Discussion

W&M Criminological Theory

1. Chapter 2: The Classical School a. Introduction

i. The Classical School of criminology comes out of the 18th century. This period of time gives rise to many of the basic ideas for the operation of a criminal justice system and the processing of criminals.

ii. Classical school not interested in studying criminals/crime but was focused on lawmaking and legal processing (e.g., creating procedures for dealing with law violations).

iii. Cesare Beccaria Jeremy Bentham most associated with the classical school.

1. Believed that law and administration of justice should be based on rationality and human rights, which at the time were not commonly applied.

iv. Major ideas from the school: 1. Humans as free willed rational beings 2. Utilitarianism (greatest good for the greatest number – the social

contract) 3. Civil rights and due process of law 4. Rules of evidence and testimony 5. Determinate sentencing 6. Deterrence

v. Schools major focus in on legal definitions of crime. vi. Most U.S. law is classical in nature – can be seen in the Declaration of

Independence and the U.S. Constitution. b. The Heritage of the School

i. The Social Heritage 1. 18th century

a. Decrease in church influence b. Old aristocracy is starting to be challenged c. Rise of the middle class d. Industrial revolution e. Societies urbanizing f. New notions of property and ownership g. Protestant work ethic is popularized – connection between

hard work and success 2. Changes to the judicial system

a. Old system founded on religious structures from the Middle Ages – so pre-classical law based mostly on judicial interpretation and caprice of officials.

b. Old system frequently used torture, secret accusations, private trials, arbitrary and overly harsh punishment.

c. Old system had very few written laws, laws were infrequently enforced, and tended to benefit those with money/power.

3. Under the old system, law is frequently used as a way to suppress those who spoke out against the church or the aristocracy.

ii. The Intellectual Heritage 1. 18th century brings with it major reforms.

a. Authority of the church is rebelled against, and we start to see a separation of church and state.

b. The application of science to understand the physical world (rather than religion) becomes more popular.

2. Hedonism becomes the major explanation for human behavior. a. People are assumed to automatically attempt to maximize

pleasure and minimize pain (hedonism). b. Bentham

i. The value of any pleasure or pain would be determined by its intensity, duration, and certainty – this becomes the basis for the concept of deterrence.

3. Evolution of the social contract a. Under the social contract, a person surrendered to the

authority of the state only the amount of freedom necessary to ensure protection of the rights of other citizens.

4. Growing specialization in trade/industry – means it is now more necessary for governmental involvement/action in citizens lives.

5. Increased secularization. 6. Emphasis on human dignity from the Enlightenment.

c. The Perspective of the School i. Humanistic conception of how law and criminal justice systems should be

constructed. 1. Assumption of hedonism is incorporated into legal structures/the

rationale in forming legal structures. ii. Law is designed to protect the rights of both society and the individual,

and its chief purpose is to deter criminal behavior 1. Classical law, thus, emphasizes moral responsibility and the duty

of citizens to consider fully the consequences of behavior before they acted.

iii. Humans are free willed and rational. 1. Any individual should be able to weigh the pleasure to be gained

from an illegal behavior against the punishment (pain) decreed by law and subsequently to decide against the act.

iv. The role of punishment 1. Bentham

a. Punishment is evil and should only be used to prevent greater evil – the only justification for punishment then is deterrence.

b. Two forms of deterrence: specific and general i. Specific – applied to an individual who commits an

offense. 1. Apply just enough pain to offset the amount

of pleasure gained from the offense. Punishment in excess of this is unnecessary.

ii. General – applies to potential offenders by showing them that a punished individual would not gain from his or her offense. Through observation/knowledge others are deterred (i.e., they do not want the same to happen to them, so they chose not to commit crime).

2. Three components to deterrence a. Celerity – the speed with which a punishment is applied.

i. Punishments that are drawn out become disconnected from the crime.

b. Certainty – a punishment should be sure when an act is committed.

i. If every undesirable act is punished, the rational person will be deterred.

c. Severity – the more severe the punishment, the more likely crime is deterred. However, the severity of the punishment should match and not exceed the severity of the crime.

d. Deterrence is most likely when celerity and certainty are maximized. Severity is less important and should only be used when celerity and/or certainty are impeded. Any punishment too severe may result in citizens distrust of the government.

3. The criminal justice system should be designed to protect the rights of all people/citizens.

a. Since government derives its authority from the social contract, all individuals are equal before the law.

i. Due process, evidence, and equality are all essential.

b. All punishment should be specified by law, and judicial discretion should be reduced.

4. Classical school is opposed to capital punishment a. Citizens do not give up their right to life under the social

contract – government does not have the right or authority to take life.

b. The death penalty may result in the subversion of the law, as people will not want to use/apply it.

5. Criminal law in the U.S. is largely classical, with a strong emphasis on individual responsibility and on due process of law.

d. The Classification of the School i. Classical school is both conflict-oriented and structural.

1. Conflict – philosophers and scholars of this era saw human nature as needing to be restricted and controlled. That is, people are basically self-interested and, without restraint, would act in ways that conflict with the interests of others.

2. Structural – emphasizes the effect of societal institutions on people in general. Theorists focused on the ways governments make law and how law affects the rights of citizens.

ii. Classical school is primarily macrotheoretical in its approach.