The social control of criminal behavior exemplifies the most highly structured formal system (the criminal justice system) used by society. In the United States, the criminal justice system affects millions of people. The number of Americans under correctional supervision (in prison or jail or under probation or parole) exceeds 6.7 million (2014 data) and includes more than 2.2 million inmates in federal and state prisons and local jails (Kaeble et al., 2016). The 6.7 million figure under correctional supervision represents almost 3% of adult Americans. The U.S. criminal justice system costs more than $265 billion annually, and the United States has a much higher incarceration rate than any other democracy.
The size of the U.S. correctional population reflects the large number of laws that prohibit many behaviors and the “get tough” approach to crime the United States has followed during the past several decades (Enns, 2016). The laws enacted by legislators and modified by court decisions define criminal and delinquent behavior and specify the sanctions imposed for violations. Over time, there has been an increasing reliance on law to regulate the activities and, thus, the lives of people. As the law has proliferated to incorporate more types of behavior, many changes in penalties for certain crimes have also occurred. These increases inevitably result in more social control and in further changes in the control methods. As more behaviors are defined as criminal, more acts become the interest of the police, the courts, and the prison system.
The term legalization is used to describe the process by which norms are moved from the social to the legal level. Not all social norms become laws; in fact, only certain norms are translated into legal norms. Why is it that the violation of only certain norms results in violations of the criminal code? In an influential formulation, Austin Turk (1972) wrote that several social forces are involved in the creation of legal norms: (1) moral indignation, (2) a high value on order, (3) response to threat, and (4) political tactics.
As discussed in Chapter 4, laws may be created by the actions of moral entrepreneurs who become outraged over some practice they regard as reprehensible. Others prefer order and insist on provisions to regulate life and to make society as orderly as possible. They promulgate laws to ensure order and uniformity, as in the case of traffic regulation. Some people react to real or imaginary threats and advocate legal-control measures. For instance, some people may assume that the availability of pornographic material not only is morally wrong but also directly contributes to the increase of sex crimes. The final source of legalization of norms is political, where criminal laws are created in the interest of powerful groups in society. This source is identified with the conflict perspective that previous chapters have discussed.
Legalization of social norms also entails the incorporation of specific punishments for specific kinds of criminal law violators. Rusche and Kirchheimer (2003:5) note, “Every system of production tends to discover punishments which correspond to its productive relationships" Michel Foucault (1977) tells us that, before the industrial revolution, life was considered cheap and individuals had neither the utility nor the commercial value that is conferred on them in an industrial economy. Under those circumstances, punishment was severe and often unrelated to the nature of the crime (for example, death for stealing a chicken). When more and more factories appeared, the value of individual lives, even criminal ones, began to be stressed. Beginning in the last years of the eighteenth century and the early years of the nineteenth century, efforts were made to connect the nature of a given punishment to the nature of the crime.
Fitting the punishment to the crime is a difficult and at times controversial and politically sensitive task (Brooks, 2010; Tonry, 2010). The definition of crime and the penalty for it and the components of the culture of control vary over time and from one society to another (Cusac, 2009; Garland, 2001). For example, in rural areas in the People’s Republic of China, it is not uncommon to burn down the houses or to confiscate the property of those who violate birth control laws. In the words of a villager, “If you have more than one child, they will come and rip the engine out of your boat or destroy your house on the land" (Tyler, 1995:6). By contrast, in a democracy, the power to define crime and punishment theoretically rests with the citizenry and is largely delegated to elected representatives. Legislative statutes are often broad and subject to various interpretations.
As Chapter 3 demonstrated, legislative enactments allow judges, prosecutors, and juries considerable flexibility and discretion in assessing guilt and imposing punishment.
But what does it mean to punish an individual who violates a criminal law? Edwin H. Sutherland and Donald R. Cressey (1974:298) provide the following definition of the ingredients of punishment as a form of social control:
Two essential ideas are contained in the concept of punishment as an instrument of public justice. (a) It is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group... . (b) Punishment involves pain or suffering produced by design and justified by some value that the suffering is assumed to have.
Goals of Punishment Punishment of lawbreakers has several purposes (Neubauer and Fradella, 2017). A primary goal is to achieve the goal of retribution or social retaliation against the offender. This means punishment of the offender for the crime that has been committed and, to an extent, punishment that (in principle) matches the impact of the crime upon its victim. The state is expected to be the agent of vengeance on behalf of the victim.
During the past few decades, some municipalities and courts have instituted judicially created public humiliations as alternatives to incarceration and to satisfy a “retributive impulse” (Karp, 1998:277). These efforts are called “shaming penalties” and in that regard remind us of the use of the stocks by seventeenth-century Puritans. For example, the names of men who solicit prostitutes have sometimes been identified in local papers or radio shows; in the late 1990s, Kansas City, Missouri, started “John TV,” in which the names, mugshots, birth dates, and hometowns of men arrested for trying to buy sex, and women arrested trying to sell it, were broadcast on the municipal cable channel. In other locations, drunk drivers carry signs on their cars announcing their problem and urging other drivers to report their erratic driving to the police; convicted shoplifters must take out advertisements in local papers running their photographs and stating their crimes; and people convicted of child molestation must put signs in their yards announcing their transgression (Belluck, 1998; Economist, 2006; Hoffman, 1997).
A second goal of legal punishment is incapacitation via incarceration, which prevents offenders from misbehaving during the time they are being punished. Furthermore, punishment is supposed to have a deterrent effect, both on the lawbreaker and on potential deviants. Individual or specific deterrence may be achieved by intimidation of the person, frightening her or him from committing further deviance, or it may be effected through reformation, in that the lawbreaker changes her or his deviant behavior. General deterrence results from the warning offered to potential criminals by the example of punishment directed at a specific wrongdoer. It aims to discourage others from criminal behavior by making an example of the offender being punished.
The idea of deterrence is predicated on the assumption that individuals weigh the costs and rewards associated with alternative actions and select behaviors that maximize gains and minimize cost. Thus, crime takes place when law breaking is perceived as either more profitable (rewarding) or less costly (painful) than conventional activities. The effectiveness of deterrence reflects the operation of three variables: (1) the severity of the punishment for an offense, (2) the certainty that it would be applied, and (3) the speed with which it would be applied (Friedland, 1989). Research generally supports the view that certainty of punishment is more important than severity for achieving deterrence, but there is little research data as yet on the swiftness of punishment (Nagin et al., 2015).
However, sociologists have long recognized that punishment may deter only some crimes and some offenders. William J. Chambliss (1975) made a very useful distinction between crimes that are instrumental acts and those that are expressive. Instrumental offenses include burglary, tax evasion, motor vehicle theft, identity theft, and other illegal activities directed toward some material end. Examples of expressive acts are murder, assault, and sex offenses, where the behavior is an end in itself. Chambliss hypothesizes that the deterrent impact of severe and certain punishment may be greater on instrumental crimes because they generally involve some planning and weighing of risks. Expressive crimes, by contrast, are often impulsive and emotional acts. Perpetrators of such crimes are unlikely to be concerned with the future consequences of their actions.
Chambliss further contended that an important distinction can be made between individuals who have a relatively high commitment to crime as a way of life and those with a relatively low commitment. The former would include individuals who engage in crime on a professional or regular basis. They often receive group support for their activities, and crime for them is an important aspect of their way of life (such as prostitutes or participants in organized crime). For them, the likelihood of punishment is a constant feature of their life, something they have learned to live with, and the threat of punishment may be offset by the supportive role played by their peers. On the other hand, a tax evader, an embezzler, or an occasional shoplifter does not view this behavior as criminal and receives little, if any, group support for these acts. Fear of punishment may well be a deterrent for such low-commitment persons, particularly if they have already experienced punishment (for example, a tax evader who has been audited and then subjected to legal sanctions).
On the basis of these two types of distinctions—instrumental and expressive acts, and high- and low-commitment offenders—Chambliss contends that the greatest deterrent effect of punishment will be in situations that involve low-commitment individuals who engage in instrumental crimes. Deterrence is least likely in cases involving high-commitment persons who engage in expressive crimes. The role of deterrence remains questionable in situations that involve low-commitment individuals who commit expressive crimes (such as murder), which can be illustrated by the arguments used for or against the death penalty.