Criminalization

In criminology, criminalization or criminalisation is "the process by which behaviors and individuals are transformed into crime and criminals" (Michalowski p.6). Previously legal acts may be transformed into crimes by legislation or judicial decision. However, there is usually a formal presumption in the rules of statutory interpretation against the retrospective application of laws and only the use of express words by the legislature may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo de facto criminalisation through more effective or committed legal enforcement.

The problems

All societies conduct on-going debates to inform their policy making. In this particular debate, there has been some uncertainty as to the nature and extent of the contribution to be made by the victims of crime. All governments collect some statistics as to the incidence of crime within their territory, and accept a general role in offering some degree of protection to their citizens as an aspect of the social contract. But, as Garkawe (2001) indicates, the relationship between victimology and criminology has become problematic. The Positivist School asked, why did this person offend? The Neo-Classical School and Left Idealism — from opposite political perspectives — asked why this social reaction was made to this behaviour? And conventional victimology asked, why is this type of person victimised? Fattah (1989 and 1992), Harding (1994) and others argue that victimology has become politicised, and that biased exploitation of research materials is both driving the cycle of criminalisation and decriminalisation, and distorting the criminal justice system (Walklate: 1989). The concern is that, within the dialectic of Right Realism and Left Realism (see generally Walklate: 2003), a focus on the victim promotes rights selectively for certain victims, and advocates the assumption that some victim rights are more important than competing rights or values in society (Elias: 1993). For example, an Islamic feminist might seek consistency of treatment for women as victims and, therefore, demand the decriminalisation of abortion, adultery, and seduction (Zina is a Hudud offence in syariah law), and the criminalisation of domestic violence and sexual harassment.

In theory, society reaches a consensus view on whether certain acts or behaviour are harmful. In cases where there is agreement, the criminal justice system may be extended to treat those matters as crimes. Conversely, when society has evidence that it is no longer at risk from such acts or behaviour, they may be decriminalised. For example, Recommendation No. R (95) 12 adopted by the Committee of Ministers of the Council of Europe on the management of criminal justice, advocates that crime policies such as decriminalisation, depenalisation or diversion, and mediation should be adopted wherever possible. But the law and order debate between right and left politicians is often superficial and unscientific, formulating policies based on their appeal to an uniformed electorate rather than properly conducted research (Currie: 1991). Encouraged by the politicians, the media which is increasingly owned by large corporations, endorses each new war on crime and drugs, ignoring all the others that have been fought and lost before (Elias 1994; Jackson & Naureckas 1994). Its bias toward official and corporate perspectives on criminal justice are so strong that some regard crime news as essentially propaganda (Leiper 1994).

Discussion

Leading criminal law philosophers, such as Dennis Baker and Joel Feinberg have argued that conduct should only be criminalized when it is fair to do so. In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. The commonly cited objective justification for invoking the criminal law is harm to others, but it cannot deal with all situations. For example, people are not necessarily harmed by public nudity. Feinberg suggests that offence to others also provides an objective reason for invoking the criminal law, but it clearly does not as offence is determined according to conventional morality.

People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of poverty and malnutrition, others by violence which might stem from a major conflict such as war or from the personal violence in a robbery. The environment may be damaged by pollution, there may be hazards at work. Many of these sources of injury will be ignored while the state may delegate powers of control to a number of different agencies within an international framework where supranational agencies and human rights organisations may offer assistance in responding to the causes of those injuries.

When a state debates whether to respond to a source of injury by criminalising the behaviour that produces it, there are no pre-set criteria to apply in formulating social policy. There is no ontological reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of corporate manslaughter, are either ignored or dealt with as civil matters.

The criminalisation process defines and classifies behaviour. It broadcasts the laws so that no-one may have the excuse of ignorance, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components:

1. Creation of a social order. This is both a socio-economic process, a "...fundamental ordering of social relations so that those things necessary for social survival can be produced and distributed in some predictable fashion" and an ideological process so that there can be a "...development of values, beliefs, and ideas related to the concrete tasks of production and distribution."(p. 6). Thus, society must develop the apparatus of law creation, law enforcement and punishment and the system must be acceptable to the majority of those who live in the community. If the laws do not match the general mores, their enforcement will be a source of friction and disharmony. Conformity to the social order must, for the most part, be self-enforced.
2. For the times when self-enforcement fails, society must create a legal order. This part of the process sees the centralisation of power within the institutions of the political state. Weber's Thesis argued that the state had a monopoly on the legitimate use of force within its borders. Some states justified the criminalisation process as demonstrating their concerns about safety and security, the policy of control, policing, criminal justice, and penal practice. The modern state is decentralising and privatising its functions. This is changing the character and content of the remaining institutions of the state which must now work co-operatively with other for-profit agencies.
3. The political order must realign so that the remaining political entities such as legislatures and judges set agreed targets for state control and then produce actual outputs of the legal order, i.e. of people defined as criminal and processed through that system.

Ontological basis of crime

Put in the most simple terms, ontology deals with or establishes the clear grounds for being. (Heidegger, Martin, Being and Time, introduction, referencing Plato's Parmenides.) In some of the traditional schools, such as those of the post-1688 English or Americans (many of the writings of the American Founding Fathers, but especially The Federalist) and their Dutch predecessors (see Kossmann, E. H. Political Thought in the Dutch Republic, 2004) ontology proper is deemed beyond the scope of legal thought, in accord with the modern distinction between society and state (which some consider based in the distinction the Romans made between themselves and their Italian allies, the socii, but not given the theoretical articulation we recognize today until emphasized by Thomas Hobbes' Leviathan. See Sovereign state.) However, some classical theorists, such as Aristotle, in his Politics and Metaphysics, and to a lesser degree in his Topics, suggest that the distinction is at least problematic. One need consider no further than the claim that man is a political animal to see this is so.

As a political animal, man has come to see himself as possessed of rights (UN Human Rights Council, http://www.ohchr.org/english/bodies/hrcouncil/) -- whether these are the Rights of Englishmen of old, or the universal human rights advocated vigorously toward establishment today through the matrix of commercialism (International Covenant on Economic, Social and Cultural Rights, http://www.unhchr.ch/html/menu3/b/a_cescr.htm). At least in the today dominant American model, deprivation of right amounts to injury (consider especially Justice Stevens dissenting opinion in Castle Rock v. Gonzales), and injury -- so goes the prevailing theory -- amounts, when coupled with requisite intent, in most cases, to crime, when it does not admit of civil redress. Thus, again in simple terms, and to the extent that human beings are indeed political beings, crime does seem to have an ontological basis. (For one approach to the question of criminal ontology, see "Understanding Crime and Social Control in Market Economies: Looking Back and Moving Forward" by Robert Bohm in Jeffrey Ian Ross, ed. Cutting the Edge: Current Perspectives in Radical/Critical Criminology and Criminal Justice. Westport, Conn: Praeger, 1998.) This, further, seems to hold if ontology itself is divided into political and trans- or supra- or meta- political ontology -- i.e., what once was the realm of Christian theology. Of course, it does not matter whether that theology is Christian or belonging to some other apolitical belief. The point is that one may, with some justice, argue persuasively that being is divided. This need not, however, force the question of meta-political crimes. Our purposes here, in this article, are limited to the political. For the question in general see Ontology.

Baker argues that only objective harms and other objective bad consequences (or actions in the case of inchoate and endangerment offenses) are prima facie criminalizable. By other bad consequences Baker means privacy violations and conduct that does not necessarily result in tangible harm, but does result in unwanted consequences. Baker argues that the privacy violations that result from being forced to receive unwanted obscene information in public places (exhibitionism) would amount to a sufficient bad consequence for the purposes of invoking the criminal law, but argues that proportionate punishment means that such conduct should only be punished with fines rather than jail terms.

See also

• Driving While Black
• Youth rights
• Deriminalization

References

• Dennis J. Baker, (2009) "The Moral Limits of Consent as a Defense in the Criminal Law", 12 New Criminal Law Review (2009); Dennis, J. Baker (2008) "The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation", 33 Australian Journal of Legal Philosophy 66 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300351; Dennis J. Baker, (2008) "Constitutionalizing the Harm Principle", 27(2) Criminal Justice Ethics 3 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300356; Dennis J. Baker, ‘The Sense and Nonsense of Criminalizing Transfers of Obscene Materials: Criminalizing Privacy Violations,’ 26 Singapore Law Review 126 (2008)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1369123; Dennis J. Baker, 'The Moral Limits of Criminalizing Remote Harms 10(3) New Criminal Law Review 370 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130052
• Currie, E. (1991) "The Politics of Crime: the American Experience" in The Politics of Crime Control. Stenson, Kevin. & Cowell, David. (eds.) London: Sage. ISBN 0-8039-8342-5
• Elias, Robert. (1993). Victims Still: The Political Manipulation of Crime Victims. London: Sage. ISBN 0-8039-5052-7
• Elias, Robert. (1994). "Crime Wars Forgotten" in Rethinking Peace. Elias, Robert & Turpin, Jennifer. (eds.). Boulder, CO: Lynne Rienner Publishers, pp. 123-31. ISBN 1-55587-488-6

Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law, OUP, New York: 1984.

• Fattah, Ezzat, A. (1989). "Victims of Abuse of Power" in The Plight of Crime Victims in Modern Society. New York: Palgrave Macmillan, pp. 29-73. ISBN 0-312-61758-5
• Fattah, Ezzat, A. (1992). "The Need for a Critical Victimology" in Towards A Critical Victimology. Ezzat A. Fattah (ed.). New York: Palgrave Macmillan, pp. 14-23. ISBN 0-312-07551-0
• Garkawe, Sam. (2001). "Modern Victimology: Its Importance, Scope and Relationship with Criminology". Acta Criminologica. Vol 14(2), pp. 90-99
• Harding, R. (1994). Victimisation, Moral Panics, and the Distortion of Criminal Justice Policy". Current Issues in Criminal Justice, Vol. 6, 27-42
• Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random House.
• Jackson, J. & Naureckas, J. (1994). "Crime Contradictions: US News Illustrates Flaws in Crime Coverage". EXTRA! May/June, pp. 10-14.
• Leiper, S. (1994). "Crime and Propaganda". Propaganda Review, Vol. 11, pp. 44-6.
• Walklate, Sandra. (1989). Victimology: The Victim and the Criminal Justice Process. London: Routledge. ISBN 0-04-445160-1
• Walklate, Sandra. (2003). Understanding Criminology: Current Theoretical Debates (Crime & Justice S.). Oxford: Oxford University Press. ISBN 0-335-20951-3