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Friday, September 3, 2010

Criminology - “Relationship of Criminal Policy, Criminal Law and Criminology”

CRIMINAL LAW

Whatever attempt may be made to define crime, it is clear that it is an offence committed by an individual in the society. According to Kenny, Criminal Science is therefore a social study, and its aims are to discover the causes of criminality, to devise the most effective methods of reducing its amount, are to perfect the machinery for dealing with those who have committed crimes. It has three main branches:-
• Criminology
• Criminal policy
• Criminal law

Criminology is concerned with the causes of crime, and comprises of various theories of crime. It can be defined as the study of crime, the causes of crime (etiology), the meaning of crime in terms of law, and community reaction to crime. Not too long ago, criminology separated from its mother discipline, sociology, and although there are some historical continuities, it has since developed habits and methods of thinking about crime and criminal behavior. Some are enumerated below:
Sutherland and Cressey define Criminology as:-
“Criminology is a body of knowledge regarding crime as a social phenomenon”. It includes within its scope the process of making laws, the process of breaking laws and finally the reaction of the society towards the breaking of those laws. These processes are somewhat three aspects of a unified sequence of an act.
Sutherland gave that there are three main divisions of Criminology. That is:
• Sociology of law: It is an attempt to scientifically analyze to the conditions under which criminal law develops. Criminologists examine and evaluate the origins, nature, application, and modification of our criminal laws. Criminologists recognize the fact that laws do not simply exist; rather they are consciously created and maintained by members of a society. Laws also reflect cultural values; they will differ significantly across societies, and will change over time to reflect changing values, beliefs, and social realities.
• Criminal etiology: It is an attempt at the scientific analysis of causes of crime. Criminologists attempt to identify the causes of criminal behaviour. Most modern theories of crime are derived from the major sociological perspectives: structural functionalism, social conflict, and symbolic interactionism. Explanations of criminal behaviour range from individuals having ambitious goals but no legal way to reach them, to the idea that (like other behaviours) criminal behaviour is learned from those we spend time with, to the assertion that powerful members of society act to criminalize the behaviours that threaten their power and position.
• Penology: It is a study concerned with control the rate of crime. Sutherland says that the term crime is unsatisfactory because the division includes many methods of control which are not penal in nature. Criminologists explore the agencies and processes concerned with the apprehension and treatment of offenders. These include police, the courts, and the correctional system. The motives underlying the various societal responses to crime range from the desire for retribution (an eye for an eye), to the desire for restoration (taking whatever steps are necessary to "undo" the negative effects of the offense).
In sum, the discipline of criminology involves the systematic study of the nature and causes of crime in general, as well as examining the institutions charged with responding when a crime is committed. Criminologists seek to develop knowledge and interventions that can help to address the issue of crime as a social problem.
Criminology has been extremely concerned with the issue of POLICY RELEVANCE. For most of the modern theories, I've tabulated the POLICY IMPLICATIONS.

BIOLOGICAL THEORY: Treat the defect and protect society from the untreatable. Treatment to include drugs, psychosurgery, plastic surgery, genetic counseling, and eugenics for the untreatable. Protection to include experts as decision makers, individualized diagnosis, prediction, and indeterminate sentencing. Tendency to medicalize justice issues, and potential for misuse by government as form of social control.

PSYCHOLOGICAL THEORY: Prediction, prevention, and therapeutic intervention. Intervention therapies to include psychoanalysis, group therapy, counseling, family therapy, drug treatment, and reconditioning. Psychoanalysis involves correcting childhood problems. Counseling involves resocializing and uncovering new behavioral options. Drug treatment is recommended for those with certain traits. Cognitive therapy involves learning new ways to think. Tendency to do better with sexual and violent crimes, but ignores situational factors and has some untestable assumptions.

DISORGANIZATION-ECOLOGICAL THEORY: Acculturation and assimilation along with community empowerment. Acculturation and assimilation to include helping immigrants and isolated subcultures feel like part of mainstream society. Sometimes requires moving people to new parts of town and urban renewal. Community empowerment to include strengthening grass-roots organizations and integrating networks with wider political, social, and economic resources. Tendency to have social engineering and ethnocentric implications, and fails to explain insulation of some people frominner-cityinfluences.

ANOMIE-STRAIN THEORY: Social change and equal opportunity. Some rehabilitation emphasis through coping with stress programs. Social change involves reorganizing socioeconomic roles available in society; bringing salaries in line with contribution to society, so that professional athletes don't make more than teachers, for example, and eliminate greed, jealousy, and excessive economic aspiration. Equal opportunity to include focus on entitlements of legitimate options through better educational system, improved management practices in workplace, creation of fulfilling jobs, welfare floors, War on Poverty, Head Start programs, and better aptitude-career planning.
LEARNING THEORY: Rehabilitation through reeducation and resocialization. Segregate offenders and keep suggestible people away from bad influences. Resocialize through parental skills and peer evaluation training. Reeducate by replacing excuses and justifications for crime with reasons for following the law.

CONTROL THEORY: Prevention and rehabilitation through increased bonding. Bonding to include inculcating a desire not to hurt parents, teachers, friends, employers, police, and religious figures, establishing trust relationships, developing prospects for the future, and believing in the basic institutions of society. Tendency to have highest level of success of all criminological theories, especially when combined with work-retraining schemes, but difficult to put into practice when dealing with diverse ethnic differences.

LABELING THEORY: Prevention through limiting social shaming reaction in others and replacing moral indignation with tolerance. Some rehabilitation emphasis in helping offenders be rehabilitated from the label. Prevention to include alternatives to prison programs involving diversion, client empowerment schemes, mediation and conciliation, victim-offender forgiveness ceremonies, restitution, and reparation. Tendency to have impractical policy implications, and doesn't explain serious offending well.

RADICAL-CONFLICT THEORY: Social change and redistribution of wealth. Some rehabilitation emphasis in empowering employees to see exploitation inherent in capitalist system. Social change to include decriminalization of consensual crimes and drug offenses, dismantling of bourgeois therapies, institutions, and Police State. Redistribution of wealth through employee ownership of corporations. Eventual move toward strict equality and socialist or communist society. Tendency to be trivialized as Marxist ideology, and does not explain high crime rates in more socialist countries.

FEMINIST THEORY: Social change and elimination of power. In general, seeks to replace gender-based power structures; i.e., patriarchy, with matriarchy, which focuses upon women's principles of care, nurturance, connectivity, community, and ethics. Elimination of power involves decentralized socialism providing equal access to the process of decision making. Tendency to ignore women as offender as well as unique qualities of persons of color, and retreats into diversity issue subsuming all differences as examples of women struggling to define themselves.

MIDDLE-CLASS THEORY: No strong policy implications, but implies reorganization of youthful outlets for fun and play so that "harmless" activities are taken more seriously, or that economic affluence should be regulated in some way.

INTEGRATED THEORY: No strong policy implications. It depends on which specific theories are integrated. Implications usually involve some aspect of each specific theory.
Hence we see that Criminology has a two fold purpose that is:
• To scientifically analyze the reasons of crime.
• To use this information to control the crime taking place. This information is used to the formulation of future policies i.e. Criminal Law and what shall be the penal sanctions for breaking of these laws i.e. what shall be the reaction in case someone breaks the laws.
The following presentation deals with the relationship of Criminology, Criminal Policy and Criminal Law. But before we trace out the relationship between these three, we must discuss as in what is central point of issue around which these three are revolving i.e. is precisely “CRIME”. According to the conventional definition of:
“Criminal behavior is a behavior in violation of criminal law.” The word ‘crime’ in modern dictionary definitions lends itself to a variety of meanings. It has a legal meaning. It is “an act (…) forbidden by a public law of a sovereign state” as injurious to the public welfare, which, after indictment and trial, may be punishable by the judgment of a court. (Merriam-Webster’s 3rd, 1976).
No matter what the degree of immorality, reprehensibility or indecency of any act it is not a crime unless it is prohibited by criminal law.
“Criminal Law”
The “Criminal Law” is in turn defined conventionally as a body of specific rules regarding the human conduct which have been promulgated by political authority, which apply uniformly to all members of the classes to which the rules refer, and which are conferred by punishment administered by the state. In order to make sense of criminal law and the substantive law established by the criminal law, it is important to establish a framework. The first question that arises is that what acts should be criminalized?
CRITERIA FOR CRIMINALISATION
It is common to assert that there are two conditions that need to be satisfied before the criminalization of the conduct is justified:-
(1) The conduct must be wrongful.
(2) It must be necessary to employ the criminal law to condemn or to prevent such conduct.
(3) It must be permissible to criminalize the activity. It must not be in contravention to the basic human rights.
Herbert L. Packer in his book “The Limits of Criminal Sanction” writes as to what acts can be considered as crime:-
(1) The conduct s prominent in most people’s view of socially threatening behavior, and is not condoned by any significant section of society.
(2) Subjecting it to the criminal sanction is not inconsistent with the goals of punishment.
(3) Suppressing it will not inhibit socially desirable conduct.
(4) It may be dealt with through even –handed and nondiscriminatory enforcement.
(5) Controlling it through the criminal process will not expose that the process to serve qualitative or quantitative strains.
(6) There are no reasonable alternatives to the criminal sanction for dealing with it.
These criteria can be used in making up a kind of priority list of conduct for which the legislature might consider invoking the criminal sanction.Hence these criteria along with the knowledge about the past crimes through the subject of criminology, “Criminal Law” of the State is formulated.
Hence one of the branch of criminology i.e. the “Sociology of Law” which deals as to examine and evaluate the origins, nature, application, and modification of our criminal laws. The above mentioned criteria for criminalization of any act are based on various studies made by the criminologists. Hence we see that criminology helps the criminal law to keep in pace with the changing society and its priorities because Criminologists recognize the fact that laws do not simply exist; rather they are consciously created and maintained by members of a society.
Hence, Criminal law has two fold objects:
• To define as what acts are to be criminalized or as to what are the acts which are regarded as crimes.
• With regard to criminal policy, it is an instrument of criminal policy which helps to curb crime from the society
CRIMINAL POLICY
According to Kenny, Criminal Policy is the name given to that branch of criminal science which studies the means by which the harmful conduct in the society can be limited. This definition and name resembles what Sutherland and Cressey have talked about “Penology”. It is a study concerned with control the rate of crime. Sutherland says that the term “Penology” is unsatisfactory because the division includes many methods of control which are not penal in nature. Criminologists explore the agencies and processes concerned with the apprehension and treatment of offenders. These include police, the courts, and the correctional system. The motives underlying the various societal responses to crime range from the desire for retribution (an eye for an eye), to the desire for restoration (taking whatever steps are necessary to "undo" the negative effects of the offense).Hence, we see that the term Criminal Policy is able to remove the insufficiency from the term “Penology” as it includes various means other that those being penal in nature, in order to curb crime.
Various researches in the field of criminal policy relate to:
• The quality and effectiveness of public services and resources (Including, police, probation and services for drug users);
• The causes, consequences and prevention of offending, particularly in sex work, drug use and burglary;(recent researches taking place in U.K.and U.S.).
• Public attitudes towards: crime and sentencing; the police; and community safety.

Penology as a science emerged in the early 20th Century out of what used to be called the field of criminal hygiene. Nobody uses that outmoded term "criminal hygiene" anymore, but it had to do with how convicted criminals could be best dealt with to enhance their rehabilitation. Probably the closest thing to it today is the notion of correctional administration and treatment (especially psychological treatment), but even this notion lacks the thrust of penology (as a subfield of criminology) toward applying selected theories of criminology to what works best at handling inmates. Penology is also essentially about disparities between the "real" and the "ideal" at least in terms of its association with the penal reform movement started by people such as Enoch Wines (1867), Zebulon Brockway (1901), and Harry Elmer Barnes (1926). In the hands of historians, like Blomberg (2000), penology is also about the study of "intended" and "unintended" consequences of having a penal system, where "penal" in this context means a punishment or control system guided by some systematic and enlightened philosophy of punishment or at least the common sense principles of human behavior.
Brockway used to call the way prisons were run before the reformatory movement atrocious and examples of the "old penology" because there was no individualized treatment. The "new penology" of reformers like Wines and Brockway aimed at no less than the "cure" of crime, delinquency, and insanity through a case-by-case approach. Brockway would say that punishment was not the true goal of corrections; the protection of society is the true goal, and this leads to prevention, or the protection of those exposed to criminal activity. Hence, penology becomes the science of figuring out how to run a prison in a dignified manner that represents a societal concern for preventing the individual offender from ever wanting to commit a crime again as well as how, as a society, we can do our part to prevent being at least partially responsible for producing offenders in the first place and in the second place, prevent exposing ourselves to less protection by not caring about how bad the offender is treated in captivity.
Prison administration for the 21st Century, according to John DiIulio (Governing Prisons: A Comparative Study of Correctional Management New York: Free Press 1987), will be a return to the old penology in a phenomenon he calls the "new old penology". It goes like this: from 1900-1940 there was a focus on prison administration; from 1940-1990 there was a focus on inmate life (mostly due to the interests of vast numbers of sociologists holding academic positions in criminal justice); from 1990-on there will be a resurgence of interest in prison administration.
Hence, this concept of new penology is sometimes reoffered to as criminal policy. Criminal policy tries to deal the rate of crime not only by using the penal sanctions against it but also by other means. It uses the information provided by criminology, and its subject for investigation therefore are:-
• The appropriate measures of social organization whereby harmful activities may be prevented.
• The treatment may be accorded to those who have caused harm.
There is an appropriate sanction for each of the particular crime ranging from penalty of death, through various degrees of deprivation of liberty, down to such measures as medical treatment, supervision on probation and mere warnings.The Criminal policy of the state uses the information supplied by the Criminology and hence applies the appropriate sanction to it. If appropriate sanction is used to curb the crime, keeping n mind the nature and cause of the crime committed, it will give the best solution to the problem and thereby help in reducing the crime rate. Also the Criminal policy dictates the principles by which harms are to be classed as crimes and criminals are to be detected and treated. Hence, it is clear that, criminal law which forms the third branch of criminal science, is an instrument of criminal policy which is used to curb crime.
Hence, criminal law, criminal policy and criminology are all the branches of criminal science which is concerned with control and reduction of crime in society.

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