encounter and often to future encounters. Crime then is the power to deny others . . . in which those subject to the power of another, suffer the pain of being denied their own humanity, the power to make a difference.

From a similar perspective, anarchist criminologists Larry Tifft and Dennis Sullivan argue that the power in social organizations, institutions, and processes operate through hierarchical structure and social arrangements to produce harm that evades the legal definition. They, like the critical Marxist theorists, argue for a greatly expanded definition of crime that will include as crimes the activities of many contemporary legal industries and commerce. Paradoxically, this approach would also question many of the criminal justice system’s responses to crime, because these too produce harm, not merely by definition, but by exerting power over others.

Integrative View

It is clear that defining crime is far more complex than the simplistic idea that crime is behavior defined by law. In an attempt to take account of several of these themes Canadian criminologist John Hagan developed a concept of crime as a continuous variable expressed through his pyramid of crime; each slope represents one dimension of the crime phenomenon. Regardless of who defines behavior as “unwanted,” a related issue is the degree of “unwantedness,” which Hagan argued ranges from apathy through mild to severe. The question of unwantedness is different from how much consensus exists about unwantedness and also different from the degree of severity of any reaction or societal response. At a minimum, says Hagan, the issue of unwantedness exists along three dimensions: first, the degree of harm caused; second, the degree of consensus about the harm caused; and third, the severity of society’s response.

In expanding Hagan’s pyramid into the concept of a “crime prism,” Stuart Henry and Mark Lanier added further dimensions. A fourth dimension is the degree of consensus about the severity of society’s response: Does everyone agree with the sentence or is there wide disagreement that it is either too severe or too lenient? A fifth dimension is the degree of visibility of unwanted behavior—and the role of mass mediated culture in sensitizing populations to fear of some unwanted behavior or crime rather than others. A sixth dimension is the extent of harm caused (which is different from how harmful the act is in itself), for example, a terrorist act that kills one hundred people is seen as more harmful than an act of terrorism that kills one person, even though the act itself may be the same. Seventh is the selectivity of society’s responses to such behavior, which relates to the equality of responses across the different levels of society and the degree to which power and resources of those in different levels are drawn on to resist.

By integrating these different dimensions, it is possible to develop a more balanced and comprehensive definition of the crime phenomenon. This necessarily takes account of crime’s complexity, recognizes its multiple victims, and acknowledges the critical role of power in various aspects of the crime creation process.

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