Introduction:
When creating the image of the ‘criminal man’ it becomes necessary to ask oneself whether there exists a definitive model of who is and who is not a criminal. Are lawbreakers anatomically similar? Do they constitute a class of people? In short, is there such thing as a criminal ‘type’? Throughout the next 3 essays I will seek to answer that question in the context of the 19th century American penitentiary. I will revolve around the central claim that throughout the course of the 19th century, the criminal type was identified and re-identified constantly along both biological and social terms. This dynamic definition of the ‘criminal man’ lends support to the fact that there actually did not exist a definitive definition at all. Developments in psychology and science demanded constant re-evaluation of what constitutes a criminal both into and out of the 19th century. In this essay, we will look into the history of criminology and how it had developed into the 19th century. From there we will enter the century with the end of classical and the beginning of positivist theory and explore how the 1800s saw developments in biological explanations of who the criminal man is. These explanations transformed themselves throughout the course of this time period and eventually fed into the 1900s with the beginning of social explanations to crime.
Demonological Theory:
Who is the criminal? Demonological theory would tell you he is a man possessed. This medieval definition painted him as a sinner taken over by demons that work to manifest in him the evil root of humanity. Crime here is seen as mystic and felonies as mortal sins. To medieval societies, the Old Testament seemed to support this notion that humans are innately sinful with the concept of ‘original sin’ as inherited by Adam. If criminals are simply human beings that cannot control their demonic possession, then they are subject entirely to the supernatural. For this reason, punishments to criminals often were based on divine interference. Accused witches during the Salem Witch Trials would be put to dangerous tests and if they survived them, then god wanted them to live.
This theological approach to crime has mostly disappeared out of society with the coming of the Enlightenment, which stressed through the works of Locke, Hobbes and Rousseau that man has ‘natural rights’ and reason should be used as a guide to regulation of human conduct.[1] In his influential Enlightenment piece, De l’Espirist des Lois (The Spirit of the Laws), Baron Montesquieu emphasizes the presumption of the innocent and that “every punishment which does not arise from absolute necessity is tyrannical”,[2] a concept that Cesare Beccaria would build on in the formation of the classical school of thought a few decades later.
Classical Theory:
With the coming of the 18th century Enlightenment and the introduction of the concept of psychological individualism, criminal theorists adopted the idea that the criminal man may not be subject to demonic possession. He was instead, a rational and free willed human being responsible for his actions.[3] Prior to classical theory, European justice systems were typically cruel and arbitrary in punishment techniques. Gone from medieval society was the law of reciprocity first introduced in Hammurabi’s code centuries before.[4] In his work, Tratto dei Delitti e delle Pene (Essay on Crimes and Punishment), Cesare Beccaria built on the works of Voltaire, Montesquieu and Diderot to establish his theory that punishment should be “public, prompt…[and] proportionate to the crimes, dictated by laws.” Because potential criminals had no way of anticipating the consequence of their actions, punishment had very little deterrent value. It was for this reason that punishment could often increase crime. To Beccaria, the only justified rationale for laws and punishment was utility.
Beccaria’s contemporary Jeremy Bentham built off his idea that laws should provide “the greatest happiness shared by the greatest number”. It is using that principle that he developed his theory of “utilitarian hedonism” based off the ‘pleasure principle’ that assumes the main purpose of life is to maximize pleasure while minimizing pain. Criminals here are seen as rational in making decisions and will make them so long as they derive more pleasure from them than pain.[5] Thus, laws should tip this scale in a way that makes crime less pleasurable; a strategy Beccaria calls ‘general deterrence.’[6] Jack Katz’s supports this idea empirically with his interviews of career criminals who find crime as much more pleasurable as a thrill than the fear of punishment.[7]
To the classical theorist the criminal man was not so much possessed as he was rational. Like any rational man, he sought pleasure over pain and would commit a crime based off that idea. Burglars, for instance, would chose to commit a crime based off how they think they will be punished or if they can see committing a crime as more beneficial to them than not. The criminal was no one distinct; he was simply a man acting in his best interest.
Classical Critiques/ Neo-Classical Theory
The 1810 work of Romilly illustrates how the work of classical theorists bled into the 19th century as part of the Neo Classical school of thought. Romilly supports Bentham, stating that man is rational but “it’s the desire of the incentive which is the cause of every crime,” that “no crime would exist if it were certain that no good would come out, only evil.”[8] Neo classical thinkers accept Classical Theory but qualify it in the 1800s to account for mitigating circumstances that may inhibit free will. This change was prompted by the late 18th century political revolutions that resulted in liberal governments adopting Beccaria’s policies in their justice system. The post-revolution French government found they worked well except for one concept- that each person should be punished equally for the same crime. This principle was impractical when put into practice because these liberal governments could not punish a career criminal the same way they would a child for the same crime. To do so would be counterintuitive to classical aims of promoting a fair justice system. Generally, Neoclassical school of thought did not diverge much from Classical Theory, however, but it did take into account the social and cultural contexts of a crime when assessing punishment. To the neoclassicist, the criminal man was a rational man who acted in his best interest, but could be compromised by his situation.[9]
Loss of Dominance of Classical/Neoclassical Theory: [1800]
It is this understanding that classical theory is not sufficient to explain causes of crime that biological positivism was able to emerge and dominate the intellectual scene of criminology. The theory, which contends that criminals exhibit free will and act on it, placed the blame for crime on the society that made unlawful behavior seem like the rational choice. But as the century progressed, theorists began to believe that the blame for crime should be placed on the shoulders of individuals, not societies. Some participate in crime because of irrational thinking, poor impulse control or low mental capacity. Classical theory does not account for this.
Individualism spreads to America:
In the 19th century, the American socio-political sphere found itself permeated with a new kind of social science, that of psychological individualism. This explanatory paradigm of human behavior stressed the importance of individual responsibility and discounted the effect of a person’s environment on their behavior. Sir Henry Maine explained the concept most concisely when he said, “we seemed to have steadily moved towards a phase of social order in which all… relations arise from the free [will] of individuals.”[10] In short, 19th century American culture ‘marked a turn from feudal ideas of collective doctrines of culpability to locating responsibility within individuals’.[11] This idea that the human being, as an individual is responsible for his own behavior turned attention away from possible situational and behavioral causes of criminality as was introduced by neoclassical school of thought. All action was seen rooted in the human brain and psyche. Thus if autonomous individuals are ‘seen as the causal locus of their own behavior’, and that behavior is undesirable (in the case of crime), than the law must focus on punishing, treating or changing people not the behavior. The most obvious implication of this individualism was that there exists a kind of person who would disobey the law, thus creating the possibility for the defining of a criminal type. While in the past this psychological individualism (belief in human’s free will) was used to justify classical theories of crime, its adoption in the United States from Europe led to a rugged individualism that lent support biological positivism. The idea that rational people act in their best interests grew to mean that people who committed crimes were irrational. This irrationality, as positivists would explain it, meant that the ‘criminal man’ was an irrational, and flawed person.
Biological Positivism:
Phrenology
It is in this historical context that phrenology was popularized. Phrenology of the 19th century was the study of the skulls contours as an indication of the brains mental capacity. Through the work of Franz Joseph Gall, the brain was identified as having distinct functional ‘organs’ that were each directly responsible for aspects of human behavior.[12]
Thus, crime could be a result of dis function in one of these ‘organs’ of the brain. Belief in phrenology was not new to American academic circles, with public figures such as Jefferson, Daniel Webster, Horace Mann, and Walt Whitman endorsing the idea. This was because the science’s popularization had much to do with how consistent it was with the ‘rugged individualism’ of the times. The idea that a person could be defined as an individual based on their brain structure was appealing in an age where many sought to detach themselves from the monotony of groups. Curtis suggests, “In a period when the common man began to feel within him the stir of power and ambition, phrenology had much to offer him” (p. 342). And Bakan (1966) has suggested that during this period the “common man” in American society began to experience “a genuine vacuum within him concerning his identity” and that the ” science of phrenology gave the [him] answers concerning who he was”. The appeal to individualism is especially ironic when considering just how strongly phrenology stressed biological determinism, or the idea that a human being is innately linked to their brain in a way they cannot control. Individualism here arises, however, when you looked to the works of many phrenologists such as Benjamin Rush that stressed ones biological predispositions could be changed through individual effort. In fact, many phrenologists were rooted in this belief and defined themselves as political liberals. They opposed capital punishment and supported penal reform and indeterminate sentencing.
Degeneration School of Thought
After its peak in 1850, phrenology began to fade in favor of the ‘Degeneration’ school of thought [1870-1910]. It drew from the works of early phrenologist Benjamin Rush who argued that criminals could induce their own ‘moral depravity’ (and thus, brain dis-function) through morally damaging actions such as gluttony and habitual drunkenness. Driven by advances in the science of inheritance, the degenerationists redefined the criminal man of phrenologists from someone product of damage in his brain’s ‘organs’ to someone product of damage in his ‘germ plasm’, a substance that was seen as a transmitter of genetic traits before the discovery of genes. Degenerationists used the abstract concept of ‘germ plasm’ to explain why lawlessness may permeate through generations. They argued that morally degraded individuals were the criminals of society, and could be identified anatomically because moral degradation weakened their ‘germ plasm’. Studies on ‘bad’ families lent support to the idea that this ‘weakened germ plasm’ induced by degeneration could be passed on to offspring. This method was most notably explored by Richard Dugdale’s study on the Juke family, a rural clan who produced over 1200 criminals over 7 generations. This idea that lawlessness could be inherited throughout society was alarming to policy makers, however degenerationists believed that one could strengthen germ plasm by leading more upright lives. Inheritance, to them, was not fixed and could be changed so as to better generations to come.
Criminal Anthropology
A few years later, Criminal Anthropology school of thought built off this idea in light of the works of the science of evolution [1880-1910]. Evolution suggested continuity in human form and inheritance, so if your father were a criminal you’d inherit that criminality by virtue of being his son. Unlike the thinkers before them, however, criminal anthropologists did not believe that man could be changed into or out of criminality. People are ‘born criminals’, they argued.
They were said to form a distinct physical type, with twisted bodies, minds, and morals. ‘Low-browed, long-armed, and apelike in appearance, they are in fact throwbacks to an earlier phase of evolution, primitives who are incapable of conforming to the laws of civilized societies.’ No longer could we define the criminal based off his skull contours or by the strength of his germ plasm, it was now believed that the criminal looked distinctively different from the non-criminal.
For many years, efforts to identify the criminal man along physical terms were made, with author Cesar Lombroso adding to the search in his studies on how the criminal type is a physical aberration from the ‘normal’ type. Many prisons implemented careful and meticulous systems of identification to further their search for the ‘criminal man’ with little success. As research was done and little empirical evidence backed the claims of these anthropologists, Lombroso’s ideas waned in importance. In fact, by the turn of the century, the search for physical anomalies of the criminal turned towards to social ones.
Social Theory:
As biological positivist theories developed out of the 19th century they waned in favor of more social explanations to criminology. These social theories were in no way fully developed by the end of this century, just introduced as support to the works of late 1800 criminal anthropologists and Degenerationists. Consideration of social causes opened the door for explanations of crime that take into account the role of external factors and their weight in defining the ‘criminal’. In fact, by the mid-1800s most scientists believed that the degeneration of criminals that theorists has predicted was caused by bad environments. Most famously, in his study on the Juke family, Richard Dugdale advanced the criminal anthropologist idea that people are born criminals while also accounting for the circumstances of the family and how it influenced their fate. He contended that good environments could transform people into worthy citizens in just 3 generations. While social theory was not developed as its own brand of thinking at this time, it did help account for the role that someone’s upbringing may play in their criminal tendencies.
When looking to research before the 20th century, there did not exist a definitive model for who is and who is not a criminal- the definition changed depending theological, philosophical, and scientific developments. The criminal man entered the 1800s as someone motivated by his own rationally based perceptions of what’s good and bad. Classical theorists defined him as non-distinct from any other person, and thereby difficult to identify phenotypically. However, as the century progressed and the understandings of human psyche developed, serious limitations in Classical theory were realized. Its inability to account for the biological predispositions that may play a role in the causes of crime lead to its decline in favor of more positivist theories of criminology that defined the criminal as someone phenotypically distinct. It is for this reason the criminal could be identified and discriminated against by the mid 1800s. However, as the century came to a close and positivist theories developed further, social explanations of crimes began to emerge as support to criminal anthropologist and degenerationist theories. These social explanations would go on to develop into a full-fledged school of thought in the 20th century.
[1] We use the term ‘mostly’ here because theological approaches to criminal justice are still apparent in religiously run states such as modern day Iran. Many criminals under Ayatollah Khomeini are still subject to punishments based on the ‘wrath of god’.
[2] (Montesquieu 1949)
[3] (Craig 1982)
[4] Hammurabi’s Code, the first known codification of laws, established the ‘eye for an eye’ principle that saw the first attempt at creating proportionality between crime and punishment. This law of reciprocity was lost with demonological criminality but was later built on following the Enlightenment.
[5] (Schofield 2006)
[6] (Beccaria, 1764)
[7] (Katz 1988)
[8] (Romilly 1810)
[9] Craig Hemmers and Stephen G Tibbets go into detail about the emergence, development and fall of classical and neoclassical theory in their book “Criminological Theory: A Text/Reader”
[10] (Haney 1982, pg 194)
[11] (Haney pg 194)
[12] (Gall 1798)