Contemporary societies are culturally diverse. This diversity can be the result of different historical and social processes and might affect the uniformity and efficiency of criminal justice systems. Colonization of indigenous populations that started in the 15th century later European colonization of Africa and migration flows following the Second World War have contributed to this diversity in different ways. The growing importance acquired by culture in the criminal law domain went hand in hand with the attention received by it both in the human rights field (especially linked to minority rights) and in the field of sociological and criminological theories.
Nowadays, crimes such as female genital mutilation, forced marriages, and other behaviors grounded in “culture or tradition” form the object of several international human rights instruments and media reports. The way in which criminal justice systems deal with such cases, and more in general with cultural factors, varies greatly. Different instruments have been proposed to allow the consideration of cultural elements within criminal proceedings among which (in common law countries) is the formalization of an autonomous “cultural defense.” However, international human rights instruments, especially those protecting the rights of vulnerable subjects such as women and children, have repeatedly discouraged states to take into account “culture, religion, and tradition” as grounds for justification (see, e.g., the Istanbul Convention).
Criminal proceedings are not the only setting to deal with culture and crime. More recently, the development of alternative dispute resolution mechanisms and restorative justice both within formal and informal (community) settings have given an additional option to take culture into account in the resolution of disputes (in terms of procedures used and normativities in play). Concerns exist with regard to the substantive and procedural rights of participants to these programs. However, these alternatives could represent a way to allow a certain degree of legal pluralism and facilitate access to justice for minority groups.
David O. Friedrichs
Critical criminology has achieved a substantial presence within the field of criminology over the past several decades. Critical criminology has produced a framework for the understanding of crime and criminal justice that challenges core premises of mainstream criminology. Critical criminology emerged—principally from about 1980 on—in relation to radical (and “new”) criminology in the 1970s, and various influential societal developments and forces associated with the Sixties. The roots of critical criminology can be located in Marxist theory, in the work of Willem Bonger, and in that of other scholars who were not self-identified radicals—including Edwin H. Sutherland. Interactionist (labeling) theory and conflict theory provided an important point of departure for the development of radical—and subsequently critical—criminology. More specifically, the Berkeley School of Criminology in the United States and the National Deviancy Conferences in the United Kingdom were influential sources for the emergence of critical criminology. The core thesis of critical criminology can be most concisely summarized as a critique of domination, inequality, and injustice. Starting with the definition of “crime” itself, critical criminologists expose the biases and political agenda of mainstream criminology and advance an alternative approach to understanding crime and criminal justice. That said, some different choices are made by self-identified critical criminologists in terms of underlying assumptions, methodological preferences, and different forms of activist engagement. A call for news-making criminology, or a form of public criminology, is one theme for activism: direct political mobilization is another. The term “critical criminology” today is best understood as an umbrella term encompassing a wide range of different perspectives with quite different core concerns. Some of these strains were more dominant at an earlier time; some have emerged or become more prominent recently. The following are among the most enduring and consequential strains of critical criminology: neo-Marxist, critical race, left realist, feminist, crimes of the powerful, green, cultural, peacemaking, abolitionist, postmodern, postcolonial, border, and queer criminology. Some critical criminologists have called for replacing the core focus on crime with a focus on harm, broadly defined, and replacing criminology with zemiology, or the study of harm. Critical criminologists have concerned themselves with crimes of the powerful; gendered, sexualized harm and intimate partner violence; raced harm and racial oppression; hate crime; the war on drugs; the war on immigrants; police violence and the militarization of the police; mass incarceration and privatized criminal justice; carceral regimes; mass imprisonment; the death penalty, and alternative forms of justice including a form of restorative justice—among many other substantive concerns. The call for a Southern criminology that incorporates the outlook and concerns of the Global South is one significant development within critical criminology. Critical criminology has the potential to be of special relevance within the context of a historical period characterized by intense conflicts in relation to the political economy and civil society.
David C. Brotherton
The majority of studies on youth gangs are in the tradition of positivistic social science. When natural science is taken as the paradigm, a premium is placed on the value neutrality of the observer, the scientific rigor of the methodology, the unpolluted character of the data, and the generalizability of the findings—all with the aim of proving or disproving ideologically free testable hypotheses. In contrast, critical gang studies adopt a different lens that is best suited to the study of subaltern groups whose lifestyles, “habitats,” and characteristics are stigmatized and pathologized by the larger society. Critical gang studies are based on the premise that all social and cultural phenomena emerge from tensions between the agents and interests of those who seek to control everyday life and those who have little option but to resist this relationship of domination. In this way, critical gang studies adopt interpretive, reflexive, holistic, and probing approaches to research, rejecting the penchant for survey-based truth claims and studies whose findings uncritically reflect the race, class, and gendered positions of the investigators.
Thus, practitioners of critical gang studies contend that the key to understanding the gang is found in its dialectical relationship between inclusion and exclusion viewed historically and holistically. Therefore, critical gang students create a counter body of knowledge and an alternative methodology to illuminate (over)shadowed spaces of criminalized social action where hope mixes with survival, creativity with accommodation and, resistance with social reproduction. The data on critical gang studies draw from the entire world of gang members, revealing their agency as well as their structured environments, their organizational systems, rites, rituals, performances, ideologies and cultural products. The critical approach places emphasis on the meaning systems of gangs, their changes across time, and the possibilities that lie within their specific subcultural formations. Welcome to critical gang studies!
When Guenther Jakobs introduced the concept of “enemy criminal law” (Feindstrafrecht), or enemy penology, into the legal debate, this was due to a concern with the increasingly anticipatory nature of criminalization in German legislation in the last decades of the 20th century. Against the backdrop of a series of terror attacks in the West and the ensuing debates on how to deal with the dangers and threats of the new millennium, Jakobs’s theory gained new momentum in Germany’s public discourse and beyond. As it seems, the author himself turned the concept into a device for political intervention, declaring the notion of the enemy as indispensable for dealing with certain extreme crimes and notorious offenders, not only to prevent future crime and avert harm from society but also, and most notably, to preserve the established “citizen criminal law” (Bürgerstrafrecht): the enemy is the one to be isolated and excluded from the system. Enemy criminal law may be a peculiar legal concept. The logic of enemy penology, however, leads us to some more fundamental insights into the conundrums of liberal political thinking and attendant legal conceptions. It requires us to think about the enemy as a liminal figure that points to the preconditions and the paradoxes of our legal system. The history of criminology attests to the discipline’s struggle with penal law’s inherent limitations. And if we live today in times where exception and rule, internal security and external security, and military and police concerns increasingly overlap and intermingle in the face of ever new threats, the notion of enemy penology helps us to critically reflect on the mechanisms that drive these transformations.
The European Border and Coast Guard (EBCG) was officially launched in October 2016. In the European Commission’s view, it marks a milestone in the history of the integrated management of European Union (EU) borders. This article describes the main features of the new agency, focusing on two key issues. First, it analyzes the powers that the new agency is entrusted with in an attempt to understand whether it will be able to articulate a “European space of control” where an authentically postnational border police will take the lead over national border agencies. Second, it explores whether, and to what extent, the reform of the EU border agency has been accompanied by the development of mechanisms to exercise effective democratic and judicial control over its activities. The discussion concludes by arguing that the views of those who believe that the evolution of EU justice and home affairs policies does not raise particular challenges for the exercise of democratic control over EU security agencies and the protection of fundamental rights during their operations are fundamentally flawed, and that new ways to ensure proper scrutiny over security policies that take account of the peculiarities of EU institutional structure need to be devised.
Kayla Crawley and Paul Hirschfield
The school-to-prison pipeline (STPP) is a commonly used metaphor that was developed to describe the many ways in which schools have become a conduit to the juvenile and criminal justice systems. The STPP metaphor encompasses various disciplinary policies and practices that label students as troublemakers, exclude students from school, and increase their likelihood of involvement in delinquency, juvenile justice, and subsequent incarceration. Many external forces promote these policies and practices, including high-stakes testing, harsh justice system practices and penal policies, and federal laws that promote the referral of certain school offenses to law enforcement. Empirical research confirms some of the pathways posited by STPP. For example, research has shown that out-of-school suspensions predict school dropout, justice system involvement and adult incarceration. However, research on some of the posited links, such as the impact of school-based arrests and referrals to court on school dropout, is lacking.
Despite gaps in the empirical literature and some theoretical shortcomings, the term has gained widespread acceptance in both academic and political circles. A conference held at Northeastern University in 2003 yielded the first published use of the phrase. Soon, it attained widespread prominence, as various media outlets as well as civil rights and education organizations (e.g., ACLU, the Advancement Project (they also use “schoolhouse-to-jailhouse track”), the National Education Association (NEA), and the American Federation of Teachers) referenced the term in their initiatives. More recently, the Obama administration used the phrase in their federal school disciplinary reform efforts. Despite its widespread use, the utility of STPP as a social scientific concept and model is open for debate.
Whereas some social scientists and activists have employed STPP to highlight how even non-criminal justice institutions can contribute to over-incarceration, other scholars are critical of the concept. Some scholars feel that the pipeline metaphor is too narrow and posits an overly purposeful or mechanistic link between schools and prisons; in fact, there is a much more complicated relationship that includes multiple stakeholders that fail our nation’s youth. Rather than viewing school policies and practices in isolation, critical scholars have argued that school processes of criminalization and exclusion are inextricably linked to poverty, unemployment, and the weaknesses of the child welfare and mental health systems. In short, the metaphor does not properly capture the web of institutional forces and missed opportunities that can push youth toward harmful choices and circumstances, often resulting in incarceration. Many reforms across the nation seek to dismantle STPP, including non-exclusionary discipline alternatives such as restorative justice and limiting the role of school police officers. Rigorous research on their effectiveness is needed.
In the contemporary era of “tough on crime” policies and the globalized drug war, the number of women in the criminal justice system has increased across several countries. Women’s involvement in the system is not limited to imprisonment, however, and many criminalized women (those involved in the justice system with the assigned status of defendants, offenders, etc.) participate in community-based programs after serving sentences in prisons or jails or as an alternative to incarceration. Criminalized women encounter multiple interlocking forms of oppression based on sexuality, race and ethnicity, class, disability, immigration status, punishment status, and (importantly) gender. Gendered ideas and norms shape the way women are treated not only by the carceral state but also by community-based, nongovernmental organizations (NGOs).
NGOs have played an increasingly prominent role in the provision of social services since the 1970s. Organizations working with criminalized people in more affluent, English-speaking nations commonly address job readiness, psychological and substance issues, parenting, sexuality, romantic relationships, and spirituality, among other important areas. Some NGOs work with criminalized people as a condition of their criminal sentences. Criminalized women’s self-reported needs are great, yet resources are often scarce, inadequate, and unwelcoming, particularly for women of color. Responding to a dearth of services available to women, feminists formed NGOs focused on this population beginning in the 1970s; women are also served at NGOs that work with men. “Reducing offending” and “empowerment” are frequently stated goals at NGOs that work with women, but these goals can be interpreted widely depending on the views of NGO leadership and staff about gender.
NGOs can approach women’s gender in a variety of ways. For instance, they can resist or affirm the dominant views used by the carceral state that criminalize and stigmatize women. Their approaches matter because of the implications for equality of opportunities that follow. Two major philosophies can motivate the outreach that NGOs do with criminalized women. Gender sameness disregards gender differences and stresses that it is necessary to treat women “like men” to reverse the disadvantages and marginalization that women encounter. Gender difference emphasizes the importance of treating men or women based on their purportedly unique characteristics and social experiences. Much critical feminist research on NGOs that work with criminalized women has studied programs formed around ideas of gender difference.
Critical researchers have examined gender in organizational work with women outside of prisons, in community-based prisons run by NGOs, and in more traditional prisons. Researchers have examined practices at programs, the philosophies underpinning them, and their implications. This body of work shows that NGOs can perpetuate gendered exclusions and may expand the power of the carceral state. In their prescriptions for responding to the status quo, critical researchers make arguments along a spectrum from advocating more moderate social change, such as by creating more effective programs, to more radical social change, such as by ending community-based programs that perpetuate carceral control.
The genealogy of pecuniary punishments is a story of constant reformulation in response to shifting political pressures, changes in institutional and administrative arrangements, and intellectual developments that changed ideological commitments of legislators and practitioners. Within this chronicle of reformulation, broad transformations since the late 17th century are discernible. These legal transformations, most of which have been widely discussed and debated, help delimitate old and new forms of punishment and, to some degree, different modes of constructing punishment inside the criminal law. Based on the notion that the legal discussions during the 19th century set the stage for the profound reforms initiated by the emergence of consumer societies, the discourses that unfolded from around the end of early modern times until now are analyzed, even though few could have predicted the increase in the use of fines and confiscation that would occur throughout the 20th century. For the fine to reach such a state of ubiquity, one of its most criticized characteristics derived from its monetary nature had to undergo a severe scrutiny: the unequal impact on offenders caused by the unequal distribution of money between individuals in society. Confiscation, on the other hand, after having being extensively used by the Nazi, fascist, and Francoist regimes against “people’s enemies” and political opponents, was rediscovered as one of the most powerful weapons in the fight against organized crime during the war on drugs in the 1980s. In the 21st century it has become increasingly important for countries to be able to freeze and confiscate property related to the committing of an offense, thus depriving criminals of their illicitly obtained assets.
Zelia A. Gallo
The literature on contemporary Western punishment presents us with a number of possible approaches to political ideologies and penality. The first approach requires us to ask what different political ideologies have to say about crime and punishment. This entails a close analysis of the ideologies’ main claims on matters of power, authority, and collective co-existence, to see if and how such claims have played out in the penal sphere. Analyses of social democratic penality serve here as useful case studies for such an approach. Such analyses also illustrate the second approach to questions of political ideology and penality. This approach requires us to ask what impact crime has had upon the fate of different ideologies. Have the changing incidence and changing perceptions of crime come to threaten the legitimacy of dominant ideologies? The third approach is that of critique of ideology: penality is studied as ideology, to discern what it conceals about reality and existing power relations. Here the analysis of contemporary UK offences of dangerousness acts as a case study for such an approach. To the extent that offences of dangerousness are rooted in neoliberalism, the discussion also introduces us to debates concerning neoliberalism and penality, in particular the idea that contemporary punishment expresses both the ascendancy of neoliberal doxa, and the decline of existing macro-ideologies such as social democracy. This decline can be seen as a move toward a post-ideological era, in which crime and punishment have come to replace political visions and utopias. However, recent scholarship on political ideologies argues that the latter are ubiquitous and permanent features of political thinking. This implies that the contemporary era cannot be described as post-ideological. Rather, it is an era in which macro-ideologies such as social democracy—which provided a holistic view of social order and comprehensive ideational resources to construct it—have been replaced by thin ideologies—which offer us narrower visions and ambitions. Examples of such thin ideologies include populism and technocracy. It is then possible to study the link between thin-ideologies and penality, a study that is here exemplified by the analysis of populism and penal populism, and technocracy and epistemic crime control. An analysis of thin ideologies and penality can also be undertaken with a normative project in mind, namely that of identifying within these thin ideologies, possible ideational resources that might be used to imagine a better penal future: one that is more moderate, more democratic, and less punitive.
Political violence includes an array of conducts and events that defy unilateral examination. It may be authorized or unauthorized violence, and while the latter is almost always associated with crime, the former is normally deemed an expression of the legitimate monopoly in the use of force characterizing modern societies. There are institutional and anti-institutional forms of political violence, namely violence of the authority and violent expressions of defiance against authority. Both have been the object of analysis by sociologists and criminologists, with some contending that theories of “common” violence should be applied to the analysis of political violence. It is assumed, for example, that both types of violence possess a goal-directed character: achieving results, extracting something of value from others, or exercising justice by punishing wrongdoers. Other analysts, however, link political violence with social conflict derived from collective grievance around inequality and injustice, thus locating this type of violence within the tradition of social movement analysis and the dynamics of collective action. Conflict theory provides a prime framework for this type of analysis, which focuses on contentious issues, organizational matters, and the shaping of identities that lead aggrieved groups to turn to violence. Sociological and criminological theories also offer a rich analytical patrimony that helps focusing on political crime committed by states and their representatives occupying powerful social positions. Many contributions, in this respect, cover atrocities perpetrated by institutional actors and the different forms of conscious, unconscious, personal, cultural, or official denial accompanying such atrocities. The term political crime, therefore, ends up relating to state crime, political and administrative corruption, and a variety of crimes of the elite normally included under the umbrella definition “the crimes of the powerful.” Conversely, when the focus moves onto political violence perpetrated by anti-institutional or non-state actors, the term “terrorism” is usually referred to, a term that is not likely to meet universal acceptance or unquestioned adoption due to the difficulties social scientists find in defining it. In sum, political violence and crime present scholars and practitioners with the same ambiguity that connotes definitions of social behavior and the processes of its criminalization. Such ambiguity becomes clear if, as proposed in the following pages, political violence and crime are examined through multidisciplinary lenses, particularly those offered by social theory, philosophy, and political science, along with criminology.