AIC_1984

ANNALES INTERNATIONALES

DE CRIMINOLOGIE

organe officiel de la Société internationale de Criminologie

Président : M. Denis SZABO (Canada)

Secrétaire général : M. Jacques VERIN (France)

COMITÉ DE RÉDACTION DES ANNALES

Président : M. Giacomo CANEPA (Italie)

Président de la Commission Scientifique

Secrétaire : M. Hans-Jurgen KERNER (R.F.A.)

Secrétaire de la Commission Scientifique

Rédacteur en chef : M. Georges PICCA (France)

Membres

MM. Enrique BACIGALUPO (Argentine Espagne), Alessandro BARATTA (Répu-

blique fédérale d'Allemagne), Mmes Michèle BARIL (Canada), Ulla BONDESON

(Danemark), Maureen CAIN (Grande-Bretagne), Anne-Marie FAVARD (France),

MM. Paul FRIDAY (U.S.A.), Ryuichi HIRANO (Japon), Georges KELLENS (Bel-

gique), Obrad PERIC (Yougoslavie), Emiro SANDOVAL (Colombie), Jacques

SELOSSE (France), Mme Louise SHELLEY (U.S.A.).

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ÉDITORIAL

Le précédent numéro des ANNALES était entièrement consacré à la

criminologie de langue espagnole. !! y avait, en effet, longtemps que notre

revue n'avait accueilli des textes et des informations relatives aux der-

nières tendances de la recherche ou, des pratiques suivies dans la poli-

tique criminelle des Etats d'Amérique Centrale ou du Sud. Toutefois, la

rédaction souhaite veiller à un pluralisme linguistique, qui correspond à

la vocation de la Société Internationale de Criminologie. C'est pourquoi

poursuivant la modernisation de cette revue annoncée dans le volume

21

(n° 2).

nous vous présentons aujourd'hui

un numéro composé de

divers articles de langue française et anglaise.

Les sujets traités dans ces articles ne sont pas nécessairement

reliés par une relation thématique. Certains de ces textes ont toutefois été

présentés dans des réunions internationales, et notamment le Congrès de

Sociologie tenu à Mexico (1982).

Ces articles ont été réunis par le

Professeur LESLIE SEBBA, de l'institut de criminologie de Jérusalem.

Nous souhaitons, à travers ces publications, à la fois ouvrir davantage

que par le passé notre revue et, éviter un double écueil. D'abord, celui

de publier seulement des numéros entièrement consacrés au compte

rendu de congrès ou réunions scientifiques internationales. Celui, ensuite

de ne pas publier des études d'un intérêt certain pour ceux qui souhaitent

suivre l'actualité criminologique dans le monde.

Le prochain numéro des ANNALES sera consacré au compte rendu

des travaux du IXe Congrès international

de criminologie de

Vienne

(Autriche)

Enfin, nous espérons être en mesure, dans l'avenir — conformément

au vœu exprimé par plusieurs de nos correspondants — de publier un

résumé en deux langues de chaque article publié dans la revue. De même,

nous souhaitons pouvoir réserver une place à un compte rendu des

principaux ouvrages reçus par la bibliothèque de la Société Internationale

de Criminologie ; seule l'absence de moyens en personnel de la rédaction

nous en a jusqu'ici empêchés. C'est dire que nous formons des vœux pour

que ces difficultés soient levées et que les ANNALES occupent la place

qui doit être la leur dans la diffusion des différents courants de la crimi-

nologie mondiale.

Georges PICCA.

SOMMAIRE

— N. MAILLOUX — Le criminel,

triste

inconnu de

la

criminologie

contemporaine

. e —s © « % « à « — ® % * à e * « © « » « e e … « < « à % * « + » % « < « # « « « — « À

12

— B. SVENSSON — Towards a rational and effective criminal justice

process

31

— V. et À. BINDER — Treatment of offences as a function of the economic

and political climate

48

— J. VAN KERKKVOORDE — The myth of equity and proportionality in

« . e « » < * e * » © e à 6 % 6 6 % % + —s à # % 6 à « 6 6 % e 6 # à

26

the application of criminal law

— V. GOLDSCHMIDT —

Material

alternatives to

legal

resolution of

criminal conflicts

e « * 6 à « 6 » © 6 … % * % % « % % 6 + % 6 à % % 6 « 6 à — #% 6 e » 6 6 — « # »#

75

J. OPOLOT — Legal reform in the context of islamic fundamental

alism

an analysis of trends and prospects

e . « e 6 »* % % * « « . » © + + « #% = %

96

J.C. HACKLER — The shift of emphasis from white collar crime to

violent crime

are the two independant ? ............0204040420000

104

J. LANDAU — Trends in violence and aggression

a cross-cultural

analysis.

. e « « % — © © « 6 © © » « à 6 . 6 « s. e © % © * 8 »s 6 % © » » 5 »% 6 6 6 — s6 e « « — © « # # # © #

119

H. TRAVER — Crime and development : the case of Hong Kong

e . . .

151

définition methodo-

F. ODELUNKE — Corruption in development

173

logical and theoritical issues

— M. LOS — Corruption in a communist country a case study of Poland

194

LE CRIMINEL, TRISTE MECONNU DE LA

CRIMINOLOGIE CONTEMPORAINE

Noël Mailloux*

En œuvrant, depuis plus de trente ans, dans le domaine de la crimi-

nologie clinique, un but unique demeura au centre de mes préoccupations.

Avant tout, il m’apparaissait important d’identifier les influences défavo-

rables qui engagent dans une impasse sans issue la structuration originelle

d’un dynamisme psychique encore labile, le rendant ainsi inapte à servir

d’assise pour l’édification d’une personnalité aspirant à faire un usage

rationnel et responsable de sa liberté naissante et le condamnant à revêtir

une configuration qui le rend imperméable aux sollicitations éducatives

ordinaires. En même temps, j’avais à coeur de soutenir les efforts d’un

groupe d’éducateurs et d’éducatrices soucieux de parfaire leur formation

et dont la curiosité toujours en éveil et le dévouement quasi héroique, en

plus de succiter mon admiration, m’obligeaient à ne jamais perdre de vue

nos objectifs communs. C’est grâce à leurs observations ainsi qu’aux confi-

dences de centaines de jeunes, que je me sens aujourd’hui en mesure de défi-

nir d’une façon plus précise et plus complète que jadis ce que sont les

besoins du criminel en regard de son isolement social, des lacunes fonction-

nelles de son appareil psychique et de son impuissance à établir avec autrui

une relation authentiquement humaine.

Dans la conjoncture actuelle, une mauvaise conscience oblige encore

maints administrateurs, au niveau politique, judiciaire ou correctionnel,

à faire mine de s’intéresser au traitement ou à la rééducation du criminel,

à sa réhabilitation personnelle ou à sa réinsertion sociale. En fait, on sait

qu’ils sont avant tout à la recherche d’expédients peu coûteux qui leur per-

mettraient de faire face à un dangereux problème de surpopulation institu-

tionnelle, qu’ils préféreraient résoudre par la construction de nouveaux cen-

tres de détention si pareille décision s’avérait moins impopulaire. Malheu-

reusement pour eux, plus ils s’ingénient à ignorer les exigences du travail

de la rééducation ou à en écourter le processus, plus il leur faut constater

que les mineurs délinquants ne prennent plus guère au sérieux les inter-

ventions des représentants de la justice. Bien plus, ils se prétent à certaines

collusions avec des adultes criminels, qui se servent d’eux pour exécuter

des besognes dangereuses mais fort lucratives, sachant qu’ils s’en tireront

à meilleur compte si le hasard joue contre eux. De même, dès que l’on

parle d’installer quelque part une nouvelle prison, on se heurte aux pro-

testations de plus en plus vives d’une population mieux informée, qui se

* Centre de Recherches en Relations Humaines

2715, chemin de la Côte Ste-Catherine

Montréal, P.Q, Canada. H3T 1B6

montre également fort méfiante à l’égard de mesures de substitution,

comme la liberté surveillée ou la libération conditionnelle, quand on veut

en faire bénéficier des individus insuffisamment préparés à mener une vie

honnête. Tout le monde sait aujourd’hui, que la récidive à plus ou moins

brève échéance est quasi inévitable pour le criminel qu’on n’a pas pris le

temps d’aider à modifier des attitudes envoûtantes, devenues parties inté-

grantes de sa structure caractérielle. Une peine de prison ne l’incitera le plus

souvent qu’à plus prudemment contrôler et dissimuler ses habitudes d’agir.

Mais il serait futile de s’attarder à démasquer les artifices d’une rhéto-

rique euphémique qui ne sert qu’à camoufler une inertie dont le but à peine

déguisé est d’éluder toutes les grandes décisions. Cela n’aurait d’autre utilité

que de justifier les réflexions désabusées ou les récriminations amères d’un

burnout. Quant à ceux qui ne perdent jamais de vue la dignité humaine du

criminel et à qui une longue expérience a permis de découvrir en lui des

ressources qui rendent presque toujours possible un relèvement espéré, ils

évitent de s’enliser dans le bourbier de la stagnation. Convaincus qu’un

apport décisif ne peut venir que d’une approche positive qui leur permet

déjà d’en entrevoir la portée, ils s’acharnent à mettre au point une méthode

efficace de déclencher l’éveil d’un sens de responsabilité obnubilé et four-

voyé par les incohérences d’une éducation erratique. Récemment, plusieurs

collègues ont assumé la tâche ingrate de faire le point sur certains tâton-

nements observés dans le traitement du criminel (cf. Revue internationale

de criminologie et de police technique, vol. 36, N° 1, janvier-mars 1983)

et sur les multiples facettes des comportements délicieux (cf. Bulletin de

psychologie, vol. 36, N° 359, janvier-avril 1983). On ne s’étonnera donc

pas que je profite d’une telle occasion pour essayer de poser les bases sur

lesquelles s’appuient d’emblée les plus sérieuses tentatives de rééducation,

poursuivies avec l’aide de collaborateurs particulièrement compétents, en

dépit de contraintes et d’incompréhensions qui ne sauraient vous sur-

prendre.

LE STATUT DU CRIMINEL DANS UNE SOCIÉTÉ CIVILISÉE

Même pour ceux que l’histoire de la civilisation intéresse au plus haut

point, is serait présomptueux de vouloir définir d’une façon compréhensive

cette expression multiforme du génie humain. Dès le début de son ouvrage

classique, Kenneth Clark (1969) s’avouait, lui-même, incapable de le faire.

Dans la perspective plus restreinte du clinicien, cependant, il est frappant de

constater que, depuis l’antiquité, deux traits fondamentaux ont sans cesse

permis de déterminer dans quelle mesure une société était devenue suffisam-

ment consciente de la dignité de l’homme pour sortir de la barbarie et

s’achaminer vers un certain niveau de civilisation. Ces deux traits, qui ont

donn, naissance, tout à tour, à la médecine et à la philosophie, à la morale

et au droit, à la science et à l’art, consistent dans le respect de la vie et dans

le souci d’en améliorier progressivement la qualité pour tous et chacun des

membres de collectivité humaine.

A notre époque, comme à toutes les autres, la tentation est toujours

présente de reléguer dans l’oubli ces intuitions primordiales. Ensuite, c’est

avec un sentiment atténué de remords que l’on cherche à en escamoter les

implications par trop évidentes, estimant qu’elles ouvriraient la porte à une

condescendance excessive et à un accroissement de dépense, incompatible

avec les normes d’une administration prudente et réaliste. Bref, un pragma-

tisme imperméable à toute considération humanitaire permet tout simple-

ment de camoufler une incompétence, qui cesse bien vite d’inquiéter ceux

qui cèdent à la griserie du pouvoir. Pis encore, puisque le moment est venu

de parler clairement, ce défaitisme pratique, qui amène à ne pas prendre

sincèrement et efficacement au sérieux la prise en soin de nos criminels,

ressemble étrangement à l’attitude de mépris de la vie et de primitive

cruauté qui prévaut encore chez ceux qui ne peuvent se décider à renoncer

à la torture et à la peine capitale. Mais, c’est là un point qui sera expli-

cité tout au long de ce travail. Pour l’instant, je me contenterai de rappeler

jusqu’à quel point une telle perspective est symptomatique d’une orienta-

tion fort peu progressive. Si la justice décrète l’incarcération d’un criminel

qui présente une sérieuse menace pour la société, elle ne fait que remplir

sa fonction normale. Mais si l’institution qui le reçoit se borne à lui assurer

le gite, le couvert et quelques menus passe-temps, on peut la comparer à

un hôpital qui offrirait le même confort à des patients atteints d’une mala-

die grave tout en négligeant de leur apporter les soins spécialisés que leur

état exige. Alors, bien sûr, on ne pourrait pas parler d’exécution capitale ;

mais, pour employer un mot à la mode, il faudrait quand même conclure

que cela se rapproche de l’euthanasie.

Une telle réaction face à la détresse humaine, sous quelque forme que

ce soit, apparaît plutôt déconcertante pour tous ceux qui entendent rester

fidèles à une tradition humanitaire qui remonte à près de 2500 ans, et

qu’un médecin grec, le Dr Xanatsoulis (1963, p. 88 ss.), a su restituer dans

un contexte exceptionnellement évocateur. En effet, c’est à Hipocrate, lui-

même, qu’il laisse le soin de raconter que, au cours d’une nuit passée dans le

temple de Cos, l’âme d’Esculape, son aïeul, l’avait interpellé de la façon

suivante :

«Je vais te donner un conseil qui t’aidera au chevet de tes malades : c’est

celui d’envisager la vie avec l’éternel espoir d’un meilleur lendemain… Tout

espère ici-bas ; il faut que tu cultives cette qualité chez tes malades pour

qu’ils puissent y puiser la force d’oublier leurs souffrances. Donne-leur

la possibilité d’espérer et ils ne mourront pas».

«Garde-toi bien de détruire une vie avant son heure et d’assombrir ses

derniers instants, me dit l’aïeul vénéré. Les dieux ont mis en nous la soif

de l’éternel et tu ne dois pas étancher ce tourment. Il faut lui permettre de

vivre selon l’intensité des flammes du moment. La volonté divine seule peut

détacher son âme de la terre, tout comme un fruit mûr se détache des

branches… Lutte donc, épuise tes efforts sans relâche, sans regrets, à entre-

tenir jusqu’au bout l’étincelle de vie, même prête à s’éteindre. Là est ton

devoir envers les dieux et envers ton art».

Voilà qui est clair. Pour aider un malade à conserver l’espoir de retrouver

une vie normale, nous devons lui inspirer l’assurance que notre sollicitude

est toujours en éveil et que les soins qu’on lui donne sont à la fois les plus

compétents et les plus efficaces dont on dispose.

A l’encontre de ce que beaucoup peuvent penseré une expérience,

dont les principales démarches seront décrites plus loin, n’a guère cessé

d’ancrer davantage en moi la conviction qu’une approche similaire pourrait

souvent aboutir à d’aussi heureux résultats dans le cas du criminel. On sait,

en effet, que dans l’entourage où il a grandi on s’est souvent acharné à

renforcer la perception négative de lui-même, qu’on lui reflétait sans cesse

en lui prédisant qu’il deviendrait celuit qu’il est effectivement devenu

aujourd’hui. Mais quand le jour arrive, enfin, où quelqu’un dont il ne peut

mettre en doute ni la sincérité, ni la compétence parvient à lui donner la

certitude qu’il croit fermement à la possibilité de sa rééducation et de son

relèvement, une étincelle d’espoir suffit souvent à éveiller sa curiosité et

une vague aspiration à retrouver sa dignité d’homme capable d’assumer

la responsabilité de sa conduite. Avant de revenir sur la portée clinique

de cette première lueur qui, en traversant l’esprit, ébranle obscurément une

conviction qui donne l’impression d’un froid endurcissement, je voudrais

citer ici les paroles d’un théologien, le P. Brucberger (1973, p. 86 ss.) qui,

dans sa célèbre Lettre ouverte à Jésus-Christ s’exprime dans la même veine

qu’Hippocrate, bien qu’avec une verdeur susceptible de déplaire à certains

criminologues. Les voici :

«Aujourd’hui, n’importe quel crime est dilué dans une responsabilité collec-

tive, au niveau le plus bas, soit biologique, soit social, où il s’évanouit tout

à fait… La pauvreté, la maladie, l’hérédité, l’état arriéré de tel microclimat

social, tels sont les seuls ennemis de l’homme et de la société, tels sont les

détenteurs d’une quelconque responsabilité. Ce sont là l’hydre de Lerne

des temps modernes, ou bien ces antiques dragons qui rôdent aux alentours

des villes et qu’il fallait sans cesse recommencer d’exterminer. Alors tout

irait pour le mieux».

«À mon tour, j’ai l’audace de vous poser la question (à vous, Jésus-Christ) :

«Si vous reveniez, que feriez-vous ?» Vous ne prépondez pas, vous me laissez

le soin d’imaginer la réponse ? Il me semble que ce que vous pourriez faire

en premier lieu, c’est de réhabiliter le criminel, de lui rendre la responsa-

bilité de son crime, de restaurer le crime dans sa qualité spécifique de péché

et le criminel dans sa dimension d’offenseur de Dieu. Dix mille fois mieux

être le pire des criminels dans votre monde à vous que le plus vertueux des

hommes dans une société totalement hygiénique et sans responsabilité.

Dans votre monde à vous, le plus déchu des hommes garde la possibilité

9

même à travers sa culpabilité, aussi lourde soit-elle, de recouvrer sa fierté

d’homme, fierté et liberté que vous êtes venu restaurer sur une fondation

qui n’est pas de ce monde».

Fort Heureusement pour la criminologie, cette tradition qui ne perd

jamais de vue, d’une part, ce qui constitue les éléments essentiels, donc

inaliénables, de la dignité de l’homme, et, d’autre part, les imprévisibles

réserves d’énergies de recouvrement et de progrès que celui-ci porte au fond

de lui-même, en dépit des plus alarmantes défaillances morales, psycho-

logiques, ne semble pas du tout près de s’éteindre.

De nos jours, pour des raisons faciles à comprendre, on se détourne de

l’étude de la personnalité du criminel et on se montre insensible à son

désespoir réel et réaliste, bien qu’inavoué, de recevoir une aide efficace qui

lui ouvrirait la possibilité de rentrer dans la société comme un citoyen à

part entière. On préfère d’emblée s’intéresser au crime. Ainsi, on se demande

si un certain comportement devrait être inscrit dans le code criminel - pour-

tant, la Commission de Réforme du Droit du Canada estime qu’on compte

déjà quelques 40 000 offences dont un citoyen peut éventuellement être

accusé -, ou, par contre, s’il devrait en être effacé. De même, on poursuit

des recherches longues et coûteuses pour identifier ce qu’on appelle des

«facteurs criminogènes», tout à fait extrinsèques à la personne du criminel

et qui devrait affecter autant que lui tous ceux qui l’entourent, ou encore,

pour mettre au point des moyens de contrôle social que d’habiles criminels

trouveront, de leur côté, le moyen de déjouer. Enfin, on ne saurait oublier

un certain nombre de chercheurs qui, voyant dans le criminel une sorte de

robot, s’attardent encore à développer, à son intention, une technique de

modification du comportement qui permettrait une reprogrammation

permanente d’automatisme indésirables.

Ce n’est nullement mon intention, ici, de dénigrer ces diverses tentatives

qui ont eu leur moment de vogue et qui on contribué dans une certaine

mesure à l’avancement de la criminologie. Cependant, je ne puis que regret-

ter qu’elles aient trop souvent servi à détourner l’attention de nombre de

bureaucrates et de directeurs d’institutions pénales ou de centres d’accueil

pour jeunes délinquants de leur tâche principale : la rééducation et la

réhabilitation de nos criminels. Peu intéressés au travail en profondeur,

ils se soucient fort peu de la formation de leur personnel et s’appliquent

à masquer une médiocrité qualitative de plus en plus evidente par un ac-

croissement factice du rendement quantitatif. Rapidement, ils s’enferment

dans un cercle vicieux, où leur prétention de poursuivre leur travail de

rééducation avec un engagement égal à celui qui, à l’origine, a permis à leur

équipe de se mériter une réputation enviable, est vite démentie par des

échecs de plus en plus nombreux et apparents. Alors, bien sûr, ils ne trou-

vent rien de mieux à faire que de s’en prendre à des éducateurs qui, par leur

dévouement et leur savoir-faire ont assuré le renom de leur institution. Ils

mettent tout à coup en doute leur compétence, sous prétexte qu’ils ne

parviennent pas à accomplir des miracles que l’on voudrait obtenir d’eux,

même quand on s’ingénie à miner leur enthousiasme en ne tenant aucun

compte de leurs observations et des recommandations qui en découlent.

Mais, ce qui est plus grave encore, c’est que ce genre de direction inepte

en vienne si facilement à s’infiltrer dans les institutions novatrices, dont les

quinze ou vingt premières années d’existence justifiaient les plus beaux

espoirs pour l’avenir, et à les acheminer le plus vite possible vers ce que les

bureaucrates appellent une «normalisation» qui les empêchera de trans-

cender la médiocrité commune. On ne saurait trouver meilleur moyen de

confirmer, dans leur préjugé, ceux qui ont intérét à croire que la réédu-

cation du criminel est impossible et qui préfèrent garder leur conviction que

tout effort pour l’aider à se transformer et à se réhabiliter pour de bon est

vain et futile. Mais, à quoi servirait d’insister davantage sur cette méthode de

sabotage systématique, qui n’a guère d’autres buts que de contraindre toutes

nos institutions de rééducation - et surtout les meilleures d’entre elles - à se

muer en centres de dépannage, permettant de répondre aux urgences aux-

quelles est sans cesse confrontée une administration judiciaire qui n’entre-

voit aucune autre issue face à un encombrement chronique toujours plus

menaçant ? Dernièrement, Edward Pearce (1983) a dénoncé crûment ce

cynisme qui, avec tout son arsenal de palliatifs illusoirement déguisés en in-

novations progressives, masque une impuissance radicale à faire face aux

vrais problèmes et à tenir compte des besoins du criminel d’une façon réa-

liste, tant au plan judiciaire qu’au plan correctionnel. Plus explicitement que

je ne l’ai fait plus haut, il a mis en lumière les conséquences inquiétantes de

ces tergiversations irresponsables : marée montante de la criminalité et de la

violence, insécurité des citoyens dans la rue et dans leur domicile, désempa-

rement des juges dont les sentences demeurent sans suite, démoralisation de

la police dont le travail n’est guère pris au sérieux, érosion de l’autorité de la

loi et du souci du bien commun qu’elle incarne.

Si généralisée soit-elle, pareille attitude dissimule de plus en plus mal

une apathie aussi rétrograde qu’intéressée. Pour s’en convaincre, il suffit de

marquer que les arguments qui lui servent de justification ressemblent à s’y

méprendre à ceux auxquels certains ont eu recours, pendant vingt siècles,

pour s’opposer à l’abolition de l’esclavage. D’une part, proclamait-on,

s’engager dans une telle direction serait catastrophique pour un régime éco-

nomique dont la stabilité devait être assurée à tout prix ; d’autre part, on

estimait utopique de croire que ces êtres horriblement grossiers et amoraux,

bref, infra-humains - après s’être demandé si les esclaves avaient une âme on

a voulu voir dans les criminels des monstres moraux -, pourraient jamais

s’intégrer dans notre société. À ce compte, pour ne citer ici qu’un exemple,

j'aimerais qu’on m’explique, pourquoi on n’hésite guère à investir si libé-

ralement dans la recherche sur le cancer et sur nombre d’autres maux qui

menacent notre santé et notre bien-être, alors qu’on continue de faire

montre d’une mesquinerie impitoyable, lorsqu’il est question de recherches

qui nous achemineraient vers une meilleure compréhension et une prise en

soin plus efficace de nos criminels. Certes, notre empathie à l’égard du

cancéreux n’est pas du tout la même que celle que l’on peut éprouver à

l’égard du criminel ! Pourtant, si, un jour, on décidait de venir à la rescousse

de ce dernier avec toutes les ressources dont on dispose, on aurait peut-être

tôt fait de constater qu’une approche rééducative compétente peut s’avérer

sensiblement moins onéreuse et moins aléatoire qu’on s’obsine à le préten-

dre. À cet égard, une observation plutôt pénible ne saurait être passée sous

silence. Même si elle s’applique à nombre d’initiatives qu’il serait facile de

repérer dans les archives de la criminologie, je n’en mentionnerai que deux,

plutôt récentes et qui me sont particulièrement familières. D’abord, ce n’est

sûrement pas un effet du hasard si quelques trop rares institutions dont

la réputation n’était plus à faire ont rapidement perdu un souffle innova-

teur, dont la recherche avait déjà permis d’entrevoir les répercussions pro-

metteuses, aussitôt que l’influence des premiers pionniers cessa d’être pré-

sente. Tout aussi révélatrice de cette insensibilité dont j’ai parlé plus haut,

à l’égard de la personne du criminel et de l’aide qu’on devrait lui apporter,

est l’attention par trop fugitive et superficielle qu’a suscité l’exceptionnel

travail de Yochelson et Samenow (1976, 1977). Comme on le sait, en s’ap-

puyant sur vingt années d’observation quotidienne du criminel, ces deux

chercheurs ont carrément opté pour une approche rééducative, visant à

modifier les attitudes profondes ou, si l’on veut, les orientations dynamiques

caracterielles qui sont à la racine du comportement dyssocial, et incitant à

une prise en main responsable d’un changement axé sur des valeurs morales

non équivoques. Avouons que, dans le contexte actuel, il faut une forte dose

de courage pour adopter une pareille position. Toutefois, ce courage est une

=

étincelle d’espoir qui n’est pas prête

a

s’éteindre, car on rencontre à peu

près partout des éducateurs soucieux de relever ce difficile défi et de se

donner la formation requise pour y parvenir !

Conscients d’œuvrer à contre-courant, ces éducateurs savent d’emblée

qu’ils sont porteurs, à leur manière, de ce message traditionnel qui, à chaque

époque, est reformulé et retransmis par des penseurs et des chercheurs en

qui on reconnaît sans peine les représentants authentiques des manifesta-

tions les plus élevées de notre culture. Je me contenterai de citer quelques

exemples choisis parmi nos contemporains. Tout d’abord, un philosophe,

comme Bemporad (1978), nous rappelle, avec autant de brillo que de pro-

fondeur, qu’en tout homme sommeille un artiste dont la créativité peut

s’exprimer en faisant de sa personne et de sa vie une œuvre unique, dont la

portée exemplaire s’avérera souvent déterminante pour certains de ceux qui

l’entourent ou de ceux qui le suivront. De son côté, un sociologue, comme

Sagan (1979), a su montrer comment, avec le progrès de la civilisation,

l’homme en arrive à prendre conscience que la primauté de l’amour sur

l’agressivité est enracinée dans sa nature même, et se trouve ainsi amené à

surmonter son ambivalence primitive, puis à découvrir que la justice est tout

autre chose que la vengeance et que la prise en soin de tous et chacun de ses

membres, si déchus, repoussants soient-ils, est pour une société une obliga-

tion primordiale à laquelle elle ne peut se dérober sans retomber sous l’em-

prise d’une barbarie originelle dont les vestiges subsistent encore chez elle.

Enfin, un psychiatre de l’envergure de Gaylin (1976) a su montrer avec une

aveuglante clarté la relation étroite qui existe entre la qualité de la vie

qu’une société prétend avoir atteinte et la qualité des soins qu’elle se pré-

occupe d’assurer à tous ceux de ses membres qui en ont manifestement

besoin. En voilà assez pour rassurer ceux qui, en dépit de toutes les incom-

préhensions et mesquineries que l’on sait, persistent à vouloir approfondir

leurs connaissances et à parfaire une approche qui leur permet déjà d’aider

efficacement bon nombre de jeunes délinquants qui, sans eux, ne pourraient

que désespérer de leur sort. Il importe qu’ils sachent que leur courageux

projet n’a rien d’utopique et s’inscrit dans une tradition humanitaire dont la

justification théologique, morale, philosophique, sociale et scientifique cons-

titue l’une des plus belles conquêtes de notre civilisation.

LA RÉÉDUCATION, UNIQUE ESPOIR DE

LIBÉRATION POUR LE CRIMINEL

Dès ses premiers démélés avec la justice, comme Yochelson et Samenow

(1977, p. 139) n’ont pas hésité à le lui rappeler, le jeune criminel se voit

confronté à trois options, pour lui aussi peu attrayante l’une que l’autre.

Tout d’abord, il pourrait envisager le suicide ; mais, même si pareille idée a

pu déjà lui traverser l’esprit, il n’éprouve habituellement aucune envie de

s’y complaire. Ce qu’il souhaiterait bien davantage serait de se sentir libre de

reprendre au plus tôt ses activités familières ; mais il sait que ce n’est pas

pour demain et que, s’il décide d’y revenir un jour, il risque de languir en

détention pendant de longues années de sa vie. Enfin, il entrevoit qu’il vau-

drait mieux renoncer à son existence aventureuse et s’efforcer de retrouver

l’estime des autres par un labeur productif et une conduite responsable ;

mais, à ses yeux, cela équivaut à se condamner lui-même à mener une vie

terne, où il se sentirait prisonnier d’une routine pas trop monotone et de

contraintes insupportables.

Evidemment, c’est de l’opportunité de se tourner vers ce troisième

choix qu’il importe de le convaincre, dès qu’une première arrestation nous

fournit l’occasion, tout comme à lui-même, de constater jusqu’à quel point

il se trouve engagé sur une pente dangereuse, qu’il se sent, depuis longtemps

déjà, impuissant à remonter par ses propres moyens. Si, parfois, il a pu

céder à la tentation de croire qu’une vraie libération consiste à s’affranchir

de toutes les contraintes : familiales, religieuses, morales, culturelles et

sociales, pour agir à sa guise et le lancer dans une poursuite effrénée du plai-

sir, il a tôt fait de s’apercevoir qu’il s’agit là d’un mirage illusoire. L’être

humain amoral est tout autant un mythe que l’être humain asexuel ! De

cela, nos sociétés contemporaines sont tout à fait conscientes. Elles, qui ne

se soucient pas outre mesure de voiler aux yeux des jeunes le spectacle d’une

immoralité partout présente, s’empressent de leur rappeler que sa tolérance

connaît des limites précises. Comme en témoignent leurs codes criminels,

elles se montrent particulièrement sévères à l’égard de certaines manifes-

tations d’immoralité qui menacent leur sécurité ou leur tranquilité ! Quant

à ceux qui osent braver l’autorité de la loi dans ce domaine, ils se voient

bientôt acculés, soit à s’enfuir d’un milieu où ils n’ont plus leur place, soit

à s’enfermer dans une clandestinité qui leur enlève à peu près tous les

moyens de s’assurer une honnête subsistance, soit à mener une existence de

bêtes fauves, tout à tour surveillées, traquées ou encagées.

Parler de libération à ces malheureux est un leurre. Il faut d’abord les

aider à comprendre qu’on ne peut réellement recouvrer sa liberté que le jour

où l’on devient capable de s’en servir à bon escient. A l’extérieur comme à

l’intérieur de la prison, un homme ne se sent libre que lorsqu’il a appris à

s’imposer une discipline qui ouvre l’accès aux joies de la créativité, laquelle

s’exprimera d’abord dans une transformation délibérée de sa personne, puis

dans une activité compétente et une conduite digne de confiance. Pareille

prise de conscience ne peut se produire sans exiger de notre part beaucoup

de compréhension et de doigté, si l’on veut qu’elle soit suffisamment lim-

pide et profonde pour éveiller, chez le criminel, le désir d’entreprendre un

persévérant effort pour se rééduquer en s’engageant, avec quelques éduca-

teurs, dans une relation de plus en plus humanisante. Je sais qu’à tous ceux

pour qui le contact intime avec le criminel présente très peu d’attrait, ce

cheminement, qui peut se prolonger pendant deux, trois ou quatre ans,

apparaît comme un gaspillage de temps et d’énergie. À leurs yeux, il serait

plus sûr, plus efficace, plus expéditif et plus économique de travailler à

mettre en place un système supposément étanche de prévention de la

délinquance, reposant sur un contrôle social plus vigilant et une restructu-

ration d’ensemble de notre vie communautaire. Dans cette perspective,

j’aimerais que l’on nous dise, d’abord, si un tel système peut être conciliable

avec la jouissance de libertés et de droits chèrement conquis et, ensuite

9

si on projette tout simplement d’ostraciser une fois pour toutes et d’aban-

donner à leur sort ceux que des troubles caractériels sérieux rendent incapa-

bles de s’adapter d’emblée aux exigences d’une ambiance aussi aseptique.

Rappelons-nous que si la médecine s’est révélée de plus en plus capable

de proposer des mesures préventives qui nous mettent aujourd’hui à l’abri

de maux qui ont longtemps décimé tous les groupements humains, c’est

en s’appuyant constamment sur l’expérience acquise dans le traitement des

malades. À vrai dire, la médecine ne peut devenir préventive que lorsqu’elle

a découvert le moyen de guérir. Pourquoi en irait-il autrement pour la crimi-

nologie ?

En effet, c’est en s’appuyant sur une approche rééducative systématique

et réfléchie qu’on en arrivera à comprendre comment le développement

d’un enfant peut dévier de la voie qui mène à l’acquisition d’une liberté res-

ponsable, seul moyen pour lui de se créer une personnalité à la mesure de

ses ressources et d’apporter à sa société une contribution appréciable, si

modeste qu’elle puisse paraître. Ici, on ne peut s’attendre à ce que j’entre-

prenne de décrire en détail les principales démarches de cette approche

rééducative. Je me contenterai simplement de noter que, en dépit de

contraintes très défavorables, celle-ci gagne chaque jour plus de consistance,

grâce à l’apport discret de cliniciens qui continuent d’étudier, d’observer

et d’accompagner le criminel à travers un dédale de procédures plus ou

moins aléatoires, qui l’acheminent vers une pseudo-libération, pour lui vide

de sens, parce qu’elle le replace dans une situation de plus en plus ambigüe

en l’obligeant à se tailler une place, à peu près seul, dans un monde où on

ne veut pas de lui. Tenant compte des énormes progrès accomplis récem-

ment dans la compréhension des processus cognitifs, ces cliniciens avertis

discernent sans peine les modalités caractéristiques du style de pensée

propre au délinquant et l’obligent à se regarder bien en face en le confron-

tant aux distorsions qui en dérivent. Dépouillé de son armure défensive et

du masque qui lui a si souvent servi à déguiser sous une assurance apparente

un désemparement qui menace de l’envahir, il ne se sent pas prêt pour

autant à envisager sans réticences un effort de transformation dont la réus-

site lui paraît très improbable. Cependant, il sait que sa prétendue invulné-

rabilité n’est qu’une puérile illusion, de plus en plus pénible à supporter à

mesure qu’il se rend compte que la clairvoyance des autres l’empéêche de re-

courir à des rationalisations rebattues sans se sentir ridicule et que la sincé-

rité de ceux qui se montrent disposés à l’aider dans une démarche d’auto-

rééducation qui lui permettrait de s’amender éveille en lui un trouble mélé

d’espoir, contre lequel il se cCroyait immunisé depuis longtemps.

A l’occasion de cette percée décisive qui ouvre l’accès à sa vie inté-

rieure, le délinquant se montre souvent intéressé à poursuivre un dialogue

qui fait appel à une collaboration sans compromis de sa part et à amorcer

une relation durable avec un éducateur en qui il découvre un compétence

certaine et une fermeté qui l’incitera à poursuivre sa démarche jusqu’à son

termne. Si ce dernier, préoccupé de relever le difficile défi de la rééducation,

a su se dégager des ornières de la routine, poursuivre sa formation profes-

sionnelle et s’interroger sur ses observations quotidiennes, il comprend tout

de suite la signification et l’importance de ce bouleversement inattendu. Il

y voit le résultat d’une illumination intérieure qui a fait resurgir dans la

conscience de celui à qui il s’adresse l’image horrifiante d’un passé vécu sous

le signe de la haine, du mensonge et du crime, avec la vivacité d’un éclair

qui, dans l’obscurité de la nuit, nous remet en présence de la réalité environ-

nante d’une façon si brutale qu’on ne peut plus retrouver le sommeil. C’est

évidemment le moment d’encourager un délinquant à donner son entière

adhésion à cette vision soudaine qui fait apparaître dans toute sa laideur

l’image du personnage odieusement insensible à la souffrance comme à

l’affection des autres qu’il voudrait n’avoir jamais été et qu’il ne voudrait

plus jamais être tout en ignorant encore ce qu’il est appelé à devenir.

Comme on peut s’y attendre, le délinquant est moins que tout autre

capable de tolérer longtemps l’angoisse qui le submerge dans un état d’hési-

tation. Le vertige s’empare vite de lui si un éducateur expérimenté n’est pas

là pour venir à son secours. Une rencontre compréhensive et rassurante

peut alors suffire pour ranimer une étincelle de confiance et l’inciter à opter

pour un courageux effort de rééducation personnelle plutôt que de gâcher

définitivement son avenir. Si l’occasion est ratée, le risque sera de plus en

plus grand, pour lui, de céder à la tentation du désespoir, et de s’engager

sans retour dans une carrière criminelle dont la durée est inévitablement très

aléatoire et dont le dénouement désastreux est souvent trop spectaculaire

pour n’avoir pas été obscurément souhaité et provoqué. Pour celui, au

contraire, qui décide de répondre aux avances d’un éducateur prét à l’ac-

compagner dans sa démarche, il faut reconnaître que le démarrage sera

plutôt pénible, car il ne tardera guère à découvrir que l’image subjective

qu’il s’était fabriquée de lui-même ne servait qu’à voiler les lacunes de son

développement et les inepties d’une puérile immaturité. À mesure que

s’effrite cette identité factice et fragile qui le contraint à vivre en marge

d’une société à laquelle il n’a rien à apporter, il perçoit de plus en plus

clairement toute la distance qui le sépare de ceux qui se sont préparés à

y remplir une fonction utile et à contribuer efficacement à son dévelop-

pement. Plus il se rend compte qu’il est ni moins robuste, ni moins intel-

ligent, ni moins doué que tous ceux de son âge, plus il a honte de découvrir

jusqu’à quel point il est malhabile, ignorant et démuni lorsque l’occasion se

présente de se joindre à une équipe sportive ou d’affronter un travail. Alors,

s’il lui arrive de se remémorer des façons de voir, de parler et de réagir qui

étaient encore les siennes, il y a à peine trois ou quatre mois, ou de rencon-

trer des anciens camarades incapables de soupçonner l’ampleur du change-

ment irréversible déjà amorcé dans son for intérieur, un fait lui saute aux

yeux avec toute la clarté de l’évidence : tous ceux qui se laissent attirer par

la délinquance ne sont, au départ, que des enfants ou des adolescents attar-

dés qui s’entétent à ne pas vouloir grandir. Certains, en effet, continuent de

se comporter en enfants agressifs et rageurs, chez qui la moindre frustration

évoque les amers désappointements d’un sevrage brutal et imposé sans les

compensations que l’amour maternel a l’habitude de prévoir et d’assurer.

Incapables de renoncer à une recherche effrénée du plaisir, ils en viennent

vite à décider de se procurer par la ruse ou par la force tout ce qu’on refuse

de leur accorder gratuitement. Quant aux autres, ils ressemblent à ces ado-

lescents révoltés et vindicatifs qui, à la maison, à l’école ou au travail, se

rebellent contre toute discipline. S’obstinant à voir dans les moindres

contraintes une violation de leur autonomie, ils font montre d’une indépen-

dance farouche, alors qu’ils n’essaient même pas d’apprendre à subvenir à

leurs besoins, estimant que leur entourage est obligé de leur fournir tout ce

qu’il faut pour satisfaire leurs désirs même les plus extravagants.

Quand la relation avec un éducateur a pu être adroitement et solide-

p

ment établie, grâce à

une approche graduelle, dont l’impact se traduit par

une prise de conscience de plus en plus explicite, le délinquant parvient, en

un temps relativement court, à se dépouiller d’un masque d’apparence inhu-

maine et à se montrer disposé à poursuivre le dialogue commencé, avec une

sincerité que tous ceux qui le connaissent peu et mal s’empresseront de

22

mettre en doute. En effet, si incroyable que cela puisse paraître, il est néces-

saire de le répéter une fois de plus : la résistance du délinquant à se révéler

tel qu’il est et à accepter de changer est beaucoup plus facile à ébranler que

celle qui empêche un trop grand nombre de nos concitoyens de lui accorder

une crédibilité indispensable à son relèvement et de croire à la possibilité

pour lui d’une réhabilitation durable. Bref, le véritable «dur» n’est pas tou-

jours celui auquel on pense ! Mais, si important soit-il, ce n’est pas le mo-

ment de s’appesantir sur ce point. Ici, il faut surtout signaler que la relation

entre le délinquant et son éducateur en arrive à un tournant qui débouche

sur la voie de la rééducation, au sens le plus précis ou, si l’on veut, le plus

professionnel du terme. En effet, pour se rendre compte de ses insuffisances

et de ses fourvoiements comme pour entrevoir ce qui l’attend au fond de

l’impasse où il s’est engagé, le délinquant n’a qu’à se référer à son expé-

rience, assombrie par une série de déboires et d’échecs peu rassurants. Mais

le fait de prendre de plus en plus clairement conscience de tout ce qui lui

manque encore ne lui fournit guère les moyens d’y suppléer. Aussi, est-ce

avec une confiance résolue qu’il décide très volontiers de mettre tous ses

espoirs dans une institution, comme il s’en trouve trop peu, hélas, qui

après l’avoir accueilli, se révèle en mesure de mettre à sa disposition d’énor-

mes ressources de compétence en vue de le seconder dans la reprise d’une

formation par trop compromise à bien des niveaux : physique, intellectuel,

social, moral et spirituel.

Jusqu’à présent, le seul éducateur qui comptait à ses yeux est celui qui

a su le soutenir à travers la crise qu’il vient de traverser. Mais, voilà qu’au

moment où il se voit à pied d’œuvre face à un projet de rééducation répon-

dant d’emblée à ses besoins, il en découvre plusieurs autres qui, dans son

esprit, commencent à faire figure de modèles dans des domaines où ses

lacunes lui paraissent trop manifestes pour qu’il ne souhaite pas les combler

au plus tôt. Aussi, s’inspirant des exemples qu’il a sous les yeux, il essaiera

de se forger une image idéale de sa personnalité, conforme à celle qu’il

ambitionne d’incarner un jour aux yeux de tous ceux de son entourage.

Heureux sera-t-il si, parmi ces éducateurs qu’il admire, il s’en trouve

quelques-uns qui ont su s’initier à une approche psychodynamique, indis-

pensable pour discerner au fur et à mesure qu’ils se manifestent les besoins

du délinquant et le guider efficacement au cours de sa rééducation, en assi-

milant d’abord à fond les travaux de certains pionniers comme Hartman

(1958, 1947, 1960), Jacobsan (1964) et Lederer (1964), par exemple.

Familiers avec tout ce qui, dans les expériences de la vie quotidienne, peut

affermir la structuration mouvante d’un appareil psychique encore rudimen-

taire, ces éducateurs s’emploient sans tarder à favoriser le dévoloppement

des fonctions positives du moi et du surmoi. Quant aux diverses compo-

santes de ce dynamisme, façonné au contact de la réalité concrète : système

sensori-moteur, conscience, imagination, mémoire, perception, affectivité,

etc., ils n’ignorent pas jusqu’à quel point leur articulation, chez le délin-

quant, peut se révéler précaire et inopérante. Ils n’ignorent pas non plus que

Le

e

pareille déficience entraîne fatalement un malencontreux retard dans l’émer-

genceet la maturation de la pensée abstraite, des processus logiques et de la rai-

son pratique. Retard qui exige de leur part une attention constante et déli-

cate, si on veut que la scolarisation reprenne au plus tôt son cours normal

et que la conduite présente une orientation cohérente au lieu de l’allure dé-

routante que peut lui donner à tous moments un agir aussi impulsif qu’im-

prévisible.

Si succinct soit-il, l’exposé qui précède suffit à laisser entrevoir l’am-

pleur de l’essor qu’a connu la rééducation en s’inspirant des quelques tra-

vaux mentionnés ci-dessus, même si ses praticiens les plus doués avaient

reçu une formation encore trop rudimentaire pour en saisir toute la portée

théorique et pratique. Ici, je tiens à rendre hommage à certains d’entre eux

qui, avec un acharnement admirable, ont su prendre tous les moyens à leur

disposition pour s’affranchir des limites dont ils devenaient de plus en plus

conscients. Bien plus, se rendant compte de l’immense cheminement pour-

suivi dans le prolongement d’un début marqué par des tentatives fascinantes

et des réussites notoires qui, comme a permis de le constater une recherche

de Landreville (1966), furent le résultat d’un effort englobant environ une

quinzaine d’années, ils entreprirent de tirer un meilleur parti au moins de

quelques études récentes, portant sur la genèse de l’individuation et de l’au-

tonomie, sur les états limites et le narcissisme. Ainsi, ils en arrivèrent à faire

montre d’une dextérité beaucoup plus grande dans leurs interventions au-

près de sujets dont la pensée globale et sans nuances oscille sans cesse entre

des pôles extrêmes, qu’une tendance persistante à la fragmentation oblige à

voir comme irréductiblement opposés l’un à l’autre. De même, ils se sen-

tirent de moins en moins désemparés devant les attitudes grandioses et l’ap-

parente insensibilité morale de nombre de délinquants, incapables de recon-

naître leurs errements de conduite sans avoir à affronter une totale dévalo-

risation de l’image qu’ils se font de leur personne, aussi longtemps que, pour

eux, faire le mal équivaut à être mauvais par nature, donc, irréversiblement.

Mais mon propos n’est nullement, ici, d’entreprendre une description

détaillée de l’approche que des éducateurs, capables de faire leur profit de

l’apport d’une observation clinique de plus en plus pénétrante, s’appliquent

à mettre au point, en dépit de contretemps imposés avec une évidente inten-

tion d’en suspendre ou d’en retarder la mise en application. Tout simple-

ment, j’ai tenu à faire mention de quelques points de repère qu’utilisent

dans leurs démarches des éducateurs devenus des cliniciens avertis pour

mieux attirer l’attention sur un fait évident. Dans toutes nos écoles, on a

compris depuis longtemps que ce serait une grossière maladresse d’introduire

dans une classe régulière un enfant, un adolescent ou même un adulte, dont

l’esprit n’a jamais été convenablement initié aux premiers rudiments de la

culture. Pendant une période suffisamment longuc, on le confie à des édu-

cateurs spécialisés, dont la tâche est de le hausser à un niveau fonctionnel

qui lui permettra dans la suite de rattraper les autres. Et, dans ce domaine

aussi, comme l’ont montré récemment Bettelheim et Zelan (1982), la

compétence clinique est une condition essentielle de l’efficacité du travail

pédagogique. Sans aucun doute, on devrait s’y prendre de la même manière

avec des sujets dont la volonté ne jouit encore que d’une autonomie élémen-

taire, aussi peu différenciée que celle d’un dynamisme instinctif. L’interven-

tion d’éducateurs spécialisés apparaîtra indispensable si on veut rendre ces

sujets capables de faire un usage de leur liberté qui se traduise par une mai-

trise responsable de leur conduite. De plus, il n’est pas inutile de rappeler ici

que, dans le cas du délinquant, l’éducateur doit souvent faire porter son

effort sur les deux plans à la fois. Négliger de le faire serait aussi déraison-

nable que de demander à quelqu’un qui sait à peine marcher de s’engager

dans une course à côté d’athlètes chevronnés.

LA COMPRÉHENSION ENVERS LE CRIMINEL

ET SES EXIGENCES

Les éducateurs ont appris depuis longtemps que leur vie professionnelle

les oblige à affronter l’un des plus graves problèmes de nos sociétés, en étant

sans cesse aux prises avec la sourde résistance et l’hypocrite dénigrement de

ceux qui détiennent le pouvoir de les réduire à l’impuissance. Ils savent aussi

que la méfiance à leur égard s’accroît à mesure que leur compétence, étayée

sur une information de plus en plus ample et sur une observation empirique

et clinique mieux assimilée, les rend capables de mettre en place une appro-

che théorique et technique qui promet d’être efficace à condition d’en res-

pecter les exigences. En effet, lorsqu’ils osent réclamer, pour assurer la

bonne marche de leur travail et le mener jusqu’à son terme, certains accom-

modements avec des normes administratives, souvent expédientes mais, en

soi, arbitraires, ils se voient tout de suite accusés d’être des retardataires in-

capables de s’adapter aux nouvelles façons d’envisager la réinsertion sociale

ou de violer les droits de la personne. Or, dans ce contexte, ceux qui parlent

sans cesse de réinsertion sociale ne pensent qu’à des mesures expéditives, qui

permettent de disposer du délinquant en répondant à ses besoins élémen-

taires, à la fois les plus immédiats et les plus accessoires, plutôt qu’en le pre-

nant lui-même en soin, comme personne, pour l’aider à devenir capable de

suffire par lui-même à ses propres besoins. Ainsi, en voulant naïivement

mettre la charrue avant les bœufs, on oublie qu’une rééducation suffisam-

ment avancée est la condition essentielle d’une réinsertion sociale réussie

qui, elle aussi, a des exigences précises, dont il faudra bien apprendre à tenir

compte, un jour, si on veut y répondre avec une sérieuse compétence profes-

sionnelle. Quant aux éducateurs expérimentés, qui entrevoient déjà claire-

ment les résultats concrets que permettrait d’atteindre progressivement le

recours à une approche rééducative, soucieuse de s’affiner constamment en

mettant à contribution les découvertes récentes de la recherche clinique

que poursuivent des psychologues dont l’attention est centrée sur la dyna-

mique du développement humain sous tous ses aspects, ils doivent se rappeler

que le moment n’est guère venu pour eux de renoncer à toutes initiatives

et de désespérer de l’avenir de la criminologie clinique. Tous les establish-

ments qui ont nié l’existence des microbes, mis en doute l’utilité de l’électro-

encéphalographie, ou freiné le plus longtemps possible le recours à la péni-

cilline, ont vite sombré dans un oubli honteux, alors que les noms de ceux à

qui nous devons toutes ces découvertes sont présents dans toutes nos mé-

moires et y resteront gravés à jamais.

Toutefois, comme l’a souligné Einstein : «La compétence dans les sci-

ences exactes n’est pas suffisante. Seuls la compréhension envers les hommes

et l’intérêt qu’on leur porte, peuvent rendre efficaces et bénéfiques toutes

activités scientifiques et industrielles». L’importance d’une telle remarque

apparaît plus évidente encore à ceux qui consacrent toutes leurs énergies au

développement des sciences de l’homme et aux applications qu’elles peuvent

trouver dans des situations dont l’enjeu n’est rien de moins que la qualité de

la vie pour de nombreux individus et pour la communauté dont ils font par-

tie. Il convient donc de s’attarder un peu à préciser la nature de cette

compréhension envers les hommes et de l’intérét qu’il faut être disposé à

leur porter, sans lesquels, chez des éducateurs qui s’engagent dans le domai-

ne de la rééducation des criminels, une certaine compétence théorique et

technique aura tôt fait de se révéler insuffisante et, surtout, inefficace.

Tout d’abord, on peut être assuré que le criminel n’accordera sa confi-

ance qu’à celui en qui il découvre une capacité d’empathie aussi totale qu’in-

conditionnelle. Pour saisir toute la portée de ce terme, aujourd’hui trop sou-

vent galvaudé, on ne saurait mieux faire que de se rappeler la remarque sui-

vante de Camus (1966, p. 39) : «Si les hommes ne peuvent pas se référer à

une valeur commune, reconnue par tous en chacun, alors l’homme est in-

compréhensible à l’homme». En effet, si aberrante que puisse paraître sa

conduite, le criminel tient par dessus tout à ce que l’on reconnaisse qu’il n’a

rien perdu de son identité humaine, bref, qu’il est resté un homme comme

tous les autres, c’est-à-dire capable de retrouver sa dignité et de se compor-

ter en être raisonnable. Certes, il n’est que trop conscient que, pdur en arri-

ver là, il a besoin d’aide ; mais rien ne le révolte davantage que de se sentir

abordé comme un monstre, un pervers, un fou, un sujet d’expérimentation

ou un robot à reconditionner. Même s’il lui arrive de reconnaître que sa

conduite peut à la rigueur justifier de telles perceptions de lui-même, d’ail-

leurs trop souvent étalées dans les journaux, il se sent tout de suite soulagé

et rassuré dès que nous nous adressons à lui avec la même courtoisie et le

même respect que nous témoignons spontanément à chacun de nos sembla-

bles. S’apercevant que nous ne le regardons pas comme quelqu’un qui nous

serait devenu étranger au point de n’avoir plus rien de commun avec nous,

nous ne pourrons qu’être étonnés de constater avec quelle facilité il essaiera

de se révéler tel qu’il se voit avec toutes ces haines et ses révoltes, avec tou-

tes ses misères et ses désespoirs, avec toutes ses méfiances et ses échecs. À

mesure qu’il se rend clairement compte que nous sommes prêts à lui tendre

la main, il manifeste son désir de poursuivre ce genre de dialogue, tout

26

nouveau pour lui, et d’établir avec nous une relation comme cela lui semble

possible «avec des gens qui ne sont pas comme tous les autres qu’il a connus

jusqu’alors» et qu’il ne s’attend pas à rencontrer au dehors, quand il lui arri-

vera de recouvrer sa liberté.

Mais l’éducateur expérimenté ne se méprend aucunement sur le carac-

tère naïf de cette attache naissante, souvent comparable à celle que déve-

loppe un enfant envers un parent, toujours prêt à fermer les yeux sur ses

frasques et à l’aimer au point de vouloir combler tous ses désirs. Maintenant

qu’il est devenu, pour celui qui l’a choisi pour être son guide, un ami compré-

hensif, loyal et sûr, en lui permettant de récupérer sa pleine identité humai-

ne, il sait combien celui-ci est loin encore d’entrevoir l’ampleur de la trans-

formation qu’exigera de sa part l’affirmation positive de cette identité de-

puis trop longtemps méconnue de lui et des autres. En obligeant peu à peu

son pupille à se rendre compte que les plus subtiles distorsions de sa pensée

n’échappent guère plus à sa perspicacité toujours en éveil que les déguise-

ments que lui suggèrent encore des mécanismes de défense bien rodés et,

surtout, que les tentatives de manipulation les plus adroites n’ont sur lui

aucune prise, il l’accule à reconnaître qu’il voit beaucoup plus clair en lui

que lui-même. D’abord désemparé par cette clairvoyance inattendue, il en

vient vite à deviner qu’elle est la manifestation d’une compétence qu’il ne

peut s’empêcher d’admirer et qui, en accroissant sa confiance en son edu-

cateur, l’incitera à collaborer de plus en plus étroitement avec lui au travail

de sa rééducation. Du même coup, tout cela nous amène à voir jusqu’à

quel point une telle compétence, étrangère à toute suffisance narcissique

qui en compromettrait l’approfondissement, peut, en devenant pour lui une

source de sécurité et de courage, s’avérer aussi indispensable à l’éducateur

que la capacité d’empathie dont elle doit être le prolongement naturel.

Mais, dans un tel contexte, à mesure que sa relation avec l’éducateur

prend une allure nettement plus engageante, le criminel qui aspire à se réé-

duquer la perçoit soudain comme hérissée de risques et de menaces, suscep-

tibles d’ébranler les belles résolutions qu’il vient de prendre. C’est que,

confronté à sa compétence professionnelle, qui lui était d’abord apparue

plutôt rassurante, il ne peut plus escamoter une contrainte douloureuse

celle de se voir tel qu’il est et de s’avouer démuni d’une compétence humai-

ne, regardée comme élémentaire par la plupart de ceux de son âge. Ainsi,

il découvre qu’il est insuffisamment équipé pour gagner sa subsistance, que

sa formation scolaire présente de sérieuses lacunes, que ses aventures sexuel-

les n’ont servi qu’à l’aveugler sur le sens profond de l’amour, que de nom-

breux avantages assurés par la société à ceux qui contribuent à son dévelop-

pement lui sont devenus en grande partie inaccessibles et, enfin, que les in-

cohérentes notions de valeurs morales et religieuses qui subsistent encore

dans certains recoins de sa mémoire n’ont d’autre pouvoir que celui d’évo-

quer l’image de certaines gens qu’il se sentirait fort peu à son aise de fré-

quenter. Atteré par l’abaissement vertigineux d’une estime de soi-même jadis

entretenue par les fantaisies grandioses que lui inspirait un narcissime puéril,

il craint que son éducateur le connaisse trop bien pour continuer de lui por-

ter le même intérêét et d’espérer en lui. À ce moment critique, il aura tout de

suite la tentation de fuguer s’il ne découvre pas d’emblée chez son éducateur

une capacité d’acceptation authentique et inconditionnelle. Par contre, s’il

ne peut en douter, il voit s’ouvrir devant lui une voie nouvelle, qui lui per-

met d’entrevoir la possibilité d’une réconciliation avec un entourage qui

n’attend que l’achèvement de sa rééducation pour l’accueillir. Plus que ja-

mais il a besoin de cette acceptation patiente, qui n’exige pas de sa part un

changement instantané et miraculeux mais lui accorde tout le loisir requis

pour affronter l’apprentissage inévitablement houleux qui, à travers une

série de succès et d’échec, aboutira à l’acquisition de nouvelles habitudes

de conduite, révélatrices d’un radical changement d’attitude à l’égard des

exigences de la morale. Evidemment, la capacité d’acceptation qui entre

ici en ligne de compte n’a rien de commun avec la complaisance inquiète

ou naïve de l’éducateur novice. En elle, on reconnaît la marque d’un édu-

cateur honnête et sincère qui cherche sans dépit à s’améliorer lui-même

pour mieux répondre aux exigences de son travail professionnel et est

devenu profondément conscient de tout ce qu’un tel cheminement inté-

rieur suppose d’effort, d’humilité et de persévérance.

À la suite de ce qui vient d’être dit, on comprendra sans peine que

j’essaie d’attirer l’attention sur une dernière attitude, elle aussi particu-

lièrement importante à acquérir et à développer, pour celui qui s’intér-

resse à la rééducation de sujets aussi fortement envoûtés par un sentiment

de dévalorisation quasi irrémédiable que le sont la plupart de nos criminels.

En effet, l’éducateur qui s’engage dans cette voie doit vite se révéler un

dépisteur et un éveilleur de talents, de capacités, d’aptitudes et de dispo-

sitions, souvent difficiles à discerner sous le voile d’indifférence inculte

qui les empêche de se manifester. Quiconque sait établir un contact assez

intime et confiant avec des groupes de détenus ne manquera pas de décou-

vrir chez eux des ressources qui leur permettraient de poursuivre avec un

succès, parfois hors de l’ordinaire, des études qui leur ouvriraient l’accès à

une créativité ou à un rendement dont la société aurait avantage à profiter.

C’est aux éducateurs qui les accompagnent qu’il appartient de les rendre

conscients et de les convaincre de la qualité des dons qu’ils portent en eux-

mêmes et de leur inspirer le goût de les faire fructifier. Certes, ce n’est pas

là une tâche facile ; mais on imagine sans peine l’intensité de la surprise

joyeuse qui envahit l’esprit de celui qui est confronté à une telle révéla-

tion alors qu’il se croyait radicalement incapable de tout ! On peut être

assuré que cette expérience inoubliable imprimera un dynamisme nouveau

à un effort de rééducation déjà bien amorcé, mais dorénavant alimenté et

soutenu par la perspective d’un progrès rapide et riche de promesses de plus en

plus concrètes. En effet, il est facile de deviner toute la signification que peut

prendre pour un homme avili et démoralisé le fait de s’entendre juger très

positivement, peut-être pour la première fois de sa vie, par quelqu’un qu’il

sait compétent et qu’il admire. Du coup, il voit s’ouvrir devant lui une porte

qui laisse entrevoir un avenir à sa mesure et qu’il peut ambitionner d’atteindre.

En guise de conclusion à cet exposé, je voudrais raire partager à ceux

qui auront eu la patience de le lire jusqu’au bout, un espoir fidèlement

entretenu tout au long des trente et quelques années que j’ai consacrées à la

recherche en criminologie clinique. Pour cela, je me contenterai de reposer,

ici, deux questions fondamentales, auxquelles on hésite encore à donner

une réponse vraiment en accord avec notre connaissance plus approfondie

de la psychologie du criminel.

La première est celle qu’a formulée, dès 1963, dans ses Hamlyn

Lectures, Barba a Wootton (1981, p. 37), spécialiste des sciences sociales et

membre de la miagistrature, à savoir : lorsqu’il s’agit, pour lui, de décider du

sort d’un criminel, quel juge peut éviter de se demander si le but qu’il a en

vue est simplement de punir un coupable ou de l’amener à ne plus récidi-

ver ? Les récentes tentatives de décriminilisation et de déjudiciarisation à

l’endroit de certaines offenses, hier encore très sévèrement punies, seraient-

elles un indice que les responsables de l’administration de la justice se prépa-

rent à donner à celle-ci une orientation préventive de plus en plus positive et

destinée

p

4

à pré

valoir sur une orientation traditionnelle exclusivement puni-

tive ?

La seconde question, quoique plus ou moins reliée à la première, pour-

rait trouver sa solution bien avant elle. La voici : quand en viendra-t-on à

voir dans le criminel un être humain en détresse, qui a le besoin et le droit

qu’on s’occupe sérieusement de lui ? En termes plus précis : quand cessera-

t-on de voir dans les centres d’accueil et les centres de détention de simples

centres de dépannage - d’abord et avant tout au service de divers organismes

sociaux ou judiciaires, pour voir en eux des institutions au service de ceux

qu’on leur confie et vraiment équipées pour les soutenir efficacement dans

un processus de rééducation qui les acheminera vers une réinsertion sociale

beaucoup moins hasardeuse ?

A ces deux questions fondamentales, j’ai tenté d’apporter ici des élé-

ments de réponse en m’appuyant sur une réflexion étayée sur une obser-

vation clinique de longue haleine. Sans doute, à partir de là quelques

jeunes chercheurs, qui choisiront de travailler en collaboration étroite avec

des éducateurs expérimentés et studieux, réussiront à rendre inévitable la

mise en place d’une approche encore plus élaborée et plus complète, donc

plus rigoureuse et plus humaine à la fois.

RÉFÉRENCES

Bemporad, Jack (1978). —From Biology to Spirit : The Artistry of Human

Life. The Journal of Medicine and Philosophy. Vol. 3, 74-87.

Bettelheim, Bruno and Zelan, Karen (1982). — On Learning to Read. New

York : Alfred A Knopf.

Bruckberger, R. -L. (1973). Lettre ouverte à Jésus-Christ. Paris : Éditions

Albin Michel.

Camus, Alber (1966). L’homme révolté. Paris : Gallimard.

Clark, Kenneth (1969). Civilisation. A Personal View. London : British

Broadcasting Corporation.

Gaylin, Willard (1976). Caring. New York : Alfred A. Knopf.

Hartman, Heinz (1958). Ego Psychology and the Problem of Adaptation.

New York : International Universities Press. (Translated by David

Rapaport)

Hartman, Heinz (1947). On Rational and Irrational Action. Psychoanalysis

and the Social Science. Vol. 1, 359-392.

Hartman, Heinz (1960). Psychoanalysis and Moral Values. New York : Inter-

national Universities Press.

Jacobson, Edith (1964). The Self and the Object World. New York : Inter-

national Universities Press.

Kanatsoulis, Athanase (1963). Le secret d’Hippocrate. Paris : René Julliard.

Landreville, Pierre (1966). Etude ”follow-up” d’un échantillon de garçons

confiés à un centre de rééducation de la région de Montréal. (Thèse

inédite présentée au Département de criminologie de l’Université de

Montréal)

Lederer, Wolgang (1964). Dragons, Delinquents, and Destiny. Psychological

Issues. Vol. IV, No. 3. New York : International Universities Press.

Pearce, Edward (1983). Walls Do a Prison Make… Encounter, No. 354

(April), 44-47.

Sagan, Eli (1979). The Lust to Annihilate : A Psychoanalytic Study of

Violence in Ancient Greek Culture. New York : Psychochistory Press,

Publishers.

Wootton, Barbara (1981). Crime and the Criminal Law. Reflections of a

Magistrate and Social Scientists. London : Steven and Sons. (The

Hamlyn Lectures, 1963. Second Edition)

Yochelson, Samuel and Samenow, Stanton E. (1976). The Criminal Person-

ality. À Profile for Change. New York : Jason Aronson.

Yochelson, Samuel and Samenow, Stanton E. (1977). The Criminal Person-

ality. The change Process. New York : Jason Aronson.

— 30—

TOWARDS A RATIONAL AND EFFECTIVE

CRIMINAL JUSTICE PROCESS:

Technological change and rationality - uses and abuses

Bo Svensson,

Director General of the National Council for Crime Prevention

INTRODUCTION

Rationalization often conveys the thought of the introduction of

modern technology. The judicial system has escaped technological develop-

ment no more than other public institutions. From the Mesopotamian judg-

ments in cuneiform characters to today’s transcripts of Swedish judgements

in computerized word processors there is a fairly straight line of develop-

ment. Ît is a widely held opinion that in the next few years office work will

undergo a virtually revolutionary change through the growth of computer-

ization. Obviously this will affect the work also in, for example, court secre-

tariats.

But it is not this type of technological change that occupies the focus

of attention when, in Orwell°s fateful year 1984, we discuss the possibilities

and limitations of technology in criminal policy in general and criminal pro-

cedure in particular. Our attention is directed instead to innovations such as

TV surveillance of streets and squares, random alcometer tests of car-drivers,

linking of data registers to compare actual living standards with declared

income and capital, and other such new methods which are assumed to have

a crime prevention effect by raising the risk of detection of some or all

crimes. There is discussion also of lie detectors, truth serum, secret wire-

tapping and other such methods involving encroachment on personal pri-

vacy which public authorities can use for investigating crime. À third group

of such questions relates, for example, to the use of computerized criminal

records and other information systems for choice of sanction and award of

punishment, collection of fines through computerized attachment of wages

and other assets, supervision of conditionally sentenced or conditionally

released persons by radio (pocket receivers), and other modern technology

for determining and enforcing sanctions for crime.

In the sequel, therefore, I shall confine my remarks to how modern

technology can be used ari abused for 1) the prevention, 2) investigation

and 3) determination and enforcement of sanctions for crime. I am nat-

urally aware that criminal investigation and the determination of sanctions

take place on general preventive grounds, among others, and thus are also

aimed at the prevention of crime. Under 1), however, I shall merely deal

with measures taken before any crime has been committed. The action of

the police and other authorities for detecting, investigating and punishing

crime will be dealt with in the subsequent sections.

1 . Preventive measures

Cohen & Felson, as is kKnown, state that, for a traditional crime to take

place, three things are required: a potential criminal, a vulnerable victim,

and the absence of a third person who can put a stop to a criminal act.

There has been much research about why people commit crime or,

rather, why some people commit more crimes than others. In recent years

there has also been an increasing interest in the question why some persons

more often than others become victims of crime. The causes are usually clas-

sified under the headings of heredity and environment. Whereas there is

agreement that both heredity and environment have a significance for cri-

minal behaviour, opinions differ on the question how much of crime should

be ascribed to the one or the other group of factors. After the frightful

human genetic experiments in Hitler Germany, the interest of the interwar

period in hereditary factors has been succeeded by a virtual tabooing of the

entire subject. In Sweden, at least, environmental factors are now ascribed

an altogether decisive significance, whereas I have understood that in the

USA a biosocial school has arisen which again emphasizes the role of here-

dity in criminality.

There are today few fields that are undergoing so rapid a development

as eugenics. The hybrid DNA technique, the possibility of producing artifi-

cial genes and the sequencing which permits charting of the building blocks

in the individual gene provide new means of intervention in different bio-

logical systems and of steering them according to our desires. The perspec-

tives that this opens up are dizzying. Aldons Huxley describes in ’’Brave

New World”’ how an obedient working class is produced by cloning, i.e. the

production of a large number of individuals with identical hereditary charac-

ters by artificial cell-division. Ira Levin does the opposite and in ’’The Boys

from Brazil’’ lets the Nazi doctor Mengele produce 94 genetically identical

copies of Adolf Hitler. Cloning is used today in domestic animal breeding

and there are now no technical obstacles to its use also on human cells.

I wish immediately to say that I do not count upon the new eugenics

being used directly for criminal policy purposes. It will, however, be used

for other reasons and may then have sideffects on criminal olicy. I

expect, for example, that increasing advances in foetal diagnosis will lead to

the detection of more abnormal sets of chromosomes at an early stage. As is

known, the abnormal set of sex chromosomes xyy is overrepresented among

male criminals. I do not believe that any state will prescribe compulsory

abortion on the detection of such a set of chromosomes. On the other hand

] fear that a state in which ethnical scruples are of less import than those of

human genetics may prescribe a duty of notification by the examining

physician in combination with the pregnant woman°s right of abortion. I

imagine that virtually all women who, in a state with such unethical legis-

lation, are informed that the expected child has this set of chromosomes

will ’’voluntarily’” choose abortion. The relation between xyy constitution

and criminality is, however, so weak as to lack any significance for criminal

policy. One can thus not count on measurable effects on the level of crime

owing to the greater rarity in future of such abnormal sets of chromosomes.

And the same would apply to the majority of or all sets of chromosomes

that in the future may be found to have a relation with criminal conduct.

Foetal diagnosis is only one of many medical methods which may lead

to observations of a greater risk of committing crime or becoming the victim

of crime. In Sweden the relation between alcohol and violence is well

documented. In as many as 80 % of the crimes of violence dealt with by

ordinary courts of law in our country the offender or the victim or both are

intoxicated. Alcoholies thus run a higher risk than the average both of com-

mitting and becoming the victims of crime. With certain liver tests we can

now determine with high probability whether a person has alcohol prob-

lems. Through urine tests, and in the near future probably also saliva tests,

we can also detect whether a person has recently used different kinds of

drugs. Heavy drug abuse, as is known, often goes hand in hand with a cri-

minal life-style.

Ît is no utopian thought that observations of these kinds may constitute

the basis for therapeutic measures that are given also a criminal policy mo-

tivation. In the Swedish penal system routine urine checks are made today

on the inmates of certain prisons and drug-positive results warrant decisions

to withdraw leave and other measures. It has already happened in Sweden

that all pupils in an ordinary school have undergone urine tests in order to

trace cannabis abusers. The action was criticized and is not likely to be

repeated. There are, however, recurrent demands in the Swedish debate

that a young person suspected by the authorities of drug abuse should be

enabled to free himself of the suspicion by submitting a urine sample -

and if he does not do so, they may assume that he is an addict and take

action against him!

Sweden has a long tradition of compulsory treatment of alcoholics and

present legislation allows also for compulsory treatment of drug addicts.

What in recent years has held back a wider application of this legislation is,

among other reasons, that the results of treatment have been rather modest.

In Norway antibus capsules are now operated into the body of alcoholics

who so request in order to overcome their dependence. In Sweden research

is being conducted into the possibility, with other compounds, of blocking

the experience of pleasure accompanying the intake of alcohol or drugs.

Should it prove possible through compulsory medication with such com-

pounds to remove dependence on alcohol or drugs in a comparatively

simple way, it may be difficult for the authorities to abstain from this course.

But ! am not particularly optimistic about the possibility of successful

compulsory treatment. As much as one-third of the results of medical

treatment are ascribed to the placebo effect. This means, quite simply, that

up to one-third of all patients treated medically for a certain ailment be-

come better even if they only receive sugar pills. The placebo effect ensues

if the patient believes in the treatment. If he is distrustful, it does not occur.

Instead a nocebo effect may even ensue, in that patents who lack confi-

dence in their physician, for example, do not react at all to medicines which

are normally effective against that particular ailment. This may happen, for

instance, with an alcoholic who is more or less compulsorily induced to take

antabus but nevertheless continues to drink. An important contributory

reason why the penal authorities in most countries in the western world

have difficulty in attaining positive results of treatment is in all probability

that, owing to the prior attitude of their clients to the treatment, they can-

not count on any placebo effects.

Man is thus extremely complicated and cannot be simply guided in a

direction he does not wish to go. At the end of the fifties there was much

talk of subliminal advertising, implying that roughly every 20th frame in a

film or on TV contains an advertising message. The advertisement passes so

quickly that the viewer has not time to become conscious of what is hap-

pening, but the message is stored in his uncounscious and influences his

shopping habits. If people could be so simply manipulated, crime would be

no problem. The authorities could then insert morality-reinforeing subli-

minal messages in films and TV programmes and people would thus be

induced to abstain from crime.

Experience, however, hardly lends credit to the idea that obedience to

the law can be substantially raised through new technology and new media.

The internalization of norms that is necessary to create obedience to the

law still appears to take place best in the family and the immediate circle of

comrades and, in general, by direct influence from one person to another.

Pictures from the war between Iraq and Iran of soldiers walking out into the

minefields for their Moslem faith indicate, rather, that the olden-day re-

ligious methods of indoctrination are, after all, as effective as today’s secu-

larized mass media. This is suggested also by the widespread criticism of

today’s school system that is heard in many countries. There have been no

epoch-making educational trimphs, nor are such expected. Teaching with

computers, TV and other modern technology can merely supplement the

traditional teacher.

From what I have said it will be apparent that I am sceptical about the

thought that with new technology we can create a new generation of people

with characteristics that make them less prone to and less vulnerable to

crime than earlier generation.

In Sweden, therefore, we say —on, I believe, good grounds— that it is

opportunity that makes the thief and we mean thereby that under

unfavourable circumstances practically all may render themselves guilty of

crime. What such circumstances are, of course, varies extremely, but it mani-

festly has a great importance that the offender is strongly motivated. In

developing countries one of the chief measures against larceny would there-

fore seem to be to achieve economic growth which drives back the pure

criminality originating in need.

In more developed countries, however, this concept appears to be less

successful. The fact seems to be, instead, that when welfare has reached a

certain level, further economic growth leads to increased larceny. This may

be illustrated by the trend in Sweden.

Figure 1 : Prosecution for larceny offences 1831-1980, 5-years means.

Logarithmic scale.

Source: von Hofer & Tham: Stôld i Sverige 1831-1980 (Theft in Sweden

Year 1831-1980)

Manifestly the trend after the first world war must be related to great

social changes, resulting above all in an increased supply of goods for private

consumption. Since then the number of objects desirable for theft quite

U

U

simply increased enormously. With better technology many of them have

also become smaller and easier to steal - the transistorization of radio and

TV sets is an example, the chip in the computer industry another.

But the fact that there is more to steal in itself weakens the social con-

trol in a broad sense. Greater availability reduces the social value of the

goods as it is so much easier to replace them. The supervision and protective

arrangements diminish, as do the social reactions to theft. The control and

the opportunity structure hava a mutual influence on one another.

If we are to indicate some circumstances that in -particular are con-

sidered to have weakened the social control, the first should be urban-

ization, as a result of which the majority of people today live a somewhat

anonymous existence and, less than in rural areas, can count on neighbours

and others in the vicinity intervening if they are exposed to crime.

Welfare has been achieved, among other means, by far-reaching ration-

alisation, through which various staff categories have been reduced or

entirely disappeared. The perhaps most manifest example of this is in the

self-service shops, which has undoubtedly contributed to the increase of

shop-lifting. But janitors and caretakers are also a group which has wholly

or partly disappeared, which undoubtedly explains part of the increased

number of burglaries.

There is also a trend in other respects that to a greater extent people

leave their possessions unsupervised. Today more than 70 % of all adult

women in Sweden have work outside the home. When single persons or both

husband and wife work outside the home, the home stands empty and

vulnerable to burglary all day long. The same applies to the innumerable

secondary residences in our country, which remain unsupervised perhaps

300 days a year. Another good example is the more than 3 million cars

today, the owners of which must often park withou special supervision. The

number of car thefts has also increased in pace with the growth in number

of cars.

This trend, which I think is common to large parts of the western

world, has been met by more police among other means. But the police

force is expensive. This creates scope for various forms of security enter-

prise, which are sometimes reminiscent of private police or private armies.

That is a trend which is causing anxiety in many countries. An expert group

of the Council of Europe is at present studying the role of security enter-

prises in crime prevention.

But the security enterprises, too, are staff-intensive and thus entail

heavy costs. There is therefore a constant development of technical devices

to replace human beings in crime prevention. Private persons acquire pepper

spray, alarm systems and 7-lever, tumbler locks as protection against assault

and burglary. Banks use armoured cars, TV cameras, time locks, colour

ampoules for staining bank-notes, among other countermeasures against

robbery. Metal detectors and X-ray equipment are installed on airfields as

—— 36 __

protection against hijacking of aircraft. Not only at nuclear power stations

and military installations but also at many ordinary companies and govern-

ment agencies there is today a rigorous entry control, including identity

card coupled to a computer.

Especially in the automobile field there would seem to be great means

for prevention of crime through the use of technical devices. Compulsory

steering-wheel locks reduced the number of car thefts in West Germany at

one go by over 60 %. In Sweden it is even punishable to leave the iguition

key in the compilsory steering-wheel lock when a car is parked in a public

place. Exceeding the speed limit can be prevented through the design of the

vehicle or a road hump. More utopian perhaps is a compulsory alcometer in

every car which must show an alcohol-negative result, otherwise the engine

does not start. Such equipment could prevent drunken driving, which in

Sweden is the cause of about one-third of all sentences to imprisonment.

The technology is still far from being perfected. By way of example,

in Sweden 95 % of all alarms which go to the police and cause turn-out

prove to be false. But it is not the present technical defects that are the

main ground for anxiety. It is rather the notion that private persons and

business enterprises to a growing extent will barricade themselves behind

walls, locks, TV surveillance cameras and hold-up alarm, in constant fear of

being exposed to crime, that is repugnant. There are today in Stockholm

goldsmiths’ shops which have their door looked also during business hours

and open only to persons who make a favourable impression. It is my hope

that such business methods will not spread.

At the same time it must be said that so-called target-hardening, i.e.

measures to render crime difficult or impossible, need not entail a loss of

quality of life. The new Bank of Sweden building in Stockholm is construc-

ted for security but is considered to be one of the architecturally most

interesting buildings erected in Sweden during the entire postwar period.

Another positive example to my minds is the street lighting in certain parts

of Stockholm. Special fuses have been installed in the lamp-posts. Young

vandals who kick a lamp-post notice that the light immediately goes out

and, it is hoped, refrain from more serious action. After a few minutes,

however, the light comes on again and no damage has been done.

It is, of course, rare that technical preventive measures are 100 per cent

effective. If the criminal has sufficient time, most obstacles can be forced.

But the time factor is important for the risk of detection. Detection leads,

at the best, to intervention at so early a stage that a crime has not yet been

committed. More commonly, however, the time for the attempt has been

passed and detection may then lead to prosecution and punishment. By

way of example, modern auditing of computerized accounting is done with

the aid of special computer programmes containing, among other details,

a random sample of bookkeeping items which are subjected to a closer

analysis may, of course, lead to detection of embezzlement, for example,

Wwhich is then reported to the police and punished. These questions I shall,

however, deal with in the next section, which will be concerned with the

actions of public authorities for detection and investigation of crime.

2. Detection and investigation

The actions of public authorities for detection of crime take place on

different levels. The first level consists of a general collection of data, pri-

marily for other purposes than the prevention of crime. Through the

national health insurance copies of all medical receipts are kept at the insu-

rance offices and can be used to check that doctors really report all income

to the tax authorities. It is, of course, a very delicate matter from the

personal privacy aspect that information gathered for a particular purpose

should be used for an entirely different purpose. It caused much debate, for

example, when the Swedish authorities started to use computerized data to

compare the particulars submitted by individuals about their income in

order to obtain, respectively, health insurance and housing grants. It was

found that some had reported a higher income for health insurance than for

housing grants and this resulted in many prosecutions for fraud.

There are today innumerable computerized files. Every person in

Sweden is said to be listed in more than 100 files. At the same time we have

something that must be unique in the world, an identity number for every

person in the country. This provides enormous means for simple linking of

the various files for purposes which the declarant never thought of. For

example the insurance companies’ files of insured persons possessing luxury

yachts can be concurrently processed with those persons’ own declarations

of their capital to the tax authorities. Or individuals’ interest figures in the

annual income tax return can be checked against the banks’ files of their

borrowing accounts. So we have a very lively debate in Sweden on personal

privacy issues.

On the next level the authorities —particularly the police— collect data

for the direct purpose of detecting crime.

This also takes place on several planes. To get to grips with drug and

other organized criminality and with qualified economic crime the police

conduct intelligence operations. This entails the collection of information

of the most varying kinds which may lead to a suspicion of crime. If the

intelligence gives reason to assume that a given person or group of persons

is engaging, for example in drug traffic, the police initiate search, which may

entail surveillance of the person’s residence. If this gives reason to assume

that a crime has been committed, a pre-judicial inquiry is held which com-

prises, among other factors, an interrogation of the suspected persons and

witnesses.

The question of unconventional methods in police search operations

has come into the limelight in recent times. By unconventional is meant,

among other things, provocation, infiltration, spying, disinformation, secret

wire-tapping and TV surveillance.

The Swedish parliament is at present discussing the principles for such

unconventional search methods. À first principle is that the police should

never commit a criminal act in order to inquire into or expose a crime.

Another is that the police should never provoke or otherwise induce a

person to enter into criminal activity. À third is that they should never, on

grounds of search, fail to take stipulated measures against crime or against a

person suspected of crime. In general, furthermore, the method of search

should be defensible have regard to its purpose and other circumstances.

The damage or risk of damage must be weighed against the gravity of the

crime and the advantages from the point of view of proof. If these principles

are followed it should be possible to master the risks of, for example,

uninhibited use of modern wire-tapping apparatus and optical equipment,

e.g. infrared light binoculars and infrared light cameras.

As example of how modern technology is used in police search opera-

tions it may be mentioned that in Sweden they make random alcometer

tests on motor vehicle drivers. If the test shows that the driver is under the

influence of alcohol to an excessive extent he is subjected to a blood test.

If the blood analysis shows more than 0,5 % alcohol in the blood, he is

punished. An investigation is at present being made as to whether the pro-

cedure can be simplified by eliminating the blood test and making the

alcometer test decisive, as is done, for instance, in Australia.

In Sweden most dealings in drugs are criminal offences, but pure con-

sumption has so far been exempt from punishment. The matter is, however,

the subject of intense debate. If consumption is criminalized, as it is in

many other countries, one can of course use urine tests, for instance, for

detecting illicit drug consumption.

If the search leads to the assumption that a crime has been committed,

the pre-judicial inquiry proper starts. There is often from the outset a sus-

pect who is subjected to interrogation. Certain foreign judicial systems use,

for instance, hypnosis and lie detectors to decide whether the person is tel-

ling the truth. In Sweden a suspect is not obliged to cooperate with the

police and such equipment is not used. Though not closely conversant with

the matter I doubt nevertheless whether it is possible in this way to dis-

tinguish between true and false statements with a sufficient degree of cer-

tainly. The same applies to ’’truth serum” and other utopian methods that

occur in science fiction. At their best they are likely to be as effective as

olden-day torture, but to be marred by the same drawbacks, one being that,

to be left in peace, the suspect ’’confesses’’ all that the interrogating officer

wishes to hear.

Criminology has advanced rapidly in the past hundred years and finger-

prints, chemical analyses of different kinds, analysis of handwriting, etc,

— 39 —

are among the standard forms of evidence in most judicial systems. The

development may be expected to continue at a rapid rate. But it is my

impression, from the conditions in Sweden among other countries, that

technical evidence —apart from drunken driving cases— plays a comparati-

vely minor role. The immemorial forms of evidence, in the shape of the

suspect’s and withnesses’ oral statements about what has occurred, pre-

dominate and will probably always predominate in cases of traditional

crimes of violence and theft. And it is these crimes that are the main con-

cern of the sections of the judicial system that deal with criminal cases.

The pre-judicial inquiry usually terminates in Sweden by the police

handing over the documents to a prosecutor for action if he deems this to

be warrented. If the prosecutor can count upon conviction, it is his duty to

bring an action before an ordinary court of law. The court examines

whether the defendant has committed the asserted crime and in such case

sentences him to punishment. But this brings me to the next chapter,

namely the use of modern technology in the determination and enforce-

ment of sanctions for crime.

3. Sanctions for crime

The question what technical equipment can be used for determining

and enforcing sanctions for crime cannot be answered without first stating

the object of punishment. This object is described in different ways in dif-

ferent judicial systems. My views are as follows.

When the legislator binds a punishment to a particular act, he does so

in order to mark that the act is undesirable and often, too, morally repre-

hensible. The reason for criminalization is the hope that the threat of

punishment will be so effective that no one commits the forbidden act. The

penal regulations are therefore given a repressive form, with scales of penal-

ties, and particularly maximal penalties, which shall have a deterrent effect

and are thus often very severe. At the moment of legislation there is still no

transgressor to take into account. I do not therefore believe that anyone can

question that the provisions of the Penal Code and the special forms of legis-

lation outside the Penal Code governing particular crimes have a purely

general preventive purpose.

Experience, however, shows that not even a threat of the severest penal:

ty entiraly deters from crime. In actual fact, in most parts of the world, a

very large number of acts have been criminalized, not least in the traffic

sector, which the public very frequently commit. I consider it probable that

every healthy inhabitant of Sweden out of the petticoat age infringes at

least one penal regulation every week and that the number of transgressions

—of which most, of course, are trifling— can therefore be counted in some

hundreds of millions a year.

Happily, we may perhaps say, only a fraction of all this comes to the

knowledge of the authorities. In 1982 the Swedish police recorded 980.000

— 40 —

crimes against the Penal Code and special forms of legislation outside the

Penal Code, in addition to which there was an unknown number of offences

involving breach-of-regulations fines or summary fines by prosecutors. But

these known crimes must be dealt with by authorities in such a way that the

legislative threat of punishment appears credible. Legislation and the admi-

nistration of justice lie on different planes, but in my opinion the adminis-

tration of justice cannot be understood otherwise than in the light of the

general preventive objectives of the penal legislation.

In theory severe punishment has a greater deterrent effect than mild.

But how much and how severely society needs to punish in practice, in

order to maintain general obedience to the law, nobody knows. There

appear to be no simple relations between the level of crime and the level of

punishment. It is a task for every government and parliament to consider

whether punishment is on an appropriate level having regard to the con-

ditions in the country. But there is an ethical limit for the freedom of

action of government and parliament in this respect. General preventive con-

siderations must not lead to disproportionately severe punishments. The

judicial system must function so as to appear just, which presupposes,

among other things, a reasonable relation between crime and punishment

in the individual case.

The judicial system would also readily fall into an impossible situation

if it was forced to adjudge and enforce penalties on a scale designed to have

as deterrent an effect as possible. In order to be able to combine repressive

scales of penalties with a fair, humane and economical administration of

justice, therefore, many penal systems have postulated other objects for the

administration of justice than the maintenance of general obedience to the

law. The Swedish Penal Code, for example, prescribes that, in the choice of

sanction, the court, while observing what is required for maintenance of

general obedience to the law, shall pay special consideration to the fact that

the sanction shall be calculated to promote the offender’s rehabilitation in

society.

By stating in this way that the administration of justice has not only a

general preventive purpose the means are provided to let many crimes,

which according to the penal regulation can only be atoned for by imprison-

ment, have instead as consequence, for example, a decision not to pro-

secute, conditional sentence, probation or surrender for special care.

Such safety valves in the judicial system are in fact necessary in view

of the numerous crimes consequent upon the extensive criminalization. The

flow of cases through the judicial apparatus in Sweden in 1982 may il-

lustrate next page.

It is a long time since the Swedish officially abandoned the goal that

every transgression of the law should be visited with punishment. When the

flow of criminal cases threatens to break down the system, one turns off the

tap and throttles the flow, e.g. by extending the means for police and

Figure 2: The flow cases through the judicial apparatus in 1982

Reported Crimes: 980.000

Uncleared-up crimes

580.000

Cleared-up crimes

400.000

Breach-of-

regulations fine

220.000

persons

Suspected

persons

100.000

PERSONS PROSECUTED

Petty

194.000

offences

90.000

(excli. breach-of-regulations

Summary fine

persons

fines)

by prosecutor

93.000

Prosecution waiwed

22.000

Sentenced

79.000

Other sanctions 6.000

Fines

Probation

6.000

41.000

Imprisonment 16.000

prosecutors to decide not to report offences or to waive prosecution. Ano-

ther example is the extension of the field of application for conditional

release, as has recently been done in Sweden, among other reasons in order

to avoid a threatening excessive burden on the prisons. Such measures have

proved to be politically possible in contradistinction to decrimalization,

which often encounters a tough resistance in most countries.

As will have been apparent, I see the fact that the judicial system can

take individual preventive considerations as a means to decide on milder

sanctions than Cirectly follow from the individual penal regulation. There is,

however, a limitation to how far one can go in that direction. Even if of-

fenders are best rehabilitated in society by, for example, merely being pro-

vided with work, a dwelling and education, this cannot be systematically

done without loss of the general preventive purpose of the legislation. Crime

must not pay. Punishment must typically involve discomfort and sometimes

even suffering for the offender, otherwise society encourages forbidden acts.

But individual preventive considerations may also lead to severer sanc-

tions than are prescribed in the penalty regulation. Until a few years ago

Sweden had the indeterminate sanctions of internment and juvenile deten-

tion, which meant that the treatment period could be prolonged beyond a

minimum period decided by the court. Something similar applies today for

a person whom a court surrenders for closed psychiatric care owing to

crime. He can be retained as long as he is mentally ill without regard for the

fact that the crime would perhaps not have deserved more than a brief

period of imprisonment if that sanction had been adjdged instead. For my

part I feel some repugnance to the idea that our legislation permits habitual

thieves who suffer from a mental discase or abnormality to be kept locked

up as long as, owing to their disease, they constitute a danger to another

person’s property.

In some countries negative results of correctional treatment, in com-

bination with a high crime level, have led to an emphasis on the protection

of the community and to measures which, through lengthy deprivation of

liberty, are aimed at preventing (incapacitating) persons who are conside-

red to be especially prone to crime from committing new crimes. Insofar as

the incapacitation entails deprivation of liberty that is unjustly long in rela-

tion to the crime concerned, such a criminal policy arouses apprehension. It

is unethical to deprive people of their liberty, not owing to what they have

actually done but to what they may be feared to do in the future.

The term justice implies that like cases shall be treated alike. In judi-

cial systems which place the emphasis on social rehabilitation of the of-

fender there is a risk that similar crimes lead to dissimilar sanctions owing

to the fact that the offenders live under different conditions and have dif-

ferent ’needs of treatment”.

Some decades ago there was discussion in Sweden about the possibility

of dividing criminal procedure into two stages. The judge would first decide

the question of guilt, after which a treatment team of doctors, psychologists

and other specialists would determine the sanction, the sole purpose of

which would be to rehabilitate the offender in society. At about the same

time there was a suggestion to design the court-room so that the trial could

proceed round a round table at which the judge, prosecutor, the offender

and his defence counsel jointly, and on an equal footing, could by a train

of resoning arrive at the best treatment of the offender’s criminality. It was

even considered whether the word punishment should not be excluded from

the Penal Code.

As far as Sweden is concerned that discussion is no longer relevant. For

one thing extensive treatment research both in our country and abroad has

shown that the possibilities of preventing relapse into crime by different

forms of correctional and other treatment are very limited. The sanction

chosen appears to have very little effect on the recidivism rate. The treat-

ment ideology has therefore lost ground in Sweden and in many other coun-

tries in the western world. In my opinion, too, the analogy between crimi-

nality and disease is a false one. The object of the administration of justice

is not to diagnose and treat individuals who exhibit symptoms of social

deviation (criminality) but to make clear the legislator’s message that

certain acts are not allowed.

This pedagogical function places demands on the form of the trial.

’Round-table talks’’ between judge, prosecutor and defendant may give the

latter the wrong notion that the trial is held in his own interest and that the

result for his part will be positive event if the verdict is one of quilty. My

opinion therefore is that it is best if the court sits separate from and prefer-

ably raised above the defendant in order to mark that the court exercises

the criminal jurisdiction of the state against and individual transgressor.

Sweden is today making trials with loudspeaking telephones in the court-

room to allow hearing of witnesses who have difficulty in appearing in

person. From what I have said it will be apparent that I am sceptical about

the possibility of going further along that road and, for example, holding

televised trials in which judge, prosecutor, defendant and others sit in

separate places and present their claims and counterclaims through, for ins-

tance, cable TV.

I have spoken at length —perhaps at too great length— about the pur-

poses of the penal system and the principles for the administration of

justice. Indirectly, however, I have answered the question how modern tech-

nology can be used and abused in the administration of justice. There is

today an enormous amount of information about personal matters, infor-

mation which is often stored in computers. It may relate to the conditions

of a mother’s pregnancy, disorderliness at school, treatment for mental or

physical ailments, criminality, drug abuse, work, education, housing condi-

tions, religious and political views, etc. By linking of files these particulars

can be used to throw light upon a person prosecuted for crime. Through the

overall picture that the court thus obtains of him the possibility exists in

theory to determine upon a very individually related sanction to rehabili-

tate him in society or to meet the need for protection fo the community. In

a social engineers’s dream of this kind the sanction need not be propor-

tionate to the crime nor to other sentences for similar crimes.

I have already said that I consider the analogy between criminality and

disease to be a false one and that there is today no scentific support for the

view that the risk of recidivism can be affected by different forms of treat-

ment —with the exception of capital punishment and possibly castration.

But, for another reason as well, I do not believe in an evolution towards

extremely individually related sanctions.

It is in the essence of bureaucracy and possibly an element of human

nature to draw up rules for one’s own activities. One wishes quite simply to

be consistent. Studies are also said to have been made which show that

decision-makers have difficulty in paying attention to more than a handful

of factors simultaneously in the decision process, which should operate in

the same direction. At all events studies of bureaucracies which should have

some element of flexibility, e.g. authorities whose task it is to support

artists, inventors and researchers, show that decision-makers quickly develop

their own practice, which prevents them from entering into extreme engage-

ments of one kind or another.

Similar observations are common in the judicial system. In the studies

of court practice in the USA, which preceded the drawing up of so-called

sentencing guidelines, it appeared that the number of factors determining

sanctions was very limited. Most sentencing guidelines therefore use a

normal scale based on only three or four factors, namely the nature and

gravity of the crime, earlier prosecutions, drug abuse and, possibly also,

work situation. A Swedish study of the practice of the social welfare autho-

rities as regards juvenile law-breakers shows that their action was predomi-

nantly determined by the nature and gravity of the crime. Whereas the

juveniles’ need for care played a minor role.

I therefore expect that the choice of sanction and award of punishment

Will continue in all essential respects to be determined by the nature and

gravity of the crime and by the offender’s known earlier criminality.

I believe, too, that the system of sanctions of the nature will be based

on fines and imprisonment. These sanctions have the advantage that, unlike

a conditional sentence for example, they are appropriate for award of

punishment. They can thus provide for the pedagogical needs which in my

opinion the judicial system should fulfil. The role of fines may grow in the

future. In Sweden about 85 % of all persons against whom proceedings are

taken in the form of a breach-of-regulations fine, summary fine by prose-

cutor Oor court judgment are sentenced to fines. In a commercialized world

fines are a language that all can understand. Computerization of the flows of

payments, furthermore, increases the authorities’ means for effective

collection of fines, so that the number of cases of imprisonment for a non-

collectible fine can be kept down. To my mind fines appear to be tha main

alternative to imprisonment.

Imprisonment involves deprivation of liberty. There are variant forms,

e.g. night prisons and weekend prisons, but their common feature never-

theless is that the term of imprisonment is served in an institution. I have

heard that one of the federal states of the USA has now introduced super-

vision of conditionally released prisoners by radio. That, in my opinion,

opens up interesting perspectives.

The prison model entails the gathering together of a group of people

who certainly have one thing in common, namely that they have committed

crime. There is a manifest risk that the result will be continued criminality

for those treated in this way. If another form of deprivation of liberty could

be found which, for the offender and the public, as clearly demonstrates the

risks of committing crime as does imprisonment, but without the disad-

vantages of the latter, it would be a good thing. The future perhaps lies in a

sanction by which the offender is enjoined by the court for a specific period

to remain within a given restricted area and, for control purposes, to con-

stantly carry with him a wireless pocket receiver. The area can be assigned

individually, e.g. so as to comprise the offender’s dwelling and place of

work. The sanction can, but need not, be combined with treatment, e. g.

against alcoholic or drug abuse.

Apart from fines and deprivation of liberty most judicial systems will

have a number of other sanctions as well. For a Swede it is natural to

dissociate oneself from capital and corporal punishment. Such penalties can

otherwise be readily varied by new methods —in Utah executions are now

performed by the injection of poison. Of greater interest for a Swede are

conditional sentence, probation and different forms of community service.

Trials with community sevice are being made in Danmark and are soon to

start in Norway. The UK and New Zealand have a more lengthy experience

of this. [ believe that the expectations of treatment effects that are vested in

this sanction will be disappointed, but the authorities will then probably be

prepared to concider new forms of similar sanctions. For the need to relieve

the burden on the judicial apparatus will always be acute. At the same time,

as | have already mentioned, I find it hard to imagine that there is scope

for especially many sanctions in a judicial system. With numerous sanctions

the system becomes difficult to survey for the adjudicating authorities and

creates insecurity as regards the rights of the defendants.

With the view I hold of the objects of the administration of justice, I do

not give much, either, for the ideas now being advanced to the effect that

the citizens themselves shall resolve their conflicts without interference by

public authorities. The risk of weak groups, e. g. children and wives of

alcoholics, then being deprived of any protection would be manifest. In

Sweden the present trend is exactly in the opposite direction —public

+6

authorities enter increasingly into direct family conflicts. My vision for the

year 2020 is thus not particularly inflammatory. The fundamental principles

for the administration of justice will remain firm and the variations on the

theme will not be greater than that we shall all recognize ourselves if we live

to that day.

+/

TREATMENT OF OFFENDERS AS À FUNCTION OF THE

ECONOMIC AND POLITICAL CLIMATE

Virginia L. Binder

California State University, Long Boach

Arnold Binder

University of California, Irvine

An examination of the treatment of offenders in the United States of

the 1980s calls into play an array of forces and attitudes. To understand

even a semblance of the issues requires a look at public attitudes toward

crime, criminals and prisons; the relationship between criminal activity

and economic conditions; society’s concern for the underdog; prison philo-

sophy and the outcome of rehabilitative efforts with prisoners; and the inte-

raction of the legal system with all these factors.

In this paper we will sketch briefly the myriad of forces which have

contributed to attemps in the past two decades to extend constitutional

rights to prisoner, and speculate about the future of the prisoners’ rights

movement as a function of the changing economic and political climate

in the USA. Special emphasis will be placed upon those rights related to the

rehabilitation’’ or treatment of offenders.

Historically, the majority of the American public has had little interest

in the prison system. They had little direct contact with crime, criminals,

and prisons. Most of their knowledge of this shady aspect of life had been

derived from occasional newspaper accounts of sensational crimes or bar-

barous prison conditions. Very few had been victims of crime or had visited

a prison. Thus their concern about the impact of crime on their lives or

about the plight of prisoners was minimal.

The community ordinarily has as little interest in the people it sends to

prison as most of us have in our garbage —we want it disposed of safely,

quickly, and without much mess, but we don’t particularly care how.

(Bronstein, 1980, p. 7)

Reflecting the public’s lack of interest in the prison system, the courts

had traditionally taken a ”hands-off” policy. This can be traced to a Virginia

court which ruled in 1871 that ”prisoners have no more rights than

slaves”’ (1). This view has been modified only slightly by the courts’ refusal

through the years to ’interfere with internal prison administration”.

(Bronstein, 1980)

However, American society has changed in many ways during this cen-

tury. The depression and its aftermath created increased sensitivities to

people’s general welfare and the upheaval of the 1960s brought a questioning

_48_

of traditional roles and values and change to many social institutions.

Groups which had always been the object of discrimination became more

vocal and received considerably more sympathy from the public. Among the

groups could be found members of ethnic minorities, women, children,

homosexuals, mental patients, and even criminals. Changes were reflected in

all aspects of society and have positive or negative impact, depending upon

one’s point of view.

Miller (1979) has argued that ’’… in a democracy law follows society

and cannot precede it in any significant way..” and ’constitutional law may

be expected to change with considerable speed, following in the wake of

social alteration’’. Miller dates what he calls the Positive State from the

1930s when the federal government, during and after the depression, recog-

nized the well-being of the American public as its affirmative responsibility.

’The change was legitimized by the Supreme Court in the spate of decisions

beginning in 1937...” Several cases are noteworthy in the transition of that

year: West Coast Hotel Co. v. Parrish (2) in which the Court upheld a state

law setting minimum wages for women and children, and overruling pre-

vious decisions to the contrary: NLRB v. Jones & Laughlin Steel Corp. (3)

in which the Court decided that the right of ’self-organization and repre-

sentation in the promotion of peace” (that is. collective bargaining) was fun-

damental and within the power of Congress to regulate via its control of in-

terstate commerce —this upheld the constitutionality of the National Labor

Relations Act; and Steward Machine Co. v. David (4) and Helvering v.

Davis (5)— the so-called Social Security Cases —in which the Court upheld

the unemployment compensation and retirement provisions of the Social

Security Act.

And while several of the decisions in favor of human welfare in 1937

came on 5-4 votes, the process became easier when, beginning in late 1937

with the appointment of Justice Black, President Roosevelt named nine

112

=R

en

to the Supreme Court —obviously people not unsympathetic to his New

Deal. The tradition of human welfare was surely not retarded with the

appointment of Earl Warren in 1953 and the start of the significant de-

cisions under the banner of the Warren Court (Brown v. Board of Edu-

cation (6)— the major case demanding equal educational acess to all groups

—was decided in 1954).

Ligitation on behalf of many ”oppressed” groups followed and in 1961

a major breakthrough for prisoners’ rights occured. Monroe v. Pape (7)

established that individuals deprived of their rights by a state officer acting

under the authority of law could seek relief in federal courts. In essence the

Federal Civil Rights Act of 1871 was invoked to allow prisonners to seek

damages and injunctions against state prison abuses.

Many suits were filed and inmates were given increasingly greater rights

through the 60s and 70s. Gobert and Cohen (1981) noted a shift during

those years from challenges of flagrant violations to challenges of more

subtle ones, from individual claims to class action suits challenging the

entire operation of a prison. Among the rights preserved for prisoners are

those such as access to the courts, due process at disciplinary hearings, free-

dom from racial discrimination, free exercise of religious beliefs, and free-

dom from cruel and unusual punishment. The extent to which these rights

are allowed varies from case to case, depending upon the sympathies of the

courts and the arguments of prison administrators that granting of certain

rights thwarts legitimate government goals of prison security, order, and

administration.

The US Supreme Court’s involvement with the rights of criminals in the

past decade has been largely in determining the constitutionality of the

death penalty. The justices have tended to rule only on narrow issues. How-

ever, other federal courts have been much more active and have often taken

an advocacy role in attempting to reform prisons.

Ît is interesting to note that the United States was not alone in adhering

to a ’’hands-off”’ policy toward prison administration for so many years.

Among the twenty member states of the Council of Europe, the tribunals

have been interpreting the European Convention on Human Rights, under

which prisoners’ rights are subsumed, for the last two decades. The Council

of Europe’s Standard Minimum Rules, adopted as guidelines in January 1973,

included provisions for prisoners such as forbidding hazardous medical or

scientific experimentation, prohibition of collective punishment, and the

creation of controls to protect prisoners’ rights through judicial supervision

or visiting bodies (del Russo, 1980).

During this same period of time, the US courts have noted a ”right to

rehabilitation”’ for involuntarily committed mental patients and juveniles,

other recipeints of active judicial challenges. However, the courts have not

stressed rehabilitation for prisonners. Theoretically mental patients and

juveniles have been deprived of liberty because of their need for treatment.

Thus it may be viewed that, for these two groups, there is a constitutional

obligatioi tn provide rehabilitation. The same argument does not apply to

convicted criminals. To understand why, let’s look for a moment at prison

philosophy.

Penologists generally describe four basic goals of incarceration: deter-

rence, punishment, protection of society, and rehabilitation. All agree that

the punishment goals and, to a certain extent, the protective goals can be

fulfilled by the prison system. The deterrent effect is of course more dif-

ficult to establish for the many reasons of which you are well aware.

What about the rehabilitative function of prisons? Trough the years

many forms of rehabilitation have been introduced.

When we thought religion would help we added chapels; when we

through education would help we added classrooms; when we thought

recreation would help we added recreational facilities; when we thought

- 50—

treatment would help we added diagnostic and classification centers; when

we thought vocational training would help we added prison industries…

However, all of these changes, when viewed from a slightly more abstract

level, have done almost nothing to bring about any fundamental change in

the structure of prison organizations. None of them have made prisons any

more effective regarding their ability to do anything other than serve as

custodians. Even in that role, as the events [prison riots] at Attica and in

New Mexico have demonstrated dramatically, these institutions are less than

paragons of success (Thomas, 1980, pp. 254-255).

Less colorful, but more systematic studies of the prison system reach

the same conclusion (Lipton, Martinson, and Wilks, 1975). The failure of

rehabilitation has left the punishment or ”just deserts’” model, the pri-

mary prison philosophy today.

Confinement of prisoners, then, is for purposes other than rehabili-

tation. Though most humanitarians still endorse rehabilitation as one goal

of penal institutions, there is no evidence that it can be achieved by our

current programs. So the reluctance of the courts to require rehabilitative

efforts for prisons seems a practical response. Only when lack of rehabili-

tation programs has been included among the ”totality of conditions” of a

prison system have courts noted the importance of constructive rehabili-

tation programs. Some have suggested that the rising concern for the protec-

tion of prisoners’ rights in the last decade may possibly be an effort to help

them secure at least minimal rights in ”’punishment-oriented” institutions.

In contrast to the failure of the courts to require rehabilitation pro-

grams, there has been considerable litigation against mandatory treatment

programs —programs seen as independent of the inmates’ willingness to coop-

erate in the program. Some of the more noteworthy cases include the cur-

tailment of the use of experimental treatments such as Anectine (8) (which

causes a life-jarring temporary interruption of respiration) and psycho-

surgery (9) designed to reduce aggressive impluses. Such treatments have

been viewed as cruel and unusual punishment. Similarly the START behav-

ioral treatment program (10) in which prisoners had to earn their way out

of solitary confinement was discontinued due to legal concerns about depri-

vation of basic amenities of life and possible cruel and unusual punishment.

The START program was also criticized prisoners were given no choice

about assignment to the program (hard core, unmannageable offenders were

selected) and there was a disproportionate representation of ethnic minority

group members in the program. Even voluntary participation by prisoners in

experimental treatment and research programs was questionned. The

Kaimowitz (11) decision in Michigan raised the issue of whether someone

involuntarily institutilnalized could ever give true voluntary consent. It

was suggested that too many undue pressures impinge on the prisoner’s

decision-making process. These issues which largely focus on the 8th

amendment prohibition against cruel and unusual punishment have for the

most part been decided by lower courts. The Supreme Court has decided

few cases dealing with cruel and unusual punishment, so guidance for the

lower courts is lacking. In different jurisdictions, many different rulings

have been found (Gobert and Cohen, 1981).

In the meantime, the economic and political climate has changed. The

national elections of 1980 reflected doubts about the Positive State, and

federal actions during 1981 showed an unambiguous effort to initiate its

eventual demise. Public statements by the President and other key officials

state clearly an intent to terminate the state of affairs where the wellbeing

of. the American people is one of the central concerns of the federal

government. Concern for human rights and social services has been replaced

with concern about the economy, government expenditure and the high

crime rate. People are no longer sympathetic or even indifferent to under-

privileged groups, especially criminals.

Fear of crime is so pervasive that a large proportion of the population

is now afraid to leave their homes in the evening. Surveys indicate that the

Wwar on crime is a top national priority and most people now have definite

ideas about the way criminals should be treated. In fact citizens groups are

making an impact on criminal law —campaining for or against the death

penalty, gun control, and harsher penalties for criminals. Recent examples

of this phenomenon include the change in the handling of mentally-

disordered sex offenders in a number of states due to the outrage and con-

certed effats of a citizens’ group called SLAM and the passage of a consti-

tutionally questionnable anti-crime initiate in California.

Though we by no means believe that poverty and unemployment

necessarily cause crime, we do feel they covary with an array of other

factors so that one cannot overlook the correlation between crime rate and

socio-economic status, crime rate and lack of education, crime rate and lack

of jobs. Those areas having the highest rates of unemployment are the same

areas targeted for extra police protection because of the crime rate. With the

continued decline in the economy and rise in unemployment, it would be

unrealistic to expect anyting other than a continuing rise in the crime rate.

As a result, one of the biggest problems facing the US today is the

serious overcrowding of prisons. The federal prison system is 18% above

capacity. À similar situation exists in most state prisons. Legislatures and

the public clamor for mandatory and lengthier prison sentences for of-

fenders —thus increasing the prison population even further. Yet their

concern about the economy and government expenditures means they are

generally unwilling to spend the massive amount of money necessary to

build the required facilities. While between two to three billion is currently

being spent on prison construction or earmarked for such, the National

Institute of Justice indicated that $8 to- 10 billion was needed just to meet

the current shortage. Presently 28 states are operation under court order to

imporve conditions in their prisons (28 States, 1982).

__ 52_

This type of conservative political philosophy of harsher penalties for

criminals abounds and will be supported by a shifting of the balance on the

Supreme Court. During the 70s and early 80s several liberal members were

replaced by conservatives due to the appointments of Presidents Nixon and

Reagan. What clues do we have to this new philosophy of the Supreme

Court?

The Supreme Court dicision to permit double-celling of prisoners in

cellblocks in response to the overcrowding (ruling it not to be cruel and

unusual punishment) suggests the trend of the next decade. In the words of

Justice Rehnquist, considered the major conservative interpreter of the Con-

stitution, in writing about prisoners’ complaints.

Nobody promised them a rose garden; and I know of nothing in the

Eighth Amendment which requires that they be housed in a manner

most pleasing to them, or considered even by most knowledgeable

penal authorities to be likely to avoid confrontation, psychological

depression, and the like. They have been convicted of crime, and there

is nothing in the Constitution which forbids their being penalized as a

result of that conviction. (Atiyeh v. Capps (12), p. 831).

Similarly the majority opinion in Rhodes v. Chapman (13) (another case

involving overcrowding) states…. ”The Constitution does not mandate

comfortable prisons”.

A further example of this increasingly prevalent conservative philos-

ophy can be found in a speech of Chief Justice Burger advocating prisons

as factories. He described a European prison for juveniles in the following

way:

… the wall at the entrance had four statements in large, bold script with

letters a foot high. Translated they read about like this:

Y ou are here because you need help.

We are here to help you.

We cannot help you unless you cooperate.

If you don’t cooperate we will make you cooperate.

Here, this prison offered to the inmates a compassionate helping

hand, coupled with an assurance of the kind of discipline that, if missed

early in life in homes and schools that ignored moral values, produces

maladjusted, incorrigible people. (For the Future, 1982, pp. 4-5)

Ît also seems obvious that courts are not immune to costs when making

decisions. In the same speech suggesting that prisoners be put to work

regardless of their willingness, Chief Justice Burger states:

Creating prison industries, with incentives for good performance,

would accomplish the dual objective of training inmates in gainful

occupations and taking off the backs of the American taxpayers the

enormous load of maintaining the prison systems of this country. (For

the Future, 1982, p. 5)

He had earlier pointed out that it costs from $10,000 to 25,000 annually

to maintain a prisoner in American prisons.

3

5

And the willingness of the Supreme Court to allow double<celling may

show their cost-consciousness as well as their conservative ideology. They

may regnize that overcrowding is inevitable in lieu of expensive new prison

construction which the legislatures will not support.

A look at other court decisions regarding prisoners’rights is illustrative

of this possible tendency to consider the economic implications of de-

cisions.

… providing rudimentary due process safeguards, such as the opportunity

to be hard before an impartial tribunal in a disciplinary proceeding involves

minimal administrative costs. In contrast, the appointment of state paid

attorneys for indigents in such proceedings is extremely expensive. Interest-

ingly, but not surprisingly, the Supreme Court, when confronted with the

question of what process was due convicts in a disciplinary proceeding, drew

a constitutional line between the right to attorneys and the opportunity to

be heard before an impartial tribunal, mandating the latter but not the

former…

What role, then, if any, does the cost of potential remedies play in

the determination of prisoner rights? In theory the answer, perhaps, should

be none, and statements are legion to the effect that constitutional viol-

ations cannot be justified by inadequate funding…

…ÔNevertheless courts may well be influenced by the economic con-

sequences of their decisions. Claims which, if upheld, would necessitate a

significant expenditure of funds may be likely candidates for decision on

narrow or procedural grounds. To the extent it ramains available, the hands-

off doctrine my be invoked, with judges citing their powerlessness to

compel the legislature to allot the needed funds. In any event courts may be

more prone than usual to defer to the judgment of corrections officials in

these cases. (Gobert and Cohen, 1981, pp. 19-21)

In the climate of tax-cutting and minimum expenditure for the general

social good, the interest shifts from humanitarian concern to self-protection,

and self-protection of the most immediate sort. We predict that the crimino-

logical community will bow to the new array of social pressures and show a

major shift of focus in more conservative directions. Human selfishness,

clearly, does not stop at the boundaries of certain occupational groups

—even those ordinarily marked by distinct social and humanitarian con-

cerns—.

54 -

FOOTNOTES

(1)

Ruffin v. Commonwealth, 62 Va. 790 (1871)

(2)

West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937)

(3)

NLRB v. Jones & Laughlin Steel Corp. 301 U. S. 1 (1937)

(4)

Steward Machine Co. v. David, 301 U. S. 548 (1937)

(5)

Helvering v. Davis, 301 U. S. 619 (1937)

(6)

Brown v. Board of Education, 347 U. S. 483 (1954)

(7)

Monroe v. Pape, 365 U. S. 167 (1961)

(8)

Mackey v. Procunier, 477 F2d 877 (9th Cir. 1973)

(9)

Kaimowitz v. Michigan Department of Mental Health. Civil

No 73-19434- AW (Cir. Ct., Wayne County, Mich. July 10, 1973),

reprinted in part at 42 USLW 2063 (July 31, 1973)

(10) Clonce v. Richardson, 379F. Supp. 338 (WD No. 1974)

(11) Kaimowitz v. Michigan, Note 9.

(12) Atiyeh v. Capps, 101 S. Ct., 829 (1981)

(13) Rhodes v. Chapman, 101 S. Ct. 2392 (1981)

REFERENCES

Alpert, G. P. History of Prisoners’ Rights. In Alpert G. P. (Ed.) Legal

Rights of Prisoners, Beverly Hills: Sage, 1980.

Bronstein, A. J. Offender Rights Litigation: Historical and Future Develop-

ments. In Robbins, I. P. (Ed.) Prisoners’ Rights Sourcebook, Vol. I.

New York: Clark Boardman Co. Ltd, 1980, pp. 5-28.

del Russo, À. L. Prisoners’ Right of Access to the Courts: A Comparative

Analysis of Human Rights Jurisprudence in Europe and the United

State. In Alpert, G. P. (Ed.) Legal Rights of Prisoners. Beverly Hills:

Sage, 1980.

For the Future, Prisons as Factories, Not as Warehouses —Warren E. Burger.

Criminal Justice Newsletter, Vol. 13, No. 1, Jan. 4, 1982.

Robert, J. J. & Cohen, N. P. Rights of Prisoners. Colorado Springs:

Shepard’s/Mc Graw-Hill, 1981.

Lipton, D., Martinson, R. & Wilks, J. The effectiveness of Correctional

Strategy: À Survey of Treatment Evaluation Studies. New York:

Praeger, 1975.

Miller, A. S. Social Change and Fundamental Law. America’s Evolving

Constitution. Westport, Ct.,: Greenwood Press, 1979.

Thomas, C. H. The Impotence of Correctional Law. In Alpert, G. P. (Ed.)

Legal Rights of Prisoners. Beverly Wills: Sage, 1980, pp. 243-260

28 States Now Under Prison Court Orders, Criminal Justice Newsletter,

Vol. 13, No. 5, March 15, 1982.

THE MYTH OF EQUITY AND PROPORTIONALITY IN THE

APPLICATION OF CRIMINAL LAW.

Jaak van Kerckvoorde *

1. INTRODUCTION

Every year in Belgium about 1.000.000 offences are registered with the

office of the Public Prosecutor. This is one offence per 10 inhabitants.

Offences with a maximum prison sentence of 7 days or a maximum fine

of $ 20 are not included in this figure.

The members of the office of the Public Presecutor, a hierarchically

structured corps of some 450 magistrates, decide whether or not to bring

the registered offences before the courts. This monopoly of prosecution is

subject to but few exceptions. It now appears that about 70% of the cases

do not come before the courts: they are subjected to a decision not to

prosecute. There are two important reasons for this. Prosecution is not

possible when the offender is unknown. Also, even when the offender is

known, the prosecuting magistrate may decide that it is not desirable to

prosecute. The authority to drop the case on these grounds is contained

in the principle of expediency. In contrast with the criminal procedure in

West Germany, for example, knowledge of the identity of the suspected

offender and the probable demostrability of his guilt does not compel the

prosecuting magistrate to prosecute.

He may drop the case on grounds of expediency involving the undesira-

bility of the criminal action —avoiding social unrest, overburdening of the

judicial services, or the usticiables— and/or with the undesirablility of a

penalty respectively.

From a comparison of motivation of decisions not to presecute with

figures of the number of cases prosecuted it appears that for every case

prosecuted, two were not prosecuted. Like the percentage of cases subjected

to a decision not to presecute the ratio of both discretionary dismissals for

reasons of expediency and of prosecuted cases varies strongly according to

district. This ratio indeed varies from 0.24 to 4.48.

If we suppose that the motivations officially given accord with the

real motives, and we accept that the overall selection of cases dealt with

grosso modo will not vary in gravity from district to district, then consider-

able inter-regional differences appear in the way they are dealt with. These

differences are not only found at the level of the prosecutor’s office, but

* Institute for Criminology, Blijde Inkanststraat 5, B - 3000 Leuven.

_5()_

also in judicial sentencing. Criminal judges make different use of the dis-

cretionary power at their disposal, according to region.

2. THE PLAN OF INVESTIGATION

In my contribution such differences are not, however, central. The

starting point was the question of what criteria these prosecuting magis-

trates and judges use in the decisions they take. Moreover, | wish to examine

whether general legal principles such as equity in law and the proportion-

ality of the measure or the penalty are realized.

The investigation in this sense is a critical test of legal practice (1).

Central to the investigation is the chain:

motive for intervention — decision maker — decision.

As motive for intervention I have retained a thousand cases of shop-

lifting and drunken driving registered by the public prosecutor’s office.

The decision makers are the various prosecuting magistrates and crimi-

nal judges within one judicial district.

For the former the following decisions were examined :

1)the decision of whether or not to prosecute (shoplifting, drunken

driving)

2)whether or not the offender’s driving licence was suspended

(drunken driving)

3)the decision on the duration of the suspension (drunken driving)

4)the choice of the facts used in charging the offender (drunken

driving).

For the criminal judges the sentences given were studied (shoplifting

and drunken driving).

I obtained information about the motive for intervention from the

files: in these I found information about the nature and the gravity of the

facts, their demonstrability, the character of the accused/defendant and

about procedural elements such as the lapse of time between the event and

the decision, the assistance of an adviser, the presence of the defendant in

session, etc. Also the files contained information about the decisions and

about the magistrates that made them. This decision-makers act within a

context of formal in informal influences. These are represented in the

subjointed scheme.

(Figure 1 about here)

(1)T have given annotated summaries of similar investigations in Western

Europe elsewhere (Van Kerckvoorde, 1979 and 1980b).

n

\]

For the investigation I used only the data described above under

’motive for intervention”. Although the other elements included in the

diagram are important in the global manner of dealing with the offences

retained I start from the premise that they little or nothing contribute to

an explanation of the differentiation within this global pattern of treatment

of the cases. This is a first, restrictive, choice. À second restriction lies in the

choice of a file study.

This has the advantage that the data used have been determined before

the intervention of the investigator. There is not much loss of information,

since from interviews and observations it is apparent that the offences con-

cerned are such that certainly the prosecuting magistrates and for the most

part the criminal judges are guided mainly by the contents of the file. The

fact that the motivations of the decision makers remained partly hidden

was not too great an objection within the plan of investigation.

3. THE FINDINGS OF THE INVESTIGATION

| give the results of the investigation consecutively according to the

appearance of prosecuting magistrates, and from this with regard to the

criminal judges. À commentary follows in chapter 4.

3.1. The treatment of criminal cases by the office of the public prosecutor

(2)

Figure 2 gives a summary of the office of the public prosecutor’s

decisions.

For shoplifting dismissal (the decision not to prosecute) appears to be

the rule (3), for drunken driving it is highly exceptional.

(Figure 2 about here)

Drunken drivers very often had their driving licences suspended im-

mediately; the duration of the suspension was variable. Finally a number

of defendants had the cahrges against them reduced.

3.1.1. Prosecution of shoplifting offences

Upon what criteria is the decision to prosecute or not to prosecute

based? In a multiple regression analysis I compared a number of variables

with regard to the contents of the file and the identity of the decision

maker with the decision taken. This gave 48 % explained variance; 20 %

(2) For more detailed information see Van Kerckvoorde, 1978 and Van

Kerckvoorde, 1980.

(3) With regard to shoplifting a more prudent prosecution conduct is in all

respects advisable and by no means inappropriate (see Cameron, 1975).

56

came from data on the gravity and the circumstances of the offences, and a

further 6 % came from information on the socio-biographical characteristics

of the suspect. Then came a further 22 % explained variance from an

identification of the deciding magistrate. These various contributions and

those from the complete analysis are statistically significant.

The following data were important in the context of the information

contained in the files (given in order of descending importance ):

1. Previous dismissals. if the suspect had already been the subject of

a dismissal for shoplifting then the chance of now being prosecuted is

appreciably greater (beta = 197).

2. Recent judicial involvements of the suspect: the chance of pros-

ecution is greater if the suspect has incurred one or more convictions

in the course of the past five years (beta = .184).

3. The presence of aggravating circumstances: if the suspect attempts

to escape by the use of physical violence, and/or gives false information in

an attempt to deny the charge, then the chance of a prosecution is greater

(beta = .153).

4. The value of the stolen goods: the higher this value, the greater the

chance that the prosecuting authority will bring the matter before the

courts (beta = .149).

S. Serious problems given as a motive: sometimes the suspects plead

serious financial difficulties, or claim that their behavior is linked to psycho-

social difficulties. In both cases there is a greater chance of dismissal

(beta = -.138).

6. Disfunction as a reaction: being caught red-handed in the self-service

store, and the subsequent intervention of the police authorities can to many

suspects be a radical shock. When this causes psycho-social disfunctions such

as suicide attempts Or a state of shock, then there is a great chance of the

case being concluded with a non-prosecution (beta = -.120).

/, Acting in a group Suspects acting alone run a greater risk of prose-

cution (beta = -.118).

The contribution of the other information is generally smaller and not

statistically significant. In decreasing order of importance these are: the age

of the suspect, stealing from more than one shop, the use of language

(a personal characteristic, but also an item of data which has procedural

implications in Belgium), the sex of the suspect, the number of items stolen,

the social position of the suspect, civil status; recent convictions for theft,

demonstrability of the theft (4), the nature of the goods stolen, the arrest-

ing authority and the nationality of the suspect. À subsequent, very im-

portant point is the difference in treatment according to the magistrate.

(4) Cases in which the evidence is weak sometimes come before the courts,

cases in which the evidence is strong are often subjected to dismissal.

5() —

I found the same picture in the multiple regression analysis (betas of -.167

to .250) as in fugure 3: it is therefore not explicable by possible differences

in the make-up of the file (5).

(Figure 3 about here)

In cases concerning shoplifting, some magistrates (practically never

prosecute, irrespective of the contents of the file (6) Only a few differen-

tiate their decisions on the basis of the documents in the file. The absence

of established guidelines leaves room for such a mosaic of individual de-

cision patterns.

3.1.2. Suspension of the driving licence: what shall we do with the

drunken driver ””

When the offender is caught in the act then the magistrate contacted

can have his or her driving licence immediately suspended. The formulation

of the law relating to this matter points to the basic punitive nature of this

’measure’’. The accused also see this as a punishment; furthermore no

appeal is possible. In fact the suspension further affects the legal procedure:

a prosecution practically always follows a suspension (if it does not, then

the magistrate has to inform his superiors why the driving licence was sus-

pended), and the judge will rarely repudiate and immediate suspension by

banning the offender from driving for a shorter period of time. The necess-

ity for fixed and clear criteria is consequently of the greatest importance.

What are now the criteria for suspension?

In a multiple regression analysis the twelve items finally retained gave

47 % explained variance; 15 % came from information concerning the facts

and the evidence, a further 1.5 % from information about the accused, and a

further 31 % from the identity of the decision maker. AIl these contri-

butions and the total amount of explained variance are statistically signi-

ficant.

The information concerning the facts: The offence of fleeing from the

site of a collision greatly increases the chance of suspension (beta = .154).

Professional need to have a driving licence gave no rise to clemency in such

Casés.

The identity of the magistrate contacted is very important.

(Table 1 about here)

(S) The judgement of cases occured otherwise in turn.

(6) The investigation was not designed to explain these differences. Per-

sonally I believe that the following factors combine together: differ-

ences in appreciation of the gravity of these types of offences, dif-

ferences with regard to the purpose of their own action, differences

with regard to the possibilities of these purpose being achievid by

means of prosecution.

— 60 -—

The percentage of suspensions varies from O to 7%: an extremely

inconsistent approach (betas of - 341 to .210) which is not a all explained

by the nature or the gravity of the case. Further came to the appearance

from a more detailed analysis that offenders from lower social classes run

a greater risk of suspension (unfavourable image transmitted through on

grounds of secondary class characteristics?), this gives yet a further point

of application for a firmer approach at the judicial level (see 3.2.2.).

3.1.3. The duration of the suspension.

These differences, dependent upon the magistrate, exist also with

regard to the duration of the suspension. In fact there are three ”suspender

profiles”:

(Table 2 about here)

1) Magistrates E, [ and C suspend for exactly one month;

2) Magistrates B, H and G suspend for an average of one month but

vary this period;

3) Magistrates A and D suspend the driving licence for a variable, but

definitely longer, period.

On further examination it appears that the least serious cases were called

before the latter two magistrates!

The only other element playing a statistically significant role is the

professional need of the offender to have a driving licence. In such cases

the licence is restored more quickly (whether requested by the offender

or not).

3.1.4. To prosecute or not to prosecute.

In cases of drunken driving prosecution is the rule. This practice agrees

with the information given to us previously by the decision makers. Never-

theless some 12 % are subjected to dismissal : on what grounds does this

happen?

The file ata used in the regression analysis itself gave 59 % explained

variance (p < .001); the identity of the decision makers adds practically

nothing to this. The demonstrability is of great importance (R* = 37 %,

beta = .486): when a conviction is obtainable in principle then the case

generally comes before the court. Cases with weaker evidence are subjected

to non-prosecution.

Moreover, the following were important (sometimes statistically significant

also):

1. The fact that the office of the public prosecutor had incurred ex

penses in establishing evidence which could be recovered through a con

viction (taking of blood samples, clinical report, determination of the

blood alcohol content) (beta = .165).

2.The age of the offender: young people are let off more easily

(beta = .160).

3. The weight of the vehicle used (beta = .151).

3.1.5. The contents of the charge.

Most cases of drunken driving involve two punishable facts: alcoholic

intoxication and driving in a drunken state. What charges are brought when

prosecuting within these two categories? Sometimes prosecution is based

upon both offence. Judges do not in practice deviate from this prestruc-

turing: this leads to extremely inconsistent sentencing. These inconsistencies

are reinforced by a few other elements; more about this in 3.2.2.

3.1.6. No ”severe” or ’liberal’’ magistrates?

One magistrate seldom or never prosecutes cases of shoplifting, while

for drunken driving he suspends the driving licence relatively often and for

longer periods; another one prosecutes shoplifting exceptionally often,

while seldom applying suspension for cases of drunken, driving.

(Table 3 about here)

From this it is evident that magistrates who hardly differentiate their

decisions for one type of offence do thoroughly apply a completely dif-

ferent, well differentiated or manifestly stricter or more liberal approach

to the other type of offence. This investigation found none of the magis-

trates to be either totally severe or liberal overall.

3.2. Judicial sentencing

(7)

3.2.1. Sentencing for shoplifting.

We know that shoplifting offenders referred to the office of the public

prosecutor stand a l in 3 chance of being brought before the courts. Of

those summoned 4 % are acquitted, the remainder mostly receive a fine

together with a conditional prison sentence, although other forms of sen-

tence are frequently given.

(Table 4 about here)

The amount of the fine is between 26 and 200 U.S. $, with $ 100 as

the modal value; the unconditional prison sentence vary from 8 days to

3 months, with modal values at 1l and 2 months. What criteria does the

criminal judge use in his sentencing?

We divided the sentences in various manners and compared them

whithe 25 independent variables. The amount of explained variance

varies from 50 to 60 %.

(7) As for all sections reported here, detailed articles written in the Dutch

language are available. These will be sent on request.

In general the following offenders were treated more severely (8):

1) foreigners: they especially receive prison sentences;

2) older offenders;

3) offenders not represented by a lawyer;

4) offenders recently condemned for theft;

5) those who have already veen condemned for a more serious offence;

6) offenders who tried to lie their way oùt when caught;

7) those who were temporarily in administrative or remand custody;

8) those condemned by default;

9) those who did not declare that they had acted under the influence of

influence of psycho-farmaka.

Information about the facts seems to be of relatively little importance

here: this can be partly explained by the selection of cases that has already

taken place at the magistrate’s level.

Pronounced differences exist between the criminal judges and their

handing out of prison sentences (whether conditional or not): in otherwise

similar cases the percentage of prison sentences varies from 29 % to 87 %!

Furthermore there is a negative correlation between the social status of the

accused and his or her chance of being imprisoned. The use of (mostly

mild forms of) violence when caught is also more severely counted against

the offender.

Unconditional prison sentences are given especially to offenders who

were in administrative or remand custody (usually very temporarily) during

the course of the enquiry. Negative information from police sources about

the conduct of the aacused is very important. Recent convictions for theft

are a third element. These three elements alone give 51 % explained variance.

3.2.2. Sentences for drunken driving.

In 93 % of the cases the sentence is an unconditional fine and a sus-

pension of the offenders driving licence. In 5 % of the cases an uncon-

ditional prison sentence was given, also practically always with a suspension.

Acquittal is very rare; we already know how important demonstrability was

in the magistrate’>s decision of whether or not to prosecute (see 3.1.4.).

The amount of the fine was, on average, twice as high as for shoplifting.

It is most striking that the cases are handled in a different manner by

the office of the Public Prosecutor according to the judicial area in which

the senteice is passed. In precisely the area where the slightest infraction

is prosecuted (90 % of cases in area A, 3 % in B) the criminal judge (A)

applies a very mild ”standard sentence’”’. Furthermore, this judge gives the

accused only one suspension (which corresponds with the prestructuring

(8) The influencing elements are listed in decreasing order of importance.

Their beta values are all over .150 and are statistically significant.

by the office of the Public Prosecutor) and then only for a very short

period, with exception from the obligation to take a driving examination

before the return of the offender’s driving licence. AIl this is in striking

contrast with the judicial sentencing in the other area. In this manner there

is extremely inconsistent judicial sentencing in adjacent geographical areas.

This is made somewhat more equal for those who go on to appeal.

What criteria are used for fixing the amount of the fine? A multiple

regression analysis with some twenty variables concerning the facts, socio-

biographical characteristics of the accused and procedural aspects of the

case gives a 46 % variance; a statistically significant result. The last 26 %

were given by the procedural information. As expected, there is a pro-

nouncedly strong relationship between the identify of the decision maker

and the amount of the fine (beta value for judge B = .543; fines imposed

by him are some 60 % higher than those imposed by judge A). Moreover,

this amount depends strongly upon the previous record of the accused,

regardless of whether the antecedents concerned are specific or non-

specific.

There was always a suspension of the offender’s driving licence. On

what is the

duration of the suspension based? The multiple regression

analysis carried out for this gives 45 % explained variance: half of this comes

from procedural information. Once again the differences are predominantly

demendent upon the criminal judge (beta = .599): the judge you appear

before is much more important than the nature or the gravity of the evi-

dence. In a lesser, but still statistically significant measure, the following

elements are important:

1) the judicial record, especially any history of recidivism :

2) being involved in an accident ;

3) the fact the driving licence had previously been suspended immedi-

ately ;

4 ) being convicted by default.

Two criminal judges: different sentencing based upon simular criteria?

For both judges who deal with the most cases I looked at whether, despite

the different sentences they handed out, they perhaps used the same cri-

teria. À number of results can be found in table 5.

(Table 5 about here)

In fact these judges have only one criterion of decision in common:

the specific criminal record of the accused. The presence of the accused

at the court session also influenced both judges, albeit towards a different

decision. The age of the accused is only of minor importance to both judges.

In 3.1.2.1 wrote that the decision of the office of the Public Prosecutor

to suspend the offender’s driving licence immediately is bound up with

social class. We found an analogy in the sentencing: judge B is more lenient

towards offenders from higher social strata. He does this partly indirectly,

as shown by table 5. Thus he imposes a heavier penalty on offenders whose

driving licences have immediately been suspended.

The social position of the accused affects the decisions made via three

other elements: offenders from lower social strata are relatively more

often convicted by default, they are less frequently represented by a lawyer,

and they less frequently appeal against the sentence. These elements also

lead to a heightening of the punishment burden.

4. DISCUSSION

So far a very brief summary of the results of the investigation. I wish

to add a few marginal notes to this: these are partly concerned with method-

ology, partly with the content.

First of all some comments about the methodology. As a rule at least

half of the treatment variation is explained. This underlines the utility of

the multiple regression approximations in the investigation of the appli-

cation of criminal law and of trial procedure.

It is notable how recording information about the identity of the

decision makers brings rewards in elucidation. I have already emphasized

how much a limitation of the investigation to the institution as the unit

of analysis masks the very different and some-times also contradictory

treatment patterns within this institution (9). Negligence of this fact necess-

arily leads to the scant explanatory power characterizing an investigation

which limits itself to intermediate level analysis. Consequently the extension

of the analysis to the micro level clearly contributes to knowledge of legal

practice.

There remains some unexplained variances in this investigation. There

are several mutually nonexclusive explanations for this. In general I do not

believe that important variables have been omitted: some influences could

well incidentally have played a role. Their non-inclusion detracts from the

’viels”. The relation between independent and dependent variables is also

not alwavs rectilinear: in the linear regression model which I used, this

entails some loss of accruracy. Because the model uses average values it does

not fully reflect the specific nature of the ralationships; for this reason

l have investigated some relationships (for example those between social

position of the defendant and the decisions made in dealing with his or her

case) by means of subdivision (elaboration) techniques.

(9) By analogy: national or- otherwise globalized figures mask differences

between different areas. In my investigation area 33 % of the reported

cases of shoplifting were brought before the courts. In an adjacent

area this figure was 67 % (Peeters, 1973).

Moreover it is inevitable that some characteristics of the phenomenon

examined are too finely or too roughly counted in. Sometimes this occurs

because the reality is insufficiently known, sometimes because it is too

contradictory to be accurately encoded. An example of the latter is the

great lack of agreement among magistrates when asked to rank the offences

in order of gravity, or the ways of dealing with them according to the

measure in radicality. This brings me to a following, and in my opinion,

more important interpretation of the unexplained variance. The analysis

model is designed to show up systematic influences. We already know that

a limitation to the intermediate level trends to mask from view the really

non-systematic within the institution. Nevertheless, if the individual lines

of conduct are acutally taken into account, even then we pass by the

non-systematic elements within the behaviour of some decision maker.

Now a few more marginal noteson content. First of all it is plain that

neither the principle of equity nor the principle of proportionality are

realized optimally. Between the principles of law and their realization

there lies a deep gulf. In consequence of this the actual legal status of the

accused or the defendant is very uncertain. Furthermore the findings of

the investigation give an empirical basis for the impression of arbitrariness

and discrimination experienced by those subjected to legal proceedings.

The combination of this elements decreases faith in the process of

justice even further (10).

That there is arbitrariness is, I believe, fully demonstrated. What of the

’’discrimination” element? From the investigation it appears that elements

which have never been mentioned by the legislator as grounds for inter-

vention, or have been expressly excluded as a basis for differential treat-

ment, are nevertheless influential (11). Here I am thinking among other

things of the social position of the accused. From a large number of part

analyses (elaboration technique and multiple regression analysis) it appears

that those lower down on the social scale receive more severe treatment (12).

They run a somewhat greater risk of prosecution, coercive measures are

more easily applied to them and for longer periods (which conditions the

conduct of future judicature), and they receive more severe sentences. In

(10) Further information, a discussion of the findings and propositions for

changes can be found in publications which I have brought out in

Dutch. These are available on request.

(11) The contributions of these elements are contradictory to the thesis put

forward by SESSAR (1978) that bureaucratic imperatives lead to the

personal information about the accused hardly ever influencing the

decision made in dealing with their case.

(12) Or if you will, those higher up on the social scale are treated somewhat

more leniently.

- 66

the case of the latter the influence of the social position plays a role both

directly (more severe approach on grounds of the class to which they

belong, with possibly a more unfavourable prognosis introduced as an

intermediary variable) and indirectly: via the scanty application of legal

aid, the lower quality of legal assistance lower down the social scale, the

absence of defendants at the session (a ritual which for them is especially

of a totally strange nature), the judicial past which itself partly contains a

class effect, and negative information from police sources.

In the measure that the stricter approach contribues, via reduced job

application opportunities, loss of jobs and weakening of the links with a

system of norms which are systematically and discriminatorily applied, to a

self perpetuating of the unfavourable prognosis, or via the image that the

legal statistics hold up about the output of the penal system, the magistrates

and the criminal judges receive a (supposed) legitimation for their dif-

ferencial approach. My findings are analogous to those of other researchers

in the Dutch speaking area (JUNGER-TAS, 1976; JONGMAN, 1978;

PUTTAERT, 1981). The predominant finding is that those who elsewhere

have less access to the system of social rewards (health care, education,

employment, and working conditions) get the short end of the stick in the

judicature too. The law does not correct initial deficiencies; on the contrary,

it stresses the initial inequalities.

In the investigation of some parts I also found influences of socio

biographical characteristics such as age and nationality. Although expla-

nations for these influences can be supplied, I believe that these expla-

nations do not justify the decision making criteria used.

The legislator has himself made a decision making criterium from the

judicial record of the accused. In my investigation it appeared that this

factor practically always played a role (thus without the legal conditions

being fulfilled). I have a number of objections against this practice: it goes

partly against what KRESS (1975) wrote about it and what I have set out in

detail in another publication.

A final comment concerns the relationship between the office of the

Public Prosecutor and the criminal judge. What SHEA (1974) showed by

experimental means is confirmed here from an empirical investigation of

the actual administration of justice: in various ways the office of the Public

Prosecutor structures the way in which the criminal judge deals with the

Case.

Although judges formally adopt a completely independent position,

in practice they seldom dissociate themselves from such a prestructuring.

Even if the judge believes that a magistrate has reacted somewhat imprud-

ently in the application of a means of coercion, or that the provisional

qualification of the evidence brought forward by the office of the Public

Prosecutor is not as good as it could be, this is usually covered up by the

67

cloak of collegial fellowship out of reluctance (or it is inertia?) to disavow

the magistrate. In a number of cases the importance of a good relationship

between ’’partners’”’ in the penal procedure predominates over that of an

impartial, strictly just application of criminal justice.

BIBLIOGRAPHY

Cameron, M.O. Self-Perception and the Shoplifter, in: Henshel, R. and

Silverman, R. Perception in Criminology, Columbia University Press,

New York, 1975, 471 (416-421).

Jongman, R., Vrouwe Justitia is ook maar een mens. Over sociale (on)-

gelijkheid voor justitie. In: Moor, L., Leuw, E., Beslissings-momenten

in het strafrechtelijk systeem, Utrecht: Ars Aequi, 1978, 257.

Junger-Tas, J., Verborgen jeugddelinkwentie en gerechtelijke selektie. Een

onderzoek in een stadsmilieu. Brussel: Studiecentrum voor Jeugdmis-

dadigheid, 1976, 221 (Summary in: Hidden Delinquency and Judicial

Selection in an Luban Setting: Toronto, Paper presented at 8th Worid

Congress of Sociology, August 1975, 23 + app.).

Kress, J., Sentencing: The Search for Rational Criteria. Paper presented at

the 1975 Annual Meeting of the American Society of Criminology in

Toronto, Ontario, Canada on November 2, 1975, 33.

Peeters, H., Strafrechtsbedeling bij warenhuisdiefstallen. Een onderzoek

naar eventuele discriminaties. Leuven: eindverhandeling politieke en

sociale wetenschappen, 1973, 133 + bijl.

Puttaert, M., Het seponeringsbeleid van het Openbaar Ministerie in

Jeugdzaken, Leuven : eindverhandeling criminlologie, 1981, 81.

Sessar, K., A Bureaucratic Factor in the Process of Crime Control: the

Prosecutor. Paper presented at the 8th International Congress on

Criminology, Lisbon, September 4-9, 1978, 21.

Shea, M., A Study of the Effect of the Prosecutor’s Choice of Charge on

Maigstrates Sentencing Behavior. Britisih Journal of Criminology,

1974, 3, 269-272.

Van Kerckvoorde, J., Le Ministère Public et la poursuite du vol à l’étalage,

Déviance et société, 2, 4, 1978, 365-383.

Van Kerckvoorde, J., Actualités bibliographiques: les recherches sur le

Ministère Public. Déviance et société, 1979, 2, 197-198.

Van Kerckvoorde, J., L’étude criminologique des décisions en matière

pénale,

Revue de Droit Penal et de Criminologie, 60, 8-10, 1980,

813-838.

Van Kerckvoorde, J., Des décisions du Ministère Public en matière pénale.

Le comportement décisionnel de fait des magistrats du parquet.

Kriminologisches Bulletin/Bulletin de criminologie, 1980, 1, 49463.

__()8__

Figure 1 : Elements influencing the treatment of cases

Rules of criminal

Informal data and

General

law and penal

opinions peculiar

principles

proceedings

to the office of

magistrate

PS

Motivation

—

for

p

Decision maker

—— | Decision

Intervention

fact

proff

person

- trial

Organizational

L

data (case load,

Influence of

Influence of public

etc..

judicial services

opinion and non-

(police, magistrates,

judges, penitentiary

judicial interest group

services)

Figure 2: The application of the various manners of dealing with cases

by the office of the Public Prosecutor.

Out of 100 shoplifting offences reported to the office of the public

procecutor:

57 were dismissed (filed without being prosecuted)

2))

33 were prosecuted (brought before the courts)

Out of 100 casas of drunken driving in which immediate suspension

of the tdriving licence was possible:

I

40 led to an immediate suspension of the driving licence

60

40

60 did not lead to immediate suspension

hw\

>

The (observed) period of suspension varied from 2 to 78 days:

31

13 % less than one month (average 19 days)

56

56 % about one month (average 31 days)

31 % more than one month (average 51 days)

Out of 100 cases of drunken driving reported to the office of the public

prosecutor:

12

l

f'ff

|

12 were dismissed (filed without being prosecuted)

88

88 were prosecuted (brought before the courts)

U

Out of 100 summonses for drunken driving the relationship between the

nature of the evidence and the charge brought by the magustrate was as

follows:

in 87 cases they completely corresponded with each

N

other

In 13 cases they did not correspond either partly or

completely (almost always a lesser charge than was

possible)

/0

Figure 3: The magistrates and their decisions to prosecute

in cases of shoplifting.

% prosecutions

86%

71%

63 %

47 %

PE

42 %

29 %

BRSSGE

OS OE

ts

20 %

atetet t

Ct

OS ScO.

é

%

RE

5 %

RAASSO

RAROOCT

t

- nGGE

RP ICIO

e'sSotule

.......

BRRSSSIO.

..........

RASESE

........

BIOOE

ts

: sA

RAARASOOS

ct

RS SOOOC

ttetete TS

'etetetaTete

%

Magistrate :

No. of cases

14

31

35

01

15

38

49

25

40

39

60

Total : 397

_7]_

Table 1

Magistrate contacted and decision to suspend

Magistrate contacted

Suspension in

%

No. of cases

73

22

68

38

62

32

46

28

45

29

41

22

38

16

14

7

10

40

50

AUOSHMI-QOW>O

6

Average % of suspensions

37.2 % of 290 cases

Cramer’s

v = 54

p<.001

Table 2

Average duration of suspension, according to deciding magistrate

Standard

Magistrats

Average duration

No. of cases

of suspension

deviation

13

29,1

15,2

30,3

6

23

31,5

12

0,7

32,7

12

3,6

32,8

17

12,2

33,0

9

12,8

451

25

19,5

ODPIWO-TUO

4

45,5

19,9

Total

35,7

98

14,6

p< 01

Table 3

Comparison of a number of prosecuting magistrates and their decisions.

% of

Classification

Position according

Prosecuting

to increasing

suspensions

according to duration

Magistrate

% of prosecutions

for drunken

of suspension in cases

for shoplifting

driving

of drunken driving

(O %)

9 (68 %)

Longer-variable

â

(S %)

4 (38 %)

One month-stable

3

(8 %)

? (10%)

Longer-variable

4 (20 %)

6 (45 %)

One month-stable

One month-stable

5 (29 %)

7 (46 %)

6 (42 %)

1( 0%)

No suspensions

One month-variable

7 (55 %)

8 (62 %)

8 (63 %)

10 (73 %)

One month-variable

9 (71 %)

5 (41 %)

One month-variable

—- 03 TN 0Om>

10 (86 %)

3 (14 %)

Few suspensions-no

classification possible

Table 4

Sentences for shoplifting.

Verdict

f

%

% (1)

No conviction, unqualified, incom-

° . . ° ° ° . Q ° . ° . ° .

plete information

2,9

Acquittal

. * » L . ° . +À ° . . ° ° Q * ° . .

4 4

Adjournment

. ° ° . . . e e ° ° . ° ° ° ° .

18

13,1

14,2

Suspended fine

. . ° . ° . . À ° ° ° ° ° ° °

1,5

1,6

° . » ° . ® °

23

Suspended prison sentence

16,8

18,1

Fine + prison sentence, both suspen-.

ded

.… - . . . ° . ° . . e . . . . e ° ° ° ° ° ° .

0,7

0,8

Fine

° e » ° e À . À ° . ° . ® . . ° ° * . . . °

14,6

157

Fine + sispended prison sentence. .

53

38,7

41,7

Prison sentence (with or without

fine)

. ° ° ° ° ° . ». . . e À . ° ° ° ° . À . ° °

10

73

7,9

Total

Q . ° L ° e »* ° ® ° ° . ° ° . ° e À L ° ° °

237

100,0

100,0

(1) % calculated excluding the first two headings.

Table 5

Criteria for sentencing used by two criminal judges (1)

Duration of sus-

pension of

Level of fine

driving licence

Judge A Judge B Judge A Judge B

Past record

527

451

519

259

|

Judgement by default”

031

210

343

.038

Age of accused

059

096

054

148

Accident?

L ° . Û . ° . . Q . . . . * .

— .061

118

031

.036

044

Legal aid”

.. . ° ° . ° Û ° . . ° . . . .

186

009

— .173

Social position of accused .. . .

017

038

— .031

189

. À Q . ° . .

(2)

191

(2)

131

[Immediate suspension?

Professional need to have a

driving licence?

* ° . . . . . . ° . Q . .

O

‘)

008

192

- .028

Explained variance

(p still

less than 5 %)

. * . . . . . Q ° . . .

31 %

32 %

60 %

15 %

(1) The coefficients given in this table are beta values from regression analyses, given

per judge and per type of decision. The coefficients underlined are statistically

significant.

(2) Contribution two small: these variables were not included in the final analysis.

__74_

MATERIAL ALTERNATIVES TO LEGAL RESOLUTION 33

OF CRIMINAL CONFLICTS

Verner

Goldschmidt

I. INTRODUCTORY REMARKS.

This paper s mainly based on some empirical studies (1) which I have

made of the ways in which agents of conflict resolution —formal as well

as informal— behave under different social conditions. Of course empirical

research does not exist in a value free vacuum. Pushing it to extremes, I do,

spontaneously, prefer the attitudes behind the poem: ”Rules, rules, if

only they would disappear, the sun would again shine in our land” (2)

to the following sayings: ”’One jurist is more powerful against Satan than

a thousand unlearned men with their prayers’’ (3) and ”The law is the

foundation of a nation” (4). The ideas behind these words must be seen in

their social context. The poem has been created in a society of the Gemein-

schaft type while the sayings come from societies with the characteristics of

Gesellschaft (5). I think that lawyers all over the world would agree with

the ideas underlying the sayings, but I do not (6).

In spite of, or, perhaps, due to the fact that I have been legally trained

both theoretically and practically, the reader will already have understood,

that I seriously about whether law, legal systems and jurists can solve the

type of problems that has so far been defined as crime or criminal conflicts.

The eternal discussions about the possible social and ‘ndividual functions

of punishment and its therapeutic alternatives, the studies on culture

conflicts and crime, the recognition that not one but several legal systems

operate within a territory governed by a national state indicate that if law

plays any role as a tool of governing peoples’ behaviour it is by and large

a superficial phenomenon, which does not influence the belavioural decisive

factors. This short statement involves a number of difficult questions, some

of which I hope to clarify in this paper although I cannot an wer them (7).

In this connection it is worth remembering that according to German

law during The Third Reich it was the duty of the state to kill jews and

gipsies. In South Africa it is legal to discriminate people due to the colour

of their skin it ii commonly accepted by the national states that during

war their citizens are obliged to kill ”the enemies”. Human life is not

under all circumstance the supreme good, although this attitude is so

often and clearly expressed in declarations of human rights. Many countries

preserve social conditions which imply that poor people die from hunger

“ Centre of Interdisciplinary Studies Copenhagen

School of Economics and Business Administration

775._

or from pollution caused by cheminal industries. In my country, as in many

other countries, stabbing a person to death is murder, while it is not re-

garded as murder if a nanger of a chemical industry pollutes several workers

and others slowly to death.

In other words the concept of crime is so ambiguous and awkward that

it blurs realities rather than acts as a tool to understand and change them.

Applying the term crime gives the impression that it is simply a type of

behaviour which violates certain categories of legal norms. However, it

completely conceals the fact that ”crime” always refers to the ”criminal”

as an actor in conflict with others whether they are private persons or

agents of the law. The legal norms which define certain persons as criminals

and certain acts as crimes are of course important to know in order to

understand the formal mechanisms of social control in a society. However,

it is only part of a much more complicated and important problem -where

the legal aspect is only one dimension of a total situation characterized by

the fact that actors with conflicting interests, value orientations and needs

of aggression clash (8).

It is common to look at the crime problem one-sidedly from the legal

angle. However, the aim of this paper is to look for other approaches to

criminal conflicts, trying to demask whether power or other social in-

equalities, cost/benefit considerations or socio-cultural incongruities can

provide better explanations of the crime problem than legal and crimino-

logical theory and practice (9). I hope to be able to point out at least some

important non-legal factors which contribute to the creation of crime con-

flicts in order to make it possible to change certain types of crime conflicts

into social/political problems that can be prevented or reduced beyond the

limits of the legal systems by social planning and other political measures (10).

I am not so naive as to believe that law has been played out as a means

of governing and social control. But I want to raise the question how far

law is an appropriate means of reaching these goals in various social forma-

tions. To me it is important to observe the increasing endeavours to decri-

minalize and dejuridize social conflict solving and the growing recognition

that legal pluralism within a territory is usually hidden behind the legal

system which is the only one that national lawyers accept (11). I see these

trends as indicators of a decreasing social need for legal experts even in the

centralized capitalist state. In so far as this assumption is correct I can agree

with Nils Christie’s view that the jurists in the courtrooms are professional

thieves who steal peoples’ conflicts which in his opinion are their prop-

erty (12). However, other students of law and social conflict have stressed

the importance of the historical development from dyadic fight to triadic

conflict resolution, which means that a third impartial actor acts as a

mediator or judge between the conflicting parties. As Vilhelm Aubert

puts it: ’The basic event —is the transition from the dyad of the conflicting

parties to the triad, where an intermediary who stands outside the original

conflict has been added to the dyad. The position of the third person and

the choices which are open to him furnish the most fruitful starting point

for an analysis of the development of conflict resolution within law” (13).

I am fully aware that one of the costs of this transition is that conflict

resolution in the courtroom implies that at least one of the involved persons

is going to be authoritatively stigmatized and risks to lose face in one or

more social contexts (14).

Maybe such costs form an integral part of legal conflict resolution,

the benefits of which are generally assumed to be protection of the individ-

ual against yhe powerful and the dangerous actors in a society. My basic

attitude towards the question whether law and jurists are necessary in the

process of conflict resolution or whether, on the contrary, they prevent it,

is that the answer depends on the social context. The type of conflict as

well as the social formation in which it takes place must be taken into con-

sideration. I shall try to illustrate my points of view by some oberservations

I have made on conflict resolution in various social formations.

I[. RESOLUTION OF CRIMINAL CONFLICTS

IN VARIOUS SOCIAL FORMATIONS.

In this chapter I am going to focus on conflict resolution in 1. small

communities under change, 2. a big industrial society consisting of two

contesting parties and 3. big cities where the authorities are frequently

confronted with youth unrest and protest movements.

1. À Greenland Example.

À series of studies of changing Greenland communities shows that they

were manifold, small and more or less isolated. Their mode of production

was collectively and informally organized. The producers, i.e. the hunters

and their wives had to cooperate and to share their products under circum-

stances characterized by scarse resources. The Eskimo living conditions

were so hard that close economic cooperation was a condition of survival.

The high degree of economic solidarity was the crucial characteristic of the

Eskimo mode of production.

Much information about Greenland before the period of industri-

alization and urbanization demonstrates that the economic pattern of

solidarity was reflected in the level of consciousness of the members of the

community (16). They felt a need for living and working together. The

degree of mutual identification was very high as it is the case in primary

groups. They had a strong feeling or consciousness of solidarity. This could

be seen in their active tolerance towards each other which implied that

members who were less solidary that the community expected were sup-

ported to improve their capacity for cooperation (17).

Numerous examples of active tolerance by members of Greenland

communities indicate that members who behaved in ways which we in the

industrial world call ”’deviant’” or ”’criminal” were assisted, socially and

economically, once it was realized that it was much more benficial to them

as well as to society to help than to repress. It is a characteristic of their way

of conflict resolution not to ”ad insult to injury” or ”oil to the fire”. In

my opinion an important aspect of the above mentioned consciousness of

solidarity is that peaceful togetherness was consdered far more important

than my infliction of pain or repression.

Let me give some examples: A hunter in the northern district of

Upernavik retumed from a hunting expedition and reported to the local

council that he had seen another hunter and his wife steal from the com-

munity hunting cabin. It was a matter of a few small household articles,

which, however, would be of importance to anyone staying in the cabin for

any length of time. The chairman of the council rebuked the hunter for

reporting all this, saying that he had only added insult to injury. The chair-

man took no action against the reported couple, despite the fact that they

had offended the economic solidarity. His motivation for this was that the

couple were likeable, hardworking people, and that he did not want to risk

driving them away from the community by embarrassing or insulting them.

He reasoned taht sooner or later they would correct their error, and that is

what happened. One day several months later when the chairman was

paying a visit to the couple, the hunter’s wife came forward and gave him

the stolen articles without either of them mentioning the affair.

% * *

Some years later, in 1950, an instance occurred where a man in Sisimiut

supported himself and his wife and three children mainly through theft. The

family lived in mesery and were often forced to seek shelter in the homes of

other families. The local council deliberated various courses of action in

the matter and finally concluded that the only thing that would put an end

both to the man°s thefts and to the miserable conditions under which the

family lived would be to secure them a home-builder’s loan and get the man

a job at the local fishery. These measures were successful, and after an

amazingly short time the family’s situation was improved to such an extent

that the man to longer needed to steal from other members of the com-

munity.

However, if a member of the small Arctic communities represented a

serious threat to their solidarity it might lead to his exclusion of the com-

munity or his elimination. In the same way it was considered acceptable

to get rid of those who, because of a violent and brutal personality, ad-

vanced age or severe illness had become an unacceptable burdeé to society.

One has to remember that the Eskimo societies were very sensitive to

changes in climatic and ecological conditions and that during many winters

76

food was so scarce that there was not enough to feed everybody. The

isolation implied that the community members were very much dependent

upon their own resources. People in such societies need to live with one

another in peace and in solidarity with very little tendency towards re-

pression. At the same time that kind of social formation leads to the ex-

clusion or elimination of members who represent a constant threat to the

system (18).

The following example illustrates one of the ways in wtîich —ust before

the industrial boom in Greenland— the community excluded a member who

could not be accepted for a while. I shall not in this paper focus on the ori-

ginal Eskimo blood feuds and collectively resolved killings of unaccepted

persons.

In 1948 a drunken fisherman raped and killed a 3-year-old girl at

Qaogortog. Not only the girl’s family, but practically the whole community

were shocked and outraged. The murderer was quickly exiled from the

community and by a local lay-court (19) sentenced to stay in a small

settlement further north in the home of a hunter, where he would receive

the same treatment as the sons of the family.

The deported murderer got along very well in the new community and,

having found himself a wife —the local midwife— he remained there much

longer than the seven-year-term specified as a maximum in the sentence.

The residents of Qaogortog, where he had killed the girl, were at first

relieved to be rid of him. Then, after a time they talked no more of the

incident —nor did the parents of the victim— and nobody protested when,

fifteen years after the murder, the fisherman returned together with his wife

and children. He worked again together with his old friends and relatives

without any conflict until his death several years ago.

These examples of resolving what are in contemporary industrial states

considered to be criminal conflicts illustrate some characteristics of conflict

resolution in the Gemeinshaft type of social formation with a solidary mode

of production and a strong consciousness of the necessary solidarity. How-

ever, in the fifties a process of industrialization and urbanization was

started. Many Europeans, primarily Danes, arrived, and a development

towards the Gesellschaft type of social formation took place. In spite of

these very important changes it was a widespread wish among Greenland

and Danish politicians to preserve the traditional Greenland ways of resolv-

ing criminal conflicts with some adaptation to European, i.e. Danish re-

quirements. Based on systematic research a draft for a criminal code was

prepared and the bill was enacted in 1954 (21). During the research project

three fundamental hypotheses were formulated as to the effects of the

codification of the informal pattern of conflict resolution: The codification

would preserve it and it would serve as a guidance for the agents of the law

and it would satisfy especially a Greenland collective need for symbols of

- 79

justice and equality between Greenlanders and the many Danes, who

would visit Greenland because of the starting industrialization (22).

However, the codification did not have the intended effects. The infor-

mal conflict resolution pattern was not preserved in all the places which

were urbanized. The ways in which conflicts were solved were, all things

considered, more influenced by the new modes of production and the de-

creasing economic solidarity. The consciousness of solidarity was increa-

singly being replaced by competitive attitudes and a growing tendency

towards stigmatizing and isolating people who violated the increasing

number of legal regulations. The hypothesis that the criminal code would

guide the agents of law and satisfy a collective need for symbols of justice

and equality has, however, been confirmed especially in the communities

that have experienced a high degree of urbanization. But even in the small,

most isolated communities the same trends can be seen because their mem-

bers are beginning to be technologically dependent on the larger centralized

formation, which requires effeciency and conformity from the point of

view of productivity and organizational order (23).

The original solidary way of conflict resolution in the small com-

munities has attracted many progressive students of crime and punishment.

To them Schumacher’s thoughts about ”Small is Beautiful” have a great

ideological value. However, the ”beauty” is everywhere reduced by the fact

that every small society is part of a larger centralized social formation

characterized by economic inequality, legal norms and a legal profession

Wwith its demands for conflict resolution by means of punishment or other

repressive measures according to a legal system that protects the power

structure of the society.

The Greenland example indiacates that the types of conflicts, and the

number of conflicts and the ways in which the conflicts are dealt with are

influenced far more by the modes of production than by law. Legislation

and the legal profession can conceal and justify the ways in which courts

and police ”solve” conflicts caused by struggles for scarce resources or

struggles between conflicting ideas and values, but they cannot solve them.

2. A Cyprus Example.

Cyprus which became an indemendent republic in 1960 defines in its

constitution the position and rights of the Greek and Turkish Cypriots.

In 1969, from which year the following information is given, the Greek

majority amounted to 77 % of the total population, while the Turkish

minority only constituted 18 %.

Right from the beginning there was tension between the two groups,

and during 1963 relations became critical and an increasing number of

violations and killings took place. Due to this fact the UN-Security Council

resolved in 1964 to create an international peacekeeping force which was

— 380 —

sent to Cyprus. One of the participating countries was Denmark which sent

a battalion called DANCON, the activity of which was studied systemati-

cally in order to get information about the ways in which attempts were

made to solve violent conflicts in a peaceful way. The research was done in

1969 (24).

As expressed by UN’s local Senior Political and Legal Adviser the

crucial points in peacekeeping operations are to solve a violent conflict

quickly without considering which of the parties is legally and morally

responsible for the conflict and to interact with them face to face and

9

through these peacekeeping actions to restore

… quiet and thus creating

an improved climate in which political solutions may be sought” (25).

Some examples may illustrate how these principles of peacekeeping

were applied in practice:

In 1966 on ’The Green Line” in Nicosia a civillan Greek Cypriot

was hit on the breast by a brick thrown from the Turkish area. He tumbled,

and a crowd gathered round him and -very excitedly- cried for revenge.

Two sergeants, representing the Greek and the Turkish Cypriot local posts,

respectively, were present, and they, too, were excited and very hostile

towards one another. A Danish UN sergeant arrived and addressed the

two sergeants. At the same moment a Greek Cypriot officer of a higher

rank arrived, demanding immediate and militant reaction against a number

of Turkish Cypriots in a house in the Turkish zone. The UN sergeant called

his company over the field telephone informing them about the critical

situation and the presence of the Greek Cypriot officer. Then he tried to

calm the man who had been hit by the brick and who was slightly wounded.

Furthermore, he tried, by gestures, to disperse the excited crowd. A UN

patrol arrived with another UN sergeant and the Greek Cypriot officer

disappeared, presumably because of his disapproval of negotiating with

military personel of a lower military status. The sergeants representing the

contesting parties and the UN force discussed what to do. The UN sergeants

pointed out the fact that neither of the two conflicting headguarters had

ordered a fight at that time and place and that if the UN sergeants reported

the incident to the two headquarters they might take action against their

sergeants because they had seriously interfered with the attempts to reach

a political solution of the conflict. Due to these arguments the sergeants

from the two conflicting parties cooperated with the UN sergeants and

reestablished a calm,situation, and no further events took place. The whole

operation from the beginning to the end lasted precisely one hour”.

This case illustrates how agents of a peacekeeping force succeeded in

solving a conflict superficially, without deciding which of the parties was

right and without any reference to legal and moral aspects of the conflict.

However, the conflict resolution was only a shortsighted one without any

political dimensions. In that way 72 % of a total number of 735 conflicts

were solved in the period of research. It is worth noting that 96 % of this

number were coped with without reference to existing agreements and

regulations. Many of these incidents and conflict resolution activities were

followed up by politically and materially constructive measures, i.e. 76 % of

the above mentioned number. The following example can serve as an illus-

tration:

”In a certain area in the Lefka District the Turkish and the Greek

Cypriots were fighting violently. Both groups needed access to the only

local supply of fresh water: a well. One of the groups possessed the well at

a given time, and the other group ”stole” water from it during the dark

nights. Sometimes the ”thieves” were wounded, at other times the pos-

sessors were the ”victims” of the ’’crimes’’. The violent conflict escalated,

and the mutual hatred increased. After a while one of parties called for

assistance from the UN peacekeeping forces who ordered engineers to inter-

vene immediately. They quickly installed two pipelines from the well, one

for each of the parties who accepted that UN took care of the water supply

and stopped fighting. Both of them could get sufficient water from the well

without confronting each other. The violent conflicts creased in that area”.

This case has to me stressed important aspects of the eternal and global

crime problem. According to the traditional way of solving crime conflicts

we might consider the men who took water from the others’ well to be

criminals. However, we might also choose to consider the possessors of the

welll as criminals excluding others from getting necessary water supplies.

And we could of course look at both parties as criminals. At any rate we

could consider the conflict from the point of view of guilt and responsi-

bility, in other words judge the case in terms of punishment and penal law.

On the other hand one could choose the way of conflict resolution

which in fact was applied. A material basis of living was created for both of

the involved parties by the intervention accepted by both parties —of im-

partial men using very simple technical means. My point is that instances

of behaviour that are usually dealt with legally an considered to be criminal

or illegal were made unnecessary by technical improvements of a water

supply and water distribution system. Lawyers were not involved, the

conflicting parties preferred practical, material assistance to legal or norma-

tive reactions. The crucial condition of the stoppage of the violent conflict

and the suspension of hostilities may have been the fact that an intervening

party based its solution on the conflicting parties’ common interests: water

supply and survival.

During the short period of research the UN conflict solving behaviour

was, as mentioned above, very successful on a short view. This means that

none of the basic political causes of the general conflict between the parties

were influenced. But bloodshed and vandalism were stopped for a while

because of the intervention of UN agents of peacekeeping.

_82_

Types of UN peacekeeping activities:

%

Preventive measures

611

63

Intervention in a started conflict

° . e . . °

185

20

Mediation

. . L L . « . . »# . ° . e © —. +e e 6 —# à

150

17

Total number

946

100

Preventive measures are observation, alert, investigagion and reporting

to the contesting parties that signs of a possible conflict have been observed.

Intervention is protest, establishing a post or moving into an area

between the conflicting parties, protecting or escorting one or both of the

parties and repair or reconstruction of material or social conditions in-

itiating the conflict.

Mediation consists of influencing the parties to stop the conflict by

appealing to their own —common— interests or to create or demask such

interests.

The Cyprus examples indicate that it is possible even within a large

social formation where two hostile groups with opposite interests and value

orientations are conflicting violently to create at least a temporary and

partial feeling of solidarity between them. On the other hand external

forces: the war between Turkey and Greece in the late seventies completely

removed the conditions of this solidarity for a period during which the

above described type of conflict resolution was impossible.

Regarding the Cyprus examples it is finally worth noting that law,

legal thinking and legal practice did not play any role neither as a means

of conflict resolution nor as a factor that could prevent conflicts. On the

contrary, even the only involved lawyer, the UN legal adviser in Cyprus,

seriously warned the agents of conflict resolution against any use of legal

argumentation despite the existence of both legal agreements and regu-

lations.

3. Social Unrest and Protest Movements in Large Urban Societies.

In most Western industrial countries conflicts between members of

more or less inidentifiable protest movements and political and legal auth-

orities have taken place especially during the last decade. The protesting

groups also include workers, farmers and fishermen who have carried out

actions against the state or its agents. The common characteristics of the

various actors have been that their ” … grounds for action were major social

problems, to which the law and the legal system had no adequate response,

i.e. questions to which the ”legitimate answer”’ was basically unacceptable…”

=6

to them (26). Furthermore, the actors express economic interests and pol-

itical points of view by means which violate ordinances protecting ”the

public order’’, private property and penal law.

This section does not focus ont the conflicts between occupational

groups or classes and the state. It deals with young people who occupy

empty houses and factory buildings belonging to the public or to private

persons or enterprises. Though the types of protests actions have not varied,

the ways in which the authorities have reacted vary a lot, despite the fact

that the conflicts have taken place within the same social formation. The

examples that will be presented below have been important public issues,

they have, however, not yet been systematically analysed. The types of

reaction which are going to be illustrated are: a. traditional prosecution and

sentencing, b. police intervention involving violent means, c. police inter-

vention combined with mediation and d. political attempts to solve a social

problem without any police intervention and prosecution.

a) During the period from September 16th till October 30th 1980 a

group of 14 yougsters (from 15 to 19 years of age) belonging to a group

called ’’Paria’’ occupied some houses. The activists were house-hunters,

youngsters out of work and pupils who protested against the municipal

housing policy accusing it of being socially unjust. The city council reported

the occupations to the police who arrived in the early morning hours to

remove the activists who, however, voluntarily left the houses. The activists

were charged with ”disturbing the peace of the home” because they had

forced their way into houses belonging to others. This is the contents of

Section 264 of the Danish Penal Code (27) according to which the actions

of the group were considered to be criminal. The counsel for the defence

referred to the fact that the youngsters had social problems which the mu-

nicipal politicians had done nothing to solve, and that no economic interests

had been violated because the houses were not in use. The court did not

accept these points of view, not even as extenuating circumstances and

sentenced the youngsters to fines or, as an alternative, to five days’ impris-

onment. Besides they had to pay the costs of the case including the salary

of the counsel for the defence (28).

None of the members of the ”Paria”’ were present in the court-room

nor were any politicians or others whose job it is to deal with social pro-

blems in the region. The actors were lawyers and only legal considerations

were dicisive, i.e. the social conflict was ”solved” by punishment which

stigmatized the young women and men as criminals. The political conflict

between citizens and politicians was transformed in the courtroom into a

question of norm violation, crime and punishment. The citizens’ attempt

to provoke a dialogue with the local men in power had completely failed.

Appeal against the sentence has taken place.

b) During the period from October 1981 till March 1982 activists

several times occupied empty buildings in the city of Copenhagen. One

of the buildings —an abolished factory— was private property, the others

were owned by the city. In these cases the activists had barricaded the

entrances of the buildings and the number of activists was much larger than

in the above mentioned example. On one of the occations the police who

was called by the city council attacked the occupants using teargas and

battoons. On another occation a battle-like situation arose when the police

was violently attacked by the occupants who threw pieces of furniture and

other heavy objects at them. The police drove a heavy car against one of

the barricades, entered into the building and started using their battoons

and other means of violence. These incidents initiated heated debates in the

mass media about who was responsible for the violent conflicts. Even in

the Parliament and in the City Council of Copenhagen the issue was

anxiously discussed and the question was raised whether the use of police

force could solve any of the social and psychological problems that presum-

ably caused the protest actions. The police organizations protested to the

Parliament and the Minister of Justice against the marginal and critical

position of the police between the politicians and groups of citizens. In

their opinion it was not the task of the police to pull the chestnuts out of

the fire for the politicians. The young activists had several times tried to

contact the Lord Mayor of Copenhagen who is the top politician responsible

for the regional social policy, but withour sucess. He refused to talk to or

negotiate with unidentified squatters whose letters were not formulated and

signed correctly according to administrative practice. He was severely

criticized for his bureaucratic attitude and for being negligent of his social-

political responsibility. Forced out of one house the squatters occupied

another building and the police reduced its militant activity. Now —during

the writing of this paper— the public has been informed through the mass

media that some of the buildings that were occupied by the squatters have

been placed at their disposal. Few of the squatters were prosecuted charged

with violence against the police. However, some of them were sentenced to

4 months’ imprisonment on that charge (29).

c)In November 1981 in another large city nearly 200 youngsters,

house-hunters, people out of work, students and pupils occupied an empty

building owned by the university of the city. They wanted the building con-

verted into a youth centre and flats. Most of the features of this action are

essentially identical to the occupations described above, however, there is

one important exception. À lecturer in criminology at the university inter-

vened offering to mediate between the university and the squatters. He was

accepted by the occupants --who were not organized— and in the beginning

by the university. He participated in negotiations between the university

management and the chief of the regional police who is legally responsible

for the maintenance of ”public peace and order” in the city. An immediate

police action was prevented though the university wanted a quick operation.

The chief of police was not interested in a violent confrontation. The first

result of the mediation activity was apparently the development of an

attitude of freezing (the building was unheated) the squatters out. This

idea was partly realized as most of the squatters left the building during the

period of hesitation. The reason was partly that the building was completely

without facilities and prepared for demolition, partly that the group experi-

enced internal political disagreements.

After one month only a ”hard core” of nearly twenty activists were

left. Then in the middle of December early one morning a big police force

invaded the building arresting the small group who did not resist. À violent

confrontation was avoided and only a few of the group members will be

prosecuted according to the Penal Code. It is the opinion of the mediator

that it is presumably a result of his endeavours that violent confrontations

were avoided, but that no social problems were solved and that new protest

actions are probably ahead (30).

d) Finally it has to boe mentioned, though documentation so far is not

at hand, that in the autumn of 1981 the mayor of a minor municipal region

in the western surrroundings of Copenhagen personally, without calling the

police, contacted a group of squatters who had occupied an empty build

ing owned by the city council. When she was informed of the occupation

she together with another local politician went to the building to discuss the

social problems with the group. Their primary goal was to get a youth

centre and rooms where they could stay and live. Having discussed the issue

the squatters promised to leave the building in a couple of days if the city

council would fortify its efforts to establish the facilities they needed. The

mayor accepted the conditions though she got a lot of trouble with both

the political opposition in the council, her colleagues in the Mayors’ Associ-

ation and the jurists in the municipal administration. In spite of all these

troubles it became an important part of the regional social policy to provide

the young househunters and unemployed people in the region with the

rooms they needed.

This housing policy is at the time of writing going to be carried into

effect in close cooperation with the group and other youngsters, completely

without any intervention by police, courts or other agents of penal law and

the legal system (31).

IIT, CONCLUDING IDFAS AND PERSPECTIVES.

1. Do the examples presented in this paper tell you anything new?

It depends on your frame of understanding and value orientation.

However, it is important to note that all the examples are taken from

research projects and studies I have been asked to do. Nevertheless, I have

to admit that [ am very engaged in the problems of conflict resolution

and that, having done research on criminal law and having functioned as

80

a governmental legal adviser and police attomey and judge, I doubt the

value of law as a tool of solving social conflicts.

To me the above examples indicate the importance of considering the

limits of law as means of solving the type of conflicts which so far has been

characterized as crime. Policing social conflicts does not solve any problems,

nor does the behaviour of jurists in or outside the courtroom.

The above examples also point out the social formation as an influential

factor with regard to the possiblilities of changing legal conflict resolution

into political problem solving. If the society is based on economic solidarity

and its members are emotionally solidary there is no need for laws and

jurists. The solidary social formation is generally a very small one charac-

terized by a close material and emotional interdependence between its

members. The larger the social formation is, the more particularistic the

situations of material and emotional solidarity will be. Mediation combined

with material problem solving can, as in Cyprus, temporarily create situ-

ations of solidarity between conflicting parties.

Viewed from my angle the examples illustrate that legal conflict resol-

ution may be a means of legitimating and concealing power in social forma-

tions where the distance between powerful and powerless groups or classes

is great. In social formations characterized by material and psychological

solidarity conflict resolution is predominantly an expression of the existing

material and emotional solidarity. Therefore the actors involved in a conflict

do not need laws and jurists, because they actually have the basis of solving

the conflict themselves or using a third person as a mediator or an ”expert”

who knows something about the causes of the conflict. In the industrial

capitalistic state as in other big social formations characterized by an

unequal distribution law jurists act not only as tools of the ”’men in power”

they even conceal the causes of conflicts and prevent their solution or pro-

voke their escalation. The struggle for supremacy of one legal system over

others has to be considered, too, in this connection (32).

2. Alternative Conflict Resolution. Theoretical Approaches.

a) Marc Galanter has in a very clear-cut way analysed various ways

in which ”to restore, alter or replace existing legal arrangements” (33).

He points out three critical and constructive theoretical responses to ”the

legal order”. To put it in his own words: ’’The first I shall call the legalist

response: it embraces the notion of law as a special kind of knowledge

according to which society should be ordered. This view accepts the notion

of an autonomous, self-contained legal order, distinct from other insti-

tutional orders (political, religious, economic) and independent of them,

organized in formal bureaucratic stuctures, staffed by professionals who

are proficient in specialized legal learning and who administer impersonally

a body of general rules. The other two responses depart from the legalist

vision in spearate ways. The technocratic response rejects the self-contained

3/—

and formal quality of the law in favour of a purposive and instrumental view

of social control. The communal response rejects the bureaucratic and

professional aspect of the legal order in favour of informal and communal

organization of social control. Both technocratic and communal responses

reject the notion of law as an autonomous order…”” (34). He is fully aware

that these three types of response overlap each other.

In the ligt of my observations and ideas laid down in this paper it is

important to stress especially one of Galanter’s conclusive remarks, namely

that the law flourishes where there is neither technical (material) solutions

nor community consensus. He finishes his analyses by stating that under

such circumstances law’s capacity to solve problems ’’falls painfully short

of its call to address them” (35).

It is important to note that Galanter’s critical theoretical analysis is

based on the idea that the legal system of a territory is impotent if it does

not respect the existence of several other formal or informal legal sub-

systems within the area. On the other hand his approach to the question of

law as a means of conflicts resolution is predominantly based on the legal

aspects of the problem.

b) Richard L. Abel criticizes the attempts that have been made es-

pecially in the USA to transform formal crime conflict resolution into an

informal one (36). In this opinion the trends towards conflict resolution

beyond the courts in the capitalistic state is of no importance because the

ideology behind both the formal and informal approaches to conflict is the

preservation of the established power structure. To him the shift —in con-

temporary criminal policy— towards informal treatment of offenders is

pure strategy. Both formalism and informalism are mechanisms of legalizing

political conflicts. The differences between the two types of approaches are

only superficial, therefore it is an important task to repoliticize the social

conflict and conflict resolution. However, in the capitalistic society the

ruling classes wish to legalize the social conflicts and use jurists as conflict

solvers in order to preserve the establishment while the oppressed classes try

to politicize the conflicts in order to remove domination and exploitation.

According to Abel’s viewpoints law and legal systems keep peace and

social stability on the premisses of the powerful and prevent the social

changes needed by the powerless groups and classes. No doubt Abel is one

of the most eminent spokesmen of a delegalization of crime conflict resol-

ution and its transformation into a political issue. If I understand his ideas

correctly his concern is primarily law and politics in a capitalistic social

formation. He is not focusing on other types of social formations, nor

does he deal with e.g. the economic factors and social networks in a capi-

talistic state which condition the choice between legal and non-legal

measures as a means of handling social conflicts. His goal is first of all to

reveal that ”’Liberal legalism” is a prominent means of the ruling classes of

protecting their own interests mediating ”the contradictions of capitalist

society” (37). Maybe he disregards the problem of legal pluralism: the fact

that within a large social system ethnic minorities, grassroot groups, protest

movements and other more or less organized collectives may have rules

which they regards as their law while the jurists consider them to be crimi-

nal and violating the official law which in their professional opinion is based

on the People’s consensus (38).

c). Some Norwegian conflict-theoreticians have to be emphasized

because of their important contributions to the understanding of social

conflict and conflict resolution as integral parts of social life. Johan Galtung

regards social conflicts as important factors of motivation in our lives (39).

Without conflict the society would die, however, you have to distinguish

between the conflict and its consequences some of which can be destructive

and lead to brute violence. Galtung does not at all consider the problems of

conflicts from a legal angle nor do some of his legally trained colleagues who

see, despite the fact that they are jurists, social conflicts from the side of

the total society (40).

Nils Christie has basically a similar approach to conflicts, however, his

ideas differ in so far as he sees ’’conflicts as property”. One of his main

points of view is that ’’We have to organize social systems so that conflicts

are both nurtured and made visible and also see to it that professionals do

not monopolize the handling of them”’ (41). He proposes the introduction

of lay-oriented courts instead of legal ones and he describes the jurists as

’conflict thieves” stealing peoples’ conflicts and conflict resolution. It is an

expressive characteristic of Christie’s attitude towards penal law and ju-

diciary that he, both jokingly and seriously, has proposed to change the

title ’professor of penal law” to ”professor of right to pain”. One of his

main goals is to deprofessionalize conflict resolution and leave it to people

themselves. No doubt some jurists and criminologists find that his ideas

push the conflict problem to extremes. However, his views are in close

harmony with contemporary grassroot and protest movements.

One of the many students of crime and conflict who have been in-

spired by Christie’s ideas is his colleague Kjersti Ericsson who has recently

—in 1982— published her considerations and observations regarding

’alternative conflict resolution” (42). Though, by and large, she agrees

with Abel as to his views that legalizing conflict resolution is advantageous

to the men in power, she considers the question to be a bit more compli-

cated. Groups or individuals who are being discriminated because of their

sex or race can get protection against those who are discriminating them

by appealing to e. g. the Norwegian legal system and its jurists. And a legal

norm prohibiting pornography may be a basis for women°s fight against

sexual exploitation and for equality between the sexes.

Ericsson also looks at the question of conflict as property in a rather

nuanced way. She is sharing Christie’s observation that there is a trend in

large social systems to deprive people of their conflicts and conflict

resolutions, to push the conflicts and resolutions upwards in the hierarchy

of the legal system. However, she has also observed a reversed movement

pushing political or socio-structural conflicts, e.g. between political leaders

or parties downwards forcing people into interpersonal conflicts which

they do not want. If for a moment I remind you of the Cyprus example

described earlier in this paper you will understand that I fully agree with

this statement of hers. She herself presents several examples of social

situations where people do not want to possess conflicts and to be respon-

sible for their solution. I should like to add that in a highly industrialized

society many conflicts may occur which people find too complicated and

difficult to handle themselves. In such situations they may see a professional

third person as a useful assistant and not as a conflict thief.

As 1 see it one of the most important observations of Ericsson’s is

that, from a legal point of view, crime conflicts are considered to be devi-

ations from norms which are based on the presumption that social con-

sensus exists which implies common interests and values that actually do

not exist in a large social formation. Another essential point of hers is that

the crucial problem of alternative conflict resolution is to develop a new

approach to the handling of oppositions and confrontations in the social

context without legal considerations. In this connection she focuses on the

needs and conditions of transforming legal conflicts to political ones and

Vice versa.

3. Final Remarks on Material Alternatives to Legal Resolution of Criminal

Conflicts.

Legal approaches to conflict resolution regard conflicts as infractions

of the legal norms and the conflicts are resolved by forcing ”the offender”,

ie. one of the involved parties to conform to standard behaviour by punish-

ment alternatives, or by psychological, medical, surgical, psychiatric or

other therapeutic treatment. It is not a question of solving à problem,

the maintenance of existing legal norms is given the highest priority, even if

the procedure does not lead to any improvement of the relations between

the parties of the conflict.

The legal conformity approach has a very high prestige in large social

formations where the men in power either want to oppress the other party

in a legitimate way or do not know the causes of the conflict, or both. In

cases of social unrest and protest movements due to economic crises the

legal conformity approach is the most easy way out of the problem seen

from the top of the society.

I have presented several examples and referred to various theoretical

analyses indicating the antisocial and inefficient results of the legal con-

formity approach which neglects that the influence of law is restricted by

material and social conditions. Legislation and legal reaction can conceal

90

and justify the ways in which courts and police handle conflicts caused by

stuggles for scarce resources or between conflicting values, but they cannot

solve them. The intended conformity presupposes a state of consensus and

solidarity which does not exist in large social formations.

The alternative to the legalistic conformity approach is problem solving

activity which implies the existence of economic solidarity and emotional

solidarity between those involved in a conflict. The problem solving ap-

proach is primarily characterized by the attempts to restore peaceful living

and working conditions in the concerned society. These values are given

higher priority than the maintenance of existing legal norms. The material

alternative to legal conflict resolution presupposes that both of the con-

flicting parties are interested in solving the conflict. The stronger this

common interest is and the stronger they recognize and sense it, the more

reason they have to solve the conflict themselves. If they cannot find a

solution one or more members of their own society can assist them by

appealing to their common interests or creating conditions of interests

shared by both parties. This type of conflict resolution is, however, as far

as I can se only possible if the parties and those who handle their conflict

basically have common material interests and value orientations.

I do not know of any large social formation characterized by economic

and emotional solidarity. In my opinion this is the reason why the jurists

cannot solve criminal conflicts but usually regard one or both parties as

criminals. The distance between the jurists and the parties of a conflict is

generally too big. In minor social formations whether they are local com-

munities or ethnic minority groups, grassroots or participants in- protest

movements the material and emotional solidarity exists to such an extent

that their conflicts can be solved without appealing to the legal system

and its agents.

What then are the practical implications of the material alternative

to the legal conformity approach to criminal conflict resolution? It depends,

of course, on the causes of the conflict. If the cause is unequal distribution

of scarce resources the problem of production and distribution has to be

considered. If, as in Sweden in the mid-1960s, there is a sharp increase in

fraud offenses the banks can remove their guarantee to cash cheques used

as payment in e.g. shops or restaurants. That is what they did in Sweden

and as a result the cases of cheque fraud dropped drastically in 1971. Later,

in 1979, the number of that type of offences again rose sharply for other

reasons that have so far not yet been handled. The cases of practical non-

legal solutions of conflicts are numerous: Technical improvements of

traffic conditions instead of punishment, medical prevention and cure of

veneral diseases instead of repressive legal measures etc. etc. But regardless

of even the most effective and constructive attempts, we will still be faced

with persons who are considered ’’dangerous’ and who we either cannot

or do not want to retain in society. Neither the legal conformity model

Ql —

nor the problem solving model can solve such a conflict without in one way

or another having to live with or get rid of individuals who are permanently

unsolidary.

Before finishing this paper I want shortly to stress the most important

characteristics of the material alternative to the legal resolution of crime

conflicts :

a) The parties are or can be made interested in having the conflict

solved

b) material and emotional solidarity characterizes the social context of

their conflict

c) the parties can, through close and continuous contact or by a me-

diator become aware of their common interests and

d) the economic, social and psychological causes of their conflict can

be changed by themselves or by calling in an expert.

I cannot finish this paper without mentioning the event which more

than theoretical studies has influenced my attitude towards the resolution

of crime conflicts:

In a small community south of the capital of Greenland practically

everyone made their living by fishing. One day in 1949 the catch was

unusually good. The fishermen returned with more fish than the local

salt-house could accomodate.

The only local fish merchant had to refuse the fish that could not be

housed. The fishermen who were unable to sell their catch were enraged,

and in the course of the day they became increasingly aggressive, with much

drinking and vandalism. Finally they attecked the merchant’s home

smashing windows and destroying various installations.

The next day the merchant wrote to the chief of police in the capital

reporting the incidents and demanding prosecution of the criminals and

the establishment of a local jail with detention facilities. Due to the chief

of police, who was born and raised in Greenland, money was spent on

increasing the capacity of the salt-house instead of on building a jail and

detention facilities. And no similar conflicts arose.

This case and the examples and theoretical considerations presented

in this paper have given me an increasing feeling of a coming era of the

aecline and fall of legal systems and jurists as means of resolving criminal

conflicts.

NOTES

(1) Goldschmidt, V.: The Greenland Criminal Code and its Sociological

Background. Acta Sociologica, vol. 1, 1956, 217 pp. and Retlig

Adfaerd. Meddelelser om Gronland (Law Enforcement. Reports on

Greeniand) vol. 90, No. 3, Copenhagen, 1974, and Repression eller

Tolerance i Retshandhaevelsen (Repression or Tolerance in Law En-

forcement), Acta Societatis Juridicae Lundensis, No. 24, Teckomatorp

1978, p. :75-195, and New Trends in Studies on Greenland Social

Life. Foll: Vol. 5. Copenhagen 1963, 113 pp. and The Decrimina-

lization as a Resource Problem. Paper presented for the VIII World

Congress of Sociology, Toronto 1974, and Fra uskreven til skreven

kriminalret i Gronland (From Unwritten to Written Law in Greenland),

Retfaerd i Gronland (Justice in Greenland), Arthus 1980, 116 pp.

(2)

The poet Henrik Lund told me and my colleagues the poem in

Greenland in 1948.

(3)

Wigmore, J’ H.: A panorama of the World’s Legal Systems, Washington

D. C., 1936, p. 548-549.

(4)

The Jutland Legal Code. Preface. 1241. Inscription on the portal of

the Copenhagen City Court.

(5)

Tônnies,

F

Community and Association (Gemeinschaft und

Gesellschaft) translated and supplemented by Charles P. V. Loomis,

London 1955, 67 pp., see Eugene Kamenka and Alice Erh-Soon Tay

(ed.) Law and Social Control, London 1980, 8 pp.

(6)

During a seminar in Messina in 1980 several American and European

lawyers expressed such points of view.

(7)

Podgorecki, A.: The Theory of Sociology of Law: Problem. Acta

Societatis Juridicae Lundenses, No. 24, Teckomatorp, 1978, 143 pp.

(8)

Podgorecki, À. op. cit. and Hydén, H.: Rättens samhälleliga funktioner.

(The Social Functions of Law), Lund 1978.

(9)

Nils Christie and Kjersti Ericsson are some of the representatives of

the approach presented in my paper. For a more detai'ed description

of the two see section III, paragraph 2 c of this paper.

(10)

See e.g. Alper, B.S. and Nichols, L.T.: Beyond the Courtroom,

USA, 1981.

(11)

Bentzon, A.W. op. cit. and Galanter, M.: Justice in Many Rooms.

Journal of Legal Pluralism and Unofficial Law. No. 19, 1981, 1 pp.

(12)

Christie, N.: Conflicts as Property. The British Journal of Crimi-

nology, Vol. 17, No. 1, January 1977, 1 pp.

(13)

Aubert, V.: Competition and Dissensus: Two types of conflict and

conflict resolution. The Journal of Conflict Resolution, Vol. VII

No. 1, 1963, p. 26.

(14) Vilhelm Aubert has often emphasized this point of view.

(45)

Based on a research report of September 6th 1950 made by The

Juridic Expedition sent by the Danish Prime Minister to West

Greenland 1948-49 (unpublished). The authors of the report were

Agnete Weis Bentzon, Verner Goldschmidt and Per Lindegaard.

(16)

Birket-Smith, K.: The Eskimos, London, 1936, p. 156, and Van den

Steenhoven, G.: Garibou Eskimo Legal Concepts, Eskimo of the

Canadian Arctic. Toronto 1968 (Ed. Victo F. Valentine and F.G.

Vallee), p. 83.

(17)

The Juridic Expedition op. cit. and Verner Goldschmidt: Repression

and Tolerance op. cit.

(18)

Repression and Tolerance op. cit. 2,3 pp.

(19)

The Juridic Expedition op. cit.

(20)

Information by members of his family given to me personally in 1971.

(21)

The Greenland Criminal Code. The American Series of Foreign Penal

Codes. No. 16, New York 1970.

(22

Goldschmidt, V.: Folk, op. cit. 120 p.

(23)

Goldschmidt, V.: Retfaerd i Gronland (Justice in Greenland), 127 pp.

9

(

c“

4)

The research results have been published in Goldschmidt, V.: Konflikt

uden Vold (Conflict without Violence) op. cit.

(25)

9

Konflikt uden Vold, op. cit.

(

—

6)

Jepsen, J.: Policing Labour Conflicts. Scandinavian Studies in Crimi-

nology. Vol. 7, Stavanger 1980, 177 pp.

(27)

The Danish Penal Code of April 1Sth 1930.

(28)

The example is based on documents from the local court.

(29)

The information is based on material presented to a Committee on

Police and Social Unrest appointed in 1981. | am a member of the

committee.

(30)

Reported to the committee op. cit. by the mediator Jorgen Jepsen.

(31)

Reported by the mayor to the committee op.cit.

(32)

Bentzon, À. W. op. cit.

(33)

Galanter, M.: Legality and its Discontents: A Preliminary Assessment

of Current Theories of Legalization and Delegalization. Blankenburg,

E. K. et al. (ed.): Alternative Rechtsformen und Alternativen zum

Recht. 11 pp.

(34)

Galanter, M.: op. cit. p. 12.

(35)

Galanter, M.: op. cit. p. 22

(36)

Abel. R

Informal Alternatives to Courts as a Model of Legalizing

Confliet. Paper (unpublished) presented at a Scandinavian crimi-

nological seminar in Stavern, Norway, 1980.

(37)

Abel, R.. op. cit. p. 14.

(38)

Bentzon, A W.: op. cit.p. |.

(39)

Galtung, J.: Conflict as a Way of Life. Bulletin of Peace Proposals.

Oslo 1970. Vol. 1. No. 2,p. 115.

_()4__

(40) Aubert, V.: op. cit. and Eckhoff, T.: The Mediator, the Judge and the

Administrator in Conflict Resolution. Blegvad, B.P. (ed.). Contri

butions to the Sociology of Law. Acta Sociologica. Copenhagen 1966

Vol. 10 - Fasc. 1 - 2, 148 pp.

(41) Christie, N.: op. cit.

(42) Ericsson, K.: Alternativ konfliktlosning (Alternative Conflict Resol

ution), Kristiansand, Norway, 1982.

95

LEGAL REFORM IN THE CONTEXT OF ISLAMIC

FUNDAMENTALISM: AN ANALYSIS OF

TRENDS AND PROSPECTS

By James S. E. Opolot. *

ABSTRACT

Many established institutions in the Islamic world have, because of

Islamic fundamentalism, recently come under fire. Among these are the

legal institutions. In this paper, an attempt was made to outline the trends

and prospects associated with legal reform within the context of Islamic

fundamentalism.

INTRODUCTION

The purpose of this paper is to outline recent developments and es-

pecially dewerternization of law —legal reform— in Islamic countries in

which Islamic fundamentalism is particularly strong. Specifically, the

meaning and historical aspects of Islamic fundamentalism and clientele and

specific legal changes attributed to the rise of Islamic fundamentalism,

including reactions to them, are examined.

THE MEANING OF ISLAMIC FUNDAMENT ALISM

Fundamentalism seeks to maintain, if not revive, the political outlook

of the great Sunni jurists who wrote between the eleventh and fourteenth

centuries. From today’s perspective, this outlook has been formulated as

follows:

1)In a Muslim country, the entire political elite should be practicing

Muslims. Non-Muslims are certainly to be tolerated as members of society

and their liberties to be protected, but they should not be rulers over

Muslims…

2) The Shari’a, according to some traditionally accepted mode of

interpretation, should be the entire law of the state. Indeed, the state

properly has no autonomous legislative powers, but only the righi to issue

such administrative regulations as will enable the Shari’a to be enforced… (1)

Fundamentalism is the reaffirmation, in a radically changed environ-

ment, of traditional modes of understanding behavior. In an Islamic mode,

* Ph. D. Associate Professor

Criminal Justice Administration Atlanta University

it asserts not only the literal truth of the Koran but also asserts that the

Koran’s precepts, legal as well as ritualistic, are fully incumbent on modern

man. Ît views the Koran as not only the source of value but also views the

conduct of the Prophet and the first generation of believers as being norma-

tive. It reveres the jurists and theologians of Medieval Islam, particularly the

vast structure of ritual, moral norms, and law (Shari’a) that they created.

Proponents of Islamic fundamentalism have called for the application

of Islamic law or the Islamiazation of the State just as they have looked to

a form of unity among Islamic countries, which ranged from a revival of

the caliphate to the adoption of the sort of commonwealth suggested by

an Algerian Muslim thinker, Malik ben Nabi. However, the revival is not

solely on a spiritual level, for the nature of Islam is not to confine belief in

this way. It is the political aspects of the movement which have drawn

attention, as can be noted from the events of past years in Iran. In the

1970s, a similar movement shook the government of the former Prime

Minister of Pakistan, the late Ali Bhutto, and enabled the army to reenter

the political arena in an attempt to restore order in the country. General

Zia ul-Haq is still in control, having taken steps to establish his goal of an

[slamic society. Most notably, these have consisted of more extensive

applications of religious laws, including Islamic punishment such as flogging

and the prohibition of alcoholic beverages (2). Both the Shah and Bhutto

were pro-Western leaders, and their fates must have been cause for alarm

for leaders like Egypt's late President Sadat, who was also faced with the

prospect of an incipient fundamentalist movement.

HISTORICAL PERSPECTIVES OF ISLAMIC

FUNDAMENT ALISM: THE RISE OF A LEGITIMACY CRISIS

It should be noted that this renewed politicization of the sacred began

much earlier than the political upheaval in Iran, although it was during the

[ranian revolution that Westerners first encountered Islamic symbols em-

ployed to articulate disenchantment with the West and active opposition to

the Shah’s regime as well (3).

In the Arab Middle East, the total defeat of 1967 was the beginning

of a comprehensive crisis of legitimacy for all political systems in the

area (4). Questioning the legitimacy of the defeated regimes (5), these

political systems themselves were also undergoing a severe political crisis,

after having failed to achieve the miracles they had repeatedly and magnilo-

quently promised. The defeat of 1967 gave rise to a sustained cynicism

which led, in part, to Islamic resurgence (6).

Apart from the defeat of 1967, the question of legitimacy crisis has

been attributed to other factors. An examination of situations in Egypt,

Iran, and several other countries can substantiate this point.

_97 —

The Egyptian Situation

Egypt has been said to be the most open and Westernized society in

the Arab world, next to Lebanon. This is understandable since, over the

years, Egypt has contributed to and benefitted from developments in other

societies and cultures, including those of Christianity and Western democ-

racy. However, since the 1952 revolution, Egypt has been deeply tempted

by Westernization and fundamentalism simultaneously (7). The Nasir regime

showed itself determined to reduce, is not eliminate, the autonomy of the

country's religious institutions. Hundreds of privately owned mosques were

taken over by the government. The Shari’a courts, which had previously

administered the personal status law, were absorbed into the national courts

(responsible for civil and criminal law) in 1956, thus stripping the ’ulama’ of

their stronghold in the legal system. However, even with these shows of

strength, neither Nasir nor his successors have dared to promulgate or even

to submit for open discussion a long-promised reform of Egypt’s family

and personal status code (enacted in 1921 and 1929 and adhering closely

to Shari’a rules). Ît is taken for granted that any such move would reduce

the current legal role of Shari’a norms, thus eroding the capacity of tra-

clitional Islamic values to shape personal behavior. But because Islam has

always been understood as governing everyday activities as well as beliefs

and rituals, any such changes will strike at the very heart of what it means

to be a Muslim. In the minds of many Egyptians, legal reform in this area

would be tantamount to surrendering Egypt’s claim to being a Muslim state

and society. Moreover, the post-Nasirite policy of infitah has created a new

class of millionaires in the midst of expanding poverty, a situation which led

to the riots in January 1977. One explanation for these moves by the

government is that Egypt has been under pressure from oil-rich Saudi Arabia

to prohibit the sale and drinking of alcoholic beverages in public places,

bars, and hotels, with the exception of places specifically designated for

tourists. Saudi Arabia has threatened financial curtailment to Egypt unless

this is done (8).

The I[ranian Situation

The late deposed Shah of [ran, of whom his son once wrote: ”Strong

men often trembled just to look at him,” and who described himself as

”King of Kings, Light of the Aryans,” embarked upon a rigorous program

of modernization and industrialization and dreamed of creating an econ-

omic an military super power which would recall the Persian Empire of

Cyrus the Great. The Shah developed an imperial ego to match his vision,

placing his crown on his own head like Napoleon and dismissing all oppo-

sition as ”the blah-blahs of armchair critics’” and boasting that ”nobody

influences me, nobody!”

By 1960, the Shah had launched what he called a ”White [e.g., non-

Red] Revolution” to distribute land to the peasants. According to

98

sovernment figures, 20 million acres were eventually distributed to

.3 million families, althouth crities charged that only relatively well-to-do

peasants, not the poorest ones, benefitted. The Shah also began educational

programs which reduced the illiteracy rate among Iran’s 35 million people

from 95 percent at the beginning of his reign to around 60 percent toward the

end. His father had freed women from wearing the veil and opened the

universities; the Shah gave women the vote and the right to divorce their

husbands. In the late 1970s, some 38 percent of the students in Iran’s uni-

versities were women.

As part of his ”White Revolution” reform, the Shah (9) established

informal courts in the rural areas, called Houses of Justice, and in towns

and cities, called Arbitration Councils. The judges of these courts were

elected by the people of that municipality or village, and they were local

laymen. The courts were composed of five elected judges; however, not

all of them had to be present at a trial. Their jurisdiction was limited to

minor civil disputes and petty crimes. À legal advisor from the Ministry of

Justice was attached to each court.

All these and other related developments were just too much for devout

Muslims: and the leader of Iran’s 32 million Shi’ite became restive. Hun-

dreds of students joined in demonstrations which have occurred over the

last twenty years. It was estimated that 1,000 students died during 1978

alone in clashes between anti-government demonstrators and police.

In an attempt to appease the traditionalist Moslem leaders, the Shah

backed up somewhat in his program of modernization. He abolished the

Ministry of Women’s Affairs and replaced the imperial calendar with an

old Islamic calendar demanded by the Moslim leaders. In addition, eight

big gambling casinos were closed, including those owned by the Shah’s

charitable Pahlavi Foundation. Finally, in September 1978, the Shah was

said to have granted a general amnesty to thousands of Iranians living

abroad. He promised that they could return without fear of reprisals for

having been opposed to the Shah’s regime.

Situations in Other Countries

In most other countries of the Islamic world, the legitimacy crisis is

even more acute. Attempts at legitimization have ranged from a mixture

of traditionalist Islamic and tribal reinforcements of kingly authority

(as in Morocco, Saudi Arabia, the Gulf States, and Jordan) to combining

Islam with socialist principles to support an aligaithy of military men and

technocrats (as in Algeria).

In Syria, there is a government whose legitimacy is often under fire

regardless of the sucess or failure of its policies. The Sunni majority of the

population remains very resentful of the Ba*thist government, which is both

secularist in orientation and is dominated by men of Nusayri backgrounds.

_ () Q —

The 1973 constitution was indeed a critical test case for political secularism

in Syria; its publication indraft form in January 1973 provoked a storm of

protests and riots which ended finally in April at the cost of dozens of lives.

Whatever the ”’real”’ causes of the violence, it claimed to be directed at the

irreligiousness of the draft constitution, which recognized Islam only by

naming the Shari’a as the main source of legislation.

CLIENTELE OF THE PROPONENTS OF

ISLAMIC FUNDAMENT ALISM

According to Al-Thakeb and Scott, the popularity of Islamic funda-

mentalism is most evident among ”the masses and in particular, the young”.

Furthermore, ’indicative of this movement is the dominance of funda-

mentalism in student organizations when free elections are held. The

speakers on university campuses throughout the Middle East who consist-

ently draw the larges crowds are those who speak on religious topics (10)”.

Students in Malaysia are the spearheads of a campaign to align the civil

law more closely with Islamic religious law. Young women in Iran are

returning to Chador, a long garment which covers all of the body except

the face and hands.

SPECIFIC LEGAL CHANGES BROUGHT ABOUT BY

THE INFLUENCE OF ISLAMIC FUNDAMENT ALISM

The specific changes brought about by Islamic fundamentalism in

Libya have been described as follows:

”Changes in the criminal code since 1973 have addressed both moral

issues related to Islamic beliefs and purely secular matters, particularly

those concerning state security. For example, in official legal announce-

ments of October 1973 and September 1974 (ashing and imprisonment of

adulterers, imprisonment of homosexuals for up to five years, and flogging

of those who break the required fast during Ramadan) were issued as laws

’in line with positive Islamic legislation” (11)”.

In Pakistan, a decisive step toward a revival of Islamic law was taken by

President Zia, who, in an address to the nation on February 10, 1979

(the birthday of the Prophet), announced the ”’introduction of Islamic

laws’”. With regard to penal law, President Zia announced the re-

establishment of the category of offenses for which a fixed punishment

(hadd) was prescribed by God in the Koran. These offenses were the drink-

ing of intoxicating beverages, adultery, theft, and robery. Detailed rules

on these offenses and their punishment were issued on February 10,1979,

and published as Annexes to the ”introduction”. The Constitution (amend-

ment) Order of 1979 established Shari’a benches at the High Courts of each

— 100 —

province. These benches, each consisting of three Muslim judges, could,

upon petition of a citizen of Pakistan, the Federal Government, or a provin-

cial government, decide whether or not a law was repugnant to the ”Injunc-

tions of Islam”, that is, the Koran or the Sunna of the Prophet.

The Iragi Baathist regime introduced a wide range of laws in 1969, the

most important of which was a new penal code, which expanded the defi-

nition of crime to include acts detrimental to the political, economic, and

social goals of the state. Thus, it became a criminal act to publicity insult

the state or its leaders.

In Iran, the post-revolution court system now includes Islamic Revol-

utionary Courts and the offices of Chief Revolutionary Courts and Head

of Anti-Narcotics Bureau. In August 1980, talks were being held regarding

merging the Revolutionary Courts with the civil courts left over from the

Shah’s regime. The new constitution’s Principle 20 provides for garantees

of all human, political, economic, social, and cultural rights for men and

women ’’in accordance with Islamic standards’’. Nevertheless, more than

250 persons were tried and executed in the early part of the revolution.

With regard to Algeria, ”the government’s major action in this respect

occured in 1975 when the Council of Ministers approved a series of new

laws that were added to the Penal Code. According to the Minister of

Justice, these laws ’’have as their set goals to secure the most severe repres-

sion of serious infractions rigorously condemned by the Algerian people”

(12).”

The above examples have outlined some of the specific legal changes

which have been attributed to the influence of Islamic fundamentalism.

What follows are some of the reactions which have occured.

REACTIONS TO LEGAL CHANGES ATTRIBUTED

TO THE INFLUENCE OF ISLAMIC FUNDAMENT ALISM

According to one Iranian sholar who has seen the preliminary draft of

the Constitution, the new articles appear to be less ”liberal” than those in

the 1906 Constitution. The preliminary draft provides for a council of

religious leaders who will have ultimate authority in deciding whether or

not the laws are validly based on Islamic laws (13).

In Pakistan, some opposition and criticism concerning Islamization of

the law has tented to be muted, i.e., ’agreement in principle but disagree-

ment on specifics’”. The one major social group which has taken greatest

exception to the shape of the new Islamic order is the Shias, who constitute

only about 15 percent of the Pakistani population. Shia leaders point out

that many of the current reforms, and particular!ly those which deal with

crime and punishment and with Zakat and Ushr, are in accordance with one

— 101 —

particular Sunni school of jurisprudence, the figh-i-Hanafiya. They contend:

Why should the chopping off of hands be applied to Shias as well? We

fought for Nizam-i-Mustafa, not for Nizam-i-Hanafa” (14). They argue that

they should be governed by their own figh-i-Jafariya.

A general criticism that the Shias and others have leveled against the

new Islamic reforms concerns the fact that the reforms are being introduced

into a society in which the social conditions necessary for their success are

not yet in existence. As Latif has noted, ”if poverty is not eliminated, theft

Will continue. If segregation of the sexes is not done away with, rapes are

inevitable… Hence, instead of dealing with fruits of sins, we should remove

their roots first’ (15).

Other critics point to the ’discrepancy between precept and example”

under the current system:

’Today, graft, corruption, stealing, profiteering, lying, grabbing other

people’s property or money... have become… commonplace… And unless

and until the very outlook changes, we are very, very far from what we aim

at, from Nizam-i-Mustafa (16)”.

Thus, there is some speculation regarding just how lasting the present

reforms might be.

Brohi, who has been both a strong advocate of Islamization and an

attorney for the Pakistani military government in cases before the Supreme

Court, has addressed the same question. At an Islamic Law Conference in

Lahore in January 1979, he declared in unambiguous terms that the legis

lation being enacted by the present regime was essentially interim in nature

and would lapse as soon as power was transferred to the elected representa

tives of the people” (17).

SUMMARY AND CONCLUSIONS

Current legal reform in the Islamic world makes for a good institutional

’window”’ on the larger politics and conflicts in the respective countries.

The process of legal reform, the content of law, the social objects of con

trol, and the roles of militants and their clientele and professionals have

all resounded with and addressed the underlying material and social changes.

— 102

REFERENCES

(

See R.S. Humphreys, ”Islamic and Political Values in Saudi Arabia,

Egypt, and Syria”. Middle East Journal (Winter 1979), p. 6.

(2)

See F. Hasan, The Concept of State and Law in Islam (Washington,

D.C.: The University Press of America, 1981), pp. 132-46.

(3)

See M.M.J. Fisher, Iran: From Religious Dispute to Revolution

(Cambridge, Mass: Harvard University Press, 1980).

(4)

See P.J. Vatikiotis, Conflict in the Middle East (London: Allen &

Unwin 1971), pp. 131ff.

(5)

See M.C. Hudson, Arab Politics: The Search for Legitimacy (New

Haven: London, 1977).

(6)

See F. Ajami, ”The End of Pan-Arabism”. Foreign Affairs 57(2)

(Winter 1978-79), pp. 355-73., G. Ben-Dor, ”Unity and Disnunity

in the Arab World”. Monthly Review 9 (September, 19'73),

pp. 3-13.

(7)

See

B.R. Al-Kubaisi, ’The Arab Nationalist Movement 1951-1971:

From Pressure Group to Socialist Party”. (Ph. D. dissertation,

The American University, 1971). See K. Wheelock, Nasser’s

New Egypt (London: Atlantic Books, 1960); G. Lenczowski,

’The Objects and Methods of Nasserism”, in J.H. Thompson

and R.D. Reischauer, eds., Modernization of the Arab World

(Princeton: D. Van Nostrand, 1966), p. 207; A. Abdel-Malek,

Egypt: Military Society (New York: Vintage Books-Random

HTouse, 1968).

(8)

See

Also M. Ayoob, The Middle East in World Politics (New York:

St. Martin Press, 1981), pp. 118-36, 175-203.

(9)

See

Also J.A. Bill and C. Leiden, The Middle East : Politics and Power

(Boston: Allyn and Bacon, 1974), pp. 133-43.

(10)

Al-Thakeb and J. Scott, ”The Revitalization of Islamic Penal

Law”. International Journal of Comparative and Applice Criminal

Justice Vol. 6, Nos. 1 and 2 (Spring/Winter, 1982), pp. 65-66.

(11)

Libya: A Country Study (1979), pp. 275.

(12)

Algeria: A Country Study (1979), p. 294.

(13)

W. Branigan, ”Draft Charter for Iran Would Bar Communist”.

The Washington Post (April 26, 1979), p. 13.

(14)

N. Latif, ”Remove Cause of Evil, Not Symptoms Only: Ijtihadi

Explains Shia View”. Viewpoint Vol. 4 No. 32 (18 March, 1979),

pp. 25, 30.

(15)

Ibid., p. 25.

(16)

Khyber Mail (31 August 1979) quoted in The Scanner Vol. 7.

No. 18 (17 September, 1979) p. 2316.

(17)

’Nizam: Debate After Decision”. Viewpoint Vol. 4 No. 24

(21 January, 1979), p. 10.

— 103 —

THE SHIFT OF EMPHASIS FROM WHITE COLLAR CRIME

TO VIOLENT CRIME: ARE THE TWO INDEPENDENT?

James C. Hackler

ABSTRACT

The Reagan administration has argued that people are not concerned

about white collar crime but demand action against violent offenders. A

similar logic seems to be persuasive in many countries.

Furthermore, this logic argues that the criminal justice system can do

something directly about violent crime, that white collar crime does little

damage, and a number of other questionable assumptions. After briefly

reviewing some fallacies in these assumptions, the paper will turn to the

consequences of adopting alternate strategies.

The main theme is that the Reagan administration logic assumes that

crime is described by a bimodal curve which allows us to distinguish be-

tween minor, unimportant offenders and a distinct group of serious of-

fenders. In fact, the distribution of deviance may better be described as a

continuous curve. À further assumption is made that the shape of this

curve remains constant and therefore an effective policy to reduce deviance

would have to shift the entire curve. This logic would favor greater attention

to longer range attempts to reduce family violence as a more effective means

of reducing other violence in the future. In addition, the same logic would

argue that deviance and crime by the powerful in society does influence

deviance and crime by the less powerful. Other implications of these themes

will be discussed.

FIGHTING CRIME: TAKING THE POPULAR STAND

When political leaders come to power, they frequently must take a

stand on crime and how one should fight it. Since this is an emotional issue,

and people tend to be more concerned about violent crime than property

offenders, a ”get tough” policy is usually the one that will appeal to voters.

Arguments that point out that such ”get tough” policies have little impact

are not viewed with great favor by those in the public eye. At the same time

other crimes, such as income tax evasion, and a variety of other white-collar

crimes do not arouse the public as much as crime in the street. The Reagan

administration, soon after its inauguration, made statements concerning a

decrease in efforts to enforce crimes committed by the powerful and the

* Department of Sociology

University of Alberta Edmonton, Canada

— 104—

wealthy in exchang for an increase in efforts to ’crack down” on muggings

and other conventional crimes. Such moves were popular. The question to

be raised here is whether or not true leadership means giving in to popular

moods, in contrast to adopting policies that have a greater likelihood of

being effective.

This paper argues that in fact the criminal justice system is poorly

equipped to bring about significant changes in violent crime or most crimes

of a conventional nature. The factors that give rise to violent crime do not

lend themselves to conventional control techniques because they are based

on more fundamental characteristics of the society. On the other hand,

white-collar crime not only does greater damage than many officials ac-

knowledge, but the use of our courts, laws, and criminal control system

could have a meaningful impact on crimes by the powerful.

The more contentious aspect of this paper, however, is that there

may be a link between effective law enforcement against upper level crime

and the eventual decrease in lower level crime. Obviously, it would be dif-

ficult to convince most policy makers that a reduction in income tax

evasion would lead to a reduction in street crimes, such as robbery and

murder. Admittedly, the argument is based upon a number of assumptions

and therefore I will try to develop that logic using a number of different

illustrations.

MOVING THE SKEWED CURVE

Central to this portion of the presentation is the notion that there is a

fairly stable relationship between the different types of ”wrongs” which

are committed by the total population. Society is made up of a few angels

who rarely do anything wrong; but most of us commit a reasonably large

number of minor ”wrongs”’ even though only a few people do things of

a truly serious nature.

The curve with two humps. If we look at Figure 1 we could draw two

curves that would illustrate this argument depending on the type of assump-

tions we are willing to make. If one looks at the dotted line in Figure 1,

instead of the solid line, the shape of this curve might describe reality if

those individuals who commit serious wrongs, that is serious criminals,

were unique and truly different from the rest of us. The dotted line de-

scribes a :urve which has two peaks, one on the right side of the chart as

well as on the left. Most of us have no trouble with the peak on the left.

That is, the angels who do absolutely no wrong are rare and most people

commit occasional indiscretions and naughty things that are not truly

serious. However, the real ’’problem”’ is with those who do terrible things.

They are the ones who need special handling. The large group of people

representing the hump on the left are not really a problem. True, the

— 105 —

totality of their wrong doings is considerable, but it is the sort of thing we

can tolerate. Besides, most of us fall in that peak to the left. We don’t do

anything really bad; our vandalism when we were young was fairly trivial.

The way we cheat on our income taxes is relatively minor, and besides we

know of many others who are cheating more than we are. The old saying,

’there is little bit of larceny in the heart of everyone” makes us feel better.

Those other people, represented by the second, smaller hump on the right

side of the curve shown by the dotted line, are the truly nasty people who

must be stopped! We somehow must cut off that second hump by dramatic

action so that we have only the large hump of minor wrongs represented by

the hump on the left. The basic flaw in this argument is the shape of the

curve and the assumption that one could eliminate part of the curve without

affecting the rest. Actually, the true curve is more likely to be represented

by the solid line in Figure 1.

The curve of reality. If we look at the solid line in Figure 1 we can

make the same argument as befor regarding the hump on the left. The

main difference is that there is no hump on the right. Instead of a bimodal

curve, the distribution of deviance may better be described by a continuous

curve. The line tapers to the right and continues to represent a smaller

percent of people as the wrongs get more serious. According to the shape of

this curve there is no unique population of serious offenders who can be

clearly deliniated as a logical target for some of program. Of course one

could argue that we can cut the curve at some arbitrary point and make that

group the target of some sort of anti-crime strategy. The problem is that

there is good reason to believe that the shape of the curve will remain

constant, and efforts on that small population will have little impact on the

entire curve. In other words, the only way to reduce those serious wrongs

on the right side of the curve is to move the entire curve to the left.

This paper will not attempt to provide empirical evidence for the shape

of this curve for all wrongs in society. However, there is considerable evi-

dence for the shape shown by the solid line in Figure 1 for alcohol and drug

abuse, as discussed by Whitehead and Smart (1972). Other types of crime

also fit this pattern, but when it comes to generalizing to all wrongs in a

society, it may be more difficult to demonstrate the existence of this log

normal distribution. However, let us apply these ideas to several specific

situations and then move to a possible linkage between upper level and

lowen level crime.

Policies relevant to alcohol abuse. Let us first consider the problem of

alcohol consumption. There are a few people who do not drink at all. They

appear at the far left of our figure. Most people drink a little and are rep-

resented by the tall hump of our curve. These people do not present a

problem for our society because their drinking habits do not interfere with

their jobs, their driving habits, or other behavior that might make them a

risk to society. The problem is with those relatively few people who drink

a lot, who are out on the right hand side of the graph.

— 106

However, our public policies conceive of the alcohol problem in terms

of the dotted line. We tend to ignore the group under the hump on the left

hand side of the chart and focus instead on the group under the right hand

portion of the graph. We assume that if we could only get those problem

people, who drink excessively, to change their behavior, everything would

be all right. The incorrect assumption behind the above thinking is that we

can somehow deal with a portion of the population while ignoring the rest.

In fact, the shape of the curve simply remains the same. It may be possible

to move the curve to the right or to the left, but there is no small special

population that can be treated in a unique manner while the rest of us

continue going about our business as usual. If, for example, we are con-

cerned about the steadily growing use of alcohol in western society, which

is our major drug problem, rather than heroin or marijuana, our strategy

should be geared toward lowering alcohol consumption for everyone

Instead of having cocktail parties at sociological conferences, where hard

liquor is the favorite drink, should we try to have a wine and cheese tasting

gathering instead? We are not trying to make sociologists teetotalers, but

can we provide alcoholic drinks which have a lower percentage of alcohol?

Many of you have social gatherings in your home and liquor is pro-

vided. What would be the impact of having fruit juices instead of pre-dinner

cocktails, having wine with the meal, and skipping the after dinner drinks?

In other words, an effective program regarding alcohol use would probably

have to move drinking patterns for everyone toward the left of the graph.

There are clear public policies which could be adopted that could have

an effect on this entire curve. For example, Air Canada, a publicly owned

airline, has a connoisseur service. This service includes free drinks before

dinner, wine with the meal, and a liquor af. r dinner, all free, of course.

Ît is no surprise that people who would not have a drink if they were paying

for it, drink more than they normally would. We would be shocked if free

marijuana were provided. Today, there would be an outcry if cigarettes were

distritubed, but for some strange reason we do not object when a publicly

owned airline becomes a major drug pusher. The policy clearly increases

alcohol consumption and raises the cost to everyone who uses the airline.

In Canada, as in many other countries, the steady increase in alcohol

consumption has caused considerable concern. Air Canada, as an extension

of our governmental authority, is clearly contributing to alcohol consump-

tion by moving the skewed curve to the right.

Price mechanisms can also be used. In some of the Scandinavian

countries there has been a deliberate policy to make beer with very low

alcoholic content relatively inexpensive while beer with more alcohol has

been made more expensive. While I am not so naive as to believe that

alcoholic consumption can be dramatically reduced through government

legislation, certainly the price mechanism could be used to have a modest

impact. One hears about drinking problems in the Scandinavian countries,

— 107 —

but in fact the consumption is much less than in most western countries

(Popham, Schmidt, and de Lint, 1976). In other words, the market place

can be used as a tool for influencing drinking habits. By contrast, the

Solicitor General of Alberta pointed out recently, that the cost of alcohol,

especially hard liquor, had risen in Alberta much less over the past decade

than the cost of food,gasoline, or the price of homes.

The specific illustration used above should not obscure the more

general issue. Government policies that treat the world as if it were neatly

divided into criminals and non-criminals, alcoholics and non-alcoholics, and

good people and bad people, are bound to fail. Instead, there is a large gray

area in between. While it is admittedly difficult to tinker with society ef-

fectively, there is some social science knowledge available that would sug-

gest that some policies would have a greater impact than others. In terms of

alcohol use, which is clearly related to a number of violent crimes, there are

mechanisms that are available and have been used by some countries in the

world. The basic theme, of course, is that the society benefits most if the

behavior of everyone is shifted. The curve, as represented by the solid line

in Figure 1, maintains the same shape.

The reduction of domestic violence. The area of domestic violence may

provide one of the better illustrations of a strategy that could effectively

reduce violent crime in the society as a whole. Naturally, one might ask:

why should the reduction of domestic violence have an impact on offences

such as murder and rape? In Canada, as in most countries of the world,

serious violent crime is frequently a chance outcome from situations with a

potential for violence (Hackler and Gauld, 1981). The reduction of poten-

tially violent situations should influence specific acts of violent. If we were

to plot the frequency of individuals who would commit violent acts against

the seriousness of those acts, we would probably get a curve that looks like

the solid line in Figure 1. Most people in society commit minor acts of

violence. Most small children fight with each other. Most parents occasion-

ally slap their children and blows struck by hockey players are not rare.

These acts of minor violence fit under the hump on the left side of the

graph. Again there is no sizeable and unique population of truly serious and

violent offenders who might be the logical target for an anti-violence pro-

gram. Obviously, there are dangerous people, but except in extreme cases,

it is not clear who should be included in a treatment group. Yet we fre-

quently think of a ”problem group” who are in need of special treatment.

There is some recognition that other forms of violent crime may be

related to the larger issue of wife battering. Adults involved in violent crimes

are more likely to come from homes where there was violence, and children

who have been beaten are more likely to injure themselves (Ross, 1980).

However, it may not be fruitful to treat the wife beating problem in iso-

lation, as if it represented an unusual smaller hump as represented by the

dotted line in Figure 1. The wife beating problem could become increasingly

— 108 —

’medicalized’’, professionalized, individualized, and de-politicized (Conrad,

1975; Conrad and Schneider, 1980). Kathleen Tierney warns us that bat-

tered women are being given ”therapy” and shown how to ”identify ten-

sions in the marriage relationship”’ (1982), as if she were the problem,

rather than the larger male-oriented values which influence social inequality.

The militant feminist groups which emphasize basic changes in the society

can be cooled out by sympathetic social service agencies and government

projects that are willing to sponsor those programs which focus on a specific

identifiable problem. Clearly, feminist movements need to rely on tra-

ditional institutions to keep shelters for battered women operating. How-

ever, Tierney points out that these traditional institutions have political

structures and goals that may be antithetical to the larger, more militant

movements.

The danger is that the traditional social service strategy may focus only

on a portion of the problem. This may be a meaningful contribution, but

there is the danger that it would detract from the larger ferninist movement

that could move the entire violence curve to the left.

The media and violence in the family. The horror film, The Brood

portrayed a tot snatched by monsters and forced to witness several grisly

murders. Littie girls around eight years old played the monsters (Maclean’s

Magazine, July 9, 1979). In one of the messier scenes, Krista describes how,

we had to go for Oliver Reed’s throat and face in the last scene while they

kept pouring blood on us. I strangled him by myself —it was fun—”. The

movie’s last scene was so realistic that one of the mothers and two members

of the crew ”fell apart’” and wept. The mother thought the child had

flipped for good. But the second the director of the film yelled ”cut”,

the little girls stopped and walked off the set licking the blood (a mixture

of corn syrup and food coloring) from their fingertips. The various Blood

baths didn’t appear to phase them. Only once were they sent off the set,

when a model of one of their faces was blown apart by a detonator plante d

inside the skull. But they immediately rushed back after the explosion and

took the gory sight in their stride.

The moral message: violence as an appropriate tool. It is difficult to

weigh the merits of freedom in the media and the potential such a film has

for legitimizing violence and producing a lasting reduction of inhibitions for

taking human life. One might argue that adults who watch such films are

stimulated by the violence and may practice violence on their own children

as a result. But in addition to the stimulation provided by violence in the

media, children and adults get a moral message as well: violence is an ap-

propriate tool for resolving issues. Especially when violence is used by the

”good guys”, things usually work out well. Weapons on television, for

example, kill bad people. Shots rarely go astray and kill innocent by-

standers.

— 109 —

A recent report entitled Television’s Action Arsenal: Weapon Use In

Prime Time, studied four episodes of a number of action (usually police or

detective) dramas (Wilson and Higgins, 1979). Of the 648 weapons that

were seen, 25 % were actually used. Of the 346 bullets fired, 84 % missed

the target entirely; only 8 % resulted in injury and 7.5 % in death. The

presence of so many weapons firing so many bullets and leading to so few

injuries, at least to good guys, suggest that rirearms are potentially less

harmful than they actually are. The victims of violence are rarely seen suf-

fering. Besides, the good guys usually escape injury and most of the blood

is spilled by bad guys. Violence is clearly an effective tool for solving

problems, and power and force tend to be on the side of the good guys

Even the comic books support the theme. Little Orphan Annie rep-

resents the good guys and Daddy Warbucks can blast bad guys with cannon

from his cruiser, which has been disguised as a yacht; even Sandy, Annie’s

dog, takes a bite out of nasty fellows who threaten Little Orphan Annie.

The rule becomes clear. Good guys can use violence as long as it is directed

towards bad guys and never is there the slightest doubt about who is a bad

guy. Dick Tracy used to make that abundantly clear. Bad guys have funny

shaped heads or ugly features. They look bad. Good guys such as Moon

Maid, with ser laser beam, are allowed to execute bad guys with impunity.

As the young purse snatcher runs away with the purse, he is burned to a

crisp by Moon Maid’s laser beam and dies on the spot. Little niceties such

as trials, weighing the appropriateness of the crime against the punishment,

are overlooked. Dick Tracy pleads on behalf of Moon Maid, ”What has she

done wrong? He was a punk anyway”.

The lessons are clear. Violence is o.k. if you are a good guy or a police-

man. If you are a young man with a hankering for violence, by all means

join the police. But what do these illustrations have to say about our general

theme? The world is organized by our mass media according to the dotted

line in Figure 1. A distinct strategy is appropriate for those nasty people

under the hump to the right, but obviously we should not include those

nice people under the hump to the left. Even the Canadian Parliament

demonstrated this attitude recently. A publication prepared by the

Canadian Advisory Council on the Status of Women (MacLeod and Cadieux,

1980) argued that the incidence of wife battering was much more common

than many people suspected. When these facts were introduced into the

Canadian Parliament, it was greeted by laughter and jokes from some of

the honorable members. The member of Parliament who introduced the

issue, Muriel Smith, did not feel it was a laughing matter. I suggest that

the attitude reflected by many members of Parliament is part of the larger

syndrome in the total society which contributes to a cultural setting which

condones violence, wife battering, and has an impact on growing children.

The larger population under the hump on the left are not seen as the

problem.

- 110

DEVIANCE: PART OF THE SOCIAL FABRIC

It may seem like a long way from wife battering, violence in the media,

and white-collar crime; but implicit in the logic behind the curve in Figure 1

is that the behaviour that makes up our social fabric is linked together. The

specific illustration of alcohol use suggests that the most meaningful policies

will be those that move the drinking patterns of the largest number in a

certain direction. When we discuss wife battering, violence in the media,

and the impact that violence in the family has on the socialization of

children, the implication is that all of these elements can be placed on a

curve represented by the solid line in Figure 1. Meaningful policies must

move that entire curve to the left. This does not mean that specific pro-

grams such as shelters for battered women or attempts to deal with child

abuse are irrelevant. However, these specific programs must also be part

of the larger picture which examines the way :a which men and women

relate to each other in our society and the ‘way violence is viewed in a

highly competitive and aggressive society.

In addition, ! argue that specific illustrations of alcohol or domestic

violence are part of the larger fabric of a society that is women together:;

and even though it is a complex fabric, it still forms a whole cloth. The

respect for income tax laws, traffic regulations, and laws regarding stealing

admittedly evoke different responses from different people, but there seems

to be a relationship between violating moral codes among ‘solid citizens”

and criminal acts by smaller elements in the population. In other words,

the larger picture of immoral behaviour would fit the solid curve in Figure 1.

The behaviour of ’respectable” adults, leading businessmen, political figures,

and those who represent the elite in the society will influence our skewed

curve. If a cabinet member in the United States is suspected of having mafia

connections, this can help feed a cynical attitude among the rest of society

that people in powerful positions lack integrity. When influencial Canadians

are connected with corruption in the Harbourgate scandal, where dredging

operations led to police action, other businessmen may see little reason for

operating on a higher moral plain. If paving contractors in the U. S. rou-

tinely engage in price fixing, why should the little thief consider his be-

haviour so bad? As one safecracker once told me, he kept the safe companies

in business, they had to keep up their technology and improve their pro-

ducts. When he robbed supermarkets, the losses were spread over the entire

corporation and insurance companies and their salesmen maintained a

healthy business. His behaviour, was not particularly different from the

manufacturer who sold an inferior product for an inflated price. I found

it difficult to respond to his reasonning.

The link between the behaviour of upper level and lower level criminals.

Sometimes the link between the behaviour of ”solid citizens” and deviants

is obscure; at other times it is more obvious. The mother who goes to the

hockey game to whatch her sonplay and yells, kill the bastard”, should not

111 -

be surprised if the child is later involved in fighting. Since we generally

encourage aggressiveness in sport, business, and everyday life, we should

expect it to manifest itself in delinquency as well.

At this point, one might assume that my recommendation is that we

must somehow make everyone better than they are at the present time.

While that might be theoretically correct, general preaching does not pro-

vide a clear strategy for action. In order to move this morality curve to the

left, we must see if there are certain segments of immoral and illegitimate

practices which would be more susceptible to change. I would argue that

upper level crime could be influenced to a much greater extent than lower

level crime, and by focusing our efforts on that area, we not only get a

better direct return for our efforts; we might eventually have a long term

impact on a whole range of behaviour in society including those conven-

tional crimes such as mugging in the streets.

SUMMARY

Let me emphasize several crucial points. The population under the right

hand slope of the curve is small and difficult to change. On the left the

population is large and the total damage they cause is considerable. Most

deviant activities, whether it is drug abuse, violence, or some other specific

behaviour, probably fit the curve illustrated by the solid line in Figure 1.

Therefore, if we put all the ’’wrongs’’ together into a single curve, it would

have a similar shape. Finally, a logical policy for reducing deviance would

focus on large numbers of offenders who would be most susceptible to the

control measures we presently have.

SYSTEMATIC SELF-DECEPTION THAT UPPER LEVEL

CRIMES ARE LESS DAMAGING TO SOCIETY

THAN LOWER LEVEL CRIMES

Let us first look at some assumptions that interfere with effective

action against upper level crime. One of the first mistaken assumptions is

that upper level crime is less harmful than lower level crime. Since this

point has been well documented in the literature, I will only use a few

illustrations (Clinard and Yeager, 1980).

When the Ford Motor Company considered changing the design of the

gas tanks for the Pinto automobile, it made calculations regarding court

costs for a certain number of deaths and injuries. They calculated that it

would be cheaper to have a certain number of people die and play off in

the courts rather than spend $ 11.00 relocating the gas tank for each Pinto

automobile. Are the officials responsible for such decisions criminally re

sponsible? A court case decided they were not. In the past, we have

- 112 —

frequently excused those who have to make such decisions because they

could not forsee the future. This is not the case today. When a large bridge

must be built over a river, the number of people who will die in these con-

struction projects can frequently be predicted with surprising accuracy.

It is not possible to maintain an industrial complex such as ours with-

out risk to human life. When cost factors are involved, attempts to reduce

those human risks will not go below certain thresholds. The point is that

the deliberate actions taken by people in influencial positions can definitely

be harmful and costly for other portions of the society, and that damage is

frequently known in advance. When a lower class person deliberately harms

someone to benefit himself, it is a crime. Should we not apply the same

standards to the powerful”

Let us go further and compare the consequences of the largest welfare

fraud that was ever committed in the United States with other forms of

crime. À woman was able to collect over 200,000 dollars in fraudulent

welfare payments in the United States. Naturally, tax payers should be

enraged when someone has stolen so much money. She was sentenced to

eight years in prison. By comparison the General Electric conspiracy in

1961, ’’robbed the people of more money than all of the other thefts and

robberies of that year combined” (Snider, 1978:157 citing Green 1972).

Did any corporation executive get sentenced to eight years? By using a

strange sort of double-think, some people deceive themselves that welfare

fraud is payed for by taxpayers, but that increased utility bills, food prices,

etc., which are born by taxpayers or consumers when upper level crimes

are committed, do not effect people in the same way.

Who got hurt when Mr. Doyle embezzeled 9 million dollars through the

Javelin corporation in New Foundland and then moved to warmer climates?

Would a widow prefer to lose her life savings in stock fraud or have her

purse snatched with $ 100.00 in it?

We should not delude ourselves that the 5500 million to S1 billion in

income tax fraud each year in Canada is less costly than other forms of

theft. The fact that those responsible for upper level crimes are frequently

several steps removed from the final action does not change the impact on

society. Taking upper level crime seriously would be a meaningful first

step toward moving the morality curve, as expressed by the solid line in

Figure 1, to the left.

There is another mistaken assumption. Some people, mainly those in

the business world, believe that the laws restricting upper level crimes,

such as the Combines Investigation Act, Food and Drugs, Act, etc., are

not as valid as other forms of restrictive legislation, such as the Criminal

Code. However, influencial corporations in Canada have an important voice

in law making bodies. The Canadian Combines Investigation Act was passed

in 1889, and we could probably argue that most corporations would prefer

to run legitimate businesses, Sometimes companies rationalize their law

— 113 —

violations because their competitors are breaking the law. The basic argu-

ment made here is that there is no reason to see crimes by corporations as

something different. We are usually dealing with greed; the motivation on

the part of the powerful is not greatly different from that which stimulates

the safecracker and the burglar.

The selective use of deterrents. Let us now return to the original point.

Could we move the entire morality curve of the society to the left by having

an impact on upper level crime ? Do we have the tools to have an impact

on upper level crime ? If we could make this large segment of society less

criminal, less corrupt, it might influence the moral fiber of the influential

and change the ethics transmitted from parents to children. But the imme-

diate question is: can we deter upper level crime ?

While deterrents usually are not particularly effective when applied to

lower class crimes, they seem to work on income tax fraud and certain

upper level crimes. Unfortunately, enforcement practices are sometires a

farce. Let me draaw on the work of Laureen Snider, of Queen’s University,

for illustrations of how some corporations have been treated for upper

level crimes (1978). It may not deter if a dairy has to pay only $300.00

after shorting customers on milk for a considerable length of time. Nor is

it effective if charges are dropped through pressures from certain political

figures. In fact, this situation in Canada has become ludicrous when we see

that dominant companies must pay only piddling fines while reaping large

profits. When we look at those who have been charged and convicted under

sections 36 and 37 of the Combines Act, we see that the average fine

levied against dominant companies was $1,887.00 and against smaller, non-

dominant companies $350.00 (Snider, 1978). The most frequent fine was

S200.00 for the dominant companies and $100.00 for the non-dominant

companies. Up until 1974, no one had gone to prison under the Combines

Act. During 1974 a small merchant was sentenced to 2 year for misleading

advertising regarding television sets. This was his second offence. We should

note however, that several major Canandian companies had been convicted

five times, but no one has been sent to jail (Snider, 1978). One company

was convicted of activities which cheated their customers of 1 million

dollars. The total fine was $6,000.00 and the violators got a suspended

sentence. Not a bad profit and not much reason for changing the illegal

behavior.

The lesson to be learned here is that action on the part of the criminal

justice system can bring about a meaningful impact on certain aspects of

deviant behaviour if the conditions are right. One can probably predict

that the spies for the Japanese electronic firms, who are accused of stealing

of secrets from IBM, will be treated more harshly than if the victim had

been you or I. When powerful people are robbed instead of relatively weak

one, such as consumers, the penalties are more likely to be serve enough to

have a deterrent effect. The intent, of course, is to change the alleged

=114—

deviant behaviour of the Japanese electronic giants. There is no reason to

believe that the same sort of strategy would not be possible against other

upper level crime.

It is hazardous to oversimplify the debate on the deterrent effect of

punishment; however, there are some areas of agreement. When the crimes

are instrumental, directed toward some rational goal such as profit, and if

the criminal does not see himself as committed to crime as a way of life,

then a modest amount of punishment seems to have an effect. This fits

much upper level crime. On the other hand, when the crimes are expressive,

involve passion, and if the criminal is committed to crime as a way of life,

then punishments are less effective in deterring the behaviour (Chambliss,

1967).

FINANCIAL GAINS ACHIEVED BY ENFORCING

UPPER LEVEL CRIME

When the Reagan administration announced its lessening interest in the

enforcement of upper level crime, it cited the cost of enforcement as one

reason for lack of enthusiasm. True, it takes much tenacity and effort to

convict some upper level criminals, but if there is genuine support for these

prosecutions, instead of simply lip service, the returns can be substancial.

For example, systematic crackdowns on tax evasion has lead to increased

revenues for the government. Usually these revenues come from that

portion of the population who are able to pay. In general, law enforcement

practices against upper level crime yield good returns, not only in modifying

the behaviour of those involved in those practices, but there is also a poten-

tial for savings in terms of dollars and the quality of life for other parts of

society. This assumes that we have meaningful legislation and agencies of

social control who are willing to enforce the law.

MOVING THE SKEWED CURVE

Obviously, it is difficult to draw a clear link between upper level crime

and conventional crime in a society. It is even more difficult to link cor-

ruption and lesser evils, such as political patronage, with the behaviour of

lower level criminals. The contract to build the Canadian embassy in

Washington D.C. was awarded to an architect who is a personal friend of

the Prime Minister of Canada, even though a competion had been held

Which selected four others as more logical choices. Does this relate to

morality on the part of others in society? Does it help an unemployed

black youth justify a mugging?

It is difficult to assess the morality of the decision to excuse auto-

mobile companies from installing air bags which would clearly make a

— 115 —

dramatic impact on the death rate on our highways. We are not allowed to

have automobiles without safety glass, but a safety measure such as an air

bag, which would save many more lives than the number of people mur-

dered each year, would violate our freedom of choice, according to some

manufacturers. À 1977 study showed that medical costs related to motor

vehicle injuries cost the United States 38 billion dollars annually (Fischler,

1979). How much of that expense would be reduced by the use of airbags?

General Motors has argued that it has offerd air bags to the public, but at

least in the city of Edmonton, Alberta, I could find no General Motors

dealer, or any other auto dealer for that matter, who installed air bags. At

present the auto industry is not considered criminal because it fails to use

available technology to reduce death in their automobiles. This sort of

posture should be included as part of the socially irresponsible behaviour

by power people which moves our morality curve to the right.

Obviously, all behaviour is not logically divided into the moral and

immoral, but there are clear areas of upper level crime, various degrees of

corruption, and political patronage which are expressly designed to favor a

few individuals at the expense of the rest of society. It is absurd to expect

the rest of the population to be moral, unselfishness, and ethical when the

leaders of society are behaving in shameful ways. Since the shape of the

morality curve remains stable, the obvious place to bring about a change is

among the more influential in society.

Getting the best return of our efforts. Not only do policy makers

ignore the shape of this morality curve, but the mass media gives the im-

pression that the bimodal curve expressed by the dotted line in Figure 1

reflects reality. Newspapers and television focus on the spectacular murder

even though it represents a rare circumstance. These media tend to reward

those policies that in fact have a very low return in terms of improving the

quality of life.

Those strategies which have a very low retur in terms of reducing

crime include capital punishment, crackdowns on prostitutes, punishing

drug addicts, and a punitive response to marijuana use. These social control

policies yield a very poor return on the investment of resources. For

example, the attempts to control the flow of drugs requires tremendous

resources, has little impact on the use of drugs, and leads to the develop-

ment of well developed criminal industries.

On the other hand, income tax fraud, focusing on purchases of stolen

goods, and corporate crime are illustrations of areas where vigorous crime

control practices yield a much higher retur. That does not mean I am

unconcerned about muggings and burglaries. The point is that using those

tools that are presently available to criminal justice systems more effectively

would increase the likelihood of moving the entire morality curve to the

left and hence eventually this could have an impact on the behaviour of

drug users, rapists, muggers, and the behaviour of a variety of other con-

ventional criminals that currently cause us great concern.

— 116—

THE CONSEQUENCES OF BEING WRONG

Supposing such policies were adopted and the ideas expressed here turn

out to be incorrect? If governments really enforce income tax evasion and

hence collect many more tax dollars, it is possible that tax payers will

simply conform without changing their moral views. If automobile manu-

facturers were forced to build automobiles that saved thousands of lives and

billions of medical dollars, they might still do so grudgingly. Supposing the

media embarrassed governments and political officials who engage in blatant

patronage so that they did it less but still grumbled under their breath?

[magine achieving better equality for women in society so that there is less

wife battering and child abuse; would delinquents still get in trouble? What

would happen if campaigns against alcohol use were effective so that al-

cohol use were effective so that alcoholism decreased, more people main-

tained their jobs and family life because of better control over drinking

habits, and there was less cirrhosis of the liver, but juveniles continued to

smoke marijuana? There is always the possibility that there could be tremen-

dous improvements in the morality of our public leaders, corporate execu-

tives, middle class professionals, and those of us who consider ourselves

solid citizens, but all these efforts to move the morality curve to the left

did not convince lower level criminals to abondon their nasty habits? There

are worse ways to be wrong.

Figure 1: The Frequency of ’’Wrongs”’ Committed by the Total Population

Charted Against the Seriousness of Each ”Wrong”*

Very many

M

Shape of curve if criminals were

unique from the rest of population…

Reality

"‘\

I':

Percentage of Population

.——_—

æ

|||Œ:::'

\\

Seriousness of Each ‘’Wrong”’

Very Serious

* Basic idea from Whitehead and Smart (1972)

Jim Hackler, ”The Shift of Emphasis from White Collar Crime to violent Crime: Are

the Two Independent?” World Congress of Sociology, Mexico City.

(Department of Sociology, University of Alberta, Edmonton, Canada)

117

REFERENCES

Chambliss, William J. (1967). —”Types of deviance and the effectiveness of

legal sanctions”. Wisconsin Law Review 3 (Summer): 703-719.

Clinard, Marshall B. and Peter C. Yeager (1980). —Corporate Crime. New

Y ork: Free Press.

Conrad, Peter (1975). —”The discovery of hyperkinesis: notes on the medi-

calization of deviant behaviour”. Social Problems 23 (October): 12-21.

Conrad, Peter and Joseph W. Schneider (1980). —Deviance and Medical-

ization: From Badness to Sckness. St. Louis: C.V. Mosby.

Fischler, Stanley I. (1979). —Moving Millions: An Inside Look at Mass

Transit. N.Y.: Harper and Row.

Hackler, James C. and Laurel Gauld (1981). —”Policies toward violent

Crime: Alberta as a case study”. Canadian Journal of Criminology

23 (July): 313-329.

Maclean’s Magazine (1979). —July 9.

Macleod, Linda and Cadieux Andree (1980). —Wife-battering in Canada:

the Vicious Circle. Hull: Minister of Supply and Services, Canada.

Popham, Robert E., Wolfgang Schmidt, and Jan de Lint (1976). —”The

prevention of hazardous drinking: implications for research on the

effects of government control measures”’. In J.A. Edwing and B.A.

Rouse (eds.) Drinking. Chicago: Nelson-Hall.

Ross, Robert R. (1980). —”Violence in, violence out: child-abuse and

self-mutilation in adolescent offenders”. Canadian Journal of Crimi-

nology 22 (July): 273-287.

Snider, D. Laureen (1978). —”Corporate crime in Canada: a preliminary

report”’. Canadian Journal of Criminology 20 (April): 142-168.

Tierney, Kathleen (1982). —”The battered women movement and the wife

beating problem”’. Social Problems 29 (February): 207-220.

Whitehead, Paul and Reginald Smart (1972). —”Epidemiological aspects

of drug use and implications for the prevention of drug abuse”. In Craig

Boydell, Carl Grindstaff, and Paul Whitehead (eds.), Deviant Behaviour

and Societal Reaction. Toronto: Holt, Rinehart and Winston.

Wilson, Marla and Patricia Higgins (1979). —Television’s Action Arsenal:

Weapon Use in Prime Time. Washington D.C.: U.S. Conference of

Mayors.

__

118 —

TRENDS IN VIOLENCE AND AGGRESSION

A CROSS-CULTURAL ANALYSIS*

Simha f. Landau * *

ABSTRACT

In the present cross-cultural study, trends in violence and aggression are

analyzed within a theoretical framework, according to which the probability

of these behaviours as a reaction to stress will increase, when social support

systems fail or malfunction. The variables of the study were:

1) Measure of social stress: inflation

2) Measures of social support: the ratio between marriage and divorce

rates as well as rates of births to unmarried mothers served as measures of

the strength of the family. Another measure in this category were mental

health treatment contacts.

3) Measures of aggression and violence: rates of homicide robbery, rape,

general criminal activity, and suicide.

Data regarding the above measures from the mid or end of the sixties to the

end of the seventies were presented for fourteen countries. On the whole,

the findings support the above theoretical model: the increase in social stress

(as measured by inflation rates) and the parallel weakening of the family as

a social support system, was accompanied in almost all the countries by an

increase in most measures of violence and aggression. The only exception

is Japan, where most measures of violence and aggression showed a decrease

rather than an increase. Some characteristics of Japanese society are dis-

cussed: The strong emphasis on external (group) pressure towards con-

formity on the individual, contributes to the decrease of outward-directed

aggression (homicide, robbery, rape) on the one hand, and to a considerable

increase of inward-directed aggression (suicide) on the other. Some impli-

cations of these findings for future research are discussed, and suggestions

are made for further research on this topic.

1. INTRODUCTION

Aggression and violence, always having been a popular topic of behav

ioral research, have become the object of increasing interest in recent years

* This study was supported by the Research Fund of the Hebrew University

Miriam Netta assisted in the data collection.

“ *Institute of Criminology Faculty of Law Hebrew University Of Jerusalem

=— 119 —

This increased interest is undoubtedly related to a widespread feeling in

many countries that the threat to life and safety have reached unpre-

cedented proportions: every day we are presented with news about brutal

murders and rapes, violence in sporting events (e.g. football hooliganism),

family violence (battered wives, battered children), violence against the

elderly, gang warfare, school vandalism, politically motivated killing and

kidnapping, killings in the course of robberies, etc.

These subjective feelings and impressions give rise to several questions:

1) Are the above impressions based merely on the disproportionate and

exaggerated presentation of ”violent news” by the media, or do they

reflect a real increase in crimes of violence in recent years?

2) Is the above assumed increase common to all societies or are there

cross-cultural variations in this respect?

3) What are the possible explanations of changes in the prevalence of

violence and aggression in the various societies? In other words, can they be

seen within a wider social context, and can they be related to other changes

in society.

In the following pages an attempt will be made to answer the questions

posed above.

2. THÉORETICAL FRAMEWORK

The theoretical framework of this study is based on a previous work

(Landau and Beit-Hallahmi, 1982) which analyzed aggression in Israel from

a psycho-historical perspective.

The general starging point of our proposed model is the frustration-

aggression hypothesis (Dollard et al., 1939), which was extended in our

above work from the level of the individual to the level of populations.

Such an extension was originally proposed in the early work of Hovland

and Sears (1940), who showed that social ”instigators’’ such as economic

conditions are correlated with aggression in populations. In the fifties,

Henry and Short (1954), based their analysis of homicide and suicide in

populations on the frustration-aggression hypothesis. More recently, studies

dealing with race riots (Lieberson and Silverman, 1965; Ransford, 1968)

were also analyzed within this theoretical framwork (Megargee and

Hokanson,

1970, pp. 144-146). In another study (Feierabend and

Feierabend, 1966), this theory was extended to the cross-national analysis

of national political stability.

Following the above-mentioned (as well as other) works we propose

a model on the social level, which contains three elements:

1) Social Stressors: We use the terminology of stress (instead of frus-

tration ), originally coined by Selve (1956) in medical research, as it seems

— 120 —

more appropriate for the social level of analysis. Stress has been related to

aggressive behaviour by Halleck (1967), who argues that aggression may be

considered as an adaptive response to stress, which in tur may arise from a

variety of sources (both external and internal to the individual). The effect

of social stress factors over time on various aspects of social pathology on

the macro level was demonstrated in the studies of Brenner (1977, 1979).

In these studies, conducted in the United States, Brenner found that social

stressors such as unemployment, inflation and per capita income, have a

substantial bearing on physical health, mental health and criminal ag-

gression. Amongst other things, he found that unemployment and inflation

were both significantly associated with increased homicide and suicide

mortality (Brenner, 1977). Dooley and Catalano (1980) analyzing the

relationship between economic change and behavioral disorder, present

a number of studies which show an ’’overarching relationship between

economic change and mental disorder” (p. 453). Huppes (1976), focussing

on a single social stressor, inflation, found in the Netherlands and in the

U.S.A. high correlations between inflation and several ”anomie indicators”:

aggressive (violent) crime, property crime, suicide, homicide and divorce.

In a more recent cross-cultural study, Messner (1980) reports a positive

relationship between income inequality and murder rates.

In our previous study, (Landau and Beit Hallahmi, 1982), wars inflation

rates, gap between the rich and the poor and unemployment rates, were

amongst the social stressors analyzed.

2) Measures of violence and aggression: Here, besides the conventional

measures provided by criminal statistics (i.e. homicide, rape, robbery rates,

rates of legal acquisition of firearms, as well as data on strikes and work

stoppages.

3) Measures of social support: Social support systems are an essential

part of our model as they are conceived as mediators between the social

stressors and the reactions they are presumed to lead to. Examples of

social support systems are feelings of national solidarity (on the macro

level), or family ties and stable networks of friends (on the micro level).

Several previous studies (analyzed by Dooley and Catalano, 1980) have

reported that social support appears to buffer the production of health

and behavioral problems to stressful life change. Our basic assumption

here is that the greater the strength and stability of the social support

systems, the greater the ability of the individual and the society to cope

with stressful events and situations.

Marriage and divorce rates and rates of births to unmarried mothers

served in our previous study as measures of the strengh of the family. In

addition, mental health treatment contacts were also included as possible

alternatives to the traditional support systems (such as the family).

— 121—

Thus, putting the three elements of the model together, we assume that

the probability of violence and aggression as a reaction to stress, will in-

crease when social support systems fail or malfunction.

The data of our previous research provided general support to the above

theoretical model. The aim of the present study is to ascertain the gener-

alizability of our proposed model across cultures.

3. THE STUDY

Cross-cultural research on deviance faces a very substantive meth-

odological problem. The most available comparative data on violence come

from criminal statistics. However, this source of information is rather pro-

blematic as a basis for cross-cultural comparisons due to differing normative

and legal definitions of deviant and criminal (including violent) behaviour in

various societies (Friday, 1980; Hall-Williams, 1981 ; Scott and Al-Thakeb,

1980; Vetere and Newman, 1977; Wilkins, 1980). Thus, comparisons of

crime rates of different countries at a certain point in time, although quite

informative, must be viewed with caution. One way of overcoming this limi-

tation in cross-cultural comparisons is to analyse separately in each country

the internal trend in crime over time, and compare it with the corresponding

trends in other countries. Consequently, the comparison is not between

crime rates of different countries on static points in time, but rather be-

tween trends in the crime rates of different countries over certain periods

of time. This second method was utilized in several cross-cultural studies

on homicide (Archer and Gartner, 1976, 1980; Archer et Al, 1978). In the

present study we also adopted this second method in analyzing data for

fourteen countries. The countries included in this study are: Austria,

Denmark, Finland, India, Israel, Japan, the Netherlands, New Zealand,

Norway, Sweden, Swetzerland, the United Kingdom, the United States

and West Germany. Although all continents except Africa are represented

in this list, the countries in our analysis are far from being a representative

sample of all the countries of the world: almost all are developed countries,

most of them West European. The sole criterion for including a country in

the study was the availability of relevant data. The period covered by our

analysis is mainly the last decade —between the mid or end of the sixties

to the end of the seventies—.

The above two limitations of our study (Number and type of countries

included and the period of time covered) should be born in mind when

interpreting our data.

À serious obstacle of this type of research is the irregularity of data

collection in different countries. Thus, for some countries, some of the

measures are lacking entirely or are available only for some but not all of

the years covered by our study. The main sources of our data were national

statistical yearbooks, U.N. publications and INTERPOL reports (1).

{\J

L-

4. FINDINGS

4.1. Measure of Social Stress

The most available measure for social stress for the period covered by

this study was the consumer price index measuring inflation. Table 1

presents the data regarding this measures for the years 1965-1980.

All figures in Table 1 are standardized and compared to the index of

1976, which was given the value of 100 in each country.

As can be seen very clearly from Table 1, in each country, without

exception, from 1965 to 1980 there was a steady increase in the inflation

rate. The rate of this increase varies from one country to the other. The

most extreme increase is found in Israel which seems to hold a world record

in this respect. Other countries with a relatively great increase in inflation

(more than 100 points between 1965 and 1980) are the United Kingdom,

Denmark, Finland, New Zealand and Sweden. On the other extreme, the

countries with the lowest increase in inflation are Switzerland, West

Germany, India, and Austria. In most of the countries, inflation accelerated

around the mid seventies.

4 ,2. Measures of Social Support

4.2.1. Strength of the Family

Two measures of strength of the family are utilized here: the ratio

between marriage and divorce rates (marriage rate/Divorce rate) and rates

of births to unmarried mothers. Figure 1.1 - 1.3. present the ratio between

marriage and divorce rates (2). It should be born in mind that the smaller

this ratio, the smaller the gap between these two rates. A downward slope

of this ratio means either a decrease in marriage rates, of an increase in

divorce rates, or (and this is mostly the case) both.

These figures show very clearly that in all of the countries in this

study (3), from the mid sixties to the end of the seventies, there is a de-

crease in this ratio, and in most, this decrease is steady. The most salient

decrease in the ration is found in Holland (Fig. 1.3.), but in many other

countries, this downward slope is also of considerable magnitude. On the

other hand, the smallest decrease in this ratio is found in the U.S.

As can be seen (Fig. 1.3.), Israel is the only country in which there is

an evident deviation from the monotonous downward slope in the above

ratio: from 1967 to 1972 there is a considerable increase in this ratio, and

only since 1973 is there a sharp decrease in the ratio. These two trends were

caused by a great increase in marriage rates in the years following the 1967

war, and a sharp drop in these rates since the 1973 war. These changes, as

well as other related changes in Israeli society are discussed elsewhere

(Landau and Beit-Hallahmi, 1982). The slight increase in the ratio in

2

3

Table 1 : Consumer Price Index: 1965 - 1980

1976 = 100

Country

Nether-

Switzer-

UK

U.S

West

Austria |Denmark [Finlan

Nands

India

Israël | Japan

Zeaîaïd

Norway Sweden

land

""" |Germany

Year

1965

56.0

43.1

40.7

477

21.6

40.7

41.4

48.2

49.8

573

372

55.4

63.2

1966

S7.0

46.1

41.7

50.4

22.9

42.8

42.5

49.7

52.9

60.0

38.6

57.0

65.4

52.2

23.2

445

45.0

51.9

55.2

62.4

39.7

58.7

66.5

1967

593

49.4

43.9

1968

60.9

53.4

47.3

54.1

23.7

46.8

471

53.7

56.3

63.9

41.5

61.1

67.5

1969

62.8

553

48.4

58.1

59.1

24 .3

49.3

49.4

554

57.8

65.5

43.7

644

68.9

52.6

61.3

61.9

67.9

465

68.2

1.2

-+cl-

1970

65.5

58.9

50.7

60.5

62.2

25.8

53.1

1971

68.6

62.3

52.9

65.1

64.2

28.9

56.3

58.0

65.1

664

72.3

50.9

711

T4.9

1972

72.9

66.4

57.3

70.3

68.2

32.6

58.8

62.2

69.8

70.4

772

54.6

73.5

79.1

59.5

78.1

846

1973

78.5

72.7

63.5

76.1

797

39.1

65.8

671

75.0

75.2

83.0

1974

85.9

83.7

74.2

83.5

102.2

54.7

81.8

74.6

82.0

82.6

92.1

69.1

86.6

90.5

1975

93.2

91.7

87.5

91.8

108.5

76.1

91.5

85.5

91.6

90.7

98.3

85.8

945

95.9

100

1976

100

100

100

100

100

100

100

100

100

100

100

100

100

1977

105.5

111.1

112.6

106 4

108.5

134.6

108.1

114.3

109.1

1114

101.3

115.8

106.5

103.7

1978

109.3

122.2

1214

110.9

111.1

202.7

112.2

128.0

118.0

122.5

102.4

125.5

114.6

106.5

142.3

127.6

110.9

1979

1133

134.0

130.5

115.7

118.1

3614

116.2

145.7

123.6

1314

106.0

1980

120.6

150.6

145.6

123.8

834.9

125.5

—

137.1

149.4

110.3

167.9

144.8

117.0

Figure 1.1: The annual ratio between marriage and divorce rates in

Finland, Norway, Switzerland and West Germany.

116

Norway

10F

Switzerland

9

à

8r à

[»

æ

&

Finland

7k

6r-

West Germany

5L—

Marriage Rate/Divorce Rate

4—

-\.

À\

3+

YEAR

5

L

l

|

i

|

À

__U

J_

L

À

|

l

]

1966

E

968

1970

1972 1974

1976

1978

1980

Figure 1.2: The annual ratio between marriage and divorce rates in

Austria, Denmark, Sweden and US.A..

7—

6}

Sweden

=

a}

Austria

U.S.A

3k

Denmark

Marriage Rate/Divorce Rate

:

LU

|

]

]

|

—L

|

|

]

]

|

l

l

1066

1968

1970

1972

1974

1976

1978

1980

YEAR

— 125—

Figure 1.3: The annual ratio between marriage and divorce rates in

Great Britan, Israel, Japan, Netherlands and New Zealands.

18F

Netherlands

177

16}+

15F

14k

13F

12+-

11k

N

\

L.

10H

OH

Marriage Rate/Divorce Rate

8H

Israel

TH

6H+

Japan

N

°F

V

NNA

4H

'

New Zealand

v,

3b—

v

Vene Vn y

Great Britian

2E

|

l

|

l

|

|

| YEAR

1966 1968

1970

1972

1974 1976

1978

1980

— 126 —

West Germany after 1976 (Fig.1.1), does not represent a real change in the

general trend, but reflects legal changes regarding divorce procedures in that

country. (Statistisches Bundesamt, 1980).

Looking at the absolue level of the ratio at the end of the last decade,

the lowest values are found in Sweden, U.S.A. and Denmark, where the

ratio of marriages to divorces is about 2:1 (Fig. 1.2.). On the other hand, the

highest ratios are found in Israel (7:1) and in Japan (6:1), as it can be seen

in Fig. 1.3.

As to the second measure of familly strengh —rates of births to unmar-

ried mothers, data were available for five countries only: Israel, Switzerland,

United Kingdom, United States and West Germany. Fig. 2 presents this rate

for these five countries. As can be seen from the figure, the last decade saw

an increase of births to unwed mothers in all these countries. This common

trend is of particular interest in view of the great differences that exist be-

tween these countries regarding the absolute levels of this measure: The

highest level of births to unwed mothers is found in the U.S. while the

lowest (far below that of U.S.) is found in Israel. In Switzerland, unlike the

other four countries, the above rate began to increase only after 1975.

4.22

- .

Mental Health Treatment Contacts

As stated before, information regarding mental health contacts may

be considered as an indicator for the use of alternative available support

systems when the traditional one are weakened.

Unfortunately, information on this variable was available only for

five countries: India, Israel, Japan, U.S.A. and West Germany.

In India, the rate of patients admitted to psychiatric hospitals (the

only measure available in that country), between 1965-1975, remained

steady. In 1965 this rate was 5.8 per 100,000 population, and in 1975 this

rate was 5.7 (Indian Central Statistical Organization, 1970-1978).

Regarding Israel, Rahav and Popper (1980) report that from 1966 to

1977, the average number of monthly visists to the clinics run by the

Ministry of Health increased by 288.9 %, while the population of the

country increased during that period only by 37.5 %. A similar trend is

reported by the same authors regarding the outpatient psychiatric services

provided by the medical insurance (Kupat Holin) of the trade unions

(’Histadruth”) to which more than 80 % of the country’s population

belong: within this framework, in the years 1970-1979 there was an average

annual growth of 5 % in number of contacts with psychiatrists, 12.7 % in

the number of contacts with psychologists, and 12.9 % in the number of

contacts with social workers. The authors emphasize that the above great

increase in the outpatient mental health contacts were not accompanied by

a parallel decrease in inpatient psychiatric treatment: ”The rate of psychi-

atric inpatients has not changed much in the last 15 years” (Rahav and

Popper, 1980, p. 6).

—127—

Figure 2: Annual rates of births to unmarried mothers

(per 1,000 live births).

160

140

U.S.A

120

100

U.K

80

RATE

60

West Germany

A_,-

40

'…

Switzerland

20

Israel

_M…_…—v—v

1

|

YEAR

1966

1968 1970

1972

1974

1976 1978

1980

— 128 —

The data regarding Japan show that between 1973, and 1978, the rate

of psychiatric outpatients increased from 7.1 per 100,000 population to

11.7. The rate of psychiatric inpatients during that period rose more moder-

ately: from 0.51 to 0.62 per 100,000 population (Japan Statistics Bureau,

1980).

In the United States, an enormous increase in the rate of outpatient

psychiatric services was observed in the last decade. Between 1965 and

1977 this rate quadrupled —from 559 per 100,000 population in 1965 to

2236 in 1977. Here too (as in Israel) this large increase in outpatient mental

health treatment contacts, was not accompanied by a parallel decrease in

psychiatric inpatients. In 1965 the rate of psychiatric inpatient services

was 817 per 100,000 population, while in 1977 this rate slightly increased

to 842 (U.S. Bureau of the Census, 1966-1980).

As to West Germany, between 1969 and 1979 the rate of admissions

to psychiatric hospitals increased from 103.10 to 193.10 per 100,000

population. The rate of patients in psychiatric institutions increased from

191.6 per 100,000 population in 1969 to 280.6 in 1979 (Statistishes

Bundesamt, 1970-1980).

4.3. Measures of Violence and Aggression

4.3.1. Homicide

Figures 3.1. - 3.3. present the homicide rates in all the countries of the

study. In most countries, a very considerable increase in homicide over the

last decade can be observed. This increase was especially great in Holland,

the U.S. (Fig. 3.3.), Israel (using the combined rate of homicide and at-

tempted homicide: Fig. 3.2.) and Finland (Fig. 3.1.). The only countries in

which a slight decrease is found are Japan and Austria (Fig. 3.1.). In

Switzerland and in England and Wales this rate was quite steady.

It should be emphasized that the Swiss national criminal statistics

available refer to convictions rather than to offences known to the police

(like in other countries). Therefore the Swiss rates in Fig. 3.1. (reported by

Killias, 1980) refer to convictions for homicide. Killias presents also data

regarding homicide cases known to the police in Zurich, the larges Swiss

city. From those figures it can be seen that since 1969 there was a consider-

able increase in the homicide rate Zurich, the peak year being 1974 with

4.8 homicides per 100,000 population.

4.3.2. Robbery

Data on robbery were available from all countries except New Zealand.

However, in five of the countries, the data on robbery (taken form Interpol

reports) are combined with those of burglary. The data for these countries

will be presented serarately.

129

Figure 3.1: Annual homicide rates in Austria, England and Wales,

Finland, Japan and Switzerland (per 100,000 population).

L_Homicide rate

Austria

Japan

Finland

—

u e

p

England & Wales

v.

_ _—_—--" --

Switzerland

|

|

l

|

l

|

J

[

1966

1968

1970

1972

1974

1976

1978

1980 Year

Figure 3.2: Annual homicide rates in Denmark, Israel, New Zealand

and Norway (per 100,000 population).

Homicide rate

7

Israel (Hom. & attempted Hom.)

Israe! (Homicide)

Denmark

—-

New/Zealand

-

Norway

|

|

|

|

Il

]

L 0

1966

1968

1970

1972

1974

1976

1978

1980 Year

- 130

Figure 3.3: Annual homicide rates in India, Netherlands, Sweden, U.S.A

and West Germany (per 100,000 population).

10

_ Homicide rate

U.S.A

Netherlands

West Germany

_"

India

Sweden

Æ

|

|

|

]

l

|

|

J

l

|

|

]

l

1966

1968

1970

1972

1974

1976

1978

1980

Year

TT 5

1 —

Figures 4.1. - 4.3. present the data on robbery in eight countries. As

can be seen very clearly, in all these countries except for Japan, there was

an increase in robbery, an in most- this increase was quite considerable.

Most salient increases are found in the US. (Fig. 4.3.), West Germany,

England and Wales (Fig. 4.2.), Israel and Austria (Fig. 4.1). In Indian and

Switzerland this increase was modest, while Japan, (as stated before) is the

only country with a steady decrease in robbery.

The increase in the rate of robbery in Israel (Fig. 4.1) is particularly

evident when compared to Japan. While in 1965 the rate of robberies in

Israel was less than half that of Japan, in 1978 this rate was about five times

that of Japan. Relative to the population, for each robbery in Israel in 1965

there were more than seven in 1980. It is worth mentioning that the two

major wars (in 1967 and 1973) were followed by a sharp increase in the rate

of robbery.

As shown in Fig. 4.1, data regarding (convictions for) robberies in

Switzerland were available only up to 1975. More recent data presented

by Killias (1980) regarding robberies known to the police in Zurich during

the years 1967-1977, show a dramatic increase: during the above period,

robberies in Zurich increased by more than 12 times, from 4.4 per 100,000

population in 1967, to 54.0 in 1977.

If we take into consideration the fact that the Swiss data in Fig. 4.1

refer to convictions only, and that in crimes of robbery (unlike homicide)

the conviction rate is considerably lower than the actual crime rate, the

above data regarding Zurich indicate that the real increase in robberies in

Switzerland during the last decade was much greater than incicated by

Fig. 4.1.

Table 2 presents the combined data on robberies and burglary in

Denmark, Finland, Holland Norway and Sweden.

Table 2:

Annual Rates of Major Larceny (Robbery and Burglary) in

Denmark, Finland, Netherlands, Norway and Sweden

(per 100,000 population).

Country

Denmark

Finland

Netherlands

Norway

Sweden

Year

1969

1010.8

426 .6

340.6

475.2

1141.2

1352.7

482.0

414.5

5259

1970

633.3

1971

1549.3

622.9

537.8

1972

1575.3

506.9

602.7

710.0

1973

1094.2

92.15

653.7

803.1

14Éî8.2

1974

131.38

802.2

815.0

1427.5

1975

14€0.2

149.6

843.9

882.3

1656.1

1976

1350.0

148.5

961.1

868.3

1846.7

1977

14711

93.0

995.1

829.3

1926.2

1978

1617.6

81.0

_—

10134

17914

d

e

Figure 4.1: Annual rates of robbery in Austria, India, Israel, Japan

and Switzerland (per 100,000 population).

Robbery rate

-

16

Israel —

ps

—

14

12

10

Austria

- A

India

-

L=

L

— ….

Japan

l

]

l

l

£Year

|

l

|

l

l

l

l

l

1966

1968

1970

1972

1974

1976

1978

1980

—

v

Figure 4.2: Annual rates of robbery in England and Wales

and West Germany (per 100.000 population).

36

34

32

West Germany

30

28

26

24

England & Wales

22

Robbery Rate

20

18

16

14

|

|

|

|

l

|

1

|

l

l

T

l

| YEAR

1966

1968

1970

1972

1974

1976

1978

1980

—134—

Figure 4.3: Annual rates of robbery in the US.A.

(per 100,000 population).

Robbery Rate

260

_

U.S.A

250

240

230

220

210

200

190

180

170

160

150

140

130F

Llllllllnlllllll

1966

1968

1970 1972

1974 1976

1978

1980 Year

= 135 —

As can be seen in Table 2, in all these countries, execept for Finland,

an increase in these crimes is evident. In Denmark, sorne fluctuations are

observed between 1972 and 1975.

4.3.3. Rape

Figure S presents the trends regarding rape in the six countries for

which data were available: Israel, Japan, England and Wales, Switzerland,

the U.S. and West Germany. In three of these countries (Israel, the U.S. and

West Germany) an increase can be observed; in England and Wales only a

very decrease (in convictions for rape) is found, while in Japan, again, there

is a decrease in this type of violence over the last decade: while in the U.S.

the rate of rape more than doubled during that period, in Japan this rate

was reduced by more than half.

One could argue that the increase in the rates of rape (particularly in

the U.S.) reflect only a greater readiness on the part of victims to report

the crime due to the increase in public awareness as well as to greater sen-

sitivity of the criminal justice system towards the victim. The type of data

presented here cannot, of course, disprove (or prove) the above argument.

However, the noticeable increase in other measures of criminal aggression

(such as homicide and robbery) indicates that the above explanation may

account for only part of the increase in the rates of rape, and there is a

strong reason to believe that some of the increase in recorded rapes in the

three countries reflect a genuine upward trend in this violent crime in

those countries.

4.3.4. General Criminal Activity

Figures 6.1 - 6.3 present the total annual rates of all offenses, in the

countries investigated. From these figures it is seen very clearly that in all

countries (except India and Japan) in the last decade, there was an increase

in the rate of offenses, and in most countries this increase was of a large

magnitude. Most salient increases are found in Israel, England and Wales

°

and the Netherlands (Fig. 6.1); U.S.A. and West Germany (Fig. 6.2)

9

Finland, Sweden and New Zealand (Fig. 6.3.). In India and Japan, on the

other hand, (Fig. 6.1), this rate remained virtually unchanged: in Japan a

very slight decrease is found, while in India an even less visible increase is

seen.

One should be very cautious in comparing the rates of different

countries in Figs. 6.1 - 6.3, due to the fact that in various countries these

rates may represent different things: to give just two examples:

1) As stated before, the rates regarding switzerland (Fig. 6.1) related

to convictions only (and not to offenses known to the police as in all other

countries).

2) The rates regarding the U.S. refer only to criminal behaviour falling

under the definition of ”index offenses”’ (homicide, rape, robbery, assault,

burglary, larceny, theft and motor-vehicle theft).

—- 136 —

Figure S: Annual rates of rape (per 100,000 population).

Rape Rate

35 H

30

25

//'

20

West Germany

15

10

V.

England & Wales

—————-———-—---——

Japan

Switzerland

.---

-— —-

|

]

|

|

|

1966

1968

1970

1972

1974

1976

1978

1980 Year

— |

9—

5 /

Figure 6.1: Annual rates of offenses in England & Wales, India, Israel,

Japan, Netherlands, Norway and Switzerland (per !,000 population).

Rate of offenses

65

60

Israel

55

50

England & Wales

45

40

35

Netherlands

30

25

Norway

20

15

Japan

10

India

Switzerland

]

]

l

| Year

1966

1968

1970

1972

1974

1976

1978

1980

138

Figure 6.2: Annual rates of offenses in Austria, USS.A. and West Germany

(per 1,000 population).

Rate of offenses

60

West Germany

55

U.S.A

50

45

Austria

40

35

30

l

]

l

l

| Year

25

|

l

|

l

]

1

|

À

|_

1966

1968

1970

1972

1974

1976

1978

1980

— 139 —

Figure 6.3: Annual rates of offenses in Denmark, Finland, New Zealand

and Sweden, (per 1,000 population).

Rate of offenses

120

p

115

Finland

110

105

100

Sweden

95

90

New

85

Zealand

80

..‘

75

70

65

Denmark

60

55

50

|

|

l

|

l

| Year

1968

1970

1972

1974

1976

1978

- 140 -

4.3.5. Suicide

In the vast literature on suicide, the question as to whether the taking

of one’s own life should be consdered as violent behaviour is an open

question (for detailed discussions on this topic see among others Douglas,

1967; Newman, 1979). We conceive suicide as inward-directed aggression,

and as such it is a measure suited for inclusion in our theoretical model.

Figures 7.1 and 7.2 present the data for this variable. À slight decrease in

suicide rate is found during the period under discussion in only three

countries: Sweden, India (Fig. 7.1), and Great Birtain (Fig. 7.2). In three

other countries there are fluctuations in this rate: Austria (Fig. 7.2), Israel

and New Zealand (Fig. 7.1). In Israel these fluctuations coincide with the

two major wars of the last fifteen years: the years 1968 and 1975, (fol-

lowing the war years of 1967 and 1973, respectively) are marked by a

considerable increase in the suicide rate. In New Zealand, from 1967 to

1971 there is a decrease in suicide, while from 1971 to 1976 there is a

slight increase. Regarding Austria it should be mentioned that suicide rates

in that country are among the highest in the world, and that all fluctuations

in these rates remain at that high level, as can be seen in Fig. /.2.

In eight of the fourteen countries, the suicide rate has clearly, and in

some countries drastically, increased. Large increases are found in Denmark,

and Japan, (Fig. 7.1) as well as in Finland, Switzerland and Norway

(Fig. 7.2).

Figures 7.1 and 7.2 provide us also with valuable information regarding

differences between countries in suicide rates. Towards the end of the last

decade, the lowest suicide rate in this study is found in Israel, while at the

other extreme one finds Finlands, Switzerland, Austria, Denmark and West

Germany.

4.3.5. Summary of the Findings

In order to facilitate an overview of the wealth of data presented in

this study, a summary of the trends regarding all the variables is presented

in Table 3. From that Table it is seen that on the whole, the findings sup

port our theoretical model. Over the time period covered by this study, the

increase in social stress (as measured by inflation rates) and the parallel

weakening of the family as a social support system, was accompanied in

almost all the countries by an increase in most measures of violence and

aggression.

141

Figure 7.1: Annual suicide rates in Denmark, India, Israel, Japan,

New Zealand, Sweden, U.S.A. and West Germany (per 100,000 population)

26

î_Suicide rate

24

—l

. .….=#=æ2……sæ»æee

22

<… ….

West Germany

@

20

Sweden

18

P d

&

' Denmark

16

14

Japan

12

0/0/0‘0 U.S.A

O\O——O——0/Ô'—O‘—O

10

New Zealand

India

Israel

4

E

|

l

L |

|

l

]

|

]

|

|

l

__ | Year

1966

1968

1970

1972

1974

1976

1978

1980

142

Figure 7.2: Annual suicide rates in Austria, Finland, Great Britain,

Netherlands, Norway and Switzerland (per 100,000 population).

Suicide rate

=

24

Austria

22

Finland

20

8FN //‘/‘\°

.—-_….….

Switzerland

16

14F

Norway

12F

10}

v

NWF-777TT

8 }

——……--

V Great

Britain

À

]

|

l

]

|

|

l

]

À

| Year

1966

1968

1970

1972

1974

1976

1978

1980

[+

Table 3: A Summary of the Findings Regarding the Variables of the Study

Variable

Marriage Rate

Births to

Mental

General

Inflation

Unmarried

Health

Homicide

Robbery

Rape

Criminal

Suicide

Country

Divorce Rate

Mothers

Contacts

Activity

Austria

(®

&)

(—

(®

Denmark

(

Finland

(—

(—

(—

(X)

e

Ë

â

(—

(-)

(—

®

India

(—

(

(—

Israel

(—

(H

(—

®

®

(—

(®

Japan

(—

(—

(-)

()

&)

(—

Netherlands

(

e

G»

(Gu)

(M

New Zealand

(H

(—

®

Norway

®

(—

®

(—

(—

HH

Sweden

,

G,

(—

®

(=)

Switzerland

®

Ë

î

G,

(—

(+)

U.K./G.B.

England and

Wales

—

en

(—

Gs

(=)

U.S.A.

(®

(—

(—

®

Gs

Gs

(—

Qe

West Germany

(—

Ë

î

es

(—

(H

(

®

®

G

Total

14

13

14

13

14

14

Increase

14

10

11

11

Decrease

13

Inconsistent;

Inconsistent

No Change

1

No information

9

L

Note : (+) O Increase

(--) = Decrease

* — Inconsistent;

No Change

S. DISCUSSION

5.1. The case of Japan: the importance of cultural factors.

The findings regarding several countries in this stuey merit wider dis-

cussion and interpretation. However, within the present framework, our

attention will focus mainly on one.

Of the fourteen countries included in this study, the most evident

’deviation’’ from our proposed theoretical model is found in Japan. In spite

of growing inflation, the weakening of the family as a social support system

(and the parallel increase of mental health contacts), most measures of

aggression and violence in Japan showed a decrease rather than an increase

(as hypothesized by the model). The inevitable question to be raised is: do

the Japanese data disconfirm the model or are there sufficient reasons to

treat Japan as a special case”

In this context, it should be mentioned that the data regarding ag-

gression and violence in Japan seem to contradict not only our model, but

also some commonly accepted explanations according to which modern-

isation and urbanization ”cause”’ or ”produce” an increase of violent and

other crimes in western societies (Newman, 1979, pp. 93-94). Similary,

these data contradict also the positive relationship reported by Huppes

(1976) between inflation and a number of ’’anomie-indicators’’.

Any attempt to understand the surprising findings regarding Japan must

take into account some of the basic characteristics of Japanese society,

especially those related to formal and informal mechanisms of social con-

trol. In this highly homogeneous society, social groups such as the family,

school, local community or work place play an important role in the pre-

vention and control of deviation and crime. These, and other primary

groups exert considerable pressure on a potential deviant to live up to

standards.

In his analysis of Japanese society, Vogel (1979), writes: ’”’Because an

individual in Japan is identified as a member of a group, the group is affec-

ted by the reputation of a deviant… The Japanese family, for example, is

judged to be much more responsible for an individual>s behaviour than in

America, and no sharp line is drawn between parental responsibility for

minors or adults.…. Any crime that involves a company member, especially

if publicized, is an extraordinary embarrassment to the company... À school

principal and a school teacher are considered so responsible for the behavior

of children under them, that they may be asked to resign, or at least to

apologize publicly when a child under their charge gets in trouble with the

police. The effect is not only to create greater group pressure on the

deviant, but to inhibit him by emphasizing the potential shame he will

bring to his group by misbehaving. À potential deviant may even be isolated

and expelled from the group is he has blatantly violated group norms against

the advice and urging of his fellow members” (Vogel, 1979, pp. 218-219).

— 145-

This elaborate network of informal social control is skifully and ef-

ficiently utilized by the highly professional Japanese police force. Police

officers are'integrated into the community. They have personal knowledge

of their neighborhood and there is a large degree of citizen’s participation in

crime prevention (Dinitz, 1981).

In his book on crime control in Japan, Clifford (1976) writes: ”In the

West the idea is persistent that the world owes one a living… (The indi-

vidual) has rights that must be respected and society exists for the indivi-

dual, not vice versa… Consequently there is a sense and a reality of freedom,

of which crime is a great part of the social cost. By contrast, a Japanese is

born in debt. From birth he owes something to his family, his teachers,

his classmates, his friends, and associates, his superiors, his local society…

He grows up in a context of duty more than right (Clifford, 1976, p. 165).

According to a U.N. report on crime trends and crime prevention

strategies (quoted by Dinitz, 1981), in Japan, there are three dominant

social standards which form the core of morality or ethics of the people:

1. Feelings of shame; 2. Duty-loyalty; 3. Respect for human relationships.

These basic characteristics of Japanese culture, which exert external pres-

sure towards conformity on the individual, may explain our findings regard-

ing this country. The increase in social stressors (inflation) and the decrease

of the strength of the family, is not accompanied by increase of outward-

directed aggression: suicide (see Fig. 7.1).

In this respect some similaristies in our data are found between Japan

and Switzerland. Although great differences exist between these two so-

cieties regarding social structure, history and culture, Swiss society is also

characterized as a highly homogeneous society, in which the local com-

munity and the various membership group within it (ie. family, school,

etc.) exert strong pressures on the individual towards conformity (Clinard,

1978).

As our data show very clearly, of all the measures of aggression and

violence in Switzerland, the greatest increase was found in the suicide rate

(Fig. 7.2). It seems that in Switzerland, like in Japan, the strong social pres-

sure against outward-directed aggression contributes to the increase of the

’alternative”

inward-directed aggression. Unlike Japan, however, in

Switzerland the suicide rate is not the only measure of aggression which is

on the increase. As indicated earlier there was an increase in robberies

as well. (This increase was particularly dramatic in the city of Zurich).

Coming back to the question posed at the beginning of this discussion

the Japanese data do not disconfirm our theoretical model. However, they

indicate that in reality, the relationships between the variables of the model

may be more complex than originally stated. The main point exemplified by

the Japanese (and to some extent by the Swiss) data is that cultural norms,

values and standards are a significant mediating factor to be taken into con-

sideration when testing our theoretical model. These cultural norms

- 146 —

determine to a large estent the type of reaction to social stressors. ÀÂs was

shown in Japan, the greater social cohesion and general conformity of

society succeed in controlling outward-directed (but not intward-directed)

aggression despite increasing social stress and the weakening of the Japanese

family (as shown in our findings).

From the finding presented in this study we may tentatively conclude

that our model gained support mainly from western affluent societies (the

U.S. and Western European countries).

A concept frequently used to describe the trends we found in these

societies is ’anomie”’. Huppes (1976) draws similaristies between the socio-

logical concept of anomie and the economic concept of inflation, by de-

scribing anomie as ”deviant social behaviour”’ and inflation as ”deviant

market behaviour” (Huppes, 1976, p. 152). As mentioned before, in his

analysis, Huppes (1976) showed a positive relationship between the two.

However, he refrained from stating the direction (or causal order) of this

relationship. In our model, this direction is stated very clearly, using an

entirely different terminology.

The Japanese picture can teach western societies much regarding the

way a society cn (or should) cope with social stressors, such as inflation,

without reaching a state of growing anomie. However, going into detail on

this topic is beyond the scope of the present paper.

The support provided by the findings of our model, though encour-

aging, cannot (and should not) be seen as a ”proof”” of the model, but

rather as an additional statting point for further research.

5.2. Suggestions for future research

In future research on this topic, attention should be paid to several

points:

1) The number of countries anayzed should be increased. An attempt

should be made to include countries from different parts of the world (ie.

Asia, Africa, Latin America) in order to increase the representation of

developing countries in our analysis.

2) As in both the present and our previous study (Landau and Beit-

Hallahmi, 1982) the data were not analyzed statistically, such analysis

should be conducted in future research. À quantitative analysis, done separ-

ately in each country will enable more accurate conclusions as to the exact

relationships between the various variables of the model.

3) The number and type of variables investigated should be extended.

Similar to our previous study (Landau and Beit-Hallahmi, 1982), several

indicators of social stress, as well as more indicators of violence should be

included.

4) As our model might be of greater relevance to certain social groups

within each country, research efforts should be made in this direction as well.

— 147 —

In each society, aggression and violence are not randomly distributed,

but rather tend to be more prevalent in certain social groups, defined by

age, sex, ethnic origin, socio-economic status, etc. Analyzing the literature

on viloence, Newman (1979) draws the common ”profile” of individuals

involved in violence: males in the 15-30 age group, from lower socio-

economic status, in urban areas, with high representation of certain ethnic

groups which are placed quite low in social hierarchy (Newman, 1977,

pp. 69-83). Interpreting these findings in terms of our theoretical frame-

work: the weaker sectors of society are more vulnerable to the detrimental

effects of social stressors (such as inflation, etc.), receive less support- from

social support systems (such as the family), hence, the greater prevalence of

violence and aggression. In a previous work on Israel (Landau, 1982) data

interpretation should be seen only as a hypothesis for future research.

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NOTES

(1) The specific source of our data are as fellows (Full details, see list of

references ):

Bundesant für Statistik (Switzerland), 1967-1981.

Central Bureau of Statistics (Israel), 1966-1981.

Central Statistical Office (G.B.), 1966-1980.

Japan Statistical Bureau, 1967-1980.

India Central Statistical Organization, 1970-1978.

INTERPOL, 1969-1978.

Statistiches Bundesamt (W. Germany), 1967-1981.

C NO U R V1 =

U.N. Statistical Office, 1967-1979.

9

. U.S. Bureau of the Census, 1966-1980.

)

In order to avoid the confusion caused by including too many countries

in one figure, the trends regarding this, as well as other variables will

be presented in more than figure.

(3)

The data on this measure regarding India are not presented as thy were

not vailable.

- 150 —

CRIME AND DEVELOPMENT : THE CASE OF HONG KONG *

By Harold Traver * *

ABSTRACT

This study focuses on the impact of industrialization and urbanization

on third world crime rate trends. Modernization theory assumes that third

world crime is a delayed replay of the Western experience and will decline

with the consolidation of an industrial society. Dependency theory assumes

that contemporary economic development reflects the interests of the

powerful at the expense of indigenous economic development and predicts

rising levels of crime as by-product of modernization. In particular it is

hypothesized that economic expansion should be accompanied by increased

criminal opportunities and a lower level of social frustration over material

needs, or, in terms of crime, by higher rates of property crime and lower

rates of violent crime. À variety of data is presented in the course of testing

this hypothesis which indicate that crime trends are a product of GDP, the

price of commodities and luxury goods, housing conditions, and police

force expansion. The results clearly indicate that dependency theory has

limited explanatory power in accounting for changes in crime trends in

Hong Kong 1956-1981, and that modernization theory must take into

account increased criminal opportunities, as well as improving living stan-

dards if it is to successfully deal with the problem of third world crime.

Discussions of modernization are typically silent about the problem

of crime in developing societies. Yet at the same time it is commonly

agreed that virtually any area of the world that has been touched by ur-

banization and modernization can expect to experience high levels of

crime. The studies of crime that do exist are cross-sectional examinations

of the crime problem in particular developing societies, or they use indi-

cators of development to explain variation between societies. However,

there is virtually a complete absence of any systematic effort to examine

crime trends and to relate these trends to the social and economic forces

which are said to characterize developing countries. The following analysis

attempts to correct this omission. Several possible determinants of crime

rates identified in historical studies of crime in Western societies and a

* University of California, Santa Barbara (Ph.D. Sociologv, 1973)

" - Lecturer,

Department of Sociology, University of Hong Kong

151

number of standard indicators of economic development will be used to

explain property and violent crime trends in one developing society, Hong

Kong.

There are two devergent approaches to the problem of third world

crime. One of these works within the framework of traditional development

or modernization theory and views development as a linear evolutionary

process. A number of observers (Gurr, 1977, Lodhi and Tilly, 1973,

Ferdinand, 1967, and Zehr, 1976) have presented evidence that crime was

at exceptionally high levels in many western societies in the early nineteenth

century, or just when these societies were beginning to experience the full

impact of industrialization and urban growth. Similar observations have

been made for contemporary societies that attempt to establish a modern

industrial economy (Lunden, 1962, 1968; Shelley, 1981). The implication is

that crime in developing societies is essentially a ’’delayed replay” of the

Western experience. Third world crime may be at relatively high levels but

this can be viewed a temporary problem that should begin to recede once

the transition to a modern industrial societt is completed (Clinard and

Abbott, 1973; Clifford, 1973, 1974).

According to this view industrial development inevitably increases the

potential for nonconformity and hence crime by expanding personal free-

dom and opportunities for achievement. Crime becomes essentially a social

cost that must be paid by any society that wishes to follow the path of

modernization. ”In short the pain and distress associated with crime should

be see, not so much as symptomatic of disease but rather as growing pains”

(Morris and Hawkings, 1970: 50).

An alternative and recently emerging approach to the problem of third

world crime works within the framework of dependency theory and focuses

on the presumed retrogressive effects of capitalist expansion into the third

world (Hoogvelt, 1978; Frank, 1980; Oxaal et al., 1975). In this approach

third world crime is seen not as an inevitable by-product of economic

growth and a raising standard of living, but as a distinct social form devel-

oped in capitalist societies and imposed on the third world as part of a social

package that accompanies foreign capital investment (Fitzpatrick, 1981;

Onselen, 1976; Summer, 1982). In contrast to western development, third

world dependency upon external capital has tended to inhibit the growth

of internal capital, encouraged capital intensive industries, and generally

weakened or destroyed pre-existing traditional economic structures.

Thus, whereas in development theory crime merely serves as a measure

of the effective development of a society (Cloward and Abbott, 1973: 11;

Lopez-Rey, 1970: 189), crme may now become a symptom of disease, as

well as an active force in creating and stablizing underdevelopment (Onselen,

1976; Boerhringer and Giles, 1977). This brings us to the question of

research hypotheses. In one way or another modernization theory predicts

an eventual decline, or at the very least a levelling off, of crime rates as the

152

fruits of development begin to spread throughout the society. In contrast,

dependency theory appears to deny the beneficial effects of a developing

industrial economy and appears to suggest that such societies should have

to contend with a continuing spiral of crime, or at the very least, hight

levels of crime.

It is possible to be more precise than this. Gordon (1971) has argued

that most crime is motivated by a desire for material gain and that it is a

rational response to the inequalities and insecurities engendered by a mod-

ern industrial economy. Ît is possible to derive two hypotheses about devel-

opment and crime from this. First, as an economy expands it would be

reasonable to suppose that pressures encouraging material gain should

expand as well, thereby increasing the number of acts against property.

Second, economic decline, or a low standard of economic development,

should excerbate existing inequalities and conflicts over the allocation of

material resources and as a result be associated with higher levels of violent

crime. To put it simply, property crime and decreased violent crime.

If one wishes to study the effects of development on crime, Hong Kong

has muck to recommend itself as a place of study. Hong Kong resembles

other developing countries to the extent that in the postwar years it has had

to contend with the effects of extensive social and economic change. Where

Hong Kong parts company with other developing countries is in the extent

of its development, and it is this departure that provides the researcher with

some unique opportunities for studying the effects of development. While,

of course, it is open to question as to whether or not economic developmenr

in Hong Kong parallels or represents a delayed replay of development in

advanced Western industrial societies, there can be little doubt that by the

1970s Hong Kong had started to take on a sufficient number of character-

istics of an advanced industrial society to endanger its status as a developing

society (1). To put it another way, as an ”economic success story” in the

developing world Hong Kong offers us with an extreme example of rapid

capitalist/industrial development, and, as one of the few remaining colonies

of the world, Hong Kong provides an unqualified example of dependent

development. This being the case, it would seem reasonable to suppose that

if there are any clear or consistent effects associated with development,

dependent or otherwise, it would seem logical to expect that they would be

especially likely to make their presence felt in Hong Kong.

CRIME AND ITS MEASUREMENT

Crime rate changes are restricted to two categoires of crime known

to the police: property crime and violent crime. Property crime consists

of the rates for three types of crime:

the numbers of personal thefts,

simple larcenies, and burglaries per 1000,000 population (2). Violent crime

consists of the rates for five types of crime: the number of homicides, rapes,

—A

v

indecent assaults, robberies, and serious assaults per 100,000 population.

Although not directly comparable, all offenses under examination are

violations of criminal statutes modelled along the lines of British criminal

law. The study is limited to a twenty-five year period between the years

1956/57 and 1980/81; a period during which Hong Kong experienced its

most rapid social and economic change.

Any study that uses reported crime as a source of data immediately

runs up against the fact that the volume of reported crime depends, to some

estent, on public trust in the police and police procedures in recording

crime. This means that there is always the possibility that a change in public

attitudes or police practices might account for all or part of the observed

change in reported crime.

The problem of varying procedural definitions of crime is diminished

by categorizing crime rates into property and violent crime. Though there

may have a tendency to classify rape as indecent assault it is quite unlikely

that either would ever have been classified as property offense. The only

potential problem in the classification scheme used in this study is in

relation to rebbery. Classifying robbery as a violent crime is a common

research strategy, but it is conceivable that robbery, on occasion, might have

been classified as burglary or theft. While this possibility cannot be ruled

out, an examination of robbery trends discloses that they almost exactly

parallel trends associated with other types of violent crime, especially

armed robbery.

In Hong Kong, violent crime and property crime form relatively distinct

trends. The fact that similar types of crime tend to produce similar trends

is one good reason for believing in the general accuracy of reported crime

rates. It also provides an objective justification for categorizing crime into

two broad types of crime. To put it another way, there is a degree of con-

sistency between trends for different types of crime that would not be there

if crime rates were entirely subject to the vagaries of public opinion and

police practices.

During the period under study police strength expanded rapidly (3).

It would be reasonable to suppose that this expansion may have contributed

to increase reporting of crime. However, if there has been such a contri-

bution it has been far from consistent (4). Between 1969/70 and 1974/75,

a period when property crime and violent crime were experiencing average

annual increases of 10.6 and 31.6 percent respectively, the police force

expanded at an average annual rate of only 2.3 percent. In contrast, from

1975/76 to 1980/81 police strength increased at an average annual rate of

8.2 percent while violent crime declined at an average annual rate of 1.7

percent and property crime increased on the average by 10.3 percent an-

nually. Changes in police strength may not have changed the fundamental

shape or direction of reported crime trends but this does not eliminate the

154

possibility of a systematic relationship between the two. The nature of

this relationship, assuming one exists, will be examined in the course of this

study.

There is another reason for believing that reported crime rates provide

a useful indicator of the true volume of cirme in society. Not all types of

crime are equally likely to be influenced by forces affecting reporting and

recording. As a general rule, the more serious a crime is in terms of property

loss or violence the more likely it is to be reported. This means that any

changes in reporting should show up most strongly in less serious forms of

crime. However, despite increased police strength and possibly improved

efficency, less serious forms of crime have not invariably increased more

rapidly than serious forms of crime. For instance, throughout the 1970°s

changes in armed robbery and murder have normally exceeded annual

changes in ordinary forms of robbery and assault. Also, during the first

half of the 1970°s burglary, a more serious offense in terms of property

loss, consistently increased more rapidly than miscellaneaous thefts. Unfor-

tunately, in the latter half of the 1970’s miscellaneous thefts increased

faster than burglaries. While the evidence is mixed in this latter case, there is

still some reason for believing that observed crime trends are not entirely

a product of changes in reporting.

INDICATORS OF DEVELOPMENT

Economic Conditions

Prevailing economic conditions provide one of the oldest and most

widely used explanations of crime. Serious crime has been observed to

increase in periods of economic depression and fall during periods of pros-

perity (Thomas, 1925; Ogburn, 1923; Phelps, 1929; Short, 1952). However,

evidence for a direct relationship between crime and the business cycle is

mixed. The bulk crime may be motivated by a desire for material gain,

but there is little evidence to support the notion that improved living

standards or a lessening of objective material need necessarily contributes

to a reduction in crime. Instead Clinard and Abbott (1973), Clifford (1974),

Vold (1958), Morris and Hawkins (1970), Lopez-Rey (1970), and others

have persuasively argued that expanded crime and an improved standard

of living are virtually inseparable.

Improved living standards may remove the frustrations of property and

actual need as a cause of crime, but industrial development as an expanding

economy also implies rising expectations, increasing stress on material

acquisition, and possibly a reduction in social constraints. Toby (1969) and

Wolf (1971) have presented considerable cross-national empirical evidence

in support of a direct link between affluence and developmental status of a

country and crime. Similary, Zehr (1976) notes that the steady growth in

A

Un

theft rates in 19th century France and Germany was accompanied by a

general improvement in living standards.

Changes in industrial employment, stockmarket turnover, domestic

exports/re-exports, real wages, real price of rice, per capita GDP and per

capita electricity consumption are used here to indicate shifts in economic

activity (5). In addition to these indicators vehicle registration rates were

included in an effort to arrive at a more direct, albeit crude, control for the

impact of affluence on crime (6). Assuming these are adequate indicators of

economic conditions, increases in any of these areas should be related to

rising levels of aspiration and increased property crime, while declines in

these areas should help to contribute to widespread frustration and in-

creased violent crime.

Urbanization

There is considerable evidence taht the level of urban crime is far in

excess of rural cirme and that crime also to increase with city crime. This

may be especially true in third world cities where social isolation and a lack

of identify are likely to interact with a comparatively fixed opportunity

structure and rapidly rising expectations (Clinard, 1964; Weinberg, 1973).

The reason traditionally given for this state of affairs is that in developing

societies people are frequently pulled into the city by the promise of a

better way of life, at such a rate that the economy is unable to assimilate

them into the workforce (Clinard and Abbott, 1973).

Other observers (Summer, 1982) have pointed out that urban develop-

ment may not be quite so straightforward. In many cases migrants may

actually be pushed into the city by economic and political policies that

have encouraged the decomposition of rural society, or in the case of Hong

Kong, policies which have contribued to the instability of Chinese society.

Rather than being incapable of absorbing migrants, urban employers may

be unwilling to absorb them because of what it would do to wages and

profits. In this view the problems of urban life essentially remain the same,

but are now seen to be comparatively permanent by-products of the profit

making structures of third world economies.

In order to study the effects or urbanization this study uses the pro-

portion of the population living in public housing and population density

as its indicators of urban development (7). Cloward and Abbott (1973: 175)

have concluded that howerever slum clearance and relocation projects have

been attempted they have had a disastrous effect on delinquency and crime.

This assumes that the artificial social environment of public housing

schemes serves to excerbate the already high levels of social isolation and

anonymity associated with urban life (8). Public housing schemes may

encourage a freer expression of aggressive and criminal behaviour, but there

is also the possibility that public housing, at least in many third world

156

societies, represents improvements in living conditions. If this does apply

public housing schemes may significantly lower the level frustration over

material living conditions. As a product of economic development, con-

trolling for the effects of economic conditions would eliminate any relation-

ship between housing and crime. However, if there is an independent effect

it is likely to take the form of a decrease in violent crime, and possibly an

increase in property crime.

ÀA similar argument can be made with regard to the effects of density.

Logically, high density environments should produce high levels of emotion-

al stress and be more likely to be associated with poor standard of living. At

the same time, increasing density may also show a direct association to

economic growth. At least in Hong Kong, the two give every indication of

being closely related phenomenon. If this is true, it would be reasonable to

suppose that controlling for economic conditions should eliminate any

effects that density might have on crime. However, if this is not the case

then the effects should be similar to those predicted for housing.

Police Force Strength

Expanding police employment traditionally has been one of the most

frequently advocated strategies for controlling crime. However, attempts to

provide evidence for a systematic relationship between the two have pro-

duced divergent results. Swimmer (1974), using police expenditure as a

major independent variable, found that increases in police expenditure and

police strength were significantly related to reductions in crime. Huff and

Stahur (1980) have concluded that, in the United States, police employ-

ment and crime rates are reciprocally related and that the relationship offers

more support for the ’’labelling’’ than the ”deterrence”’ perspective. Besides

finding a positive relationship between crime rates and police strength,

Greenwood and Wadycki (1973) found a positive relationship between

police strength and crime. Humphries and Wallace (1979) discovered that

cities with large police forces experienced increases in auto theft and homi-

cide rates. In contrast, Loftin and McDowall (1982) failed to find evidence

of a systematic relationship between police strength and crime. Similary,

Wellford (1974) and Pogue (1975) have found little association between

police strength and crime rates, and Jones (1974) has found little asvsoci-

ation between crime and police strength.

This study includes changes in force strength in an effort to control for

the impact of the criminal justice system on crime. As was true for Western

industrial societies in the last century (Gorer, 1955 ; Richardson, 1974), the

expansion of police force size appears to be related to urbanization and

economic expansion, as well as a corresponding need to maintain existing

class relations that are advantageous to continued capitalist accumulation.

To the extent that police strength is a product of urban and economic

development, controlling for these variable will probably eliminate any

= 157 —

effects that police strength might have on crime. However, there is also the

possiblility that police strength may intervene and add to the high rates of

urban crime. If such effects do exist they are most likely to appear in prop-

erty crime rates.

ANALYSIS

Any interpretation of an observed relationship between time series data

must take into account that it may be a spurious consequence of the trend

effects and autocorrelation. Time series data which form trends will always

be correlated, to some extent, simply because of the common variation

implied in the trends. In the case of Hong Kong thirty years of rapid eco-

nomic expansion and urbanization has meant that virtually all social and

economic indicators are going to share similar trends. One indicator may

correlate with another, but these same indicators would show a similar

correlation to any series of numbers that happened to form a linear trend.

The problem of autocorrelation is nearly as obvious, for this refers to a

situation in which current observations are partially predictable from past

observations. Such a lack of independence may seriously affect the inter-

pretation of least squares estimates, which require that successive values in

the series are independent of one another. If this predictable within series

variation is not removed it can be confounded with effects between series

variation to produce a variety of problems for interpreting regression

coefficients. One of the simpliest and most direct ways of dealing with these

problems is to remove the linear trend from the data and work with devi-

ations about the trends (Clarks and Schkade, 1974). Any observed cross cor-

relation between the residualized measures will not be due to the common

variation due to autocorrelation.

It is often implicitly assumed that prevailing economic and social con-

ditions have an immediate effect on crime. Obviously, it would be reason-

able to assume that any such effects would have a delayed impact on crime

but serious problems entailed in specifying a temporal pattern of association

when, as in the present study, the researcher knows very little about the

nature of the relationship or if it even exists. Still, the possibility of delayed

effects cannot be safely ignored. Thus, in the present study, two simple

temporal sequences involving lags of one and two years were specified. How-

ever, both sequences failed to produce any significant change in the relation-

ship that particular indicators showed to crime or improve their overall

ability to predict crime. Consequently, with one or two exceptions the fol-

lowing discussion of findings will confine itself to an examination of un-

lagged effects.

(Table 1 about here)

Table 1 shows that the indicators are not sufficiently interrelated to

preclude multiple regression analysis. Except for the correlation between

— 158 —

exports/re-exports and per capita GDP, no correlation exceeds .85 and,

in fact, the majority of correlation coefficients appearing in Table 1 are well

below .45. That exports/reexports and GDP should show a close association

should come as no real surprise, considering that Hong Kong is an export

based economy. Potentially more interesting is the close association that

police strength shows to these same indicators, for this lends support to the

contention that police expansion depends as much, if not more, on econ-

omic growth as it does on the growth of crime. In both instances, the zero

order correlations exceed the correlation that police strength shows to crime

(see Table 1) (9).

Multiple regression analysis involved a two stage process in which the

effects of all ten developmental indicators appearing in Table 1 were first

determined. Any indicator that failed to meet a minimum tolerance of .20

was excluded from the regression analysis. The results of this stage appear in

the first column in Tables 1 and 2. Any coefficient that failed to achieve

statistical significance at the .10 level was then dropped from the regression

analysis and the analysis was repeated. The final estimates of regression

coefficients appear in the second column in Tables 1 and 2 (10).

(Table 2 and 3 about here)

Effects of Economic Conditions

The figures appearing in Tables 2 and 3 provide partial support for the

hypothesis that improved economic conditions should be associated with

increasing rates of property crime and increasing rates of violent crime.

Table 2 shows that property crime is positively associated to vehicle owner-

ship (.19) and exports/re-exports (.341). Presumably a decline in real food

prices should indicate an improvement in living standards and thereby be

associated with increased property crime rates. However, as Table 2 shows,

property crime displays a positive association (.38) to changes in the real

price of rice.

Naturally, there is also the possibility that rising prices are an indication

of inflation produced by a rapidly expanding economy. While this was not

originally predicted, if this is the case it would mean that the association

between real rice prices and property crime rates does in fact conform to

the high property/low violent crime hypothesis. Interestingly enough, real

wages, though not statistically significant, displays an inverse relationship to

property crime (—.'5). In other words, as prices go up and/or wages go

down property crime rates tend to increase.

Table 3, which shows that violent crime is inversely associated to per

capita GDP (—.74) and real wages (—.37), and positively associated with

the real price of rice (.35), provides additional evidence that, besides encour-

aging an increase in property crime, economic growth or improved living

standards may contribute to a decline in the rate of violent crime. In other

— 159 —

words, as one might expect, violent crime shows a tendency to increase

when prices rise and/or wages fall or, to put it another way, where one can

reasonably assume there is a higher level of social frustration. The only

problem in all this is to be found in relation to vehicle ownerhip. Table 3

shows that the relationship is statistically significant and positive (.34). This

latter finding suggests the spread of consumer goods can encourage wide-

spread frustration and increased violent crime.

Two statistically significant indicators, real rice prices and vehicle

ownership, have failed to perform as expected. In both cases a frustration

hypothesis has been suggested. The high property/low violent crime hypoth-

esis involves an implicit assumption that, while not every indicator can be

reasonably expected to exercise an independent effect on crime, the effects

that do exist should all be of a similar nature. Now development may be a

unitary process and an expanding economy, undoubtedly, may have a

uniform impact on crime, bu an alternative and possibly more fruitful

approach to the problem of crime and development might be to devote

attention to the effects of specific aspects of development. In this instance,

this means being concerned with how changes in living standards affect

crime rates, as opposed to changes that are more strictly economic in

nature.

Toby (1969) has found that a rising level of affluence, measured in

terms of the spread of consumer goods, is associated with rising crime,

including violent crime. The positive association that vehicle ownership

shows to violent crime is directly in line with this observation. Even though

they were not included as indicators in this study, it is worth noting here

that when telephone and television ownership were substituted for vehicle

ownership, these two indicators had an effect on crime that was similar to

that of vehicle ownership (11).

It could be hypothesized that, in comparison with other economic

indicators, prices, wages, and especially spread of consumer goods are

particular sensitive to shifts in the level of frustration over the perceived

inability to satisfy material expectations. Thus, a high property/low violent

crime hypothesis may apply when one deals with changes that are more

strictly or directly economic in nature, while a social frustration hypothesis

may work especially well when one deals with indicators that focus more

on affluence than on changes in the economy. These are only possibilities.

Unfortunately, it is outside the scope of this study to examine them in

greater detail.

Effects of Urbanization

Tables 1 and 2 show that, contrary to what some people have predicted

(see Clinard and Abbott, 1973), the growth of public housing schemes is not

necessarily associated with increased crime, at least in Hong Kong. Rather,

160

the existing evidence suggests that just the reverse may apply. In particular,

violent crime shows a strong negative association (—.73) to expanding public

housing schemes and, although it fails to exercise an independent effect on

property crime, the direction of the effect continues to be negative. AIl this

does not rule out the possibility that public housing may have encourage d

social anonymity and a freer expression of aggressive behaviour but it ap-

pears that these effects have been overwhelmed by the increased social

stability produced by improved housing conditions.

9

Although Tables

—

and 3 show that density fails to have independent

effect on either violent or property crime the direction of the relationship is

again negative. In fact there is little support in the literature for the widely

held belief that there is a direct relationship between density and crime. On

the contrary, Kvalseth (1977) and Humphries and Wallace (1980) have

provided evidence for a negative association between density and certain

types of crime. This is because low density cities are frequently affluent

cities and, as such, are potential locations for higher rates of property crime,

while high density cities are likely to be economically declining cities and

thereby possible centres for higher rates of violent crime (see Humphries

and Wallace, 1980). Similary, Hemely and McPeters (1974) have found that

the rate of population growth, which shows a relationship to economic

growth, has a positive effect on nonviolent property offenses such as bur-

glary and larceny and a negative effect on robbery. In general these findings

offer little support for the notion that urban growth is necessarily associate d

with a weakening of social constraints and an expansion of criminal op

portunities.

Effects of Police Strength

Contrary to what was expected, controlling for economic conditions

and urbanization does not entirely eliminate the effects that police strength

has on crime. This refers to Table ? which shows that force strength is posi-

tively associated with property crime (.46). In contrast to violent crime

9

the introduction of housing and GDP acts to remove any independent

effects that police strength might have on property crime. Table 1 shows

that the original relationship was in fact negative (12). The finding that

police strength is positively associated with property crime goes against

previous research (see Land and Felson,, 1976; and Swimmer, 1974) that has

found a negative association between police employment and crime rates.

It is, however, in partial agreement with the findings by Huff and Stahura

(1980) that police employment may have a labelling effect on crime. This

finding lends support to the notion that to the extent that police strength

is a product of economic growth and urbanization. Controlling for these

factors may well serve to specify, rather than eliminate, any effects that

police strength might have on crime.

— 161 —

The above discussion assumes that the effects of police strength are

immediate. Changes in police strength may well have a delayed or lagged

effect on crime. Though not reported in detail in this study, when all indi-

cators were lagged by one year on crime the predictive value of police

strength increased slightly (from .53 to .55), but it still failed to have an

independent effect on violent crime. À lag of two years served to weaken

the association rather than strengthen it.

There is still the possibility that an expansion of police strength may

have an effect on crime but that this effect was masked when other indi-

cators were also lagged on crime. Again, while the results do not appear in

any of the tables, when police strength is lagged by one year on crime, with

the temporal sequence of the other variables remaining unchanged, its as-

sociation to property (.12) and violent crime (—.171) declines significantly.

In neither case does police strength have an independent effect on crime. À

two year lag fails to produce the major changes in this relationship.

There is also the question of how crime affects police strength. AlI that

can be said here is that, when crime is lagged by one year on police strength

with the temporal sequence of the other variables remaining unchanged,

neither violent crime or property crime exercise any independent effects on

police strength. The respective regression coefficients ar .39 and .14 bu they

fail to achieve significante at the .OS level.

The results of this section can probably be summed up by saying that

the main effects of police strength on crime may be in fact immediate, and

that they may involve a positive association to increase in property crime.

Discussion

Summer (1982: 24) has commented that even ’success stories” such as

Hong Kong only really tell the tale of investement from advanced capitalist

countries, and that the records of Hong Kong crime and justice does not

support faith in ’’development”’ or ”delayed replay” theory. The assump-

tion that countries of the centre condition the movement of periphery

countries to the detriment of their economic progress is at odds with the

original Marxian position on the effects of imperialism (13). In a way that

is remarkable similar to contemporary development theory, Marx held that

the expansion of capitalism into precapitalist countries was desirable and

progressive. For Marx, in the long run capitalist penetration involved in-

creasing integration into a world economic system and the establishment of

a bridge to future socialism. In the short run capitalism could be considered

to be far mor: advanced than preceeding social forms because it led to a

rapid exnansion of productive forces and a general improvement in material

velfare ( Avineri, 1969).

ossentially represents a modest attempt to see if the original

Marxiu: EGoition still holds true for at least some developing countries.

LO

As it stands here, the findings suggest that Marx may well continue to be

right. During the period under study, traditional social structures may well

have been destabilized, but if they have this has not been reflected in clear

or consistent increases in crime. Nor is there any indication that devolop-

ment, at least as it measured in this study, has a clear or consistent impact

on crime rates. There are quite simply too many indicators that do not work

in the predicted direction or which have no detectable effect on crime to

support any claim that externally induced development invariably has an

adverse effect on crime.

Rejecting dependency theory as an adequate or useful explanation of

crime trends does not mean that development theory, as well as the more

’sophisticated”’ version of that theory used in this study, becomes an

unqualified success. Rather, the observations made above apply with equal

force to the notion that improved economic conditions have contributed to

lower levels of frustration and increased criminal opportunities.

In regard to property crime, Table 2 shows that vehicle ownership,

exports/re-exports, and police strength are associated to property crime

in the predicted direction. However, increases in real rice prices also directly

associated with increases in property crime. Similarly, Table 3 shows that

four of the five significant indicators of development are associated to

violent crime in the expected direction, which does help to lend support to

the notion that development may contribute to a lessening of social frus-

tration and a decline in violent crime. However, one indicator failed to con-

form to this pattern and displayed instead a positive association to violent

crime rates. This indicator was vehicle ownership. The failure of real rice

prices and vehicle ownership to perform as expected raised questions about

what role affluence and the spread of consumer goods play in raising frus-

tration levels.

In terms of general or overall trends, there is definitely more violent

crime now than there was twenty-five years ago, but current levels are well

below those found in the 1970°s and it gives every indication of continuing

to decline. If violent crime is really a product of rapidly rising expectations

produced by a rapidly expanding economy, it would be reasonable to

expect declines in violent crime once the economy begins to nature. In con-

trast the relatively slow but steady growth of property crime may represent

the fact that there are simply more things to steal and fewer social con-

Straints to keep one from doing so.

These observations are based on observed changes in the rates of

typical forms of working class street crime. This ignores the hard fact

that crime is unquestionable determined by those persons with the econ-

omic and political power to define and enforce laws. Interpersonal violence

and the illegal acquisition of property are legitimate objects of research

but when lead to the exclusion of any consideration for corruption, com-

mercial crime, and other offenses likely to be committed by the powerful.

163

Given existing data it is difficult to do more than speculate on the

prevalence of such offenses in Hong Kong. In regards to corruption, there is

no question that it has flourished since the establishment of colonial rule,

but this does make it a product of colonialism. There is every reason to

believe that structural conditions within the Ch’ing bureaucracy plus an

emphasis on Chinese society well before the introduction of colonialism

(Lee, 1979). There is also a good possibility that at least some of what is

currently referred to as corruption is merely an extension of certain features

of traditional Chinese social relations into a modern industrial economy

(Lee, 1981). Rather than being overly concerned with prevalence, it may

make more sense to askx why some of these practices have recently been

defined as corrupt, or it may be more useful to examine what there was

little official or public concern about corruption until around 1972-73, or

just when Hong Kong was beginning to emerge as an industrial society.

In contrast to problems associated with establishing prevalence, it is

possible to see both dramatic and rapid shifts in official concern about

corruption and commercial crime. In 1974 an Independent Commission

Against Corruption (ICAC) was established permanently by the Hong Kong

Government to fight corruption in all sectors of the economy. In addition

to this development 1974 also saw the establishment of the Consumer

Council, a government sponsored consumer protection agency, and a year

later this was followed by the creation of a Small Claims Tribunal with

jurisdiction over small monetary claims. These institutions may not have

eliminated the problems of corruption or commercial crime but they most

certainly represent a shift in official concern over the prevalence of these

problems.

Why did these changes occur when they did? While it is impossible to

give a conclusive answer to this question it is worth noting that by the

early 1970°s the effects of large scale immigration into Hong Kong in the

preceding decades were beginning to recede and a growing number of its

citizens were beginning to develop a sense of belonging. With the increase

in social integration the public was simply less willing to accept corruption

and consumer related offenses (Lethbridge, 1976). Another part of the

answer probably is to be found in the emergence of Hong Kong as an

industrial society. To the extent that an industrial society is based on

bureaucratic means of control there is going to be a built-in structural

intolerance of corruption, or to put it another way an efficiently function-

ing industrial economy requires a rational-legal approach to social relations

as well as business relations. It is also worth noting here that these shifts in

concern over corruption and consumer affairs shows some resemblance to

what occurred in Western industrial economies as they began to reach

maturity.

Where does all this leave us? All that can be really said is that in Hong

Kong crime appears to respond to social and economic changes in ways that

— 164 -

resemble what has been and continues to be observed in advanced Western

industrial societies. If this sounds like a delayed replay or modernization

explanation of crime it may be, although it is hard to arrive at a definitive

conclusion about this. Which explanation of cirme works best probably

depends on the social and economic phenomenon one is talking about.

Dependency theory may very well apply in societies which are decidedly

not ’’success stories’’. Delayed replay or modernization explanations may be

more applicable in those societies which tell a tale of rapidly expanding pro-

ductive forces and a rising standard of living. In all this the really important

thing is to sensitive to the fact that the effects of industrialization and

capitalist expansion are complex and problematical, and most certainly

cannot be dealt with adequately in the absence of research.

— 165 —

Table 1 : Zero Grades correlations Matrix for all Variables

under investigation in Hong Kong, 1956/57 to 1980/81. (Linear Trend Research).

9

10

11

12

13

14

15

Population Density/km2

33

16

01

07

17

.03

-.33

-.54

-.66

-.24

-.30

-.60

-47

-.66

-.68

16

-.81

31l

-.37

-.17

-.52

-.16

-.84

-.75

-.32

-.78

-.22

Percent in Public Housing. . .

Police/10.000

07

28

-.09

5l

-.02

28

61

83

13

-.14

!

-.28

B u E —

Index of Real Wages

. ° . . . * ° ° . °

10

08

26

21

-.52

18

-.03

-.30

-.58

-.10

-.21

(HKS million)

Domestic Exports/Reports

(HKS million)

-.18

60

19

42

15

96

82

03

89

02

Percent Employed in

Manufacturing

. ° ° Q . * . *

14

-.13

-.18

-,15

-.21

-.21

-.20

-.21

-.15

Stock Market Turnover

— 991 —

(HKS million)

. . . . ° . Q ° . °

13

.10

36

-.04

41

12

25

14

. ° * . e . . °

23

-.29

11

26

43

23

84

Vehicles/10.000

Real Prices of Rice/catty

41

39

70

71

46

49

10

Per Capita Electrica

81

72

82

81l

24

Consumption

11

Per Capita GDP

82

01

90

-.13

12

35

88

33

Property Crime/100.000

13

Violent Crime/100.000

. . . . °

31

80

14

Property Crime/100.000

26

15

Violent Crime.100.000

Lagged one Year

r V .34,p <.05

Table 2: Best Predictor Variables Selected by Stepwise Multiple Regression

of Property Crime Rates on Developmental Indicators

for Hong Kong, 1956/57 to 1980/81

First Stage

Second Stage

Beta

F

Beta

F

Weight

Ratio

Weight

Ratio

Selected Variables

- Exports/Re-exports

. . . . ° . . ° .

31

5.116

34

5.639

- Real Price of Rice

. . . . ° . . ° . .

27

6.104

38

20.027

- Police Employment

. . . * . . . ° .

54

11.369

46

8.660

. . . . . . . . .

28

6.067

19

3.600

- Vehicle Ownership

-.15

2.269

E Êâal Wages

. - . . . . ° . . . . . ° . . . ° >

91

90

Adjusted R*

. Û . . ° - . . . . ° . .

88

88

Varianies Not In the Equation

Stock Market Turnover

-.l1

401

Percentage in Manufacturing

-.07

930

. . . . . . . . . . .

-.03

056

- Publiç Housing

. . . . . Û . . . . . . Û . ° .

-.04

144

- Density

Per Capita Flectrical Consumption

-.04

046

- Per Capita GDP

. ° . . ° ° . ° . . °

-.11

117

Table 3: Best Predictor Variables of Violent Crime

Selected by Stepwise Multiple Regression

for Hong Kong 1956/57 to 1980/81

First Stage

Second Stage

Beta

F

Beta

F

Ratio

Ratio

Weight

Weight

Selected Variables

Real Price of Rice

. . . - . ° . ° . .

33

5.976

35

71.342

. . . ° . . . ° °

10

230

Police Employment

Public Housing

74

16.847

-.13

17.248

Per Capita GDP

. . . . . . . . . . °

- 81

11.598

-.74

17.878

Real Wages

. . . . * . . . . ° . ° . .

-.39

10.235

-.37

10.514

Vehicle Ownership

. . . . . . . . .

39

2.628

34

10.554

R

. . . . ° . . . . Q . ° . . . ° ° .

88

88

Adjusted R°

. . . . . . . À- ° e ° ° .

84

84

Variables Not in the Equation

Exports/Re-exports

. ° . . . . . . .

32

815

Stock Market Turnover

. . . . . .

-.08

129

Manufacturing Employment. . .

-.01

001

Density

- - . . . . . Û . . . . . ° ° .

-.08

319

. . . . . .

-.17

l‘lectrical Consumption

502

— 167 —

NOTES

(1) Thirty years ago like many other devoloping countries Hong Kong was

forced to cope with and extremely rapid rate of urban growth in

rapid rate of urban growth in the absence of an adequate industrial

base. For instance, between 1949 and 1961 an average of 40,000

persons entered Hong Kong each year (United Nations, 1974). As a

result, by 1981 Hong Kong’s population had increased to the point

where it has one of the highest population densities in the world

(4800.9) persons/km*). However, by 1981 it also had the third

highest per capita income (US$4, 600) in Asia, as well as the largest

proportion (41.2 percent) of the work force engaged in manufac-

turing. Unless otherwise noted, all statistics in this study are compile d

from Hong Kong Government (1957-81).

(2)

Until recently recording procedures categorized auto theft as larceny.

In fact ”simple larceny”, later called ”miscellaneous theft”, officially

serves as a catchall category for a variety of property crimes. AIl

statistics are derived from Commissioner of Police (1957/58-81).

(3)

Since the beginning of the period under study police strength has

increased from 5,815 to 26,180. Police expansion has involved rela-

tively steady increases while crime generally has tended to increase,

if at all, more slowly. The only exceptions to this are a few years in

the 1970’s when increases in violent and property crime exceeded that

of police strength.

(4)

There is a chance that since in the mid-1970°s a general streamlining

of reporting procedures and repeated campaigns to encourage the

public to report crime may have made some contributions to the

volume of reported crime. However, if this has happened the effect

is far from clearcut for crime had increased well before the mid-

1970°s, and some types of crime have declined since that time.

($)

Moore (1968) points out that an essential feature of industriali-

Zation is the ’extensive use of inanimate sources of power in the

production of economic goods and services. Electrical consumption

is one indication of changes in this area. Per capita electrical con-

sumption has increased from 286.4 kwh in 1957 to 1833.5 in 1977

(Hong Kong Government, 1957-1981). All data relating to trends in

GDP prior to 1970 appear in Reidel (1974). GDP (expenditure

based estimate) figures from 1970 onwards appear in Hong Kong

Government (1973-1981).

(6)

A number of other economic indicators such as telephone ownership,

money supply, number of tourists, and company registration were

considered and rejected for inclusion in this study, either because they

duplicated the effects of other indicators or because they failed to

display any significant relationship to either property or violent

crime.

— 168 —

(7)

The number of peopple living in temporary/squatter housing also

could logically serve as an indicator of the level of social stability and

the ability to apply effective social sanctions against criminal behav-

iour. Unfortunately, accurate yearly statistics are not available for this

type of housing; however, from existing information there appears to

be an inverse relation between the two types of housing.

(8)

Hong Kong has produced some massive housing facilities. The largest

of these, Tsz Wan Shan, has 28,820 apartments and a domestic

capacity of 150,355. Currently, 48 percent of the population lives in

this form of housing (Housing Authority, 1976/77).

(9)

These are unlagged effects. Interestingly enough when police strength

is lagged by one year the correlation to property crime decreases to

38 and the correlation to violent crime ’increases” to .08. During the

same for exports/re-exports and GDP reduces their association to

property and violent crime to .25 and .28 respectively.

(10)

There is a chance that effects of these indicators are not independent.

To test for this, multiplicative terms were constructed to represent all

possible interaction effects. After first entering the main indicators

into the regression aquation the interaction terms were introduced in

a stepwise fashion to see if they produced any statistically significant

increases in R’. In no instance was significant interaction effects

found.

(11)

In an elevent variable regression model with the tolerance level for

inclusion set at .10 the beta weights for telephone ownership in

relation to property and violent crime were .15 (p < .1) and .613

(p < .001), respectively. For televesion ownership the beta weights

were .18 (p < .1) for property crime and .732 (p < .001) for violent

crime.

(12)

Ît has already been stated that multicollinearity does not appear to

present a problem in this study. Still, Table 1 shows that GDP, Hous-

ing, Electrical Consumption, Exports/Re-exports, and Police Strength

are, in some instance, rather closely intercorrelated. However, when

Electrical Consumption and GDP are eliminated from the eleven

variable regression model police strength still fails to exercise and

independent effect on violent crime (—.177) but continues to have a

definite effect on property crime (.534).

(13)

According to Williams (1980) the reversal the original Marxian pos-

itio.\ was encouraged by Lenin to serve the needs of bourgeois anti-

imperialist propaganda and the presumed security requirements of

the Soviet state.

— 169 —

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Family 3: 58-71.

Wellford, C., 1974. ”Crime and the police: a multivariate analysis”. Crimi-

nology 12: 195-213.

Wolf, P., 1971. ”Crime and development: an international comparison of

crime rates’’. Scandinavian Studies in Criminology 3: 107-120.

Zehr, H., 1976. Crime and the Development of Modern Society. London:

Croom Helm.

— 172 —

CORRUPTION IN DEVELOPMENT: DEFINITIONAL,

METHODOLOGICAL AND THEORETICAL ISSUES

Ferni Odekunle, Ph. D. *

1. INTRODUCTION

Historical and ethnographic studies of ’traditional” court functioning

in most of our pre-colonial societies xhow that traditional rulers, as well as

their chiefs, emissaries and henchmen, were perpetrators of certain insti-

tutionaled forms of corruption particularly in the adjudication of land and

related disputes. Addes to this, and built upon it, were new forms of cor-

ruption made possible by the colonial political administration and economy.

About 1952, the practice of giving and/or demanding ”cash gift” was

authoritatively stated to be found:

’in hospitals where the nurses require a fee from every in-patient before

the prescribed medicine is given, and even the ward servants must have

their ’’dash’”’ before bringing the bed-pan; it is know to be rife in the Police

Motor Traffic Unit which has unrivalled opportunities on account of the

common practice of overloading vehicles; pay clerks make a deduction from

the wages of daily-paid staff; produce examiners exact a fee from the

produce buyer for every bag that is graded and sealed ; domestic servants pay

a proportion of their wages to the most senior of them, besides often having

paid a lump sum to buy the job” (storey Report, 1954)”.

Still before ”independence”’ in 1960, and on a higher level, one cannot but

remember the contents of the Report of the Foster-Sutton Tribunal of

Inquiry into Allegations Reflecting on the Official Conduct of the Premier

of, and certain persons including Ministerial and other Public Officers, the

Eastern Region of Nigeria (1957).

Starting with the Coker Commission of Inquiry into the operation of

the Statuory Corporations of the Western Region in the early sixties, there

have been so many inquiries and investigations (popularly called ”probes”’)

of similar operations at the Federal, State, and Local government levels

since then to date (1) that it has been difficult, if not disillusioning, to keep

track of this occasional/sensational record of misfortunes. Such difficulty

and disillusionment are particularly so when one realizes that such probes

are hardiy ever genuinely-motivated and are ’”a mere tip of the iceberg”

when compared to what it is not probed or publicity-probed (2) and when

considered against the daily and systematic subjection of the average

Nigerian to giving and taking bribes to get almost any and everyting done.

“ Department of Sociology, Ahmadu Bello University, Zaria, Nigeria.

- 173—

Of course, one of the earler sociological attempts in looking at cor-

ruption had, among other insights, predicted that the ’’new States’”’ are

likely to be the scene of a lot of behaviour that would be regarded as cor-

rupt (Leys, 1965: 224). That prediction in retrospect, was a prophecy, for

in most of the countries of Africa today, the phenomenon of corruption has

become ”’a way of life’’ to the extent that it is considered ”one of the most

widely pervasive problems” on the now ”brightened” continent (Clinard

and Abbott, 1973: 52). And by local recognition and acquiescence (3), as

well as by internationally-acclaimed reputation, Nigeria leads Africa, if not

the whole of the Third World, in this matter. One wise-crack, in describing

the pervasiveness of corruption in Nigeria, has aptly, even if ironically, put

its ’’functionality’’ to the country: ”Corruption —The Cement Welding the

Country Together””(4).

Thus, the fact and ubiquity of corruption in the country are not in any

doubt whatsoever. What is problematic, and therefore should be at issue, is

the what, the how, and the why of corruption according to acceptable

social-science standards (5) as opposed to verbal bar-room discussions or

newspaper readers’ columns. Afterall, it is the nature of the inheritance of

social science, from science ’’proper’’ that even the obvious must be oper-

ationally defined and substantiated with evidence ; that such evidence must

have been the result of ”’precise” measurements with valid and reliable

instruments; and that in explaining even that ”obvious”, the relationship

between it and the evidence must be precise, conceptually clear, adequately

logical, etc.

Now, while one may not subscribe to these standards in their entirety,

particularly in consideration of constraints that may be imposed by environ-

ment, problem-type, or convictions, one cannot but realize the need for

collation and ordering of knowledge on the problem under discussion. What

behaviour is, or should be, defined as corruption? What is the actual volume,

pattern and extent of corruption in the country? What is the trend in terms

of behaviour defined as corruption, and in terms of volume, pattern and

extent? Who are the perpetrators, who are the victims? Can we develop

typologies of corruption, their patterns, their authors and their victims?

HOW best to we proced in obtaining valid, reliable, and rich answers for the

foregoing questions? And in shunning knowledge for knowledge’s sake as

well as recognizing that implied in every theoretical endeavour is a therapy/

remedy, what framework is most suitable for explaining what has been

defined and measured in particular way(s) and bearing in mind one’s re-

sponsibility?

These questions are what ! have termed difinitional, methodological,

and theoretical issues in studying corruption in our particular development

context. And this paper is a discussion of these issues, in an interactive

manner, to encourage the awareness of the problems and the approach-

options. The next section deals at length with the definitional issue

\]

4

recognition of its generic relationship with the methodological and the

theoretical. The third and the fourth sections briefly treat the method-

ological and the theoretical, respectively. And the final section is a reminder

on the responsibility of the intellectual worker.

IL. THE DEFINITIONAL/CONCEPTUAL

In popular understanding, or perception, any of the following is called

“corruption”’: asking, giving or taking of fee, gift, favour in exchange for

the performance of a legitimate task, the perversion or obstruction of the

performance of such task, or the performance of an illegitimate task;

hoarding; collusive price-fixing; smuggling; transfer-pricing; inflation of

prices; election rigging; illegal arrests for harassment or intimidation pur-

poses; abuse/misuse/non-use of office, position, or power; dumping of

absolete machinery or outdated drugs; illegal foreign-exchange transactions;

legal but unobviously unfair and unjust acquisition of wealth; ”gilded”

crimes; certificate forgery ; false accounting and claims; diversion of public,

corporate, or other person’s money or property to direct or indirect per-

sonal use; etc.;etc. À hundred other kinds of behaviour that would or could

be termed corruption could be listed (6). Can any of the foregoing. indi-

vidually or together, be considered a definition of a concept called cor-

ruption?

Even the criminal law provision on corruption, according to Okonkwo

(1980: 355-376), is so exclusive and yet unclear as to make many persons

accused of corruption acquittable as well as make many other coded of-

fences categorizable, in theory and actuality, as corruption.

‘’The law on the subject of corruption is far from clear. There are an

uncomfortable number of cases in the Law Reports where the courts have

felt compelled to acquit an obviously dishonest accused simply because he

was charged under the wrong section (p. 355)”.

Âs far as the criminal law is concerned, an offence of corruption is

committed if a public or judicial officer corruptly asks, receives, or ob-

tains, or agrees or attempts to receive or obtain a bribe” (p. 357) or if an

offeror ’corruptly gives, confers or procures, or promises or offers tc give

or confer or to procure or attempt to procure a bribe” (p, 358* It is also

an offence of corruption ”’for any person in the public service of Nigeria, or

in that of any other government, to corruptly and under colour of his

employment, demand or take property from any other person” (ie. extor-

tion). In other words, it is an offence for a public afficer to se “the sower

of his office to acquire money or other benefit which the 11"

pay if he was not beina threatened, or if he knew: :!

vl

p

p

‘…—"(;:'—J} mot

Obvious from the above is that corruption is not cff d, Lid ns

is “corruptly”, in the Criminal Code. It has been left to ts wisdun

155

of a learned judge to interprete ’corruptly”:

’’The mischief aimed at by Section 98 of the Criminal Code is the receiving

or offering of some benefit, reward or inducement to sway or deflect a

person employed in the public service from the honest and impartial dis-

charge of his duties —in other words, as a bribe for corruption or its price—”

(p. 358).

Also obious from these provisions is that emphasis is on public and judicial

officials and only in the areas of ’bribery” and ’extortion”. Furthermore,

as Okonkwo pointed out, there are no provision to make corporate bodies

criminally liableî

Yet, a good number of coded offences would, in form and content,

qualify as corruption. À few examples sould illuminate the point being

made here. On the offence of ”stealing”, the Code provides that ’’a person

who fraudulently takes anything capable of being stolen, or fraudulently

converts to his own use, or to the use of any other person, anything capable

of being stolen, is said to steal that thing” (p. 288). On the offence of

’demanding with menace”, the Code states that ”any person who with

intent to steal anything, demands it from any person with threats of any

injury or detriment of any kind to be caused to him, either by the offender

or by any other person, if the demand is not complied with, is guilty of a

felony” (p. 298). Ditto for the contents of the provisions for the offences of

’false pretences” (p. 319), ’receiving stolen property” (p. 320), ’unlawful

possession”’ (p. 326), ”forgery” (p. 328), ”fraudulent false accounting”

(p. 334), ’disclosure of official secrets” (p. 347), and ”perjury” (p. 377).

Thus, one can safely assert that neither the popular perception, nor the

legal definition, of corruption is conceptually clear. For one thing, as a

notion or an idea, a concept is a term which refers to a descriptive property

or relation and which, being an abstraction, is a necessary part of any

theory (7). And the definition of what is being conceptualized must refer

’to some class, or species, of individual objects, physical or mental. The

defining expression usually consists of naming a more inclusive class within

which the species being defined belongs; and enumerating the specific

characteristics which are necessary for the definition of what is being con-

ceptualized to be ”complete” and ’operational” (Fairchild, 1977 ed.:

87-88 ) (8).

For another, even if the legal definition of corruption were concep-

tually clear, there must be other objections —unless orre were to take the

Criminal Code as god-given or ignore the economic/political/socio-cultural

contexts, as did Tappac (1970: 41-48), in which laws are made, broken, and

differentially-sanctioned. As has been correctly stated long ago,

”What is claimed is that if a science of human conduct is to develop, the

investigator in this field of research must rid himself of shackles which have

been forged by the criminal law. If psychiatry had confined itself to the

study of persons (declared) legally incompetent by the criminal courts, it

176 -

would not doubt have learned something about mental disease ; but if courts

had defined and thus classified various forms of mental disease for reasons

to be sought in ’’public policy”, the psychiatrist would have learned little

indeed…. Confinement to the study of crime and criminals and the ac-

ceptance of the categories of specific forms of ”crime” and ”criminal” as

laid down in law, renders criminological research theoretically invalid from

the point of view of science” (Sellin, 1970: 3-10).

In realization of the lack of conceptual clarity, the shortcoming of the

narrow and exclusive legal definition of corruption, and the need to avoid

the prevention of the furtherance of knowledge by the constraints of

politico-legal categories, | had sometimes ago conceptualized and defined

’corruption’”’, along the lines suggested by the U.N.O. (1975: 7-15), within

the normatic requirements of social-science standards referred to above.

’Crime as business should be an umbrella concept for ”white-ollar

crime”, corruption, and ’’organized crime” which are all branches of the

same tree. ”’Wlhite-collar” crime refers to ’’casual criminal acts by middle-

class people particularly administrative and professional personnel, who

abuse their positions for private gain” e.g. falsified accounts, embezzlement

of corporate or government funds, padded mileage or other claims, fraudu-

lent tax returns, etc. ”Corruption”, judging by motive or objective, is at

least of two broad categories. There is political corruption which is related

primarily to the acquisition or retention of political power such as vote-

buying, illegal acts directed towards the election of a particular candidate,

or the illegal patronage of civil service appointments. Then there are facts of

corruption directly related to financial gain, not only for the politician, mili-

tary ruler, or the administrator who is corrupted but also for the person

doing the corruption e.g. giving ’kick-backs” or ’’commissions” to decision-

makers in retum for public-works contracts, or bribing the police or judges

to induce them to turn a blind eye to patently illegal acts. And organized

crime is the relatively large-scale and complex criminal activity carried on

by groups of persons, however loosely or tightly organized, for the enrich-

ment of those participating and at the expense of the community and its

members e.g. hoarding, price-fixing, smuggling, burglary rings, etc.

[t will help further to identify certain features or characteristics of this

phenomenon, and thereby distinguish it from ”common” and ”working-

class’’ crimes. It tends to possess all or most of the following features:

a) It is carried out primarily for economic gain and involves some form

of commerce, industry, trade, governmental or corporate service ;

b) It involves some form of organization in the sense of a set or system

of more or less formal relationship between the parties committing the

criminal acts;

c)It involves either the use-or misuse of legitimate forms and tech-

niques of commerce, business, trade, industry, or public administration;

d) Typically but not necessarily, the persons involved in committing

these crimes have ”social status”, political, economic, or bureaucratic

power, or all of these.

— 177—

"From these identified features, the perpetrators of ”crime as business”,

unlike those involved in ’common’” or ”working class” crimes, have close or

powerful relationships (or are identical) with those persons who control, or

at least influence, the social and legal definition of what crime is, or is not, a

problem. They are thus able to influence, either directly or indirectly,

public perception of and reaction to, their own illegal behaviour. There are,

of course, other important differences between this and the other two

categories of ’’crimes’’ with regard to subtlety or visibility of circumstances

of perpetration and, therefore, æportability; procedures for handlingknown

cases; the typical sanctions recommented; the awareness and reaction of

the ’’victim’’, the typical societal response as to stigmatization, support, or

tolerance; and the use of ”techniques of neutralization”. (Odekunle, 1978:

66-67)".

The foregoing excerpt defines corruption as a species of ”a more

inclusive class” (ie. criminal or socially-injurious behaviour —coded or

uncoded) and sufficiently distinguishes it from other members of that

inclusives class, namely ”’common crimes”’ (9) and ”working-class’’ crimes

(10).

The implication of this conceptualization-definition for the method-

ological and theoretical issues should be apparent by now since, as I stated

at the beginning, concepts and their definitions virtually dictate the direc-

tion and quality of theory and methods.

IIT. THE METHODOLOGICAL

For obvious reasons, police and other law-enforcement records are

utterly deficient and grossly deceptive in the provision of data and other

information-items on the actual volume, ræal extent, true patterns, cost-

seriousness, and attributes of perpetrators of corruption. Ditto for in-

formation needed for any assessment of the pertinent control-mechanisms.

One of these reasons, obvious from the defining characteristics of the

phenomenon, is that they are ’’slick, sophisticated, and often beyond the

scope of ordinary police system (itself corrupted) to deal with ”(Clifford,

1974: 146). Tabes 1 and 2 below should confirm this point and, at the same

time amaze anyone conversant with the scene in Nigeria that the volume

and cost of recorded ”corruption” are so small.

— 178—

TABLE 1

‘’Official’’ volume of ’bribery and corruption” in Nigeria (1975-1978)

YEAR

VOLUME

1975

721

1976

1,008

1977

1,114

1978

1,043

[Source: Annual Reports of the Nigeria Police Force for 1975, 1976, 1977,

and 1978]

TABLE 2

Comparison of ’Common” and ”Elite” crimes in terms of value of loss

Total accepted

Value of loss

Average loss

% of loss

Type of Crime

1976-1978

in N

per case

recovered

F lite *

24,035

N111,649,110

N4,645.27

N3,081,466

(2.75 %)

Common**.

42,517

N35,579,764

N836.83

N1,350,830

(3.82 %)

Robbery

5,847

N14,242,809

N2,435.92

N2,355.797

(16.54 %)

[Source: Annual Report of the Nigeria Police Force for 1976, 1977 and 1978.]

*False Pretences, Cheating, Fraud, Forgery.

**Buglary and Housebreaking.

Similary, neither conventional social-science methods in general nor

those of criminological investigations in particular have been up to the

task: they are inherently incapable. For, honestly, while one may try to

obtain ’’accurate, valid and reliable” date, the orthodox expectation that

these qualities be demonstrated by showing that samples are ’unbiased””,

or that measurements are ’’objective” —impossible and unproductive pro-

cedures for this kind of subject— constitutes a hinderance.

In this ’darkness’’ and incapacitation, voluminous government docu-

ments resulting from official investigations of this or that instance of

corrupt practices should serve as adequate alternative sources of data and

information on the subject. However, and perhaps not surprisingly, a study

of a sample of such documents —with reference to Nigeria (11)— raises more

179 —

question than answered. Who decides which case to investigate, which to

ignore or subject to cover-up, and for what ends? Who appoints the panel

of investigators and with what terms of reference? What about probable

’back-room” discussions and late-night consultations and phone<alls

during both the investigation and the write-up of the Report? Who, and

with what interests, writes the government’s ’”White Paper”’ which accepts

some of the Report’s recommandations while rejecting others? And how

and to what extent are the accepted recommendations actually enforced?

Pondering these questions, it may be argued that these documents

constitue a mere tip of the iceberg on corruption and are themselves per-

haps, a product of corrupt practices; that they are rather a reflection of

occasional intraelite (12) struggles, squabbles, and back-stabbings than of

the real extent and true patterns of corruption; and that, consequently,

there is an urgent need to develop a more productive methodology for

getting at the iceberg lest one unknowingly become a hand-maiden partisan

of intra-elite in-fighting. Besides, perpetrators are developing new methods

of hiding their loot (13).

What I have said so far should not be construed to mean that police

records, criminological studies, and reports of government probes on the

subject are virtually useless or devoid of any information value whatsoever.

Afterall, without police records, one may be hard-put to assert "discrimi-

nation” or ’’unenforceability” regarding laws on corruption and related

offences. Similary, a statistical survey of the background characteristics

of exposed or discredited public officials must be of some value. And

without the tip of the iceberg shown by these probes, one may not have

been concerned about looking for the iceberg itself.

Rather, the point is that these sources and methods have to become

complements to augment appropriate, even if ”unorthodox”, method-

ological substitutes —bearing in mind the needed change in conceptu-

alization/definition and its implications.

For instance, in addition to getting rich information on volume, pat-

terns and extent, there is a need for the calculation of costs to the victims,

knowing and unknowing (individuals, groups, corporate bodies, the society),

as well as information on the actual workings of control-directed measures.

In the U.S.A., for example, the cost of corrruption to the nation in money

alone and therefore on the surface, is estimated at 80 billion dollars a year

(Conyers, 1980: 288). Considering the social-welfare problems of that

country, that amount in public funds could have, cumulatively over the

years, helped in deminishing the miseries of the country’s poor.

As of now, in Nigeria as in other developing countries, the question of

cost, extent of victimization, and the identification of victims of corruption

are still a matter of speculation. Yet, these are important questions on

which information must be sought —particularly because there is a

— 180 —

misperception of the relative costs of various species of crime to the disad-

vantage of ”’common criminals’’, one which urged me to clarify things thus:

”No doubt, street and common crimes exact a toll on their victims in

personal and material losses as well as in social and psychological terms:

physical injury or death, monetary and economic loss or expenses, social

intimidation, restrictions to freedom of movement, and even the psycho-

logical fear of potential victimization. However, elite crimes exact a similar

toll and on a grander scale e.g. criminal instigation of riots that lead to

massive destruction of life, peace, and property, the collapse of badly con-

structed (due bribe and kick-backs to the contract-awarding individuals)

students hostel or public-housing estate and the consequent deaths,

property-damage or, at the least social psychological dislocations of the

buildings’ inhabitants; the deprivations, hunger and misery visited upon

peasants living in famine in drought affected areas through ’’disappearance”

of grains and other relief materials; or the effects, short-and long-term, of

importing and selling expired drugs (14)”.

In actual fact, that the toll exacted on country by elite crimes (unlike

the street or common ones) goes beyond the individual person or his prop-

erty and that monetarily, economically, damage to the country’s corporate

life and property has been demonstrated (Clinard and Abbott, 1973: 50-57;

Clifford, 1974).

With particular reference to Nigeria, the victimization-effect of these

elite crimes on Nigerians least able to afford such victimization, their incal-

culable contribution to loss of government revenue that could have been

used for social

—turn to welfare goals, their undermining of the national

economy (15), and their debilitating effect on efficiency, effectiveness,

worker-morale

and productivity have been documented elsewhere

(Odekunle, 1978).

Elite crimes also affect political stability. For instance, it is Teresa

Turner’s argument (1976) that this phenomenon is responsible for the

instability of the Nigerian state during the last years of Gowon’s rule.

Most frustrating and disillusioning is the effect of both common and

working-class crimes on law-enforcement, justice-administration, and their

official agents. Particularly on the latter, it makes it appear that these are

extablished and organized to cooperate with, and to protect and provide

cover for the most criminal groups and individuals in the society while

enforcing laws against those whose offences are only a minimal threat to

the social, economic, and political life of the country (Odekunle, 1977).

This misperception, perhaps elite instigated and —propagated, is re-

flected in the form, emphasis, pattern, and degree of effectiveness of the

country’s crime-control agencies and measures—. (Odekunle, 1982).

Again, questions about control need be asked and supplied with in-

formation: that is, the form, pattern, and degree of effectiveness of

— 181 —

corrupton control relative to those aimed at other crime-types. For in-

stance, in view of the relative costs clarified above, what is responsible for

the formal and, in this the moral case substantial difference between the

Decree against armed-robbery and the Decree against Corruption? Why are

’common”’ thieves and burglars tried in formal courts for sanctioning while

corrupt officials are subject to tribunals with only powers of ”recommen-

dation”? Why does the petty thief to to prison, the armed robber to the

firing-squad while the exposed corrupt office holder gets transferred and

promoted or dismissed/terminate/retired only to become Chairman or

Director of, or contractor to, agencies of the sanctioning government?

Why was the defunct Corrupt Practices Investigations Bureau disabled by

the provisions of the same statue that created it? And why has the Code

of Conduct Bureau, created by the 1979 Constitution, unable to function

effectively?

In pondering these questions, it is illuminating to digress, relevantly,

and recall how Gowon and his then obsequous Chief Justice tried to out-

law the ’’voluntary” swearing affidavits in the wake of Godwin Daboh’s and

Aper Aku’s use of that legal instrument to expose the corrupt practices of

a Federal Commisioner and a Governor, respectively. It is also instructive to

show that after the publicity announced and widely acclaimed Corrupt

Practices Decree of 1975, the regime quietly promulgated the Public Of-

ficers (Protection Against False Accusations) Decree in March, 1976 and

with retroactive effect to 29th July 1975 (F.R.N., 1977: AS3-A5S4):

”], Any person who publishes or reproduces in any form, whether

wiitten or otherwise, any statement, rumour or report alleging or intended

to be understood as alleging that a public officer has in any manner been

engaged in corrupt practices or has in any manner corruptly enriched

himself or any other person, being a statement, rumour or report which is

false in any material particular, shall be guilty of an offence under this

Decree and liable on conviction to be sentenced to imprisonment for a

term not exceeding two years, without the option of a fine.

’2.In any prosecution for an offence under this Decree the burden of

proving that the statement, rumour or report which is the subject-matter

of the charge is true in every material particular shall, notwithstanding

anything to the contrary in any enactment or rule of law, lie on the person

charged.

”3. Nothing in this Decree shall be construed as affecting the right of

any person to institute civil proceedings against any person in a court of

competent jurisdiction in respect of the publication of any statement,

rumour or report which is the subject-matter of proceedings under this

Decree.

”4.In this Decree, the National Council of State, or the Federal

Executive Council, ’public officer’’ means:

182 -

a)

any member of the Supreme Military Council, the Military Governor of

a State, any Commissioner in the Government of the Federation or of

a State ;

b)

any member of the Nigerian Army, the Nigerian Navy, the Nigerian Air

Force or the Nigerian Police Force;

c)

any who holds any office in:

— the public service of the Federation or of a State within the meaning

of State within the meaning of the Constitution of the Federation

or of a State.

— the service of a body whether corporate or unicorporate established

under a Federal or State law; or

— a company in which any of the Governments in the Federation has

controlling interest.

S. This Decree may be cited as the Public Officers (Protection Against

False Accusation) Decree 1976 and shall, notwithstanding anything to the

contrary in any enactment or rule of law, be deemed to have come into

operation on 29th July 1975”.

Obviously, the effect was to nullify the intended or publicly-claimed

desire of the earlier Decree. And insight gained through investigations by

this author indicated that the latter Decree was instigated by, and directed

at, Dr. Ohonbamu?s publication towards the end of 1975 to the effect that

General Murtala Mohammed had rows of houses in Kano. With the retro-

active provision of the Decree, he was charged to court, otherwise intimi-

dated at his place of work, and had to apologize to get the case withdrawn.

Henceforward, it became difficult, if not impossible, to accuse a public

officer of corrupt practices without the accuser standing the risk of pro-

secution and imprisonment.

Thus, if corruption is conceptualized and defined as it should be, the

questions of cost and control are as methodologically relevant as those

about volume, patterns, and extent. To get as near as possible to all these,

the following may be found productive:

a) Use of informants, particularly those who had been party to corrupt

parctices but had been ”scape-goated”’ and are consequently willing to talk

about such practices, the persons involved, the mode and pattern of oper-

ation, the amounts realized, persons cheated or adversely affected, etc.

b) Focussed and purposive ”discussions” with friends and acquaint-

ances who have been ”constrained”’ to offer bribes to policemen and custom

officials, at check-in points of the Nigerian Airways or the Nigerian Rail-

ways, passport offices or tax-offices, etc.

c) Posing as ”businessman”, ’’business-contact”, ”commission-agents”,

Or ”’contractor” to contract-awarding public-officials and their ”fronts”

as well as to foreign-exchange-approving personnel.

1s3

d)In-depth and penetrating studies of available documents, files,

letters, petitions regarding corporate bodies and individuals. And this should

be particularly useful with raw-submissions to Tribunals of Inquiry, the

Minutes of their meetings, a comparison of their submission with the final

government White-Paper, etc.

e)In-depth interviews of retired and old public or corporate officials

for a recount or reminiscence of their experiences and contacts in public

office —particularly on factors that influenced their decisions, or their roles

in the decision-making process, on certain issues.

f) Tracing of assets of public or corporate officers and their network

of formal and informal relationships.

g) Friendly discussions with drivers, messengers, house-servants, and

hangers-on of public or corporate officers.

h) Joining clubs for the purpose of meeting and associating with public

or corporate officials and becoming, over time, intimdated with their

practices.

i) Examination of raw police diaries and court notes particularly in

cases related to corrupt practices.

j) Content-analysis of newspaper reports and biographies of public or

corporate personalities.

With the supplementation of the information collated and ordered from

these methods by the existing police/tribunal sources, there should be fairly-

adequate information not only to find the concept of corruption, as de-

fined, measurable but also to further the direction and quality of expla-

nation.

IV. THE THEORETICAL

The optimum requirements for any explanatory framework on cor-

ruption is that it must take into account most, if not all, the defining at-

tributes and elements of the subject as conceptualized and suggested for

operationalization earlier in the second and third sections, respectively.

That is, such a framework must be able to account for the ubiquitous

incidence of the phenomenon in the country; its patterns and extent;

victims and costs; the form and the degree of substantive effectiveness of

the controls to which it is subjected; its predomination by a ”vested

interest”’ [an economic, and therefore political and social group (however

amorphous) interest of privileged persons to any effective control in this

society and others similarly organised] all in an INTERACTIVE manner.

Corruption seems an institutionalized component of Nigeria’s economic-

political-legal system. The patterns are somewhat discernible yet usually

subtle. The true extent can only be imagined. The victims are both individual

and corporate but the victimization is usually diffuse and remote. The cost,

- 184 —

in Various respects, is enormous but incalculable —particularly cumulatively.

In form and practice, the control is largely sectoral, discriminatory, and

ineffective (16). Almost every Nigerian is indictable but its tanacity is

maintained by the exemplary deeds of those with economic, political,

bureaucratic, and social power. And it appears futile to suggest any possible-

effective antidote within the present type of social ortder (Leys, 1965: 230;

Conyers, 1980: 300; and Connor, 1962: 225) (17).

,Explanations” of the above by ’’causal” theories which locate re-

sponsibility in the materialist, greedy, avaricious, and indisciplined nature

(i.e. General Obasanjo’s Jajism”) or in the ”inevitable” teething problems of

modernization/development have been hollowed out (Odekunle, 1979: 189).

Ditto for other explanations, more of veiled justifications, of the phenom-

enon in terms of ’’functionality’’ or of the unavoidable demands of status,

relatives, dependents, and hangers-on. The blaming of the ’’nature”’ of the

Nigerian shows purposive ignorance of the basis of correspondence of this

nature with that of the Ghanaian (before Jerry Rawlings), the Kenyan, the

Indonesian or the Jamaican and the basis of its non-correspondence with

that of the Mozambican, the Libyan, or the Cuban. The scapegoating of

development, per se, also deceptively ignores that there are alternative

which have different demand-outcomes.

types of development

The identifying characteristics of corruption in Nigeria, briefly sketched

in the last paragraph but one, show that it is not an ’’error’’ to be ’rem

edied’”’. Mere errors are random; behind a persistent and systematic error in

a definite and predictable direction, there must be a cause other than error

alone. Considered thus, corruption in Nigeria is a manifestation, and an

indictement, of something ”’fundamental” about the society. Even the

United Nations Congress (1980), as superficial and evasive, respectively, in

its deliberations and resolutions as ’’diplomacy”’ demands, stated that the

problem of corruption required ’’fundamental”’ solutions— an implication

that it is ’’caused’’ by something ’fundamental’”’ in the organisation of the

afflicted societies.

To my mind, the theoretical problem rægarding ’’corruption in develop-

ment”’ in Nigeria is the location of that ’fundamental”’. And the first and

foremost place to look for it is in the type of social organization dictated

by our chosen type of development strategy —and their implications for

social relations at both interpersonal and group levels, for values, and for

attitudes of the people. In describing Nigeria’s social organisation as ”capi-

talist”’, one would miss the crucial empirical variations of the construct, or

ideal type; and these variations are of theoretical import to the problem of

corruption as practiced, textured, and observable in Nigeria.

’’Even though capitalism has identifiable inherent patterns and regu-

larities wherever it exists, variations of the phenomenon and in the form and

degree of its undesirable consequences are easily discenible in any com-

parison of the economies of U.S.A.. Britain, and Switzerland. The comparison

- 185 —

becomes much more fruitful in identifying variations if it is between two

countries at different stages of ”development”. Consider the following

variations between the ”established”” or ”developed” capitalist economy of

the U.S.A. and the ”developing” one in Nigeria. In the one, the economy is

in the hands of indigenes and is heavily industrial and productive; in the

other, it is basically a commercial, middleman, or consumer capitalism

based on, an serving the interests of, foreign multinational corporations.

In the one, merit, competence, efficiency, corporate and national interests

are observable attributes; in the other, particularism, incompetence, inef-

ficency, and monetary personal interests predominate the scene. In the one,

palliatives such as the ”’welfare” and ’’credit”’ facilities serve to alleviate

some of the crushing consequences of the free-enterprise economy; in the

other, the damaging, frustrating, and depersonalizing resultants of capitalism

are either blantantly ignored, hypocritically ”solved” on the pages of

Development Plans, or shamelessly left to the Red Cross and the U.N.O.

And in the one, the definition and conception of social problerns (e.g. crime

and delinquency, mental illness, unemployment, drug-abuse, etc.) within

the deterministic context encourage, and actually lead to, concious and

rational (in the capitalist context) budgetary and socio-legal response-

measures to these problems. But in the other, these problems are neither so

defined nor responded to; instead, they are unwittingly left to ill-conceived

legal sanctions or to ”leadership” rhetorics about the roles of the family, the

community, religion, and traditional morality, all of which have long ceased

to function effectively as social security and social control agents”

(Odekunle, 1977: 80).

And I have described how capitalism, and this variant of capitalism

impinges upon most, if not all, Nigerians (Odekunle, 1982: 19-20). Having

created the desire, aspirations, and expectations for wealth, property,

power, and prestige in everybody, it fails (because it is inherently unable)

to guarantee or ensure the equitable distribution of the means and op-

portunities to meet the created desires, aspirations, and expectatibns as well

as provide effective checks and balances and therefore minimise if not avoid

the ’’corrupting privileges” of the rich, the ”corrupting depravations” of the

poor, and the crime-problem that is largely a function of both. Because

there are no checks and balances to effectively limit the ’’freedom” to be

wealthy and the ”’freedom’” to be poor, both the beneficiares and the

victims of the system are ’’forced’’, as it were, to contribute their quota, in

differently-opportuned ways to the crime-problem. And herein lies the

’crimogeny of the capitalist system”.

It is important to note the interactions between unjustified elite-

dominated corruption (including their corrupting consequences) and the

justifiable disposition of street/common/working-class criminals on the one

hand and between these and crime-control agencies and personnel (from

law-makers to policemen and other enforcement agencies) themselves either

elite, working-class, or commoner, on the other —all within the pressures of

186

the country’s capitalist development strategy. These interactions would

explain most, if not all, the characteristics of the crime of corruption as

conceptualized and defined and as sketched in the second paragraph of this

section.

The above is not to deny instances of corruption in modern non-

capitalist social organisations. The point of formal and substantive dif-

ference lies in the fact that corruption in such societies could not be,

and are not, prevalent, normative-institutionalized, nor recalcitrant and

uncontrollable. For one thing, the system-provided pressure, justification

and opportunities for corruption are hardly present. For another, discovered

instance of corrupt practices, particularly against State corporate/socialist

property/mores are promptly and severely dealt with (again, Connor, 1962:

255). As an example, it was reported in the London-based Soviet Analyst

(May 28, 1980, p. 8) that a doctor was ”leniently” jailed for 3 years for

obtaining a small bribe from a patient to write a prescription for an unwar-

ranted operation; and a lecturer was given a 15-year jail-term for asking his

students for some little fees before giving the required examinations.

V. CONCLUSION

The explanatory position just stated here on corruption and other

crime-types in Nigeria is not conceived within a framework of ”class-

analysis”’ or ”class-struggle”. This is deliberate for the following. Are their

patently opposing ”classes”’ conscious of their common interests enough to

consciously” struggle in pursuit of these interests to the extent that cor-

ruption or other crime-types, is the exclusive attribute of one ”class” and is

simultaneously directed at an ’’opposing” class? Aren’t the elites themselves,

by their behaviour and attitudes and characteristics, socially alienated just as

the workers-peasants and the underclass are, respectively, alienated. and

marginalized? How else could one explain the elites’ incessant undermining

of the economy that places them in a privileged position? Contradictions

of the system, perhaps or even definitely. Class-struggle? But against which

class?

If one agrees that implied in any theoretical position on a particular

social problem is a ”solution” (i.e. if tit is not explicitly stated) and a

strategy for action, then a struight-jacket class-analysis of corruption in

Nigeria is a mentel construct imposed on an imagined or wished ”class-

struggle” (18) with implications for omission of essential and necessary

initial tasks or even for complacency. À ”class analysis” based on ”Class-

struggle” implies an assumption that interest-conscious and opposing

classes already exist and are already consciously engaged in a struggle, how-

ever sublte or convert, in pursuit of these divergent interests. In that case,

the role of the intellectual (i.e. any person of conscious and articulated

ideas) is short-circuited at best to production of ideas needed for the actual

struggle or, at worst, to a complacent waiting for the outcome of the struggle!

187

On the other hand, because the theoretical position stated here explains

how corruption and other crime-types are a result of the impingement, con-

traints and pressures on almost all Nigerians —to the advantage of some but

the detriment of the majority and the society as a polity— its implication is

that the initial step towards a ”solution” is exposition and explication to

effectively educate the majority to their ”class’”’ interests: a necessary first-

step to observable rather than imagined class-consciousness and class-

struggle. And the implication for strategy of action on this initial steps

calls the role of each and every intellectual worker to question.

The role of intellectual worker is, of course, subject to ”should” and

"is” i.e. prescription and performance. Comments on prescription appear to

enjoy a consensus:

’Historians have been urged to ”stop elitism and the psychologizing of

history” and ”pay attention to the objective conditions of our society”

(Ake, 1982: 10).

The University has been reminded of its vital role in helping ’directly with

the important function of shaping and influencing rather than accomodating

and servicing existing societal attitudes. It can also help directly with

political education or providing the fulcrum for such education” (Teriba,

1978: 30).

It has also been said that ”retaining and maintaining a sense of the true, the

right, the just, and the fair, the University should be the spirit, the con-

science, of society”” (Odekunle, 1980)”.

Even one (Tukur, 1982: 1-2) who has correctly observed that it is

’incorrect to talk of intellectuals in general; for since intellectuals serve

”class” interests and since there are many, contradictory, often antagonistic ;

”classes”” in society, it follows that there are various categories of intel-

lectuals serving contradictory or even antagonistic —that is, mutually

exclusive— ”’class”’ interests” also notes that, in spite of this, they do have

one thing in common: ”they are all primarily engaged in the organisation of

human thought” and the propagation of these thoughts via various media

and to various audiences. Ît is also finally pointed out that:

Little that is said in any one of these places is without some consequence

for the ”class struggle” (to come) in the wider society. That is to say hardly

any information or opinion is irrelevant to the (coming) ”class struggle”

(brackets and single inverted commas are mine).”

The meaning of the latter comment is that intellectuals, despite the

consensual ”should’”’ actually have and choose options: accomodating and

servicing existing values, attitudes, and practices; taking a ”neutral” or

" value-free-science” position; or put the ”should” into practice in his pro-

duction (Odekunle, 1979: 200-202). For those who subscribe to the third

and may wish to give up trying because their ideas do not appear to be

selling, they need to be reminded that the power of vested interests usually

158

collapse with the gradual encroachment of ideas —not immediately, but

after a period of interval. For the ”neutralist”, Conrad (1978: 10) has an

answer: they need to frankly recognize ”that all (science) is a matter of

politics, inescapably and regardless of the conscientious effort of the indi-

vidual scholar to contribute to value-free science”. Still for these ”value-

free”’ and ’’objective” scholars, and the accomodating ones, the message of

Bertholt Brecht’s and Blaise Pascal’s lines, respectively, should constitute a

conscience-pricking reminder:

’When the Nazis took the Communists, I kept quiet: ! wasn’t a Communist

When they put the social-democrats in prison, I kept quiet: I wasn°t social

democrat.

When they took the Catholics, ! didn’t protest: [ wasn’t Catholic

When they came looking for me, no one was left to protest” (Brecht,

quoted in Kellens and Lindsey, 1980: 35).

”Not being able to make rights pwerful, we made power right” (Pascal,

quoted in Kellens and Lindsey, 1980: 35).

NOTES

(1)

A content-analysis of any of Nigeria’s daily-papers for any day eveals,

at least, two press reports of corrupt practices or allegations of such

practices.

(2)

As far as the public is aware, there is usually no follow-up action on

most of the press-reports referred to in Note 1 above.

(3)

If two ”average”’ Nigerians are discussing this or that instance of

exposed corrupt public official, it not unusual for one to say to the

other (who agrees, subsequently, if not automatically): ”I don’t blame

the man O; what if you had the opportunity, wouldn’t you?”.

(4)

See Times International, 13th November, 1978. p. 2.

WVTowever one defines such standards.

(5)

(6)

While writing the present paper, ! asked a number of people what they

consider to be corrupt behaviour and all were at a loss for a definition

of corruption. ”Well, I cant really say but I know it” approximate

their answers.

(7)

This is not to say that a concept is static: it is recognized that con-

cepts, like the theories they form, are not unchanging and that con-

ceptual clarifications and redefinitions are continuing tasks.

(8)

By ”complete” is meant the identification, at first sight or knowledge,

as well as the provision of adequate understanding; and by ”oper-

ational”” is meant the specification of the various procedures for ident-

ifying the characteristics.

— 189 —

(9) These refer to traditional or conventional offences against ”person” or

’property” (e.g. homicide, manslaughter, assault, robbery, burglary,

theft, and the like) and for which most of our policemen, courts, and

prisons appear to exist.

(10)

”’Working Class Crimes” are those offences perpetrated by inter-

mediate and junior staff, artisans (e.g. mechanics), and their like

through the opportunity and coverage offered by the nature and

place, respectively, of their work. Examples: a mechanic defrauding

a customer by claiming to have replaced an old motor-part with a new

one when he actually did not; an accounts clerk who has devised a

way of making or stealing cheques; a store-attendant who pilfers store-

items; a messenger who sells information from the files; etc. Unlike

’street” or ”common” crimes but so much like ”elite” crimes,

’working-class” crimes hardly over come to the attention of the

police -even though it is far less damaging to society in terms of

seriousness and consequences—.

(11)

Examples of these at both the Federal and State levels are: Federal

Republic of Nigeria, Report of the Federal Assets Investigation Panel

1975 (Lagos: Federal Ministry of Information, 1976); F.R.N., Report

of the Tribunal of Inquiry Into the Importation of Cement (Lagos:

M.O.I. 1976); Kano State of Nigeria, Report of the Kano State-Owned

Organisations and Companies, Commission of Inquiry: Main Report

(Kano: Government Printer, 1975); K.S.N., Report of the Commission

of Inquiry into the Kano State Tenders Board and the Ministries of

Agriculture and Natural Resources, Finance Health and Social Welfare,

and Education for the period Ist January 1970 to 29th July 1975.

(Zaria: Gaskiya Corporation, 1975); F.R.N. Report of the Panel of

Inquiry into the Purchasse of British Leyland Buses by the Secretariat

of Festac (Lagos: M.1.O. 1978); Benue-Plateau State of Nigeria:

Report of the Panel Investigating Benue-Plateau Houses, Contract

Procedures, and Matters Related to the Misconduct by Public Officers

and Others in Respect of Such Contract

(Mimeo 1975), Bauchi,

Borno and Gongola States of Nigeria: The Report of the Committee

of Inquiry into Five Dissoved Statutory Bodies of the Former North

Eastern State (Government Printer, Maiduguri); Etc.

(12)

For instance, it was E.O. Eyo (supported by the colonial adminis-

tration) that instigated the probe against Namdi Azikiwe. Ditto for

S.L.A. Akintola (and the N.P.C.) against Obafemi Awolowo; Murtala

Mohammed’s regime against the Yakubu Gowon regime; etc. at

State and Local Governments’ levels.

This manifestation of intra-elite victimization has not surfaced on any

significant scale beween the present regime of the National Party of

Nigeria and the preceeding Obasanjo regime perhaps because of an

alleged and widely rumoured ’understanding” (to let sleeping dogs

lie) before the handing over of power.

- 190 —

Such manifestations were similarly absent in the Northern region in

the sixties and early seventies because of the ’unity” of the northern

elites during those periods.

(13)

Since the civilians came back to power, they seem to have ”gained”

from the knowledge of the spate of probes in the midseventies: they

now allegedly receive their ”fees”, ’’percentage”, or ”gifts” in cash

and keep them in safeboxes in their bedrooms, under the ground, or

other such places. That is, any probes would have no documents or

records to go by.

(14)

These are not speculations: they have actually been occurring with

increasing frequency in the last few years.

(15)

This point has been recently underscored by the Federal Govern-

ment’s announcement that Nigeria is virtually ”broke” in spite of its

enormous natural and human resources.

(16)

In addition to the proven inability of the police and courts to fairly

or effectively deal with corruption, the 1978 Report of the defunct

Corrupt Practices Investigation Bureau (sent to this author on request)

shows that of the 120 cases it had for the year, 51 originated from

Lagos; 78 concerned public-officers of mostly ”intermediate and

junior ranks”; and 19, 51, and 50 respectively, were ”submitted to the

Director of Public Prosecutions” for prosecution-consideration, still

’under investigation” by the end of the year under report, and had

been ”dropped for lack of evidence”.

(17)

Leys wondered about the likelihood of the effectiveness of any bunch

of puritans, even if some were to surface, in dealing with corruption

in the ”new states” with no tradition of a ”puritan ehos”, Conyers

admits, virtually, the futility of corruption-control efforts in the U.S.

despite the country’s detective traditions and technological arsenals;

and Connor, an American and a Columbian University Professor,

relevantiy wrote on the subject in comparative terms; ”it is crime

against state property that systematically carries heavier punishments

across the whole gamut of acts (theft robbery, extortion, damage)

that can be committed against both types of property. This is not

surprising in a system where state or socialist ownership is regarded

as a higher category than personal owership”.

18)

On the other hand, the application of ”class-analysis” to trade-

disputes or industrial strikes in Nigeria may be tennable but event

with a recognition of their correspondence, in essence, with the

industrial scene in the U.S.A. where the existence of a ”class-struggle”

can only be wished.

—191—

REFERENCES

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to the 1982 Annual Conference of the Hisorical Society of Nigeria,

University of Port-Harcourt, Nigeria, April, 1982.

Cliffor, W. (1974) An Introduction to African Criminology, Nairobi:

O.U.P.

Clinard, M.B. and Abbott, D.J. (1973) Crime in Developing Countries: A

Comparative Perspective, New York: Wiley Interscience.

Connors, W.D. (1972) Deviance in Soviet Society: Crime, Delinquency and

Alcoholism, New York: Columbia University Press.

Conrad, J.P. (1978) ”Introduction: The Place of the Criminological

Scribbler” in Conrad (ed.), The Evolution of Criminal Justice, Beverly

Hills: Sage Publications.

Conyers, J. (1980) ”Corruption and White-Collar Crime: A View of the

Chairman of the House Committee on Crime”, American Criminal

Law Review (Symposium on White-Collar Crime) Vol. 17, No. 3,

Winter, 1980, 287-300.

Fairchild, H.R. (1979 ed.) Dictionary of Sociology, Totowa; Littlefield,

Adams and Co.

F.R.N. (1977) Annual Volume of the Laws of the Federal Republic of

Nigeria for 1976, Lagos: MIO.

Kellens, G. and Lindsey, J.K. (1980) ”General Report of the International

Society of Criminology in contribution to the Sixth U.N. Congress on

Crime and the Abuse of Power: Offences and Offenders Beyond the

Reach of the Law’?, Caracas, Venezuela, pp. 35-43.

Leys, C. (1965) ”What is the Problem About Corruption?” Journal of

Modern African Studies, 3, 2 (1965) pp. 215-230.

N.P.F., Annual Reports of the Nigeria Police Force, 1975, 1976, 1977 and

1978 respectively.

Odekunle, O. (1977) ”Capitalist Economy and the Crime Problem in

Nigeria”’ African Development, Vol. II, No. 1, February.

— (1978) ”Juvenile Delinquency and Adult Crime in Nigeria” in Social

Problems and Criminality in Nigeria, Lagos F.M.S.D.Y.S.C. Chap S

— (1979) ”Criminological Knowledge and Nigeria’s Crime-Problem: The

Dilemma of Social Scientists in Nigeria” in Sanda (1981 ed.), Social

Research and Social Policy in Nigeria, Ibadan: Miser.

— (1980) ”Pilfalls of the Academy in Nigeria”, A.E.U. SOCIQLOGIST,

Zaria; 1979/80.

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International Reader’s Guide to the Problem of Crime, New York:

The Free Press.

Okonkwo, C.O. (1980) Criminal Law in Nigeria, London: Sweet and

Maxwell.

— 192 —

Sellin, T. (1970) ”A Sociological Approach” in Wolfgang, et. al. (ed.), The

Sociology of Crime and Delinquency, New York; Wiley and Sons

Storey Report (1954) Commission of Inquiry into the Administration of

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Tappan, P. W. (1970) "Who is the Criminal?” in Wolfgang, et. al. (ed.), op.

cit.

Teriba, O. (1978) ”Illusions and Social Behaviour”, Inaugural Lecture,

University of Ibadan, March 9.

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August, pp. 63-77.

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national and National”’, Working Paper prepared by the Secretariat for

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— 193 —

CORRUPTION IN À COMMUNIST COUNTRY

A CASE STUDY OF POLAND

Maria Los *

INTRODUCTION

In the period of the relatively free operation of the Solidarity move-

ment in Poland, that is between August 1980 and December 1981, the

censor’s control over the Polish press was considerably relaxed. Many criti-

cal articles which appeared in the daily papers and weekly magazines dealt

with matters which previously could not be publicly discussed. In those

sixteen full-of-hope months the Polish media experienced a similar wave of

renewal as most other institutions in that countty. The material they pre-

sented has, therefore, an exceptional value for any study of social and econ-

omic problems of contemporary communist states.

In the present attempt to analyse the nature and sources of corruption

in Poland, I have utilized various publications which appeared in the Polish

press in the period following the strikes of August 1980 (1). They paint a

bleak, deeply disturbing picture of a country plagued by injustice, cor-

ruption and exploitation. Yet, giving the censorship and other, always

present in a totalitarian country, constaints of freedom of expression, one

has to assume that it is a rather cautious diagnosis, more likely understated

than overstated.

(1) I have utilized numerous examples derived from the national weekly

magazine Polityka (I analyzed all issues printed between mid-August

1980 and June 1981), the national weekly Kultura (most of the issues

published in the above mentioned period) and from selected issues of

weekly magazines: Zycie Literackie, Literatura and Tygodnik Pows-

zechny as well as of the daily papers from Warsaw, Cracow and other

cities. ! have also included in my analysis most of the issues of

Solidarnosc, the weekly magazine published since 3 April 1981 (it is a

regular publication of the free trade union Solidarity, submitted to the

censor’s approval just like the other periodicals mentioned above). I

have found 20 articles dealing directly with corruption of the privileged

individuals and groups, and around 10 short reports in daily papers con-

cerning many legal or disciplinarv actions against corrupt officials.

*Department of Criminology, University of Ottawa

— 194 —

A systematic scrutiny of these publications reveals, above all, what

aspects of corruption were perceived by journalists as most irritating and

conspicuous. They never attempted any global analysis. However, in order

to take advantage of this unique material, 1 follow in my paper main con-

cerns of these reports and try to give some notion of their style and tone by

using numerous quotations and examples derived directly from them.

Although much of the following analysis applies also to the other com-

munist countries, 1 have chosen to focus on Poland in order to take full

advantage of those recent press revelations on symptoms of corruption and

abuse of power. In my analysis I focus on top level çorruption (2) (Within

the so-called ”nomenclature” (3)) which includes:

— Individual corruption of the high rank officials who use public

money, resources, means of production, manpower, etc., to satisfy their

own needs (this may include spectacular but wasteful investment decisions

which serve their short-term goals and ambitions, enchanging their prestige,

power, and so forth).

— Mutual corruption within the network of ruling cliques (that is a

process of bribing each other out of the public pocket in order to maximize

one’s own profits, secure mutual support and keep each other in check).

My analysis focuses mainly on political and economic sources of top-

level corruption as well as on their interrelations and transformations.

POLITICAL DETERMINANTS OF CORRUPTION

One obvious and often quoted cause of corruption is the political

inertia and the lack of any requirement of accountability of the power

élite in the case of a one-party system, characterized by the political ab-

solutism and lack of legally guaranteed mechanisms of change of power.

Secondly, people who hold chief offices within the official hierarchy

in communist countries are presented as representatives and, indeed, priests

of the communist party. Thus any criticism raised against them is equal to

an attack on the party. In turn, any criticism of the party is synonymous

with a critique of communism itself which calls for the most severe penal-

ties. It certainly gives a convenient shelter to those in a position to mono-

polize, who are thus totally exempted from public scrutiny. No wonder

% 2) I have analyzed some other aspects of corruption in communist

countries in Los, 1980 and Los, 1982.

(3) The important positions in the industry and state administration at

all levels which are formally reserved for the loyal communist party

officials.

- 195 —

they may be tempted to indulge in some profitable but corrupt practices.

The lack of any inhibitions on their part is clearly confirmed by many lower

rank functionaries and managers of industry, interviewed recently by the

journalists, who stressed that they had to obey even most extravagant

requests of the party bosses out of fear of being accused of disrespect or

disobedience to the Party. The difference between communist and multi-

parti capitalist countries in this respect is quite clear. ’’Under capitalism, a

critique of the given ruling élite is not synonymous with an attack on the

principles of the political system, and, normally is not treated as such by

anyone (4)”, states one of the authors in an issue of the weekly Literatura

published during the period of ”renewal”’ in Poland (Chlopecki, 1980).

Thirdly, in addition to the lack of any political or social control over

the party, its omnipotent status places it also above the agencies of legal

control. We can find many critiques of such a situation in the quoted

periodicals. For example, an article in the leading weekly Polityka main-

tains that:

’The inclusion in the Constitution of the principle of the leading role

of the party will continue to play the role of a rubber stamp, justifying the

abuse of power, if the postulates to define the competence of the party in

its activities outside the party itself are not fulfilled.. There are many

institutional limitations on the judges’ independence, for example the

binding guidelines of the justice system, the supervising role of the Ministry

of Justice, which influences the judicial policy by various statistical indi-

cators and criteria of evaluation of judges’ performance (e.g. the dependence

of the judge’s income on the total value of the adjudicated fines…), political

statements by the powerful officials before the court decision has been

reached, or creating of a specific political atmosphere around some cases”’.

(Soltysinski, 1981)

Another author stresses that the professional career of a judge depends

on his evaluation by the political authorities and that there are no legal

guarantees of judicial independence. According to him, the main symptoms

of the dependence of the judges are:

— The limited term of office (S years) of the Supreme Court judges,

which may be renewed or not, depending on the political evaluation

of the judge;

— The possibility of dismissal of any judge by the State Council if

his performance is found inadquate;

— The possibility of financial discrimination, since the incomes are not

fixed and depend on various factors; and,

— The possibility of discrimination in terms of work loads which may

lead to an accusation of inefficiency or incompetence (see Dankowski,

(1981).

(4)

All quotations in this paper are translated by me from the original

Polish texts.

— 196 —

Y et another article demands:

’First, it is necessary to create the guarantee that the govenment and

the central administration observe the laws enacted by the Sejm (the Polish

Parliament) as well as by the Council of Ministers. If the government does

not respect the law which it itself has passed, it cannot expect that the

subordinated agencies will observe the laws addressed to them”.

(Gebethner, 1981)

The same article also states that there are no mechanisms which would

guarantee that various laws and regulations are consistent with the Con-

stitution :

’Quite frankly, legal norms are divorced from the requirements dic-

tated by the life, the needs, and the aspirations of the working people, and

from the value system incorporated in the Constitution itself … Majority of

the legal regulations are contradictory to the social and economic needs, or

at least impracticable…. Common sense, or, more often, the particular or

personal interests, have induced people to violate the legal order. It has

enhanced chaos and anarchy in our economy.. Today, the lawful func-

tioning of the administration… is more important than law-abiding behav-

iour of the citizens”.

(Gebethner, 1981 )

Thus, it has been openly admitted that the direct political control over

the legal system makes it easy for those who occupy more influential

positions to manipulate the law in order to obtain material gains and to

secure their own impunity.

There are many indicators that among the members of ”’nomenclatura”

such a belief in their own superiority and impunity was well established

before August 1980. In many recently published descriptions of corruption

and blatant abuses of office by influential functionaries, there is striking

evidence that they often did not take even elementary precautions against

possible legal inquiries into their actions. They felt totally confident of the

protection granted by their offices. For instance, several articles portray

typical methods by which the influential party officials were able to secure

luxurious villas in the most attractive regions of the country without ever

having to pay for it out of their own pocket. In one quoted case:

’’The house owners were expropriated on the base of the law which

allows for such a procedure where it is vital for satisfaction of some public

needs. Then, those houses were luxuriously equipped and sold to the

deputy-head of the region and the regional police chief.…. The National

Treasury paid 4 million 475 thousand zlotych for these transactions. It

was not uncommon that the occupants of a house which has been singled

out by someone influential were evicted by the police”

(Loch, 1981)

— 197 —

In another case, a picturesque spot caught the eye of the bosses of the

gigantic Foundry Katowice and of the Ministry of Metallurgical Industry:

’Lands for them and their families were extorted from the peasants

without the slightest effort to give it any appearance of legality or decency.

In exchange, these visitors offered their hospitable host (the head of the

town and region), his people, and his beautiful town cement, steel, special

authorizations to purchase cars… This kind of reciprocal transactions con-

stitute an absolutely normal, and in the 1970s generally accepted, style of

work”.

(Wesolowska, 1981)

According to the quoted report this particular deal (one of many) also

included construction of a private highway, electrification of the terrain (5),

landscaping of the private parcels, and so forth; all financed by public

money apportioned by the head of the region and the local party secretary.

Needless to add that all the gifts to themselves and to their region, with

which their hospitality was reciprocated, came from the public pocket as

well.

In the same town, 2 thousand families (out of the population of 15

thousand) are practically homeless, living in deteriorated slums and other

virtually unhabitable places (Wesolowska, 1981).

’’The greed and the limitless desire to possess, the faith in the invul-

nerability of their position, in their power and their immunity, were res-

ponsible for the fact that they eventually forgot the appearance and started

a regular robbery”.

(Biedzki, 1981)

’The brutality of this acquisitiveness was caused by the dominant

system of relationships. We should not judge only the individuals but

also the system”.

( Wesolowska, 1981)

In another article, its author explains how luxurious villas and man-

sions (6) for the powerful were routinely erected and lavishly fumished by

(5) According to another similar report, a deputy-head of a region and his

colleagues had their mansions financed by the state institutions and the

electrification of their parcels was covered by the funds assigned for

electrification of the neighbouring village (Indelak, 1981).

(6)

Villas and mansions were only a small part of the private empire which

the top officials have built for themselves. For instance, the French

Le Point lists some of the possessions of the director of Polish tele-

vision who now faces criminal charges: two yachts, three aeroplanes,

seven cars, one stable with seven horses on a farm of 16 hectares, one

mansion near Warsaw, one 25-room-house in the south-ast of Poland

and a villa near Warsaw. His villa was equipped with a swimming pool,

a sauna and four prostitutes at his disposal. He also had a residence in

Nairobi because he was fond of safari. He owned an elegant apartment

house in central Warsaw. Next to his office where he worked as the tele-

vision chief, he had a private swimming pool, sauna, beauty parlour

with special masseurs, a small cinema and 900 video-assettes with

pornographic films (Christitch, 1980).

— 198 —

the state enterprises. They were nicknamed ”constructions S”” (special con-

structions) and were normally initiated by a telephone call from someone

important. Usually, they were built instead of someting else which was

included in the official plan. In some cases, the best construction materials

allotted to the enterprise were invoiced as deteriorated and unusable, when,

in fact, they were assigned to a ’construction S”’. The engineers and con-

struction workers, who were involved in those constructions.

’Speak about it with a real hatred, with a hatred of the very idea. They

cannot comprehend how it is possible to force enterprises which have dif-

ficulties in gathering materials, equipment and people necessary to fulfill

their planned tasks… to build luxurious villas and cottages, and to do it

in an atmosphere of constant threats, disdain and insolence.”

(Moszynski, 1980)*

In most of the cases, self-confident officials did not even try to cover

up the illegality of those transactions and did not pretended that -they

were paying their bills. They treated it as a tribute, due to them in virtue of

their office. Only when the newly created Solidarity Union initiated vigor-

ous investigation of the extent of corrruption in Poland, they realized that,

after all, they may not be above the law.

’Receipts have now become a dream of many. The ”’Clients S”’ have

launched a Receipt Campaign. ”’Can you imagine, one of the clients who

had never honoured us with a visit, who had summoned the directors when-

ever anything was wrong with his construction, this week visited us twice.

He tried to fix some receipts’’…. He also tried to obtain written statements

from the peopie who worked for him that they received separate payment

from him and that they worked after their normal working hours”.

(Moszynski, 1980)

In sum, a closed network of cliques, totally alienated from the rest of

society has acquired a feudal mentality, treating the country as their own

property and the citizens as their serfs. The above three aspects of the

political organization of communist societies clearly enhance such attitudes.

Moreover, they preclude any effective controls over those called by the

party to assume offices of the key importance in the party itself, in the

state administration, in the police force, and in the economy. The pattern

of corruption consists mainly in the totally unhampered use of public

resources. They aim at organizing their mutual relationships in such a way

that every member of the clique has an opportunity to take advantage of

the resources controlled by other members. The shares of various partici-

pants may differ according to their position in the hierarchy, but the pat-

tern remains the same in most cases. À journalist’s works sum it up well:

No one in our story will act alone, everyone will be linked with others and

dependent on them’’ (Wesolowska, 1981). Another reporter develops this

thesis further:

— 199 —

’Their greatest fault was not that they used their positions and offices

to promote their personal goals. Their main fault was that, against the prin-

ciples which they preached, they created, consolidated and propagated such

methods of management, organization and information (or rather misin-

formation) which made these abuses possible… It did not stop at the indi-

viduals. Among those who participated were various units of the state econ-

omy, ministries, cities, and regions. Scrambling for resources and oppor-

tunities, snatching them from each other, bribing to obtain planned deliv-

eries, constructing luxurious facilities under the clock of social program-

mes.… falsifying statistics to profit individuals and organizations…

The boundaries between social and private blurred”.

(Skalski, 1980)

In short, the lawlessness of the priviledged has been nobilitated and

protected by themselves and their new ideology; as for them managing the

country has become synonymous with owing it, that is, with having it at

their disposal. If such a vast pool of resources falls into the hands of a smail

group, no one cares about economy and its rational expansion, the shares

are so immense that the rulers, who at the earlier stages of development of

the communist system in Poland were drunk with power, now become ad-

ditionally satiated with opulence.

As one of the journalists of a local weekly from Lodz puts it: ’Un-

fornunately, we had too many private owners of the region, who were

building here, for themselves and for their colleagues from the region and

from outside, a private ’second Poland”” (Indelak, 1981).

ECONOMIC ROOTS OF CORRUPTION

Clearly, economic determinants of corruption of the top officials are

closely related to the political ones.

One of the most obvious explanations is that in a situation where

economy is nationalized and totally subordinated to the political manage-

ment, it becomes a terrain of a contest between various political figures. It

adds a real, material dimension to their political games and ambitions.

Influential officials have the power to shape economic policies as well as

to dictate concrete economic decisions. This, in turn, gives them direct

access to the material resources, immensely enhancing their prestige and

dictatorial powers.

The lower level economic managers are reducec to the role of ’’a

vassal who squeezes out from his estate a sizeable fief for his master”

(Indelak, 1981). The economic advisors and experts play the role of puppets

who have to invent economic rationalizations for the whims and dreams

of their superiors, or be accused of a heresy and disloyalty. No economic

laws are respected, as the party elite feels not only above the law, but also

— 200 —

above economic logic. Their feeling of omnipotence, derived from their

limitless political power, leads party officials to believe that economy will

always obediently respond to their wishes and expectations, since all the

individuals on all levels of the economic hierarchy have to comply with

their orders.

The construction of Huta (Foundry) Katowice in the 1970s provides

and excellent, though tragic, example of this pernicious nonchalance of the

political leaders. Zycie Warszawy, the most popular daily paper in Warsaw

called it ”the biggest fraud in the whole world” (Zycie i Nowoczesnosc,

1981). The initial ideal was quite noble: to build a gigantic, modern foun-

dry, which would eventually make it possible to eliminate older ones, which

were unhealthy for the workers, polluted the environment, etc. Yet, it was

also a great opportunity for top politicians to enhance their image and their

political interests. The First Secretary of the party, Edward Gierek, and his

close collaborators wanted to build it in Slask’s region (Silesia), where they

came from. and where they had ruled before Mr. Gierek’s promotion.

Experts argued that it would be impossible to organize efficient transport of

the Soviet or Western or to Slask, because of the constant transport of coal

and the general congestion of the highly urbanized area, as well as the con-

siderable distance from the Soviet border and from the sea. They were

quickly silenced. Similarly, the specific location was decided against any

rational advice. The Deputy Minister of Metallurgical Industry wanted to

leave a lasting monument to commemorate his triumphant career. He chose

his place of birth as a place for the gigantic construction. It was an absurd

decision, which has had disastrous consequences for the whole region.

It has deprived the neighbouring, highly populated area of drinking water,

it has devasted the green belt created purposefully to improve air in the

mining district, it produces dangerous dust which is blown by the wind to

Cracow, a beautiful, historic city and the old capital of Poland. All other

decisions, concerning construction, technology, costs, investments, imports,

and so forth, were made in similar fashion. Only those experts were ac-

cepted who were prepared to lie.

’They knew what it will lead to, but for their silence they were re-

warded and praised. They were called ”our men”… Total conformity.

Each of them knew what he was doing … It was such a time that it was

enough to blink to be dismissed… It was enough to show some doubts…”

(Zycie i Nowoczesnose, 1981)

Huta Katowice will always bring enormous losses to the country. It is

too gigantic to have it dismantled. It will remain as an ominous monument

to the principle of the political management of the communist economy.

À second determinant of top level corruption is the peculiar nature of

the central plan, which has to be strictly obeyed by the producers, but can

be quite arbitrarily altered and manipulated by those on the top. (For

— 201 —

example, Huta Katowice which cost around 500 billion zlotych was never

included in the State Plan). It gives the privileged few an unlimited op-

portunity to switch funds from some projects to others, including their own

private enterprises. It also has a demoralizing effect upon the middle level

managers of production who feel disoriented and incapacitated. Such a state

breeds passivity, detachment from the real economic goals, concentration

on self-interest and readiness to fulfill any wishes of the party officials.

Doubtless, it also creates a tendency to take advantage of the chaos and

waste brought about by the arbitrary changes and to secure some extra

profits for themselves. Indeed, the middle level functionaries are expected

to promote the appearance of chaos and confusion in order to divert at-

tention from the real causes of the economic losses. They are also encour-

aged to falsify their production reports and statistics to cover up for any

abuses caused by the private greed, incompetent decisions, political inter-

ference, and all other routinely occurring factors.

’For years, the Supreme Chamber of Control was informing the leaders

of the state and the party about the dangerous phenomenon consisting in

making up statistics in order to show better economic results than actual

ones”.

(’Posiedzenie Sejmu PRL’, 1980)

Numerous recent controls show that practically all the economic

reports are false (Monko, 1981). Ît is caused, primarily by the rigid, and

legally binding, nature of the plan. It may often not have anything to do

with a private gain. But, this created an atmosphere of fictitious functioning

of the economy which encouraged corruption and could easily accom-

modate a fair amount of private transactions and illegalities.

’’Suffocation of the reality by the paper fiction is caused by various

obstacles, difficulties… A false report becomes a starting point for erroneous

planning, forecasting, and style of management. False planning and false in-

formation about the plan and about the reality make it impossible to

manage the economy. Incorrect management means a constant grapple

between the weak and the powerful, between the liers and the veracious.

(Monko, 1981)

Many bosses falsified statistics on their production and costs. Many

went even further, selling the goods which were not yet produced and ac-

counting for them in the reports about the fulfillment of the plan…

The extreme example was a purposeful falsification of data by the

offices designed to collect and verify them, e.g. the statistical offices…

’This resulted in disorganized economy and made it impossible to

conduct any reliable analysis or calculation of the basic elements of our

economy”.

(Oseka, 1981)

— 202 —

A third cause of top-level corruption is related to the strictly vertical

structure of the economy which results from the principle of the central

plan. Only vertical (hierarchical) structure, which is suited for transmission

of the command, is politically significant, and therefore fully ligitimized.

Lack of the horizontal economic structure which would allow to develop

both cooperation and competition among the producing units creates room

for illegal bargaining, speculation, and corruption. It also facilitates exploi-

tation and manipulation of lower units by their superiors. Clearly, economy

which is based on the principle of obedience and subordination and on

artificial isolation of functionally related units, must facilitate abuse of

power and transmission of some private demands from the top to the

bottom of hierarchy. It must also breed the attitudes of servility expressed

in the willingness of the lower levels to satisfy their superiors’ personal

desires in order to gain some freedom of movement.

Finally, the fourth cause consists in a constantly progressing mono-

polization of the economy. It is expressed in the forced mergers of smaller

enterprises, the growing number of gigantic combines, and the strong

tendency to give the highest levels of administration a total monopoly over

economic decisions. This super-monopolization (progressive concentration

within the already monopolized economy) causes a further decrease of the

autonomy of the directors of individual enterprises; they become puppet-

figures obliged to serve the political administrators and constantly threat-

ened by them. The ever growing concentration of management has reserved

the promised direction of development from the nationalization to the

socialization of means of production. Under such conditions, the gap bet-

ween the decision-makers and the shop-floor workers becomes too vast to

be bridged. No grass-root criticism or blame can be heard at the top. The

workers cease to exist as acknowledged participants of the economic pro-

cess. They simply become a part of the vast resources at the disposal of the

top administrators and party officials. They are not conceived of as a part

of the economic structure by the totally alienated, self-perpetuating and

self-corrupting powerful cliques. The protests of the workers seem to be the

logical, even if officially banned, consequence of these developments.

CLOSING REMARKS

Top level corruption is very widespread and it seems to have common

causes in all communist countries, although its specific forms may differ

considerably. The prevalent pattern of corruption in Poland in the past

decade was connected with the existence of closely knit networks of cliques

formed by the people who occupied key positions in the party, state ad-

ministration, police and economy. They needed each other in order to

acquire direct personal access to various state-controlled resources as well

as to secure impunity and political credibility. They never paid for favours

— 203 —

out of their own pocket. The bribes they offered to each other included

public money, property, free labour and services of the employees of state

enterprises, political privileges and legal protection. The process of ever

growing concentration of economy was paralelled by a process which may

be likened to its gradual secret reprivatization.

The extent of corrruption among the members of ”nomenclatura’”

is difficult to estimate. Both, the popular beliefs and the recent press

reports suggest that it has been very widespread indeed, but they cannot

back it up with any hard data. However, some scattered information has

been offered by the daily press. It appears that al least four ministers and

seven deputy-ministers (including the ministers of construction, metalurgic

and chemical industries) as well as seven secretaries of regional party com-

mittees were recently dismissed from their posts, expelled from the party

and face now criminal charges of abusing public offices to obtain private

gains. Similar cases of various other central and regional office-holders as

well as directors of large economic units, foreign trade agencies, mass media,

etc., are mentioned very frequently in the daily press.

The Superior Office of Control (NIK), which deals with the cases of

violation of law by the state agencies and their representatives, has received

three times more complaints in 1980 than in 1979, with majority of com-

plaints lodged after August 1980 (the date of birth of the Solidarity Union).

Of 19,237 cases 40 percent were related to corruption, nepotism, economic

crimes and wasteful management of economic resources. More than half

of the complaints have been judged well founded, and, similarly more than

half of 500 charges against members of ’”’nomenclatura’ have been con-

firmed. Of 4,000 cases investigated until March 1981, 324 cases (among

them 215 complaints against the members of the ”nomenclatura”) were

found sufficiently ’’sensitive’’ to be transferred to the Party Control Com-

mission (Zycie Warszawy, 18 March 1981). The Warsaw Party Control Com-

mission received 1,145 complaints between July 1980 and March 1981.

Until March 1981, it has considered 686 cases and made 116 recom-

mendations. Among them: 35 recommendations of expulsion from the

party, 42 decisions to apply some disciplinary measures and 12 decisions to

transfer cases to the Public Prosecutor Office (Zycie Warszawy, 31 March

1981). This sort of information gives at least some idea of the extent and

nature of the official reaction to the upper level corruption, even if it does

not offer any reliable estimate of the size of the problem itself.

Naturally, my selection of the top-level corruption was not meant

to suggest that it exhausts the totality of corrupt practices in communist

countries. The low-level corruption, which takes place in the daily en-

counters between lower rank functionaries and the rest of society, is equally

important. Many press reports from the period of the Polish ’renewal”

give concrete examples of extensive use of such means as monetary bribes,

payments in kind, political influence or exchange of favours, to secure a

— 204 —

privileged treatment in such areas as allocation of apartments, entry to the

university, health care, child care, obtaining various goods in short supply,

and so forth.

Similarly as top-level corruption, this kind of corruption is also directly

related to political and economic organization of society. It results from

inefficiency of centralized, politically managed economy, and chronic

shortages of goods as well as from the tendency of communist states to con-

trol every aspect of citizens’ lives. The rigid and politically controlled

distribution of various goods, services and opportunities invites corruption

and manipulation by giving almost uncontrollable power over those com-

modities to the functionaries of the sates administration and the state trade.

An important role in this system of distribution was also played by the old

trade unions. They controlled to large extent access to the so-called col-

lective consumption fund, which included subsidized holidays, child-

centers and sport facilities as well as such commodities as coal and potatoes.

Various forms of subsidizing families along with their direct depen-

dence on the political attitudes of the employees, have increased their

vulnerability and reliance on the state and its political organizations —the

party and the trade union—.

Certainly, the collapse of the state-run trade unions in Poland and the

birth of the independent trade union movement have considerably shaken

those petrified and largely corrupted patterns of distribution of rewards and

punishments. These developments have openly challenged the whole organ-

ization of the society, corrupt and crippled throughout by the domination

of private interests and the political rhetoric of a nonelective élite formed

within a non<lective ruling party.

A combination of a non-democratic political system with the nation-

alized economy inevitably seems to produce an environment where op-

portunities for corruption are practically unlimited. À total monopolization

of both power and economic resources in the hands of the dominant pol-

itical élite, which is neither controlled nor influenced by any other social

groupings or organizations within the society, makes any piecemeal pro-

grams of corruption and crime prevention a futile excercise. Even if some

members of the élite are singled out from time to time as scapegoats res-

ponsible for the evident economic failure of communism, it is a purely

symbolic manoeuvre by the élite which wants to secure its own continu-

ation and unlimited power. While a number of the top party officials,

including Mr. Gierek himself, now face criminal charges of corruption and

abuse of office, their close collaborators continue exactly the same policies

and, no doubt, will continue to derive similar private profits from the

country which has been converted into a single, huge, even if completely

devastated, private enterprise.

— 205 —

REFERENCES

Biedzki, T. (1981) ”Rachunek dla bezkarnych” (a Bill for the Impunity),

Gazeta Kralowskia, 1-3 May, No. 87.

Chlopecki, J. (1980) ”Niesprawnosc systemu” (Inefficiency of the System),

Literatura, 20 November, Vol. IX (457): 4.

Christitch, K. (1980) ”Des privilèges héréditaires”’, Le Point, 15 septembre,

417:54-55,

Dankowski, J. (1981) ’Jakie sa gwarancje sedziowskiej niezawislosci”

(What Are the Guarantees of the Judicial Independence), Solidarnosc,

24 April, 13-14.

Gebethner, St. (1981) ”Konstytucja i Praworzadnosc” (Constitution and

Legality), Polityka, 14 March, No. 11(1254), Vol. XXV: 14.

Indelak, J. (1981) ”W strone drugiej Polski”’ (Towards a Second Poland),

Odglosy. Lodz, 8 February, No. 6 (1206), Vol. XXIV: 1, 4-5.

Loch, J. (1981) ”Spor o metode” (Disputing the Method), Polityka,

14 February, No. 7 (1250): S.

Los, M. (1980) ”Economic Crimes from a Comparative Perspective”,

pp. 251-293 in G.R. Newman (ed.), Crime and Deviance. Beverly Hills,

California: Sage Publications.

Los, M. (1982) ”Crime and Economy in Communist Countries”, in P. M.

Wickman and T. Daily (eds.), White Collar and Economic Crime.

Lexington, Massachusetts: Lexington Books.

Moszynski, P. (1980) ”Budujemy nowy dom”’ (We Construct a New House),

Polityka, 18 November, No. 42 (1233), Vol. XXIV: S.

Oseka, J. (1981) ”Z czym na dywanik” (What Should Be Scrutinized),

Polityka, 21 February, No. 8 (1251), Vol. XXV: 6.

Posiedzenie Sejimu PRL (1980) (A Meeting of the Polish Parliament),

Zycie Warszawy , 22-23 November, 275: 4.

Skalski, E. (1980) ”O winie i karze” (Guilt and Punishment), Polityka,

13 December, No. 50 (1241), Vol. XXIV: 1 and 7.

Soltysinski, St. (1981) ”Bezpartyjni a partia” (Non Members and the

Party), Polityka, 28 February, No. 9 (1252), Vol. XXV:3.

Welolowska, M. (1981) ”Korzenie zla” (The Roots of Evil), Polityka,

2 May, No. 18 (1261), Vol. XXV: 5.

Zycie | Nowoczesnosc (1981) A Supplement to Zycie Warszawy, 16 April

Zycie Warszawy (1981) (’Ludzie pisza do Sejmu, NIK, prokuraturry” -

’People Write to the Parliament, NIK, Public Prosecutor Office”),

18 March, 64: 6.

Zycie Warszawy (1981) (’Dzialalnoss WKKP, NIK i prokuratury”

’Activity of Warsay Party Control Commision, Nik and Public Pro-

secutor Office””), 31 March, 75: 8.

— 206 —

IMPRIMERIE ADMINISTRATIVE DE MELUN

N° 1708 / 1984