CRIMINAL SANCTIONS

The quality and quantity of normative sanctions have been viewed as a reflection of the nature of social solidarity (Durkheim 1964; Black 1976). In simple societies where the level of willing conformity is high, normative sanctions tend to be informal in nature, substantive in application, and limited in use. In complex societies where levels of willing conformity are lower, normative sanctions are more likely to be formal in nature, procedural in application, and frequent in use (Michalowski 1985). The increasing stratification, morphology, and bureaucracy of modern society have given rise to the predominance of formal justice in the form of criminal law and criminal sanctions (Black 1976). Consequently, the nature of crime has been transformed from an offense committed by one individual against another in the context of community to an offense committed against the society as a whole (Christie 1977). Behaviors considered harmful to the moral, political, economic, or social well-being of society are defined as criminal and thereby worthy of formal state sanctions (Walker 1980). Criminal behaviors include transgressions of both the prohibitions and obligations that define a particular society. Behaviors come to be defined as crimes through the process of criminalization, which includes the calculation of proportional sanctions for each crime.

Criminal sanctions include capital punishment, imprisonment, corporal punishment, banishment, house arrest, community supervision, fines, restitution, and community service. The type and severity of criminal sanctions are prescribed by criminal law (Walker 1980). The quality and quantity of criminal penalties are determined by both the perceived seriousness of the offense and the underlying philosophy of punishment. Punishment by the state on behalf of society has traditionally been justified on either consequential or nonconsequential grounds (Garland 1994). Consequentialism justifies punishment as a means to the prevention of future crime. The utilitarian approach, for example, allows society to inflict harm (by punishment) in order to prevent greater harms that would be caused by future crimes. The utilitarian approach to criminal sanctions is governed by a set of limiting principles (Beccaria 1980). According to utilitarianism criminal sanctions should not be used to penalize behavior that does not harm, the severity of the penalty should only slightly outweigh the benefit derived from the criminal behavior, and alternatives to punishment should be utilized when they prove to be as effective (Bentham 1995).

Nonconsequentialism, on the other hand, justifies punishment as an intrinsically appropriate response to crime (Duff and Garland 1994). The retributive approach, for example, mandates punishment as a way of removing the advantage originally gained by the criminal behavior or as a means of restoring the moral balance that was lost as a result of a crime. According to the retributivist perspective crime separates the offender from the community and it is only through punishment that the separation can be repaired (Morris 1981). While the utilitarian and retributivist justifications have dominated the philosophical discussion of punishment, more recent justifications such as rehabilitation (Rotman 1990) and incapacitation (Morris 1982) have also been viewed in terms of their consequential and nonconsequential nature. From a sociological perspective these philosophies of punishment represent ideal types against which the actual practice of punishment must be examined.

THE SOCIOLOGY OF CRIMINAL SANCTIONS

Several lines of inquiry comprise the sociology of criminal sanctions including the examination of the criminalizing process, the empirical assessment of the effectiveness of particular sanctions, and the analysis of the relationship between social structural changes and the evolution of criminal law.

Critique of the Criminalization Process. The question of which behaviors become defined as criminal and deemed worthy of punitive sanctions has been central to the study of crime and law. The functional perspective of criminal law suggests that the criminalization of a particular behavior is the result of a consensus among members of a society (Durkheim 1964). In the consensus view criminal law encompasses the behaviors that have been determined to be most threatening to the social structure of society and the well-being of its members (Wilson 1979).

According to the functionalist perspective, criminal law adapts to changes in the normative consensus of society. As society evolves, behaviors once considered criminal may be decriminalized while behaviors that had previously been acceptable may become criminalized. In this context criminal law and its accompanying sanctions are viewed as the collective moral will of society. Punishment is viewed as serving the essential function of creating a sense of moral superiority among the law-abiding members of society, thereby strengthening their social solidarity (Durkheim 1964). Therefore, crime is considered to be inevitable in the functionalist view because the pressure exerted against those who do not conform to normative expectations is necessary to reinforce the willing conformity among members of society. Solidarity results from the social forces directed against transgressors, with the most powerful of these forces being criminal sanctions (Vold 1958). Criminal sanctions enable societies to distinguish between behaviors that are simply considered unacceptable and those behaviors that are considered truly harmful.

Conversely, the conflict perspective suggests that the designation of behaviors as criminal is determined within a context of unequal power. Although various forms of the conflict perspective identify different sources for this power imbalance, they are in general agreement as to the results of the criminalizing process. According to the conflict view, society is made up of groups with conflicting needs, values, and interests that are mediated by an organized state that represents the needs, values, and interests of groups that possess the power to control the state. Such control includes the capacity to determine which behaviors are considered to be criminal and which behaviors are not. As a result behaviors more likely to be committed by the less powerful are defined as criminal while behaviors more likely committed by the powerful are not defined as criminal (Bernard 1983; Reiman 1998). Furthermore, the conflict view suggests that the application of both criminal law and criminal sanctions are skewed in favor of those with power. Within the conflict perspective various theories are differentiated according to their identified source of group conflict. Among the major conflict theories are those that identify a conflict of cultural groups (Sellin 1938), those that identify a conflict of norms (Vold 1958), those that identify a conflict of socioeconomic interests (Marx 1964), and those that identify a conflict of bureaucratic interests (Turk 1969). Despite their different origins, conflict theories are united in their assessment that criminal law and criminal sanctions are utilized to support the average best interest of those with power. As a result the state is assumed to apply criminal sanctions in such a manner that they are not perceived as overly coercive while at the same time preserving the existing power arrangements thereby maintaining the legitimacy of criminal law (Turk 1969).

An Empirical Context for Criminal Sanctions. Empirical assessments of criminal sanctions have been primarily carried out within the contexts of penology and the sociology of punishment. Penology is a practically oriented form of social science that traces and evaluates various practices of penal institutions and other punitively oriented institutions of the modern criminal justice system (Duff and Garland 1994). Penology began as an extension of the prison itself thats sole purpose was to evaluate the objectives of the institution and develop more efficient ways of achieving these institutional objectives. More recently penology has expanded its inquiry to include the assessment of the entire criminal sanctioning process (studying the prosecution, the court process, as well as alternative sanctions such as probation, fines, electric monitoring, community service, and restitution). Increasingly, penology has been guided by the major theories of crime causation thus becoming a recognized area of study within the discipline of criminology. Contemporary, penological research serves as the empirical foundation for policy development (Bottomley 1989). Despite its more recent criminological grounding, penological research is still viewed as primarily evaluative rather than critical. Penology assumes an exclusively punitive perspective toward transgressions of criminal law, therefore, it is primarily concerned with the relative effectiveness of the various punitive responses to criminal transgressions. The critical dimension of penology is limited to identifying problems within existing institutions and suggesting ways to more efficiently achieve the goal of punishment. Because penology is limited to the study of punishment systems any questions concerning alternative models of crime control such as compensation or conciliation are addressed by the sociological study of punishment (Garland 1990).

Unlike penology, the sociology of punishment raises more fundamental questions concerning the relative effectiveness of both punitive and nonpunitive responses to normative transgressions. Within the context of the sociology of punishment special attention is directed to the way in which society organizes and deploys its power to respond to transgressions (Duff and Garland 1994). It is primarily concerned with the relationship between punishment and society. Punishment is examined as a social institution that reflects the nature of social life. The sociology of punishment is fundamentally interested in why particular types of societies employ particular types of criminal sanctions (Garland 1990). In addition, the sociological analysis of punishment examines the social conditions that necessitate certain styles of normative sanctioning such as the use of penal sanctions in social situations that are characterized by high levels of inequality, heterogeneity, and bureaucratic interaction (Black 1976). The sociology of punishment also includes the study of correlations between the application of various sanctions (e.g. imprisonment, probation, fines, etc.) and demographic variables such as class, race, gender, occupation, and education (Reiman 1998; Zimring and Hawkins 1990). Because of the dominance of imprisonment as the preferred sanction for serious criminal transgressions in Western societies much attention has been directed to the effect of penal confinement on prisoners. Sociological inquiries into the inner world of the prison have examined the social adaptation of prisoners to the unique requirements and relationships that characterized "The total institution" (Goffman 1961; Sykes 1958). The sociological study of punishment suggests that the adoption and application of criminal sanctions are better understood as a reflection of social, political, and economic reality than as the product of moral consensus (Garland 1990).

The Evolution of Criminal Sanctions. Sociologists have paid considerable attention to the qualitative evolution of criminal sanctions. Special attention has been directed to the relationship between changes in the socioeconomic structure and the evolution of criminal law in modern Western societies (Mellosi and Pavarini 1981). Within the more general discussion of law and society, the study of punishment and social structure emerged (Rusche and Kirchheimer 1939). The sociology of penal systems argues that the transformation of penal systems cannot primarily be explained by the changing needs of crime control. Instead, the sociological analysis of shifts in the systems of punishment and criminal law are best understood in terms of their relationship to the prevailing system of production (Sellen 1976). Each society generates criminal law practices and types of punishments that correspond to the nature of its productive relationships. Research on punishment and social structure has focused attention on the origin and evolution of penal systems, the use or avoidance of specific punishments, and the intensity of penal practices in terms of larger social forces—particularly economic and fiscal forces (Rusche and Kirchheimer 1939). For example, in slave economies where the supply of slaves was inadequate, penal slavery emerged; the emergence of the factory system decreased the demand for convict labor, which in turn led to the rise of reformatories and industrial prisons (Melossi and Pavarini 1981). Although the economic analysis of criminal sanctions dominated the early literature on the sociology of punishment, later analysis has focused more broadly on all five aspects of social life (i.e., stratification, morphology, bureaucracy, culture, and social control).

CRIMINAL SANCTIONS AND THE ASPECTS OF SOCIAL LIFE

The comparative study of law has identified criminal law and criminal sanctions as quantifiable variables (Black 1976). By quantifying criminal law and criminal sanctions it is possible to compare both the type and the amount of law utilized by one society versus another. The quantification of law can then be correlated to the nature of social life. The type and amount of criminal law can either be correlated to individual aspects of social life or the collective integration of all the variables of social life. Social life consists of five variable aspects: stratification is the vertical aspect of social life (the hierarchy of people relative to their power), morphology is the horizontal aspect of social life (the distribution of people in relation to each other), bureaucracy is the corporate aspect of social life (the capacity for collective action), culture is the symbolic aspect of social life (the representation of ideas, beliefs, and values), and social control is the normative aspect of social life (the definition of deviance and the response to it). The first four aspects of social life collectively determine the style of social control.

Comparative legal studies have identified five styles of social control; penal control, compensatory control, therapeutic control, educative control and conciliatory control (Fogel 1975). The response to normative transgressions under each style is consistent with the general standard of behavior recognized by society at large. Transgressions of the prohibition standard of the penal style of control require a punitive solution in order to absolve the guilt of the transgressor. Violation of the obligation standard of the compensatory style requires payment in order to eliminate the debt incurred by the violation. Behaviors that fall outside the standard of normality that characterizes the therapeutic style require treatment to restore predictability to social interaction. Failure to meet the knowledge standard of the educative style requires reeducation in order to attain a full understanding of society's norms and underlying values. Disruption of the harmony standard of the conciliatory style requires resolution in order to reestablish the relationships among members of the community (Fogel 1975).

Criminal law and punitive sanctions are inversely correlated to other forms of social control. In addition to law, social control is found in many intermediate social institutions, including family, churches, schools, occupations, neighborhoods, and friendships. In societies where such intermediate institutions are dominant, the need for law and formal criminal sanctions is limited. Conversely, in societies where intermediate institutions are less dominant informal social control is less effective, thereby necessitating the expansion of formal social control that typically takes the form of criminal law and punitive sanctions. The quantity of criminal law increases as the quantity of informal social control decreases (Black 1976). The primary measurement of the quantity of criminal law is the frequency and severity of criminal sanctions.

The relative quantity of criminal law and other forms of social control have been linked to the relative presence or absence of the other aspects of social life. At the extremes, societies characterized by significant stratification, morphological diversity, bureaucratic interaction, and cultural multiplicity will employ a more penal style of social control while societies characterized by general equality, homogeneity, face-to-face interaction, and cultural consensus will employ a more conciliatory style of social control. The therapeutic, educative, and compensatory styles of social control are to be found in societies somewhere between the extremes. In Western societies the increase in stratification, morphology, bureaucracy, and cultural multiplicity have combined to lower the level of willing conformity and diminish the effectiveness of informal mechanisms of social control (Garland 1990). The decline of informal social control has been traced to the less efficient use of shaming. Literature on the effectiveness of various normative sanctions has suggested that shame can be either reintegrative or disintegrative in nature depending on the strength of intermediate institutions and the level of willing conformity (Braithwaite 1994). Although the phenomenon of shame is found in both formal and informal systems of social control it is a more central feature of informal social control.

FORMAL VERSUS INFORMAL SANCTIONS

Shaming is the central deterrent element of most informal mechanisms of social control. Its use in formal mechanisms of social control has until the 1990s been limited due to the concerns related to labeling (Becker 1963; Braithwaite 1994). Deterrence research has shown a much stronger shaming effect for informal sanctions than for formal legal sanctions (Paternoster and Iovanni 1986). It has been suggested that sanctions imposed by groups with emotional and social ties to the transgressor are more effective in deterring criminal behavior than sanctions that are imposed by a bureaucratic legal authority (Christie 1977). Although the empirical evidence comparing the deterrent effect of informal versus formal sanctions is limited, it has consistently shown that there is a greater concern among transgressors for the social impact of their arrest than for the punishment they may receive (Sherman and Berk 1984). Perceptions of the certainty and severity of formal criminal sanctions appear to have little effect on the considerations that lead to criminal behavior. Whatever effect formal criminal sanctions do have on deterring future criminal behavior is primarily dependent on the transgressor's perception of informal sanctions (Tittle 1980).

Deterrence theory is predicated on the assumption of fear (Zimring and Hawkes 1973). It has been assumed that deviants and especially criminal offenders fear the loss directly related to formal sanctions (e.g. loss of liberty, loss of material possessions, etc.). Research on formal sanctions that are coupled with informal sanctions suggests to the contrary that to the extent transgressors would be deterred by fear, the fear that is most relevant is that their transgression will result in a loss of respect or status among their family, friends, or associates (Tittle 1980). In the cost-benefit analysis that is central to the "rational actor" model of crime causation, loss of respect and status weighs much more heavily for most individuals than the direct loss of liberty or material.

Deterrence is considered to be irrelevant to the majority of the populace, therefore, most people are believed to comply with the law because of their internalization of the norms and values of society (Toby 1964). For the majority of the populace failure to abide by the norms and values would call into question their commitment to that society. For the well-socialized individual, moral conscience serves as the primary deterrent. The conscience delivers an anxiety response each time an individual transgresses the moral boundaries of society. The anxiety response fulfills the three requirements of deterrence: it is immediate, it is certain, and it is severe. Formal criminal sanctions on the other hand may be severe but they are not always certain nor swift (Braithwaite 1994).

Criminal sanctions represent a denial of confidence in the morality of the transgressor. In a criminal law system norm compliance is reduced to the calculus of cost versus benefit. Conversely, informal sanctions can be a reaffirmation of the morality of the transgressor by showing disappointment in the transgressor for acting out of character. The shaming associated with the disappointment is reintegrative because its ultimate goal is the restoration of the transgressor to full membership in the group, community, or society. Shaming in the informal context is reintegrative because of its view of the transgressor as a whole and valued member of society and its goal of social restoration. Criminal sanctions, on the other hand, define the transgressor strictly in terms of his or her transgression thus causing a disconnection between the transgressor and society (Garfinkel 1965). Criminal sanctions lack both the incentive and mechanism for reintegration. Without reintegrative potential, criminal sanctions stigmatize rather than shame. Stigmatization is exclusively concerned with labeling while reintegrative shaming is equally concerned with delabeling. In the context of most informal sanctions community disapproval is coupled with gestures of reacceptance. The reintegrative character of informal sanctions ensures that the deviant label be directed to the behavior rather than the person thus avoiding the assignment of a master status to the person (Braithwaite 1994).

In the study of criminal sanctions much attention has been directed to the effects of labeling on the sanctioned transgressor. Labeling theory argues that the deviant characteristic (e.g., drug addict, criminal, etc.) assigned to a person may become a status such that the 'label' will dominate all positive characteristics (e.g. parent, teacher, church member, etc.) that might otherwise characterize the person. Such a deviant master status is believed to limit and in some cases preclude the reintegration of the transgressor. For those prevented from reintegrating, the label becomes a self-fulfilling prophecy eventually leading to secondary deviance, namely deviance caused by the label itself (Becker 1963). The possibility of secondary deviance as a result of the stigmatization of the transgressor has been included by some labeling theorists in their assessment of the relative effectiveness of criminal sanctions (Gove 1980). However, it has been alternatively suggested that stigmatization might enhance crime control because the thought of being a social outcast serves as a stronger sanction and more effective deterrent than being shamed and eventually reintegrated (Silberman 1976). The potential effectiveness of sanctions is dependent upon whether deterrence is more effectively achieved through the fear of social marginalization associated with formal sanctions or the fear of community disapproval associated with informal sanctions (Braithwaite 1994).

CRIMINAL SANCTIONS AND DUE PROCESS

Despite the lack of conclusive evidence in support of the deterrent effect of criminal sanctions, the frequency and severity of such sanctions have significantly increased over the past quarter-century (Stafford and Warr 1993). The dramatic rise in both the prison population and persons under probationary supervision is a reflection of the increase in the age of the population most at risk to engage in criminal acts as well as a renewed commitment to the nonconsequential philosophy of punishment. A number of observers have pointed to the growing use of criminal sanctions as a sign of an increased emphasis on crime control; however, the increasing use of criminal sanctions has coincided with the expansion of legal protections for the accused. The limitations of criminal sanctions in the form of due process guarantees have produced a hybrid criminal process that legitimates the widespread use of punitive responses to normative transgressions by constraining the power of state-sponsored agents of control. The criminal process in the West includes both a strong crimecontrol component and a strong due process component (Packer 1968). The process is perceived as a contest between relatively equal actors, which helps to legitimate the pain associated with the imposition of criminal sanctions. The criminal process satisfies both society's demand for crime control and its desire to protect the liberty of the individual. Criminal sanctions are shaped by these competing demands of society. On the one hand the crime-control component is based on the assumption that the suppression of criminal conduct is by far the most important function of the criminal process, while the due process component is based on the assumption that ensuring that only the guilty are punished is the most important function of the criminal process.

The crime-control model suggests that the failure to provide an adequate level of security for the general public will undermine the legitimacy of criminal law. In contrast, the due process model suggests that the wrongful punishment of an individual is a greater threat to the legitimacy of law (Turk 1969). Therefore, criminal sanctions must be severe enough to contribute to crime control and their application must be fair and consistent in order to satisfy due process requirements (Packer 1968). The additional constraint on criminal sanctions that they be applied only in cases where genuine intent can be conclusively determined has contributed to the rise of alternative systems of social controls.

SOCIAL CONTROL BEYOND CRIMINAL SANCTIONS

As the definition of what constitutes criminal behavior is narrowed, the social control of noncriminal normative transgression is transferred from the jurisdiction of criminal law to the jurisdictions of medicine and public health. Both public health and psychiatry have long been concerned with social control (Foucault 1965), but what is more significant is the dramatic expansion of their influence and control over the past half-century. Much of what was considered "badness" (and in some cases criminal) and thereby worthy of punishment has been redefined as sickness that requires a therapeutic response. Though the response is quite different, the objective of social control is fundamentally the same (Conrad and Schneider 1992). Some forms of normative transgressions have long been within the medical and public health domain (e.g., mental illness). Research has shown, however, that an increasing number of behaviors that had been punished in the past are now being treated within the medical jurisdiction (e.g., suicide, alcoholism, drug addiction, child abuse, violence, etc.). The most important implication in the shift of the locus of social control from law to medicine is the determination of individual responsibility. In the context of criminal law the full responsibility for normative transgressions is vested in the individual. In the medical context transgressors are not considered responsible for their actions (or their responsibility is significantly mitigated), therefore, they cannot be punished for actions that are beyond their control. The societal response to behaviors so defined is therapeutic rather than punitive (Conrad and Schneider 1992).

The trend toward the decriminalization of normative transgressions can be traced to the emergence of deterministic criminology, which shifted the study of crime causation from rational action to biological, psychological, and sociological sources (Kittrie 1971). The deterministic perspective was initially applied to juvenile delinquency. The influence of deterministic criminology grew in proportion to the expansion of the juvenile justice system. As more questions were raised about the ability of criminal law and criminal sanctions to effectively deal with transgressors such as juvenile delinquents, alternative methods of control became more widely accepted. It has been suggested that the shift from simple to complex societies has necessitated an accompanying shift from punitive to therapeutic methods of social control (Kittrie 1971). For example, the strength of criminal sanctions is believed to be declining because of the increase in residential mobility coupled with the decrease in the influence of primary institutions such as family, church, and school (Braithwaite 1994). As the influence of primary institutions has waned, their ability to command conformity has declined. With the decline of informal social control and the perceived ineffectiveness of criminal sanctions society has increasingly turned to the promise of therapeutic social control as a means of responding to normative transgressions (Conrad and Schneider 1992).

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Peter Cordella