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A New Criminal Justice System! James R. Thies, Sr. Based upon twenty-five plus years of cynical producing experiences in the criminal justice system, it is without hesitation that I find Reiman’s The Rich Get Richer and the Poor Get Prison (2001) best reflects my position as to the real world theory for the explanation of crime in today’s society. Reiman’s book describes what he has labeled the “Pyrrhic defeat theory”. In this theory the criminal justice system is seen as a failure. Reiman argues the powerful, who really are the rich, want to maintain the system as it is rather than reduce or eliminate crime. Under this theory, those most victimized by crime are not in the position to make and implement policy changes. Those in power receive such benefits from crime that they have no incentive to make changes. And so, our system “keeps rolling along” (Reiman, 2001:6). This paper will look at this hybrid classical/positivist/critical theory as explanation for crime and the systems that support it in society today. It will attempt to explain various theories of human nature that has brought us to this “Pyrrhic defeat theory”. After discussion of this theory, the paper will propose a list of concepts that contribute to modern day crime and why those in policy-making positions support them. A discussion will follow as to the several hypotheses that describe aspects of this theory and how they have been turned into policy. I will argue that today’s theory of crime is covered and expanded by those in power to meet their needs for control. In order for there to be a reduction in crime legislative action is required to redefine crime and radical legislation is necessary to restructure the criminal justice system, especially in the area of punishment. Only then can the implementation of my theoretical criminal justice system discussed below become effective. This paper will conclude with a brief look at how this model may be studied in the future. Part One- Theory and Human Nature Theory: In criminology, theory is the scientific approach of considering aspects of laws, axioms and/or causal processes to explain why crime occurs. Its purpose is to give society the ability to understand, to predict, and to respond to this phenomenon (Reynolds,1971:10-12). Criminologists use theory to provide a method of organizing and categorizing phenomenon. By applying the scientific approach they will be able to predict future events by explaining those of the past. It is hoped that such a scientific approach will create a sense of understanding about what causes crime (Reynolds, 1971). Human Nature: It seems appropriate to discuss two different approaches to behavior when trying to identify the human nature of crime. Historically, the first school of thought argues the individual is genetically and biologically controlled. Deviant behavior is a result of the individual’s “inner-self”. This approach seriously began with Sigmund Freud’s use of “psychoanalysis” and advances up to the complex scientific explanations as discussed in the research of Fishbein. The second school of thought argues that the individual is controlled by his interaction with society and it is the collective social environment that defines deviant behavior. The individual’s deviant behavior is outside accepted social norms whereupon he becomes labeled as “criminal”. For this paper this “scientific sociological approach” began with Durkheim’s theory of social integration (anomie) and finds a long line of paradigm shift’s that concludes with Rieman’s “Pyrrhic Defeat Theory”. Discussing first the “inner-self” theories, I turn to the work of Sigmund Freud. By 1896, Freud developed a new science that he called “psychoanalysis” (Freud,1938). This science held as an explanation for behavior that the researcher could look at the neurological components of the mind for understanding in how the individual behaved. By an extensive examination of the individual’s mind, the researcher could determine what was locked inside the mind that caused deviant behavior. To accomplish this examination and to arrive at a correct diagnosis the researcher first must undergo psychoanalysis so he could understand how this process worked (Rose, 1998:13-14). Psychoanalytic theories stated that after determining the causes of the deviant behavior, the individual must be re-educated in correct social behavior. The process of re-education was discussed by August Aichorn in Wayward Youth (Jacoby,1994:167-171). Aichorn stated the individual’s behavior is based upon the Freudian concept that within man our unconscious mechanisms or thoughts determine behavior. Therefore it is possible for the remedial educator through psychoanalysis to discover the motivation of deviant behavior and then formulate a point of attack for treatment. The educator must bring into the consciousness of the deviant the unconscious processes that determine the undesirable behavior and then replace them with acceptable social behavior (Jacoby,1994:167-171). With the scientific advancement in the biological and genetic fields, early “inner-self” theories have advanced as more has been learned and understood about the individual’s brain. Today, biological understanding of human nature must include recognition of psychiatric diagnoses such as depression, schizophrenia, alcoholism, self-directed violence, borderline personality disorders, self-destructive behaviors in Lesch-Nyhan syndrome and other mental retardation syndromes (Fishbein,1990:14). The biological identification of variants (or irregularities) in genetic-makers for neurotransmitters such as dopamine and serotonin, enzymes such as MAOA and hormones such as thyroid hormone receptors must be recognized as creating abnormal functions of the mind leading to impulse aggression and related disorders that cause an impact upon human deviant behavior (Fishbein,1990:18). Genetic and biological studies have clearly shown that the effects of the above-described genetic factors lead to aggressiveness not only in animals but also in human beings. Chemical imbalances found in the human brain are now beginning to be understood. Testosterone concentrations have been reported to correlate positively with self-rated measures of aggression in some studies of non-psychiatric subjects. Testosterone concentrations have recently been reported to be higher in alcoholics with a history of repeated episodes of domestic violence (Fishbein,1990:22). Prenatal drug exposures, either legal or illegal, genetic defects, neurotransmitter imbalances and certain medical conditions can all affect sexual and social development by altering sex hormone influences (Fishbein,1990:23). Impulsivity, aggressiveness, hyperactivity, ADHD, lack of avoidance responses, and the inability to empathize are possible behavioral outcomes of serotonin and dopamine system abnormalities (Fishbein, 1990: 24). Clearly, modern science has demonstrated that there are biological and genetic factors that impacts how an individual would respond in nature regardless as to what obstacles society may present. Society in this type of interaction could only intensify the individual’s deviant behavior by its failure to identify and understand these biological and genetic defects. Moving to the second approach as to human behavior, the first theory to address the interaction of man with his environment was the “Classical Theory”. The modern classical theory of man’s conflict within society began with the French theorist Beccaria. Beccaria stated human nature develops by the interaction of the individual and the society in which he lives. The independent and isolated individual who tires of living in a constant state of conflict will come together and unite in society (Young,1986:7). In this bond with society, man is required to give up part of his personal liberty to the sovereignty of the society that has the right to defend and protect the public welfare. Included in the sovereign’s rights are that of defining crime and the punishment of the individual for its violation (Young 1986:8). Durkheim built on Beccaria’s theory by applying modern scientific methods to the field of sociology. Durkheim stated that the individual wanted to participate within society in order to meet their appetites for pleasure (Durkheim,1951:280). The theory of social integration called anomie stated society’s requirement to contain the individual’s appetite will be accomplished by the individual’s ability to work within society. It is the need to earn a living that motivates the individual. This ability to earn a living impacts the pleasure of the individual in many respects other than money. It gives him the basics of food and shelter but also provides self-esteem, standing and respect in his community. Conditions in society, primarily economic, impact the individual’s ability to obtain this pleasure. It also inflicts the pain this individual will suffer by his inability to work, achieve respect and have self-esteem. Human nature being what it is, all individuals will seek out in his particular circumstance what is available for him to work and achieve within his society. If work is not available, the individual will resort to deviant behavior to obtain what he wants. This concept is called “individual utility”. Behavior is determined by the individual’s ability to maximize his individual utility from the circumstances in which he is surrounded (Chiricos, 2002). Part Two – Concepts, Propositions & Hypothesis Understanding that the above described individual’s that fall into the biological/genetic deviant category account for an insignificant portion of crime, a closer look at those in the second group must be examined as to their participation in crime. Many argue that these individual’s can be identified and controlled and therefore crime can be identified and controlled. My observations over many years and in many different roles within the criminal justice system leads me to believe that the position of Critical theory, especially Reiman, makes more sense. Critical theory believes crime exists because “someone” in society needs it. The “someone” is the rich who in turn hold the power within society. Going back as far as possible in history, man has always had crime. In early years, crime was actually called war. Men fought and killed to conquer people and obtain their property. In aristocratic societies, Kings and Queens defined crime and punished those that violated his/her laws as they saw fit. In democratic societies, crime exists so those in power (super ordinates) can control those who are needed to provide labor (subordinates). The idea that crime serves important interests in society comes from Durkheim’s theory of anomie (Reiman,1998:7). The notion that social institutions contribute to crime instead of solving the crime problem comes from Kai Erickson’s Wayward Puritans (1966). Erickson following up on Durkheim’s theory hypothesed that the “American criminal justice system fails to reduce crime because a visible criminal population is essential to maintain the boundaries that mark the cultural identity of American society and to maintain the solidarity among those that share that identity.” (Reiman,1998:47) The idea that public policy can be best understood as serving the interest of the rich and powerful comes from Marx’s theory of capitalism (Reiman,1998:7). The reality that crime is created and criminals are labeled by those in society comes from Richard Quinney (1997). John Q. Wilson (1985) puts forth the theory that in capitalistic societies there is always a relationship where one is the super ordinate and the other is the subordinate. This relationship leads to stratification within society (a class system) where the super ordinate will inflict pain upon the subordinate as well as control. Reiman expands on these theories and hypotheses “that societies may promote behavior that they seem to want to eliminate…failure to stamp out crime doesn’t simply reflect an existing consensus but contributes to creating one, one that is functional for only a certain part of our society… that of those in power.” (Reiman,1998:48) Several concepts are implicit in this theory. Both groups defined above to explain human nature will interact with society. Each group potentially will interact differently because they potentially will see society differently. Regardless each group will be classified as deviant in the event they “break the law”. It is understood that society legislatively decides what defines criminal behavior and how it will be punished. A certain segment of society controls the wealth that in turn controls the legislative branch of government. This segment of society has been identified as the “overclass” (Lind,1995). The overclass control the capital and by doing so decide when labor will be employed. At the same time, the overclass must protect their capital. This creates the need for a criminal justice system. This concept is the underlying force of a capitalistic society. Reiman argues the true benefit to the overclass is the ability to define crime. Reiman asks the question: Are industrial accidents, manufacturing design defects, medical malpractice and commercial products such as alcohol and cigarettes legitimate basis for criminal definitions? (Reiman,1998:79-100). The ability to define crime is extremely important. That ability is reserved for those in power. Concepts: The above discussion allows this paper to define several concepts in order to develop a relationship between crime and society. These include: (a) The individual is defined as a member of society that forfeit’s a portion of his liberty in order to live within a society that provides safety and security; (b) Individual utility is the individual’s use of society’s resources available to him to maximize his pleasure; (c) Work is the individual’s ability, either legitimately or illegitimately, to obtain money, prestige, respect and self-esteem; (d) Super ordinate is the power of one individual or collectively one segment of society over the individual by the control of capital; (e) Subordinate is the individual or a group of individuals in society that provide labor and work for the super ordinates and therefore are controlled by super ordinates; (f) Crime is the unacceptable behavior by an individual as defined by the collective consciousness of super ordinates. Propositions: The following are propositions formulated from the above listed concepts. a) The individual has an unlimited appetite for pleasure. b) Pleasure legitimately is obtained by work. c) Work is controlled by the super ordinates. d) The super ordinates maintain control over the subordinate by the controlling of capital that controls work. e) Crime is a result of the subordinate’s inability to maximize his individual utility. f) The criminal justice system fails because the super ordinates receive the benefits of its failure. g) The benefit to super ordinates is the ability to control society by defining crime as subordinates who fail to meet their need for pleasure by working and diverting crime away from their own behavior. h) Therefore the threat to society is seen as being from those below and not from super ordinates. Hypothesis: The individual’s ability to legitimately maximize his individual utility is negatively correlated to work available. Super ordinates control work through the control of capital. Crime is positively correlated with the subordinate’s ability to maximize his individual utility through illegitimate means. As super ordinates withdraw capital, crime negatively increases and subordinates are seen as the threat to society. Super ordinates receive the benefit of crime as a control of subordinates. Therefore, crime and the criminal justice system is a product created and maintained by super ordinates. A lesser hypothesis but, as important is that an individual’s biological/genetic deficiency is positively correlated to the increase in his potential for crime. Part Three – Historical Context Several observations about this particular model of crime need to be made. First, it doesn’t answer the question as to whether it would be acceptable to societies that are not capitalistic. I would argue that it would work just as well in an aristocratic society. I am not so sure about a socialist or communist society. Historically, I feel it doesn’t matter when in history the theory is applied. There may be other social contradictions taking place such as race, gender, social or political conflict as demonstrated by civil rights, war, social strife, feminism or terrorist attacks. The United States has seen all of these over the past forty years. Even so, a strong argument can be made that these phenomena are functions of and a benefit to the super ordinates just as the economic control of subordinates. Race, gender, war, social strife and terrorism are all issues that have impacted the definition of crime during the time these social phenomena were taking place. The above-described theory has the requirement to protect property interests of the powerful while maintaining control over the majority of society that comprises labor. The primary problem with today’s system is that the authority to define crime and the control of the criminal justice system is in the hands of the powerful which represents a small proportion of society. Therefore, as necessary, crime is redefined and the criminal justice system responds by maintaining a system that creates as opposed to eliminating crime. Part Four – Policy Considerations Before discussing crime control and policy implementations in response to the above described theory, two policy considerations must be discussed for the recommended changes to work; universal health care and decriminalization of certain morale crimes. Without a serious policy shift in these two areas, the criminal justice system will continue “rolling along” as described. First, it is important that universal health care become available to all citizens from birth. Legislation needs to be passed so that all entering children into our schools will receive free yearly medical examinations. Early detection of the many health problems that go undetected such ADHD, poor hearing and eyesight, dental, dyslexia and genetic/biological imbalances would improve many of the early problems that lead to disruptive and delinquent behavior. Legislation must also be passed to offer this same type of health care to all persons arrested. I know that this policy would be strongly opposed. However, I would point out that we now mandate DNA testing and blood draws for a large population of defendants that are convicted. The conducting of additional testing would not be that great. Our medical universities and medical training facilities for little cost could conduct such medical services. Our military services now have such programs for the benefit of training medical doctors for the military. The intent of such a policy would be to document very clearly for future reference those that have health problems that could contribute to their behavior. An additional benefit would be correction of the individual’s health allowing them to improve their ability to function in society. Second, a number of victimless and morals crimes need to be legislated off the books. (I hope this paper doesn’t come back to haunt me!) Clearly, prostitution and marijuana related crimes should be decriminalized. Prostitution is legal in Nevada and many other countries. The debate over marijuana is slowly leading to its decriminalization. The money saved by a change in these two laws would pay for national health care. Treating these two infractions like traffic violations could raise money. Sufficient fines could be imposed to cover the cost of the criminal justice system. I will not advocate further on what crimes could be decriminalized but I feel certain there are several others that could change the focus of crime. A third set of legislative enactments would be extremely helpful in making the criminal justice system more just. Legislation is needed to correct capitalist wrong-doing behavior in society. I know that such legislation will never occur. But, instead of putting monetary caps on recoveries for industrial wrong doing such as manufacturing design defects, chemical injury and malpractice, legislation should be enacted to make such acts one of strict liability. Upon finding, the defendant should be required to pay for the damages inflicted as well as being fined proportionally as to the profit of their wrong doing. Moving on, I sincerely do not feel crime can be prevented. However I do feel the structure of sentencing could result in lowering repeat offenders. The social value of sentencing is served once a person is incarcerated. The question becomes how long a person should be incarcerated. The direction of sentencing today is towards longer sentences. The theory argued is that if you take that person off the street, there is one less criminal. That just isn’t so. Someone moves up to fill the hole. The trend in sentencing should be reversed. Shorter sentences need to be imposed. Sentences over three years for first time offenders, even for the most serious crimes, serve no purpose except society’s need for retribution. Many less serious crimes should not receive incarceration. Several current practices about sentencing need to change. Probation for first time offenders for crimes against persons should be only after a period incarceration. Burglaries should fall into this same sentencing structure. All first time offenders should not be adjudicated guilty and should retain their civil rights. Second time offenders would in all cases receive incarceration regardless of the category of the first or second crime. The period of incarceration should not exceed ten years. All second time offenders would be adjudicated guilty and forfeit all civil rights. Third time offenders would receive life sentences with parole only for certain classes of crime after twenty-five years. Gain time would be eliminated. The incentive for gain time is the good behavior of the inmate. Inmates will either learn to live peacefully in their prison community or be punished. Classification systems that allow progress towards better prison settings are adequate incentive. Gain-time as now used is discretionary and used by those that either like the inmate or want to punish him. All inmates upon release from incarceration would be assigned to parole. First time probationers would receive the same structured supervision as parolees. These probationers and parolees would report directly to neighborhood boards in the counties from which they were sentenced for supervision. The neighborhood boards should be responsible for housing and job placement of each person assigned. Medical care should be provided. Failure to comply with the terms of the neighborhood boards would be considered a second violation of the law and result in a new prison sentence as a second/third time offender. The juvenile justice system would be eliminated. Juveniles would be handled in adult courts with all the constitutional guarantees granted adults. Juveniles would be sentenced as adults as described above. After periods of incarceration in special institutions for juveniles, they would be placed into the same neighborhood boards for supervision with an additional condition that they complete an educational or vocational training program that is provided by and paid for by the state. Society may identify certain crimes as being such a threat to the safety and welfare of its citizens that the only proper sentence would be life in prison. Such crimes could include murder with aggravation, sexual battery with aggravation and treason. Institutional Implementation – Police, Courts and Corrections The role of the police in this system is to concentrate on solving all crimes and making arrest base upon sufficient evidence to result in convictions. Police today make to many marginal arrests. A lot of the police practices today are a result of a system that encourages arrests for the purpose of clearing crimes in order to build the statistics and to enhance promotion potential. The second aspect that would enhance credibility and cooperation is a shift by police away from physical confrontation with defendants and witnesses. Watch any “cop show” on television and the frequency of force used in police/public interaction becomes clear. Society today needs to shift towards a greater respect for and belief that police officers are a part of the community. The courts’ role in the above described theory would require a better screening of defendants as to what brought them into the system. Health reasons would be documented. Courts need to manage their caseloads better for a faster conclusion to the cases brought before it. This would occur if the volume of crime were reduced by the above-suggested legislation. Correctional institutions would do a better job of screening and documenting those sentenced to their institutions. Complete background information would be gathered. Psychological testing would be completed. This information would be shared with the supervising neighborhood boards. Medical problems would be handled for each inmate. Constructive vocational programs would be implemented which would allow the inmates to work for the State or community in which the institution is located. The Federal Correctional Institutions have such programs in place today that include computer training and computer work for the federal government. Correctional institutions are excellent locations for a variety of training programs. Inmates can be used for training teachers and medical personnel. The public looks at correctional institutions as unsafe places for the general public. That myth just isn’t so. Most inmates would welcome the opportunity not only to interact with civilians, but, to learn something that will help them when they get out of incarceration. Each of the above-described institutions would benefit by the above-described policy changes. The result would be better ratios between the institutional personnel and the people they handle in the name of “controlling crime”. Money could be diverted for better training of institutional personnel. A greater respect for each of the institutions would occur. Greater interaction would occur between the deviant and his community and this bonding would result in a greater chance for success by the deviant. The community would learn more about the deviant and how to integrate him into the community. I recognize this process will not work for a significant number of the criminal population. Some people are simply bad. However the majority of those who commit crime really want to experience the pleasure that society can provide. Future StudiesThe above proposals are radical and testing their effectiveness is considerably off in the future if by chance it was ever given a try. I have tried to build into my model statistical bases for future study. Gathering information as to the background of each person having contact with the system is important for both research purposes and providing information for people monitoring the convicted. In addition psychological testing and medical history including treatment will give better information for future research, better follow-up in the community and for the criminal justice system in the event the individual fails and re-enters as criminal again. The effectiveness of these proposed changes must be determined on several fronts. First, did it impact the criminal justice system by reducing crime? Is crime subsequently defined differently? Has the public’s perception of crime changed? Do they feel safer? Are those labeled as deviants treated better by the system? Do they reintegrate back into the system or do they return to crime? As to a model of research for answering these questions, all researchers would like to an experimental design when deviance is being studied. That just isn’t possible except for maybe testing the effectiveness of sentencing and reintegration by the individual. Quasi-experimental designs using survey questionnaires or pre and post testing might be possible. The system was set up to allow the collection of considerable data for purposes of research using this secondary data for purpose of triangulation. Standard data gathering in the future should parallel that of the past. The Uniform Crime Report will reflect any shift in the type of crimes prosecuted, sentences imposed and recidivism. An interesting study that reviewed the impact of the labor force and single-family homes in crime rate trends and cycles was Social Change and Crime Rate Trends: A Routine Activity Approach (Cohen and Felson, 1979). Such a follow-up study would benefit a review of my model. I would expect there to be a shift in society’s fear of crime and fear of becoming a victim. I would hypothesis that society would shift from considering crime to be a major problem because they would have less fear of becoming a victim. Such research as that conducted by Hartnagel (1979) and discussed in The Perception and Fear of Crime: Implications for Neighborhood Cohesion, Social Activity, and Community Affect would give insight as to the impact of the reintegration of the deviant individual into the neighborhood. Society’s perception of who controls crime would be of interest. Studies conducted similar to Grasmick, Jacobs and McCollom’s Social Class and Social Control: An Application of Deterrence Theory (1983) would disclose changes in society’s perception as to who is sent to prison and the deterrent effect if any upon the various classes in society. A more recent study along these same theories is Law and Inequality: Race, Gender...and, of Course, Class (Seron and Munger, 1996). Police effectiveness would require studies similar to Specifying Specific Deterrence: The Influence of Arrest on Future Criminal Activity (Smith and Gartin, 1989) similar studies could be constructed for the evaluation of the courts and the correctional systems. I was not able to locate studies directly on point for these institutions. Conclusion It has been fun to dream of a new criminal justice system that may put justice into the system for those that will become criminal. There will always be criminals. Crime is a part of man’s society as is AIDS and taxes. What is depressing to know is that the present system will continue to label criminals and put them into the system not for the benefit of justice but for their own benefit. Change will only come about because those in power have something to lose – only if they are made to suffer the pain of those they control.
Bibliography Chiricos, Theadore. 2002. “Lectures on Positivist Theory and Critical Theory.” . Tallahassee: Florida State University. Cohen, Lawerence E., and Marcus Felson. 1979. “Social Change and Crime Rate Trends: A Routine Activity Approach.” American Sociological Review 44: 588-608. Durkheim, Emile. 1951. Suicide: A Study in Sociology. New York: The Free Press. Erikson, Kia T. 1966. Wayward Puritans. New York: John Wiley and Sons, Inc. Freud, Sigmund. 1938. The Basic Writings of Sigmund Freud. New York: The Modern Library. Grant, Don S., and Ramiro Martinez. 1997. “Crime and the Restructuring of the U.S. Econony: A Reconsideration of the class Linkages.” Social Forces 75: 769-798. Grasmick, Harold G., Darlene Jacobs, and Carol B. McCollom. 1983. “Social Class and Social Control: An Application of Deterrence Theory.” Social Forces 62: 359-374. Hartnagel, Timothy F. 1979. “The perception and Fear of Crime: Implications for Neighborhood Cohesion, Social activity, and Community Affect.” Social forces 58: 176-193. Jones, Robert A. 1986. Emile Durkheim: An Introduction to Four Major Works. Beverly Hills, Ca.: Sage Publications. Lind, Michael. 1995. “To Have And Have Not.” Harper's Magazine June, 1995: 35-47. Liska, Allen E., Mitchell B. Chamlin, and Mark D. Reed. 1985. “Testing the Economic Production and Conflict Models of Crime Control.” Social Forces 64: 119-138. Quinney, Richard. 1965. “Suicide, Homicide, and Economic Development.” Social Forces 43: 401-406. Quinney, Richard. 1997. Class, State and Crime. New York: Longman. Reiman, Jeffrey. 2001. The Rich Get Richer and the Poor Get Prison. Needham Heights, Ma.: A Pearson Education Company. Reynolds, Paul D. 1971. A Primer in Theory Construction. Boston: Allyn and Bacon. Rose, Louis. 1998. The Freudian Calling: Early Viennese Psychoanalysis and the Pursuit of Cultural Science. Detriot: Wayne State University Press. Seron, Carroll, and Frank Munger. 1996. “Law and Inequality: Race, Gender...and, of Course, Class.” Annual Review of Sociology 22: 187-212. Smith, Douglas A., and Patrick R. Gartin. 1989. “Specifying Specific Deterrence: The Influence of Arrest on Future Criminal Activity.” American Sociological Review 54: 94-106. Wilson, James Q., and Richard J. Hernstein. 1985. Crime and Human Nature. New York: Simon and Schuster.
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