Do we have a viable and meaningful sense of “social contract” in our society today?
more in increased crime, suffering, and deterioration of neigh- borhoods. In the past few years, administrators of most state correctional systems have recognized the problem. Ironically, many of the politicians who still support the concepts of deter- rence and rational criminals are now supporters of skills train- ing and rehabilitation because they think it saves money by reducing the number of offenders who return to prison.
Criminologists have also granted a good deal of popular- ity to the concept of rational offenders. We now have rational choice theories (Chapter 13) and theories of punishment called “just deserts.” The rational choice theories generally suggest a connection between opportunities for offending, the environ- mental conditions at the time, and the readiness of the offender to engage in the offense. That is, they assert that, given the situ- ation and the circumstances, offenders make informed deci- sions to commit crimes. Just deserts punishment theory returns to the classical concept of retribution and argues that, because offenders make the choice to offend, punishment is deserved. The “just” portion of the theory restates the classical notion of equitable punishment—no more or less punishment than what is required to correct the harm from the crime.
One might argue that our criminal justice system has become so punitive and unwieldy that we need a similar period of reform and revision in order to ensure fairness and propor- tionality in our law. Most jurisdictions have gradually increased the possible aggravating circumstances that make capital pun- ishment an option in murder cases. There is even talk of capital punishment for certain homeland security crimes. The latest (as of the time of this writing) in punitive approaches involves the state of North Carolina attempting to protect wives and daugh- ters from what may be essentially fictional concerns. Worried that transgender males (i.e., those born male and now identify- ing as female) are using female restrooms and somehow threat- ening “real” women, NC legislators passed a law prohibiting and criminally penalizing members of the opposite sex using gender-specific restrooms. Part of the rationale was that males would dress up as females just to get into women’s restrooms for voyeuristic or sexual-assault purposes. As one would expect, this extension of morality into criminal law created a backlash with various corporations, music artists, sports events, conven- tions, and others cancelling business in the state. Some critics have pointed out that women themselves are most likely to be criminalized under this law as large venues (sports, concerts) traditionally have underbuilt female restrooms and women
commonly use male restrooms in frustration with the long lines waiting for their own restrooms. A woman using a male rest- room would be in violation of North Carolina’s law. Of interest is a case in a Texas city where a similar ordinance was passed. The first arrest was a person attempting to use the women’s restroom—unfortunately, the person turned out to be a woman who evidently wasn’t female enough in appearance. In sum, excessive use of the criminal law tends to expand into morality issues (the question of whose morality is to be used is, of course, a critical issue here) and becomes even more unwieldy, ensuring that the very ideas the Classical School scholars objected to become prevalent. The 2016 presidential campaign seems to illustrate well the various moral perspectives brought up by anger-driven rhetoric and its implications for over-reac- tive law making.
Also, zero-tolerance policies and mandatory punishments have made a wide range of behaviors criminal, and those behav- iors vary significantly from state to state, making it difficult to know what specific conduct is allowed or proscribed. In one school, a six-year-old girl with mental health problems was arrested for kicking her teacher. In New Haven, Connecticut, an eighth grader was removed from his position of class vice-pres- ident, banned from participating in an honors dinner, and sus- pended for a day because he violated the school district’s wellness policy by purchasing a serving of candy. The youth, who simply bought a small bag of Skittles from a classmate, admitted he did not even know that he broke a rule. In another instance, a child who gave an aspirin to a classmate who com- plained of a headache was suspended from school for distribut- ing drugs; in yet another case, an elementary school student was suspended for having a candy “gun.” All of these things have contributed to a backlash against zero-tolerance policies as being too narrow and strict. This is exactly the same argu- ment that neoclassicists and, later, positivists made against the classical position: treating everyone the same according to the law and assuming rational intent simply doesn’t work out well. But, in fairness, classical scholars would have argued that too many rules and laws—and the ability for everyone to know and understand them and the way they are interpreted and enforced—leads to abuses of punishment and ineffective gover- nance. The bottom line for the Classical School though is that these 200-year-old ideas are applicable to our latest policy and theoretical notions. Obviously, we are still engaged in debates about these ideas.
Questions and Weblinks
Critical Thinking Questions
1. How relevant do you think the ideas of the Classical School are to the criminal justice system today? What classical ideas could be developed and implemented today that we are not currently using?
2. What do you think deters someone from committing a crime? What evidence can you think of that indicates people are or are not deterred? Are there people who are “most deterred”?
3. Do we have a viable and meaningful sense of “social contract” in our society today? Why or why not? How important is it for
society to have a strong social contract and what barriers do we face in developing such sentiments?
4. Examine some of the more notable criminal cases in the news today and the punishments that were handed down. How do the sentences today compare to those of the classical period or even to sentences of 100 or 50 years ago? What factors seem to shape the way we view punishments?
