1. People exist in a world with free will and make their own rational choices, although they have a natural tendency toward self-interest and pleasure.
2. People have certain natural rights, among them life, lib- erty, and ownership of property.
3. Governments are created by the citizens of a state to pro- tect these rights, and they exist as a social contract between those who govern and those who are governed.
An Example of Classical Thought
(Excerpts from the Virginia Bill of Rights, adopted June 12, 1776)
Section 1. That all men are by nature equally free and indepen- dent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursu- ing and obtaining happiness and safety.
Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and ser- vants. . . .
Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of
government, that is best which is capable of producing the great- est degree of happiness and safety. . . .
Section 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community. . . .
Section 8. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evi- dence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evi- dence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
Chapter 2 • The Classical School 19
4. Citizens give up only the portion of their natural rights that is necessary for the state to regulate society for the benefit of all and to protect society against the natural self-interest of individuals.
5. To ensure civil rights, legislators enact law that both defines the procedures by which transgressions will be handled and specifies the exact behaviors that make up those transgressions. This law specifies the process for determining guilt and the punishment to be meted out to those found guilty.
6. Crime consists of a transgression against the social con- tract; therefore, crime is a moral offense against society.
7. Punishment is justified only to preserve the social con- tract. Therefore, the purpose of punishment is to pre- vent future transgressions by deterring socially harmful behavior. Only that amount of punishment necessary to offset the gains of harmful behavior is justified.
8. All people are equal in their rights and should be treated equally before the law.
epilogue: current Directions and Policy implications
The Classical School still has a dominant effect on today’s criminal justice system policies. Most Western nations still adhere to most of the classical inventions under due process of law and the rights of individuals, largely because these con- cepts are embedded in various constitutions. Two of the major concepts of the Classical School, deterrence and rationality, are still alive and well.
Deterrence has had two separate rebirths over the last four decades. In the first, the public, in moving toward a more conservative and punitive mode, has embraced the concept of deterrence and clamored for harsher sentences. The assump- tion, of course, is that tougher sentences will deter would-be criminals from committing crimes and make those caught and convicted reconsider their behavior. Deterrence has been the favored approach to the crimes of drunken driving and drug dealing. One of the problems with deterring criminals is that our criminal justice system does not proceed quickly. The fed- eral system and many states have attempted to solve this prob- lem by enacting speedy trial laws.
In the second renewal of interest in deterrence, many scholars have been engaged in research to see if deterrence works. Three of the favorite research topics have been the death penalty, drunken driving, and drug use. At this time, the collec- tive evidence points to a short-term effect for drunken driving, probably no effect for the death penalty, and little, if any, effect for drug use. Sherman (1990) has noted that there is a decay effect for deterrence, with perhaps an initial effect and subse- quent decay in its residual effects, assuming any effect is found. There is still controversy over the proper way to test for the effects of deterrence, and the jury is still out on most of the issues. However, it should be noted the vast majority of deter- rence research has failed to find any substantial deterrent effect for legal sanctions. In fact, Ray Paternoster, a criminologist who has been engaged in deterrence research for more than 30 years, characterizes the body of evidence for deterrence as more than a little flimsy (2010, p. 766). Similarly, a review of the deterrent effect of the death penalty by the National Research Council (Nagin and Pepper, 2012) concludes that existing research cannot be used to make any conclusions. In the face of this evidence, contemporary legislatures and the public continue to act as if deterrence were alive and well, and the primary factor in keeping crime in check. On the other hand, a new approach called focused deterrence is being used
in policing circles in lieu of proposing policing efforts as gen- eral deterrence (for instance, increasing the number of police). The idea is to avoid efforts aimed at deterring crime in general and instead focus on specific crime types in targeted areas. The results, as opposed to general policing actions, have demon- strated some deterrence effects (Engel, Tillyer, & Corsaro, 2013) but methodological critiques of other deterrence research still apply here. Situational crime prevention, another newer policing approach, is also an offshoot of modern deterrence theory. Freilich (2015) has, for instance, compared the ideas of Beccaria to that approach.
Researchers have also recognized that legal punishments do not stand alone, and some have argued for a version of deter- rence combining both legal and informal punishment systems. In fact, the usual direction is to combine deterrence with con- cepts from social control theories (Chapter 11). Social learning theory (Chapter 12) can also be interpreted as a close cousin of deterrence because it includes punishment as one of the stimuli involved in the learning process. When legal deterrence is com- bined with informal social controls, the research results usually show only a slight effect attributable to legal deterrence. Infor- mal controls seem to have a stronger effect on individuals, par- ticularly when the informal controls include shaming.
The public and the government have embraced the notion of a rational criminal. This makes it easier to blame the offender for all aspects of a crime, rather than share some of that blame with society for creating conditions that force some people into crime. If it is an individual’s decision to commit crime, then he or she is morally responsible and deserves to be punished. The great advantage of this reasoning is that we do not have to do anything other than punish while the individual is in our con- trol. Thus, from the mid-1970s to about 2000, rehabilitation and skill training were no longer part of what a prison should do. In addition, with deterrence as our goal, we do not have to engage in expensive social programs to improve conditions that create crime, nor do we have to engage in even more expensive social reform. An assumption that individuals make fully ratio- nal decisions to engage in criminal behavior can save a lot of money. If this assumption is incorrect, and research on the effects of prison warehousing of offenders seems to have inval- idated it, these savings may be short-term ones. A failure to rectify social conditions, if they are also important, will simply make matters worse and over the long term will cost much