How does the proposition that “state intervention is criminogenic” “hold up” to scrutiny in labeling theory?

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Chapter 7

The Irony of State Intervention:

Labeling Theory

Introduction

Rather than diminishing criminal involvement, state intervention--labeling and reacting to offenders as “criminals” and “ex-felons”--can have the unanticipated and ironic consequence of deepening the very behavior it was meant to halt

The criminal justice system is a major factor in anchoring people in criminal careers

Introduction

State intervention is dangerously criminogenic

Grew rapidly in popularity in the 1960s and 1970s

2.2 million American in state and federal prison and nearly 5 million on probation and parole

The Social Construction of Crime

Labeling theorists urged criminologists to surrender the idea that behaviors are somehow inherently criminal or deviant

What makes an act criminal is not the harm it incurs but rather whether this label is conferred on the act by the state

It is the nature of society that determines whether a crime has occurred

Changes over time, across societies, and so on

The Social Construction of Crime

Labeling theorists argued that criminologists could ill afford to neglect the nature and effects of societal reaction, particularly when the state was the labeling agent

Origins of criminal labels

Marijuana--Howard Becker--Federal Bureau of Narcotics

Delinquency--Andrew Platt--affluent women

Child abuse--Stephan Pfohl--pediatric radiologists

“Wife-beating”--Kathleen Tierney--media and feminist organizations

The Social Construction of Crime

What the state designated as criminal was not a constant but rather the result of concrete efforts by men and women to construct a different reality

Behaviors criminalized only when the social context is ripe for change and groups exist that were sufficiently motivated and powerful to bring about legal reform

The Social Construction of Crime

A lawbreaker’s behavior is only one factor in determining whether a criminal label is conferred

Many studies illustrate this point:

Black Panther bumper sticker study (Heusenstamm, 1975)

Juveniles’ demeanor (Piliavin & Briar, 1964)

Customers reporting shoplifting (Steffensmeier & Terry, 1973)

“Saints” and “Roughnecks” (Chambliss, 1973)

The Social Construction of Crime

The nature of state criminal intervention is not simply a matter of an objective response to illegal behavior but rather is shaped intimately by a range of extralegal contingencies

Influenced by individual characteristics such as race, class, and gender

Rates of labeling also vary according to the resources available to and political demands placed on police and other criminal justice organizations

The Social Construction of Crime

Official measures of crime depend not only on how many offenses are committed but also on the arrest practices of police

Official crime statistics may be inaccurate to the extent they reflect a systematic bias in enforcement against certain groups or fluctuations in the willingness of police to enforce certain laws

Labeling and reacting to people as criminals composed the major source of chronic involvement in illegal activity

Labeling as Criminogenic: Creating Career Criminals

Argued that causal analysis should commence not with offenders and their environments but rather with the societal reaction that other people--including state officials--have toward offenders

Labeling and treating lawbreakers as criminals have the unanticipated consequence of creating the very behavior they were meant to prevent

Early Statements of Labeling Theory

The idea that criminal justice intervention can deepen criminality did not originate in the 1960s

Bentham-- prisons are academies of crime

Lombroso--prisons create habitual criminals

Bonger--prisons create professional criminals

Tannenbaum was the earliest scholar to state in general terms the principle that state intervention is criminogenic because it “dramatizes evil”

Being caught and punished changes the person’s world and the person reconsiders his/her identity; the person is tagged, defined, and treated as a criminal and acts accordingly

Labeling as Criminogenic: Creating Career Criminals

In 1951, Lemert further formalized these insights when he distinguished between two types of deviance:

Primary

Arises from sociocultural and psychological sources

Occurs when the offender tries to rationalize the behavior as a temporary aberration or sees it as part of a socially acceptable role

Do not see self as a deviant

Labeling as Criminogenic: Creating Career Criminals

In 1951, Lemert further formalized these insights when he distinguished between two types of deviance:

Secondary

Precipitated by the responses of others to the initial proscribed conduct.

As societal reaction intensifies progressively with each act of primary deviance, the offender becomes stigmatized through “name calling, labeling, or stereotyping”

Often accepts the deviant status

Labeling as a Self-Fulfilling Prophecy

Howard Becker, Kai Erikson, and John Kitsuse argued most convincingly that societal reaction is integral to the creation of crime and deviance

These labeling theorists borrowed Merton’s concept of “self-fulfilling prophecy”

A false definition of the situation evoking a new behavior which makes the originally false conception come true”

Labeling as a Self-Fulfilling Prophecy

Labeling scholars argued that most offenders are defined falsely as criminal

The falseness in definition is tied to the fact that criminal labels, once conferred, do not simply provide a social judgment of the offenders’ behavior; they also publicly degrade the offenders’ moral character

The act and the actor are bad and the person would soon be in trouble again

Labeling as a Self-Fulfilling Prophecy

The meaning of the label “criminal” in our society leads citizens to make assumptions about offenders that are wrong or only partially accurate

These assumptions are consequential because they shape how people react to offenders

Criminal becomes the person’s master status or controlling public identification

In the face of repeated designation as a criminal, the person internalized the public definition of a deviant

Labeling as a Self-Fulfilling Prophecy

Additionally, once labeled as a criminal, often the person is cut off from previous prosocial relationships

One solution to being a social pariah is to bond together with those of a like status

Accordingly, conditions are conducive for offenders wearing a criminal label to differentially associate with other lawbreakers

Further reinforces antisocial values and provides partners in crime

Labeling as a Self-Fulfilling Prophecy

The abrogation of ties to conventional society is most probable when the state intervention involves institutionalization

Loss of employment, strains on family, contact with other criminals

The ex-convict label limits employment opportunities

Labeling as a Self-Fulfilling Prophecy

Assert that the false definition of offenders as permanently criminal and destined for lives of crime fulfills this very prophecy by evoking societal reactions that make conformity difficult and criminality necessary, if not attractive

The labeling process stabilizes participation in illegal roles and turns those marginally involved in crime into chronic offenders

Assessing Labeling Theory

Radical and Conflict Criminology Criticism

Labeling theorists did not go far enough in their analysis

Argued that the origins and application of criminal labels were influenced fundamentally by inequities rooted in the very structure of capitalism

Behaviors of the powerful are not criminalized

Assessing Labeling Theory

Positivists’ Criticism

Labeling theory’s major tenets wilted when subjected to empirical test

The perspective’s popularity had less to do with its empirical adequacy and more to do with its voicing a provocative message that meshed with the social times

Brought data to bear on two principal propositions

Extralegal factors, not behavior alone, shaped who was labeled

Labeling increased criminal involvement

Assessing Labeling Theory

Extralegal Factors Proposition

Seriousness of the crime, not the offender’s social background, is the largest determinant of labeling by police and courts

However, Sampson uncovered an “ecological bias” in police control of juveniles

Police were found to be more likely to make arrests in poor neighborhoods than in more affluent neighborhoods

Assessing Labeling Theory

Extralegal Factors Proposition

The controversy over labeling has resurfaced in the recent debate over “racial profiling”

Minority drivers appear to be stopped, cited, searched, arrested, and have force used against them more often

Unclear if this is due to individual prejudice or more institutionalized practices

Police spoke with “consistently less respect” toward Black as opposed to White drivers

Police killings of unarmed Black men

Consistent with labeling theory, whether individuals are subjected to social control and potentially have a criminal label attached to them is determined by more than simple legal factors

Assessing Labeling Theory

Extralegal Factors Proposition

Three theoretical perspectives concerning social reaction have potential to enrich the labeling paradigm

Deployment theory--police are more likely to arrest minorities because they are more likely to be deployed in greater numbers in inner-city neighborhoods whose residents are disproportionately people of color

Racial threat theory--level of social control exercised by the majority group will increase as the number of minorities in an area grows

Focal concerns theory--criminal justice officials make decisions based upon blameworthiness, protection of the community, and practical constraints that serve as cognitive filters or perceptual shorthand in sentencing

Assessing Labeling Theory

Extralegal Factors Proposition

These three theoretical perspectives move labeling theory beyond the study of whether the extralegal factors matter

Attempt to understand why and under what conditions discrimination might occur

Assessing Labeling Theory

State Intervention Is Criminogenic Proposition

Many offenders become deeply involved in crime before coming to the attention of criminal justice officials

Offenders become extensively involved in illegalities such as corporate crime, political corruption, wife battering, and sexual abuse without ever being subjected to criminal sanctioning

Tests of Labeling Theory

Tests of labeling theory have produced mixed results

First, some argue criminal justice labeling has no effect

State intervention is just a reaction to criminal involvement, not a cause of it

Tests of Labeling Theory

Tests of labeling theory have produced mixed results

Second, criminal justice sanctions are criminogenic under different circumstances

Effect of police officers’ mandatory arrest of batterers varies according to whether the batterers are employed

A meta-analysis has shown juvenile justice processing has no crime control effect, rather increases criminal involvement

Labeling as a felon has iatrogenic effects

Prison sanctions and recidivism are positively related

Future Directions in Labeling Theory

Specify more carefully how different types of state intervention impact the lives of different types of offenders

Conduct longitudinal research

Labeling Theory in Context

During the early 1960s, optimism ran high and people had confidence in the government

As the 1960s unfolded, this optimism declined

Most disquieting was the government’s response to political protest

The state faced a “legitimacy crisis”; citizens no longer trusted the motives or competence of government officials

This atmosphere created a ripe environment for harvesting a theory that blamed the state for the crime problem

The Consequences of Theory: Policy Implications

Labeling theory has a profound impact on social policy

The prescription for policy change was eminently logical and straightforward: If state intervention causes crime, then steps should be taken to limit it

Four policies:

Decriminalization

Diversion

Due process

Deinstitutionalization

Decriminalization

The criminalization of victimless deviance, such as drug use, creates crime in various ways

The mere existence of the laws turns those who participate in the behavior into candidates for arrest and criminal justice processing

It often drives them to commit related offenses

It creates a lucrative illicit market

The existence of the illicit market fosters strong incentives for the corruption of law enforcement officials

Decriminalization

Labeling theorists argued for the prudent use of decriminalization--the removal of many forms of conduct from the scope of the criminal law

The goal is to limit the law’s reach

Seen with abortion laws, marijuana laws, the criminal status of pornographic material, and gambling laws

Diversion

Divert from the criminal justice sanction

Some examples of diversion:

Youth service bureaus, welfare agencies, and special schools

Privately run mental health agencies, community substance abuse programs, government sponsored job training classes

Home incarceration

Diversion

Originally conceived as an alternative to involvement in the criminal justice system or to incarceration, diversion programs most often have functioned as add-ons to the system

Diversion has “widened the net” of state control by creating a “system with an even greater reach”

However, drug and other specialty courts show some promise

Due Process

Labeling theorists also were quick to join the mounting due process movement, which sought to extend to offenders legal protections

Individual justice must give way to a return to the rule of law

Individualized treatment discriminated against the powerless

Punishments should be prescribed by law, and sentences should be determinate

Reduce discretion

Due Process

Hope that these policies would result in shorter and more equitable sentences and thus would reduce the extent and worst effects of state intervention

Due process has provided offenders with needed protections against state abuse of discretion

However, it remains unclear whether the corresponding attack on rehabilitation has succeeded in creating a system that is less committed to interventionist policies and more committed to humanistic ideals

Deinstitutionalization

Labeling theorists took special pains to detail the criminogenic effects of incarceration and to vigorously advocate the policy of lessening prison populations through deinstitutionalization

States beginning to implement policies that roll back prison populations and slow their growth

Extending Labeling Theory

The key issue is not simply whether a sanction is applied but also the quality of the sanction--what actually happens to an offender during the criminal justice process

Two important attempts have been made to develop a theory of how the quality of sanctioning affects re-offending:

Braithwaite’s theory of shame and reintegration

Sherman’s defiance theory

Rose and Clear’s macro-level coerced mobility theory

Braithwaite’s Theory of Shaming and Crime

Took up the issue of the conditions under which societal reaction increases crime or decreases crime

Legal violations evoke formal attempts by the state and informal efforts by intimates and community members to control the misconduct

Braithwaite’s Theory of Shaming and Crime

Central to social control is shaming

All processes of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and/or condemnation by others who become aware of the shaming

Shaming can be:

Disintegrative

Reintegrative

Braithwaite’s Theory of Shaming and Crime

Disintegrative Shaming

Stigmatizes and excludes, thereby creating a class of outcasts

Branded as a criminal beyond forgiveness which leads to a further entrenchment into crime since denied employment and other legitimate opportunities

Reintegrative Shaming

An illegal act initially evokes community disapproval but then is followed by attempts to reintegrate the offender back into the community through words or gestures of forgiveness

Braithwaite’s Theory of Shaming and Crime

In this case, shaming has two faces:

It makes certain that the inappropriateness of the misconduct is known to the offender and all observers

It presents an opportunity to restore the offender to membership in the group

Braithwaite’s Theory of Shaming and Crime

The underlying social context determines the degree to which shaming will be reintegrative or disintegrative

America lacks the cultural and institutional basis that would encourage seeing offenders as part of an interdependent community

Social control has a strong disintegrative quality

Communitarian societies, like Japan, prefer to have reintegrative shaming

Braithwaite’s Theory of Shaming and Crime

Enriched labeling theory by illuminating not only that shaming (or labeling) varies on its nature and effects but also why this variation ultimately is contingent on the society in which shaming takes place

Braithwaite, Ahmed, and Braithwaite have marshaled evidence from an array of quantitative and qualitative sources consistent with the theory

Self-report studies have yielded promising by mixed results

Sherman’s Defiance Theory

Began with the observation that labeling theory does not account for the many examples of sanctions reducing crime

Sherman asked: Under what conditions does each type of criminal sanction:

Reduce,

Increase, or

Have no effect on future crimes?

Sherman’s Defiance Theory

The central concept is that of defiance

The net increase in the prevalence, incidence, or seriousness of future offending against a sanctioning community caused by a proud, shameless reaction to the administration of a criminal sanction

Sherman’s Defiance Theory

Factors that increase criminality

When offenders have few social bonds to the community, there is little to restrain their defiance, and arising criminal inclinations

Offenders are more likely to be defiant when they perceive the sanction as stigmatizing not their actions but rather the offenders personally

When offenders are treated unfairly or with disrespect, they are more likely to act defiantly

Criminal sanctions are not given legitimacy; rather, the sanctions evoke anger and defiance

Sherman’s Defiance Theory

Few empirical tests

Existing data sets do not contain measures of the theory’s key components

Of the studies conducted, there has been mixed support

Policy implications

Unless attention is paid to the quality of relationships between inner-city youth and criminal justice representatives, attempts to sanction these offenders may be counterproductive

Sherman’s Defiance Theory

Factors that increase criminality

When offenders deny or refuse to acknowledge the stigmatizing shame that has been opposed on them, they are more likely to respond with pride and use crime to exact revenge on conventional society

Criminal sanctions can backfire, and through processes such as defiance, create the kind of self-fulfilling prophecy first identified by labeling theorists

Tyler’s Procedural Justice Theory

Belief in the legitimacy of the criminal justice system is produced by the quality of the actions experienced directly or vicariously by police and court officials

Criminal justice intervention, through its impact on perceived legitimacy, can lead to more or less compliance with the law

Tyler’s Procedural Justice Theory

The key quality that determines whether state intervention will increase or decrease legal compliance is whether the actions of police and court officials manifest “procedural justice”

Tyler’s Procedural Justice Theory

Procedural justice includes two issues:

Fair decision-making (voice, neutrality)--that is, participatory, neutral, transparent, rule base, consistent decision-making

Fair interpersonal treatment (treatment with dignity/respect; trust in authorities)--that is, treatment involving respect for people; respect for their rights; treatment with dignity and courtesy; care and concern from authorities

Tyler’s Procedural Justice Theory

Police scholars and leaders have advocated the use of procedural justice as a means of tempering the negative labeling effects of proactive policing in high-crime areas

Procedural justice is effective in increasing perceived legitimacy and positive views of the police

Rose and Clear’s Coerced Mobility Theory

Explored what happens when the government adopts a policy of mass incarceration that disproportionately removes young, minority males from inner cities at the macro- or community-level

Nearly 1 in 10 African Americans aged 26–30 are incarcerated

Conceptualize this incarceration as a form of coerced mobility

A practice that regularly takes large numbers of males out of inner-city communities for prolonged absences

Rose and Clear’s Coerced Mobility Theory

Theorize that the mass coerced mobility of minority males may well have the unanticipated consequence of increasing, rather than decreasing, a community’s crime rate

Offenders are community liabilities and also community assets

Their incarceration lessens liabilities as well as depleting the community of assets

Removes sources of income, family life, supervision levels, depletes the “marriage pool,” and so on

Many return from prison and import prison cultural values and networks

Additionally, the stigma of incarceration is lessened

The impact on neighborhoods will differ by the area’s affluence and social organization

Rose and Clear’s Coerced Mobility Theory

State social controls have important secondary effects on family and neighborhood structure

These impede the neighborhood’s capacity for social control

At the ecological level, the side effects of policies intended to fight crime may exacerbate problems that lead to crime in the first place

Policy Implications: Restorative Justice and Prisoner Reentry

Find ways to blunt the negative, criminogenic effects of criminal justice sanctions

Restorative justice rejects the logic that equates the state’s harming of an offender with victims’ receiving any meaningful sense of justice

Policy Implications: Restorative Justice and Prisoner Reentry

Advocates of restorative justice suggest that the guiding principle of the criminal sanction should be to decrease harm by restoring:

The victim and

The offender to the community

The goal is to reintegrate the offender into the community

Often through a victim-offender conference

Policy Implications: Restorative Justice and Prisoner Reentry

In Braithwaite’s terms, restorative justice is built on the premise of reintegrative shaming rather than stigmatizing shaming

However, studies assessing restorative justice are mostly directed toward minor offenders

There are some very promising results but also conflicting findings

Most effects of restorative justice are relatively small but significant

When court-ordered, they have no effect on recidivism; when non-coerced, they show the largest reduction

More effective with low-risk offenders, but other research shows they are more effective with more serious offenders

Policy Implications: Restorative Justice and Prisoner Reentry

Many offenders leave prison with their criminogenic needs untreated or worsened by their stay behind bars

Within the last decade, there has been a new realization that failing to address prisoner reentry and pursuing a policy of stigmatizing reintegration exacerbate recidivism and pose a threat to public safety

Policy Implications: Restorative Justice and Prisoner Reentry

Many offenders face collateral consequences or what Alexander (2010) calls “New Jim Crow”

Legalized exclusion in voting, government benefits, and employment requiring state licensure seen especially among African Americans

Policy Implications: Restorative Justice and Prisoner Reentry

To combat this problem, we need to:

Start reentry preparation while offenders are in prison

Focus on the challenges and crises that are faced immediately upon release

Provide treatment services and support to facilitate long-term community reintegration

Conclusion

Labeling theory’s distinctive focus on societal reaction succeeded in sensitizing criminologists to the important insights that the criminal nature of behavior is socially constructed by the response to it and that a variety of factors can shape who comes to bear a criminal label

Also showed sanctions can be criminogenic

Thus, scholars must continue to understand and research differential impact of sanctions