2. Crime and Criminal Justice as Social Phenomena

Whether crime comes before criminal justice or the other way round is one of the great chicken-and-egg problems of criminology. Crime does not exist "in the absolute" but as part of a social treatment of criminality that designates certain behavior as criminal. In other words, to state a truism, criminal justice creates crime in at least some sense. But it is at least clear that crime, once it has been designated as such by the system, exists as a social phenomenon, and that as such it is susceptible to both quantitative and qualitative evaluation. Indeed, determining how "big" the problem of crime is is a considerable political and policy stake. The problem begins with the wealth of available indicators. What should count? The number of reported crimes? Peoples' perception of victimization? The number of convictions?

Understanding the breadth of crime as a social phenomenon increasingly involves comparisons over space and over time. A society may become aware of its relative "crime problem" (or "incarceration problem") in relation to the statistics produced by others. A problem that is first seen as a national problem may come to be understood as a local one, and vice versa. There is no end to how much statistics can be disaggregated by age, gender, income, race, etc. By the same token, we should be wary of drawing conclusions based on mere correlations: causation is a complex process, and ascribing criminogenic characteristics to certain factors can be extremely problematic.

The ways crime and criminal justice operate in interlocking ways is something of a mystery, the relationship being anything but straightforward. One of the great puzzles of the last 40 years, for example, has been to try and explain the apparently exponential rise of incarceration rates in at least some Western countries. The common hypothesis is that of the growth of "punitiveness." However, it is worth noting that even as an empirical assessment this is contested. Within the West broadly understood, considerable differences exist from one country to another, and if anything it is the US that appears to be the great carceral anomaly. Even the rate of incarceration is a complex indicator: for example a society might have relatively fewer people going to prison but for longer (US), or more people but for shorter stays (Scandinavia). Which is actually the most punitive?

Even assuming that growing punitiveness holds true as a broad hypothesis, there is the question of how one explains it. One obvious explanation might be that there simply is more incarceration in countries that have more crime (e.g.: because they have more violence). But this is clearly one of the more hotly debated topics in criminology. Some see an obvious correlation between repression and the decline of crimes whilst for others the correlation is exactly the opposite. One view is that crime levels being more or less constant or even declining, certain societies decide to punish similar behaviour with more severity. This is the punitiveness hypothesis proper. Neither in practice nor in theory are those explanations necessarily incompatible but they do contribute to a complex picture.

At any rate, we have no reason to believe that societies are naturally or inherently punitive or tolerant. The US did not always experience the high incarceration rates that it does, and may be on a path to reducing that rate. Moreover, it may be that it is less interesting to think of overall punitiveness than about the distributive impact of punitiveness against certain communities: Afro-Americans in the US or Aboriginal people in Canada, for example. Whilst a country like Canada may have overall very low incarceration rates, this does not change the fact that about a quarter of its prison population is Aboriginal, and that for First Nations the incarceration rate is extremely high. The extent to which the criminal justice system is part of patterns of exclusion and discrimination remains an overall concern that is traditionally ill-addressed by criminal justice theory's emphasis on individual guilt.

Further Reading:

• Bierschbach, Richard A., and Alex Stein. “Overenforcement.” Georgetown Law Journal 93 (2005 2004): 1743.

• “Measuring Crime in Canada: Introducing the Crime Severity Index and Improvements to the Uniform Crime Reporting Survey: Section 1: The Crime Severity Index.” Accessed September 5, 2017.

• Beale, Sara Sun. “What’Law Got To Do With It? The Political, Social, Psychological and Non-Legal Factors Influencing the Development of (Federal) Criminal Law.” Buffalo Criminal Law Review 1, no. 1 (1997): 23–66.

• La FREE, Gary, and Kriss A. Drass. “Counting Crime Booms Among Nations: Evidence for Homicide Victimization Rates, 1956 to 1998*.” Criminology 40, no. 4 (November 1, 2002): 769–

• Levitt, Steven D. “The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation.” National Bureau of Economic Research, 1995. http://www.nber.org/papers/w5119.

• Blumstein, Alfred, and Joel Wallman. The Crime Drop in America. Cambridge University Press, 2006.

• Gould, Eric D., Bruce A. Weinberg, and David B. Mustard. “Crime Rates and Local Labor Market Opportunities in the United States: 1979–1997.” Review of Economics and Statistics 84, no. 1 (February 1, 2002): 45–61.

• Tonry, Michael. “Ethnicity, Crime, and Immigration.” Crime and Justice 21 (1997): 1–29.

• Killias, Martin. “International Correlations between Gun Ownership and Rates of Homicide and Suicide.” CMAJ: Canadian Medical Association Journal 148, no. 10 (1993): 1721.

• Lynch, James P. “A Comparison of Prison Use in England, Canada, West Germany, and the United States: A Limited Test of the Punitive Hypothesis.” The Journal of Criminal Law and Criminology (1973-) 79, no. 1 (1988): 180–217.

• Kury, Helmut, Joachim Obergfell-Fuchs, and Gunda Woessner. “The Extent of Family Violence in Europe a Comparison of National Surveys.” Violence Against Women 10, no. 7 (2004): 749–69.

• Fajnzylber, Pablo, Daniel Lederman, and Norman Loayza. “What Causes Violent Crime?” European Economic Review 46, no. 7 (July 2002): 1323–57. doi:10.1016/S0014-2921(01)00096-4.

• Siemens, Daniel. “Explaining Crime Berlin Newspapers and the Construction of the Criminal in Weimar Germany.” Journal of European Studies 39, no. 3 (September 1, 2009): 336–52. doi:10.1177/0047244109106686.

• Hsieh, Ching-Chi, and M. D. Pugh. “Poverty, Income Inequality, and Violent Crime: A Meta-Analysis of Recent Aggregate Data Studies.” Criminal Justice Review 18, no. 2 (September 1, 1993): 182–202. doi:10.1177/073401689301800203.

  • Webster, Cheryl Marie, and Anthony N. Doob. “US Punitiveness ‘Canadian Style’? Cultural Values and Canadian Punishment Policy.” Punishment & Society 17, no. 3 (July 1, 2015): 299–321. doi:10.1177/1462474515590893.