OVERVIEW OF CLASSICAL CRIMINAL THEORY AND RATIONAL CHOICE THEORY

Transcription

1 REHB3062, Week 2 OVERVIEW OF CLASSICAL CRIMINAL THEORY AND RATIONAL CHOICE THEORY Traditional Classical Theory Ø approach founded in 19 th century by criminologist Cesare Beccaria underlies our common understanding of criminality + underpins the development of criminal law (which is based on free choice notion that ppl have the ability to freely choose or not choose to commit a crime). Ø Classical theory includes a no. of related approaches (1) Classical Theory, (2) Neoclassical Theory + (3) RCT (most recent version of these approaches) (1) Classical Theory + Neoclassical Theory à principles of human behaviour: Ø all human beings possess the ability to make choices + decisions about their own actions. Ppl are aware of what is right + what is wrong importance of reason in understanding human behaviour. Ø The Law presumes that those who commit crime choose to do so. Crime involves choice, the weighing up of advantages/disadvantages of an action Ø The punishment for breaking the law must fit the crime the more heinous the crime, more severe the punishment (purpose of punishement = DETERRENCE) Ø Neo Classical Theory some classical theorists believed that some human beings are less rational than others. Thus, crime committed by a less responsible/rational being is less guided by reason (knowledge of right + wrong) and is therefore worthy of some reduction in punishment (Free Will can be inhibited in some situations which may Mitigate personal responsibility) - the punishment can be reduced according 2 what r judged as the limitations of the person when they commit crime - these are called mitigating circumstances allow the courts to reduce punishment for a crime. - Less rational persons can be kids, ppl w/ MI, intellectual handicap - When notion of mitigating circumstances introduce into classical theory became known as neoclassical theory (2) Neoclassical Theory Ø A continuation of classical crime theory tradition Ø main contribution to field of criminology = understanding of individual differences of perpetrators (brought in notion of MITIGATING CIRCUMSTANCES) Ø found some ground level b/w classical theory (complete focus on crime explanation) and positivism (complete focus on behaviour prediction) Ø Neo crime is a result of many conditions that have ultimately influenced the perpetrator to commit it. Ø NCT considers age, gender + social class of the perpetrators exempts certain categories of persons from free will (MI, juveniles ) (3) Rational Choice Theory Ø same as classical but added assumption that person also weighs up costs of being caught Ø criminal acts may be committed by any one person but may not commit it if they feel the cost is too high Ø offenders are decision-makers their choices r directed by the values, the costs + likelihood of obtaining desirable outcomes (less focus on the individual, more focus on situational factors leading to offenses) à ppl commit crimes when they view the outcome as beneficial Ø situational variables are relevant to any comprehensive/coherent explanation of criminal behaviour/events Ø requires opportunity + motivation Additional (Discussion) Notes for Week 2 Ø What is a criminal? raises all such of issues s/as: - is a criminal a person who is in some way evil/morally bereft? - Are they born that way or do they become criminals as a result of their enviro + upbringing?

2 - Or are we all capable of being criminals given the right circumstances irrespective of our genes and upbringing? All that is needed is the temptation to benefit from committing a crime? - Thus, is committing a crime simply a matter of choice? Classical Theory Ø most significant of all criminal theories (Enlightment) has led to no. of more recent approaches using classical ideals Ø some significant points (other notes above): 1. classical theory came up with the view of the human being as a rational being. Reason is what separated us from other animals. 2. Ideas of human nature in the enlightment period: - human beings r rational + even criminals use their reason in the committing of crimes - criminal acts are a result of weighing up the pros + cons of undertaking criminal activity + choosing most beneficial outcomes [Bentham Utilitariansim] (crime occurs when benefits outweigh the costs) - there s no such phenomenon as born criminal - criminal behaviour is not caused by any prior events but is a result of an outcome of choice by the individual - thus, we can t divide the world up into those who are a potential criminal and those who are not as every person is a potential criminal!!! - If a criminal act is a result of choice only way of dissuading these choices is to create laws that render it undesirable + unprofitable. This takes form of punishments, fines + jail. H/e, execution or physical pain not held as useful by most classical theorists. Classic School of Criminology Week 2 Reading Notes Ø classical criminology Ø Beccaria Ø A more rational approach to punishment Ø Utilitarianism behaviour is purposeful and not motivated by supernatural forces Ø Deterrence Ø Punishment + sentences proportionate to the seriousness of the crime à Cesare Beccaria Ø Beccaria was a true law reformer. He single handedly transformed the criminal justice system of all Europe + indirectly of the rest of the world Ø The purpose of punishment is Deterrence, Ø Punishment should be imposed in order to prevent offenders from committing additional crimes. It s a tool, not an end in itself. Ø To help prevent crime, punishment should be: swift, severe + certain. But only severe enough to outweigh the personal benefits derived from the crime commission. Ø Beccaria condemned the torture of suspects Ø Innocent until proven guilty Ø No penalty unless sentenced by court of law, unless proved that he committed the crime à Beccaria s theory: criminals have control over their behaviour, they choose to commit crimes and they can be deterred by the threat of punishment

3 Ø his work is better appreciated as a philosophy of justice rather than as a criminological theory of why crimes r committed à Classical School 1. principle of rationality: human beings have free will + their actions r a result of deviance 2. pleasure + pain (/rewards + punishment r the major determinants of choice) [hedonism/utilitarianism Bentham] 3. deterrence is the best justification for punishment 4. human rights + due process principles! Neoclassical Criminology Ø individual rights + due process: conditional sentences, alternative modes of incapacitation that don t require imprisonment, s/as home confinement, use of halfway houses, psychological Rxs. Ø Law + order: death penalty + general deterrence Ø general deterrence: - where deterrence has been found it is the certainty and not the severity of the punishment that seems to influence ppl. BILL C-36 à Choice Theory Ø beginning in mid 70 s the classical approach began to re-emerge + the rehabilitation of criminals a tenet of positivism came under attack [Rational Choice Theory] Ø Choice Theory (James Wilson 1975) - criminals r rational actors who plan their crimes, fear punishment, + deserved to be penalised for their misdeeds - efforts should b made 2 reduce criminal opportunity by deterring would-be criminals + incarcerating known-offenders Ø the concepts of rational choice: - a crime occurs when an offender decides to risk violating the law after considering both personal factors need for money, revenge, thrills - and situational factors how well a target is protected, efficiency of local police force - reasonable criminals evaluate the risk of apprehension, the seriousness of expected punishment, the potential value of criminal enterprise + his need for immediate criminal gain - the decision to commit a crime is a personal decision based on weighing the available info - Rational Choice Theorists view crimes as both offense-specific i.e. offenders will react selectively to the characteristics of the particular offense, and offender-specific i.e. each criminal makes decisions Ø the decision to commit crime is structured by the choice of: - where the crime occurs - the characteristics of the target - the means (techniques) available for its completion Chapter 6: Theoretical Explanation The Classical School Ø an approach to the study of crime which is underpinned by the notion of rational action + free will Ø suggests that ppl have the ability to choose right from wrong Ø the major element governing a person s choice of action is the basic human desire to obtain gratification + avoid pain Ø presupposes that the offender is a conscious agent Ø punishment seen as major mechanism by which to promote compliance w/ the law

4 The Positivist School Ø more emphasis placed on the existence of certain patterns in the manifestation of crime Ø scientific investigation of causes of crime stressing influence of hereditary, psychological + social factors Ø explain crime by reference to forces + factors outside the decision making ability of the individual Ø attempt to identify key causes of crime whether genetic, psych, social or economic thought to be largely out of each ind s cntrl. Ø The social scientist can study society to search for, explain + predict future patterns of social behaviour + ultimately provide rational means of overcoming existing social problems Ø Preventn of crime through individualised Rx + rehabilitation of offenders Ø Positivists stress the idea that much human behaviour is a fn of external social forces beyond ind cntrl, + internal forces s/as mental capabilities + biological makeup Ø key method of the positivist to classify human experience + behaviours through a range of objective tests developing various ways to measure human activity (reliance on observable facts) Ø task of positivist = to uncover the causal determinants of human behaviour + thus predict + modify future behaviour outcomes The Neoclassical School Ø revision of classical theory due to its extreme + unflexible nature Ø an approach that maintains the basic belief in free will while paving the way for entry of mitigation into criminal justice! Ø Challenges the classical position of absolute free will, thus developing rules to cope w/ extenuating circumstances where inds could be deemed not to be totally responsible for their actions Ø Free will can be inhibited by pathology, incompetence, mental disorder or other conditions (criminals not always totally accountable 4 thr actions) - identification of degrees in criminal responsibility i.e. juveniles and mentally ill deemed incapable of forming intent to commit crime, thus absolved from responsibility (more focus on the intent of the crime!) - neoclassicism excepts certain categories of persons from the assumption of free will Discussion Topic 2 à Classical Criminal Theory + Neoclassical Theory Amendments Objectives 1. to understand + articulate the neoclassical position of criminal + the nature of its amendments to the traditional classical approach 2. to explain the nature of the impact that neocloassical approaches had on criminal law Ø it s important to understand the interrelation of classical theory to the operation of law. Ø Central feature of this = criminal law, in almost every modern nation, is based on the idea of personal responsibility (i.e. individuals r responsible for their actions) Ø Thus, inds r assumed to have freedom of choice, which means the committing of an illegal act is the result of one s choice to do so when they could have chosen not to Ø Important point à that ppl still choose to commit a crime even when there r laws that exist to indicates punishment is a result of being apprehended for undertaking the action! Ø Further point à the law classifies criminal acts into levels of seriousness (degrees of criminality.) crimes regarded as most heinous being about highest levels of punishment. Ø Thus, law is regarded as a deterrent to dissuade individuals against committing crime! à next discussion = problems w/ classical theory. i.e. aspects of the classical approach that lead to a refinement known as Neoclassical Theory Neoclassical Theory Ø underlying theory from Enlightment period = all human beings are rational + that reason is the essential feature of human existence Ø some Qs that raise themselves from this assertion are: 1. Does every human operate on the basis of reason? If not, who are they?

5 Ø some individuals have less developed skills of reasoning/lack rationality à young kids, MI, brain damage 2. Is every human action based on the notion of rational choice? What actions are not? Ø some actions are directed by values, habits, emotions 3. Can every human make decisions about what is a good and bad action? 4. Are some criminal actions not based on choice? What are they based on? Etc Summary of the basic points of the Neoclassical Revision 1. some people do not act rationally most of the time. Who are they? - children. Esp v/ yng - those w/ MI, esp serious - ppl w/ brain damage - those w/ limited reason (intell. D..) - aged + elderly w/ dementia - those from deprived backgrnd who for some reason may not have inculcated social values like most of the popn 2. some individuals do not act rationally some of the time (may plead reduced responsibility) - those who commit crimes on basis of passion w/o reason - those who commit crimes on basis of having being reduced by drugs - those who have been coerced to commit a crime by another person whom they can t resist - temporary insanity à thus, NCT acknowledges that in many instances above an individual s responsibility for the illegal act can b reduced + the punishments reduced or actually eliminated Ø these exceptions to the application of the law = mitigating circumstances! Ø this is not to say the such individuals are freed: they re nearly always referred to rehab-type services such as child correctional institutions, education services Ø thus, NCT that operates in the courts allows some individuals commit crimes which they r not totally responsible. But the main tenet of Classical Theory remains that individuals make choices and act w/in reason.