Law in Contemporary Society

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Social reality of crime: Too much discretion

-- By RasheedAhmed - 06 Mar 2015

Over the past year, the criminal justice system has seen heavy blows. But what’s changed? There is no denying that technology has revealed an issue that has been present for much too long. Crime exists because some segments of a society are continuously at conflict with others. This paper examines what a crime is, how this conflict of interest arises and how the conflict of interest is perpetuated.

That phrase usually has a different meaning than the one you are relying on here, in which "conflict of interest" denotes all class conflict.

The blurred line: Does committing a crime create the criminal; or is being a criminal a crime?

Crime is a definition. To murder is a crime. However, when one commits murder in one jurisdiction, that doesn’t necessarily mean that they have committed murder in another. This of course depends on how a particular state defines murder. Lets take the example of a man who is convicted of armed robbery and sent to jail. He is now labeled: a criminal. He is criminal because of the application of criminal definitions. But the reality is, we as a society don’t settle with this. We tend to continuously want to alienate these people. The simple understanding that a crime is a definition and people are criminal because of the application of the definition is not enough. There has to be something off about them. We spend an extended period of time on their behavior and single it out. Instead of looking at the crime as a judgment made by segments of a society about the behavior others, we now believe that the behavior is an individual pathology. A pathology we are obligated to look out for and separate from those of us who are normal. Those who can be clinically diagnosed as having a pathological behavior nevertheless end up committing far too many crimes. This overlap perpetuates the misunderstanding of what a crime is.

The central idea here, that law "creates" deviancy by defining it, is sociologically very important. You might be interested in the treatment of this idea in Donald Black, The Behavior of Law (1976), which we will be reading shortly.

Conflict of Interest

Criminal definitions are created by those who have the power to do so and according to their respective interests. When the interests of the powerful group in a society feel threated by a behavior, they figure out a plain to curtail it. The interest’s turn into a policy which then formulate into a criminal definition. Each criminal definition has a policy that is attached to it. The acknowledgement of varying interests that clash shows that certain segments of society are in conflict with others. There’s a strong argument that the middle class can further their “powerful interest”. They are able to further their interest by electing those who create these definitions, and those who are able to enforce their interests. A stronger argument would be that the “powerful interest” is held by the most wealthy amongst us.

What form of interest group analysis explains why we make forcible sexual intercourse a felony? What social conflict among classes explains why child neglect, or unauthorized toxic waste disposal, or reckless endangerment, are crimes?.

When these different groups of society continuously clash, an increase in criminal definition formulates.

When do "different groups of [sic] society" not "continuously clash"? On what theory of society or history is this avoidable?

Precisely because you are advancing a particular theory of social agency, passive voice locutions in describing social phenomena won't work for you.

However, it is easy to loose track of the true policy that is attached to each criminal definition. A good example of this confusion is presented when we take a look at the criminal definitions attached to certain drugs. The powerful interests are able to formulate policies in order to curtail the drug threat imposed by the segments of society who hold an interest to use such drugs. In New York City, we see that the interests of the powerful increasingly conflict with the interest of the powerless with respects to marijuana.

What is the interest of the powerful with respect to marijuana in New York?

The policy behind this enforcement is continuously debated. Criminal definitions creates far too much discretion.

Discretion in whom? Of what sort? Criminal definitions are among the most carefully focused in our statutory literature. Mandatory appeal as of right and the crafted structure of appellate review of jury instructions restating those definitions for lay finders of fact and liability subjects those definitions to constant pressure. You need to explain precisely and with some reference to facts about the system what discretion you mean.

The ever-changing conception of crime

A society is encompassed of variety of cultures. These cultures are grouped into segments. These segments sometimes never interact. A group that may not have the power to create certain criminal definitions may be unfairly targeted. Segments within this group can develop certain behaviors and characteristics. These certain behaviors and characteristics are engrained by years of culture and history. So when the behavior of these individuals “threatens” the powerful interest we have then come back to a very scary notion. Instead of understanding these individuals behavior it is easier to label it as being different. This returns us to the risk of defining crimes far too loosely. Do these laws go after the “bad acts” society is trying to curtail for the right reasons or are these laws going after “behavior” that we are simply accustomed too.

This is especially dangerous when we acknowledge that the conceptions of crime are constructed and enabled by various means of communication. We as humans react to things based on our experiences. We normally are not accustomed to murder, rape or such violent crimes. It is the communication of these crimes through means of communication (online, television etc) that shape our perception of crimes.

Do you mean the "rate" or prevalence of crime, or its nature? We have been using lay juries to find facts and assess liability since roughly 1215. We possess lots of good thinking about the historical relationship of communications media and the substantive assessment of criminal liability. Also about the nature of political ideology in the structuring of the criminal law. E.P. Thompson and his extraordinary intellectual offspring, including Douglas Hay and Peter Linebaugh, are surely the place to start. I think you'd have to conclude on the basis of the whole sweep of the literature, that perception of crime rates is fundamentally constructed by the available media of social communication. That crime definitions are socially constructed by the same process is a much more tenuous assertion. Edward Thompson's entire career as a writer of history could be said to grow out of his interest in the question you are posing here. The Making of the English Working Class and Customs in Common as much as Whigs and Hunters are concerned with aspects of this problem.

However, when we recognize that the line is blurred as to what is a criminal we come to the conclusion that these forms of communication prove instrumental. Instead of understanding crime for what it is, a definition; we then understand crime for what it is not.

Revision 7r7 - 16 Apr 2015 - 14:42:20 - RasheedAhmed
Revision 6r6 - 14 Apr 2015 - 12:58:41 - EbenMoglen
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