CRIMINOLOGY AND PENOLOGY

BY SOLICITOR KATURA

CRIMINOLOGY AND PENOLOGY

CRIMINOLOGY, PENOLOGY AND CRIMINAL LAW

These are all branches of Criminal Science and they can not realy function without the other,
therefore:-
a) CRIMINOLOGY - is the scientific study of the criminal anthropology, Criminal sociology,
Criminal psychology, Criminal Psycho-Neuropathology, and Penology , both on the individual and
social levels.1

b) PENOLOGY – Is the scientific study of the punishment of crime and prison management. This
includes custody, punishment, treatment, prevention and control of crime and offender.2

c) CRIMINAL LAW - Is the body of law that relates to crime. Most criminal law is established by
statute, which is to say that the laws are enacted by a legislature. It includes the punishment of
people who violate these laws. Criminal Law seeks to implement policies pictured by criminology
and penology.

THE NATURE & SCOPE OF THIS STUDY

Criminology deals with the legal psychiatric (mental illness, emotional disorders) aspects medico-
psychology, biological, pedagogical or sociological aspects of criminality and factors related
therewith. The science of criminology may further be split into two namely:-
1. Theoretical or pure criminology
2. Applied or practical criminology

1 Deflem, Mathieu, ed. (2006). Sociological Theory and Criminological Research: Views from Europe and the
United States. Elsevier. p. 279.
2 Todd R. Clear (1994). Harm in American penology: offenders, victims, and their communities. SUNY Press.
p. 15
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1. THEORETICAL OR PURE CRIMINOLOGY – This is divided into the following sub-heads,

views or theories:-

1. CRIMINAL ANTHROPOLOGY – This is a theory developed by Cesare Lombroso (who

was an Italian criminologist and physician, founder of the Italian School of Positivist
Criminology) He was the first to explain that the criminal behavior is in terms of physical
characteristics of the offender and emphasized that criminals were different physically
from normal persons and possessed inferior physical characteristics. This view seeks to
understand the personality of the offenders in physical terms. Though this view is no longer
supported by modern criminologists but it does have its theoretical importance.
2. CRIMINAL SOCIOLOGY – This is a theory developed by Edwin Sutherland (was an
American sociologist, sometimes they call him the father of sociological school of
criminology) He developed the theory of 'differential association' which explains that the
criminal behavior is the process of learning through association with other criminals.
However this theory does not adequately take into account the personality traits (feature) or
psychological variables in criminal behavior.
3. CRIMINAL PSYCHOLOGY – This theory was developed by Alfred Binet (who was a
French psychologist) He developed the theory that the criminal behavior is the emotional
(inner) aspects of human nature.
4. CRIMINAL PSYCHO-NEUROPATHOLOGY - This theory was developed by Dr.
Sheldon Glueck (Who was a Polish-American criminologist). He developed the theory
that the criminal behavior is the function of mental conflicts in the personality of the
offender. The factors such as inferiority complex, frustration, depression, anxiety etc. May
lead a person to commit crimes.
5. PENOLOGY – This concerns with the various aspects of punishment and penal policies.
The various mechanisms of punishing offenders are also studied under penology.

PRINCIPLES OF LEGALITY OR CARDINAL (BASIC) PRINCIPLES OF

CRIMINAL LIABILITIES.

1. Nullum crimen sine lege ("no crime without law") - is the moral principle in criminal law
and international criminal law that a person cannot or should not face criminal punishment
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except for an act that was criminalized by law before he/she performed the act. This
principle requires crimes to be declared in unambiguous statutory text.
2. Nulla poena sine lege ("no penalty without a law") - is a legal principle, requiring that
one cannot be punished for doing something that is not prohibited by law. This principle is
accepted and codified in modern democratic states as a basic requirement of the rule of law.

SOCIAL CONTRACT THEORY

Social contract theory - Nearly as old as philosophy itself, is the view that persons' moral and
political obligations are dependent upon a contract or agreement among them to form the society in
which they live.

Social contract theory is rightly associated with modern moral and political theory and is given its
first full exposition and defense by Thomas Hobbes, John Locke and Jean-Jacques Rousseau are
the best known proponents of this enormously influential theory, which has been one of the most
dominant theories within moral and political theory throughout the history of the modern West.

Modern Social Contract Theory

a. Thomas Hobbes - (1588 – 1679)

He was an English philosopher who is considered one of the founders of modern political
philosophy.3 Hobbes is best known for his book Leviathan, which established the social contract
theory that has served as the foundation for most later Western political philosophy.4

Thomas Hobbes, lived during the most crucial period of early modern England's history: the
English Civil War, waged from 1642-1648. To describe this conflict in the most general of terms, it
3 Sheldon, Dr. Garrett W. The History of Political Theory: Ancient Greece to Modern America.
4 "Hobbes's Moral and Political Philosophy". Stanford Encyclopedia of Philosophy. Retrieved 11 March 2009.
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was a clash between the King and his supporters, the Monarchists, who preferred the traditional
authority of a monarch, and the Parliamentarians, most notably led by Oliver Cromwell, who
demanded more power for the quasi-democratic institution of Parliament. Hobbes represents a
compromise between these two factions as follows:-

On the one hand he rejects the theory of the Divine Right of Kings, which is most expressed by
Robert Filmer’s view who held that a king’s authority was invested in him by God, that such
authority was absolute, and therefore that the basis of political obligation lay in our obligation to
obey God absolutely. According to this view, then, political obligation is subsumed under religious
obligation.

On the other hand, Hobbes also rejects the early democratic view, taken up by the
Parliamentarians, that power ought to be shared between Parliament and the King. In rejecting
both these views, Hobbes occupies the ground of one is who both radical and conservative. He
argues, radically for his times, that political authority and obligation are based on the individual
self-interests of members of society who are understood to be equal to one another, with no single
individual invested with any essential authority to rule over the rest, while at the same time
maintaining the conservative position that the monarch, which he called the Sovereign, must be
ceded (surrendered) absolute authority if society is to survive.

Hobbes states that the State of Nature would be unbearably brutal. In the State of Nature, every
person is always in fear of losing his life to another. They have no capacity to ensure the long-term
satisfaction of their needs or desires. No long-term or complex cooperation is possible because the
State of Nature can be aptly described as a state of utter distrust. Given Hobbes' reasonable
assumption that most people want first and foremost to avoid their own deaths, he concludes that
the State of Nature is the worst possible situation in which men can find themselves. It is the
state of perpetual (never end) and unavoidable war.

The situation is not, however, hopeless. Because men are reasonable, they can see their way out
of such a state by recognizing the laws of nature, which show them the means by which to escape
the State of Nature and create a civil society. The first and most important law of nature commands
that each man be willing to pursue peace when others are willing to do the same, all the while
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retaining the right to continue to pursue war when others do not pursue peace.

The Social Contract is the most fundamental source of all that is good and that which we depend
upon to live well. Our choice is either to abide by the terms of the contract, or return to the State of
Nature, which Hobbes argues no reasonable person could possibly prefer.

b. John Locke - (1632 – 1704)

He was an English philosopher and physician, widely regarded as one of the most influential of
Enlightenment thinkers and commonly known as the "Father of Liberalism".5 he is equally
important to social contract theory. His writings influenced Jean-Jacques Rousseau.

The State of Nature is a very different type of place, and so his argument concerning the social
contract and the nature of men's relationship to authority are consequently quite different. While
Locke uses Hobbes’ methodological device of the State of Nature, as do virtually all social contract
theorists, he uses it to a quite different end.

According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect and
complete liberty to conduct one's life as one best sees fit, free from the interference of others. The
State of Nature is pre-political but it is not pre-moral. Persons are assumed to be equal to one
another in such a state, and therefore equally capable of discovering and being bound by the Law of
Nature. The Law of Nature, which is on Locke’s view the basis of all morality, and given to us by
God, commands that we not harm others with regards to their "life, health, liberty, or possessions"
because we all belong equally to God.

The State of Nature therefore, is not the same as the state of war, as it is according to Hobbes.
Whereas the State of Nature is the state of liberty where persons recognize the Law of Nature and
therefore do not harm one another, the state of war begins between two or more men once one man
declares war on another, by stealing from him, or by trying to make him his slave.

c. Jean - Jacques Rousseau - (1712 – 1778)

5 Sharma, Urmila & Sharma, S.K., Western Political Thought, Atlantic Publishers, Washington, 2006, p. 440
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He was a Francophone Genevan philosopher, writer, and composer of the 18th century. His
political philosophy influenced the Enlightenment in France and across Europe, as well as aspects
of the French Revolution and the overall development of modern political and educational thought.

According to Rousseau, the State of Nature was a peaceful and People lived solitary (lonely),
uncomplicated lives. Their few needs were easily satisfied by nature. Because of the abundance
(large quantity) of nature and the small size of the population, competition was non-existent, and
persons rarely even saw one another, much less had reason for conflict or fear. Moreover, these
simple, morally pure persons were naturally endowed (established) with the capacity for pity
(misfortune), and therefore were not inclined to bring harm to one another.

As time passed, however, humanity faced certain changes. As the overall population increased, the
means by which people could satisfy their needs had to change. People slowly began to live
together in small families, and then in small communities. Divisions of labor were introduced, both
within and between families, and discoveries and inventions made life easier, giving rise to leisure
time. Such leisure time inevitably led people to make comparisons between themselves and others,
resulting in public values, leading to shame and envy, pride and contempt.

Most importantly however, according to Rousseau, was the invention of private property, which
constituted the pivotal (important) moment in humanity's evolution out of a simple, pure state into
one characterized by greed (selfish desire), competition, vanity (admiration of one's achievement),
inequality, and vice. For Rousseau the invention of property constitutes humanity’s ‘fall from
grace’ out of the State of Nature.

Having introduced private property, initial conditions of inequality became more pronounced. Some
have property and others are forced to work for them, and the development of social classes begins.
Eventually, those who have property notice that it would be in their interests to create a government
that would protect private property from those who do not have it but can see that they might be
able to acquire it by force. So, government gets established, through a contract, which purports to
guarantee equality and protection for all, even though its true purpose is to fossilize the very
inequalities that private property has produced. In other words, the contract, which claims to be in
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the interests of everyone equally, is really in the interests of the few who have become stronger and
richer as a result of the developments of private property. This is the naturalized social contract,
which Rousseau views as responsible for the conflict and competition from which modern society
suffers.

THE SCHOOLS OF CRIMINOLOGY

1. PRE-CLASSICAL SCHOOL OF CRIMINOLOGY !

The period of 17th and 18th century in Europe was dominated by the religion scholasticism
(philosophy of Aristotelian). The dominance of religion in State activities was the chief
characteristic of that time. In political sphere, thinkers such as Hobbes and Locke were
concentrating on social contract as the basis of social evolution.

It was generally believed that a man commits crime due to the influence of some external spirit
called ‘demon’ or ‘devil’. Thus, an offender commits a wrongful act not because of his own free
will but due to the influence of some external super power. No attempt was, however, made to
probe into the real causes of crime.

The offender was regarded as an innately(naturally) depraved (wicked) person who could be cured
only by torture and pain. The evolution of criminal law was yet at a rudimentary (basic) stage.
Hobbes suggested that “fear of punishment at the hands of monarch was a sufficient deterrent
(discourages) for the members of early society to keep them away from sinful acts which were
synonymous (closely) to crimes”.

The principle of divine intervention especially through ordeals (painful) was in vogue (prevailing)
in ancient India as well. The oaths and ordeals played a very important role in the ancient judicial
system in determining the guilt of the offender. The justification advanced for these rituals was the
familiar belief that “when the human agency fails, recourse to divine means of proof becomes most
inevitable”.
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Though these practices appear to be most irrational (unreasonable) and barbarious (cruel/brutal) to
the modern mind, they were universally accepted and were in existence in most Christian countries
till thirteenth century. The Roman law completely ignored the system of ordeals and it was
forbidden in Quran.

2. THE CLASSICAL SCHOOL

During the middle of 18th century Cesarri beccaria, the pioneer (explorer) of modem criminology
expounded (presented or explained) his naturalistic theory of criminality by rejecting the
omnipotence (great power) of evil spirit. He laid greater emphasis on mental phenomenon of the
individual and attributed crime to ‘free will’ of the individual.

Thus, he was much influenced by the utilitarian (practical) philosophy of his time which placed
reliance (dependence) on hedonism “pain and pleasure theory”. this doctrine implied the notion
(idea or belief) of causation in terms of free choice to commit crime by rational man seeking
pleasure and avoiding pain. The main tenets (principles or belief) of classical school of criminology
are noted below:-
1. It is the act of an individual and not his intent which forms the basis for determining
criminality within him. In other words, criminologists are concerned with the ‘act’ of the
criminal rather than his ‘intent’. Still, they could never think that there could be something
like crime causation.
2. The classical writers accepted punishment as a principal method of infliction (cause) of
pain, humiliation and disgrace (loss of reputation) to create ‘fear’ in man to control his
behaviour.
3. The profounder of this school, however, considered prevention of crime more important
than the punishment for it. They therefore, stressed on the need for a Criminal Code in
France, Germany and Italy to systematise punishment for forbidden acts. Thus, the real
contribution of classical school of criminology lies in the fact that it underlined the need for
a well defined criminal justice system. Beccaria, in his historic work on CRIMES AND
PUNISHMENTS denounced retributive basis of punishment and observed that the aim of
punishment should only be to prevent the criminal from committing new crimes against his
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countrymen, and to keep others from doing likewise. Therefore, the punishments and the
method of inflicting them, should be close in proportion to crime so as to make the most
efficacious and lasting impression on the mind of men and the least painful impressions on
the body of the criminal.
4. The advocates of classical school supported the right of the State to punish the offenders
in the interest of public security. Relying on the hedonistic principle of pain and pleasure,
they pointed out that individualization was to be the basis of punishment. This in other
words meant that punishment was to be awarded keeping in view the pleasure derived by the
criminal from the crime and the pain caused to the victim from it. For the punishment to be
efficacious, it is enough that the disadvantage of the punishment should exceed the
advantage anticipated from the crime; in which the emphasis should be on the certainty of
punishment and the loss of the expected benefit. Everything beyond this, accordingly, is
surplus and, therefore, tyrannical.
5. The exponents of classical school further believed that the criminal law primarily rests on
positive sanctions. They were against the use of arbitrary powers of Judges. In their opinion
the judges should limit their verdicts strictly within the confines of law. They also abhorred
torturous punishments. Thus, judicial discretion is of seminal value while awarding the
maximum punishment, reasons must be detailed and specific.

Thus, classical school propounded by Beccaria came into existence as a result of the influence of
writings of Montesquie, Hume, Bacon and Rousseau. His famous work essays on crimes and
punishment received wide acclamation (approval) all over Europe and gave a fillip to a new
criminological thinking in the contemporary west.He sought to humanise the criminal law by
insisting on natural rights of human beings. He raised his voice against severe punishment, torture
and death penalty.

Beccaria’s views on crime and punishment were also supported by Voltaire as a result of which a
number of European countries redrafted their penal codes mitigating the rigorous barbaric
punishments and some of them even went to the extent of abolishing capital punishment from their
Penal Codes. It erred in prescribing equal punishment for same offence thus making no distinction
between first offenders and habitual criminals and varying degrees of gravity of the offence.
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However, the greatest achievement of this school of criminology lies in the fact that it suggested a
substantial criminal policy which was easy to administer without resort to the imposition of
arbitrary punishment. It goes to the credit of Beccaria who denounced the earlier concepts of crime
and criminals which were based on religious fallacies and myths and shifted emphasis on the need
for concentrating on the personality of an offender in order to determine his guilt and punishment.

Beccaria’s views provided a background for the subsequent criminologists to come out with a
rationalized theory of crime causation which eventually led the foundation of the modem
criminology and penology.

3. NEO – CLASSICAL SCHOOL

The ‘free will’ theory of classical school did not survive for long. It was soon realised that the
exponents of classical school faultered in their approach in ignoring the individual differences under
certain situations and treating first offenders and the habituals alike on the basis of similarity of
act or crime.

The neo-classists asserted that certain categories of offenders such as minors, idiots, insane and
incompetent had to be treated leniently in matters of punishment irrespective of the similarity of
their criminal act because these persons were incapable of appreciating the difference between right
and wrong.

This tendency of neo-classists to distinguish criminals according to their mental depravity was
indeed a progressive step in as much as it emphasised the need for modifying the classical view.
Thus, the contribution of neo-classical thought to the science of criminology has its own merits. The
main tenets of neo-classical school of criminology can be summarised as follows:-
1. Recognition of mental disorders. Neo-classists approached the study of criminology on
scientific lines by recognising mental disorders deprive a person of his normal capacity to
control his conduct.
2. Mitigation of equal punishment between intelligent offender and mental depravity.
They justified mitigation of equal punishment in cases of certain psychopathic offenders.
Commenting on this point, Prof. Gillin observed that neo-classists represent a reaction
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against the severity of classical view of equal punishment for the same offence.
3. Distinction between the first offender and recidivists (reoffends). Neo-classists were the
first in point of time to bring out a distinction between the first offenders and the recidivists.
They supported individualisation of offender and treatment methods which required the
punishment to suit the psychopathic circumstances of the accused. Though the ‘act’, i.e., the
criminal act still remained the sole determining factor for adjudging criminality without any
regard to the intent, but the neo-classists focused at least some attention on mental causation
indirectly.
4. Responsibility & irresponsibility of conducts of offenders. Man who has normal
intelligence & reasoning is responsible for his conduct while man lacking intelligence &
normal reasoning is irresponsible”. The advocates of this school started with the basic
assumption that man acting on reason and intelligence is a self-determining person and
therefore, is responsible for his conduct. But those lacking normal intelligence or having
some mental depravity are irresponsible to their conduct as they do not possess the capacity
of distinguishing between good or bad and therefore should be treated differently from the
responsible offenders.
5. Lenient treatment for irresponsible (mentally deprived) criminals. Though the neo-
classists recommended lenient treatment for “irresponsible” or mentally depraved criminals
on account of their incapacity to resist criminal tendency but they certainly believed that all
criminals, whether responsible or irresponsible, must be kept segregated from the society.
6. Formulation of different correctional institutions such as parole, probation,
reformatories, open-air camps etc. It is significant to note that distinction between
responsibility and irresponsibility, that is the sanity and insanity of the criminals as
suggested by neo-classical school of criminology paved way to subsequent formulation of
different correctional institutions such as parole, probation, reformatories, open-air camps
etc. in the administration of criminal justice.

Thus, it is through this school that attention of criminologists was drawn for the first time towards
the fact that all crimes do have a cause. It must, however, be noted that though this causation was
initially confined to psychopathy or psychology but was later expanded further and finally the
positivists succeeded in establishing reasonable relationship between crime and environment of the
criminal.
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It would be seen that the main contribution of neo-classical school of criminology lies in the fact
that it came out with certain concessions in the ‘free will’ theory of classical school and suggested
that an individual might commit criminal acts due to certain extenuating circumstances which
should be duly taken into consideration at the time of awarding punishment.

4. THE POSITIVE SCHOOL

Positivist Theory - The primary idea behind positivist criminology is that criminals are born as
such and not made into criminals; in other words, it is the nature of the person.

The main exponents (supporters) of this school were three eminent (famous) Italian criminologists
namely: Cesare Lombroso, Enrico Ferri, Raffaele Garofalo and French sociologist known as
Gabriel Tarde. It is for this reason that this school is also called the Italian School of Criminology.

CESARI LOMBROSSO (1836 – 1909) AND HIS THEORY

The first attempt to understand the personality of offenders in physical terms was made by
Lombroso of the Italian School of criminological thought, who is regarded as the originator of
modern criminology. He was a doctor and a specialist in psychiatry. He worked in military for
sometime handling the mentally afflicted soldiers but later he was associated with the University of
Turin. He was the first to employ scientific methods in explaining criminal behavior and shifted the
emphasis from crime to criminal. He firmly believed that biological and anthropological
researches he made were enough to account criminality.

Lombroso adopted an objective and empirical approach to the study of criminals through his
anthropological experiments, after an intensive study of physical characteristics of his patients and
later on of criminals, he came to a definite conclusion that criminals were physically inferior (lower
in rank, status, quality) in the standard of growth and therefore, developed a tendency for inferior
acts. He further generalized that criminals are less sensitive to pain and therefore they have little
regard for the sufferings of others. Thus through his biological and anthropological researches on
criminals Lombroso justified the involvement of Darwin’s theory of biological determinism in
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criminal behavior. He classified criminals into three main categories:-

1. Atavists, hereditary (inherited) criminals, or born-criminals. In his opinion born-

criminals were of a distinct type who could not refrain from indulging (allow oneself to
enjoy the pleasure) in criminality and environment had no relevance whatsoever to the
crimes committed by the Atavists. He, therefore, considered these criminals as incorrigibles
(not able to be corrected or reformed). In his view, the criminal reflected a reversion to an
early and more primitive being that was both mentally and physically inferior. He resembled
those of apes and had ape-like characteristics. Lombroso’s theory used physical
characteristics as indicators of criminality. He enumerated (mentioned) as many as sixteen
physical abnormalities of a criminal some of them were as follows:-
 Peculiar (unusual, strange) size and shape of head, eye,
 enlarged jaw and cheek bones,
 fleshy (fat) lips.
 abnormal teeth.
 long or flat chin,
 retreating forehead,
 dark skin,
 twisted nose and so on.
2. Insane criminals – This is mental disorder, as according to Lombrosso there are some
criminals have mental depravity or disorder.
3. Criminoids – According to Lombrosso these are physical type criminals and had tendency
to commit crimes in order to meet the need of survival.

Lombroso's theory was that criminals were physically different from normal persons and possessed
few physical characteristics of inferior animal world. The contribution of Lombroso to the
development of the science of criminology may briefly be summed up in the following points:
1. He emphasized over the individual personality of the criminal in the incidence of
crime. This view gained favour in subsequent years and modern criminological measures
are devised to attain the aim of individualization in the treatment of criminals. It has been
rightly commented that the sociologists’ emphasis on the external factors, psychologists on
the internal factors, while Lombroso held that both had a common denominator the
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“individual”.
2. He emphasized on the biological nature of human behavior. While analyzing causes of
crime, Lombroso laid greater emphasis on the biological nature of human behavior and thus
indirectly drew attention of criminologists to the impact of environment on crime causation.
3. He emphasized on his theory of Atavism (born criminal). At a later stage Lombroso
himself was convinced about the futility of his theory of atavism and therefore extended his
theory of determinism to social as well as economic situations of criminals. Thus he was
positive in method and objective in approach which subsequently paved way to formulation
of multiple-causation theory of crime by the propounders of sociological school of
criminology.

CRITICISM ON LOMBROSO’S THEORY

Criticizing Lombroisian views, Prof. Sutherland observed that by shifting attention from crime as
a social phenomenon to crime as an individual phenomenon, Lombroso delayed for fifty years the
work which was in progress at the time of its origin and in addition, made no lasting contribution of
his own.

I) ENRICO FERRI (1856 – 1929).

Another chief exponent of the positive school of criminology was Enrico Ferri. He was an Italian
criminologist, socialist and student of Cesare Lombroso, the founder of the Italian school of
criminology. He challenged Lombrosian view of criminality. Through his scholarly researches,
Ferri believed that mere biological and anthropological reasons were not enough to account for
criminality. Thus he believed that other factors such as emotional reaction, social infirmity
(physical or mental weakness) or geographical conditions also play a vital role in determining
criminal tendencies in them. It is for this reason that he is sometimes called founder of ‘Criminal
Sociology’.

He believed that just as non-criminals could commit crimes if placed in favourable circumstances so
also the criminals could refrain from criminality in healthy surroundings. The major contribution of
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Ferri in the field of criminology is his “law of criminal saturation”. This theory presupposes that
the crime is the synthetic product of three main factors:-
1. Physical or geographical condition.
2. Anthropological – which is relating to the study of humankind
3. Psychological or social.

Thus, Ferri emphasized that criminal behaviour is an outcome of a variety of factors having the
combined effect on the individual. According to him social change, which is inevitable in a
dynamic society; results in disharmony, conflict and cultural variation. As a result of this social
disorganisation takes place and traditional patterns of social control mechanism totally break down.

Ferri emphasized that a criminal should be treated as a product of the conditions, which played his
life. Therefore, the basic purpose of crime prevention program should be to remove conditions
making for crime. Ferri worked out on five classifications of criminals, namely:-
1. Born criminal - Lombroso's theory of anthropological criminology essentially stated that
criminality was inherited and that criminals could be identified by physical attributes such as
hawk-like noses and bloodshot eyes.
2. Occasional criminals - Those whose criminal acts were due to external circumstances and
who were driven to commit crimes because of a special passion. For example - someone is
walking by a car & it happens to be unlocked & the person notices he must steal a car stereo.
3. Passionate (strong belief) criminals - A crime of passion in popular usage, refers to a
violent crime, especially homicide, in which the person commits the act against someone
because of sudden strong impulse such as sudden rage rather than as a premeditated crime.6
4. Insane criminals - The insanity defense, also known as the mental disorder defense, is a
defense by excuse in a criminal case, arguing that the defendant is not responsible for their
actions due to an episodic or persistent psychiatric disease at the time of the criminal act.
5. Habitual criminals – Sometimes called habitual offender or career criminal is a person
convicted of a new crime who was previously convicted of other different crimes.

He suggested an intensive programme of crime prevention and recommended a series of measures

for treatment of offenders. He suggested that punishment can be one of the possible methods of

6 "Crime of passion legal definition of crime of passion". TheFreeDictionary.com.

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reforming the criminal.

II) RAFFAELE GAROFALO (1851 – 1934)

He was an Italian criminologist and jurist and a student of Cesare Lombroso, often regarded as the
father of criminology. He rejected the doctrine of free will (which was the main tenet of the
Classical School) and supported the position that crime can be understood only if it is studied by
scientific methods. He stressed the need for a closer study of the circumstances and living condition
of criminals. He firmly believed that a criminal is a creature of his own environment.

Garofalo defined crime as an act which offends the sentiments (an opinion) of “pity (misfortune)
and probity(honesty)” possessed by an average person and which are injurious to the society. He
emphasized that lack of pity generates crimes against person while lack of probity leads to crimes
against property. As to the classification of criminals, he rejected Ferri’s classification and placed
offenders into four main categories, namely:-
1. Murderers whom he called “endemic” criminals – These are criminals found particularly
in that area or among the people living in the area. E.g:- Criminals are common and frequent
in the slums of the large populated cities.
2. Violent criminals – These are criminals who are affected by environmental influences such
as prejudices of honour, politics and religion;
3. Criminals lacking in sentiment of probity - These criminals who normally commit crimes
against the property due to lack of honesty.
4. Lascivious (offensive sexual desire) or lustful (feelings of sexual desire) criminals –
These are criminals who normally commit crimes against sex and chastity.

As a member of the Italian ‘judiciary’ Garofalo was well acquainted with the then existing criminal
law and procedure in the administration of criminal justice and recommended death, imprisonment
for life or transportation and reparation (compensation) as three modes of punishment for
criminals. Out of his experience as a Judge and having witnessed total failure of correctional
measures in France, Garofalo was not very optimistic (confident) about reformation of offenders.
He therefore, strongly pleaded for elimination of habitual offenders who were incapable of social
adaptation as a measure of social defense.
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III) GABRIEL TARDE (1843 – 1904).

He was a French sociologist, criminologist and social psychologist. He was a critic of positive
school of criminology. He firmly believed that influence of social environment was most
emphatic on the criminal behaviour out that law of insertion and imitation was responsible for
the incidence of crime.

The members of society are prone to imitate the behaviour of their associates. Likewise, the
subordinate or inferior members have a tendency to imitate the ways of their superiors just as the
children imitate their parents and elder members of the family. Consequently, as regards crimes, the
beginners have a tendency to imitate the acts of habitual criminals and thus they lend into
criminality. The effect of imitation is still worse on youngsters who are prone to fall an easy prey to
criminality. Particularly, the impact of movie, cinema and television is so great on teenagers that it
perverts their mind and actions which eventually makes them delinquents.

Thus there is considerable truth in Tarde’s assertion that, “crime, like other social phenomenon
starts as a fashion and becomes a custom”. He classified criminals into urban and rural types and
expressed a view that crimes in urban areas are far more serious in nature than those of rural places.
Despite the fact that the views of Tarde were logical and nearer to truth, they were discarded as over
simplification of facts.

4. CLINICAL SCHOOL OF CRIMINOLOGY

More recently, with the development of human psychology, there is greater emphasis on the study
of emotional aspect of human nature. This branch of knowledge has enabled modern criminologists
to understand the criminal behavior of offenders in its proper perspective. Prof. Gillin, therefore,
rightly remarked that the theory of modern clinical school on the side of criminologists presupposes
offender as a product of his biological inheritance conditioned in his development by experiences of
life to which he has been exposed from infancy up to the time of the commission of crime. Thus,
clinical school takes into account variety of factors.

It further suggests that the criminals who do not respond favorably to correctional methods must be
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punished with imprisonment or transportation for life while those who are merely victims of social
conditions should be subjected to correctional methods such as probation (the release of an
offender from detention, subject to a period of good behavior under supervision), parole (the
release of a prisoner temporarily (for a special purpose) or permanently before the completion of a
sentence on the promise of good behavior), reformatories (an institution to which youthful
offenders are sent as an alternative to prison;), open-air camps etc. Thus, briefly speaking,
individualization has become the cardinal principle of penal policy in modern penology. The main
theme of clinical school is that personality of man is a combination of internal and external
factors; therefore, punishment should depend on personality of the accused. This is known as
correctional trend of reformation through individualization.

5. SOCIOLOGICAL SCHOOL OF CRIMINOLOGY

EDWIN SUTHERLAND (1883 – 1950)

The Father of sociological school of criminology was an American sociologist. He is considered as

one of the most influential criminologists of the 20th century. He was a sociologist of the symbolic
interactionist school of thought and is best known for defining white-collar crime and differential
association.
 White collar crime - "Is a crime committed by a person of respectability and high social
status in the course of his occupation". This crime normally committed by business and
government professionals. E.g:- fraud, bribery, Ponzi schemes (fraudlent investment),
insider trading, labor racketeering (exploitations labours), embezzlement, cybercrime,
copyright infringement, money laundering, identity theft, and forgery.
 Differential Association - This theory focuses on how individuals learn to become
criminals, but does not concern itself with why they become criminals. Through interaction
with others, individuals learn the values, attitudes, techniques, and motives for criminal
behavior.

6. THE MODERN CRIMINOLOGY

In recent years, there seems to have been a transformation of criminological views regarding some
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what skeptical question of criminal accountability. Modern critics attack the traditional
criminological view on the ground that their search for characteristic differences between the class
of criminals and the class of non-criminals rests upon erroneous assumption. This false dichotomy
(division) has been based on a misconceived characterization of criminals as ‘criminal type’.

Michael Phillipson observes that to take crime out of its social context and to try to explain it as a
product of physical characteristics or mental deficiencies is a myth. He summarizes his criticism of
traditional criminology by suggesting that it contains four false assumptions, namely:-
1. That there are universal causes of crime.
2. That the human population can be divided into two groups, criminals and non-criminals.
3. That crime can be located by the study of individual criminals and
4. That the official statics are indices of trends in crime.

The proponents of modern criminology attempt to explain criminality in terms of social conflict.
Engels (1971) pointed out that resentment among the deprived class of society due to their
exploitation and demoralization was one of the reasons for growing criminality. Therefore, there
was need to change the whole of the social and economic structure of society. Thus modern
criminology attributes societal reasons for general criminality and suggests a pragmatic approach to
the resolution of the problem.

The advocates of modern criminology firmly believe that distinction between criminals and non-
criminals is the direct outcome of a mistaken notion of labelling certain individual offenders as
‘criminal types’. Modern criminologists prefer to identify the criminal with a particular social type
who has been a victim of well known inequalities between social classes, private wealth, private
property, social power, and life chances. Thus there is nothing like ‘criminal type’ as suggested by
traditional criminologists. The modern criminologists have succeeded in substituting the traditional
belief regarding crime causation by social deviance as a cause of criminal behavior.

7. MODERN LABELLING THEORY OF CRIME

I) FRANK TANNENBAUM (1893 – 1969)

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He was an Austrian-American historian, sociologist and criminologist. He believed that tagging,

defining, identifying, segregating, and describing criminals by labelling them under different heads
was helpful in treatment of offenders.

II) EDWIN M. LEMERT (1912 – 1996)

He was a sociology professor at the University of California. He preferred to label offender as

persons with primary deviance and secondary deviance. He said that Primary deviance arises
out of biological, psychological, and sociological reasons while Secondary deviance is caused by
social reaction to primary deviation. Being criminal became a matter of status for these deviants and
because of this self-image, there is constant pressure on them to behave as a deviant.

III) JOHN BRAITHWAITE (BORN 30 JULY 1951)

He is a Distinguished Professor at the Australian National University (ANU). He modelled his

theory on social control which he called as shaming.
Shame – This is an internal response individual experiences due to some behaviors. e.g:- Perhaps
you felt badly after cheating on a test in school or treating a friend poorly.
Shaming - This is the process or action of imposing shame. e.g:- When a teacher finds out about a
pupil cheating on a test or friend reacts to being treated poorly, they might engage in some form of
shaming. He divided social control of Shaming into two types:-
1. Reintegrative shaming – This takes place when there is disapproval of shame like
respectful for the individual, forgiveness, and acceptance back into the group.
2. Disintegrative Shaming or stigmatization (condemn) - This takes place when there is
approval of shame like disrespectful, unforgiving and isolates the individual from the group.

The important distinction between Braithwaite's conception and labeling is that he does not assume
all punishments are stigmatizing as a labeling theorist might.

IV) HOWARD BECKER (BORN APRIL 18, 1928)

He is an American sociologist who has made major contributions to the sociology of deviance,
sociology of art, and sociology of music. He developed his theory of labeling known as Social
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reaction theory on the assumption that people are likely to engage in rule-breaking behavior as
essentially different from the members of rule-making or rule-abiding society.

The law-breakers see themselves morally at odds with those who are law-abiding, Becker labels
these law-breakers as “outsiders” and holds that they accept the label attached to them and they
begin to view themselves as different from “mainstream” of society. The deviants first indulge
(allow) in primary deviance intentionally or unintentionally and gradually step into the arena of
secondary deviance.

The deviant who is denied means to carry out daily routine, turns to illegitimate means to make a
living. The affiliation (connection) of the labelled deviant with an organised group of criminals
provides him moral support and he joins the organized crimes thus learning new form of deviance
through differential association.

CAUSATION OF CRIME

1. Heredity and crime

Lombrossian Anthropological and biological researches succeeded in establishing a correlation

(connection) between heredity of a criminal and his criminogenic tendencies. Lombrosso at later
modified his earlier view that only one-third of criminals are by nature and the rest two-third were
insane criminals.

Lombroso was the first criminologist to correlate (connect) crime with the heredity of the criminal.
His influence on contemporary criminologists was so great that they also accepted Lombroso’s
view that heredity was the sole cause of criminal behaviour of the offender. Lombroso asserted that
there are certain criminals who imbibe criminality by birth. He called them atavists and held that
such criminals were incorrigibles.

Studies carried on by Goring, Henly, Scheldon and Glueck on heredity as a factor of crime
causation indicate that it is difficult to establish any possible co-relation between heredity and
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criminal behaviour because it is practically impossible to isolate heredity factor from other
environmental factors.

2. Mental disorders and criminality

The term mental disorder is also referred to mental abnormality. Studies show that there is no
evidence to prove that the crimes committed were induced by mental deprived or disorder. Insanity
has been recognized as defence in most penal laws. The rule recognising the defence of insanity
were first laid down in 1843 in the History of M'Naghten Case.

3. Bio–physical factors and criminality

Biological differences in human personality also account for criminality in human beings. The logic
behind biological explanation of crime is that structure determines function and persons behave
differently owing to the fact that they are somehow structurally different. The physical and
biological abnormalities are generally responsible for criminal behaviour.

Likewise, physiological factors such as age, sex and certain endocrinal imbalances also seem to
have a correlation with the criminality of offenders. Adolescents and juveniles are more prone to
offences like stealing, vandalism (damage to property) and sexual assaults as they readily fall a prey
to the urges of sex and other lustful activities because of their tender age.

The offences of theft, gambling, drunkenness, breach of traffic rules etc., are more common with
young persons who are normally between the age group of 18 to 30 years. This is probably because
of the fact that these offences involve considerable display of courage, boldness and adventure
which these young person’s normally possess.

Persons advanced in age and experience is more prone to offences of white collar crime like fraud,
cheating, embezzlement etc., because the nature of these crimes requires maturity of mind and tact
to handle intricate situations in case of detection.
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3. Intelligence testing and criminality

One of the distinguished French psychologists Alfred Binet (1857-1911) carried out experiments in
psychological laboratory on the persisting problem of retardation (delaying) due to individual
differences and introduced the concept of ‘Mental Age’ and ‘Intelligence Quotient’ (IQ)(person's
reasoning ability) and its influence on criminal behaviour.

There are two distinct types of mental defect, namely,

1. Amentia - literally means lack of mind and describes a person who is born with a low
intellect.
2. Dementia - Refers to someone who once had a normal intelligence but later lost it because
of some diseases, decay or accident.
These definitions provide guideline to decide which persons need treatment or help and law deals
with them accordingly.

Prof. Jerman, an American psychologist worked further on the researches of Alfred Binet and
observed that the idea of ‘mental age’ is basically sound common sense in the children. On an
average, a child of twelve years age can comprehend and tackle more difficult and abstract
problems than an average young person.

The same is equally true for other ages as well. With each year of age, ability continues to grow and
develop constantly. Thus, Intelligence Quotient (IQ) is simply the ratio of Mental Age (MA)
divided by chronological age (CA) multiplied by 100 for each of numerical representation. Thus,
the formula for determining Intelligence Quotient is:—
IQ = MA × 100 / CA

Scientific researchers have established a definite link between intelligence and criminality. They
have discovered that delinquents (offenders) on an average had an IQ eight points lower than non-
delinquents. It has also been proved that IQ is not necessarily related to hereditary factors but the
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environmental factors too affect individual’s I.Q. It has, however, been accepted that age of
sixteen years be assumed to represent the level of full mental development beyond which additional
years do not bring additional ability.

As to the inter-action of sex in incidence of crime, it may be mentioned that there are certain crimes
which are peculiar (strange) to a particular sex. For example, illegal abortions are commonly
resorted to by women. So also, the offence of shoplifting (stealing from shop while pretending to be
customer) is more common with women than men because the former can escape frisking even
though suspected of this offence. Conversely, crimes such as homosexuality, house-breaking,
embezzlement etc., are rarely committed by women.

Gillin suggests that physical abnormalities in criminals drive them to commit crime. Prof. Smith
also supports this contention and holds that there are certain abnormal personalities in whom the
endocrine glands (hormones) are functioning abnormally and this mal-functioning (fail to function)
of the endocrinal glands causes them to commit certain types of crime.

Thus, sexual in capabilities of a person may result into his failure to mature socially and out of
sheer disgust and frustration he may resort to criminality. Contrary to this, excessive sex desire may
cause one to indulge into prostitution and commit crimes such as rape, kidnapping or drug addiction
and similar other offences.

Again, physical over-development of young girls becomes a cause of sexual attraction for males
which leads them to sex delinquencies (offenders). Commenting on this point Prof. Gillin rightly
observes that ‘oversize of both the sexes tends to make the child conspicuous among his play-mates
and set a stage for abnormal conduct’.

Of late, explanation of criminal behaviour in terms of glandular mal-functioning has been a subject
of criticism by endo-criminologists. It has been suggested that many persons indulge in criminality
despite normal functioning of their endocrine gland while there are others who suffer from serious
glandular abnormalities yet they never resort to deviant behaviour.

AMERICAN VIEWS ON PERSONALITY ASPECT OF

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CRIMINALS

1. Hooton's View on Criminality

Earnest Albert Hooton (1887 – 1954) was a U.S. physical anthropologist known for his work on
racial classification and his popular writings such as the book Up From The Ape. He studied crimes
for 12 years, he seemed to vindicate (prove to be right) Lombrosso's anthropological findings
about criminal behaviour and disposed of Goring's study of unscientific. He attempted to show that
crimes and other anti-social behaviors are due to physical and social factors. Hooton's work
however criticised by sociologists, criminologists and anthropologists, he was also criticized for
excluding white collar criminals who are admirable mental specimen in many cases and
biologically superior.

2. Sheldon's View on Criminality

Willium H. Sheldon (1898 – 1977). He tried to establish correlation (connection) between physical
structure of criminal and crime through what he called application of constitutional theory of
human behavioral problems. He developed his idea from the fact that life begins in the embryo
which is made up of three different tissue layers namely:-
1. Inner layer called endoderm
2. Middle layer called mesoderm
3. Outer layer called ectoderm.
He corrected a corresponding physical and mental typology consistent with the known facts from
embryology and the physiology of genetic development.

He summarised the basic characteristic of physique and temperament of these types of physical
structures as follows:-
1. Endomorphic structure - Having a heavy rounded body build often with a marked
tendency to become fat have short tampering limbs, small bones, soft and smooth skin and
comfortable persons.
2. Mesomorphic structure – These are persons with such structure are strongly built with
prominent muscles and bones and connected tissues. They have heavy chest and large wrists
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and hands. These persons are active, dynamic, assertive, and behave aggressive.
3. Ectomorphic structure – These persons are lean, fragile with delicate body, small face,
sharp nose and fine hair. They are sensitive by temperament and avoid crowds.

Sheldon Further asserted that these physical structures were direct related to temperament of the
person who committed crime. According to him endomorphic were moody and accommodative by
nature while Mesomorphics had rigid and somewhat serious temperament (mood). The
ectomorphics on account of their delicate physical built up, are often shaky (weak) in their
decisions and are short tempered.

He attributed criminality to endomorphic and Mesomorphics rather than ectomorphics, but this
analysis of Sheldon has been criticized by Sutherland on the ground that it closely resembles the
heredity considerations of criminals which has lost its significance in modern criminology.

SOCIOLOGICAL THEORY OF CRIMINAL BEHAVIOR

This theory pre-supposes that criminals are a product of society impact of sociological factors
depending on their environment and immediate social conditions. Prof. Sutherland made an
intensive (concentration) study of criminals and offered two major explanation for criminal
behaviour, namely:-
1. The condition surrounding a person at the time of commission of the crime. Which also
the processes operating at the time of occurrence of crime which he called the dynamic
explanation of crime.
2. The condition surrounding the person from the time of birth up to the time of commission
of crime. Which is also the processes operating at the earlier life history of the criminal
which he termed as the Historical or genetic explanation of crime, which means he has
enough experience of that condition and was born in that environment.

The dynamic explanation of crime or the condition surrounding a person at the time of commission
of the crime. This criminal behaviour was favored by psychologists, biologists, and psychiatrists.
For example:- Offence of embezzlement or misappropriating public funds always committed by
people who handle large amount of money. Likewise offences of theft are common committed in
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dwelling houses where the number of family members is bigger.

It is true person's situations or conditions of criminal do play a vital role in the causation of crime.
These situations can hardly be sufficient to motivate a person to commit crime if hes previous life
experiences are otherwise different. Therefore a crime usually generates when a person from his
past experiences considers a particular situation conducive (possible) to it.

As to the historical or genetic explanation of criminal behaviour, Prof. Edwin Sutherland drew the
following conclusions:-
1. Criminal behaviour is learnt and not inherited
2. The process of learning criminal behaviour operates through interaction with other criminal
and associations with them.
3. The greatest influence on the individual is that of his intimate (close) personal group or
criminal group.
4. Criminality in human society can be explained through Prof. Edwin Sutherland's principle
of differential Association, whereby the criminal behaviour results in when the
circumstances favourable to violations of law outweigh those which are unfavorable to law-
breaking.
5. The association with regard to criminal behaviour and anti-criminal may vary in respect of
its duration, priority and intensity (strength).
6. Some criminologist have attempted to explain criminal behaviour in terms of economic
needs, acquisitive (excessively interested in acquiring money) tendencies of men and urge
(try) for gaining social status and seeking pleasure in life. But this argument is untenable
(not able) in as much as it equally applies to lawful behaviours as well. Thus, theft may be
committed by a person for monetary gain but similar results are achieved by earning wages
honestly through hard labour.

THEORY OF DIFFERENTIAL ASSOCIATION

In criminology, differential association is a theory developed by Edwin Sutherland proposing that

through interaction with others, individuals learn the values, attitudes, techniques, and motives for
criminal behavior.
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The differential association theory is the most talked about of the learning theories of deviance. This
theory focuses on how individuals learn to become criminals, but does not concern itself with why
they become criminals.

The principles of Sutherland's Theory of Differential Association key points:-

1. Criminal behavior is learned.
2. Criminal behavior is learned in interaction with other persons in a process of communication.
3. The principal part of the learning of criminal behavior occurs within intimate (close) personal
groups.
4. When criminal behavior is learned, the learning includes (a) techniques of committing the crime,
which are sometimes very complicated, sometimes simple; (b) the specific direction of motives,
drives, rationalizations, and attitudes.
5. The specific direction of motives and drives is learned from definitions of the legal codes as
favorable or unfavorable.
6. A person becomes delinquent because of an excess of definitions favorable to violation of law
over definitions unfavorable to violation of the law.
7. Differential associations may vary in frequency, duration, priority, and intensity.
8. The process of learning criminal behavior by association with criminal and anti-criminal patterns
involves all of the mechanisms that are involved in any other learning.
9. While criminal behavior is an expression of general needs and values, it is not explained by those
needs and values, since non-criminal behavior is an expression of the same needs and values.

WHITE COLLAR CRIME

Definition of White collar crime

White-collar crime refers to financially motivated nonviolent crime committed by business and
government professionals.7 Within criminology, it was first defined by sociologist Edwin
Sutherland in 1939 as "a crime committed by a person of respectability and high social status in the

7 "White Collar Criminal Defense Guide". Law Offices of Randy Collins.

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course of his occupation". Typical white-collar crimes could include fraud, bribery, Ponzi schemes,
insider trading, labor racketeering, embezzlement, cybercrime, copyright infringement, money
laundering, identity theft, and forgery.

Criticism of Sutherland’s Views on White Collar Crime

1. The crime Should have been called as ‘occupational crimes’ instead of being termed as
‘white collar crime’. These usually include false accounting, bribery, embezzlement etc. Tax-
evasion is not an authentic white collar crime, at least in terms of Sutherland’s definition because
although associated with work, it is not committed in the course of an occupation.

2. Violations come within the scope of special procedures of trials like in Courts, Tribunals
procedures and Boards instead of normal criminal justice administrators. Therefore, strictly
speaking, they cannot result into conviction of the offender and hence he cannot be called ‘criminal’
in real sense of the term.

3. It includes even those violations of law which are not committed in course of occupation or
profession. These violations do not necessarily belong to upper strata of society or the so-called
‘prestigeous groups’. For example, tax evasion is not committed only by persons of high status but
it can be committed by persons belonging to middle or even lower strata of society.

4. It does not necessarily require mens rea which is an essential ingredient of a crime. The
doctrine of mens rea based on common law has no application to statutory offences in India and the
requirement of guilty mind may be excluded either expressly or by implication in such cases.8

Difference Between White Collar Crime And traditional crime or

Conventional Crime.

1. White collar criminals are intelligent, stable, and successful and men of high social status as
compared with the ordinary criminals.

8 http://www.shareyouressays.com/121494/criticism-of-sutherlands-views-on-white-collar-crime-essay
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2. White collar crimes which are committed in commercial world are indirect, anonymous,
impersonal and difficult to detect. As against this, ordinary criminals commit crimes which
are direct and involve physical action such as beating, removal of property or use of force,
etc. which can be easily identified and detected.
3. Ordinary crimes which are otherwise called ‘blue collar crimes’ are more common with the
under-privileged class while the white collar crimes are committed by the members of
privileged group who belong to upper strata of society.
4. The most privileged and prestiged persons may commit heinous crime such as assault,
murder, rape or kidnapping for which they can be severely punished, while, on the other
hand, most under-privileged persons may be involved in a white collar crime like tax
evasion, corruption or misrepresentation which may not be looked as serious offence.

REMEDIAL MEASURES

Prof. Paranjape has outlined some of the remedial measures for combating white - colla,:
criminality, which are listed below:
1) Creating public awareness against these crimes through the media of press, and other audio-
visual aids and legal literacy programmes.
2) Special Tribunals should be constituted with power to award sentence of imprisonment up to 5
years for white - collar crimes.
3) Stringent regulatory laws and drastic punishment for white- collar criminals may help in
reducing these crimes.
4) A separate chapter on white - collar crimes should be incorporated in the Penal Code by
amending the Code, so that white - collar criminals who are convicted by the court do not escape
punishment because of their high social status.
5) Convictions should result in heavy fines rather than arrest and detention of white - collar
criminals.
6) There is an urgent need for National Crime Commission which may squarely tackle the
problem of crime and criminality in all its facets.

THANK YOU
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ALLAH IS ALL KNOWER