The making of law is influenced by numerous factors. There is significant discussion of case studies of law making in the literatures of various disciplines including criminology, sociology, public policy, political science, law, and in other fields that address specific law making issues (including ecology and public health, for example, Beard 1913; Deflem 2008; Friedmann 1957; Miller 1976; Pashukanis 1924; Pound 1912; Turk 1976). Taken as a whole, this literature has identified a wide range of factors that affect the making of law in general and the making of specific kinds of laws. With respect to many kinds of law making, corporate influence, campaign contributions, lobbying, public interest groups, think tanks, and even scientists may influence the making of law (Golden 1998). This is especially true for laws that apply to corporations and to the environment. Also influential are professional groups that represent, for example, law-enforcement officers (Stolz 2002). If the making of the criminal law represents public opinion in general, then the impact or influence of external groups on the making of the criminal law ought to be minimal.
This recognition plays an important role in understanding and interpreting the process of law making with respect to the criminal law. In the United States, in other nations, and even at the international level, law exists in criminal and noncriminal forms. However, the issue of how external influences shape the law-making process has not been adequately addressed. Does the United States have different kinds of laws because the public agrees that not all harms ought to be treated as criminal harms? Do these different laws reflect some necessary administrative definition of crime that needs to be made in order to regulate certain forms of harmful behaviors? Are these noncriminal laws created in response to interest group pressures and represent a compromise between public opinion, interest group desires, state interests, and so on? More important, it is unclear why criminologists ought to distinguish between types of law violations anyway, since behaviors that are harmful may be addressed by different types of laws (not just criminal laws).
Why should public opinion matter in the effort to create a scientific definition of crime? Why, in other words, do criminologists frame the definition of crime not only in relation to law but also in relation to the public’s supposed influence on the criminal law? Why is the public’s opinion of law and crime worth considering? Is it somehow scientific? Or, are criminologists unconcerned that public opinion is not an appropriate basis for a scientifically derived concept of crime that will serve as the basis for a discipline?
In modern societies, the law-making process is highly influenced by lobby groups, Political Action Committees (PACs), and other political and corporate interest groups (Hogan et al. 2006; Hogan et al. 2010; Long et al. 2007). These groups often manage to significantly impact the law-making process. While this observation may have greater relevance to certain forms of law such as environmental regulations, we cannot ignore the fact that interest groups wield sufficient social, political, and economic power to shape the law. Part of shaping the law includes influencing whether a harmful behavior is subject to criminal or noncriminal forms of social control. Once the decision is made that a particular harm is to be treated “noncriminally” due to the influence of external forces, why does criminology accept that outcome as rational and consistent with the concept of crime?
Power and influence play important roles in what behaviors and actions are labeled criminal and noncriminal in the law. When harm is created by those in power they will want the criminal law shaped in a way that excludes their behavior as a crime. Because power is an important concept in criminal law, it is necessary to address some of the specific ways in which power can shape the law.
Criminologists have long addressed the issue of whether crime and social class are related.1 This is an important question, and if it can be demonstrated that the criminal law has a tendency to target a particular class of people, then we have reason to question the validity of the criminal law because it is biased.
In the 1960s and 1970s, radical criminologists took up the analysis of the biases contained in the criminal law. But long before radical criminology had become widespread enough to be considered a subspecialty within criminology, questions concerning the class biases contained in the criminal law were raised. In his 1845 book, The Conditions of the Working Class in England, Fredrick Engels was among the first to discuss the problem of crime from a working- class perspective. Engels drew attention to the fact that the criminal law expressed a legitimized form of state control and produced an apparatus for controlling the working class. Engels focused attention on the idea that the criminal law was an effort to control the “moral deprivations” of the working class. It was necessary for the criminal law to control these “moral deprivations” to restrict working-class behaviors that undermined the logic of capitalism and the “proper” role of the working class in capitalist society.
Engels also noted that the criminal law had virtually nothing to say about the moral deprivations of the wealthy and powerful. Engels was not naive in his analysis. He noted that while the poor might steal in order to survive; and the worker might engage in acts of theft, vandalism, and sabotage in the workplace; or that workers engaged in acts of excess at times to dull the pain of their existence, it was only these kinds of acts that the criminal law restricted. When the capitalist forced workers to labor up to 18 hours a day or sometimes seven days a week; when he created dangerous conditions of employment and robbed them of health, limb, and life;
when he employed children in the work force and paid them far less than adults; when he restricted the wages women could earn; when he followed the rules of capital and exploited labor in order to produce profit—the criminal law paid no attention to and found no fault with these harmful behaviors.2 The makers of the law did not ask the worker if they perceived hazardous work conditions as crime or whether they found their low wages to be a crime. Rather, the criminal law was a reflection of the domination of the capitalist system of production that focused its social forces and power on the lowest social classes. For example, when the capitalist charged excessive interest, that was a “business proposition,” but when someone outside of that class lent money at high interest rates, the behavior was a criminal violation. Thus the criminal law cannot be an objective social force that applies its power equally across classes.
At about the same time Engels was engaged in his observations of the conditions of the working class in England, Karl Marx was independently addressing similar concerns. In 1842, Marx wrote a series of essays on the laws related to the theft of wood. These new criminal laws made it an offense to engage in behaviors that were traditional behaviors of the poor—the gathering of fallen wood. This behavior, now illegal, robbed the poor of their ability to acquire the fuel they needed to cook and warm their homes or to perform independent labor tasks for which fallen wood could be used. Historically, fallen wood, which was essentially a waste product of nature, was free to those who applied their labor power in its acquisition. The new theft-of-wood laws, however, redefined this customary right of collecting fallen wood to the property of land owners, monarchs, and the new capitalist state. By making the collection of fallen wood a crime, the new rules would force those without jobs to engage in some form of wage labor to acquire the money needed to purchase wood that was cut and collected as a commodity and to pay the capitalist operating businesses for access to customary rights. In this way, the law turned a custom—a widely shared norm—into a crime. The majority of the public did not come together to identify the collection of fallen wood as a crime. That effort was led by interest groups, and the resulting law was not a reflection of a consensus of public opinion.
In his 1916 book, Criminality and Economic Conditions, Willem Bonger reinforced the observations offered by Marx and Engels concerning the class bias of the criminal law. Though the main purpose of Bonger’s book was to explore the ways in which capitalist systems of production generated social and economic conditions that produced crime and to empirically examine differences in crime across socialist and capitalist nations of the time, he did not ignore the class biases found in the criminal law. Bonger argued that the driving force behind crime in capitalist nations, the emergence of widespread social egoism (or the widespread emphasis on individual self-interest and the inability to empathize with others), was evenly distributed among the social classes. The working class, however, appeared to engage in crime more often than the wealthy. This, Bonger explained, was not a result of the differential distribution of egoism across classes, since after all, egoism was a social characteristic of capitalism. Rather, the differences between the criminality of the poor and the capitalist class were a result of the structure of law and law enforcement.
In the 1930s and 1940s, Sutherland made similar observations about the criminal law. Unlike the earlier studies, Sutherland addressed his comments to the criminological community. As noted previously, Sutherland made these observations to draw criminological attention to forms of crime—white-collar and corporate crime—that were neglected by criminologists. Sutherland made reference to class bias by noting that the ordinary criminal defined in the criminal law was primarily poor. His observations on the distribution of crimes as behaviors that violated other forms of law convinced Sutherland that crime was more evenly distributed than measures of criminal law violations revealed. He pointed to widespread, repeated crimes by corporations in making his case that the criminal law contained a class bias.
The reemergence of the theme of class bias in the 1970s set forth primarily by Marxist or radical criminologists examined similar issues to those previously described (Lynch and Michalowski 2006). With numerous descriptions of the criminal law’s class biases along with renewed emphasis on the crimes of the powerful, this view created a significant challenge to the orthodox view and definition of crime as a violation of the criminal law. Radical criminologists pointed to two biases orthodox criminology promoted. The first involved a focus on the poor, who, as radical criminologists detailed, made up the vast majority of those processed through the criminal justice system for violating the criminal law. The second bias was the neglect of the crimes of the powerful and the identification of those crimes in noncriminal codes. Radical criminologists such as Sidney Harring, Tony Platt, Paul Takagi, William Chambliss, Steven Spitzer, and Jeffrey Reiman pointed to the replication of these biases in the institutions designed to enforce the law, such as policing, the courts, and the correctional system. These criminal justice institutions, it was argued, reinforced the class biases contained in the criminal law and aided in directing the forces of social control against the poor and the working class. In the United States, for example, the earliest forms of policing such as the Coal and Iron Police were assigned the task of breaking strikes, controlling the labor force, and harassing labor organizers. Urban policing in the United States, which emerged at about the same time, was developed to protect the property of the capitalist class, including factories and warehouses that occupied areas of the urban landscape that were abandoned at night and were potential targets for street crime. The extension of laws related to vagrancy, disorderly conduct, nonsupport, public drunkenness, and drug use became key instruments in the criminal law and the class war designed to control, discipline, and make the working class compliant (Foucault 1979).
Radical criminologists argued that the class biases contained in the criminal law, and law more generally, were also evident in the fact that lawmakers created different forms of law to apply to different classes of people (Lynch 1988). This form of class bias could only be observed if researchers compared the class differences of offenders prosecuted under different forms of law, an issue that orthodox criminology tended to ignore in its empirical assessments of radical hypotheses about crime and law. Consistent with its own expectations and definition of crime, orthodox criminologists turned radical explanations of crime into explanations of street crime and incorrectly tested radical class models and explanations using street offender data. For example, if one was to study class bias by exploring the class differences of the offenders charged under criminal law, those differences would be unlikely to emerge since the population targeted by the criminal law and processed through the criminal justice system has a truncated income distribution. In other words, since the class of those found in the criminal justice system did not vary much, studies that used these data were unlikely to find any class variation. Instead of perceiving that the lack of class variation in street offending measured by the criminal-law definition of crime confirmed radical hypotheses, orthodox criminology instead suggested that evidence of class variation could not be found. What those studies neglected was the need to compare that class distribution to the larger distribution of class in society and to the actual ramifications of the class model radicals used and their suggestions about how it worked across forms of law and social control. Moreover, those studies overlooked the fact that the radical definition of class was not the definition of class employed by orthodox researchers. The real point of radical explanations was about the production of crime. The production of crime is not the kind of simplistic model of class and crime orthodox criminology presented. Rather, recognizing that crime is a combination of the behavior of people and the behavior of law, radical explanations describe factors that impact behavior under conditions created by the construction of the law in particular ways. As a result of the intersection of behavior and the making of law, crime was constructed so that the poor and working class were overrepresented in the criminal justice system in comparison to their representation in society, while the rich and powerful were regulated through noncriminal mechanisms. Members of these classes, therefore, would show up in different parts of the overall system of social control.