CRIMINOLOGY

Module Description
The module covers the causes and patterns of criminal behavior as well as the criminal justice
response to crime and the application of theory for treatment and prevention of crime
Module Objectives
Upon completion of this module, the students are expected to be able to:
Understand basic concepts in crime and criminology as a discipline
Examine the various explanations of crime and criminal behavior.
Be familiar with the classifications of crimes
Be knowledgeable of the operations of the criminal justice system particularly in the prosecution
and treatment of offenders

Topics
1. Introduction To Criminology
2. The Concept Of Crime
3. Explanations Of Crime And Criminal Behavior
4. Violent Crimes.
5. Crimes against Property.
6. White Collar/Corporate Crime
7. Public Order Crimes
8. Introduction To Criminal Justice
9. The Law Enforcement
10. The Prosecution
11. The Judiciary
12. Introduction To Corrections

Learning outcomes
By the end of this course, the students will be able to:
Describe criminology as a scientific discipline and its relevance in dealing with crime
Provide an accurate explanation of crime and criminal behaviors
Identify and explain the types of crimes giving examples
Identify the organs of the criminal justice system and its processes in dealing with crime

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TOPIC 1: INTRODUCTION TO CRIMINOLOGY

The word Criminology‘originated in 1890. The general meaning of the term is ―the
scientific study of crime as a social phenomenon, of criminals and of penal institutions‖.
Prof. Kenny (analyzed /defined/ described) that ‗Criminology is a branch of criminal
science which deals with crime causation, analysis and prevention of crime‖. Criminology
as a branch of knowledge is concerned with those particular conducts of human
behaviour which are prohibited by society. It is, therefore, a socio-legal study which
seeks to discover the causes of criminality and suggests the remedies to reduce crimes.
Therefore, it flows that criminology and criminal policy are interdependent and mutually
support one another. Thus criminology seeks to study the phenomenon of criminality in
its entirety.

The problem of crime control essentially involves the need for a study of the forces
operating behind the incidence of crime and a variety of co-related factors influencing the
personality of the offender. This has eventually led to development of modern
criminology during the preceding two centuries. The purpose of study of this branch of
knowledge is to analyze different aspects of crime and device effective measures for
treatment of criminals to bring about their re-socialization and rehabilitation in the
community. Thus criminology as a branch of knowledge has a practical utility in so far as
it aims at bringing about the welfare of the community as a whole.

The principles of criminology serve as effective guidelines for formulation of penal

policy. The modern clinical methods and the reformatory measures such as probation,
parole, indeterminate sentence, open prisons, and other correctional institutions are
essentially an outcome of intensive criminological researches during the twentieth
century. These measures have sufficiently demonstrated the futility of dumping offenders
inside the prisons and infliction of barbaric punishments. Prof. Gillin has rightly observed
that it is not the humanity within the criminal but the criminality within the human being
which needs to be curbed through effective administration of criminal

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justice. More recently, criminologists and penologists seem to have agreed that
―individualization of the offender should be the ultimate object of punishment, while
treatment methods, the means to attain this end‖.

The study of crime and criminal must proceed on a scientific basis by carefully analyzing
various aspects associated therewith and must necessarily suggest measures proposed to
suppress criminality. It must be added that with new crimes emerging in the modern
complexities of life, we seem increasingly concerned about the problem of crime. Today
destructive acts of vandalism, highway, train and bank robberies, looting, bomb blasts,
rape, illegitimate terrorist activities, white-collar crimes, cyber crimes, criminalization of
politics, hijacking, etc., are constantly increasing which have posed a positive danger to
human life, liberty and property. Modern criminologists, therefore, seem to be seriously
concerned with the problem of crime to protect the society from such anti-social activities
of criminals. It is for this reason that the two sister branches of criminal science, namely,
criminology and penology work hand in hand to appreciate the problem of criminality in
its proper perspective.
Defining Criminology
Criminology maybe defined as “the scientific study of the causation, correction, and
prevention of crime”. Criminology (from Latin crīmen, "accusation"; and Greek -λογία,
-logia) is the social science approach to the study of crime as an individual and social
phenomenon.

1.2. Nature and Scope of Criminology

Criminology is an inter-disciplinary field of study, involving scholars and practitioners

representing a wide range of behavioral and social sciences as well as numerous natural
sciences. Sociologists played a major role in defining and developing the field of study
and criminology emerged as an academic discipline housed in sociology programs.
However, with the establishment of schools of criminology and the proliferation of
academic departments and programs concentrating specifically on crime and justice in
the last half of the 20 century, the criminology emerged as a distinct professional field
with a broad, interdisciplinary focus and a shared commitment to generating knowledge
through systematic research.

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One ultimate goal of criminology has been the development of theories expressed with
sufficient precision that they can be tested, using data collected in a manner that allows
verification and replication.

As a subdivision of the larger field of sociology, criminology draws on psychology,

economics, anthropology, psychiatry, biology, statistics, and other disciplines to explain
the causes and prevention of criminal behavior. Subdivisions of criminology include
penology, the study of prisons and prison systems; bio-criminology, the study of the
biological basis of criminal behavior; feminist criminology, the study of women and
crime; and criminalistics, the study of crime detection, which is related to the field of
Forensic Science. Much research related to criminology has focused on the biological
basis of criminal behavior. In fact, bio-criminology, attempts to explore the biological
basis of criminal behavior. Research in this area has focused on chromosomal
abnormalities, hormonal and brain chemical imbalances, diet, neurological conditions,
drugs, and alcohol as variables that contribute to criminal behavior.

Criminology has historically played a reforming role in relation to Criminal Law and the
criminal justice system. As an applied discipline, it has produced findings that have
influenced legislators, judges, prosecutors, lawyers, Probation officers, and prison
officials, prompting them to better understand crime and criminals and to develop better
and more human sentences and treatments for criminal behavior.

Criminologists also study a host of other issues related to crime and the law. These
include studies of the Victims of Crime, focusing upon their relations to the criminal, and
their role as potential causal agents in crime; juvenile delinquency and its correction; and
the media and their relation to crime, including the influence of Pornography.

1.3. Significance of Criminology

The true effect of criminology upon practices in the criminal justice system is still subject
to question. Although a number of commentators have noted that studies in criminology

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have led to significant changes among criminal laws in the various states, other critics
have suggested that studies in criminology have not directly led to a reduction of crime.

Criminology has had more of an effect when states and the federal government consider
new criminal laws and sentencing provisions. Criminologists' theories are also often
debated in the context of the death penalty and crime control acts among legislators and
policymakers. In this light, criminology is perhaps not at the forefront of the development
of the criminal justice system, but it most certainly works in the background in the
determination of criminal justice policies.

 Sociology and Criminology during the twentieth century, the sociological approach to
criminology became the most influential approach. Sociology is the study of social
behavior, systems, and structures. In relation to criminology, it may be divided into
social-structural and social-process approaches.
a. Social-Structural Criminology Social-structural approaches to criminology
examine the way in which social situations and structures influence or
relate to criminal behavior. An early example of this approach, the
ecological school of criminology, was developed in the 1920s and 1930s at
the University of Chicago. It seeks to explain crime's relationship to social
and environmental change. For example, it attempts to describe why certain
areas of a city will have a tendency to attract crime and also have less-
vigorous police enforcement. Researchers have found that urban areas in
transition from residential to business uses are most often targeted by
criminals. Such communities often have disorganized social networks that
foster a weaker sense of social standards.
Another social-structural approach is the conflict school of criminology. It
traces its roots to Marxist theories that saw crime as ultimately a product of
conflict between different classes under the system of capitalism.
Criminology conflict theory suggests that the laws of society emerge out of
conflict rather than out of consensus. It holds that laws are made by the
group that is in power, to control those who are not in power. Conflict
theorists propose, as do other theorists, that those who commit crimes are
not fundamentally different from the rest of the population. They call the
idea that society may be clearly divided into criminals and non-criminals a
dualistic fallacy, or a misguided notion. These theorists maintain, instead,
that the determination of whether someone is a criminal or not often
depends on the way society reacts to those who deviate from accepted
norms. Many conflict theorists and others argue that minorities and poor
people are more quickly labeled as criminals than are members of the
majority and wealthy individuals.

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 Critical criminology, also called radical criminology, shares with conflict
criminology a debt to Marxism. It came into prominence in the early
1970s and attempted to explain contemporary social upheavals. Critical
criminology relies on economic explanations of behavior and argues that
economic and social inequalities cause criminal behavior. It focuses less
on the study of individual criminals, and advances the belief that existing
crime cannot be eliminated within the capitalist system. It also asserts, like
the conflict school, that law has an inherent bias in favor of the upper or
ruling class, and that the state and its legal system exist to advance the
interests of the ruling class. Critical criminologists argue that corporate,
political, and environmental crime are underreported and inadequately
addressed in the current criminal justice system.

Feminist criminology emphasizes the subordinate position of women in

society. According to feminist criminologists, women remain in a position of
inferiority that has not been fully rectified by changes in the law during the
late twentieth century. Feminist criminology also explores the ways in which
women's criminal behavior is related to their objectification as commodities in
the sex industry.

Others using the social-structural approach have studied Gangs, juvenile delinquency,
and the relationship between family structure and criminal behavior

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.

b. Social-Process Criminology Social-process criminology theories attempt to

explain how people become criminals. These theories developed through
recognition of the fact that not all people who are exposed to the same
social-structural conditions become criminals. They focus on criminal
behavior as learned behavior.

Edwin H. Sutherland (1883–1950), a U.S. sociologist and criminologist who

first presented his ideas in the 1920s and 1930s, advanced the theory of
differential association to explain criminal behavior. He emphasized that
criminal behavior is learned in interaction with others, usually in small
groups, and that criminals learn to favor criminal behavior over noncriminal
behavior through association with both forms of behavior in different degrees.
As Sutherland wrote, "When persons become criminal, they do so because of
contacts with criminal patterns and also because of isolation from anti-
criminal patterns." Although his theory has been greatly influential,
Sutherland himself admitted that it did not satisfactorily explain all criminal
behavior. Later theorists have modified his approach in an attempt to correct
its shortcomings.

 Political Criminology Political criminology is similar to the other camps in this

area. It involves study into the forces that determine how, why, and with what
consequences societies chose to address criminals and crime in general. Those who
are involved with political criminology focus on the causes of crime, the nature of
crime, the social and political meanings that attach to crime, and crime-control
policies, including the study of the bases upon which crime and

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 punishment is committed and the choices made by the principals in
criminal justice.

Although the theories of political criminology and conflict criminology overlap to some
extent, political criminologists deny that the terms are interchangeable. The primary
focus points in the new movement of political criminology similarly overlap with other
theories, including the concerns and ramifications of street crime and the distribution of
power in crime-control strategies. This movement has largely been a loose, academic
effort.

1.4. Definitions of Important Terms

Deviance: Deviance is a violation of social norms defining appropriate or proper behaviour

under particular set of circumstances. Deviance often includes criminal acts. Deviance is also
referred to as deviant behavior. It is behavior that is sharply different from a customary,
traditional, or generally accepted standard.

Delinquency: Delinquent means one who fails to do that which is required by law or by duty
when such failure is minor in nature. A delinquent is often used to refer to a juvenile who
commits a minor criminal act—juvenile delinquents.

Juvenile Delinquency: It refers to criminal acts performed by juveniles. Most legal systems
prescribe specific procedures for dealing with juveniles, such as juvenile detention centers.
Juvenile delinquency may refer to either violent or non-violent crime committed by persons
who are (usually) under the age of eighteen and are still considered to be a minor. There is
much debate about whether or not such a child should be held criminally responsible for his
or her own actions.

Crime: Crime is an ‗act‘ or ‗omission‘ which is prohibited by criminal law. Each State sets
out a limited series of acts (crimes) which are prohibited and punishes the commission of
these acts by fine, imprisonment or some other form of punishment. In exceptional cases, an
omission to act can constitute a crime, such as failing to give assistance to a person in peril or
failing to report a case of child abuse.

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1.5. Inter-Relation Between Criminology, Penology and Criminal Law
It must be reiterated that criminology is one of the branches of criminal science which is
concerned with social study of crimes and criminal behavior. It aims at discovering the
causes of criminality and effective measures to combat crimes. It also deals with custody,
treatment, prevention and control of crimes which, for the purposes of this study, is
termed as penology. The criminal policies postulated by these twin sister branches (i.e.,
criminology and penology) are implemented through the agency of criminal law. Thus
for the sake of convenient study the entire subject may be classified under the following
heads:

It is generally said that criminal law is an index of civilization because it is sensitive to

the changes in social structure and reflects mental fiber of a given society. This is why
Prof. Friedman calls it a barometer of moral thinking. According to Wechsler, ―crime is
a formal social condemnation of forbidden conduct buttressed by sanction calculated to
prevent it‖. Criminologists are thus confronted with three major problems, namely:
1. What conducts should be forbidden and an inquiry into the effect of
environment on these conducts ;
2. What condemnation is appropriate in such cases ; and

3. What kinds of sanctions are best to prevent these conducts?

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It is thus evident that criminology, penology and criminal law are inter-related and one
cannot really function without the other. The formulation of criminal policy essentially
depends on crime causation and factors correlated therewith while its implementation is
achieved through the instrumentality of criminal law. It has been rightly observed by Prof.
Sellin that the object of criminology is to study the sequence of law-making, law-breaking
and reaction to law-breaking from the point of view of the efficacy of law as the method of
control. According to Donald Taft, criminology is the scientific analysis and observation of
crime and criminals whereas penology is concerned with the punishment and treatment of
offenders. In his view, the development of criminology has been much later than that of
penology because in early periods the emphasis was on treatment of offenders rather than
scientific investigation into the causation of crime.
1.6. Criminology and Criminal Justice System
The term ‗Criminal Justice System‘ is relatively new. It became popular only in 1967, with
the publication of the report of the President‘s Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in the Free Society. The discovery that
various ways of dealing with law breaking form a system was itself the result of
criminological research. Research into the functioning of the system and its component parts,
as well as into the work of functionaries within the system, has provided many insights over
the last few decades.
Scientists who study the criminal justice system are frequently referred to as ‗criminal
justice specialists.‘ This term suggests a separation between criminology and criminal
justice. In fact, the two fields are closely interwoven. Scholars of both disciplines use the
same scientific research methods. They have received the same rigorous education, and
they pursue the same goals. Both fields rely on the cooperation of many other disciplines,
including sociology, psychology, political science, law, economics, management, and
education. Their origins, however, do differ. Criminology has its roots in European
scholarship, though it has undergone refinements, largely under the influence of
American sociology. Criminal justice is a recent American innovation.

The two fields are also distinguished by a difference in focus. Criminology generally
focuses on scientific studies of crime and criminality, whereas criminal justice focuses on
scientific studies of decision-making processes, operations, and such justice-related
concerns as the efficiency of police, courts, and corrective systems; the just treatment of
offenders; the needs of victims; and the effects of changes in sentencing philosophy.
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TOPIC 2: CONCEPT OF CRIME
Concept:- Crime has been with us in varying degrees since time immemorial. It is a legal
concept and has a sanction of law and is also known as a living concept. The changing concept
of crime is dependent upon the social evolution of the human beings all ones in the world. What
is a crime in one country may not be a crime in another. The microbe of crime seems to flourish
as much as in the culture medium of poverty as of prosperity and also in all parts of our planet.
The concept of crime is essentially concerned with the conduct of individuals in society.
It is as eternal as society and everywhere some human beings have fallen outside the pattern of
permitted crime. It is best to accept the fact that crime cannot be abolished except in non-existent
utopia. Weakness, anger, greed, jealousy, some from the human aberration has come to the
surface everywhere and human sanctions have vainly beaten against the irrational, the misguided
impulsive and ill conditioned, A code of legal conduct is prescribed by the legislature in order to
protect life and property and preservation of human tranquility. Some violations of law are
bowed to occur by the members of society. The crime is inevitable and universal phenomenon.

DEFINITION OF CRIME

“A crime is a violation of a right, considered in reference to the evil tendency of

such violation as regards the community at large.”
Ramangnosi, a distinguished Italian writer stated that crime is the “voluntary act
of a person of sound mind, harmful to other and the same time unjust.”
Similarly Rossi, the founder of modern French school maintains that, “the only
thing which the social power can regard as crime is the violation of such duties towards society
and individuals as contribute to the maintenance of the social order and are capable of absolute
legal enforcement.”
According to a standard French work on criminal law, “every disturbance
inflicted upon the social order is a moral crime, since such disturbance is the violation of a duty
— that of man to society. Hence, the acts with which primitive justice has to deal with are of two
kinds; firstly, those which bear the imprint of an intrinsic immorality, and; secondly, those which

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are intrinsically free from immorality, but assume an immoral character because involving a
breach of duty. In two cases social crime exists.”10

According to Austin crime is “wrong which is pursued at the discretion of the

injured party and his representatives is a civil injury, a wrong which is pursued by the sovereign
or his subordinates is a crime.”12

Professor Kenny modified Austin’s definition and defines crime to be, “Wrongs
whose sanctions is punitive and is in no way remissible by any private person, but is remissible
by the Crown alone, if remissible at all”.13
Professor Winfield points out that the word ‘Sanction’ used in the definition must
mean ‘Punishment’ and the word ‘Remissible’ must refer to ‘Pardon’ by the Crown and observes
that it is on the word ‘Remissible’ that the definition breaks down, for the only way by which the
crown can remit a punishment as by pardon.
.
In recent edition of Kenny, Mr. J.W.Cecil has given the following description of a
crime, “It is broadly accurate description to say that nearly every instance of crime presents all
the three following characteristics: -
(i) That it is harm, brought about by human conduct, which the sovereign power in state
desired to prevent.
(ii) That among the measure of prevention selected is the threat of punishment.
(iii) That legal proceedings of a special kind are employed to decide whether the person
accused did, in fact cause the harm and is according to the law to be held legally
punishable for doing so.”

MENTAL ELEMENT IN CRIME -

“Actus non facit reum nisi mens sit rea” is a well maxim of English Criminal
Law, which means that act itself does not make a man guilty unless his intentions were so, The
maxim is generally supposed to mean that there cannot be such a thing as legal guilt when there
is no moral guilt.
In Criminal Law, there are two essential elements necessary to constitute a crime,
namely
(a) the physical element i.e. actus reus.
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 (b) mental element i.e. mens reus.
The physical element that constitutes a crime is obvious, because it is externally
manifested by the wrongful act committed by the accused. But the wrongful act did by the
accused in all cases in not punished.
What is the true meaning of mens rea has exercised the minds of the jurists for a
very long time. Stephen says that this expression is meaningless. Dr. Stallybrass observes: “It is
not easy to arrive at a true meaning of mens rea at the present day.”
Justice Stephen said; “Though this phrase is in common use, I think it most
unfortunate, and not only likely to mislead, but actually misleading, on the following grounds; it
naturally suggests that apart from all particular definitions of crimes, Such a thing exists as a
mens rea or ‘guilty mind’, which is always expressly or by implication involved in every
definition. This is obviously not the truth, for the mental elements of different crimes differ
widely. Mens rea means, in the case of murder, malice aforethought; in the case of theft an
intention to steal; in case of rape, an intention to have forcible convection with a woman without
her consent. So, it appears confusion to call so many dissimilar states of mind by one name. It
seems contradictory indeed to describe a mere absence of mind as a mens rea or guilty mind. To
non-legal mind, it suggests that by the law of England no act is a crime which is done from
laudable motive, in other words that immorality is essential to crime”.

EXCEPTION TO MENS REA

Professor Kenny observes that in statutory crimes it is usually not necessary to
establish more than that the accused committed the act, which was forbidden by the statute under
which he is charged. Such crimes, better known as crimes of strict liability, are increasing both in
number and importance in modem times. He gives three kinds of cases where the legislature
tends to create offences where no mens rea is to be proved, they are
(a) Where the penalty incurred is not great.
(b) The damage caused to the public by the offence is in comparison with the penalty is very
great
(c) The offence is such that there would usually be peculiar difficulty in obtaining adequate
evidence of mens rea, if that degree of guilt was to be required. The master servant
liability may be added for the acts of his servants e.g. in nuisance and libel cases.

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TOPIC 3: EXPLANATION OF CRIMINAL BEHAVIOUR

Psychological and Biological perspectives

1. Psychology and Criminality

Psychologist study how aggression is learned, which situations promote violent or delinquent
reactions, how crime is related to personality factors, and the association between various mental
disorders and criminality.

1.1. Psychological development

 The psychoanalytic theory of criminality attributes delinquent and criminal behaviour to

unconscious problems, thus, to a Conscience:
 so overbearing that it arouses feelings of guilt, or;
 so weak that it cannot control the individual’s impulses and;
 which needs to meet immediate gratification or desire for instant pleasure.

 Sigmund freud (1856-1939), the founder of psychoanalysis, suggested that criminality

may
result from an overactive conscience;
 In treating patients Freud noticed that those who were suffering from unbearable
guilt committed crimes in order to be apprehended and punished1.

 Other psychoanalytic study suggests that some psychological factors may create in an
individual unconscious feelings of guilt, which the person may sought to relieve by committing a
crime and be punished for it2.

 Another psychoanalytic theory suggests that persistent criminal activities may be as a

result
of a conscience perhaps not too strong but too weak. The conscience, or the superego (which acts
as a moderator between superego and id) may be unable to control the impulses of the id (the
part of the personality that contains powerful urges and drives for gratification and satisfaction),
leading to an unrestrained id and thus to delinquency3.

 Finally another psychoanalytic theory yet suggests criminal behaviour results from an
insatiable explanation for immediate reward and gratification.
 A defect in the character formation of delinquents drives them to satisfy their
desires at once, regardless of the consequences. This urge, which psychoanalysts
attribute to the id, is so strong that relationships with people are important only so
long as they help to satisfy it. Most analysts view delinquents as children unable
to give up their desire for instant pleasure.

 Despite criticisms, three basic principles still appeal to psychologists who study
criminality:
1
See e.g., Sigmund Freud, A general Introduction to Psychoanalysis (New York: Liveright, 1920); and Sigmund
Freud, The Ego and the Id (London: Hogarth, 1927).
2
E.g. death of father or mother, abandonment by parents in early life, etc.
3
See August Aichhorn, Wayward Youth (New York: Viking, 1935).
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  The actions and behaviour of an adult are understood in terms of childhood
development
 Behaviour and unconscious motives are intertwined, and their interaction must be
unravelled if we are to understand criminality.
 Criminality is essentially a representation of psychological conflict.

1.2. Mental disorders and crime

Some early criminologists in England, reports Jones, took the view that crime itself is a
symptom of mental disorder. The assessment is that because most people commit crimes at some
point In their life, then they are psychologically disturbed. However several experts’ narrow
analysis shows clearly the link between mental disorders ands crime from the severest to the
lighter illness namely; schizophrenia, depression, neurosis and mental handicaps.

Schizophrenia and crime

Schizophrenia is the psychosis most associated with violence. It represents a particular type of
personality disorders characterized by splitting the mind between thought and fantasy. At times,
the patient suddenly and without cause explodes in an inappropriate laughter; the individual may
experience strong and inappropriate emotional responses such as sudden amusement at another’s
misfortune.

Schizophrenia is manifested by four types namely;

1) Simple schizophrenia characterized by apathy, dullness
2) The hebephrenic type with tendency to silly behavior.
3) The catatonic type is characterized by fixed and stereotyped movements.
4) The paranoid type is the most severe characterized by high systematized
delusions. The behavior of the paranoid is un predictable. Sometimes he identifies himself with
famous people in the history: one may consider himself as Hitler. Time and again, a paranoid
may perform inappropriate acts to make the difference with other ordinary people, like one I
know who killed his mother and exposed the meat in the local market. He was proud of the act
saying that he was not like other butchers who deal with beef and goat meat.

There may be a relationship between paranoid schizophrenia and violence, where the victim is
the subject of schizophrenic delusion. Taylor (1986) found a high level of schizophrenia among
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life sentence prisoners in London. Green (1981) discovered the three quarters of sample of fifty
eight mentally disordered men who had killed their mothers were suffering from schizophrenia.
Arseneault ( 2000) found that schizophrenics in a sample of New Zealand young adults were
more likely to act violently if they were also alcoholic or marijuana abusers. The most extreme
forms of violence perpetrated by schizophrenics are generally aimed at themselves, through self
mutilation, or at members of their family and their friends. Taylor (1982) and violent acts usually
occur during delusions, particularly those of extreme jealousy or infidelity among married
couples.

Causation of schizophrenia

There has been complexity in tracing the origin of schizophrenia. The majority of scholars
consider the etiology of the disorder to be related strongly with biological heredity,
psychological development disturbances and cultural beliefs. It is believed that through genetic
sharing among family members, one may have hereditary potentials to develop schizophrenic
disorder between puberty to late adolescent stages. This potentiality gets worse when a person
during his psychological development got involved strong feelings of rejection and emotional
deprivation that may leave him/her ill-prepared to cope with the stresses of his later life so
predisposed him to a neurotic breakdown.
Culturally it has been observed that there are some traditional practices that can immediately
bring to a person a traumatic experiences which may trigger a mental disturbance, leading to
schizophrenic disorder. The examples of traditional practices are extreme circumcision of
women’s private parts and cultural marriage enforcement. Such practices may lead to physical
traumas that may lead to loss of love affection and breed violent characters in individual persons.

Depression and crime

Depression is a condition in which a patient has exaggerated moods over which he has no
control. Major depression is associated with feeling of considerable un happiness and guilt,
problems with appetite and sleep, thoughts of suicide. Some times they have difficulty in
speaking and in thinking, they neglect ordinary hygienic habits. The patent example is that of a
depressed patient who mingles his feaces with his food as additional condiments in order to get
appetite.

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Depressed people usually involved iv shoplifting, killing the rest of their family before
committing suicide; but thy are statistically over- represented among arsonists.

Neurosis and crime

Neurosis is a lesser severe form of psychosis. Neurotics are also called, “mentally peculiar”
whose life indicates that they are un happy, dissatisfied and frustrated individuals. The common
features of neurosis are:
- neurasthenia, characterized by excessive fatigue of nerves.
- psychasthenia, weakness of will, doubt, scrupulous
- hysteria, lack of control of emotions and actions characterized some times by paralysis and
epilepsy.
About the relationship between neurosis and crime, should we note that certain extreme forms
of obsessive- compulsive disorder may lead to kleptomania, which Is compulsive and virtually
irresistible desire to steal.

Mental handicaps and crime

In mental act 1983, this category or incomplete development of the mind, which includes mental
impairment and sever mental impairment. They may have been damaged at birth or received a
head injury or they may have suffered from a serous disease during childhood. Depending on the
IQ, the range of mental handicapped goes from idiots (-20 IQ), imbeciles (20-40 IQ), morons
(40-60 IQ) to senile dementia which is due to old age and cretinism, conditions due to alcohol,
syphilis and bacterial infection.
With regard to he offending levels of mentally handicapped individuals, the evidence suggests
that they commit a similar range of offences to other people, with the exception of sexual
offences and theft which appear more frequently.
In conclusion, psychologists have discovered that mental illness or psychopathy has some
relationship with criminality. Although the figures from different studies vary, it is clear that
psychological problems are common in prison population. Of course, criminals are found in both
the normal and abnormal persons. The difference between the two classes is that the first
calculate or deliberately commit crimes which usually is accompanied by some remorse; the
psychopath have nonsense of responsibility, show disregard for truth, are insincere, and feel no
sense of shame, guilt or humiliation. After they have perpetrated their crimes, mentally

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disordered will not hide or flee from place of crime; rather they proclaim loudly their heroism
and wonder even why they are arrested.

Sociopathic disorders
It is personality disorder of chronically antisocial persons who are unable and unwilling to
associate with other people in community life. They some times reach a point that they cannot
sustain a stable and intimate interpersonal relationship such as marriage. The primary concerns
of persons with sociopathic disorder are those that immediately bring gratifications of their own
needs and desires.

The following are contents of the manifest of this disorder:

1) The individuals under this disorder always find it difficult to live according to the
established social and moral norms. They have natural hatred towards the authorities as
such they fall into a habit of repeatedly telling lies and condemn others as guilty for
personal profit and pleasure.
2) When their actions harm others, they show sympathy and instead they construct
elaborative rationalization to make their behavior acceptable and necessary.
3) They are also victims of irritability and aggressiveness over any social mis management
but yet they are lacking ability to develop and execute long term plans and goals for
members in family and societies. As result of poor behavioral control they develop
tendency of violating the boundaries and rights of others which may result in physical
fights and assaults.

Causation of sociopathic personality disorders

The etiology for sociopathic personality disorders is currently associated with abusive, chaotic.
Or emotionally deprived home environments and with low socio-economic status in urban
settings.
In history of psychology and criminality disorder, bowlby in 1944 saw a connection between
antisocial personality disorder and maternal deprivation in the first five years of life. In 1966
Robins and other psychologists traced in their research studies the cause of the disorder in
children, to family environment where the father was victim of alcoholism, a disease that

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impoverish the family, making it chaotic and irresponsible of the children. In 1968 Gluek saw
reasons to believe that the mothers of children who developed this personality disorder usually
did not discipline their children and showed little affection towards them as such the children
also are prone to develop the same personality disorder. Therefore it is concluded that such
family situations may cause the children feel un wanted and neglected, and end up suffering frog
character- logical defects related to the inadequate development of the super ego that would fail
to emotionally control properly the desires of id.

Sadistic personality disorders

This refers to pervasive pattern of behavior which is characterized by cruel, manipulative,

demeaning and possibly aggressive behavior towards others. The behavior usually begins in
child hood and is consistent thereafter. It is evident in social, personal and occupational
situations to varying degrees but in general this personality disorder involves an individual to
take humiliation, control and domination of others.

The following are the manifestation of sadistic personality:

1) The person uses physical cruelty violence for the purpose of establishing dominance In a
relationship. In so doing he looks down on other people in the presence of others.
2) He may harshly treat or discipline someone under his/her control.
3) He is amused by or takes pleasure in the psychological or physical suffering of others,
including animals.
4) He likes lying for the purpose of harming or inflicting pain on others.
5) He gets other people to do what he/she wants by frightening them, thereby restricting the
autonomy of people with whom he has a close relationship, e.g., will not let spouse leave
the house unaccompanied or permit teenage daughter to attend social functions.
6) He is always fascinated by violence, weapons, injury and torture. Sadistic personality
disorder can lead one to become a terrorist or a serial killer.

Causation of sadistic personality disorder

The cause of the disorder is said to be a social environment where majority of members are
egocentric, lacking concern and appreciation of other persons. This disorder is also associated

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with tribalism and cultural determinism in which members of a particular tribe may be convinced
that they are the best as compared to that of other tribes. This kind of egocentrism leads to an
attitude of unnecessary superiority in persons over other people considering them as less human
and not worthy deserving respect of their human dignity. In tribal conflict, the personality
disorder has led to acts of genocide and voluntary murder of innocent persons.

1.3. Moral development

Psychologists using this approach have attempted to explain criminality or delinquncy as a result
of failures in moral development.

Lawrence Kohlberg and moral reasoning theory

 The psychologist Lawrence Kohlberg pioneered moral development theory. He found out
that moral reasoning develops in three phases:

 The preconventional level: A desire to avoid punishment and a belief in the superior
power of authorities are the two central reasons for doing what is right. According to the
theory, until the ages of 9 to 11, children usually reason at this level. They think, in
effect, “If I steal, what are my chances of getting caught and being punished?”

 The conventional level: Individuals believe in and have adopted the values and rules of
society. Moreover, they seek to uphold these rules. They think, in effect, “It is illegal to
steal and therefore I should not steal, under any circumstances.” Adolescents typically
reason at this level.

 The postconventional level: individuals examine customs and social rules according to
their own sense of universal human rights, moral principles, and duties. They think, in
effect, “One must live within the law, but certain universal ethical principles, such as
respect for human rights and for the dignity of human life, supersede the written law
when the two conflict.” This level of moral reasoning is seen in adults after the age of 20.

 According to Kolberg and his colleagues, most delinquents and criminals reason at the
preconventional level.

 However, they acknowledge that low moral development or reason alone does not result
in
criminality. Other factors, such as the presence or the absence of significant social bonds, may
play a part. Kolberg has argued that basic moral principles and social norms are learned through
social interaction and role playing. In essence, children learn how to be moral by reasoning with
others who are at a higher level of moral development.

1.4. Maternal Deprivation and Attachment Theory

According to this approach in attempting to explain criminality or delinquency, its contended

that the strength of emotional bond, or attachment, will determine, or at least materially affect, a
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child’s ability to from attachments in future. In order to form successful attachment, a child
needs a warm, loving, and interactive caretaker.

John Bowly – psychologist

 has studied both the need for warmth and affection from birth onward and the
consequences
of not having it.
 Contends that a child needs to experience a warm, intimate, and continuous relationship
with either a mother or a mother substitute in order to be securely attached. When a child is
separated from the mother or is rejected by her, anxious attachment results, and the capacity to
be affectionate and to develop intimate relationships with others is reduced.
 Habitual criminals, it is claimed, typically have an inability to form bonds of affection.

Evaluation: Psychology and Criminality

 So far we have considered psychological theories that attribute the causes of delinquency
or
criminality to unconscious problems and failures in moral development. Not all psychologists
agree with these explanations of criminal behaviour. Some argue that human behaviour develops
through learning. They say that we learn by observing others and by watching the responses to
other people’s behaviour (on television or in the movies, for instance) and to our own. Social
learning theories reject the notion that internal functioning alone makes us prone to act
aggressively or violently.

2. Learning Violence and aggression through Modelling and Direct experience

2.1. Observational learning

Albert Bandura, a leading proponent of social learning theory, argues that individuals learn
violence and aggression through behavioural modelling: children learn how to behave by
fashioning their behaviour after that of others. Behaviour is socially transmitted through
examples, which come primarily from the family, the subculture, and the mass media.

2.2. Direct experience

 What we learn by observation is determined by the behaviour of others.

 What we learn from direct experience is determined by what we ourselves do and what
happens to us.
 According to social learning theorists, after engaging in a given behaviour, most of us
examine the responses to our actions and modify our behaviour as necessary to obtain favourable
responses. If we are praised or rewarded for a behaviour, we are likely to repeat it. If we are
subjected to verbal or physical punishment, we are likely to refrain from such behaviour.

3. Biological Determinants and Criminality

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The biological determinant theory in explaining the causality of criminal behavior can be sub
divided or classified into the following, depending on what the stand point of the researcher in
finding out why people break laws.

Physiognomic determinants

Physiognomy could be defined as the art of judging the conduct and personality of a human
being from the appearance of the face. The art had been known since the 17 th centaury but in the
19th centaury it was given a scientific foundation. In this period the reconceptualization of human
conduct and character had been taken up also and developed in the field of medicine. The
practioners claimed that they would be able to tell or judge the character disposition of a person
from the features of the face and the external forms of the body. The Physiognomists believed
that external physical appearance demonstrated that criminals were biologically inferior to the
law abiding. Johan Lavater, one of the early developers of the art, listed the people prone to
criminal behavior and that need to be looked upon with suspicion. These included bearded
women, un- bearded men, people with shifty eyes, weak chins and arrogant noses.
The positivist criminologists to it and used it in their study of the causes of criminality in
individuals. Since the face is essentially shaped by the inner skeleton, the focus of their studies
was on the shape and contours of the human skull which they claimed was an external index of
character. Already in 1980s there was great interest as well as controversy on this view
generated by the biological theory of the Italian criminologist Cesaro Lombroso. Lombroso’s
investigation of the skull and facial features led him to the hypothesis that serious or persistent
criminality was associated with atavism, or the reversion to a primitive stage of human
development.

Phrenologic determinants

The Physiognomic determinants were closely associated with Phrenologic determinants. The
latter was a belief by some positivist biocriminologists that the different mental faculties have
their respective seats in particular tracts of the brain surface, and that the relative predominance
of the faculties can be diagnosticated from the conformation of the parts underlying those traits.
Franz Gall in 1791 expounded the theory of phrenology. Coming from an atomistic background

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Gall believed that each section of the brain was responsible for different aspect of human
functioning. He believed that each of the three brain’s regions controlled a major aspect of
human behavior, namely there was one for activity, one for moral sentiments and another for the
intellectual faculties. In order to determine whether an individual suffered from brain
dysfunction it was not necessary to do an internal examination of the brain tissue. Phrenologists
believed that external examinations were accurate predictors of internal brain development. In
particular it was thought that enlarged or un usual undersized brain sections produced bumps or
depressions in the skull respectively. The belief made it possible for many doctors to conduct
phrenologic examinations and describe the origins of a person’s problematic behavior.
Phrenology became quite popular in America and was used for classification purposes in USA
prisons in the 19th centaury. For example, at Eastern Penitentiary in Pennsylvania phrenology
was used until 1904. in an 1856 phrenological examination of the prison’s population, over 70%
of the inmates were diagnosed as suffering from an overabundance of ‘acquisitiveness’. Another
17% showed unusual development of the brain area responsible for ‘ destructiveness’. This
indicated that more of the criminals committed the crimes out of wanting to acquire than
destroy.

Morphological determinants

Morphology is that branch of biology that scientifically studies the structures and forms of
animals and plants. The biocriminologists, who were interested in this area, using their methods
of research, claimed that there was association between forms and structures of human beings
and their conduct.

Dr. William Sheldon’s “Somatotypes”

 was an American psychologist who lived between (November 19, 1898 – September 17,
1977)
 He improved Lombroso’s study with his “Somatotypes theory”
 To understand the connection between body types and personality has always been the
curiosity of both scientists and psychologist alike.
 Through the use of many photographs and measurements of nude figures (Sheldon
assigned people into three categories of somatotypes in the 1940s: Endomorphic,
Mesomorphic, and Ectomorphic.

 Basically what this theory means is that different body types are characteristics of certain
personalities. And in that Sheldon concluded that these classifications or fundamental
elements i.e. somatotypes are common within our society.
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 Endomorph

The Endomorph is physically quite 'round', and is typified as the 'barrel of fun' person. They
tend to have:

 Wide hips and narrow shoulders, which makes them rather pear-shaped.
 Quite a lot of fat spread across the body, including upper arms and thighs.
 They have quite slim ankles and wrists, which only serves to accentuate the fatter other
parts.

Psychologically, the endomorph is:

 Sociable
 Fun-loving
 Love of food
 Tolerant
 Even-tempered
 Good humored
 Relaxed
 With a love of comfort
 Has a need for affection
 And Non deviant

Ectomorph
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 The Ectomorph is a form of opposite of the Endomorph. Physically, they tend to have:

 Narrow shoulders and hips

 A thin and narrow face, with a high forehead
 A thin and narrow chest and abdomen
 Thin legs and arms
 Very little body fat

Even though they may eat as much as the endomorph, they never seem to put on weight
(much to the endomorph's chagrin). Psychologically they are:

 Self-conscious
 Private
 Introverted
 Inhibited
 Socially anxious
 Artistic
 Intense
 Emotionally restrained
 Thoughtful

Mesomorph

The mesomorph is somewhere between the round endomorph and the thin ectomorph.
Physically, they have the more 'desirable' body, and have:

 Large head, broad shoulders and narrow waist (wedge-shaped).

 Muscular body, with strong forearms and and thighs
 Very little body fat

They are generally considered as 'well-proportioned'. Psychologically, they are:

 Adventurous
 Courageous
 Indifferent to what others think or want
 Assertive/bold
 Zest for physical activity
 Competitive
 With a desire for power/dominance
 Love of risk/chance
 Indifferent to pain
 Aggressive
 Ruthless in relationship
 And pose the greatest threat of becoming delinquents and later on criminals.
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In middle 20th centaury William Sheldon won considerable support with his claims that criminal
behavior was more common among human beings with muscular and athletic forms, the so
called mesomorphs in biology. In his studies he argued that there were three basic body builds
and these were the endomorphs (fat, soft and rounded individuals), ectomorphs (tall and thin
persons) and the mesomorphs (muscular and hard). The studies were in comparison among these
types of body builds. In his research for the causality of criminal behavior in individuals Sheldon
and many others, hence, claimed that criminality was more common in human beings with
mesomorphic structures or forms than those with ectomorphic and endomorphic structures. This
was arrived at because William Sheldon, employing studies of physique, argued that there was
certain personality traits linked with the three basic body types. It was claimed through the
studies that the endomorphs are usually people who love comfort, food, affection, social, even-
tempered, easy to get long, and none deviant. Mesomorphs were thought to be people who
usually seek physical activity, risk taking, adventure, more likely to be indifferent to pain,
aggressive, callous, and ruthless in relationship with others. the ectomorphs were linked to being
usually inhibited, reserved, self conscious and afraid of people. Thus, from their studies, it was
claimed that the mesomorphs pose the greatest threat of becoming delinquents and later on
criminals.

Chromosomal determinants

The chromosomal determinants in criminality are sometimes called genetic determinants. The
proponents of this element in biological determinants in criminality claim that the criminal
behavior is a consequence or result of some traits which are carried in the genes. The genes are
the units in the cells of a living thing that control its physical characteristics. Human beings wear
those genes when they are conceived and that is why the idea of ‘born criminals’ came about in
the quest for criminal causality. The genes are carried in the chromosomes which are very small
structures like threads in the nuclei (central parts) of human, animal and plant cells. A pair of
these chromosomes is responsible for the gender of human organism. A female egg carries only
an X type of sex chromosomes while the sperm may carry either an X or Y type. If two X
chromosomes unite, then a female child is conceived (XX). If the male Y chromosome is united
with the X female chromosome, a male child is conceived (XY). Hence our being male or female

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is determined by heredity. It may happen sometimes that some males may have an extra Y
chromosome. In 1960s there arose significant debate among criminologists over the possible
association between criminal tendencies and such chromosomal abnormalities. It had begun to be
propagated by criminologists, with a biological deterministic orientation, that males in particular
with XYY- chromosome (characterized by the presence of an extra Y chromosome) may be
prone to criminal behavior than the general population.
In a nutshell then the biological determinant theory in criminality is the belief that people
commit crimes because they have the genes in them capable of triggering such behavior or
conduct and are actually driven by it. It is believed that there are some inherent criminal traits
carried in these genes. Adherents of such beliefs and claims disregard or deny the effect of the
environmental variables on the expression of the given gene. They often assume that a single
mutation ( of a particular gene) can have far reaching effects on the conduct of the criminal. In
fact biological determinism in behavior and criminality is in essence the exact opposite of the
standard social science model which, to the other extreme, assumes or claims that no part of
human nature is inherited and that all human attributes are fixed by cultural forces.

Biochemical determinants
Criminologists with the biological standpoint made use of the advances that had been made in
the area of science especially in regard to the process that propel the human body. Biochemical
research in the last quarter of the 20th centaury suggested to the criminologists that chemical in
balances in the brain and hormonal in- balances throughout the human body may be associated
with increased criminality. Biochemical criminologists believe that brain is the organ of the mind
and the locus of personality. In other words, the brain is the organ behavior so much so that no
theory of behavior can ignore neurology and neurochemistry. These chemical and hormonal in-
balances in the brain and the whole organism could be natural or induced through use of drugs,
ingestion of toxic substances, diet, or alcoholic intoxication. Such biological factors have been
identified with increased violence and aggressiveness.
Through such stand points the positivists wrote on what they thought they had discovered,
namely: the born criminal, constitutional and hereditary roots of criminal conduct and the
criminal types or classes. They held that the criminal behavior of such people was determined
rather than chosen. Therefore treatment rather than punishment was appropriate for such criminal
type.

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Criticisms of biocriminology

 Why is the subject delicate, sensitive and offensive to many people?

 One reason is that biocriminologists deny the existence of individual free will. The idea
of
predisposition to commit crimes fosters a sense of hopelessness.

 Critics have other concerns as well. Some see a racist undertone to biocriminological
research. If there is a genetic predisposition to commit crime and if minorities account for the
disproportionate share of criminal activity, are minorities then predisposed to commit crime?

 These issues raise a further question that is at the core of all social and behavioural
science:
Is human behaviour the product of nature (genetics) or nurture (environment)?

 The consensus among social and behavioural scientists today is that the interaction of
nature
and nurture is so pervasive that the two cannot be viewed in isolation.

 Supporters of biocriminology also maintain that recognizing a predisposition to crime is

not
inconsistent with considering environmental factors. In fact, some believe that predispositions
are triggered by environmental factors. Even if we agree that some people are predisposed to
commit crime, we know that the crime rate would be higher in areas that provide more triggers.
In sum, while some people may be predisposed to certain kinds of behaviour, most scientists
agree that both psychological and environmental factors shape the final forms of those
behaviours.

Strain and Cultural Deviance Theories

Contemporary criminologists tend to divide the sociological explanation of crime into different
categories: Strain, Cultural deviance, Subcultural and Social Control Theory. However, in this
chapter we will study the Strain and cultural deviance Theories and separate chapters will be
dedicated to the Subcultural and Social control theories. The first two theories laid a foundation
for the Subcultural theory and the Social control theory.

Introduction

The Strain and cultural deviance perspectives focus on the social forces that cause people to
engage in deviant behaviour. They assume that there is a relationship between social class and
criminal behaviour, but they differ as to the nature of the relationship.
 Strain theorists argue that all people in society share one set of cultural values and that
since
lower-class persons often do not have legitimate means to attain society’s goals, they may turn to
illegitimate means instead.
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  Cultural deviance theorists maintain that the lower class has a distinctive set of values
and
that these values often conflict with those of the middle class.

1. Strain Theory

Sociologist Robert Merton born in 1910 and Strain theory

 Modern Criminologist gave the name Strain theory to Merton’s explanation of criminal
behaviour.
 Merton also related the crime problem to anomie. But his conception differs somewhat
from Durkheim’s. While Durkheim related criminality to sudden social change, Merton
argued that criminality is to be blamed on social structure that holds out the same goals to
all its members without giving them equal means to achieve them4.

1.1. Disparity between Gaols and Means

 Merton argued that in a class-oriented society, opportunities to get to the top are not
equally
distributed. Very few members of the lower class ever get there. His anomie theory emphasizes
the importance of two elements in any society:

 Cultural aspirations, or goals that people believe are worth striving for; and
 Institutionalized means or accepted ways to attain the desired ends.

 If society is to be stable, these two elements must be reasonably well integrated; in other
words, there should be means for individuals to reach the goals that are important to them.
 Disparity between goals and means fosters frustration, which leads to strain.

 From this perspective, the social structure is the root of the crime (hence the approach
Merton takes is sometimes called a structural explanation).

 Though Merton argued that lack of legitimate means for everyone to reach material goals
does create problems, he also made it clear that the high rate of deviant behaviour cannot
be explained solely on the basis of lack of means. Following this view he outlined ways
in which people adapt to society’s goals and means.

1.2. Modes of adaptation

 To be sure, not everyone who is denied access to a society’s goals becomes deviant.
Merton
outlined five ways in which people adapt to society’s goals and means. Individual’s responses
(modes of adaptation) depend on their attitudes toward the cultural goals and the institutional
4
Cf. Robert K. Merton, “Social Structure and Anomie,” American Sociological Review, 3 (1938): 672-682.
30 | P a g e
means of attaining those goals. The options are: conformity, innovation, ritualism, retreatism,
and rebellion.

 Conformity
Conformity is the most common mode of adjustment. Individuals accept both the
culturally defined goals and the prescribed means for achieving those goals. They
work, save, go to school, and follow the legitimate paths.

 Innovation
Individuals who choose the adaptation of innovation accept society’s goals, but since
they have few legitimate means of achieving them, they design their own means for
getting ahead. The means may be burglary, robbery embezzlement, or a host of other
crimes. Such illegitimate forms of innovation are certainly not restricted to the lower
classes.

 Ritualism
People who adapt by ritualism abandon the goals they once believed to be within
reach and resign themselves to their present lifestyles. They play by the rules; hold
middle-management jobs, or follow some other safe routine.

 Retreatism
Retreatism is the adaptation of people who give up both the goals (cant make it) and
the means (why try?) and retreat into the world of drug addiction or alcoholism. They
have internalized the value system and therefore are under pressure not to innovate.
The retreatist mode allows for an escape into a nonproductive, nonstriving lifestyle.

 Rebellion
Rebellion occurs when both the cultural goals and legitimate means are rejected.
Many individuals substitute their own goals (get rid of the establishment) and their
own means (protest). They have an alternate scheme for a new social structure,
however ill-defined.

1.3. Evaluation: Strain Theory

 The strain perspective developed by Merton and his followers has influenced both
research
and theoretical developments in criminology. Yet, as popular as this theory remains, it has been
questioned on a variety of grounds.
 By concentrating on crime at the lower levels of the socio-economic hierarchy,
for example, it neglects crime committed by middle and upper-class people.
Radical criminologists, in fact, claim that strain theory “stands accused of
predicting too little bourgeois criminality and too much proletarian criminality.”
 Other critics believe there is some question as to whether a society as
heterogeneous as they are today really does have goals on which everyone agrees.
It’s the case, then we cannot account for deviant behaviour on the basis of
Merton’s cultural goals.

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  If we have an agreed-upon set of goals, is material gain the dominant one? If
crime is a means to an end, why is there so much useless, destructive behaviour,
especially among teenagers?

 Non matter how it is structured, each society defines goals for its members. While some
people in other cultures have limited means for achieving these goals, not all these societies have
high crime rates.
 Despite the many critical assessments, strain theory, represented primarily by Merton’s
formulation of anomie, has had a major impact on contemporary criminology. Its propositions
seem to be borne out by everyday observations.

 Strain theory has helped us develop a crime-prevention strategy. If, as the theory tells us,
frustration builds up in people who have few means for reaching their goals, it makes sense to
design programs that give lower-class people a bigger stake in society.

2. Cultural Deviance Theories

 Cultural deviance theories attribute crime to a set of values peculiar to the lower class.
Conformity with the lower-class value system, which determines behaviour in slum areas, causes
conflict with society’s laws.
 Both strain and cultural deviance theories locate the causes of crime in the
disadvantageous
position of those at the lowest stratum in a class-based society.
 Scholars who view crime as resulting from cultural values that permit, or even demand,
behaviour in violation of the law are called cultural deviance theorists.

 The three major Cultural deviance theories are: Social disorganization, Differential
association, and Culture conflict. All the three theories contend that criminals and delinquents in
fact do conform - but to norms that deviate from those of the dominant middle class.

2.1. Social Disorganization theory

 Social disorganization theory focuses on the development of high-crime areas in which

there
is a disintegration of conventional values caused by rapid industrialization, increased
immigration, and urbanization.
- In brief social disorganization theory focuses on the breakdown of social institutions as a
precondition for the establishment of criminal norms.

 In their study of social disorganization Park and Burgess from Chicago School
examined
area characteristics instead of criminals for explanations of high crime rates. They developed the
idea of natural urban areas, consisting of concentric zones extending out from the downtown
central business district to the commuter zone at the fringes of the city. Each zone had its own
structure and organization, its own cultural characteristics and unique inhabitants. Subsequent
study from the same school outlined that:

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  Crime rates were differentially distributed throughout the city, and areas of high crime
rates had high rates of other community problems, such as truancy, mental disorders, and
infant mortality.
 Most delinquency occurred in the areas nearest the central business district and decreased
with distance from the centre.
 Some areas consistently suffered high delinquency rates, regardless of the ethnic makeup
of the population.
 High-delinquency areas were characterized by a high percentage of immigrants,
nonwhites, and low-income families and low percentage of homeownership.
 In high-delinquency areas there was a general acceptance of nonconventional norms, but
these norms competed with conventional ones held by some of the inhabitants.
 The study clearly indicated to them that delinquency was socially learned behaviour,
transmitted from one generation to the next in disorganized urban areas. This
phenomenon is called cultural transmission.

Evaluation: Social Disorganization Theory

 Though their influence has been great, the scholars who initiated this approach to crime
research have not been immune to challenges.
 Their work has been criticised for its dependence on official data, which may
primarily reflect zealous police surveillance in disadvantaged neighbourhoods, and
for its focus on how crime patterns are transmitted, not on how they start in the first
place.
 The approach has also been faulted for failing to explain why delinquents stop
committing crime as they grow older, why most people in socially disorganized areas
do not commit criminal acts, and why some bad neighbourhoods seem to be insulated
from crime.
 Finally, critics claim that this approach does not come to grips with middle-class
delinquency.

 Clearly, however, modern criminology owes a debt to social disorganization theorists,

who
began to look at the characteristics of people and places and to relate both to crime. They have
stimulated research not only in crime causation but also in crime prevention.
 These theorists were the first social scientists to suggest that most crime is committed by
normal people responding in expected ways to their immediate surroundings, rather than by
abnormal individuals acting out individual pathologies. If social disorganization is at the root of
the problem, crime control must involve social organization. The community, not individuals,
needs treatment. Helping the community, then should lower its crime rate.

2.2. Differential Association Theory

 Differential Association Theory concentrates on the processes by which criminal

behaviour is taught and learned.

Edwin Sutherland

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 Sutherland introduced the theory of differential association in his book Principles of
Criminology in 1939.

 According to this theory:

 Criminal behaviour is learned.
 Its learned in interaction with other persons in a process of communication.
 A person does not become a criminal simply by living in a criminal environment.
Crime is learned by participation with others in verbal and nonverbal
communications.
 The principal part of the learning of criminal behaviour occurs within intimate
personal groups. Families and friends have the most influence on the learning of
deviant behaviour.
 The key principle in Sutherlands theory of Differential association is that: A person
becomes delinquent because of an excess of definitions favourable to violation of law
over definitions unfavourable to violation of law. In other words, learning criminal
behaviour is not simply a matter of associating with bad companions. Rather, learning
criminal behaviour depends on how many definitions we learn that are favourable to
law violation as opposed to those that are unfavourable to law violation.

Evaluation: Differential Association Theory

 Many researchers have attempted to validate Sutherland’s differential association theory.

Others have criticized it.
 Several scholars have asked whether the principles of differential association really
explain
all types of crime. They might explain theft, but what about homicide resulting from a jealousy
rage? Why do some people who learn criminal behaviour patterns not engage in criminal acts?
Further more, while the principles may explain how criminal behaviour is transmitted, they do
not account for the origin of criminal techniques and definitions. In other words, the theory does
not tell us how the first criminal became a criminal.
 Despite these criticism, the theory has had a profound influence on criminology.
Generations of scholars have tested it empirically, modified it to incorporate psychologically
based learning theory and used it as a foundation for their own theorizing. The theory has also
had many policy implications.
 If, according to differential association theory, a person can become criminal by learning
definitions favourable to violating laws, it follows that programs which expose young people to
definitions favourable to conventional behaviour should reduce criminality.

2.3. Culture Conflict Theory

 Culture Conflict Theory focuses on the specifics of how the conduct norms of some
groups
may clash with those of the dominant culture.

Thorsten Sellin

 According to Thorsten Sellin – conduct norms – norms that regulate our daily lives – are

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rules that reflect the attitudes of the groups to which each of us belongs. Their purpose is to
define what is considered appropriate or normal behaviour and what is inappropriate or abnormal
behaviour.
 Sellin argues that different groups have different conduct norms and that the conduct
norms
of one group may conflict with those of another. Individuals may commit crimes by conforming
to the norms of their own group if that group’s norms conflict with those of the dominant society.
 According to this rationale, the main difference between a criminal and a noncriminal is
that
each is responding to different sets of conduct norms.
 Sellin distinguishes between primary and secondary conflicts.
 Primary conflict occurs when norms of two cultures clash. A clash may occur at the
border between neighbouring cultural areas; when the law of one cultural group is
extended to cover the territory of another; or when members of one group migrate to
another culture.
 Secondary conflict arises when a single culture evolves into a variety of cultures, each
having its own set of conduct norms. This type of conflict occurs when the
homogeneous societies of simpler cultures become complex societies.
 Life situations are frequently controlled by conflicting norms, so no matter how people
act,
they may be violating some rule, often without being aware that they are doing so.

Criminal focus

 When a group has obviously different conduct norms from those of the society in which
its
members live, should exceptions be made in imposing criminal law?
 Could the conflict between conduct norms of deviant cultures and the rules of middle-
class
society be eased? Does this possibility hold any promise for crime-prevention strategies?
Explain.

The Formation of Subcultures

 Strain theorists explain criminal behaviour as a result of the frustrations suffered by lower
class individuals deprived of legitimate means to reach their goals.
Cultural deviance theorists assume that individuals become criminal by learning the criminal
values of the groups to which they belong. In conforming to their own group standards, these
people break the laws of the dominant culture.

 These two perspectives are the foundation for subcultural theory, which emerged in the
mid
1950s and held criminologists’ attention for over a decade.

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  A subculture is a subdivision within the dominant culture that has its own norms, beliefs,
and values. Subcultures typically emerge when people in similar circumstances find themselves
isolated from the mainstream and band together for mutual support. Subcultures may form
among members of racial and ethnic minorities, among prisoners, among occupational groups,
among ghetto dwellers. Subcultures exist within a larger society, not apart from it. They
therefore share some of its values. Nevertheless, the lifestyles of their members are significantly
different from those of individuals in the dominant culture.

1. Subcultural Theories of Delinquency and Crime

According to subcultural theorists, delinquent subcultures, like all subcultures, emerge in

response to special problems that members of the dominant culture do not face.

1.1. The Middle-class Measuring Rod

Albert Cohen

 Albert Cohen was a student of Robert Merton and Edwin Sutherland, both of whom had
made convincing arguments about the causes of delinquency.
 Sutherland persuaded Cohen that differential association and the cultural
transmission of criminal norms led to criminal behaviour.
 From Merton he learned about structurally induced strain.

 Cohen combined and expanded these perspectives to explain how the delinquent
subculture
arises, where it is found within the social structure, and why it has the particular characteristics
that it does.
 According to Cohen, the relative position of a youngster’s family in the social structure
determines the problems the child will have to face throughout life.

- Lower-class families who have never known a middle-class lifestyle , for example,
cannot socialize their children in a way that prepares them to enter the middle class. The
children grow up with poor communication skills, lack of commitment to education, and
an inability to delay gratification.
- By such measures, lower-class children fall far short of the standards they must meet if
they are to compete successfully with middle-class children.
- Cohen argues that they experience status frustration and strain, to which they respond by
delinquent behaviour.

1.2. Evaluation of Cohen’s Theory

 Researchers have praised and criticised Cohen’s work.

 Cohen’s theory answers and touches a number of questions left unresolved by the strain
and
cultural deviance theories.

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  It explains the origin of delinquent behaviour and why some youths raised in the same
neighbourhoods and attending the same schools do not become involved in delinquent
subcultures.
 His concept of status deprivation and the middle-class measuring rod have been useful to
researchers. Yet his theory does not explain why most delinquents eventually become
law-abiding even though their position in the class structure remains relatively fixed.
 Some criminologists also question whether youths are driven by some serious motivation
force or whether they are simply out on the streets looking for fun. Moreover, if
delinquent subcultures result from the practice of measuring lower-class youths by a
middle-class measuring rod, how do we account for the growing number of middle-class
gangs?

2. Delinquency and opportunity

2.1. Differential opportunity theory

 Like Cohen’s theory, the theory of differential opportunity developed by Richard

Cloward
and Lloyd Ohlin combines strain, differential association, and social disorganization concepts.

 Both theories begin with the assumption that conventional means to conventional success
are not equally distributed among the socioeconomic classes, that lack of means causes
frustration for lower-class youths, and that criminal behaviour is learned and culturally
transmitted.
 Both theories also agree that the common solution to shared problems leads to the
formation of delinquent subcultures.
 They disagree, however, on the content of these subcultures. As we have noted, norms in
Cohen’s delinquent subcultures are right precisely because they are wrong in the dominant
culture. Delinquent acts are wrong and nonutilitarian.

 Cloward and Ohlin disagree; they suggest that lower-class delinquents remain goal-
oriented.
The kind of delinquent behaviour they engage in depends on the illegitimate opportunities
available to them.
 According to Cloward and Ohlin’s differential opportunity theory, delinquent
subcultures flourish in lower-class areas and take the particular forms they do
because opportunities for illegitimate success are no more equitably distributed
than those for conventional success. Just as means-opportunities-are unequally
distributed in the conventional world, opportunities to reach one’s goals are
unequally distributed in the criminal world.
 Cloward and Ohlin maintain that the types of subcultures and of the juvenile
gangs that flourish within them depend on the types of neighbourhoods in which
they develop.
 However, not all lower-class youngsters who are unable to reach society’s goals
become members of criminal gangs. Many choose to accept their situation and to
live within its constraints.

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2.2. Evaluation: Differential Opportunity Theory

 One of the main criticisms is that their theory is class-oriented. If, as Cloward and Ohlin
claim, delinquency is a response to blocked opportunities, how can we explain middle-
class delinquency?
 Another question arises from contradictory statements. How can delinquent groups be
nonutilitarian, negativistic, and malicious, and also goal oriented and utilitarian?

 Despite its shortcomings, however, differential opportunity theory has identified some of
the
reasons why lower-class youngsters may become alienated.
 Cloward and Ohlin’s work has also challenged researchers to study the nature of the
subcultures in societies today.

3. The Subculture of Violence

 According to this theory, the assumption is that each subculture has its own rules or
conduct
norms that dictate how individuals should act under varying circumstances.
 Some Theorists argue that in some subcultures behaviour norms are dictated by a value
system that demands the use of force or violence. Subcultures that adhere to conduct norms
conducive to violence are referred to as Subculture of violence.
 In this subculture, violence is not used in all situations, but it is frequently an expected
response. Fists rather than words settle disputes. Violence is not considered antisocial. Members
of this subculture feel no guilt about their aggression.
 The value system is transmitted from generation to generation, long after the original
reason
for the violence has disappeared. The pattern is very hard to eradicate.

 These observations led the Theorists to pose this powerful question to criminal justice
system: How does one go about changing a subcultural norm?

3.1. Evaluation: The Subculture of violence Theory

 Though empirical evidence remains inconclusive, the subculture of violence theory is

supported by the distribution of violent crime in societies.

 Not all persons in this subcultures follow the norm of violence however, it appears that a

dismaying number of them attach less and less importance to the value of human life and turn
increasingly to violence to resolve immediate problems and frustrations.

3.2. Focal Concerns: Miller’s Theory

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  One subcultural theorist Walter Miller raised focal concerns about how other theorists
view
the subcultures and explain criminal and delinquent behaviour in terms of subcultural values. His
opinion is different.
 According to Miller, juvenile delinquency is not rooted in the rejection of middle-
class values; it stems from lower-class culture, which has its own value system.
 Gang norms are simply the expression of the lower-class culture in which the boys
have grown up. This lower culture exists apart from the middle-class culture and it
has done so for generations.
 The value system, not the gangs norms, generates delinquent acts.

 Other theorists in support of Miller’s theory agree that it is values, rather than class, that
are
associated with delinquency.

3.2. Evaluation: Miller’s Theory

 Criminologists have been disturbed by Miller’s assumption that the lower-class lifestyle
is
generally focused on illegal activity. In making such an assumption, they say, Miller disregarded
the fact that most people in the lower-class do conform to conventional norms.
 Moreover, some criminologist ask, if lower-class boys are conforming to their own value
system, why would they suffer guilt or shame when they commit delinquent acts?

4. Female Delinquent Subcultures

Its an extension of subcultural explanations of lower-class delinquency.

 Traditionally, gang membership has been primarily limited to young, inner-city males.
Theoretically and empirically studies in this area therefore focused on that population. Little was
known about female subcultures until recently.
 In one of the few studies on female delinquent subcultures, it has been found that, like
their
male counterparts, were composed of members who had been frustrated in their efforts to
achieve conventional goals (respectability, marriage, status). The girls had drifted into a
subculture that offered them substitute status, albeit outside legitimate society. Drug use and
prostitution became all but inevitable.
 In most recent findings, girls, like boys, join gangs for mutual support, protection, and a
sense of belonging. They too gain status by living up to the value system of their gang.
 Many of the female gangs (though not all) are affiliates of male gangs, often offering
support for the young men they refer to as there “home boys”.

5. Middle-class Delinquency

Its an extension of subcultural explanations of lower-class delinquency.

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  Some criminologists say that a growing number of middle-class youngsters no longer
believe that the way to reach their goals is through hard work and delayed pleasure. Behaviour
has become more hedonistic5 and more peer-oriented.
 While most of this youth subcultures exhibits nondelinquent behaviour, sometimes the
pleasure-seeking activities have led to delinquent acts. Bored and restless, these youngsters seek
to break the monotony with artificial excitement and conspicuous indulgence: alcohol, drugs, and
sexual activity.

Social Control Theories

 The term “social control” has taken on a wide variety of meanings. In general, it descries
any mechanism that leads to conformity to social norms.
 Mainstream studies of social control take one of the two approaches:

 Macrosociological studies: focus on formal systems of social control.

o The legal system, laws, and particularly law enforcement.
o Powerful groups in society
o Social and economic directives of governmental or private groups.

There are five perceived principle agencies of social control, deemed effective in preventing
delinquent behavior and crime (1) Law, institutionalized is the state, (2) Religion,
institutionalized in the Church; (3) Education, institutionalized in the family and school: (4)
Public opinion and Politics; (5) Art, ceremony, and manners.

The Law

Law attempts to control by sanctions. In practice, its sanctions are nearly always penalties and
not rewards. Thus, the law is serviceable for the repression of conduct that is socially
condemned, rather than for eliciting serviceable conduct. Penal law is a deterrent and compelling
agency of imminent usefulness and it has been adapted for the compulsion of not only a few
necessary actions, but also for the repression of a great number of objectionable actions. It is the
strongest indispensable outwork of social defense.

The rational motive for the punishment of crime is not vengeance or retribution, but the
protection of society. And reason calls not for a further reduction of severity in thje treatment of

5
From Hedonism: belief that pleasure should be the main thing in life.
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crime, but on the contrary, it demands a notable increase in the swiftness and certainty of
punishment.

Legal Religion

No-one can ever under-estimate the value of religion as an agency of control, for
we need religious institutions to continue to be the conscience of the nation. Religion is a great
force and it can help one command one’s own morality, one’s own behavior and own attitude.

Public Sentiment

Public sentiment as a means of control exercises control over the conduct of every member of
society. There is not one person, but many have a voice in moulding public opinion. Public
sentiment is largely an expression of the emotional likes and dislikes. It is an experience of
practical fears and hopes: the conduct that seems likely to imperil our interest is condemned,
while the conduct that promises us benefits is praised.

The power of public sentiment is stupendous. Even the law depends for its efficiency upon the
force of public sentiment. Not only is it true that without pubic sentiment convictions are
difficult or impossible to secure, and laws likely to become “dead letters” but even when
conviction has taken place the fact that with conviction comes with it social condemnation is
what chiefly gives legal penalties there sting.

Politics

Politics, whatever else it may be, is primarily a method of social control. Political control in its
characteristic form is control by sanctions. Political activity may be directed toward other aims
than the preservation of social order by the operation of sanctions, but even when directed
towards economic or educational ends, its peculiar effectiveness depends upon the fact that it is
rounded upon the police power; the power to control by sanctions which renders possible the
collection of taxes, and the enforcement of other requirements. (Social control is exercised in a
state through the power called sovereignty).

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Education

Here, the name education is not confined to only the education received in schools, but also all
social contacts are part of a process of education. Education is adapted to form general
disposition and permanent character. And it is upon this achievement that social order and
progress mainly and fundamentally rest.

All education is the eliciting of activity. Sanctions suppress and mold from the outside, but
education displaces objectionable conduct by evoking sentiments and ideas hostile to evil and
promotive of good. Thus, education has an aim to open possibilities for men and to build
personalities to achieve them.

Educational agencies outside school

Educational agencies outside the school are: a) Family: where one learns through, observation,
repetition, attention, rewards, punishments, b) Art and play: where he learns through
neighborhood-playgroup, c) Manners, ceremony, minor morals: ceremonies-rituals, morality and
law have emerged from this, d) The press is an agent of social control; public opinion is
dependent upon publicity, but also social suggestion, sympathetic radiation and imitation, and e)
Church: evokes sentiments which shape the inner springs of conduct, as we have seen with
religion.

 Microsociological studies: focuses on informal systems. Researchers collect data

from individuals (usually by self-report methods), are often guided by hypotheses
that apply to individuals as well as groups, and frequently make reference to or
examine a person’s internal control system.
 Most contemporary criminological research takes the microsociological approach.

1. The Microsociological Perspective: Travis Hirschi

 Travis Hirschi has been the spokesperson of microsociological perspective since the
publication of his Causes of Delinquency in 1969.
 He claimed that social control theory explains conformity and adherence to rules, not
deviance. It is thus not a crime-causation theory in a strict sense but a theory of prosocial
behaviour used by criminologists to explain deviance.
 Hirschi identified four social bonds that promote adherence to society’s values:
attachment, commitment, involvement, and belief.
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  Attachment
- Takes three forms: attachment to parents, to school (teachers), and to peers.
- According to Hirschi, youths who have formed a significant attachment to parents refrain
from delinquency because the consequences of such an act might jeopardize that
relationship.
- The bond of affection between a parent and a child thus becomes a primary deterrent to
criminal activities. Its strength depends on the depth and quality of a parent-child
interaction. The parent-child bond forms a path through which conventional ideas and
expectations can pass.
- Importance of the School. Hirschi linked inability to function well in school to
delinquency through the following chain of events: academic incompetence leads to poor
school performance; poor school performance leads to rejection of teachers and
administrators as authorities. The result is delinquency. Thus attachment to school
depends on a youngster’s appreciation for the institution, perception of how he or she is
received by teachers and peers, and level of achievement in class.
- Hirschi found that attachment to parents and school overshadows the bond formed with
peers.

 Commitment
- That is support of and participation in social activities that tie the individual to the
society’s moral or ethical code. Hirschi identified a number of stakes in conformity or
commitments: vocational aspirations, educational expectations, educational aspirations.
Hirschi provided empirical support for the notion that the greater the aspiration and
expectation, the more unlikely delinquency becomes.

 Involvement
- The third bond is involvement, or preoccupation with activities that promote the interests
of society. This bond is derived from involvement in school-related activities (such as
homework) rather than in working-class adult activities (such as smoking and drinking).
A person who is busy doing conventional things has little time for deviant activities.

 Belief
- Belief consists of assent to the society’s value system. The value system of any society
entails respect for its laws and for the people and institutions that enforce them. The
results of Hirschi’s survey lead to the conclusion that if young people no longer believe
laws are fair, their bond to society weakens, and the probability that they will commit
delinquent acts increases.

1.1. Evaluation: Hirschi’s Social Control Theory

 While social control theory has held a prominent position in criminology for several
decades, it is not without weaknesses.
 For example, social control theory seeks to explain delinquency, not adult crime. It
concerns attitudes, beliefs, desires, and behaviour that, though deviant, are often
characteristic of adolescents. This is unfortunate because there has long been evidence
that social bonds are also significant explanatory factors in postadolescent behaviour.

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  Questions have also been raised about the bonds. Hirschi claims that antisocial acts result
from a lack of affective values, beliefs, norms, and attitudes that inhibit delinquency. But
these terms are never clearly defined.
 Critics have also faulted Hirschi’s work for other reasons:
- Having too few questionnaire items that measure social bonds.
- Failing to describe the chain of events that results in defective or inadequate bonds.
- Creating an artificial division of socialized versus unsocialized youths.
- Suggesting that social control theory explains why delinquency occurs, when in fact it
typically explains no more than 50 percent of delinquent behaviour and only 1 to 2
percent of the variance in future delinquency.

 Despite the criticisms, Hirschi’s work has made major contribution to criminology. The
mere fact that a quarter century of scholars have tried to validate and replicate it testifies
to its importance.
 Furthermore, research using and extending Hirsch’s constructs has become increasingly
sophisticated. Criminologists have refined Hirschi’s constructs so that the effects of
social control on delinquency, as well as the effects of delinquency on social control, are
both considered.

2. Social Control and Drift

 It is another perspective of social control developed by David Matza that explains why
Some adolescents drift in and out of delinquency.
 According to Matza, juveniles sense a moral obligation to be bound by the law. A “bind”
between a person and the law, something that creates responsibility and control, remains in place
most of the time. When it is not in place, the youth may enter into a state of drift, or a period
when he or she exists in a limbo between convention and crime, responding in turn to the
demands of each, flirting now with one, now with the other, but postponing commitment,
evading decision. Thus, the person drifts between criminal and conventional actions.
 Empirical support for drift theory has not been clear. Some studies show that delinquents
consider these rationalizations valid, while other research suggests that they do not. Later
investigations also demonstrate that delinquents do not share the moral code or values of
nondelinquents.

3. Personal and Social Control

 Most investigators today believe that personal (inner) controls are as important as social
(external) controls in keeping people from committing crimes.
 Albert Reiss found that personal controls reinforce social controls.
 Jackson Toby stressed the importance of a stake in conformity in keeping a
person from responding to social disorganization with delinquent behaviour.
 Ivan Nye believed that multiple control factors operate simultaneously to
determine human behaviour: internalized, indirect, and direct controls.
 Michael Gottfredson and Travis Hirschi argue that poor self-control, a result of
ineffective child rearing practices, explains a person’s propensity to commit
crime.

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4. Containment Theory

 Containment theory assumes that for every individual there exists a containing external
structure and a protective internal structure, both of which provide defense, protection, or
insulation against delinquency.

 According to Walter Reckless who founded this theory, outer containment, or the
structural
buffer that holds the person in bounds, can be found in the following components:

 A role that provides a guide for a person’s activities

 A set of reasonable limits and responsibilities
 An opportunity for the individual to achieve status
 Cohesion among members of a group, including joint activity and togetherness
 A sense of belongingness (identification with the group)
 Identification with one or more persons within the group
 Provisions for supplying alternative ways and means of satisfaction (when one or
more ways are closed).
Inner containment, or personal control, is ensured by:
 A good self-concept
 Self-control
 A well-developed conscience to tolerance
 A high frustration tolerance
 A high sense of responsibility

 Reckless suggests that the probability of deviance is directly related to the extent to
which
internal pushes (such as a need for immediate gratification, restlessness, and hostility), external
pressures (such as poverty, unemployment, and blocked opportunities), and external pulls are
controlled by one’s inner and outer containment.
 The primary containment factor is found in self concept, or the way one views oneself in
relation to others, and to the world as well. A strong self-concept, coupled with some additional
inner controls (such as a strong conscience and sense of responsibility), plus outer controls,
makes delinquency highly unlikely.

Evaluation: Containment Theory

 Containment theory, like Hirsch’s social control theory, has received significant
criticism.
The most damaging has come from Clarence Schrag, who contends that the terminology used is
vague and poorly defined, that the theory fails to consider why some poorly contained youths
commit violent crimes while others commit property crimes.
 These criticisms are not easy to answer. And because little empirical research has been
done
to test the findings of Reckless and his colleagues over the intervening 30 years, there is little
evidence of the validity of containment theory.

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Alternative Explanations of Crime: Labelling, Conflict, and Radical Theories

 Labelling theory, conflict theory, and radical theory offer alternative explanations of
crime,
in the sense that they do not restrict their inquiry to individual characteristics or to social or
communal processes.
 These three theories examine the impact of lawmaking and law enforcement processes on
the creation of offenders.
 The labelling and conflict theories, as critical as they are of the existing system of
criminal
justice, envisage a system made more just and equitable by reform and democratic processes;
 Radical theory demands revolutionary change.

 With long historical antecedents, all three theories gained prominence in the 1960’s and
early 1970’s, during an era of rebellion against social, political, and economic
inequalities.

1. Labelling Theory

 It does not presume to explain all crime, but it does demonstrate that the criminal justice
system is selective in determining who is to be labelled a criminal. It explains how labelling
occurs, and it blames the criminal justice system for contributing to the labelling process and,
therefore, to the crime problem.
 This theory views criminals not as inherently evil persons engaged in inherently wrong
acts
but, as individuals who had had criminal status conferred upon them by both the criminal justice
system and the community at large.
 Given a criminal label, some people gradually begin to think of themselves as they have
been officially defined.

 Critics suggest that the labels may identify real behaviour rather than create it. After all,
many delinquents have in fact had a long history of deviant bahviour, even though they have
never been caught and stigmatized. These critics question the overly active role labelling theory
has assigned to the community and its criminal justice system and the overly passive role it has
assigned to offenders.
 Some critics say that labelling is to be intended not as a theory of causation but, rather,
as a
perspective, a way of looking at a general area of human activity, which expands the traditional
research to include the process of social control. Labelling theory has provided this perspective;
it has also spawned further inquiry into the causes of crime.

2. Conflict Theory

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Goes a step beyond labelling theory in identifying the forces that selectively decide in the first
place what conduct should be singled out for condemnation-usually, so it is claimed, to the
detriment of the powerless and the benefit of the powerful.

3. Radical Theory

Singles out the relationship between the owners of the means of production and the workers
under capitalism as the root cause of crime and of all social inequities. Radical theory demands
the overthrow of the existing order, which is said to perpetuate criminality by keeping the
oppressed classes under the domination of the capitalist ruling class.

Evaluation: Labelling, Conflict, and Radical Theories

All three theories have adherents and opponents. Research to demonstrate their validity has
produced mixed results. More important, all these theories have challenged conventional
criminologists to rethink their approaches and to provide answers to questions that had not been
asked before

TOPIC 4 VIOLENT CRIMES.

A violent crime or crime of violence is a crime in which the offender uses or threatens to use
violent force upon the victim. This entails both crimes in which the violent act is the objective,
such as murder, as well as crimes in which violence is the means to an end, (including criminal
ends) such as robbery. Violent crimes include crimes committed with weapons. With the
exception of rape (which accounts for 6% of all reported violent crimes), males are the primary
victims of all forms of violent crime. A violent crime may end with injury or death, both on the
part of victim and offender.

Five Stages of Violent Crime

Intent – The step in which a person crosses a mental boundary, becoming a potentially violent
attacker. Can be a preplanned decision or a reaction to a particular circumstance. All people
have to go through this step, it may happen quickly but it does happen regardless of if you
observed the change. Listen to your inner voice, people who are violent have different body
language.
Interview – In this stage the criminal decides if you are a safe target to attack. You WANT TO
FAIL this interview. When you do, the attacker decides that you cannot be successfully or
easily attacked. There are five basic types of interviews; regular, hot, escalating, silent, and
prolonged.
Positioning – The criminal puts himself in a place to successfully attack you. They do not
want to fight you, they want to overwhelm you and to do so must position themselves in a
place to do so quickly and effectively. Someone positioning himself to attack removes all
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doubt that the scenario is innocent, the attack is coming. One key in this step is “fringe areas”
where you are close to people but out of range of immediate help. Five types of positioning;
closing, cornering/trapping, surprise, pincer, surrounding.
Attack – The criminal is now using force or the threat of force to get what they want. At this
point the other three stages have been achieved and the criminal sees no reason for him to not
use violence to succeed. Some attacks are merely threats of physical violence, while others are
actually violent. At their extreme an attacker can simply walk up to a person and shoot them.
There is no way to tell which type of attack will happen, and attacks can change from one type
to another suddenly.
Reaction – After an attack a criminal examines how he feels about the act. This is where a
robbery becomes a murder, or where a rape becomes a seriously violent attack. Rapists’
reactions are consistently the most dangerous; if the rapist does not feel empowered enough he
will often turn violent to get the feeling of power from it. Until the criminal is completely out
of sight, you are still in danger even if you have completely and totally cooperated. This means
that it is far easier to avoid violence than to remove yourself from it.

Classifying an offense as a violent crime does not require that the offender used a weapon.
The United States Department of Justice Bureau of Justice Statistics (BJS) has identified five
categories of violent crime: murder and non-negligent manslaughter, forcible rape, robbery,
and aggravated assault.

Murder and Non-Negligent Manslaughter

While the precise definition of murder varies among jurisdictions, states generally define
murder as the illegal killing of another human being with malice aforethought. In order to be
found guilty of murder, a defendant must have committed the act with the intent to kill. Thus,
if a defendant unintentionally or accidentally caused the death of another, the death is not
classified as murder, but may qualify as involuntary manslaughter or negligent homicide. Non-
negligent, or voluntary manslaughter is defined as murder without premeditation. If the killer
intended to kill because the victim provoked him, the killer may be guilty of non-negligent
manslaughter. Additionally, if the killer suffered from diminished capacity at the time of the
death, the charge may be mitigated from murder to non-negligent manslaughter.

Forcible Rape
The Department of Justice defines forcible rape as forced sexual intercourse involving vaginal,
oral or anal penetration by an offender through psychological coercion or physical force. This
definition encompases instances where the offender cause the penetration with a foreign object,
as well as attempted rapes and verbal threats of rape. Although this definition is gender neutral,
older definitions were gender specific and sexual attacks on males were often classified as
aggravated assault. Statutory rape and other sex offenses are not generally classified as violent
crimes.

Robbery
Robbery is the seizing of property by violence or intimidation. Thus, the robber must use force
or threats of force to obtain the property of another. Robbery is distinguished from theft and
larceny by the requirement that the taking of property be by means of violence or intimidation.
The degree of violence or intimidation need not be extreme to classify the crime as robbery.
Additionally, the value of the property taken may be nominal.
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Aggravated Assault
Aggravated assault is an unlawful attack by a person against another for the purpose of
inflicting serious bodily injury. Serious bodily injury is generally defined as a wound that
breaks the skin. Aggravated assault is typically accompanied by the use of a weapon.
Attempted aggravated assault that involves the use of a weapon, even if the weapon is merely
flashed or used to make a threat, is classified as a crime of violence. Aggravated assault is
distinguished from simple assault by the seriousness of the injury to the victim, the offender's
intent and the use of a deadly weapon.
TOPIC 5. CRIMES AGAINST PROPERTY

The traditional property crimes are larceny (theft, stealing); obtaining property by fraud of
various sorts, including false pretenses, confidence games, forgery, and unauthorized use of
credit cards; burglary, which does not necessarily involve theft; and arson, which not only
deprives the owner of property but also endangers lives. We shall defer until the next chapter
from discussion of the crimes by which criminals deprive people of their property through
organizational manipulations-individual white-collar crimes, corporate crimes, and activities
related to organized crimes.

The opportunities to commit property crime are all but unlimited. Studies demonstrate that if
these opportunities are reduced, the incidence of crime is reduced as well.

1. Larceny

Larceny (theft, stealing) is the prototype of all property offenses. It is also the most prevalent
crime in our society; it includes such contemporary forms as purse-snatching, pickpocketing,
shoplifting, art theft, and vehicle theft.

We can therefore define larceny as an act by which a person (thief) wrongfully takes and
carries away another person’s personal property with the intent to permanently deprive the owner
of
the property.

1.1. The Elements of Larceny

1.1.1. Trespass

There must be a trespass. In the law of larceny it means any absence of authority or permission
for the taking.

1.1.2. Taking

The property must be taken: The perpetrator must exert authority over the property, as by putting
a hand on a piece of merchandise or getting into the driver’s seat of the targeted car.

1.1.3. Carrying away

The slightest removal suffices to fulfil this element: moving merchandise from a counter,
however slightly; loosening the brakes of a car so that it starts rolling, even an inch.

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1.1.4. Personal property

The property in question is personal property.

1.1.5. Belonging to another

The property has to belong to another, in the sense that the person has the right to posses that
property.

1.1.6. With the intent to deprive the owner of the property permanently

The taker must intend to deprive the rightful owner permanently of the property. In many
jurisdictions, however, the law no longer requires proof that the thief intended to deprive the
owner “permanently” of the property.

1.2. Types of thieves

According to criminologists thieves are of two types: amateurs and professionals.

1.2.1. The Amateur Thief

Amateur thieves are occasional offenders who tend to be opportunists. The take advantage of a
chance to steal when little risk is involved. Typically their acts are carried out with little skill, are
unplanned, and result from some pressing situation, such as the need to pay the rent or a
gambling debt. In other words, amateurs resolve some immediate crisis by stealing. Most
occasional offenders commit few crimes; some commit only one crime. Many are juvenile who
do not go on to commit crimes in adulthood. Amateur thieves do not think of themselves as
professional criminals, nor are they recognized as such by those who do think of themselves as
professionals.

1.2.2. The Professional Thief

Professional thieves make a career of stealing. They take pride in their profession. They are
imaginative and creative in their work and accept its risks. The most common crimes committed
by professional thieves are pickpocketing, shoplifting (the stealing of goods from retail
merchants), forgery, confidence swindling, and burglary.

2. Fraud

Fraud is the acquisition of the property of another person through cheating or deception.

2.1. Obtaining Property by False Pretense

The essence of the crime of obtaining property by false pretenses is that the victim is made to
part with property voluntarily, as a result of the perpetrator’s untrue statements regarding a
supposed fact.

2.2. Confidence Games and Frauds

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The essence of the offense is that the offender gains the confidence of the victim, induces in the
victim the expectation of a future gain, and – by abusing the trust thus created-makes the victim
part with some property. In a sense, confidence games are an aggravated form of obtaining
property by false pretenses.

2.3. Check Forgery

All jurisdictions make it a criminal offense to use a counterfeit or stolen check or to pass a check
on a nonexisting account, or even on one with insufficient funds, with intent to defraud.

Another fraud, called check forging consists of altering a check with intent to defraud.

2.4. Credit Card Crimes

Just as the introduction of checks for payment for goods and services opened up opportunities for
thieves to gain illegitimate financial advantage, so did the introduction of “plastic money.” This
type of crime increases as the volume of cards in circulation goes up.

The economic rewards of credit card fraud are quick and relatively easy. The risks are low.
Usually merchants do not ask for personal identification; cards are issued in banks that are often
in other states or countries; and authorization procedures are weak. However, today the banking
industry has studied credit card schemes and has improved the electronic system with target-
hardening responses.

2.5. Insurance Fraud

Insurance fraud like credit card fraud are recent types of fraud. Auto insurance, in particular, has
been the target of many dishonest schemes. Auto insurance schemes include:
 Staged claims: Parts of a car are removed, reported stolen, and later replaced by the
owner.
 Owner dumping: The car is reported stolen; it is stripped by the owner, and the parts are
sold.
 Abandoned vehicles: The car is left in a vulnerable spot for theft; then it si reported
stolen.
 Staged accidents: All parties to the “accident” are part of the scheme.
 Caused accidents: the perpetrator deliberately causes an innocent victim in a targeted car
to crash into his or her car (often in the presence of “friendly” witnesses).

There are many other types of insurance fraud besides that involving automobiles. One rapidly
growing type involves filing fraudulent health insurance claims.
3. Burglary

A “burg” in Anglo-Saxon terminology, was a secure place for the protection of oneself, one’s
family, and one’s property.

The law of burglary made it a crime to break and enter the dwelling of another person at night
with the intention of committing a crime therein – felony or larceny. (Of course it had to be at
night, for during the day the inhabitants could defend themselves, or so it was thought).

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The common law defined burglary as:
 The breaking
 And entering
 Of the dwelling house
 Of another person
 At night
 With the intention to commit a felony or larceny inside.

Today burglary is no longer limited to night attacks, although by statute the crime may be
usually considered more serious if it is committed at night. Statutes have also added buildings
other than dwellings to the definition.

Aggravated Burglary occurs when a deadly weapon is used or when the building entered is a
dwelling.

Criminologists are increasingly interested in he factors that leads to a decision to burglarize; the
location or setting of a building, the presence of guards or dogs, the type of burglar alarms and
external lighting, and so forth.

4. “Fencing”: Receiving Stolen Property

Burglars and thieves depend on a network of “fences” to turn stolen property into cash.
A fence is a person who buys stolen property on a regular basis, for resale. Fences or dealers in
stolen property, operate much like legitimate businesses: they buy and sell for profit. Their
activity thrives on an understanding of the law governing the receiving of stolen property, on
cooperation with the law when necessary, and on networking.

The difference between a legitimate business and a fencing operation is that the channelling of
stolen goods takes place in a clandestine environment with risks and with a need to justify one’s
activities in the eyes of conventional society.

5. Arson

The common law defined arson as the malicious burning of or setting fire to the dwelling of
another person. Modern statutes have distinguished degrees of severity of the offense and have
increased its scope to include other structures and even personal property, such as automobiles.

The most severe punishments are reserved for arson of dwellings, because of the likelihood that
persons in the building may be injured or die.

Arson has been viewed as a more violent crime than burglary. In comparison with burglary,
however, arson is a fairly infrequent offense.

Fire setters can be classified by motive as follows:

 Revenge, jealousy, and hatred
 Financial gain, (mostly insurance fraud)
 Intimidation and/ or extortion (often involving organized crime)
 Need for attention
 Social protest
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  Arson to conceal other crimes
 Arson to facilitate other crimes
 Vandalism and accidental firesetting

In order to curb this problem, policy makers need to focus on educational outreach in schools
and the early identification of troubled children, for purposes of counselling and other assistance.
The offense-specific approach focuses on places. It seeks to identify areas with a record of or a
high potential for arson. The aim, then, is to deploy arson specialists to correct problems and to
stabilize endangered buildings and neighbourhoods.

TOPIC 6: WHITE-COLLAR CRIME AND CORPORATE CRIME

White-collar crimes are offenses that persons commit while acting in their legitimate jobs
and professions. White-collar criminals behave in unethical ways for self-gain (for
example, embezzlement) or for the benefit of a business (for example, corporate price-
fixing). Victims of white-collar crime include the economy, employers, consumers, and
the environment.

4.1. Defining White Collar Crime

White collar crime is a term that was first used by a sociologist in 1939 to describe
criminal activity by members of the upper classes in connection with their professions.
His point was that this type of crime was barely acknowledged by the criminal justice
system and rarely prosecuted. Today, the most common definition of white collar crime
no longer focuses on the social status of the offender but rather on the type of conduct
involved: illegal acts using deceit and concealment to obtain money, property, or
services, or to secure a business or professional advantage.

Within the field of criminology, white-collar crime has been defined by Edwin
Sutherland as "a crime committed by a person of respectability and high social status in
the course of his occupation" (1949). Sutherland was a proponent of Symbolic
Interactionism, and believed that criminal behavior was learned from interpersonal
interaction with others. White-collar crime therefore overlaps with corporate crime
because the opportunity for fraud, bribery, insider trading, embezzlement, computer
crime, and forgery is more available to white-collar employees.

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 Generally, however, white collar crime is defined as „violation of the law committed
by a person or group of persons in the course of an otherwise respected and legitimate
occupation or business enterprise.‟(See James W. Coleman, 1989)

 Limitation of the Term “White Collar Crime”

Modern criminology generally rejects a limitation of the term by reference to type of

crime and the topic is now divided:

 By the type of offense, e.g. property crime, economic crime, and other corporate
crimes like environmental and health and safety law violations. Some crime is
only possible because of the identity of the offender, e.g. transnational money
laundering requires the participation of senior officers employed in banks. But the
Federal Bureau of Investigation has adopted the narrow approach, defining white-
collar crime as "those illegal acts which are characterized by deceit, concealment,
or violation of trust and which are not dependent upon the application or threat of
physical force or violence" (1989, 3). Because this approach is relatively
pervasive in the United States, the record-keeping does not adequately collect data
on the socioeconomic status of offenders which, in turn, makes research and
policy evaluation problematic. While the true extent and cost of white-collar
crime are unknown, it is estimated to cost the United States more than $300
billion annually, according to the FBI.
 By the type of offender, e.g. by social class or high socioeconomic status, the
occupation of positions of trust or profession, or academic qualification,
researching the motivations for criminal behavior, e.g. greed or fear of loss of face
if economic difficulties become obvious. Shover and Wright (2000) point to the
essential neutrality of a crime as enacted in a statute. It almost inevitably
describes conduct in the abstract, not by reference to the character of the persons
performing it. Thus, the only way that one crime differs from another is in the
backgrounds and characteristics of its perpetrators. Most if not all white-collar
offenders are distinguished by lives of privilege, much of it with origins in class
inequality.

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  By organizational culture rather than the offender or offense which overlaps with
organized crime. Appelbaum and Chambliss (1997; 117) offer a twofold
definition:

Occupational crime occurs when crimes are committed to promote personal

interests, say, by altering records and overcharging, or by the cheating of clients
by professionals. Organizational or corporate crime occurs when corporate
executives commit criminal acts to benefit their company by overcharging or
price fixing, false advertising, etc.

4.2. Relationship to Other Types of Crimes

 Blue-Collar Crime
The types of crime committed are a function of the opportunities available to the potential
offender. Thus, those employed in relatively unskilled environments and living in inner-
city areas have fewer "situations" to exploit (see Clarke, 1997) than those who work in
"situations" where large financial transactions occur and live in areas where there is
relative prosperity. Note that Newman (2003) applies the Situational Crime Prevention
strategy to e-crime where the opportunities can be more evenly distributed between the
classes. Blue-collar crime tends to be more obvious and attract more active police
attention (e.g. for crimes such as vandalism or shoplifting which protect property
interests), whereas white-collar employees can intermingle legitimate and criminal
behavior and be less obvious when committing the crime. Thus, blue-collar crime will
more often use physical force whereas in the corporate world, the identification of a
victim is less obvious and the issue of reporting is complicated by a culture of
commercial confidentiality to protect shareholder value. It is estimated that a great deal of
white collar crime is undetected or, if detected, it is not reported. In the truest sense, the
terms white and blue collar crime refers to police slang for an arrest of a suspect, or
collar. Blue collar crimes are those that involve local police (known for wearing blue, or,
"Men in Blue") and white collar crimes are those involving Federal agents, such as FBI
(who typically wear suits and ties with white shirts.)

 State-Corporate Crime:

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 Because the negotiation of agreements between a state and a corporation will be at a
relatively senior level on both sides, this is almost exclusive a white-collar "situation"
which offers the opportunity for crime.

4.3. Principles of Liability and Defences:

White collar crimes follow the general principles of criminal liability in that each crime
requires a bad act, a criminal intent, and causation. The defenses to white collar crime are
the same ones applicable to all crimes and include incapacity, insanity, intoxication, and
duress. Of particular note for white collar crime prosecutions is the defense of
entrapment. Entrapment occurs when the government has enticed a person to commit a
crime he or she otherwise would not have committed. The majority of courts look at the
defense of entrapment through the eyes of the individual defendant and the focus
becomes the propensity of that defendant to commit the crime in determining whether he
or she has been entrapped. Other courts focus on the government's conduct from the
perspective of whether it is outrageous in terms of convincing a person to commit a
crime.
Review Questions:
1. Define white collar crimes. Are there any limitations to the usage of
the term?
2. Is white collar crime in any way related to blue collar crime? If so, how?
CORPORATE CRIME
Definition and Scope
Corporate crime refers to crimes committed either by a corporation (i.e., a business
entity having a separate legal personality from the natural persons that manage its
activities), or by individuals that may be identified with a corporation or other business
entity. Corporate crime overlaps with:

 White-collar crime, because the majority of individuals who may act as or

represent the interests of the corporation are employees or professionals of a
higher social class;

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 Organized crime, because criminals can set up corporations either for the purposes of
crime or as vehicles for laundering the proceeds of crime. Organized crime has become
a branch of big business and is simply the illegal sector of capital. It has been estimated
that, by the middle of the 1990s, the "gross criminal product" of organized crime made it
the twentieth richest organization in the world -- richer than 150 sovereign states
(Castells 1998: 169). The world‘s gross criminal product has been estimated at 20
percent of world trade. (de Brie 2000); and
 State-corporate crime because, in many contexts, the opportunity to commit crime
emerges from the relationship between the corporation and the state.
Criminal liability of corporations has become one of the most debated topics of the 20 th
century. The debate became especially significant following the 1990s, when both the
United States and Europe have faced an alarming number of environmental, antitrust,
fraud, food and drug, false statements, worker death, bribery, obstruction of justice, and
financial crimes involving corporations. Corporate crimes results in great losses, the
consequences that most directly affect our society are the enormous losses of money,
jobs, and even lives. At the same time, the long-term effects of these crimes, such as the
damaging effects upon the environment or health, which may not severely affect us
now, should not be underestimated.

The reaction to this corporate criminal phenomenon has been the creation of juridical
regimes that could deter and punish corporate wrongdoing. Corporate misconduct has
been addressed by civil, administrative, and criminal laws. At the present, most countries
agree that corporations can be sanctioned under civil and administrative laws. However,
the criminal liability of corporations has been more controversial. While several
jurisdictions have accepted and applied the concept of corporate criminal liability under
various models, other law systems have not been able or willing to incorporate it. Critics
have voiced strong arguments against its efficiency and consistency with the principles of
criminal law. At the same time, a large pool of partisans has vigorously defended
corporate criminal liability.

Goals of Corporate Criminal Liability:

The main goals of criminal liability of corporations are similar to those of criminal law
in general as enumerated below:

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  The first characteristic of corporate criminal punishment is deterrence—
effective prevention of future crimes.
 The second consists in retribution and reflects the society‘s duty to punish those
who inflict harm in order to ―affirm the victim‘s real value.‖
 The third goal is the rehabilitation of corporate criminals.
 Corporate criminal liability should achieve the goals of clarity, predictability, and
consistency with the criminal law principles in general.
 The fifth goal is efficiency, reflected by the first three goals mentioned above, but
also by the costs of implementing the concept.
 Finally, it is the goal of general fairness.

Policy to Enforce the Law against Corporations:

Corporate crime has become politically sensitive in some countries. In the United
Kingdom, for example, following a number of fatal disasters on the rail network and at
sea, the term is commonly used in reference to corporate manslaughter and to involve a
more general discussion about the technological hazards posed by business enterprises
(see Wells: 2001).
The Law Reform Commission of New South Wales offers an explanation of such
criminal activities:

"Corporate crime poses a significant threat to the welfare of the community.

Given the pervasive presence of corporations in a wide range of activities in our
society, and the impact of their actions on a much wider group of people than are
affected by individual action, the potential for both economic and physical harm
caused by a corporation is great."

Similarly, Russell Mokhiber and Robert Weissman (1999) assert:

"At one level, corporations develop new technologies and economies of scale.
These may serve the economic interests of mass consumers by introducing new
products and more efficient methods of mass production. On another level, given
the absence of political control today, corporations serve to destroy the
foundations of the civic community and the lives of people who reside in them."

Type of Corporate Behavior to Be Criminalized:

Behavior can be regulated by the civil law (including administrative law) or the criminal
law. In deciding to criminalize particular behavior, the legislature is making the political
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 judgment that this behavior is sufficiently culpable to deserve the stigma of being labeled
as a crime. In law, corporations can commit the same offences as natural persons.
Simpson (2002) avers that this process should be straightforward because a state should
simply engage in victimology to identify which behavior causes the most loss and
damage to its citizens, and then represent the majority view that justice requires the
intervention of the criminal law. But states depend on the business sector to deliver a
stable economy, so the politics of regulating the individuals and corporations that supply
that stability become more complex.

The majority of crimes are committed because the offender has the 'right opportunity',
i.e., where the offender simply sees the chance and thinks that he or she will be able to
commit the crime and not be detected. For the most part, greed, rather than conceit, is the
motive, and the rationalization for choosing to break the law usually arises out of a form
of contempt for the victim, namely that he, she or it will be powerless to prevent it, and
has it coming for some reason. For these purposes, the corporation is the vehicle for the
crime. This may be a short-term crime, i.e., the corporation is set up as a shell to open
credit trading accounts with manufacturers and wholesalers, trades for a short period of
time and then disappears with the revenue and without paying for the inventory.
Alternatively and most commonly, the primary purpose of the corporation is as a
legitimate business, but criminal activity is secretly intermixed with legal activity to
escape detection. To achieve a suitable level of secrecy, senior managers will usually be
involved. The explanations and exculpations may therefore centre around rogue
individuals who acted outside the organizational structures, or there may be a serious
examination of the occupational and organizational structures (often hinged on the socio-
economic system, gender, racism and/or age) that facilitated the criminal conduct of a
corporation.

Bribery and corruption are problems in the developed world, and the corruption of public
officials is thought to be a primary cause of crime in developing societies, where massive
foreign debt often undermines the provision government services. Peèar (1996), in
discussing the implications for policing in Eastern Europe as it seeks to adapt its laws to
match a capitalist model, points to the difficulty of distinguishing between lack of
morality and criminality in economic crimes that tend to emerge from the structural
relationships in modern commerce

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 STATE-CORPORATE CRIME:
Definition:
The concept of state-corporate crime or incorporated governance refers to crimes that
result from the relationship between the policies of the state and the policies and practices
of commercial corporations. The term was coined by Kramer and Michalowski (1990),
and redefined by Aulette and Michalowski (1993). These definitions were intended to
include all "socially injurious acts" and not merely those that are defined by the local
criminal jurisdiction as crime. This is not universally accepted as a valid definition so a
less contentious version has been adopted here. As an academic classification, it is
distinguished from:

 Corporate crime, which studies deviance within the context of a corporation and
by a corporation;
 Political crime, which is crime directed at the state; and
 State crime or "state-organized crime", which studies crimes committed by
government organizations (Chambliss: 1989).

One of the assertions made by those involved in this work is that a focus on the actual
relationship between the state and corporations dependent on the state for their

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 profitability can expose a more complete range of criminal activity than might be
provided by independent analyses of corporate or state-organized crimes.

To be able to operate as a commercial business entity, the modern corporation requires a

legal framework of regulation and oversight within which to exploit the relevant markets
profitably. The infrastructure of law and commerce are provided by the government of
each state in which the corporation desires to trade, and there is an inevitable linkage
between the political and commercial interests. All states rely on businesses to provide an
economic base consistent with each government's political policies. Without policies that
are supportive of economic activity, businesses will not be profitable and so will not be
able to provide the economic support that the state desires. In some cases, this symbiosis
may lead to the commission of crimes. The research studies situations where, for various
reasons, the oversight of corporate and/or state organizations by independent bodies has
been manipulated or excluded, and either existing criminal activity is redefined as lawful,
or criminal activity results but is not prosecuted.
Harper and Israel (1999) comment:“...societies create crime because they construct the
rules whose transgression constitutes crime. The state is a major player in this
process.”i.e. the way in which crime is defined is dynamic and reflects each society's
immediate needs and changing attitudes towards the local varieties of conduct. The
process depends on the values underpinning the society, the mechanisms for resolving
political conflict, the control over the discourse, and the exercise of power. Snider (1999)
notes that capitalist states are often reluctant to pass laws to regulate large corporations,
because this might threaten profitability, and that these states often use considerable sums
to attract regional or national inward investment from large corporations. They offer new
investors:

 preferential tax concessions not available to the ordinary citizen or local business
if foreign investment is sought;
 loans, guarantees and other financial support on preferential terms;
 directly targeted grants and other subsidies; and
 a purpose-built infrastructure to subsidize the set-up costs.

Once the state is committed to this offer, it can be difficult to enforce local laws against
pollution, health and safety or monopolies. Green and Ward (2004) examine how the debt

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 repayment schemes in developing countries place such a financial burden on states that
they often collude with corporations offering prospects of capital growth. Such collusion
frequently entails the softening of environmental and other regulations. The debt service
obligation can also exacerbate political instability in countries where the legitimacy of
state power is questioned. Such political volatility leads states to adopt clientelistic or
patrimonialist patterns of governance, fostering organized crime, corruption, and
authoritarianism. In some third world countries, this political atmosphere has encouraged
repression and the use of torture. Exceptionally, genocide has occurred. But Sharkansky
(1995) is careful to maintain a strict definition of "crime" for these purposes. Many
individuals and organizations may disapprove of what governments do or fail to do, but
such acts and omissions are not necessarily criminal.

TOPIC 7: VICTIMLESS-CRIMES OR PUBLIC ORDER CRIMES

Definition and Nature

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Consensual acts (in which people are willing participants) and violations in which only the
perpetrator is hurt, such as the personal use of illegal drugs, are called victimless crimes.

In criminology public order crime is defined by Siegel (2004) as "...crime which involves acts
that interfere with the operations of society and the ability of people to function efficiently", i.e.
it is behavior that has been labeled criminal because it is contrary to shared norms, social values,
and customs. Robertson (1989:123) maintains that a crime is nothing more than "...an act that
contravenes a law." Generally speaking, deviancy is criminalized when it is too disruptive and
has proved uncontrollable through informal sanctions.
Thus, public order crime includes consensual crime, victimless vice, and victimless crime. It
asserts the need to use the law to maintain order both in the legal and moral sense. Public order
crime is now the preferred term as against the use of the word "victimless" based on the idea that
there are secondary victims (family, friends, acquaintances, and society at large) that can be
identified.

For example, in cases where a criminal act subverts or undermines the commercial effectiveness
of normative business practices, the negative consequences extend beyond those at whom the
specific immediate harm was intended. Similarly, in environmental law, there are offences that
do not have a direct, immediate and tangible victim, so crimes go largely unreported and
unprosecuted because of the problem of lack of victim awareness. In short, there are no clear,
unequivocal definitions of 'consensus', 'harm', 'injury', 'offender', and 'victim'. Such judgments
are always informed by contestable, epistemological, moral, and political assumptions (de Haan,
1990: 154).
Following the work of Schur (1965), the types of crime usually referred to include the sexually
based offences of prostitution, paraphilia (i.e., sexual practices considered deviant), underage
sex, and pornography; and the offences involving substance abuse which may or may not
involve some element of public disorder or danger to the public as in driving while intoxicated.

The significance of these two areas is that all societies moralize over sex, and most prohibited
substances act as disinhibitors and either encourage antisocial behaviour or reduce the sense of
guilt. This classification of crime contains many instances of criminality where the only injured
party appears to be the accused who has made the personal choice to engage in some form of
self-destructive behaviour, e.g. private recreational drug use. Thus, there is continuing political
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debate on criminalization versus decriminalization, focusing on whether it is appropriate to use
punishment to enforce the various public policies that regulate the nominated behaviours. After
all, society could deal with unpopular behaviour without invoking criminal or other legal
processes.

When deciding whether harm to innocent individuals should be prohibited, the moral and
political beliefs held by those in power interact and inform the decisions to create or repeal
crimes without apparent victims. These decisions change over time as moral standards change.
For example, Margaret Sanger who founded the first birth control clinic in New York City was
accused of distributing obscene material and violating public morals. Information about birth
control is no longer considered obscene (see the U.S. case law examples). Within the context of
a discussion (Feinberg: 1984) on whether governments should regulate public morals in the
interest of the public good, Meier & Geis (1997) identify which social problems might be
deemed appropriate for legal intervention and the extent to which the criminal law should
enforce moral positions which may lack societal consensus. Respect for the law in general can
only be maintained if the law is worthy of respect. For example, Ericsson (1980:338-9) argues If
two adults voluntarily consent to an economic arrangement concerning sexual activity and this
activity takes place in private, it seems plainly absurd to maintain that there is something
intrinsically wrong with it.
This reflects a more fundamental problem of legal consistency. People have the right to engage
in some self-destructive activities. For all its carcinogenic qualities, tobacco is not a prohibited
substance. Similarly, the excessive consumption of alcohol can have severe physical
consequences, but it is not a crime to consume it. This is matched in gambling. The state and its
institutions often rely on lotteries, raffles, and other legal forms of gambling for operating funds,
whether directly or indirectly through the taxation of profits from casinos and other licensed
outlets. Qualitatively, there is nothing to distinguish the forms of gambling deemed illegal. A
side effect of turning too many people into criminals is that the concept of crime becomes
blurred and genuine criminality becomes less unacceptable. If the key distinction between real
crime and moral regulation is not made clearly, as more consensual activities become crimes,
ordinary citizens are criminalized for tax-evasion, illegal downloading, and other voluntary rule-
breaking.

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A further perceptual problem emerges when laws remain in force but are obviously not
enforced, i.e. the police reflect the consensus view that the activity should not be a crime.
Alternatively, if the activities prohibited are consensual and committed in private, this offers
incentives to the organizers to offer bribes in exchange for diverting enforcement resources or to
overlooking discovered activity, thereby encouraging political and police corruption. Thus, any
deterrent message that the state might wish to send is distorted or lost.

More generally, political parties find it easier to talk dismissively about crimes if they are
classified as victimless because their abolition or amendment looks to have fewer economic and
political costs, i.e. the use of the word "victimless" implies that there are no injuries caused by
these crimes (Robertson 1989:125) and, if that is true, then there is no need to create or retain
the criminal offences. This may reflect a limited form of reality that, in the so-called "victimless
crimes", there are no immediate victims to make police reports and those who engage in the
given behaviour regard the law as inappropriate, not themselves. This has two consequences:

 Because these crimes often take place in private, comprehensive law enforcement (often
including entrapment and the use of agent provocateurs) would consume an enormous
amount of resources. It is therefore convenient for the law enforcement agencies to
classify a crime as victimless because that is used as a justification for devoting fewer
resources as against crimes where there are "real" victims to protect; and
 These crimes usually involve something desirable where large profits can be made, e.g.
drugs or sex.

Justification and Limitation for Criminalizing Victimless Crimes

Criminalization is intended as a pre-emptive, harm-reduction device, using the threat of
punishment as a deterrent to those proposing to engage in the behaviour causing harm. The state
becomes involved because the costs of not criminalizing (i.e. allowing the harms to continue
unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty and so
minimizing harm to others). The process of criminalization should be controlled by the state
because:

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 1. Victims or witnesses of crimes might be deterred from taking any action if they fear
retaliation. Even in policed societies, fear may inhibit reporting or co-operation in a trial.
2. The victims may only want compensation for the injuries suffered, while being
indifferent to the more general need for deterrence: see Polinsky & Shavell (1997) on the
fundamental divergence between the private and the social motivation for using the legal
system.
3. Even if the victims recognize that they are victims, they may not have the resources to
investigate and seek legal redress for the injuries suffered: the enforcers formally
appointed by the state have the expertise and the resources.

Victims do not have economies of scale to administer a penal system, let alone collect any fines
levied by a court (see Polinsky (1980) on the enforcement of fines). But Garoupa & Klerman

(2002) warn that a rent-seeking government's primary motivation is to maximize revenue and
so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a
social-welfare-maximizing government in enforcing laws against minor crimes (usually with a
fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws
against major crimes.

The „Hidden Crime Factor‟ of the Victimless Crimes

Because most of these crimes take place in private or with some degree of secrecy, it is difficult
to establish the true extent of the crime. The "victims" are not going to report it and arrest
statistics are unreliable indicators of prevalence, often varying in line with local political
pressure to "do something" about a local problem rather than reflecting the true incidence of
criminal activity. In addition to the issue of police resources and commitment, many aspects of
these activities are controlled by organized crime and are therefore more likely to remain hidden.
These factors are used to argue for decriminalization. Low or falling arrest statistics are used to
assert that the incidence of the relevant crimes is low or now under control. Alternatively,
keeping some of these "vices" as crimes simply keeps organized crime in business.
Decriminalization of Public Order Crimes

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Maguire and Radosh (1999: 146/7) accept that the public order crimes that cause the most
controversy are directly related to the current perceptions of morality. To assert that the shades
of behaviour represented by such "crimes" should be retained or decriminalized ignores the
range of arguments that can be mustered on both sides, but the most fundamental question
remains whether the government has the right to enforce laws prohibiting private behaviour.

 Arguments In Favor of Decriminalization

Those who favor decriminalization or legalization contend that government should be concerned
with matters affecting the common good, and not seek to regulate morality at an individual level.
Indeed, the fact that the majority ignore many of the laws, say on drug-taking, in countries
founded on democratic principles should encourage the governments elected by those majorities
to repeal the laws. Failure to do so simply undermines respect for all laws, including those laws
that should, and, indeed, must be followed. Indeed, when considering the range of activities
prohibited, the practical policing of all these crimes would require the creation of a police state
intruding into every aspect of the peoples' lives, no matter how private. It is unlikely that this
application of power would be accepted even if history showed such high-profile enforcement to
be effective. Prohibition did not prevent the consumption of alcohol, and the present War on
Drugs is expensive and ineffective. Those who favor decriminalization also point to experience
in those countries which permit activities such as recreational drug use or prostitution. There is
clear evidence of lower levels of substance abuse and disruptive behavior.

1. The presence of public order crimes encourages a climate of general disrespect for the
law. Many individuals choose to violate public order laws, because they are easily
violable, and there is no victim to complain. This encourages disrespect for the law,
including disrespect for laws involving crimes with victims.
To criminalize behavior that harms no other or society violates individual freedom and the
human/natural rights of the individual. The right of the individual to do what they will, so long
as they harm no other, or society as a whole, is a generally accepted principle within free and
democratic societies ; criminalization of acts that others feel are immoral, but are not clearly
[1]

proven to be harmful, is generally violative of that principle; although exceptions may--and do--
apply.

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(For example, the simple possession of child pornography or engaging in animal cruelty is
criminal, In most civilized nations; however, there is no direct victim (except the animal, whose
rights are not cognizable by law); the reason for its criminalization is the "bad tendency" of these
acts; persons who derive pleasure from acts such as these often have depraved desires--it can be
inferred that people who abuse animals, rarely stop there--and that people who possess child
pornography will seek more than just mere depictions.)

2. The cost of enforcing public order crimes is too high to individual and societal freedom,
and will inevitably result in coercion, force, brutality, usurpation of the democratic process, the
development of a carceral state, and finally, tyranny. Due to public order crimes not having a
victim, someone aside from a victim has to be used to report public order crimes, and someone
other than the sovereign people itself has to be delegated to enforce the public order laws. This
results in the development of an apparatus of coercion, a class of "law enforcers" within society,
but separate from society, in that they are tasked with enforcing laws upon the people, rather
than the people enforcing their own law. This inevitably results in violations of individual
freedom, as this class of "law enforcers" seeks more and more power, and turns to more and
more coercive means.
3. Public order crimes often pertain to behavior engaged in especially by discernible classes
of individuals within society (racial minorities, youth, poor people), and result in the
criminalization or stigmatization of those classes, as well as resentment from those classes
against the laws, against the government, or against society.
4. Public enforcement of morality will inevitably lead to individuals developing no moral
compass of their own, instead resulting in external restraint substituting for internal restraint,
and, thus, greater immorality, deviance, and societal decadence.

 Arguments Against Decriminalization:

Those who oppose decriminalization believe that the morality of individuals collectively affects
the good of the society and, without enforcement, the society will be damaged and lead to
decadence. They believe that law shapes morality and builds a national character. If laws are not
enforced, that is not the fault of the law. If people knew that they were likely to be arrested, they
would modify their behavior. That current laws criminalizing theft do not deter thieves is not an
argument for decriminalizing theft (although theft is not in any way a victimless crime).

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Rather it is an argument in favor of devoting more resources into enforcement so that there is
greater certainty of arrest and punishment. Thus, in public order crimes, it is simply a lack of
priority in current enforcement strategies that encourages such widespread public disobedience
which, in all likelihood, would increase if the behavior was to be decriminalized.
 Specific Examples:

Meier and Geis (1997) contrast the view that prostitution, drugs, and homosexuality are crimes
without victims, with the view that the participants involved are victims without crimes. The use
of the term "public order crime" grew out of the research to test the hypothesis underlying the
term "victimless crime". So-called victimless crimes or crimes without victims were tested to
determine whether a case could be argued that the behaviour produced harmful consequences for
innocent people (p19) recognizing that there was substantial disagreement both about the degree
of culpability inherent in the behaviour and the proper role for the law. Consequently, the
effectiveness and scope of the law has proved limited, both creating and solving problems. The
following are examples of the research findings used to construct arguments that there are
victims. It is accepted that there are other arguments that many consider equally convincing (as
an example).
1. Prostitution:

Prostitution is listed among the crimes some refer to as victimless or consensual crimes, because
no one present at the crime is unwilling, but research shows that may not be the true picture of
prostitution. In most countries, prostitution -- exchanging money for sex among adults -- is legal.
It is illegal in only a few countries -- in the United States (except for ten counties in the state of
Nevada), India, Argentina, some Muslim and Communist countries. The reason it is legal is the
general attitude that prostitution does no harm, has no victims, and is sex among consenting
adults.
Prostitution Is not a Victimless Crime:

Melissa Farley, PhD of Prostitution Research & Education, argues that prostitution is hardly a
victimless crime. In her "Prostitution: Fact sheet on Human Rights Violations" Farley says that
prostitution is sexual harassment, rape, battering, verbal abuse, domestic violence, a racist
practice, a violation of human rights, childhood sexual abuse, a consequence of male domination
of women and a means of maintaining male domination of women.

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"All prostitution causes harm to women," Farley writes. "Whether it is being sold by one's
family to a brothel, or whether it is being sexually abused in one's family, running away from
home, and then being pimped by one's boyfriend, or whether one is in college and needs to pay
for next semester's tuition and one works at a strip club behind glass where men never actually
touch you – all these forms of prostitution hurt the women in it."

Prostitutes Are Biggest Victims:

To believe prostitution has no victims, one must ignore these statistics published in Farley's Fact
Sheet:

 78 percent of 55 women who sought help from the Council for Prostitution Alternatives
in 1991 reported being raped an average of 16 times a year by pimps, and were raped 33
times a year by johns.
 62 percent reported having been raped in prostitution.
 73 percent reported having experienced physical assault in prostitution.
 72 percent were currently or formerly homeless.
 92 percent stated that they wanted to escape prostitution immediately.
 83 percent of prostitutes are victims of assault with a weapon.
 75 percent of women in escort prostitution had attempted suicide.
 67 percent meet diagnostic criteria for posttraumatic stress disorder (PTSD).

Prevalence of Incest

In short, the victims of prostitution are mostly the prostitutes themselves. It just may be that they
no longer have the ability left to "consent" to be a willing participant in their so-called victimless
crime.
Estimates of the prevalence of incest among prostitutes range from 65 percent to 90 percent. The
Council for Prostitution Alternatives, Portland, Oregon Annual Report in 1991 found that: 85
percent of their prostitute clients reported history of sexual abuse in childhood while 70 percent
reported incest.
Self Determination

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As feminist Andrea Dworkin has written "Incest is boot camp. Incest is where you send the girl
to learn how to do it. So you don't, obviously, have to send her anywhere, she's already there and
she's has nowhere else to go. She trained."
But not all feminist back prostitution laws. Some believe prostitution is an act of self-
determination. They demand decriminalization and de-stigmatization, because laws against
prostitution discriminate against women's ability to make their own choices.

2. Drugs

The use of drugs for religious and recreational purposes is historically verified among a wide
range of cultures. In more modern times, Inciardi (1992: 1-17) reports that the use of opium,
cocaine, and, later, morphine were common ingredients of patent medicines, and "opium dens"
were not uncommon in the larger urban areas. Extracts from the coca leaf were included in the
original Coca-Cola and, in 1900, heroin was promoted as a cough medication and a treatment for
lung diseases. But problems flowing from addiction led many to perceive the drug element of
medications to be morally destructive.
In the terms adopted by Schur (1965), drug dealing is now victimless because neither the buyer
nor the seller is likely to report it. However, the majority of criminologists argue that there are
victims. The consumption of drugs can damage the health of users and, in some cases, cause
death through overdose. Some argue that if drugs were available legally, they would be less
harmful (see the drug policy of the Netherlands). When drugs are illegal, the price is higher, and
maintaining the habit takes the money that would otherwise be spent on food, shelter, and
clothing. The resultant neglect is a contributory factor to the addict's physical deterioration. In
Australia, Walker (1991) finds a strong link between substance abuse and crime. In general,
making drugs illegal results in an exponential increase in their price so that addicts must indulge
in theft, robbery, and burglary to support their habits. Those people who experience those crimes
are indirect victims of the drug taking. The need to fund addiction also drives some into
distribution where they are more prone to violent attack and murder. These findings are matched
elsewhere. Meier and Geis (1997) confirm that drug dealing is an area where victims are third
parties who experience harm only indirectly through, say, losses from drug-related crime, and
the costs of enforcing drug laws and of treating addiction, and the public health costs for treating
illness and disease consequent on the addiction, e.g. HIV infection through using the same
needles. In Australia, for example, the National Campaign against Drug Abuse (see Collins &
Lapsley 1991) gives a figure of just over $1.2 billion for total costs of the abuse of illicit drugs

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in Australia in 1988, including treatment of drug-related illness, accidents resulting from drug
use/misuse, loss of productivity due to absenteeism, premature death, property crime and
damage, and excluding justice system costs. Conklin (1997: 100) reports the cost of illegal drug
use in the U.S. in 1989 at $60 billion a year, a 20% increase over the estimate in 1985. The rise
in cost to the state can only be met out of tax revenue, but the burden is not shared equally.
Income actually spent on drugs is displaced from purchases that would otherwise have generated
sales tax revenue. Similarly, the substantial profits made by the dealers are not taxed. Thus, the
citizens who declare income for tax purposes must pay more to offset the cost of drug taking in
their society.
As with prostitution, drug dealing also affects the amenity of a neighborhood, destroying
property values and causing the flight of the middle class to the "safer" suburbs. If the police do
intervene, they may alienate law-abiding community members who are stopped and questioned,
and only displace the drug dealing indoors, thus making it more resistant to police interventions.
Further, Sampson (2002) comments that because intensive police enforcement is by its very
nature temporary, the impact is often only short-term and dependent on the resiliency of the
market and the buyers which has been shown to be strong. Some officers have argued that
intensive enforcement shows the community that the police care about the problem; however,
some of the unintended effects may, in fact, have the opposite result. For a more general
exposition, see arguments for and against drug prohibition.
Review Questions:
1. Give a brief account of typologies of crime.
2. What is a victimless crime? Does it satisfy the essential ingredients of criminal liability?
3. Is prostitution a victimless crime? Should it be criminalized?
4. What is your stand relating to drug addiction, is it victimless?

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TOPIC 8: INTRODUCTION TO CRIMINAL JUSTICE SYSTEM

Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating
crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of
social control: society considers some behaviours so dangerous and destructive that it either strictly
controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent
these behaviours by apprehending and punishing transgressors or deterring their future occurrence.
Although society maintains other forms of social control, such as the family, school, and church,
they are designed to deal with moral, not legal, misbehaviour. Only the criminal justice system has
the power to control crime and punish criminals.

So, the main objectives of the criminal justice system can be categorized as follows:
# To prevent the occurrence of crime.
# To punish the transgressors and the criminals.
# To rehabilitate the transgressors and the criminals. 
# To compensate the victims as far as possible.
# To maintain law and order in the society.
# To deter the offenders from committing any criminal act in the future.

Of late, the relevance of our criminal justice system- both substantive and procedural- a replica of
the British colonial jurisprudence, is being seriously questioned. Perhaps the criminal judicial
system is based on the laws that are arbitrary and operate to the disadvantages of the poor. They
have always come across as law for the poor rather than law of the poor. It operates on the weaker
sections of the community, notwithstanding constitutional guarantee to the contrary.

There are hardly any people to advocate for the new laws to help the poor, there are practically
none to pressurize the government and the legislature to amend the laws to protect the week and the
poor. Even after five decades of independence, no serious efforts have been made to redraft penal
norms, radicalize punitive processes, humanize prison houses and make anti-social and anti-
national criminals etc. incapable of escaping the legal coils.

The criminal justice system is cumbersome, expensive and cumulatively disastrous. The poor can
never reach the temple of justice because of heavy costs involved in gaining access and the
mystique of legal ethos. The hierarchy of courts, with appeals after appeals, puts legal justice
beyond the reach of the poor. Making the legal process costlier is an indirect denial of justice to the
people and this hits hard on the lowest of the low in society. In fact, the legal system has lost its
credibility for the weaker section of the community.

Of course, the judiciary in recent years has taken a lead and has come forward with a helping hand
to give some relief to the victims of criminal justice in a limited way.

Some of the recent developments that have taken place during the last few years in our judicial
delivery system to seek redress and accord justice to the poor are worth mentioning. The
importance of these developments to the delivery system of justice can’t be ignored. They have
revolutionized our judicial jurisprudence and will go a long way in giving relief to the large masses
and the common man.

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In view of the importance of the subject matter, it is proposed to explain in brief some of the
important areas of the criminal justice system that have attracted the attention of the courts in
recent years. These are:
1. Public interest litigation.
2. Bail justice jurisprudence.
3. Prison justice.
4. Compensation to the victims.
5. Legal aid and legal services.

Public Interest Litigation

Public interest has its origin in the United States. It was during the 1960s that public interest
litigation emerges as a part of the legal aid movement primarily aimed at protecting the rights of
the weaker sections of the community, such as the women, children, physically and mentally
handicapped and the like.

In Kenya during the last few years, a new wave of public interest litigation has struck the courts. It
is being argued I some quarters that public interest litigation has opened a floodgate of litigation
and by such action, the Kenyan judiciary seems to be projecting itself as the upholder of the
freedom of people.

This over act of the judiciary is regarded as nothing but interference in the action of the executive,
which is making a good and effective government impossible. It is pointed out that the judiciary
might collide head on with the other organs of the State-the executive and the legislature- in which
event, being the weakest, it would collapse.

Bail Justice System

Bail is a generic term used to mean judicial release from custodia legis. The right to bail- the right
to be released from jail in a criminal case, after furnishing sufficient security and bond- has been
recognized in every civilized society as a fundamental aspect of human rights. This is based on the
principle that the object of a criminal proceeding is to secure the presence of the accused charged
of a crime at the time of the inquiry, trial and investigation before the court, and to ensure the
availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to
deprive a person of his freedom and liberty and keep him in confinement, if his presence in the
court, whenever required for trial, is assured.

Prison Justice
Justice delayed is justice denied. This is more so in criminal cases where the liberty of an
individual is at stake and in jeopardy. The irony of fate is that in all such cases, it is the poor and
the week who are the victims of the criminal justice system, and not the rich who are able to get
away.

Compensation to Victims of Crime

Criminal law, which reflects the social ambitions and norms of the society, is designed to punish as
well as to reform the criminals, but it hardly takes any notice of by product of crime- i.e. its victim.

The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal. The
guilty man is lodged, fed, clothed, warmed, lighted, and entertained in a model cell at the expense
of the state, from the taxes that the victim pays to the treasury. And, the victim, instead of being
looked after, is contributing towards the care of prisoners during his stay in the prison. In fact, it is
a weakness of our criminal jurisprudence that the victims of crime don’t attract due attention.

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A Criminological Approach To The Criminal Justice System

Introductory Issues: Penology

Is a section of criminology that deals with the philosophy and practice of various societies in their
attempts to repress criminal activities, and satisfy public opinion via an appropriate treatment
regime for persons convicted of criminal Offenses.

 Penology is concerned with the effectiveness of those social processes devised and adopted
for the prevention of crime. It covers many topics and theories, including those concerning
o Prisoner treatment/rights
o Prison reform
o Recidivism (persistent indulging in crimes/crime repeaters)

 As for the theories of punishment, they include:

o Deterrence
o Rehabilitation
o Retribution
o Utilitarianism (Happiness or pleasure Vs suffering and pain)

 Contemporary penology concerns itself mainly with:

o Criminal rehabilitation
o Prison management

Treatment of Offenders and Crime Control

Sentencing has been characterized as the most controversial of all the stages in the criminal justice
process. This is not surprising. At earlier stages the defendant benefits from the presumption of
innocence, and certain safeguards are built into the adversarial system: due process, fundamental
fairness, and impartiality. Once the defendant is convicted, however, the focus shifts away from
these concerns to the imposition of punishment.

1. Types of punishment

Judges can choose from a variety of sentenced options, ranging from the death penalty (where it
established) to the to the imposition of a fine.

1. Death Penalty

Jurisdictions, judges may impose a sentence of death for any offense designated a capital crime,
most commonly murder.

2. Incarceration

A defendant may be sentenced to serve a term in prison or in a local jail.

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3. Probation

A defendant may be sentenced to serve a period of community supervision with special limitations.
Violation of these conditions may result in incarceration.

4. Split sentence

A Judge may split the sentence between a period of incarceration and a period of probation.

5. Restitution

An offender may be required to provide financial reimbursement to cover the cost of a victim’s
losses.

6. Community Service

A Judge may require an offender to spend a period of time performing public service work.

7. Fine

The offender may be required to pay a certain sum of money as a penalty and / or as an alternative
to or in conjunction with incarceration.

Rationale or Justification for Punishment

What determines which option will be chosen? More often than not, judges are given discretion and
thus are guided by their own sentencing philosophy. Their discretion may be limited by a statute
that prescribes a prison term of a specified length or a range of prison terms. The most prominent
philosophies of punishment are: incapacitation, deterrence, retribution, rehabilitation and just
deserts.

Incapacitation

Reflects the belief that, given the frequency with which offenders commit crime, society is best off
when criminals are incarcerated for long periods of time-or incapacitated. Yet long sentences may
be unjust, unnecessary, counterproductive, and inappropriate.
 They are unjust if other offenders who have committed the same crime receive shorter
sentences.
 They are unnecessary if the offender is not likely to offend again.
 They are counterproductive whenever prison increases the risk of habitual criminal
behaviour.

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  They are inappropriate if the offender has committed an offense entailing insignificant harm
to the community.

Deterrence

The theory of deterrence holds that fear of punishment will cause potential offenders to refrain
from committing crimes. It is important to note that deterrence assumes rational choice. Supporters
of deterrence-based strategies argue that criminals weigh the relative benefits and risks of engaging
in crime and choose not to do so because they are deterred by a greater chance of being caught.

Retribution

The ancient Lex talionis – “an eye for an eye” - (retaliation law) marks the birth of the idea of
retribution. The idea of punishment was on the assumption that all offenders who had violated the
same provision of the penal law were alike and thys deserved the same punishment. But
behavioural scientists point out that no two offenders who have committed the same crime are
completely alike in capacity, depravity, intelligence, and potential for rehabilitation.

Rehabilitation

Dissatisfaction with retribution led to a new emphasis on the rehabilitative idea. As a sentencing
strategy or option, rehabilitation is based on the premise that through correctional intervention
(educational and vocational training and psychotherapeutic programs), an offender may be changed
and returned to society as a productive citizen.

Just Deserts

Underlying the concept of just deserts is the proposition that the punishment must be based on the
gravity of the offense and the culpability of the perpetrator. Just deserts advocates hold that the
courts simply do not have the capcity to discriminate between those who can be deterred, reformed,
or incapacitated and those who cannot. Critics have complained that the just-deserts concept is
superficial in its rejection of the rehabilitative idea: it ignores the fact that rehabilitation has been
condemned on the basis of flawed evaluations.

Alternatives to imprisonment

Incarceration is the most painful, enduring contemporary punishment. Societies developed

noninstitutional control of offenders as alternatives to confinement through probation, parole, etc.

Probation

Probation is a court-imposed SANCTION that "releases a convicted offender into the community
under a conditional suspended sentence." This practice assumes that most offenders are not
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dangerous and will respond well to treatment. In fact, the average PROBATIONER is a first time
and/or non-violent offender who, it is believed, will be best served by remaining in the community
while serving out the sentence.

Probation serves the dual purpose of protecting the community through continued court supervision
and rehabilitating the offender. Only minor restrictions are imposed on the probationer’s life.

The benefits of probation are great:

 not all types of offenses are serious enough to require costly incarceration;
 probationers can obtain or maintain employment and pay taxes;
 offenders can care for their families and comply with their other financial responsibilities
without becoming burdens on the state.

Revocation

Since probation is a conditional release, it can be revoked, or taken away, if the conditions
governing release are not met (technical violation) or if a new crime is committed during the
probationary period (new offense).

Parole

Parole is the "conditional early release from prison or jail, under supervision, after a portion of the
sentence has been served." This practice assumes that the offender successfully demonstrated
conformity to the rules and regulations of the prison environment and shows an ability to conform
to society's norms and laws.

Revocation

Since parole is a conditional release, it can be revoked or taken away, if the conditions governing
release are not met (technical violation) or if a new crime is committed during the probationary
period (new offense). In this manner, it is similar to probation; however, it differs in that probation
is governed by judicial decisions whereas parole is governed by administrative procedures. As a
result of the administrative nature of parole, the revocation process is so varied among the
jurisdictions.

TOPIC 9 LAW ENFORCEMENT

Police, body of officers representing the civil authority of government. Police typically are
responsible for maintaining public order and safety, enforcing the law, and preventing, detecting,
and investigating criminal activities. These functions are known as policing. Police are often also
entrusted with various licensing and regulatory activities.

However, police scholars have criticized this popular understanding of the word police—
that it refers to members of a public organization having the legal competence to maintain order
and enforce the law—for two reasons. First, it defines police by their ends rather than by the

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specific means that they use to achieve their goals. Second, the variety of situations in which police
are asked to intervene is much greater than law enforcement and order maintenance. There is now a
consensus among researchers, based on a definition first proposed by American sociologist Egon
Bittner, that the common feature among all the different agencies engaged in policing is the legal
competence to enforce coercive, nonnegotiable measures to resolve problematic situations. Such
situations are characterized by two features: their potential for harm and the need to solve them
urgently before they develop that potential. Hence, the actual use of coercion or the threat of using
it allows police to put a quick, nonnegotiated, and conclusive end to problematic situations (e.g.,
keeping people away from the scene of a fire for their own protection and to allow firemen to do
their job).

Police and society

There is a remarkable historical, geographic, and organizational diversity in the activities of people
who are, or have been, defined as police. Police work has developed considerably from what it was
centuries ago. As populations grew and informal institutions of socialization and social control—
such as the family, schools, and the church—decreased in effectiveness, police became
increasingly necessary. However, no uniform worldwide system of policing ever emerged.

Numerous factors help to explain the diversity of police activities and systems. The types of crime
typically committed in a society and the methods used by criminals play a great part in determining
a police force’s activities. For instance, if criminals use firearms, the police are likely to be armed,
or if criminals use computers to commit crimes, the police may establish a special unit dedicated to
investigating cybercrimes. History also helps to explain this diversity; e.g., former colonies tend to
keep the policing system established by their colonizers. Population plays an important role as
well; policing rural areas and villages vastly differs from policing large cities. Foremost among the
factors that determine a country’s system of policing, however, are the political culture of the
society—e.g., whether it is open and democratic or closed and totalitarian—and the state’s
conception of police accountability.

Policing small communities

Most people willingly obey most laws, whether a police officer is present or not. They comply with
the laws because they consider them fair and because they believe that in the long run it is in their
interest to observe them. In small communities in which most citizens know each other, people
who live up to the community’s shared ideals are rewarded with the esteem of their fellow citizens.
If they break the law or fall short of other people’s expectations, their lives often become more
difficult because they are shamed, shunned, or ostracized by the rest of the community and are less
likely to receive assistance in times of trouble. In all societies this system of informal rewards and
punishments is the most potent aid to law enforcement, but it is strongest in small communities.
The forces that order life in a small community thus make the task of the police much easier. Police
action is needed only when such informal controls have proved insufficient.

This is why rural and sparsely populated areas are often policed by a single centralized—and often
militarized—police force, even in countries that have a decentralized police system. A single police
organization operating under a unified command is more cost-effective and more operationally
efficient than a bevy of independent small-town police forces. Since the territory to cover may be
very large and characterized by difficult terrain, police in such regions must have the long-range
mobility and adaptability that are characteristic of military forces. In addition, the countryside has
historically been policed by military organizations, as police forces were initially created in urban

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settings. (The great exceptions to this model are the United Kingdom and the United States, which
have long resisted police centralization.)

Policing large societies

In larger and more complex societies, informal institutions of social control are generally weaker,
and, as a result, formal institutions are generally stronger. The relative weakness of informal
controls is attributable to a number of factors. In large societies people often deal with strangers
whom they will never meet again, and in such circumstances there may be fewer informal rewards
for honesty or fewer informal penalties for dishonesty. Such communities tend also to be more
technologically advanced, which leads to the adoption of new laws, such as those regulating the
licensing and operation of automobiles and those concerned with commerce conducted on the
Internet. Because some of these new laws may not have the same moral significance as older laws
criminalizing violence, theft, or fraud, people may feel less of an obligation to obey them.
Moreover, when new laws are created, crime increases almost necessarily. There is thus a danger
that people who are convicted of having violated a new law may feel aggrieved and in the future be
less willing to cooperate with the police or to obey the law when they are not being observed.
Finally, as societies grow, it becomes more difficult for people to place the public interest ahead of
their private interests in circumstances where the two may conflict. An employer who catches an
employee committing an offense within the workplace, for example, may choose not to notify the
police because he fears that the firm’s production, profit, or prestige would suffer if the offense was
publicly exposed.

Police and the state

A country’s political culture helps to determine whether its police forces are organized nationally
or locally. The desire for efficiency lends itself to the establishment of centralized police forces,
which can take advantage of coordination and savings in training, organization, and service
delivery. However, such forces face the problem aptly summarized by the Latin question Quis
custodiet ipsos custodes? (“Who guards the guardians?”). In some democratic countries,
particularly the United States and, to a lesser extent, Great Britain, citizens have traditionally
believed that the existence of a national police force would concentrate too much power in the
hands of its directors. They have believed that local communities could not hold a national police
force accountable for abuses of power, and they have feared that the national government could use
such a police force to keep itself in power illegitimately. For those and other reasons, some
democratic countries favour organizing police forces on a local basis. Decentralization brings the
police closer to the community, and it often succeeds in tailoring policing to the specific needs of a
community. However, a decentralized police apparatus tends to hinder the flow of intelligence
between the various components of the system. Another drawback of a system of accountability to
local government is that the narrow relationship between the police and their political overseers
may facilitate the corruption of both parties.

The need for police accountability is made evident by the great power that police forces wield over
the lives, liberties, safety, and rights of citizens. Governments empower police to compel
individuals to comply with the law; they allow officers to stop, search, detain, cite, and arrest
citizens and to use physical and sometimes deadly force. If police use those powers improperly,
they can abuse the civil rights of the very citizens they are supposed to protect. Thus, it is critical
that police be accountable for their policies and behaviour. In democratic countries, accountability
is ensured mainly by three means. First, police forces are made subordinate to elected
representatives (as in the United States, where mayors or state governors oversee the police, and as

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in Belgium, where a town’s burgomaster is also the chief of police) or to special elected officials
(e.g., the police and crime commissioners of England and Wales). Second, the courts are entrusted
to safeguard the respect of due process by the police. Third, official bodies are appointed to hear
and act upon complaints from citizens against the police.

Law Enforcement Code of Ethics

As a Law enforcement officer, my fundamental duty is to serve humanity, to safeguard life
and property, to protect the innocent against deception, weak against oppression or intimidation,
and the peaceful against violence or disorder; and to respect the Constitutional rights of all men,
liberty, equality and justice.
The Following Oath Need To Be Adhered By A Law Enforcement Officer.
I will keep any private life unsullied as an example to all; maintain courageous calm in the
face of danger; scorn or ridicule; develop self-restraint and be constantly mindful of the welfare of
the others. Honest in thought and deed in both my personal and official life, I will be exemplary in
obeying the laws of the land and regulations of my organization. Whatever I see or hear of a
confidential nature or that is confided to me in my official capacity will be kept ever secret unless
revelation is necessary in the performance of my duty.
I will never act officiously or permit personal feelings, prejudices, animosities or friendship
to influence my decision; with no compromise for crime with relentless prosecution of criminals, I
will enforce the law courteously and appropriately without fear or favor, malice or will, never
employing unnecessary force or violence and never accepting gratuities in return.
I recognize the badge of my office as a symbol of public faith and I accept it as a public
trust to be held so long as I am true to the ethics of police service. I will never engage in acts of
corruption or bribery, nor will I condone such acts by other police officers. I will cooperate with all
legally authorized agencies and their representatives in the pursuit of justice.

I know that I alone is responsible for my own standard of professional performance and will take
every reasonable opportunity to enhance and improve my level of knowledge and competence.

TOPIC 10 THE PROSECUTION

As an elected or appointed official, the prosecutor is the most powerful official in the criminal
justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime,
what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate
prosecutorial resources. In jurisdictions where the death penalty is in force, the prosecutor literally
decides who should live and who should die by virtue of the charging decision.

Criminal justice professors Joseph Senna and Larry Siegel propose the true measure of a
prosecutor. In their view, a litmus test for the integrity of a prosecutor is how he or she answers the
following question: “When you exercise discretion, are you more concerned with fairness, the
likelihood of conviction, or political considerations?”

Prosecutors exercise the most discretion in three areas of decision making: the decision to file
charges, the decision to dismiss charges, and plea bargaining.

Charging

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Once an arrest is made, a prosecutor screens the case to determine if it should be prosecuted or
dropped. The decision to prosecute is based on the following factors:

 The sufficiency of the evidence linking the suspect to the offense.

 The seriousness of the offense.
 The size of the court's caseload.
 The need to conserve prosecutorial resources for more serious cases.
 The availability of alternatives to formal prosecution.
 The defendant's culpability (moral blameworthiness).
 The defendant's criminal record.
 The defendant's willingness to cooperate with the investigation or prosecution of others.

Dropping charges

After a prosecutor files a charge, the prosecutor can reduce the charge in exchange for a guilty plea
or enter a nolle prosequi (nol. pros.). A nolle prosequi is a formal statement by a prosecutor
declaring that a case is discontinued. Reasons for entering a nol. pros. include insufficient
evidence, inadmissible evidence, false accusations, and the trivial nature of some crimes.

Plea bargaining

Prosecutors also exercise discretion in negotiating pleas with defense counsel. A plea bargain is an
agreement in which a prosecutor permits a defendant to plead guilty in exchange for a concession,
such as reducing the charges or recommending a lenient sentence. There are advantages of plea
bargaining to both the accused and the state. For the accused, it offers the possibilities of a reduced
sentence and cheaper legal representation. For the government, it reduces the financial costs of
prosecution, improves the efficiency of the courts by having fewer cases go to full trials, and allows
the prosecution to devote its resources to the more serious cases.

Important Relationships for Prosecutors

To be successful, prosecutors must have the cooperation of the police, judges, victims, and
witnesses. These actors in criminal justice, in turn, depend on prosecutors.
Police

If a prosecutor doesn't have the cooperation of the police, he or she will encounter problems in
investigating and in presenting evidence in court. Police depend on prosecutors almost as much as
prosecutors depend on them. By sending cases back for further investigation and refusing to
approve arrest warrants, prosecutors influence the police.

Police depend on prosecutors to advise them about legal issues in criminal cases and to train police
officers in securing warrants, making legal arrests, and interrogating suspects. This
interdependence creates a unique problem for prosecutors, who sometimes find themselves forced
to either press charges against police officers for brutality or perjury—which will impair
cooperation—or condone or cover up police crime—which is unethical.

Victims and witnesses

Many prosecutors prefer not to press charges if the main victim is unwilling to cooperate.
Prosecutors' willingness to prosecute is sometimes based on their evaluation of a victim's role in the

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victimization and the victim's credibility as a witness. If the victim precipitated the crime through
actions or words, the prosecutor will be less likely to press charges. If the victim has a criminal
record, the prosecutor may not proceed with a case because a jury might not regard an ex‐con as a
credible witness. For their part, victims and witnesses also need prosecutors. Unless the prosecutor
takes a case forward, the victim has no chance to receive restitution or get revenge. In certain types
of cases, such as those involving organized‐crime groups, witnesses need protection in order to stay
alive to testify in court. The U.S. Marshals Service operates the Witness Security Program, which
provides witnesses with new identities and security.

Judges and courts

Prosecutors must try to “read” judges. They need to predict what kind of sentence a judge is likely
to mete out in a certain type of case and whether or not a judge will accept a plea agreement. A
prosecutor might decide to drop a case rather than try it before a judge who the prosecutor knows
will impose a lenient sentence or might opt not to enter into plea negotiations if the judge assigned
to the case can't be counted on to support a plea bargain in court. In the case of the infamous
gangster Al Capone, U.S. Attorney George E.Q. Johnson suffered great professional
embarrassment when a judge nixed a plea agreement under which Capone would plead guilty in
exchange for a short prison sentence.

Prosecutorial Misconduct

Prosecutors wield more power than any other actors in the criminal justice system. They have
unreviewable power to go forward with a case or dismiss charges, to cut a deal with a defendant for
a guilty plea or stand pat, and to recommend a severe sentence or plead for leniency. Unchecked
power is always subject to abuse, and prosecutors sometimes engage in misconduct. Prosecutorial
misconduct weakens the public's perception of the integrity of the legal system and undermines the
ability of the courts to achieve justice.
Politically motivated prosecutions

Given the breadth of criminal law, prosecutors can find reason to prosecute just about anybody if
they have the time, the money, and the motive. Critics of independent counsel Kenneth Starr's
prosecution of President Clinton allege that Starr's primary motive for prosecution related to
matters other than Clinton's alleged perjury. Anthony Lewis, a columnist for the New York Times,
calls Starr's prosecution of Clinton “politics dressed as law.” Lewis claims no other prosecutor in
the United States would have gone forward with a prosecution of a citizen for false testimony about
sex in a civil case. In Lewis's opinion, few citizens have led such unblemished lives as to prevent a
determined prosecutor from finding some basis for an indictment or information.

Suppressing evidence favorable to the defendant

Sometimes prosecutors, in their zeal to obtain a conviction, fail to turn over factual evidence that is
favorable to the defendant when the evidence is material to guilt or punishment. One of the greatest
threats to rational and fair fact‐finding in criminal cases comes from a prosecutor's hiding evidence
that might prove a defendant's innocence. Between 1963, when the U.S. Supreme Court ruled in
Brady v. Maryland that such a practice is a deprivation of due process, and 1999, at least 381
defendants nationally had a homicide conviction thrown out because prosecutors concealed
evidence. Of the 381 defendants, 67 had been sentenced to death. The consequences of such
misconduct when it is discovered can be serious. Convictions are reversed, cases are retried,

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appeals are brought that cost taxpayers millions of dollars, and public confidence in prosecutors is
undermined.

Suborning perjury

When prosecutors knowingly allow the use of perjured testimony, a defendant's right to a fair trial
is violated. The Supreme Court first established this rule in Mooney v. Holoban (1935), in which
the Court said that the deliberate use of perjured testimony by the prosecutor and the deliberate
nondisclosure of evidence that would have impeached such perjury violated the defendant's right to
a fair trial. Ethically, a lawyer can't call a witness who he or she knows is going to lie. To do so is
called suborning perjury. Critics of former Los Angeles district attorney Marcia Clark claim that
she knew that police officer Mark Fuhrman (who said he had found a bloody glove behind O.J.
Simpson's residence) was going to lie on the witness stand about not having used the “N” word.
Clark's decision to call Fuhrman to testify may have lost the Simpson case because it opened the
door for Simpson's defense team to expose Furhrman's perjury to the jury, thereby raising
reasonable doubts in the jurors' minds about the credibility of the testimony of police officers in
this case.

Controlling prosecutorial misconduct

Sanctions for prosecutorial misconduct include appellate reversal of convictions, finding the
prosecutor in contempt of court, referring the prosecutor to a bar association grievance committee,
and removing the prosecutor from office.

In the view of legal analyst Bennett Gershman, prosecutorial misconduct persists because of the
unavailability or inadequacy of penalties visited upon the prosecutor personally in the event of
unethical behavior. Although an appellate court can punish a prosecutor by telling him or her not to
act in the same way again or by reversing a conviction, such sanctions don't hold the prosecutor
personally accountable. During the course of a trial, the prosecutor is absolutely immune from any
civil liability that might arise due to his or her official conduct. Moreover, appellate courts can
affirm a conviction despite the presence of serious prosecutorial misconduct by merely invoking
the harmless error doctrine. Under this doctrine, an appellate court determines that errors were of
such a minor or trivial nature that they didn't harm the defendant's rights

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 TOPIC 11 THE JUDICIARY

THE COURT SYSTEMS

THE STRUCTURE

The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects in
the Structure of Courts are:
i. The structure – The hierarchy or levels of Courts.
ii. Establishment – The composition or who presides in that Court.
iii. Jurisdiction – The powers of different Courts to hear and determine disputes.
Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to
hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or
criminal justice) or Pecuniary (the range of monetary or financial value of subject matter).
The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.

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The arrow on the figure shows the hierarchy of courts in Kenya. There are two levels of courts
Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate
Courts ( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate
Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next. The
arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from
District Magistrate class III which go to Resident Magistrates courts. District Magistrate courts are
situated in all the districts except of District Magistrate Class III which in some sparsely populated
Districts especially North Eastern Province Kenya where their powers have been delegated by the
Chief Justice to the District Officers through notices in the Kenya Gazette. This structure of the
courts is based on the provisions of the Constitution, the Magistrates Court Act (Cap. 10), the
Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.

MAGISTRATE COURT

Article 169 1,a of the constitution of Kenya 2010 creates the Magistrate court. This is where
majority of the judiciaries cases are heard. Magistrate courts are generally located in every district
in Kenya. The presiding judicial officer in Magistrate court could be a Chief Magistrate,
Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principle
Magistrate. Their authorities vary in administrative responsibility and range of fining and
sentencing abilities. The Judicature Act is the statute passed by parliament detailing the varying
powers and jurisdiction of Magistrates and Judges.

COURTS MARTIAL

Article 169 1,c of the constitution of Kenya 2010 creates the Courts Martial. this is the military
court where matters involving members of the Kenya Defense Forces are heard. Appeals from this
court are heard by the High Court.

KHADHI COURT

Article 169 1,b of the Constitution of Kenya 2010 creates the Kadhi court. This is a court that
hears civil matters relating to Islamic law. The parties involved must all be followers of Islam and
all must agree that the matter to be decided under Islamic law. The matter cannot be criminal in
nature. The matter must be civil in nature e.g. Divorce, succession etc. The court is headed by a
Chief Kadhi and parliament is given the authority to enact laws describing the guidelines,
qualification and jurisdiction of this court. Appeals from Kadhi Court are heard by the High Court.

TRIBUNALS

Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial

functions. They supplement ordinary courts in the administration of justice. Tribunals, however,
do not have penal jurisdiction.

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 Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant
to justice and morality or be inconsistent with the Constitution or other laws of the land. Most
tribunals are subject to the supervision of the High Court.

Administration Tribunals in Kenya

They are set up by law to adjudicate disputes that arise out of the statutes creating them. They deal
with the administration and enforcement of the Act concerned.

For example, the Rent Tribunal determines questions arising out of the Administration and Rent
Restriction Act and the Business Rent Tribunal, which deal with con-trolled commercial tenancy.

Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant
to justice and morality or be inconsistent with the Constitution or other laws of the land. Most
tribunals are subject to the supervision of the High Court.
Inquiry Tribunals in Kenya

They are full-scale inquiries dealing with urgent matters of public importance. For example, an
inquiry tribunal may be set up to investigate corruption, mishandling of issues and improper
conduct of public officers.

Domestic Tribunals in Kenya

They are set up by private organisations for administration purpose, settling disputes and
exercising disciplinary control of members, professional group. Jurisdiction is therefore,
contractual and limited by rules or regulations, which comprise the terms of the contract.Other
tribunals include: Energy, Environmental, Teachers Service, Land Dispute, Capital Markets, Water
Appeal and Cooperative, among others.

THE HIGH COURT

Establishment: The High Court is established under Article 165 and it consists of a number of
judges to be prescribed by an Act of Parliament. The Court is organized and administered in the
manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the
judges of the High Court from among themselves.

Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However
there are instances where two or more High Court Judges may be required to determine certain
kinds of cases.

Appointment of Judges: Are appointed by the President in accordance with the advice of Judicial
Service Commission. They are laid down special qualifications required of a person to be eligible
for appointment as a Judge, namely:

He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal
matters in some part of the Commonwealth or in the Republic of Ireland or a court having
jurisdiction in appeals from such a Court or;

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He /she is an Advocate of the High Court of not less than seven years standing or;

He /she holds and has held for a period of or periods amounting in aggregate to not less than seven
years, one or other of the qualifications specified in Section 12 of the Advocates Act.

Jurisdiction:

i. The High Court has unlimited original jurisdiction in criminal and civil matters.
ii. The High Court has jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or threatened.
iii. The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed
under the Constitution or national legislation to consider the removal of a person from
office, other than a tribunal appointed under Article 144.
iv. The High Court has jurisdiction to hear any question respecting the interpretation of this
Constitution including the determination of: the question whether any law is inconsistent
with or in contravention of the Constitution, the question whether anything said to be done
under the authority of the Constitution or of any law is inconsistent with, or in
contravention of the Constitution, any matter relating to constitutional powers of State
organs in respect of county governments and any matter relating to the constitutional
relationship between the levels of government, and a question relating to conflict of laws
under Article 191;any other jurisdiction, original or appellate, conferred on it by
legislation.
v. The High Court does not have jurisdiction in respect of matters reserved for the exclusive
jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction
of the courts contemplated in Article 162 (2).
vi. The High Court has supervisory jurisdiction over the subordinate courts and over any
person, body or authority exercising a judicial or quasi-judicial function, but not over a
superior court. Also being a Superior court of record means that the decisions of the High
Court as precedents, are binding on the subordinate courts by the doctrine of stare decisis.
vii.Although High Court has unlimited original jurisdiction in civil and criminal cases in actual
practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e.
murder and treason whereas in civil cases, it has jurisdiction where the value of the subject matter,
in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence authorized
by law.
viii.In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other
matters, which can only be heard by the High Court. Thus, the High Court enjoys special
powers and jurisdiction in the following matters as conferred to it by the constitution and
other legislations some of which are given hereinafter:-

High Court Special Powers

1. Supervisory Jurisdiction

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The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction in
any civil and criminal proceedings before subordinate courts and may make such orders, issue
such writs and give such directions as may consider appropriate for the purpose of ensuring that
justice is duly administered by such courts. This includes the power of the High Court to transfer
proceedings from one court to the other.
To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other
available remedies and right of appeal. In exercise of its supervisory powers under judicial review,
the high court may issue any of the prerogative orders of:

• Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued
by the High Court to any person or body commanding him or them to perform a public duty
imposed by law or state. The order is available to compel administrative tribunals to do
their duty e.g. to compel a licensing board to issue a license on application of him who has
met the prescribed criteria.
• Certiorari – The term means to “be informed”. This is an Order issued by the High Court
directed at an inferior court body exercising judicial or quasi-judicial functions to have the
records of the proceedings presented to the High Court for the purposes: To Secure an
impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To
correct errors of law on the face of the record. To quash a judicial decision made against
the rules of natural justice. An order of certiorari will be wherever anybody of persons
having legal authority to determine questions affecting the rights and having a duty to act
judicially, acts in excess of their legal authority. It therefore serves to quash what has been
done irregularly.
• Prohibition – This is an order issued by the High Court to prevent an inferior court or
tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in
violation of the rules of natural justice.
• Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive. This
order is issued where the personal liberty of a person is curtailed by arrest and confinement
without legal justification. By issuing this order, the High Court calls upon the person
holding the body to answer by what authority are they continuing to withhold the individual
and with the aims at securing release of such persons held apparently without legal
justification.

2. Interpretation of the constitution

The Constitution provides that where any question as to the interpretation of the constitution arises
in any proceedings in any subordinate court, and the court is of the opinion that the question
involves a substantial question of law, the court may, and shall if any party to the proceedings so
requests, refer the question to the High Court. The High Court shall be composed of an uneven
number of judges, not being less than three when it determines the constitutional question referred
to it. The decision of the High Court is binding on the Court that referred the question to the High
Court and it must dispose of the case in accordance with the High Court’s decision.

3. Admiralty Jurisdiction

Section 4 of the Judicature Act Chapter 8 (1967) provides that the High Court will act as a court of
admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake
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or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity
with international law and the comity of nations”.
4. Election jurisdiction

Under the National Assembly and Presidential Election Act, the High court has special powers to
hear and determine disputes arising from the national electoral process. The High Court may make
an order as it deems fit, including the nullification of the election results upon hearing of a petition
presented to it by a voter or loser in the election.

For the High Court to nullify the election of a Member of Parliament, the petitioner must prove
that an election offence has been committed. The composition of the High court is that one (1)
Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is
presidential election. Any appeal on the High Court decision on Presidential election goes to the
Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the
election of councilors go to subordinate courts.

5. Succession/Probate Jurisdiction

The Probate Division of the High court has jurisdiction to hear any application and determine any
dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters
e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to
administer the property of the deceased.

6. Matrimonial Cases

The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the
High Court may issue orders for:

• Dissolution of marriage.
• Nullity of marriage.
• Separation and maintenance (alimony).
• Custody, adoption and guardianship of infants
• Spousal Property and financial adjustments etc

7. Other powers

• To protect and enforce Fundamental rights and Freedoms of individuals which are set out in
Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
• To hear and determine Bankruptcy proceedings.
• To supervise winding up of dissolved companies.

ENVIRONMENT AND LAND COURT

An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior
court to hear and determine disputes relating to the environment and the use and occupation of,

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and title to, land, and to make provision for its jurisdiction functions and powers, and for
connected purposes

INDUSTRIAL COURT OF KENYA

The Industrial court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya
2010, for the purpose of settling employment and Industrial relations disputes and the furtherance,
securing and maintenance of good employment and labour relations in Kenya. The Industrial
Court is a superior court of record with the status of the High Court and shall and exercise
jurisdiction throughout Kenya.

Jurisdiction

The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes
referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the
Industrial Court Act or any other written Law which extends jurisdiction to the court relating to
employment and Labour relations including:-

a) disputes relating to or arising out of employment between an employer and an employee

b) disputes between an employer and a trade union.
c) disputes between an employer’s organisation and a trade union’s organization,
d) disputes between trade unions,
e) disputes between employer organisations,
f) disputes between an employer’s organisations,
g) disputes between an employer’s organisation and trade union,
h) disputes between a trade union and a member thereof,
i) disputes between an employer’s organisation or a federation and a member thereof,
j) disputes concerning the registration and election of trade union officials, and
k) disputes relating to the registration and enforcement of collective agreements.
In exercise of its jurisdiction, the court shall have power to make any of the following orders:-

i.interim preservation orders including injunctions in cases of urgency ii.a

prohibitory order
iii.an order for specific performance
iv.a declaratory order
v. An award of compensation in any circumstances contemplated under the Industrial
Court Act or any written Law.
vi. An award of damages in any circumstances contemplated under the Industrial Court
Act or any written Law.
vii. An order for reinstatement of any employee within three years of dismissal, subject
to such conditions as the court thinks fit to impose under circumstances
contemplated under any written Law.
viii. Any other appropriate relief as the court may deem fit to grant.
Appellate Jurisdiction The court shall have appellate jurisdiction to hear and determine appeals
from:-
a) Decisions of the Registrar of trade unions, and
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 b) Any other court, local tribunal or commission and prescribed under any Written Law.

Composition of the court

The court shall consist of;

a) The Principal Judge; and

b) Such number of Judges as the President may, acting on the recommendations of the
Judicial Service Commission, appoint

The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2)
of the Constitution.

The Principal Judge shall hold office for a term of not more than five years and shall be eligible
for re-election for one further term of five years.

The Principal Judge shall have supervisory powers over the Court and shall be answerable to the
Chief Justice.

In the absence of the Principal Judge or in the event of a vacancy in the office of the Principle
Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the
powers and functions of the Principal Judge, and who shall be deemed to be the Principle Judge.

THE COURT OF APPEAL

Establishment: The Court of Appeal is established under

Article164 of the Constitution of Kenya 2010.

Composition: The Court of Appeal consists of a number of judges, being not fewer than 12
(twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and
administered in the manner prescribed by an Act of Parliament. The Court comprises of a
President of the Court of Appeal who is elected by the judges of the Court of Appeal from among
themselves. The Court of Appeal Judges retire at the age of 74 years.

Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has
limited original jurisdiction. It was created to hear appeals from the High court.

The only moment the Court Appeal can have original jurisdiction is in punishment for contempt of
court, and when stating execution of orders of the High Court. Procedure: The practice and
procedure of the court of appeal are regulated by the rules of court made by the Rules Committee
constituted under the Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven number
of at least three judges shall sit for the determination of any matter by the court. The decision of
the court shall be according to the opinion of a majority of the judges who sat for the purposes of
determining that matter.

The court has powers to:

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 i. Determine a case finally.
ii. Order for a trial. iii.Order for a re-trial. iv.Frame
issues for the determination of the High Court.
v.Receive additional evidence or order that it be taken by another court.

THE SUPREME COURT

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It
comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court, the Deputy
Chief Justice, who is the deputy to the Chief Justice and the vice-president of the court and five
other judges.

The Supreme Court is properly constituted for purposes of its proceedings when it has a
composition of five judges and has exclusive original jurisdiction to hear and determine disputes
relating to the elections to the office of President arising under Article 140 and subject to clause
(4) and (5) of Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals
from the Court of Appeal and any other court or tribunal as prescribed by national legislation.

Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case
involving the interpretation or application of this Constitution and in any other case in which the
Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is
involved, subject to clause (5).
The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or
overturn it.

The Supreme Court may give an advisory opinion at the request of the national government, any
State organ, or any county government with respect to any matter concerning county government.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

THE ATTORNEY GENERAL

Establishment: This office is established by Article 156 (1) of the constitution. It is an office in
the public service.

Appointment: Under Article 156 (2), the Attorney-General shall be nominated by the President
and, with the approval of the National Assembly, appointed by the President.
Under Article 156 (3) the qualifications for appointment as Attorney-General are the same as for
appointment to the office of Chief Justice, i.e.:
o At least 15 years experience as a superior court judge; or
o At least 15 years' experience as a distinguished academic, judicial officer, legal
practitioner or such experience in other relevant fecal field

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POWERS OF THE ATTORNEY GENERAL

Under Article 156, the Attorney General

a. Is the principal legal adviser to the Government;
b. Shall represent the national government in court or in any other legal proceedings to which
the national government is a party, other than criminal proceedings; and
c. Shall perform any other functions conferred on the office by an Act of Parliament or by the
President.
- The Attorney-General shall have authority, with the leave of the court, to appear as a
friend of the court (amicus curie) in any civil proceedings to which the Government is
not a party.
- He is an ex-officio member of the National Assembly.
- He drafts all government bills.
- He is the head of the bar i.e. most senior lawyer -He represents the state in all civil
cases.
- He services the legal needs of other government department
- He is a member of the Judicial service Commission
- He sits in the Cabinet
- He is a member Of the Committee of the prerogative of mercy
- The Attorney-General shall promote, protect and uphold The rule of law and defend the
public interest.
- The powers of the Attorney-General may be exercised in person or by subordinate
officers acting in accordance with general or special instructions

ADVOCATES

Definition: Under section 2(1) of the interpretation and General Provisions Act Cap 2 and the
Advocates Act 1989 an advocate is any person whose name has been duly entered as an advocate
in the Roll of Advocates.
He has also been defined as a person who has been admitted as an advocate by :Ire Chief Justice.
The law relating to Advocates is contained in the Advocates Act 1989

Qualifications for admission

To qualify for admission as an advocate, one must:
1. Be a citizen of Kenya
2. Hold a law degree from a recognized University
3. Satisfy the Council of Legal Education examination requirements.

Procedure for Admission

1. A formal petition must be made to The chief Justice through the high court register.
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 2. Copies of the petition must be sent to the Council of legal education and the Law society of
Kenya
3. Notice of the petition must be given.
4. The petition must be published in the Kenya Gazette
5. The Chief Justice hears the petition in chambers.
6. The petitioner than takes the oath of office in open court
7. The admitted person then signs the roll of Advocates.

Duties of an Advocate
1. Duty to the court: As an officer of the court, an advocate is bound to assist in the
administration of justice by urging the law as it is.
2. Duly of client: An advocate owes a legal duty of care to his clients. He must urge his client's
case in the best manner possible.
3. Duty to his profession: As a member of a profession, an advocate is bound to maintain the
highest possible standards of conduct, integrity by observing the law and other rules.
4. Duty to society: As a member of the society, he is bound to assisting its social, political and
economic development.

TOPIC 12 INTRODUCTION TO CORRECTIONS

Correctional Administration
Meaning and Objectives

Punishment and rehabilitation are, generally speaking, two main objectives of

correctional administration. However, objectives shift from time to time depending on
public opinion and the type of political leadership. In modern times generally
rehabilitation seems to gain more attention, though this varies from country to country.
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 From the legal point of view, there are different objectives of punishment. These include
revenge or retribution, deterrence (specific and general) and rehabilitation or reformation.
In Kenya, though retribution and deterrence dominated penal philosophy, already, to some
extent, the Fetha Negest had gone a little beyond the elements of retribution by partially
individualizing punishment to the individual guilt of the offender. But it had retained
retribution to a large extent by prescribing rather crude punishments. The provisions of the
Penal Code of 1930 further individualized punishment by ―relating it to the objective
factors of intent, motive and personal status‖. Still the elements of reform of the criminal
were missing in the code of 1930.

The emphasis on retribution started changing very gradually. Even the 1930 Code had
shown concern for the welfare of the injured parties. This could be observed from the
provisions of Article 18. The Revised Constitution which was issued in 1955, further de-
emphasized retribution. Article 37 of the Constitution stated that ―no one shall be denied
the equal protection of the laws‖. This made it clear that all people are to be treated equally
by the law. Article 54 of the Constitution also provided that no one shall be punished
without due process of the law. Punishment follows only after a person has been duly
proved to have committed an act against the law. Even when one has been proved to have
committed an act against the law, the Constitution, under Article 57, provided that ―no
one shall be subjected to cruel and inhuman punishment‖ (Andargatchew, 1976a: 411).

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 The Kenyan penal philosophy is based on the above constitutional provisions. The
objectives of penal law are clearly stated in the first article of the Penal Code of 1957
which article tried to remove the elements of uncertainty as to the objectives of the penal
law. It does not leave any doubt as to whether the philosophy behind penal law is
punitive or reformative. It clearly indicates that the law has to protect society and also
punish and reform those members of society that may fail to respect the provisions. The
provisions of the Penal Code are generally inspired by the principle that ―reformative
justice‖ is preferable to ―punitive justice. This means that except where the purpose of
law cannot be achieved other than by the use of steps such as incarceration, capital
punishment, and flogging, the rule that guides the application of the Code should be the
general concern for the prevention and suppression of crime without disregard for the
welfare and rehabilitation of the individual accused of crime.

Punishment can deter wrongdoers from committing other crimes; it can also serve as a
warning to prospective wrongdoers. Although imprisonment and death are enforced in
respect of certain crimes the main objective is temporarily or permanently to prevent
wrongdoers from committing further crimes against society. And in such cases with the
exception of the death sentence even criminals sentenced to life imprisonment can be
released on parole before serving the whole term. In certain instances convicts can be
released on probation without enforcement of the sentence pronounced. This helps
wrongdoers to lead a peaceful life and it indicates the major place which the Criminal
Law has allocated for their rehabilitation. The fact that wrongdoers, instead of being
made to suffer while in prison, take vocational training and participate in academic
education, which would benefit them upon their release, reaffirms the great concern
envisaged by the Criminal Code about the reform of criminals. These express provisions
in the new Code are included with intention that the Courts should, on passing sentence,
take into account the purpose of the Criminal Law and the different aims of punishment.

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 Further the new criminal code has done away with flogging as punishment and public
hanging of criminals complying with the Constitutional mandate on prohibition of cruel,
inhuman degrading penalties and treatment of criminals.

 Correctional theory

The basic use of sanctions, which can be either positive (rewarding) or negative
(punishment), is the basis of all criminal theory, along with the main goals of social
control, and deterrence of deviant behavior.

Many facilities operating in the United States adhere to particular correctional theories.
Although often heavily modified, these theories determine the nature of the facilities'
design and security operations. The two primary theories used today are the more
traditional Remote Supervision and the more contemporary Direct Supervision Models.
The Remote Supervision Model (RSM) consists of an officer(s) observing the inmate
population from a remote position, e.g., a tower or secure desk area. The Direct
Supervision Model (DSM) positions the Corrections Officer within the inmate
population, creating a more pronounced presence. The following are the important types
of correctional administrations:

Institutional Treatment of offenders

1. Treatment of Adult Offenders

Gradually societies resorted to treatment. But the conflict between the punitive and
treatment reactions of society, as pointed out by Edwin Sutherland, continued to be
unabated. There are those who argue that, despite the shift to the treatment approach,
crime is on the increase. Actually since there is no evidence to support this view, one can
as well argue that crime rates are high because of the survival of the punitive reaction.
Though the arguments against the treatment approach are mere reactions to perpetuate the
justifications of punishment prior to the emergence of the treatment, in present day
societies both the punitive reactions and treatment reactions are used side by side.
Therefore, correctional procedures and programs are neither exclusively punitive nor
exclusively treatment. But variations exist from society to society (Sutherland, 1960:
314-17).

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 Prisons

Meaning and Definition of the Term „Prison‟ A prison penitentiary, correctional facility is
a place in which individuals are physically confined or interned and usually deprived of a range
of personal freedoms. Prisons are conventionally institutions, which form part of the criminal
justice system of a

The word prison can be traced back to the Latin word prēnsiō, ―the action or power of
making an arrest.‖ This in turn is derived from the verb prehendere or prēndere, which
meant ―to take hold of, take into custody, arrest.‖ Prēnsiō then surfaces in the Old
French of the 12th century with the form prison and the senses ―capture‖ and ―place of
imprisonment.‖ This new sense could have already been developed in Latin and not been
recorded, but we have to wait until the 12th century to see it, the sense ―captivity‖ being
added in the same century. From Old French as well as the Medieval Latin word priso,
―prison,‖ derived from Old French, came our Middle English word prisoun, first
recorded in a work written before 1121 in the sense ―imprisonment.‖ The sense ―place
of imprisonment‖ is recorded shortly afterward in a text copied down before 1225 but
perhaps actually written in the Old English period before the Norman Conquest.

In popular parlance of many countries, the term jail (gaol) is considered synonymous
with prison, although legally these are often distinct institutions: typically jails are
intended to hold persons awaiting trials or serving sentences of less than one year,
whereas prisons host prisoners serving longer sentences.
A criminal suspect who has been charged with or is likely to be charged with a criminal
offense may be held on remand in prison if he or she is denied, refused or unable to
meet conditions of bail, or is unable to post bail. This may also occur where the court
determines that the suspect is at risk of absconding before the trial, or is otherwise a
risk to society. A criminal defendant may also be held in prison while awaiting trial or a
trial verdict. If found guilty a defendant will be convicted and may receive a custodial
sentence requiring imprisonment.

Prisons may also be used as a tool of political repression to detain political prisoners,
prisoners of conscience, and "enemies of the state", particularly by authoritarian
regimes. In times of war or conflict, prisoners of war may also be detained in prisons. A
prison system is the organizational arrangement of the provision and operation of
prisons, and depending on their nature, may invoke a corrections system. Although
people have been imprisoned throughout history, they have also regularly been able to
perform prison escapes.

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  History of Prisons most of history, imprisoning has not been a punishment in
itself, but rather a way to confine criminals until corporal or capital punishment
was administered. There were prisons used for detention in Jerusalem in Old
Testament times. Dungeons were used to hold prisoners; those who were not killed
or left to die there often became galley slaves or faced penal transportations. In
other cases debtors were often thrown into debtor's prisons, until they paid their
jailers enough money in exchange for a limited degree of freedom.

Only in the 19th century, beginning in Britain, did prisons as we know them today
become common place. The modern prison system was born in London, as a result of
the views of Jeremy Bentham. The notion of prisoners being incarcerated as part of their
punishment, and not simply as a holding state till trial or hanging, was at the time
revolutionary.
The first "modern" prisons of the early 19th Century were sometimes known by the term
"penitentiary" (a term still used by some prisons in the USA today): as the name
suggests, the goal of these facilities was that of penance by the prisoners, through a
regimen of strict disciplines, silent reflections, and perhaps forced and deliberately
pointless labor on tread wheels and the like. This "Auburn system" of prisoner
management was often reinforced by elaborate prison architectures, such as the separate
system and the panopticon. It was not until the late 19th Century that rehabilitation
through education and skilled labor became the standard goal of prisons.
 Types of Prisons: (Refer to Art. 110 of the Criminal Code of FDRE of 2005)

 Juvenile Facility: Prisons for juveniles (people under 18) are known as young
offender‘s institutes and hold minors who have been convicted, many countries
have their own age of criminal responsibility in which children are deemed legally
responsible for their actions for a crime.
 Military Prison: Prisons form part of military systems, and are used variously to
house prisoners of war, unlawful combatants, those whose freedom is deemed a
national security risk by military or civilian authorities, and members of the
military found guilty of a serious crime.

 Political Prison: Certain countries maintain or have in the past had a system of
political prisons; arguably the gulags associated with Stalinism are best known.
The definition of what is and is not a political crime and a political prison is, of
course, highly controversial.

 Psychiatric Facility: Some psychiatric facilities have characteristics of prisons,

especially when confining patients who have committed a crime and are

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 considered dangerous. In addition, many prisons have psychiatric units dedicated
to housing offenders diagnosed with a wide variety of mental disorders.

Treatment of Young Offenders:

Juvenile Treatment Institutions

Generally speaking the following types of juvenile facilities are in use in different
countries of the world for the treatment of the juvenile offenders:

 Observation Homes:

The juveniles who need only a short -term custody during inquiry or trial are kept in an
Observation Home. This institution is also used for the custody of under trial children and
juveniles in conflict with law about whom inquiry is pending are who awaiting trial or
removal to an appropriate home or Borstal.

There are Children‘s Homes for the treatment of neglected children for whom a short-
term regulatory protective care is necessary but a long term residential training is not
necessary. This reform, however, not resolved the contradictory approaches of welfare
and punishment which still persist. The emphasis in this institution is on strict discipline
rather than constructive training. The system has, however, been subjected to severe
criticism in Britain due to enormous increase in juvenile crimes in recent years.

Observation Homes serve as temporary holding facilities for juveniles who were arrested
by the police or found to be living in neglect. Juveniles ―in conflict with the law‖ remain
there awaiting trial. Children ―in need of care and protection‖ stay there pending the
completion of a government investigation aiming to track down their parents and
collecting information on their family background. If the parents turn out to be dead,
untraceable, unfit, or simply unwilling to take the child back, the Juvenile Welfare Board
arranges for the child‘s placement in a Juvenile Home, where the government is
responsible for providing room, board, education, and vocational training. While it
distinguishes juveniles ―in conflict with the law‖ from those ―in need of care and
protection,‖ the law effectively criminalizes both by putting them under the jurisdiction of
the criminal justice system. The two groups are generally housed together in Observation
Home for months on end: adolescents who have committed serious offenses are kept
together with children — mostly much younger — whose only crime is that of being
neglected. In practice, there is no difference in the nature of their detention. The law
simply prescribes the confinement of both as the only means by which they can be
rehabilitated. In addition to attending to the children‘s primary needs, the observation
homes also provide with the materials and the personnel necessary to entertaining the
boys and allowing them spend their time in a constructive way.

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  Special Homes:

The special Homes are established for the custody of the delinquent juveniles. Basic
amenities such as accommodation, medical care, educational and vocational training
are available to delinquent juveniles in these homes.
 Certified Schools:

The certified schools are the modified form of the nineteenth century reformatories are
Industrial schools for homeless, destitute and delinquent children. These schools are run
with the purpose of catering to the needs of delinquent children of different age, sex and
religion. The purpose of this approved School is to provide training to those juveniles
who are unfit for release on probation. The Schools are open-institutions‘ where young
offenders are educated and trained for normal living. The duration of stay and training in
a Certified School varies according to inmate‘s requirement depending on the discretion
of the School Administrator. This normally ranges from a minimum of six months to a
maximum of three years. In practice majority of inmates are released much earlier.

Certified Schools are warranted criticism from several quarters. Some people criticize the
working of these institutions on the ground that they are far more comfortable than the
homes of the delinquents. But it must not be forgotten that the loss of liberty these
institutions is in itself a heavy punishment. On the whole, more than two-thirds of the
inmates return to normal life after their release from the institutions. These Schools
provide training facilities for inmates to make them proficient in different trade so that
they can engage themselves in some useful occupation.

 Correctional Institutions/Reformatories:

Reformatory is a term that has had varied meanings within the penal system, depending
on the jurisdiction and the era. It may refer to a youth detention center, or an adult
correctional facility. The term is still in popular use for adult facilities throughout the
United States, although most reformatories have been renamed correctional centers (or
similar) in recent years. The term reformatory (or reformatory school) was also
commonly used during the 19th century throughout the United Kingdom in reference to
penal facilities for children under the age of 14.

 Borstal Schools:

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 A ‗Borstal‘ is yet another correctional institution for the long term treatment of juvenile
offenders. The term ―Borstal‖ owes its origin to Borstal Village in England where
Rochester Prison was first converted into a reformatory for boys in 1902. The prevention
of Crime Act, 1908 expressly prohibited the lodging of young delinquents between 16
and 21 years in ordinary prisons and directed that they should instead be sent to the
Borstal. It was due to strenuous efforts of Sir. Alexander Paterson that a few more
Borstals were opened in England in subsequent years.

Borstal training is exclusively meant for adolescents between the age group of 15 and 21.
Only such offenders who are found guilty of offences punishable with imprisonment may
be sent to Borstal Institution for training. The maximum period is now two years and
release is possible only after the expiry of six months. After release the offender remains
subject to supervision and recall for next two years form the date of his release. Before
recommending a delinquent for Borstal training, his suitability and physical as well as
mental fitness is thoroughly examined.

Though booking to a Borstal provides for an effective deterrent to the potential offender,
it is certainly not a prison. Borstals are usually open institutions having no walls, no bars
and no closed cells. There are, however, a few closed Borstals also which are meant for
the treatment and training hardened offenders.

Borstal institutions prepare the offender for normal life in society by providing him
facilities for industrial training and disciplined life. It is an institution meant for salvation
of young offenders under State tutelage. Adequate facilities for work, education and
recreation are available to inmates in every Borstal and possible efforts are made to make
the place homely. Borstals provide for a phased training program to inmates. When the
inmate reaches the final stage of training he is allowed sufficient liberty to move in the
society.
The Prisons and the African Experience:

The criminal justice system…the police, the courts and prisons, in he formal connotation we
know them today were introduced into Sub-Saharan Africa by colonialist or were adopted as a
result of European influence over the past one and half century or so.
Otherwise prisons were alien to the cultural practices of African as far as the administration of
justice was concerned. Elders, in accordance with customary law, dealt with offenders.
Traditional sanction such as the payment of compensation or blood money by the offender to the
victim was customary in many of the African countries. For instance, as recorded by Jomo
Kenyata, on the basis of Kikuyu law ―Nine sheep or goats had to be paid for adultery or rape
and one hundred sheep or ten cows for homicide, and that this rate did not vary with the wealth
or age of the victim, nor with the intention or motive of the killer‖ (Read, 1969: 104). Similarly
in Kenya certain tribal groups paid what they called ―gumma” or blood money to the aggrieved

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individual or clam without ever referring the offender to the courts, until the government,
through the promulgation of the 1957 Penal Code declared all offences to be crimes against the
state and the practice was declared illegal. African customary law, according to T.O. Elias, never
recognized and even considered prisons as wasteful:

The payment of compensation, blood- money, by the offender to the offended was customary in
many cases, even in the unlawful killing of human being. The reason for this is partly to be found
in the social policy of the African peoples, which centers around the land and its produce in the
largely agricultural communities on the continent. (Elias, 27:18, 1969)

Once the prison system was introduced into Africa, its use gradually became widespread and
major reliance was placed on it, in the attempt to control and prevent crime. Imprisonment grew
steadily in the century as the major method of punishment of hardened criminals. Urbanization
and the various aspects of socio-economic change that have been taking place in the continent
weakened traditional sanctions. The alien criminal justice system which was never adapted to
local conditions was more retaliatory rather than conciliatory. As a result, courts imposed
excessively severe sentences, which overcrowded prisons. More and more reliance was made
upon imprisonment to fight the increasing rate of crime. This led to the expansion of the police
and the judicial system which in turn led to the arrests of more and more offenders making the
expansion inevitable (see Clinard and Abbot, 1973: 231-37; Read, 1969: 128).

Though the prison system was a foreign import and to some extent an imposition of colonialism,
it still remains to be the major method of handling criminals in Sub-Saharan

Africa. After independence many of the African countries had the intention of either a abolishing
or, at least, changing the feature of prisons because of their repressive nature which were
considered an affront to human dignity. Particularly, those African leaders, who themselves had
suffered imprisonment in the process of their fight for independence, were bent on doing
something after independences. But realities were different than intentions and prisons still
persist even in much more uglier states.

Parole and probation have been tried by different countries and have been proved to serve best
alternatives for the imprisonment to bring back the criminal to the society as a law abiding
citizen. These strategies seem to appeal to his mind persuasively as he gets a lenient and
compassionate treatment from the law enforcement system.

1. Parole System:

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Parole may have different meanings depending on the field and judiciary system. All of the
meanings originated from the French parole, meaning "(spoken) word." Following its use in late-
medieval Anglo-French chivalric practice, the term became associated with the release of
prisoners based on prisoners giving their word of honor to abide by certain restrictions. Before
being granted the privilege of parole, the inmate must first agree to abide by the conditions of
parole set by the paroling authority. These conditions usually require the parolee to meet
regularly with his or her parole officer or community corrections agent, who assesses the
behavior and adjustment of the parolee and determines whether the parolee is violating any of his
or her terms of release (typically these include being at home during certain hours, maintaining
steady employment, not absconding, refraining from illicit drug use and sometimes, abstaining
from alcohol). In some cases, a parolee may be discharged from parole before the time called for
in the original sentence if it is determined that the parole restrictions are no longer necessary for
the protection of society (this most frequently occurs when elderly parolees are involved).

Probation:

Probation is the suspension of all or part of a jail sentence; the criminal who is "on probation"
has been convicted of a crime, but instead of serving jail time, has been found by the Court to be
amenable to probation and will be returned to the community for a period in which they will
have to abide to certain conditions set forth by the Court under the supervision of a probation
officer; or has served part of the sentence but has been released before its end. General
conditions may include maintaining employment, abiding to a curfew, living where directed,
abstaining from unlawful behavior, following the probation officer's orders, not absconding, and
refraining from contact with other individuals, who may include victims of the original crime
(such as a former partner in a domestic violence case), potential victims of similar crimes (such
as minors when the crime involves child sexual abuse), potential witnesses, or those who have
partnered with the offender in the earlier crime. In some cases the offender on probation is fitted
with an electronic tag which signals his or her whereabouts to officials.
Prisoners may be released on parole before the end of their sentence, and are normally on
probation until the end of the sentence.

Probation Violations:

A probation officer may at his discretion issue a probationer a warning, or order him to appear
before a court for a probation violation hearing. At the hearing, the probation officer will
typically request additional punishment, usually involving incarceration. A prisoner released on
parole may have parole revoked, and be recalled to prison. There is no "hard and fast" rule for
what type of violation will result in a hearing. One violation that is almost always considered
serious is failure to appear for scheduled meetings with the probation officer. Being found in

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possession of illegal drugs, or being arrested for another crime, is likely to result in a hearing.
How seriously the violation is regarded may depend upon the facts of the original offense – for
example, if a person has been convicted of a gang-related offense, "association with known
criminals" may be viewed as a more serious violation than if the person were on probation for
driving a car with a suspended license.

Community-Based Rehabilitation:

Community-based corrections are a general term that refers to various types of non-institutional
correctional programs for criminal offenders. These include, among others, such options as
diversion, pretrial release, probation, restitution and community services, temporary release,
halfway houses, furlough, and parole. These are considered useful in dealing with offenders in
the community.

Many criminologists argue that courts are too harsh on non-violent offenders, and usually a large
majority of offenders that serve time in prisons are non-violent. Haas and Alpert argued:

There are three factors that are usually cited in favor of community-based corrections.
Community supervision is considered to be cheaper than incarceration. However, costs vary
from country to country. But there is a claim that prison is three to ten times more expensive than
community supervision. Secondly, if we are to measure rehabilitation by the rate of recidivism,
prison is no more effective than community supervision. Thirdly, incarceration is more harmful
to both the individual and the society. Besides, there is the suffering of family members,
particularly that of the children of women offenders (Cole, 1986: 578).

Objectives of Community-Based Rehabilitation:

1. Reintegration:

The types of correctional options mentioned above try to sanction and control criminals without
confining them. This will allow offenders to maintain existing contacts and establish new ones in
the community. This objective is known as reintegration. The meaning of reintegration was
cogently summarized, by the 1967 US President's Commission on Law Enforcement and
Administration of Justice.

Reintegration is based on the assumption that crime and delinquency are the consequences of
community disorganization as well as the psychological and behavioral problems of the
offenders. The community's failures are considered to have deprived "offenders of contact with
the institutions that are, basically responsible for assuring development of law abiding contact:
sound family life, good schools, employment, recreational opportunities, and desirable

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companions". The psychological problems that are often manifested by offenders are viewed to
be, at least partially, the influence of the environment in which offenders live.

2. Community Protection:

Another objective of community-based corrections is community protection. Even though

reintegration is the main feature of community based correctional programs, there are other
objectives. The control of offenders, while they remain in the community is an important
objective aimed at protecting the society from further harm. Various control mechanisms may be
applied to impose prescriptive and proscriptive restrictions on the offender's behavior.
Conditions like curfews or demands that the offender attend school, secure a job, avoid substance
abuse and contact with undesirable characters engaged in illegal activities can be imposed.
Sometimes offenders may be required to stay in supervised environment, such as a halfway
house or a diversion center where daily movements are structured.

Enforcing such conditions is not simple. It requires daily visits to the offender at his work place
and at home. It may require regular contacts with family members, employers and other relevant
associates. In this way it is possible to deter the offender sufficiently enough to protect the
community from any risk, though it may not be as much an incapacitation, as a prison
commitment may provide with all its dehumanizing effects. In fact ''prisons should be repudiated
as useless for any purpose other than locking away persons who are too dangerous to be allowed
at large in a free society” (cited by Haas and Alpert, 1991: 373).

3. Intermediate Punishment:

Intermediate punishment is another objective of community-based corrections. Intermediate

punishments are ‗alternatives to traditional probation or incarceration. In the continuum of
sanctions, which range from probation to incarceration, selected community-based programs
such as intensive supervision, house arrest, electronic monitoring, and boot camps provide mid-
range dispositions that better reflect the severity of the offence than prison or probation alone.
While many offenders require reiterative efforts to facilitate a law-abiding way of life, and many
persons cannot be safely released to the community without supervision, many offenders deserve
a punishment that is less harsh than prison but more severe than a fine or minimum supervision
probation‖ (McCarthy and McCarthy, 1991: 4).

Probation and parole have traditionally been considered to comprise correction at the community
level. They are still the backbone of community-based corrections. However, recent
developments have come up with new additional developments constituting community-based
corrections. But the central theme is to provide services within a setting of community
involvement. This is carried out without a person experiencing incarceration or as a supplement

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to or following a period of incarceration. Thus, community-based corrections are those activities
that involve the community in the efforts to reintegrate offenders. The mere fact that a
community-based program is going on within the community does not make the program
community-based (Snarr, 1992: 224).

Intermediate punishments are also used as alternatives to revocation for probationers and
parolees who run into difficulties. It is possible to send to prison probation or parole violators.
But it is often not desirable to do so. For instance, a probationer who has been obeying the law,
and is sticking to a job, but fails to refrain from substance abuse should not be sent to prison,
since many aspects of his life are working for him (McCarthy and McCarthy, 1991: 4).

4. Cost-Effectiveness:

Cost-Effectiveness is one of the reasons why community-based corrections are considered to be

a betteralternative to imprisonment. The problem of prison overcrowding is almost a worldwide
problem. Therefore, before ever thinking to build new prisons, it may be wise to consider
community-based corrections as an alternative.

Increased construction of prisons would inevitably lead to more accelerated rate of Incarceration
with no recognizable impact (McCarthy and McCarthy, 1991: 6).
There are potential conflicts among community-based correctional programs. Current practices,
including probation and parole, particularly if one ignores probation and parole violations, are
less costly than intermediate punishments. Reintegration requires genuine efforts to assist
offenders, "a carefully calculated strategy that involves much more than control of offenders".
The following passage from Cox and Wade (1989) illustrates the conflict, referred to earlier,
regarding community-based corrections:

Despite such criticisms of community-based corrections, efforts have grown, over the years, to
develop community-based treatment and correctional programs for offenders, in many of the
developed countries like the Scandinavian countries, particularly Denmark, and Japan have opted
for alternatives to incarceration. Even the American Bureau of Prisons, a strong defender of the
prison system, has started to implement community-based corrections and has this to say:

We in corrections know that offenders can change-can be reintegrated in to the community-if

provided the necessary assistance, support and supervision. The focus of this effort is, of course,
the community-based programs. We must continue and expand these programs and develop new
ones of promise… (As cited by Richard Quinney, 1979:370).

Types of Community-Based Corrections:

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There are various types of community-based corrections. But we can have an understanding of a
few of the major types.

1. Diversion:

Vetter and Silverman defined diversion as "The removal of an offender from the criminal justice
system by channeling him/her into a social casework, mental health, or other type of agency. The
term has also been used to describe the handling of juveniles in a system separate from the adult
criminal justice system and sentencing of offenders to community based correctional facilities
rather than to prison" (1986: 572).

Thus, diversion implies the formal removing or suspending of criminal proceedings against
criminals who have violated the criminal law, in favor of processing them through non-criminal
disposition or means. It is a pre-adjudication disposition (Inciardi, 1987: 625).

Inciardi claims that diversion is not a new practice. It is believed to have existed, in an informal
fashion, for thousands of years. For instance, a police officer removes a public drunk to an
institutional shelter; a prosecutor may decide to nolle prosequi a petty theft; a magistrate may
release after admonishing an individual who assaulted a neighbor; etc. "These are discretionary
decisions, undertaken at random and off the record, and they tend to be personalized, standard
less, and inconsistent. ... (Besides) they serve only to remove offenders from the application of
criminal penalties with no attempt to provide appropriate jurisprudential alternatives".

The unsystematic approach in the use of diversion continued for some time. However, a system
of formalized diversion, imposing social-therapeutic programs in place of conviction and
punishment, in which the offender was placed under the supervision of community agencies, was
introduced later on. A Chicago Boy's Court first introduced it, in 1914. This is how one of the
judges summarized the advantages of the program:

As arguments in favor of diversion increased, it continued to evolve. It was believed that its use
would reduce Court backlog, it would allow early intervention before the development of full-
fledged criminal careers, it reduces the costs of criminal processing, and it reinforces the
offender's chances for community reintegration. Besides, it had been acknowledged that the
criminal justice system was promoting the very opposite of what it was expected to achieve. It
had failed to protect society. McBride summarized the failure:

2. Restitution:

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Restitution is an ancient principle: "If anyone sins and commits a breach of faith... through
robbery... he shall restore it in full, and shall add a fifth to it, and give it to whom it belongs"
(Leviticus 6). According to the laws of Hammurabi, 2100 BC, "if a man has stolen an ox...if (it
belongs) to a god (or) a palace, he shall pay thirty fold; if of a villain...ten fold. If the thief has
not the means of payment, he shall be put to death." (McCarthy and McCarthy, 1991: 137).

Restitution is "compensation for injury one has inflicted, in the form of either a payment of
money to the victim or the performance of service to the community" (Cole, 1986:

657). There are various rationales for restitution as Gilbert Geis presented them:

1. While fines go directly to courts or government treasuries, monetary restitution goes to

the victims of crime, compensating them for injuries, time lost from the work and other losses.

2. It compels the offender to accept personal responsibility for his/her crime.

3. It is likely to reconcile victims and offenders.

4. It can be carried out along with a probation program without an additional program and
expenditure. In fact it is carried out as one of the conditions of probation.

5. It provides a chance for including the victim in the administration of justice. (Inciardi,
1987:637)

There are also those who claim that restitution might improve crime reporting if victims were
convinced that they would be repaid for what they lost. Restitution, by easing public hostility
towards the offender, might reduce the isolation of the offender from the society, thus facilitating
his/her reintegration. Restitution would minimize the burden on the taxpayer (Conklin, 1995:
432).

Despite the advantages cited above there are criticisms against restitution. It is suggested that
restitution can be a punitive sanction rather than a rehabilitative one because it imposes an
additional burden on offenders that they might not ordinarily have. Even more seriously, it has
the potential for nullifying any deterrent effect of punishment by allowing criminals to "write a
check" and "pay a fee" for their offences. In addition, it is argued that restitution serves the
interests of those who are financially better of, thus baring the option for those who are indigent.
Though the latter argument may have some truth, there are alternatives that make restitution
available to offenders at all socio-economic levels. For instance, juvenile vandals can work to
repair the damage caused, drunken drivers can work in alcohol detoxification centers, other
offenders can work in hospitals, nursing homes etc. (Inciardi, 1987: 637).

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Restitution is used in most cases for economic offences. The goods or money taken from victims
and the damages done to their property can be restored through financial payment. Restitution
can be used in cases of violence, but there is difficulty of putting price tags on physical injury,
and psychological trauma, thus, it is difficult putting limits to the use of restitution in such cases.
However, community service can be utilized for all types of offences (McCarthy and McCarthy,
1991: 138).

Though restitution is not yet accepted by the criminal justice system, it is being used widely in
many of the developed countries. The factors for its wide application are the growing need for
the recognition to respond to the losses suffered by victims, the need to make offenders more
accountable for their crimes, and the need to provide effective alternatives to the use of
overcrowded prisons.

3. Temporary Release Programs:

Temporary release programs are the means of preparing inmates for eventual release from
institutions and return them to the community by releasing them for specific period of time. The
release may be of different nature depending on what the inmate wants to do during the release.
The most common types of contemporary release are work release, study release, and furlough.
During the release period the inmates may work, attend school, visit with family or make other
preparations for final release (ibid., 166).

4. Work Release:

Work release is known under various names. Inciardi described work release as follows: …work
release is an alternative to total incarceration whereby inmates are permitted to work for pay in
the free community but must spend their nonworking hours back in the institution.

Work release is not a recent innovation. It was initiated …in 1913 [in Wisconsin, USA].
However, the idea has been only slowly accepted, and it was not until the early 1970s that work
release became a widespread correctional practice for felony (serious offences) offenders
(Inciardi, 1987: 661).

McCarthy and McCarthy also corroborated Inciardi's description and made it a little more
specific (1991:166-67):

…Regardless of the specific term employed, any program that provide for the following
conditions may be defined as work release:

1. The labor of prison or jail inmates in the community,

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2. Under conditions of relaxed supervision, and

3. For which inmates are paid prevailing free-world wages.

While at work, however, they work under conditions similar (and many times identical) to those
of free persons. They must meet the same job requirements set for the employees, and they work
with and are supervised by civilians.

In most cases inmates are paid directly by their employers, but they are required to turn their
paychecks to the institutional administration. The administration will make deductions of 5 to 10
per cent to reimburse the state for room and board. Payment may also be made to cover cost of
maintenance of the family of the inmate or any debts he/she may owe etc. Whatever remains is
deposited in a savings account in the name of the inmate to be withdrawn at the time of release.
However, the inmate can withdraw a certain amount during incarceration.

The types and locations of institutions are likely to have some influence on work release
programs. Institutions located in and around urban areas are likely to have wider access to a
variety of employment opportunities. A rural setting, apart from restricted job opportunities, may
make it difficult for inmates to mix unnoticed into the local labour force of a tightly knit
community.

Work release participants have to be carefully selected. They have to be screened and
interviewed to make sure that the right types of inmates are selected. The necessary checks are
made to determine that they are not disqualified because they are:

• more than six months from release;

• an escape risk;

• charged with other serious offences;

Further, precautions to be taken are to check whether they have other jurisdictional detainer, or
have physical or emotional problems making them incapable of performing in the program; or
were revoked from the program in the past (Snarr, 1992:237).

Some countries have been using work release for some time now. For instance, in the United
States, as of June 30, 1988 out of total inmates of slightly more than 500,000 almost 15,000 state
inmates were on work release. This is about three per cent.

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However, despite such uses, there is some opposition to the use of work release. One of the
grounds for opposition is that prisoners take away jobs from law-abiding citizens. It is also
argued that releases have been exploited because some employers believed convicts should not
be paid at normal wage levels. Besides, prison-based training has not always been accepted for
modem employment markets (Inciardi, 1987: 662).

5. Furlough:

Furlough is defined by Inciardi as "an authorized, unescorted absence from prison for work or
study, visiting with one's family, or for some other reason deemed rehabilitative by correctional
authorities, for a specified period of time".

Furloughs are usually allowed, at regular intervals, for 24 to 72 hours. However, the duration and
frequency for furlough will depend on statutes, administrative regulations, inmate's custody
status and the individual's needs. Usually all overnight furloughs are to the inmate's home or to
that of a family member (McCarthy and McCarthy, 1991: 170). The grant of furloughs may be
basing on reasons including some or all of the following:

• To maintain or re-establish family ties;

• To solve family problems;

• To prepare for final release, to attend employment interviews, to search for housing, to
obtain a driver's license etc.;

• To attend a short-term educational, or vocational program;

• To attend a special event in the community (e.g. to speak to a civic or student group)

There are some problems that make release on furlough difficult, if not impossible. Inmates
released on furlough face transportation problems since, in most cases, they have to make their
own arrangements. Even more serious is the problem faced by inmates that do not have families
to visit on furlough. Occasionally volunteers or charitable organizations are permitted to provide
housing for inmates on furlough. Though there are no statistics, furloughs are used in many
countries because they are considered to allow inmates to "wet their feet before plunging into the
main stream of society" (McCarthy 170-71).

In most cases, furlough release is granted to selected inmates that are not security risks. Although
limited, furlough release provides additional avenue for incarcerated individuals to maintain

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relationships to minimize some of the controversial issues that surround issues regarding
conjugal visits (Snarr, 1992: 147).
Essentials of an Ideal Penal System:

By way of generalization, it may be stated that efficacy of a penal system is to be assessed in the
light of its impact on society in general and the criminal in particular. Punishment of offenders
though necessarily arduous, is inevitable in the interest of the community at large; therefore,
every civilized nation must have a definite penal program. An ideal penal system must
essentially include the following characteristics:

1. A rational penal policy should aim at protecting the society from crimes and reclaim
criminals by removing imperfections in the penal law of the country. Greater emphasis should be
on prevention rather than cure. Necessary steps should be taken to ensure that people do not get
opportunity to commit crime rather than trying to reform criminality. The law must provide
according to variations in culpability.

2. Expressing his concern for the efficacy of punishment. Bentham, the well known English
law reformer commented that penal policy must be in conformity with the principle of hedonism,
that is, the utilitarian doctrine of pain and pleasure. The pleasure derived from criminal act must
not outweigh the pain inflicted by way of punishment; otherwise the punishment is bound to lose
its significance. That apart, punishment to be effective should be proportionate to the gravity of
the offence.

3. It is an accepted fact that delay defeats justice. Inordinate delay in sentencing negatives
its deterrent effect. It is, therefore, desired that punishment must follow the crime. Elimination of
delay in awarding punishment is perhaps the most fundamental requirement of an ideal penal
program. It must be noted that inordinate delay in disposal of cases by courts is causing untold
miseries to poor litigants, particularly in India, as a result of which people are losing faith in
these institutions of justice.

4. Punishment connotes society's disapprobation for a particular human conduct and penal
sanctions act as a threat to the aggressor to refrain from committing such forbidden acts of
violence. Thus the ultimate object of punishment is to protect society against law-breakers. As
Beccaria puts it, the purpose of punishment is 'to make crime an ill-bargain for the offender'.

5. Experience has shown that the principle of equal punishment for similar offences does
not prove effective for all types of criminals. The young and the first offenders must be treated
differently than the recidivists and habitual offenders. The justification for this differential
treatment lies in the fact that the effect of punishment varies from criminal to criminal depending
on his age, sex, intellect, mental depravity, responsive attitude and social circumstances. It is for

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this reason that classification of criminals into different categories is deemed necessary so that
they could be reformed through adequate correctional measures.

6. It is significant to note that efficacy of punishment essentially depends on the proper

functioning of agencies which administer criminal justice. These agencies must command
respect among the public. Everyone including the criminal himself should feel convinced that
justice has been done to him. Disproportionate and unduly harsh punishment shall make the
members of community feel that their life is unsafe and insecure in the hands of criminal law
administrators and their distrust for law and penal institutions shall jeopardize the cause of
criminal justice. Unfortunately, the position in Kenyan this regard is far from satisfactory.
Particularly, the functioning of the police and prisons needs improvement so that people regain
their lost faith in these august institutions of law and justice.

7. Reformation of criminals should be the object of punishment while 'individualization' the

method of it. Thus reformation in case of juveniles, first offenders and women offenders and
deterrence for hardened criminals and recidivists should be the ultimate object of penal policy.
The State has to rehabilitate the offender rather than avenge. The sub-culture that leads to anti-
social behaviour has to be countered not by undue cruelty but by re-culturalization. The
punishment to be efficacious must include the combination of deterrence, prevention and
reformation so that it prevents a future wrong besides bringing a change in the attitude of the
offender through reformative measures during the period of his incarceration.

8. While appreciating the need for reformative approach towards criminals, a word of
caution as to the extent to which the principle is to be applied, seems necessary. It is generally
observed that in their enthusiasm to reform the criminals, the authorities associated with penal
institutions such as prisons and reformatories convert these institutions into an earthly paradise
providing all sorts of comforts to inmates. Consequently, inmates often take the institution as an
easy resort to spend their life comfortably without shouldering any responsibilities. This
obviously defeats the very object of reformation. It is therefore, desired that life in these
institutions must involve certain degree of hardship and rigour so that the inmate is always
reminded of his bitter experiences of institutional life after his release. This will help in keeping
him away from repetition of criminal acts. The penal system should be designed so as to ensure
that offenders improve by suffering for their offences. Unfortunately, the trend of judicial
sentencing in Kenyais towards excessive reformation with the result punishment is losing all its
effect and consequently there is steep rise in crime rate.

9. The authorities concerned with the criminal justice administration should refrain from
projecting the image of offenders as "big shot". It must be remembered that
punishment fails when it raises the status of the convicted offender in his group.This is
particularly true with criminal gangs. The rewards so often announced by the Government on the

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heads of notorious murderers, dacoits and criminals seem to undermine this aspect of penal
policy.

10. Most of the modem penologists are opposed to retention of capital punishment on
humanitarian ground. They argue that killing of man is inhumane. That apart, if an innocent
person is executed due to erroneous justice that will do irreparable harm. Some argue that putting
an offender to death virtually amounts to a cold-blooded murder which serves no useful purpose.
The real object of punishment being reformation and not destruction of the criminal, death
sentence hardly serves any purpose. Thus enlightened view is averse to the retention of capital
punishment since it is grossly unjust and against the principles of humanity.

But it must also be pointed out that despite growing disinclination for awarding death penalty,
there is a growing reluctance to abolish it. It is so because of a general feeling that threat of
infliction of death sentence itself proves as an effective deterrent. Therefore, the ideal policy is to
retain capital punishment in the Statute Book to be used in 'rarest of rare' cases. It is true that the
test of 'rarest of rare cases' has not been acceptable to many because of the fact that what may
appear to be a rarest of rare case to one Judge may not necessarily appear to be so to another
Judge.

11. Punishment should include both compensation as well as imprisonment. As a matter of

general policy, it would be ideal to prescribe reparation or payment of compensation for offences
relating to property while penal sentence with or without fine may be awarded for crimes against
person, particularly for crimes against women and children.

12. The efficacy of punishment, by and large, depends on its impartiality. The penal policy
should, therefore, be completely free from considerations as to the caste, creed, religion or status
of the offender.

13. As a sound principle of criminal justice, it is for the legislature to prescribe maximum
limit of punishment for every offence in the Criminal Code without laying down any minimum
limit. This will enable law courts to award punishment according to the requirements of
individual offender thus infusing an element of discretion in judicial sentencing which is sine qua
non for individualized treatment model.

14. The system of solitary confinement has now become obsolete and outdated. It is
discarded because it is tortuous and imposes excessive suffering on the offender. Modern
penologists treat solitary confinement as a method of putting offenders to death without
bloodshed. Confining convicts in isolated prison-cells without any work makes them idle and
aggressive and they return to society as more dangerous and aggressive criminals after their
release. The torture of solitude and isolation is so painful that it completely destroys the
personality of the offender and he turns hostile and indifference to the community.

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15. Punishment should always serve as a measure of social defence. This in other words,
means that elimination of incorrigibles and rehabilitation of corrigible should be the ultimate
object of penal justice. An ideal penal policy should have enough elasticity

so as to mold itself with the changing needs of time and place.

The above verbalizations with regard to punishment amply suggest that no single theory whether
deterrent, preventive, retributive, retributive or reformative can help in eliminating crimes and
criminals from society. It is only through an effective combination of two or more of these
theories that an ideal penal program can be drawn to combat crimes. Some socialist countries
have explicitly mentioned in their criminal codes the aims of sentencing the offender. This is
indeed a welcome step which other countries should take note of while formulating their penal
policy.

More recently, British and American penologists have shown considerable concern for plight of
the ‗victims‘ by focusing their attention on the diverse aspects of victimology. This relatively
new concept covers within its ambit not only the victims of individual criminality, but also those
of the abuse of criminal process and administration of justice. For this purpose it is necessary to
develop human rights consciousness among the law-enforcement personnel particularly, the
police and jail authorities.

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