Penology Law Notes Rose Ayugi _ More Criminology

Criminology & Penology
Criminology looks at theories around crime commission.
Penology deals with how society looks at and responds to crime.
There are many types of crimes and criminals e.g. rapists, murderers, etc and all crimes
must be addressed specifically and then tied down to theories.
How the media report crime does and what makes them report the way they do? E.g. the
post election violence. What are the influences?
Bias in the criminal justice system in criminology. The assumption is that it is working in
a just and fair manner. USA has the issue of blacks and whites and Kenya has blue and
white collar offenders. Some offenders get priority by judges. How do judges deal with
offenders? Is there bias? Do we consider white collar crimes? Why are there so many
weapons in the crimes? Is it deliberate or not? Internet and technology is the new order
of crimes.
How is crime statistics formulated? Petty thievery and murder, what does that
suggest about society? The response to crime will depend on this. Police reports on crime
statistics and trends are they true or false? What is the motivation in lowering or hiking
the figures? How are they interpreted? The figures can be flawed to support a given
target.
The three areas we will focus on include;
a) White collar crimes.
b) New ways of breaking the law e.g. kidnapping and cyber crime.
Criminology & Penology Page 1
c) Youth delinquency- Gang culture
Library-CRIMINOLOGY A READER.
Criminology
What is criminology?
Crimen means crime. Logos means rational speech/science concerning crime. It is the
discourse concerning crime and the methods by which society deals with crime.
An author, Wayne Morrison in his book “Theoretical Criminology from modernity
to Post modernism” 1995 @ pg 5, he argues that given the topic, it is not surprising that
criminology is a broad area , covering a large set of discourses and diversity of materials.
Materials which may at times verge on the political, sociological, philosophical, rhetorical
and the technical.
Criminology has also been defined to include the study of:
i) Characteristics of a criminal.
ii) Extent of crime.
iii) Effects of crime on victims and society.
iv) Methods of crime prevention.
v) Attributes of criminals.
vi) Characteristics and workings of the Criminal Justice System (Penology).
vii) Types of crimes.
Critical questions in criminology.

Given the first area of concern, a number of queries have arisen;
(1) As to whether the material can be read as having a central core or as a coherent
domain, or whether it is totally unstable. A mass of perspectives which tease the
reader of an article into thinking that the discourse encountered has sensed, but
negates this as soon as various other articles are read.
(2) There is another tension between criminology as a special discipline in its own right
with its own topic i.e. the analysis of crime and regarding criminology as a synthesis
of social sciences such as jurisprudence, sociology, anthropology, psychology etc, of
which they may be uncertain as to their own constitution.
(3) Modern criminology work is purported to be factual and based on scientific study.
Therefore, criminology = science which is factual, and study that records information
often in statistics, arrives at results of studies and embodies the conclusions drawn
from such results and therefore is readily capable of proof or disproof. (It is objective,
empirical). There are two valid view points on this question;
- There is one group that upholds that criminology is not a science because a
science has to be stable i.e. firmly established and homogenous. If one person
tests and everyone does the same test, the results must always be the same e.g.
(H+ O2 H2O) and since crime is neither stable nor homogenous, it cannot be
a science. A man known as George Wilber argues that antisocial behavior in
society cannot be scientifically interpreted. Other schools argue that since
criminology has not developed its own scientific methodology, but borrow heavily
from others it is not a science.

- The other viewpoint is that criminology is a science and bases the argument on
the fact that even amongst the natural sciences, like botany and zoology deal with
facts which are not strictly speaking unique and individual and which do not deal
with general phenomena. Further, that criminology is based on other social
sciences just like medicine is based on anatomy, physiology, physics, chemistry
etc. that neither medicine nor criminology is purely the identical, they have a
meaning which derives from their practical approach. The justification for medicine
lies in the therapeutic and public health, that of criminology lies in penal reform,
penology and prevention of crime.
Importance of Criminology
a) It is important for the understanding of the individual and the best way to treat and
reform him/her.
b) For lawyers; to allow them to better understand their client and their particular
circumstances for purposes of giving proper legal advice and pursuing a logical line
of defense.
c) For judicial officers to be able to understand the offender for the purpose of awarding
appropriate sentencing and also understand the society’s perspectives and emotions
on a two given offence.
d) For law enforcement for purposes of investigation, prosecution, surveillance and crime
prevention.
e) For prison officers, social workers, psychologists, etc to understand the criminal better
or more.

f) To enhance official understanding of criminology, the types of offences, the
prevalence of offences committed generally or specifically by a class of people or in
certain localities. This kind of understanding is supported by the date which is
important for crime detection and control.
The government is based to plan better in terms of allocation of resources towards
fighting different types of crime.
g) For the vocational criminologist, he will also be concerned with research that will lead
to alternative theories that can lead to improving the immediate practices of the
criminal justice system, to bring about reform of some kind e.g. a program, an
institution or strategy. Often, the goal is to solve an administrative difficulty within the
existing system.
h) For the critical or analytical strand of criminology, the research or study will be aimed
at making major changes within the existing institutional frameworks of the criminal
justice system. The approach looks into the deeper philosophical questions of the day
and also the bigger questions as to why do we continue to have and use institutions
such as prisons when we do not work to prevent offending or re-offending? The
approach here is not to suggest improvement, to the existing penal system; but to
question whether it is valid or viable to begin with. Indeed, on informed opinion might
simply advocate. Both approaches are however, relevant.
1) Defining Crime
There is no straight forward answer to the question ‘what is crime.’ Even the central
ideas of what are a crime and who is a criminal has no definite answer. There are two
numbers of reasons why it is difficult to define crime;

Ideological issues: any theory or explanation of crime obviously has several
dimensions built into it from the start. Even the most scientific or neutral theory will
reflect to some extent the existing ideological or political sentiments of the day. At the
very least, most criminology theories can be classified as conservative, radical or
liberal or some analytical combination of the three, yet, in theory, two specific
explanation of some phenomenon including one of crime and criminals is supposed
to be value-free uncontaminated by emotions and political circumstances; but in reality
if the research is funded by an arm of government, it may tend to serve the interest of
the government.
A conservative perspective of society tends to be supportive of the legitimacy of
the status quo and generally accepts the traditional way of doing things and that the
role of institutions is to preserve the dominant order of the good of society generally
and also that the values and institutions should apply equally to all people regardless
of social background and historical development.
A liberal perspective on society accepts the limits of the status quo but encourages
limited changes in societal institutions. This approach tends to avoid questions relating
to the whole structure of society, instead advocates the need for action on particular
limited social problems (tokenism) e.g. racism, poverty, sexism etc. Without any
fundamental changes to the economic or social structure. (AFFIRMATIVE ACTION-
Problem never really addressed).
The radical perspective on society wishes to undermine the legitimacy of the status
quo. It looks at society as a whole but sees social conflict as the control concern. The
key issue is who holds power and resources in a particular community? The focus of

the radical perspective is fundamental change in the existing social order. Specific
issues such as poverty are explained in rational terms e.g. between the poor and the
rich, and the solution is seen to involve dealing with the structural imbalance and
inequalities that led to the problem in the first place. It would therefore be quite
apparent that politics play a central role in criminology and there is therefore, no value-
free criminology and conservative, liberal and radical values are embedded in the
criminology enterprise. Therefore, the political orientation of the particular approach
has major implications for how crime is defined e.g. the radical view of crime (pg.6 of
outline) would categorize crimes into crimes of the powerful which would be mostly
economic crimes like pollution, violation of labor laws, state brutality, corruption and
violation of civil rights.
The other category is crimes of the less powerful like work place theft, fraud,
prostitution, rape, murder, etc, whereas the conservative approach would categorize
crimes by emphasizing the so-called crimes of the powerful. They do not see it as two
power issues, but as a social issue.
2) Objectives and methods used in Criminology reflect certain underlined ideas and
concerns of the writer. In reading criminology material, it is important to examine the
assumption of the writer, the key concepts they use, the methods on agreements used
to support their theory and also the sentences in a particular theory i.e. what questions
are not being asked and why not.
3) It is important to consider the social relevance of the theory or perspective. What does
it tells us about our society and the direction that our society is or ought to be heading.

4) Ideas, perceptions and conceptions regarding what constitutes criminal behavior keep
changing. To a certain extent, both crime and criminology are uncertain in the sense
that one’s definition of crime is dependent upon one’s particular interest and world
view.
5) There are competing views on crimes as crime is always socially defined. This of
course can lead to debate e.g. should crime always be defined by law? Or could it
instead be based on moral or social conceptions such as social harm. Is crime
something only legally defined by law? Or can it be something else? Like moral wrongs
such as adultery not being criminal by law, yet it is normally wrong. If the definition is
purely and legalistic one, i.e. purely and creation by law, how can social science study
it? Should criminology subject matter be restricted to conventional legal definitions?
An activity becomes criminal due to the social response which leads to it being
classified as a crime, therefore, colonialism was a social phenomenon and there was
a feeling that slavery was wrong, but there was no law to it and people consider
whether to make it a crime against humanity.
To illustrate the differences on defining crimes, consider the following;
(a) Why some behaviors which are defined as criminal while others which may also
be damaging are not.
(b) Why are certain people who have committed crimes convicted, while others
allowed escaping conviction?
(c) In Nazi Germany, there are Germans who assisted the Jewish people despite the
law prohibiting such assistance.

(d) Who defines the law? Al-shabab passed a decree/rule/law/proclamation on that no
woman should wear bras People are now committing crimes by wearing brass.
What about cases where people may actively break the law in the name of social justice?
There are unjust systems in the world. It may well be the case that many legal definitions
are built on highly contentious and unjust or unfair prepositions.
Definition of Crime.
It follows therefore, that there are very many diverse conceptions of crime, each of crime,
each of which reflect a different scientific and ideological viewpoint.
It is important to note that the variation in definition as real consequences upon how
different types of behavior are dealt with at a practical level. According to the author Rob
White, crime is not inherent in an activity. It is defined under particular material
circumstances and in relation to specific social processes e.g. the prohibition in drinking
alcohol; killing al-capone who sold alcohol illegally. A crime was created and many people
were engaged in selling illegal alcohol and many people were killed. Then the prohibition
was uplifted.
Kenny defines crime as a wrong whose solicitation is punitive and which is no way
remissible by any private person but is remissible by the crown.
Keeton-crime is an undesirable act which the state finds most convenient to correct
by the institution of proceedings for the infliction of a penalty rather than leaving the
remedy to the discretion of the injured person.

Sutherland- Criminal behavior is behavior which is a violation of criminal law. No
matter what the degree of immorality, reprehensively or indecency of an act, it is not a
crime unless it is prohibited by law.
For much of its history, criminology has accepted the legalistic definition of crime
as human behavior which is punishable by sanctions specified by the criminal law, but
more recently, this automatic link between crime, the criminal law and liability for
punishment has not been universally accepted by criminology. This is in part because
what can be defined as a crime by the powerful agencies of store varies over time and
place. The struggle to find a method by which the criminologists could specifically define
an object of study (crime deviance) has been an on-going feature of criminology since its
modern formulations.
Legal and Sociological conceptions of Crime.
There are many diverse conceptions of crime, each of which reflects a different scientific
and ideological view points. A man known as Hogan J. in his book ‘modern criminology’
defines at least 6 broad approaches to the definition of crime:-
a) A formal legal definition of crime is one which says that what the state identifies as a
crime is a crime i.e., if something is written into the criminal law and is subject to state
sanctions, in the form of a specific penalty, then that activity is a crime.
b) A social harm conception of crime involves both criminal offences such as assault and
civil offences such as negligence so that each type of action or inaction brings with it

some type of harm so each should therefore attract some sort of penalty. (Looks at
the impact of harm that should therefore have a penalty).
c) A cross cultural universal norm argument states that crime is essence does not vary
across different cultures, thus murder is murder regardless of society and we can
therefore postulate conduct norms that are across diverse cultural backgrounds.
d) A labeling approach to the definition of crime argues that crime only really exists where
there has been a social response to a particular activity that labels that activity
criminal. If there is no label, there is in effect no crime.
e) Human rights approach says crimes occur whenever a human right has been violated,
regardless of the reality or otherwise of the action. Such a conception also expands
the definition of crime to include oppressive practices such as racism, sexism,
tribalism and class-based exploitation.
f) A human diversity approach which defines crime in terms of the language, post
moderns school that looks at things as a science which itself is biased. Criminals’
voice is not listened to when establishing what a crime is. They must accept human
diversities as a right. Thus, criminology study and research looks beyond the formal
legalistic approach to conceptions of crime in as much as this is also acknowledged.
Criminology perspectives.
As we have indicated, there are competing definitions of crime. This produces kinds of
responses to crime. Criminologists vary in how they approach the study of crime. For the
sake presentation, it is useful to present ideal types of the various theoretical strands
within criminology. Of course an ideal type does not exist in the real world, rather the
intention behind the construction of an ideal type is to obstruct exaggerate these elements

in order to highlight the general tendency or themes of a particular perspective. So, an
ideal type is an analytical tool, not a moral statement about what it ought to be. It refers
to a process of identifying different aspect of social phenomena and combining them into
a typical model.
There are tree broad levels of criminology explanation;
a) Individuals
b) Situational
c) Social-structural
Different theories within criminology tend to locate their main explanation for criminal
behavior at one of these levels. Occasionally, a theory attempt to combine all three levels
in order to provide a more sophisticated and comprehensive picture of crime and
criminality.
a) Individual; The main focus is on the personal or individual characteristics of the
offender or victim. The study may consider e.g. the influence of appearance, dress,
public image or things such as tattoos. This level of analysis tends to look at the
psychological or biological factors which are said to have an important role in
determining why certain individuals engage in a criminal activity. The key concern is
to explain crime or deviant behavior in terms of the choices or characteristics of the
individual person.
b) Situational; The main site of analysis is the immediate circumstances or situations
within which criminal activity or deviant behavior occurs. Attention is directed to the
specific factors that may contribute to an event occurring such as how the participants

define the situations, how different people are labeled by the others in the criminal
justice system and the opportunities avail for the commission of certain types of
offences.
c) Social-structural; this approach tends to look at crime in terms of the broad social
relationships and the major social institutions of society as a whole. The analysis
makes references to the relationship between classes, sexes, different ethnic and
racial groups, the employed and unemployed; and various other social divisions in
society. It can also involve the investigation of the operation specific institutions such
as indication, family, work and the legal system in the construction of social responses
to crime and deviant behavior.
Criminology Schools of Thought.
A school of thought is a point of view held by a particular group or a belief or system of
belief accepted as authoritative by some group of school.
1) Classical Criminology; is a label used to make sense of a period of writing in the 18th
and 19th Centuries which reformed the system of investigation and punishing of
criminal offenders. A reasonable coherent rational intellectual structure was
developed which legitimated the creation of a system of criminal justice which
predominates today. This period was known as the enlightenment and it introduced a
recognizably modern form of analysis of the study of crime and stressed the role of
reason and free will in human affairs. The enlighten represented the development of
a whole range of thought concerning the nature of human beings and their relationship
with each other, with institutions, society and the state. The writer of the enlightenment

were concerned with social conditions and they responded to the ideas of the African
and French Revolutions which prompted changes in ideas concerning Human Rights
(people wanted a new order, there was a lot of crime in the society due to taxpaying
etc at these eras). Classical criminology can be given a wide or narrow reading. Most
textbooks give it a narrow reading as it sees it as concerned with setting up a rational
framework for a modern system of criminal justice. However, it is also part of an
attempt to provide answers to the question of structuring of government. When man
is in a social situation devoid of a foundational touchstone such as God. There were
many writings during the period, but Beccaria, Bentham and John Austin are fairly
representative of this enterprise.
Cesare Bacceria (1738-1794), in this book on crimes and punishment, Bacceria
considered crime as an injury to society. It was this injury to society that was to direct and
determine the degree of punishment. The role of the law was to lay out minimal rules of
social life which would bind the society and guide it by laying out clear and rational rules.
Bacceria proposed that torture, execution and other irrational activity be abolished and in
their place, there was to be quick and certain trials and in the case of convictions, carefully
calculated punishments. He proposed that accused persons be treated humanely before
trials. It is often said that classical criminology ignores the causes of crime. But Bacceria
certainly held that economic conditions and bad laws could cause crime and that property
crimes were committed primarily by the poor and mainly out of necessity. He suggested
that every night and facility be extended to enable accused persons bring evidence on
their own behalf. He called for a swift and sure punishment. This meant that there would
be a punishment prescribed and therefore would be certainly of that punishment that had

to be written, thus the penal code. He was of the view that a carefully matching of the
crime and its punishment is keeping with the general interest of the society could make
punishment a rational instrument of government. This is circled around the severity of the
punishment to the crime, likewise the crime to the punishment, such that small crimes
would not carry too severe punishments. He discovered that with a system being
presumed unfairly reads to no trust in the system. People will commit more crime as
people feel less motivated to be part of that society. When punishment exceeds the
degree of crime, it is torture.
Bentham (1748-1832). He was a radical utilitarian. He believed in the greatest happiness
for the greatest number of people. This that what the society wants would be the law.
What of the minorities then? Acts could then be measured in terms of goodness or
badness, right or wrong. He believes that prevention of crime was the only justifiable
purpose of punishment. He recommends that penalties be fixed so as to impose an
amount of pain in excess of the pleasure that Bentham believed would deter crime. He
argued that capital punishment should be restricted to offences which in the highest
degree shock the feeling. He also attempted to radicalize imprisonment as an institution
then used to hold persons awaiting trial for debtors as an instrument of correction. He
argued for the establishment for the office of the Public Prosecutor and he furthered the
nation that crimes are committed against society rather than against individuals.
The Classical Approach
Social contract theories like Thomas Hobbes and John Locke believed in the idea that
legitimate government is the artificial product of the voluntary agreement of free moral

agents and that there is no such thing as natural political authority as asserted by the
monarchial regimes. The rise of all sovereigns is derived originally from the consent of
every one of those who are to be governed. John Locke developed the concept of the
general will i.e. citizens have to be a collective interest in the well being of the community.
He traced the foundations of law and political society in the idea of the general will. The
basic concepts of the classical theory are premised upon the notion of individual rights of
human capacity to reason and the rule of law. The theory assumes a particular view of
human nature i.e. that human beings are self seeking and self interested individuals with
free will and individual choice, therefore we are seen as being ultimately responsible for
choosing what to do with our time and energy and for the consequences that may arise
from our actions, i.e., the classical theorists believed in volunteristic view of human nature.
Secondly, the theory emphasizes the status of human beings and rights holders,
individuals are deemed to have an equal capacity to reason and to act in accordance with
what is rational from the point of view of their own self interest. Institutionally, each
individual is to be given guaranteed equal rights under law. The fundamental objective of
the law is to protect individual rights and to allow the free exercise of choice among
individual as far as is possible without leading to social harm.
Thirdly, to guarantee both individual rights and some semblance of order, classical theory
considers the role of the state to be central, i.e. the notion of the social contract between
right holders and the state. There is an implied consensus or agreement that individuals
give up certain rights to the state in return for the protection of their rights and security of
their person and property from other individuals and from the state itself. Hence, the role
of the state is to regulate human interruptions and to be a site where rights in general can

be protected by not allowing their infringement in specific instances. Fourthly, the legal
manifestation of the social contract is expressed in the phrase “the rule of law,” meaning
that everyone is to be treated equally without fear or favor in the eyes of the law i.e. equal
protection of rights and that even the law makers are bound by the law, set down for the
general population.
Further, the law is seen as intrinsically good and to reflect the reasoned benefits
and value of the law makers i.e. the theory assumes a consensus in society of good and
bad. This is reflected in Criminal Law. Crime is therefore, defined as a violation of the law.
Criminality is seen as primarily a matter of making the wrong choices by violating the law.
Individuals are to be held responsible for their actions. The social contract is
mentioned in practice through the use of punishment of deterrence of individual and state
at large. The response of the justice system is focused on criminal acts.
New Classical School
Arose out of the attempt to apply the principles of the classical school. There were a
number of challenges.
▪ To make such general principles serve the interests of justice and equality when faced
with a specific defendant in court. (Laws applied to everyone equally). Some
defendants clearly do not conform to the abstract concept of being rational and equal
e.g. children and people with mental illness. To cope with this “reality of life” rules were
developed to deal with specific circumstances where individuals could be deemed not
to be totally responsible for their actions.

▪ The second challenge to classism comes from vested rights. Those in positions of
power viewed classism as a challenge to their entrenched authority. The codification
of legal principles threatened the autonomy of the aristocracy who naturally resisted
changes, therefore, in some countries what ended up being put in place e.g. U.K. and
Australia are high breeds of classical and pre-classical models.
The new classical school therefore primarily represented the modification necessary for
administration of criminal law based on practical experience. It presented no particular
break with the basic doctrines of the classical school.
Examples of perspectives in contemporary Justice System;
a) Classical thinking is evident in the legal in the legal doctrine that emphasizes
conscious intent or choice i.e. the notion of mens rea or guilty mind.
b) It is evident in sentencing principles e.g. the idea of culpability or responsibility.
c) It is evident in the structure of punishment e.g. the grading of penalties according to
the seriousness of the offence.
d) It is evident in the approach to sentencing is the use of just desert approach (get what
you deserve).
Just deserts approach
a) No one other than a person found to be guilty of a crime must be punished for it.
(Standard of proof has to be beyond reasonableness).
b) Anyone found guilty of a crime must be punished.
c) Punished must not be more than of a degree commensurable or proportional to the
nature of gravity of the offence and culpability of the criminal.

d) Punishment must not be less of a degree commensurable to or proportion to the
nature of gravity of the offence and culpability of the criminal.
Critique of the Classical Theory.
a) Problem of fairness in individual cases because despite reforms this still remains a
problem where system focuses on the offence and not the offender.
b) People are not endorsed with equal capacity to reason. The decision to offending or
may not be the result of an irrational choice and the theory gives the insight into how
to deal with cases where offending results from an incapability to reason.
c) If as espoused by the theory offending results from a temporary irrationality, how is it
that distribution of crime is not spread equally through the social structure. Most
studies place the bulb of offending among those with low income. These findings
suggest that for some people, offending may be entirely rational in a manner that not
amendable to the deterrence resulting from punishment. In a world of deep social
inequalities, universal inequalities cannot be realized by treating everyone equally
before the law. Rational choice may lead some to afford precisely because of social
inequalities. Equality before the law masks this reality.
d) It has long been recognize that there are clear differences between formal (written)
law and substantive law (practiced). The way the law is written tends to assist some
individuals who understand it know how to exploit it; while disadvantaging others who
do not have the same access to lawyers who know a powerful individual or
organization appear able to avoid the spirit of the law while complying with the letter
of the law.

e) Legal process is itself influenced by broader social inequalities. Some people are more
equal than others and this in turn affects the legal process. The wealthy have legal to
legal advice that in turn affects how they are dealt with by the justice system.
Furthermore, punishments may be proportionate to the crime but will be experienced
in markedly different ways. The rich may retain their income and wealth while the poor
lose out on income and future work opportunity. Despite these problems, in
conclusion, the classical theory had a real and positive effect on the justice system
which promoted a more open systematic approach to justice when compared to
previous systems which were based on arbitrary whim of aristocracy. Classical
principles argue for rights of an individual in a system and places limits on judicial
discretion. Finally, it espouses a humanity approach to punishment when compared
to barbaric practices of previous eras.
2) Contemporary Biological Positivism Research.
There are two major strands to be found on contemporary examples of biological
positivism:
a) Forensic Psychiatry
b) Forensic Psychology
The second strand are the theories which have to a greater or lesser degree taken a m
ore academic turn i.e. the bio social explanations that link biology, environment and
psychological facts in explaining criminal behavior.
The pre-dominant concern of forensic Psychiatrists and psychologists is in the provision
of services in the criminal justice system.

Alongside this practical role, they have developed a range of theories not only to assist
rehabilitation of but also to interpret culpability of the offender of the court as well as to
predict possible re-offending. In the court, the other role is to provide pre-sentence in and
to act as expert witness.
In the corrections area, their role is to manage and treat offenders as well as to provide
expert advice concerning parole decisions.
The most contagious application of forensic psychiatry and psychology is application in
police investigations as criminal profilers which is claimed and pinpoints the personality
profile of an at large offender as part of their investigation process or even identify the
likely area where the offender lives.
Contemporary positivists see a dynamic relationship between biological factors i.e.
inherited pre-disposition and environmental factors i.e. external inputs that modify
behavior. Nevertheless, within this more open and less deterministic framework, there
has been a resilience of interest in explanation of crime that lean heavily towards the
biological. Recent research has focused on biological characteristics that result from
genes and are inherited or those that are genetic mutation or those that are as a result of
environmental injury or inadequate diets which are neither genetic not inherited.
A. Family Studies
Children tend to resemble their parents in appearance, mannerism and dispositions.
In 1913, Goring’s study concluded that crime is committed in as much as any of the
other physical traits and features. His research was said to be flawed because he
underplayed it role of social and environmental factors when he concluded that there

was a high correlation between the frequency and length of imprisonment of parents
and their children. Other attempts to study criminal genes or to believe that crime
tends to run in the family have produced a little valuable evidence.
B. Twin and Adoption studies
Investigators have attempted to address identical and non-identical twins. Jonas
Lange, 1924, found that in identical twins, where one twin has been imprisoned there
was a 77% chance that the other twin had also been imprisoned but only 212 degrees
chance in fraternal twins.
Grove in 1970 undertook a study of identical twins reared up shortly after birth. Other
studies were also taken and there was evidence that antisocial behavior and
psychopathy could also be inherited on a probability of about 15% by twins reared
away from psychopathic parents, including other disorders such as alcoholism, drug
abuse and criminality. Other studies conducted between 1972-1989 found significant
evidence or hereditability of crime and anti-social behavior.
C. Genetic Structure
This category of theories is linked to the concept of hereditary abnormalities in genetic
structure such as abnormalities in the sex hormones.
Males with klinefelter's syndrome are sterile, have low intelligence and increased
stature. They have an extra chromosome and exhibit high incidence of criminal
behavior. They are overspray amongst homosexuals, transsexuals and transvestites.
Men with an extra Y chromosome are more aggressive, abrasive, and unstable and
offend from a very early age despite coming from families with no history of
criminology.

D. Neuro Transmitters
There are chemicals that allow for transmissions of electric impulses within the brain
and in the basis of the brain processing information. They underlie all types of behavior
including antisocial behavior.
At least 30 studies have linked neurotransmitters to antisocial behaviors such as
violence and drug abuse. Antisocial behavior people have lower levels of serotonin
than normal people and they are said to be excessive and compulsive. Since their
levels of serotonin are low, they receive neurological highs from antisocial behavior.
Research suggests that these levels can be increased by use of drugs such as lithium
carbon by improved environmental conditions and less stress free conditions.
E. Hormones
Recent attention has been paid to hormone levels and aggressive or criminal behavior
as a result of either testosterone or female pre-menstrual cycle.
Studies have had mixed results due to a number of factors such as determining the
cause path e.g. does high testestorone levels cause aggression or does aggression
cause high testosterone levels.
How about people with normal levels but who react aggressively in certain types of
situations?
Also, there is a strong link between high testosterone levels leading to reduced social
integration associated with high levels of defiance. For females, biological changes
during ovulation have been linked with irritability hostile and aggressive behavior
during period.

F. Central nervous system
The CNS contains neurons and systems that exist within the brain and spinal cord.
The cerebral cortex is of importance to research on aggression and violence.
Research has been done using a number of measures both direct and indirect such
as brain imaging techniques, Magnetic Resonance (MRI). These are used to detect
structural and functional abnormalities in the lobes studies show that those with frontal
lobes dysfunction are characterized as violent offenders, while those with temporal
lobe abnormalities are characterized as sexual offenders; violent offenders also have
EEG abnormalities.
G. Automatic nervous system.
The Automatic Nervous System controls the body’s involuntary functions such as
blood pressure, heat, internal activity and hormone level. It is modulated by another
system known as the limbic system in the brain that control motivation, mood, anger,
aggression, etc. the AUS is active in fight-flight situations by increasing the heart rate
and stimulating the sweat glands. How well one’s ANS functions is dependent on the
level of socialization. Most children fear punishment and the anticipation of this will
keep children in time. Where one’s fight-flight response is slow or at low levels then
the child will be difficult to socialize. Eysenck (1964) examined this matter based on
Carl Jung’s concept of Introversion and Extroversion as the major attitude or
orientation of personality.

Introverts are oriented towards the inner subjective world. They are serious, reliable
and controlled. Extroverts are connected towards the external world, social, care-free,
aggressive, they are craving excitement, take chances and lose temper easily.
Introverts are characterized by high levels of excitation also referred to as stimulus
and for low levels of inhibition, whereas extroverts are opposites and therefore a
stimulus hungry. Introverts seek stimulus avoidance because the possibility of
punishment makes them experience high anxiety reactions.
Extroverts experience low anxiety (arousal) because they are less sensitive to pain
and readily seek prohibited activities in their search for stimulation.
Eysenck argued that psychopaths are extreme extroverts and that they failed to
develop adequate conscious because of the way their ANS functions. It seems that
such defects also play a role in antisocial behavior.
H. Environmentally induced Biological components of behavior.
There are many possible types of relationships between drugs, alcohol abuse and
violent behavior. These could be biological, psychosocial, socio-cultural and
economic. Alcohol increases aggressive behavior in lower doses because of its
disinhibiting effect or it may increase the production of endocrine system
(testestorone) although there is little evidence of this. Other believes in a genetic link
between alcohol and violence, but this area also remains quite unclear. The use of
and withdrawal from drugs such as cocaine, opiates and other hard drugs can cause
aggressive and violent behavior. Studies have also shown a link between nutrition,
toxins and antisocial and aggressive behavior, although there also been shortcomings
in methodology. Studies have been done on sugar, cholesterol and lead levels and

hypoglycemic (low blood sugar) and these defects have been found to be common in
violent criminals.
Exposure to lead in diet and environment has been shown to negatively affect brain
functioning bringing out learning disabilities, hyperactive attention deficit disorder in
children and may increase risk for antisocial behavior although research is still
ongoing in this area.
Studies have found a coloration between head injury and criminal and antisocial
behavior e.g. Nedrick in his study between 1959-1961, found a link between brain
damage and violent behavior amongst juvenile. Lewis in 1981 found a strong
association between criminality and the presence of serious medical problems in their
children. She suggested that delinquency among children with criminal parents might
reflect the combined physical and psychological effect of parental neglect and battery
rather than any genetic factors.
Pregnancy and other birth complications can also lead to CNS defects linked to
aggressive behavior. There is a link that has been established between allergies,
irritability and aggressive behavior with reactions to food, drugs, etc. Such people are
said to be emotionally immature and antisocial. In relation to diet, there is a theory on bio-
chemical importance whose basic premise is that bio-chemically, each individual has a
unique internal bio-chemistry. We all vary in our needs for the 40,000 nutrients to stay
alive. Disease is preventable and treatable proper diagnosis and supplementation of
individual needs to avoid illnesses arising of deficiency e.g. Vitamin B3 (Niacin) has been
used to treat schizophrenia or some functional psychosis such as a split personality,

hallucinations, etc. further, there is a research that addiction to both drugs and alcohol
may relate to unmet biochemical individual needs.
I. Biological positivism and treatment of offenders
Central to the positivism concept of crime is the notion that criminality arises from physical
disorders within the individual offenders. It is thus argued that a course of treatment can
cure the individual predisposed to criminality. However, this could be applied with caution.
Examples are things such as surgical interventions such as lobotomy (drill hole and
remove some parts), castration or medical therapy such as chemotherapy (use of drugs
in treatment) for control purposes such as ant abuse for alcohol and heroin addicts,
stilboestrol drugs for sex offenders; chemical castration, sedatives and tranquilizers to
keep potentially troublesome prisoners under control and electro control through
telemetric observation and remote automatic punishment or disablement. All these should
be used with caution, because although we speak of curing criminality, we are venturing
into the realm of removal of choice and the infliction of highly intrusive, often damaging
against individual wishes. A vast ethical minefield arises, populated with intensely
problematic terms such as INFORMED CONTEST (full determination and information
about treatment given to make an informed decision), compulsory treatment, human
rights, dignity and significant risk to the public. Some of these treatments are experimental
have potentially disastrous side effects. Moreover, since it has already been established
that biological causes of crime may not highly be significant on their own, it must certainly
be questioned to address criminal behavior with biological methods. However, nobody
can afford to have a closed mind to any area or any avenue of explanation if the aim is to
seek a clearer understanding of antisocial and criminal behavior. It is not necessarily the

case that meets intervention or intrusive methods must be the outcome. The information
could be used to discrete which types of environmental interventions might be the most
effective to deter/pinpoint criminal behavior such as pinpointing the effective types of
social learning. There some positive factors that may arise out of the medicalization of
criminality as sick individuals may be blameless. This has to clear effect society and the
individual would hopefully benefit from improved behavior and there will be no offending.
Penology
Penology comes from the Latin word poena which means punishment and it is concerned
with an in-depth examination of the formal institutions of criminal justice such as police,
courts and corrections. It is concerned with the process devised and adopted for
punishment, prevention of crime and treatment of prisoners. Sentencing and punishment
are currently increasing profile policy issues. They have generated debate and proposals
for new procedures, criteria, social life. This is a policy area that is also complex and

issues of criminal justice practice and the administration are continually with the public
domain. The modern society has attempted to address the problem of increased crime
by building more and more prisons but the futility of incarceration is apparent, calling for
renewed debate on how best to counter this. Sentencing and punishment are by no
means mere academic matters. Policy and practice impact on actual and potential victims
of crime if they fail to prevent or limit reoffending. They affect the offender and family and
friends and also leads to a large expenditure on courts and prisons. These are also topics
where they are strong personal and popular feelings about what should happen and how
justice should be done. Policy and practice in this area are also contingent on and
influenced by a very wide range of factors. Political, social and economic issues are not
only of great importance in the broader development of penal policy but are also relevant
to the particular circumstances of individual offenders and their experience of punishment.
Understanding factors influencing penal policy
1. Punishment can be distinguished from other forms of pains or sufferings which are
not a response to our misdeeds e.g. painful medical treatment. Punishment rests
on moral reasons and is the expression of moral condemnation in response to rule
infringements. Feinberg J (1994) in an article called “The expressive function of
punishment refers to censure or condemnation as to the defined feature of
punishment “it has a symbolic significance. It is a conventional device for the
expression of attitudes of resentment and indignation. A key feature of punishment
is that it rests on a moral foundation expressing a moral judgment. It is reflective
and based on reasons. It stems from an authoritative source usually the state. A
key question that has been asked is why some acts are criminalized and not others

and why society deals harshly with some wrong doing and lightly with others. the
most common questions posed are:-
- What particular response is made to an action or behavior and why? I.e. what to
punish.
- If the response is penal which particular penal option is selected? I.e. how to
punish.
- What is the particular level of penal response? I.e. how much to punish.
2. Penology is also concerned with questions of equality, fairness and justice which
must also be considered within the policy e.g. whether some groups are selected
for harsher punishment or if apparently neutral policies have differential impact.
e.g. discrimination against race(s) or economic means or the mentally disordered,
women and children etc the notion of justice is not clear cut but embodies fairness
to all members of the community including victims and offenders and sticking a
balance between their competing interests. This is as the cornerstone of the
current criminal justice system.
3. human rights have implication for both the theory and practice of punishment in
justifying specific punishments in assuming the justice of punishment and in
improving standards in penal institutions e.g. respect for sponsors, treatment of
remand prisoners, bail, right for fair trial, presumption of innocence etc this
principle may act as a control on judicial discretion and inhibiting disparities in
sentencing.
4. There are also influences on penal policy which may reflect the political and
ideological principles underpinning the penal policy. Political dimensions raises

questions about power, how much power a government has to implement policy
through enhancement of law. In economic terms, crime punishment is costly in
financial terms and has a significant influence of penal policy. Cost of processing
offenders is enormous, therefore there is increasingly a move to cut costs by
introducing e.g. community penalties and when deciding what to punish, some
offenses may be uneconomic to punish, such as minor infringement and
sometimes it is better to use lighter sentences.
5. Influence of public opinion on penal policy. It is a key variable in shaping the
response to crime and disorder. It can be expressed through electoral choice e.g.
hanging, lethal injection, public opinion polls, letter of compliance and judges who
see themselves as dispensing popular justice as representative of the public. For
the criminal justice system to be effective, it must have legitimacy in the eyes of
the republic. Sometimes, this causes a problem where a government’s response
to moral panic by giving harsher sentences, which do not succeed in controlling
crime. It is also sometimes difficult to identify accurately the public opinion on
issues of crime and punishment.
6. Prison population: these are increasing in number and felt that there is a need for
alternatives to custody such as community penalties and fines. However, this
requires public awareness and information on crime levels, sentencing decisions
and policies. The public has to be convinced that alternative to custody will be
effective and to be aware that the greater use of imprisonment will only marginally
affect crime rates.
Influence of theory on penal law and practice

1. Principles from criminology and penology: These principles are the justifications
of punishment and they include; retribution, rehab, social protection and none recently
restoration of social harmony. Together, they constitute the store of knowledge
regarding what is theoretically the best response in dealing with offenders, because
theorists from oppressing conditions may agree that punishment is necessary but
different in their news of the best response, the type of punishment may depend on
which theory, which purpose of punishment is explicit or implicit in policy. It may also
depend on which philosophical ideas underpin the chosen punishment. E.g. where the
individual is seen as autonomous or possessive, free will or whether their actions are
determined by their surrounding environment or genetic makeup.
2. The so called ‘new penology’: This has also influenced penal law. It draws on the
new managerialist focus on value for money which is reflected in new public
management. It applies private sector method to public sector incorporating a concern
with efficient use of resources e.g. to consider whether punishing certain types of
minor infringements is cost effective. It uses actuarial (statistics to manage, predict,
etc) to manage the risk of offending and reoffending. The new penology according to
Simon 1992, embraces both a theory and a practice and punishment. In the new
penology, crime is seen as normal and the best we can hope for is to control crime
and risk through actuarial policies and technocrat forms of knowledge, internally
generated by the penal system. This approach focuses on categories of potential and
actual offenders rather than an individual on managerial aims rather than
management and transformation of the offender. Its focus is on actuarial
incapacitation as a way of managing risk and removing persistent offenders from

society. Prison is used to warehouse offenders at high risk of reoffending and because
of managerial cost concerns are , prisons will be reserved for the rest risk
categories. Actuarial justice provides means of selecting the target population to be
imprecated. This approach has been a significant influence of penal policy in USA and
UK.
3. Classical theories of punishment: The principle justification of punishments is
clearly associated with distinct traditions or schools. Retribution was influence by the
late 18th Century philosophies and received in the 1970s and 80s. The rival tradition
is which includes the justification of , social protection
or incapacitation or
. Both theories accept that punishment can be justly inflicted but
differ in their views of what constitutes the justice of a particular punishment. Both seek
to limit to use of discretion of sentencing in favor of a more vigorous principle approach
and both address issues of proportionality. Both approaches have had a strong impact of
penal policy in recent years. One major influence of penal and sentencing policy has been
a particular reattribute idea of just desserts. Justice will be served to better through a
more consistent approach in sentencing so that convicted aims get their just and deserts
which is the calculation of seriousness and the consideration of a sentence proportionate
to it.
4. Policy trends in the late 20th Century, due to the increased repeat offenders and
increasing during the 1940s onwards the rehabilitative deal lost much of its support
but have recently received renewed support. In the 1990s in the USA and UK saw a
marked increase in the use of punishment and incapacitation with focus being a

proportionate punishment rather than treatment or deterrence per say. Trends in the
past 20 years or so have seen the emergence of law and order as key. In the UK,
more policies focus is being shifted towards the heed to rebalance the system in favor
of victims, witnesses and communities and to give paramount importance to protecting
the public and resting public confidence in the aim justice system. The aim is to
increase the rights of victims even if this means fever rights of the defendants.
- .
Sentencing and Discretion
In a principle sentencing system, the exercise of discretion by the sentence must be
controlled.
The purpose of this section is to examine the ways in which it is done through the law,
guidance and also the use of justificatory principles as a constraint. As we have seen,
what is construed as fair or just depends on the charging ideas of social justice and
theoretical approach that is taken to understanding the notion of punishment itself.
However, there is a consensus that it would be unjust if an agency or individual
could use its powers to impose and implement whatever punishment it wished to impose.
Justice in sentencing then requires at the very least that those individuals who undertake
the sentencing of convicted criminals are constrained by a set of principles be they moral,
legal or religious and by a framework of rules. Further, in a democracy, sentencing may
not be perceived as just if those rules and principles are not acceptable to the electorate.
The proper control and exercise of discretion is consequently crucial in the quest
for justice in sentencing and punishment. Discretion is one of the most contentious

concepts in criminal justice because it is so important and yet as difficult to define. If we
consider discretion to be operating on a continuum from complete to no discretion, he/she
would follow the penal code for the word, almost like a robot. Where he has total
discretion, it may be unfair. At one extreme, sentencing is unjust because there are no
constraints whatsoever on the sentence who can then make decisions if he so wishes
based on personal prejudices and whims. Discretion can become a major source of
injustice if not confined, structured and checked. At the other end of the spectrum is the
sentence who has no discretion whatsoever, because the rules and the principles are so
highly drawn with all potential factors accounted for that the sentence is simply the
technician who fills in the date and reads off the answer, in this case, the sentence. These
two might be viewed as potentially unjust in that it would not take into account only
individual circumstances that had not been foreseen. The logical conclusion is that justice
is to be found between the two ends of this discretion spectrum. Constraints are placed
on the sentence because totally free discretion is inherently unjust. There is an
expectation that the rule of law will be upheld so that the citizens can have confidence in
the law and institutions of the state, without that confidence, the criminal justice system
will be legitimacy and will not attract the moral allegiance of the citizens putting the system
and the government at risk.
In democratic states, then judges should not just do what they might want to do
when sentencing. There are rules that to a greater or lesser extent guide them in the
exercise of their discretion. However, there are those who still criticize the idea of
sentencing guidelines as contributing to higher rates of custody because it reduces the
discretion of the individual judge. How far rules should constraint the sentence is then a

matter of debate. There are also constitutional matter about the independence of the
judiciary on one hand and the implementation of democratic decided policy on the other.
However, discretion is also seen as bad because a wide sentencing discretion
leads to inconsistency of sentencing in which similar cases may be treated similarly.
Differential treatment of offenders allows space for discrimination whether institutional or
personal to occur for example, based on race, gender, ethnicity, geography, class, etc.
even if this discrimination does not occur except as a perception the legitimacy of the
sentencing process may still be undermined in the eyes of the public. A further argument
against wide discretion is that it diminishes the possibility of accurately practicing
sentence outcomes. Sections cannot give a clear deterrent massage to past or potential
offenders and advocates are unable to advise their clients effectively. Also, if judges tend
to sentence at the top end of what is legally permissible over sentencing occurs. This can
lead to a crisis of resources for the government. Too wide, sentencing discretion could
also make it difficult for a democratically elected government its desired sentencing policy.
Structuring sentencing Discretion
Trends in structuring sentencing discretion show that a number of changes in penal policy
and legislation have incrementally seen the widening of choices of penalties for courts
while narrowing the discretion to choosel The number of sanctions have increased to
include probation borstal training, preventive detention for the mentally disturbed,
rehabilitative and community based penalties, fines, suspended prison sentences,
absolute or conditional discharges, community service orders, compensation orders,
confiscation of proceeds of crime, mandatory minimum custodian sentences, extended

post custody supervision etc. these can be termed as statutory constraints to the exercise
of discretion. They are the so-called traditional constraints i.e. penalties available to the
sentenser. Judges can only impose a penalty which is legally available in the jurisdiction.
The range has widened over the years. Judges are also constrained with respect to the
amount of punishment they can impose in relation to the available penalties. There are
restrictions on the upper amount of sentence that can be legally imposed, the maximum
laid down in legislation whether in terms of sentence length for custody or community
penalty or financial penalty. The statutory maximum is meant to be used only for the
gravest instances of the offence that could occur. Courts have therefore established their
own normal range of penalties to which in practice sentenser refer.
Further, not all these penalties are available to all sentensers and offenders. There
are several different sorts of limits which apply in addition to statutory maxims. There are
limits on sentencing powers of magistrates’ courts that cannot impose sentences above
certain set thresholds, e.g. there are certain penalties that may not be available for young
people and children.
2) Secondly, there are also extra legal factors that influence either the amount of
discretion the sentencing court can exercise or the outcome post sentencing. These
include allocations of resources especially in relation to community sentences e.g. if
funding does not allow for the establishment of community punishment schemes it can
lead to custodian sentences. Also the relevant government official, the President or
the Parole Boards can exercise administrative or executive powers which can affect
the length of custodial sentences served.

The government may also give guidance by way of circulars with the message of the
report be that prisons should be used as little as possible.
Finally, the role of public opinion and the media is also a factor in sentencing policy.
3) Thirdly, we have already discussed the development of the argument that prisons do
not work to establish prisoners and hence the new ideas for what was believed to be
more effective punishment e.g. community penalties, fines. There are policies based
on these concerns to limit use of prisons and new techniques have been used to
structure discretion in line with the policy aim. These are;
(a) The incorporation in legislation in new hurdles for the imposition of custodian and
community sentences e.g. in the UK, the Criminal Justice Act (1982) imposes
statutory hurdles in relation to a custodial sentence on a first time offender
especially juveniles and young adults.
(b) Using mandatory sentences is another method for example life sentence for
murder and more recently, what is known as the three strikes and you are out
legislation in several states in the USA. It severely limits judicial discretion in regard
to specific offences and repeat offenders e.g. in the USA, under the Criminal
Sentences Act (1997 where one has been found guilty of drug trafficking offences
a 3rd time, there is a minimum 7 years term imposed or the offender may be
subjected to a dangerous offend hearing or indeterminate sentence for public
protection.)
(c) Discretion is also constrained by various forms of guidance to help sentences
apply the sentencing framework as consistently as possible. This can be through
the CA decisions or through sentencing guidelines. These guidelines consider the

sentencing factors and give indication of proper range of sentences, the
interpretation of sentencing legislation and endorse or establish particular factors
as legitimately aggravating or mitigating the seriousness of the offending and the
level of the punishment. In the UK, a sentencing advisory panel has been set up
to help the CA make proposals for new guidelines. Indeed, they have even gone
further to set up a sentencing guideline council and they may set up a permanent
commission to improve transparent predictability and consistency in sentencing in
the criminal justice system.
Criticism against constraints on exercise of judicial discretion.
1. Reduced discretion results in a decreased possibility that justice can be tailored to the
specific circumstances of a case or individual. This might itself lead to injustice.
2. Research has shown that mandatory sentences/penalties have not achieved their
intended aims.
3. Judges and other legal professionals may seek ways to circumvent mandatory
provisions. Discretion elsewhere in the Criminal Justice process could become the
site for increased professional activity to negotiate justice clients in order that
mandatory sentences might be avoided.
4. The lack of discretion at the sentencing stage could encourage more ‘not guilty’ pleas.
The accused might consider that more is at stake if the likely penalty is severe and so
chosen risk a trial. This would increase the workload for the courts and add to the
financial costs.

5. The lack of direction may lead to constitutional or Human Rights violation.

Criminology
Crime & Criminology
The conduct which are prohibited by the existing law at a given time and place are
known as wrongful acts or crime. In fact, crime is a constant phenomenon changing with
the social transformation. Historically, the concept of crime seems to have always been
changing with the variations in social conditions during the evolutionary stages of
human society.
Primitive societies did not recognize any distinction between the law of crime and torts
but only knew law of wrongs. During this period, recourse to legal remedy was
considered merely an optional alternative to self-redress. The wrongdoer was supposed
to offer compensation to the person wronged, the quantum of which depended on the
extent of the wrong caused and status of the sufferer. The payment of compensation
washed away the guilt of the wrongdoer and relegated him to a position as if he had
done no wrong.
However, if compensation was refused, the law had no other means to enforce its
payment. In that event, it was for the victim or his kindred to prosecute a ‘blood-feud’
against the wrongdoer and law could help him only by declaring the wrongdoer as an
‘outlaw’ who could be chased and killed by anyone like a wild beast.
According to ‘Dharamsastra’ writers ordeal was a living institution in India. Ancient
writers have referred to the ordeals as divine methods with various names. Ordeals
were treated as a divine means of proof about guilt or innocence of the accused. The
two important aspects of ordeals were: (i) they indicated the divine aspect of trial, and
(ii) the basic idea underlying this method of trial was the need of divine intervention at a
crucial moment in dispensing justice. ‘Yajnavalkya mentions five kinds of ordeals –
Balance, Fire, Water, Poison and Kosa.
It was once believed that some persons inherit devilish tendencies by birth. They, were
therefore, known as born criminals or criminals by nature and were considered
incorrigibles. The only way to keep them off was their complete elimination from the
society. In the middle of the 18th century Beccaria, the pioneer of modern criminology
advanced his classical theory founded on ‘free will; of the individual. Through a series of
systematic reserches he successfully exploded the theory of ‘born criminals’ and
established that everyone is master of his ownself and is free to act what he wants.
Thus a man resorts to criminal act out of his intelligence and free will; Beccaria’s ufree
will theory challenged by the positivists, Lombrose and Tarde who suggested that man
is not self-determining agent free to act as he desires but is fundamentally a biological
organism. It is, free to act as he desires but is fundamentally a biological organism. It is,
therefore, the biological consideration which determines his acts and behaviour. Every
person, as a biological creature tries to adjust himself to social environment. With the
advance of knowledge and development of criminal science, it was gradually realized
that no one is a born criminal but it is the circumstances that make him so; not because
he wants to be a criminal but he is rather forced to lends into criminality.
The change in civilization, culture and advancement of scientific knowledge brought
about a change in the concept of crime which eventually led to the emergence of
criminology as an independent branch of knowledge.
The concept of crime is closely related to social policy of a given time. With changes in

ideologies the concept of crime also changes. That is to say, certain new crimes spring
up whereas some existing crimes become obsolete and, therefore, they are deleted
through adequate changes in the criminal law. The criminal law has often been
considered as a barometer to gauge the moral turpitude of the society at a given time.
In the opinion of Sociologists, every anti-social act emanates from some criminogenic
tendency which needs to be cured by society. Thus they attempt toe correlate the
concept of crime with other sociological and environment factors.
Many writers have defined ‘crime’ as an anti-social, immoral or sinful behaviour.
Garafalo, preferred sociological definition of crime and stated that crime is an act which
offends the basic sentiments of ‘pity’ and ‘probity’. Yet another view about crime is to
treat is as an anti social behaviour which is injurious to society. Garafalo, observed that
“crime is an immoral and harmful act that is regarded as criminal by public opinion
because it is an injury to so much of the moral sense as is possessed by a community”
According to Stephen, crime means an act which is both forbidden by law and revolting
to the moral sentiments of society.
Judicial approach to criminology suggests that an act to become a rime must conform to
two cardinal principles of criminal liability, namely:-
(i) no one is held criminally liable unless he has done an act which is expressly
forbidden under the existing criminal law of the land and has a reprehensible state of
mind to do it.
(ii) no one can be punished for an act unless it is made punishable under the law.
An obvious way of defining crime is in legal terms, to distinguish it from sin, religious
and moral wrongs. A legal definition gives a basic premise in which the pitfalls resulting
from individual or group opinion are avoided.
According to the legal definition, ‘crime’ is any form of conduct which is declared to be
socially harmful in a State and as such forbidden by law under pain of some
punishment. Paul W. Tappan, defined crime as, “an intentional act or omission in
violation of criminal law, committed without any defence or justification and penalized by
the law as felony or misdemeanour.”
In other words it could be said as, an act or omission in violation of criminal law, since
any defence or justification is to be found within the criminal law, and there is no
question for a particular act or omission in certain circumstances. Further, it is not
necessary for an act or omission in certain circumstances. Further, it is not necessary
for an act or omission to be intentional in order to be a crime; it could be made
punishable on the basis of knowledge, recklessness or negligence or even without any
reference to the mental element of the wrongdoer i.e. based on the concept of strict
responsibility.
Halsbury, defines crime as unlawful act which is an offence against the public and the
perpetrator of that act is liable to legal punishment.
The exponents of each one of the above schools accuse the other of being unscientific
in approach. The legal definition has been criticized on the ground that whether any act
or omission is recognized as crime at a given time in a society depends upon values
which are relative and not on any intrinsic worth of the act or omission and that makes
the study of crime unscientific. The categories set up by the criminal law are of a
“fortuitous nature” and do not arise intrinsically from the nature of the subject-matter the
scientists attempt to analyze. This charge of variation in the legal attitude towards

various acts is countered by the supporters of the legalistic approach by pointing out
that not only do the legal norms vary due to various circumstances but also all the social
norms which are essentially relative and impermanent. Criminal law not only given
precise definition of forbidden acts but also has the machinery and procedure to
determine the violation and, the5refore, is able to identify the offenders, which is not
possible in cases where certain conduct is branded as criminal in social terms
irrespective of prevailing legal notions. This certainly is the advantage in the legal
definition over the social one despite the various inherent weaknesses of criminal law
processes like non-prosecution of many offenders, the possibility of false conviction,
greater possibility of failure to convict all guilty persons and of innumerable cases
remaining unreported to the police, the best exposition of the case for legal definition
has been made by Paul W. Tappan, as :
The validity of this contention must depend, of course, upon that the nature of the
subject-matter is. These scholars suggest that, as a part of the general study of human
behaviour, criminology should concern itself broadly with all anti-social conduct,
behaviour injurious to society. We take it that anti-social conduct is essentially any sort
of behaviour which violates some social interest. What are these social interests which
are weighty enough to merit the concern of the sociologist, to bear the odium? What
shall constitute a violation of them? Particularly where, as is so commonly true in our
complicated and unintegrated society, these interests are themselves in conflict?
Roscoe Pound’s suggestive classification of the social interests served by law is
valuable in a juristic framework, but it solves no problem for the sociologist who seeks to
depart from legal standards in search of all manner of anti-social behaviour. However
desirable may be the concept of socially injurious conduct for purpose of general or
abstract description, it does not define what is injurious. It sets no standard and it does
not discriminate cases, but merely invites the subjective value-judgment of the
investigator.”
From the forgoing definitions, it may be said that a crime is a wrong to society involving
the breach of a legal wrong which has criminal consequences attached to it, i.e.
prosecution by the State in the criminal court and the possibility of punishment being
imposed on the wrongdoer.
The issue is in favour of the legal definition by observing that convicted criminals
represent the closest possible approximation of those who have in fact violated the law
even if this group may not be complete or fully representative of all those who have
committed crime.
Broadly speaking, every criminal behaviour must respond to the following tests in order
to be reckoned as a crime:-
(i) There should be an external act (Actus).
(ii) It should be done with some criminal intent (mens rea).
(iii) It should be prohibited conduct under the existing law, and
(iv) It should carry with it some kind of punishment.
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 cause of criminality and suggests remedies to reduce
crimes.
Even if the legal definition of crime is accepted in preference to the social definition for

the study of criminology, it does not provide any guide as to what kind of human
conduct should be declared ‘criminal’. It is true that in most of the crimes there is the
common element of immorality and the harmful nature of the acts constituting crime.
This is particularly true of traditional crime known as mala in se. But there are various
other offences in which there is no eleme4nt of immorality in the traditional sense, these
are known as mala in prohibita, and, on the other hand, there are many acts which are
not crimes, despite the element of immorality being present in the accepted sense.
What conduct should be made criminal depends not only on the question whether the
conduct is moral or immoral but also on the considerations of the possibility of its
implementation through the legal machinery.
Paul W. Tappan was of the opinion that criminology is synonymous with the sociology of
criminal law. The view that crime is an undesirable social behaviour is in particular
reflected in the field of juvenile delinquency since delinquency is wider term than
criminality.
Even when the word crime is used in the legal sense by criminologists, it is not all types
of violation of criminal law which would fall within the domain of criminology as the
proper subject of study. In contemporary society many offences have been created
which are known as ‘social welfare offences’ based on strict responsibility. They are
different from traditional crimes and, therefore, mala in prohibita and not mala in se. The
concept of mala in Prohibita almost concides with the modern notion of ‘public welfare
offences’.
The widening of the area of crime by ‘public welfare offences’ has been caused due to
the tremendous governmental activity almost everywhere in the world to deal with
various socio-economic problems.
Schools Of Criminology
The Pre-Classical School:

The history of primitive societies and early medieval period reveals that human thinking
in those days was predominated by religious mysticism and all human relations were
regulated through myths, superstitions and religious tenets prevailing in a particular
society. There was a general belief that man by nature is simple and his actions are
controlled by some super powers. It was generally believed that a man commits crime
due to the influence of some external spirits. They considered crime and criminals as an
evidence of the fact that the individual was possessed of devil and the only cure for
which was testimony of the effectiveness of the spirit. Worships, sacrifices and ordeals
by water and fire were usually prescribed to specify the spirit and relieve the victim from

its evil influences. Ever since the time of Manu it has been repeatedly argued that
ordeals are the creations of Brahma and have been practiced by gods, great sages and
all thoughtful persons.
The pre-classical thinking, however, withered away with the lapse of time and
advancement of knowledge. Though these practices appear to be most irrational and
barbarious to the modern mind, they were universally accepted and were in existence in
most countries.
The Classical School:
During the Middle of 18th century, a systematic study of criminology was first taken by
the Italian scholar Beccaria who is known as father of modern criminology. His greatest
contribution to the science of criminology was that he for the first time proceeded with
the study of criminals on a scientific basis and reached certain conclusions from which
definite methods of handling crime and criminals could be worked out. He expounded
his naturalistic theory of criminality by rejecting the omnipotence of evil spirit. He laid
greater emphasis on mental phenomenon of the individual and attributed crime to ‘free
will’ of the individual. Thus he w as much influenced by the ‘Utilitarian Philosophy’ of his
time which placed reliance on hedonism, namely, the “Pain and pleasure theory”. He
sought to humanize the criminal law by insisting on natural rights of human beings.
Beccaria’s tightly reasoned argument can be summarized in relatively simple terms:-
(1) In order to escape war and chaos, individuals gave up some of their liberty and
established a contractual society.
(2) Because criminal laws placed restrictions on individual freedoms, they should be
restricted in scope. They should not be employed to enforce moral values.
(3) The presumption of innocence should be the guiding principle in the administration
of justice, and at all stages of the justice process the rights of all parties involved should
be protected.
(4) The complete criminal law code should be written and should define all offences and
punishments in advance.
(5) Punishment should be based on retributive reasoning because the guilty had
attacked another individual’s rights.
(6) The severity of the punishment should be limited and it should not go beyond what is
necessary for crime prevention and deterrence.
(7) Criminal punishment should correspond with the seriousness of the crime; the
punishment should fit the crime, not the criminal.
(8) Punishment must be a certainty and should be inflicted quickly.
(9) Punishment should not be administered to set an example, neither should it be
concerned with reforming the offender.
(10) The offender should be viewed as an independent and reasonable person.
Benthem was greatly influenced by Beccaria and carried on the work in the same
direction subsequently. Benthem like Beccaria, was an outright Utilitarian and to him the
only rational basis of any law could be the greatest happiness of the greatest numbers.
The principle, known as Utilitarian Hedonism, requires that punishment, being an evil in
itself, should not exceed more than what is absolutely necessary to produce the desired
effect on the criminal and society.
The contribution of Classical School to the development of rationalized criminological
thinking was by no means less important, nevertheless, it had its own pitfalls. The major

shortcoming of the classical school was that it proceeded on an abstract presumption of

free will and relied solely on the act without devoting any attention to the state of mind of
the criminal. It erred in prescribing equal punishment for same offence thus making no
distinction between first offenders and habitual criminals. However, the greatest
achievement of this school of criminology lies in the fact that it suggested a substantial
criminal policy which was easy to administer without resort to the imposition of arbitrary
punishment.
Neo-Classical School:
The ‘free will’ theory of Classical School did not survive for long. It was realized that this
approach ignored the individual differences under certain situations. The neo-classists
asserted that certain categories of offenders such as minor, idiots, insane or
incompetent had to be treated leniently irrespective of the similarity of their criminal act
because these persons were incapable of appreciating the difference between right and
wrong. This tendency of neo-classicists to distinguish criminals according to their mental
depravity was indeed a progressive step inasmuch as it emphasized the need for
modifying the classical view. The conditions under which a criminal commits a crime
was studied first time in this theory.
Neo-classists approached the study of criminology on scientific lines by recognizing that
certain extenuating situations or mental disorders deprive a person of his normal
capacity to control his conduct. They supported individualization of offender and
treatment methods. The distinction between responsibility and irresponsibility, i.e. the
sanity and insanity of the criminals paved way to subsequent formulation of different
correctional institutions. Neo-classists adopted subjective approach to criminology and
concentrated their attention on the conditions under which an individual commits crime.
The main contribution of the neo-classical school of criminology lies in the fact that it
came out with certain concessions in the ‘free will’ theory of classical school and
suggested that an individual might commit criminal acts due to certain extenuating
circumstances which should be duly taken into consideration at the time of awarding
punishment.
The Positive School:
With the advance of behavioural sciences, the monogenetic explanation of human
conduct lost its validity and new trend to adopt an eclectic view about the genesis of
crime gradually developed. By the 19th of century, certain French doctors were
successfully establishing that it was neither ‘free will’ of the offender nor his innate
depravity which actuated him to commit crime but the real cause of criminality lay in
anthropological features of the criminal. This led to emergence of Positive School of
criminology.
The most significant difference between the classical school and the positivist school is
the latter’s search for empirical facts to confirm the idea that crime was determined by
multiple factor. They primarily emphasized the mind and the body of the criminal, thus to
some extent neglecting social factors external to the individual.
The modern search for multifactor explanations of crime is usually attributed to
Lombroso, an Italian often called “the father of modern criminology”. Lombroso, a
specialist in psychiatry, was serving as army physician handling the mentally afflicted
soldiers at various military posts. For Lombroso the objective search for explaining
human behaviour meant disagreement with free will philosophy. Lombroso made

observations on tattooing, particularly the more obscene designs which he felt

distinguished infractious soldiers. Later Lombroso used the practice of tattooing as a
distinguishing characteristic of criminals.
Lombroso adopted an objective and empirical approach to the study of criminals
through his anthropological experiments. After an intensive study of physical
characteristics of his patients and later on of criminals, he came to definite conclusion
that criminals were physically inferior in the standard of growth and, therefore,
developed a tendency for interior acts. He further generalized that criminals are less
sensitive to pain and therefore they have little regard for the sufferings of others. Thus
through his biological and anthropological researches on criminals Lombroso justified
the involvement of Darwin’s theory of biological determinism in criminal behaviour .
The central tenet of Lombroso’s early explanations of crime is that criminals represent a
peculiar physical type, distinctively different from non-criminals. In general terms, he
claimed that criminals represent a form of degeneracy that was manifested in physical
characteristics reflective of earlier forms of evolution. He described criminals as
atavistic, a thrownback to an earlier form of evolutionary life.
Lombroso classified criminals into four major categories:
(i) The born criminals, people with atavistic characteristics. He considered these
criminals beyond ;
(ii) Insane criminals, who included idiots, imbeciles, and paranoiacs, as well as
epileptics and alcoholics;
(iii) Occasional criminals or criminolids, whose crimes are explained primarily by
opportunity, although they too have innate traits that predispose them to criminality.
They have a tendency to commit crime to overcome their inferiority in order to meet the
needs of survival; and
(iv) Criminals of passion who commit crimes because of anger, love or honour. They are
characterized by being propelled to crime by an “irresistible force”.
Lombroso modified his theory throughout five editions with each one giving attention
more and more environmental explanations including climate, rainfall, sex, marriage
customs, laws, the structure of government, church organization, and the effects of the
other factors. However, he never completely gave up the idea of the existence of a born
criminal type.
Most noteworthy here is the attention he gave to a multifactor explanation of crime that
included not only heredity but social, cultural, and economic variables. He was positive
in method and objective in approach which subsequently paved way to formulation of
multiple-causation theory of crime by the sociologists. The multiple factor explanation is
common in today’s study of crime. Lombroso is credited also with pushing the study of
crime away from abstract metaphysical, legal, and juristic explanations as the basis of
penology “to a scientific study of the criminal and the conditions under which he
commits crime.”
Lombroso’s legacy of positivism was continued and expanded by a fellow Italian, Enrico
Ferri. Unlike Lombroso who gave more attention to biological than to social factors, Ferri
gave more emphasis to the interrelatedness of social, economic, and political factors
that contribute to crime. He firmly believed that other factors such as emotional
reactions, social infirmity or geographical conditions also play a vital role in determining
criminal tendencies in men. He argued that criminality could be explained by studying

the interactive effects among physical factors, individual factors and social factors. He
also argued that crime could be controlled by social changes, many of which were
directed toward the benefit of the working class.
In the first four editions of his work Ferri had only five classes of criminals:
(i) The born of instinctive criminal whom Lombroso had identified as the atavist;
(ii) The insane criminals who was clinically identified as mentally ill;
(iii) The passion criminal who committed crime as a result of either prolonged and
chronic mental problem or an emotional state;
(iv) The occasional criminal who was the product of family and social conditions more
than abnormal physical or mental problems; and
(v) The habitual criminal who acquired the habit from the social environment.
In the fifth edition of his work he added a new explanation of crime, the involuntary
criminal.
After Lombroso and Ferri, Raffele Garofalo was the last major contributor to the
positivist school of criminology. Unlike Lombroso’s emphasis on criminals as abnormal
types with distinguishable anatomic, psychological and social features, or Ferri’s
emphasis on socialistic reforms and social defenses against crime, Garofalo is
remembered for his pursuit of practical solutions to concrete problems located in the
legal institutions of his day and for his doctrine of “natural crimes”.
Garofalo’s theoretical arguments on the nature of crime and on the nature of criminals
were consistent with social Darwinism. He argued, for example, that because society is
a “natural body” crimes are offences “against the law of nature”. Criminal action was
therefore crime against nature. Accordingly, the “rules of nature” were the rules of right
conduct revealed to humans through their reasoning. Garofalo’s thinking also included
some influence from the classical school and its emphasis on reasoning. He
nevertheless identified acts that no society could refuse to recognize as criminal and
repress by punishment: natural crimes. These offences, according to Garofalo, violated
two basic human sentiments found among people all ages, namely the sentiments of
probity and pity.
He argued that true criminals lacked properly developed altruistic sentiments. True
criminals, in other words, had psychic or moral anomalies that could be transmitted
through heredity. This conclusion led Garofalo to identify four criminal classes one
distinct from the other because of deficiencies in the basic sentiments of pity and
probity:
(i) Murderers whom he called “endemic” criminals
(ii) Violent criminals who are affected by environmental influences such as prejudices of
honour, politics and religion;
(iii) Criminals lacking in sentiments of probity (Thieves);
(iv) Lascivious or lustful criminals who commit crimes against sex and chastity.
He reasoned that because true criminals’ action revealed an inability to live by the basic
human sentiments necessary for society to survive, they should be eliminated. Their
death would contribute to the survival or society. For lesser criminals, he proposed that
elimination take the form of life imprisonment or overseas transportation.
It is clear that deterrence and rehabilitation were secondary considerations for Garofalo.
However, he favoured “enforced reparation” and indeterminate sentences, which
indicates that Garofalo’s social defenses against crime were modeled to some extent on

the psychic characteristics of the offender. In this regard his position of punishment is
more in line with the free will reasoning of the classical scholars than Garofalo might
admit.
He strongly pleaded for elimination of habitual offenders who were incapable of social
adaptation as a measure of social defence.
Ernest A. Hooton, proceeded to a detailed analysis of the measurements of criminals
and non-criminals from eight different states. He argued that “criminals are inferior to
civilians in nearly all of their bodily measurements”. He also reported that low foreheads
indicated inferiority and that “a depressed physical and social environment determines
Negro and Negroid delinquency to a much greater extent than it does in the cases of
Whites”.
These and similar conclusions generated severe criticism of Hooton’s work, especially
the racist overtones and his failure to recognize that the prisoners he studied did not
represent criminal offenders who had not been caught or offenders who had been
quality but not convicted. His control group was criticized also for not being
representative of any known population of people. Hotoon was criticized also for treating
some small difference in measurement as greatly significant and for ignoring other
differences that were found.
It is important to notice that despite the stinging criticism received by Hotoon and by
others who were searching for biological explanations, the search nevertheless
continued and expanded. The work by Sheldon, for shifting attention away from adults
to delinquent male youths. In an effort to link physiques to temperament, intelligence,
and delinquency. By relying on intense physical and psychological examinations,
Sheldon produced an ‘Index to Delinquency” that was used to give a quick and easy
profile of each male’s problems.
Sheldon classified the boys’ physiques by measuring the degree to which they
possessed a combination of three different body components. The three components
were:
(i) endomorphy;
(ii) Mesomorphy; and
(iii) Ectomorphy.
Each could dominate a physique. Endomorphs tended to be soft, fat people;
mesomorphis had muscular and athletic builds; ectomorphs had skinny, flat, and fragile
physiques.
Sheldon concluded that because youths came from parents who were delinquent in
very much the same way that the boys were delinquent, in very much the same way
that the boys were delinquent, the factors that produce delinquency were inherited.
The greatest contribution of positive school to the development of criminal science lies
in the fact that the attention of criminologists was drawn for the first time towards the
individual, that is the personality of criminal rather than his act or punishment. The
positive school introduced the methology and logic of natural science in the field of
criminology. The positivist school also helped to usher in an approach to policy that was
reformative rather than punitive in impulse. To be sure, the conclusion that offenders
are characterized by unchangeable bodily or psychological characteristics leads
logically to the conclusion that offenders should be either eliminated, caged indefinitely,

or altered physically through instructive measures.
Individualistic Approach
(Crime Causation Theories)
Criminologists have always differed in their views regarding crime-causation.
Continental criminologists often support the endogenous theory of criminality which is
founded on bio-physical consideration of criminals. The American criminologists on the
other hand, are more inclined to explain criminality in terms of social factors. Thus, the
former approach the problem of crime-causation subjectively while the latter are
objective in their approach. This subjective approach to crime-causation has eventually
led to the evolution of typological school of criminology which suggests that there are
certain personality type of criminals who take to criminality because of their heredity,
psychopathic and bio-physical traits. To many people, crime is a consequence of some
faulty characteristic of the individual or the individual’s life experiences. The
Individualistic approach focus attention on biological, mental and other characteristics of
the offender to explain the cause of his delinquent behaviour.
The positive school of Italy focused its attention on the personality of the offender and
rejected the free-will theory. They explained crime primarily in terms of factors within the
criminal, i.e. physical, biological and mental traits and, therefore, either ignored external
factors altogether or gave them secondary importance. The main utility of Individualistic
Theories is that for the first time the focus of the attention was shifted from crime to the
criminals.
Lombrosian is regarded as the father of modern criminology since he was the first to
employ scientific methods in explaining criminal behaviour and shifted the emphasis
from crime to the criminal. Lombrosian through their biological and anthropological
researches succeeded in establishing a correlation between heredity of the criminal and
his criminogenic tendencies.
The psychiatrists, on the other hand, located crime in mental depravity of the criminals.
Mental deficiency does not play any direct role in the causation of criminal tendency in a
person but indirectly it may be relevant because social adjustment can be more difficult
for persons with low intelligence. The psychologists explained crime in terms of
personality deviations.
Lombroso’s theories have been severely criticized by modern criminologists. It has been
pointed out that he used the term atavism loosely since physical traits of criminals as

well as social customs were regarded by him as of atavistic significance. His

assumption regarding some sort of nexus between atavism and criminal behaviour has
no scientific base. He also failed to appreciate that both criminal as well as non-criminal
behaviours were the result of the process operating on the basis of various social and
physical factors.
Biological differences in human personality also accounts for criminality in human
beings. The logic behind biological explanation of crime is that structure determines
function and persons behave differently owing to the fact that they are somehow
structurally different. The physical and biological abnormalities are generally responsible
for criminal behaviour. Hooton attempted to show that crime and other anti-social
behaviours are due to physical and social factors. He seemed to vindicate Lombroso’s
anthropological findings about criminal behaviour. After an intensive study of prison
inmates he concluded that prisoners differ from non-criminals in various physical
particulars that composed definite pattern of physical inferiority.
Hooton said that, “Criminals are organically inferior. Crime is the resultant of the impact
of environment upon low grade human organism”. He also tried to establish some nexus
between the physical characteristics of the offenders and the type of offences
committed by them. His study disclosed that murders and robbers were of tall and thin
stature, thieves and burglars were undersized, while sexual offences and assaults were
committed by persons of short and heavy constitution.
Hooton’s studies was contradicted on various grounds. It was said that there was no
such nexus by pointing out that half of the prisoners studied by Hootan were convicted
of different offences earlier. There is yet another defect as pointed in the studies
undertaken by Hooton & Sheldon. The two have different ideas regarding physically
inferior type of people. To Hooton the criminal is an inadequately developed, runty
fellow, while Sheldon chooses the husky and athletic type as the typical criminal.
Sheldon tried to establish a co-relation between physical structure of the criminal and
the crime through what he called the application of constitutional theory to human
behavioural problems. He developed his ideas from the fact that life begins in the
embryo which is made up of three different tissue layers, namely, an inner layer called
endoderm, a middle layer known as mesoderm and an outer layer or ectoderm. He
correlated a corresponding physical and mental typology consistent with the known
facts from embryology and the physiology of genetic development. He pointed out that
physiologically, the endoderm gives rise to the development of digestive viscera, the
mesoderm to bone, muscle and tendons of the motor-organ system, the ectoderm to
connecting tissues of nervous system, skin and related appendages. He summarized
the basic characteristics of physique and temperament of these types of physical
structure as follow:
(1) Endomorphic structure: They are persons with fatty or bulky body having short
tapering limbs, small bones, soft and smooth skin and are usually of mild temperament
and comfortable persons.
(2) Mesomorphic Structure: Persons with such structure are strongly built with
prominent muscles and bones and connective tissues. They have heavy chest and
large wrists and hands. These persons are temperamentally somotonic, active,
dynamic, assertive and behave aggressively.
(3) Ectomorphic: Persons with ectomorphic structure are constitutionally lean and fragile

with delicate body, small face, sharp nose and fine hair. They are sensitive by
temperament and avoid crowds.
Sheldon further asserted that these physical structures were directly related to
temperament of the person who committed crime. Thus according to him, endomorphic
were moody and accommodative by nature while the mesomorphics had a rigid and
somewhat ‘serious’ temperament. The ectomorphics, on account of their delicate
physical built-up, are often shaky in their decisions and are short tempered. He
attributes criminality to endomorphic and mesomorphics rather than the ectomorphics.
While discussing the personality aspect of the criminal Taft lays emphasis on the effect
of intelligence and its impact on crime causation. He asserts that persons lacking in
average intelligence are generally not aggressive, anti-social or sexually promiscuous,
but are rather inactive and timid. They easily lend into criminality because they cannot
foresee the possible consequences of their acts and are unable to adjust to the
complexities of modern life. Their incapability to distinguish between right and wrong or
to foresee the danger of detection is yet another cause of their criminal behaviour. But it
has been sufficiently established by now that feeble-mindedness forms a very small
proportion of delinquencies and in fact crimes are mostly committed by persons of
considerable intelligence and sharp outlook.
Psychopaths contend that offenders lend into criminality on account of functional
deviations and mental conflicts. Sigmond Freud explained mental conflicts in the
personality of criminals in terms of :
(i) id;
(ii) ego; and
(iii) super ego.
He asserted that ‘Id’ generates basic biological and physiological urges and impulses in
a person. ‘Id’ is the source of basic biological drives in a human being and is present at
the time of birth and also operates in the unconscious state. Throughout life the ‘id’
constantly seeks expression of a social drive. The viewpoint that we are all potential
criminals is not peculiar to psychoanalytic approach alone but has been expressed by
many other philosophers and writers.
While ‘ego’ refers to the conscious personality, an attitude which grows out of contact
with the material and social world, of which the individual is aware. That is to say,
although the desire for sex pleasure and hunger are basic urges of a person yet he is all
the time conscious that only the righteous means urges of a person yet he is all the time
conscious that only the righteous means to fulfil these desires protect his personality
and any deviation from the normal course shall cast aspersions on his personality.
‘Super ego’ according to him is the force of self-criticism and control inherent in every
person. Thus there is a constant conflict between ‘Id’, ‘ego’ and ‘Super-ego’. He
therefore, contends that crime is the substitute of symbolic behaviour of a person.
According to Freud, the ‘ego’ does not exist at birth, but it is something the individual
learns. Gradually ‘ego’ develops and starts controlling the temper i.e., ‘id’. The ‘super-
ego’ is largely part of the unconscious personality. It is the conscience which exists in
the unconscious areas of mind. The super-ego thus characterizes the fully socialized
and conforming member of society. It is the impact of moral and ethical attitudes of
parents with whom the child has his or her earliest contacts and relationships which
helps in formation of the ‘super-ego’.

Thus, it would be seen that ‘id’ demands pleasure, while the ‘super-ego’ demands
control and repression and both push ego towards its own. As a result of this, there is a
conflict which is difficult to resolve. Where the ‘super-ego’ in a child is not well
developed, he is likely to be drawn towards delinquency. Freud postulated that the
failure to develop ‘super-ego’ was generally the result of parents being unloving, harsh
or absent during the child’s upbringing. It is for this reason that socializing processes
had failed to work on those children whose latent delinquency had become dominant;
the children were, therefore, dis-social, if not anti-social.
Psychologists also recognise that other factors such as relationships with persons
outside the family and general social environment can also affect the formation of
‘super-ego’. If ‘super-ego’ is over-developed, it may lead to guilt feeling.
The adherents of the approach appear to hold the view that no other approach is
capable of disclosing the whole truth about the criminal. The obvious merit of the
psychoanalytical approach is that social factors are also accommodated in the analysis
of the ultimate personality of the offender by taking into account the interaction of ‘ego’
and ‘super ego’.
The difficulty in the application of psychoanalytical approach in cases of individual
criminal behaviour is the fact that it is quite difficult to examine the actual mental state of
a person with the tools available to psychoanalytical science at present. To investigate
the measure emotion is an extremely complex job.
The individualistic approaches have lost mush of the credibility with the advent of more
sophisticated environmental theories. Their main weakness lies in the fact that they fail
to see that crime represents a socio-cultural phenomenon which is not associated with
the physical or mental equipment of an individual as such.

Conflict Theory of Crime
The popular view, of the definition and concept of crime is that (1) the law represents
the values of society; (2) if it does not represent the value of everyone, then it at least
expresses the best common denominator of society and operates through a value-
neutral governmental structure, which is ultimately controlled by the choice of the
people; and (3) in the long run the law serves the best interest of society. A contrary
view has been taken by the modern conflict criminologists holding that the apparent
consensus may be deceptive and a deeper analysis would lead to the conflicting forces
operating in the formulation of criminal conduct and administration of criminal justice.
1. Sellin’s Culture Conflict Theory:- Sellin asserted that culture conflict emnates from
conflict of conduct norms, where each separate culture sets out its own norms i.e. rules
of behaviour to be instilled into its members. In a situation like this, law would evidently
reflect the values of the dominant class and not of the society as a whole; the
phenomenon thereby often bringing the members of the non-dominant group in collision
with the legal norms.
Conflict between the norms of divergent cultural codes may arise in the following
situations:
(i) When these codes class on the border of contiguous culture areas;
(ii) When, as may be the case with legal norms, the law of one cultural group is
extended to cover the territory of another; or
(iii) When members of one cultural group migrate to another.
2. Vold’s Group Conflict Theory.- Vold propounded his theory based on conflict among
various interest groups; emergence of new groups making it a continuous process. He
argued that people are naturally group oriented and those who have same interests
come together to form a group in order to carry forward these interests. The central
theme of Vold’s theory is that different groups have different and often incompatible
interests which gives rise to conflicts. Where groups have similar strength, then they
often resolve their conflict by compromise thus lending stability to society. But, if the
groups are of differing strength, the powerful one dominates which creates frustration
and feeling of discontent among the weaker group which eventually leads to crimes.
Thus, crime according to Vold is not the result of abnormality, but it is rather a natural
response to an attack on the way of life of the deprived or weaker group.
3. Quinney’s Theory of Social Reality of Crime.- Quineey focused on the conflicts of
groups in the context of the various institutions, and public. The diverse groups,

according to Quineey, were linked to the major institutional concerns but the interest
structure was characterized by the unequal distribution of power. He rejected the
pluralist notion that law represents the compromising of diverse interests; rather law
supports some interests at the expense of others.
Quineey laid down six propositions regarding crime and operation of criminal law, the
propositions by no means original but based on earlier theories. Some of the aspects in
the propositions may be elaborated as follows:
(i) Law in operation is an aspect of politics. Thus crime not a matter of individual
pathology, ‘but is a judgment made by some about the actions and characteristics of
others’.
(ii) In the creation and interpretation of law, the values of some necessarily taken into
account may negate the values held by other. The relative power and influence of the
segments to which individuals may belong would determine the situation.
(iii) The politics of reality is that people grant those in power the authority to carry out
the actions that best promote the interests of the authorities.
4. Turk’s Theory of Criminalisation.- The main thrust of this theory is that cultural
differences alone do not cause social conflicts, the crucial factor is the difference
between the perspectives of authorities and subjects which are bound to be at variance
and may clash overtly. In his analysis Turk uses the factor of sophistication ‘by which is
meant knowledge of patterns in behaviour of other which is used in attempts to
manipulate them’.
5. Chambliss and Seidman’s Analysis of Criminal Justice.- some conflict criminologists
have studied the working of criminal justice system and one such study made by
Chambliss and Seidman is the most exhaustive.
They did not find the consensus theory operating in the criminal justice system.
According to them, “every detailed study of the emergence of legal norms has
consistently shown the immense importance of interest-group activity, not the ‘public
interest’, as the critical variable in determining the content of the legislation. Like other
conflict criminologists, they also maintain that “ higher a group’s political and economic
position, the greater is the probability that its views will be reflected in the laws”. The
personal values of the judges, as reflected in deciding ‘trouble cases’, are primarily
oriented to the wealthy than the poor. This bias on the part of the appellant judges can
be appreciated keeping in view their privileged social and economic background. Thus
public interest in criminal justice is represented only to the extent that it coincides with
the interest of the existing power groups.
A number of studies have been made to test the ‘differential behaviour of criminal law’;
to examine whether the system operates in favour of wealthy and powerful persons.
Sutherland’s theory of Differential Association as an explanation of crime-causation
seems inevitable as it extends positive support to the impact of psychological traits on
incidence of crime. Considering the structural aspect of human association, Sutherland
suggested that social organization consists of three main groups, viz., one supporting
the criminal activities, the other remaining neutral to criminal circumstances third acting
anti-criminal. He further observed that the differential association in human organization
is a logical consequence of the phenomenon.
It is often argued that Sutherland’s theory of differential association as an explanation of
crime-causation has only a theoretical significance because it lacks reality. Alternatively,

the conflict theory of crime which considers crime as a minority group behaviour places
reliance on psychological trends of human behaviour in relation to crime.
It must be stated that conflicts generally arise from misunderstanding, lack of
understanding, clash of interests, gulf between the views of beliefs of persons or
parties, suspicion, lack of justice, fair play or honesty, intolerance and violence and lack
of rapport, love, and cooperation etc. Once the conflicts arise and not quickly resolved,
the situation leads to confrontation, social instability, disaffection and lawlessness which
finally culminates into violence and criminality. It is, therefore, in the interest of the
society that the cause of tension and conflict be eliminated and if they do arise, they
must be resolved at the earliest. This is perhaps the best way to mitigate crimes.
Sociological (Environmental) Approach
Sociological approach seeks to explain the phenomenon of criminal behaviour with

reference to factors outside the personality of the delinquent. The subject-matter for the
analysis of criminal behaviour extends from the individual delinquent to the community,
social institutions and group relationships which shape both criminal and non-criminal
behaviour. In this approach criminal behaviour is looked upon as resulting from social
interactions.
In this approach the impact of various social and environmental conditions within which
crimes generate. American criminologists preferred to approach the problem of crime
causation objectively. They attributed criminality to social conditions of the criminal.
The sociological theory of crime asserts that there are persons who do not conform to
the established norms and traditions prescribed by law. These persons do not adjust
themselves within the framework of normal standards of society and are more or less
indifferent to societal norms.
Tarde provided the starting point of the explanation of crime in terms of social factors.
He is considered as father of social psychology. He criticized and even ridiculed the
theories of his contemporary, Lombroso. He compared the detection of criminality on
the basis of physical traits by Lombroso with the detection of divinity by Tibetan priests
in a newborn baby on the basis of appearance while choosing the future great Lama.
Tarde did not think that even psychological criminal were unique compared to non-

criminals. According to him criminal behaviour is the result of a learning process. A

person learns criminal behaviour just like any other trade which he picks up in his
childhood. Tarde’s theory was the precursor of the modern ecological and differential
association theories.
Garofalo was perhaps the first legalist to attempt a sociological definition of crime. He
designated all those acts as crime which no civilized society can refuse to recognize as
criminal redressible by punishment. He observed that crime is an immoral and harmful
act which is regarded as ‘criminal’ by public opinion because it is an injury to so much of
the moral sense as is represented by one or the other of the elementary altruistic
sentiments of probity and pity.
Sociological view point about the concept of crime is more realistic than its legal
definition. It is true that with the repeal of law relating to theft, stealing shall no longer
remain a crime, nevertheless it would still entail public indignation. Thus “although the
name of the behaviour would be changed yet the behaviour and social reaction to it
would still remain the same, because the social interests damaged by the behaviour
would still remain unchanged”. Sociologists assert that every crime involves three
essential elements, namely,
(i) Values that are appreciated by the law-makers who are politically dominant;
(ii) Conflict of interests in society due to environmental variations;
(iii) Use of force and coercive measures by the offenders.
Sociologists contend that like any other social behaviour the criminal behaviour also
results from certain environmental conditions. Therefore, the variations in crime-rate are
due to variations in social organization under different systems.
_____________________________________________
Social Disorganization Theory
This theory pre-supposes that criminals are a product of society. Social change is
inevitable in a dynamic society and though not bad in itself, it results sometimes in
disharmony, conflict and cultural dichotomy. This is specially true when the social
change happens to be of a fast pace. This kind of unnatural pace obviously is inevitable
to lead to disorderly social change. The impact of sociological factors is so great on
persons that they either shun criminality or embrace it, depending on their environment
and immediate social conditions. Social change may in such a situation, produce what
is called ‘social disorganization’.
The term social disorganization was used to describe the disruptive impact of life in a
strange new environment. It was defined as the decrease of the influence of existing
rules of behaviour on individual members of the group. As Wirth has noted referring to a
community as “disorganized” implies some criteria by which an organized society may
be identified. Personal disorganization and social disorganization are two distinct
phenomena. According to Thomas, social organization is not co-extensive with
individual morality nor does social disorganization correspond to individual
demoralization.
Social disorganization has been defined as a decrease of the influence of exiting social
rules upon individual members of the group. This phenomenon is different from the
violation of social rules by individuals, because that is something normally expected in
even relatively stable societies where not much damage is possible due to effective
social sanctions, including criminal law. Social disorganization may be due to cultural

conflicts between different values of different sections of society.

A general flow of showing the development to a stage of social disorganization:
Industrialization, urbanization leads to migration to cities → Leads to change in life style
→ Lessening of family control & social sanctions → Tensions for want of food, cloth,
housing, medical, educational facilities lack of employment → Migrators are stronger →
Less fear of detection → Increase in Crime.
W.I. Thomas said that social disorganization occurs due to rapid change in technologies
due to:
(1) Sudden booms and depression;
(2) Crises & natural disasters.
This theory focus on Five conditions in environment”
(i) Deteriorated neighborhood;
(ii) Inadequate social control;
(iii) Conflicting social values;
(iv) Inadequate supply of necessities in life; and
(v) Breakdown of social institution like family.
Thomas isolated several possibilities in looking at society and community, or a group:
1. Social disorganization can exist without persona disorganization. The “Creative man”
is one who appears during a period of disruption and realizes his interest by violating
traditional rules and incorporating into his own life plan elements of schemes which are
competing with traditional ones.
2. Personal disorganization can exist without social disorganization. Personal
demoralization can occur in the happy village. An individual may fail to realize his life
goals precisely because of his conformity and lack of flexibility. This personality type
was labeled the ‘philistine’.
3. Personal disorganization may result from social disorganization. This is the response
of “behaviour” personality.
Disorganization, according to Thomas, can occur as a result of excessive rapid change,
like an increase in the volume and density of population. It might also be caused by its
opposite, sudden decline in population, or rapid changes in technology or material
culture might generate a temporary state of disorganization. Sudden booms,
depressions, crisis, and natural disasters may cause a state of social disorganization. It
may result due to cultural conflict between different values of different sections of
society. The difference may be between old and new values local and imported values
and traditional values imposed on a community by the law or administrative organs. In
this context two studies made in the Thomas relation to the Polish peasants settled in
the U.S.A. and the Eskimos are reproduced as illustrations to demonstrate a vast
difference in the old and new value system among the most disorganized group of
Polish Peasant settlers in the US. The members of the group no longer had the urge to
continue to cherish their status on the basis of taste for luxurious things like fashionable
clothes and liquor which they were not willing to share with the other members of the
group. Under the influence of new environment the “we-attitudes” based on peasant
family values changed into highly hedonistic individualistic attitude.
The phenomenon of social disorganization was conceived of as part of a three-state
process-organization, disorganization, and reorganization. The total theory heralded the
emergence of newer, more complex and more cohensive forms of reorganization.

Normally the process of disorganization and organization may be thought of as in

reciprocal relationship to each other, and so co-operating in a moving equilibrium of
social order towards an end vaguely or definitely regarded as progressive. So far as
disorganization points to reorganization and makes for more efficient adjustment,
disorganization must be conceived not as pathological, but as normal.
Another corollary of disorganization is the variable of political stability as measured by
political scientists. Park maintains the political stability is one index of organization in a
community.
The social disorganization may also emerge sometimes due to ‘cultural leg’. Cultural leg
can be described as an unequal growth of the various components of culture in a
society resulting in a gap between those components.
_____________________________________________
Theory of Differential Association
Theory of Criminality based on ‘differential association’ has been presented by
Sutherland. The theory asserts that crime is learnt by association with others. According
to him, behavioural learning takes place through personal contacts with other people.
This learning, in the context of crime, involves both the techniques for committing the
crimes and the attitudes and rationality or justification for their committal. The theory of
differential association centers round the theme that a person becomes criminal if there
is an excess of influence on him favourable to the violation of the law as compared with
the influences which are unfavourable to violation of law.
Sutherland does not think that delinquents are disorganized and hence has no use for
the expression ‘social disorganization’. He prefers instead the term ‘differential group
organization’. In other words, according to Sutherland, there are in fact two types of
organization operating within the community, namely, organization for criminal purposes
and organizations against criminal activities.
Sutherland maintained that so far as the learning process was concerned, it was the
same for both criminal and non-criminal conducts. Some techniques relating to the
commission of crimes may be learnt through association with criminals alone but others
are acquired in the normal course of education since it is not the difference between
criminal and non-criminal techniques as such which matters but the particular use made
of them. So what is actually needed to develop criminal behaviour in many of them. So
what is actually needed to develop criminal behaviour in many instances is not the
crime-committing technique but some sort of rationalization to use the techniques for
criminal purposes. This rationalizing capacity is learnt through association with criminals
which gives him definitions justifying his deviant conduct.
The elements of Sutherland’s theory are summarized in nine propositions:
(1) Criminal behaviour is learned.
(2) Criminal behaviour is learned in interaction with other persons in a process of
communication.
(3) The principal part of the learning of criminal behaviour occurs within intimate
personal groups.
(4) The learning of criminal behaviour includes (a) techniques of committing a crime, (b)
the specific direction of motives, drives, rationalization, and attitudes.
(5) The specific direction of motives, drives, etc. is learned from definitions of the legal
codes as favourable or unfavourable.

(6) A person becomes delinquent because of an excess of definitions favourable to

violation of law over definitions unfavourable to violation law. (This is the principle of
differential association).
(7) Differential association may vary in frequency, duration, priority, and intensity.
(8) The process of learning criminal behaviour by association with criminal and anti-
criminal patterns involves all of the mechanisms that all involved in any other learning.
(9) Although criminal behaviour is an expression of general needs and values, it is not
explained by these needs and values, since non-criminal behaviour is an expression of
same needs and values.
The significant feature of Sutherland’s theory is his claim that pro-criminal sentiments
are acquired, as are all others, by association with other individuals in a process of
social interaction.
Various criticisms and question have been directed to this theory. Firstly, it has been
said that no all those persons who come in contract with criminals become criminal
themselves. Quite rightly, Sutherland found the answer in the counteracting influence of
contact with anti-criminal groups. In other words, the definitions provided by the contract
with anti-criminal groups happen to be more persuasive in their case than the ones
provided by the contact with criminals. Another connected question posed is that once
initiated, why does not criminal behaviour increase indefinitely until everyone is a
criminal? Sutherland answered it on the basis of his concept of differential group
organization. The measures taken by the anti-criminal group organization, as a result of
the threat of crime posed by the opposite group, are effective enough to curb the
delinquent tendencies.
Another criticism has been that Sutherland meant “contract” when he used the term
“association” and thereby implied physical proximity with the criminal. According to him
most individuals are believed to identify themselves with both criminal and non-criminal
persons in the course of their lives. Hey may have first-hand experience in delinquency
groups. They may identify themselves with criminal roles presented in fiction, movies,
television, or the press. They may react against any criminal group.
Principal criticism against the theory is that it does not adequately take into account the
“personality traits”, “personality factors” or “psychological variables” in criminal
behaviour. Sutherland took this kind of criticism seriously, and in an early period he
stated that this theory probably would have to be revised to take account of personality
traits.
_____________________________________________
Anomie
Anomie is a vital term vaguely defined and generously applied. The literal meaning of
the word ‘anomie’ is normlessness. Durkheim formulated the concept and used it in
particular to explain the behaviour which he referred as anomie suicide. Human beings
have unlimited desires, the only control to these being provided by society and public
opinion which lose much of their efficacy in time of economic changes and moral
stresses and strains. A high rate of both suicide and homicide is to be found in an
anomie-ridden society.
Robert K. Merton, the other sociologist who based his theory on ‘anomie’ used the
concept a bit differently that the needs and desires which went beyond that could be
achieved through socially approved channels in societies which profess to be of

egalitarian character capable of giving equal opportunities to all.

It is paradoxical, though true, that sometimes the very norms which are laid down by
society for achieving conforming behaviour tend to produce just the opposite result in
the form of criminal behaviour. According to Merton’s theory of anomie, delinquency (
and other forms of deviance) is a response to the unavailability of conventional or
socially approved routes to success, and is characteristic of lower-class persons since
the social structure strains the cultural values, making action in accord with them readily
possible for those occupying certain status within the society and difficult or impossible
for others. The term anomie was used by Merton for a condition in a social system when
cultural regulation of behaviour is weakened. IN other words, what is encouraged in
society is “success” and so goals are more important than the means to achieve those
goals. Merton gives the example of sports and games, the way they are sometimes
played in the USA. Winning the match is more important than the spirit of the game.
Messer Rosenfelt said that every person in USA has a goal to achieve and means to
achieve it. There are two perception to achieve a goal. Firstly, “It is playing the game
that matters not the winning” and Secondly “It is winning that matters not the game”.
People who adopt the goals of the society but lack the means to achieve that seeks
alternatives such as crime. He points out how competition for success create conflict &
crime. He suggest that it is social conditions & not personality can account for crime.
Material goals are the goals for the day.
His theory was criticized on :
(i) Goals & Means: This is not a universally acceptable factor.
(ii) Choice of Crime: Why is it when some persons have some goal. Same goals cannot
be achieved it then tend to adapt different means.
(iii) Dwindling with age: Why most young criminals dissent from crime when they grown
in age.
The position obtained in contemporary Indian society does not appear to be an absolute
misfit in the “scale of anomie”. The scale comprises five items related to an individual’s
perception of his social environment and his perception of his own place within that
environment. They are as follows:
1. The perception that community leaders are indifferent to one’s needs.
2. The perception that little can be accomplished in society which is seen as basically
unpredictable and lacking order.
3. The perception that life’s goal are receding rather than being realized.
4. A sense of futility.
5. The convention that one cannot count on personal associates for social psychological
support.
An analysis of the forgoing socio-cultural and economic explanation of crime suggests
that no single theory can offer an adequate explanation for crime causation. It ,
therefore, follows that delinquent behaviour is an outcome of the combination of a
variety of factors which create situation conductive to criminality. With the widening of
social interaction due to the impact of industrialization, urbanization, etc there is need
for community control.
_____________________________________________

Economic Approach
In the words of Carl Marx economic conditions determine the general character of the
social, political and spiritual processes of life and with the change of economic
foundations, the entire superstructure is also rapidly transformed. Legal philosophers of
all ages have accepted that economic conditions have a direct bearing on crime.
Economic structure is one of the important causes of criminality. Poverty gives rise to
hunger, misfortune, diseases and anger, which destroys the personality of an individual
and makes him irresponsible to do undesirable acts. Under the circumstances, he is
forced to lend himself into criminality. The economic factor has a close bearing on
criminality and crime-rate rises when poverty increases in times of economic
depression.
Marxists Theory:
Marxists have propagated a view that crimes emerge solely out of capitalist domination
of society. Under such society the upper class can exploit the weak, put them in
physical danger, and transgress their human rights either with impunity or with only
lighter punishment. The Marxists believe that unfair division of labour and capital would
eventually lead to a conflict between rich and the poor and finally to the overthrow of
capitalist ideals. In result, communism would replace capitalism. Criminal law in a
capitalist regime is an instrument of the State and ruling class to perpetuate the
capitalist social economic order and it is meant for the protection of their interest. Under
these circumstances, the poorer sections of society remain oppressed through the
coercion of legal system and their discontentment generates crimes. It is not only with
the collapse of capitalist society that the problem of criminality can be solved.
The Marxists, however, differ in their view regarding the effect of economic conditions
on criminality. In their opinion the two vary in inverse proportion. This view has,

however, been refuted on the ground that despite constant economic progress
throughtout the world, the crimes are constantly recording an upwards trend. The real
cause for rise in crime-rate with economic prosperity is perhaps the capacity of people
to spend more in manipulating escape from arrest and detection. A large number of
crimes go undetected and unreported for want of lack of initiative on the part of victim in
getting the offender prosecuted or due to the manipulative tactics of the criminal.
Present conditions have created a peculiar situation wherein crimes are rampant
whether the economic conditions are favourable or unfavourable.
Bongers’ Theory of Economic Structure and Crime:
The most notable and stimulating contribution to criminology in understanding the
relation of crime and economic structure has been made by Bonger who sought to
explain the phenomenon of crime on the basis of the Marxist approach. He emphasized
the importance of environmental factors not only in the case of criminals but also in
great men. Bonger insisted that the criminal was a product of the capitalistic system
which, instead of promoting altruistic tendencies among members of the society,
created selfish tendencies. The system based on ‘capitalistic exchange’ is motivated by
profit element. In such a system each member tries to get the maximum from others in
return of the minimum from himself. This attitude of the capitalist, according to Bonger,
affects the attitudes of the proletariat as well.
Bonger defined crime in the formal sense as, ‘A crime is an act committed within a
group of persons who form a social unit, and whose author is punished by the group as
such, or by organs designed for this purpose, and this by a penalty whose nature is
considered more severe than that of more disapprobation.
Bonger identifies many evils in the capitalist system which are conducive to the spread
of criminal behaviour i.e. child labour, long hours of work by workers, illiteracy.
According to Bonger motives for economic crimes can be subdivided into three: they
could be (i) crime of poverty, (ii) crimes of cupidity and (iii) professional crimes. All three
he attributed to social arrangements which encouraged of extremes poverty and wealth
He believed that poverty was a major cause of such crimes as theft. Cupidity he placed
next in importance. Theft from this motive tended to increase rather diminish in times of
prosperity. This was because at such times people’s want increased whilst many of
them were unable to satisfy them in a lawful manner. The difference between rich and
poor had been greatly increased by capitalism and the wider the difference the more
cupidity was stimulated.
Professional criminals were not responsible for a high proportion of theft as such but the
more serious offences such as burglary and robbery were almost exclusively theirs,
professional crime in the training of children to steal by their parents, who saw it merely
as “work” and had no qualms of conscience about it.
While establishing a co-relationship between economic conditions and crime, Bonger
drew the following conclusions:
(1) He tried to establish a co-relationship between poverty and delinquency.
(2) He further observed that the influence of economic conditions on delinquency is
essentially due to the capitalistic economy which breeds disparity and leads to unequal
distribution of wealth.
(3) In an economic system based on capitalism, economic cycle of inflation and
deflation are frequent. Inflation gives rise to bankruptcy and insolvency with the result

the persons affected thereby are forced to lead an anti-social life and some of them may
even resort to criminality.
(4) Another peculiar feature of capitalistic economy is the competitive tendency among
entrepreneurs. When efforts fails to meet the competition, unlawful devices such as
violation of laws are committed by the manufactures. This gives rise to increase in
crime-rate.
(5) There is yet another danger of the capitalistic economy which contributes to
enormous increase in crimes. The employment of children and women furnishes
soothing ground for criminality despite effective legislative restriction banning their
improper utilization in industrial establishments. Employment of children as labour is a
potential cause for crimes because a child who earns spend his money on undesirable
items, which ultimately drag him into the criminal world.
The theory propounded by Bonger no doubt indicates one very important basis of the
cause of criminality. He, however, ignores the tangle of interrelationships among social,
cultural, economic, political, religious and other sets of factors. According to his theory,
the phenomenon of crime should have come to an end, or at least controlled to a very
great extent in socialist countries like the USSR, which is not at all the factual position.
He said that the mode of production based on private property and individual profit was
essentially inimical to the development of social instincts and of links of reciprocity.
Under it the economic mechanism itself made man more egoistic and hence “more
capable of crime”. Once the producer found himself with a surplus above subsistence
level which he could exchange with his neighbour instead of sharing with them freely,
each tried “to get as much profit for himself as possible and consequently to make the
other lose,”. From this sprang lying and fraud. The next setup was the development of
forced services, ranging from slavery to wage labour, leading masters to see their
servants as mere instruments, servants to resort to dissimulation in self-defence. From
this also came envy and hatred on the part of the poor, pride and domination on that of
the rich. To Bonger the conclusion was inescapable that the egoistic tendencies of the
capitalist system inhibited the development of man’s social instinct.
The proponents of the Marxist view, however, hold that crime cannot be eliminated in
socialist societies within a short period after a new economic order has been introduced.
It will need a long time for the “remnants” of criminality to disappear altogether, which
can happen only after “the remnants of the bourgeois way of thinking are eventually
eliminated”.
There is no doubt, however, that poverty does play an important role in delinquency and
the capitalistic system may also contributive to poverty in certain sections of the society
and give values which determine success in life purely in terms of money.
Criminal statistics showing high representation of lower groups may not necessarily give
the exact relative positions of deviants from different socio-economic strata because of
differential police action in different situations. The changes of a crime committed by
someone from the upper strata going unreported to the police or lack of action by the
establishment are higher than in case of persons from lower economic strata.
Inadequate housing is one of the most serious problems in such delinquent areas which
creates tension between members of the family living in a cramped atmosphere.
In spite of Bonger’s generalization regarding the effect of economic conditions on crime
many critics have opposed his views on different grounds. Prof. Cohen criticized

Bonger’s economic theory of criminality on the following grounds:

(1) Research to establish a relationship between their respective occupations and
frequency of committing crime has shown that poverty has no correlation with the
frequency of convictions. Cohen observed that honesty is not the monopoly of only the
rich persons, many people lead an honest and upright life despite their poor financial
conditions.
(2) Tarde, subscribes that a large number of crimes occur not due to commercial or
industrial progress but because of inequitable distribution of wealth and man’s lust for
luxurious life. The acquisitive tendency in man often tempts him to commit illegal acts.
(3) Bonger’s assertion that poverty is an essential condition of crime because a person
is always prepared to do anything to get relief from his miserable economic condition,
seems untenable in the light of the fact that even the wealthiest persons who are usually
big industrialists, businessmen, financiers or monopolists often resort to dishonest
means such as black-marketing, tax-evasion, etc., despite their huge earnings. This
obviously does not support Bonger’s theory of criminality founded on poverty-
delinquency relationship.
(4) Bonger’s view that capitalistic trend of society is responsible for criminality is also not
wholly true. The socialistic policies launched with a view to eliminating excessive profits
and other evils of capitalistic economy have equally failed to yield favourable results.
From the foregoing analysis, it may be inferred that crimes are committed by persons
because of their subjective tendency therefore, economic changes through State control
and nationalization cannot inject a change in this human tendency. It is not the poverty
alone that generates crime but it is the poverty in relation to other factors such as
acquisitive tendency in man and his craze for gaining more and more wealth that tends
to make him a criminal.
Putative Approach
Punishment is a means of social control. H.L.A. Hart had defined “punishment” in terms
of five elements:
(i) It must involve pain or other consequence normally considered unpleasant.

(ii) It must be for an offence against legal rules.

(iii) It must be an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human being other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system
against which the offence is committed.
The three components must be present “if punishment is to act as reasonable means of
checking crime. First “speedy and inescapable detection and inescapable detection and
prosecution must convince the offender that crime does not pay. Second, after
Punishment, the offender must have “a fair chance of a fresh start.” And Third, “the
State which claims the right of punishment must uphold superior values which offender
can reasonably be expected to acknowledge.
The concept of punishment is that of inflicting some sort of pain on the offender for his
violation of law.
Prof. Jerom Hall has set out a detailed description of punishment as, “First punishment
is a privation, Second, it is coercive, Third, it is inflicted in the name of State, it is
“authorized”. Fourth, punishment presupposes rules, their violation, and a more or less
formal determination of that, expressed in a judgment. Fifth, it is inflicted upon an
offender who has committed a harm, and this presupposes a set of values by reference
to which both the harm and the punishment are ethically significant. Sixth, the extent or
type of harm and aggravated or mitigated by reference to the personality of the
offender, his motives and temptation.”
Criminal may be described as a monster or be pictured as a hunted animal or as the
helpless victim of brutality. As a result of the changing attitudes, three types of reactions
can be discerned in various societies. The first is the traditional reaction, of a universal
nature, which can be termed as the punitive approach. It regards the criminal as a
basically bad and dangerous sort of person and the object under this approach is to
inflict punishment on the offender in order to protect society from his onslaughts. The
second approach, of relatively recent origin, considers the criminal as a victim of
circumstances and a product of various factors within the criminal and society. Finally,
there is the preventive approach which instead of focusing attention on particular
offenders, seek to eliminate those conditions which are responsible for crime causation.
It should, however, be understood that the three approaches are not mutually exclusive.
Not only do they overlap with each other, but sometimes they may coexist as parts of
the overall system in a society.
The punitive approach has its focus of attention on the damage caused to the victim and
danger posed to society. The criminal is treated as something incapable of being
reformed.
Crassey on the basis of his “scapegoat hypothesis”; the criminal is made a scapegoat to
give relief or gratification to the members of the community. This relief or gratification is
due to their sense of freedom from their own guilt feeling about the crime, as a result of
punishment given to the offender. This is based on the theory that all human beings
have criminal propensities though in most cases they may not be reflected in actual
behaviour. According to another view, the hostile reaction to the criminal works as a
bond between non-criminal members of the community. The bond represents the
reassertion of moral principles common to the members of the society and serves as a
reminder of taboos to all of them.

It is only the extreme and pure retributionists who perceive punishment as inherently
good, i.e. per se. Justification for punishment is also argued on the basis of ‘social
contract’ which creates a ‘give and take’ situation. Individual rights and benefits, it is
only reasonable and inevitable that individuals curtail their freedom vis-à-vis others and
in the event of their failure to do so, punishment must be inflicted on them.
The rationalization of punishment may be divided into two classes, based on retributive
and utilitarian theories. Retributionists assert that the infliction of punishment is justified
in itself since offenders should be given their just deserts, the utilitarians regard
punishment as an evil which should be used only if it serves some purpose like
deterrence from commission of crime.
Retribution Theory:
Retribution has been regarded as a very important feature in the punitive scheme.
According to Hegel, punishment ‘annuls’ the crime. It aims at restoring the social
balance disturbed by the offender. The offender should receive as much pain and
suffering as inflicted by him on his victim to assuage the angry sentiments of the victim
and the community. Various theories have sought to justify the retributive aspect of
punishment in theological, aesthetic and expiatory grounds. Retaliation fulfils a religious
mission of punishing the offender, it re-establishes the social harmony affected by the
offence and the offender’s guilt is washed away through suffering.
The most forceful presentation of the case for retribution is the justification for
punishment by Kant. He expressed his opposition to the utilitarian concepts. The
Kantian objection is that a mere use of a person for some social purpose violates his
moral autonomy and he, therefore, finds the justification of punishment in retribution
alone.
Some other supporting arguments for retribution may be summarized as follows:
(i) Retribution connects the offender to correct values; it sends the message to the
wrongdoer that what he did was wrong. Retribution should, therefore, not be confused
with revenge.
(ii) It would be unfair to victims if there is no retribution against the wrongdoers.
(iii) It would also be unfair to the law-abiding citizens if the offenders get undeserved
benefit through their criminal acts.
These postulates of retributivism have been criticized. It has been asked, for instance,
that if individuals have no moral right to exact retribution, how can a group of individuals
in the society acquire such a moral right. There is some merit, at least theoretical, in the
expiation argument that the offender gets an opportunity of making a new start after the
‘atonement’. The practical sang is that it becomes extremely difficult for a person to start
with a clean slate after being convicted of an offence. The chances of his being
admitted to society as a normal human being are certainly affected after undergoing
punishment.
The theories of punishment based on retribution have also been sought to be defended
on the ground that punishment reflects denunciation of the criminal and his act by the
society. Such an approach tends to invert the priorities since punishment should not be
for the sake of denunciation alone but a deserved punishment does serve as a
denunciation. According to Hart, we do not live in society in order to condemn though
we may condemn in order to live. It follows, therefore, that the concept of denunciation
belongs to the utilitarian rather than to the retributive theories.

It appears from the above discussion that the retribution theory in its purest form, which
provides that the penal system should be designed to ensure that offenders atone by
suffering for their offences and their sufferings should be of the same magnitude as that
of their victims, has lost much of its ground in the context of modern and more
enlightened views on the functional value of penal law.
In modern society the idea of revenge in the punishment is rejected and the modern
concept is hate the sin not the sinner. There are some other ways to achieve the social
solidarity and the need is to develop such measures where a person will not commit a
crime. The various studies have established that the social structure and the functioning
of the social system is more responsible for a crime than an individual. Modern
criminology states that it is important to protect the interest. A criminal after his release
should not become an enemy of society. But still there are certain expectations where
the retributive punishment can be considered necessary.
Utilitarian Theory:
The utilitarian view punishment as a means to achieve certain ends with the aid of
criminal law. Punishment must serve as an instrument for reducing crime either by
deterring the offender and others from doing similar acts in future or it should prevent
the commission of offences by incapacitating the offenders. Reformation of the
offenders through punishment is also sought to be achieved, though the efficacy of the
punitive approach in the reformation of the offender is extremely doubtful.
Utilitarians accept punishment only for achieving ‘good consequences’ but there may be
disagreement as to the nature of the ‘good consequences’. Three issues to be
considered in a given situation are as to whether the punishment would be:
(i) Useless;
(ii) Needless; and
(iii) Involving more evil than what it purports to solve.
Deterrent Theory:
One of the Utilitarian rationalizations which are advanced to justify punitive reaction is
that punishment acts as a deterrent to the offender punished and also to others in the
community. It has been suggested that the so-called deterrent approach is a veiled form
of the retributive spirit. Deterrence is usually defined as the preventive effect which
actual or threatened punishment of offenders has upon potential offenders. The
deterrence theory finds no justification for action in a past offence, which has more than
a certain evidential importance, and it depends upon consequences of punishment
other than the immediate satisfaction given to victims of offences and other. It need not
ignore these satisfactions.
Punishment is justified to control individual crime and to have a deterring effect on other
criminals. According to Bentham, general prevention ought to be the chief end of
punishment as it is its real justification.
Bentham thus goes on to suggest that punishment may help in control of crime in three
ways:
1. By making it impossible or difficult for a criminal to commit the offence again, at least
in certain ways;
2. By deterring both offenders and others;
3. by providing an opportunity for the reforming of offenders.
Bentham and other supporters of the deterrence theory considerably under-estimated

the number of offenders whose punishment is unlikely to have an acceptable deterrent

effect.
Efficacy of the deterrent aspect of punishment can be pointed out with reference to the
Islamic law of crimes as applied in Saudi Arabia, the only country where the system with
all its severity is being applied even now. It is reported that crimes are almost unknown
in Saudi Arabia and it is a common sight in towns that people leave their shops open
and unattended while they are away from them for some time. It may be pointed out,
however, that several other factors might be operating for creating such a situation, like
economic security and religious injunctions. Further, it may be observed that deterrence
is not the only purpose of criminal law but has to maintain some other values as well.
Reformative/ Rehabilitation Theory:
Modern penology recognizes that punishment is no longer regarded as retributive or
deterrent, but is regarded as reformative or rehabilitative.
Reformation is defined as “the effort to restore a man to society as a better and wiser
man and a good citizen. Progressive criminologists across the world will agree that the
Gandhian diagnosis of offenders as patients and his concept of prisons and hospitals-
mental and moral- is the key to the pathology of delinquency and the therapeutic role of
‘punishment’”. It is, thus, clear that crime is a pathological aberration, that the criminal
can ordinarily be redeemed, that the State has to rehabilitate rather than avenge.
Punishment is, therefore, said to be justified because- (1) It provides an opportunity for
State to take steps to reform offenders and so control crime. (2) It is both a deterrent
and an effective condemnation, and as such it has reformative consequences. (3) The
ultimate aim of the punishment is to “resocialise” the offender to “readjust” him to
society, to “rehabilitate” him to “change him deep inside”.
According to reformatists, a criminal is to be studied, like a patient in his entire socio-
economic milieu, and nor in isolation, to understand causative factors leading to
criminality and then attempt be made to reform or treat and rehabiliate the offender.
There are only few aspects of the treatment problem which are to be observed in
practice while employing the reformative techniques to treat the offenders. And as such
there will still be a little element of the retributive and deterrent aspects of punishment
because of the very inevitability of punishment of some sort after crime. But, others say
that in view of the changed penal philosophy, the bulk of the component of punishment
will naturally be reformation and rehabilitation with a view to refit the offender as a
useful member of society.
Modern society considers various objectives in order to control crime and it considers
imprisonment a means to attain the twin aims, i.e., reform and treatment of the criminals
so that they will commit no crime after their release. Society also seeks protection from
criminals. And for this purpose prison isolates criminals from the community for a certain
time. All these objectives-reformation, retribution and deterrence, within the prison result
in cross conflict.
In James V. Bennet, it was observed that on the one hand, prison are expected to
punish, on the other, they are supposed to reform. They are expected to discipline
rigorously at the same time they teach self-reliance. They are built to be operated like
vast impersonal machines, yet they are expected to fit man to live normal community
lives. They operate, in accordance with a fixed automatic routine, yet they are expected
to develop individual idleness despite the fact that the one of their primary objective is to

teach men how to earn an honest living. To some, prisons are nothing but country
clubs, catering to the whims and fancies of the inmates. To others, the prison
atmosphere seems charged only with bitterness, rancor and an all pervading sense of
defeat.
Conflict between reformative, deterrent and retributive measures have been a
controversial issue from the point of correctional administration as well as treatment of
the offenders. There is a definite need to protect society by segregating those who are
so dangerous as to require a close custody, control and supervision.
Preventive Theory:
This has also been called ‘Theory of disablement’ as it aims at preventing the crime by
disabling the criminal. In order to prevent the repetition of crime the offenders are
punished with death, imprisonment for life or transportation of life.
Preventive philosophy of punishment is based on the proposition ‘not to avenge crime
but to prevent it’. It presupposes that need for punishment of crime arises simply out of
social necessities. In punishing the criminal, the community protects itself against anti-
social acts which endanger social order in general or person or property of its members.
This theory has been criticized by many writers on the ground that prevention of crime
can also be done by reforming the behaviour of criminals.
It is clear that neither theory can be adopted as sole standard of punishment for perfect
penal code. The correct view, therefore, seems to be that the perfect system of criminal
justice is the result of a compromise between the principles of all the theories.
Protection of society must be the object of law which can be achieved by imposing
appropriate punishment. A sentence or its system which does not work properly can
undermine respect of law. In order to deter other potential criminals and to meet social
necessity, the imposition of appropriate punishment is desirable. Although it is not
possible to formulate any ready-made formula in this respect but object should be to
see that the crime does not go unpunished and victim of the crime and society have
satisfaction that justice has been done to them. Aggravating factors cannot be ignored
and mitigating circumstances should get due weightage.
White Collar Crimes
Certain professions offer lucrative opportunities for criminal acts and unethical practices
which hardly attract public attention. They carry on their illegal activities with impunity
without the fear or loss of prestige or status. The crimes of this nature are called ‘white-
collar crimes’ and are essentially an outcome of competitive economy.
The concept of White Collar Crime is usually associated with Sutherland. He pointed out
that besides the traditional crimes there are certain anti-social activities which the

persons of upper strata carry on in course of their occupation or business. These

activities for a long time were accepted as a part of usual business tactics necessary for
a shrewd professional man for his success in profession or business.
Sutherland further pointed out that a white-collar crime is more dangerous to society
than ordinary crimes because the financial loss to society from white-collar crimes is far
greater than the financial loss from burglaries, robberies, larcenies etc.
These white collar crimes by their very nature are such that the injury or damage
caused as a result of them is so widely diffused in the large body of society that their
gravity in regard to individual victim is almost negligible. White collar crimes are
committed by persons of status not for need but for greed.
White collar criminality thrives because of public apathy to it. The reason for this public
insensibility is that firstly such criminals operate within the strict letter of the law and
exploit the credibility of their victims; and secondly the legal battles involved are
dragged out for years in the courts, with the result the gravity of the offence is
completely lost in the oblivion. That apart, the impact of white collare crime is so much
diffused in the community that the individual victims are only marginally affected by it,
and, therefore, they conveniently forget all about it.
There is yet another important point in context of white collar crime. The members of the
community themselves contribute to the commission of various white collar crimes
willingly or unwillingly. For instance, illegal gratification to public servants to get the work
done quickly such crimes cannot be committed unless there is a demand for illegal
favour from consumers and they are actively involved in the deal.
Sutherland’s definition of white collar crime has evoked criticism from certain quarters.
The lack of definite criteria for determining who are ‘persons of respectability and status’
has made Sutherland’s definition of white collar crime most controversial. It seems likely
that what Sutherland’s meant by this is absence from convictions for crimes other than
white collar crimes. The element of ‘high social status’ as used in the definition also
leads to confusion. Some critics have suggested that such crimes should have been
called as ‘occupational crimes’ instead of being termed as ‘white collar crime’.
Tappan observes that treating persons committing white collar crime as criminals would
mean deviating from legal definition of crime inasmuch as personal value considerations
of the administrator would gain primary in place of precision and clarity of legal
provisions in deciding such cases. Sutherland, however, justifies the special procedure
of trial for white collar criminals by administrative agencies on the ground that it would
protect the offender from stigma of criminal prosecution.
Another criticism is that it includes even those violations of law which are not committed
in course of occupation or profession and these violations do not necessarily belong to
upper strata of society or the so-called ‘prestigious groups. For example, tax evasion is
not committed only by person of high status but it can be committed by persons
belonging to middle or even lower strata of society.
Of all the factors, the economic and industrial growth through out the world has perhaps
been the most potential cause of increase in white collar crimes in recent years. Law
Commission in its report observed that modern scientific and technological
developments and monopolistic trends in business have led to enormous increase in
white collar crimes.
The problem of white-collar criminality has its root in competitive business community

which tries to oust their rival competitors in order to earn huge profits. Sometimes such
crimes may also be committed merely for the sake of retaining existence in the
competitive business.
One more reason for the multiplicity of white collar crime is relatively high socio-
economic status of white collar criminals. They belong to an influential group which is
powerful enough to handle their occupation tactfully and persons affected thereby
hardly know that they are being victimized.
The recent development in information technology particularly during the closing years
of the twentieth century, have added new dimensions to white collar criminality. There
has been unprecedented growth of a new variety of computer dominated white collar
crimes which are commonly called as cyber crimes.
India is equally in the grip of white collar criminality. The Report of Vivin Bose
Commission of Inquiry into the affairs of Dalmia-Jain group of companies highlights how
these big industries indulge in white collar crimes such as fraud, falsification of
accounts, tampering with records for personal gains and tax-evasion etc.
The case of M.H. Hoskot V. State of Maharashtra illustrates the attitude of the lower
judiciary towards white-collar criminals. Haskot, a reader in Saurashtra University, was
found guilty of an attempt to concoct degree certificates of the Karnataka University.
The sessions court awarded him a single day’s imprisonment. The court justified the
token punishment on the basis of the background of the offender, his not having
criminal tendencies as such and the unlikelihood of his indulging in criminal activities in
future. On appeal by the State, the High Court enhanced the period of imprisonment to
three years. While upholding the sentence awarded by the High court, the Supreme
Court termed the sentence awarded by the session court as ‘incredibly indiscreet’.
The Supreme Court has made its approach of white-collar crimes absolutely clear in the
above observation. It is however, submitted that Hoskot’s case was truly speaking not a
case of white-collar criminality, according to the meaning given to the term by
Sutherland and others.
Besides prescribing stiffer punishments for white-collar offenders, the Supreme Court
has also held in a number of cases that liberal interpretation must be given to the penal
laws dealing with social welfare legislation to see that the legislative object is not
defeated. In Murlidhar Meghraj Loya V. State of Maharashtra, the Court observed that ‘it
is trite that the social mission of food laws should inform the interpretative process so
that the legal blow may fall on every adulterator. Any narrow and pedantic literal and
lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak
out of the meshes of the law should be discouraged. For the new criminal jurisprudence
must depart from the old canons, which make indulgent presumptions and favoured
constructions benefiting accused person and defeating criminal statues calculated to
protect public health and the national’s wealth.’
Again in P.K. Tejani V. M.R. Dange, a case under the Prevention of Food Adulteration
Act, the Supreme Court said that ‘ it is trite law that in food offences strict liability is the
rule not merely under the Indian Act but all the world over. Section 7 casts an absolute
obligation regardless of scienter, bad faith and mens rea. It you have sold any article of
food contrary to any sub-section of Section 7, you are guilty. There is no more argument
about it.’
Some of the remedial measures for combating white collar criminality may be stated as

follows:
1. Creating public awareness against these crimes.
2. Special tribunals should be constituted with power to award sentence of
imprisonment.
3. Stringent regulatory laws and drastic punishment for white-collar criminals may help
in reducing these crimes.
4. A separate chapter on white-collar crimes and socio-economic crimes should be
incorporated in the IPC by amending the Code so that white-collar criminals who are
convicted by the Court do not escape punishment because of their high social status.
5. White-collar offenders should be dealt with sternly by prescribing stiffer punishments
keeping in view the gravity of injury caused to society because of these crimes.
6. There is an urgent need for a National Crime Commission which may squarely tackle
the problem of crime and criminality in all its facets.
7. Above all, public vigilance seems to be the cornerstone of anti-white collar crime
strategy. Unless white-collar crimes become abhorrent to public mind, it will not be
possible to contain this growing menace.
Capital Punishment
Death Sentence has been used as an effective weapon of retributive justice for

centuries. The fear of being condemned to death is perhaps the greatest deterrent
which keeps an offender away from criminality. The justification advanced is that it is
lawful to forfeit the life of a person who takes away another’s life. Thus, the motive for
death penalty may indeed include vengeance which is a compensatory and reparatory
satisfaction for an injured party, group or society.
Penologists in India have reacted to capital punishment differently. Some of them have
supported the retention of this sentence while others have advocated its abolition on
humanitarian ground. The retentionists support capital on the grounds that it has a great
deterrent value and commands obedience for law in general public. The abolitionists, on
the other hand, argue that enormous increase in homicide crime-rate reflects upon the
futility of death sentence.
The Law Commission of India in its 35th Report said on a consideration of the issues
that capital punishment should be retained in the present state of the country.
Supporting the view of the Law Commission, the Supreme Court in Bachan Singh V.
State of Punjab, observed that notwithstanding the views of the abolitionist to the
contrary, a very large segment of people still firmly believe in the worth and necessity of
capital punishment for the protection of society.
In this case appellant was convicted for the murder of his wife and he underwent life
imprisonment. On being released from jail he came to stay with his cousin Hukam
Singh. This was objected to by Hukam Singh’s wife and son and the appellant,
therefore, developed a grievance against the family. While Hukam Singh and his wife
were away in another town the appellant taking advantage of the situation killed his son
and his two sisters and grievously injured a third one in an unusually brutal manner. He
was awarded death sentence. High Court conformed his death sentence.
With regard to the application of Art. 19 of the constitution in cases under section 302
IPC the Supreme Court observed that section 302 prescribes death or imprisonment for
life as penalty for murder. It cannot reasonably or rationally, be contended that any of
the rights mentioned in Art. 19(1) of the Constitution confer the freedom to commit
murder or, for the matter of that, the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws which define offences and prescribe
punishment for the commission of offences do not attract the application of Art.19. In
pith and substance, penal laws do not deal with the subject-matter of right enshrined in
Art. 19(1). The Supreme Court observed that they are of the opinion that the deprivation
of freedom consequent upon an order of conviction and sentence is not a direct and
inevitable consequence of the penal law but is merely incidental to the order of
conviction and sentence which may or may not come into play, that is to say, which may
or may not be passed. In view of it, the Supreme Court was of the opinion that Sec. 302
of the Penal Code does not have to stand the test of Art. 19(1) of the Constitution.
It may be inferred that neither retention nor abolition of death sentence can be justified
in absolute terms. The desirability of this punishment, by and large, depends on the
nature of the crime and the circumstances associated therewith. The classification of
different types of homicides can be made on the basis of social environment and
personality of the offender. Therefore, the efficacy of death penalty in such cases
should be judged in the light of the surrounding conditions.
The Report of the Convention of International Congress of Criminal Law concluded that
the general consensus was clearly in favour of retention of death penalty though its use

may be restricted to “rarest of rare cases”. Justice Krishna Iyer justified retention of
capital punishment though to be used sparingly. Justice HIdayatullah observed that the
doctrine of “rarest of rare case” evolved in the Indian jurisprudence for the use of death
penalty is capable of discounting the possible errors and abuse of this sanction and,
therefore, a dispassionate approach to this problem in the context of the mounting crime
was most necessary.
The Law Commission in its report observed that even after all the arguments in support
of abolition of capital punishment are taken into account, there does not remain a
residium of cases where it is absolutely impossible to enlist any sympathy on the side of
the criminal. The Commission further expressed a view that ‘retribution’ involved in
capital punishment does not connote the primitive concept of ‘eye for an eye’ but is an
expression of public indignation at a shocking crime, which can better be described as
‘reprobation’.”
The Law Commission strongly feels that capital punishment acts as an effective,
deterrent “which is the most important object and even if all objects were to be kept
aside, this object would be itself furnish a rational basis for its retention.” In its
concluding remarks, the Commission observed that having regard to the peculiar
conditions prevalent in India and the paramount need for maintaining law and order in
the country, we cannot risk the experiment of abolition. This is perhaps the most
appropriate approach to the problem of capital punishment so far Indian Criminal justice
system is concerned.
In the IPC eight provisions provides for death sentence for certain specified offences.
The Supreme Court noted that IPC contained fifty-one sections which prescribe life
imprisonment for various offences. The basic difference between Section 302 and the
other sections was that whereas under those sections life imprisonment is the maximum
penalty which can be imposed, under Section 302, it is the minimum sentence which
has to be imposed. The Court, however, made it clear that the ruling in Bachan Singh V.
State of Punjab upholding the constitutional validity of death sentence could not govern
death penalty prescribed in the IPC.
The members of the judiciary are sharply divided on the crucial issue of life or death
sentence. Those who support abolition argue that death penalty is degrading the
contrary to the notion of human dignity; it is irrevocable and an expression of retributive
justice which has no place in modern penology. The retentionists, on the other hand,
justify capital punishment as a social necessity having a unique deterrent force.
After the Amendment Act 1955, the Judge had the discretion to commute the sentence
of death to that of life imprisonment but in case he considered the imposition of death
sentence necessary he had to state the reasons as to why a lesser penalty would not
serve the ends of justice.
The CrPC also contains a provision regarding death sentence. Section 354(3) of the
Code provides that while awarding the sentence of death, the Court must record
“special reasons” justifying the sentence and state as to why an alternative sentence
would not meet the ends of justice in the particular case. Justice Krishna Iyer observed
that the special reasons which the section speaks of provides reasonableness as
envisaged in Article 19 as a relative connotation dependent on a variety of variables,
cultural, social, economic and otherwise.
The CrPC further requires that the sentence of death imposed by Sessions Judge can

be executed only after it is confirmed by High Court. That apart, Section 235(2) of the
Code further casts a statutory duty upon the court to hear the accused on the point of
sentence. Section 302 casts a heavy duty on the Judge, of choosing between death and
imprisonment for life for the person found guilty of murder, is now expected to be
discharged in a highly responsible manner by complying with the provisions contained
in CrPC so that the principle of natural justice and fair play holds its away in the sphere
of sentencing. These provisions also help the Judge to individualise sentencing justice
and make it befitting to the crime and the criminal.
Besides the statutory provisions, the Constitution of India also empowers the President
and the Governor of the State to grant pardon to the condemned offender in appropriate
cases.
A perusal of some of the Supreme Court decisions involving death penalty would reveal
that sudden impulse or provocation uncontrollable hatred arising out of sex indulgence,
family feud or land dispute, infidelity of wife or sentence of death hanging over the head
of the accused for a considerable long period of time due to law’s delay, have been
accepted as extenuating circumstances justifying lesser penalty of life imprisonment
instead of death sentence.
Following the ruling laid down in Bachan Singh, the Supreme Court upheld the death
sentence of the accused in Machi Singh V. State of Punjab, on the ground that the
murder committed was of exceptionally depraved and heinous in character and the
manner of its execution and its design would put it at the level of extreme atrocity and
cruelty. The accused in the instant case has killed two innocent and helpless women.
Their Supreme Court opined that the ‘rarest of rare’ cases doctrine was clearly attracted
in this case and that the sentence of death was perfectly justified.
While deciding this case the Apex Court realized that the ‘rarest of rare cases’ doctrine
had caused ‘inner conflict’ in the minds of the Judges because it was left much to the
judicial discretion to decide whether the case fell within the category of rarest or rare
case or not. Hence, the Supreme Court laid down a five-point formula based on the
manner in which the murder was committed and the motive, nature and magnitude of
the crime and the personality of the victim. The factor which the Court was expected to
take into consideration for this purpose may be briefly stated as follows:
1. The manner in which the offence of murder was committed. If it was committed with
extreme brutality such as burning the victim alive or cutting body into pieces, it would be
a fit case to be considered as rarest of rare case.
2. When the manner reveals depravity and meanness of murdered e.g. crime being
committed for material gain.
3. When the murder is socially abhorrent such as bride burning or killing of Harijan.
4. When the magnitude of the offence is enormous as in case of multiple murders.
5. When the victim is an innocent child, a helpless woman, or a reputed figure i.e. the
case of a political murder.
The Court however, cautioned that these guidelines should not be applied too literally.
Instead, the Judges should interpret the provisions rationally to ascertain whether
‘collective conscience of the community has been shocked and it will expect the Judge
to award the death penalty.
The Supreme Court decision in Kishori V. State of Delhi, consequent to the
assassination of Mrs. Indira Gandhi, large scale rioting and arson took place in different

parts of Delhi. The Charges against four accused persons including Kishori were
framed. Having been sentenced to death by the trial court and confirmed by High Court
the appellant filed SLP in the Supreme Court challenging the judgment of the High
Court. During the hearing, it was stated that Kishori was allegedly involved in several
incidents which gave rise to seven cases, four of which ended in his acquittal and in
three cases, he was sentenced to death. The Supreme Court observed that the law is
well settled by reason of the decision of this Court that capital punishment can be
imposed in the rarest of rare cases and if there are aggravating circumstances. Experts
in criminology often express a view that where there is mob-action, as in the instant
case, there is diminished individual responsibility unless there are special
circumstances indicating that a particular person had acted with any predetermined
motive such as use of weapon not normally found.
In the instant case, all the witnesses speak that there was a mob attack resulting in the
death of three persons. Though the appellant is stated to be responsible for inflicting
certain knife injuries, yet it is not clear whether those injuries themselves were sufficient
to result in death of the deceased person. The acts of the mob of which the appellant
was a member cannot be said to be the result of an organization of group indulging in
planned violent activities formed with any prupose or scheme which can be called as an
organized activity. The Supreme Court, therefore, decided that “on the totality of the
circumstances, this is not a case which can be called “a rarest of rare case” which
warrants imposition of maximum sentence of death. Hence while confirming the
conviction of the appellant on charges framed against him, the sentence is reduced
from capital punishment to that of life imprisonment and with this modification, the
appeal stands dismissed.
In Mohd. Chaman V. State of Delhi, the accused had committed rape on a minor girl
aged one and a half years when her parents were away from home. As a result of this
brutal and ghastly act the child suffered several injuries and died. The trial Court
convicted the accused and sentenced him to death which was confirmed by High Court.
On appeal, the Supreme Court held that, (1) the extreme penalty can be inflicted only in
gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to
the circumstances of the offence, due regard must be paid to the circumstances of the
offenders also.
The Court held that in exercise of its discretion in the above cases the court shall take
into account the following circumstances_
(i) That the offence was committed under the influence of the extreme mental or
emotional disturbance.
(ii) The age of the accused. If the accused is young or old, he shall not be sentenced to
death.
(iii) The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat of society.
(iv) The probability that the accused can be reformed and rehabilitated.
(v) That in the facts and circumstances of the case the accused believed that he was
morally justified in committing the offence.
(vi) That the accused under the duress or domination of another person.
(vii) That the condition of the accused showed that he w as mentally defective and that
the said impaired his capacity to appreciate the criminality of his conduct.

In the instant case the crime committed is undoubtedly serious and heinous and reveals
a dirty and perverted mind of a person who has no control over his carnal desires. The
case is one which deserves humanist approach and therefore capital sentence imposed
against appellant is commuted to imprisonment for life.
In Edigma Anamma V. State of A.P., the appellant was convicted of double murder, of a
woman and her tender child, because of the jealousy generated by the fact that the
deceased woman had developed amorous relationship with the same man, a widower,
with whom the appellant had already been carrying on an affair. The stabbing of two
persons was planned and ghastly in nature and careful steps were taken to destroy the
evidence by attempting to burn the body of the deceased woman. The Supreme Court
observed to justify its preference for life imprisonment to capital sentence. The Court
said that here the criminal’s social and personal factors are less harsh, her femininity
and youth, her unbalanced sex life and expulsion from the conjugal home being the
mother of a young boy-these individually inconclusive and cumulatively marginal facts
and circumstances-tend towards award of life imprisonment.
The proper approach to the problem, perhaps will be that capital punishment must be
retained for incorrigibles and hardened criminals but its use should be limited to ‘rarest
of rare cases’. In view of the present deteriorating law and order situation in India, total
abolition of death sentence would mean giving a long rope of dangerous offenders to
commit murder and heinous crimes with impunity.
The Supreme Court in Allauddin Mian V. State of Bihar has stressed on the penological
aspect of death sentence and observed that provisions of the CrPC require the
sentencing Judge to state reasons for awarding death sentence and giving an
opportunity to the condemned person to be heard on the point of sentence, satisfy the
rule of natural justice and fair play.
In this case the accused persons came with deadly weapon in the house of his target.
On seeing the target they shouted to kill him. The person ran into a room to arm himself
where his wife prevented him. At that time two daughters of his daughters were playing
outside the room. Having failed to get him, accused gave farsa blow on the head of the
daughters and killed them.
In the instant case, the Apex Court noted that the trial Judge had not attached sufficient
importance to mandatory requirements of the above provisions and the High Court
confirmed the death sentence without having sufficient material placed before it on
record to know about the antecedents of the accused, his socio-economic conditions,
and impact of crime etc. which rendered the rationale of the Judgment doubtful.
In Anguswamy V. State of Tamil Nadu, appellants had a quarrel with some members of
a community. A constable came to inquire. He tried to caught the appellants. Both the
appellants inflicted injures on different parts of the body of police constable and he died.
The Trial Court awarded the death penalty which was allowed by High Court.
Here the Supreme Court observed that the trial court failed to take into consideration
several relevant factors. AS there was no immediate need for their arrest, no report was
made against the appellants and no case was registered against hem for the
commission of any offence. The deceased acted over-zealously and attempted to
apprehend the appellants. Since the appellants felt that they were being unjustly treated
by the deceased and caused the injuries. It can not be said that the attach was pre-
planned. It was rather sudden and actuated by a desire to free themselves. It, therefore,

follow that the murder can not be said to belong to the rarest of rare category warranting
the sentence of death.
The death penalty is no doubt unconstitutional if imposed arbitrarily but it if administered
rationally, objectively and judiciously, it will enhance people’s confidence in criminal
justice system.
Probation
Probation is the ‘submission of an offender while at liberty to a specified period of

supervision by a social caseworker who is an officer of the court.’ Probation of offenders
has been widely accepted as one of the non-institutional methods of dealing with
corrigible offenders, particularly the young offenders and the first offenders. It aims at
rehabilitation of offender by returning them to society during a period of supervision
rather than by sending them into the unnatural and socially unhealthy atmosphere of
prisons. The offender is allowed to remain in the community and develop as a normal
human being in his own natural surroundings. With the help of advanced techniques of
social case-work, the probation offender endeavours to bring about the desired change
in offenders attitude to life and his social relationship with the community.
The release of offenders on probation is treatment device prescribed by the court for
persons convicted of offences against the law, during which the probationer lives in the
community and regulates his own life under conditions imposed by the court or other
constituted authority, and is subject to supervision by a probation officer.
The system of probation involves restriction on the liberty of probationer and refrains
him from disapproved behaviour, or conversely, compels him to perform certain
required acts which maybe irksome or even painful to him. The basic purpose is to keep
the delinquent away from evil consequences of incarceration and offer him an
opportunity to lead socially useful life without violating the law.
Probation is often misconceived by some people as an easy let-off or a form of leniency
and not a punishment. But this notion is rather misleading. Probation, whether it is for
juveniles or adults, permits a more normal social experience than institutionalization and
makes possible varying degrees of control over delinquents together with the option of
sentencing him to an institution if he violates probation conditions. In other words,
probation enables the delinquent to maintain contact with his family and other social

agencies. It means a less routinised and more self-directed existence. Unlike

imprisonment, it makes the offender the probationer to keep himself away from
criminogenic atmosphere of prison and earn his living rather than leading an idle and
wasteful life. He does not remain a burden on his family or society because he can earn
his living himself. In short, probation offers an opportunity for the probationer to adjust
himself to normal society thus avoiding an isolated and dull life in the prison.
The actual selection for release on probation depends on the careful investigation of
personal case-history and social circumstances of the offender. The investigation is
done by a Probation Officer who prepare a pre-sentence report to find before the trial
court prior to the final disposal of the case. The system of probation involves conditional
suspension of punishment.
According to Howard Jones, the following conditions must be fulfilled before allowing
the benefit of release on probations to an accused person:
(1) No punishment should be imposed initially;
(2) The offender should be given a definite period to redeem himself;
(3) During this period, delinquent should be placed under supervision of a probation
officer for two obvious reasons:
a. In order to keep the court informed about his progress; and
b. To help him to make the best use of the opportunity given to them.
(4) If the offender responds favourably, his initial crime should be deemed to have been
scrapped, but if he fails to do so, he maybe brought back to court and sentenced for the
original crime as also for any other crime he might have committed.
It is thus evident that probation is not a “let-off” as alleged by some critics because the
probationer must either respond favourably to reformation or suffer imprisonment later.
The Supreme Court spelt the object of the Probation of Offenders Acts is to stop
conversion of youthful offenders into stubborn criminals as a result of their association
with hardened criminals of mature age in case of youthful offenders are sentenced to
undergo imprisonment in jail. Modern Criminals jurisprudence recognizes that no one is
born criminal and that a good many crimes are the result of socio-economic milieu.
Although not much can be done for hardened criminals, yet a considerable emphasis
has been laid on bringing about reform of young offenders not guilty of very serious
offense by preventing their association with hardened criminals. The Act gives statutory
recognition to the above objective. Probation is designed only for those who have
prospects to reform.
The Probation of Offenders Act contains elaborate provisions relating to probation of
offenders which are made applicable through out the country. The Act provides four
different modes of dealing with youthful and other offenders in lieu of sentence subject
to certain conditions. These include:-
(1) release after admonition;
(2) release on entering a bond on probation of good conduct with or without supervision,
and on payment by the offender the compensation and costs to the victim if so ordered,
the courts being empowered to vary the conditions of the bond and to sentence and
impose a fine if he failed to observe the conditions of the bond;
(3) persons under 21years of age are not to be sentenced to imprisonment unless the
court calls for a report from the probation officer or record reasons to the contrary in
writing;

(4) the person released on probation does not suffer a disqualification attached to a
conviction under any other law.
Thus it would be seen that the provisions of the Act are not confined to Juveniles alone,
but extend to adults also. Again, provisions of the Act are not confined to offences
committed under the IPC but they extend to offences under other laws. The higher
courts have been empowered to grant probation in appropriate cases, which was
denied to the accused by the lower court. They may also cancel probation granted by
the trial courts.
The appropriate stage at which probation order may be made by a court is at the time of
pronouncement of judgment. The Judge may make such an order straightway without
calling for a report from the probation officer or he may prefer to call for a report.
However, it is always advisable to call for a report from the probation officer because at
times material available on record in course of trial is hardly sufficient for the presiding
Judge to make up his mind on the point whether the accused should be admitted to the
benefit of release on probation or not. The court must record a clear finding about the
age of the offender after recording necessary evidence.
Besides the Probation of Offenders Act the provisions of Section 360 and 27 of the
Cr.P.C. and Juvenile Justice Act also provide for the release of certain offenders on
probation.
(i) Section 360 of the Cr.P.C. provides the rationale of protection which is extended to
young offenders. Firstly, the section excludes certain types of offenders from the
purview of the Probation of Offenders Act. Secondly, the section prescribes certain age-
limit for offenders to be admitted for release on probation; and thirdly, the section
explicitly provides that probation applies only to the first offenders. Law suggests a
selective application of the probation service to only those offenders who are likely to
respond favourably to the rehabilitative process.
(ii) Section 27 of Cr.P.C. provides that any offence not punishable with death or
imprisonment for life, committed by any person who at the date when he appears or is
brought before the court, is under the age of sixteen years, may be tried by the court of
a Judicial Magistrate or by any Court specially empowered or any other law for the time
being in force providing for the treatment, training or rehabilitation of youthful offenders.
It must be noted that the age-limit of a juvenile was raised from 15 to 16 years to avoid
inconsistency with the provisions of law contained in the earlier Children Act and it is
now 18 years under the Juvenile Justice Act.
(iii) The Juvenile Justice Act enunciates the measures for custody and control of
destitute and neglected children and also provides of the protection and treatment of
delinquent children in need of care and protection as also the children who are
uncontrollable and victims of one or the other offence.
(iv) The Juvenile Justice Act further provides for the release of children who have
committed offences, on probation of good conduct and placing them under the care of
their parents or guardians or other fit persons executing a bond, with or without sureties
to be responsible fro good behaviour and well being of the juvenile for any period not
exceeding three years.
Offenders whether below 21 or above 21 years of age are equally entitled to avail the
benefit of release on probation of good conduct or after admonition. The Court is
competent to release a previous convict on probation if it thinks it proper to do so having

regard to the circumstances of the case including the character of the offender and
nature of the offence.
The final verdict as to whether an offender deserves to be admitted to he benefit of
release on probation or not, lies with the court. The Judge has to use his discretion in
the matter most judiciously.
In State of M.P. V. Bhola, it was observed that it indicates the intention of the legislature
that the benefit of release on probation for good conduct in prison is to be made
available not to all but to “certain prisoners” meaning prisoners of a particular class.
Thus they can be classified in relation to the offences committed by them for which they
are sentenced. Reformative system of punishment by releasing prisoners on the basis
of their good conduct in prison and for tuning them out as good citizens after they serve
out their periods of sentences is not to be resorted to indiscriminately without reference
to the nature of offence for which they are convicted. It is open to the legislature to lay
down a general policy permitting reformative method of punishment but by limiting its
application to less serious crimes. Gravity of offence is an integral dimension in deciding
whether a prisoner should be released or not. If we see that offences mentioned in rule
3(a), in the category of exclusion therein are such serious or heinous offences which are
against community and society in general where even release on probation may be
found hazardous because of the possibility of the crime being repeated or the prisoner
escaping. Habitual offenders or those dealing in explosive substances or involved in
dacoities and robberies are treated as criminals guilty of heinous crimes who deserve to
be treated differently from other offenders guilty of less serious crimes. The offenders
could be classified thus reasonably with the object to be fulfilled of reformation of those
prisoners who show prospectus of some reforms. Classification can also be made
between habitual and non-habitual offender or between corrigibles and incorrigibles.
In Abdul Qayum V. State of Bihar, the appellant aged sixteen years pick-pocketed
rupees fifty six. Despite probation officer’s favourable report for release on probation, he
was sentenced to six months’ rigorous imprisonment by the trial court because of his
association with a seasoned pick-pocket. On appeal, however, the Supreme Court
directed the trial court to place him under probation.
The Supreme Court observed that there was no warrant for inferring that the appellant
was his associate. A reference to the report of the Probation Officer would show that the
accused was approximately 18 years of age and physically and mentally normal.
Though he was illiterate he had a vocational aptitude for tailoring and was working in
Bihar Tailoring Works. He was interested towards his work as a tailor and behaves
properly with his father and brothers and has normal association with friends. There is
no report against the character of the offender, no previous conviction has been proved
against him prior to this case and in the circumstances the release on probation may be
a suitable method to deal with him.
In another case the Orissa High Court shows even much more latitude to young
offenders in Jogi Nayak V. State. In this case, the accused, a young boy of 15 years,
was found guilty of robbery and sentenced to undergo rigorous imprisonment for one
year. The boy had removed jewellery from the body of a young girl after making her
unconscious by inflicting grievous injuries to her. In this case, it was held that probation
could not be granted since the offence was punishable with life imprisonment. But
strangely enough, after holding that boy could not be released on probation, the High

Court ordered his release by saying that the accused was a young boy and a longer
stay in the company of criminals would only turn him into hardened criminal and the
sentence was reduced to the period already undergone. It was ironical that by placing a
restricted construction on the statute, the court found probation inapplicable and let the
boy loose, unsupervised, on society.
The Supreme Court took a strict view of the case involving sex-perversity and refused to
allow the benefit of release on probation to the accused in Smt. Devki alias Kalia V.
State of Haryana. In this case the petitioner was found guilty of abducting a teenage girl
of 17 years and forcing her to sexual submission with commercial object and was
convicted and sentenced by the trial court for three years imprisonment. The sentence
was confirmed by the High Court. On appeal, the Supreme Court refused to allow the
benefit of probation to the accused keeping in view the moral turpitude and heinousness
of the offence.
In Rajbir Raghubir Singh V. State of Haryana, the accused a government servant was
convicted and placed on probation for good conduct. It was held by the Supreme Court
that in particular facts of the case, the conviction should not affect his service.
The historical decision in Ishwar Das V. State of Punjab, however, made a departure
from the Court’s liberal approach to offenders found guilty of offences involving public
welfare. A tendency to keep such anti-social activities outside the purview of the
probation law is clearly noticed in the subsequent decisions. Though the Supreme Court
allowed the benefit of probation in the instant case, leaving a note of caution, it inter alia
observed:
Adulteration of food is a menace to public health. The Prevention of Food Adulteration
Act has been enacted with the aim of eradicating that anti-social evil and for ensuring
purity in the articles of food. The Courts should not lightly resort to the provisions of the
Probation of Offenders Act in the case of persons above 21years of age found guilty of
offence under the Prevention of Food Adulteration Act.
The Supreme Court decision in Pyarali K Tejani V. M.R. Dange, further supports the
judicial trend for cautious approach to the application of probation in law to adulteration
cases. In this case the accused was convicted for selling adulterated “supari” with
prohibited sweeteners under the Prevention of Food Adulteration Act. Disallowing the
benefit of probation to the appellant Krishna Iyer observed:
The kindly application of the probation principle is negatived by the imperatives of social
defence and the probabilities of more proselytisation. No chances can be taken by
society with a man whose anti-social operations guised as a respectable trade, imperial
numerous innocents. He is a security risk. Secondly, those economic offences
committed by White collar criminals are unlikely to be dissuaded by the gentle
probationary process.
It has now been universally accepted that in order to achieve progressive correctional
standards there must be added emphasis on probation. Its exponents must interpret the
philosophy underlying probation more clearly and initiate a definite campaign of
education that will break down prejudices against correctional methods and explain their
wider objectives. It is a modern technique in the field of correctional therapy which must
be used extensively for treatment of offenders.
Despite the criticism of probation from certain quarters, the fact remains that it is
perhaps the only reformative technique which fully endorses the cause of human

dignity. Probation, in fact, is an opportunity to an offender to “struggle to recapture self-

respect”.
Juvenile Justice
Delinquency is a form of behaviour or rather misbehaviour or deviation from the

generally accepted norms of conduct in the society. The term Juvenile delinquency
refers to a large variety of disapproved behaviours of children and adolescents which
the society does not approve of, and for which some kind of admonishment, punishment
or corrective measure is justified in the public interest. It includes rebellious and hostile
behaviour of children and their attitude of indifference towards society. It may, therefore,
be inferred that a juvenile is a adolescent person between childhood and manhood or
womanhood, as the case may be, who indulges in some kind of anti-social behaviour,
which is not checked, may turn him into a potential offender. A child might be regarded
as delinquent when his anti-social conduct inflicts suffering upon others.
Every conduct prohibited by statute is not to be taken as an act of delinquency. Instead,
the conduct which tends to constitute an offence, not only from the legal standpoint but
also from the angle of prevalent social norms and values shall be included within the
meaning of the term delinquency.
Causes of Juvenile Delinquency:
(i) The industrial development and economic growth in India has resulted into
urbanization which in turn has given rise to new problems such as housing, slum
dwelling, overcrowding etc. The high cost of living in urban areas makes it necessary
even for women to take up outside jobs with the result their children are left neglected at
home. Moreover, temptation for modern luxuries of life lures young people to resort to
wrongful means to satisfy their wants.
(ii) Disintegration of family system and laxity in parental control over children.
(iii) Unprecedented increase in divorce cases and matrimonial disputes is yet another
cause for disrupting family solidarity.
(iv) The rapidly changing patterns in modern living also make it difficult for children and
adolescents to adjust themselves to new ways of life. They are confronted with the
problem of culture conflict and are unable to differentiate between right and wrong.
(v) Biological factors such as, early physiological maturity or low intelligence, also
account for delinquent behaviour among juveniles.
(vi) Migration of deserted and destitute boys to slumps brings them in contact with anti-
social. Thus, they lend into the world of delinquency without knowing what they are
doing is prohibited by law.
(vii) Poverty is yet another potential cause of juvenile delinquency. Failure of parents to
provide necessities of life.
(viii) Besides the aforesaid causes, illiteracy, child labour, squalor, etc. are also some of

the contributing factors.

The English criminal justice administrators have preferred to deal with it outside the
framework of criminal law. Many reformists feel that delinquency among adolescents is
a transient phase and will disappear as they grow older, hence they need to be tackled
differently.
The impact of western civilization and temptation for luxuries and pompous life has
greatly disturbed the modern Indian youth. India also seeks to tackle the problem of
juvenile delinquency on basis of three fundamental assumptions:
(i) Young offenders should not be tried, they should rather be corrected;
(ii) They shold not be punished but be reformed; and
(iii) Exclusion of delinquents i.e. children in conflict with law from the ambit of court and
stress on their non-penal treatment through community based social control agencies
such a Juvenile Justice Board, Observation Homes, Special Homes, etc.
Any violation of existing penal law of the country committed by a child under eighteen
years, shall be an act in conflict with law for the jurisdiction of Juvenile Justice Board.
Juvenile Justice Act, 2000, lays down a separate procedure for dealing with the
neglected and uncontrollable juveniles who have been termed as “children in need of
care and protection”. The former are to be dealt with the Juvenile Justice Board. The
Act clearly indicate that unlike USA and England, the courts in India do not have
jurisdiction in relation to child in conflict with law. There is no difference between the
contents of delinquency and an offence. The only difference is that an offence
committed by an adult person is triable in ordinary court whereas the juvenile who
commits a delinquent act is proceeded against the Juvenile Justice Board through
special procedure.
In the Act a juvenile who has committed an offence is not addressed as ‘juvenile
delinquent’, instead he is called a ‘juvenile in conflict with law’. The object perhaps is to
avoid stigma which the word ‘delinquent’ carries with it in the case of juvenile offenders.
The trial of a juvenile in conflict with law is held by the Juvenile Justice Board which has
to consider the following issues in respect of the age of the juvenile before proceeding
with the trial:
(i) whether the person before it i.e. Juvenile Justice Board, is within the prescribed age
of 18 years or not; and
(ii) for the purpose of determining the age, the relevant date is the date on which the
juvenile brought before the Board for inquiry and proceedings.
The Madhya Pradesh High court in its decision in Sunil & another V. State, clarified that
the Court cannot leave the determination of age of juvenile entirely on the evidence of
juvenile, but it is required to make an inquiry suo moto. In this case, the ADJ, had
rejected the bail application of the accused on the basis of ossification test and medical
report which showed that the appellant was not a juvenile. The High Court ruled that
ossification test is not a conclusive proof in the matter and it is the primary duty of the
court to find out whether applicants are covered by the Juvenile Justice Act or not and
the juvenile may be able to lead any evidence as to his exact age. “The Court must do
participatory justice and exercise suo moto powers rather than be a silent spectator.”
In the case of Krishna Bhagwan V. State of Bihar, the High Court observed that for
determination of the age of the juvenile for the purpose of his trial under the Juvenile
Act, the relevant date should be the date on which the offence was committed.

Therefore, where the juvenile accused is within the age limit prescribed by the Act, he or
she should be tried in a Juvenile Court despite the fact that he exceeded that age limit
at the time when he was brought before the Court for trial.
In a case the Supreme Court ruled if there are two conflicting views about a particular
issue, the one which is beneficial to the accused be accepted. According, accordingly
the accused be treated as juvenile and be tried under the Juvenile Justice Act.
In Sanjay Suri V. Delhi Administration, the Supreme Court had to lady down a duty on
the jail authorities that no young person was to be admitted to an adult jail unless the
Court certified that the person was above the age prescribed for juvenile offenders. The
Supreme Court issued the directive that in all warrants of detention the age of the
detenu must be specified to ensure that no juvenile is sent to adult prison. Further, the
jail authorities must not accept any warrant unless age is specified in it.
Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which
provides that where the court is satisfied that at the beginning of inquiry, the accused
was a juvenile, his trial under the Act would continue even if he or she crosses the
prescribed maximum age of 18 years during trial proceedings. Thus the crucial date for
determination of age of the accused to be tried under Juvenile Justice Act would be the
date on which he was produced before the competent authority or Juvenile Justice
Board for inquiry or trial.
In Raghbir V. State of Haryana, The Supreme Court held that the Haryana Children Act
was to prevail over Section 27 of the Cr.P.C. and even a child accused of an offence
punishable with death or life imprisonment could not be tried by ordinary criminal courts.
Section 12 of the Act provides that the juveniles should be released on bail as a general
rule and should be sent to jail/ Observation Home only in special cases.
The Juvenile Justice Board may order the release of juveniles in conflict with law on
probation of good conduct and place him under the care of his parents, guardians or
any other person. Having regard to the circumstances of the case, the case, the Board
may also direct the juvenile to enter into a bond, with or without sureties. But the period
of such order of release on probation shall not exceed 3 years. Besides, the Board may
order the placement of juvenile in a Special Home.
The Juvenile Justice Board is also empowered to order the placement of the juvenile
found guilty of an offence to be placed under the supervision of the Probation Officer for
a period not exceeding three years and the Probation Officer shall submit the periodical
report about the juvenile and his progress in reformation.
The proceedings of the Juvenile Justice Board being of a confidential nature, their
publication is strictly prohibited in the interest of the juvenile. No newspaper or
magazine etc. shall publish the name, address, photograph or details or particulars of
the juvenile or report of proceedings against him. Any contravention of this provision
shall be punishable with fine which may extent to one thousand rupees. The Act does
not permit joint trial of a juvenile with a person who is not a juvenile.
Section 22 of the Act contains special provision in respect of juveniles who have
escaped from Observation Home, Special Home or from the custody of a person. The
section expects a liberal and sympathetic approach towards such juveniles.
A child in need of care and protection as defined in Section 2(d) of the Act means a
child who is found without any home or settled place of abode and without means of
subsistence or who is neglected by his parent or guardian or does not have parent and

no one is willing to take care of him etc. The Act empowers the State Government to
constitute Child Welfare Committees for care and protection of children who are in
need. Act further provides for establishment of Shelter Homes for destitute and
shelterless children.
Four alternative measures for the rehabilitation and re-orientation of such juveniles and
children are suggested in Section 40 of the Act which are as follows:
(1) Adoption of orphaned, abandoned, neglected or abused children through institutional
or non-institutional means.
(2) Foster care is used for temporary placement of those infants who are ultimately to
be sent to some institution or individual for adoption.
(3) Sponsorship programme may provide supplementary support to families, children,
home, Special Homes etc, to meet the needs of the children.
(4) After-care Programme provides necessary supervision and guidance to juvenile and
children after their release from Children’s Home.
If in the opinion of the competent authority, the presence of juvenile in conflict with law
or child is not necessary in proceedings against him, it may be dispensed with. The
personal attendance of accused in inquiry or trial is generally dispensed with keeping in
view the nature and position of parties in the case.
The procedure followed in the proceeding against juvenile offender under the Juvenile
Justice Act, 2000, differs from that of an ordinary criminal trial, and, therefore, it can be
rightly termed as ‘special procedure’ in view of the following considerations:
(i) The proceedings cannot be initiated on a complaint from a citizen of the police.
(ii) The hearing is informal and strictly confidential.
(iii) The juvenile offender while under detention, is kept in separate Observation Home.
(iv) The young offender may be reprimanded on security or bond for good behaviour.
(v) The trial of juvenile in conflict with law is usually conducted by lady Magistrate
specially deputed for the purpose.
(vi) The procedure followed in the trial of juvenile in conflict with law being informal, he
has no right to engage the services of a lawyer in the case.
(vii) No appeal lies against the order of acquittal made by the Juvenile Justice Board in
respect of a juvenile alleged to have committed an offence. An appeal shall, however,
lie against the order of the Board to the Sessions Court within a period of 30 days
whose decision shall be final and there is no provision for second appeal.
It must be stated that the treatment offered to juvenile offenders under the Indian law is
prompted by humanitarian considerations but the fact remains that the very concept of
juvenile delinquency goes against the spirit of the law relating to liberty, which provides
that no one can be proceeded against unless he is charged for some specific offence.
The Juvenile Justice (Care and Protection of Children) Act, 2000 is a comprehensive
legislation which contemplates the creation and institution of authorities for the care,
protection and correction of juvenile delinquents but the manner of implementation of
this welfare legislation is not yet effective in large parts of India.


Victimology and Emerging Trends of Compensation
March 30, 2015 by drishti Leave a Comment
By Gurratan Wander, RGNUL and Harsimrat Kaur, Army Institute of Law, Mohali
“Editor’s Note: More often than not, most discourses pertaining to criminal law, or the
commission of mass crimes involve the element of criminology, and the principles of
criminal law, including basic concepts such as mens rea or actus reus. However, it is
imperative that a discourse on victimology and compensatory jurisprudence be initiated
and maintained, as the one of the biggest stakeholders in the criminal justice system are
the victims. This paper seeks to examine the concept of victims and victimology and trace
the trends of compensatory jurisprudence in India.“
“The history of crime and punishment in the whole civilized world reveals a steadily
increasing concern with the treatment of criminal and a virtual blackout of attention to the
situations of the victim” [i]
HISTORIC EVOLTUION IN VICTIMOLOGY
In ancient period, criminal law was victim oriented and they enjoyed the dominant position
in entire criminal legal system with certain short comings. Even certain trees and animals
were considered sacred and cutting and killing them were considered heinous sin and
criminal had to pay heavy compensation and undergo rigorous punishment. That’s why
Stephen Schafer calls it ‘Golden Age’ of victims.
Subsequently in 16th and 17th century, with the advent of the industrial revolution,
renaissance and French revolution, a sea change was noticed in every walk of life’s. This
gave birth to ‘Adversarial System’. This was the period, in Stephen Scafer’s terminology,
of decline in victim’s role in ‘criminal justice system’. Now the criminal law became
offender oriented and the suffering of victim, often immeasurable, were entirely
overlooked in misplaced sympathy for the criminal. The victim became the forgotten men
of our criminal justice system.[ii]
It was in 20th century, after the close of the Second World War some criminologist took
upon themselves, the task of understanding the importance of studying the criminal-victim
relationship, in order to obtain a better understanding of crime, its origin and implication.
Because of their efforts, U.N passed a charter for victim’s right and on similar line the
European convention on the compensation of victims of violent crime’. Therefore many
states of Europe and America enacted their legislations for victims compensation in
criminal justice system. Therefore, victim’s movement has been regaining momentum in
whole world but with different shapes and been regaining momentum in whole world but
with different shapes and nature.[iii]

VICTIMOLOGY AS CONCEPT:
Definitions-
• ‘Victim’ means natural person who, individually or collectively, have suffered harm
including physical or mental injury, emotional suffering or economic loss or violations of
fundamental rights in relation to victimizations identified under scope.
• A person is a victim regardless of whether the crime is reported to the police, regardless
of whether a perpetrator is identified, apprehended, prosecuted or convicted, and
regardless of the familial relationship between perpetrator and the victim. The term ‘victim’
also includes, where appropriate the immediate family or dependants of the direst victims
and persons who have suffered in intervening to assist victims in distress or to prevent
victimization.[iv]
Definition of victim under Victims Rights Act means
• A person against whom an offence is committed by another person;

• A person who, through, or by means of an offence committed by another person, suffers
physical injury, or loss of, or damage to, property;
• A parent or legal guardian of a child, or of a young person; and
• A member of the immediate family of a person who, as a result of an offence committed
by another person, dies or is capable, unless that member is charged with the commission
of, or convicted or found guilty of, or pleads guilty to, the offence concerned.[v]
Victimology is a relatively young branch of academic research. Its objective is to gain

knowledge about victims of crime and abuse of power. Victimology has from its inception
adopted an interdisciplinary approach to its subject matter. Contributions are being made
by experts from fields as diverse as academic lawyers, criminologists, clinical and social
psychologists, psychiatrists and political scientists. There are specialized international
journals for victimology; there is a world society of victimology and there are a number of
regional and national societies of victimology. The purpose of the study of victimology is
to enhance our understanding regarding victims and impact of crime on them. The aims
of victimology relate to the meaning and issues of victimology. Therefore, the study of
victimization is the study of crime giving importance to the role and responsibility of the
victim and his offender.
1. To analyse the magnitude of the victims problems;

2. To explain causes of victimization; and
3. To develop a system of measures to reduce victimization.
Today, the concept of victim includes any person who experiences the injury, loss, or
hardship due to any cause. Also the word victim is used rather indiscriminately; e.g.
cancer victims, accident victims, victims of injustice, crime victims and others. The thing
that all these kinds of usages have in common is an image of someone who suffered
injury and harm by forces beyond his or her control. The rapidly developing study of
criminal- victim relationship has been called “victimology” and it is treated as an integral
part of the general crime problem. The word victimology was coined in 1947 by a French
lawyer, Benjamin Mendelsohan. Victimology is basically a study of crime from the point
of view of the victim, of the persons suffering injury or destruction by the action of another
person or a group of persons.[vi]
According to Viano, there is a rather well-developed vocabulary in English connected with

the idea of victim:
Victimhood: the state of being victim.
Victimizable: capable of being victimized
Victimization: the action of victimizing, or fact of being victimized, in various senses.
Victimizer: one who victimizes another or others.[vii]
Victimology focuses on the victims’ relationship to the criminal. Hence, there can be two
major sub-areas of victimology.
1. The one relating to the scientific study of criminal behaviour and the nature of the
relationships which may be found to exist between the offender and the victim; and
2. The other relating directly to the administration of justice and the role of system of
compensation and restitution to the victim.
SCOPE OF VICTIMOLOGY
Shinder, 1982- “…it investigates the relationship between offender and the victim in crme
causation. It deals with the process of victiminzation, of becoming a victim, and in this
context directs much of its attention to the problem victim-offender, sequence, i.e. the
question of whether or not victimization can have crimogenic effects or can encourage
crime”.
Hence, the definition above given makes it clear that victims are the predominant concern
of the victimology. They are central figures in victimology. The study of victims I relation
to the legal system of particular country is main subject matter of study of the victims.
Victimology has come of age. Victims, their needs and their rights, are being constantly
acknowledged in words if not in deed. The victim has become a political tool or weapon
depending upon ones point of view, but the concept and issue have, in a few short years
moved from the domain of a hand full of pioneers to the Council chambers of the United
Nations. And the people we know have made the difference.
1. Victimology is study of crime from victim’s point of views

2. Victimology analysis the victim-offender relations and the interactions between victims and
the criminal justice system.
3. Victim of abuse of power.
4. Victimology is also study of restitution and compensation or reparation of the damages
caused to him by perpetrator of crime.

The victimology is study of victimological clinic.
CONTRIBUTIONS MADE BY THE UNITED NATIONS
The basic purpose of United Nations is to protect the human rights of people and to
maintain the peace in this world. Therefore, for the improvement of the humanity, United
Nations has been playing a great role in protecting the human rights of the victims of
crime. From time to time it has been calling the international conventions, declarations
and other forms of international seminars. One of the most important developments in the
field of victimology in the last twenty years has been the formal approval by the General
Assembly of the United Nations on November 11, 1985 of the “UN Declaration of basic
Principles of Justice for Victims of Crime and Abuse of Power”. In the Declaration the
broadest definition of victim has been given in paragraphs 1&2. The victim is not the
person who himself suffered harm physical, emotional or economic loss but term “victim”
also includes, where appropriate, the immediate family or dependants of the direct victim
and person who have suffered harm in intervening to assist victims in distress or to
prevent victimization. Following rights have been granted to victims:
• Access to justice and fair treatment
It is said that victims should be treated with compassion and dignity. They are entitled to
justice and prompt remedy provided under national legislation. It is important o provide
the information to the victims regarding his role, scope, timing and progress of
proceedings and disposition of their cases; while allowing the views and concerns of
victims to be presented at appropriate stages when their personal interests are affected
without prejudice to accused. It is also important to provide proper assistance to victims
throughout the legal process and to take measures to minimize inconvenience to
victims and more importantly protect their privacy and ensure their safety. Of course,
avoiding unnecessary delay in the disposition of cases and execution of orders or decrees
granting awards to victim
• Restitution
Offenders or third parties responsible for their behaviour should, where appropriate, make
fair restitution to victims, their families or dependants. Such restitution should include the
return of property or payment for the harm or loss suffered, reimbursement of expenses
incurred as a result of the victimization, the provision of services and the restoration of
rights. Governments should review their practices, regulations and laws to consider
restitution as an available sentencing option in criminal cases, in addition to other criminal
sanctions. In cases of substantial harm to the environment, restitution, if ordered, should
include, as far as possible, restoration of the environment, reconstruction of the
infrastructure, replacement of community facilities and reimbursement of the expences of
relocation, whenever such harm results in the dislocation of a community.
• Compensation

When compensation is not fully available from the offender or other sources, states
should endeavour to provide financial compensation to:
1. Victims who have sustained significant bodily injury or impairment of physical or mental
health as a result of serious crimes;
2. The family, in particular dependants of persons who have died or become physically or
mentally incapacitated as a result of such victimization.
3. The establishment, strengthening and expansion of national funds for compensation to
victims should be encouraged. Where appropriate, other funds may also be established
for this purpose, including those cases where the state of which the victim is a national is
not in a position to compensate the victim for the harm.
COMPENSATION UNDER INDIAN CONSTITUTION
Recently the Supreme Court of India has given a new dimension to the Article 21 by
interpreting it dynamically so as to include compensation to the victims under its scope.
Indian constitution has several provisions which endorse the principle of victim
compensation. In one case the Supreme Court, considering the plight of many rape
victims in the country, wanted the National Commission for Women to draw up a scheme
for compulsory payment to victims of sexual violence. Despite the sympathy expressed
in several circles, victim compensation law continues to be in an unsatisfactory
acknowledge in criminal justice with the result there is very little interest shown by them
in successful prosecution of criminal cases.[viii]
Besides the many judgements of various High Courts and the Supreme Court of India,
the Law Commission of India has also submitted the crucial Reports in which it has
recommended to provide the compensation to the victims of crime. Among many reports,
142nd, 144th, 146th, 152nd, 154th and 156th are very important reports which have made very
important contributions towards compensation of victims. Following the various reports
and judicial decisions, the Government of India has made amendments in the Code of
Criminal Procedure and s.157A has been inserted in 2009.
Fifth Law Commission, in 42nd report[ix] dealt with compensation to victim of crime in
India. While dealing, it referred to and highlighted the “three patterns” of compensating
victims of crime as reflected in Code of Criminal Procedure of France, Germany, and
(Former) Russia. The three patterns are:
• Compensation by the state;

• Compensation by the offender either by asking him to pay it from the fine imposed or a
specified amount; and
• 3) Duty to repair the damage done by the offender.

CONCLUSION
Hence, as we know that this issues of ‘victimology’ is gaining importance, we need to give
our due share of attention and help the study of victimology develop and be efficiently
functionally. Though many rules and provision have been made by many governments
still there is not much improvement in the plight of the victims. Victims that go through
mental and physical trauma suffer throughout their lives, as there place is in the society
changes. It is the states duty to counter balance the sufferings of various victims all over
the country. If the status of victims is alleviated, it would be the first step in the reduction
in crime and hence will lead to a certain amount of control over the crimes. So to alleviate
the status of the victims and develop the subject of victimology, the following measures
should be adopted:
1. Proper implementation on various established laws;

2. Since majority of crimes are against women, women empowerment in the fields if crime is
necessary; and
3. A separate law should be made for the victims such that speedy justice and relief is
assured.

Penology (Meaning, definition, Characteristics)
What is Penology? What are its characteristics?
Penology is the study of punishment in its relation to crime. It is a science which deals
with the principles and methods of punishments. Penology is beleived to be a sociology
that deals with the theory and methods of punishment of crimes.
Penologist Dr.P.K. Sen defines it saying – “Penology lay down the fundamental
principles that should guide the State, or the sovereign authority in framing the
schemes of punishments”.
Characteristic Features of Penology –
1. Penology is a science that deals with the principles and methods of punishments.
2. Under Penology, the criminals are punished on a rational basis.
3. Penology reflects the State policies.


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Criminology & Penology

Criminology & Penology

Criminology looks at theories around crime commission.

Penology deals with how society looks at and responds to crime.

must be addressed specifically and then tied down to theories.

post election violence. What are the influences?

The three areas we will focus on include;

a) White collar crimes.

c) Youth delinquency- Gang culture

An author, Wayne Morrison in his book “Theoretical Criminology from modernity

and the technical.

Criminology has also been defined to include the study of:

ii) Extent of crime.

iii) Effects of crime on victims and society.

iv) Methods of crime prevention.

vi) Characteristics and workings of the Criminal Justice System (Penology).

vii) Types of crimes.

Critical questions in criminology.

Criminology & Penology Page 2

Given the first area of concern, a number of queries have arisen;

domain, or whether it is totally unstable. A mass of perspectives which tease the

negates this as soon as various other articles are read.

of social sciences such as jurisprudence, sociology, anthropology, psychology etc, of

which they may be uncertain as to their own constitution.

empirical). There are two valid view points on this question;

a science. A man known as George Wilber argues that antisocial behavior in

society cannot be scientifically interpreted. Other schools argue that since

from others it is not a science.

Criminology & Penology Page 3

with general phenomena. Further, that criminology is based on other social

sciences just like medicine is based on anatomy, physiology, physics, chemistry

penology and prevention of crime.

on a two given offence.

Criminology & Penology Page 4

f) To enhance official understanding of criminology, the types of offences, the

prevalence of offences committed generally or specifically by a class of people or in

certain localities. This kind of understanding is supported by the date which is

important for crime detection and control.

The government is based to plan better in terms of allocation of resources towards

fighting different types of crime.

such as prisons when we do not work to prevent offending or re-offending? The

simply advocate. Both approaches are however, relevant.

numbers of reasons why it is difficult to define crime;

Criminology & Penology Page 5

Ideological issues: any theory or explanation of crime obviously has several

very least, most criminology theories can be classified as conservative, radical or

explanation of some phenomenon including one of crime and criminals is supposed

to be value-free uncontaminated by emotions and political circumstances; but in reality

A conservative perspective of society tends to be supportive of the legitimacy of

of social background and historical development.

fundamental changes to the economic or social structure. (AFFIRMATIVE ACTION-

Problem never really addressed).

Criminology & Penology Page 6

criminology enterprise. Therefore, the political orientation of the particular approach

violation of civil rights.

power issues, but as a social issue.

concerns of the writer. In reading criminology material, it is important to examine the

are not being asked and why not.

Criminology & Penology Page 7

instead be based on moral or social conceptions such as social harm. Is crime

it? Should criminology subject matter be restricted to conventional legal definitions?

whether to make it a crime against humanity.

To illustrate the differences on defining crimes, consider the following;

be damaging are not.