“The concept of critical criminology – that crime and the present-day processes of criminalization are rooted in the core structures of society – is of more relevance today than it has been at any other time” (DeKeseredy, 2011, p. 1).
Critical criminology has gained traction in recent years, with its devotion to questioning the definitions of crime and measurements of official statistics, its critical view of agents, systems, and institutions of social control, and the connections with social justice and policy change (Carrington & Hogg, 2002). Theories of critical criminology are rooted in the structure of society, focusing on power systems and inequality. This paper will focus on labeling theory and crimes of the powerful, as they have a certain dichotomy regarding public vs. private criminality.
With labeling theory, those in power have the authority to decide what is the “norm” and what is the “other,” ostracizing the “other” from the rest of society. The stigmatization of public shaming for the common citizen is carried out in all aspects of public life – the labeled individual is looked down on by family, peers, community, and employers, and it is very hard for them to shake the label (Denver et al., 2017; Kroska et al., 2016).
Regarding crimes of the powerful, those in power have the privilege to escape stigmatization and consequences of illegal actions. Those in power protect their own through deciding what is illegal or not, and deciding the consequences for illegal actions. These crimes occur in private and are often underreported and under prosecuted, allowing the powerful to escape consequences. Critical analysis will address these dichotomies, challenging theoretical assumptions and criminal justice practices to advocate for structural change.
Labeling theory discusses the structural inequalities within society that explain criminality. It can be traced back to Mead’s theory of symbolic interactionism in 1934, which discusses the importance of language regarding informing social action through processes of constructing, interpreting, and transmitting meaning (Denver et al., 2017, p. 666). From there, labeling theory was further developed with Lemert’s distinction between primary and secondary deviance in 1951, which explained how deviance of an individual begins and continues (Thompson, 2014). Finally, and perhaps most influentially, we have Becker’s labeling theory of deviance in 1963, which is the version of the theory that will be guiding this discussion in the essay (Paternoster & Bachman, 2017). In Becker’s labeling theory, he describes crime as a social construct:
Social groups create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. From this point of view deviance is not a quality of the act a person commits, but rather a consequence of the application by others of rules and sanctions to an “offender.” The deviant is one to whom that label has been successfully applied; deviance is behavior that people so label (Becker, 1968, p. 9).
Labeling theory discusses the relationship between society and individuals, and the effect society has on individuals. Who decides what is criminal/delinquent? Labeling theory addresses this question, asserting that decisions of illegality are a concern of power, not morality, within those who make such definitions. Those in positions of power create the definitions and laws using their status to determine what “society” prefers in regards to norms. Within labeling theory, it is thought that these definitions and consequences are meant to induce shame upon the offender.
While it has had a rather significant impact in studies of sociology and deviance, labeling theory has its weaknesses. First, it is very deterministic: if a person is labeled, that person is either destined to commit crime or destined to have fewer opportunities throughout their life course. This deterministic view implies that crime is simply inevitable for some people, and could lead to a self-fulfilling prophecy or to profiling of those that are labeled in the community. Another weakness is that the theory is difficult to study empirically, and therefore little credible evidence has been found to support the theory. This leads to another criticism, the chicken and egg issue: did the label cause the deviance, or did the deviance incur the label? This is also evident with the Pygmalion Effect, which focuses on outside perceptions of labels instead of an internalized label (Thompson, 2014). For example, if a teacher is told a child is a “problem child,” then he/she is more likely to treat the child in accordance with that problem label, instead of the child thinking he is bad and behaving badly because of the label.
Labeling theory does have its advantages as well. First, it may have merit on crimes of the powerful, as naming and shaming could produce guilt and lessen the likelihood of recidivism for the labeled individual if disapproval comes from someone the individual highly respects (Braithwaite & Drahos, 2002). Still, there is a corporate veil that protects the powerful from stigma (Braithwaite & Drahos, 2002). Another advantage is that labeling theory brought up conversations and discussions of reintegration through internal shaming and the risks of public shaming to protect vulnerable offenders like juveniles from losing opportunities in the future, as well as implications for life course trajectory (Braithwaite & Drahos, 2002; Denver et al., 2017; Kroska et al., 2016). These discussions led to advances in developmental criminology, and to policy efforts aimed at improving opportunities for offenders and reducing recidivism (Denver et al., 2017).
With the recently renewed interest in labeling theory, there have been some notable contributions to criminology. In regards to theoretical contributions, labeling theory focuses on sociological aspects of delinquency, rather than the pathological and individual aspects that many other theories focus on. It attempts to explain the creation of delinquent careers and why some adolescents continue to lead deviant lives while others can turn their live around. It separates delinquent acts from delinquent careers, recognizing that just because an individual commits one delinquent act does not mean he will go on to become a career criminal. Taking this fact into account, this theory also recognizes that delinquent acts and delinquent careers should be treated differently, since they are in fact different entities.
One of the key contributions of labeling theory to criminology is its consideration of the causes of criminal behavior. With labeling theory, a person who commits a crime or delinquent offense is labeled by peers, communities, and by those in the criminal justice system. This label leads to stigmatization that can have a profound impact on future criminality (Braithwaite & Drahos, 2002; Restivo & Lanier, 2015). Labeling is a process that begins with “status degradation ceremonies,” which involve publicly lowering a person’s social status/identity within his/her own social group, thus labeling that person as an “outsider” (Garfinkel, 1956, p. 420).
In line with this is “moral indignation,” or people’s feelings regarding how they live publicly, including feelings of shame, guilt, or boredom (Garfinkel, 1956, p. 421). Garfinkel notes that these feelings may reinforce group solidarity, likely within delinquent peer groups, as the “outsider” begins to have his or her social identity replaced by a new, “true” interpretation (Garfinkel, 1956, p. 421). These processes lead to the solidification of the negative label, resulting in social exclusion in the form of lesser education, lesser paid jobs, and less social support (Denver et al., 2017; Kroska et al., 2016; Restivo & Lanier, 2015). According to Hirschi’s theory of social control, these severed social bonds lead to criminal behavior (Lee et al., 2017). Ostracized from old social circles, the labeled individual may form new bonds with delinquent peers and learn crime from them, increasing the likelihood of criminality (Braithwaite & Drahos, 2002). These points all contribute to the advances in developmental criminology that discuss life course trajectory in regards to labeling theory (Denver et al., 2017).
In the criminal justice system, labeling has made some notable contributions within juvenile courts in recent years with regards to implications for policy and deterrence. Recidivism rates for juvenile offenders are usually higher than for adult offenders, perhaps because of two tenets of labeling theory: that the delinquent label changes opportunities over the life course, leading the labeled individual to have to find unconventional ways to obtain socioeconomic success, and that the label leads others to treat the offender in accordance with that label, thus allowing for adoption/internalization of the label (Kroska et al., 2016; Lee et al., 2017; Restivo & Lanier, 2015). Recent research has led to the realization that any naming and shaming is stigmatizing, causing juvenile courts to review and change policies (Lee et al., 2017). Due to labeling theory contributions, some juvenile courts no longer release the names of young offenders, and proceedings are kept private to prevent this social label from forming or sticking (Braithwaite & Drahos, 2002). Another contribution is the finding that youth rehabilitation programs may be better than juvenile detention centers for juvenile offenders because rehabilitative programs do not have the same stigmatizing effects, thus potentially shielding them from the loss of opportunities and the self-fulfilling prophecy in the future (Kroska et al., 2016).
Another policy effort that has resulted from labeling theory is the Equal Employment Opportunity Commission’s 2012 change to United States federal guidelines, which now require employers to make individual assessments to consider the type of crime and the age of the criminal record, the relevance of the offense to the job, and evidence of good conduct and rehabilitation when reviewing applications (Denver et al., 2017). This is meant to give offenders a better chance with re-entry, helping both offenders and those they encounter to recognize that people are more than their labels. Finally, in 2016, the United States Department of Justice implemented a policy change that requires person-first language when describing offenders: instead of “convicted felon,” one would say “person with a felony conviction” (Denver et al., 2017). This change in language is meant to reduce the chance of a label sticking to an individual. As history has shown, labels often do not stick to powerful offenders (Gottschalk, 2016). This is where theories regarding crimes of the powerful come into play.
Crimes of the Powerful
Crimes of the powerful are ill-defined, as the powerful are the ones who define crimes and decide punishments, and they are not likely to punish themselves or their cohorts. Theorists have tried to conceptualize crimes of the powerful through anomie (normless corporations) and control (general theory of crime) (Ruggiero, 2015). Sutherland has been frequently cited for his definition of crimes of the powerful that considers crime as a norm infraction:
The essential characteristic of crime is that it is a behavior which is prohibited by the state as an injury to the state…The two abstract criteria… as necessary elements in a definition of crime are legal descriptions of an act as socially harmful, and legal provision of a penalty for the act (Sutherland, 1949, p. 9).
Sutherland’s definition includes corporations as recidivist offenders, with privilege instigating the learning processes that lead to crime (Ruggiero, 2015).
Despite the difficulties and ambiguities in its conception and definition, crimes of the powerful have merit in considering structural power theories of crime. Hagan and Thio assert that those with power and privilege have stronger motivations, more opportunities, and weaker social controls, and are therefore more likely to commit crime (Friedrichs, 2010). Other advantages of theories of crimes of the powerful include explanations of how those in power get away with crimes, how certain acts are or are not considered criminal, and the importance of national conversation and punishments when dealing with these crimes (Anello & Glaser, 2016; Olejarz, 2016).
Aside from the definitional and conceptual issues, there are a few other disadvantages to these theories as well. The ambiguity of definitions of these crimes has made this topic difficult to study empirically (Nash, 2017). The definitions that are in place do not really make a distinction between crimes of the individual and crimes of the organization as a whole (Maguire et al., 1994; Reurink, 2016). Penalties and theories of control do not apply to these crimes like they do to others, since one cannot imprison a corporation (Gottschalk, 2016). Finally, deterrence and punishment rely on the idea that people are ashamed of crime, and research shows that powerful offenders typically do not feel shame for their offenses as ordinary citizens might (Braithwaite & Drahos, 2002).
Due to the ambiguous definitions and wide scope of crimes of the powerful, the contributions that will be discussed will focus on white collar crime, as that seems to be where more of the research focuses. The term “white collar crime” was coined by Sutherland in 1939, which he defined as a “phenomenon of lawbreaking by respectable persons of the upper reaches of society” (Reurink, 2016, p. 387). These are crimes of convenience rather than passion, with the powerful using their position to save time and effort to reach their greedy ends (Gottschalk, 2016). Theoretical contributions to white collar crime conceptualization have been drawn from sociology and psychology, starting with Freud and his discussions of conflict of desires and needs that cause people to commit crime (Friedrichs, 2010). According to this framework, white collar criminals desire conventional success, and they need to achieve this success by any means necessary. With this, Sutherland discusses personality traits of white collar criminals, claiming that they have normal personality types with more tendency toward risk- taking, ambition, and egocentrism, which would explain their “subtle” criminality that doesn’t follow typical norm infractions (Friedrichs, 2010). White collar crimes are often not included in official statistics, and most victims are unaware of their victimhood, as these “subtle” crimes occur in private and are typically covered up (Maguire et al., 1994). Next, Gottfredson and Hirschi offer sociogenic explanations, that criminals have lower self-control and therefore make conscious choices to commit crimes (Friedrichs, 2010). White collar crimes are not crimes of passion; they are calculated, conscious decisions people make as a means to an end.
Sutherland, Clinard, and Yeager finally make the important distinction between crimes of corporations and crimes of individuals within the corporations (Olejarz, 2016). It is important to distinguish between these points when considering theory, causes, and consequences. In fact, there has been a recent push in theory to focus on offense criteria instead of individual offenders of white collar crime (Maguire et al., 1994). Sykes and Matza’s techniques of neutralization come into play here. The five techniques – deny responsibility, deny injury through rationalization, deny the existence of a victim, condemn the condemners, and appeal to higher loyalties – are contributed to the structural problems with white collar crime (Friedrichs, 2010, p. 237; Ruggiero, 2015). Powerful white collar offenders use these techniques to distance themselves from the corporation and to shirk themselves of any blame.
A core assumption of white collar crimes is that law promotes these crimes, favoring the privileged and failing to criminalize these activities: the powerful will protect their own, and capitalism has inherent crime-producing features that require social transformations to quell crime and deviance (Friedrichs, 2010; Taylor et al., 1973). Lawmakers and government officials are not likely to criminalize activities that their cohorts may partake in, so legislation here is thin (Friedrichs, 2010). Research has pointed out the causes of white collar crime related to the capitalist system and power hierarchies, with top managers blamed for setting the tone of ethics in the corporation, and supervisors accused of knowing about crimes and pressuring those below them to do whatever it takes to make profits and cut costs (Henry & Milovanovic, 1994). This unconnected nature of business facilitates criminal activity and shifts blame within the corporation, with the power hierarchy supporting an isolating and competitive environment. Within this setting, it is not just an individual who is guilty; sometimes, the entire corporation is at fault. But, since we cannot imprison a corporation, general control penalties do not apply to white collar crime (Gottschalk, 2016). The obedience to authority and the multi-faceted issue of all the different players makes white collar crime a very convoluted topic in the criminal justice system.
Dealing with these crimes in the justice system is therefore just as ambiguous as theorizing and conceptualizing. However, some notable contributions have been made in the 20th century, including the expansion of federal criminal law and reach of federal fraud statutes (Anello & Glaser, 2016). The Second Circuit has contributed to the development of white collar jurisprudence over the last century, finally allowing for national conversations, court decisions, law, practice, procedure, and punishment of white collar crimes (Anello & Glaser, 2016).
Contributions from empirical research have also led to the creation of white collar crime units, as well as more grant money and publicly available systemic data for in-depth research (Reurink, 2016). Finally, criminological contributions have brought about discussion of the separation between individual and group rights (Michalowski, 1979; Reurink, 2016). For white collar offenders, this could make prosecutions and conceptualization much clearer, leading to better research and outcomes to tackle this problem.
No crime exists until someone in power says that something is a crime. With regards to labeling and white collar crimes, the law is selective. Criminal law targets selectively and unequally, promoting and protecting white collar crimes and disproportionally criminalizing and stigmatizing drug offenses and other crimes by ordinary citizens (Carrington & Hogg, 2002). The capitalist system tends to favor the privileged and demonize the oppressed. Contributions to both criminology and criminal justice are promising, showing a revitalized interest in labeling theory and crimes of the powerful. Critical criminology has opened the door for national dialogue and deeper analysis into the causes and consequences of crimes within these power structures. Further empirical research is needed on both topics to continue the discussion and find some solutions to these power imbalances in the criminal justice system.
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