

Part 3 Criminal Law and Criminal Justice 444 Part 3 Criminal Law and Criminal Justice Part 3 INSTRUMENTAL AND STRUCTURAL THEORIES OF STATE AND LAW Until the 1960s, criminologists restricted their research to an extremely limited set of questions. They asked what the causes ofcrime were, and how it could be prevented or controlled. The laws that defined what was criminal, and the enforcement practices that defined who was to be labeled as a criminal and punished or rehabilitated were not studied. Although criminologists were aware that different societies had different definitions of crime, they made no systematic attempt to study these differences. That law enforcement was not always evenhanded and that it was sometimes corrupt was well-known to criminologists. But they did not place these topics on their research agenda. Only with the advent of labeling theory in the 1960s did law and its enforcement become important subjects for criminological research. Radical criminologists have devoted particular attention to the criminal law and the administration of criminal justice. Early radical criminology literature took pains to refute the common portrayal of law and criminal justice as something socially neutral, standing above classes and interest groups, and providing protection for all members of society! This conception oflaw was utterly incompatible with the ways law and law enforcement were used in the 1960s to harass people who had adopted unconventional lives, or merely dress, and to repress civil rights workers and antiwar demonstrators . In opposition to this "consensus" perspective on law, radical criminologists substituted a "conflict" perspective, already implicit in some of the labeling theory literature. Here society was depicted as a collection of diverse groups in conflict with one another about a variety ofissues. The more powerful groups used the law and the criminal justice system to advance their own values and interests over those of the less powerful groups (see, for example, Chambliss, 1976). As the Marxist influence was assimilated into radical criminology, some radical Criminologists, such as Richard Quinney, began to write of the ruling class (in a capitalist society this would be the capitalist class) as a preeminent interest group, one that used the law to stifle dissent and to create or reinforce inequalities of wealth and power. These writers pointed out that ruling class power could be seen in the substantive content of the criminal law, which favored the rich and failed to protect the poor and the working class. This lack of protection permitted capitalists to exploit workers, endanger their health and safety, and poison the environment, all with legal immunity.2 The law could also be seen to Criminal Law and Criminal Justice 445 favor the rich procedurally. In its administration, the law could be seen as biased against racial minorities, the poor, and political and cultural deviants . Police discretion in making arrests; prosecutors' discretion in refusing to prosecute, dropping or reducing charges, or going ahead with prosecution; judges' discretion in setting sentences; and parole boards' discretion in releasing prisoners from custody, all operated to the advantage of the wealthy. And the right to an attorney benefited those who could afford superior legal representation more than it benefited others. Significantly, Marxian criminologists (and others) began to see these inequities not as an unfortunate product of prejudice on the part of isolated individuals, but rather as a reflection of the inequalities in power that follow from inequalities in wealth. The majority of people, according to this literature, are passive and powerless victims of law, dece:ived as to their true interests by the ruling class (and its agents, including criminologists) into supporting law enforcement (Michalowski and Bohlander, 1976l. This view of law is characterized as "instrumentalism," because it views law as an instrument or a tool that the ruling class uses on behalf of its interests. I should stress that not all radical criminologists accepted or accept this extreme view oflaw, however. Thus, Chambliss (1974: 38), assessing a great deal of evidence regarding the creation of law, concludes: "The ruling class model falls short ... to the extent that it posits a monolithic ruling class which sits in jurisprudence over a passive mass of people and passes laws reflecting only the interests of those who rule. On the other hand, the importance of the ruling class in determining the shape of the criminal law cannot be gainsaid." In his own work, Chambliss has given great attention to the organizational factors that shape law enforcement (Chambliss and Seidman, 1971). Although many individual laws and many particular acts or...


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