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Public-order crime

In criminology, public-order crime is defined by Siegel (2004) as "...crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e. it is behaviour that has been labelled criminal because it is contrary to shared norms, social values, and customs. Robertson (1989:123) maintains that a crime is nothing more than "...an act that contravenes a law." Generally speaking, deviancy is criminalized when it is too disruptive and has proved uncontrollable through informal sanctions.

Public order crime should be distinguished from political crime. In the former, although the identity of the "victim" may be indirect and sometimes diffuse, it is cumulatively the community that suffers, whereas in a political crime, the state perceives itself to be the victim and criminalizes the behaviour it considers threatening. Thus, public order crime includes consensual crime, victimless vice, and victimless crime. It asserts the need to use the law to maintain order both in the legal and moral sense. Public order crime is now the preferred term by proponents as against the use of the word "victimless" based on the idea that there are secondary victims (family, friends, acquaintances, and society at large) that can be identified.

For example, in cases where a criminal act subverts or undermines the commercial effectiveness of normative business practices, the negative consequences extend beyond those at whom the specific immediate harm was intended. Similarly, in environmental law, there are offences that do not have a direct, immediate and tangible victim, so crimes go largely unreported and unprosecuted because of the problem of lack of victim awareness. In short, there are no clear, unequivocal definitions of 'consensus', 'harm', 'injury', 'offender', and 'victim'. Such judgments are always informed by contestable, epistemological, moral, and political assumptions.

In public order crimes, there are many instances of criminality where a person is accused because he/she has made a personal choice to engage in an activity of which society disapproves, e.g. private recreational drug use. Thus, there is continuing political debate on criminalization versus decriminalization, focusing on whether it is appropriate to use punishment to enforce the various public policies that regulate the nominated behaviours. After all, society could deal with unpopular behaviour without invoking criminal or other legal processes.

Following the work of Schur (1965), the types of crime usually referred to include the sexually based offences of prostitution, paraphilia (i.e., sexual practices considered deviant), underage sex, and pornography; and the offences involving substance abuse which may or may not involve some element of public disorder or danger to the public as in driving while intoxicated. Since 1965, however, societal views have changed greatly, for example, prostitution, often considered a victimless crime, is classified by some countries as a form of exploitation of women—such views are held in Sweden, Norway and Iceland, where it is illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute), see Prostitution in Sweden.



When deciding whether harm to innocent individuals should be prohibited, the moral and political beliefs held by those in power interact and inform the decisions to create or repeal crimes without apparent victims. These decisions change over time as moral standards change. For example, Margaret Sanger who founded the first birth control clinic in New York City was accused of distributing obscene material and violating public morals. Information about birth control is no longer considered obscene (see the U.S. case law examples). Within the context of a discussion (Feinberg: 1984) on whether governments should regulate public morals in the interest of the public good, Meier &Geis (1997) identify which social problems might be deemed appropriate for legal intervention and the extent to which the criminal law should enforce moral positions which may lack societal consensus.

This reflects a more fundamental problem of legal consistency. People have the right to engage in some self-destructive activities. For all its carcinogenic qualities, tobacco is not a prohibited substance. Similarly, the excessive consumption of alcohol can have severe physical consequences, but it is not a crime to consume it. This is matched in gambling. The state and its institutions often rely on lotteries, raffles, and other legal forms of gambling for operating funds, whether directly or indirectly through the taxation of profits from casinos and other licensed outlets. Qualitatively, there is nothing to distinguish the forms of gambling deemed illegal. A side effect of turning too many people into criminals is that the concept of crime becomes blurred and genuine criminality becomes less unacceptable. If the key distinction between real crime and moral regulation is not made clearly, as more consensual activities become crimes, ordinary citizens are criminalized for tax-evasion, illegal downloading, and other voluntary rule-breaking. A further perceptual problem emerges when laws remain in force but are obviously not enforced, i.e. the police reflect the consensus view that the activity should not be a crime. Alternatively, if the activities prohibited are consensual and committed in private, this offers incentives to the organizers to offer bribes in exchange for diverting enforcement resources or to overlooking discovered activity, thereby encouraging political and police corruption. Thus, any deterrent message that the state might wish to send is distorted or lost.

More generally, political parties find it easier to talk dismissively about crimes if they are classified as victimless because their abolition or amendment looks to have fewer economic and political costs, i.e. the use of the word "victimless" implies that there are no injuries caused by these crimes (Robertson 1989:125) and, if that is true, then there is no need to create or retain the criminal offences. This may reflect a limited form of reality that, in the so-called "victimless crimes", there are no immediate victims to make police reports and those who engage in the given behaviour regard the law as inappropriate, not themselves. This has two consequences:

because these crimes often take place in private, comprehensive law enforcement (often including entrapment and the use of agent provocateurs) would consume an enormous amount of resources. It is therefore convenient for the law enforcement agencies to classify a crime as victimless because that is used as a justification for devoting fewer resources as against crimes where there are "real" victims to protect; and

these crimes usually involve something desirable where large profits can be made, e.g. drugs or sex.

Why criminalize?

Criminalization is intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behaviour causing harm. The state becomes involved because the costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty and so minimising harm to others). The process of criminalization should be controlled by the state because:

Victims or witnesses of crimes might be deterred from taking any action if they fear retaliation. Even in policed societies, fear may inhibit reporting or co-operation in a trial.

The victims may only want compensation for the injuries suffered, while being indifferent to the more general need for deterrence: see Polinsky&Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system.

Even if the victims recognize that they are victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the state have the expertise and the resources.

Victims do not have economies of scale to administer a penal system, let alone collect any fines levied by a court (see Polinsky (1980) on the enforcement of fines). But Garoupa&Klerman (2002) warn that a rent-seeking government's primary motivation is to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws against major crimes.

The hidden crime factor

Because most of these crimes take place in private or with some degree of secrecy, it is difficult to establish the true extent of the crime. The "victims" are not going to report it and arrest statistics are unreliable indicators of prevalence, often varying in line with local political pressure to "do something" about a local problem rather than reflecting the true incidence of criminal activity. In addition to the issue of police resources and commitment, many aspects of these activities are controlled by organized crime and are therefore more likely to remain hidden. These factors are used to argue for decriminalization. Low or falling arrest statistics are used to assert that the incidence of the relevant crimes is low or now under control. Alternatively, keeping some of these "vices" as crimes simply keeps organized crime in business.

35. White-collar crime

White-collar crime is financially-motivated nonviolent crime committed for illegal monetary gain. Within criminology, it was first defined by sociologist Edwin Sutherland in 1939 as "a crime committed by a person of respectability and high social status in the course of his occupation". Sutherland was a proponent of symbolic interactionism and believed that criminal behavior was learned from interpersonal interactions. White-collar crime is similar to corporate crime as white-collar employees are more likely to commit fraud, bribery, Ponzi schemes, insider trading, embezzlement, cybercrime, copyright infringement, money laundering, identity theft, and forgery.


Date: 2015-01-29; view: 907


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