Week 1 Discussion - Criminological Theory.

There is a huge difference between the classical and positivist schools of criminological theory. They seem to be almost polar in their opposition. This polarity centers on the concept of free will. The classical school bases policy recommendations on free will; “...classical law emphasized moral responsibility and the duty of citizens to consider fully the consequences of behavior before they acted. This thinking, of course, required a conception of humans as possessing free will and a rational nature.” (Williams & McShane, 2014, p.18). On the other hand, altough there are several modes of positivist thought, the common thread of thought seems to deemphazie the concept of free will.

“Embracing the scientific method, positivists took a deterministic stance toward behavior and left behind the Classical School’s insistence that humans are rational beings with free will” (Williams & McShane, 2014, p.35). Indeed, extreme forms of positivist thinking deny that free will exists at all.

“If you believe that “things such as genetics and the environment influence behavior but doesn't cause them,” then you believe, as do most people, that there is this third thing, this uncaused free will independent of genetics and environment, that does cause behavior. But then you have to explain where that will comes from, and why it chooses the way it does. If you can't answer those questions, you're appealing to a mystery, and if you do answer those questions, you'll see that it all ultimately boils down to environment and heredity as they create the person.” (Naturalism.Org, para. 11).

The major policy difference between the two schools can be seen in the focus on methodology to prevent crime. Criminological theory presents four methods of doing so; deterrence, incapacitation, retribution, and rehabilitation.. Classical theory relies on the ideas of deterrence, incapacitation,, and retribution, while positivist theory focus on rehabilitation.

In view of these differences, we can determine which theory is the basis for many current policies:

Three strikes laws, Truth in Sentencing guidelines, minimum sentencing, and the death penalty are all resultant from classical school thought.

Vocational training, probation, and the insanity defense are derived from positivist thinking.

Anti-crime measures in our society tend slightly to policies based on the classical school, but there is no lack to policies based on positivist thought. American policy can be flexible depending on which politicians making which promises at any given time. American policies will tend toward classical solutions due to the guiding myth of American as an individualist society reaping the benefits of free will solutions. Mead presents the idea that much of American political identification is based on what he terms “the Jacksonian Tradition” , in which individuals are held responsible for their own behavior. (Mead, 1999).

Personally, I adhere to a free will viewpoint; “Mercy to the guilty is treason to the innocent”. However, I am speaking of mala in se crimes with actual victims in this context. We have over-criminalised our society to the point where the average American commits 3 felonies a day, and this doesn't account for users of illegal drugs.

Mead, W. (1999). The Jacksonian Tradition. The National Interest Winter 1999-2000. Retrieved April 8, 2014 from http://nationalinterest.org/article/the-jacksonian-tradition-939

Naturalism.org “Naturalism and Punishment:
Real World Implications for Criminal Justice. Retrieved April 8, 2014 from http://www.naturalism.org/stanko.htm

Williams, F. & McShane, M. (2014) Criminology Theory (6th edition). Pearson




Follow-up:

 I don't think the term “criminal” is differentiates enough between criminals committing “mala in se” offenses, and “mala prohibita” offenses. By the way, I will probably bore you to death this quarter with my overuse of those terms. But I do believe that it is important to distinguish between the types of criminals, as I think rehabilitative methods more appropriate for those committing “mala prohibita” crimes.
In fact, I think that using the criminal justice system to punish things that are only crimes due to the shrieking of do-gooders to be morally repugnant and counter productive to society to begin with.
Moving on to your question, and looking at the Manson and DeSalvo cases, I definitely think that these criminals used a rational process in deciding whether to commit their crimes or not. However, I don't think that the criminals' risk/reward valuing weights are the same as the weights assigned by the researchers. One of the problems overlooked by empirical researchers is the assumption that all humans have the same values. As a counter to the perception that prison is a negative reward for everyone, we can see Manson asking to stay in prison in 1967. We can also see that a term in prison is valued as an experience amongst some street gangs, and use tattoos to mark their “service”.
In terms of mala in se criminals, then, I do think that incapacitation is the best solution. We can guarantee that a criminal has much less of a chance to harm the public when they are behind bars or 6 feet deep.