CRIME AND PUNISHMENT

respectively, the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under the criminal law; and the infliction of some kind of pain or loss upon a person found guilty of committing such a misdeed. Most countries have enacted a criminal code in which all of the criminal law can be found, although English lawthe source of many other criminal law systemsremains uncodified. The definitions of particular crimes contained in a code must be interpreted in the light of many principles, some of which are not expressed in the code itself. The most important of these are related to the mental state of the accused person at the time of the act that is alleged to constitute a crime. Crimes are classified by most legal systems for purposes such as determining which court has authority to deal with the case. Social changes often result in the adoption of new criminal laws and the obsolescence of older ones. The purpose of punishing offenders has been debated for centuries. A variety of often conflicting theories are held, and in practice each is followed to some extent. Prison is not the most common penalty for crimepunishment may take other forms varying from capital punishment, flogging, and mutilation of the body to community service, fines, and even deferred sentences that come into operation only if an offense is repeated within a specified time. Juveniles are usually dealt with by courts set aside exclusively for the prosecution of young offenders. The prison systems of most countries are subject to many problems, especially overcrowding, but the recognition by some legal systems that prisoners have rights that the courts can enforce has led to some improvements. The death penalty is now rare in Western countries, although it has been reinstated in some parts of the United States after a period of disuse. The present article treats the definition, incidence, and prevailing theories of criminal activity, the conduct of all stages of criminal proceedings, and various theories and practices of punishment. The material draws principally from common, or Anglo-American, law, with supplementary treatment of other systems. For full treatment of particular legal aspects of crime and punishment, see the articles criminal law; civil law; common law; court; police; and procedural law. For treatment of particular legal systems see Roman law; Germanic law; Scandinavian law; Roman-Dutch law; and Scottish law. Additional reading General coverage of topics in crime and punishment and in criminology is provided by Sanford H. Kadish (ed.), Encyclopedia of Crime and Justice, 4 vol. (1983), which includes extensive, detailed subject bibliographies. See also Leon Radzinowicz and Joan King, The Growth of Crime: The International Experience (1977), an introductory text on crime and punishment; A. Keith Bottomley, Criminology in Focus: Past Trends and Future Prospects (1979), a sociopolitical examination of the explanations of crime; Hermann Mannheim, Comparative Criminology: A Text Book (1965, reissued 1973), a classic; James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (1985), an anthropological study; Herbert L. Packer, The Limits of the Criminal Sanction (1968), a discussion of the application of legal punishment; Arthur L. Stinchcombe et al., Crime and PunishmentChanging Attitudes in America (1980), a report on public opinion; and Samuel Walker, Popular Justice: A History of American Criminal Justice (1980), a brief overview, with an especially good analysis of prisons.Criminal policy considerations are the subject of Johannes Andenaes, Punishment and Deterrence (1974); Elliott Currie, Confronting Crime: An American Challenge (1985), a review of crime policy literature; Harold E. Pepinsky and Paul Jesilow, Myths That Cause Crime, 2nd ed. (1985), an attempt at demystifying crime; Samuel Walker, Sense and Nonsense About Crime: A Policy Guide (1985), an examination of various positions on crime control; James Q. Wilson (ed.), Crime and Public Policy (1978), a collection of essays; and Franklin E. Zimring and Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control (1973, reprinted 1976). See also Francesco Cordasco and David N. Alloway, Crime in America: Historical Patterns and Contemporary Realities: An Annotated Bibliography (1985).Works on crime detection and criminal procedure include Rudolf vom Ende, Criminology and Forensic Sciences: An International Bibliography, 19501980, 3 vol. (198182); Great Britain. Royal Commission on Criminal Procedure, Report (1981); and Christopher J. Emmins, A Practical Approach to Criminal Procedure, 3rd ed. (1985). For works on rehabilitation and sentencing, see Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (1981); Francis T. Cullen and Karen E. Gilbert, Reaffirming Rehabilitation (1982); Andrew Ashworth, Sentencing and Penal Policy (1983); Alfred Blumstein et al. (eds.), Research on Sentencing: The Search for Reform, 2 vol. (1983); Joanna Shapland, Between Conviction and Sentence: The Process of Mitigation (1981); and Nigel Walker, Sentencing: Theory, Law and Practice (1985). Works on capital punishment include Jan Grecki, Capital Punishment: Criminal Law and Social Evolution (1983); and David Pannick, Judicial Review of the Death Penalty (1982). Prisons and parole are discussed in Michael Sherman and Gordon Hawkins, Imprisonment in America: Choosing the Future (1981); Gresham M. Sykes, The Society of Captives: A Study of a Maximum Security Prison (1958, reissued 1971); Marvin E. Wolfgang (ed.), Prisons, Present and Possible (1979); and Andrew Von Hirsch and Kathleen J. Hanrahan, The Question of Parole: Retention, Reform, or Abolition? (1979). Crime victims are the subject of Robert Elias, Victims of the System: Crime Victims and Compensation in American Politics and Criminal Justice (1983); David Miers, Responses to Victimisation: A Comparative Study of Compensation for Criminal Violence in Great Britain and Ontario (1978); and Joanna Shapland, Victims in the Criminal Justice System (1985). The relation between mental health and criminal justice is treated in Norval Morris, Madness and the Criminal Law (1982, reprinted 1984); and Kent S. Miller, The Criminal Justice and Mental Health Systems: Conflict and Collusion (1980).Juvenile delinquency, policy, and justice are discussed in Michael Rutter and Henri Giller, Juvenile Delinquency: Trends and Perspectives (1983, reissued 1984); Paul Lerman, Delinquency and Social Policy (1970); James C. Hackler, The Prevention of Youthful Crime: The Great Stumble Forward (1978); and Lamar T. Empey, Juvenile Justice: The Progressive Legacy and Current Reforms (1979). David A. Thomas The Editors of the Encyclopdia BritannicaOrganized crime is the focus of William J. Chambliss, On the Take: From Petty Crooks to Presidents (1978, reprinted 1982), a lively analysis of the interaction between gangsters, business people, politicians, and labour racketeers; Michael Levi, The Phantom Capitalists: The Organisation and Control of Long-Firm Fraud (1981), a study of the criminal organization and techniques of bankruptcy fraud and of the impact of control measures upon them; Mary McIntosh, The Organisation of Crime (1975), a comparative and historical analysis of the way in which criminal organizations adapt to changes in law enforcement and the economy; Peter Reuter, Disorganized Crime: The Economics of the Visible Hand (1983), an examination of the structure and profitability of crime in the United States; Laurie Taylor, In the Underworld (1984, reissued 1985), a racy account of the London underworld; and United States, President's Commission on Organized Crime, The Edge: Organized Crime, Business, and Labor Unions (1986), a review of the nature and impact of organized crime in America. See also Eugene Doleschal, Anne Newton, and William Hickey, A Guide to the Literature on Organized Crime: An Annotated Bibliography Covering the Years 196781.White-collar crime is examined in August Bequai, White-Collar Crime: A 20th-Century Crisis (1978), a synopsis of the main techniques of fraud in America; Steven Box, Power, Crime, and Mystification (1984), an account of corporate, female, sexual, and police crime in the United Kingdom; Michael Levi, Regulating Fraud: White-Collar Crime and the Criminal Process (1987), an overview of the political and economic impact of fraud and how the British judicial system treats it; M. David Ermann and Richard J. Lundman, Corporate Deviance (1982), an overview of some of the more sensational cases of malpractice by U.S. corporations against owners, employees, customers, and the general public; Gilbert Geis, White-Collar and Corporate Crime, ch. 7 in Robert F. Meier (ed.), Major Forms of Crime (1984), pp. 137166, a summary of the development of research and thinking about white-collar crime; Gilbert Geis and Ezra Stotland (eds.), White-Collar Crime: Theory and Research (1980), an important source; Michael Levi, Fraudulent Justice: White-Collar Crime and the Criminal Process (1987); and Edwin H. Sutherland, White Collar Crime (1949, reissued 1983), a seminal workthe reissue containing the names of corporations not printed in the original edition and an excellent introduction. Michael LeviBooks dealing with international terrorism from the Western viewpoint are Ovid Demaris, Brothers in Blood: The International Terrorist Network (1978); and Claire Sterling, The Terror Network: The Secret War of International Terrorism (1981, reprinted 1982).A general work dealing in part with the philosophical and sociological background of modern terrorism is Walter Laqueur, Terrorism (1977). Comprehensive case histories of two terrorist groups are Jillian Becker, Hitler's Children: The Story of the Baader-Meinhof Terrorist Gang, rev. ed. (1978), and The PLO: The Rise and Fall of the Palestine Liberation Organization (1984). A work describing the attack of terrorism on liberal democracy in the West is Paul Wilkinson, Terrorism and the Liberal State, 2nd rev. ed. (1986). See also Yonah Alexander (ed.), International Terrorism: National, Regional, and Global Perspectives (1976); Christopher Dobson and Ronald Payne, The Terrorists: Their Weapons, Leaders, and Tactics (1982); Edward F. Mickolus, Transnational Terrorism: A Chronology of Events, 19681979 (1980), and The Literature of Terrorism: A Selectively Annotated Bibliography (1980); and Peter Janke and Richard Sim, Guerrilla and Terrorist Organisations: A World Directory and Bibliography (1983). Jillian Becker The Editors of the Encyclopdia BritannicaCrime and punishment in other countries are treated in general in Dane Archer and Rosemary Gartner, Violence and Crime in Cross-National Perspective (1984); George F. Cole et al. (eds.), Major Criminal Justice Systems (1981); Dae H. Chang (ed.), Criminology: A Cross-Cultural Perspective, 2 vol. (1976); and Louise I. Shelley, Crime and Modernization: The Impact of Industrialization and Urbanization on Crime (1981). Specific major world regions are discussed in the following: for Australia, see David Biles (ed.), Crime and Justice in Australia (1977); and Duncan Chappell and Paul Wilson (eds.), The Australian Criminal Justice System, 2nd ed. (1977); and on Africa, see Alan Milner (ed.), African Penal Systems (1969), the leading reference work, which contains comprehensive articles reporting on the penal systems of African countries. There has been little change in policies or provision since then, apart from the consequences of armed coups referred to in the text above. W. Clifford, An Introduction to African Criminology (1974), perceptively analyzes common criminological problems from an African perspective. Alan Milner, The Nigerian Penal System (1972), is a study of one country's provision for crime and punishment. Also useful are the country studies on the law of criminal procedure prepared by the Library of Congress Law Library; these include Carleton W. Kenyon, The Sudan (1984), Mauritius (1983), and South Africa (1982); and Charles Mwalimu, Kenya (1983). Antony Nicolas AllottOn crime in Islamic countries, see M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (1982). See also relevant sections of N.J. Coulson, A History of Islamic Law (1964, reissued 1978), an excellent guide to the elements of Islamic law, giving its sources and their development and explaining how the law has fared in the modern age; Joseph Schacht, An Introduction to Islamic Law (1964, reprinted 1982), the best introduction to the subject in English, dealing with history and development and with legal ideas and including a superb bibliography; Majid Khadduri and Herbert J. Liebesny (eds.), Law in the Middle East, vol. 1, Origin and Development of Islamic Law (1955, reprinted 1984), a collection of essays on topics of Islamic law both traditional and modern; and The Encyclopaedia of Islam, 5 vol. (191336), and a new edition, of which five volumes appeared from 1960 to 1986, the best reference work in English. Specific topics in Islamic law are treated in J.N.D. Anderson, Homicide in Islamic Law, Bulletin of the School of Oriental and African Studies, 13 (part 4):811828 (1951), an excellent article on Islamic law's attitude toward unlawful killing; and M.J.L. Hardy, Blood Feuds and the Payment of Blood Money in the Middle East (1963), a good account of the traditional law relating to blood feuds (tha'r). Ian David EdgeFor China, see Jerome Alan Cohen, The Criminal Process in the People's Republic of China, 19491963: An Introduction (1968), indispensable for an understanding of many current issues and their historical background; Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China: Analysis and Documents (1985); Concepts of Law in the Chinese Anti-Crime Campaign, Harvard Law Review, 98(8):18901908 (June 1985), an outline of the structure of punitive sanctions in China, suggesting a broad theoretical framework for understanding Chinese law, especially criminal law; China, The Criminal Law and the Criminal Procedure Law of the People's Republic of China (1984), in English and Chinese, including several subsequent decisions that amend or supplement the two laws; William C. Jones, The Criminal Law of the People's Republic of China, Review of Socialist Law, 6(4):405423 (December 1980), a readable and insightful exploration of the significance of the promulgation of the Criminal Law; Bao Ruo-wang (Jean Pasqualini) and Rudolph Chelminski, Prisoner of Mao (1973, reissued 1976), a fascinating account of Bao's years of imprisonment in China and the practice of thought reform; Timothy A. Gelatt, The People's Republic of China and the Presumption of Innocence, Journal of Criminal Law and Criminology, 73(1):259316 (Spring 1982), an analysis of theoretical debates in China since 1969 and their practical ramifications; and Hungdah Chiu, Structural Changes in the Organization and Operation of China's Criminal Justice System, Review of Socialist Law, 7(1):5376 (March 1981), which includes an overview of the pre-1977 criminal justice system and an appendix of excerpts from a Peking trial transcript. Donald C. Clarke Detection of crime In most countries the detection of crime is the responsibility of the police, although special law enforcement agencies may be responsible for the discovery of particular types of crime (customs departments, for instance, may be responsible for the detection of smuggling and related offenses). Crime detection falls into three distinguishable phases: the discovery that a crime has been committed, the identification of a suspect, and the collection of sufficient evidence to indict the suspect before the court. Criminologists have shown that a high proportion of crimes are discovered and reported by persons other than the police (such as victims or witnesses), but certain typesin particular crimes that may involve a subject's assent, such as dealing in drugs or prostitution, or those in which there may be no identifiable victim, such as obscenityare often not discovered unless the police take active steps to determine whether these crimes are being committed. This may require controversial methods, such as surveillance, interception of communications, infiltration of gangs, and entrapment (e.g., by making a purchase from a suspected drug dealer). Once the commission of a crime has been discovered, the identification of the suspect becomes essential. The role of forensic science Forensic science has come to play an increasingly important part in the investigation of serious crimes. One of the first significant developments was identification by fingerprints. It was discovered in the 19th century that almost any contact between a finger and a fixed surface left a latent mark that could be exposed by a variety of procedures, the most common being the use of a fine powder. It was accepted in 1893, by the Troup Committee established by the Home Secretary, that no two individuals had the same fingerprints, and this proposition has never been seriously refuted. Fingerprint evidence was accepted for the first time in an English court in 1902. The original purpose of recording and collecting fingerprints was to establish and to make readily available the criminal record of particular offenders, but fingerprinting is now widely used as a means of identifying the perpetrators of particular offenses. Most major police forces maintain collections of fingerprints taken from known criminals at the time of their conviction, for use in identifying these individuals should they commit later crimes. Fingerprints (which may be incomplete) found at the scene of the crime are matched with fingerprints in the collection. According to the British standard, if the sets of fingerprints share at least 16 characteristics, it is considered virtually certain that they are from the same person. Searching fingerprint collections had historically been a time-consuming manual task, based on various systems of classification, but systems for electronic storage and rapid searching of fingerprint collections were developed and implemented in the 1980s. A broad range of other scientific techniques is available to law enforcement agencies attempting to identify suspects or to establish beyond doubt the connection between a suspect and the crime in question. Examples include the analysis of bloodstains and traces of other body fluids (such as semen or spittle) that may indicate some of the characteristics of the offender. Fibres can be analyzed by microscopy or chemical analysis to show, for instance, that fibres found on the victim or at the scene of the crime are similar to those in the clothing of the suspect. Hair samples, and particularly skin cells attached to hair roots, can be compared chemically and genetically to those of the suspect. Many inorganic substances, such as glass, paper, and paint, can yield considerable information under microscopic or chemical analysis. Examination of a document in question may reveal it to be a forgery, on the evidence that the paper on which it is written was manufactured by a technique not available at the time to which it allegedly dates. The refractive index of even small particles of glass may be measured to show that a given item or fragment of glass was part of a particular batch manufactured at a particular time and place. Such information may help to identify the kind of automobile involved in a hit-and-run accident. Computer networks allow investigators to search increasingly large bodies of data on material samples, but the creation of the necessary data bases is a lengthy process. Theories and objectives of punishment The proper objectives of a system of punishment administered by the official organs of the state have been the subject of debate among philosophers, lawyers, and legislators for centuries. A variety of different theories or objectives of punishment have been proposed, some differing only in minor degrees, some fundamentally in conflict with each other. The debate has often been confused by the fact that the same expression is frequently used to denote different ideas, which are not always clearly distinguished from one another; conversely, the same idea may be described by different names, resulting in increased confusion. Retribution In modern judicial systems the term retribution has acquired various shades of meaning. The key principle that all theories of retribution share is that there should be relation between the gravity of the crime and the severity of the punishment. One theory of retribution proposes that punishment is not imposed in order to achieve a social objective (such as law-abiding behaviour in the future by the offender or others who witness his example) but is rather an end in itself. Those who hold this view maintain that punishment does not require justification by intended results or effects. Retribution in this sense does not necessarily imply severity of punishment. According to a second theory of retribution, punishment must be justifiable in relation to the gravity of the offense itself, even though there are other reasons (such as deterrence or treatment) that indicate a severer penalty than the gravity of the offense itself would warrant. Some commentators divide this limiting principle of retribution into two subdivisions. One is the principle that punishment should not be inflicted unless the recipient of the punishment has been found guilty of an offense, and the other is that the offender should not be punished more severely than his offense warrants. The first subdivision prohibits such practices as collective punishment imposed on whole communities or the taking of hostages from the general population, as has been practiced by occupying forces at various times. It also requires that the proper forms of the law be observed before punishment is inflicted. The second limb of the principle assumes that some scale can be drawn equating particular crimes with particular punishments. This is extremely difficult to do without resorting to a crude system of inflicting on the offender exactly the damage he has inflicted on the victim (which is in any event impossible in relation to many modern crimes, which have no specific victim). All that can be done is to draw up a conventional scale relating penalties to offenses; this may allow the severer penalties to be preserved for the graver offenses, but it will not in itself justify the relationship between any particular penalty and any particular offense, except by reference to the conventional values of the scale. Retribution as a limiting principle can be distinguished from retribution as an educational principle, in that in the latter case enactment and implementation of the criminal law, and particularly the imposition of sentences, has the effect of providing a concrete example of society's values, which serves to reinforce those values among those who hold them and to instill them in those who do not. The member of the community who sees his moral values expressed in the judgment of the court in a particular case may feel more strongly committed to them than previously; if he sees them ignored by the court, in the lenient treatment of an offender whose behaviour has violated the fundamental moral principles of society, he may come to question them himself and possibly feel less constrained by them. The principle assumes that a repeated failure of the courts to express such values would lead eventually to moral decline and the dissolution of society. This aspect of retribution must be distinguished from yet anotherthe idea that the official organs of the state must punish offenders in order to satisfy the demand for punishment that is natural among members of the community, particularly among those who are the victims of the crime and who in the absence of official punishment administered by the state are likely to take the law into their own hands and seek revenge by direct violence. A variation on this interpretation of retribution is the concept of expiationthe idea that the offender should undergo punishment in his own interests, to discharge his guilt and to make himself acceptable to society again.