Chapter Seven

1. Chapter Seven The Irony of State Intervention Labeling Theory

2. Introduction • Rather than diminishing criminal involvement, state intervention—labeling and reacting to offenders as “criminals” and “exfelons”— can have the unanticipated and ironic consequence of deepening the very behavior it was meant to halt.

3. Introduction Cont. • Labeling theorists argue that the criminal justice system not only is limited in its capacity to restrain unlawful conduct but also is a major factor in anchoring people in criminal careers. Pulling people into the system makes matters worse,

4. The Social Construction of Crime • Labeling theorists urged criminologists to surrender the idea that behaviors are somehow inherently criminal or deviant • What makes an act criminal is not the harm it incurs but rather whether this label is conferred on the act by the state • It is the nature of society that determines whether a crime has occurred

5. Social Construction Cont. • Labeling theorists argued that criminologists could ill afford to neglect the nature and effects of societal reaction, particularly when the state was the labeling agent • Origins of criminal labels • Marijuana • Delinquency • Child abuse • “Wife-beating”

6. Social Construction Cont. • What the state designated as criminal was not a constant but rather the result of concrete efforts by men and women to construct a different reality • Behaviors were criminalized only when the social context was ripe for change and groups existed that were sufficiently motivated and powerful to bring about legal reform.

7. Social Construction Cont. • A lawbreaker’s behavior is only one factor in determining whether a criminal label is conferred • Black Panther bumper stickers study • Juveniles’ demeanor • “Saints” and “Roughnecks”

8. Social Construction Cont. • The nature of state criminal intervention was not simply a matter of an objective response to illegal behavior but rather was shaped intimately by a range of extralegal contingencies • Criminal justice decision making was influenced by individual characteristics such as race, class, and gender

9. Social Construction Cont. • Official measures of the extent of crime, such as arrest statistics reported each year by the Federal Bureau of Investigation, depend not only on how many offenses are committed but also on the arrest practices of police • Labeling and reacting to people as criminals composed the major source of chronic involvement in illegal activity.

10. Labeling as Criminogenic: Creating Career Criminals • Labeling theorists argued that causal analysis should commence not with offenders and their environs but rather with the societal reaction that other people— including state officials—have toward offenders

11. Early Statements of Labeling Theory • The idea that criminal justice intervention can deepen criminality did not originate with the labeling theorists of the 1960s • Bentham • Lombroso • Bonger • Frank Tannenbaum was perhaps the earliest scholar to state in general terms the principle that state intervention is criminogenic because it “dramatizes evil”

12. Early Statements Cont. • In 1951, Edwin Lemert further formalized these insights when he distinguished between two types of deviance: primary and secondary • During primary deviance the offender often tries to rationalize the behavior as a temporary aberration or sees it as part of a socially acceptable role

13. Early Statements Cont. • Secondary deviance is precipitated by the responses of others to the initial proscribed conduct. • As societal reaction intensifies progressively with each act of primary deviance, the offender becomes stigmatized through “name calling, labeling, or stereotyping”

14. Early Statements Cont. • Most often, the offender solves this problem by accepting his or her “deviant status” and by organizing his or her “life and identity . . . around the facts of deviance”

15. Labeling as a Self-Fulfilling Prophecy • Howard Becker, Kai Erikson, and John Kitsuse were perhaps the most argued convincingly that societal reaction is integral to the creation of crime and deviance • These labeling theorists borrowed Merton’s concept of “self-fulfilling prophecy”

16. Self-Fulfilling Prophecy Cont. • Labeling scholars argued that most offenders are defined falsely as criminal • The falseness in definition is tied to the fact that criminal labels, once conferred, do not simply provide a social judgment of the offenders’ behavior; they also publicly degrade the offenders’ moral character

17. Self-Fulfilling Prophecy Cont. • Theorists observed that the meaning of the label “criminal” in our society leads citizens to make assumptions about offenders that are wrong or only partially accurate • These assumptions are consequential because they shape how people react to offenders

18. Self-Fulfilling Prophecy Cont. • These reactions have the power to set in motion processes that evoke the very behavior that was anticipated • The conferring of a criminal label singles out a person for special treatment • Being a “criminal” becomes the person’s master status

19. Self-Fulfilling Prophecy Cont. • The constant accentuation of their criminal status and the accompanying social rebuke has the unanticipated consequence of undermining the conforming influences in their lives and of pushing them into criminal careers • Offenders are likely to forfeit their self-concepts as conformists or “normal” persons and to increasingly internalize their public definition as deviants

20. Self-Fulfilling Prophecy Cont. • People who are stigmatized as criminal often are cut off from previous pro-social relationships • One solution to being a social pariah is to bind together with those of a like status. • Accordingly, conditions are conducive for offenders wearing a criminal label to differentially associate with other lawbreakers

21. Self-Fulfilling Prophecy Cont. • Saddling offenders with an official criminal label, particularly when they have spent time in jail and carry the status of ex-convict, limits their employment opportunities

22. Summary of Labeling Theory • Labeling theorists asserted that the false definition of offenders as permanently criminal and destined for lives of crime fulfills this very prophecy by evoking societal reactions that make conformity difficult and criminality necessary, if not attractive • The labeling process stabilizes participation in illegal roles and turns those marginally involved in crime into chronic offenders

23. Summary Cont. • “Get tough” policies ultimately will prove self-defeating, for they will succeed only in subjecting increasing numbers of offenders to a self-fulfilling process that makes probable lives of crime

24. Assessing Labeling Theory • Labeling theory’s central propositions have not escaped considerable critical analysis • Radical and Conflict Criminology Criticism • Labeling theorists did not go far enough in their analysis • Radical scholars argued that the origins and application of criminal labels were influenced fundamentally by inequities rooted in the very structure of capitalism

25. Assessment Cont. • Positivists’ Criticism • Labeling theory’s major tenets wilted when subjected to empirical test • The perspective’s popularity had less to do with its empirical adequacy and more to do with its voicing a provocative message that meshed with the social times

26. Assessment Cont. • Robert Sampson uncovered an “ecological bias” in police control of juveniles • Police were found to be more likely to make arrests in poor neighborhoods than in more affluent neighborhoods

27. Racial Profiling • The controversy over labeling has resurfaced in the recent debate over “racial profiling” • Minority drivers appear to be stopped, cited, searched, arrested, and have force used against them more often • Consistent with labeling theory, whether individuals are subjected to social control and potentially have a criminal label attached to them is determined by more than simple legal factors

28. More Labeling Theory Assessment • Many offenders become deeply involved in crime before coming to the attention of criminal justice officials • We know that offenders become extensively involved in illegalities such as corporate crime, political corruption, wife battering, and sexual abuse without ever being subjected to criminal sanctioning

29. Tests of Labeling Theory • Overall, tests of labeling theory have produced mixed results • Criminal justice labeling has no effect • Imprisonment might be criminogenic • Harsh prison conditions and recidivism are positively related

30. Summary of the Assessment • Critics have provided a necessary corrective to bold claims that extralegal variables dominate the discretionary decision making of criminal justice officials and that societal reaction is the major source of career criminality • It would be misguided to make the opposite error of assuming that labeling theory “points to processes that exist but their overall impact is small” and that it “appears off the mark on almost every aspect of delinquency it is asked to predict or explain”

31. Labeling Theory in Context • During the 1960s, optimism ran high • As the 1960s unfolded, this optimism declined • Most disquieting was the government’s response to political protest • The state faced a “legitimacy crisis”; citizens no longer trusted the motives or competence of government officials • This atmosphere created a ripe environment for harvesting a theory that blamed the state for the crime problem

32. Policy Implications • Labeling theory has a profound impact on social policy • The prescription for policy change was eminently logical and straightforward: If state intervention causes crime, then steps should be taken to limit it • Four policies: Decriminalization, diversion, due process, and deinstitutionalization

33. Decriminalization • The criminalization of victimless deviance, such as drug use, creates crime in various ways • The mere existence of the laws turns those who participate in the behavior into candidates for arrest and criminal justice processing • It often drives them to commit related offenses

34. Decriminalization Cont. • Criminalization creates a lucrative illicit market • The existence of such illicit exchanges fosters strong incentives for the corruption of law enforcement officials

35. Decriminalization Cont. • Labeling theorists argued for the prudent use of decriminalization— the removal of many forms of conduct from the scope of the criminal law • The goal was to limit the law’s reach

36. Diversion • Some examples of diversion: • Youth service bureaus, welfare agencies, and special schools • Privately run mental health agencies, community substance abuse programs, government sponsored job training classes • Home incarceration

37. Diversion Cont. • Originally conceived as an alternative to involvement in the criminal justice system or to incarceration, diversion programs most often have functioned as add-ons to the system • Diversion has “widened the net” of state control by creating a “system with an even greater reach”

38. Due Process • Labeling theorists also were quick to join the mounting due process movement, which sought to extend to offenders legal protections • Individual justice must give way to a return to the rule of law • Punishments should be prescribed by law, and sentences should be determinate

39. Due Process Cont. • Labeling theorists hoped that these policies would result in shorter and more equitable sentences and thus would reduce the extent and worst effects of state intervention • On the one hand, due process has provided offenders with needed protections against state abuse of discretion • On the other hand, it remains unclear whether the corresponding attack on rehabilitation has succeeded in creating a system that is less committed to interventionist policies and more committed to humanistic ideals

40. Deinstitutionalization • Labeling theorists took special pains to detail the criminogenic effects of incarceration and to vigorously advocate the policy of lessening prison populations through deinstitutionalization • Policies have reflected this change in thinking, as we have abandoned the idea of deinstitutionalization and chosen instead to incarcerate offenders in unprecedented numbers

41. Extending Labeling Theory • The key issue is not simply whether a sanction is applied but also the quality of the sanction—what actually happens to an offender during the criminal justice process • Two important attempts have been made to develop a theory of how the quality of sanctioning affects re-offending: • Braithwaite’s theory of shame and reintegration • Sherman’s defiance theory

42. Braithwaite’s Theory of Shaming and Crime • John Braithwaite took up the issue of the conditions under which societal reaction increases crime or decreases crime • Legal violations evoke formal attempts by the state and informal efforts by intimates and community members to control the misconduct

43. Shaming and Crime Cont. • Central to social control is what Braithwaite called shaming: All process of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and/or condemnation by others who become aware of the shaming

44. Varieties of Shaming • Disintegrative Shaming: Stigmatizes and excludes, thereby creating a class of outcasts • Reintegrative Shaming: An illegal act initially evokes community disapproval bur then is followed by attempts to reintegrate the offender back into the community through words or gestures of forgiveness

45. Reintegrative Shaming • In this case, shaming has two faces: • It makes certain that the inappropriateness of the misconduct is known to the offender and all observers • It presents an opportunity to restore the offender to membership in the group

46. Shaming Cont. • The underlying social context determines the degree to which shaming will be reintegrative or disintegrative • America lacks the cultural and institutional basis that would encourage seeing offenders as part of an interdependent community • Social control has a strong disintegrative quality

47. Summary of Shaming • Braithwaite enriched labeling theory by illuminating not only that shaming varies on its nature and effects but also why this variation ultimately is contingent on the society in which shaming takes place

48. Sherman’s Defiance Theory • Sherman began with the observation that labeling theory does not account for the many examples of sanctions reducing crime • Sherman asked: Under what conditions does each type of criminal sanction reduce, increase, or have no effect on future crimes?

49. Defiance Theory Cont. • Sherman’s central concept is that of defiance: The net increase in the prevalence, incidence, or seriousness of future offending against a sanctioning community caused by a proud, shameless reaction to the administration of a criminal sanction

50. Factors that may Increase Offending • When offenders have few social binds to the community, there is little to restrain their defiance, and arising criminal inclinations • Consistent with Braithwaite, offenders are more likely to be defiant when they perceive the sanction as stigmatizing not their actions but rather the offenders personally