Criminology Term Paper

Question 1.

The Classical and Positivist approaches to criminology are greatly influential in the criminal justice system in dealing with crime and punishment. For centuries, scholars and scientists have made various attempts to develop new and effective ways to criminal punishment, in a way to better understand how to deal with criminal behavior. Although the two theories differ in various ways, they both contribute and influence the ways in which crimes are classified. The two major factors that differ the two theories is the issue concerning human nature, and the various views of justice with the purpose of sentencing. One of the biggest factors that differs these ideologies is the focus on human nature. The two schools hold different yet sophisticated views on this point. The Classical School gave a humanistic conception of how law and criminal justice systems should be constructed. However, it did not give rise to theories of criminal behavior, but rather a prevailing assumption of hedonism was used as a theory for human nature and contributed to the rational for the various construction of legal structures. Crime and law were its main focus, not criminal behavior. The purpose of Law was to protect the rights of not only the individual, but also society as a whole. The chief purpose was to deter criminal behavior. Therefore, the classical law emphasized moral responsibility and the duty of citizens to fully consider the consequences of their behavior before they acted. This accurately describes the conception of free will and a rational nature that humans possess. Rationality was extremely critical to the classical standing. An individual should be able to weigh the pleasure in fulfilling an illegal act with the punishment (pain) subjected by the law and be able to decide against the act. Although classicalists believed that humans have free will to be able to choose good over evil and possess a rational mind, the positivists, however saw behavior as determined by its biological, psychological and social traits. The main characteristics concerned with a positivist criminological thought are a deterministic view of the world, with its main focus being criminal behavioral factors instead of focusing so heavily on the legal issues associated with it such as rights, and the prevention of crime through the treatment and reformation of offenders. The Positivists take a scientific approach to explain criminal behavioral acts. In scientific analysis, data was collected and analyzed to describe and draw conclusions on the different types of individuals as well as the different social conditions. The theory of evolution proposed by various scientists formed a basis for the study of human behavior, and more importantly criminal behavior. As it relates to the study of crime and criminal justice, the positivist school of criminology argues that humans do not have free will, that their behavior is determined by various biological, psychological and sociological factors. Thus, responsibility for one's actions is diminished. Although these theories are very different in their human nature perspective, when processing crimes however these ideologies become more reformed in their sentencing purposes. The role of punishment in the eyes of a classicalist is evil in itself and should be used only to exclude some greater evil. Thus, the only justification for punishment was deterrence. In this sense, there are two forms of deterrence, specific and general. Specific deterrence applied to the individual who committed the offense. The idea being to apply just enough pain to offset the amount of pleasure gained from the offense. Various studies concluded that punishments should be restricted to the same degree of pain as the degree of pleasure gained from the crime committed. General deterrence, on the other hand, was used to show potential criminals how a punished individual would not benefit from his or her offense. By watching a criminal be punished an individual would learn that such behavior is not acceptable, and would not commit similar acts. According to the classical scholar Cesare Beccaria, “In order for punishment not to be, in every instance, an act of violence of one or of many against a private citizen, it must be essentially public, prompt, necessary, the least possible in the given circumstances, proportionate to the crimes, dictated by the laws.” In this, he believed that punishment should be “swift and certain” backing up the classicalist theory that a potential criminal will decide against committing a crime because the punishment would be too costly. Member of the classical school were general opposed to capital punishment. Beccaria argued that no citizen has the right to take his or her own life, and therefore citizens should not give this right to the state under social contract. In the nineteenth century, a new vision of the world was taking place. This view was challenging the validity of the Classical Theory. This was an innovative way to looking at the causation of crime. This was the Positivist Theory. Because the positivists believed that the root of the crime can be connected to how the was individual was biologically inherited, they believed in taking a more scientific approach to sentencing. If an Individuals behavior were not predicated on the rational decisions, then how could that individual be deterred? This proposed a great point and positivists believed the thing to do was to find those factors that cause the root of the criminal behavior and remove (treat) them. Further, it would be useful to be able to predict which individuals would be likely to become criminal and treat them before they could harm themselves and society. In this sense, positivist turned away from the legal focus and the classical school. For them, the only reasonable definition of criminality was a social one. Legality often got in the way of treatment because behavioral categories did not necessary fit legal categories. If behaviors were socially undesirable, the individuals exhibiting them should be treated in a controlled environment and returned to normalcy. Each school of thought has impacted the criminal justice system today. They are both in force. Both of these theories did away with the cruel, inhumane treatment of criminals and the reformation of the death penalty. Our Constitution is based on the classical school of thought. The positivist school of thought made it possible to get criminals the help they need to be rehabilitated. The systems sentencing guidelines are based on the classical school of thought with the concept “let the punishment fit the crime.” (Siegal, 2010) With careful examination and observation of these two schools, in my opinion the classical school may be the best approach in explaining and processing criminals. It is evident that through out history, humans will eventually keep repeating the same mistakes and committing the same types of crimes. However, it is crucial that the individual learn from these mistakes. By showing potential criminals through visuals, harsh punishment, and a determinant sentence, these factors greatly influence an individual to not commit a specific crime. Although scientific analysis is crucial in the explanation of why some criminals commit the crimes that they do, most of the time prescribing someone medication can cause even greater side effects, including addiction and self-harm. The Classical and Positivist approaches to criminology are greatly influential in the criminal justice system in dealing with crime and punishment. Both the Classical and Positive school bring up compelling arguments in dealing with criminal punishment and the psychological thought of the individual. Although the two theories differ in various ways, they both contribute and influence the ways in which crimes are classified and dealt with in our criminal justice system today.

Question 2. Very often the issue of sentencing and punishment is couched in the language and rationale of hedonism, free will, and moral responsibility. These three factors are crucial in the advancement of punishment and deterrence in our criminal justice system today. One of the major explanations for human behavior was the theory of hedonism. In this, it was assumed that people would automatically attempt to maximize pleasure and minimize pain. According to the famous scholar Jeremy Bentham, the value of any pleasure or pain would be determined by its intensity, duration, and certainty. Psychological or motivational hedonism claims that only pleasure or pain motivates us. Ethical or evaluative hedonism claims that only pleasure has worth or value and only pain or displeasure has disvalue or the opposite of worth. (Plato) This is a crucial point regarding deterrence and punishment, in the sense that if an individual knows the pain of committing a crime will exceed the pleasure gained from it, the likely hood of carrying through with the act is highly less likely. The theory of classicalism implemented the famous idea that individuals are free will, and have the capability to make choices between various types of behavior. This idea proposes an important concept that since an individual is free to choose their individual actions, they must also admit the significance of their choices. The rational choice theory is an important principle of classicalism that greatly highlights the concept of free will and human rationality. It exemplifies how people choose their behavior based on the theory of pain and pleasure, for example, criminals will not commit a crime of the pain of it will exceed the pleasure. The free will theory is another important aspect regarding deterrence and punishment. If an individual knows what the punishment will be of carrying out a crime, they will be highly less likely to commit it. The aspect of criminal responsibility was based on the idea that an individual that chooses to commit a crime free willing is morally responsible for his or her act. Italian criminologist Enrico Ferri believed that it was not the business of the law to assess and measure the moral guilt of an offender, but to decided weather the offender was the perpetrator of an offense. The concept of positive morality is morality that is accepted and shared by a social group. Critical morality on the other hand is the general moral principles used in social institutions. The justification for punishment and the construction of criminal law were based on showing a morally responsible person that transgressing on the rights of others will have no benefit. The Classical School had an intellectual argument on the moral responsibility of the individual committing the crime, and why crime takes place in general. Moral responsibility is a huge factor in the role of deterrence, in the sense that it is the responsibility of the individual to morally know right from wrong, and that each individual has a moral responsibility to obey the rules of the law, and to act in a rational matter. There is a lot to consider with indeterminate sentencing in regards to free will and moral responsibility. During the 1970’s, indeterminate sentencing began to loose favor for several reasons. First, indeterminate sentencing allowed judges and parole boards to become too lenient in their handling of convicted criminals at the expense of public safety. Justifiably, the public become outraged when serious and violent offenders are initially treated leniently and then proceed to commit further heinous crimes. (heritage)
Second indeterminate sentencing allowed for the uneven application of criminal punishment for similar offenses and offenders. A 1977 study was conducted on the fairness regarding the legality of court cases. In this, 47 judges were given identical descriptions of 5 legal cases. While most of the verdicts were equal for each case, the sentences however were widely varied. A general consensus formed differences in sentencing regarding too much leniency for serious crimes, or unfair administration of sentences. This greatly undermined equal treatment under the law with regards to free will and moral responsibility. The main rationale for imposing an indeterminate sentence is to protect the community. It is the rational morality and free of the individual to learn from his or her mistakes, and to not commit the same act. There are many factors to consider when determining a sentence including hedonism, free will, and moral responsibility. Criminal law in the United States is largely classical, with strong emphasis on individual responsibility for actions and on due process of law. These three factors are crucial in the advancement of punishment and deterrence in our criminal justice system today.