Theories Of Crime PDF

# Theories of Crime ## Unit 1 ### Advisory: * The following text is for general points to ponder upon. * Students are advised to elaborate their answers by referring to more books. * The sole purpose of this text is clarity. * **NOT IN ANY CASE THE TEXT MAY BE COPIED.** ## Pre-classical School...

# Theories of Crime ## Unit 1 ### Advisory: * The following text is for general points to ponder upon. * Students are advised to elaborate their answers by referring to more books. * The sole purpose of this text is clarity. * **NOT IN ANY CASE THE TEXT MAY BE COPIED.** ## Pre-classical School Of Criminology The origins of modern criminological theory can be traced not to the study of crime and criminals, but to Enlightenment philosophers, particularly in France and Italy. These philosophers were reflecting on the historical background of criminal law and punishment in Europe. The Pre-classical School of Criminology concerns the period of 17th & 18th century. ### We must know the historical background of criminal law and punishment in Europe before proceeding to an analysis of the contribution of classical, neo-classical and positivist's schools to the development of the study of crime. So to understand the classical writers and their contributions to criminology, we must know something about the social conditions that existed at the time they wrote. * The classical writers were rebelling against an **arbitrary and corrupt system** of law in which judges held an absolute power over those who came before them. * Laws were often vague, and judges took it upon themselves to interpret them, if the vagueness didn't suit their purposes. * Such a widespread personal interpretation of the law lead to a lack of consistency and impartiality which usually meant that lower class defendants would receive the blunt end of the justice. * Accusations were secret and trials a farce. The concept of crime was vague and difficult to understand. * The law applied unequally to the citizens and corruption was rampant. * Confessions were obtained by the use of torture, and the death penalty was used for many offences. * Due process of law & equality before law were unknown concepts. Scientific knowledge related to crime was yet unknown. * The dominance of the religion in State activities was the chief characteristic of that time. * Thinkers like Hobbes and Locke were concentrating on social contract as the basis of social evolution. * The concept of divine right of king advocating supremacy of monarch was held in great esteem. * The principle of divine intervention especially through ordeals was in trend in ancient India as well. Oaths and Ordeals played a very important role in the ancient judicial system in determining guilt of offender. It was believed that man by nature is simple and his actions are controlled by some super power **Demoniological Theory of Criminality** propounded by exponents of pre-classical school acknowledged the influence of the Spirit, which they regarded as great power. They considered **crime and criminals as an evidence of the fact that individual was possessed of devil/demon the only cure for which was testimony of the effectiveness of the spirit.** * Worship, sacrifices and ordeals by water and fire were usually prescribed to specify the spirit and relieve the victim from its evil influence. * No attempt was made to probe into real causes of crime and evolution of criminal law was at the rudimentary stage. * Trial by battle was common mode of dividing the fate of criminal; the right of society to punish the offender was well recognized. Offender was regarded as an innately depraved person who could be cured by torture or pain. * According to Hobbes, the fear of punishment at the hands of monarch was a sufficient deterrent for the members of society. ### Specifically let’s talk about the conditions that prevailed in France and England. ## Conditions in France During the Middle Ages: 1. Decisions regarding sentencing of the accused were made in secret. 2. Judges could make decisions without any restriction. 3. The sentencing was usually very severe, with defendants having no right of defence at the trial. 4. Punishments were decided by the secret tribunal. And defendants were punished according to the authority of the secret bench. 5. Methods of torture were different from province to province in France. * Defendants were tied to a chair; the chair was moved closer and closer to a burning furnace. * The defendant was put in high boots made of spongy leather, tied to a table, hot boiling water poured into the boots * Stripping a man half naked, tying his hands behind him with a ring between them, placing a weight of 180 pounds on his feet and then raising him with sudden jerks by means of rope on the ring and for more severe crime weight of 250 pounds is placed, resulting in complete dislocation of the arms and legs of the defendant. * The body of the defendant might be stretched, with a doctor and surgeon standing to check the victims' pulse, when they determine that offender could no longer bear the pain they would release and attempt to revive him/her, as soon as the offender appeared to be reviving, the torture would begin again. * Execution by fire * Most horrible was the process of Quartering: victim was first given preliminary torture such as burning of his limbs. Then the executioner would attach a rope to each of his limbs and fasten each rope to a bar to which a stronger horse was harnessed. First the horses were made to give short jerks but as the victim cried out in agony, the horses would be suddenly urged on rapidly in different directions. * If the limbs were still not dismembered, the executioner would finish the job with a hatchet, put all the limbs in front of torso (which might still show some signs of life) and burn them. ## Condition in England 1. Only men of blood were admitted to 4 schools of law = Inns of Courts 2. Such courts were corrupt. According to a Member of Parliament “a justice of the peace was "an animal who for half a dozen of chicken would dispense with a dozen laws”. 3. Monarch could remove judges at his/her pleasure and some judges kept the rulers wishes in mind as they made decisions. 4. Jury trials existed but Juries were often intimidated by the judges or other officers of the crown. 5. Treason was loosely defined to include almost everything that could endanger the life of monarch. 6. Defendant accused of treason were brought to star chambers, where all rights were dispensed with, they were interrogated, tortured and usually send to prison or death. Although it was illegal to use torture, but star chambers did. 7. Laws were weak punishment were severe. 8. Criminal laws relied on deterrence and not surveillance or detection. 9. Capital punishment was almost for 200 offenses. 10. Pillorying was done. 11. Burning a hole in the ear or tongue or ears or cutting off a limb or cutting the tongue out were punishment for minor offences. 12. According to some text, a law repealed around 1790 stating a woman convicted of murdering her husband or of treason was to be burned alive. 13. But men hanged at the gallows (faasi-taqt) were to be cut down while still alive and their bowels removed and burned in front of them, they would then be beheaded and quartered, Gallows existed in all district in London. 14. One many occasions victims were left for the birds to eat and presumably to serves as deterrence to all who passed by; some would hang as long as half hour before they die. Meanwhile they were given brandy to ease the pain. 15. Hanging and other punishments were public, and people would line the streets to see the victims on their way to the place of punishment. Food and drinks were sold by the peddlers and people sing ballads. 16. The English Code was one of the most severe in the history. 17. During 16th & 17th Centuries, it was estimated 2 lakhs women supposedly witches, were executed in Europe at that time it was believed that some people acted out in a strange ways out their own free will; i.e. they were working with a devil. 18. Severe punishments even death could be seen as religious act because of deeply rooted in religion was the belief that people act out in their own free will. ### Importance:- It was the European conditions that provided the basis for the reform movement of the classical criminologist; many of these severe punishments were also utilized in American Colonies. Against the background of severe punishments and harsh laws classical school emerges. Thus, the theosophists, notably St. Thomas Acquinas and the social contract writers such as Donte Alighieri, Machiavelli, Martin Luther and Jean Bodin provided immediate background for Beccaria's classical school at a later stage. ## The Classical School of Criminology The classical school of criminology refers to the middle of 18th century and signified the contributions of the great thinkers like Cesare Beccaria (he wrote "on crime and punishments" he believed that punishment should fit the crime), Jeremy Bentham (developed doctrine of free-will arguing that behaviour is purposive and is based on hedonism, or the pleasure-pain principle (utilitarianism)), Voltaire (laid the foundation for the enlightenment; publicized Beccaria’s contributions), Montesquieu (stimulated the reform crusade of Beccaria), Rousseau (Influenced the classical school through his writings on the social contract) etc. ### Contribution of Classical School 1. Legal definition of Crime. 2. Let the Punishment fit the Crime. 3. Doctrine of free will - behaviour is purposive and is based on hedonism-the pleasure-pain principle. 4. Death penalty in some offences only. 5. Subjective method - no empirical research. 6. Definite sentence. 7. The Law is to be rigid, structured and theoretically impartial. #### Cesare Beccaria (1738-1794) Published his Essays "On Crime and Punishments" 1764, set out a controversial programme for criminal law reform. This book was an immediate success and motivated a hornet's nest of controversy over the treatment of criminal offenders. Critical of the barbarism, irregularity and ad hoc nature of 18th century pre-modern punishment, frequently encountered torture, and in force, jurisdiction to death, the possibility of being tortured to death remained a penal option into the nineteenth century. Penal torture had not been used in England since the 18th century, except in exceptional cases for treason; Scotland, on the other hand, retained in legal theory, although certainly not in practice, hanging, drawing and quartering for treason until 1748. ### Imp. criminal justice, he urged that social order be based on law, rather than religion or superstition; that the machinery of Justice be answerable to rules of due process of law; that sentencing policies be formulated 'to fit the crime'; and the punishment be prompt and certain. He proposed basic changes in the criminal laws of his day which would make them more “humanitarian". He called for abolition of physical punishment and end to death penalty. He believed in the thoughtful exercise of the free will and is best known for his suggestion that punishment should be sufficient to deter, but never excessive. His theory is often referred as naturalistic theory of criminality and is known to reject the control/power of evil spirit. He laid greater emphasis on mental phenomenon of individual and attributed crime to free will of the individual. Thus he was much influenced by the utilitarian philosophy of his time which place reliance on hedonism, i.e. the pleasure pain principle. The real contribution of classical school in criminology is the fact that it underlined the need for a well defined criminal justice system. The _aurucaico_ of classical school pleaded for equalization of justice which meant equal punishment for same offences. They were against arbitrary powers of Judges. According to certain text classical school propounded by Beccaria came into existence as a result of influence of writings of Montesquie, Hume, Bacon and Rousseau. Beccaria’s views on crime and punishment were also supported by Voltaire as a result of which a number of European Countries redrafted their penal codes mitigating/justifying the rigorous barbaric punishments and some of them even went to the extent of abolishing capital punishment from their codes. The classical school of criminology represents a significant advance over previous thinking about crime because it moved beyond superstition and mysticism as explanation of crime for deviance. At that time Beccaria’s work was condemned for its extreme rationalism, but within its recommendations are the seeds of polices present in the most Criminal Justice Systems today. Above all he is now recognized as the founding father a classical school of criminology on England, characterized by the key doctrines of rationality, free will and the social contract. His writings encouraged many thinkers throughout the 1700s and early 1800s. He is referred today as Founder of Classical School of Criminology) It suggested a substantial criminal policy which was easy to administer and without resorting to arbitrary punishments ### Critic The major critic to Beccaria’s ideas was that it proceeded on an abstract presumption of free will and relied solely on the act/crime without devoting any attention to the state of mind of the criminal. It erred in prescribing equal punishment for same offence thus making no distinction between first time offenders and habitual offenders Modern criminologists are critic to Beccaria. Graeme Newman referred Beccaria as a pampered intellectual who had no firsthand knowledge of Criminal Justice System. Among his major weaknesses were the rigidity of his concepts and lack of provision for justifiable criminal act. Utter inflexibilities about basing penalties entirely on the crime and not at all on the criminal. The emphases on punishment as an appropriate response to crime, whether founded on principles of deterrence or revenge, have left many contemporary criminal justice initiatives foundering on overcrowded prison and overload work in courts. At the beginning of the 18th century one philosophical school one philosophical school advocated uniformity of laws, but the judges were opposed. According to them custom differ from province to province therefore the laws must differ. Beccaria was much more interested in Prevention and Justice, rather than the causes of crime. Philosophers were not able to change the barbarous punishments of the Middle Ages in France; most of those laws remained until the eve of French Revolution. ### Jeremy Bentham Among those influences by Beccaria was the Englishman, Jeremy Bentham who is also known as the founder of English 'Utilitarianism' or 'philosophical radicalism'. According to “utilitarianism" for the individual life was highly rational and calculated pursuit of pleasure and avoidance of pain. Society however had to stress on general good rather individual pleasure. His 'new world prison' was designed to ensure that the prisoner could never know when he was being watched. Visibility and surveillance would function as a cost effective instrument of discipline and control. Almost 200 years later, Michel Foucault would spell out the wider implications of Bentham’s utilitarian determination to 'grind rouges honest', Bentham devised a 'hedonistic calculus' with the idea that the individual exercise of free will would lead people to avoid crime where the benefit to be derived from coinmitting crime was outweighed by the pain of punishment. He termed his philosophy of social control "utilitarianism". According to both Bentham & Beccaria, Punishment should be "swift and certain" as well as just, in order to be effective. A product of the Enlightenment then sweeping through Europe, the classical school demanded recognition of rationality and made possible the exercise of informed choice in human social life. ### Write a short note on Social Policy and classical theory. Much of the practice of criminal justice in across the world is build around the conceptual basis provided by the Classical School Theorist. Many contemporary crime prevention programmes have their philosophical rocts in the classical axioms of deterrence and punishment. Modern heirs of the classical school see punishment as necessary central principle of criminal justice policy and believe it to be a natural and deserved consequence of criminal activity. According to such thinkers there is need for greater prison capacity and new prison construction. They use evidence of high crime rates to argue that punishrnent is necessary crime preventative. ### Write a short note on social contract. Every individual is bound to society only by his/her consent and that; therefore, society is responsible to the individual and visa-versa! Law is necessary condition of the social contract. The basic principle behind laws is that, greatest happiness to be shared by greatest number of people. ## Neo-classical School (19th Century) This school of criminology has basis of its belief in free-will. It emphasized the need for an individualized reaction to offenders. 1. Prior to Neo-classical the shocking aspect of early 19th century penal codes was that they did not provide for the separate treatment for children. 2. The changes brought in neo-classical period were, that the children under 7years were exempted by the law because they were presumed to be unable to understand différence between right and wrong, even mental disorder (Insanity) became reason to be exempted from the charges. 3. Any situation or circumstances that made it impossible to exercise free will as a reason to exempt a person from legal responsibility for what otherwise might be a criminal act. 4. It wasn’t scientific approach but it begins to explore the causation of crime. 5. "Free will tempered by exception" Neo-classical philosophy. 6. Neo-classists approached the study of criminology on scientific lines by recognizing that certain explanatory situations or mental disorders deprive a person of his normal capacity to control his conduct. 7. Neo-classists were the first in point of time to bring out a distinction between the first offender and the recidivists. They focused atleast some attention on mental causation indirectly. 8. They generally believed that all criminals, whether responsible or irresponsible, must be kept segregated from the society. ### Critic * It is believed to be solely based on philosophy and arm chair thinking. * It is not based on empirical research. * Penalties proportionate to the gravity of the criminal conduct. * They generally believed that all criminals, whether responsible or irresponsible, must be kept segregated from the society. Let us now understand what exactly theory means.... ## Theory Why do you do that? Why do you behave that way? Such questions about people behaviour are central/essence of social science enquiry. Where our focus group in general includes individuals, family, social groups, communities, cultures etc. So in order to engage in social science inquiry you may resort to any of the processes like research and theory. Hence theory may be referred as a tool used to understand and describe the world. Or another appropriate definition can be, a theory is a general framework of ideas and how they relate to each other that can be used to answer questions about the world. Usefulness of a theory is measured by its ability to describe or predict some event or behavior. Its importance can also be measured by its heuristic value i.e. a degree to which a theory help us generate questions. It helps us decide what to research; result of research can lead to the development of new theories. Such a relationship is called Symbiotic relationship. **RESEARCH→POSSES QUESTIONS➔ ANSWER THEM BY MAKING OBSERVATIONS + COLLECTION OF DATA→PATTERNS EMERGED➡ THEORY DEVELOPS.** Thus theory relps us explain "what’s going on" and allow us to predict "what’s going to happen" when certain conditions are present.