CRIMINALIZATION OF DEVIANCE

A 1996 household survey dealing with drug abuse revealed that 13 percent of persons eighteen to twenty-five, 6 percent of persons twenty-six to thirty-four, and 2 percent of persons thirty-five years or older had smoked marijuana within the last thirty days (Maguire and Pastore 1998, p. 246). The same survey showed that nearly a quarter of persons eighteen to twenty-five had smoked marijuana within the past year and about half of persons eighteen to thirty-four had smoked marijuana at least once during their lifetimes. (The prevalence of marijuana use is considerably greater among males than among females, so these statistics understate marijuana use among young adult males.) A different population survey, also conducted in 1996, revealed that the legalization of marijuana use enjoys considerable support among young adults: 38 percent among respondents eighteen to twenty, 30 percent among respondents twenty-one to twenty-nine, and 28 percent among respondents thirty to forty-nine (Maguire and Pastore 1998, p. 151). Males are much more supportive of legalization than females, and those who claim no religion are most supportive of all.

A reasonable interpretation of these data is that no clear consensus exists that smoking marijuana is wrong. Rather, American society contains a large group, probably a majority, that considers smoking marijuana wrong and a smaller group (but a substantial proportion of young adult males) that uses marijuana, considers it harmless, and is probably indignant at societal interference. Since a nonconformist is immensely strengthened by having even one ally, as the social psychologist Solomon Asch demonstrated in laboratory experiments (Asch 1955), such sizable support for marijuana use means that controlling its use is no easy task. Many other kinds of behavior in contemporary societies resemble marijuana use in that some people disapprove of the behaviors strongly and others are tolerant or supportive. In short, modern societies, being large and heterogeneous, are likely to provide allies even for behavior that the majority condemns.

Yet moral ambiguity does not characterize American society on every issue. Consensus exists that persons who force others to participate unwillingly in sexual relations and persons with body odor are reprehensible. Body odor and rape seem an incongruous combination. What they have in common is that both are strongly disapproved of by the overwhelming majority of Americans. Where they differ is that only one (rape) is a statutory crime that can result in police arrest, a court trial, and a prison sentence. The other, smelling bad, although deviant, is not criminalized. When deviance is criminalized, the organized collectivity channels the indignant response of individuals into public condemnation and, possibly, punishment.

Some sociologists maintain that when sufficient consensus exists about the wrongfulness of an act, the act gets criminalized. This is usually the case but not always. Despite consensus that failing to bathe for three months is reprehensible, body odor has not been criminalized. And acts have become criminalized, for example, patent infringement and other white-collar crimes that do not arouse much public indignation. In short, the correlation between what is deviant and what is criminal, though positive, is not perfect.

For a clue to an explanation of how and why deviance gets criminalized, note how difficult it is for members of a society to know with certainty what is deviant. Conceptually, deviance refers to the purposive evasion or defiance of a normative consensus. Defiant deviance is fairly obvious. If Joe, a high school student, is asked a question in class by his English teacher pertaining to the lesson, and he replies, "I won't tell you, asshole," most Americans would probably agree that he is violating the role expectations for high school students in this society. Evasive deviance is less confrontational, albeit more common than defiant deviance, and therefore more ambiguous. If Joe never does the assigned homework or frequently comes late without a good explanation, many Americans would agree that he is not doing what he is supposed to do, although the point at which he steps over the line into outright deviance is fuzzy. Both evasive and defiant deviance require other members of the society to make a judgment that indignation is the appropriate response to the behavior in question. Such a judgment is difficult to make in a heterogeneous society because members of the society cannot be sure how closely other people share their values.

To be sure, from living in a society the individual has a pretty good idea what sorts of behavior will trigger indignant reactions, but not with great confidence. The issue is blurred by subgroup variation and because norms change with the passage of time. Bathing suits that were entirely proper in 1999 in the United States would have been scandalous in 1929. A survey might find that a large percentage of the population disapproves now of nudity on a public beach. The survey cannot reveal for how long the population will continue to disapprove of public nudity. Nor can the survey help much with the crucial problem of deciding how large a proportion of the population that disapproves strongly of a behavior is enough to justify categorizing public nudity as "deviant."

In short, the scientific observer can decide that a normative consensus has been violated only after first establishing that a consensus exists on that issue at this moment of time, and that is not easy. To determine this, individual normative judgments must somehow be aggregated, say, by conducting a survey that would enable a representative sample of the population to express reactions to various kinds of behavior. Ideally, these responses differ only by degree, but in a large society there are often qualitatively different conceptions of right and wrong in different subgroups.

In practice, then, in modern societies neither the potential perpetrator nor the onlooker can be certain what is deviant. Consequently the social response to an act that is on the borderline between deviance and acceptability is unpredictable. This unpredictability may tempt the individual to engage in behavior he would not engage in if he knew that the response would be widespread disapproval (Toby 1998a). It may also restrain onlookers from taking action against the behavior—or at least expressing disapproval—against persons violating the informal rules.

WHAT CRIME INVOLVES: A COLLECTIVE RESPONSE

Crime is clearer. The ordinary citizen may not know precisely which acts are illegal in a particular jurisdiction. But a definite answer is possible. A lawyer familiar with the criminal code of the State of New Jersey can explain exactly what has to be proved in order to convict a person of drunken driving in New Jersey. The codification of an act as criminal does not depend on its intrinsic danger to the society but on what societal leaders perceive as dangerous. For example, Cuba has the following provision in its criminal code:

Article 108. (1) There will be a sanction of deprivation of freedom of from one to eight years imposed on anyone who: (a) incites against the social order, international solidarity or the socialist State by means of oral or written propaganda, or in any other form; (b) makes, distributes or possesses propaganda of the character mentioned in the preceding clause. (2) Anyone who spreads false news or malicious predictions liable to cause alarm or discontent in the population, or public disorder, is subject to a sanction of from three to four years imprisonment. (3) If the mass media are used for the execution of the actions described in the previous paragraphs, the sanction will be a deprivation of freedom from seven to fifteen years (Ripoll 1985, p. 20).

In other words, mere possession of a mimeograph machine in Cuba is a very serious crime because Fidel Castro considers the dissemination of critical ideas a threat to his "socialist State," and in Cuba Castro's opinions are literally law. Hence, possession of a mimeograph machine is a punishable offense. Members of Jehovah's Witnesses who used mimeograph machines to reproduce religious tracts have been given long prison sentences. On the other hand, reproducing religious tracts may not arouse indignation in the Cuban population. It is criminal but not necessarily deviant.

In California or New Jersey, as in Cuba, a crime is behavior punishable by the state. But the difference is that in the fifty states, as in all democratic societies, the legislators and judges who enact and interpret criminal laws do not simply codify their own moral sentiments; they criminalize behavior in response to influences brought to bear on them by members of their constituencies. True, women, children, members of ethnic and racial minorities, and the poorly educated may not have as much political input as affluent, middle-aged, white male professionals. But less influence does not mean they don't count at all. In a dictatorship, on the other hand, the political process is closed; few people count when it comes to deciding what is a crime.

WHEN DEVIANCE IS CRIMINALIZED: POLITICIZATION

As was mentioned earlier, what is deviant is intrinsically ambiguous in a complex society whose norms are changing and whose ethnic mix has varied values. Criminalization solves the problem of predictability of response by transferring the obligation to respond to deviance from the individual members of society to agents of the state (the police). But criminalization means that some members of society are better able than others to persuade the state to enforce their moral sentiments. Criminalization implies the politicization of the social control of deviance. In every society, a political process occurs in the course of which deviant acts get criminalized. Generally, the political leadership of a society criminalizes an act when it becomes persuaded that without criminalization the deviant "contagion" will spread, thereby undermining social order (Toby 1996). The leaders may be wrong. Fidel Castro might be able to retain control of Cuban society even if Cubans were allowed access to mimeograph machines and word-processors. Nevertheless, leaders decide on crimes based on their perception of what is a threat to the collectivity. According to legal scholars (Packer 1968), the tendency in politically organized societies is to overcriminalize, that is, to involve the state excessively in the response to deviance. Political authorities, even in democracies, find it difficult to resist the temptation to perceive threats in what may only be harmless diversity and to attempt to stamp it out by state punishment.

Sociology's labeling perspective on deviance (Becker 1963; Lemert 1983) goes further; it suggests that overcriminalization may increase deviance by changing the self-concept of the stigmatized individual. Pinning the official label of "criminal" on someone stigmatizes him and thereby amplifies his criminal tendencies. Furthermore, an advantage of ignoring the deviance is that it may be ephemeral and will disappear on its own; thus in 1974 American society virtually ignored "streaking" instead of imprisoning streakers in large numbers for indecent exposure (Toby 1980), and by 1975 streaking had become a historical curiosity. But whether deviance is self-limiting is an empirical question. The labeling perspective ignores the logical possibility that stigmatizing the deviant may be necessary to deter future deviance by bringing home to the offender (as well as potential offenders) the danger of antagonizing the community. In point of fact, the empirical evidence supports the deterrence possibility more than it does the amplification assumption (Gove 1980; Gibbs 1975). At its most extreme, the labeling perspective denies the desirability of any kind of criminalization:

"The task [of radical reform] is to create a society in which the facts of human diversity, whether personal, organic, or social, are not subject to the power to criminalize" (Taylor, Walton, and Young 1973, p. 282).

Thus, the labeling perspective flirts with philosophical anarchism. More reasonably, the issue is: which forms of deviance can be regarded as harmless diversity and which threaten societal cohesiveness sufficiently that they require criminalization in order to be contained within tolerable limits? Experience has taught us that the body odor of other people, though objectionable to most Americans, is tolerable. But what about consuming alcohol or cocaine to the point of chronic intoxication? What about sexual practices that shock most people such as sado-masochism or intercourse with a sheep? One way to finesse these thorny questions is to define such acts as the product of mental illness and therefore beyond the control of the individual. Instead of regarding drug abuse or alcoholism or bestiality as deviant choices in the face of temptations, society may choose to regard them as "addictions," that is to say, involuntary (Toby 1998b). Since the ill person is by definition unenviable, he is not a role model, and therefore the deviant contagion does not spread (Toby 1964). But suppose consensus does not exist that these acts are compulsive; suppose that many people feel that the perpetrators are perversely choosing to engage in these behaviors. Average citizens may become demoralized when they see their norms flouted or they may be tempted to engage in the deviant behavior themselves. This is why criminalization (and state-sponsored punishment) may be necessary. Punishment serves to deprive the deviant of the benefits of his nonconformity, and therefore he becomes unenviable in the eyes of conformists.

Yes, society may stigmatize and perhaps imprison perpetrators, amid hope that imitators will be rare. But criminalization arouses opposition. Libertarians lean toward permitting almost any nonviolent behavior except the exploitation of children. Mental-health advocates perceive stealing to feed a passion for gambling as a symptom of illness; they may perceive even predatory violence as symptomatic of a sick personality for which the individual cannot be considered responsible. Pragmatists point out that when large numbers of people want to do something, such as gamble or use drugs, it is not practical to attempt to stop them by criminalizing the behavior. They argue that deviants cannot all be punished, certainly not by imprisonment; they corrupt police forces through bribes and deflect police efforts into tasks that cannot be accomplished instead of more feasible deviance-control activities; and the criminal organizations that emerge to cater to these forbidden pleasures promote crimes that would not have occurred in the absence of criminalization.

On the other side of the ledger is the tendency for the absence of criminalization to encourage individuals to engage in a behavior they would not have engaged in when faced with possible criminal sanctions. The Prohibition experiment of the 1920s, despite its perception as a failure, did succeed in reducing the incidence of alcoholism, as reflected in reduced incidence of alcoholic psychosis and of cirrhosis of the liver. But the social cost of criminalizing alcohol consumption was not only the proliferation of criminal enterprises to supply the demand of social drinkers; criminalization also prevented many people who wished to be social drinkers from having the freedom to do so. True, some of these would go on to become alcoholics, but most would not. Thus, the criminalization issue always involves a tradeoff between partially legitimating possibly harmful behavior, such as smoking cigarettes, or curtailing freedom by criminalizing the behavior. This judgment has to be made on a case by case basis. Most people who drink socially do not become alcoholics and most people who smoke do not get lung cancer; hence it is difficult to justify criminalizing drinking and smoking despite the likelihood that more people become alcoholics and get lung cancer than would if smoking and drinking were criminalized. On the other hand, the tradeoff goes the other way with "hard" drugs; the main argument against decriminalizing the sale of heroin is that the health costs to the general population would be too great; decriminalization would inevitably increase experimentation with the drug and ultimately the number of addicts (Kaplan 1983).

OTHER CONSEQUENCES OF CRIMINALIZATION

The absence of criminal law—and consequently of state-imposed sanctions for violations—is no threat to small primitive communities: Informal social controls can be counted on to prevent most deviance and to punish what deviance cannot be prevented. In heterogeneous modern societies, however, the lack of some criminalization would make moral unity difficult to achieve. When Emile Durkheim spoke of the collective conscience of a society, he was writing metaphorically; he knew that he was abstracting from the differing consciences of thousands of individuals. Nevertheless, the criminal law serves to resolve these differences and achieve a contrived—and indeed precarious—moral unity. In democratic societies, the unity is achieved by political compromise. In authoritarian or totalitarian societies the power wielders unify the society by imposing their own values on the population at large. In both cases law is a unifying force; large societies could not function without a legal system because universalistic rules, including the rules of the criminal law, meld in this way ethnic, regional, and class versions of what is deviant (Parsons 1977, pp. 138–139).

The unifying effect of the criminal law has unintended consequences. One major consequence is the development of a large bureaucracy devoted to enforcing criminal laws: police, judges, prosecutors, jailers, probation officers, parole officers, prison guards, and assorted professionals like psychologists and social workers who attempt to rehabilitate convicted offenders. Ideally, these employees of the state should perform their roles dispassionately, not favoring some accused persons or discriminating against others. In practice, however, members of the criminal justice bureaucracy bring to their jobs the parochial sentiments of their social groups as well as a personal interest in financial gain or professional advancement. This helps to explain why police are often more enthusiastic about enforcing some criminal laws than they are about enforcing others.

Another consequence of criminalization is that the criminal law, being universal in its reach, cannot make allowances for subgroup variation in sentiments about what is right and what is wrong. Thus, some people are imprisoned for behavior that neither they nor members of their social group regard as reprehensible, as in Northern Ireland where members of the Irish Republican Army convicted of assassinating British soldiers considered themselves political prisoners. They went on hunger strikes—in some cases to the point of death—rather than wear the prison uniform of ordinary criminals.

CONCLUSION

The more heterogeneous the culture and the more swiftly its norms are changing, the less consensus about right and wrong exists within the society. In the United States, moral values differ to some extent in various regions, occupations, religions, social classes, and ethnic groups. This sociocultural value pluralism means that it is difficult to identify behavior that everyone considers deviant. It is much easier to identify crime, which is codified in politically organized societies. The criminalization of deviance makes it clear when collective reprisals will be taken against those who violate rules.

Deviance exists in smaller social systems, too: in families, universities, and corporations. In addition to being subjected to the informal disapproval of other members of these collectivities, the deviant in the family, the university, or the work organization can be subjected to formally organized sanctioning procedures like a disciplinary hearing at a university. However, the worst sanction that these nonsocietal social systems can visit upon deviants is expulsion. A university cannot imprison a student who cheats on a final exam. Even in the larger society, however, not all deviance is criminalized, sometimes for cultural reasons as in the American refusal to criminalize the expression of political dissent, but also for pragmatic reasons as in the American failure to criminalize body odor, lying to one's friends, or smoking in church.

references

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——1980 "Where are the Streakers Now?" In Hubert M. Blalock, ed., Sociological Theory and Research, pp. 304–313. New York: Free Press.

——1996 "Reducing Crime: New York's Example," Washington Post, July 23.

——1998a "Getting Serious about School Discipline." The Public Interest, 133, Fall.

——1998b "Medicalizing Temptation." The PublicInterest, 130, Fall.

JACKSON TOBY