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SOC 3290 Deviance
Lecture 5: The Classical Perspective
As the story in your reading relates, criminal justice personnel from other countries are often amazed - even disturbed - at how many people are incarcerated in North America relative to their own jurisdictions. They openly wonder about the large prisons built, and why people are incarcerated for so long for property crimes. In their own jurisdictions, more offenders are sentenced to fines and community-based approaches to pay back their debts to society - and relatively short prison terms are reserved for hard-core, violent offenders. Otherwise, it is seen as merely hardening offenders further. Yet many of us may find such ideas equally disturbing (i.e. as too lenient, providing no effective deterrence, and “the punishment not fitting the crime”).
Such differing viewpoints voice ideas that could be pulled directly from the classical perspective on deviance and social control. At the heart of this perspective lies the idea that deviance involves a process of rationally calculated choice to achieve maximum pleasure at the cost of minimum pain. It also attempts - as do the differing approaches above - to rationally adjust punishment to most effectively deter crime (one stressing deterrence through increasing severity of punishment; the other through attempts to avoid embittering or unnecessarily “hardening” offenders against society).
(1) Theoretical Images:
The classical perspective represents a radical departure from the demonic perspective, perhaps being the first really “modern” perspective on deviance and social control. It appeared first in the writings of Cesare Beccaria and Jeremy Bentham in the 1700's. These writers viewed themselves as enlightened reformers, guiding society Away from a dark age of superstitious and arbitrary social control toward a new order based on rational, fair and consistent application of human reason.
While the demonic perspective stressed the influence of supernatural forces, classical theorists envisaged humans as influenced by nothing except the calculative rationality of human reason. Deviance, like any human act, was viewed as a freely calculated choice to maximize pleasure and minimize pain. There was also a departure from the idea of cosmic connectedness underpinning the social order in favor of a view that society rested on a social contract between individuals.
This vision of human nature permeates everything the classical perspective has to say about deviance and social control. Where does this vision come from? Again, the answer lies in the intimate historical connection with a host of major social, economic, political and intellectual developments.
Historically, this new perspective was the offspring of massive transformations in the
social landscape of Europe over several centuries. Several interconnected developments were key: (1) shifts in the size, density and heterogeneity of the European population; (2) transformation of the feudal economy into early forms of capitalism, with its individualizing political and economic ethic; (3) the emergence of the modern nation-state, which swept away feudal, localized and aristocratic power, encouraged large scale production and international trade for the merchant classes; (4) religious changes, such as the individualized relationship to God encouraged by the Reformation, the corresponding loss of power of the intermediary Catholic church in various countries, and the rise of the “protestant ethic”; and (5) the intellectual impetus of scholasticism (with its faith in reason and calculable rationality) and the enlightenment (with its idea of society consisting of a social contract). Each of these, in their own way, broke down the local community structures which had contained deviance during the demonic period.
Cesare Beccaria: Controlling the Rational Calculation of Deviant Pleasure:
Beccaria was an upper-class Italian exposed to both a rigorous scholastic education and the thought of the Enlightenment. He became involved in a radical group of Milanese youth opposed to the abuses of the current system (“The Academy of Fists”), and, as each member was responsible to master a particular subject calling for inquiry and reform, became interested in prison reform. He witnessed, through a colleague, the brutal and undifferentiated remnants of demonic social control: a penal system riddled with corruption, dependent on the idiosyncratic discretion of individual judges. The irrationality and injustice of this system moved him into the stance of reformer. He was urged to write down his thoughts, and ultimately produced the major treatise of the classical perspective: An Essay on Crimes and Punishments. This book was an explosive success and became a landmark of reform. It appealed almost instantaneously to a curious mix of conservatives, who defended the continuance of monarchy, and radicals who were setting in motion forces to topple it. Regardless of their political orientations, each had a stake in preserving the power of the absolute state (merely disagreeing on its organization and who should be in charge), and both abhorred the continuation of harsh, arbitrary demonic control policies - viewing these as a throwback. So Beccaria’s book represented good timing, and an opportunity to bring dark, Medieval practice into the age of Enlightenment.
Beccaria’s theory can be summarized in the following six principles:
The Necessity of Rational Punishment in Preserving the Social Contract: While following Enlightenment thinkers regarding the social contract theory of society, Beccaria asked what happens when someone steps outside the terms of - or breaks - this contract. He argued that a system of rational punishment was necessary in order to remind individuals of their common interest in preserving social order. These were considered necessary to remind individuals of their common interest in preserving social order. Moreover, in defending the prerogative of the state to punish, he distinguished between tyrannical punishments - involving arbitrary efforts to gain positions of advantage - and rational punishments aimed at defending public liberty from the usurpation of individuals.
Jeremy Bentham, like Beccaria, was both a thinker and a reformer. He was repelled by the archaic state of 18th^ century British common law. In his books “Fragment on Government” and “An Introduction to the Principles of Morals and Legislation” he laid out a scheme for rational legal reform which closely parallels that of Beccaria.. He also believed that human actions were motivated by a hedonistic calculus of pleasure and pain, and his passion for quantification led him to formulate a mathematics of rational punishment aimed at deterring offences against the “common good.” This common good, moreover, was said to be calculable in terms of acts which ensured the greatest happiness for the greatest number of people.
Because Bentham’s ideas so closely resemble Beccaria’s, today we won’t consider his theories in greater detail. It is sufficient for now to conclude that both shared a common vision regarding a new, rational approach to deviance. Their proposals for legal reform and calculable punishment assumed that deviants were rational actors, responsive to enlightened state policies directed toward the deterrence of lawbreaking and the preservation of the social contract.
(2) Identifying Classical Deviance :
The classical perspective has shown very little concern for the study of deviant behavior or deviant people. It assumes that deviants are no different from anyone else, that their actions merely reflect efforts to maximize pleasure while minimizing pain. It explains deviance, then, in terms of inadequate social controls - controls that are not rational enough to deter people from choosing pleasure beyond the prescribed boundaries of the social contract. It’s all a matter of bad or ineffective laws, and the proper identification of deviant acts becomes the job of the legislature, which judges are then to enforce.
But how are legislators to decide which acts are deviant? Beccaria seems to simply trust the wisdom of the sovereign state to regulate social life in the interest of the common good, but how is this “common good” determined? Couldn’t it be that, given the historical connectedness of classical theory and early capitalism, that market values prevailed in interpreting this “common good?” It has been pointed out, for example, that states created new crimes and punishments directly as the institutions of capitalism advanced (e.g. vagrancy laws forced workers displaced by the land clearances into low-paid occupations rather than being punished). Beccaria’s silence in this regard is disturbing to those who are concerned with the role of powerful economic, political and social groups in shaping the style and context of law.
Bentham’s principle of social utility, on the other hand, presented a simple ethical command for those who ruled: act always to ensure the greatest happiness for the greatest number. In addition, Bentham argued that a principle of “demonstrable social harm” was a necessary condition for legislatively prescribed sanctions. If there were no demonstrable victims, there should be no punishment (e.g. homosexuality, consensual vice crimes, etc.) This principle differentiates the classical from the demonic perspective. While the demonic perspective makes no distinction between immorality and deviance, the classical perspective questions whether demonstrable harm results.
(3) Social Control of Classical Deviance:
Beccaria’s work quickly resulted in three major changes in European social control policy: (1) the French Penal Code of 1791; (2) neoclassical modifications; and (3) the centralized control of deviants in state institutions. Each will be dealt with in turn.
The French Penal Code of 1791 reflected many of Beccaria’s ideas such as a scale of crimes arranged by seriousness, with uniform punishments apportioned accordingly. It specified that all penal sanctions must be determined legislatively, and that the role of judges be limited to determining guilt (e.g. there was no room for consideration of extenuating circumstances in setting punishment). This code came as close as any in history to incorporating a purely classical viewpoint, being both extremely legalistic and administratively simple. Everyone got the same punishment for the same act: both its greatest advantage and its greatest disadvantage.
This code resulted in enormous practical problems: it was considered unfair that people committing the same act under very different circumstances got the same punishment (e.g. premeditated murder vs. self-defense; first time vs. repeat offenders; children, the insane or disabled vs. “fully rational” adults). Yet the code had no answer, and critics demanded reasonable changes. This resulted in a slew of neoclassical modifications.
At first, a certain discretion was returned to judges in 1810 to deal more harshly with “objectively” repeat offenders. This didn’t, however, satisfy critics who wanted consideration of the “subjective” circumstances or mental state of deviant actors. They pushed for, and achieved a wider set of modifications in France and in other jurisdictions which took up the classical policy, including attention to:(1) the premeditation of the deviant act (isn’t this evidence of the rational free will underlying the classical perspective??); (2) the possibility of extenuating or mitigating circumstances (more deterministic??); and (3) the suggestion that actors couldn’t be held responsible by reason of insanity ( the McNaughton case, where the accused could be acquitted if he, as an individual , was laboring under a “defect of reason” where he did not know the nature and quality of the act he was doing, or, if he did, that he did not know that what he was doing was wrong.” Note: strict individualization of social problems in both classical/pathological perspectives/separation from social/political context of actions).
Centralized Control of Deviants in State Penitentiaries:
The final aspect of the classical perspective we will discuss today involve its practical methods of social control. Deterrence was to be applied by housing punished deviants in large, centralized state prisons. While today these are often seen as irrational, dehumanizing environments, during a time when actors were seen as essentially rational it was believed that “doing time” in such places would teach offenders to “correct” their characters to fit with the calculatively rational demands of life in a capitalist economy and centralized state.
control policy, then, in which very little is done to people until they arrive at the third offence? This would both save costs and target scarce resources to that small group of offenders who would repeat delinquent acts again and again. Indeed, in Wolfgang’s data this small group of chronic offenders (6%) was responsible for over half the total offences and about 2/3 of the violent ones. Hence, Wolfgang suggested that a rational crime control policy would provide - and make widely known - that there would be swift, sure and severe punishment for this group, while being relatively lenient with the rest. Indeed, he even suggested that those who commit 5 or more offences be locked up forever! This would maximize the potential deterrence of the criminal law.
This is certainly a very tough-sounding approach, but had appeal for both liberals (who liked the lenient approach to first & second time offenders), and conservatives (who preferred the harsh punishments and deterrence). During the 1970's such comments were joined by an ever widening chorus of criminal justice thinkers with a renewed interest in classical thought. Much of this was related to the perceived “failure” of more liberal and “scientific”theories to produce workable solutions to crime. Indeed, it isn’t really news in criminology that faith in rehabilitative treatment is nearly dead, and that there is a renewed interest in certain nondiscretionary and uniform punishments. There are moves afoot to devise more certain, fixed systems of punishment and to eliminate the widely disparate discretion of judges (e.g. “Sentencing guidelines;” “truth in sentencing,” etc.). Rather than treating people according to their needs, some are urging to treat them uniformly, get rid of parole, treat young offenders the same as adults, and so on. All of these are underscored by the rhetoric of rationality. Indeed, many of these arguments sound very similar to those made by Beccaria and Bentham.
Perhaps the foremost representative of the revival of classical thinking is James Q. Wilson who totally denies the value of searching for the causes of crime. Rather, criminal justice policy should be based on a “new realism,” a platform of rationality by which criminals will know simply that they will be punished if caught. For every conviction for a non-trial offence, swift and certain penalties should be assigned which “fit the crime” and which permit only a small amount of judicial discretion for mitigating circumstances. Wilson’s ideas are not merely an update of Beccaria, but betray a fundamental political conservatism which undercuts the full rationality of his approach. He doesn’t say anything about the corporate, organizational or white- collar crime committed by calculating individuals in pursuit of profit - crime which is far more costly to society than street crime but which is often punished - if at all - very leniently. This is ironic, considering that severe penalties in this rationally calculated area might actually be the most effective. Yet Wilson dismisses this topic, given his - and the public’s - view that predatory street crime is a far more serious matter. In the end, then, this “new realism” appears more conservative than consistent, more selective than uniform in its return to classical thought.
This reemphasis on classical thought is also shared, to some degree, by liberal reformers. They argue that an emphasis on treating the causes of crime has often meant, in practice, more time spent under the control of the state (e.g. waiting for parole board’s decision creates great uncertainty and upset). Most prisoners’ rights and ex-offender groups share the desire of “law and order” types to eliminate the open-endedness of indeterminate sentencing, the indignities of
nonvoluntrary treatment, and establish a more fixed set of uniformly applied sanctions.
The return to classical thinking is signalled by the replacement of rehabilitation with deterrence and rationally administered punishment as the primary goals of social control over criminality. Even among the continued advocates for treatment, “reality therapy” has become one of the more popular methods: offenders “have to accept the consequences of their freely chosen actions” rather than avoiding them through “excuses” (e.g. victim/offender conferencing in RJ). In the end, the assumptions of the classical perspective, while shelved for some time in favour of theories focussed on the concept of causation, have reentered and reclaimed their place in the modern marketplace of social control.
(5) Assessment of the Classical Perspective:
Central to the classical perspective lies the claim that rational punishment deters deviant behaviour. It instills a fear of sanctions both in the punished offender and in the public at large. To realize this effect, punishment must be swift and certain, and the severity of its calculated pain must outweigh the perceive pleasure associated with a given act of deviance. We will now examine the evidence on these claims.
While at the commonsense level the principle of deterrence has much appeal (e.g. hearing someone you know got a speeding ticket on a stretch of highway makes you watch your speed more carefully), there has, until recent years, been very little research on this question. This may have something to do with the short lived dominance of the classical perspective, and the longstanding critiques of some favouring rehabilitation that punishment served merely to emotionally satisfy the needs of the public. Still, the evidence was lacking. Today, however, the classical perspective has been reborn, and the study of deterrence has become a growth industry. Many technical distinctions and complications permeate this research literature. Without unnecessarily complicating matters, I will simply review three matters in this regard. Studies of: (1) specific deterrence; (2) general deterrence; and (3) the role of perception in mediating the effect of punitive sanctions.
With regard to specific deterrence , perfect comparisons aren’t practically possible (those punished and those unpunished for the same acts because they don’t get caught). Since records are often incomplete in these regards, most studies compare those given harsh vs. lenient sentences for similar crimes. These comparisons are flawed, of course, because those given harsh sentences often have longer records than those who are not, so we’re comparing apples and oranges here. Moreover, these studies themselves appear to contradict the notion of specific deterrence. As severity of sentence increases, they suggest that the likelihood of the offender committing an offense again does as well.
In order to get around the methodological problems, some researchers have resorted to self-report questionnaires administered to matched groups of delinquents: one caught and sanctioned, the other not. Again, however, the results contradict what specific deterrence would
relates to deterrence, but new work is underway in this vein. Two things do emerge, however: (1) a consistent finding that perceptions of punishment are indeed negatively related to the likelihood of committing an act of deviance; and (2) that this relationship may be mediated or explained away by a third variable: perceived level of social condemnation. Hence while perceptions of punishment may serve as deterrents, they are only part of a larger group of social factors affecting the likelihood to deviate (e.g. what important others in your life will think of you). While some would argue that perceive punishment causes people to see certain acts as serious or socially condemned, research has found little support for this view. The two factors appear to operate independently, although the strength with which perceived punishment relates to likelihood of deviation is bolstered by the perceived seriousness of the act in question (i.e. deterrence is strongest for robbery; weakest for smoking pot). This then both preserves and modifies the deterrence perspective. The perceived anticipation of punishment is seen as an important but not an exclusive factor in an individual’s choice to deviate or conform.
So what have we learned about deterrence? (1) A better case can currently be made for the value of general deterrence than for the efficacy of specific deterrence. (2) Certainty of punishment appears to weigh more heavily than severity. (3) Perceptions of the certainty and severity of punishment appear to be related to whether or not someone will deviate. (4) Perceptions of punishment don’t operate in a vacuum but are modified, if not directly mediated, by factors such as perceived seriousness, moral meaning and peer assessment associated with particular acts of deviance. We’ve also learned that more research needs to be done.
So we must view the deterrence concept - central to the classical perspective - with a certain tentativeness. Several factors lie behind this tentativeness.
First are the real-world conditions of punishment, where most criminal lawbreakers are never caught. If this is true, how can deterrence function effectively? There is no guarantee that a high percentage of offender will be caught and punished, and many offenders don’t believe they will. Deterrence cannot operate effectively when only 27% of reported crimes result in arrests, 36% of these go to court, and 20% end up in jail. Moreover, a high percentage of crimes are never reported (e.g. in Canada 48% in 1996). In the case of property crimes, the figures are even lower. Hence, whether one measures punishment by certainty, severity or swiftness, the real world conditions of punishment are not squarely in line with a control policy based upon deterrence.
Secondly, surveys show that the public is not very aware of the punishments given for specific offences - even though Beccaria and Bentham suggested that the public be made well aware of the sanctions to be delivered to those convicted of lawbreaking. This would seemingly undermine the specific, precise and calculative nature of the classical perspective’s advocacy of deterrence.
Third, there are the differential effects of punishment on different types of people. The classical perspective assumes that the same punishment will result in the same reaction by all
offenders. But what about people who commit emotionally charged acts of violence, those who commit offences considered trivial by many in the public (e.g. traffic offenses), those with heavily personal investment in illegal activity, and young people more interested in acceptance by peers than getting caught. The suggestion that some persons are better deterred by punishment than others doesn’t mean deterrence should be abandoned, but that it needs to be more flexible than the classical perspective has maintained.
Finally, there is the fact of the differential effects of punishment in different social contexts. It is noted that the severity of punishments appears to have an impact on lowering offense rates in some contexts (e.g. on campus), but that this relationship disappears once other factors are controlled for (e.g. student attitudes and aspects of the social environment). This suggests that unlike the simple pleasure-pain calculations in classical thinking, things like moral thinking, the influence of one’s family and friends in defining acceptable social reality may be key factors in deterring deviance. This draws our attention to the importance of the social and situational context of decision making rather than limiting our view to punitive sanctions alone.
Realizing Rational Justice: Another Problem for the Classical Perspective:
A final problem with the classical perspective is its commitment to the goal of realizing rational justice. While its vision of free will offered a useful - and dignifying - corrective to earlier and later views that deviance is caused by other things (pushing the offender around like a billiard ball), as well as had the laudable goal of doing away with the inequalities and injustices of an overly discretionary system of social control, it has been soundly criticized for actually reinforcing the socially structured inequities in our system of social control. While, in principle, everyone stands an equal chance of avoiding or being subject to punishment, in practice some social groups have always been subject to closer scrutiny and social control than others. The abstract equality of the classical school breaks down in confrontation with the concrete inequality of everyday living.
How free is free choice in a relatively unfree world? Such a question wouldn’t be entertained by a strictly classical approach with its extreme individualism and, some might say, sadism (i.e. both the classical theorists and the Marquis de Sade reduce the social contradictions of deviance to matters of individual choice, advocating the calculative application of swift and certain punishment as “pain’s telling effects cannot deceive”). De Sade’s arguments concerning the rational benefits of systematically administered pain resemble the arguments of his early criminological counterparts. Strict, disciplinary punishments are to be administered in isolation from the complex, contradictory, and often unequal social landscapes in which people make choices between deviance and conformity. This isn’t to equate the logic of classical thought to sadism, but to note disturbing historical connections between these two excessively rational modes of thought. What can be said for sure is that without some commitment to equalizing the human social conditions in which choices for or against deviance are made, the classical perspective will favour the privileged rationality of the advantaged, the rich and the powerful. The rationality of the disadvantaged, the poor and the powerless will be either denied or
