Home Law Defining Crime: A Critique of the Concept and Its Implication
Implicit Microlevel Explanations
One goal of microlevel explanations of crime is to offer hypotheses about the causes of crime. The idea is that testing hypotheses provides sufficient empirical evidence to help build a theory of crime. This approach to the study of the causes of crime begins with an implicit assumption that there are important differences between offenders and nonoffenders.6 In order to explain crime across individuals, the researcher must begin with a concept he or she identifies as crime. However, most criminologists focus on an implicit definition of crime as a violation of the criminal law. This criminal- law definition of crime is implicit because it is not derived in any way and is simply an orientation that criminologists are trained to use. Adopting this implicit definition of crime means that the researcher has done what many criminologists before them have done—accept the criminal-law definition of crime as a valid indicator of crime.7 What they have not done is critically assess that choice or its consequences. This result may occur because the researcher has been socialized to accept the legal definition of crime from his or her mentors and as a consequence of reading the criminological literature that is mostly constructed around the legal definition of crime. In this sense, we could say that the researcher has learned not to ask questions about the concept of crime and has learned to adhere to criminological tradition. Whatever the explanation of why researchers follow the tradition of the field, what matters more is that they follow the rules and in so doing become part of the force that replicates and reinforces the institutionalization of those rules about the definition of crime as a violation of the criminal law.
As noted, most criminologists begin with an explanation of crime. Next, they assess that explanation. This appears logical, but it is not. To understand the problems associated with what seems like a logical, traditional criminological act with extensive support, it is necessary to make the distinction between what a microlevel explanation of crime sets out to do—explain the individual-level variation in criminal offending—and how that effort is undermined by reliance on the criminal-law definition of crime. We begin this discussion with a simple explanation of the problem.
When a microlevel researcher devises and offers an explanation of crime, they have a concept of crime already embedded within their thought process. They envision crime in a particular way and then set out to explain why some people engage in crime while others do not. This seems quite logical. The implied starting point for thinking about the explanation of crime is a concept of crime—that is, how crime is defined in the thought process of those trying to explain crime. Crime must have a definition for the researcher to think about explaining crime. A general concept of crime that is loose and abstract undermines the effort to devise a logical explanation of crime that in the criminological tradition has a definite referent—the criminal law. If the researcher were to acknowledge that the definition of crime they imagine abstractly as the starting point for studying crime is not the same as the criminal-law definition of crime, then they would need to elaborate an argument that moves the explanation from being about crime in the abstract to crime as defined by law. They would need to explain how their concept of crime in the abstract corresponds with the legal definition of crime.
In order to think about crime as implied, the researcher focuses on the behavioral aspects of crime. “Why is it,” the researcher asks in his or her head, “that people commit crime?” In trying to come up with this explanation, the researcher is imagining crimes as behaviors. They have not yet imagined that they need to first explicitly write out what they mean by crime, to define their idea, to make it known to themselves what they mean by crime, and to ensure that the definition of crime they have in their head is consistent, objective, scientific, and so on as described in the first part of this text— that it is both metaphysically and empirically rigorous.
Instead of engaging in a rigorous analysis of the concept of crime, criminologists often take a short cut. That short cut is to insert the legal definition of crime into the explanation once the explanation is derived. Because they have been trained to accept the criminal-law definition of crime, they have not devised a concept of crime that is necessarily consistent with the legal definition of crime. In translating their behavioral concept and explanation into a legal definition of crime, the researcher has accepted criminological tradition and has not, therefore, critically assessed what the implications of accepting that tradition might be for the explanation. They are not engaged in the kind of analysis Maxwell argues is necessary to move a science forward.
When we say that the definition of crime a researcher ought to employ when devising an explanation of crime must be consistent, we mean that its definition must be specific and unchanging even between the conceptual phase of imaging the explanation of crime and moving toward the operationalization of crime. The concept in the explanation must be equivalent to the operationalization of crime. It also means that the definition of crime must have firm, identifiable parameters, and those parameters must be identified in ways that will apply equally to all the subjects in the sample that will be studied or to all the behaviors to which it is applied. This is where the first logical errors appear.
We must also consider here that explaining why people commit crime is quite different than explaining why they violate the law as noted earlier. The Gluecks (1959), in their well-known studies of delinquents, asserted that in order to explain a phenomenon like crime, one is required to state the explanation in relation to the motivation for that behavior. Here, we have two different concepts of behavior: behavior as a crime and behavior as a violation of the law—that is, law as a political/social product as described earlier. If we accept this distinction, we can see that explaining why a person engages in any given form of criminal behavior does not explain why they violate the law. Violating the law entails making the specific decision to violate the law, and we cannot assume that the intent to behave in a particular way is chosen because it violates the law. For example, offenders may intend to get even with someone they regard as having violated their honor and that they do so through a physical act of aggression against the other. In the criminal law, that act may be defined as an assault, but the offender did not assault the other to violate the law; rather, the violation of law is simply a consequence of the act. This is much different than saying that to get even with someone they regard as having violated their honor, the offenders have specifically chosen to violate a given law to express their displeasure with the other.
A second logical problem here has to do with the conceptual idea that crime, to be an objective and scientific concept, must be defined as something that is specific and unchanging. In the assault example, the criminologist explains the assaultive behavior and then, following the traditions of criminology, converts that explanation into an empirical test that translates the behavioral concept of crime into a violation of the law. In making that transition from a behavior, which has a definite and unchanging character, the criminologist inserts the criminal-law definition of crime into the argument and transforms the concept of crime into a legal definition of crime that is neither consistent, unchanging, nor specific because it is a social and political construction. The criminal law appears at first glance to be quite specific and unchanging. The criminal law contains specific descriptions of the behavior it outlaws, and if we examine the structure of criminal law, we may be pleased with its consistency and specificity. The criminal laws impresses on us its specificity and divides crimes into types, names them, and within each type may even subdivide a behavior it has identified into classes of offending behaviors (e.g., the difference between a felony and a misdemeanor or the designations of felonies as belonging to class, A, B, or C, and so on).
When we examine the specifics of the legal definition of crime in this way, we must keep in mind that we are not examining things that are defined as belonging to the nature of criminal offenses, or to any class of criminal behavior. Rather, what we are observing is the specificity of the structure of law, not the specificity of a behavior that is defined a priori as crime. What we have in the structure of law is not specificity about crime as a behavior but specificity about law as a system of relations that has been constructed in a social and political context. The specificity of the criminal law, in other words, only defines the nature of the law and the legal character of crime. With regard to its legal character, the law is quite specific about certain aspects of crime, but only in relation to law as an institutional structure and not in relation to crime as behavior.
When the criminologist is thinking about explaining crime, they are not thinking as a lawyer. Rather, they are often thinking about crime as a behavioral act and as a behavioral scientist. Thus the legal character of crime the law represents may not be the behavioral concept of crime the criminologist imagines when they attempt to explain crime. The legal structure of crime and the behavioral content of the thing imagined as crime may be two entirely different things.
At this point, this logical error related to the construction of explanations of crime should be clear. In the researchers’ heads, they are thinking about crime as behavior and asking, “Why does an individual engage in crime?” What they are not doing is asking the question “Why does an individual engage in a behavior that violates the politically constructed criminal law?” Technically and logically, these are two quite different questions.
Though repetitive, we must return to the observation that the criminal law, as Richard Quinney (1970) argued in his well-cited work, is a social and political construction. Quinney made that point to illustrate the idea that the criminal law does not provide an objective definition of crime. The political construction of the criminal law, and hence the concept of crime most criminologists employ, is influenced by a number of factors.
What the criminologist who relies on the criminal law has done is rely on the ability (or an assumption) that the law and lawmakers act rationally and scientifically when defining the specific crimes in the criminal law. From this act of political construction, the criminologist makes a second assumption. That assumption is if we add together all the behaviors the criminal law has identified as crimes, we then have the universe of crime (i.e., a general definition of crime). In contrast, we would argue that rather than a general definition of crime, all we have is the universe of behaviors the law lists as crime, nothing more. In this case, the universe of crimes does not represent the potential universe of all things that might be crime; it only represents what the law identified as crime through crime’s political construction. When we assume that the universe of crime is simply the addition of all the criminal law statutes on crime, we have again engaged in a tautological reinforcement of the legal definition of crime. But the law does not identify the universe of all crime. One could argue that given Quinney’s analysis of the political nature of law, this is not even law’s intent. Law only labels as crime those behaviors it selects as crimes, those things that lawmakers find reprehensible. We know that this is true of the criminal law for at least three reasons.
First, there are forms of law other than the criminal law. Those offenses are simply called by another name. The political act of naming these offenses differently has nothing to do with their nature, the harm they produce, or any other character of those behaviors. This act of naming things differently in other forms of law is an extension of the political construction of crime, and it tells us much about what behaviors political authority decides to label as crime and nothing more—that is, it tells us nothing about the nature of crime as behavior. A very clear example of these alternative measures and definition of crime can be found in environmental law, which contains within its structure inconsistencies in the political construction of crimes and other offenses that make it quite clear that the law has no objective frame of reference when it calls an act a crime versus something else. For example, the same infraction of environmental law can be labeled as a civil, regulatory, administrative violation, or as a criminal offense and how that behavior is labeled by the application of environmental law is a product of the political construction of environmental crime.
While environmental law is a strange amalgamation of rules that define behaviors that violate environmental rules of law, other laws exist that can be labeled in multiple ways. The strange nature of environmental law is related to its existence as different forms of law rolled into one legal format. The environmental law borrows from and refers to civil, regulatory, administrative, and criminal law. Having been politically and not scientifically constructed in this way, the environmental law often refers to the same act differently. As a result, behaviors defined as violating the environmental law may be treated differently even though they are the same behaviors. Their differential treatment by the law and by those who enforce the law has little to do with the nature of the behavior, its characteristics, context, or the harm it poses. How an environmental offense is treated by environmental law may, for instance, be affected by the discretion of environmental law enforcement personnel. In any given case, enforcement personnel may define a behavior as civil offenses, as administrative offenses, or as criminal offenses. The inconsistent way in which the law is applied and the latitude given to law enforcers in the political construction of the environmental law means that the environmental law does not state that this behavior is or is not a crime.
We can find many cases related to the imposition of environmental law that entail exactly the same offense (e.g., air pollution) but that environmental laws treat entirely differently. For example, it was only in 2007 that the US Environmental Protection Agency (EPA) charged and successful obtained its first criminal conviction for a violation of the Clean Air Act by an oil refinery (Citgo Petroleum Corporation and Citgo Refining Chemical Corporation). This outcome was not the result of a change in the law, since the relevant law has existed since the inception of the Clean Air Act in 1970.
What changed was that the US EPA’s personnel decided to treat this case as a criminal case. The US EPA needs the cooperation of the US Department of Justice to proceed with a criminal case and this only recently happened. The designation of the act as a criminal act in this case does not change the nature of the act. The act was the same whether or not it was treated criminally by the law, and the US EPA could very well have proceeded as if the behavior in question was a civil, administrative, or regulatory violation. But in this case, the US EPA’s personnel decided that the behavior was a criminal offense and sent the case to the Department of Justice for criminal prosecution. Cases that occurred before this particular case looked the same and had the same consequences but were not treated by those whose enforce environment law as a criminal offense. Should we, therefore, accept that there has been only one environmental crime of air pollution by an oil refinery because this is the outcome the law created? Or should we instead question the use of the law as an objective measure of crime? Should we look beyond the law for an objective, scientific definition of crime?
With respect to this, we know of no general test of microlevel explanations of crime that includes within its sample of offenders individuals who are environmental offenders. There are studies specifically of white-collar offenders; but not one that places white-collar, corporate, environmental, state, and street offenders all together in the same data set for analysis. Criminologists are reluctant to treat environmental offenders as if they were criminals, even in the face of evidence that the crimes they commit are as serious, or more serious, than street crime (Burns, Lynch, and Stretesky 2008). This is a choice criminologists make. It is not a choice based on the law, since as we have argued, environmental laws are also contained in criminal statutes. Criminologists must make special efforts to locate environmental offenders who commit criminal acts and extract them from the databases of environmental regulatory and enforcement agencies. Doing so requires looking beyond the data sources criminologists ordinarily employ or acknowledge when they measure crime (Burns, Lynch, and Stretesky 2008). It also requires that criminologists look beyond the rigid confines of the criminal law as it is currently understood.
This same exclusionary concern applies to the types of self-report studies criminologists undertake. Unless special effort is made, criminologists do not ask subjects if they have committed environmental crimes. Again, perhaps with the exception of some studies published by members of the National White Collar Crime Consortium on victimization and knowledge of corporate, white-collar, and environmental crimes, criminologists have not performed studies that address these issues. Due to the frequent exclusion of environmental, corporate, white-collar, and state offenders, samples of offenders are often of questionable validity, since they contain only certain types of offenders and crimes that the law is willing to recognize. However, some valid samples do exist. For example, O’Hear (2004) used a sample of all federal offenders to assess sentencing differences and the impact of sentencing guidelines on sentences handed out for “green-collar” offenders (those who violated environmental laws) versus other kinds of federal offenders (street offenders).
Second, as we noted in Chapter 1, especially within a nation such as the United States, the criminal law is not universal and consistent and varies across jurisdictional boundaries (e.g., across states). Law changes, and so the count of crime also changes simply because the law does so as well. For example, certain states allow individuals to drive when they are 15 years old. Therefore, we might find in those states (with some exceptions) that 15-year-olds are charged with certain vehicle crimes, but 15-year-olds cannot be charged with driving in violation of the law when they are 15 if they are legally allowed to do so. Again, the inconsistency in the law will mean crime is being counted in different ways in different places, and this can impact the study of the causes of crime when this fact is ignored. If tests of an explanation of crime employ a national sample, the behaviors represented in that study are likely to be a hodgepodge of crimes as they represent different forms of criminal law that are found in the different states from which the sample is drawn. If that is true, then the sample selected for study is invalid.
The critical analysis of the criminal-law definition of crime and its variability across places also applies to the criminal law over time. The criminal law is not a fixed entity. It changes and evolves over time. It may change from one year to the next and it certainly changes over decades. This means that empirical tests of microlevel explanations can generate entirely different results if they are tested with data from different points in time. An individual-level test of a strain-theory argument in 1970 may produce different results than an individual-level test of a strain argument in 2010 if it is based on the criminal-law definition because the criminal law’s definitions of crime in 1970 and 2010 are not the same. In effect, these observations mean that when criminologists rely on the criminal-l aw definition of crime, the variability in the criminal law itself poses a threat to the validity of the measure of crime and the results cannot therefore be generalized. We must also recognize that time and place interact with one another, so that the criminal-law definition of crime is varying not only from year to year but from one place to another at the same time. This multilevel variation in the definition and measure of crime presents a very complex methodological problem that has heretofore not been addressed.
|< Prev||CONTENTS||Next >|