Crime and the Color Blue
Let us begin with an example of the color blue to help us understand the nonscientific nature of the study of criminal behavior and that it is tied to place and time and is therefore unscientific. The color blue is the color of any object that appears to us as blue. This is similar to saying that the behavior we call crime is any behavior by a human that appears to us as a crime, and that the appearance of the behavior as crime is marked by the inclusion of that behavior in the criminal law. The statement about the color blue, like the statement about crime, is tautological. Blue is blue because it appears as blue. Crime is crime because the criminal law calls it a crime, and it thus appears to us as crime because of how it is labeled. Neither of these statements—the one about the color blue or the one about crime—can be falsified. Whatever appears as blue is blue, and whatever does not appear as blue is not blue. The perception of a color as blue is the same as allowing the law to define crime. The law defines a behavior as crime because those who construct the law perceive the behavior to be a crime. Once perceived as a crime, the lawmaker designated the behavior as a crime, and the perception of the behavior as a crime is now institutionalized in the criminal law.
What we can see in the previous example about the color blue is that blue exists because of its perception—blue is blue because we say it is blue. There are systems like mathematics that are based on this kind of statement—synthetic truths that must be true for the system to work as designed (Ayer 1935). Part of the question, then, is whether crime is a synthetic truth like mathematics. If it is, there would be rules, and even if we were to grant that crime is a synthetic truth, that truth needs to be expressed in logical form that can be replicated over and over again, just as mathematical rules and formulas can be replicated, producing the same results by following the synthetic laws. In short, suggesting that crime is a synthetic truth does not solve the problem related to discovering the rules that make that truth possible.
Missing from the previous description of the color blue is a concept of “blue.” The perception of blue is not its concept but rather is a certain measure of blue. The perception of blue is not a good measure, since color perception varies across individuals. To some people, colors close to blue will appear as blue. To those with certain forms of color blindness, the color blue may appear as a different color. Does this mean that if the color-blind person cannot perceive blue, then there is no blue?
This dilemma can be solved by altering the concept “blue” from a perceptual to a scientific basis and measurement. The visible spectrum of light lies in a defined range of wavelengths of approximately four hundred to seven hundred nanometers. Within that visible light spectrum, blue exists at about 475 nanometers. Thus an object that reflects back visible light of that wavelength is blue. This definition of blue is scientific, objective, and independent of perception. Using appropriate equipment, we can measure the color blue and reproduce that measure following the scientifically derived rule that blue has a given wavelength. Unless we make some measurement error, blue will be measured as blue because of its wavelength, not because people perceive it in some way. The identification of crime as a violation of law, however, has no objective, scientific basis. A crime is a crime because it is perceived as a crime by the criminal law—this is far from a scientific concept because it constantly changes and is viewed differently by different people.
At this point, we are stuck with the tautology of crime unless we can derive the characteristics of crime that are independent of the criminal law. This makes the legal definition of crime highly problematic. It has no rules that explicate what lawmakers perceive as crime, so consequently, crime has no objective existence outside the law. We often acknowledge that this observation about crime is true by simply noting that crime is a social or political construction, and hence, it will change or appear different in different political contexts. That does not solve the inherent logical and scientific problem about defining crime objectively. What that observation does is suggest that crime is a product of a synthetic system of rules without ever describing the rules and without ascertaining whether the rules are applied logically, consistently, and objectively to produce the thing we call “crime.”
Blue has a given wavelength. If we use scientific methods of measurement, whether we measure blue in France, China, India, or the United States, blue will always produce the same scientific measurement. Scientific results are reliable. The definition of crime as a violation of law lacks the kind of reliability in a measurement that one expects in science. This point can be easily demonstrated. Let us use a very specific concept of crime—drug crime. Let us also pose that using the legal definition of crime so that a drug crime is a behavior involving the use or distribution of drugs that violates the criminal law. In the real world, the behaviors that law designates as crime vary from one location to the next and across time. Scientifically, the legal definition of drug crime has severe limitations because it lacks reliability within the discipline and over space and time. Someone studying drug crimes in China may get very different results than someone studying drug crimes in the United States. Moreover, the study of drug crimes may vary day to day. The real world bears out this observation.
In November 2012, residents of Washington and Colorado voted to decriminalize the use of marijuana. Several states have decriminalized some aspect of marijuana use and possession. In Washington and Colorado, marijuana use has been legalized; in Alaska, California, Connecticut, Maine, Massachusetts, Nevada, Oregon, and Rhode Island, medical marijuana use has been approved and decriminalization has been enacted; Minnesota, Mississippi, Nebraska, New York, North Carolina, and Ohio decriminalized marijuana possession; and Arizona, Delaware, Hawaii, Michigan, Montana, New Jersey, New Mexico, and Vermont allow legal medical marijuana use. These 24 states have three different kinds of rules about drug crime, and those rules are different from federal law and from the laws in the remaining 26 states. Therefore, crime is not the same across these jurisdictions. The example here illustrates the political nature of the construction of crime and how that act of political construction causes the concept and measurement of crime to vary across jurisdictions.
This example illustrates some of the limitations of the criminal- law definition of crime—its inconsistency across places defined by the boundaries of political authority. Behavior X is a crime in location A but not in location B. If, as researchers, we use survey research methods and ask about an individual’s drug use and have a multistate sample (this could occur in cross-national samples as well), should we ignore the drug use patterns of people who live in states where drug use is not a crime defined by law? If we count those individual admissions to drug use by persons who live in locations where drug use is not a crime, have we not violated the “crime as a violation of law” concept?
Drug use is not the only behavior that fits this example. The criminal-law definition of gambling is, perhaps, even more difficult to judge than the criminal-law definition of marijuana use. Of the fifty states, all but three allow gambling related to raising money for charity. Forty of the 50 states allow pari-mutuel betting; 43 states allow lotteries; 31 states allow commercial gambling; 30 states allow American Indian gambling establishments; and 22 states allow race track betting. Again, we can see that the legal definition of gambling is inconsistent across locations.
To our list we can add other behaviors such as legalized prostitution, which is legal in some (but not all) Nevada counties but nowhere else in the United States. Furthermore, prostitution is illegal only in some nations. We find the same problem with same-sex marriage. Same-sex marriage laws vary across states. Currently, 36 US states and the District of Columbia allow same-sex marriages, and 14 states ban same-sex marriages. Current legal challenges may change laws related to same-sex marriages at any moment. Gun registration and gun ownership laws vary by state and are complex and not easily summarized. While overruled by the US Supreme Court in 2003, historically a number of states had different sodomy laws, which affects the counting of this behavior when the legal definition of crime is employed in research prior to that time.
Variation in the legal definition of crime is not limited to the offenses described earlier. The definition of rape varies across states, nations, and time. Despite those differences, the Uniform Crime Report’s (UCR) definition of rape was unchanged from its initiation until 2012. Traditionally, the UCR did not recognize male rape, so these offenses were not recorded in the UCR as crimes. Certain forms of rape recognized by the Geneva Convention are not counted in cross-national studies on crime, challenging the validity of those measurements of crime. Even the criminal-law definition of homicide is not uniform across nations or even across US states. This is true in the United States despite the existence of the Model Uniform Crime Code, which since its inception in 1962, has been fully adopted by only four states: New Jersey, New York,
Pennsylvania, and Oregon. Particularly problematic are variations in homicide laws related to feticide and the recognition of vehicular homicides.
As we can see, despite the fact that criminology assumes that the legal definition of crime is as a valid measure of crime, that measure has numerous limitations that challenge its validity. Of particular concern here is the lack of consistency in this measure across time and place, which challenges this concept’s scientific validity and objectivity.