A Sociology of Crime

Hester and Eglin’s A Sociology of Crime has an outstanding reputation

for its distinctive and systematic contribution to the criminologi-
cal literature. Through detailed examples and analysis, it shows how
crime is a product of processes of criminalization constituted through
interactional and organizational uses of language.
In this welcome second edition, the book evaluates the current
state of criminalization globally and asks what sociology’s various
perspectives have to say about it. It maintains and develops its critical
and subversive stance but greatly widens its theoretical range, includ-
ing dedicated chapters on gender, race and class. It now also provides
questions, exercises and suggestions for further reading alongside its
detailed analysis of a new set of contemporary international examples.

Stephen Hester was Professor of Sociology at Bangor University,

UK. He retired in 2009, but continued to be active in ethnomethodo-
logical and conversation-analytic research. He authored, co-authored
or co-edited eight books and more than 40 articles and book chapters,
notably An Invitation to Ethnomethodology (2004) and Orders of Ordinary
Action (2007), both with David Francis, and Descriptions of Deviance,
a book on membership categorization analysis left unfinished at his
untimely death in April 2014.

Peter Eglin is Professor Emeritus of Sociology at Wilfrid Laurier

University in Canada. He has been Humboldt Research Fellow at
the University of Konstanz and Visiting Research Associate at the
Centre for Socio-Legal Studies at Wolfson College, Oxford. As a visit-
ing professor he has taught at the University of Toronto, Northumbria
University and Bangor University. His work has been translated into
French, Italian, Spanish and Japanese. He has contributed chapters to
the Handbook of Sociology and Human Rights (2013) and the Routledge
Handbook of Language and Culture (2014). He wrote extensively with
Stephen Hester, including the monograph The Montreal Massacre (2003).
A Sociology of
Crime
Second edition

Stephen Hester and

Peter Eglin
First published 2017
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2017 Stephen Hester and Peter Eglin
The right of Stephen Hester and Peter Eglin to be identified as authors
of this work has been asserted by them in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilized in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Eglin, Peter, author. | Hester, Stephen, author. | Hester, Stephen.
A sociology of crime.
Title: A sociology of crime / by Peter Eglin and Stephen Hester.
Description: Second edition. | New York : Routledge, 2017. |
Revised edition of the authors’ A sociology of crime, 1992.
Identifiers: LCCN 2016050712| ISBN 9781138960473 (hardback) |
ISBN 9781138960480 (pbk.) | ISBN 9781315660318 (ebook)
Subjects: LCSH: Crime—Sociological aspects. | Sociology—Methodology.
Classification: LCC HV6025 .E35 2017 | DDC 364—dc23
LC record available at https://lccn.loc.gov/2016050712

ISBN: 978-1-138-96047-3 (hbk)

ISBN: 978-1-138-96048-0 (pbk)
ISBN: 978-1-315-66031-8 (ebk)

Typeset in Bembo
by Keystroke, Neville Lodge, Tettenhall, Wolverhampton
For Sociology
 Contents

List of figures and boxes ix

Preface xi

1 Sociology 1

PART I
Positively undertaken 39

Introduction 41

2 State 46

3 Society 84

PART II
Interpretatively turned 113

Introduction 115

4 Claims-making 124

5 Defining the situation 151

6 Practical reasoning 198

vii
 CONTENTS

PART III
Politically challenged 239

Introduction 241

 7 Class 247

  8 Gender 316

 9 Race 353

PART IV
Epistemically undermined 389

Introduction 391

10 Power 397

11 People? 433

12 Conclusion 473

References 480
Index 554

viii
 Figures and
boxes

Figures
1.1 Members of the public admitting to lawbreaking 5
1.2 Creating crime and criminals 34
5.1 Four types of deviant behaviour 190
8.1 Data appendix 342–3

Boxes
  1 Philosophical tributaries of the interpretative turn 120
  2 One criminologist’s theoretical journey 155
  3 Two-set classes or two-class sets 245
  4 Marx and Engels on “globalization” 248
  5 Reiman on Marx’s analysis of criminalization in capitalist society 249
  6 Capitalism as a totalizing process 256
  7 A note on structural Marxism 259
  8 Matoesian on “detailing-to-death” in a rape trial 346
  9 Chambliss on race and the War on Drugs 365
10 “The accumulated evil of the whole”: Afghanistan 2001–2016 436
11 Politics or crime? 445
12 When Canada used hunger to clear the West 456
13 Canadian government withheld food from hungry aboriginal
kids in 1940s nutritional experiments, researcher finds 458

ix
 Preface

This book embodies a preposterous idea. It is an academic textbook,

with an attitude about a field of study, looking for readers. The field
is crime, the academic discipline is sociology and the attitude is that
of ethnomethodology. The book is written for students of sociol-
ogy, inside and outside the academy, who have an interest in crime.
Who doesn’t have an interest in crime? – that’s the question. Crime
is everywhere. It’s on all the time. But who reads an academic text-
book designed for a course of study about it? Who now reads such a
thing? Do you, dear reader? Actually read it? Former Prime Minister
of Canada, Stephen Harper, (in)famously declared that crime – he
was referring to the 1,100 cases of missing and murdered aboriginal
women – is not a sociological phenomenon, and that this is not
the time to be “committing sociology.” Well, really, what does he
know?!
This book started out more than a generation ago as an accom-
paniment to a set of 12 television programs for a distance education
version of a second-year classroom course on criminology at Wilfrid
Laurier University. Hester and I had been teaching criminology for
years by that point, he mostly in the UK, while I taught in Canada.
Distance Education was taking off, particularly in sociology, and we
took the bait. The first edition was published in 1992. It sold well
enough that at three points in the 2000s, a new edition was mooted,
but for various reasons, including a bout of ill health on my part, never
came to fruition. An Italian edition had appeared out of nowhere in
1999. In October 2014, the call came again, but by then Steve had,
tragically, died at the age of 66 the previous April. You can find his
obituary online where his impressive contributions to sociology are

xi
 PREFACE

duly noted. I agreed to take on the new edition, a proposal was

submitted, reviewed and accepted, and here we are.
When a second edition was first being proposed, Steve wrote to
me in February 2004 as follows: “In short, if we were to do anything
with the book at all then I’d be in favour of doing an entirely EM/
CA [ethnomethodology/conversation analysis] rewrite, in which we
not only present exemplificatory studies but engage theoretically and
methodologically with the mainstream.” On the third go, in January
2010, he wrote: “So, what I am suggesting is not just a more histori-
cally oriented book but a rather more argumentative one with, in
addition to exposition of previous approaches, more emphasis on
where we stand.” Steve was particularly enamoured with Harvey
Sacks’s work on membership categorization analysis (MCA). The
lectures and studies by Sacks on and in MCA were his passion, and
though he never completed it, his book on Descriptions of Deviance,
devoted to MCA, can now be accessed on the legacy website of
the International Institute for Ethnomethodology and Conversation
Analysis (IIEMCA). For the crime book, he particularly wanted to
get past the constructionist position we had adopted as the overall
viewpoint of the first edition. Accordingly, I have tried to take him at
his word, and radicalize in an ethnomethodological sense what was
already the “subversive” tradition of anti-correctionalist sociologies
with which we had aligned ourselves in the original edition. This is
what I mean by the “attitude” the new edition has.You can catch it
in its pure version in the papers presented at the workshop on radical
ethnomethodology held at Manchester Metropolitan University in the
UK on 22–23 June 2016, a couple of which are cited herein.
Each of the substantive chapters (2–11) of the book deals with
a particular theoretical perspective on crime and criminalization,
and each of them (except for Chapter 6) has more or less the same
three-part structure consisting of theoretical exposition, exemplary
studies and grammatical respecification. The theory and examples
are the textbook, while “grammatical respecification,” in that over-
heated phrase, contains and conveys the “attitude.” If you don’t like
the “attitude,” you can just read the “textbook.” That would be a
shame, though, because if the book has any news to report it is to be
found in the grammar sections.
While a substantial part of the content of the first edition has
been retained, some has been replaced and more has been added.

xii
PREFACE

To the extent possible, there has been an attempt to combine an

historical and methodo-epistemo-logical ordering of the chapters.
To assist in this ordering, the text has been divided into four parts,
and introductions written for each part. Gender and race, which had
been submerged within the “structural-conflict perspective” in the
first edition, have been given their own chapters (8 and 9) as part of
“emancipatory theory.” Poststructuralism and postmodernism, which
were absent from the first edition, have a whole part (IV) to them-
selves in this one. Postcolonialism is also duly recognized (Chapter
11). The whole of the text has been re-written.
With Stephen gone, the question arises – who is the author of this
book? Well, it’s both of us.You will find the pronoun “we” through-
out the text. Just what it is doing, including who it is referring to, is
itself an interesting question, but not one there is the space to pursue
here. Suffice it to say that it has two principal uses: one to refer to
“we” the members of society (I know, according to emancipators and
post-als, this is an “ideological” we, but then, what do they know?!);
and one to refer to Steve and me. But sometimes it refers to “Steve”
and me, sometimes to the royal me, and sometimes to me and you,
dear reader, as co-producers of the intelligibility of this text. On
occasion I have used “the author” or “Eglin” for a particular purpose.
In the last chapter, I speak in my own voice and so, like here, use
“I.” Throughout I trust you to find, through the standard members’
methods of sociological inquiry, which use is which.
I wish to thank Tim Berard, Dave Francis, Gavin Fridell and Max
Travers for reading and helpfully commenting on parts of the text,
as well as the following colleagues who have assisted me in various
ways: Jeffrey Aguinaldo, Kieran Bonner, Jeff Coulter, Hazel Croall,
Paul Drew, Thomas Gabor, Christian Greiffenhagen (for last-minute
provision of an important paper), Mike Lynch, Michael Manley,
Mihnea Panu, Herbert Pimlott, Dorothy Smith, Rod Watson and,
especially, Patrick Watson, whose collegiality and ready willingness to
help out where he could were invaluable. I particularly want to thank
Yvan Clermont (Director, Canadian Centre for Justice Statistics) for
providing some of the material in Chapter 2, and journalists Tim
Bousquet, Pete McMartin and Gordon Sinclair Jr for their help with
particular inquiries. At Wilfrid Laurier University, librarians Dawn
Matthew, Amy Menary, Cindy Preece and Deb Wills were ever at the
ready to help me get access to works that were not readily available.

xiii
 PREFACE

Special thanks go to Wallace Shawn for once again trying to expedite

my obtaining permission to reprint some words from his extraordinary
play, The Fever.
Most of the book was written in Halifax, Nova Scotia, where my
wife had one of those nine-month, limited-term, contract positions
that the neoliberal university system is using to crush the power
of the faculty and thereby further reduce the university that Bill
Readings 20 years ago (1996) described as already “in ruins.” That
aside, I am grateful to Augie Westhaver, Chair of Sociology at Saint
Mary’s University, for facilitating my getting “Visiting Researcher”
status so that I had electronic and physical access to library materials
on the same basis as faculty there. In Halifax we were buoyed up by a
wonderful set of colleagues who became firm friends – Kate Ervine
and Gavin Fridell, Judy and Larry Haiven, Rylan (and Hao) Higgins,
and Nuri (and Hatice) Gultekin who were visiting from Turkey,
plus all their great kids. A special nod goes to the crew of baristas
at Humani-T Café on South Park Street. In Kitchener-Waterloo,
where we live when we are not off somewhere else, I would like to
thank Gloria Chapman, my dear mother-in-law, for letting me take
over part of her basement so as to keep writing for six weeks in the
summer of 2016. Here’s a shout-out too to Mel and Nina and co. at
Balzac’s coffee shop at the Tannery in Kitchener.
The final chapters of the book were written under pressure to
finish in the Fall of 2016 in an apartment in Zacatecas, Zacatecas,
Mexico where Debbie had been awarded a scholarship to pursue
research at the Universidad Autónoma de Zacatecas Francisco García
Salinas. I particularly wish to acknowledge the very kind and cour-
teous reception accorded me as the just-retired “spouse” by Raúl
Delgado Wise (Head, Department of Development Studies) and
colleagues Mark Rushton and Darcy Tetreault.
For passing on her knowledge of the court system in Toronto, I
thank Sukhpreet Sangha. For their interest and support, I thank the
many members of the Chapman (Ruiz-Chapman) family. I especially
thank Ralph Gastmeier for his constant friendship and camaraderie.
For permissions to reprint, I thank Mohamed Elmasry for part
of my “State-organized crimes in Afghanistan” from The Canadian
Charger, 5 November 2013 (Eglin 2013a); James Daschuk (2013a) for
“When Canada used hunger to clear the West,” The Globe and Mail, 19
July 2013; The Canadian Press for “Canadian government withheld

xiv
PREFACE

food from hungry aboriginal kids in 1940s nutritional experiments,

researcher finds,” by Bob Weber, The Globe and Mail, 16/17 July 2013;
Pearson Education for Figure 3.1 “Creating Crime and Criminals,”
from p. 41 of Crime and Society in Britain, second edition, by Hazel
Croall, © Pearson Education Limited 2011; University of Toronto
Press for Table 1 from p. 55 of Everybody Does It! by Thomas Gabor, ©
University of Toronto Press Incorporated 1994; Grove/Atlantic (US
rights) and Faber & Faber (UK and electronic rights) for an excerpt
from The Fever, © 1991 by Wallace Shawn. Used by permission of
Grove/Atlantic, Inc. and Faber & Faber. Any third party use of this
material, outside this publication, is prohibited.
My thanks for their editorial assistance also go to Gerhard
Boomgarden, Alyson Claffey (especially for the cover), Catherine
Gray and Peter Lloyd at Routledge, and to Helen Lund (for scrupu-
lous copyediting), Kelly Winter, Maggie Lindsey-Jones, Sue Harper
and the rest of the production team at Keystroke.
Debbie Chapman is the most determined and courageous person
I know.You will have to take my word for it. I will say this, though.
She has no time for police (especially on horseback), the military
or any other state control agent. She despises the ubiquitous use of
such clichéd phrases as “it’s all about choices” and “we need to have
conversations,” particularly in political contexts. She fumes over gov-
ernments’ recourse to private consultants and the micro-managing
of so-called public “consultations.” She’s a committed socialist, and
a fierce critic of individualized or corporate or NGO-ized solutions
to social problems. See, for example, her critique of international
service learning in Third World Quarterly (2016). She’s a loyal ally and
defender of the exploited people of the global South. She is, quite
simply, my inspiration. Thanks to her, I was able to get through the
writing of this new edition. Thanks to her, life is good.
Finally, this new edition would never have been begun at all were it
not for the agreement, encouragement and support of Steve’s widow,
Sally Hester, and Steve’s long-time collaborator and fast friend, Dave
Francis. I have tried my best, guys, to make it worthy of him.
Peter Eglin
17 December 2016
Zacatecas, Zacatecas, Mexico

xv
 1 Sociology

MEAT IS MURDER

Introduction
It doesn’t matter where we start, so let’s jump right in. Crime is
readily at hand. Check the news feed on your cell phone. What
crime stories are being reported there? On New Year’s Eve 2015, the
Flipboard daily edition had the following headlines, among others:
“Security Raised at New Year Celebrations Amid World Terror
Fears”;“Ramadi residents fleeing ISIS:‘They want to use us as human
shields’”;“TCU QB Boykin charged with felony assault, suspended”;
“Bill Cosby Accuser Beth Ferrier on His Arrest for Decade-Old
Alleged [Sexual Assault].” In August 2016, Canadian supermarket
checkout stands announced “Canada’s New Crime Wave” on the
front page of Maclean’s (“Canada’s National Magazine”). In the last
days of the 2015 Canadian federal election campaign, as this writ-
ing was under way, the national news spoke of radio and print ads
put out by Prime Minister Stephen Harper’s Conservatives targeting
Justin Trudeau’s Liberals, saying that the latter would, if successful in
winning the election, make marijuana available for sale to children
and would bring prostitution in the form of brothels to residential
neighbourhoods.1 The ads were being released in areas of the country
with large South Asian populations.
The early part of the election campaign was dominated by the trial
of Mike Duffy, a Harper-appointed senator, former journalist and
Canadian national media celebrity who, in July 2014, was charged
with 31 offences including bribery, and fraud and breach of trust in

1
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relation to C$90,000 in expenses that he claimed inappropriately as

a senator.2 Throughout the campaign, calls persisted for a national
inquiry into “missing and murdered aboriginal/indigenous women.”3
The end of the campaign was distinguished by the display of tough-
on-crime Harper holding a rally fronted by the Ford brothers.
Rob Ford was the mayor (and thereby chief magistrate) of Toronto,
known world-wide for his admitted addiction to crack cocaine; he
had been investigated by police.4 One could multiply such examples
with equivalent cases from the United States, the United Kingdom,
Australia and New Zealand, indeed from virtually every country in
the world.
Local news in Halifax, Nova Scotia, where the writing of this book
was being done, was reporting the testimony of a police officer at the
murder trial of Dennis Oland, charged with killing his father, Richard
Oland.The family were founders of Moosehead Beer.The officer was
saying that he was urged to lie on the stand by a more senior officer.5
Those subscribing to truthout.org would have found in their email
inbox the following blurb heralding one of the articles in this daily
news digest: “According to a new lawsuit, two psychologists earned
more than $80 million for developing a set of brutal interrogation
methods and supervising their use on detainees in secret overseas CIA
prisons, which led to the death of one man and the traumatization of
two others”; they were accused of being in a “‘criminal enterprise’
with [the] CIA over torture.”6
You can confirm the ready availability of crime by going to the
website of your local newspaper or radio or TV station and scrolling
through the headlines, or by browsing the channel guide on your
television. Crime stories and crime shows abound (although they
might more appropriately be called “police” shows). The business
pages of the major dailies are a particularly rich source, while the
big chain bookstores still display a shelf called “True Crime.” You
can ask yourself whether crime has or has not been the topic of at
least one conversation you’ve already had today, whether in person,
by phone or text or online. Perhaps it was about that assault at the
university residence, or the episode of some crime show or movie
you watched last night. Or perhaps the last book you read for pleas-
ure was a “police procedural,” a crime thriller or detective story.You
may be able to recount details of the last mass shooting reported in
the United States, recall the names of notorious serial killers or put a

2
1: SOCIOLOGY

face to the last African American shot dead by a white police officer
in the land of the free; US police killed 1,126 people in 2015, killing
blacks at twice the rate as whites.7 You know how to call the police,
and may well have seen the inside of your local courthouse.You are
familiar with the uniformed security officers you see everywhere,
who look like police and have quasi-police powers, not to mention
the security cameras at every turn. Where you live may be a “neigh-
bourhood watch” community, and you may have received a recorded
phone message informing you of some local crime concern.You lock
your doors at night.You will recognize police cars and police officers
(on foot, on bikes, on horses, on motorcycles) when you see them
on the streets and highways you frequent, or at televised funerals for
“fallen officers,” at memorial parades and ceremonial events or dur-
ing seasonal roadside “blitzes” for drinking and driving.You may have
been kettled (contained) by them at a protest or demonstration.You
may recall the visit of a police officer to your school or your child’s
school. You will probably have an opinion about the desirability of
capital punishment, the criminalization of abortion, the legalization
of marijuana (see also Potter and Kappeler 1998: vi). You may have
strong feelings about terrorism, violent crime, “pedophiles,” gangs,
the War on Drugs, cyberstalking, solitary confinement, drinking
and driving, sexual assault, criminals who “get off easy,” mandatory
minimum sentences, whether “Black Lives Matter,” home invasions,
Oscar Pistorius.8 These feelings may have been stoked by the election
platform of one or other of the political parties vying for your vote
recently. The notice board in the shop where you bought coffee this
morning may have sported a poster like this one advertising a play:
“Hard Boiled: A Sal Dali Crime Tale.” Or, on the surface of the paved
trail where you run each day, there may look back at you in stark,
hard-to-remove capital letters the slogan, “MEAT IS MURDER.”
Moreover, you yourself may have been the victim of crime. Your
house or car may have been broken into, your purse snatched, your
corner store held up, your local bank robbed, your credit card or other
form of identity stolen, your property vandalized, your person assaulted,
your village or town destroyed. If it hasn’t happened to you, you will
probably know of a relative, friend, neighbour or local resident who has
been victimized by such an act, or you will have seen it on the news.
Such an experience may, in fact, have prompted you to be inter-
ested in crime, interested enough to have picked up or uploaded

3
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this book, perhaps even bought a copy of it (thank you). In that

case, you are probably taking a university course with crime, law or
justice in its title. And the course may well be part of a program in
criminology or criminal justice or sociology or legal studies of the
sort that is popular in colleges and universities. Such a course may
afford you contact with one or another component of the criminal
justice system (CJS) – the laws, police, courts, probation offices and
correctional institutions in all their various forms.You may be taking
such a course while in prison.You may be familiar with institutions
ancillary to the CJS such as crime prevention councils, legal aid, vic-
tims’ and other legal services, youth or community justice initiatives,
shelters for battered women, rape crisis centres, organizations such
as Citizens Concerned With Crimes Against Children, ex-offenders’
support organizations such as the Elizabeth Fry and John Howard
societies, advocacy groups such as Mothers Against Drunk Driving
(MADD) or Victims of Crime. Moreover, you are almost certainly
an offender yourself.
“What? I’m not a criminal,” you say. Well, think about it for a
minute. There’s all the underage drinking you’ve done, whether or
not you were drunk and disorderly in public or drove (a car or boat)
under the influence of alcohol or drugs or without a licence. Unless
the criminal law has been recently changed where you are, then your
possession and use of marijuana and/or its derivatives in other than
very small quantities is almost certainly a criminal offence, not to
mention any dealing you may be involved with. But if you are not
smoking dope, you are most probably illegally downloading copy-
righted material from the internet, which is called piracy.Then there’s
the impersonation or fraud you committed with the fake ID, the
money or goods you stole from work, the tax evasion you practise
or are party to – you know, being paid by your family’s business for
work you never did so as to lower your parents’ taxes. One of the two
authors of this book was caught travelling on a French train with his
step-daughter’s expired Eurail pass. Some of you will have committed
more serious offences such as assault, including, if you are male, sexual
assault, or theft or causing property damage. If we add in what are
sometimes called quasi-criminal offences, notably breaches of your
jurisdiction’s version of the Province of Ontario’s Highway Traffic
Act, which includes speeding and other traffic offences, then virtually
nobody escapes the label of criminal (see Tisdale 1998).

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1: SOCIOLOGY

Students in Eglin’s sociology of crime course, in informal surveys

conducted more or less annually through the 2000s, reported their
participation in crime at the following roughly average rates (for
selected offences): drinking and driving, 40 per cent; drinking/drunk
in public, 65 per cent; drinking under age, 85 per cent; indecent
behaviour, 50 per cent; disturbing the peace, 30 per cent; theft, 60 per
cent; damage (vandalism), 40 per cent; forgery, 55 per cent; piracy, 65
per cent; drug offences, 70 per cent; assault, 15 per cent. The point
was made most famously in the table reproduced in Figure 1.1 from
Wallerstein and Wyle’s 1947 US study as reprinted in Thomas Gabor’s
(1994) appropriately named book Everybody Does It! Crime by the
Public, in which he documents the point at length.

Figure 1.1  Members of the public admitting to lawbreaking

Source: Gabor (1994: 55). Original source: Wallerstein and Wyle (1947: 110).

Wallerstein and Wyle state:

Perhaps the principal conclusion to be drawn from this study is the

revelation of the prevalence of lawlessness among respectable peo-
ple . . . From this angle the punitive attitude of society toward the
convicted offender becomes not only hypocritical but pointless.
(Wallerstein and Wyle 1947: 118)

Except, of course, that not only do you not think of yourself as a

criminal, you’ve never actually been apprehended for such an offence

5
 1: SOCIOLOGY

(although more than a few of you certainly have), let alone been
charged, tried, convicted or sentenced for such an offence, so that
it may be said of you that you got away with it. The label was never
applied. “Getting away with” crime is very much part of the crime
landscape. Indeed, the fact that crime may be got away with means
that it is not a naturally self-revealing thing. It must be shown to be
such.While we are inclined to think that an action in itself is or is not
criminal, we are prepared to allow that it must be identified, observed,
apprehended or detected as such; such that if that labelling does not
occur in any particular instance, we do not become “criminal” in
any socially meaningful sense. So, although we may retain the sense
that our action was, indeed, a criminal one, and that we did indeed
get away with it, it does not follow that we think of ourselves as
criminals. So there are crimes and there are criminals. The two do
not necessarily equate.
We know, too, that for an action to be found to be a crime, in the
end it must be shown to have been committed with criminal intent
(although there are exceptions like drinking and driving). The gun
could have gone off accidentally, the child could have been too young
to appreciate the gravity of the act, the adult may not have been
criminally responsible by virtue of mental illness, mental handicap
or having been forced. The act could have been in self-defence. The
homicide may have been justifiable if carried out by, say, a uniformed
soldier in combat. Accusations can be false, identities mistaken, evi-
dence tainted, witnesses hostile, charges withdrawn, sentences can be
inadequate or excessive, convictions wrongful. Crime, in short, is a
contested category, and we know it.
Whether you are interested in crime or not, you know that many
people in society cannot help but be “interested” in it as it is their job
to engage with it on a daily basis. A considerable range of occupa-
tions deals with crime, from police to Supreme Court Justices, from
legal secretaries to crime scene investigators, from narcotics divi-
sions to war crimes units, from crime beat reporters to prison guards,
from academic criminologists to Ministry of the Attorney-General
researchers and so on. Some types of crime are engaged in by some
people on a more or less occupational basis like drug trafficking and
drug dealing, armed robbery, safe cracking, shoplifting, contract kill-
ing, burglary, living off the avails of prostitution, human trafficking,
assassination of official enemies, state terrorism, accounting fraud,

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1: SOCIOLOGY

bribery of officials and so on. See, for example, The New Confessions
of an Economic Hit Man by John Perkins (2016) or “The bribe
factory” (2016).9
Crimes, then, have perpetrators or offenders, the ones who com-
mit the offence, and victims, the ones who suffer the loss attending
the offence. We allow, though, that some crimes may be thought of
as “victimless,” as the only one harmed, if anyone, appears to be the
offender him- or herself. And some may acquire the status of what
Joseph Gusfield, referring to drinking and driving, calls “moral fault
without censure”: “at the level of public attention there is the persis-
tent and shrill cry for more punishment; at the level of daily events
there is the negotiation between lawbreakers and law enforcers and
the continued existence of prohibited acts” (Gusfield 1981: 132).
Taking this a step further, Eglin will never forget regularly witness-
ing a posse of Mexican police standing waiting to go on (or come
off) shift, quite oblivious to cars driving past them using the off ramp
to drive on to the periferico (a major highway) at the Plateros exit
in Mexico City; or another group of such police quite openly and
nonchalantly guarding an illegal casino set up in the middle of the
Cuernavaca Fair in 2004 (Cuevas Villalobos 2004).
Nevertheless, crimes, we say, are wrongs. They are not morally
neutral. When such acts occur, they are not mere matters of interest
but, depending on their nature and gravity, they elicit moral condem-
nation, not only from their victims but from society generally. They
demand redress, we say, in the form of punishment of the offender or
restoration of the victim’s loss or both. And we have institutions spe-
cifically designed to provide those remedies.That “loss” can be in the
form of terrible physical or emotional damage suffered by the victim,
which may last for years in the form of post-traumatic stress disorder
(PTSD). The offence caused by the crime to the integrity of the
victim’s person can be extended to their home or other possessions,
to their family and friends. A “wave” of offences in a particular area
may occasion a crime scare in the form of fear among local residents
and demands for greater enforcement of the law in order to restore
(a sense of) public safety (Fishman 1978: 531). Criminal offences have
the capacity to stir moral outrage throughout a community, whether
locally, regionally, nationally or, indeed, internationally.We know this
to be true of the 2011 “Norway attacks” by Anders Breivik in which
he shot dead 69 participants of a Workers’ Youth League summer camp

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(see Moore 2015); the war crimes of Israel in Operation Protective

Edge in 2014 in which its forces killed 2,200 Palestinians, of whom
70–75 per cent were civilians including 500 children (Finkelstein 2014:
156); and, of course, 9/11 itself in which nearly 3,000 people were
killed, almost all US nationals (see Chomsky 2011).
In the same way, efforts to criminalize theretofore-legal activi-
ties can also occasion concern, outrage, condemnation and protest
among sections of the public. The anti-terrorism acts passed in
Western countries in the wake of 9/11 were vigorously criticized
by those concerned about the threat to civil liberties posed by such
laws. Such critiques have given rise to the idea of the “surveillance
state” (Greenwald 2015). Perhaps the most extreme and controversial
expression of this trend is the State of Israel’s substantial efforts to
have all levels of Western governments (and other institutions like
universities) pass laws (or rules) criminalizing (or banning) activism
in support of the peaceful Boycott, Divestment and Sanctions (BDS)
movement begun by representatives of the Palestinian people in 2005
(Greenwald and Fishman 2016).
Moreover, crime demands explanation. “What have you done?”
“What were you thinking?” “Are you out of your mind?” “What
was he thinking?” These look like explanation-seeking questions,
but are typically uttered and heard not so much as questions at all, but
as expressions of shock and horror at the breach of the social order
constituted by the act, including the anticipated awful consequences.
They may be taken as equivalents of “Look at what you’ve done,” “It
was awful” and the like. Nevertheless, explanations are sought. “Why
did you do it?” we might say to the offender. “Why did he do it?”
we might say to one another. “Why did it happen?” the TV news
broadcast might ask. And stock explanations are at hand, depending
on the merest knowledge of the circumstances: jealousy, drunkenness,
revenge, he was high, she’s black, they’re terrorists, how could you not,
revenge, goes with that way of life, just for fun, boys will be boys, evil
bastard, unemployed, crazy guy and so on.
Let us explain what is being done and not done here in reciting
this catalogue of facts about crime.There is no attempt being made to
persuade you that crime is more widespread than you ever imagined,
or to alarm you, thereby to set you up for some wondrous sociology-
based remedy for the consequent anxiety! What is being done here is
simply the sketching of the familiar landscape of crime as a mundane

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fact of everyday life as experienced and understood by members of

society in the course of their daily lives. It’s an attempt to outline the
contours of our everyday, members’, commonsense knowledge of
crime. We can go further. Just think of all the terms and expressions
in language that reference crime. Here’s just a quick list for English:
bank robber, safe cracker, thief, vagrant, jaywalker, trespasser, killer,
shoplifter, con artist, fraudster, vandal, rapist, cheque passer, smuggler,
pirate, juvenile delinquent, felon, hijacker, child abuser, mob boss,
burglar, arsonist, embezzler, forger, drug trafficker, human trafficker,
mugger, kidnapper, wife batterer, blackmailer, terrorist, murderer,
pimp, traitor, stalker, fence. Most of these words or expressions are
the names we give to the persons who commit the corresponding
offence. Some of them have also extended, non-criminal meanings.
As ordinary members of society, we already know about crime in the
sense that we traffic in these terms just by virtue of speaking the lan-
guage. We may not always know whether or not something we have
done or has been done to us or we have witnessed is, in fact, a crime;
but, if crime is involved, we know what other things are implied by
it. These “things,” indeed this “order of things” – to borrow the title
but not the theoretical approach of Michel Foucault’s (2002 [1970])
book – are what this chapter so far is at pains to draw out.
Crimes implicate offenders, victims, witnesses, police, motives,
accomplices, involving statements, confessions, arrests, charges, cus-
tody, jail, courts, trials, exhibits, attorneys, prosecution, defence, judges,
juries, victim impact statements, convicts, prisons, repeat offenders,
ex-cons, retribution, rehabilitation, law and order, homicide rates,
crime problems, crime waves, youth or juvenile crime, street crime,
domestic crime, white-collar crime, corporate crime, violence against
women, crimes against humanity, war crimes, wars against crime,
and so on and so on. This vocabulary of terms and their intercon-
nected definitions form the conceptual landscape which we inhabit
and which inhabits us when we enter this region of language and the
social institutions that it informs and in which it is embedded. “To
give an account of the meaning of a word is to describe how it is used;
and to describe how it is used is to describe the social intercourse
into which it enters” (Winch 2008 [1958]: 115).This landscape maps
out what we can intelligibly say, what we can intelligibly do and
what we can intelligibly be seen to have done in relation to crime.
Or, to change the metaphor, like language generally, crime words

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make up a tool-box for getting about in the “crime department” of

social life. “Language is an instrument. Its concepts are instruments”
(Wittgenstein 1972 [1953]: 569; see also Lee 1991; Eglin 2015). The
question of why this essentially philosophical tack is being taken here
brings us to consider why this book is called a sociology of crime. It
requires an examination of what is being meant by “sociology” in
the first place, or, at least, how the term is being used here. And since
sociology produces, or even is, a form of knowledge, we should start
by probing what kind of knowledge we are talking about.

Members’ knowledge of crime

The point of sketching this conceptual landscape – or what the phi-
losopher Ludwig Wittgenstein would have called the “grammar” of
crime – is two-fold. It is, first, to remind you of what we as members
of society already know about the subject matter of this book. The
purpose of doing this is not to state the obvious for its own sake, but
to put on display how much knowledge we already possess about the
subject of crime, knowledge that is expressed in the very language
in and with which we talk about crime. It is, moreover, not so much
substantive knowledge consisting of facts and figures about crime
and criminals, but procedural knowledge about how to think, talk
and proceed in matters criminological. In the philosopher Gilbert
Ryle’s (1949) terms, it is not knowledge that, but knowledge how;
alternatively, “knowledge-in-use” designed for “getting things done”
(Francis and Hester 2004: 17). For example, if you are the victim or
witness of a crime, you know what to do next; that is, how to pro-
ceed.You call the police (rather, say, than rounding up your mates to
exact revenge on the offender – something that is itself a crime). Of
course, you may not call, for all sorts of understandable reasons. But
not doing so is an accountable matter. That is, if you don’t call, you
may well be asked, or will ask yourself or give yourself a reason, why
you didn’t. And if the offence is against someone who is in your care
(as a teacher, doctor, etc.), it may be a further crime not to report the
initial one, just as it is an offence in Canada and elsewhere not to dis-
close to a would-be sexual partner that you are HIV-positive.10 But,
second, it is to make evident that we have acquired this knowledge,
extensive and detailed as it is, and how we have acquired it, before
ever having come into contact with the discipline of sociology.What

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crime is, what it can mean for us, how we should act towards it, is
given for us in the language and mores of everyday life. Though the
course for which you are (most probably) reading this book may not
be the first course in sociology that you have taken, the ready recog-
nizability of what you have read so far has in no way depended on
such formal studies. That crime involves offenders and victims, types
of offence and offender, the criminal law, police, courts and correc-
tions is something so obviously the case as possibly to raise in your
mind the question as to why the authors are bothering. What is the
point of telling us what we already know? When are we going to get
to the meat(!), you may well be asking.
In fact, it is wholly typical of standard works in sociology, includ-
ing innumerable introductory textbooks, to use at the beginning of
them a variant version of the way this book’s subject is being intro-
duced. The opening strategy is to present such members’ knowledge
in the form of factual propositions about the subject in question
(knowledge that), to characterize this knowledge as “commonsense
knowledge,” what everyone thinks they know about crime, and then
to contrast it with the “scientific” knowledge of the subject that the
writer, the professional sociologist, is about to impart – what is really
going on (see contributions by Sacks, and Garfinkel, in Hill and
Crittenden 1968: 12–17; Lynch and Bogen 1994: 70; Hutchinson
et al. 2008: 19). “Virtually canonical in these preliminary discussions
is a list of statements describing how sociological knowledge dif-
fers from commonsense belief ” (Lynch and Bogen 1997: 486). For
example, it may be asserted that whereas people commonly think that
assaults are typically carried out in public, at night, by strangers, the
truth is that they mostly occur in private, during the day, by a person
the victim knows. Walter DeKeseredy begins his book on Women,
Crime and the Canadian Criminal Justice System like this:

One does not have to read this book or others like it to discover
that many Canadians see their country as being riddled with preda-
tory violent women and girls. This is largely because on any given
day, newspapers and television stations typically present at least one
sensational story about a terrifying, albeit statistically insignificant,
crime committed by a female, such as Karla Homolka.You will also
often hear some journalists, conservative politicians, and many male
members of the general public contend,“But women do it too!” . . .

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The main objective of this book is to challenge the above and

other myths about female crime in Canada.
(DeKeseredy 2000: vii)

The same stance is evident in DeKeseredy’s more recent book Violence

Against Women: Myths, Facts, Controversies (2011). He is far from alone
in adopting this position.
Perspicuous examples of such contrasts can be found at the begin-
ning of such luminaries’ works as Émile Durkheim’s Suicide (1951
[1897]: 41–42), Paul Lazarsfeld’s “expository review” of The American
Soldier (1949: 380) and George Homans’s Social Behaviour (1961; see
Turner 1974: 9–10), not to mention Robert Merton’s “Now the case
for sociology” (1961), Donald Cressey’s “Crime” (1966) and Potter
and Kappeler’s Constructing Crime (1998: 12–13; see Chapter 4 in this
book), and notoriously, perhaps, in Durkheim’s (1982 [1895]) argu-
ment for the functional value of crime and the criminal that we take
up in Chapter 3.
In fact, the practice of distinguishing between common sense and
science gives rise to the equivalent distinction between the knowl-
edge of the ordinary person and that of the expert or, to use the
words of the sociologist Harvey Sacks (1972a), between the knowl-
edge of the “layperson” and that of the “professional.” Indeed, it may
be said that the professional’s claim to professional status rests on
being able to show that their knowledge is different from, not to say
better than, that of the “layperson” (Cuff 1994 [1980]). Founded in
the Gospel of St Matthew 5: 21–22 – “Ye have heard it said . . . But I
say unto you . . .” – this stance has been called “revelatory” (Giddens
1977: 166, 10–11). The professional sociologist will reveal the reality,
if not the design, emanating from the “mind of God,” that lies beneath
the surface of appearances in everyday life (Goldthorpe 1973: 455–
458), including beneath the vague, imprecise and ambiguous uses
of language said to be found in “popular speech” (Durkheim 1951
[1897]: 41–42; Cressey 1966: 141; Porter 1967: 6). The justification
of quantitative sociology rests on the assumption that the observable
world of appearances is a poor reflection of the “real world” beneath
the surface that only in its general outlines (both of distribution and
trend) is detectable in the observable appearances (Barrett 1978: 52).
With it comes the correlative assumption that it is only the theories
and specialized methods – preferably quantitative ones like survey

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research – of the professional social scientist that can reveal the order
in the mess of observable particulars. Again, referring to introductory
textbooks, Lynch and Bogen (1997) write:

The contrast between science and commonsense usually plays two

roles in the overall structure of the text. First, it counters the com-
monplace view of sociology as little more than a ‘science of the
obvious’ . . .; second, it demonstrates the importance of rigorous
empirical methods for establishing the special status of sociological
knowledge.
(Lynch and Bogen 1997: 486)

For a further example, but from a different theoretical tradition, con-

sider how William Chambliss, the great Marxist sociologist of crime,
begins the first chapter of his co-edited book with Marjorie Zatz. He
points out that “[t]here are literally thousands of laws enacted each
year” in the United States. It is “a very prolific enterprise, the business
of making law” (Chambliss 1993a: 3). Laws are passed by all levels of
government, for a variety of purposes and reflecting varying inter-
ests. They are numerous and various. “Despite this, however, there
remains the need for generalization to aid understanding” (1993a: 3),
he then writes, reflecting the “craving for generality” that is the sine
qua non of accredited professional sociology. Indeed, “generalization
and theory-building . . . are fundamental aspects of scientific enquiry,”
according to noted British sociologist of crime David Garland
(1997: 209, note 29). Such specialized, general knowledge is what
the professional sociologist claims to have over the “lay” member of
society. It is important to understand the significance that this distinc-
tion has for sociology and for the structure and perspective of this
book.
In contrast to the view outlined in the previous paragraphs, we
are arguing here and throughout this book that members’ knowl-
edge of crime is the beginning and end, the ground and the edifice
of sociology’s relationship to crime: “the common-sense knowl-
edge of everyday life is the unquestioned but always questionable
background within which inquiry starts and within which alone it
can be carried out” (Schutz 1962a [1954]: 57). Put differently, “The
construction of the categories and models of the social sciences is
founded on the pre-scientific common-sense experience of social

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reality” (Schutz 1962b [1953]: 21, quoted in Kim and Berard 2009:
271). Or, in its classical formulation:

The thought objects constructed by the social scientists refer to

and are founded upon the thought objects constructed by the
common-sense thought of man living his everyday life among his
fellow-men.Thus, the constructs used by the social scientist are, so
to speak, constructs of the second degree, namely constructs of the
constructs made by the actors on the social scene.
(Schutz 1962b [1953]: 6)

Professional sociological accounts of crime already presuppose and

depend on lay sociological accounts of crime, even as they strive
to be different from them. The chapters of this text are at pains to
show that the theories of crime that are produced by professional
sociologists and that fill the pages of this book (and countless other
textbooks in the field) are underpinned by and hopelessly embedded
in the very members’ knowledge of crime they purport to supersede.
To say this is not to set out a brief for making invidious comparisons
between lay and professional sociological accounts of crime (that
traditionally have always been made in order to show the superiority
of the professional account). Nor is it to debunk professional accounts
in favour of good ol’ common sense (Atkinson 1978). For both of
these moves depend on assuming that the two kinds of accounts and
their respective forms of knowledge are equivalent “enterprises” with
equivalent ends and means that can be compared on the same scale.
But to suppose this is to miss their essential differences (Schutz 1962b
[1953]; Garfinkel 1967: 262–283; Sharrock and Anderson 1991). It
is to miss just what is special about (purportedly) scientific accounts
of social phenomena like crime, just what is special about science
in the first place, about how it departs from the rationality that informs
the conduct of everyday life in which “lay” sociological accounts of
crime have their home and being. The departure consists of seeking
theoretical accounts that will apply universally irrespective of time
and place, whereas lay sociologists deal in practical accounts that will
apply here and now for the practical purposes at hand (Sharrock and
Anderson 2011 [1986]: 33; Francis and Hester 2004: 17). As a result,
the “common-sense and scientific attitudes are not so much in con-
flict with one another, as they are incongruous, to the extent that the

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systematic substitution of either for the other would be disruptive”

(Sharrock and Anderson 1991: 60).
What follows from this is that it is both crucial to understand pro-
fessional sociological theories of crime in their own terms and to
appreciate in just what ways they are and are not applicable to under-
standing the conduct of everyday affairs in the world where crime
happens. Moreover, to the extent that such theories of crime do man-
age to have some purchase on the nature of actual social life, it can be
shown that the currency of that life is always already inhabiting them.
We must not “forget that students of social problems are masters of the
vernacular (that is, they are members) before they begin their studies”
(Bogen and Lynch 1993: 230) and that their professional sociological
“accounts are produced and justified as further versions [of members’
accounts] that have their own rhetorical and practical uses” (Bogen
and Lynch 1993: 219, emphasis in original; see also Lynch 2008: 716).
To come back to the question of “where’s the meat?” the answer
is, you’ve already swallowed it.The task is to regurgitate it in order to
examine its entrails, for, to butcher Keats, “it’s all ye know on earth
and all ye need to know.” To put this more politely, less prophetically
and less cryptically, the particular vision of professional sociological
inquiry on offer here, in contrast to the one sketched above, is one in
which the purpose of inquiry is understood to be not the discovery
of knowledge, but the recovery of what we already know – “assem-
bling reminders” about it, in Wittgenstein’s (1972 [1953]: para. 127)
phrase – where that knowledge is knowledge how (Sharrock 2001:
258; Lynch 2007: 108). As Sharrock and Button say in the conclusion
to their remarkable essay on “the social actor”:

The determination to identify ‘common-sense understandings’ is

not meant to result in reiteration of those understandings for their
own sake, but in a context which gives a more perspicuous view of
their part in everyday activities and, also cogently, in the work of
sociological theorists themselves.
(Sharrock and Button 1991: 167)

The two sociologies

The fundamental idea informing the approach being taken in this
textbook to the subject of sociology and crime is that members of

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society are sociologists just by virtue of being members of society.To

put it another way, doing sociology is constitutive of being a member
of society. Members of society may be said to be engaged in socio-
logical inquiry as they make their way about the everyday world, and
as a condition of doing so competently. Sociological inquiry is being
carried out as one selects what to wear upon getting dressed in the
morning, as one navigates the route to school or work by vehicle or
on foot, talks to or texts friends on the phone, organizes one’s activi-
ties for the day, chats to class- or work-mates, manages conversation
with parents over dinner and so on (Francis and Hester 2004: 1).
Don’t be confused. We are all used to thinking of sociology as, and
only as, the name of a social science, a discipline, taught in schools,
colleges and universities in formal courses of study, a subject to be
learned from teachers in classrooms or online, from textbooks and
journal articles or other such course materials written by specialists,
usually professors, and through the acquisition and use of specialized
research methods. Fair enough. Call this “professional sociology” done
by “professional sociologists,” like this book and its authors. But, fol-
lowing the ideas of the professional sociologist Harold Garfinkel, we
may speak of “members’ methods of sociological inquiry” (Garfinkel
and Sacks 1970: 341–345). What does this mean?

Members’ methods of sociological inquiry

One way to come at this is via the concept of socialization. Instead

of treating it as the name of a social process required by a profes-
sional sociological theory of the social system to account for the
transmission of fundamental values between generations, think of
its transitive verb form “socialize” like this: social-ize, to make social.
How does one “make things social” as one goes about one’s daily
affairs? Well, consider, for example, how one sees “a family waiting for
the bus.” Notice that clusters of people don’t necessarily announce
themselves as such. They may have to be “seen” as such. To do so
involves attributing a set of identities to the collection of people
in question (that they are a “family” made up of such categories as
“father,” “mother,” “son” and “daughter”), seeing them as engaged in
what Max Weber (2013 [1922]: 5) calls “rationally purposeful action”
(“waiting for the bus”), seeing the pole on the edge of the sidewalk
with the plate with numbers on it as the “bus stop,” assuming that

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the witnessed scene is just what it appears to be (and not the set of a
film or play) and so on. Notice, too, that the phrase “waiting for the
bus” is both a description and explanation of the action in question;
the people involved are seen to be waiting, and why they are wait-
ing is because they want to get on the bus (which will take them
to where they are going; in other words, we take it that they have a
destination). To attribute such social identities to people and to see
them as engaged in actions for a reason or purpose is to “socialize”
the scene, to make it social, to do a sociology on it. For a clear and
cogent analysis of “aspects of members’ ethnographic work in making
[their] setting observable and reportable” (Sharrock and Turner 1980:
29) see the analysis by these authors of the way a caller to the police
describes the parked automobile that is the object and subject of her
concern.
And, notice also, we see such things at a glance, without the need
for an interview. That is to say, in the world of everyday life, one, as
it were, takes up the work of being a member of society and sees,
and acts towards, the world accordingly. Others are seen, according
to such things as the (social) time and place of their being encoun-
tered, as workers, shoppers, students, beggars, business people, tourists,
etc. That is, allowing for a “restricted class” of categories that are
“routinely ‘emblematically assignable,’ or ‘perceptually recordable’
at a glance” such as police officers, “nuns, hospital physicians,” etc.
(Coulter 2001: 37; see also Jayyusi 1984: 68–73), people don’t just
appear before us bearing a label with their category identity stamped
upon it in large lettering.We see who they are by such things as when
and where we encounter them and what activities they are engaged
in (Eglin 1980).Thus, persons observable as “taking in the sights” can
be seen as “tourists.” By virtue of the time of day, persons observable
as “finishing up the job” or “driving home from work” may be seen as
“workers.” Because of their institutional location, persons observable
as “on their way to or from class” may be seen as “students.”
And if you are inclined to say, “Well, what’s the big deal, that’s
just who they are, and that’s just what they are doing,” then it needs
to be said that while the people and actions concerned may very
well be describable in terms of those categories – that is, while such
descriptions may be perfectly correct – it is also the case that they
can be described as children (all of them), as males, females and oth-
ers, as persons of tall, medium and short height, and, mutatis mutandis,

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as hockey players, lovers, baseball fans, drivers, readers, walkers and

so on (Schegloff 1997: 165; 1991: 51; see also Coulter 2001: 35 for a
lucid presentation of this point). What make them observable, on this
occasion, as shoppers, workers and so on, who are going about the
business of shopping and working, are the relevances that participants
in the world of everyday life find and bring to the scenes through
which they move. Such relevances are socially derived, socially organ-
ized and socially ordered on the occasions that they are brought to
bear. That the family waiting for the bus is observable as such, and
not as people loitering on the sidewalk, or a group of singers about
to become a flash mob, or a terrorist cell in training is, as ethnometh-
odology is wont to say, an interactional accomplishment of the parties
present via their use of practical reasoning based on their common-
sense knowledge of social structures. Put differently, it is the product
of members’ methods of sociological inquiry.
For a further example, consider one of the reported descriptions
made by students upon the entry of the visibly armed Marc Lépine
into one of the classrooms of l’École Polytechnique in Montréal in
which, on 6 December 1989, he subsequently shot dead 13 women
engineering students (and a female member of the administrative
staff): “we thought it was a joke.” These students attempted, that is,
“to normalize his appearance by invoking an available feature of the
context, namely that this was the last class of the term in this course
and someone was exploiting the occasion to stage a prank or joke”
(Eglin and Hester 2003: 36; see also Mahood 1996: 356).That is, they
“socialized the scene” by invoking a collection of social-organizational
features of the institution of which they were part, namely a university
with its courses, assigned rooms, timetable, course organization (with
such things as “first” and “last” class meetings and what may conven-
tionally occur in them) and so on, in order to render what they were
witnessing as an intelligible part of the setting; that is, as a university
event. This involved attributing to the interloper a setting-relevant
identity, namely “student,” and his action as the setting-relevant one
of “staging a prank.” That is, they did a sociology on the situation
which entailed ascribing an identity-category to the interloper (as
to themselves) with its associated predicates (in this case, a reason for
action).
Subsequently, in different contexts, Lépine and the students whom
he killed were re-categorized (re-described) in crime-constitutive

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terms (offender and victims), gendered terms (man and women) and
political terms (anti-feminist terrorist and feminists).These categori-
zations provided the resources out of which disputes were constructed
about what the “Montreal Massacre” amounted to as social action,
for participants, for news reporters, for media commentators and for
subsequent academic, professional sociological analysis. That is, the
language of description – in this case, the categories and descriptors
used to refer to the people and actions concerned – provided for
what could be intelligibly said about them. This included that what
he had done could be seen as a terrible crime.

The book’s perspective: explicating the grammar

of social action
As should be becoming evident, while endeavouring to be a textbook
and not a monograph, this work does employ a particular perspec-
tive from which to approach its subject matter. What is being called
here a “grammatical perspective” is derived from the language
philosophy of Wittgenstein (Coulter 1979: 2–5; 1973), the ethno-
methodology of Garfinkel (Sharrock and Coleman 1999: 29) and
the membership categorization analysis of Sacks (Eglin 2015; Button
1991: 8), the last of which we take up in detail below (see also Berard
1998: 193–195). For Wittgenstein (1972 [1953]: para 373),“[g]rammar
tells us what kind of object anything is.” Put differently, “‘grammar’
comprises the rules for the use of a concept in our language” (Coulter
2016: 1). Thus we may speak of “logical grammar” or “conceptual
grammar.” From him, we adopt the concepts of family resemblance,
language game, forms of life and regions of language.We learn not to
ask for the meaning of words, but to look for their use in interaction.
We “renounce the ‘craving for generality’” embedded in positivistic
inquiry (Lynch 2001: 148, note 18; Hutchinson et al. 2008: chapter 3;
Wittgenstein 1965 [1958]: 17, 18) and Marxist dialectics (Chambliss,
in the previous section, p. 13), and seek instead to assemble remind-
ers about the knowledge we have, but take for granted and so do
not readily see. Furthermore, we seek not to solve sociology’s prob-
lems, but to dissolve them by showing that they typically arise when
“language goes on holiday” and we forget where its natural home
is (Wittgenstein 1972 [1953]: para. 38, emphasis in original; Winch
2008 [1958]; Pitkin 1972; Coulter 2001: 33):

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[A] major methodological problem for social science is its prac-

tice of making use of the language of naturally occurring social
processes by extracting terms from their contexts of use and incor-
porating them into the social scientific discourse as theoretical
concepts or categories identifying features of a social world.
(Smith 1983: 309)

Since Chapter 6 of this book is devoted to ethnomethodology (and

conversation analysis), we will not describe its analytic mentality
here other than to note that Garfinkel’s central recommendations
are very akin to Wittgenstein’s (Hughes 1977: 736; Sharrock and
Anderson 1991: 62; Button and Sharrock 1993: 16–17; Lynch 2007:
107). Ethnomethodology’s “key assumption is that the production of
observable social activities involves the local and situated use of mem-
bers’ methods for doing such activities [and that] with respect to these
methods, the mastery of natural language is paramount” (Francis and
Hester 2004: 20). Moreover, like Wittgenstein’s philosophical inves-
tigations, Garfinkel’s “ethnomethodology offers a valuable form of
therapy for social theorists” (Lynch 2001: 147).

Both were indifferent to the project of reforming or correcting

‘common sense’ with constructed logical languages or (in the case
of sociology) explanatory models, and both were more interested
in explicating practical actions in ordinary as well as professional
settings.
(Lynch 2016: 11, footnote 5)

Together these ideas entail the view, as stated above, that the ordinary,
everyday life we live with and among others is not just “social” in
character, but fundamentally sociological.That is, sociology is not simply
the name of the specialized conceptual and methodological apparatus
brought to the analysis of social life by professional practitioners of
an academic discipline called sociology, but is a collection of such
practices that all members of society engage in as a condition of living
everyday life. “The study of common sense knowledge and common
sense activities consists of treating as problematic phenomena the
actual methods whereby members of society, doing sociology, lay or
professional, make the social structures of everyday activities observ-
able” (Garfinkel 1967: 75). By “everyday life” or “everyday activities”

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is meant all of social life lived under the auspices of what phenom-
enologists call the “natural attitude” or the “attitude of every­day life,”
whether in everyday or specialized settings. Moreover, professional
sociology is underpinned by this lay sociology.
This approach entails the view that, far from being deficient in
terms of professional sociology’s formal theoretical schemes for
explaining social action, persons’ actions can routinely be seen to be
intelligible in terms of the practical circumstances with which they
engage. Furthermore, insofar as “language is understood as practical
action” (Lynch 2014: 112, note 19) then, “following Wittgenstein,
persons’ actual usages are rational usages in some ‘language game.’
What is their game?” (Garfinkel 1967: 70, emphasis in original).
Garfinkel might have better said, “What is that game?” Because “a
language-game is any array of human activities within which the
use of language is embedded,” then no language game is “anyone’s
singular ‘possession’” (Coulter 2016: 2).

Membership categorization and the identification of crime

If Wittgenstein is the source of the idea that social action is linguistic

in character, and Garfinkel shows us how it is oriented to local, practi-
cal circumstances, then in Sacks’s membership categorization analysis
(MCA), we gain an entrance to how members of society organ-
ize the production and recognition of their actions in terms of the
occasioned relationships among categories for referring to persons
and the features that may be predicated of those categories. We have
already provided a non-technical version of MCA in the vignettes
portrayed above of the family waiting for the bus and the scene
from the Montreal Massacre. The observable intelligibility of these
scenes of action turned on the relationships between the member-
ship categories used to refer to the parties involved – family (and its
constituent categories), shoppers, workers, students – and the features
predicated of them – waiting for the bus together, staging a prank.
When it comes to crime, we said above that the fact “that crime may
be got away with means that it is not a naturally self-revealing thing.
It must be shown to be such.” In other words, members of society
must have some methods by which they are able to identify actions,
actors and settings as criminal in the first place.This issue is important
for two reasons:

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1. It is a methodological problem for the professional sociological

researcher in the sense that if he or she is to investigate crimes and
criminals, then some practical solution to the problem of locating
instances of this phenomenon for study must be achieved.
2. It is also a problem for member-participants themselves; how am
I to know that what I am observing is crime?
For both professional researcher and lay participant in the crime
identification enterprise, the problem is how to produce such iden-
tifications recognizably or, in Garfinkel’s (1967) sense, “accountably”;
that is, “observably-reportably” (see Chapter 6 in this book for an
explication of these terms).
Here, then, we shall be describing some methods for producing
and recognizing identifications of (or references to or descriptions
of) crime. The significance of these methods is that the intelligibility
of identifications of crime and therefore of criminology (or profes-
sional sociology of crime) as a discipline depends upon them. Unless
persons are able to produce recognizable references to crime, and
unless those who interact with them can recognize them as refer-
ences to crime, then intelligible talk about and action in relation
to crime would be impossible. We therefore show how studies of
the identification of crime involve members’ methods of member-
ship categorization for recognizing identifications of, or references
to, crime. These methods involve the use of members’ knowledge of
acts, actors and their contexts, organized, in ethnomethodological
terms, as membership categorization devices, membership catego-
ries and category predicates.Thus,“arresting,”“judging,”“punishing,”
“stealing,” etc. are only intelligible in the light and use of “what eve-
rybody knows about crime.” The intelligibility of these activities
depends upon this knowledge, which, we argue, can be analyzed as an
organization of members’ methods of membership categorization.
A convenient source of data that we shall use in order to examine
the production and recognition of intelligible references to crime
consists of news headlines about crime. As we saw at the begin-
ning of this chapter, news sources, including newspapers, routinely
contain numerous reports on the latest crimes to be reported and
dealt with by the police and the courts. We – and we take it, you
– have no trouble in understanding them as reports about crime
and the consequent activities of the law enforcers. However, our
suggestion here is that the apparent ease with which we recognize

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them as such reports rests upon our unnoticed use of certain sense-
making methods or interpretative procedures. Such methods are
the focus of ethnomethodology. Since most of us encounter crime
most commonly in the form of media depictions of it, and since
much is made in professional sociology about the news media’s “con-
struction” of crime through their reporting and commentary on it,
it is fitting perhaps to begin the book by showing how our pre-
ferred approach treats the subject in its “media-ted” manifestation.
We shall use the following case of a newspaper headline to bring
out how its reading depends on some general methods of sense-
making available to any competent members of society picking up a
newspaper.

MOTHER CHARGED IN DEATH OF CHILD

Our original analysis of this headline in the first edition of this book
(Hester and Eglin 1992: 119–128) was revised and expanded by
Francis and Hester in An Invitation to Ethnomethodology (2004: 37–44)
as an example of that mode of ethnomethodological analysis they call
self-reflection. The analysis presented here is a summary version of
their revision of our original. Such an analysis requires taking three
methodological steps (Francis and Hester 2004: 25–26):
1. Notice something that is observably-the-case about some talk,
activity or setting.
2. Pose the question: “How is it that this observable feature has been
produced, such that it is recognizable for what it is?”
3. Consider, analyze and describe the methods used in the produc-
tion and recognition of the observable feature.
Step 1: imagine you see this headline on the front page of the news-
paper. What do you take it to be saying in the quite ordinary way
that you read a newspaper? We take it, and we take it that you take
it, to mean that a mother killed her child (most probably a baby or
young infant) and as a result, was arrested and charged by the police.
Notice that the headline doesn’t say this in so many words and, if you
stretch your imagination, you can think up other possible meanings.
So, let us spell out what our “obvious” reading consists of (and what
it doesn’t) (Francis and Hester 2004: 38):
1. that the mother is the mother of the dead child (and is not
someone else’s mother);

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2. that the mother was charged by the police (and not [by] someone
or something else);
3. that the child was killed by its mother (and not by someone else).
Step 2: how do we come up with this reading? What methods of
practical reasoning, involving what commonsense knowledge of the
social structures, have gone into both the production and recognition
of this story in this headline? How do we see that this, after all, is a
crime story, that it’s about a crime?
Step 3: the general answer that professional MCA gives is that to
do so, we, as ordinary members of society reading the newspaper,
engage in membership categorization analysis ourselves. In other
words, MCA has two senses. It refers both to lay “members’ methods
of sociological inquiry” and to the form of analysis that professional
ethnomethodologists carry out on the MCA carried out by lay mem-
bers of society. Of what does members’ MCA consist in the case of
this headline? To answer this question, we shall employ the concep-
tual framework of professional MCA bequeathed to us by Harvey
Sacks (1967, 1972a, 1972b, 1992a, 1992b), and practitioners influ-
enced by his work, chiefly Watson (1976, 1978, 1983), Payne (1976),
Jayyusi (1984) and others (Eglin and Hester 1992, 2003; Hester and
Eglin 1997).
“Membership categories” are classifications or social types used to
describe persons. Examples include “mother,”“father,”“son,”“daugh-
ter,” “hockey player,” “hell’s angel,” “musician,” “scholar,” “lunatic,”
“bore,” etc. Our knowledge of the world is informed by such cat-
egories: “they provide a means for us to make sense of the social
world” (Francis and Hester 2004: 39). We will introduce the other
terms as we work through an abbreviated account of the analysis of
our reading of the headline. For a full analysis, readers should turn to
Francis and Hester’s account.

Reading the mother as the mother of the dead child

It seems natural to us in terms of our commonsense knowledge of

society to read mother and child as going together as a pair of cat-
egories. Sacks thought of categories “going together” in the form of
collections like that of “family.” Although not all actual families will
have incumbents of every category, we know that mother, father,
son, daughter, aunt, uncle, cousin and so on are such a collection

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of categories. As well as being categories in the family collection,

“mother” and “child” may be said to form a particular pair of cat-
egories, namely “parent–child,” a case of what Sacks (1972a) calls
“standardized relational pairs.” Other such pairs are wife–husband,
boyfriend–girlfriend, teacher–student, doctor–patient and so on.

To say that such pairs are standardized means that it is known what
the typical rights, obligation, activities, attributes and so forth are of
the one part with respect to the other . . . Furthermore, mention
of one part of such a pair is to imply the other – to have the other
programmatically present.
(Francis and Hester 2004: 40)

Such categories and collections provide us with means of describing

persons and their actions. Sacks held that they are commonly used
in conformity with certain rules of application. A collection plus its
rules of application constitutes a “membership categorization device”
(MCD). One such rule of application, the “consistency rule,” holds
that:

if some population of persons is being categorized, and if a cat-

egory from some device’s collection has been used to categorize a
first Member of the population, then that category or other cat-
egories of the same collection may be used to categorize further
Members of the population.
(Sacks 1972a: 33, emphasis in original; 1972b: 333)

From this, Sacks derived a corollary he calls a “hearer’s maxim”: “if

two or more categories are used to categorize two or more members
of some population, and those categories can be heard as categories
from the same collection, then: Hear them that way” (Sacks 1972b:
333). The now famous example in Sacks’s work is the small child’s
story beginning, “the baby cried, the mommy picked it up.” Here,
using the hearer’s maxim, the two categories “baby” and “mommy”
used to categorize the two persons may be, and are routinely and
commonsensically, heard as both belonging to the collection “fam-
ily” and, by virtue of what Sacks calls the “duplicative organization”
property, as belonging to the same family. It is by virtue of this prop-
erty, together with their constituting a standardized relational pair,

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that we take it that the mother and child in the headline are mother
and child to each other.

Reading the mother as having been charged by the police

A second observation is that the headline does not say that the
mother was charged by the “police,” but we read it that way. This
is because of our “orientation to category predicates.” Sacks speaks,
in particular, about “category-bound activities.” These are activities
(or, perhaps better, actions) that are expectably and properly done by
persons who are the incumbents of particular categories, when those
categories are drawn from certain collections or MCDs. Subsequent
researchers have extended Sacks’s work in this area. Sharrock (1974),
Payne (1976),Watson (1978, 1983), Jayyusi (1984) and Hester (1992),
for example, have all observed that category-bound activities are
just one class of predicates which “can conventionally be imputed
on the basis of a given membership category” (Watson 1978: 106).
Other predicates include rights, expectations, obligations, knowledge,
attributes and competences. Thus, “charging” is an activity bound
to or predicated of such a membership category. When we read of
“charging,” there are, hypothetically at least, several possibilities.

Someone may, for example, be charged for being overdrawn at

their bank. Alternatively, in the context of a bull ring a bull-fighter
may quite properly be charged by a bull. However, we have no
difficulty in understanding the sense in which this word is being
used in this headline, that is, someone is being charged with a
crime or offence.
(Francis and Hester 2004: 42)

We assume it means “charged by the police” because charging is

something properly and expectably done by the police. The orienta-
tion to category predicates permits the inference that the reference
to “charged” is a description of an activity done by the police to
an offender, and not, say, a reference to the activities of an animal
renowned for such behaviour or a bank enforcing its rules on a
client. This is because there is an inferential relationship between
membership categories and their predicates. It is possible to infer
a category from a predicate. Thus, to describe someone as “getting

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a divorce” permits the inference that they are incumbents of the

membership category “married person”; to say of someone that they
“issued a prescription” implies that they are incumbents of the mem-
bership category “doctor.” In the context of our headline, we can
infer a membership category, namely “police,” from the mention of
the action “charge” because “charging” is something this category
of persons typically and properly does; it is an activity which is bound
to or predicated of this membership category, so that mention of the
activity provides for the commonsense inference that this is charging
done by the police in relation to some alleged offence.

Reading that the child was killed by its mother

If we have taken it that the mother is the mother of the dead child, and
that the mother has been charged by the police, then “it seems reason-
able that it is she who has killed her child, rather than some unnamed
category of person. This is so because the police . . . charge people
because they have committed offences” (Francis and Hester 2004:
42). Sacks provides a formal way of linking police and offender, and
charging and offending.Thus, in the making sense of any description,
we make use of the principle of “co-selection”:

One general method or procedure available to members is to hear

words as collections or co-selections. That is to say, members can
hear any word as a co-selection with the words which precede
and follow it. The parts of an utterance can be heard as mutually
constitutive in that how any part is heard can depend upon, among
other things, how other parts are heard. It is the speaking and hear-
ing of words as co-selections which helps to constitute situations
to be observably what they are.
(Payne 1976: 35)

Speakers and hearers, then, assume that words are consistently co-
selected (something postmodernists do not appear to have grasped;
see Part IV of this book). This means that it is taken for granted
that words are not chosen randomly or incoherently, but instead are
selected because they cohere and are consistent with each other.They
are designed to “go together” as selections which inform or mutu-
ally elaborate the meaning of each other. In terms of the consistency

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rule, the co-selected items composing the description are heard to go

together, if they can be heard that way.
In accomplishing a sense of the word “charged” as being “charged
by the police,” the method of co-selection “works” not only in con-
junction with the orientation to category predicates that we have
already described above, but also with a method called the “orientation
to ‘standardized relational pairs’” (SRPs) (Sacks 1972a: 37) introduced
above. Payne describes this method in the following way:“In our cul-
ture, certain categories are routinely recognized as paired categories,
and the pairing is recognized to incorporate standardized relation-
ships of rights, obligations and expectations” (Payne 1976: 36).These
SRPs include not only the “intimate” pairings of “husband–wife,”
“parent–child,” “girlfriend–boyfriend,” etc., but also those relevant in
certain “institutional” settings, such as doctor–patient, lawyer–client,
master–slave, teacher–pupil, shopkeeper–customer, victim–offender,
judge–defendant and police officer–offender or suspect. Each mem-
ber of these pairings implies the other, so that mention of the one
makes relevant the other. If, in some stretch of talk, reference is made
to one member of the pair, and if mention is made of another person
who could be heard as the incumbent of a category paired with the
first, then, in line with the consistency rule, “hear it that way.”
Just as membership categories can be relationally paired, so also can
their predicates. Examples of this include the buying and selling in
the customer–shopkeeper relationship and the teaching and learning
in the teacher–student pairing. Furthermore, predicates may stand for
their relationally paired membership categories such that through a
substitution procedure, a category may be implied by or inferred from
mention of the predicate of a category with which it is paired or vice
versa.Thus, to say of someone that they have been “arrested,” permits
the inference that this has been performed by a “law enforcer” and
that they, therefore, are an incumbent of the category “offender.”
Category-bound activities of this sort, then, may be said to be done
by incumbents of a particular category to the incumbents of catego-
ries with which they are “relationally paired.” In particular, in the
case of the membership category “police,” “charging” is relationally
paired with “offending,” an activity bound to the membership cat-
egory “offender.” If there is reference to such a paired category, then
our sense of “charging” as an activity performed by the police can be
confirmed. Though there is no direct reference to an “offender,” it

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is possible to hear the mother as such by virtue of the “death.” Thus,

killing is an offence for which “charging” is a properly and expect-
ably paired next action. Charging and killing are activities bound to
the membership categories, police officers and offenders, respectively.
Charging, furthermore, is done because of the offence; the one action
led to the other. The offence (killing) is a motivational predicate of
the police officer’s charge.
Clearly, if the production and recognition of a reference to, or
identification of, “crime” in the context of a newspaper headline is a
matter of interpretative procedures and the use of members’ knowl-
edge, then so also will the production and recognition of references
to, and action towards, crime in the context of law enforcement.The
intelligibility of such actions as “reporting a crime,” “identifying a
suspect,” “arresting,” “releasing,” “charging,” etc. will depend upon
similar courses of practical reasoning involving membership cate-
gories, membership categorization devices and category predicates.
Conversely categories, devices, rules of application and predicates
will be used in recognizing that “crime” is not taking place or that
witnessed activities are not being carried out by incumbents of the
category “police.” Thus, as a case in point, Sacks describes a scene
where:

[A] car pulls up and stops. It doesn’t seem to stop anywhere spe-
cial, just pulls up and stops on a street. The door opens and a girl
of about 18 charges out, runs across a lawn and stops, and starts
shrieking. In the front seat are an older man and woman. The guy
jumps out of the car, charges across the lawn, comes up to the girl
and gives her a smack right in the face. At which point some of
the passing cars slam on their brakes, and some people start getting
out of their cars.
The man and the girl stand there, face to face, screaming at each
other, and then he just grabs her and drags her back to the car. And
people look at each other, shrug, and say, “Oh well,” get back in
their cars and go on their way.
(Sacks 1989: 344)

The initial categorization of these events as involving a “crime” appears

to turn on the use of the category “kidnapper.” However, when it
became “apparent” that this woman and man could be seen through

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the lens of the device “family,” the scene became re-categorized

as a “family quarrel” rather than an assault and kidnapping.

Explicating the grammar of professional sociology’s perspectives

In accordance with the “grammatical” position set out above, and

following earlier work by the authors (Hester and Eglin 1997:
Conclusion; Eglin and Hester 2003), the various sociological per-
spectives that distinguish professional sociology and which form the
subject matter of this book – correctionalism, functionalism, social
constructionism, symbolic interactionism, ethnomethodology and
conversation analysis, Marxism, feminism, race studies, poststructur-
alism and postmodernism, and postcolonialism – are now viewed as
professional versions of ways of thinking, analyzing and talking about
crime that arise in, and are constituted by, everyday ways of think-
ing, analyzing, talking about and otherwise using the concept(s) of
crime. The home from which they have gone on holiday to the land
of theory is located in the ordinary language with which we “talk
crime” across all the settings in which talk-in-interaction concern-
ing crime is done. It is the purpose of the new edition of this book
to bring out and bring home this fundamental sociological lesson.
In this new edition, the presentation of the various professional
sociological perspectives and the analyses of crime and criminalization
they provide in general and in representative studies are “re-specified”
(Hester and Francis 2007) in terms of the grammatical relations that
comprise them.Thus, as was said in the Preface, these chapters (except
for Chapter 6) will have a tripartite structure: theoretical perspective,
exemplary studies and grammatical respecification.

Synopsis
Each successive chapter of the book after this one presents a particular
sociological perspective’s theoretical take on crime. The selection of
chapters is informed by, without precisely following, that to be found
in the outstanding introduction to sociology; namely, Perspectives in
Sociology (sixth edition, 2016) by Cuff et al.The sequence of chapters
attempts to reflect both the rough chronological order in which the
perspectives appeared on the sociological scene, the epistemological
and methodological eruptions along the way, and the way in which

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the development of the discipline has been marked by a progressive,

if disjunctive, narrowing and sharpening of focus. That is, sociology’s
history could be said to proceed from consideration of the needs of
the state, then society as a whole, to, on the one hand, the construc-
tion of social problems through claims-making by social movement
organizations, the demand characteristics of social situations, the
practical reasoning of societal members in face-to-face interaction
and the articulation of discourses; and, on the other hand, to the
differential experience of sections of society defined by class, gender
and race (and sexual orientation and “ability”), giving rise to the
idea of inter-sectionality (see, for example, Leonard 2015: 22–27).
The field has gone from the comparative analysis of gross types of
society (those, say, characterized by mechanical solidarity and those
by organic solidarity, in Durkheim’s classic argument) to inquiry into
the interactional work done by the particle “oh” when spoken at
the beginning of a turn at talk (Heritage 1984a); and from inquiry
focused on what holds society together to what is always threaten-
ing to tear it apart. This does not mean, however, that “analyses of
bureaucracy, large-scale social organizations, the state, the military,
the capitalist [do not] abound, [that] the ‘macro’-level of inquiry is
[not] alive and well” (Coulter 2001: 30). Indeed, the introduction
of new theoretical perspectives has not meant the displacement of
those that came earlier. The earlier ones persist, so that the current
state of affairs in sociology is one characterized by a plethora of dif-
ferent approaches, each pursuing their preferred form of sociological
life in less than peaceful co-existence with the others, plus a body
of work, some of it self-consciously integrative, not to say grandiose,
that attempts to include insights from different perspectives. It can
be a daunting task for the student to sort out where any particular
study is coming from theoretically. It is our hope, however, that the
“sorting out” we attempt in these pages will provide some tools that
will help to make that task easier.
One way in which that simplification of the presentation of
sociology’s variety has been effected in this book is in the wording
of the chapter titles themselves. Each consists of a single word or
expression signifying the cardinal idea expressing that perspective’s
viewpoint. Since these words and expressions are not themselves the
names of their respective perspectives, these pairings of concept and
perspective are presented here:

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• Chapter 1: Sociology – Grammar

• Chapter 2: State – Correctional criminology
• Chapter 3: Society – Functionalist sociology
• Chapter 4: Claims-making – Social constructionism
• Chapter 5: Defining the situation – Symbolic interactionism
• Chapter 6: Practical reasoning – Ethnomethodology and conversa-
tion analysis
• Chapter 7: Class – Marxist theory
• Chapter 8: Gender – Feminist theory
• Chapter 9: Race – Race studies
• Chapter 10: Power – Poststructuralism and postmodernism
• Chapter 11: People? – Postcolonialism
In keeping with the perspectives favoured in the first edition, we
devote more space to symbolic interactionism, ethnomethodology
and Marxist theory than to the other perspectives. Given the com-
ing of green criminology (South and Brisman 2013), a case could
be made for including a chapter on environment. We have decided,
however, to speak to that issue in the Conclusion (Chapter 12), both
because it fits the point of that chapter and to avoid overburdening
what is already a large book.
When applied to the subject of crime, what we would like to say
is that each theoretical perspective addresses a different site of criminali-
zation (where “criminalization” is to be understood here as including
de-criminalization and non-criminalization). For it is the case that
once sociological inquiry steps beyond the correctional desire causally
to explain and preventatively to cure criminal behaviour (Chapter 2),
then its attention becomes focused on how some (kinds of) actions of
some (kinds of) people in some (kinds of) social circumstances come
to be regarded and treated as crimes at all, and as the particular crimes
they are regarded and treated as; and how, correlatively, the “same” or
similar (kinds of) actions by others are not so regarded and so treated.
Why and how is any action criminalized in society (Chapter 3)? How
is criminalization contingent on the claims-making activities of social
movement organizations (Chapter 4), on actors’ definitions of the
situation (Chapter 5), on members’ methods of practical reasoning
(Chapter 6), on the power of discourse (Chapter 10); and how do class,
gender, race and people(s) feature in who and what gets criminal-
ized (Chapters 7, 8, 9 and 11)? That is, to be clear, we are saying that
the sites of criminalization are to be found, according to the relevant

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theoretical perspective, in the needs of society, the claims-making

activities of social movement organizations, the decision-making of
criminal justice personnel, the practical interactional accomplishment
of institutional facts, the politics of class, gender, race and people (and,
though we don’t treat them in this book, of sexual orientation, ability
and so on) and the discursive formations of power/knowledge. Of
course, although sociologists have hardly addressed this at all, it might
also be said that criminalization as an activity of the state simply arises
from the needs of public administration itself, “for reasons of state.”
This is something that will be considered in Chapter 2.
Moreover, let us also distinguish the different points or stages in
the extended criminal justice process at which it may be said that
criminalization occurs. These range from the stage at which some
form of action is defined as criminal by the passing of a law against
it; to the point at which a person recognizes and decides that they
have indeed been victimized by or been witness to a putative criminal
act; to the point where they report their experience to the police,
typically by calling on their phone; to the recording by the police of
the citizen’s report as an “offence known to the police”; to the lay-
ing of an information or charge by the police or prosecutor; to the
plea negotiations or court proceedings that may follow, including
a trial and the rendering of a verdict; to the sentencing by a judge,
the punishment that may follow that, and, to adapt Goffman (1961,
discussed below), the re-criminalizing of the ex-con that may yet
succeed that. A useful Canadian legal text covering this ground is
Abell et al. (2012). A helpful diagram of most of these stages, which
the author calls “creating crime and criminals,” has been provided by
Croall (2011: 41) in her fine textbook. See Figure 1.2.
Furthermore, through the manner of their reporting of these
various stages in the process, the news media may also be said to be
engaged in “criminalizing” the actions or events in question, whether
with respect to the particular case or to such cases in general. For
the purposes of this textbook, we will call these points or stages in
“crime production” moments of criminalization to complement the
sites of criminalization introduced above.While there are sociological
studies of all the various moments of criminalization, they are une-
venly distributed across the various sites of criminalization and their
corresponding theoretical perspectives. For this reason, and because
we do not pretend to be providing an exhaustive review of how each

33
 1: SOCIOLOGY

Figure 1.2  Creating crime and criminals

Source: Croall (2011: 41).

site comprehends each moment, the following pages contain reviews

of selected studies of particular moments of criminalization that fairly
represent the characteristic work to be found in those perspectives.
Thus, for example, we pay particular attention to the studies of law

34
1: SOCIOLOGY

making and imprisonment by Marxist sociology, whereas studies of

police work and plea negotiation are characteristic areas of symbolic
interactionist and ethnomethodological inquiry.
Given the widespread distribution of criminality across society’s
members; given that, as we saw above, “everybody does it,” just who
gets entered into the criminal justice system, travels through its vari-
ous filters and ends up in prison is an interesting question. Writing
of the equivalent journey made by the eventual “mental patient,”
Erving Goffman conceptualized that journey as a “moral career,” stat-
ing, “In the degree that the mentally ill outside hospitals numerically
approach or surpass those inside hospitals, one could say that mental
patients distinctively suffer, not from mental illness, but from contin-
gencies” (Goffman 1961: 135). Substitute “criminal” for “mentally
ill,” “criminality” for “mental illness,” “prisons” for “hospitals” and
“convict” for “mental patient,” and Goffman’s statement describes
much of the content of this book. It’s about contingencies.

Conclusion
It is important, finally, to appreciate what may and may not be
expected from a textbook such as this. Crime can certainly be
regarded as a voluminous subject.The library shelves, whether actual
or virtual, are filled with works about it. According to the biblical
story at least – “And hasn’t the Tree of Sin been at the same time
the Tree of Knowledge ever since the time of Adam?” (Marx 1861–
1863: n. p.) – crime appeared at the dawn of humanity’s creation, and
we have every reason to suppose that it will play a part in its end.
From Fyodor Dostoyevsky to The Godfather, from Elmore Leonard to
the latest caper movie, it is a source of the profoundest reflection, the
most grievous suffering and the lightest entertainment. What this
book offers is what professional sociology has to say about it, seen in
the light of members’ methods of sociological inquiry. In short, this
amounts to far less than everything that could be said about crime,
but it is grounded in what can be said about crime. For crime is a
word, in a language, expressing a concept that has its home in social
action and interaction. Before anything else, then, it is a sociological
thing.

35
 1: SOCIOLOGY

Exercises
1. Start a fieldwork notebook in either paper or digital form that you
will keep throughout your course of study with this book. Call it
something like “My Encounters with Crime.”To begin with, pick
a day and very deliberately record every instance in which crime
comes up over its course. Re-read the introduction to this chapter
to remind yourself of what to be on the lookout for – from deci-
sions you make about preferred routes to take wherever you are
going, to other matters of personal security, to conversations about
crime, to seeing police cars, warning signs and the like, to news
items you view, etc., etc. Pay attention to detail. Keep the notebook
going with such observations throughout your course of studies.
2. Devote a special section of the notebook to making a list of all the
crimes you have committed. Make a note about how you think of
yourself in relation to them.
3. Using the chapter’s analysis of “Mother charged in death of child,”
collect a news headline about crime and attempt to analyze the
methods of membership categorization involved in your reading
of it. You will find it more fruitful to deal with a mundane case
from the inside pages of your local newspaper rather than a more
sensational case from the front page.

Review questions
1. What do you understand by the idea of the “conceptual landscape”
of crime? Can you add additional landmarks to the map sketched
in the chapter?
2. What is meant by “members’ methods of sociological inquiry”?
3. What are the differences between “lay” and “professional”
sociology?
4. Who’s a sociologist?

Further reading
Francis, David and Stephen Hester. 2004. An Invitation to
Ethnomethodology: Language, Society and Social Interaction. London:
Sage. Chapters 1–3 set out the ethnomethodological position
adopted herein, in accessible terms, and with many helpful exam-
ples such as the full analysis of “Mother charged in death of child.”

36
1: SOCIOLOGY

Sharrock, W. W. and Roy Turner. 1980. “Observation, esoteric

knowledge, and automobiles.” Human Studies 3 (1): 19–31.
This study provides an insightful and accessible account of the
interactional issues attending something as apparently simple as
describing an automobile in the course of “reporting to the police
the location of a car which [the caller] believes may have been
stolen, which has been parked across the street from his house for
about a week, and which is observable from his front window”
(p. 22). It will help you see how very ordinary things can be made
extraordinary under an ethnomethodological gaze.

Notes
 1 CBC News, “Conservative ads aimed at Chinese, Punjabi voters claim
Trudeau backs brothels, pot sales to kids,” 14 October 2015: www.cbc.
ca/news/canada/british-columbia/conservative-advertising-chinese-
punjabi-1.3268011 (Accessed 14 October 2015).
  2 Duffy was acquitted of all charges on 21 April 2016.
  3 The inquiry was officially launched on 3 August 2016 by the Liberal
government, with work beginning on 1 September 2016.
  4 Ford died from cancer on 22 March 2016 at the age of 46.
  5 CBC News, “Dennis Oland murder trial hears officer urged to lie
about crime scene,” 14 October 2015: www.cbc.ca/news/canada/new-
brunswick/oland-murder-trial-saint-john-1.3268364 (Accessed 14
October 2015). On 24 October 2016, Oland’s conviction was over-
turned on appeal and a new trial ordered.
  6 Marisa Taylor and Jonathan S. Landay,“Psychologists accused of ‘criminal
enterprise’ with CIA over torture,” truthout.org, 14 October 2015: www.
truth-out.org/news/item/33227-psychologists-accused-of-criminal-
enterprise-with-cia-over-torture (Accessed 14 October 2015).
  7 “The counted,” The Guardian: www.theguardian.com/us-news/series/
counted-us-police-killings (Accessed 20 August 2016); Mark Berman and
Mark Guarino, “Chicago releases ‘unprecedented’ evidence from nearly
100 investigations into police shootings, uses of force,” The Washington
Post, 3 June 2016: www.washingtonpost.com/news/post-nation/
wp/2016/06/03/chicago-set-to-release-massive-trove-of-evidence-
from-100-investigations-into-police-shootings-alleged-misconduct/
(Accessed 4 June 2016).
  8 GeoffreyYork,“Oscar Pistorius found guilty of murdering girlfriend,” The
Globe and Mail, 3 December 2015: www.theglobeandmail.com/news/
world/south-africas-supreme-court-convicts-pistorius-of-murder/
article27576426/?utm_medium=Newsletter&utm_source=Morning+
News+Update&utm_type=text&utm_content=MorningNewsUpdate
&utm_campaign=131730108 (Accessed 4 December 2015).

37
 1: SOCIOLOGY

  9 “The bribe factory,” The Melbourne Age and The Huffington Post, 30
March 2016: www.theage.com.au/interactive/2016/the-bribe-factory/
(Accessed 31 March 2016).
10 Thanks are due to Dr Jeffrey Aguinaldo for this reminder.

38
PART I

Positively
undertaken
 Introduction

“Promoting research in the social sciences and humanities is a

crucial step in developing solutions to problems facing not only
Canada, but the world at large,” said Dr. Daniel Woolf, vice-chair
of the U15 [Group of Canadian Research Universities] and
Principal and Vice-Chancellor of Queen’s University.
(u15.ca 2014: para. 2)

Simply put, when a society moves to understand and solve its

problems, it turns to social thinkers.
(Boden et al. 1990: B1)

Positivistic sociology
The desire to “help people,” to “make the world a better place” or
to “change the world” expressed by many undergraduate students
of sociology (Berger 1963: 1–3) would have been understood by
the founders and followers of the European Enlightenment from
the seventeenth century onwards. They sought to remake the world
they had inherited by breaking the fetters of superstition, religion
and rule by monarchs and aristocrats, in the name of liberty, equality
and fraternity (the slogan of the French Revolution of 1789), and
democracy and human rights (as in the US Bill of Rights of 1789).
If social improvement was their goal, reason and scientific method
were their means.“Enlightenment’s program was the disenchantment
of the world” (Horkheimer and Adorno 2002: 1, channelling Max
Weber).When applied to social thought and analysis, this coupling of
scientific reason and social improvement gave rise to the “positivistic

41
 PART I: POSITIVELY UNDERTAKEN

sociology” proposed by Auguste Comte and John Stuart Mill in the

1840s. It was positive in spirit and positivist in method, by which
is meant that inquirers sought to emulate the experimental, obser-
vational and statistical methods that had been proving so fruitful in
the natural sciences of physics, chemistry and biology. (In the case of
statistics, recent studies suggest that the direction of influence was the
reverse of the conventional wisdom [Saetnan et al. 2011a: 5].) Applied
to the study of crime, the positivistic approach found a suitable object
of analysis in the official national crime statistics that were just then
becoming available. Such analysis was taken up by states themselves,
giving rise to what has been called “administrative criminology.”
It was only, then, from about the second quarter of the nineteenth
century that European states began to publish such crime statistics.
But once published, they became available not only to the state for
administrative criminology, but for journalists, social reformers, pro-
fessional interest groups and political parties who, in the light of
their overlapping interests, used them to formulate what we now call
“social problems.” Suicide, for example,“was probably one of the most
discussed social problems of the nineteenth century” (Giddens 1965:
4). Furthermore, they became grist for the theoretical and explana-
tory mills of the social thinkers and social-scientific disciplines that
the Enlightenment had gestated. Notable were the so-called “moral
statisticians,” Adolphe Quételet, André-Michel Guerry, Adolf Wagner
and Enrico Morselli. Fascinated by the figures, which they regarded
“as precise indicators of the moral state of a society” (Giddens 1978:
42), they mapped and described the patterns they revealed and then
sought to explain them.As Quételet had appropriated the term “social
physics” for this enterprise, Comte in 1839 called it “sociology,”
formally inaugurating the “queen of the sciences.”
“Savoir pour prévoir; prévoir pour pouvoir.” Comte’s famous
slogan captures the dream of social improvement through scien-
tific method attending the birth of what his English counterpart,
Mill, called the “moral sciences” and what, a century and a half later,
Harold Garfinkel (2002: 65; 2007: 14) called the “worldwide social
science movement.”Thought of this way, such disciplines were – and,
as indicated by the epigraphs that head this Introduction, largely con-
tinue to be – part of an enterprise to treat practical matters of social
consequence scientifically; a current example is the emergence of
“human rights sociology” (Brunsma et al. 2013).The dream survived

42
INTRODUCTION

their (successful) effort to become professional and move into the

universities (Newson 1995: 7).

Crime
An overriding concern to “do something about crime” shaped the
social sciences’ attitude towards it from the outset and throughout
their inquiries.This concern was founded in an anxiety about the state
of civil society that arose in the wake of the Industrial Revolution
and “the dissolution of the traditional social order” (Giddens 1971:
37). “Positivistic” social science in general and criminology in par-
ticular were conceived against the background of this anxiety about
the perceived “evil consequences” of industrialization. For example,
what came to be known as “juvenile delinquency” was problematic
because it was taken as portending the greater evil of adult crime,
and that, in turn, was seen to threaten the very fabric of civil society
with the prospect of anarchy (Houston 1972). The development of
scientific inquiry into these phenomena was explicitly conceived as
directed towards their amelioration or correction (and thus to the
relief of this anxiety). In alternative words also attributed to Comte,
“savoir pour prévoir, prévoir pour prévenir.” Lukes has this to say
about Comte’s most famous follower:

Durkheim’s notions of “egoism” and “anomie” were rooted in

a broad and all-pervasive tradition of discussion concerning the
causes of imminent social disintegration and the practical measures
needed to avoid it – tradition ranging from the far right to the far
left. His own approach was distinctive . . . The remedy lay neither
in outdated traditionalist beliefs and institutions, nor in speculative
and utopian social schemes; the only way to solve “the difficulties
of these crucial times” . . . was the scientific way.
(Lukes 1975 [1973]: 198–199)

The anxiety expressed in positivistic social science persists in the

correctional criminological studies considered in Chapter 2 as
well as in sociology more generally. Correctional criminology thus
equates social and sociological problems, deriving the latter from
the former and making sociological objectives serve broader social
ends. “Although it presented itself as neutral and outside of politics,

43
 PART I: POSITIVELY UNDERTAKEN

modern criminology combined its faith in scientific expertise and

professionalism with a liberal reform tradition” (Garland and Sparks
2000: 195). At its most extreme, such sociology becomes merely the
servant of the state, reverting back to being effectively administra-
tive criminology (Young 1986; Rock 2012: 61–62). Referring to
the contemporary period as what he calls the “exclusive society” of
“late modernity,” with its widespread precarious employment, ram-
pant inequality, political disaffection, social protest, violence and a
“burgeoning apparatus of crime control,”Young (1999: 26–27) points
to the emergence of “the new administrative criminology with its
actuarial stance which reflects the rise of risk management as a solu-
tion to the crime problem.” Indeed, from its nineteenth-century
beginnings as an effort to come to terms with the enormous social
changes brought about by the political and economic revolutions of
the previous century, professional sociology’s characteristic problems
have been set by the larger society:

Though it is a staple of first-year sociological teaching to point

out that recognized social problems do not constitute manageable
sociological problems, a very large, if not the greater part, of socio-
logical work does deal directly with quite unreconstructed social
problems. These include race relations, educational achievements,
the position of women, the social responsibility of science, politi-
cal participation, suicide (an oddly popular one, that), religious
“decline,” the responsibility of professions, the influence of the
media, the quality of life, the role of the family, the problems of
welfare, crime and delinquency, football hooliganism, etc.
(Sharrock 1979: 121–122)

Conclusion
As in the case of the other “social sciences,” professional sociology’s
emergence as a university-based discipline in the 1890s in Europe
and the United States depended in large part on its early practitioners
being able to demonstrate that they had a distinct subject matter that
could be addressed scientifically. Durkheim subtitled his 1897 book
on suicide “a study in sociology,” thereby marking the distinctiveness of
this scientific approach to the subject he had set out two years before
in his Rules of Sociological Method. Thus grew up an approach to the

44
INTRODUCTION

study of crime that was scientific in the positivistic sense of being

modelled on the supposed methods of the natural sciences, but in
which statistical, multivariate analysis of correlations was substituted
for experimental methods. It is called “correctional criminology”
because social improvement in this context was understood to be
“correctional” in nature; that is, a matter of “correcting” both the
“criminal” and the “causes” that had given rise to him (then and now,
it is almost always “him”). As the Rev.William Douglas Morrison puts
it in a paper on the “interpretation of criminal statistics” read before
the Royal Statistical Society on 15 December 1896, “If crime is to
be diminished it can only be diminished by mitigating the conditions
which produce it . . . Criminal statistics show that crime is a prod-
uct of social as well as individual conditions” (Morrison 1897: 17).
Administrative criminology and correctional criminology together
form the subject matter of Chapter 2.
To be fair to Durkheim, however, it must be said that once
Enlightenment social thought discovered “society” and its “social
problems,” then the largely administrative motivation of “cause-and-
cure” criminology came to be rivalled, if not overtaken, by a more
purely sociological interest in theoretical explanation of social phe-
nomena in general. Professional sociology started to develop its own
“sociological problems,” addressed largely through the lens of “func-
tionalism.”This development and its application to the study of crime
are taken up in Chapter 3.
If it is true to say that correctional criminology (the state) and
functionalism (society) appear at professional sociology’s begin-
nings as a discipline in the late nineteenth century, it is equally true
to say that they have remained steadfast elements of its panoply of
theoretical perspectives ever since.

45
 2 State

[T]he government are very keen on amassing statistics – they col-

lect them, add them, raise them to the nth power, take the cube
root and prepare wonderful diagrams. But what you must never
forget is that every one of those figures comes in the first instance
from the . . . [village watchman], who just puts down what he
pleases.
(Stamp 1929: 258)

In this chapter, we consider two sociologies of crime built principally

on the official statistics of crime produced by the state.These sociolo-
gies are administrative criminology and correctional criminology.The
one is carried out largely by state officials themselves, the other mostly
by professional sociologists. Though both are correctional in spirit –
they want to “do something about crime” – the one confines itself in
the main to producing statistical analyses useful for the state’s purpose
of public administration, while the other ventures into the realm of
theory in an attempt to explain the patterns revealed in the statisti-
cal analyses. In phenomenological terms, both sociologies are firmly
grounded in the natural attitude even if, in the case of correctional
criminology, it may be modified in the direction of the scientific atti-
tude by the recourse to theory (see Sharrock and Anderson 1991: 58).

Administrative criminology and statistical

correctionalism
You might say that the first institution implied by crime is the state
itself, at least for societies that have states. This is not to say that the

46
2: STATE

state is first among criminals, although as an empirical claim, this may

be hard to dispute (see Chapter 11). No, the first sentence of this
section is not an empirical claim at all, but a conceptual one. That is,
part of the meaning of the concept of crime involves the state. For
it is states, through their governments and judicial institutions, that
create and institute the laws which define what actions shall count as
crimes. Moreover, it is state agencies that administer crime-defining
laws through the courts; enforce their application to persons and their
actions through policing agencies; determine and impose penalties
for their breach; and establish and carry out the forms of punishment
(allowing that in recent decades in the United States and elsewhere,
some of the punishing has been contracted out to the profit-seeking,
private sector [Leighton and Selman 2012; Knight 2016]). It is not
that other, non-state institutions may not or do not make rules to
define what they regard as right and wrong conduct, administer and
police them, and impose penalties on those found to be in violation
of them. For conduct it regards as unacceptable according to its duly
constituted rules, a political party may stop one of its candidates from
running for office or remove them from its caucus of members of
parliament or congress, a medical association may remove the licence
to practise of one of its doctors, a law society may disbar one of its
lawyers and so on. For, although the consequences of suffering such
outcomes can be severe for the professional careers of those persons
who run afoul of them, we do not ordinarily say of them that they
have committed crimes or that they are criminals. Their professional
records may be indelibly stained, but they do not thereby have a
criminal record. They will not suffer the criminal sanction of prison
or of otherwise being deprived of their personal freedom.These pun-
ishments are the prerogatives of the state, and they are reserved for
actions defined as crimes by its laws.We may say that failing adequately
to ensure “security of the person” for refugees fleeing war zones (in
which one’s country is perhaps a combatant), such that thousands of
them drown in virtually plain sight, is an appalling crime. But unless
some state, or an agency made up of states and authorized by them,
like the United Nations, intervenes so as to define such negligence
as criminal, to apprehend the offenders and to bring them to judicial
account, then our protestations are so much blowing in the wind as
far as establishing criminality is concerned. Likewise, asserting that
“Meat is Murder” doesn’t make it so.

47
 PART I: POSITIVELY UNDERTAKEN

So much, perhaps, is straightforward, a matter of more conceptual

mapping. But when we switch from conceptual to empirical matters,
questions arise as to why states do this.What’s in it for them to define
what their citizens can and cannot lawfully do, to hold them to such
standards, to seek out the violators and punish them for their viola-
tions? Such questions are grist for the mills of later chapters. Here we
want to establish just a couple of things. The first is that crime and
the state are simply bound up with one another conceptually. Perhaps
enough has been said on this point to make this clear.
Second, however, given this state of affairs (no pun intended), it
is perhaps not surprising that states have brought forth their own
particular form of sociology of crime, what has been called, appro-
priately enough, administrative criminology.1 It embodies an overall
stance or perspective we may call “statistical correctionalism.” It may
be said to have the following characteristics – a correctional attitude
towards crime, criminality and criminals and an “abstracted empiri-
cist” approach to its studies, including an overwhelming preference
for statistical method. C.Wright Mills (1959), who coined the expres-
sion “abstracted empiricism,” argues that empirical data abstracted
from surveys in terms of such categories as gender and age, with-
out reference to any theory or history that can give the categorized
data sociological meaning, is insufficient for sociological analysis. He
derives the expression from Marx and Engels (1970 [1845/1846]:
48) who write, “As soon as this active life-process is described, his-
tory ceases to be a collection of dead facts as it is with the empiricists
(themselves still abstract), or an imagined activity of imagined subjects,
as with the idealists.” Mills had the work of Columbia University’s
Bureau of Applied Social Research and its founder Paul Lazarsfeld
particularly in mind (see, for example, Lazarsfeld 1949). Nevertheless,
it is fair to say that despite at least 120 years of critique, despite all
the theoretical turns that professional sociology has undergone in
that time, hard-core, administratively driven, correctionally moti-
vated, positivistically carried out, statistically descriptive criminology
continues to hold sway.
In fact, the very word “statistics” reveals the origin of administra-
tive criminology in the state itself, given that its etymological root
is “state.” Indeed, this type of sociology of crime did not really get
going until the mid-nineteenth century as European states, as already
noted, began to collect and make available “official state-istics” on

48
2: STATE

the distribution of crime in their societies. However, once started, it

has never stopped, which is not surprising given that the state’s inter-
est in administering its population largely defines what its purpose
is, and this task is never-ending. Much administrative criminology is
directly carried out by researchers employed by state agencies such as
ministries of the attorney general or corrections. Furthermore, given
that the state has been the chief funder of university-based research,
it is also not surprising that, via its ability to set funding priorities, it
has sponsored and continues to sponsor criminological inquiries by
academics answering to its administrative – that is to say, correctional
– needs.
Studies in statistical correctionalism take, then, as their data the
official statistics produced annually by the state. These typically
include the number and rate (typically per 100,000 of the country’s
population) of offences for the country as a whole and broken down
by political sub-unit or geographical area (for example, provinces in
Canada, states in the United States), offence type (for example, theft
over $1,000) and category (for example, violent crime). They may
include the matching figures for charges laid, convictions registered
and offenders incarcerated. Comparisons with figures from previous
years may be provided so as to indicate possible trends over time.The
data are typically presented in the form of statistical tables specified
for gender and age categories. In the United States and elsewhere,
official data may be differentiated by so-called “race.”
The shortcomings of such data for sociological analysis bent on
determining the real amount of crime in society have been appreciated
virtually since their inception (Morrison 1897; Kitsuse and Cicourel
1963; Cicourel 1995 [1968]; Duncan and Eglin 1979; Eglin 1987). It
has been understood that some unknown (if nevertheless estimated)
number of actual offences are never reported (by victims) or detected
(by police). Some number of reported offences are not recorded as
such by police. Not all offences recorded result in charges being laid.
Not all charges laid are prosecuted and, of course, not all prosecu-
tions result in convictions (for, after all, accused persons can be found
not guilty of the offence(s) with which they are charged and for
which they are prosecuted), nor do all convictions result in prison
sentences. The case of sexual assault is notorious in this connection;
we revisit it in Chapter 8.To remedy such shortcomings, practitioners
of statistical correctionalism came to supplement statistics based on

49
 PART I: POSITIVELY UNDERTAKEN

“crimes known to the police” with figures derived from the public
itself, through what are known as “self-report” and/or “victimiza-
tion” surveys. That is, a sample of the population is asked to report
what, if any, offences they have committed; or of what, if any, crimes
they have been victim. Eglin’s informal surveys of his students’ crimi-
nality, noted in Chapter 1, are examples of such self-report studies.
The results of such surveys are seen to provide useful correctives
for the perceived deficiencies of official statistics that are based on
“crimes known to the police.” For many years, it has been standard
practice for state agencies dedicated to the collection, production
and dissemination of official crime statistics, such as the Canadian
Centre for Justice Statistics (CCJS) of Statistics Canada, to accompany
their detailed statistical reports (consisting mainly of pages of tables)
with an elaborate foreword or appendix discussing the reliability and
validity of the data reported in the tables.2
The annual issuing of the crime figures becomes the occasion
for widespread reporting in the news media. Attempts are routinely
made to read social significance into (that is, to do a sociology of)
the rise and fall of the figures, whether as a whole or in terms of
such categories as youth crime, violent crime, hate crime, cyber-
crime, drug offences or family violence, among others. Commentary
is sought from, or questions put to, local, regional and national politi-
cians, academic social scientists, spokespersons for the police, groups
advocating for the rights of women, racial or ethnic minorities, gun
control advocates, victims of crime generally and so on. Word may
spread on social media. Longer articles will appear on blogs and in
national news magazines. Academics will incorporate the latest data
into ongoing research projects and the papers that flow from them
that will, in turn, be presented at conferences which may themselves
make the news in a subsequent cycle. Such work will be taken up for
inclusion in the latest edition of some textbook or handbook in the
relevant discipline (Smith 1975). Student readers of this book may
wish to consult the websites of their state’s statistical agency to gain
an appreciation of what may be called, facetiously, modern society’s
crime production industry.3 In such ways do the administrative activi-
ties of the state bleed into the capillaries of the society that it seeks
to govern.
The point here, however, is simply to notice that for modern
societies, crime is an “official” matter. To say this is to repeat what

50
2: STATE

has been the ongoing theme of this discussion; namely, that crime
is a concept defined, administered and enforced by the state and its
agencies. Crime as the official, state-sanctified thing that it is in state
societies is produced out of the activities of government and public
administration. If the modern state is thought of as consisting of three
branches – legislative (through a parliament or congress), executive (a
prime minister, cabinet and civil service) and judicial (the legal system
including a supreme court) – then crime is defined by the legisla-
tive branch and administered and enforced by both the executive
and judicial branches. To say as much may be to simplify somewhat
varying arrangements across different societies, but it is not to adopt
any theory of state or society. It is enough to say that the state’s inter-
est is in administering its population. In the grammar section of this
chapter, we shall argue that this fact is too little taken account of in
the debate over the meaning and use of official crime statistics.

Correctional criminology
The greater part of the scientific study of crime is taken up by cor-
rectionally motivated, positivistically researched theories of so-called
criminal behaviour.We say “so-called” for reasons explained below. In
fact, for most, if not all, correctional criminologists, such work is what
defines criminology (see, for example, Wilson and Herrnstein 1986).
Following Matza (2010 [1969]), we identify the central components
of correctional criminology as follows:
1. the equivalence of social and sociological problems;
2. the derivation of sociological questions from social concerns;
3. the objective of sociological inquiry as the amelioration or
“correction” of social problems;
4. an “overwhelming” preoccupation with questions of aetiology or
causation in relation to criminal behaviour;
5. a commitment to the methodological principles of positivistic
social science.
Thus the standard steps in an investigation of some crime topic are
modelled on those to be found in a thousand sociological research
methods textbooks: define it, classify it, count it, correlate it, explain
it and prevent/cure/treat it. Bottomley notes the paradoxical com-
bination of the desire to be “scientific” and adhere to the ideals of
“scientific objectivity” while providing “theories which would at

51
 PART I: POSITIVELY UNDERTAKEN

the same time be of direct relevance for the prevention, control or

treatment of crime” (Bottomley 1979: 40). Consider the following
characteristic statements drawn from seminal texts in the field:

Criminology, in its narrow sense, is concerned with the study

of the phenomenon of crime and of the factors or circum-
stances . . . which may have an influence on or be associated with
criminal behaviour and the state of crime in general. But this
does not and should not exhaust the whole subject matter of
criminology.There remains the vitally important problem of com-
bating crime . . . To rob it of this practical function, is to divorce
criminology from reality and render it sterile.
(Radzinowicz 1962: 168)

The scholarly objective of criminology is the development of

a body of knowledge regarding this process of law, crime, and
reaction to crime . . . The practical objective of criminology, sup-
plementing the scientific or theoretical objective, is to reduce the
amount of pain and suffering in the world.
(Sutherland and Cressey 1978: 3, 24)

Research in criminology is conducted for the purpose of under-

standing criminal behaviour. If we can understand the behaviour,
we will have a better chance of predicting when it will occur and
then be able to take policy steps to control, eliminate, or prevent
the behaviour.
(Reid 1985: 66)

Then there is Young (1986: 28, quoted in Sim et al. 1987: 42; and
Smart 1990: 72): “Let us state quite categorically that the major task
of radical criminology is to seek a solution to the problem of crime
and that of a socialist policy is to substantially reduce the crime rate.”
One could multiply such programmatic statements with count-
less more drawn from texts in the field, but to bring the story closer
to the present, here’s one from a review of a representative work
(Braga and Weisbrud 2010) that we consider below, as published in
Contemporary Sociology, the book review journal of the American
Sociological Association: “The book also represents an excellent case
study in applied social science, where strong theory and rigorous

52
2: STATE

research are married in the production of challenging but workable

recommendations for improvements in policy and practice” (Tilley
2012: 185).
Finally, there’s this formulation from the Series Preface to the
Library of Essays in Theoretical Criminology:

While . . . popular representations of the causes of crime contain

glimpses of the criminological reality, understanding why people
commit crime is a much more complex matter. Indeed, for this
reason the quest to establish the causes of crime has been one of the
most elusive searches confronting humankind . . . [C]riminology’s
central focus is the systematic examination of the nature, extent
and causes of crime. Criminological theory as a subset of crimi-
nology, [sic] comprises the cluster of explanation [sic] seeking to
identify the causes or etiology of crime.
(Henry 2011: ix)

Notice that this weighty statement combines the standard focus on

causes of crime with the claim that professional theories are supe-
rior to lay understandings, the foundational position of social science
which we discussed in Chapter 1.
We proceed to review briefly some of the major examples of such
theories, beginning with the non-sociological theories which have
as their focus the biological and psychological causes of criminal
behaviour. For an exhaustive review of work of this type, see Eysenck
and Gudjonsson (2011 [1989]) The Causes and Cures of Criminality.
Alternatively, there are the 800 pages of Crime and Criminality: A
Multidisciplinary Approach which,“in order to progress a nature-nurture
understanding of crime and criminality [presents] a plethora of the-
ories and research findings from a variety of academic disciplines”
(Taylor 2016: 1).

Biological and psychological theories of criminal behaviour

From the biological criminology of Cesare Lombroso in the nine-

teenth century to the psychological criminology of Han Eysenck in
the twentieth, as Box (1981 [1971]) points out, the concern has been
with isolating the criminal individual by identifying those character-
istics which differentiate him or her from the “normal” person. For

53
 PART I: POSITIVELY UNDERTAKEN

the biological criminologist, these differentia were to be found in the

human body; that is, it was assumed that there were physiological differ-
ences between criminals and normal persons. Early work in this field
– for example, that stemming from an 1876 pamphlet of Lombroso
(1972 [1911]; Sutherland and Cressey 1978: 58–59) – argued that
criminals were distinguished by their “head shapes, peculiarities in
their eyes, receding foreheads, weak chins, compressed faces, flared
nostrils, long ape-like arms and agile and muscular bodies” (Box
1981 [1971]: 2). Since then, it has been claimed and continues to be
claimed (by the likes of Dr Sarnoff Mednick [Sim et al. 1987: 10])
that criminality is caused by or at least correlated with such fac-
tors as biological inferiority (Hooton 1939), body shape (Kretschmer
1925; Sheldon 1949; Glueck and Glueck 1950, 1956), nutritional
deficiency (Hippchen 1977), chromosome abnormality (West 1969)
and, when averaged out for “racial” groups, the size of the genitals,
buttocks and brain (Rushton 1989). Rushton’s work, which achieved
some notoriety in Canada, is a straight revival or continuation of
nineteenth-century “race science,” down to the “anthroporn” of one
of its principal sources (French Army-Surgeon 1972 [1898]).
In her detailed review of the recent literature, Taylor declares
that “in current academia there is no place for serious discussion of
Lombroso’s (1911) characterization of criminals as resembling ances-
tral (i.e. pre-human) forms of life, known as atavism, or Sheldon’s
(1942) relationship between bodily shapes (i.e. morphology) and
temperament” (Taylor 2016: 141). But there is plenty of place for
molecular and neuro-genetic studies spurred on by the Human
Genome Project, studies of chromosomal abnormalities associated
with criminality, bioneurochemistry studies of hormones, “brain
studies investigating differences of brain structure and function in
criminal psychopaths” (Taylor 2016: 158, emphasis in original) and neo-
Darwinian studies of evolutionary factors that may “explain why the
males of our species might be particularly susceptible to . . . violent
criminal behaviour” (Taylor 2016: 160). Here biology crosses over
into evolutionary psychology.
That disciplinary crossover aside, for the psychological crimi-
nologist, the determinants of individual criminality are to be found
primarily in various aspects of the human personality. These include
extreme intraversion and extraversion (Eysenck 1964), a weak super-
ego and riotous id (Alexander and Ross 1952), insanity (Menninger

54
2: STATE

1969; Prins 1980), an “immature theory of mind” (Baron-Cohen

1995, cited in Taylor 2016: 233) and “a commitment to bureaucratic
detail coupled with an opportunistic belief in a Messianic identity”
(Kuttner 1985: 35). This last pair of features is said to characterize
“the genocidal mentality” as exhibited by Philip II of Spain, Sultan
Abdul Hamid II of Turkey and Adolf Hitler, although the author
acknowledges that “[s]orting criteria that can identify and separate
invisible mental lesions of individuals prone to mass violence remain
unknown” (Kuttner 1985: 42). During the Gulf Massacre (January–
March 1991), Saddam Hussein was credited with exhibiting the
pathological condition called by its inventors “malignant narcissism”
(Post 1991: para. 5). Police forces in the United States and Canada
claim to have discovered a condition they call “excited delirium syn-
drome” (Goldman 2007: para. 1) among persons they apprehend or
who are in their custody, some of whom they end up shooting to
death. Comment should be superfluous.

Sociological theories of criminal behaviour

Sociological theories of criminal behaviour locate the difference

between the criminal and the normal person in the character of the
social environment to which the person is exposed. Early work by
the Chicago School of Sociology, for example, correlates criminality
with urban “social disorganization” or “social pathology” in terms
similar to Durkheim’s concept of anomie; that is, a lack of moral
regulation brought about by rapid social change. Merton (1938) also
employs the concept of anomie, though rather differently (see Hilbert
1989), linking deviant behaviour with the disjunction between insti-
tutionalized aspirations and the availability of access to legitimate
opportunity structures. The prime candidates for criminal behaviour
such as property theft, for example, are those whose class position
prevents them from realizing material success through school, work
and other legitimate means. For Sutherland, in his theory of dif-
ferential association – first propounded in the 1939 edition of his
Principles of Criminology – the link between society and criminal
behaviour is related to exposure to “definitions favourable to the
violation of law.” In particular, Sutherland proposes that “a person
becomes delinquent because of an excess of definitions favourable
to violation of law over definitions unfavourable to violation of law”

55
 PART I: POSITIVELY UNDERTAKEN

(Sutherland et al. 1992 [1934]: 89). We take this up again in Chapter

5. Later, in the work of subcultural theorists such as Cohen (1955),
Cloward and Ohlin (1960) and Young (1971), attempts are made to
combine the Mertonian emphasis on structural disjunctures and the
Sutherlandesque focus on cultural transmission. The major, though
not exclusive, focus of these studies is on lower-class delinquency. In
addition, control theory examines the connection between criminal
behaviour and the weakness or absence of certain social bonds such
as commitment to conformity, attachment to conventional others,
involvement in conventional activities and belief in the legitimacy
of particular rules. “Control theory is now greatly in vogue, par-
ticularly in the United States, where it is linked with theories of
‘life-course’” (Rock 2012: 52). It is not surprising, perhaps, to find
in neoliberal times “the resuscitation of old utilitarian theories that
preceded sociology” in the form of “rational choice theory,” which
Rock calls “an increasingly important, but not indispensable, founda-
tion for control theories” (2012: 52). Closely related to it is “routine
activities theory” (see, for example, Felson 2000). The contributions
to Simpson’s (2000) collection Of Crime and Criminality: The Use of
Theory in Everyday Life provide a representative review of this range
of theories.
According to Nick Tilley (2012: 184), since the early 1980s, the
prevailing view that “to understand crime we need to understand
criminals,” and thus to control crime it is necessary to control crimi-
nals, has been challenged by the view that crime control should be
“focused on places rather than people.” “Broken windows” theory is
a prominent example of such theorizing (Kelling and Wilson 1982;
Kelling and Coles 1996). Reviewing a recent work in the field, Policing
Problem Places (Braga and Weisbrud 2010), Tilley points out how
the authors draw on routine activities theory, opportunity theory
and crime pattern theory to explain the social and spatial distribution
of crime before recommending “situational problem-oriented polic-
ing” as the relevant solution. In his theoretical review, Rock (2012:
54–59) traces the interest in space back to the Chicago School’s focus
on “social ecology and urban mapping . . . in the 1920s and beyond”
(mentioned above), and forward to the increasing significance being
attached to surveillance and its study.This is due, he avers, not least to
the “massive” influence on criminology of Foucault’s “dramatic simile
of Jeremy Bentham’s model prison, the Panopticon” (Rock 2012: 58)

56
2: STATE

in Foucault’s (1977 [1975]) book Discipline and Punish. It also reflects

the theoretical attention being accorded to risk (Beck 1992) as “late
modern” societies come to manage the risk to modernization’s dream
of progress posed by modernization itself (Giddens 1990, 1991). The
fascination with “big data” is the most recent expression of this trend.
Under the influence of Foucault’s work on “governmentality,” the
growing use, by police and other state agencies, of official statistics,
including official crime statistics, as tools of crime control has come
to be an area of fruitful study (for example, Gundhus 2011). We take
up this subject in Chapter 10.
Whether explicitly derived from his work or not, the sociologi-
cal theories considered above may be said to stand in the tradition
of theorizing established by Durkheim in Suicide (1951 [1897]) and
The Rules of Sociological Method (1982 [1895]).The behaviour in ques-
tion, here criminality, is to be explained in terms of the principles of
social-structural differentiation and determinism. Moreover:

Although we set out primarily to study reality, it does not follow

that we do not wish to improve it; we should judge our researches
to have no worth at all if they were to have only a speculative
interest. If we separate carefully the theoretical from the practical
problems, it is not to the neglect of the latter; but, on the contrary,
to be in a better position to solve them.
(Durkheim 1964 [1893]: 33)

Readers desiring fuller, if still relatively brief, textbook accounts of

the range of standard sociological theories of criminal behaviour
may turn to the latest edition of Downes and Rock (2011) or, par-
ticularly for Canadian readers, Downes et al. (2013) and O’Grady
(2011).

The grammar of correctionalism

Having described what appear to us as the distinguishing features of
both administrative criminology and correctional criminology, we
seek now to respecify them in grammatical terms.This respecification
entails assembling a set of reminders about how the statistical facts and
findings of administrative and correctional criminology rest on the
methods of everyday criminological/sociological inquiry.

57
 PART I: POSITIVELY UNDERTAKEN

Correctional criminology, whether as purely administrative statis-

tical correctionalism or as theorized correctional criminology, is in
the first place a state-dependent enterprise. “For most of its existence
criminology has been located, for all practical purposes, within the
institutions of the criminal justice state” (Garland and Sparks 2000:
201). This means it is motivated by, constituted as and responsive
to, the state’s fundamental interest in managing, administering and,
where necessary, correcting its population. It further means that it is
unavoidably political, economic and bureaucratic in character, being
responsive to the requirements of the government in power – not
least the need to budget and allocate its resources, the demands issu-
ing from the public at large or particular segments of it, and the
demand characteristics of the organizational infrastructure in and
through which its tasks must be carried out. It is with respect to
these contexts that the meaning and use must be assessed of the
official crime statistics on which administrative and correctional
criminology depend. The fact is, however, that the debate over the
meaning and use of official statistics in professional sociology has
not been addressed in this way, but rather in terms of the utility of
these data for the purposes of scientific description and theorizing
on the assumption that crime exists independently of any inquiries
into it. In grammatical terms, this is a clear case of “taking language
on holiday”; that is, removing these organizational objects in quan-
titative form from the very contexts where they alone make sense.
First, we shall briefly consider the issue of official crime statistics
in sociology at two moments of their assembly and use; namely, in
the production of the index called “crimes known to the police”
and at their major point of consumption in the halls of government
administration. Second, we will characterize the general form of cor-
rectional criminology’s theories. Third, we will return to reflect on
the significance of the place of these sociologies in relation to the
state.

The meaning and use of official crime statistics

Assembling crimes known to the police

In the epigraph that heads this chapter, the economist Josiah Stamp
captures in a particularly colourful way a point that no serious

58
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practitioner of criminology would deny, whatever their sociological

perspective. Indeed, criminal justice workers themselves, notably the
police, are some of the strongest critics of the utility of official crime
statistics as measures of the “real” volume of crime (Meehan 2000:
338), as teachers of criminology who have them as students can testify.
When reference is made in the news media or elsewhere to “crime
statistics,” what is meant is what police record as “offences known to
the police.”While the criminal justice system also counts convictions,
and the dispositions of offenders by sentence (fine, probation, prison,
etc.), we will confine ourselves to the count known as “offences
known to the police” in what follows. The “errors” to which crime
statistics are prone are well known. Thus:
1. Victims may not know they have been victimized. An employer
or employee may be defrauded by the other and never discover
it. A citizen may be “disappeared” by the security forces of their
country without those concerned about them ever knowing for
sure. Consider the case of the missing 43 Mexican students from
Ayotzinapa (Goldman 2015). Consider the missing indigenous
women in Canada (Walter 2015).
2. Victims may never report alleged offences to the police for
understandable reasons.
3. When reports of offences are made, the police may never record
them as such. In the 1980s, officials in Canada and the United
Kingdom publicly acknowledged that police had standardly
“unfounded” about a third of reported rapes (Eglin 1987: 191).
Bell (1960) reveals a practice employed by New York detectives of
holding back complaints and reported burglaries so as to reduce
the number of unsolved crimes. If a felon was apprehended, he
was then more or less coerced into confessing to some number of
this backlog of offences, thereby allowing the police to clear their
books (Duncan and Eglin 1979: 13).
4. In observing the “sanctity of work shifts” and the “division of
department labour,” police officers quite readily ignore perceived
offences that occur as they are “going in” at the end of a shift, and
offences that do not concern them, such as thefts they encounter
while doing narcotics work (Turner 1969).
5. The selection of the category under which to record some reported
or detected offence will vary with the administrative recording
procedures of the jurisdiction in question (Silverman 1980).

59
 PART I: POSITIVELY UNDERTAKEN

6. Charging practices are also responsive to policy guidelines. The

1980s saw a general increase in the number of charges of assault
(causing bodily harm) laid by police in cases of wife beating, as
departments started to treat these occurrences as crimes (Burris
and Jaffe 1986 [1983]). Nevertheless,

Battered women . . . were usually not perceived as being in dan-

gerous situations.Women cried and shook with fear as they told
officers their husbands or lovers were going to hurt them. But
repeatedly officers responded with a “call if anything happens,”
rather than giving them the immediate protection they sought.
Everything appeared to officers to be “under control” because
they could see no visible signs of danger.
(Ferraro 1989: 69)

Ferraro (1989: 61) reports that in her ethnographic study of a large

US metropolitan police department where officers were mandated
to arrest batterers, “officers made arrests in only 18 percent of assaults
involving intimate partners.” On the basis of considerable research
evaluating “progressive” policy changes by the Metropolitan Police of
London in 1987 relating to the police response to cases of domestic
violence, Edwards (1990: 157) concludes that “the implementation
of this policy has been variable depending on individual divisions’
and stations’ within divisions willingness to embrace the policy and
translate it into practice, especially by front line officers.”We included
a couple of such cases as reported in the press at the time in the first
edition of this book. (See Whalen et al. [1988] for an ethnomethodo-
logical analysis of a relevant case.) There is plenty of evidence that
such practices continue in the present.
The situation is further specified by the police practice of concep-
tualizing offences in racial terms:

If the family were white, the police would take the offense more
seriously. A stabbing by a white woman of her husband suggests a
potential homicide to police, while a similar Black cutting can be
written off as a “North Westville battery.”
(Skolnick 1975 [1966]: 172)

In 2016, aboriginal women in Quebec came forward to report that

after being assaulted by officers of the Quebec Provincial Police,

60
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their subsequent reporting of these offences to the police was simply

ignored.4 We consider sociological explanations of the differential
evaluation of persons by the criminal justice system in terms of class,
gender and race in Chapters 7, 8 and 9.
To talk, however, of the “errors” to which official crime statis-
tics are subject is to subscribe to the same positivistic and “realist”
assumptions held by those who would base their criminology on
such data in the first place. The crucial assumption is that if only
the circumstantial contingencies attending the occurrence of crime
could be cleared out of the way, we could see the real object in all
its pristine purity, as it really is. This is the “view from nowhere.” But
the circumstances are not the obstacle to seeing the phenomenon;
they are the phenomenon.5

To treat instructions as though ad hoc features in their use were a

nuisance, or to treat their presence as grounds for complaint about
the incompleteness of instructions, is very much like complaining
that if the walls of a building were only gotten out of the way one
could see better what was keeping the roof up.
(Garfinkel 1967: 22)

To talk of “errors,” then, both compounds the epistemological mis-

take sustaining this approach to their use and misses the phenomenon
that the assembled data represent when understood in their natural
setting (Meehan 2000: 364). It is not just that for the above reasons
police may fail to detect the presumed “real” amount of crime that is
“out there.” Rather, it is through their use of such cultural beliefs and
their orientation to such organizational imperatives as outlined above
that police come to perceive and thereby to “create” the offences that
they do end up dealing with. This is the force of the grammatical, or
“interpretive” (Bottomley and Coleman 1981: 87; see Introduction to
Part II), argument. When followed through to its logical conclusion,
it means that for the professional sociologist or criminologist, the
official crime statistics could not possibly be faulty. For they are no
more and no less than what they are – “a result of three-way interac-
tion between an offender, victim or citizens [witnesses], and official
agents” (Wheeler 1967: 319, emphasis added), reflecting the volume
and nature of police work (Stoddart 1982) and the economic, bureau-
cratic and political contingencies that are taken into account in their

61
 PART I: POSITIVELY UNDERTAKEN

compilation for official police recording purposes (see Seidman and

Couzens [1974] for a particularly illuminating account).We return to
this point below in relation to the work of Meehan (2000).

Deploying crime statistics for reasons of state

We began by saying that both administrative and correctional crimi-

nology are built on the foundation of official crime statistics. There
would be nothing wrong with this if correctional criminology
attended to the actual methods by which, and the uses for which,
the statistics were assembled in the first place. But, as we have said
above, this has simply not been the case. Rather, closeted by Matza’s
set of component assumptions set out above, correctional criminol-
ogy has been seduced by the desire for scientific certainty and social
usefulness and its embedded craving for generality to adopt the view
that the figures measure (even if only estimate) something imagined
to be real crime and are thus suitable for the purpose of theoretical
explanation. This methodological mindset has persisted throughout
more than a century of critique, the response to which has been to
make methodological innovations (like the self-report and victimiza-
tion surveys) and carry on. Insofar as the critique has been made in
terms of the reliability, validity and generalizability of the statistics
as measures of the putative real-world phenomenon thought to be
crime, then, of course, the critique itself shares in the same scientistic
assumptions that Matza identifies. As one of us noted at the end of an
earlier review, “despite strenuous efforts at constructing, reconstruct-
ing and deconstructing them, the sociology of official statistics is yet
to be written” (Eglin 1987: 210).
What needs to be kept firmly in mind here is that official crime
statistics are collected and analyzed by the state for its administrative
purposes. They are not in the first place scientific data and were not
produced for theoretical purposes. They are management tools to
be used for the state’s practical purposes of social or public admin-
istration. When we say that the sociology of official statistics is yet
to be written, it is in just this sense that this is meant. With a few
exceptions (notably Meehan 2000; see also Bottomley and Coleman
1981), including Gusfield’s (1981: 55–60) brief “social history of [the]
dramatic fact” of “ten million alcoholics” in the United States, soci-
ologists have not described just what happens to these tools once they

62
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are made. Where do they go? Who gets to see them? To what uses
are they actually put? How do they figure (!) in the enterprises into
which they are inserted?
Now, it is true that, as stated above, thanks to Foucault and to sci-
ence and technology studies more generally, the production of official
data, including official crime statistics, has come to be the subject of
criminological inquiry into what is called the “co-construction”
of state, statistics and society:

the act of counting its citizens, territories, resources, problems, and

so on, is one of the acts by which the State participates in creat-
ing both itself, its citizens, and the policies, rights, expectations,
services, and so on, that bind them together.
(Saetnan et al. 2011a: 2, emphasis in original)

The statistics are here conceptualized as an instrument in the tech-

nology of governance. It might then be reasonably thought that such
studies constitute exactly the missing sociology of official statistics
just complained about. Since, however, these studies arise out of a
Foucauldian theoretical perspective, we postpone further discussion
until Chapter 10 on poststructuralism.
Without recourse to constructionist theory, we can say, in plain
language, that the work of social administration is carried out by min-
istries of the state. Thus, for example, in Canada, crime statistics are
collected, analyzed and published by the Canadian Centre for Justice
Statistics (CCJS). The CCJS is part of the Health, Justice and Special
Surveys section of the Social, Health and Labour Statistics division of
Statistics Canada, which itself answers to the Minister of Innovation,
Science and Economic Development.This, at least, is the situation in
2016, such arrangements being subject to change according to, for
example, the government in power at the time. The point of depict-
ing the organizational structure of crime data collection is to bring
out its bureaucratic, economic and ultimately political character. As
required by the Statistics Act (1985), Statistics Canada’s job is “to
collect, compile, analyse, abstract and publish statistical information
relating to the commercial, industrial, financial, social, economic and
general activities and condition of the people of Canada”; that is, “to
provide statistical information and analysis about Canada’s economic
and social structure,” in order to “develop and evaluate public policies

63
 PART I: POSITIVELY UNDERTAKEN

and programs” and to “improve public and private decision-making

for the benefit of all Canadians,” as well as promoting and improv-
ing sound “statistical methods and systems through joint research
studies and projects” (Statistics Canada 2016a: n. p.). For many soci-
ologists, this describes what they take to be the empirical and applied
arm of the discipline. In fact, many practitioners participate in “joint
research studies and projects” with Statistics Canada. As Hutchinson
et al. (2008: 37, footnote 16) say, “Some of social science is harmless
quasi-bureaucratic local ‘policy studies’.”
According to the Statistics Canada website, since 1962 the CCJS
has been collecting crimes, “substantiated by police,” through the
Uniform Crime Reporting Survey (UCR) from every police agency
in the country. The information collected includes the number of
criminal incidents and their clearance by charge or otherwise. What
is important to note here is why they do this.

Data from the UCR Survey provide key information for crime
analysis, resource planning and program development for the
policing community. Municipal and provincial governments use
the data to aid decisions about the distribution of police resources,
definitions of provincial standards and for comparisons with other
departments and provinces.
To the federal government, the UCR survey provides infor-
mation for policy and legislative development, evaluation of new
legislative initiatives, and international comparisons.
To the public, the UCR survey offers information on the nature
and extent of police-reported crime and crime trends in Canada.
As well, media, academics and researchers use these data to exam-
ine specific issues about crime.
(Statistics Canada 2016b: “Description” paras 3–5)

The data are collected, then, for practical purposes: providing data
for crime analysis by police, allocating resources across multiple
jurisdictions, providing information to governments and informing
the public. The distribution of the money that the Department of
Justice (DoJ) will spend on legal aid, for example, will be informed
by regional variations in criminal charges laid, as well as by factors
affecting service delivery, such as the rural/urban population break-
down. The DoJ is, then, one market for the crime statistics. Other

64
2: STATE

groups making extensive use of the figures can be senior govern-

ment officials and policy analysts from the Department of Justice
or Department of Public Safety at the provincial or territorial level,
tasked with developing policies and programs around long-standing
and emerging priorities in the area of public safety such as cybercrime
or hate crime. Apart from the Department of Justice, such branches
of the Department of Public Safety as Correctional Services and the
National Crime Prevention Centre, plus the Parole Board and the
Defence Research and Development branch of the Department of
National Defence will make use of the crime and justice statistics
in relation to their own operations. In general, the statistics could
be used for setting priorities for research – for example, impaired
driving caused by consuming marijuana – which can affect in what
areas government grant money will be made available for academic
research. Parliamentary committees, both standing and special, will
want to know the figures. In one month, it might be family violence;
the next month, delays in adults’ courts; the one after that, trends in
administrative offences; and the one after that, victimization in gen-
eral. “Call to Action” number 55 of the Final Report of the Truth and
Reconciliation Commission of Canada (TRCC)

call[s] upon all levels of government to provide annual reports

or any current data requested by the National Council for
Reconciliation so that it can report on [among others]:

v. Progress on eliminating the overrepresentation of Aboriginal

children in youth custody over the next decade.
vi. Progress on reducing the rate of criminal victimization of
Aboriginal people, including data related to homicide and
family violence victimization and other crimes.
vii. Progress on reducing the overrepresentation of Aboriginal
people in the justice and correctional systems.
(Truth and Reconciliation Commission of Canada 2015: 329)

At the time of writing, the much-heralded National Inquiry into

Missing and Murdered Indigenous Women was under way and no
doubt consulting the relevant official crime statistics.
The foregoing description of the uses of the official crime statistics
is cast in broad organizational terms and needs supplementing with

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 PART I: POSITIVELY UNDERTAKEN

close ethnographic observation of the settings in which, and occa-

sions on which, the actual decisions involving the statistical data are
made. Only then is it possible to see just how the data are “meas-
ured,” how their significance is assigned, in relation to the other
practical considerations that inform the decisions in question. That
surely includes how their factual status is assessed, not as a matter
of professional sociological methodology aimed at establishing the
data’s reliability and validity for scientific/theoretical purposes, but
as a matter of the practical methodology of organizational person-
nel charged with getting things done. To say that their meaning is
found in the practical, organizational uses to which they are put is
not to signal the shortcomings of the official statistics, but, on the
contrary, to locate them in the world in which they belong and have
their being. Although not concerned with official crime statistics, the
study by Mair et al. (2016) of some aspects of the work of members
of a statistical unit at a British university exemplifies what we have
in mind.
Garfinkel makes the essential point at several places in his Studies
in Ethnomethodology (1967). As you read this summary of his work
on this matter, imagine it is not about staff in a psychiatric clinic
recording applicant or patient contacts, but is about police officers
writing up their notes, or filling out the occurrence reports follow-
ing some incident, or coding the occurrence reports in terms of the
reporting categories required by the CCJS; and then tie that to the
uses to which the compiled statistics are put in the halls of govern-
ment as generally described above. When examining the records of
a psychiatric outpatient clinic for the purposes of a research study to
determine the criteria by which applicants were selected for treat-
ment, Garfinkel (1967: chapter 6, in collaboration with Egon Bittner)
reports that “there were few items in our schedule for which we
obtained answers.” For example,

race, occupation, religion, and education [were obtained] in

about a third of the cases . . . Of 47 items that dealt with the his-
tory of contacts between applicants and clinic personnel we had
returns on 18 items for 90 per cent of our cases; for 20 other items
we got information from between 30 per cent to none of the
cases.
(Garfinkel 1967: 187)

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2: STATE

He and Bittner come to explain this outcome as the result of “good”

organizational reasons for “bad” clinic records. The good organiza-
tional reasons arise from the clinic’s normal operating procedures
“that for them and from their point of view are more or less taken
for granted as right ways of doing things” (Garfinkel 1967: 191).
The authors conceptualize the deficiencies of the records as “normal,
natural troubles.”

The troubles we speak of are those that any investigator – out-

sider or insider – will encounter if he consults the files in order
to answer questions that depart in theoretical or practical import
from organizationally relevant purposes and routines under the
auspices of which the content of the files are routinely assembled
in the first place.
(Garfinkel 1967: 191)

Such organizationally generated troubles have to do with such things

as the anticipated cost of keeping detailed records; the “greater or
lesser dignity of paper work”; the unpredictable possibility of the
records being used in a job review of the performance of the clinic
staff member recording the data on the self-reporting form in the case
folder; the gap between the standardized categories of the reporting
form and what it takes to describe actual practice; and how

the relevance of the reporting form’s terminology to the events it

describes is subject to the stability of the on-going clinic opera-
tions . . . It is disconcerting to find how even small procedural
changes may make large sections of a reporting form hopelessly
ambiguous.
(Garfinkel 1967: 196–197)

These troubles are not, however, incidental features of clinic activities

that might be remedied by strong management, but rather “consist of
procedures and consequences of clinic activities as a medico-legal enterprise”
(Garfinkel 1967: 198, emphasis in original). The heart of that enter-
prise is the relationship between patient and clinic thought of as a
“therapeutic contract” in which “medico-legal responsibility exer-
cises an overriding priority of relevance” (1967: 200) when it comes
to the keeping and interpretation of the clinic records. Thus,

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 PART I: POSITIVELY UNDERTAKEN

A folder’s contents consist of a single free field of elements with

the use of which field the contractual aspect of the relationship
may be formulated upon whatsoever occasion such a formulation
is required.Which documents will be used, how they will be used,
and what meanings their contents will assume, wait upon the par-
ticular occasions, purposes, interests, and questions that a particular
member may use in addressing them.
(Garfinkel 1967: 203)

In this way, the contents of the case folder differ from the entries in
an “actuarial record” like a bank account statement.

The documents’ meanings are altered as a function of trying

to assemble them into the record of a case . . . Thus an effort to
impose a formal rationale on the collection and composition of
information has the character of a vacuous exercise because the
expressions which the so ordered documents will contain will have
to be “decoded” to discover their real meaning in the light of the
interests and interpretation which prevails at the time of their use.
(Garfinkel 1967: 205–206)

In a lengthy footnote to a second report of this study (Garfinkel 1967:

chapter 7, in collaboration with Egon Bittner), the author specifically
addresses the equivalence of the medical sociologist’s problem of try-
ing to determine the real amount of psychiatric illness “out there”
with the criminologist’s problem of estimating “the amount of real
crime (or the number of real criminals)” independently of contact
with the criminal justice system (1967: 215). Garfinkel writes:

Within the perspective of police activities there exists a culturally defined

“real amount of crime” committed by a culturally defined crime-
producing population. Police use “crimes known to the police” to
stand for or represent its features, like amount, trend, contributors,
etc. Correspondingly, from the point of view of clinic personnel there
exists a culturally defined “real demand for the clinic’s services.”
Clinic personnel use actual inquiries to stand for or represent its
features. Both situations – culturally defined real amount of crime
for police, and culturally defined real demand for clinic services for
clinic personnel – “exist” but only in the peculiar sense in which

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cultural objects, sociologically speaking, are said to “exist”: their

existence consists only and entirely of the likelihood that socially organized
measures for the detection and control of deviance can be enforced.
(Garfinkel 1967: 215, emphasis in original)

For the police, real crime exists independently of the CJS. But the
criminologist assuming this runs into intractable methodological dif-
ficulties: how could one ever find out? The problem, however, with
this question is that it is not ultimately an issue of the methodology
of empirical inquiry, but one of conceptual grammar. That crime
is a matter of definition, perception, reporting, recording and legal
determination by the CJS means that it is not available to empirical
inquiry (like counting) except through the operations of the CJS itself, to
the extent that such “socially organized measures for [its] detection and
control . . . can be enforced” (Garfinkel 1967: 215). Moreover,

police and clinic personnel both claim, both are given, and both,
in the particular ways of their respective professions, enforce a
monopoly on the rights to define the real occurrence of these
events and to advocate legitimate controls for them.
(Garfinkel 1967: 216)

Finally, we may draw from Garfinkel’s studies one more observation

that suggests how the meaning and use of official crime statistics
should be viewed. This arises from his study of the operations of
the combined Los Angeles Medical Examiner–Coroner’s Office
and Suicide Prevention Center (SPC) where staff “were required in
their occupational capacities to formulate accounts of how a death
really-for-all-practical-purposes-happened” (Garfinkel 1967: 13–14,
emphasis in original). Again, organizational considerations were
paramount. Staff wanted to produce a verdict that would withstand
review.“The great contingencies consisted of enduring processes that
lay in the fact that the coroner’s office [in California] is a political
office” (1967: 16).
Fortunately, in Meehan’s (2000, 2006) work, we have just the sort
of detailed ethnographic description of the politics of police prac-
tices of record keeping and compiling statistics required to explicate
Garfinkel’s point in relation to crime. Meehan’s analysis shows how
the recording and assembly of gang statistics was responsive to the

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 PART I: POSITIVELY UNDERTAKEN

demands of municipal politics in two US cities “during the criti-

cal period when gangs were becoming recognized as a widespread
national problem” (Meehan 2000: 338). What makes his study eth-
nomethodological is its focus on the interactional production of the
“problem”: “the context of accountability has a political and organi-
zational dimension but the police practices that satisfy the demands
of accountability and create the statistical reality that supports
organizational and political accountability are interactional” (2000:
340, emphasis in original). The level of detail can be appreciated
from the stages he distinguishes in “the organizational career of a
statistic” (2000: 340). What we identified in Chapter 1 as the report-
ing and recording moments of criminalization he separates into six
stages:
1. citizens’ formulation of a problem to the police operator in a call
for service and how such formulations are understood by operators
as constituting a gang/group problem and subsequently encoded
into an organizationally relevant and actionable category;
2. dispatchers’ formulation of the problem to the patrol officers
assigned to respond to a call;
3. patrol officers’ understanding of the dispatchers’ formulation of the
problem to which they are responding;
4. patrol officers’ location and assessment of the “problem”;
5. patrol officers’ response to the “problem”;
6. the various records produced by patrol officers regarding their
response and the gang statistics that result from those records
(Meehan 2000: 340).
He obtained two data sets. The first consisted of “a sample of tel-
ephone calls to the Bigcity 911 emergency number that were
categorized as gang calls by the police operators and dispatchers and
subsequently assigned to the gang car in Bigcity’s Corktown police
district” (Meehan 2000: 341). The second data set consisted of

all available records and recordings for one evening’s work in the
gang car . . . [including] the transcripts of citizens’ calls, dispatch-
ers’ assignments of the calls, transcripts of the police response
(tape-recorded), the author’s field notes from the car, and the cor-
responding records (e.g., patrol logs) of the police response for
that evening.
(Meehan 2000: 341)

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Conversation analysis of the calls afforded “a view of the citizens’ own

formulations of their problems and how these formulations are con-
stituted and negotiated by operators and citizens as a ‘gang’ problem”
(Meehan 2000: 341). It further showed

how police operators encode such problems, a process that is

sensitive to the interactional organization of the call, the politi-
cal context to which the operator/dispatcher and the police are
accountable, and the organization’s current solution: namely, the
availability of a ‘gang’ car to handle such problems.
(Meehan 2000: 341)

The gang cars had been introduced into Bigcity by the mayor during
an election year to deal with the perceived gang problem. Through
his analysis, Meehan is able to show, in interactional detail, “how
groups of ordinary young people were constituted as gangs at vari-
ous points in the course of citizen complaints and police responses to
incidents during a time when gangs [had] been publicly designated
as a problem” (2000: 340). Moreover, his analysis demonstrates “that
police recordkeeping is geared toward external accountability and
is only a gloss for ‘what happened’” (2000: 342). That is, entirely in
keeping with Stamp’s epigraph,

the officers’ organization and use of the category “gang” [was]

responsive not only to the immediate problems of achieving the
police relevance of a citizen’s complaint (i.e., within a call for ser-
vice) but also to the organization’s work relevancies (i.e., generating
“activity”) and the larger political framework to which the police
are held accountable (e.g., “solving” a problem in an election year
to make the incumbent mayor look good). In this fashion, “solu-
tions” to problems may in fact produce the records that are used
to constitute the statistical existence of a problem in the first place.
(Meehan 2000: 342)

Further references to studies aligned with that of Meehan are pro-

vided in the section of Chapter 6 surveying themes and studies of
ethnomethodology and crime.
The whole of the preceding account of the meaning and use of
official crime statistics and the two sociologies built on them may well

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 PART I: POSITIVELY UNDERTAKEN

feel to the reader like a critique of the whole enterprise, but critique,
at least in the conventional sense of showing the mistakes, failures and
successes of the enterprise in question, is not its principal purpose.
This is so for at least the following two reasons. The first fact of the
matter is that correctional criminology and the administrative crimi-
nology from which it derived and departed are institutional facts of
life of long standing in modern public administration and professional
sociology.They are, in a perfectly Durkheimian way, undeniable social
facts in themselves. In some incontrovertible way, they “work” for the
enterprises of which they are part.They produce results and the results
are used for the purposes trafficked in by their respective institutional
settings. To say as much is not to take some uncritical, milquetoast
attitude to the bureaucratic or research practices of modern (or post-
modern) societies, their states and their professions. It is not being said
here that such administrative and professional academic endeavours
are impervious to critique or should be left alone to go about their
respective businesses in peace. Not at all. Rather, the attitude adopted
here is one of awe at the fact that such socially organized life exists at
all. “Not how the world is, is the mystical, but that it is” (Wittgenstein
2007 [1922]: 6.44, p. 107). That correctional criminology and adminis-
trative criminology manage to do what they do, that they can be what
they are, this is the question being addressed here. Moreover, to the
extent that a politics may be attributed to the ethnomethodological
position being adopted here, that politics is indeed

antiadministrative. By this I do not mean that ethnomethodolo-

gists necessarily are hostile to administrators. Instead, the idea is
that no amount of foresight or planning will ever be sufficient to
guarantee the effective realization of administrative schemes. This
lesson applies to reformists no less than to reactionaries.
(Lynch 2008: 728)

And second, part and parcel of the way such institutional facts of life
are sustained as such is that critique is built into their practices.To put
it another way, program evaluation is done by the program itself as
part of the program (Rawlings 1981). Consider the extent to which
this is true of the whole criminal justice system. Thus, even before a
criminal law is passed defining some action as crime, it is presented
as a bill to parliament or congress; is given, say, three readings; is

72
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studied by committee and reviewed by the “upper” house, in both

cases being subject to possible amendment. Once passed into law, it
may be amended by subsequent acts of parliament or congress or
made part of the remit of some criminal law commission looking
into reforming some section of the criminal law. The law itself will
be closeted with regulations by the relevant ministry and its provi-
sions must be interpreted by the courts.The courts are themselves, of
course, at least in the English-speaking world, adversarial in character,
which is to say that testing of their findings is built into their very
operation. Moreover, any given verdict or, indeed, any law’s consti-
tutionality may be challenged on appeal in a particular case, and this
appeal may be reviewed by a higher court before possibly arriving on
the agenda of the supreme court of the state in question.The decision
of that court may be to find the law, or part of it, unconstitutional and
to send it back to the government in power for re-working within
a prescribed time limit. Or it may overturn the lower court’s verdict
and render a different one. In the case of Oscar Pistorius, the South
African Supreme Court in December 2015 changed the original
verdict of culpable homicide to one of murder. In other words, criti-
cal review is a constitutive part of the operation of the system.6 The
more general point has been made this way by a student of the role
of science in legal proceedings:

[W]hen we consider the resources (scholarly, financial, etc.) that

feed into big court decisions, as well as the consequences of such
decisions, . . . instead of proposing what judges should know about
the sociology of science, we may instead hope to enrich the soci-
ology of science by examining how judges articulate phenomena
of interest to our field.
(Lynch 2014: 109)

And it’s not just the sociology of science. Labelling theory (symbolic
interactionism) may have something to learn, perhaps, from Justice
Morris Fish of the Supreme Court of Canada in a 2010 case in which
the court narrowly overturned a 2005 child pornography conviction
on the basis of a botched search warrant:

The portrait that police painted of Mr. Morelli in the information

they put before a justice of the peace “invoked an unsupported

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 PART I: POSITIVELY UNDERTAKEN

stereotype of an ill-defined ‘type of offender’ and imputed that

stereotype to the appellant. In addition, it presented a distorted
portrait of the appellant and his surroundings and conduct in his
own home at the relevant time.”
(Blanchfield 2010, quoting Justice Fish writing for the majority)

And so it is for the practices of statistical data gathering and analysis

on which administrative criminology and correctional criminology
are based. The national statistical agencies that produce the reports
are more or less constantly reviewing their practices and procedures.
It is precisely as a consequence of this feature of institutional practice
that self-report and victimization surveys came to be added to the
“offences known to the police” in the reporting of official crime
statistics.
The larger point is not that the scientific criminologist can take
comfort from the self-correcting nature of the CJS that the data it
produces are more useable for his or her theoretical purposes than
they might otherwise be thought to be. No, the point is that the
rationality of official crime statistics is to be assessed in terms of the
organizational uses to which they are put. The CJS, and the offices
of public administration that consume its products, have their ways
of making those assessments and it is for them to make them. What
shortcomings they might be thought to have for scientific theorizing
have everything to do with the mistaken assumptions, the category
mistakes, of correctional criminology itself that fails to understand the
incongruity of formal scientific method with the conduct of social
life. Here we are being critical, and categorically so. In the face of asser-
tions such as “Criminology can and should be a ‘natural’ science with
general theoretical principles and models about the nature of crimi-
nal behaviour” (Walsh 2014: xvii), we adopt the title of Hutchinson
et al.’s (2008) book in defence of Peter Winch, and declare “THERE
IS NO SUCH THING AS A SOCIAL SCIENCE.”

The form of theorizing in correctional criminology

The idea underlying correctional criminology that there must be

something – whether biological, psychological, sociological or some
combination thereof – about criminals which distinguishes them
from non-criminals is deeply problematic from the outset, and for

74
2: STATE

this reason. If the results of self-report surveys like those referred to

in Chapter 1 are that virtually “everybody does it” (Gabor 1994),
then not only is “the punitive attitude of society toward the con-
victed offender . . . hypocritical,” it is, more importantly, “pointless”
(Wallerstein and Wyle 1947: 118), as we noted there. There can be
nothing distinguishing criminals and non-criminals if there are not
two such populations in the first place. Indeed, in the various editions
of Sutherland’s classic textbook on criminology, it is pointed out that
all such attempts to distinguish “criminals” (operationally = people
in prison) from “non-criminals” were shown in the early years of
the twentieth century to fail miserably. (This has hardly put a stop to
the attempt to do so, however.) The same point can be made from
a consideration of criminal acts rather than criminal persons. If it is
the case that “crime” is a status accorded to some acts and not oth-
ers, at some times and not others, and in some places and not others,
and, as we have just said, if it is the case that those acts are engaged
in to some degree by most people at least some of the time, then it
is highly questionable whether there is anything special that needs to
be explained about criminal acts.
Presumably people engage in acts deemed criminal for the same
reasons they engage in activities deemed “legitimate”: “we are
brought up to do them; they are fun; there is an economic advantage
in doing them; they are the way we have always behaved; they are
how we make our living; and so on” (Sharrock 1984: 99). However,
even if this may be a useful thing to say, we should not be misled into
thinking that the question of causes is one that is worth asking in the
first place. “There cannot be specific kinds of motivation to engage
in deviant activities if there are no categories of activities which are
inherently deviant” (Sharrock 1984: 99). In short, the idea that there
exists some distinct class of acts called “criminal behaviour” is mis-
conceived from the outset. It is a mistake in the conceptual grammar
of social action (see Winch 2008 [1958]). This conclusion, however,
raises the question of what it is that people are doing when they
ask the question “why?” about crime. Are they not seeking just the
kind of general theoretical explanation of crime’s causes proffered by
correctional criminology?
The short answer is no. But before giving a longer answer, let
us consider the general form of sociological theories of criminal
behaviour that occupy practitioners of correctional criminology:

75
 PART I: POSITIVELY UNDERTAKEN

All sociologists recognize that social constraints affect individu-

als’ outcomes. These effects are sometimes relatively direct. Other
times constraints affect outcomes indirectly, first influencing indi-
viduals’ personal characteristics, which then affect their outcomes.
(England 2016: 4)

These are the opening three sentences of the abstract of the published
version of the 2015 Presidential Address given before the American
Sociological Association. We mention this to indicate their status as
representative of the discipline’s self-understanding, at least according
to what is arguably its foremost professional organization. Specifying
the full model for crime, we have the following:

SOMETHING BAD IN SOCIETY CAUSES SOME-

THING BAD IN INDIVIDUALS THAT CAUSES THEIR
BAD BEHAVIOUR

The first two terms are then placeholders for any number of slot-
fillers. Popular candidates have been name-your-drug (see Chapter 4),
comic books,TV, video games, pornography, Dungeons and Dragons,
the media and jazz:

Opponents of jazz . . . equated jazz with immorality, sexual prom-

iscuity, and poor, uneducated blacks . . .
“Jazz music causes drunkenness . . . by sending a continuous
whirl of impressionable stimulation to the brain, producing
thoughts and imagination which overpower the will. Reason and
reflection are lost and the actions of the persons are directed by
stronger animal passion.”
“I can say that from my own knowledge that about fifty percent
of our young boys and girls from age sixteen to twenty-five that
land in the insane asylum these days are jazz crazy dope fiends and
dance hall patrons.”
(Gray 1989: 144–145, quoting Leonard 1962: 33, 37)

In more professional sociological terms, social disadvantage (wrong

historical period, wrong class, wrong race, wrong gender, wrong
age, wrong family status, wrong employment status, wrong place of
residence, wrong neighbourhood, wrong friends, etc., etc.) causes
compromised individuals (wrong attitudes, wrong personalities,

76
2: STATE

wrong motivations, wrong “skills, habits, identities, worldviews,

preferences, . . . values” [England 2016: 4]) that cause crime (crimi-
nal behaviour). There should be something very familiar about this
scheme, since it is surely the generalized, theoretical rendition of the
reasoning employed every day by members of society going about
their daily affairs (Douglas 1967; Atkinson 1978). The difference is
that in the attitude of everyday life, such reasoning is attentive to the
practical circumstances in which it is being done.
That is, practical reasoning is attentive to what Garfinkel calls the
“this’s.” He explicates this idea in the course of describing how SPC
inquiries into equivocal deaths use each particular death “as a prec-
edent with which various ways of living in society that could have
terminated with that death are searched out and read ‘in the remains’”
(Garfinkel 1967: 17). The coroner and SPC employees engaged in
such inquiries must make their determinations

with respect to the “this’s”: they have to start with this much; this
sight; this note; this collection of whatever is at hand. And whatever
is there is good enough in the sense that whatever is there not only
will do, but does . . . What the inquiry can come to is what the
death came to.
(Garfinkel 1967: 18, emphasis in original)

While fully engaged with using the formula highlighted in capitals

above, their focus is on explaining particular cases, not generalized
phenomena. Moreover, their findings are made with respect to the
organizational contingencies already referred to in the previous sec-
tion.The search for explanation is embedded in practical tasks, serves
practical ends and respects practical circumstances.
There is also a deeper point at issue here.With a few minor excep-
tions, in order to determine that a given act is a crime, it must be
shown that the actor intended to commit the act or knew that com-
mitting it was wrong. Mens rea must accompany the actus reus.Without
demonstrated intent to kill, an act of homicide may be found to have
been accidentally caused and therefore not be a case of murder. But
determining intent involves inspecting the social circumstances of the
action. Thus, to adopt the general form of theorizing in correctional
criminology (above), the bad thing in society (say, a bad marriage)
may explain the bad thing in the actor (hatred of their spouse) that

77
 PART I: POSITIVELY UNDERTAKEN

may explain the criminal act (murder). But three things must be
noted about this account. The first is that explanation here is not
causal in the natural scientific sense, but rests on reasons for action.
We may say in ordinary language that the bad marriage “caused” the
spouse to hate their spouse and that such hatred “caused” the murder,
but we are not supposing that these relations are causal in the way that
the application of heat causes water to boil (though we may use such
a metaphor for effect). No, we are engaged in the analysis of reasons
for action in a moral context, an altogether different framework for
understanding, and one that is ultimately social in character, resting
on our members’ knowledge of how such things as marriages can “go
wrong,” and how spouses can come to hate each other sufficiently to
want to kill each other.The links among the social state, the individual
condition and the action are “socially-conceptual.” That is, they rest
on the inter-linked meanings of “bad marriage,” “hatred of spouse”
and murder-in-this-case. Indeed – and this is the second thing to
note – determining what took place – namely, that this homicide is
a murder – depends on explaining why it took place; namely, that this
was an act of hatred arising from a bad marriage. That is, coming up
with the explanation is part of the way the fact of the matter is itself
established.This crucial feature of the way that facts and explanations
are related in practical reasoning has been classically demonstrated
in connection with suicide, contra Durkheim, by Garfinkel (1967),
Sacks (1963; 1972a: 57), Blum and McHugh (1971: 100–101), who
also discuss murder, and Atkinson (1978: 171–172). It is captured in
these words of Garfinkel (1967: 106): “If the interpretation makes
good sense, then that’s what happened.” He is here referring to jurors’
decision-making in a study that we review in Chapter 6.
The third thing is that that moral context of understanding is one
in which the typical goal of the inquiry is to assess responsibility for
the action, not scientifically to explain its causes. The practical actor
is concerned to distribute guilt and innocence, blame and blameless-
ness, fault and its absence, inadvertence and its opposite and so on (see
Hart 1965 [1948–1949]: 170). Wresting the accountability of action
from its moral and legal context in order to treat its factual elements
as a set of independent empirical data linked in a nexus of causal
relations is to miss the phenomenon entirely (Stetson 1999: 87–88).
We take up the further sociological analysis of members’ explanatory
accounts – in the form of justifications and excuses – in Chapter 5.

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For a discussion similar to the foregoing, see Berard (1998). For

extended discussion of the concept of causation in the law and its
dependence on commonsense use, see Hart and Honoré (1985). And
for clear-headed articulation of the differences among the concepts
of “cause,” “intention,” “motive” and “reason” in relation to action,
see Winch (2008 [1958]: 71–77) and Sharrock and Watson (1984).

The state, crime statistics and correctionalism

The state is the ultimate owner and/or disposer of everything within

the boundaries of its territory. This includes the land upon which its
people live; the charters by which corporations, whether cities or
companies, legally exist; and the citizenship by which said people
enjoy the rights and responsibilities of living there. The state is the
arbiter of the realms of the public and the private, of the definition
and scope of criminal and civil liability, of crime and tort.The state is
the ultimate source of legitimate force. Thus may be understood the
following matters: the extent to which actual states enjoy a virtual
monopoly of the means of violence; the priority accorded in criminal
codes to actions taken against the state itself (treason, sedition, espio-
nage, leaking of secrets, deserting of armed forces); the severity of the
sentences such crimes draw and the fierce and unremitting pursuit of
those suspected of such crimes (consider the situations of Wikileaks’
founder Julian Assange, Chelsea [formerly Bradley] Manning and
Edward Snowden); the criminalization of protest, dissent and other
“offences” against public order; Bittner’s formulation of the specific
nature of police competence: “The policeman, and the policeman alone,
is equipped, entitled, and required to deal with every exigency in which force
may have to be used” (Bittner 1974: 35, emphasis in original); and the
social worker being regarded as the unarmed equivalent of the police
as an agent of the state.7
If, in democratic societies, “the people” are the ultimate source of
the state’s authority, they are at the same time its ultimate enemy (see
Chomsky 2003: chapter 1). Thus it is that many states constitution-
ally provide for the legitimacy of military coups to protect the state
against the people. From the point of view of state administration,
the people, as “the public,” is or are the population that must be
managed. Thus it is that such management in the form of public or
social administration may be regarded as the highest art, requiring the

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service of the “best” people who have received the “best” education.
In the immortal words of Robert McNamara:

Management is in the end the most creative of all the arts for
its medium is human talent itself. The real threat to democracy
comes . . . from undermanagement . . . To undermanage reality is
not to keep it free. It is simply to let some force other than reason
shape reality.
(from The Essence of Security [1968],
quoted in Chomsky [2005 (1970)]: 51)

(Readers are encouraged to look up what Chomsky says about

McNamara’s position immediately following this quote.) Required,
then, are such data on the population as are suitable for its effective
management.
Gathering data on the state of said population – its size, age
and gender composition, geographical distribution, state of health,
involvement in work and so on – is simply required for effective
administration, as the debate over the removal and reinstatement of
the long-form census in Canada between 2010 and 2015 amply dem-
onstrated. Crime and its measurement have always been a significant
part of such public administration, given the state’s necessary and
inevitable interest in law and order. Locating and managing problem
populations that, whether through disease, poverty, “immorality” or
criminality, are potentially disruptive of the orderly transaction of
public affairs, is a given activity of states. Such is made evident in the
typical categories into which the offences making up a state’s crimi-
nal code are divided; namely, offences against public order, offences
against property and offences against the person. We take up Marxist
criminology’s theoretical critique of the role of the state’s power to
criminalize as a vehicle of class control in Chapter 7.
As that data in the form of official national statistics on such things
as crime and suicide became available in the nineteenth century,
sociology itself came into (pre-)professional being in close proximity
to social administration (or social work), as evident in the many UK
university departments that combined the two disciplines. For at least
the last 150 years, correctional criminology has continued to stand
alongside the correctional agencies of the state, from government
ministries to municipal mayors and police chiefs, in “fighting crime”

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(see Rock [1986] for one notable example). For us, the presumed
equivalence of sociological and social problems belied by this practice
indicates an endorsement by the sociologist of the norms, values and
beliefs the perceived violation of which gives rise to the “problems”
in the first place.We question this endorsement! For us, such grounds
are to be treated as topics of inquiry rather than as resources for
generating “sociological problems.” We are interested in the use of
values, norms and beliefs by members of society as means for produc-
ing social order, and so we see no justification for subscribing to that
which we want to treat as problematic. Both in their applied work,
and more fundamentally in their theoretical formulations, adminis-
trative and correctional criminology have contributed to the process
through which crime is constructed as a problem in society. But this
is the subject matter of Chapter 4.

Exercises
1. Using endnote 3 of this chapter as a guide, find and browse the
website of your country’s crime statistics agency. Become familiar
with the types of tabular data collected and presented, the variables
in the tables and the sources of data, whether offences known to
the police, self-report studies or victimization data. Notice any
special reports on particular topics. Read the appendices accompa-
nying the tables concerning the reliability and validity of the data.
In your fieldwork notebook, note whatever strikes you in relation
to the themes of this chapter.
2. Having discovered when your country’s annual statistics are
released, check the websites of your local or national news organi-
zations to see how they are reported, what issues are made of them
and who gets to comment on them in the news media. Use your
notebook to record observations of interest.
3. Locate the website of your local, regional or national crime pre-
vention council or equivalent. Browse and note its contents.

Review questions
1. Why do states collect crime statistics? What are they for?
2. What did Garfinkel (and Bittner) mean by “good organizational
reasons for bad clinic records”? What are “good organizational

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reasons” for “bad crime statistics”? From what point of view are
such statistics “bad”?
3. What are our arguments for referring to criminal behaviour as
“so-called”? What are the consequences of these arguments for
correctional theories of crime?
4. Compare and contrast the moral assessment of responsibility for
an action and the scientific explanation of its causes.

Further reading
Seidman, David and Michael Couzens. 1974. “Getting the crime
rate down: Political pressure and crime reporting.” Law and Society
Review 8 (3): 457–494. A classic uncovering of the political manip-
ulation of crime rates during the administration of US President
Richard Nixon.
Rock, Paul. 2012.“Sociological theories of crime.” In M. Maguire, R.
Morgan and R. Reiner (eds), The Oxford Handbook of Criminology.
Fifth edition. Oxford, UK: Oxford University Press, 39–80.
A well-informed and clear review of the major schools of socio-
logical theory of crime.
Winch, Peter. 2008 [1958]. The Idea of a Social Science and Its Relation
to Philosophy. Third edition. London: Routledge. See chapter 3 for
lucid and devastating criticism of the idea that sociology can be
a science, with particular reference to the differences among the
concepts of motive, reason and cause.

Notes
1 Vold’s (1958) use of the term to refer to the eighteenth-century “classi-
cal” school of criminology (Bottomley 1979: 2) is different from what is
meant here.
2 See Statistics Canada, Uniform Crime Reporting Survey: www23.statcan.
gc.ca/imdb/p2SV.pl?Function=getSurvey&SDDS=3302 (Accessed 1
April 2016). The UCR survey is discussed in more detail later in the
chapter.
3 In Canada, consult the Canadian Centre for Justice Statistics; in the
United States, it is the Federal Bureau of Investigation; and in the United
Kingdom, it is the Office for National Statistics (before 2013, the Home
Office).
4 Sarah Leavitt, “More aboriginal women allege abuse at hands of Quebec
provincial police,” CBC News, 31 March 2016: www.cbc.ca/news/canada/

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montreal/quebec-police-aboriginal-indigenous-sex-abuse-allegations-
1.3512459 (Accessed 1 April 2016).
5 Thanks go to David Francis for this particular formulation.
6 Geoffrey York,“Oscar Pistorius found guilty of murdering girlfriend,” The
Globe and Mail, 3 December 2015: www.theglobeandmail.com/news/
world/south-africas-supreme-court-convicts-pistorius-of-murder/
article27576426/?utm_medium=Newsletter&utm_source=Morning+
News+Update&utm_type=text&utm_content=MorningNewsUpdate
&utm_campaign=131730108 (Accessed 4 December 2015).
7 Thanks go to Herbert Pimlott (Communication Studies,Wilfrid Laurier
University) for this phrase describing social workers.

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 3 Society

The fundamental sociological problem is not crime but the law,

not divorce but marriage, not racial discrimination but racially
defined stratification, not revolution but government.
(Berger 1963: 50)

What is arguably the most fundamental question in criminology is

“Why is there crime at all in society?”We have said in Chapter 2 that
the possibility of crime depends on given acts being proscribed by
the criminal law; that is, that crime depends on law, and on particular
instances of action being identified and interpreted as crimes; that
is, that crime depends on crime-processing agencies, convention-
ally the police and the courts. But these matters presuppose that
“society” should define any acts in the first place as criminal. Why
does criminalization occur at all? Why does any society draw a line
distinguishing morally acceptable and morally unacceptable conduct,
enforce that boundary and punish those who breach it? Why should
there be any system of criminal law, police, courts and corrections
at all?
Before going on to answer this question, we draw the reader’s
attention to the fact that “society” appears in quotation marks in the
previous paragraph.Why is this? We put “society” in quotation marks
here because up to this point in the book, our argument has been
that crime is defined by the state. How does something called society
now enter the picture? It is true that

there has certainly been a long intellectual tradition in the West,

even reaching back to classical antiquity, which has in various

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ways delineated a terrain of human association, some notion of

“society,” distinct from the body politic and with moral claims
independent of, and sometimes opposed to, the state’s authority.
(Meiksins Wood 1990: 61)

However, it is not until the eighteenth century that the modern

conception of “civil” society as a sphere of social interaction located
between the household and the state appears. “Through many subse-
quent political changes this kind of distinction has persisted: society
is that to which we all belong, even if it is also very general and
impersonal; the state is the apparatus of power” (Williams 1985: 293).

Society is now clear in two main senses: as our most general term
for the body of institutions and relationships within which a rela-
tively large group of people live; and as our most abstract term
for the condition in which such institutions and relationships are
formed.
(Williams 1985: 291)

This concept of society, generalized and abstract as it is, was decisively

established in the eighteenth century and gives rise to the equally
generalized and abstract distinction between “individual” and “soci-
ety” that became built in to the foundation of professional sociology
in the nineteenth century (Sharrock 1987; Sharrock and Watson
1988). With that distinction arose also the fundamental sociologi-
cal question expressed in the quotation from Berger that forms the
epigraph of this chapter: how is society possible at all? The question
is not why things go “wrong” (crime, divorce, racism, revolution),
but how it is that there are social institutions (law, marriage, a racially
defined stratification system, government) in the first place.
To return to the question posed above of why criminalization occurs
at all, why there are laws and a criminal justice system, the answer
depends on which sociological perspective is used.We are concerned
here with the answers provided by those sociologists employing the
functionalist approach, what we called in the first edition of this
book the “structural consensus” perspective and will continue to use
as an alternative designation here. They see the question as invit-
ing a “functionalist” answer. That is, criminalization is said to occur
because it serves some societal purpose, provides societal benefits and

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contributes to social order. As we shall see in Chapter 7, sociologists

employing the Marxist (or “structural conflict”) approach can also be
said to provide a functionalist answer to this question. Consensus and
conflict accounts differ, however, in just what these purposes, ben-
efits and contributions consist of, or just what population they serve.
They agree, however, that criminalization is analyzable in terms of its
beneficial (and detrimental) consequences. Here we are concerned
with the consensus account as classically displayed in the work of
Durkheim and Erikson.We shall also consider two more recent exem-
plars of the functionalist approach; namely, a study in the comparative
statistical analysis of crime rates by Tonry, and Colburn’s analysis of
the functions of the fistfight in ice hockey based on ethnographic
observations. We then examine the grammar of functionalism. First,
however, we must say something about functionalism itself.

Functionalism
In Chapter 2 we said that an abiding methodological characteristic
of mainstream studies in correctional criminology is their “abstracted
empiricism.” This expression coined by Mills (1959) is one part of a
pair, the other being “grand theory.” By “grand theory,” Mills means
to refer to the elaborate “armchair” theorizing of the US sociolo-
gist Talcott Parsons who employs the “functionalist” perspective
for thinking about society. Functionalism is ancient in origin, but
it was formulated again for the social sciences in the nineteenth and
early twentieth centuries by, especially, the anthropologists Bronislaw
Malinowski and Alfred Radcliffe-Brown, and the sociologist Émile
Durkheim. The basis of functionalism is the “organic analogy,” the
idea that society is like an organism, particularly the human organism.
In bio-medical terms, an organism like the human body may then be
thought of as being a system, comprising various sub-systems, each
part specialized in some way but contributing to the functioning
of the whole. This analogy is then adopted for thinking about the
internal structure of society.The whole society is likened to a system
that has various needs or functions (“functional imperatives”) that
must be met in order for it to survive; that is, to adapt to its external
environment, and to regulate and integrate itself internally. The parts
of society – namely the institutions that make up the economy, the
polity, kinship relations and cultural and community organizations

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(including religious ones) – are then thought of as sub-systems that

become specialized in meeting these needs. Parsons’s model of the
social system is called the “AGIL” which stands for the Adaptation,
Goal attainment, Integration and “Latent pattern maintenance and
tension management” functional imperatives he identified.
The structural consensus perspective is so named because of the
role it ascribes to moral or normative consensus in the explanation of
social order. It assumes that socially organized life is not possible with-
out widely shared fundamental values. Such values are said to underlie
and be expressed in the norms that regulate the various institutional
orders of society identified above and which, incorporated into roles,
become internalized into the personalities of individual members of
society. From this point of view, law in general and criminal law in
particular assume a particular significance insofar as they embody an
agreement on fundamental values. Furthermore, functionalism does
not require the view that societies remain static, but holds rather
that change in one sector of society may ramify through the rest of
society. Structural consensus theorists incorporate an evolutionary
component into their theorizing, arguing that as societies changed,
so did their values and systems of law. Durkheim’s analysis of the
case of Socrates (see below) was generalized in his earlier work on
The Division of Labour in Society (Durkheim 1964 [1893]) where he
argues that forms of law are an expression of the forms of solidar-
ity in society. As societies changed from “mechanical” to “organic”
solidarity, so their forms of law changed from being in the main
repressive to being preponderantly restitutive. According to Michael
Tonry, although “Durkheim had insightful things to say about crime
as an organic outgrowth of social systems and about changes in levels
and types of crime over time, . . . relatively few theorists have added
much that is useful to his analysis” (Tonry 2014a: 48–49).We take up
Tonry’s work below.
The structural part of structural consensus refers not to anything
physical, like people or buildings, but to the abstract objects called
“roles,” where a role is essentially a set of expectations about how
to act. So, in this view, a society’s social structure is an elaborate,
interrelated collection of expectations about how to behave.
A further feature of Parsons’s structural-functionalist model of
the social system is one that is directly related to Colburn’s (1986
[1985]) analysis of violence in ice hockey that we review below.

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It is the distinction between instrumental and expressive functions.

Instrumental functions have to do with those aspects of activities
that are directed to getting something done, closely related to what
Parsons calls “task performance,” while expressive functions have to
do with those aspects of activities that are directed to maintaining
system units and their relations with one another, what Parsons calls
“system maintenance.”

The functions of crime

The structural consensus analysis of the functions of crime is similar
to this perspective’s analyses of a wide range of social phenomena,
including religion, the family and the school. The basic approach is
to identify the consequences, both positive and negative, which these
phenomena have for the society as a whole. As we have said above, the
underlying assumption is that society can be viewed as if it were an
organism, such as the human body, with each of its constituent ele-
ments having some function to perform in the overall survival and
stability of the whole. Sociologists have long sought a technical means
of identifying and distinguishing the functional and dysfunctional
aspects of human activity. As would-be social “physicians,” they have
attempted to diagnose the “diseases” of the social body and to identify
the “health-promoting” features of social life. In the Introduction to
Part I, we noted how the national statistics – especially of crime and
suicide – emerging in the second quarter of the nineteenth century
were regarded by the proto-sociologists known as the moral statisti-
cians “as precise indicators of the moral state of a society” (Giddens
1978: 42). Keep in mind that, as we stated above, the idea of “society”
as a collectivity to which “we” all belong as “members,” and the idea
that the population of a country formed “a society,” were still rela-
tively new, so that the corresponding idea of diagnosing society’s or a
society’s health or moral state was an exciting one, once the prospect
of doing so “scientifically” presented itself.When, in the last decade of
the nineteenth century, Durkheim proposed that such a collectivity
had its own characteristics and mode of existence that were inde-
pendent of the characteristics of the “individuals” who made it up,
but which exerted an external constraint on them (Durkheim 1982
[1895]: 59), you can imagine the impetus this definition of “social
facts” would give to the new “science of society” called sociology.

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Referring to the pre-history of Canadian sociology before 1880,

Bruce Curtis writes:

In consequence of sociology’s missing memory, students and aca-

demics risk being cut off from the sense of surprise and wonder
that contemporaries had at the “discovery of the social” – that
world-shattering encounter with an order of regularity beyond
individual will and intention; an order susceptible to scientific
documentation and analysis; an order that is a potential object of
mastery.
(Curtis 2016: 219)

What we want to emphasize here, however, is just where the inter-

est lay in this new form of inquiry. It was not so much in the social
phenomena themselves; that is, the actual crimes and the suicides.
For example, Parsons’s heir, the functionalist Robert Merton who
authored the anomie theory of crime/deviance reviewed in Chapter
2, “had no interest in criminology and little interest in the nature of
crime or its correlates” (Gottfredson and Hirschi 1990: 78).The inter-
est, rather, was in the condition of the societal body that generated
the crimes and other forms of deviance.The interest was in what the
statistics could reveal of the moral health of the society as a whole.
The underlying theoretical conception of society was functionalist.
The statistics were read as a barometer of societal health. Notice that
while this mode of inquiry retains the correctional outlook identified
in Chapter 2, and involves the analysis of official statistics, it is not
about correcting individuals, but about correcting whole societies.
To mix the two enterprises is to be susceptible to the ecological fal-
lacy; namely, deriving conclusions about individuals on the basis of
correlations among collective social facts, something that Durkheim’s
classic work on suicide was not innocent of (Cresswell 1975). His
comparative analysis of the suicide rates of European countries in
the nineteenth century finds its parallel in the comparative and cross-
national study of crime and criminal justice systems in the present.
If Durkheim and fellow inquirers were alarmed by the rising suicide
rates of the time, and read in them, like tea leaves, the ominous fate
of Western civilization, current criminological inquiry of this type
is focused squarely on what is perceived as the long-term fall of
crime rates across the English-speaking societies and Western Europe.

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Although we could have reviewed this work under the heading of

correctional criminology in Chapter 2, we consider it here in order
to emphasize not its natural-scientific pretensions and causal theo-
rizing, but its functionalist premises. An excellent exemplar of the
current state of this criminological research paradigm can be found
in Michael Tonry’s (2014b) edited collection Why Crime Rates Fall
and Why They Don’t.

Tonry: why crime rates are falling throughout the Western world

In his own contribution to the collection, Tonry asserts, “Almost no

one except a handful of academic specialists seems to have noticed
that crime rates are falling throughout the Western world” (Tonry
2014a: 1). Homicide rates have fallen “more or less continuously
since the late Middle Ages through the middle of the twentieth
century . . . [and] rates for other crimes fell from the early nine-
teenth century to the middle of the twentieth” (Tonry 2014a: 2).
Rates then rose in the 1970s and 1980s only to resume falling in
the 1990s. They have continued to fall up to the time of writing
(though see Markusoff 2016). Apparent divergences in the change
of rates for some non-homicidal violent crimes and sexual offences
in some European countries he explains as the result of differences in
reporting and recording practices.While he reviews the same current
theories we considered in Chapter 2, he concludes, “No one has a
really good explanation for why crime rates are falling” (Tonry 2014a:
2), although he is confident that no government policies have had any
significant effect.The most persuasive theories, he avers, are those that
appeal to “social and economic changes likely to have affected social
control processes and shaped capacities for self-control” (Tonry 2014a:
50). These include Elias’s ideas about a “civilizing process,” Weber’s
Protestant Ethic, “state formation with a state near-monopoly on
legal violence . . . industrialization, urbanization, modernization, and
bureaucratization . . . the public school, the newly invented criminal
justice institutions, the factory, the army . . . [and] religious revivals in
the nineteenth century” (Tonry 2014a: 50–51). He does not mention
the kitchen sink.The 1960s, however, upset the apple cart in all kinds
of ways from de-colonization, to the various rights revolutions, to
“massive economic restructuring” such that things fell apart, eventu-
ating in the rise of crime rates in the 1970s and 1980s. “By the 1990s,

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however, . . . the disruptions had largely been absorbed . . . [and] the

historic long-term trend [of falling crime rates] resumed” (Tonry
2014a: 51).
According to Tonry (2014a: 48), “Substantial changes in [the]
crime rate ought to be an important social indicator . . . tell[ing] us
things about the health of social systems.” As you can see, this form
of sociology tells us virtually nothing about crime, but, when cast in
terms of the “Western world,” reveals quite a lot about the studious,
anxiety-ridden enterprise of measuring the health and well-being of
the Western project, as captured in the ringing phrases of the “Great
Divergence,” the “European Miracle” and the “Rise of the West”
(which we take up critically in Chapter 11). Although different in
method, this sociological enterprise is perhaps animated by the same
spirit that motivates the reading of tea leaves and tarot cards and the
gazing into crystal balls: we just want to know if things are going right.
Like the correctional criminological theories reviewed in Chapter 2,
the comparative, cross-national studies exemplified by Tonry’s col-
lection simply assume that crime is bad. Durkheim, however, takes
a more sophisticated view. Like the functionalists that followed
him, Durkheim entertains the idea that “good” things in soci-
ety could have harmful consequences and, as we shall see, that
“bad” things in society could have positive consequences. The con-
sequences in either case are thought of as unintended, but it would
require the special talents of the professional sociologist to detect
them. That is, Durkheim and the functionalists that followed him
“argued that the business of a social science necessitated moving
inquiry beyond the reach of common sense or lay knowledge to an
examination of the unintended, objective consequences of action
that were visible only to the trained eye” (Rock 2012: 63). You
will recall that it is precisely this view that we dissented from in
Chapter 1.

Durkheim: the normality and necessity of crime

The classic example of sociological health consciousness in rela-

tion to crime can be found in Durkheim’s (1982 [1895]) distinction
between the “normal” and the “pathological.” Durkheim defines as
“normal” those social practices that are both widespread in societies
of a given type and are not disruptive of societal stability. Crime is

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therefore considered as “normal,” because it is not only widespread

in societies of all types, but it also does not interfere with the overall
stability and functioning of the social organism.This rather surprising
conclusion is defended on the grounds that the degree of our moral
outrage about human actions is not proportional to their “objective”
social harm, a view endorsed in the writings of Marxist criminolo-
gists. We reserve our greatest disapprobation for those individuals
who murder others, observes Durkheim. However, it is not clear that
society is endangered as much by this source of loss of life as it is by
other sources built into the everyday practices of the military, gov-
ernment departments and corporations, and, as feminists and critical
race theorists would argue, of patriarchal and racist social institutions.
As we shall see in the chapters to follow, our society does not view
as criminal many of these practices even though they cause harm
and injury. Whereas, as we know, Marxist theorists see in this state of
affairs a reason for complaint, Durkheim argues that there is good
reason why society should criminalize those acts that offend our
moral sensibilities irrespective of their objective harm. Indeed, both
Durkheim and those who have used a similar approach, proceed to
identify a number of positive benefits for society as a whole that
accrue from the existence of crime. Following Box (1981 [1971]),
we shall consider three of these.

Crime and the maintenance of moral boundaries

The idea that crime has a maintenance function with respect to

moral boundaries relates to the mutual intelligibility of crime and
conformity. Without the one, there can be no sense of its opposite.
The two need each other as good needs evil, as light needs dark.
If society itself in the Durkheimian view is a moral phenomenon,
then it needs immorality to make morality visible (an idea that long
pre-dates Foucault). For example, consider the figure of the addict:

Shaped by contingent historical and cultural forces, the addict-

subject offers a limit case against which normative American iden-
tity can be calculated.Whether it is during the nineteenth-century
Temperance movements that organized with the goal of sober-
ing up the nation or during the various phases of the so-called
“War on Drugs,” the addict-subject, despite the odd resemblances

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to everybody else, is made to wear the scarlet letter – A is for addic-

tion – so that others will see the limits of permissible behavior.
(Borst 2009: 2)

Moreover, this is not a task that is ever completed. Reminders are

continually required.

There was certainly a sense in which, for Durkheim, society existed

in the minds of its members, for a society could not exist without
(1) extensive agreement on morality among its members, and (2)
some awareness on the part of these members of the fact of agree-
ment between them. Without this common morality, a society
could not possess a unity. However, the mere existence of agree-
ment on morality is not enough to unify a society. Sentiments can
and will become attenuated unless they are exercised. Durkheim
tended to look upon human states of mind as somewhat akin to
muscles: they tend to atrophy if they are not used . . . Durkheim
treats many states of mind as analogous to this.We may feel strongly
against murder. But if no one is ever murdered in our society, even-
tually we shall cease to feel so strongly against it. If our feelings are
to be kept alive and strong, they must be provoked and stimulated,
that is, exercised.
(Sharrock 1984: 88–89, emphasis in original)

In view of this, then, it is relatively easy to see that public trials and
punishments can serve as not only reminders but also celebrations
of the morality. In this sense, the “criminal” serves not only a useful
purpose, but also a necessary one.

We are faced with a conclusion which is apparently somewhat

paradoxical. Let us make no mistake: to classify crime among the
phenomena of normal sociology is not merely to declare that it
is an inevitable though regrettable phenomenon arising from the
incorrigible wickedness of men; it is to assert that it is a factor in
public health, an integrative element in any healthy society.
(Durkheim 1982 [1895]: 98)

Thus Durkheim proclaims the necessity of crime for society. However,

it appears that this is not an empirical claim about the relationship

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between two independent phenomena – namely, crime and social

order – but one that arises from the very way in which Durkheim
conceptualizes “society.” That is, it is a conceptual assertion, a matter
of definition. For if society is for Durkheim in essence its moral rules,
then it is definitionally impossible for there to be society without
deviance (crime), since morality and deviance require each other.

Imagine a community of saints in an exemplary and perfect mon-

astery. In it crime as such will be unknown, but faults that appear
venial to the ordinary person will arouse the same scandal as does
normal crime in ordinary consciences. If therefore that commu-
nity has the power to judge and punish, it will term such acts
criminal and deal with them as such.
(Durkheim 1982 [1895]: 100)

Crime, then, is not just beneficial but essential to society, at least in

the Durkheimian view. Such a view, has not, however, been without
its critics. Box (1981 [1971]) and Roshier (1977), for example, call
into question two aspects of Durkheim’s work. First, they point to
the fact that it is misleading to speak of the functions of “crime” as
such because this implies that there is some objective thing that can
be unproblematically identified as “crime.” As we have pointed out in
Chapters 1 and 2, “crime” is always a matter of definition or “crimi-
nalization.” That is to say, certain acts become criminalized through
the enactment of laws and through the enforcement of those laws
with respect to particular instances of behaviour.Without enactment
and enforcement, there can be no criminal behaviour as such, only, at
best, potential criminal behaviour. This means, then, that if anything
is functional for society, it can only be the societal reaction to and
definition of behaviour as “crime,” rather than the behaviour itself.
Indeed, though Durkheim fails to articulate it in so many words,
this “societal reaction” approach to crime is implicit in his analysis
of the society of saints and the significance of punishment. It is the
“judgment,” “identification,” “stigmatization” and “punishment” of
the “deviant” (criminal) act and “deviant” (criminal) person that is
central to Durkheim’s account.
As with the other perspectives discussed in this book, it is possible
to trace the implications of this view at each moment of criminaliza-
tion through the extended criminal justice system. Here we do no

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more than indicate the range of analytic possibilities that the func-
tionalist perspective opens up in this regard, for the fact is, “there
have been very few dedicated functionalist criminologists” (Rock
2012: 63). In the matter of the administration of justice through the
courts, we can point to Gusfield’s (1981) argument about the purpose
of the rhetoric associated with the notion of the “killer-drunk” as
found in appeal court judgments. Quite apart from whatever util-
ity such language has in expediting the operation of the courts or
the apprehension of criminals, such declamations serve the societal
symbolic function of marking moral boundaries by constructing and
dramatizing the image of the “evil one” in whatever is the incarna-
tion of the day (Pearson 1983). What is worth noting here is that
the public, ritual exiting from society of the embodied version of the
hated image – namely, the now convicted person – is not matched
by an equivalent public ritual of re-entry into society when his or
her time is served (Erikson 1962: 311). In terms of this approach,
the person is a prop of the ritual, and not the other way round. It
is the occasion of public vilification that the society needs, not the
reformation of the criminal.
A particularly poignant case of this ritual scapegoating is recounted
in Janet Maybee’s (2015) book about the persecution of harbour pilot
Francis Mackey following the Halifax Explosion of 6 December 1917
during World War I that killed at least 2,000 people and caused mas-
sive damage to the city of Halifax, Nova Scotia. Mackey had been
assigned to pilot one of the two ships – namely the munitions ship,
Mont Blanc – that collided on that terrible day.

After a brutal Wreck Commissioner’s Inquiry, Francis Mackey

was accused of manslaughter and criminal negligence, jailed and
vilified in the headlines of local newspapers. Despite his eventual
release by a judge who found absolutely no evidence to support
these charges, it seemed there were federal authorities determined
to keep the pilot in the useful role of scapegoat.
(Maybee 2015: xvii)

Despite a promise to the contrary, his pilot’s licence was not returned,
preventing him from working. Local and provincial officials made
strenuous efforts to prosecute him. “The cost of legal counsel while
supporting his large and growing family was a huge burden for an

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unemployed pilot. His ongoing punishment, which Mackey himself

described as persecution, was severe and undeserved” (Maybee 2015:
xvii). It was not until February 1922 and a change of government
in Ottawa that Mackey was exonerated and his licence returned so
that he could resume working. The stress of it all, however, was what
probably killed his wife at the age of 47.
As for the police, the approach helps to make sense of the obser-
vation that far from acting in ways that are designed to eradicate
deviance, police “behave in ways that are likely to ensure the per-
sistence of deviance” (Sharrock 1984: 90). That is, as we shall see in
Chapters 5 and 6, the bulk of police work is taken up with keeping
the peace rather than law enforcement, with arrest being the con-
trol device of last resort. Police seek to contain and regulate crime
rather than to eliminate it. They develop working relationships with
criminals, for they are dependent on criminals for the information
with which to do their work. Here the court system conspires to
facilitate police operations by stigmatizing the convicted, assigning
them to a school of crime (prison) and making it extremely dif-
ficult for them to resume normal life upon release. The police then
seek out the “known criminal” as suspect for the type of crime that
they were known to have committed. After this, a life of crime may
seem the only liveable recourse. A related observation may be made
about the practice of putting police officers in schools. In what the
author calls the “school-to-prison pipeline . . . schools with embed-
ded police officers – often euphemistically referred to as ‘School
Resource Officers,’ or SROs – see five times the number of arrests for
‘disorderly conduct’ than schools without them” (Dolan 2016, citing
Nelson and Lind 2015).
In these ways, criminal justice arrangements work to guarantee a
ready supply of recycled candidates for society’s appetite for necessary
crime. Even if the repressive policing of the contemporary anti-crime
unit is added to the mix, the result is the same. As noted sociologist of
the police John Van Maanen (2015: 771) puts it in reviewing a 2013
study on the French police, the author “effectively makes the point that
police work in France has at most a limited effect on crime – a point
well established in a variety of police studies conducted elsewhere.”
The second criticism, made by Roshier (1977), is one that chal-
lenges Durkheim’s very concept of society.Thus, Roshier claims that
rather than attempting to remove crime through a process of elevating

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people’s consciousness and eventually threatening the very existence

of society, logically it is possible to eradicate crime simply by removing
the laws which are used as the resource for its identification.

Crime and the clarification of moral boundaries

Functionalists claim that crime not only serves a maintenance

function, but also a clarification function with respect to moral
boundaries. The key work in this area is Erikson’s Wayward Puritans
(1966). This study in historical sociology, grounded in a fusion of
structural consensus and symbolic interactionist approaches, considers
the part played by three events in the evolution of Puritan society in
New England from the late sixteenth century on. These events are
the Antinomian Crisis, the persecutions of Quakers and the Salem
witchcraft panic. Each of these, Erikson argues, resulted in a clarifica-
tion of the moral boundaries of Puritan society.We shall illustrate this
process with reference to the first of these; namely, the Antinomian
Crisis or, more colloquially, the case of Mrs Hutchinson.
Prior to their departure for New England, the Puritans consid-
ered themselves and were considered by the established church as
religious revolutionaries.They believed they were members of God’s
elect upon whom grace had been directly bestowed. Rather than fol-
lowing, therefore, a covenant of works through which believers were
required to demonstrate to clerical intermediaries their worthiness
of God’s salvation, they adhered to a covenant of grace. This released
them from the rules of establishment religious practice. However,
such freedom was intolerable to the religious authorities, hence their
eventual departure for New England where they could practise their
faith as they saw fit.
After a while it seemed to the original settlers, and in particu-
lar to a certain Mrs Hutchinson, that the religious messages of the
church leaders were more in accordance with the old covenant of
works than the covenant of grace. No longer themselves in opposi-
tion, the Puritan leaders were becoming conservative and similar
to the established church back in Europe. The covenant of works
was becoming attractive to them. Yet they dared not abandon the
covenant of grace. The clergy attempted to solve this dilemma by
“resorting to the argument that the state of grace was a condition for
which one had to be prepared; and, being peculiarly nearer to God,

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who better to prepare His chosen few than the clergy themselves?”
(Box 1981 [1971]: 34, original emphasis). However, Mrs Hutchinson
declared that obedience to the clergy was irrelevant as far as God’s
grace was concerned, and many agreed with her. Soon, a majority
of the local congregation preferred meeting at her house to meet-
ing at the church. She not only instructed them in correct religious
thinking, she also called into question the state of grace of the church
leaders themselves. Faced with this challenge, the clergy impeached
her and subsequently declared her guilty of “casting doubt upon the
authority of the church.” As Box puts it:

By a raw display of power Mrs. Hutchinson had been declared

guilty of “Hutchinsonism,” no more, and certainly no less. Her
views were declared to be deviant views. Anyone uttering such
views in the future, therefore, ran the risk of also being declared
deviant.That was the outcome of the confrontation, and with that
outcome the social boundaries of the New England Settlement
had been clarified and decisively shifted.
(Box 1981 [1971]: 35)

“Hutchinsonism” was made authoritatively illegal through Mrs

Hutchinson’s ensuing spiritual trial. Her belief in her own state of
grace was declared to be a delusion because “God reveals Himself to
no man (or woman).” Mrs Hutchinson then repented, but the clergy
thought her repentance was insincere, calling her a liar. On the basis
of this label, they excommunicated her, casting her out of the church.
Erikson argues that by publicly declaring what deviance was, the
clergy had not only revealed their power, but they had also clarified
the moral boundaries of New England society. The meaning of the
covenant of grace had been transformed and the clergy had gained in
political as well as spiritual authority. Arguably, then, Puritan society
as a whole benefited from this exercise in moral clarification, which
contributed to its persistence and stability. Perhaps this might not
have happened without Mrs Hutchinson’s “deviance.”

Crime and the changing of moral boundaries

Durkheim’s surprising and counter-intuitive argument for the nor-

mality and necessity of crime asserts not only that crime helps to

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maintain and clarify moral boundaries, but also that it contributes to

(the necessary work of) changing them when the existing ones no
longer serve the needs of society. He appeals for empirical support of
his thesis to the case of Socrates who, at his trial and faced with the
prospect of being punished with exile, famously said:

Perhaps someone might say: Socrates, if you leave us will you be

able to live quietly, without talking? Now this is the most difficult
point on which to convince some of you. If I say that it is impos-
sible for me to keep quiet because that means disobeying the god,
you will not believe me and will think I am being ironical. On the
other hand, if I say that it is the greatest good for a man to discuss
virtue every day and those other things about which you hear me
conversing and testing myself and others, for the unexamined life is
not worth living for man, you will believe me even less.
(Plato 1975 [fourth century BC]: 39, emphasis added)

For the crime of “disobeying the god,” and as an alternative to

exile, Socrates was invited to kill himself by taking poison. Here is
Durkheim’s analysis of his actions and their criminalization:

Thus crime is necessary. It is linked to the basic conditions of social

life, but on this very account is useful, for the conditions to which
it is bound are themselves indispensable to the normal evolution of
morality and law . . . For it to evolve, individual originality must be
allowed to manifest itself. But so that the originality of the ideal-
ist who dreams of transcending his era may display itself, that of
the criminal, which falls short of the age, must also be possible . . .
Nor is this all. Beyond this indirect utility, crime itself may play a
useful part in this evolution. Not only does it imply that the way to
necessary changes remains open, but in certain cases it also directly
prepares for these changes.Where crime exists, collective sentiments
are not only in the state of plasticity necessary to assume a new form,
but sometimes it even contributes to determining beforehand the
shape they will take on. Indeed, how often is it only an anticipation of
the morality to come, a progression towards what will be! According
to Athenian law, Socrates was a criminal and his condemnation
was entirely just. However, his crime – his independence of thought – was
useful not only for humanity but for his country. It served to prepare

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a way for a new morality and a new faith, which the Athenians then
needed because the traditions by which they had hitherto lived no
longer corresponded to the conditions of their existence . . . From
this viewpoint the fundamental facts of criminology appear to us
in an entirely new light. Contrary to current ideas, the criminal no
longer appears as an utterly unsociable creature, a sort of parasitic
element, a foreign, unassimilable body introduced into the bosom
of society. He plays a normal role in social life.
(Durkheim 1982 [1895]: 101–102, emphasis added)

Curiously enough, one can hear an echo of Marx in Durkheim’s

analysis. Consider the following:

The criminal breaks the monotony and everyday security of

bourgeois life. In this way he keeps it from stagnation, and gives
rise to that uneasy tension and agility without which even the
spur of competition would get blunted. Thus he gives a stimulus to
the productive forces. While crime takes a part of the superfluous
population off the labour market and thus reduces competition
among the labourers – up to a certain point preventing wages from
falling below the minimum – the struggle against crime absorbs
another part of this population. Thus the criminal comes in as one
of those natural “counterweights” which bring about a correct
balance and open up a whole perspective of “useful” occupations.
The effects of the criminal on the development of productive
power can be shown in detail. Would locks ever have reached their
present degree of excellence had there been no thieves? Would
the making of bank-notes have reached its present perfection
had there been no forgers? Would the microscope have found
its way into the sphere of ordinary commerce (see Babbage)
but for trading frauds? Doesn’t practical chemistry owe just as
much to adulteration of commodities and the efforts to show it
up as to the honest zeal for production? Crime, through its con-
stantly new methods of attack on property, constantly calls into
being new methods of defence, and so is as productive as strikes for
the invention of machines. And if one leaves the sphere of private
crime: would the world-market ever have come into being but
for national crime? Indeed, would even the nations have arisen?
(Marx 1861–1863: n. p.)

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Although both passages make functionalist arguments, notice the

difference between them. Whereas Durkheim appeals to crime’s
contribution to the moral evolution of any society, Marx points
to the criminal’s value for the economic development of capitalist
(“bourgeois”) society. See Chapter 7.

The case of the fistfight in ice hockey

In “Honour, ritual and violence in ice hockey,” Kenneth Colburn
(1986 [1985]) advances the functionalist thesis that “the fist-fight in
ice hockey represents a social ritual of honour enacted by oppos-
ing players that serves to highlight or symbolize the value of respect
between competitors [for] the play of the game” (Colburn 1986
[1985]: 61).
In other words, the fistfight serves to maintain the essential moral
boundaries upon which the game of ice hockey depends for its
possibility.
First, based on his ethnographic observations, Colburn notes that
from the point of view of the players, fistfights are legitimate assaults.
They are to be distinguished from what are called “cheap shots,”
violent assaults carried out behind the play, out of view of officials,
which do not afford the victim a fair chance to respond. By contrast,
fistfights are normal, an accepted part of the game, what professional
sociologists in relation to other settings have called “normal devi-
ance.” That is, they are formally proscribed (that is, there are official
rules against them) and formally punished. But punishment (a couple
of minutes in the penalty box) is lenient so that, in effect, the practice
is allowed to go on. This echoes the classic functionalist analyses of
prostitution by Kingsley Davis (1937), pornography by Ned Polsky
(1969), the US “political machine” by Robert Merton (1968 [1949]:
126–136) as well as Joseph Gusfield’s (1981: 131) characterization of
drinking and driving as moral “fault without censure.” It is compara-
ble to the police use of what they call “normal” force (see Chapter 5
for Hunt’s [1985] analysis). The distinction drawn between fistfights
and cheap shots is related not (just) to variation in the amount of
harm, but to the moral entitlement and obligation to play and win
by the rules of the game. Cheap shots represent a form of play in
which there is an attempt to gain an advantage outside the rules of
the game – as it were, privately. By contrast, the fistfight is conducted

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in the full light of play in what is seen to be a fair contest. In that

way it affirms the value of playing by the rules of the game even as
it breaks one of them.
Second, then, Colburn explains the positive functional value of
the fistfight, its normality and necessity, by asserting that it is a vital
social ritual in ice hockey. In doing so, he relies on Parsons’s distinc-
tion between the instrumental and expressive functions of actions.
Though having no instrumental purpose (they are not designed to
injure or otherwise harm the players involved), fistfights contribute to
social solidarity by symbolic affirmation of hockey’s collective values,
publicly elicited by the players themselves, and received positively.
They serve, that is, an expressive function. There are three aspects
to this.
1. Fistfights consist of an institutionalized pattern of action (or
protocol for conduct) consisting of normative expectations gov-
erning two roles (challenger and challenged) with an expected
sequence of actions, preferred and dispreferred, and with sanctions
(“chicken”) for failure to conform. Avoiding the fight by walking
away can and should be done before the gloves come off.
2. They affirm a sacred symbol, namely honour among players for
playing by the rules of the game. This entails subscribing to the
norm of fairness that itself embodies respect for one’s opponents.
Cheap shots are wrong just because they violate the norm of
respect for one’s opponents. As in duelling, the outcome makes
no difference. It’s a matter of what type of person one is as a
bona fide hockey player; to walk away is tantamount to admitting
being a cheap shotter, a coward; facts defer to the code of honour;
“the honour of a player . . . is a symbolic representation of a sacred
belief: namely, the value placed by competitors upon respect for
the rules of the game” (Colburn 1986 [1985]: 67); that is, winning
outside the rules is meaningless.The fistfight symbolizes this value
– it calls upon the other to acknowledge the rules as a condition
of engaging in the competition; otherwise it’s the Hobbesian “war
of all against all” where life is “solitary, poor, nasty, brutish and
short.” The fact that the hockey stick and the ice-skate blade are
potentially lethal weapons only enhances one’s appreciation for
what could transpire on the rink if the social order represented by
respect for the rules of the game ever broke down.
3. Fistfights are done in the form of a public display; dropping the

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gloves moves the dispute arising from a cheap shot from private
to public.
Third, Colburn concludes by emphasizing the functional character of
fistfights. By symbolically and publicly affirming the unwritten norm
of respect between competitors, fistfights restore trust among players
that they all, on both sides, respect the rules of the game. Moreover,
the fights may be said to have also a partially instrumental function
as “an informal mode of social control enacted by players” (Colburn
1986 [1985]: 69). Because of the speed, continuous play and hard
hitting that characterizes ice hockey, referees do not see all the viola-
tions. Their formal control of the game is then supplemented by the
informal control exercised by the players themselves.
But what, you say, does this have to do with crime? There is no
crime on the hockey rink. Fistfights in ice hockey are not crimes. But
that’s just the point. Here is an arena (literally) of social life where the
police almost never enter, except for the purpose of crowd control.
And on those rare occasions when they do intervene (but after the
game, not on the ice), it’s just because some illegitimate assault has been
perpetrated that has escaped or exceeded the bounds of the formal
and informal control mechanisms of the game itself. Even though the
very same physical behaviour engaged in by the same persons, but
going down in or outside the bar where they are drinking afterwards,
may well occasion police apprehension, arrest and being charged
with assault, on the ice in the course of a game it counts as part of the
game. Just as the gruesome homicide that comprises the public state
execution may be seen in a Durkheimian way as ritually affirming the
moral values that bind the society together (Box 1981 [1971]: 36–40),
so the fistfight in ice hockey binds the players to the values of honour
and respect for the game without which it would not be possible to
play at all. Sanctioned violence serves to denounce the unsanctioned
kind, thereby integrating the participants into the peaceful pursuit of
a fiercely competitive sport.

The grammar of functionalism

Functionalism was the dominant theoretical perspective in profes-
sional sociology in the mid-twentieth century, so much so that at one
point, Kingsley Davis, in his Presidential Address to the 1959 meeting
of the American Sociological Association (ASA), pronounced that

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“structural-functionalist analysis . . . [is], in effect, synonymous with

sociological analysis” (Davis 1959: 757). His argument was subse-
quently paraphrased by George Homans in his Presidential Address to
the 1964 meeting of the ASA as saying “we are all functionalists now”
(Homans 1964: 811, without quotation marks). (Since Davis didn’t
utter or write these exact words, Homans, of course, didn’t quote him
as doing so, but many subsequent commentators have represented
the assertion as a quotation from Davis; see, for example, Rock 2012:
63.) Davis and Homans were, of course, referring to the practice
of professional sociology as classically represented in the work of
Durkheim, Parsons (1951) and Merton (1968 [1949]).What they did
not consider was functionalism as a member’s method of sociological
inquiry or analysis. And yet it is clear that the consequences, whether
intended, unintended, anticipated, unanticipated, manifest or latent,
of such things as violence in professional ice hockey are not in the
first place a question for professional sociologists, but for members of
society themselves.There is no end to the discussion in homes, work-
places, public gatherings, and radio and television news and talk shows
and the media generally, not least during between-period commen-
tary in televised hockey games, about the effects of hockey violence
on the health of players, the attitudes of young people, the future
of the game itself and the general well-being of society. Formulating
the functions or consequences, negative or positive, of social actions
or practices, including ones deemed criminal, is an everyday social
activity.While acknowledged, it has gone largely unexamined in pro-
fessional sociology. Describing and analyzing members’ functionalist
analysis of crime is, however, taken up by the authors in our study of
the Montreal Massacre.

Eglin and Hester: categories and consequences of the

Montreal Massacre as a members’ phenomenon

On 6 December 1989, 14 women, 13 of whom were engineer-

ing students, were shot dead (one was stabbed) in the corridors and
classrooms of the engineering school affiliated with the University of
Montreal by a young man who was reported to have said at the scene,
“You’re all a bunch of feminists. I hate feminists” (Eglin and Hester
2003: 3). As part of our study of two English-language newspapers’
coverage of the “Montreal Massacre,” we examined the various ways

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witnesses and commentators articulated what they saw to be the

consequences of the killings. We gave a close paraphrase of these
perceived consequences, as quoted in the reportage and commentary,
in the following passage:

The massacre is described as making women realize their vulner-

ability to men’s violence, and their common bondage in fear of
violent men. It affirms, brings out, and makes them be aware of
and feel that vulnerability and fear. It is a symbol and reminder
of men’s violence against women, and raises questions about it.
It rang true for many women, echoing their experience. It is a
reminder and demonstration of deep societal misogyny and the
mortal threat to women of male chauvinism. It puts the debate
about male attitudes toward women back on centre stage, and deals
a grievous blow to relations between men and women. It raises
questions about violence in society.
At the same time the massacre is said to have had an impact on
some men, making them more aware of the feminist case about
the massacre’s significance, raising their consciousness of the issue
and shocking them into reality and action over women’s issues. It
raises concerns about the engineering profession’s image, and puts
engineering students’ sexist publications in a very different light.
It made the Sun newspaper relegate the third-page female pin-up
to the back pages.
Finally the massacre is a mirror reflecting women’s experi-
ence with male violence and relating it to the struggles of Blacks,
homosexuals, Jews, and communists.
In short, the massacre is credited with producing fear, changing
consciousness, demonstrating a pervasive societal pathology, injur-
ing the social fabric, raising questions about professional ethics
or public relations, endangering sales, affecting the public politi-
cal agenda, and revealing a common set of circumstances among
otherwise disparate social groups.
(Eglin and Hester 2003: 114–115)

In professional sociology’s functionalist accounts, crime and deviance

are said to be functional for some population, typically the whole
society. Accordingly, we asked: for what categories of person was the
massacre said to be functional, according to those selected to speak

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by the reporters? Following a passage in Sacks’s lectures about how

members of society turn a disastrous happening in the world into a
conversational topic about themselves in relation to it, we looked for
ways in which witnesses and commentators turned the Massacre into
“something for us” (Sacks 1992b: 563). In the following extracts, the
emphases are ours. So, for example, at a local (for the city newspa-
per) shelter for battered women, the public education and volunteer
co-ordinator was reported as saying that staff feel the same fear as the
residents: “‘They are us,’ Coulter said” (Eglin and Hester 2003: 117).
In an opinion piece, a feminist journalist wrote: “Now there is little
that is comforting to say to women. It is a time for grief for all of
us” (2003: 117). The Canadian Prime Minister, Brian Mulroney, told
reporters, “it raises questions about violence in our society and about
violence against women” (2003: 117).
At the same time, the “something for us” device may be accompa-
nied by the “something for them” device. Here,“the functions are not
formulated by the incumbents of membership categories to whom
they apply but instead by persons who speak on behalf of [them]”
(Eglin and Hester 2003: 118). For example, “A Canadian expert on
mass murderers says the slayings of 14 women at the University of
Montreal last week is a ‘grievous blow’ to relations between men
and women” (2003: 119). The volunteer co-ordinator at the women’s
shelter just quoted can be seen to be employing both devices. The
particular consequences identified by those selected to speak varied
with the membership category of the recipient:

Where for women the massacre reminded them of what they

already knew, for men it was said to be a learning experience;
where for women it confirmed a lifetime of instruction, for men
(or at least for some of them) it was instructive. For society (as a
whole) the consequence was grief, pain, and a reminder of unde-
sirable societal conditions – widespread misogyny and violence.
For particular professional groups (engineers, newspaper report-
ers, and editors) the massacre was said to raise issues about their
professional practices in relation to gender issues.
(Eglin and Hester 2003: 120)

The question then posed itself: just which categories of persons were
selected to speak on this issue by reporters and editors, and under

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what auspices were they so entitled? To get some purchase on this

question, which may otherwise sound odd since the answer seems
obvious, consider that life in “society” – that is to say, in public – does
not provide that anyone can talk about anything to anyone else. Nor
is it anyone’s business what’s on anyone else’s mind in public. On the
contrary, nearly everybody in society is a stranger to nearly everyone
else, and one has restricted rights to talk to strangers (whether one
is a child or not). This applies both to permissible entry into conver-
sation and to permissible topics of conversation. There is one class
of events, however, that permits such interaction, and that is public
disasters.

So, a sort of thing that happens in public disasters is that persons

can express emotions in public spaces, and those emotions are
available to others, who need not avoid looking at the person
who’s sad, and also can figure that they know why he’s sad.
(Sacks 1992b: 195)

Such events allow not only that one may talk to strangers, say in the
street, but that one may express emotions publicly to the point of
being intimate with others – holding them and crying with them
– and be seen to be doing so for recognizable reasons; that is,“observ-
ably-reportably.” When the President has been shot, one may be
recognizably seen as crying in the street because the President has been shot.
The killing of the women engineering students, once it is dubbed
the “Montreal Massacre,” is made a public disaster, and broadcast and
responded to as such. It thereby establishes a “we-relation” among
strangers whereby “we” become “parties to the disaster,” and may
behave in terms of the category-bound predicates of the categories of
that MCD; for example, crying, being horrified, expressing outrage,
etc. Permission to speak is a category predicate. In a remarkable ana-
lytic step accompanying the passage just quoted, Sacks proposes that
it is in just such ways that “a small part of the sense of what is called
the ‘integrative function of crime’ [may be achieved], i.e., in such a
situation you know what’s on all these people’s minds” (1992b: 194).
But it is not just anybody who is a party to the crime/disaster
who is selected to be interviewed, quoted and given opinion slots
in the news media to formulate the significance, that is, the functions
of the massacre. Knowledge is socially distributed, which is something

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we know as members of society. Accordingly, we turn to particular

categories of others of whom the relevant knowledge is predicated.
Given that the social problem of male violence against women
became the primary context of interpretation of the massacre, then
it is membership in the MCD “parties to the social problem of male
violence against women” that provides the criterion of selection.
Included are female victims and male victimizers, women and men
generally, “social work students, chaplains, psychologists, anthropolo-
gists, feminists, experts on gender relations, sociologists, local activists,
public education coordinators, counsellors, politicians and political
activists [and] government officials” (Eglin and Hester 2003: 120).
It is this device that renders the resource useable to select which
categories of person will formulate the functions of the massacre.

So, the character of their speech and their selection to speak in

the first place involves not simply their presence on the streets at
a time of public tragedy or their “public” membership of society
but their relationship to the issues raised by the killings . . . Their
speech, their entitlement to formulate functions, derives from their
particular category relationship to the killings.
(Eglin and Hester 2003: 123)

Conclusion
Functional analysis is “that kind of analysis which sees things as parts
of systems and examines them to see how they interlock with other
parts of the system and what effect they have on the state of the system
overall” (Sharrock 1980: 124). At face value, this view entails taking
a step that is essential to any form of sociological analysis; namely,
putting things in context. You might even say that sociology equals
contextualizing. This fundamental move in sociological inquiry pro-
vides for the possibility of devastating criticism of those who examine
things without reference to their context. In the functionalist case, it
affords the argument that appearances can be misleading and avail-
able theories misguided. Thus, for example, we can say that the view
that rules secure social order is incomplete, insofar as in the game of ice
hockey, fistfights break a rule in order to secure compliance with “the
rules.”What appears as mere disruptive violence is, in fact, normative
behaviour oriented to the maintenance of the “system” (which is the

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game).That is, the manifest appearance of disorder may have the latent
function of bringing about order.
The problem with the functionalist appeal to context, however, is
that the context used in the analysis is supplied by the analyst on the
basis of his or her theory, and not by the parties to the interaction
being analyzed in the terms that are relevant to them. As the case
of the Montreal Massacre shows, members of society are more than
ready to posit the consequences, to formulate the functions, positive
and negative, of the massacre and to do so in terms that are relevant
to the categories of persons doing the formulating and about whom
they are being formulated.They hardly need professional sociologists
to do it for them.
Professional sociological functionalism seeks (sought?) to explain
social order as the integration of society’s members around funda-
mental values, achieved in part through the institutionalized public
rituals of criminalizing those who offend against those values. But
listen to A. R. Louch: “Social institutions are frequently explained
as socially integrative. In a sense, of course, institutions are socially
integrative, for that is what we mean by a society” (1966: 108–109).
In other words, insofar as society exists, it is already integrated,
for that’s part of the meaning of the concept “society.” This suggests
further that in order to know what we mean by the functions of an
institution – to be able to conceive of what needs the criminal justice
system, for example, satisfies – the CJS itself must already be in exist-
ence. For another example, “The need for family life is inconceivable
outside the institution of the family. Consequently, it would be cir-
cular to speak of the institution as answering to that need” (Louch
1966: 108). Similarly, to bring the matter back to “deviant” if not
“criminal” “behaviour”:

No one becomes a [marijuana] user without (1) learning to smoke

the drug in a way which will produce real effects; (2) learning to
recognize the effects and connect them with drug use (learning, in
other words, to get high); and (3) learning to enjoy the sensations he
perceives. In the course of this process he develops a disposition or
motivation to use marijuana which was not and could not have been
present when he began use, for it involves and depends on concep-
tions of the drug which could only grow out of . . . actual experience.
(Becker 1953: 242, emphasis added)

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 PART I: POSITIVELY UNDERTAKEN

In other words, wanting to use marijuana for pleasure comes from,

and therefore after, participating in the institution of marijuana smok-
ing. To say that the motivation to use comes before participation does
not make sense, because one could not know what it means to use
marijuana for pleasure before experiencing it.
Moreover, the members’ context for considering the consequences
or functions of the actions of persons or institutions (Coulter 2001)
is one of moral assessment, not theoretical explanation. In its episte-
mologically misbegotten way (Winch 2008 [1958]: 41), functionalist
theorizing is, we have argued, actually engaged in this moral endeav-
our, often at the level of entire societies, if not whole civilizations,
but imagines that it can be achieved through adherence to scientific
method and causal theorizing.“Once again, moral reasoning has been
misconstrued as causal hypothesis or general theory” (Louch 1966:
171).

Exercises
1. Make a point of reading, listening to or watching news stories
reporting the conviction and sentencing of offenders. Take note
particularly of any commentary – by, say, the judge, the lawyers
concerned, the police or “experts” – that formulates the function
of the punishment handed down by the court. Have an ear, espe-
cially, for the use of the phrase “sending a message.” Note who says
it, about whom it is said, and to whom it is directed, who it is that
needs to “hear” the message. Do this in light of Sacks’s remarks
about “something for us” and “something for them.”
2. Record any instance you come across of members’ formulating of
functions in relation to crime.

Review questions
1. How does Durkheim come to argue that crime is necessary for
a healthy society? But is it crime or criminalization that is func-
tional? What does it mean to say that the relationship between
society and crime in Durkheim’s view is conceptual rather than
empirical?
2. In light of Colburn’s analysis of the functional value of the fistfight
in ice hockey, can you think of other examples of “rule-following

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rule violations” that have symbolic or expressive value for social

order (with respect to the activity or institution involved)?
3. What is valuable about the functionalist approach to the under-
standing of crime in society? How does the concept of unintended
consequences figure in this assessment?

Further reading
Gusfield, Joseph R. 1981. The Culture of Public Problems: Drinking
Driving and the Symbolic Order. Chicago, IL: Chicago University
Press. See particularly “Part Two: The Ritual of Law: Creating
a Moral Order,” especially chapters 5 and 7, for Gusfield’s deft
functionalist analysis of the “myth of the killer-drunk.”
Pearson, Geoffrey. 1983. Hooligan: A History of Respectable Fears.
London, UK: Macmillan. This is an illuminating account of the
generational succession of demonized images of young people
from the moral panic about mods and rockers in the UK and back
into history.
Maybee, Janet. 2015. Aftershock: The Halifax Explosion and the
Persecution of Pilot Francis Mackey. Halifax, NS: Nimbus Publishing.
A poignant, dramatic and compelling account of the production
of a scapegoat for one of the worst maritime disasters of all time.

111
PART II

Interpretatively
turned
 Introduction

The confusion began when primitive social scientists – many of

whom are still vigorous – mistook the phenomenon under con-
sideration – man [sic] – and conceived it as object instead of
subject. That was a great mistake. Numerous theories appeared
positing man as merely reactive and denying that he is the author
of action, but none were convincing . . . These minimizations of
man persisted as presumptions which guided research and shaped
operative theory. They were maintained despite classic repudia-
tions of the objective view by Max Weber and George Herbert
Mead . . . The initial mistake continues to plague sociology, as well
as the other human disciplines.
(Matza 2010 [1969]: 7–8)

Interpretative sociology
The 1960s were a major watershed in the development of profes-
sional sociology. Two signal challenges emerged to the prevailing
models of inquiry, one epistemological or methodological, the other
political. The assumption of Parsonsian grand theory – that a social
structure of institutionalized normative expectations, underpinned
by consensus on underlying fundamental values and internalized in
the personalities of well-socialized members of society, was the cru-
cial ingredient, and therefore explanation, of social order in stable
societies – was challenged theoretically and empirically by a range
of studies that came to be known as conflict theory. We take up the
political challenge with its focus on class, gender and race in Part III, in
order to trace out its consequences for the sociology of crime.

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 PART II: INTERPRETATIVELY TURNED

At the same time that a political challenge was being mounted

against consensus functionalism, the positivistic assumption that soci-
ological research was to be carried out on the model of the natural
sciences was called into question by various developments in philoso-
phy deriving from phenomenology, natural language philosophy and
pragmatism. The quotation from Matza, with which we begin this
part of the book, is a perspicuous case of such critical questioning.
Following more or less standard usage, we call the critique of posi-
tivistic sociology the interpretative turn (after Cuff et al. 2016: 55), and
examine its effects on the sociology of crime here in Part II.
The founding texts making the interpretative turn are Studies in
Ethnomethodology (Garfinkel 1967) and Symbolic Interactionism (Blumer
1969), though both works represent the culmination of studies car-
ried out over the preceding decades. As their titles indicate, these
books are the theoretical anchors of symbolic interactionism (Chapter 5)
and ethnomethodology (Chapter 6) (see Dennis et al. 2013 for a useful
review). Although their research practice varies in this regard, both
perspectives share, at least in principle, “a ‘respect’ for human beings
as interpreters of the world” (Cuff and Payne 1984: 203; see also
Coulter 1973: 173). For example, “The member of the society uses
background expectancies as a scheme of interpretation” (Garfinkel
1967: 36). It is this view of the nature of human beings, this “model
of the social actor” as an interpretative actor, that sets apart these per-
spectives from those that subscribe to positivistic method, structural
determinism and a functionalist model of society and its analysis (as
much sociological work before the interpretative turn did). To the
extent that sociological analysis is carried out in terms of the forego-
ing three assumptions, it is logically impossible to conceive of social
actors as anything more than re-actors to external and internal causes,
what Garfinkel (1967: 66–71) calls “judgmental,” “cultural” and
“psychological dopes.”

By “cultural dope” I refer to the man-in-the-sociologist’s-society

who produces the stable features of the society by acting in com-
pliance with pre-established and legitimate alternatives of action
that the common culture provides . . . The common feature in the
use of these “models of man” is the fact that courses of com-
mon sense rationalities of judgment which involve the person’s
use of common sense knowledge of social structures over the

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INTRODUCTION

temporal “succession” of here and now situations are treated as

epiphenomenal.
(Garfinkel 1967: 68, also cited in Zimmerman
and Wieder 1970: 289, note 1)

We shall have occasion to refer to various other “dopes” inhabiting

the sociological theorizing reviewed in subsequent chapters; namely,
the “philosophical” and “reality” dopes of constructionist studies, the
“media” and “passive” dopes of cultural (media) studies and the “pro-
cedural dope” sometimes mistakenly attributed to conversation analysis
(Zimmerman 1988: 409).
All such concepts of the “actor” may be regarded as emitting behav-
iour (like a rat), but not as engaging in social action (like a person). For
action involves reasons, purposes, motives, meanings and intentions.
Moreover, action is dependent on how actors themselves “interpret”
the situation in which they act, including the goals, means and condi-
tions comprising that situation. It is simply a logical mistake, a mistake
in conceptual grammar, to conceive of action as caused (in the sense
in which that concept is employed in the natural sciences) and there-
fore open to investigation by the methods of the natural sciences. To
say that action has causes (in the scientific sense) is to talk non-sense:

[T]he central concepts which belong to our understanding of

social life are incompatible with concepts central to the activity
of scientific prediction. When we speak of the possibility of sci-
entific prediction of social developments of this sort, we literally
do not understand what we are saying. We cannot understand it,
because it has no sense.
(Winch 2008 [1958]: 88)

If the interpretative turn occurred in the 1960s, its roots in professional

sociology were to be found in the idea of “interpretative sociology”
adumbrated by Max Weber in his “fundamental concepts of sociology”
which formed chapter 1 of his great work Economy and Society: An
Outline of Interpretive Sociology (Weber 2013 [1922]), left unfinished at
his death in 1920 and published posthumously. For Weber,

Sociology . . . is a science concerning itself with the interpre-

tative understanding of social action and thereby with a causal

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 PART II: INTERPRETATIVELY TURNED

explanation of its course and consequences. We shall speak of

“action” insofar as the acting individual attaches a subjective mean-
ing to his behaviour . . . Action is “social” insofar as its subjective
meaning takes account of the behaviour of others and is thereby
oriented in its course.
(Weber 2013 [1922]: 4)

From what has been said above, it is clear that Weber, wanting it both
ways, fails to see the logical incompatibility of meaningful action and
causal explanation, and fails to see what Schutz subsequently points
out (see Lynch 1998: 25), that “interpretative understanding” is,
in the first place, what distinguishes the social actor, what we are
calling the lay sociologist, rather than the professional sociological
observer. Moreover, Weber’s distinction between action and social
action cannot be maintained since “all meaningful behaviour [i.e.
action] must be social, since it can be meaningful only if governed
by rules, and rules presuppose a social setting” (Winch 2008 [1958]:
108–109). But he did put interpretative sociology with its focus on
action and social action on the map, only to have the latter concept
taken up by Parsons in The Structure of Social Action (1968 [1937]) but
there stripped of its necessary dependence on the actor’s point of
view and lost to view in mainstream sociology. Lynch (1998: 24–26)
gives a good account of these developments that is relevant to this
and the following paragraph.
Fortunately, it was recovered and reconstructed in the 1950s in
the works of two philosophers that helped subsequent sociologists
to make the interpretative turn – important essays by Alfred Schutz
developed from his book The Phenomenology of the Social World (Schutz
1967 [1932]) and subsequently made available in volume 1 of his
Collected Papers (Schutz 1962a [1954], 1962b [1953]); and The Idea
of a Social Science by Peter Winch (2008 [1958]), reflecting the views
of Wittgenstein. Both philosophers explicitly address Weber’s views
on action and social action and critically revise them in much the
same way, despite differences in philosophical language. The essen-
tial point is perhaps best expressed in the following passage from
Schutz:

This state of affairs is founded on the fact that there is an essen-

tial difference in the structure of the thought objects or mental

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INTRODUCTION

objects formed by the social sciences and those formed by the

natural sciences. It is up to the natural scientist and to him alone
to define, in accordance with the procedural rules of his science,
his observational field, and to determine the facts, data, and events
within it which are relevant for his problem or scientific purpose
at hand. Neither are those facts and events pre-selected, nor is
the observational field pre-interpreted. The world of nature, as
explored by the natural scientist, does not “mean” anything to the
molecules, atoms and electrons. But the observational field of the
social scientist – social reality – has a specific meaning and a rel-
evance structure for the human beings living, acting, and thinking
within it. By a series of common-sense constructs they have pre-
selected and pre-interpreted this world which they experience as
the reality of their daily lives. It is these thought objects of theirs
which determine their behaviour by motivating it. The thought
objects constructed by the social scientist, in order to grasp this
social reality, have to be founded upon the thought objects con-
structed by the common-sense thinking of men, living their daily
life within their social world.
(Schutz 1962a [1954]: 58–59)

Notice the occurrence in this passage from Schutz of the essential

concepts of the interpretative turn – “human beings” as “acting,” in
terms of the “constructs” of their thought, with which they have
“interpreted” the world, in terms of its “meaning” and “relevance”
for them.Then compare this passage with the following from Winch
where he considers applying the natural-science model to the social
studies. First, he says, the “concepts and criteria according to which
the sociologist judges that, in two situations, the same thing has hap-
pened, or the same action performed, must be understood in relation
to the rules governing sociological investigation” (Winch 2008 [1958]: 81,
emphasis in original); but:

here what the sociologist is studying, as well as his study of it, is a

human activity and is therefore carried on according to rules. And
it is these rules, rather than those which govern the sociologist’s
investigation, which specify what is to count as “doing the same
kind of thing” in relation to that kind of activity.
(Winch 2008 [1958]: 81)

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 PART II: INTERPRETATIVELY TURNED

Therefore, “any more reflective understanding must necessarily

presuppose, if it is to count as genuine understanding at all, the par-
ticipants’ unreflective understanding” (Winch 2008 [1958]: 83; see
also Hutchinson et al. 2008: 32–38).
We should note that Jeff Coulter begins chapter 1 of his book The
Social Construction of Mind with essentially the same quotes from Schutz
and Winch. He adds in an endnote,“that I am unhappy with [Schutz’s]
use of ‘determine’ in this formulation” (Coulter 1979: 9–10, 160,
note 4), as are we. The philosophical tributaries of the interpretative
turn are sketched in Box 1.

BOX 1  Philosophical tributaries of the interpretative turn

While Schutz’s work was a significant resource for Garfinkel’s development of ethnometh-
odology (Lynch 1998: 25), Winch’s book, which brought Wittgenstein’s philosophy into
sociology, was particularly influential for British ethnomethodologists of the Manchester
school (Hutchinson et al. 2008: 34; Psathas 2008), notably W. W. Sharrock who has written
extensively in this vein. The natural-language philosophy of Gilbert Ryle and J. L. Austin was
also drawn on by the Manchester school. Its kinship with phenomenology may be gauged by
the fact that Austin describes his own work as a sort of “linguistic phenomenology” (Austin
1961: 130; Pitkin 1972: 120). Blumer’s account of symbolic interactionism is indebted to
the philosophical social psychology of George Herbert Mead, one of the founders, with
C. S. Peirce and John Dewey, of the US philosophical school known as pragmatism. Suffice
it to say that all three schools of philosophy may be said to be neo-Kantian: “Wittgenstein
teaches what might be considered a sort of linguistic Kantianism” (Pitkin 1972: 120; see also
Janik and Toulmin 1973, especially chapter 7); phenomenology (Edmund Husserl, Schutz)
is a direct descendant of Kant; the road from Kant to Mead to symbolic interactionism is
sketched by Deutscher (1973: 326); “Kant was the great pioneer of construction” (Hacking
1999: 41). Schutz (1962a [1954]: 54) cites Mead; Garfinkel (1967: 70) cites Wittgenstein
(see also Dingwall 2000: 891). In contrast to the standard “externalist” view of the relation-
ship of mind and reality, which posits that the two are independent of each other, all three
philosophical schools mentioned take an “internalist” view of the relationship. This is to say
that reality is taken to be “mind-dependent” or “theory-dependent” (Anderson et al. 1985:
31–39) or, indeed, “language-dependent” (Winch 2008 [1958]). The interpretative turn is
thus related to the “linguistic turn” in analytic philosophy (Rorty 1967; Hacker 2013) and
to the “practice turn” (Lynch 1993; Schatzki et al. 2001) in science and technology studies
(Lynch 2014: 112, note 19).

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INTRODUCTION

Although in general use, the idea of “interpretation” is unfortunate

in relation to ethnomethodology, as it implies that the actor engages
in some extra mental operation in seeing the meaning of action
beyond simply grasping or, indeed, “seeing” it. Since this topic takes
us somewhat beyond our remit in this book, we recommend that
readers consult Hutchinson et al.’s (2008: 38) useful discussion of the
difference between interpreting and grasping a rule (see also Francis
and Hester 2004: 7).

Applied to the sociology of crime

The interpretative turn, then, affords a critique of positivistic sociology
and thereby of correctional criminology. Correctional criminology
deploys assumptions about human beings that display a failure to
appreciate the socially meaningful character of crime both as a form
of social action and as a description of it. Thus, in its preoccupa-
tion with the cause-and-effect relations between various “factors”
and criminal behaviour, correctional criminology contains a view of
human beings as objects rather than as subjects, treatable for the prac-
tical purposes of scientific inquiry just like the objects of natural
science. Against this position, those making the interpretative turn
take the view that humans are more appropriately viewed as subjects
because their behaviour is “subjectively meaningful” to them.
Correctional criminology takes for granted the “objectivity”
of crime, rather than recognizing that “crime” is socially defined
through, and relative to, the constructs, meanings and relevances
brought to its definition and application to cases by members of
society in the course of their routine activities. Preoccupation with
the question, “What are the causes of crime?” necessarily takes for
granted these courses of interpretative and constructive action. This
failure to consider the interpretative and constructed character of
crime is evident in correctional criminology’s reliance on official
and other statistics about crime. Thus, in the Durkheimian tradition,
crime rates are treated as if they are things and amenable to variable
analysis. It is not recognized that such measures and the analyses built
on them are the product of a series of interpretative and judgmental
practices, as we saw in Chapter 2.
In the fields of social problems, deviance and crime, the social
constructionist perspective (Chapter 4) may be said to grow out of

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symbolic interactionism, with its emphasis on the actor’s point of

view or “definition of the situation” (Lynch 1998: 23). It is tempt-
ing to want to say, as Kim and Berard (2009: 278) do, that The Social
Construction of Reality (Berger and Luckmann 1966), which appeared
just before the foundational works of Blumer and Garfinkel, also
made the interpretative turn and provided the theoretical anchor
of social constructionism, as its title might imply. But the fact is that
Berger and Luckmann’s book is Weberian in the sense of wanting to
have it both ways.That is, the authors paint a picture of society that is
both built from the inside out (“society as subjective reality”) through
interpretative social action (after Schutz), and determined from the
outside in (“society as objective reality”) through internalization of
the social structure (after Durkheim and Parsons; see Sharrock 1987:
152–154; Coleman and Sharrock 1998: 102; Lynch 2008: 723). The
problem is, you can’t have it both ways, and so it can’t be said that
the work itself made the interpretative turn; you might say that it got
stuck halfway. No doubt its publication did contribute to the cur-
rency of “constructionist” language (Lynch 1998: 24), but the roots of
social constructionism in the fields of social problems, deviance and
crime lie elsewhere, most importantly, as we have said, in symbolic
interactionism (see Hilgartner and Bosk 1988: 53; Ibarra and Kitsuse
1993; Haimes and Williams 1998: 136).
In particular, constructionism in these fields develops one aspect
of Howard Becker’s canonical statement setting out the interaction-
ist approach to the study of deviance, what he called the “labelling
theory of deviance”:

[T]he central fact about deviance [is that] it is created by society.

I do not mean this in the way it is ordinarily understood, in which
the causes of deviance are located in the social situation of the
deviant or in “social factors” which prompt his action. I mean,
rather, that social groups create deviance by making the rules whose infrac-
tion constitutes deviance, and by applying those rules to particular people
and labelling them as outsiders. From this point of view, deviance is
not a quality of the act the person commits, but rather a conse-
quence of the application by others of rules and sanctions to an
“offender.” The deviant is one to whom that label has successfully
been applied; deviant behaviour is behaviour that people so label.
(Becker 1963: 9, emphasis added)

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INTRODUCTION

The whole statement, and particularly the highlighted clause, is clearly

“constructionist.” That is, social groups “construct” deviance by (a)
making rules, and (b) applying them to people and their actions.
Symbolic interactionist studies of deviance confine themselves, by
and large, to point (b), the application of rules. Thus they focus their
attention on those social agents who apply rules to “offenders,” such
as the police and the courts, agents that Becker calls the “rule enforc-
ers.” Social constructionism concentrates on point (a), the making of
rules, and on those who make them, the “rule creators.” Accordingly, it
focuses on (1) the activities of those who construct social problems;
and (2) the activities of those who establish rules, such as the rules
that comprise the criminal law.
Expanding on Becker’s foundational statement, it may be said that
“crime” is constructed and interpreted at and through the various
moments of criminalization identified in Chapter 1. To recapitu-
late, these are, first, the courses of action whereby certain kinds
of acts come to be defined as crimes – that is, through the making of
some criminal law; second, through the interpretation and assessment
of their experience whereby citizens decide whether or not to call
the police; third, through the decision-making of law enforcement
whereby particular instances of those acts are selected and identi-
fied by the police as falling under the categories of the criminal law;
fourth, through the work of the courts in making the fit between
police selection/identification and legal definition, and in attaching
the status “criminal” to particular actors; and, fifth, through the con-
structions made by claims-makers and commentators, notably in the
news media, of the nature and salience of the “crimes” they report
and comment on as social problems.

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 4 Claims-making

Rules are the product of someone’s initiative and we can think

of the people who exhibit such enterprise as moral entrepreneurs.
(Becker 1963: 147, emphasis in original)

The slogan “Meat is Murder” seemed like a nifty catchphrase with

which to start Chapter 1. It seemed nifty because of the stark simplic-
ity of its assertion, because it named a crime and because, with the aid
of alliteration, it juxtaposed opposites. In this case, the opposites are a
widely consumed, highly valued and generally desired food and what
is, by common account, the worst of criminal offences. It’s a shocker.
Boldly emplaced there at the start, it offered itself for exemplary and
metaphorical use later in the chapter. In these ways it came to serve
a rhetorical purpose for a textbook writer. And it appeared to work
for one of the writer’s interlocutors when presented with a draft of
the chapter for comment, but not in the way the writer expected.
“Wow . . . Meat is murder caught me by surprise as it is a term I
hear quite often in my vegan readings,” he replied. Indeed, it turns
out, for the vegetarian/vegan and animal rights movements, “Meat
is Murder” is a rallying cry. It is a claim advanced in the service of
a cause by these social movements, proclaiming what they regard as a
social problem rooted in a crime.1 It is just precisely such matters that
the social constructionist perspective on crime and criminalization
seeks to address, and in just such terms – claims and claims-making;
claims-makers and social movements; social causes, social problems
and “putative” crimes.

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4: CLAIMS-MAKING

Crime as a social construction

Without criminal law, there would be no crime.This follows from the
conceptual link between the state and crime as discussed in Chapter
2.Virtually every form of human action – from taking others’ prop-
erty to taking others’ lives – has in some time or place been deemed
warranted, if not desirable (Wilkins 1964, cited in Hagan 1994: 9).
For example, slavery, marital rape and all forms of homicide have
been, or continue to be, widely practised and have received official
approval (think of capital punishment).The so-called “War on Terror”
has sanctioned the illegal invasion and occupation of other countries
and the “legalized” torture and murder (called “assassination”) of sus-
pected official enemies, not least through the use of drones (Scahill
and The Staff of the Intercept 2016; O’Connell 2015).2 This is not
to say that people have not objected to these forms of behaviour, but
until proscribed by criminal law, they cannot be considered “crimes”;
or, where already outlawed, are not effectively crimes until treated as
such. Crime, then, is a relative or legalistic, rather than an absolute,
concept (Douglas 1971). Criminal law is constructed within society.
Hence, crime too is a social construction.
Consequently, a first question for the constructionist sociology of
crime is the origin and development of criminal law. As we saw in
Chapter 3, for consensus functionalism (to coin another title for it),
the links among “society,” “values” and “law” are conceptual rather
than empirical. Durkheim, we recall, takes the view “that society is in
essence its moral codes, the rules which govern the relations between
its members” (Sharrock 1977: 486, emphasis in original). Thus, inso-
far as it is assumed that society is possible only under conditions of
human consensus about fundamental values, and that criminal law
embodies those values, then only those laws which reflect that con-
sensus will become established. Criminal law is thereby explained by
its consequences; that is, teleologically. Thus, while consensus func-
tionalism may explain the persistence of criminal law, it does not
explain its origins except by presumptive fiat. Moreover, while it is
possible to argue that there is a consensus about some laws at the
present time, such evidence cannot be used legitimately in support of
the proposition that criminal law originated with a consensus on the
value of criminal law. Criminology has yet to provide any convinc-
ing examples of criminal law as a product of consensus (Chambliss
1993b: 38).

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Given the assumption of consensus functionalism that “society

is in essence its moral codes,” then society is inconceivable without
moral consensus and, consequently, how the criminal law originates
is not a problem that arises. Once, however, the presumptive link
between society and moral consensus is removed, and it is recognized
that societies may be, and in most modern cases are, a mélange of
differing value systems and rules defining what is deviant, then the
problem does arise of how the particular acts defined as crimes in
the criminal law are established. In discussing examples of crime
creation from this point of view, we will employ the overarching
conceptual framework contained in the canonical text of Malcolm
Spector and John Kitsuse called Constructing Social Problems, first pub-
lished in 1977 and re-published in 1987. It was preceded by two
programmatic articles published in 1973 (Spector and Kitsuse 1973a,
1973b). The framework applies to the whole field of social problem
construction and incorporates the range of particular case studies of
criminal law creation that we draw on below.
Although, as we have indicated in the Introduction to Part II, its
roots are in the 1960s (and earlier), the flowering of social construc-
tionism in relation to social problems, deviance and crime occurred
in the 1970s. Following and modifying Blumer (1971), who here
applies symbolic interactionism to understanding collective behav-
iour, Spector and Kitsuse take the view that social problems, including
ones to do with crime such as the “crime problem,” the “drug prob-
lem,” “youth gangs,” “the problem of violence against women,” etc.,
are not objective conditions or things, requiring measurement and
explanation, but rather consist first of the activities of those “individ-
uals or groups making assertions of grievances and claims with respect
to some putative conditions” (Spector and Kitsuse 1987 [1977]: 75);
and second of the activities of those who respond to these claims.
“The central problem for a theory of social problems is to account for the emer-
gence, nature, and maintenance of claims-making and responding activities”
(1987 [1977]: 76, emphasis in original).
With reference to the construction of social problems, a “claim”
may be regarded as an “authoritative or challenging request” or a
“demand of a right or supposed right.” “Claims-making” consists of
a form of social interaction in the course of which demands are made
“that something be done about some putative condition” (Spector
and Kitsuse 1987 [1977]: 78). Examples of claims-making activities

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include: “demanding services, filling out forms, lodging complaints,

filing lawsuits, calling press conferences, writing letters of protest,
passing resolutions, publishing exposés, placing ads in newspapers,
supporting or opposing some governmental practice or policy, setting
up picket lines or boycotts” (1987 [1977]: 78–79). Claims-makers
include a great variety of persons:

protest groups or moral crusaders who make demands and

complaints; the officials or agencies to whom such complaints
are directed; members of the media who publicize and dis-
seminate news about such activities (as well as participate in
them); commissions of inquiry; legislative bodies and executive
or administrative agencies that respond to claims-making con-
stituents; members of the helping professions, such as physicians,
psychiatrists, social workers; and sometimes, social scientists
who contribute to the definition and development of social
problems.
(Spector and Kitsuse 1987 [1977]: 79)

We should add that governments not only respond to claims-makers,

but themselves initiate courses of claims-making that may result
in the designation of some “putative condition” as a problem and in
corresponding legislation that may criminalize the offending activity.
Spector and Kitsuse’s articles and book gave rise to a host of stud-
ies, not least those to be found in a series published by Aldine de
Gruyter called “Social Problems and Social Issues” edited by Joel
Best, a leading figure in constructionist studies. Book-length studies
abound, as in Philip Jenkins, Using Murder: The Social Construction of
Serial Homicide (1994a; see also 1992, 2003); Theodore Sasson, Crime
Talk: How Citizens Construct a Social Problem (1995); and Donileen
Loseke, The Battered Woman and Shelters: The Social Construction of
Wife Abuse (1992). There are textbooks (for example, Loseke 2003),
readers (for example, Spector 1980; Best 1995a; Potter and Kappeler
1998; Loseke and Best 2003), debate anthologies (Holstein and Miller
1993; Miller and Holstein 1993) and a large handbook (Holstein and
Gubrium 2008a). Finally, the journal called Social Problems has pub-
lished many constructionist studies (Schneider 2008: 735 and note 5)
since Stephen Pfohl’s (1977) classic analysis of the “discovery,” that is
the construction, of child abuse.

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The social constructionist perspective has been employed in stud-

ies of crime/law creation with respect to many kinds of deviance,
including addiction and drug use, cigarette smoking, drunkenness,
drinking and driving, mugging, hate crimes (Jacobs and Henry 1996),
sexual psychopathy, homosexuality, prostitution, juvenile delinquency,
child abuse, wife abuse, rape and white-collar crime (Katz 1980)
among others. See, for example, such journals as Law and Society
Review, Canadian Journal of Law and Society, British Journal of Law
and Society and International Journal of the Sociology of Law. A useful
review of early work can be found in Hagan (1980), while Conrad
and Schneider (1980) provide what is now a classic account of the
construction of deviance as sickness. Becker himself contributes
one of the earliest studies in this tradition with his analysis of the
creation of the Marihuana Tax Act of 1937 in the United States.
In that study, he introduced the concept of the “moral entrepre-
neur” in a famous sentence that we quoted in the epigraph for this
chapter: “Rules are the product of someone’s initiative and we can
think of the people who exhibit such enterprise as moral entrepreneurs”
(Becker 1963: 147, emphasis in original). Moral entrepreneurs are a
particular species of claims-maker (see, for example, Chauncey 1980).
Reinarman’s (1988) analysis of the enterprise of Mothers Against
Drunk Driving (MADD) in the social construction of drunk driving
as a social problem in the United States of the 1980s is a further classic
example of the genre. Closely related are the studies on the “sym-
bolic crusade” against alcohol in the United States by Gusfield (1986
[1963]); on “drinking driving and the symbolic order” by Gusfield
(1981); and on moral panics by Cohen (2011 [1972]: xxvii–xxviii;
see also Goode and Ben-Yahuda 2009 [1994]; Jenkins 1998). By
way of illustration, we shall consider how social constructionism has
been applied to the sociological analysis of two major areas of social
problem and criminal law creation in the twentieth century; namely,
that to do with drugs and that to do with violence against women.
We shall then consider the grammar of social constructionism as a
professional sociology.

Constructing the drug problem

First, we shall examine the construction of anti-narcotics legisla-
tion in Canada, as analyzed in the work of Small (1978 [formerly

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Cook 1969]). There is a sizeable ancillary sociological and historical

literature on this topic (for example, Solomon and Madison 1977;
Green 1986 [1979]; Blackwell and Erickson 1988; Boyd 1991; Giffen
et al. 1991; Mitchell 1991; Mosher 1998; Carstairs 1999; Fischer et al.
2003). The case of the Marihuana Tax Act of 1937 in the United
States has also been much discussed (Becker 1963; Dickson 1968;
Galliher and Walker 1977; McWilliams 1990). Reinarman and
Levine (1994, 1995) provide a telling analysis of the construction of
the moral panic or “scare” associated with crack cocaine as part of the
“War on Drugs” in the United States in the 1980s, while Jenkins
(1994b, 1999) treads similar ground with respect to “ice” or smokable
methamphetamine in 1989–1990.

Shirley Small: the development of Canadian narcotics legislation

Small (1978 [Cook 1969]) poses the question: what led to the crimi-
nalization of narcotics use in the period 1908–1923? Beginning with
the Opium Act of 1908, a series of Acts were passed culminating in
the Opium and Narcotic Drug Act of 1929 which together criminal-
ized the import, manufacture, sale, possession and use for other than
medical purposes of opium and its derivatives, and of cocaine and
marijuana.This legislation is the foundation of the current Controlled
Drugs and Substances Act (1996). Small accounts for this by appealing
to the claims-making and other activities of various moral crusad-
ers and to the favourable social context that shaped and was in turn
shaped by them. The three important features of this context are:
1. the racial conflict between “whites” and “orientals”;
2. the status conflict between the high-status medical profession and
its clients, using narcotics for therapeutic purposes, and the low-
status users, particularly Chinese, using opium for pleasure and
leisure;
3. the prevailing cultural beliefs and values about drugs and their link
with sexual promiscuity and “race mixing.”
The racism of the time was expressed in such claims as “they [Asiatics]
make the country of no value for the surplus population of Great
Britain,” uttered by Duncan Ross of Vancouver (House of Commons
Debates 1907–1908) and “whatever their motive, the traffic [in drugs]
always comes with the Oriental, and . . . one would, therefore be jus-
tified in assuming that it was their desire to injure the bright-browed

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races of the world” (Murphy 1922: 184, cited by Small 1978 [Cook
1969]: 37). We may add now that

immigrants were selected in order of descending ethnic prefer-

ence: northern Europeans, southern Europeans, Jews, then Asians
at the very bottom of the list . . . There is a 1911 report from
the U.S. government explicitly giving this hierarchy to its immi-
gration officers, so it’s a well-known, widely shared list of racial
preferences.
(Julie Gilmour, quoted in Hunter 2014: paras 21, 22)

This was a practice that didn’t end until after World War II.The deci-
sion not to let 354 of the 376 passengers, predominantly Sikh men,
on the ship Komagata Maru land at Vancouver on 23 May 1914, and
then to deport them, was a particularly blatant case of the application
of this racist policy.3
The criminalization was shaped by the differential power arising
from status differences of different groups of users and producers
of opium. “It made little difference in Canada or the United States
that the ‘evidence clearly indicates that the upper and middle classes
predominated among narcotic addicts in the period up to 1914’”
(Hagan 1980: 614, quoting Duster 1970: 9). Thus, while physicians
created addicts among their often middle-class and maternal cli-
entele by prescribing medicines containing opiates for a variety of
complaints, neither they nor their practice were considered criminal.
The 1908 Proprietary or Patent Medicine Act prohibited only indis-
criminate use of medical opiates, backed up by only minor penalties.
In contrast, there was virtually no opposition to the criminalization
of “non-therapeutic” opiate use associated in the public mind with
the low-status immigrant Chinese population. Similarly, producers of
other drugs – alcohol and tobacco – were often British, of high sta-
tus and contributed useful taxes; their activities were not proscribed.
The same was not true of the low-status (often Chinese) producers
of smoking opium. Together with den proprietors and storekeepers
who sold opium, they could expect the exercise of the “drastic right
of search” without warrant of their “non-dwelling houses” by police,
no appeals for those with no fixed residence, seven-year maximum
sentences and possible deportation for conviction for trafficking, and
whipping for giving drugs to minors.

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Contemporary cultural beliefs were crystallized in the image of

the “dope fiend.” This, in turn, was founded on the thesis that drug
use causes a change of personality, which in turn causes criminal
behaviour. (Recall correctional criminology’s positivistic theories of
criminal behaviour reviewed in Chapter 2.) While defined princi-
pally with reference to opiate use, it was extended to characterize
the users of cocaine, marijuana and tobacco. Thus, Emily Murphy
(1922), quoting LA Police Chief Charles Jones, has this to say about
marijuana use:

“Persons using this narcotic, smoke the dried leaves of the plant,
which has the effect of driving them completely insane.The addict
loses all sense of moral responsibility. Addicts to this drug, while
under its influence, are immune to pain, and could be severely
injured without having any realization of their condition. While
in this condition, they become raving maniacs and are liable to
kill or indulge in any form of violence to other persons, using the
most savage methods of cruelty without, as said before, any sense
of moral responsibility.”
(Murphy 1922: 336, cited in Small 1978 [Cook 1969]: 33)

Sustaining this view was a nineteenth-century social philosophical

belief in the “natural depravity of man,” a state held in check only
by the institutions of church and family. Drug use was thought to
break down the barriers maintained by these institutions, leaving
people, especially the young (especially daughters), exposed to the
vices of pre-marital, promiscuous and, “God forbid,” interracial sex.
Furthermore, the danger seen to be posed by drugs was specified by
race: opium was associated with the Chinese, cocaine with blacks,
and marijuana with Chicanos in the US Southwest (Musto 1973:
244–245).
These racial and status divisions and beliefs about dope fiends and
the like were formulated and exploited in the claims-making and
other activities of a number of moral crusaders or “entrepreneurs.”
As we said above, these are persons or groups who engage in “moral
enterprise” designed to extend the scope of moral and, in particular,
legal regulation (Becker 1963). Especially enterprising with respect to
narcotics control in Canada was the then Deputy Minister of Labour,
later Prime Minister, Mackenzie King. His involvement began when

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he was investigating compensation claims from the Chinese and

Japanese victims of the Vancouver anti-Asiatic riots of 1907 (see
Gilmour 2014).
King was disturbed to find two claims from Chinese opium mer-
chants who had lost their stocks of opium in the riots. He reacted
by preparing a government report on the “Need for the Suppression
of Opium in Canada” which led to the Opium Act of 1908 pro-
hibiting the import, manufacture and sale of opium for other than
medical purposes. He then conducted an anti-narcotics campaign
by attending and publicizing the results of international conferences
on narcotics control; by soliciting testimonials from clergy, police
officers and welfare workers and reading them in the House; and by
appealing to newspaper articles on the subject of drug use. By 1911,
King was ready to propose more punitive legislation, the passage
of which was claimed by King to “assist ‘a world wide movement
which has for its object the suppression of this kind of evil in all
countries’ (House of Commons Debates, 1910–1911)” (Small 1978
[Cook 1969]: 29–30). As a result, the 1911 Opium and Drug Act was
passed which extended the 1908 Act by defining possession for use
as an offence, by including cocaine and by expanding police powers.
Marijuana was added to the Schedule of proscribed drugs in 1923
for reasons nobody appears to know (Giffen et al. 1991: 179–182),
although it is thought that Emily Murphy’s moral campaigning in
the pages of Maclean’s and her 1922 book The Black Candle (quoted
above) was influential (Fischer et al. 2003: 267–268).
King was not alone in his campaigning. He solicited and received
support from individuals such as the conservative politician, H. H.
Stevens, and leaders of the Methodist and Presbyterian churches, and
from groups such as the Anti-Opium League of Vancouver and law-
enforcement organizations.These latter included theVancouver police,
the Chiefs of the Division of Narcotic Control of the Department
of Health, and the Royal Canadian Mounted Police (RCMP). The
involvement of these law-enforcement groups illustrates the impor-
tance of not only moral, but also professional (Hagan and Leon 1977)
and bureaucratic (see also Johnson 1981) interests and enterprise in
the construction of the anti-narcotics laws. The Vancouver police,
because of the difficulty of obtaining convictions under the 1908
law, which did not include possession, pressed for possession and
smoking of opium to be added to the list of offences under the law.

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This demand was satisfied in the 1911 Act and “the offence of pos-
session remained a highly valued enforcement resource” (Small 1978
[Cook 1969]: 40). Following the establishment of a national enforce-
ment network in 1919, addicts were differentiated by the second
Chief of the Division of Narcotic Control, Colonel Sharman, into
three categories: medical addicts, professional addicts and criminal
addicts. It was the last of these three categories that would, of course,
receive criminal sanctions. Finally, the RCMP, which replaced the
Royal North-West Mounted Police in 1920, saw in narcotics work
a means of survival. Because of their role in strike-breaking, as in
the Winnipeg General Strike of 1919, they were in danger of being
disbanded.

With the establishment of the specialised RCMP drug squads there

came into being a branch of the police whose performance and
morale depended entirely on their achieving high conviction rates
under the Opium and Narcotic Drug Act. For the Mountie drug
squads narcotics work became a moral crusade . . . The Mounties
had a vested interest in narcotics legislation, ie. they had a great
deal to lose if Parliament ever decided that a serious drug problem
requiring their services did not exist in Canada.
(Small 1978 [Cook 1969]: 41)

The creation of drug laws not only involves claims-making activities,

it also reveals the use of certain values by the claims-makers. From
a social constructionist perspective, values, as Spector and Kitsuse
point out, are not regarded as determinants of behaviour as in func-
tionalism, but rather as resources that have uses in social action.Thus,
criminal law creation in general and drug laws in particular involve
the rhetorical use by their creators of values which it is claimed justify,
warrant, demand and otherwise make desirable the criminalization
of certain behaviours.
Becker (1963: 136) describes three values that he claims “provided
legitimacy for attempts to prevent the use of intoxicants and narcot-
ics.” The first of these values is “that the individual should exercise
complete responsibility for what he does and what happens to him;
he should never do anything that might cause loss of self-control.”
The second value is that the individual should not engage in “action
taken solely to achieve states of ecstasy.” The third value is that of

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“humanitarianism”; that is, “reformers believed that people enslaved

by the use of alcohol [or drugs] would benefit from laws making it
impossible for them to give in to their weaknesses” (1963: 136).
We should note that our use of Small’s study as an example of
the social constructionist approach is a plausible gambit rather than
being faithful to the author’s self-positioning. As Shirley Cook, she
first published the study in 1969 based on her 1964 MA thesis. This
was well before Spector and Kitsuse’s 1973 articles and 1977 book,
and so was not framed in the language of social constructionism.
Although acknowledging labelling theory (Lemert, Becker), in both
the original (Cook 1969) and revised versions (Small 1978), she
sub-titles the study “a conflict model interpretation,” in the line of
“pluralist conflict theories” in the sociology of law (Austin Turk and
the early Quinney and early Chambliss) rather than Marxist ones.
Such conflict theories derive from Weber and Ralf Dahrendorf where
“power has become divorced from the ownership of the means of
production and is now based on authority in institutional structures
(economic, governmental, religious, etc.)” (Giffen et al. 1991: 10).
The adoption of a conflict model explains the emphasis given to
racial, status and cultural differences in the account. Nevertheless,
the heart of Small’s study is the part played by moral, professional,
political and bureaucratic enterprise on the part of interested parties
whose claims-making in terms of just those differences constructed
the problem for which legislation was seen as the solution. It is for
this reason that we use her study here as exemplary of construction-
ist analysis. It also provides a rare and instructive comparator for the
Marxist account of the very same events by Elizabeth Comack which
we consider in Chapter 7. As Shirley Endicott, Shirley Small went
on to co-write the 1991 book (Giffen et al. 1991) on the “politics of
Canada’s drug laws” that examines this whole topic at much greater
length. In their analysis of the US cocaine scare in the 1980s cited
above, Reinarman and Levine (1994, 1995) review the earlier opium,
cocaine and marijuana scares in the United States in very much the
same terms as Small does for Canada.

Criminalization as progenitor of social problems

In the model for the development of social problems set out by

Spector and Kitsuse and discussed above, criminalization of some

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putatively harmful act is one possible response of government to a

course of claims-making by social movement personnel. However, as
Small indicates for the case of drugs, criminalization may be in part
the progenitor of a social problem, thus reversing the “normal” train
of events. The point is made forcefully by Green in the following
quotation:

Canadian narcotics control then, is not the product of conflicting

[economic] interests [the structural conflict view – see Chapter
7]. Nor does it represent a translation of public morality into
legal norms [the structural consensus view – see Chapter 3]. It
is rather those legal norms that created the public morality that
were responsible for the moral transformation of a private indul-
gence into a public crime. In time, through the efforts of zealous
reformers and enforcers and the paucity of organized or influen-
tial opposition, the public came to share that drug ideology that
motivated the initial anti-drug crusaders. One lesson at least to
be drawn from this experience is that the relationship between
criminal law and morality is not inevitably unidirectional, that the
law is as likely to be a vehicle for social change as to precipitate
legislative revision.The essential consistency of Canadian narcotics
legislation throughout those decades during which public moral
attitudes toward drug users changed from one of tolerance to one
of condemnation supports this thesis.
(Green 1986 [1979]: 38)

If creating a social problem is one possible (unintended?) consequence

of criminalizing some practice, then facilitating further criminality
is a second such consequence. This is partly a result of the trans-
formation of identity from “normal” to “deviant” following upon
the application or enforcement of the law on particular offenders:
“narcotics dependents – through the creation of an extraordinarily
restrictive and punitive control system – became the very kind of
criminally involved (and thus morally inferior) persons the reformist
interests always said they were” (Green 1986 [1979]: 39). As “second-
ary deviance,” such criminality is best addressed in connection with
the symbolic interactionist analysis of police work in Chapter 5. But
it is also partly a result simply of the change in the status or stand-
ing of the practice that prohibition through the criminal law entails.

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There is perhaps no stronger case for the position taken in this work
– that to understand crime, it is necessary first to understand the
criminal law – than that of the extent of the crime made possible
by the laws criminalizing drugs. We conclude this section with the
following reflection by Sharrock on the possible consequences of
de-criminalizing drugs:

Consider the case of marijuana smoking. This is an illegal activ-

ity, which some people regard as a serious problem. Although not
serious in its own right, marijuana is bad, in their eyes, because it
can lead to the use of hard drugs. Marijuana is a social problem
too. Since it is illegal, many people who want to use the drug do
so in defiance of the law and, therefore, engage in criminal activ-
ity.The implication of the argument which labelling theory [in its
constructionist aspect] puts forward is clear. If people ceased to be
concerned about marijuana, then the problem would disappear.
Marijuana use would not cease: smoking it would stop being an
illegal activity. One might speculate that the amount of marijuana
use would also decline as a consequence of legalisation since some
people might be smoking it now for the satisfaction to be obtained
from a relatively harmless but illegal activity.The “solution” to the
marijuana problem is not the prevention of its use but a changing
of attitudes towards it.
(Sharrock 1984: 93–94)

Constructing the problem of violence against women

The criminalization of drugs, alcohol and prostitution, and the legal
regulation of jazz (Gray 1989), all of which occurred in the first quar-
ter of the twentieth century in the United States and Canada (Hagan
1980) and, to a lesser degree, in the UK, were accompanied by the
first phase of the modern women’s movement.This was the phase of:

maternal feminism . . . a feminism premised on moralism rather

than the desire to free family-women from all sexual stereotypes
and discrimination; family-centred as opposed to professional fem-
inism. The cult of true womanhood and the assumption that the
“proper” sphere of women was the home were its central tenets.
(Chunn 1988: 93)

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Thus, the maternal feminist organizations found themselves quite

comfortably ensconced in the male-dominated social and moral
reform movement which emerged in the 1880s and declined
throughout the 1920s. Concerned about the “social disorganiza-
tion” seemingly wrought by vice and immorality, urban, Protestant,
middle-class men and women pushed for measures to eradicate the
drunkenness, gambling, lewd public entertainments, adultery, big-
amy, desertion, child abuse, prostitution, white slavery and opium
dens which were undermining family life and, ultimately, social
order. At the same time, reforms aimed at opening up the public
sphere to women were not an issue. Even in relation to suffrage, for
example, maternal feminist organizations and male suffragists were
at one, embracing the demand for female enfranchisement not as a
measure of democracy or women’s rights but “as an enabling tool
for pet social reforms” (Roberts 1979: 22).
(Chunn 1988: 93)

For example, Emily Murphy, whom we encountered above as a moral

crusader against drugs (and racial minorities and sex), was an advo-
cate for women in this maternal feminist sense. She became the “first
woman to be appointed Police Magistrate in the British Empire”
(Mander 1985: 12), to be precise in Alberta in 1916, and was one of
the five women to bring the “persons case” that in 1929 succeeded
in winning Canadian women the right to be members of the Senate.
But, as she said at the time:

It should be made clear that we . . . are not considering the pro-

nouncement of the Privy Council as standing for a sex victory,
but, rather, as one which will now permit our saying “we” instead
of “you” in affairs of State.
(Mander 1985: 124)

The beginning of the second phase of the movement is generally

set in the mid-1960s. It was arguably the most significant social-
problem-defining movement in the twentieth century, being largely
responsible for the inequality of women or sexism coming to be
seen as a problem of global proportions (see Chapter 8). There
were numerous sub-movements devoted to particular issues. Several
focused on forms of violence against women.That is, women’s groups

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were active in getting rape (Rose 1977; Snider 1985), what was then
called “wife battering” (see below), sexual harassment (Grahame
1985; MacKinnon 1987: chapter 9; Wise and Stanley 1987) and por-
nography (Mahoney 1988; Cole 1989) defined as problems; they
contributed significantly to the process by which child abuse (Lenton
1989) came to be perceived as a problem, especially its offshoot, the
problem of child sexual abuse (for example, Mitchell 1985). In all
these cases, some degree of criminalization of the offending activities
resulted. Other sub-movements fought for de-criminalizing vari-
ous practices; for example, abortion and prostitution (for example,
Shaver 1985; Bell 1987; Jenness 1990 ) while others elevated women’s
inequality in employment (for example, pay inequity) and in fam-
ily, matrimonial and welfare law to the status of major public issues
(Brophy and Smart 1985).
New crimes were created, notably the extension of sexual assault
to cover the case of a husband raping his wife. After 1990, the cir-
cumstance of a wife killing her abusive husband became in a sense
de-criminalized in Canada, the United States and elsewhere where
the “battered wife syndrome” was present.That is, there became avail-
able to a woman charged with killing her husband the “battered wife
defence.” The preceding period of claims-making activities focusing
on the “battered wife problem” has been the subject of considerable
inquiry (see Walker 1990; Loseke 1991).

Kathleen Tierney: the social construction of the

“wife beating problem”

Tierney’s (1982) US study is a paradigmatic exemplar of the con-

structionist approach applied to this topic:“In less than ten years, wife
beating has been transformed from a subject of private shame and
misery to an object of public concern” (1982: 210). The quotation
poses the sociological problem that Tierney addresses. Given that in,
say, 1970, there were no shelters for battered women, no programs,
no organizations, no news stories, no public concern, in short, no
“problem”; and given, further, that there is no real basis for claim-
ing that there had been any significant change in the incidence of
wife beating in the following ten years, what then accounts for the
existence of all these things in 1980? In particular, we may ask, what
accounts for the increased criminalization in this area, comprising

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increased penalties, more forceful prosecutorial policies and tougher

policing (McGillivray 1990 [1987]), criminalization that continued
into the 1980s, culminating, in Canada and the United States, in the
battered wife defence?
Tierney seeks an answer in the activities of “social movement
organizations” (SMOs) in mobilizing resources to “produce” the
problem. Her analysis reveals the significance of a pre-existing
organizational base, the movement’s flexibility and the availability of
incentives for sponsors, in accounting for the rapid emergence of the
problem. Two related themes of the analysis are the attention given
by the mass media to the issue, and the professional character of the
SMO. Her study, then, focuses not on the actual claims themselves
that were made, but on the organizational environment in which
they were made. It especially provides an example of a point made
by McCarthy and Zald (1973: 20): “The professional social move-
ment is the common form of recent movements and presents a sharp
departure from the classical model” in which the activities of grass-
roots groups are central. This is the point we will bring out in what
follows. Readers more interested in the role of the media may wish
to pursue the topic via such sources as Fishman (1980), Leyton et al.
(1992), Barak (1994), Johnson (1995), Mahood (1996), Chermak
(1997), Potter and Kappeler (1998) and references therein.
The battered women’s movement was able to take advantage of
the pre-existing organizational base in the larger women’s move-
ment, and of the professional location of those in mental health and
social work who took up the issue. The movement had access to
full-time leaders and to support from such established sectors as the
philanthropic foundations, governments and the media, and there
was separation between supporters and beneficiaries. Flexibility was
then afforded by the range of organizations available as sponsors,
from churches, women’s service organizations and different levels of
government to local voluntary fund-raising bodies and individual
group projects.The very variety of legal, financial and health troubles
faced by battered women appealed to a range of potential providers.
Movement activities were directed at making police, courts and the
law more responsive, at counselling victims and at providing crisis
support. Sponsoring organizations found that the issue offered vari-
ous incentives.Veterans’ organizations, to cite a Canadian example not
mentioned by Tierney, saw an opportunity to change or increase their

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clientele. The professional profile of the movement was attractive

to those sponsors – such as the Imperial Order of Daughters of the
Empire – wanting to support moderate rather than radical feminist
programs. Legal agencies benefited from giving support by gaining
the diversion of criminal cases from the courts. Social welfare agen-
cies saw the “problem” as an occasion for “moral entrepreneurship,”
for “capitalizing on feminist issues” and for “maintaining the family
unit” (Tierney 1982: 215). Tierney also cites Johnson (1981) who
details cases of what he calls “programme enterprise” by government
agencies with budgets to spend, soliciting applications from move-
ment organizations; this enables them “to move into new domains as
‘old’ social problems decline” (Tierney 1982: 215).
Such an analysis throws interesting light on the construction of
wife beating as crime. On the one hand, as the movement generated
public concern and public attention, it simultaneously generated data.
Through a symbiosis with the mass media, more cases came to be
reported and the class composition of the perceived problem broad-
ened from a working class to a classless phenomenon. The problem
grew. At the same time, its character became shaped by its organiza-
tional incarnation. As opposed to a radical feminist conception of wife
beating as an expression of a structure of dominance – namely, patri-
archy – for which radical social change is the required preventive and
criminal prosecution the required treatment strategy,Tierney saw two
trends in evidence pointing in a different direction. Both stemmed
from the relative success of the professional side of the movement in
coming to “own,” in Gusfield’s (1989) phrase, the problem.The prov-
enance of practitioners in social work, mental health and law meant
that “the wife beating problem would likely become increasingly
‘medicalized,’ professionalized, individualized, and de-politicized”
(Tierney 1982: 216). The “therapeutic treatment of female clients
in bad marriages” would replace the feminist analysis, and domestic
violence programs for offenders would replace prison. Similarly, the
movement itself would become co-opted by professionally staffed,
social-service-oriented organizations that sing to the tune of the
moderate and reformist sponsors.The overall outcome, to extrapolate
from Tierney’s account, would be ultimately less criminalization, and
therefore less crime, than the rhetoric would have led one to expect.
This outcome, though not necessarily Tierney’s analysis, was con-
firmed by the UK research of Edwards (1990) and the US research

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of Ferraro (1989; see also her 2003 article). Although not about the
creation of a new criminal law, Loseke and Cahill’s (1984) study
of the role of “experts” in constructing a new type of “deviant,”
namely the battered woman who stays with her partner, is a classic
work in the field.The construction in this case is analyzed as the out-
come of the work of “professional entrepreneurs” in the social work
and allied helping professions. It has been reprinted in each edition
of Rubington and Weinberg’s equally classic collection, Deviance:The
Interactionist Perspective (tenth edition, 2008).

The grammar of social constructionism

If Kingsley Davis in 1959 was correct in saying, as George Homans
put it, “we are all functionalists now” (see Chapter 3), then it would
be equally true to say, more than a half-century later, “we are all con-
structionists now” (see also Holstein and Gubrium 2008b: v). Across
the human sciences, but particularly in social theory, the language of
construct and construction is pervasive and can be found in various
guises: from the use considered here in relation to the sociology of
social problems, deviance and crime to the sociology of scientific
knowledge (for example, Latour and Woolgar 1986 [1979]), and from
cultural studies to semiology to poststructuralism and postmodernist
formulations of deconstruction (Sarbin and Kitsuse 1994;Velody and
Williams 1998; Hacking 1999; Francis 2005; Holstein and Gubrium
2008a; Saetnan et al. 2011b; Weinberg 2014). It is even possible to
find it used in conjunction with causal theorizing. The allied forms
– constructive, constructivist and constructivism – can also be found,
notably in political science. Moreover, Garfinkel and Sacks (1970:
340) characterize the “remedial work of practical sociological rea-
soning [as] specified in such characteristic practices of professional
sociological inquiry as the elaboration and defence of unified socio-
logical theory . . . with the term ‘constructive analysis’” (see Lynch
2008: 723–724). Not surprisingly, the list of things said to be socially
constructed is long; see Hacking (1999: 1) and Francis (2005: 252)
for two such lists. “While it may be impossible to define what adher-
ents to the various constructivist approaches hold in common, at
least they have the word ‘construction’” (Lynch 1998: 23). Lynch is
here alluding to the Wittgensteinian idea that an indefinitely extend-
able list of family resemblances may be found to characterize the

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various scholarly enterprises that adopt the term “constructionist” to

describe themselves, without it being necessary that they share any
single characteristic in common beyond the word itself. Since eth-
nomethodology is often mislabelled as “constructionist,” readers may
wish to consult Lynch (2007: 110–117) for an elucidation of their
differences, here in relation to the analysis of courtroom testimony.
Nevertheless, in stock usage, to say that a social problem, crime or
concept is “constructed” is to say that it is not simply given in the
nature of things. It is at least the product of human conceptualization,
generally expressed in the terms of language. Given that any phenom-
enon can be described in different ways, any particular description
will reflect the point or purpose for which the description is made.
In this sense, all uses of language are “constructed.”These very words,
for example, are being put together in the ways that they are for the
purpose of writing (“constructing”) a textbook in the sociology of
crime. Indeed, we ought to have no problem saying that:

many things are socially constructed to be the objective, factual and

‘real’ phenomena . . . that they are.
Consider the date of my writing these words – 20 January 1988.
This characterization of the date is wholly correct, objective and as
factual as anything can be. And yet it is a wholly socio-historically
constituted “fact” in so far as (among other pertinent cultural con-
siderations) it involves the deployment of the Gregorian calendar,
which was adapted by Gregory XIII from the Roman calendar as
reformed by Julius Caesar in 45 BC.
(Coulter 1989: 115)

This much, at least, of the meaning of “construct” should be uncon-

troversial. Moreover, to use the concept of construction to direct
attention to the activities of those seeking to gain a hearing in the
marketplace of public problems for a grievance they think needs rem-
edying also seems pretty unobjectionable. There is an art to writing
a cogent letter to the editor, an opposing editorial, an effective press
release or, indeed, some draft legislation (see Berard 2015: 228–231
on expanding hate-crime legislation to include new offences, dis-
cussed in terms of “socially constructing the real”). For maximum
efficacy, one needs to construct such documents and the claims they
contain carefully.

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Insofar as claims-making is intended to persuade others, whether

these are particular constituencies or the government or the public in
general, of the salience of the claims made, then it naturally enters the
domain of politics. This only enhances the need for careful attention
to the contingencies of claims-making in such arenas. That this is so
is attested to by the existence of courses of instruction and specialized
personnel, whether in education or public relations, whose job it is to
look after such matters (see also “political consultants” in Ibarra and
Kitsuse 1993: 57, note 3; then see Bogen and Lynch 1993: 234, note
19). Whether one is making claims or responding to them, they are
necessarily attuned to constructing their communications effectively
for the purposes at hand. If the constructionist sociologist wants to
use “construct” and “constructing” in the aforementioned ways, then
it is hard to see how anyone might object as the usage is no different
from the stock use of those words in those contexts of everyday life.
Unfortunately, the professional sociological obsession with pro-
ducing “theory” with its attendant “craving for generality” leads the
practitioner to take the language of constructing “on holiday” where
it gets into all sorts of trouble. Perhaps the fatal step is to switch from
the verb “construct” to the abstract noun “construction.” For, while
nobody is in any doubt about the meaning of the word in the expres-
sion “construction site,” to say that the labels “drug problem,” “wife
battering,” “Montreal Massacre,” “child abuse” or “serial killer” are
“constructions” leads very quickly to the supposition that there is
something fabricated about them. And what “fabricated” means here
is not simply “built,” but “made up” (see Lynch 1998: 27; 2008: 716–
717).That is to say, being “constructed,” they are not really real. Instead
they are exaggerated or slanted or misleading or distorted or organi-
zationally self-serving versions of the “real thing.” Indeed, prominent
practitioners of social constructionism such as Joel Best (1993; 1995b)
and Philip Jenkins (1994a: 226–227) are content to opt for such a “con-
textual constructionism” over a “strict” version, even while, in Best’s
case, acknowledging both the force of the “strict” position and analysts’
proclivity for debunking claims-makers’ claims (Best 1995b: 352; see
next paragraph), and betraying a certain frustration at having to deal
with the issue at all (Manning 1998: 160). That is, they are content to
say both that social reality is constructed and that such constructs may
or do stand in some less than fully faithful correspondence to the real
thing. They want their constructed cake and to eat it too.

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At worst, such constructions are held to be “myths.” Thus, having

set out in their collection Constructing Crime to “explore the pro-
cesses by which the social reality of crime is constructed” (1998: vi),
Potter and Kappeler devote a section of their Introduction to “crime
mythology.” They state: “False beliefs about crime abound in U.S.
society and play a disproportionate role in the formulation of govern-
ment and law enforcement policies” (1998: 12). Such myths include
the following for the United States in the 1980s: that poor black
and Hispanic inner-city minorities were responsible for the cocaine
epidemic (it was actually affluent, suburban whites); that there was
an epidemic of child abductions (they were actually runaways); that
about 20 per cent of homicides were serial murders (it was actually 2
per cent) and so on (1998: 12–13). As you can see, the authors want to
argue both that social reality is constructed (i.e. the “myths”) and that
it is not (the real facts). Notice also that this form of analysis rehearses
the standard role of the professional sociologist that we noted in
Chapter 1, as an inquirer having privileged access to the truth that
society’s (other) claims-makers – notoriously the news media, but
also official government or law-enforcement agencies, not to men-
tion members of the public generally – obscure, distort, exaggerate,
get plain wrong or otherwise mythologize. Coleman and Sharrock
(1998: 102) note that the notion of social construction “has been
absorbed into the prevailing conception [“that it is sociology’s role to
‘debunk’ members’ understandings”] and has come to play just such
a ‘debunking’ role.”The paradigm case of this stance is The Mythology
of Crime and Criminal Justice, now in its fourth edition, by Kappeler
and Potter (2005). As the publisher’s blurb has it, “The authors trace
the social construction of each issue and outline some of the realities
of crime and justice.”
But, as we have been at pains to argue already, one can’t have it both
ways. Either reality is socially constructed or it is not.To try and have it
both ways is to engage in what Woolgar and Pawluch (1985) trench-
antly call “ontological gerrymandering” (although see Bogen and Lynch
[1993: 234, note 21] for the limitations of their argument). Reviewing
a great many of the constructionist studies to that point, but with
particular attention to Pfohl’s (1977) study of child abuse, they write:

In each case, the key assertion is that the actual character of a sub-
stance [such as a drug], condition, or behaviour remained constant.

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But in each case the authors fail to acknowledge that their iden-
tification of “the nature of [the drug],” or their assertion of the
constancy of a condition or behaviour, can itself be construed as a
definitional claim. In naming, identifying or describing conditions,
these authors inevitably give definition to the putative behaviours
and conditions they discuss. While the claims of the claims mak-
ers are depicted as socio-historical constructions (definitions) that
require explanation, the claims and the constructive work of the
authors remain hidden and are to be taken as given.
(Woolgar and Pawluch 1985: 217)

In other words, the “actual incidence of wife beating” that Tierney

says did not significantly change from 1970 to 1980 is as much a
social construction as the change in the status of wife beating “from
a subject of private shame and misery to an object of public concern”
(1982: 210) that she seeks to explain. That is, the expression “wife
beating” is itself a particular (i.e. “constructed”) way of describing all
that transpired in the interactions among all the parties – including
wives, husbands, police officers and so on – who were involved in
assembling these events into a statistical record under this title. Recall
the point of Meehan’s (2000) study of “the organizational career of
gang statistics” that we reviewed in Chapter 2.
Francis has made the point at the most abstract level in his critique
of philosopher John Searle’s (1995) influential treatise The Construction
of Social Reality. Searle’s argument hangs on the claim that there is
a distinction between “institutional” facts (that are constructed) and
“brute” facts (that are not constructed):“The ontological subjectivity
of the socially constructed world requires an ontologically objective
reality out of which it is constructed,” argues Searle (1995: 191).

The flaw in the argument is clear as soon as one considers some

examples of “brute facts” (e.g. daffodils are yellow; the moon is a
sphere). Searle is correct, of course, that neither the colour of daffo-
dils nor the shape of the moon is created by human beings . . . That
is what we mean when we speak of such things as daffodils and
moons as “natural objects.” But insofar as these features are facts it
makes no sense to say they are “independent of representations,”
since like any other facts they are constituted by concepts. It is not
simply that concepts are necessary in order to state what the facts

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are. Without concepts and the practices of which they form part,
there would be no facts to state in the first place. How can there
be a fact of a daffodil’s colour or the moon’s shape without our
practices of distinguishing colours and shapes? As Wittgenstein has
taught us so effectively, concepts are human institutions.
(Francis 2005: 282–283)

Francis continues:

Wittgenstein provides us with reminders of just this relationship.

What realists such as Searle specifically need reminding of is that
“fact” itself is a concept and, as such, has a grammar of use that we
ignore at our philosophical peril. This grammar is elaborate yet
quite precise. For example, we can “uncover” facts but not “open”
them; “hide” them but not “mislay” them; “chase them down” but
not “follow” them; “digest” them but not “eat” them; “face” them,
even “turn one’s back” on them, but not “greet” them; “assemble”
them but not “make” them, still less “make them up.” Do we do
these things differently for “institutional” than for “brute” facts?
Simply posing this question should suffice to make it clear that
Searle’s distinction has no purchase here. Facts are facts.
(Francis 2005: 283)

Notice Francis’s conclusion. It’s not that the facts are either institu-
tional or brute or some combination of the two. It’s that the distinction
itself makes no sense. In parallel terms, it’s not that reality is objective
or subjective or both, it’s that the distinction itself makes no sense. It’s
not that crime and crime problems are constructed or objectively real
or both, it’s that the distinction itself makes no sense (see Sharrock and
Watson [1988] for a pointed discussion of professional sociology’s mis-
begotten fixation on these and like dualisms). Rather than rendering
claims-makers’ activities, including their coining of labels for the issues
that concern them, in this professional sociology’s theoretical language
of “constructing reality,” we should return them to the institutional
contexts in which they arise, live and have their being, so that it can
be seen what they are doing just there. Abstracting them from their
homes, for the purposes of a misbegotten sociological metaphysics or
epistemology, is really a very strange thing to be doing; it “is to demand
something extraordinary” (Bogen and Lynch 1993: 220).

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We shall re-visit this argument in the grammar section of Chapter

5 where the focus will be not on the “construction” in the “social
construction of reality,” but on the “reality.”We shall take up Coleman
and Sharrock’s (1998: 106, note 6) point that social constructionism
tends to treat “actors as ‘reality dopes’, i.e. as though they were persons
who conducted their everyday affairs on the basis of a philosophical
theory, namely that of ‘naïve realism’” (Coulter 1989: 113). Coleman
and Sharrock are here coining the term “reality dope” on the model
of Garfinkel’s judgmental, cultural and psychological dopes to whom
we referred in the Introduction to Part II, and on Bogen and Lynch’s
(1993: 221–222) likewise derived label of “philosophical dope.”

Conclusion
Stripped of their philosophical trappings and the rhetorical struc-
ture of their explanatory form (Woolgar and Pawluch 1985), the
descriptive content of constructionist accounts can be illuminating
and instructive (Bogen and Lynch 1993: 225). Whereas we may be
inclined to think that social problems, deviance and crime are bad
because they are bad, the constructionist perspective reminds us that
somebody has to define the actions in question as bad, and then work
to get that definition accepted in society more generally.Their “bad”
status, that is, is the product of enterprise, involving claims-making.
That wife battering was, by and large, not recognized as a social prob-
lem before 1970, but was considered a major problem in 1980 only
points to the importance of the claims-making activities of those that
effected this change in its status. That opium and cocaine and mari-
juana use were, before 1908 in Canada, not regarded as social problems
and not against the law, only raises the sociological question of how
they became crimes (and subsequently regarded as social problems)
in and after 1908, 1911 and 1923 respectively. What is critical about
such a question and the descriptive analysis that flows from it is the
challenge it poses to those who would have it (claim?) that the devi-
ant status of such activities is simply natural. On the contrary, says the
constructionist, it is the product of social groups working to make
them so. Furthermore:

The fact that social problems may always be bound to temporal

and practical circumstances does not make them unreal, nor does it

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justify an invariant attitude of skepticism toward them. So far from

arguing in favor of a remote epistemological attitude toward the
field of social problems research, we would rather encourage fur-
ther research about the discursive practices through which social
problems manifest in specific social and historical circumstances.
(Bogen and Lynch 1993: 231)

Such discursive practices include (Bogen and Lynch 1993: 227–228):

• the language used in junk mail sent to potential contributors to
single-issue causes;
• the arguments and counterarguments used in dialogues between
callers and radio talk show hosts;
• slogans shouted at protest marches and pasted on bumper stickers
[“Meat is Murder”];
• journalistic summaries of arguments on both sides of a public
controversy;
• or the arguments used in a class action suit in which the plaintiff
charges a company with having created a public hazard by releasing
wastes into a local river.
For example, “Sweeney [Ontario Minister of Community and Social
Services] wants to stop social problems before they start.”4 The con-
cept of “social problems” is itself part of the vocabulary of everyday
life.
Claims-making about social problems, deviance and crime is, then,
inevitably political. Insofar as the upshot of our grammatical respeci-
fication of it is that the studies comprising constructionist sociology
make many claims of their own, equivalent to those of the claims-
makers they study, then we have grounds for looking for their political
motivation (see also Lynch 2008: 726). Perhaps those motivations lie
in a general anti-authoritarian stance, a desire to advance the cause
of liberation from repressive social control. That the construction-
ist sociology of social problems, deviance and crime enjoyed such a
heyday in the United States of the 1980s is arguably due not least to
the fact that that decade was dominated by the right-wing politics of
the Ronald Reagan presidency, a politics that most constructionist
sociologists did not share and, in many cases, opposed (see also Best
1995b: 352). This led some practitioners to take up the more radical
political positions we consider in Part III. There, in contrast to the
grass-roots or bottom-up emphasis in Spector and Kitsuse’s framing

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of their constructionist approach, it might be said that the order of

importance of sources of criminalizing claims-making is reversed:
first, governments (for example, the War on Terror, the War on Drugs),
then law-enforcement bureaucracies, then law enforcement itself,
then the professions and only then grass-roots organizations and
moral entrepreneurs.

Exercises
1. Collect and record in your notebook all instances of claims-mak-
ing about crime (as one or other type of social problem) that come
your way in the course of a week – from friends, relatives, class-
mates, teachers, work-mates, associates at meetings, store-keepers,
religious officials, coaches, politicians, etc.; in advertising; in the
mail; in the news; in your reading, etc. Note the claims themselves,
who is making them, by what means, directed at whom, to what
end. Note particularly the categories of persons or groups being
referred to, the use of “atrocity tales” or “horror stories,” the appeal
to statistical facts, other rhetorical features of the language being
used and so on.

Review questions
1. What is the constructionist sociologist getting at in saying that
the problem of drinking and driving, or “drugs” or child abuse is
socially constructed?
2. What does it mean to say that some prominent constructionists
want to “have their constructionist cake and to eat it too”?
3. Try and state how it makes sense to say that an object, including
a crime problem, can be both socially constructed and real at the
same time.

Further reading
Pfohl, Stephen J. 1977.“The ‘discovery’ of child abuse.” Social Problems
24 (3): 310–323. The classic study.
Woolgar, Steve and Dorothy Pawluch. 1985. “Ontological gerry-
mandering: The anatomy of social problems explanations.” Social
Problems 32 (3): 214–227. The classic critique.

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Bogen, David and Michael E. Lynch. 1993. “Do we need a gen-

eral theory of social problems?” In J. A. Holstein and G. Miller
(eds), Reconsidering Social Constructionism: Debates in Social Problems
Theory. Hawthorne, NY: Aldine de Gruyter, 213–237. The classic
dissolving of the problem.
Loseke, Donileen R. and Spencer E. Cahill. 1984. “The social con-
struction of deviance: Experts on battered women.” Social Problems
31 (3): 296–310. A brilliant study of the construction of what was
then a “new” type of deviant, the battered woman who stays with
her partner.

Notes
1 For example: www.toxel.com/inspiration/2010/08/07/human-meat-
packages-from-peta/ (Accessed 25 May 2016).
2 Matthew Behrens, “Saying no to Canada’s death game,” rabble.ca, 22 June
2016: http://rabble.ca/columnists/2016/06/saying-no-to-canadas-
death-game (Accessed 25 June 2016).
3 Renisa Mawani, “The legacy of the Komagata Maru,” The Globe and
Mail, 18 May 2016: www.theglobeandmail.com/opinion/the-legacy-of-
the-komagata-maru/article30066572/ (Accessed 30 June 2016). See also
Johnston (2014).
4 “Sweeney wants to stop social problems before they start,” Kitchener-
Waterloo Record, 7 May 1987, B4, “Local.”

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 5 Defining the
situation

If men define situations as real, they are real in their consequences.

(Thomas, W. I. and Thomas, D. S. 1928: 572)

The symbolic interactionist approach provides the view that crime

is a matter of definition rather than an inherent property of any
particular act or person. Crime is a relative rather than an absolute
phenomenon. From a symbolic interactionist perspective, crime is a
constructed or interpreted reality rather than a pre-existing, objec-
tive reality. Accordingly, symbolic interactionists have examined the
processes of selection through which the label “criminal” is applied
to both behaviour and persons. This is not to say that other varieties
of criminology have not been interested in the processing of crime
by the agencies of law enforcement. They have, but with the excep-
tion of ethnomethodology, it is only symbolic interactionism that
has adopted in principle a fully-fledged interpretative conception
of crime. Others have instead worked with a “realist” rather than
an “interpretative” model of crime, although, as we shall see below,
symbolic interactionists are not always consistent in sustaining the
interpretative position in their empirical studies.

Blumer’s core theoretical premises

According to Herbert Blumer, symbolic interactionism rests on three
simple premises:

The first premise is that human beings act toward things on the
basis of the meanings that the things have for them . . .

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The second premise is that the meaning of such things is

derived from, or arises out of, the social interaction that one has
with one’s fellows.
The third premise is that these meanings are handled in, and
modified through, an interpretative process used by the person in
dealing with the things he encounters.
(Blumer 1969: 2)

As far as the study of crime is concerned, the first premise entails

the view that whether a given act is criminal or not depends on the
meanings that are attributed to it. Acts are not criminal in them-
selves; their criminality is a property or meaning conferred upon
them (Erikson 1962). Note the parallel with Weberian action the-
ory as described in the Introduction to Part II. From a symbolic
interactionist point of view, crime is a matter of social definition.
The second premise means that these conferred meanings arise
interactionally, whether in interaction with others or with oneself.
Thus, in the course of direct social interaction, persons may con-
strue each other’s behaviour as criminal. Similarly, in the process of
self-interaction, a person may take the standpoint of others towards
his or her behaviour and thereby identify it as criminal. The third
premise means that what particular meaning is conferred or con-
strued depends upon how the act is interpreted by the parties to the
interaction. This also implies that how an act is interpreted depends
on how the interactional setting or situation is defined by partici-
pants. Interactionists have paid particular attention to the face-to-face,
situational and organizational aspects of the contexts of symbolic inter-
action. It is for this reason that, simplifying somewhat, we have chosen
“defining the situation” (Thomas 1923: 42–43; Thomas, W. I. and
Thomas, D. S. 1928: 572; Merton 1995: 384–385) as the title of this
chapter.

Chapter synopsis
In accordance with these premises, and allowing for the social
constructionist focus on how certain forms of behaviour become
prohibited by criminal law (see Chapter 4), symbolic interaction-
ist studies of crime focus on the examination of the processes and
contexts of social interaction whereby and in which:

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1. certain acts and persons become subject to law enforcement – that

is, the process of crime selection by the police;
2. certain acts and persons become fitted with the label “criminal” –
that is, the process of crime interpretation by the courts;
3. criminal identity is developed, maintained and transformed.
These are the matters we take up for examination here. Symbolic
interactionism’s focus on the development, maintenance and trans-
formation of criminal identity derives from the perspective’s analysis
of the self (see Scott 2015). Accordingly, we pay that analysis particular
attention. There is a fourth line of inquiry that examines the (sub-
jectively) meaningful character of criminal behaviour for “criminals”
themselves. Symbolic interactionists have conducted ethnographic
studies of the social organization and meaning of “crime” as far as
those who engage in it are concerned. Dating back to the work
of the Chicago School of Sociology, such studies have produced a
wealth of ethnographic sociological literature in the fields of crime
and deviance from, for example, Anderson (1923) through Whyte
(1943), Carey (1968) and Adler (1993 [1985]) to Prus and Sharper
(1991 [1977]). However, since these studies do not make problematic
how the forms of crime and deviance they so carefully and faithfully
describe are defined as “crime” (or “deviance”), they will not concern
us here. Instead, we shall draw on that strand of symbolic interaction-
ist theory which concerns itself with issues (1), (2) and (3) above.This
strand has come to be known as the “labelling perspective” or, more
narrowly, “labelling theory.” We included Becker’s statement of the
foundation of this perspective or theory in the Introduction to Part II,
and we return to it in the grammar section of this chapter.We begin,
however, by sketching the various forms of inquiry that have been
called “symbolic interactionism.”

The varieties of symbolic interactionism

Symbolic interactionism in general and labelling theory in particular
have been the subject of considerable controversy.This is, in part, due
to the fact that there is not one interactionist position, but several
(Plummer 1991). Some varieties may be described as quite radically
interpretative, while others are open to mergers with other approaches,
notably positivism on the one hand and conflict theory on the other.
It is arguable that the “Iowa” School of Symbolic Interactionism is

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simply misnamed, for its methodology is indistinguishable from the

abstracted empiricism of mainstream American positivistic sociology
(Meltzer et al. 1975: 55–67).The same can be said of “social structural
symbolic interactionism” (Stryker 1980). However, it is unfortunate
that the labelling position associated with the central Chicago stream
of symbolic interactionism has been persistently misread by ortho-
dox positivistic sociologists as making essentially causal claims (see
Plummer 1979). Nevertheless, it has been noticed that even more
interpretative formulations of interactionism and labelling theory
retain elements of causal theorizing, commonsense “realism” and
variable analysis. Thus, in their foundational article, “A note on the
uses of official statistics,” Kitsuse and Cicourel declare that:

a sociological theory of deviance would focus on three interrelated

problems of explanation:

(1) How different forms of behaviour come to be defined as devi-

ant by various groups or organizations in the society,
(2) how individuals manifesting such behaviours are organization-
ally processed to produce rates of deviant behaviour among
various segments of the population, and
(3) how acts which are officially or unofficially defined as deviant
are generated by such conditions as family organization, role
inconsistencies or situational “pressures.”
(Kitsuse and Cicourel 1963: 135)

That is, to the classical interactionist focus on (1) the definition of

deviance and (2) the selection of deviants, they add (3) the incongru-
ous traditional interest of positivistic sociology in structural-causal
explanation. The same ambivalence may be found throughout the
work of Cicourel (for example, 1964, 1976) and in Douglas’s (1967)
interactionist study of suicide (see Eglin 1987: 206–207;Woolgar and
Pawluch 1985: 218, footnote 7). These are all further cases of the
“Weberian” desire to have it both ways.
Similarly, despite his seminal statement of the central tenets
of the labelling approach to deviance in Outsiders, Becker incorporates
the commonsense distinction between “obedient” and “rule-break-
ing” behaviour into his model of deviance in contradiction of his
own claim that “deviant behaviour is behaviour that people so label”

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(Becker 1963: 9). Consequently, “four of the five empirical chapters”

in Outsiders “do not present research on the societal reaction to devi-
ance, but are concerned with the deviants themselves” (Spector and
Kitsuse 1987 [1977]: 98). We examine this problem in detail in the
grammar section below via Pollner’s critique.
Furthermore, in Making the Grade, a study of student life in a US
university, Becker et al. (1995 [1968]) resort to quantitative meas-
urement, presenting “tables which classify and count the number
of observed occurrences which support his hypothesis” and which
“also show the number of negative cases” (Cuff and Payne 1984: 210).
Quantitative measurement is, of course, a cardinal feature of the vari-
able analysis that is a mainstay of positivistic methodology, one which
Blumer himself (1956) had so trenchantly criticized from a symbolic
interactionist perspective in “Sociological analysis and the ‘variable’.”
For some sociologists of crime and deviance, interactionism/label-
ling theory was something of a passing phase on the way to a more
“radical” position within the Marxist or structural conflict perspective
(and sometimes on the way from a traditional positivistic position).
(Others, such as Atkinson [1978], record a journey from positivism,
through interactionism to ethnomethodology.) This has been noted
by a number of commentators (for example, Klockars 1979; Downes
and Rock 2011; Hinch 1983; Berard 2003: 433) and appears to be
true, for example, of Chambliss, Quinney, Platt (compare the first and
second editions of The Child Savers [1969, 1975]), Cohen (compare
the first and second editions of Folk Devils and Moral Panics [1972,
1980]) and to a lesser extent of Box (compare the first and second
editions of Deviance, Reality and Society [1971, 1981]).Young’s journey
is particularly noteworthy. See Box 2.

BOX 2  One criminologist’s theoretical journey

From being among the first (in the UK) to join, in the late 1960s, the interactionist critique
of the structural consensus orthodoxy of the 1950s, Jock Young became a leader in the
1970s of the left idealism of the “new” (that is, Marxist) critical criminology, only to take up
left realism in the 1980s. In so doing, he completed a cycle which returns to the essentially
cause-and-cure correctionalism from which this sequence of changes initially departed,
a correctionalism with its attendant positivistic features of a reliance on official statistics,

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the large-scale social survey and variable analysis, and a corresponding return to reformist
politics. As Smart (1990: 72) says, “The problem of positivism is, therefore, not redeemed by
the espousal of left politics. Positivism poses an epistemological problem; it is not a simple
problem of party membership.” It is altogether a remarkable journey (see Young 1999).

For some, this shift crystallized half way in the form of a “radical
interactionism” (for example, Carlen 1976); McBarnet’s (1981) study of
conviction occupies similar transitional ground. Indeed, Hagan (1991),
among others, treats labelling theory as a species of conflict theory.We
noted the same about Shirley Small in Chapter 4. However, both the
interactionist perspective and labelling theory, and what Spector and
Kitsuse (1987 [1977]: chapter 3) call “value-conflict theory,” depart
from the structural conflict or Marxist perspective insofar as they do
not standardly have recourse to the wider structural context of society,
and they do not privilege class among the various dimensions of con-
flict. As for an overt political stance, where this is not altogether absent
in published accounts, it amounts usually to the advocacy of pluralism
and a concern for liberalizing the criminal law, its administration and
enforcement by recommending, for example, “radical non-interven-
tion” in the primary deviance of the young (Schur 1973). We restrict
our treatment of the whole perspective to its “pure” interpretative form.

Symbolic interactionism and the self

If symbolic interactionism as a sociological perspective has been
expounded primarily by Herbert Blumer, it derives chiefly from the
influence on him of the philosophical social psychology of George
Herbert Mead (1934; see Plummer 1991). The key concept in the
symbolic interactionist approach is that of the “self.” The self is con-
ceptualized in two ways. First, there is the idea of the self as process.
Second, there is the self as object. As process, the self refers to the
distinctively human capacity for self-interaction. This means that the
human being is able to interact with his or her self. This is achieved
through a process in which the actor makes “indications” to him- or
herself and then responds to these indications by making further self-
indications. Self-indications are made whenever the actor notes or
points something out to him- or herself.

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According to Athens (1980: 15), the process of self-indication has

two “essential features.” The first is that humans make these indica-
tions to themselves as if they were making them to someone else,
except that they are made in a “shorthand or more abbreviated and
rapid manner.” The second is that “when making self indications,”
actors are always role-taking or implicitly indicating to themselves
“from the standpoint of another person, a small discrete group of
persons, or a generalized other” (1980: 15).
It is through the process of self-indication that actors construct
interpretations of the situations in which they find themselves.There
are two sides or “phases” to the process of interpretation in the sym-
bolic interactionist framework. The first is definition. This involves
the actor defining the situation that he or she faces. Central to this
defining is the process of role-taking in which the actor takes the role
or roles of the other people in the situation and indicates to him- or
herself from their standpoint the meaning of the gestures which they
are making. The second phase in interpretation is judgment. It is
through this phase that the actor decides the course of action to be
taken in the situation, given his or her definition of it. Judgment is
achieved through taking the role of a generalized other and indicat-
ing to him- or herself from that standpoint how to act. The role of
the generalized other is the perspective of an abstract other or group
that the actor builds up over time from his or her interaction with
other people. The role of the particular generalized other that the
actor takes in judging a situation depends on his or her definition of
the situation. Even after forming, as a result of this process, a “plan
of action,” subsequent re-definitions of the situation may result in
further judgments and revised plans of action.
The second aspect of the self is that of the self as object. This
refers to the human capacity for having a picture of him- or herself.
This picture is called the self-image by symbolic interactionists. Self-
images are developed through a process in which the actor looks at
him- or herself and then judges what is seen. Actors cannot see or
judge themselves directly; they can do so only indirectly, by taking the
standpoint of others towards themselves.These others may be selected
persons, small discrete groups or generalized others. They are central
to a person’s sense of “who they are.”
The concept of self underlies Blumer’s three premises of symbolic
interactionism that we identified above. There we expressed them

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in relation to the study of crime and listed the particular topics of

inquiry they made relevant.Thus, to recap, the premises are that human
beings act towards things in terms of the meanings the things have for
them; that the meanings arise out of social interaction; and that they
depend on a process of interpretation. Action, meaning and inter-
pretation all depend upon the human capacity for self-interaction;
that is, on the possession of a self.When applied to the study of crime,
the three premises translate as follows: whether a given (class of)
act is criminal or not depends on the meaning attributed to it (that is,
it is a matter of definition); the selection of a particular act (or instance
of action) as criminal is an interactional matter; and it is also a matter
of interpretation. Of the topics of inquiry thereby made relevant, we
examined the definition or construction of acts as criminal – that is,
the making of criminal laws – as well as the production of kinds of
crime as social problems, in Chapter 4. In the first part of this chapter,
our focus is on the selection of particular acts (or instances of action)
as criminal; that is, in the first place, on the decision-making of the
police.To appreciate what this entails, we shall elaborate our account
of the main concepts of the symbolic interactionist perspective, and
show just what it is about police work as the selection of crime that
they allow us to see. We will follow this by considering how the
labelling attending interaction with the police affects the identity
of the offender. We will then turn our attention to the administra-
tion of justice through the courts in terms of participants’ accounts
of their and others’ actions, including in relation to plea-bargaining,
before considering symbolic interactionist studies of incarceration
and identity.

Symbolic interactionism and the police: selecting

crime, criminals and criminality
We said above, “with the exception of ethnomethodology, it is only
symbolic interactionism that has adopted a fully-fledged interpreta-
tive conception of crime. Others have instead worked with a ‘realist’
rather than an ‘interpretative’ model of crime.” Brannigan (1984),
for example, in summarizing the sociological work on the selec-
tion process, develops a distinction between the “crime funnel” and
the “crime net” as ways of understanding how acts and persons are
identified as criminal. Unfortunately, this distinction fails to bring

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out sufficiently the radically interpretative character of the symbolic

interactionist view. The crime funnel model, which is equivalent to
the “moments of criminalization” we introduced in Chapter 1 (see
Figure 1.2), posits the existence of “criminal behaviour” in society,
but only some of it comes to the attention of victims, complainants
and police. Only some of the crime thus attended to is acted upon:
victims don’t always inform the police and the police do not always
record complaints as crimes. Of the total number of recorded crimes,
only a smaller percentage results in charges, even fewer in convictions.
The result, according to this model, then, is that there is a progressive
“editing out” of “crimes” as offences are processed through the “fun-
nel” of the criminal justice system. Compared to the “real amount
of crime” out there in society, the amount actually recorded by the
police and dealt with by the courts is much smaller, though we have
no way of knowing how much smaller it is because we don’t know
how much crime there “really is.” Criminologists call this real amount
of crime that exists independently of law-enforcement recognition
the “dark figure of crime.”
The “crime net” model is also a realist model of crime. It is favoured
by the proponents of the structural conflict perspective. Its aim is to
bring out features of the criminal justice process that are left unexam-
ined in the crime funnel approach. In particular, the crime net model
is used to draw attention to the highly discretionary and selective
character of policing in particular, and law enforcement in general.
Like the crime funnel model, the crime net posits the existence of a
vast amount of “real crime” in society existing independently of its
recognition by officials or laypersons. Metaphorically, this crime is
likened to an ocean of fish. Cod, haddock, sharks, swordfish abound.
There are “big” fish and “little” fish. The police are then likened to
fisherpersons who go fishing with their “crime nets” for the fish-
criminals. In doing so, they have to make decisions as to where to fish
and what types of fish they wish to catch. Studies have shown that
they tend to concentrate their efforts on the little fish (that is, only
certain types of crime, typically lower-class, ordinary crimes of the
powerless), leaving the big fish (upper-class, crimes of the powerful)
to swim free.
Though these two models are useful in bringing out different
aspects of the work of law enforcement, it is important to bear in
mind their similarities of approach. Thus both posit the existence of

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“real crime” that is independent of the work of the police and courts.
It is for this reason that both are realist models of crime. In contrast,
the symbolic interactionist approach prefers to take an interpretative
or constructionist view: there is no crime apart from that which is
actually identified as such.
We shall return to this distinction between the realist and inter-
pretative models below (see grammar section) in relation to Becker’s
diagram of four types of deviant behaviour which, according to
Pollner, confuses the realist and interpretative models of crime. For
the present, we wish to emphasize that the symbolic interactionist
view of crime provides for the examination of policing as involving
the interpretation of acts and persons as criminal. It is through these
interpretations that some acts and some persons are selected to be our
crimes and criminals.This view provides then for the examination of
how crime is identified and who is selected for the role of criminal.
These tasks fall to the police as one “crime-defining agency.”
Symbolic interactionist interest in the process of selecting crime
follows from its view of the police as actors just like any other social
beings.That is, they are viewed as possessing selves with which they act
in, and interact with, their environment.The self is conceived as a pro-
cess through which humans point things out to themselves, thereby
constituting the “outer world” as a meaningful one at the same time
as appropriating that world as their own. The resources used in this
process of making meaning include “concepts,” “frames of reference”
and “definitions of the situation.” In short, what a person “sees” in
the world depends on their “point of view.” Thus, what counts as an
act(ion) is behaviour under some meaning conferred on or attributed
to it by the actor.To understand the actions of the police, the sociologist
must “take the role of the other” in order to see how police perceive
their circumstances and accordingly construct their actions. Similarly,
the police engage in a similar process of role-taking in attributing
meaning to the behaviour of those they define as criminal.
Symbolic interactionist studies of policing have therefore paid
particular attention to the processes of social interaction and interpre-
tative schemata through which certain acts and persons are selected
or identified as criminal, including what kind of criminality they
are seen as exhibiting and what type and degree of law enforcement
they correspondingly warrant. Studies of police decision-making are
heavily weighted in favour of the uniformed branch.They standardly

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consist of detailed examinations of the routine work of the beat or

patrol officer (see, for example, Manning 1997 [1977]). Although
there are a small number of studies of the plain-clothes branch – that
is, of detectives (for example, Ericson 1981; Hobbs 1988; Manning
2003 [1980]; Sanders 1977; Skolnick 1975 [1966];Waegel 1981) – we
remain with the “street cop” in the example that follows.

Jennifer Hunt: the police use of “normal force”

A central concern of symbolic interactionism, going back to

Sutherland (1983 [1949]) and, before him, Mills (1940), is with
the rationalization of action, and its relation to crime. Excuses,
justifications, vocabularies of motive, techniques of neutralization,
rationalization, in short “accounts” are viewed as pivotal in the trans-
lation of an abstract “willingness” into actual behaviour. In other
words, the actor must have “good reason” to act in the way s/he does;
projected courses of action must be excusable or justifiable if they
are to become more than projections. Accounts for action are then
embodied in the cultural perspective of the person or group, the task
of the sociologist being to try to appreciate this and then to use it as
a resource in explaining the action under consideration.
This approach to the study of action has been used extensively
in criminology and the sociology of deviance in order to show how
crime follows from the permissive character of rationalization. We
shall go into more detail on this topic later in the chapter when we
consider the symbolic interactionist perspective on the administration
of justice in the courts . For the present, we will consider an example of
this approach in relation to the use of force amongst the police.
As we said in Chapter 2, according to Bittner (1974, 1990), the
capacity to use force stands at the core of the police mandate. Hunt
(1985) looks at the police use of force from a symbolic interaction-
ist perspective. She says, “sociologists working within the symbolic
interactionist tradition have displayed particular interest in the police
officer’s own assessment of what constitutes necessary force” (1985:
316). Hunt examines how police “classify and evaluate acts of force
as either legal, normal, or excessive” (1985: 316). “Legal force” is the
“coercion necessary to subdue, control, and restrain a suspect in order
to take him into custody” (1985: 316–317). Normal force, on the
other hand, although technically labelled excessive, involves coercive

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acts that specific “cops” on specific occasions formulate as necessary,

appropriate, reasonable or understandable.
As in other symbolic interactionist studies, the method for explor-
ing this topic is participant observation. By participating in, and
observing, the actions of the police, Hunt developed an apprecia-
tive understanding of their point of view. She discovered that the
police contrast what occurs “on the street” and what is “taught at
the academy” (1985: 317). At the latter, force is taught by reference to
legality, with officers being issued with “regulation instruments” and
being trained “to use them to subdue, control, and restrain a suspect”
(1985: 318). Deadly force may be used if the officer is threatened
with “great bodily harm” (1985: 318). However, the formal, academy
view is that the baton, jack or gun cannot be used “unnecessarily
to torture, maim, or kill a suspect” (1985: 318). In the “informal
world” of street policing, however, “normal” as well as “legal” force
is recognized. Rookies “learn to adjust their arsenals to street stand-
ards,” being “encouraged to buy the more powerful weapons worn
by veteran colleagues as these colleagues point out the inadequacy of
a wooden baton or compare their convoy jacks to vibrators” (1985:
318). It seems that soon after joining the informal world of policing,
“most rookies have dispensed with the wooden baton and convoy
jack and substituted them with the more powerful plastic nightstick
and flat headed slapjack” (1985: 318).

Some officers also substitute a large heavy duty flashlight for the
nightstick . . . [since] . . . if used correctly, the flashlight can inflict
more damage than the baton and is less likely to break when
applied to the head or other parts of the body.
(Hunt 1985: 339, note 2)

Another difference between formal tuition and informal experience

and instruction relates to actual street use of these weapons. At the
academy, police are taught not to hit people on the head or neck for
fear of causing their death. By way of contrast, they are taught, on the
street, to hit wherever “it causes most damage in order to incapacitate
the suspect before they themselves are harmed” (Hunt 1985: 319).
The respect of colleagues is earned not through observance of “legal
niceties” in using force, but by being “aggressive” and using whatever
force is necessary for a given situation (1985: 319).

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Becoming a “real street cop” involves learning to use normal force.

Women rookies are said to encounter special problems in this pro-
cess because, unlike their male counterparts who “are assumed to be
competent dispensers of force unless proven otherwise,” they “are
believed to be physically weak, naturally passive, and emotionally
vulnerable” (Hunt 1985: 319). Consequently, opportunities to display
their physical abilities in order to deal with such male bias and obtain
full acceptance have to be created and exploited. This involves act-
ing “more aggressively” and displaying “more machismo than male
rookies” (1985: 319).
The police account for their use of “normal force” in two ana-
lytically distinguishable ways: the situational and the abstract. In
situational accounts, force is represented as responsive to situational
specifics requiring a need to restore control and order and power.
Abstract accounts “justify force as a morally appropriate response to
certain categories of crime and criminals who symbolize a threat
to the moral order” (Hunt 1985: 325).
A central theme in the situational accounts is that of physical threat
or harm to the police on the part of suspects: where the police are
physically threatened or harmed, then “technically excessive” force
is acceptable and desirable; that is, “normal” (1985: 327–328). Hunt
offers an example of this in the form of a case where

an officer was punched in the face by a prisoner he had just appre-

hended for allegedly attempting to shoot a friend. The incident
occurred in the stationhouse and several policemen observed the
exchange. Immediately, one officer hit the prisoner in the jaw and
the rest immediately joined the brawl.
(Hunt 1985: 328)

This collective response was seen as “normal.” A second theme of the

situational accounts is that of the “symbolic assault on the officer’s
authority and self ” (Hunt 1985: 328). From the perspective of the
police, those persons who verbally and symbolically challenge them
are “assholes” (Van Maanen 1978: 224) and therefore justify “a force-
ful response to maintain control” (Hunt 1985: 328). Included in this
category would be cases where a suspect violates an officer’s property
such as his or her police car or hat. Hunt reports the example of the
suspect who was apprehended, cuffed and “thrown” into the back of

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the police vehicle, but then had the audacity to run away with the
police officer’s property; that is, the cuffs. The response is described
as follows:

[A]ll of a sudden Susan [the police officer] looks up and sees her
cuffs running away. She (Jane [the other police officer]) said Susan
turned into an animal. Susan runs up the steps [and] grabs the girl
by the legs. Drags her down the five steps. Puts her in the car. Kicks
her in the car. Jane goes in the car and calls her every name she
can think of and waves her stick in her face.
(Hunt 1985: 328)

Female police officers often encounter special difficulties with respect

to these symbolic threats to their authority. Some suspects, typically
male, refuse to accord female officers the same respect and sym-
bolic control they accord male officers; they are viewed as provoking
confrontations by sexualizing the police–suspect encounter. Under
these circumstances, women officers justify force to rectify what are
defined as “insults” and to re-establish control.
In contrast to these “situational” accounts, which normalize
force as a means for regaining control that has been symbolically
or physically threatened, the “abstract” accounts justify force “as an
appropriate response to particularly heinous offenders” (Hunt 1985:
331 ). Such persons include

cop haters who have gained notoriety as persistent police antago-

nizers; cop killers or any person who has attempted seriously to
harm a police officer . . . sexual deviants who prey on children
and “moral women”; child abusers; junkies and other “scum” who
inhabit the street.
(Hunt 1985: 331)

In contrast, those whom the police define as “clean” criminals,

including high-level members of the mafia, white-collar crimi-
nals and professional burglars, are rarely subjected to force. Nor
are violent and non-violent predators of “adult males, prostitutes,
and other categories of persons who belong on the street” (1985:
332). These victimizers of the “morally unworthy,” like the “psychos
and the demented” who are “so mentally deranged that” they are

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not responsible for their acts, are less likely to experience “abstract,
punitive force” (1985: 332).
These justifications in terms of abstract categorizations of persons
invoke, from the police point of view, “a higher moral purpose that
legitimates the violation of commonly recognized standards” (Hunt
1985: 332). It is an example of what Emerson (1969: 149; see below)
calls a “principled justification” where “one depicts the act as an
attempt to realize some absolute moral or social value that has prec-
edence over the value violated by the act” (as quoted by Hunt 1985:
340, note 15). Hunt offers as an example of this the following case:

[A] nun was raped by a 17-year-old male adolescent. When the

police apprehended the suspect, he was severely beaten and his
penis put in an electrical outlet to teach him a lesson. The story
of the event was told to me by a police officer who, despite the
fact that he rarely supported the use of extralegal force, depicted
this treatment as legitimate. Indeed, when I asked if he would have
participated had he been present, he responded, “I’m Catholic.
I would have participated.”
(Hunt 1985: 332)

The permissive character of accounts with respect to the exercise of

“normal force” notwithstanding, police culture also provides a set
of informal controls for exceptional and inappropriate police con-
duct. “Technically excessive” force may be both circumstantially and
abstractly justifiable, but that does not mean that “anything goes”
(though it may sometimes mean precisely that). Rather, police cul-
ture contains definitions as to what constitutes “excessive” force as
far as the police themselves are concerned. Thus, first, “Police recog-
nize and honour some rough equations between the behaviour of
the suspect and the harmfulness of the force to which it is subject.
There are limits . . . to the degree of force that is acceptable in par-
ticular circumstances” (Hunt 1985: 333). Cultural disapproval obtains
in cases where “symbolic assailants” (Skolnick 1975 [1966]: 45) are
“mistakenly” subjected to “more force than [they] ‘deserve’” (Hunt
1985: 333) (for example, killing a “rude drunk”); where officers “lose
control” (for example, doing serious harm to a suspect whom the
police officer regards as morally reprehensible, such as a child abuser);
and where the officer engages in “unnecessary” force such as fighting

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with “crazy people” who make aggressive approaches to the police

(1985: 333–335).
Hunt’s analysis of the use of what police in a large US city regard as
“normal force” is based on 18 months of fieldwork conducted in the
early 1980s.Thirty-five or more years later, it continues to illuminate
the routine, institutionalized violence of police in the United States
and elsewhere, up to and including the killing of those they regard
as disobedient, so many cases of which have dis-graced the televi-
sion screens of North America in the middle of the second decade
of the twenty-first century. What it took for Hunt, a woman in the
male-dominated and masculinist world of police work, to get and
keep such intimate access to police practices and attitudes is recorded
in the remarkable account she gives of her fieldwork (Hunt 1984).

Policing and the amplification of crime:

the contribution of labelling theory
In this book, the concept of “amplification” refers to the process of
social interaction through which crime is made worse or “amplified”
by law enforcement. It has been used in two main ways. First, we shall
be examining how social control can amplify crime in the sense of
providing the conditions conducive to increasing its apparent fre-
quency and seriousness. Second, under the rubric of labelling theory,
we shall consider how social control can contribute to the onset of
criminal identity and the building of deviant careers.

Social control and the amplification of crime

Wilkins (1964) is the first to use the concept of amplification in

the study of crime. He uses the concept to describe a social process
whereby the consequences or feedback of an action taken, say, to
solve a problem, can in fact exacerbate the problem. One of the earli-
est studies to consider this notion in the field of crime and deviance
is that of Cohen (2011 [1972]) who, in a now classic investigation
of deviant youth subcultures in the 1960s, shows how the endeav-
ours of social control and the attendant publicity surrounding them
not only exacerbated but transformed the problem to which they
were directed. Thus, the “mods” and the “rockers” were, in the early
stages of their development, two largely independent youth lifestyles.

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Though the proponents of these lifestyles dressed differently, had

different musical tastes, different leisure activities and were symbol-
ized by different modes of transport (the motorbike and the scooter),
the early relationship was one of distance and disdain rather than
overt conflict. Some small-scale fighting between the groups and the
resulting vandalism at an English seaside resort in 1964 changed all
that. The newspapers covered the story and characterized the events
as “gang warfare.” It became a “hot” story to be pursued relentlessly
by the media over the next couple of years. A “moral panic” was
set in motion in which the public and the guardians of its morality
expressed, and in a sense became obsessed with, the imagined threat
that these “opposing” groups posed to social order. The result was
that the members of these groups themselves increasingly attended
to the differences between them such that the character of member-
ship changed. A sine qua non of membership became opposition to
the other group. Consequently, greater violence between the groups
occurred. The police expected it and at holiday time in the seaside
resorts, thousands of them were drafted in to “prevent it.” Thousands
of mods or rockers turned up expecting it too. The result was a
self-fulfilling prophecy all round.

The case of (de-)criminalizing marijuana

At the time of writing, moves to de-criminalize or at least legalize

marijuana (cannabis) had already been taken or were being taken in
many states of the United States, in Canada as a whole and elsewhere
in the world. A long-standing subject of symbolic interactionist
inquiry, marijuana use is analyzed in terms of this approach by Becker
in his classic study, “Becoming a marihuana user” (Becker 1953).The
amplification of crime brought about by its criminalization is well
captured in the following summary of Lemert’s original analysis:

If the cultivation, distribution and sale of cannabis were legalised,

then one would do away with a lot of deviant activity. One would
have put an end to the need to smuggle the drug and also the ille-
galities involved in the use of the profits from the trade . . . [and]
the development of organised crime and the formation of crimi-
nal gangs which go on to break the law in a variety of ways
above and beyond the dealing in drugs. In much the same way,

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the prohibition of alcohol in the USA led to murder and the

formation of gangs through the development of bootlegging.
Starting from the assumption that society makes deviant acts
possible by setting up prohibitions, the argument leads to the con-
clusion that by setting up such rules, society also provides people
with the circumstances which will motivate them to perform fur-
ther deviant acts, to develop lifestyles and organizations around the
needs of the prohibited activity. This will result in the formation
of deviant groups. The effect of lifting the proscription on the
original deviant act might not be the prevention of the act from
occurring, but it would be the elimination of the possibility of and
the need for many other illegalities arising from it.
(Lemert 1967, summarized by Sharrock 1984: 94)

Labelling theory, amplification and the social process

of becoming deviant

There is a wealth of literature under the title of “labelling theory.” We

cannot review it all here (see Plummer 1979, 1991).The most promi-
nent labelling statements are those by Lemert (1948, 1951, 1964,
1967, 1974, 1976), Kitsuse (1962), Becker (1963, 1973), and Matza
(2010 [1969]). Erikson’s (1962) account is problematic insofar as it is
wedded to a structural consensus position derived from Durkheim;
we discussed it in Chapter 3. The basic proposition of labelling
theory is that “social control leads to deviance [including crime]”
(Lemert 1967: v, cited in Box 1981 [1971]: 19). This occurs, it is
argued, because the person labelled as criminal internalizes that label
and comes to see him- or herself as essentially criminal, and because
social control creates for the person so-labelled certain problems
whose solution is the commission of further criminal acts.
It is important to note that “labelling theory” is a retrospective
construction of what is a mélange of related positions. Partly for
this reason, Plummer (1979) prefers the title, “the labelling per-
spective.” Thus, the expression “leads to” in the basic proposition
advanced above has been construed by practitioners and critics both
(1) interpretatively – that is, as making the “constitutive” claim that
“the social control reaction or labelling constitutes a given behaviour
as deviant/criminal”; and (2) deterministically – that is, as making
the “causal” claim that “the social control reaction or labelling causes

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deviant behaviour.”Thus, in the matter that immediately concerns us

– namely, the acquiring of a deviant identity – analysts do not always
make explicit just what position they are taking on the nature of the
connection between labelling and identity acquisition. We consider
Pollner’s critique of the confusion between the constitutive and what
he calls the “mundane” version of labelling theory in Becker’s (1963)
account in the grammar section of this chapter below.
Even though labelling theory is symbolic interactionism applied
to the problem of deviant identity and behaviour, it is probably best
to locate its origins in the early work of Lemert (1948, 1951) who
is only “reservedly” a symbolic interactionist (Plummer 1979: 87).
He is responsible for a conceptual distinction between two kinds
of deviation: primary and secondary deviation. These are not only
qualitatively distinct; they also originate in different ways. Primary
deviation refers to occasional or initial deviation that is normalized;
that is, explained away as part of what Lemert calls “normal varia-
tion.” We all commit the odd deviant act now and again for a wide
variety of social, psychological, biological, and no doubt other rea-
sons, but we do not think of ourselves as essentially deviant; the fact
that we may have done something wrong, perhaps even illegal, is not,
for us, the most central feature of our identity or our lives in general;
recall the discussion of this point in Chapter 1. Secondary deviants,
on the other hand, not only centre their lives around the facts of
their deviance; they also consider themselves to be a deviant kind
of person.Their deviance is the most central or organizing feature of
their identity. Furthermore, what labelling theory directs our atten-
tion to is the role played by the labelling carried out by agencies of
social control in the onset of the identity change that is definitive
of the secondary deviant. Social control creates problems such as
community rejection, stigmatization, discrimination, economic dif-
ficulties and police surveillance; the solution for these problems may
be found in the commission of further deviant acts. It is in that sense
that the deviance becomes “secondary”; that is, a deviant response to
social reactions to earlier deviant behaviour.
Perhaps the most sophisticated statement of the labelling process
and its role in the process of becoming deviant is to be found in
the work of Matza (2010 [1969]). He describes four “stages” in the
process of social interaction between the deviant and the agencies of
social control, the first two of which are relevant here.

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The process of becoming deviant begins with the problem of

“ban and transparency.” This is the first stage and refers to the fact
that those who engage in behaviour prohibited or “banned” by the
state encounter problems in keeping their behaviour secret.They will
face the problem of concealment and the related anxiety that others
will “see through” their attempts to “cover up” their misdemeanours.
Matza argues that this may be sufficient to give the deviant “identity
doubts” in the sense that if they “are only playing at being normal,
then who or what are they really?” This is a first step on a path
leading to identity change.
The second stage is referred to as “apprehension and labelling.” It
is at this point that the offender is arrested and treated in accordance
with the routines and conventions which social controllers employ
for dealing with “criminals.” Not only is the offender “registered”
as an alleged criminal, they are typically derogated and treated as
representatives of that category of offender for which their offence
qualifies them for membership. Most importantly, it is at this stage
that the person loses that “blissful identity” (Matza 2010 [1969]: 156]
of being one who, among other things, happens to have commit-
ted an offence (for example, a theft). For all practical organizational
purposes, that person, whatever else he or she may be, is first and
foremost a “thief.” If the person had any identity doubts at the “ban
and transparency” stage, they will most certainly be exacerbated at
this one.
For some, the social process of becoming deviant may stop at this
point; but for others, it may not. For those that continue there will be
ever heavier matters of social identity to consider and greater prob-
lems of social control to contend with. As the offender “progresses”
deeper into the world of social control, the chances that he or she
will undergo identity transformation increase, not least because of
the problems created by social reaction to his/her criminal offences.
The next stages in the process are incarceration and post-prison
stigmatization, matters to which we shall return later in the chapter.

Symbolic interactionism and the courts

We begin this section by introducing the interactionist tradition of
inquiry into the role of “accounts” in social action, with particular
reference to excuses and justifications. We then consider Emerson’s

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(1969) classic study of lawyers’ application of conceptions of delin-

quents in courtroom interaction, before turning to examine the
organizational imperatives that lawyers and judges are responsive to
in plea negotiation and sentencing. It is perhaps not surprising that
symbolic interactionists have paid particular attention to the use of
“accounts” in their studies of courtroom processes, since the court
is a prime site where persons can be expected to explain them-
selves, justifying their actions, offering excuses for their behaviour,
etc. Indeed, it is partly on such accounts of their conduct, in response
to allegations, that the court’s verdict and the judge’s sentence (if any)
will be based.

“Accounts” in social action: justifications and excuses

Probably the earliest symbolic interactionist work on the connection

between accounts and conduct is that of C. Wright Mills and Edwin
Sutherland which we referred to above, though what they had to
say was rather brief. In his article, “Situated actions and vocabular-
ies of motive,” Mills (1940) refers to socially defined and available
“vocabularies of motive” as permitting the “release” of the energy
required to perform an action. These “vocabularies” are “good rea-
sons,” “justifications,” “excuses,” etc., in terms of which action can be
said to make sense both prior to and after its occurrence. Sutherland
makes use of a similar notion in his theory of differential association
and, in particular, his theory of white-collar crime (Sutherland 1983
[1949]). In the former – as we said in Chapter 2 – he proposes that
a person “becomes delinquent because of an excess of definitions
favourable to violation of law over definitions unfavourable to viola-
tion of law” (Sutherland et al. 1992 [1934]: 89). These “definitions”
refer not only to techniques of committing crime, but also, after Mills,
to a collection of motives, rationalizations, excuses and justifications
for committing crimes. In his study of white-collar crime, Sutherland
indicates that an “ideology” for illegal business practice is learned
which “assist[s] the neophyte . . . to accept the illegal practices and
provide rationalizations for them” (Sutherland 1983 [1949]: 245).
The first major symbolic interactionist study in this genre is
Cressey’s (1953) work, Other People’s Money. After interviewing
numerous persons convicted of embezzling from their places of
employment, Cressey theorizes that in addition to being in positions

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of financial trust and experiencing “nonshareable financial problems,”

embezzlers employ “vocabularies of adjustment” which permit them
to engage in embezzling behaviour. Such permission not only pre-
cedes these illegal acts, but it is also necessary, argues Cressey. This
is because the offenders conceive of themselves as essentially non-
criminal. Vocabularies of adjustment or rationalizations such as the
characterization of the act as only “borrowing” enable the embezzler
to take the money, and at the same time, preserve a sense of him- or
herself as non-criminal, at least for the initial acts of embezzlement.
The explanatory role into which motives and rationalizations
are cast in the work of Mills, Sutherland and Cressey, and the con-
ception of the criminal and delinquent as basically conformist and
in need of linguistic constructs through which they can accommo-
date crime with a conventional identity, are continued in the work
of Matza on Delinquency and Drift (1990 [1964]). Matza’s aim is to
counteract the misleading tendency among criminologists to envis-
age the delinquent as essentially different from conformist youth, and
as committed to their delinquency. Such a view is that of the “positive
delinquent,” says Matza – one who is committed to their misdeeds
and constrained by the values and norms of a “delinquent subculture.”
Not so, says Matza. Rather than being committed to delinquency, the
delinquent “drifts” into situated acts of delinquency by virtue of a
collection of ideas that permit its occasional occurrence. These ideas
include five “techniques of neutralization” which excuse or justify
delinquent acts. These are (1) the denial of the victim; (2) the con-
demnation of the condemners; (3) the denial of responsibility; (4) the
denial of injury; and (5) the appeal to higher loyalties. They enable a
kind of “moral holiday” for the youth, an episodic release from the
constraints of conformity. Thus, the denial of responsibility permits
the youth to say that he or she did not mean it to happen, that it
was an accident. The denial of the victim permits the delinquent to
say that he or she “did it in self-defence.” The condemnation of the
condemners involves pointing to the “far worse” crimes commit-
ted by more conventional and typically more powerful persons and
groups (for example, “alcohol is far more harmful, so why bust us for
marijuana?”) The denial of injury permits the claim that “no one was
hurt.” Finally, the appeal to higher loyalties provides for the explana-
tion that the delinquent act was “required” or “demanded” in some
way by a “higher authority.”

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These symbolic interactionist studies were later subjected to con-

ceptual clarification in an article by Scott and Lyman (1968) entitled
“Accounts.”They indicate that, for the most part, this corpus of work
is referring to one of two varieties of accounts: excuses or justifi-
cations. Thus, excuses admit wrongfulness, but deny responsibility;
while justifications admit responsibility, but deny wrongfulness.
In later studies, the role of accounts is examined not in relation
to how they facilitate criminal behaviour in the first place, but with
respect to their role after the offender has been charged and put on
trial for such behaviour. Taylor’s (1972) study, for example, is con-
cerned with sexual offenders’ accounts of their crimes. Here we will
consider Emerson’s classic (1969) study of the use by delinquents of
excuses and justifications in the juvenile court.

Emerson: typical delinquencies in the juvenile court

Symbolic interactionism has had a long-standing interest in the use

of social types, classifications and labels in social interaction.This is in
keeping with its concern for illuminating the “actor’s point of view.”
This interest in “typification” is one that it shares with phenomenol-
ogy and ethnomethodology (Kim and Berard 2009), but with certain
key differences in approach. We review these differences in Chapter
6. It remains true, however, as we noted above, that ethnographic
studies in symbolic interactionism and ethnomethodology are often
quite similar since their authors frequently draw on both of these
traditions (see Hawkins and Tiedeman 1975). A major example of
this is the work of Emerson (1969), Judging Delinquents. He examines
the interactional practices and the typifications used by court staff in
dealing with alleged juvenile offenders.
With respect to the typifying work of the court, he finds that
an initial distinction can be drawn between those cases typified as
involving “trouble” and those not. Of course, all youths brought
before the court are regarded by someone as trouble; every com-
plaint is a plea for the court to do something about the defendant.
However, Emerson finds that the court has its own ways of judging or
typifying trouble. For the court, “trouble” is a “predictive construct.”
It is the “inferred potential for committing seriously delinquent acts”
(1969: 87). Trouble relates to the type of person the offender is, not
simply to the type of offence he or she has committed.The nature of

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the offence may assist in typifying the trouble, but it will not be the
only criterion. Serious offences create a “presumption of trouble,”
but trouble is also predicted on the basis of the presence of adverse
patterns of behaviour and social circumstances that typically precede
delinquency.
The court’s focus on the offender rather than the offence flows
from its commitment to treatment rather than simple sanctioning
of the juveniles who come before it. As Emerson puts it, the court’s
concern is not so much “what happened,” but “what is the problem
here.” Once it has decided that it has trouble on its hands, it looks
in greater depth at the juvenile’s overall behaviour, personality and
family and social circumstances (part of what Foucault means by
“discipline” – see Chapter 10). There then occurs what Emerson
calls a “second sorting” which involves establishing or typifying the
juvenile’s “moral character” (see Sacks 1972c on the assessment of
moral character).
Assessments of moral character provide for the kind of special
handling that cases require. That is, assessments of moral character
differentiate kinds of trouble and provide accounts for the delinquent
behaviour. Three general types of moral character are distinguished
by the court: the “normal,” the “hard-core” and the “disturbed.” The
juvenile with a “normal” moral character is seen as being like most
kids, acting for basically normal and conventional reasons, despite
some delinquent behaviour. Those seen as “hard-core” are typi-
fied as criminal-like delinquents, motivated by malice and hostility,
consciously pursuing illegal ends. The “disturbed” moral character
belongs to those who are driven to acting in senseless and irrational
ways by obscure motives and inner compulsions. These distinctions
echo those described in Cicourel’s earlier (1995 [1968]) study of
juvenile justice.
The significance of the categories of juvenile moral character is
that they provide institutionally relevant means for explaining the
juvenile behaviour and they provide justifications for the court’s
actions. Thus, to decide that a youth is “disturbed” is to account for
his or her behaviour and to provide the relevance of psychiatric care;
while to typify the youth as “hard-core” explains the behaviour as a
product of that kind of criminally motivated actor who needs punish-
ment and restraint.The decision that the juvenile is “normal” explains
the behaviour as the result of conventional motives and provides

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justification for routine handling; for example, probation (see Hester

2016).
If these are the types of moral character used by the court in exam-
ining and dealing with individual cases, the question is then raised as
to how moral character is decided. Emerson (1969) suggests that in
general it is a product of social interaction and communicative work
involving the delinquent, his or her family, enforcers, complainants
generally and the court. In particular, it involves two types of social
process. The first is the presentation by the prosecuting and defence
lawyers of different versions of moral character.The second is the use
of protective strategies by the juvenile him- or herself.
There are two types of character presentation used by the law-
yers: pitches and denunciations. Pitches are directed to obtaining a
more lenient disposition than would initially seem appropriate.They
tend to emphasize the sterling moral qualities of the defendant.
Denunciations, on the other hand, seek a more severe disposition
than could be expected. They aim to soil and discredit the juvenile’s
character. Both focus on the delinquent act and both emphasize the
delinquent’s general behaviour, including personal and social back-
ground, arguing that these provide evidence of moral character.
Successful pitches manage to depict the act as a typical product of a
normal actor and thus establish the normality of the youth’s biogra-
phy. Successful denunciations establish the present act as that typically
committed by delinquents of a criminal-like character and they man-
age to construct a delinquent biography that unequivocally indicates
someone of such character.
In presenting both pitches and denunciations, the lawyers focus
on (a) the offence and (b) the defendant’s biography. With respect
to the offence, they make use of the notion of “typical delinquen-
cies” (cf. Sudnow’s [1965] “normal crimes”). These consist of the
typical features of regularly encountered delinquent acts and delin-
quents, embodying the court’s experience with and commonsense
knowledge of the situations and settings of delinquent acts. Each
typical delinquency or delinquent is composed of typical elements
or features. For example, the typical shoplifter is a mild type, not a
serious delinquent, with no previous record, from a well-to-do family,
who takes goods for kicks, is seldom in trouble, not a thief at heart,
succumbing to the temptation of the moment. On the other hand,
the typical handbag snatcher is a pretty serious delinquent, known

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to other courts, may be on parole or probation and is aggressive.

Furthermore, typical delinquencies as a whole are divided into three
classes by the court. Thus, for example, the “normal” assault is a fight
comprising a street scene, young boys, fists (weapons only in the
“heat” of battle) and equal contributions by both parties. By contrast,
the “criminal assault” is an attack on a stranger, typically motivated by
robbery, and is vicious, causing serious harm, sometimes murder.The
“disturbed assault” has no apparent motive, involves strangers, and is
typically an irrational outburst. The job for the denouncer, if he or
she is to be successful, is to demonstrate that the features of a typical
criminal assault are present. For a successful pitch, the task is to show
that those of the normal assault are present.
With respect to the defendant’s biography, denunciations seek to
place the delinquent act at or near the ultimate stage in the youth’s
delinquent career; that is, a hopeless case. Pitches demonstrate that
the youth has rehabilitation prospects, that the person’s delinquent
involvement is inconsequential, and that they are growing out of it.
Both denunciations and pitches attempt to do this first by “establish-
ing a pattern.” The denouncer therefore presents a history of both
official and unofficial prior delinquency, uses reports to accentuate the
significance of the present incident, and emphasizes the youth’s bad
attitude, trouble at school, truancy and bad companions. The pitch’s
pattern-making, on the other hand, involves minimizing the signifi-
cance of prior trouble while emphasizing the youth’s co-operation
and good attitude. Second, the denouncer and the pitcher both refer
to “family background and sponsorship.” Here, both try to show the
presence or absence of the typical background and circumstances
associated with the type of delinquency that they are recommending
to the court.
Emerson’s work shows the importance of typification in judg-
ing delinquents. However, before leaving it, we must emphasize that
this is not to say that dealing with delinquents is solely a one-sided
cognitive process. The juvenile him- or herself does at least have
the opportunity to provide a version of the events leading to the
court appearance. Emerson thus refers to three types of “defensive
strategy” employed by the juveniles in courtroom discourse: (1)
the plea of innocence; (2) justifications; and (3) excuses. These are
the sort of accounts we discussed earlier in the chapter on the role of
accounts in symbolic interactionist work. Coleman’s (1976) symbolic

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interactionist analysis of “grievance accounts” in traffic court is

another useful exemplar of this form of professional sociology.

The organizational imperatives of courtroom work

As Peter Berger (1963: 51–58) says in his classic Invitation to Sociology,

the discipline has a reputation for debunking official and respect-
able images of society. A large part of this reputation is owed to the
ethnographic studies by symbolic interactionists of a huge variety
of everyday settings, both those that are nominally “exotic” (nude
beaches, massage parlours) and those that are, superficially, closer to
home (buses, shopping malls, factories). Indeed, in some quarters,
such work has been accused of amounting to advocating partisan-
ship on behalf of the “underdog.” As Cuff and Payne (1984: 129–131)
argue, however, this effect arises not from some “political” intention
on the part of the inquirer, but from symbolic interactionist studies
adhering to their own methodological principles; namely, to tell the
story from the “inside,” as the participants to the setting see it – that
is, in terms of their “definitions of the situation.” Inevitably, this will
mean giving equal weight to viewpoints that standardly are not heard
– the prostitute’s, the janitor’s, the bus-driver’s, the drug-pusher’s,
the “deviant’s.” This stance is expressed, for example, in the title of
Stoddart’s (1982) article, “The enforcement of narcotics violations
in a Canadian city: Heroin users’ perspectives on the production of
official statistics.” Indeed, for most members of a modern society with
its highly variegated division of labour, the work settings of others
are, in many cases, “foreign” territory. Just to learn how such settings
routinely operate can be a source of news. We pass through or by
the doctor’s office, the bus, the mall, the office building, the factory,
the bar, the hospital. How is it for those who spend their working
lives there? How does it really work?
The criminal justice system has been no exception to this debunk-
ing phenomenon.We saw above how, in order to do what they regard
as good police work, police were seen to have recourse to extra-legal
features of an encounter to select that which was criminal. Similarly,
we shall see that in order, as they see it, to make the court system
work, legal personnel engage in a variety of practices that lie outside
the strict legal description of their jobs.This is not something they see
themselves as having an option about. That is, they feel compelled in

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order to fulfil the mandate contained in their job descriptions, indeed

their professional vocation, to be responsive to what we will call the
“organizational demand characteristics” or “organizational impera-
tives” of the work setting itself.The expression “demand characteristic”
or “demand condition” comes from experimental psychology where
it refers to those features of an experiment which are influencing
the results, but which are not intended parts of the research design
(Orne 1962).Thus, in the court system, the desired outcome – namely,
justice within the law – must be achieved not only according to the
rules of due process and according to the facts of each case, but with
due respect for the following inescapable organizational matters: the
resources available, the time at hand, the working relationships that
must be sustained between setting co-inhabitants, the division of
labour, the flow of cases, the availability of witnesses, the sentencing
practices of particular judges, the presence of interpreters and so on.
According to Blumberg (1976 [1967]), the court’s “problem” can be
reduced to the dilemma of managing huge caseloads while preserving
due process. He describes the court’s “solution” as comprising “a large
variety of bureaucratically ordained and controlled ‘work crimes,’ short
cuts, deviations, and outright rule violations adopted as court practice
to meet production norms” (1976 [1967]: 150).
Blumberg mentions the following “stratagems” to dispose of
too-large caseloads:

• threatening a “potentially harsh sentence . . . as the visible alter-

native to pleading guilty, in the case of recalcitrants”;
• “tailoring” of probation and psychiatric reports to meet
organizational needs, or to be “at least responsive to the court
organization’s requirements for the refurbishment of a defend-
ant’s social biography, consonant with his new status”;
• judges pressing into service “[s]tenographers and clerks, in their
function as record keepers . . . in support of a judicial need to
‘rewrite’ the record of a courtroom event”;
• using bail as a “weapon . . . to collapse the resistance of an
accused person.”
(Blumberg 1976 [1967]: 150–151)

As these practices suggest, it is appropriate to think of court personnel

as a “closed community.” Such a community embraces all those who

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are “regulars” in that setting, including the judges, crown attorneys,

the Office of the Clerk of the Court, the Probation Division and
the press. It also includes the defendant’s lawyer, especially if s/he is a
court-appointed duty counsel (Canada) or public defender (United
States). “The accused’s lawyer has far greater professional, economic,
intellectual and other ties to the various elements of the court sys-
tem than he does to his own client” (Blumberg 1976 [1967]: 149).
Consequently, the defendant is regarded as an “outsider,” one who
in Blumberg’s phrase is the “mark” in a legal “con game.” According
to Blumberg (1976 [1967]: 154), “Goffman’s [1962 (1952)] ‘cool-
ing out’ analysis is especially relevant in the lawyer-accused client
relationship.”
If the court’s problem is too many cases, the court community
comes together to solve it by focusing on getting the defendant
to plead guilty, thus avoiding a trial and all the work, expense and
time which that involves. A “plea bargain” is “[a]ny agreement by the
accused to plead guilty in return for the promise of some benefit”
(Griffiths et al. 1980: 159). The standard benefits on offer (Griffiths
et al. 1980: 159–160; Skolnick 1975 [1966]: 175) are as follows:
• reduction of a charge to a lesser or included offence;
• withdrawal of other pending charges or a promise to do so;
• a promise about a sentence recommendation (type, severity);
• a promise not to oppose the defence’s sentence recommendation;
• a promise not to charge friends or family;
• a promise to proceed summarily in dual offences;
• the shortening of “dead time”;
• concealment of actual criminality (e.g. from [the] parole board);
• freedom from further investigation of prior offences.
According to Klein (1976), defendants mostly do “deals” directly with
the police. Police benefits are cited as recovery of illegal or stolen
property (such as explosives, firearms or drugs), the improvement
of clearance rates and the maintenance of the flow of information.
Indeed, on occasion, the police will buy information from defendants
or witnesses (as in the Olsen and Kirby cases, both in 1981–1982 in
Canada). Brannigan (1984) cites data from “A Longitudinal Study of
the Cumulative Effects of Discretionary Decisions in the Criminal
Process” carried out by the Centre of Criminology of the University
of Toronto in the mid- and late 1970s which show police pressing
their views in particular cases on the prosecuting crown attorney.

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Indeed, according to one of the major reports on this study – the

only large-scale (and interactionist) study of such matters in Canada:

detectives frequently participated in plea discussions and were

often acknowledged by the defence lawyer and crown attorney
to be the key participant[s] because they had the most intimate
official knowledge of the case and thus were deemed to be in the
best position to decide the limits of negotiation.
(Ericson and Baranek 1982: 115)

According to Tepperman, “the process of turning arrests into convic-

tion statistics usually takes place in a prosecutor’s office” (1977: 82)
between an accused person’s lawyer and the prosecutor (1977: 80).
But in the end, it appears to be the defence lawyer, whether retained
privately or through legal aid, who must sell the deal to the client
and so get the guilty plea from him or her (Blumberg 1976 [1967]:
162–163; Snider 1988: 296). “In sum, police, crown attorneys, and
lawyers collaborate in collectively achieving an outcome that serves
their respective interests” (Ericson and Baranek 1982: 123). Readers
will note the formal similarity of this interactional conclusion to the
one we cited from Wheeler (1967: 319) in regard to “crimes known
to the police” at the end of the section on the meaning and use of
official crime statistics in Chapter 2.
The actual discussions that may or may not result in an agreement
as to plea are not standardly conducted in open court (although, espe-
cially in the United States, they must be reported there), but

in various “low visibility” contexts out of court. Charge alterations,

possibilities for evidence submission, and ranges of sentencing are
discussed in a variety of locales, e.g. in the courthouse corridors
and offices, in the judge’s chambers, at a lunch counter, and over
the telephone.
(Ericson and Baranek 1982: 111)

There are structural limits to the scope of “bargaining” set by, for
example, mandatory minimum penalties for certain repeated convic-
tions and, conversely, by the considerable sentencing discretion in the
hands of the judge in Canada: a reduced charge may not mean much
if the judge can give the same sentence for it as for the original charge.

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In addition to the limits framed by the penalty structure, and by

sentencing practices of judges, there are substantial influences
coming from other sources. Chief among these is the charging
practices of the police, which frame what the other parties have to
discuss once the case reaches the court stage . . . [O]ur observation
of the police in constructing cases against our accused respond-
ents (Ericson, 1981, 1982) led us to conclude that an established
practice was to charge every accused in a case with everything
possible as a means of creating a maximal starting position for plea
discussions.
(Ericson and Baranek 1982: 115)

Furthermore, much that is relevant to plea discussions is tacit. That

is, as in many an organization, “silent bargains” are struck between
various players as to what will be the preferred course of action in
some given state of play.When such circumstances arise, nothing need
be said; matters are simply understood. Again, it is arguable to what
extent participation in these “games” is optional:

Prosecutors establish reciprocal relationships with those who are

able to reciprocate, resulting in the neglect of those who are unable
to do so . . . Lawyers who do not supply their “quota” of guilty
pleas and contest every case are subjected to “the bare bones of
the legal system.”
(Grosman 1969: 80, cited in Griffiths et al. 1980: 161)

This admittedly “impressionistic” result from Grosman’s interview

study of crown prosecutors in the county of York, Ontario is never-
theless supported by a parallel observation in Sudnow’s (1965) study
of “sociological features of the penal code in a public defender office”
in a metropolitan California community. The first of the practices
which Blumberg cites (see above) whereby defendants are induced
to plead guilty refers specifically to “the case of recalcitrants.” In
Sudnow’s court, “recalcitrants” are called “stubborn defendants.”
“These are cases for which reductions are available, reductions that
are constructed on the basis of the typicality of the offense and
allowable by the D.A. [district attorney]. These are normal crimes
committed by ‘stubborn’ defendants” (Sudnow 1965: 270–271).
Stubborn defendants are those who insist on pleading not guilty.

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For the team of the public defender and the district attorney, the
question here is not one of guilt or innocence, but of “reasonable-
ness”; they take the guilt of the defendant not to be in question.
Consequently, when the case of such a defendant, who will not play
the game, gets to court, the defence provided by the public defender
amounts to what Sudnow calls “adequate legal representation.” That
is, the lawyer will respectfully observe proper legal procedure and will
not interfere with the court’s routine progress towards a conviction.
In return, the DA (the prosecutor) will not go out of his or her way
to make out the defendant to be a monster. Instead he or she

“puts on a trial” (in their way of referring to their daily tasks) in

order to, with a minimum of strain, properly place the defendant
behind bars. Both prosecutor and public defender thus protect the
moral character of the other’s charges from exposure.
(Sudnow 1965: 273)

Because such trials result from defendants not accepting a plea deal,
then it is their “fault”:

What the hell are we supposed to do with them? If they can’t lis-
ten to good reason and take a bargain, then it’s their tough luck. If
they go to prison, well, they’re the ones who are losing the trials,
not us.
(Sudnow 1965: 272)

In short, the “punishment” for the stubborn defendant – merely “ade-

quate legal representation” – seems quite akin to that of “the bare bones
of the legal system” visited on the lawyers who will not play the game.

Symbolic interactionism and the prison: the social

organization of prison life
Symbolic interactionists, unlike the Marxist theorists to be discussed
in Chapter 7, have been mainly concerned with cultural aspects of
imprisonment and with the impact of incarceration on the prisoner’s
sense of self and subsequent criminal “career.” The former concern
has generated an extensive literature on the “convict code” and
“inmate subcultures”; the latter is a reflection of the wider symbolic

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interactionist interest in the development of the self in social interac-

tion. Thus, for example, Goffman describes his classic analysis of “the
moral career of the mental patient” as “an exercise in the institutional
approach to the study of self ” (Goffman 1961: 127). In this instance,
the focus of this interest is on how the conditions of prison life and
the experiences they shape contribute to the building of a criminal
identity and the persistence of criminal behaviour. We shall discuss
each of these interactionist concerns in turn. For a contemporary
descriptive account of life inside a US private prison, see “My four
months as a private prison guard” by journalist Shane Bauer (2016).
Once an offender is sentenced to a period of incarceration, there
occurs a series of events during which his or her social status is trans-
formed from that of an individual citizen within the community to
that of an “inmate.” Goffman (1961) describes the entry into the
correctional institution as a process of “mortification” by which the
individual is likely to be stripped of his or her usual appearance and
of the equipment and services by which s/he maintains it. The indi-
vidual’s prior self-conception is systematically reduced via a “series
of abasements, degradations, humiliations, and profanations of self ”
(1961: 14). These may include fingerprinting, photographing, rectal
and vaginal inspection, haircutting or shaving, being allocated a num-
ber, bathing and disinfecting, and the removal of “civilian” clothes
and their replacement with institutional uniform. Similarly, Cloward
(1960: 20–21) argues that admission procedures comprise a “status
degradation ceremony” in which the former identity of the offender
is destroyed and a new identity established. Following processing into
the institution, the new inmate enters the world of the prison, which
includes its own “social system,” an unwritten code of conduct, vari-
ous social roles and very often a special vocabulary.This inmate social
system or subculture has been the subject of considerable crimino-
logical attention. It is to this literature that we shall now turn to see
what light symbolic interactionist accounts have shed on prison life.
In Chapter 6, we will review Wieder’s (1974: 120–125) contrasting
ethnomethodological study of the convict code.

The content and role of prisoner subcultures

One of the earliest and now classic studies of prisoner subcultures is

the work on The Prison Community by Clemmer (1940). According

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to Clemmer, the “convict code” is “one of the fundamental social

controls amongst the inmate population. It revolves around two prop-
ositions: ‘Don’t help the officials’ and ‘Do help your fellow inmates’”
(Wieder 1974: 121). For Clemmer, “prisonization” is socialization to
the convict code.

Thus, Clemmer’s prisonized inmate would not snitch, would

regard officials as his enemy and would show this by, for example,
not talking to them except about “business,” and would assist his
fellow inmates by helping them avoid detection in their deviance.
(Wieder 1974: 121)

In The Society of Captives, Sykes (1958) presents the theory that the
inmate social system is developed to cope with the “pains of impris-
onment.” These pains consist of a collection of “deprivations”:
1. the deprivation of liberty, particularly the freedom to see one’s
family and friends;
2. the deprivation of goods and services, particularly those necessary
to maintain a cherished self-identity;
3. the deprivation of heterosexual relationships;
4. the deprivation of autonomy, particularly not being allowed to
make decisions about how daily activities will be allocated;
5. the deprivation of security, particularly the close physical proxim-
ity of persons with records of violent aggression.
(Box 1981 [1971]: 216)

In the face of these deprivations, the inmate subculture affords self-

protection to the inmate. It provides a means whereby the inmate
can develop “status” within the prison, and it supplies a “world view”
or “frame of reference” in terms of which the inmate can define and
interpret his or her situation. Central to this viewpoint is the belief
that it is the “captors” who are the “evildoers” since they are immoral,
unjust and incompetent in contrast to the inmates who are their
“victims.” Sykes also shows that the convict “code is embedded in a
system of social types,” with “each social type representing a pattern
of compliance with or deviance from the code” (Wieder 1974: 122).
For example, the “rat” is an inmate who violates the “do not snitch on
fellow inmates” rule; the “gorilla” is one who exploits fellow inmates
by threatening and using violence; while the “real man” is the inmate

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who exemplifies compliance with the code. “He is able to ‘take it.’
He has strength . . . and ‘confronts his captors with neither subservi-
ence nor aggression’ ([Sykes 1958:] p. 102)” (Wieder 1974: 123–124).
Sykes suggests that by evaluating each other in terms of the social
type “real man” (that is, in terms of exemplary commitment to the
code), the inmates are able to “reduce the pains of imprisonment and
can achieve a sense of self-respect” (Wieder 1974: 124).
Similar findings have been made by Garabedian (1963, 1964). His
account (1964) reflects that of Sykes by addressing the social types
provided by the code. He thus identifies “square johns,” “politicians,”
“right guys” and “outlaws” and describes the types of behaviours
which are associated with each of them. “Commitment” to the con-
vict code is exemplified by such behaviours as breaking the prison
rules, avoiding contact with the officials and refusing to participate
in staff-sponsored programs. Because they are more likely to engage
in such behaviours, the “outlaw” and “right guy” are viewed as more
committed and hence are held in greater esteem within the prisoner
community than those typified as “politicians” and “square johns”
(Wieder 1974: 124).
Several studies in this genre have indicated that there tends to
be more than one type of subculture within prisons. Thus Irwin
and Cressey (1962) and Irwin (1970) point to the existence of the
“thief subculture” and the “convict subculture.” The former consists
of the norms and values that are said to be characteristic of profes-
sional thieves and other career criminals. It is also seen as a subculture
that is imported into the prison from outside. The latter, the con-
vict subculture, on the other hand, is viewed as arising in response
to the conditions found within the prison. This is the subculture of
the hard-core, long-term and institutionalized inmates. According
to Box (1981 [1971]: 217), this subculture pertains to that company
of “men who have spent most of their lives, including their youth,
in state institutions”; these are inmates who have been, for the most
part, “ineffectual criminals, but who, because of their experience in
prisons and similar institutions, know exactly how to work the sys-
tem.” From this group of inmates, a neophyte prisoner might learn
how to manipulate other prisoners and how to hustle, but he or she is
not likely to learn how to be a more effective criminal. On the other
hand, the thief subculture referred to by Irwin and Cressey (1962) is
carried by those “who are essentially criminals and only incidentally

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prisoners” (Box 1981 [1971]: 217). Although estimated to be a smaller

percentage of the total prison population than the “convicts,” this
second group has higher social standing both within and outside
the prison. As Box (1981 [1971]: 217) points out, if the neophyte
inmate becomes a member of this section of the prison commu-
nity, the possibility of learning the “folkways, mores and customs
of a criminal way of life as well as learning to cope with the pains of
imprisonment” may open up.
Other studies, notably Jacobs (1974), have also found that the sub-
cultural diversity of prisons is further complicated by the presence
of gangs formed along racial lines. In his study of a “Big House” in
California, for example, Jacobs locates three major racial divisions:
African Americans, whites and Hispanics. The culture of these gangs
is imported from outside the prison, is adapted to prison condi-
tions and eclipses in importance the distinctions between the “thief ”
and “convict” subculture, though clearly within the racial groupings,
a distinction can still be made between inmates in terms of their
identity as high-status criminals or low-status convicts.
There are also classic ethnographies of women’s prisons that it
would be relevant to review here, but since we have a chapter devoted
to women (Chapter 8), we have elected to consider them there.

The impact of imprisonment: Matza’s career steps continued

It was mentioned above that as the inmate enters a prison, a process

of “self-mortification” is set in motion as he or she is degraded and
suffers the pains of imprisonment. This process has received particu-
lar attention from the symbolic interactionists or labelling theorists
for whom, as we saw above, the development of the self as a social
construction is a central feature of the approach. We also suggested,
following Matza (2010 [1969]), that the offender may, through inter-
action with agencies of social control, pass through a series of “career”
steps or stages that culminate in the development of a deviant identity
or sense of self. We considered the first two of these stages; namely,
ban and transparency, and apprehension and labelling. We can now
turn to the third and fourth stages: incarceration (or exclusion) and
post-prison stigmatization.
Being incarcerated or, as Matza puts it, being “excluded” is viewed
as a part of a process of social interaction with agencies of social control

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through which the offender undergoes a change in self-conception

from being someone who, among other things, happens to have
committed a crime, to being someone for whom the facts of their
criminality become their most important “identifier.” Obviously not
all offenders reach this stage, but for those who do, the chances that
they will become “secondary deviants” are high. It is well known
that prisons function as “universities” (or at least “schools”) of crime
and that inmates are likely to learn further means of and motives for
committing crime. More important, however, is the fact that it is
extremely difficult for an inmate to sustain a conventional self-image
within prison. His or her mere presence in such an institution is
living proof, reaffirmed on a daily basis, that he or she is a crimi-
nal. The pains of imprisonment, furthermore, add up to a concerted
assault and a shattering impact on the offender’s sense of conventional
identity. The initial “shaping” (Pfuhl 1980: 170) of the inmate as an
object “that can be fed into the administrative machinery” (Goffman
1961: 16) on entry to the prison persists throughout the period of
incarceration. The various controls identified in the previous section
are designed to further “mortify” the inmate and “to bring obstrep-
erous, boisterous, or otherwise unruly (that is, those who threaten
organizational procedures) clients back into line” (Pfuhl 1980: 171).
The upshot is a further diminution of the inmate’s prior sense of self,
its replacement with an institutionally countenanced label and, in
all likelihood, a smouldering sense of injustice. Together with these
processes, turning to either of the inmate cultures is likely to accel-
erate the development and confirmation of the offender’s sense of
criminal identity.
The fourth and final stage is post-prison stigmatization and social
rejection. As Erikson (1962: 311–312) has indicated, “the deviant
often returns home with no proper licence to resume a normal life
in the community.” Often, the family and the community are reluc-
tant to accept the deviant back into the fold. Along similar lines,
Box (1981 [1971]: 229) suggests that there are four reasons that can
explain why an ex-convict comes to the conclusion that a normal,
straight life is just not feasible. The first is “atrophy of interactional
skills.” Thus, long-term prisoners, especially, lose the ability to carry
out normal, everyday interactional routines, let alone find and keep a
job. The second is “social discrimination.” This depends on the com-
munity’s knowledge of and view taken about the type of offence for

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which imprisonment occurred. If social discrimination does occur,

the greater are the chances of the person re-offending. Third, there
is “job-rejection.” As Box (1981 [1971]: 232) points out, “the best
established fact about recidivism is that it is closely associated with
unemployment.” It is well known that ex-prisoners have difficul-
ties obtaining work that is legal. To the extent that they do have
such difficulties, they are much more likely to re-offend and to have
their sense of criminal identity confirmed. Finally, there is “surveil-
lance by the police.” As Matza (2010 [1969]) indicates, the police
routinely suspect and rely heavily on ex-offenders as a method of
solving crimes. Such treatment serves to confirm the ex-offender’s
social identity as a criminal and may help to propel him or her into
further criminality. In conclusion:

The bulk of the prison population consists of secondary deviants.

Their lives and activities are centred around the problem of devi-
ance and their more or less accepted deviant identity.They became
secondary deviants because, having been selected for apprehension
from a much larger population at risk of being apprehended, they
were severely punished and, on release, discovered that the costs of
conformity were too high. Behaving themselves involved putting
up with a bad or no job, little money and no prospects; it involved
having a poor social life and denying themselves the company of
other criminals, who might at least sympathize and understand
their problems. It’s just too much.
(Box 1981 [1971]: 234)

Although we lack space to review it here, there is a rich interaction-

ist literature on the social organization of parole. Seminal studies
include those by McCleary (1992 [1978]) and Emerson (1983) on
the cognitive and organizational aspects of the work of parole officers
in their interaction with parolees (see also Prus and Stratton 1976).
Finally, to flesh out the fraught interconnections among contem-
porary life on the mean streets of a major US city (in this case,
Oakland, California) and the several moments of criminalization
from policing to imprisonment reviewed above, we recommend the
remarkable and gritty account of “The United States’ criminal injus-
tice system” through “The annals of a private eye” by Judith Coburn
(2016).

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The grammar of labelling theory

In keeping with the interpretative turn, symbolic interactionism, in
the form of labelling theory, holds that crime is a matter of definition,
interaction and interpretation. But according to the ethnomethod-
ologist Melvin Pollner, members of society employ what he calls an
“idiom of mundane reason” in which crime exists as a real and objec-
tive feature of the social world, one that is decidedly not a matter of
subjective interpretation. As he puts it:

The mundane model conceptualizes the deviance of an act as

existing independently of a community’s response. It implicitly
posits that certain acts are (or ought to be) responded to in par-
ticular ways because they are “deviant,” that is, their “deviance”
is defined by criteria other than the fact that you or I happen to
regard or experience the act as deviant.
(Pollner 1987: 91)

Pollner also draws attention to an “ostensible congeniality” between

the ethnomethodologist and the labelling theorist in this regard since
the former, as we will see in Chapter 6, has treated “deviance” and
“crime” as accountable through societal members’ definitions, inter-
actions and interpretations. This ostensible congeniality is, however,
misleading because there are, from an ethnomethodological point
of view, fundamental contradictions within the labelling perspec-
tive’s conception of crime and deviance as matters of definition.
(Unfortunately, Pollner’s critique is not without problems itself, as we
shall see.) The contradictions in question are exemplified in Becker’s
(1963: 19–22) theory of “types of deviant behaviour.” See Figure 5.1.
According to Pollner, Becker’s work embodies a confusion
between two models of deviance: the commonsense or mundane
model and the constitutive model (see also Lynch 2008: 719–720;
Berard 2003, 2015). This confusion is displayed in his four “types of
deviant behaviour”:“conformity,”“falsely accused,”“secret deviance”
and “pure deviance.” The parameters for generating these types are
(a) whether or not some behaviour is “obedient” or “rule-violating”
and (b) whether or not that same piece of behaviour is “perceived as
deviant” or not.
Thus, “conformity” is behaviour that neither violates a rule nor
is socially labelled or perceived as deviant. Clearly it is not a type of

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Figure 5.1  Four types of deviant behaviour

Source: Based on Becker (1963: 20).

deviant behaviour at all. “Falsely accused” behaviour, on the other

hand, does not violate a rule, but is perceived as deviant. The “secret
deviant,” similarly, is one who breaks a rule, but is not perceived as
deviant. Finally, the “pure deviant” is perceived as deviant and breaks
a rule.
The problem with this typology is that it contradicts the ostensible
commitment of labelling theory to the constitutive, or what Pollner
(1987) calls the “sociological,” model of deviance. Thus, if deviance
is a matter of definition or labelling, then both secret deviance and
falsely accused are illogical categories of deviance in the way Becker
has conceived them. In the case of secret deviance, this is because
if “no one notices” the act – that is, if it is not perceived as deviant
– then it cannot be deviant, at least not in terms of the labelling per-
spective’s basic assumption about the nature of deviance; that is, that
it is essentially a matter of definition. One cannot break a rule with-
out having been perceived to have done so. The case of the falsely
accused reveals a similar contradiction: on the premise that deviance
is a matter of definition, then there can be no false accusation since
the accusation is definitive of the deviance in the first place. One is
what one is accused of, so that any appeal to “what is really the case”
is irrelevant.
Logic aside, however, it is quite clear that Becker (1963) does seem
to have a point. It seems reasonable to claim that people break rules,
but do not get caught for doing so and we might feel rather uncom-
fortable with the view that we are what the authorities and other
crime definers say we are. This reasonableness and discomfort stem
from our commonsense knowledge of crime or, in Pollner’s terms,
our use within our commonsense frame of reference of the mun-
dane model of crime. Becker’s point, then, rests upon such a model,

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according to Pollner (1987). Becker, like the commonsense members

of the community, takes for granted that certain acts are criminal; that
their criminality exists independently of social reaction and defini-
tion. This may be commonsensically sound, but it is sociologically
confounded, says Pollner.
Although we appreciate the force of Pollner’s critique of Becker’s
theory in terms of the logical contradiction between the two concep-
tions of deviance at play in it, there remains a problem with Pollner’s
account (and with work on “reality disjunctures” derived from it such
as Eglin [1979]). The problem is that Pollner treats members of soci-
ety as possessed of a philosophical theory of reality – namely, “naïve
realism” – that we mentioned in Chapter 4 and return to again below.
Properly disentangling the confusions in both Becker’s theoretical
model of types of deviant behaviour and Pollner’s “constructionist”
critique would take more space than a textbook treatment can afford.
Instead, readers may wish to consult Bogen (1990) and Hester and
Francis (1997: 97–98) for a critique of Pollner; and Coulter (1989:
113–115) and Bogen and Lynch (1993) for excellent “dissolvings”
of the problem in general. Suffice it to say here, however, that if the
theoretical elements are removed from both accounts, we come out
a lot further ahead.
Thus, in Becker’s case, there is nothing particularly wrong with his
four types of “deviant behaviour” if we both remove them from the
four-fold diagram produced by distributing them across two theoreti-
cally derived dualisms – namely, the two models of deviance identified
by Pollner – and understand them as labels reflecting moral or legal
assessments of action rather than as “behaviour” in the natural scien-
tific sense. (This is especially so if we take into account his footnote
to the typology on page 20 of Outsiders [Becker 1963].) Remember:
it’s (a) the distinction itself between mundane and constitutive mod-
els; plus (b) the derivation of the two models from everyday life by
abstracting and generalizing the uses of words and expressions from
ordinary language; and then (c) the reapplication of the distinction
to the understanding of everyday life conducted in ordinary language
that is the source of the confusion (Garfinkel and Sacks 1970: 339). As
for the expression “deviant behaviour,” it is certainly the case that one
may hear evangelical preachers, conservative politicians and chiefs
of police peppering their sermons, speeches or news conferences
with references to it. They have uses for the concept just as labelling

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theorists do. But outside such language games, people don’t generally
use the expression “deviant behaviour” that much. Jayyusi, pointing
to the domain of the sociology of deviance as comprising “the mor-
ally displayed and premised descriptions of persons by other persons
(either ‘lay’ persons or ‘officials’),” makes the point:

Indeed, the very sociological term “deviant” is a normative

description of members produced by, and incorporated or presup-
posed within, the corpus of sociological work. “Labelling theory”
attempts to address the process of labelling someone “deviant.”
However, the categorization “deviant” obscures the very diverse
procedures, implications and consequences behind the production,
use, display and practical intelligibility of various categorizations
subsumed by that sociological rubric: murderer, marijuana user,
prostitute, alcoholic, child molester, etc.
( Jayyusi 1984: 3)

In Pollner’s case, his formulation of the mundane and constitutive

models of deviance is another way of referring to objectivist or realist,
and interpretative or constructionist, concepts of reality.

In contrast with both the realist and constructionist programmes,

which are driven by an analytical concern to formulate a sociolog-
ical theory of reality, ethnomethodology is interested in members’
“reality analysis.” This interest is fundamentally a descriptive one;
it seeks to describe the mundane practices in and through which
persons are oriented to issues of what’s real, true, genuine and so
forth.
(Hester and Francis 1997: 97, emphasis added)

We said in Chapter 4 that having attempted to respecify the “con-

structionist” component of the theory of the “social construction
of reality,” we would return in this chapter to consider the “reality”
component of the theory. Doing so “grammatically,” in Wittgenstein’s
sense, is to re-locate “real” and “reality” to their natural home in the
discourse of everyday life in order to see what they do there. How are
these words used in everyday life? We are not in a position to carry
out a thoroughgoing examination of this question here (see Austin
1962: chapter VII), but one of us was reminded of one standard use

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through a further class exercise in his sociology of crime course.

Students were given two conflicting accounts – one by a passer-by,
Professor Auerbach, who witnessed the scene; the other by the local
chief of police to whom officers reported – of an encounter between
police and citizens on a street in Berkeley, California, and asked to
say in two pages which account they believed and why. One stu-
dent’s answer included the following: “The incident which Professor
Auerbach considered to be a frightening example of police brutality
was in reality a typical occurrence” (cited in Eglin 1979: 369, emphasis
in original).
The relevant point here does not concern the student writer’s
opinion itself, but has to do with the linguistic form in which it is
advanced. The writer exhibits a preference for one account over the
other by deploying a contrast between two kinds of descriptions. In
one, the author’s account is rendered doubtful by the use of the phrase
“considered to be,” at the same time as the other account is validated
by being described as what happened “in reality.” The writer appears
to suggest that the one author was misled or mistaken in their under-
standing of what happened.This author is represented as considering
or perceiving or interpreting or constructing the scene he observed
incorrectly, in contrast to the other author who is represented as see-
ing and accounting for the scene correctly, as it really was. “Reality”
here is being used as a means of assessing competing accounts and
choosing one over the other. It’s not that the two accounts necessar-
ily differ in the amount of force that they attribute to the actions of
the police, the “brute facts” so to speak, but they assess the socio-legal
significance of the facts differently.The writer is arguing that the scene
should be assessed as reflecting, in the terms of Hunt’s analysis (1985)
above, the use by police of normal, routine force (“a typical occur-
rence”) rather than excessive force (“police brutality”). If the one
author is accusing the police of illegal conduct, the writer is taking
the side of the other author by denying the accusation.
The sociological point here is that the use of “in reality” here is
contextual, specific, practical, moral and institutional, and not behav-
ioural. What it does not do is to invoke a philosophical (or social or
sociological) theory about reality in general. It does not contrast com-
peting models of (the reality of) deviance, and it does not attribute
such models to the actors concerned. The writer is neither a “reality
dope” nor a constructer of reality since both ideas are incongruous

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with the way “reality” is being used here in the writer’s text and, we
venture, in ordinary language generally: “the function of ‘real’ is not
to contribute positively to the characterization of anything, but to
exclude possible ways of being not real” (Austin 1962: 70, emphasis
in original).

Summary and conclusion

In this chapter, we considered criminalization from the symbolic
interactionist perspective. We reviewed some of the central concepts
in this approach, including the self, self-indication, role-taking, inter-
pretation, defining the situation, judgment, self as object, self-image,
the actor’s point of view, and labelling.We showed how this approach,
when applied to the study of policing, focuses on the police decision-
making involved in selecting crime and criminals. We compared two
models of this selection “process”: the “crime funnel” and “crime net”
models of police (and judicial) decision-making, and offered a critique
of them based on the distinction between “realist” and “interpreta-
tive” conceptions of crime. Under the auspices of this approach, we
reviewed Hunt’s study of police decision-making in relation to the
use of force. We then introduced labelling theory and considered the
role of the police in the amplification of crime and the occurrence
of secondary deviance. Symbolic interactionism’s focus on actors’
accounts of their action led us to consider studies of such accounts as
used by both lawyers and defendants in court. This was followed by
an examination of the organizational imperatives of courtroom work,
especially in relation to plea-bargaining.We concluded the expository
part of the chapter with a review of symbolic interactionism’s seminal
contribution to the understanding of the relationship of self and soci-
ety in prison. Finally, we considered the grammar of labelling theory.
The bulk of the work considered in this chapter was produced in
the 1960s, 1970s and 1980s. In fact, nearly all of it has been retained
from the first edition of this book. It may be thought that we have
failed to bring our account of the symbolic interactionist perspective
on crime up to date. Against that view, we would argue that this body
of interactionist studies has continuing relevance 40 or 50 years or
more after its original publication.This speaks to the enduring nature
of the interactional processes and institutional practices that, despite
reforms and innovations, continue to characterize the conduct of

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police, courts and prisons. Moreover, that relevance has been rec-
ognized by the re-publication of many of the studies reviewed here,
studies that have now acquired the status of “classics.”
Our grammatical respecification of labelling theory’s recourse
to the distinction between, in Pollner’s (1987) terms, mundane and
constitutive models of deviance showed the theoretical use of the dis-
tinction to be confusing and unnecessary. Persons are regularly found
to be obedient and law-abiding, wrongfully accused, secretly “devi-
ant” and plainly guilty.The innocent can be “fixed-up,” be wrongfully
accused, be wrongfully convicted and can serve long prison sentences
for offences they are subsequently found not to have committed. Of
them, the Thomases’ “theorem” at the head of this chapter rings true:
“if men define situations as real, they are real in their consequences”
(Thomas, W. I. and Thomas, D. S. 1928: 572). Having invoked the
“definition of the situation” on the same page, the Thomases used
this quasi-proverbial dictum (see Sacks 1973) to draw a lesson from
the story of a paranoid man who

had killed several persons who had the unfortunate habit of talking
to themselves on the street. From the movement of their lips he
imagined that they were calling him vile names, and he behaved
as if this were true. If men define situations as real, they are real in
their consequences.
(Thomas, W. I. and Thomas, D. S. 1928: 572,
cited in Merton 1995: 384)

But, again, there is no mystery here that requires a theory of reality to

resolve it. As the Thomases’ own account makes evident, the ordinary
use of “imagined” (or we could substitute “thought” without loss of
meaning) handles the situation. Far from requiring a theory of real-
ity, it is the introduction of such a theory that causes the problems.
Dispensing with the theory dissolves the problems.

Exercises
1. Using your notebook, do some fieldwork in your local court-
house.While open to the public, security checks notwithstanding,
notice that it is a workplace for a variety of occupations. How
is this visible? Familiarize yourself with the building’s layout, its

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entrances and exits, front, side and back. Who uses which ones?
Observe the signs and notices. Who are they for? What business
do people, other than courthouse staff, have there? How can you
tell? What are people actually doing there? Waiting? Talking? If so,
with whom? If there is more than one courtroom, note if they are
used for different things. Are there other rooms ancillary to any
courtroom? What goes on there?
2. If you can spare the time, spend a couple of hours observing pro-
ceedings in court itself. Be alert, and be detailed. Note the comings
and goings, the actual activities of the different parties, the way
events are ordered, who speaks, when, to whom, about what. See
– you are an apprentice sociologist, an ethnographer-in-training.
Of course, you were that already, when you found the courthouse
and started to find your way around in it.

Review questions
1. According to Hunt (1985), what are the demand conditions of
police work on the street for which the police concept of “normal
force” is designed?
2. What is the process by which labelling contributes to the forma-
tion of criminal identity?
3. What are the consequences of viewing motives not as mental
states, but as linguistic objects with their own “vocabularies”?
What are “techniques of neutralization”?
4. What is the problem with Becker’s (1963) diagram of four types of
deviant behaviour? How can the problem be dissolved?

Further reading
Hunt, Jennifer. 1984.“The development of rapport through the nego-
tiation of gender in field work among police.” Human Organization
43 (4): 283–296. Hunt’s account of the vicissitudes of her fieldwork
as a woman in the masculinist world of policing is as illuminating
in its way as her study of police concepts of force is itself.
Bauer, Shane. 2016.“My four months as a private prison guard.” Mother
Jones, July/August: www.motherjones.com/politics/2016/06/cca-
private-prisons-corrections-corporation-inmates-investigation-
bauer. Contemporary grit.

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Coburn, Judith. 2016. “The United States’ criminal injustice system:

The annals of a private eye.” truthout.org, 16 August: www.truth-out.
org/opinion/item/37256-the-united-states-criminal-injustice-
system-the-annals-of-a-private-eye. More grit.

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 6 Practical
reasoning

My purposes . . . are to demonstrate the essential relevance, to

sociological inquiries, of a concern for common sense activities
as a topic of inquiry in its own right.
(Garfinkel 1967: 36)

Introduction: first principles

Ethnomethodology is the discovery and invention of Harold
Garfinkel (1917–2011), one of the greatest of twentieth-century soci-
ologists (Lynch and Sharrock 2003; Rawls 2000; Heritage 1984b).
“I use the term ‘ethnomethodology’ to refer to the investigation of
the rational properties of indexical expression and other practical
actions as contingent ongoing accomplishments of organized art-
ful practices of everyday life” (Garfinkel 1967: 11). As Hester (2009:
240) notes, “the ‘central recommendation’ of ethnomethodology’s
programme is stated on the first page of Garfinkel’s first book Studies
in Ethnomethodology (1967)”:

The following studies seek to treat practical activities, practical

circumstances and practical sociological reasoning as topics of
empirical study, and by paying to the most commonplace activi-
ties of daily life the attention usually afforded extraordinary events,
seek to learn about them in their own right. Their central recom-
mendation is that the activities whereby members produce and
manage settings of organized everyday affairs are identical with
members’ procedures for making those settings “account-able.”
(Garfinkel 1967: 1)

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“Account-able” here means “observable-reportable.” That is, eth-

nomethodology is (the study of) societal members’ methods or
procedures for making their own and others’ actions observable and
reportable as those actions. It is (the study of) members’ methods of mak-
ing sense. The claim is that persons design their actions so that others
may identify them as what they are. We make them observable for
others’ report. The “design” comprises the methods used to produce
the action. Similarly, recipients of action must use those same meth-
ods to recognize the identity of those actions. Thus, a first principle
of ethnomethodology is that of recipient design; that is, that actions are
designed for their recipients. “Recipient design involves taking into
account such things as the knowledge and interests of the other per-
son, the relationship in which one stands to them, and perhaps most
importantly, what it is that the other person has just said” (Francis
and Hester 2004: 14). From this point of view, an action (or other
object or social fact such as a setting) is its “production and recogni-
tion apparatus” (Garfinkel and Sacks 1970: 358), that which makes it
observable as such (Francis and Hester 2004: 23–24).
A second principle of ethnomethodology is expressed in the
injunction to treat social facts as interactional accomplishments. In
Garfinkel’s (2002: 119) words, “the objective reality of social facts
[as] sociology’s fundamental phenomenon . . . is an astronomically
massive domain of phenomena of social order” that are irremediably
missed by social science’s constructive-analytic methods. Accordingly,
ethnomethodology pays close attention to the production and rec-
ognition of social actions in particular situations or settings. But it
does so exclusively with reference to how the participants within the
settings locally produce or accomplish them. That is, it is taken up
with the “local production of social order” (Garfinkel 1986a: vi).“The
orderliness that societal members detect and experience in their own
activities and those of their fellows is thus an achieved orderliness
that is accomplished through (the hearing of) their own describing
work” (Wieder 1977: 4). This is understood as an ongoing matter,
from which there is no time out, such that there is “order at all points”
(Sacks 1984: 22). And ethnomethodology’s use of “production”
should not be confused with constructionism’s use of “construc-
tion”: “to show how a social phenomenon is produced or achieved
does not necessarily threaten its ontological status by showing
that it is other than it seems” (Lynch 2008: 723).

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A third principle of ethnomethodology centres on the distinc-

tion between topic and resource (Zimmerman and Pollner 1970).
Ethnomethodology is not concerned with sociologically pre-defin-
ing some phenomenon for explanation, nor with seeking to employ
members’ meanings as resources for those explanations. Rather,
ethnomethodology endeavours to seek out what participants in par-
ticular settings are themselves oriented to and how those features
enter into their perceptions, actions and accounts. As Garfinkel says
in the chapter’s epigraph, ethnomethodology seeks to make “com-
mon sense activities . . . a topic of inquiry in its own right” (Garfinkel
1967: 36). In this way, members’ meanings become a topic of inquiry
rather than resources for mapping out a set of relevances derived from
some professional sociological theory.
A fourth principle of ethnomethodological studies concerns a par-
ticular conception of the social actor. As we said in Chapter 1, and will
elaborate here, such an actor is conceived as a lay sociologist, an inquirer
into the practical circumstances that confront the member going about
the business of everyday life, an ethnographer of its culture, a method-
ologist separating truth from falsity, fact from fancy, valid from invalid
inferences, reality from fantasy: “ordinary (‘ethno’) methodology con-
sists of situated investigations of practical action and practical reasoning”
(Lynch 2001: 145). In contrast to structuralist views of the actor as
one who has internalized his/her culture as a set of rules prescribing
normative behaviour, and whose actions are then rule-governed – a
version of the actor described by Garfinkel (1967: 68) as “the cultural
dope,” as we said in the Introduction to Part II – ethnomethodology
treats the actor as a rule-using creature, one who is oriented to rules in the
course of action and who may design particular actions to be in accord
with rules (Atkinson and Drew 1979: 22; Coulter 2009). This clearly
has relevance for sociological investigations of any setting that may be
said to be organized by rules, including all moments of the criminal
justice system. It is also one way in which ethnomethodology sets itself
apart from symbolic interactionism, not to mention functionalism and
all forms of structuralist theorizing in professional sociology.

The diversity of ethnomethodology

From its beginnings in Garfinkel’s classic studies, ethnomethodol-
ogy has since matured and diversified into a variety of strands held

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together not least by the aforementioned principles (Maynard and

Clayman 1991). See Wieder (1977) for a lucid presentation of “clas-
sical” ethnomethodology. Hester (2009: 240–243) distinguishes the
strands as follows: studies of accountability, rule use and mundane
reasoning (e.g. Zimmerman 1970; Wieder 1974; Pollner 1987); the
two strands of conversation analysis (CA) comprising membership
categorization analysis and sequential analysis (Sacks 1992a, 1992b);
the studies of work program (e.g. Garfinkel 1986b; Button 1993);
and what might be called the “Wittgensteinian ethnomethodology
of mind” (e.g. Coulter 1979, 1989; Coulter and Sharrock 2007). For
our purposes, we shall draw on the first three of these strands, each
of which provides for a different type of analysis.The first is founded
in Garfinkel’s classic studies themselves, and is focused on explicating
members’ use of practical reasoning in achieving the orderly charac-
ter of routine institutional life, particularly in work settings (thereby
leading into the studies of work program). We drew on Garfinkel’s
work in this vein in explicating the production of official crime sta-
tistics in Chapter 2. One particularly strong thread of this strand is
the ethnomethodological contribution to the sociology of scientific
knowledge or science and technology studies (Lynch 1993, 2014);
this overlaps with studies of legal settings, as we will see below.
The second strand is “membership categorization analysis” (MCA)
which we introduced and exemplified in Chapter 1. This originated
in the work of Harvey Sacks in papers derived from his doctoral dis-
sertation (Sacks 1967, 1972a) and in a series of lectures in the 1960s
that were eventually published as a whole in two volumes in 1992
(Sacks 1992a, 1992b). Some of the lectures were published sepa-
rately earlier (for example, Sacks 1972b, 1989). A collection of studies
building from Sacks’s original insights has now been developed (e.g.
Schegloff 1972, 2007a, 2007b;Watson 1976, 1978, 1983; Payne 1976;
Drew 1978; Atkinson and Drew 1979; Coulter 1982, 2001; Jayyusi
1984; Eglin and Hester 1992, 2003; Hester 1992; Hester and Eglin
1997; Antaki and Widdicombe 1998; Lepper 2000; Fitzgerald and
Housley 2015). The focus of this type of ethnomethodology is the
use of membership categories and what may be assumed about
them (category predicates) in producing and recognizing observably
intelligible occasions (or scenes), actions and talk.
The third strand is “sequential analysis” (SA), the other, more pro-
lific strand of CA. Once again, Harvey Sacks is a major figure in the

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establishment of this approach, both in his unpublished lectures and

published work. Through his work and that of co-researchers such
as Schegloff and Jefferson (for example, Sacks et al. 1974; Schegloff
1968, 2007c; Schegloff et al. 1977), sequential analysis has become
one of the most well-known and influential forms of ethnometh-
odological inquiry, a major field in its own right (Schenkein 1978;
Atkinson and Heritage 1984; Drew and Heritage 2006; Sidnell and
Stivers 2013), although reservations have long been expressed about
the extent to which it continues to remain firmly attached to its
ethnomethodological foundations (Coulter 1983; Lynch and Bogen
1994; Lynch 2000, 2016: 12–18; Sharrock 2000; Watson 2008); see,
for example, the recourse to hypothesis testing and quantification in
Heritage and Greatbach (1986) and its endorsement by Zimmerman
(1988: 411–412). Sequential analysis’s particular interest is in the
sequencing and positioning of units of talk in ordinary conversa-
tion, and in other “speech exchange systems” where the rules of
turn-taking used by speakers to develop orderly talk are modified
(as in ceremonies, classrooms and, as we show below, courtrooms).
As with each of the other strands, SA is committed to uncovering,
or recovering, those methods of social interaction to which mem-
bers themselves are oriented (Lynch 2001: 132; Sharrock 2001: 258;
Francis and Hester 2004: 28–29). By far the best account of Sacks’s
work in CA is to be found in Schegloff ’s (1992a, 1992b) introduc-
tions to the two volumes of Sacks’s Lectures in Conversation. Its more
purely methodological aspects are brilliantly conveyed in Lynch and
Bogen’s (1994) critical review of Sacks’s “primitive natural science.”
See also Silverman (1998).

Ethnomethodology and crime: a survey of themes

and studies
With respect to the study of crime, ethnomethodology, like symbolic
interactionism, treats crime as a matter of actors’ definitional or inter-
pretative work or, more precisely, as a product of members’ methods
of practical reasoning. However, unlike symbolic interactionism, eth-
nomethodology is concerned with the situated production and use
of these definitions rather than treating these as given in the fabric of
local settings. Accordingly, ethnomethodology directs our attention
to such matters as:

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1. the methods by which particular legal actions such as legislating,

accusing, complaining, identifying “suspicious” persons, arresting,
plea negotiating, examining and cross-examining, determining
the validity of evidence, judging, sentencing and appealing are
produced and recognized;
2. the methods by which legal settings and situations such as a call to
the police, police interrogations, and courts and trials are socially
organized;
3. the methods by which legal and criminal identities such as lawyer,
client, police, suspect, judge and defendant are achieved in social
interaction;
4. the methods by which particular events are constituted as the
crime(s) they are seen to be.
The studies selected below to exemplify ethnomethodology’s topics
of inquiry and forms of analysis represent a large body of research
studies which are poorly understood in sociology generally or crimi-
nology in particular, save for a few exceptions.Yet the whole corpus
of studies addresses virtually every aspect of the criminal justice sys-
tem from the call to the police to life in the halfway house. More
importantly, being ethnomethodological, these works pay the closest
attention not just to the “neglected situation” (Goffman 1964) taken
up by symbolic interactionism, but to the neglected particulars of the
interactional achievement of their topics’ constituent phenomena
(Anderson and Sharrock 1979: 371).

Although conversation analytic studies of law . . . are regularly

cited in the field of language and law . . . it is worth noting that
there has, so far, been little appreciation or engagement with meth-
odological issues, as these are understood by researchers working
in this tradition.
(Travers 1997a: 21)

It is just because of the relative disciplinary neglect of this body of

work that we will here provide a short bibliographic guide to the
range of these inquiries (see also Manzo 1997). For a more extensive
review, see Dupret et al. (2015a).
Notable among the many studies based on recorded and tran-
scribed data of the interactional accomplishment of the call to the
police, and of the production by call takers of the “dispatch packages”

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arising from those calls, are those by Zimmerman and colleagues (e.g.
Zimmerman 1984, 1992a, 1992b; M. R. Whalen and Zimmerman
1987, 1990; J.Whalen and Zimmerman 2005; J.Whalen, Zimmerman
and M. R.Whalen 1988; Mellinger 1992), Sharrock and Turner (1978,
1980), Meehan (1988, 1989, 2000, 2006; see Chapter 2 in this book)
and Eglin and Wideman (1986).
How police go about seeing what constitutes an actionable mat-
ter for them, what sort of actionable matter that is, and the practices
they adopt for dealing with such matters are analyzed in, for exam-
ple, Bittner (1967a, 1967b; see chapter section below), Sacks (1972c)
and Hayduk (1976). The practical decision-making of probation and
juvenile officers is documented in Cicourel (1995 [1976, 1968]) and
Bittner (1976). Let us insert here a quotation from the 1976 edition
of Cicourel’s classic ethnography The Social Organization of Juvenile
Justice, originally published in 1968, to give a flavour of his remarkable
work emphasizing the dual cognitive and organizational components
of police reasoning:

The juvenile officer is a detective armed with a variety of theo-

ries about different areas of the city, the kinds of “kids” who “get
into trouble,” a network of informers and sources of information,
written and mental notations about possible suspects and “shady
characters,” various fragments of information about persons he
feels are guilty of different offences, but against whom he does not
have the evidence necessary to convince the probation department
or the district attorney, and so forth.
(Cicourel 1995 [1976, 1968]: 68)

Police practices of interrogating suspects are analyzed in Sanders

(1976),Watson (1983, 1990; see chapter section below),Wowk (1984;
see Chapter 8 in this book) and Komter (2006). Edwards (2006)
analyzes the use of “would” in both suspects’ and police utterances in
police interrogations. Komter (2012) analyzes the “career of a suspect’s
statement” from police interrogation to judicial inquisition.
Sudnow (1965), Lynch (1982) and Maynard (1984; see Chapters 7, 8
and 9 in this book) contribute unrivalled accounts of the interactional
organization of plea-bargaining.
Conversation analysis provides numerous analyses of courtroom
interaction from Drew (1978, 1985, 1992), Atkinson and Drew

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(1979) and Dunstan (1980) to Pomerantz (1987, etc.; see chapter

sub-section below), Pomerantz and Atkinson (1984), Brannigan
and Lynch (1987), Halkowski (1990; see chapter section below),
Matoesian (1993, 2001), Komter (2009 [1998], 2013) and Dupret
(2016 [2011]). See particularly Lynch’s “Law courts as perspicuous
sites for ethnomethodological investigations” (2007). Studies of law,
evidence and lawyers’ and judges’ work include Sacks (1997),Travers
and Manzo (1997), Burns (1996, 2005, 2008), Burns and Peyrot
(2003, 2008), Lynch and collaborators (e.g. Lynch et al. 2008; see
chapter section below) and Dupret et al. (2015b). Pollner’s studies of
the traffic court are focused particularly on participants’ recourse to
mundane reasoning; see chapter section below for references. Studies
of jury deliberations are likewise referred to in relation to the works
reviewed below.
The reporting of crime in the news media is analyzed in Anderson
and Sharrock (1979), Lee (1984), Stetson (1999), Eglin and Hester
(2003) and Francis and Hester (2004: 37–52); see also Chapter 1 of
this book.

Chapter synopsis
Let us emphasize that the above listing is a sampling only of the many
studies in ethnomethodology and conversation analysis (EMCA) bear-
ing on the contingencies of criminalization. This is obviously even
more true of the works selected below to represent the field. While
we have identified three relevant forms of analysis (the “strands”)
and four topical themes characterizing EMCA inquiries into crime,
law and criminalization, studies themselves tend not to fall neatly
into these categories. Our selection covers most of the ground, but
remains somewhat arbitrary. Except for the first two cases, we follow
the sequence of moments of criminalization identified in Chapter 1.
Because EMCA informs the grammatical perspective we are adopt-
ing throughout the text, we also draw on relevant studies in EMCA
in the grammar section of each chapter.
We begin with what is chronologically the first study in the field, that
by Garfinkel (1967) on jury deliberations from the 1950s, and follow
it with the 2014 study of the same topic by Pomerantz and Sanders
employing CA, specifically MCA. We hope thereby to show both
the continuity of focus on practical reasoning with contrasting styles

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of analysis across nearly 50 years of studies. We then turn back the

clock to one of Bittner’s (1967a) classic ethnographic studies of police
work before detailing Watson’s (1990) study of police interrogations
of suspects. (Wowk’s [1984] study of MCA in the same interroga-
tion data, but in relation to sex and gender, is reviewed in Chapter
8, while Meehan’s studies [2000, 2006] of citizen–dispatcher–police
officer interactional determinations of “crime” were covered in
Chapter 2. Maynard’s study [1984] of plea-bargaining is dealt with
in Chapters 7, 8 and 9.) Turning to the court, we review the major
study of the use of DNA fingerprinting in courtroom testimony
by Lynch et al. (2008), detail Halkowski’s (1990) study of mem-
bership categorization in testimony before a committee of the US
Congress, and examine Pollner’s analysis of judicial use of mundane
reason in the traffic court (see chapter section below for references).
We conclude with Wieder’s classic study (1974) of the convict
code in a halfway house. (Hester and Eglin’s [1992] study of MCA,
in the reading of a newspaper headline about a crime, was detailed in
Chapter 1.) We lead into Garfinkel’s jury study with a more extended
consideration than is provided above of the relevant background in
his work.

Garfinkel: the rule of practical circumstances

The three strands of ethnomethodology we are exhibiting in this
chapter emerge from the foundational work of Garfinkel (1967).
Drawing on the phenomenological social philosophy of Schutz,
Garfinkel’s early work consists of a series of demonstrations of the
thesis that social order is a moral and cognitive phenomenon con-
stituted through members’ methods of practical reasoning. These
methods include the “documentary method of interpretation,” the
use of “indexical expressions,” the “retrospective-prospective sense of
utterances,” “ad hocing,” the use of “etcetera,” “unless,” “let it pass”
and so on. We shall attend particularly to the points emerging from
his demonstration that common understandings are practical, inter-
pretative achievements rather than measurable, shared agreements
on substantive matters. As we shall see, this leads into a preliminary
consideration of members’ use of membership categorizations and
of other taken-for-granted features of commonsense knowledge and
mundane reason.

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Apparently no matter how specific the terms of common under-

standings may be . . . they attain the status of an agreement for
persons only insofar as the stipulated conditions carry along an
unspoken but understood etcetera clause. Specific stipulations are
formulated under the rule of an agreement by being brought
under the jurisdiction of the etcetera clause. This does not occur
once and for all, but is essentially bound to both the inner and
outer temporal course of activity and thereby to the progressive
development of circumstances and their contingencies . . . Not
only can contingencies arise, but persons know as of any Here
and Now that contingencies can materialize or be invented at
any time that it must be decided whether or not what the parties
actually did satisfied the agreement . . . That the work of bringing
present circumstances under the rule of previously agreed activity
is sometimes contested should not be permitted to mask its perva-
sive and routine use as an ongoing and essential feature of “actions
in accord with common understandings.”
This process, which I shall call a method of discovering agree-
ments by eliciting or imposing a respect for the rule of practical
circumstances, is a version of practical ethics.
(Garfinkel 1967: 73–74, emphasis in original;
see also Jayyusi 1984: 208)

This relationship between a common understanding or agreement

or, more simply, a rule and the considerations relevant to its applica-
tion on any occasion of its use is itself immediately applicable to the
law. For it is just the “work of bringing present circumstances under
the rule of previously agreed activity” that describes what the courts
(and police and citizens) do, and what they are for. And this shows
immediately how, for ethnomethodology, the law is, in a real sense,
its application. Thus, the courts decide what “in the end” and “for all
practical purposes” really happened, and register convictions under
the rule of law, by “bringing present circumstances under the rule of
previously agreed activity.” That “new evidence” may be found, new
trials held, convictions overturned, pardons granted and so on indefi-
nitely, does not vitiate but rather only confirms Garfinkel’s point.
That, after he had spent 11 years in prison in Nova Scotia, Donald
Marshall was adjudged to be not guilty of murder (Harris 1986); that
the 1975 convictions for the Birmingham pub bombings of the group

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of Irish workers known as the Birmingham Six were declared unsafe

and unsatisfactory by the Court of Appeal in 1991 leading to their
release from prison and subsequent compensation (“Birmingham
Six”); that the body of former US President Zachary Taylor was
exhumed to determine if, after all, he had not died of natural causes,
but had been murdered by being poisoned (Associated Press 1991);
that French authorities carried out a similar inquiry in the case of the
former leader of the Palestine Liberation Organization,Yasser Arafat
(McGreal 2012); none of these cases, it turned out, could not be han-
dled in terms of the same agreed-upon rules and understandings that
had given rise to the contested outcomes in the first place, including
the methods of practical reasoning listed above, specifically the etcetera
clause with its “respect for the rule of practical circumstances.” Finally,
to cite a classic sociological study, five years after she had success-
fully persuaded clinic staff to perform a sex-change operation on the
grounds that “nature had made a mistake” and she had been female
all her life, Agnes revealed to staff that “she” had been taking female
hormones since puberty in order to develop female secondary sex
characteristics. Thereby did the report of Garfinkel’s study in chap-
ter 5 of Studies in Ethnomethodology become “a feature of the same
circumstances it reported, i.e., . . . a situated report” (Garfinkel 1967:
288). The studies of the good organizational reasons for bad clinic
records that we reviewed in Chapter 2 of this book can be read as
making the same point.
The law is made, then, each time it is invoked or otherwise used
(see Gregg 1999). This explains why ethnomethodologists would
want to examine judges’ judgments and sentencings, lawyers’ exami-
nations (of witnesses) and arguments, instances of police charging
and arrests, and citizens’ decisions to report perceived offences or
not. And so it is that the ethnomethodological studies reported here
all represent inquiry into the criminal law, and therefore into the
criminal justice system, and therefore into crime. What we shall try
to bring out in the examples that follow is how rules, concepts and
the findings of criminality they afford depend for their meaning on
the “form of life” in which they are embedded, what Garfinkel would
refer to as members’ reliance on “common-sense knowledge of social
structures” with its attendant “respect for the rule of practical circum-
stances.” We begin, then, with a classic ethnomethodological study,
one that relates to the making of legal fault in an area that falls at the

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boundary between criminal and civil domains; namely, negligence

cases (Garfinkel 1974 [1968]: 16).

Harold Garfinkel: jurors’ decision-making in negligence cases

In the mid-1950s, Garfinkel participated in a US study in which

jurors’ deliberations were tape-recorded and jurors subsequently
interviewed about the way they had made the decisions constitut-
ing the verdicts. Garfinkel’s report on the study may be said to make
four points.
1. Jurors’ decisions about what they were going to take to be the “facts”
of the case – that is, about “what happened” – were based over-
whelmingly on commonsense models of what is ordinarily possible:

Those common sense models are models jurors use to depict,

for example, what culturally known types of persons drive in
what culturally known types of ways at what typical speeds
at what types of intersections for what typical motives. The
test runs that the matter that is meaningfully consistent may
be correctly treated as the thing that actually occurred. If the
interpretation makes good sense, then that’s what happened.
(Garfinkel 1967: 106)

2. Furthermore, decisions were responsive to what is practically possi-

ble for 12 (or however many) people to agree on; that is, they were
responsive to the organizational exigencies of the jury process,
to the “rule of practical circumstances.”
3. However, while respecting common sense and practical exigency,
jurors also tried to respect simultaneously the “official juror line”
by which the good juror “treats the situation as an object of theo-
retic play” (Garfinkel 1967: 111) where his or her preferences,
interests, commitments, assessments of the import of their deci-
sion for the defendant, judgment about what is fair and so on are
deemed irrelevant; the ambiguity introduced by trying to satisfy
both this ideal and the rules of decision-making in (1) and (2)
produced troublesome incongruity for jurors.
4. In contrast to rational choice models of decision-making, in which
“persons know beforehand the conditions under which they will
elect any one of a set of alternative courses of action,” Garfinkel

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proposed that “for decisions made in common sense situations of

choice whose features are largely taken for granted, i.e., in everyday
situations, . . . the person defines retrospectively the decisions that
have been made. The outcome comes before the decision.” (Garfinkel
1967: 113–114, emphasis in original).
All four of these points may be said to elaborate Garfinkel’s fundamen-
tal argument which we singled out above; namely, the embeddedness
of rules and concepts in the mores, in members’ commonsense
knowledge of social structures. Thus, the first point brings out the
cultural component of commonsense knowledge; the second point
speaks to the organizational component of its application; the third
point raises the difficulties that arise when the attitude of everyday
life is required to be suspended in favour of the special, theoretic atti-
tude demanded by the law (as by science); and the fourth point treats
of that curious temporal feature of decision-making in commonsense
situations of choice whereby:

It is only by coming upon a proposal that is accepted that one finds

that one has reached the verdict – one was not to know, even as
that proposal was put forward, that it was the one which would
prove acceptable. One finds that it is the decision because it has
been accepted: “the outcome comes before the decision.”
(Sharrock and Watson 1984: 441, emphasis in original)

In short, what gets to be a crime (or a case of negligence here) is a

matter of the cultural, organizational, attitudinal and temporal features
of the practices comprising the application of the law (in this case by
members of a jury as triers of fact). Or, to put it in terms that apply to
the person (rather than the case) before the court, the legal concept
of guilt amounts in the end to “guilty as charged, on the strength of
the evidence adduced, to the satisfaction of the jury’s understanding
of what is ordinarily possible and reasonable” (Sharrock 1984: 104).
To repeat what Garfinkel (1967: 106) says, as quoted above, “If the
interpretation makes good sense, then that’s what happened.”

Pomerantz and Sanders: the use of MCA in a jury deliberation

Since Garfinkel’s study, ethnomethodologists have continued to

examine jurors’ deliberations on the few occasions when they could

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get their hands on recordings or transcripts of such (see Manzo 1993,

1994, 1996; Maynard and Manzo 1993). Following earlier work on
description in legal settings (Pomerantz 1987; see also Pomerantz
and Mandelbaum 2005), Pomerantz and Sanders (2014) provide a
particularly careful explication of jurors’ use of MCA to argue for
and against mitigating the death penalty (to life in prison with parole
after 25 or 30 years) in the case of a person already convicted of
murder. Jurors’ reasoning was conducted in terms of such categories
as “little kid,” “loving son,” “person under the influence of drugs”
and “altar boy.” The authors show in detail how predicates of these
categories were used by jurors both to advance the case for mitiga-
tion and to counter it by exposing the “vulnerabilities” which such
categories and their predicates afford.Thus, for example, persons act-
ing under the influence of drugs may be held to be less than fully
responsible for their actions (and thus not deserving of the death
penalty). Alternatively, that argument is vulnerable to the countering
argument that such persons may be said to have entered that state
voluntarily, thereby acquiring responsibility for the consequences
of doing so (and therefore be deserving of the harsher sentence).
In both cases, features seen to be attributes of the same category
were used to render opposing arguments. The general point to be
derived from the study for this exposition of ethnomethodology is
the way it demonstrates how jurors’ “understanding of what is ordi-
narily possible and reasonable” (Sharrock 1984: 104) is articulated
in the terms of members’ knowledge of membership categories and
their predicates.

Bittner: the police on skid row

Given their use of some generalized methods for identifying poten-
tial criminality as identified in Sacks (1972c), with what attitude
do police approach their task? In particular, given that the great bulk
of police work is taken up not with law enforcement per se, but with
peace keeping, how do the police decide what is their business in
cases where they do not arrest, and how do those considerations
affect the invoking of the law in those cases? This is the question that
Bittner (1967a) addresses in his classic ethnomethodological study
of the mandate and practices of peace keeping in policing on skid
row.

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To be sure, there is vague consensus that when policemen direct,

aid, inform, pacify, warn, discipline, roust, and do whatever else
they do without making arrests, they do this with some reference
to the circumstances of the occasion and, thus, somehow con-
tribute to the maintenance of the peace and order. Peace keeping
appears to be a solution to an unknown problem arrived at by
unknown means.
(Bittner 1967a: 701)

The study is one in ethnomethodological ethnography, an area in

which there is some methodological and conceptual similarity with
symbolic interactionist studies such as that of Hunt (1985) in Chapter
5.Thus, Bittner spent 11 weeks of his 12 months of fieldwork observ-
ing police work in skid rows. Moreover, he confined his attention to
the problem of peace keeping as seen by the participants – that is, the
police officers – themselves. He describes the problem in terms of
the “demand conditions” (Orne 1962; referred to in Chapter 5) of
their work circumstances as perceived by the police, and the solu-
tion in terms of the interactional practices adopted by the police
in response to those conditions. Further results of this study, to do
specifically with “police discretion in emergency apprehension of
mentally ill persons,” are reported in Bittner (1967b). Moreover, all
of Bittner’s unrivalled studies of police and police work are collected
together in his 1990 book, Aspects of Police Work.
The principal demand condition of police work on skid row is
posed by the type of people who inhabit it. Police regard skid row as
the natural habitat of incompetents and those disinclined to be nor-
mal. Life-as-usual is perceived as radically “occasional,” where trust is
irrelevant, the past unimportant, the future incoherent. Indeed, address,
relationships and activities are not meaningfully related over time so
that “life on skid row lacks a socially structured background of account-
ability” (Bittner 1967a: 706).Violence is seen as a constant possibility.
Given this view of the social constitution of life on skid row, police
formulate their task “basically as the protection of putative predators
from one another” (Bittner 1967a: 707). But because “the realization
of self-interest does not produce order” (1967a: 707), they pursue an
overall goal of external containment. To do this effectively, the indi-
vidual officer employs, according to Bittner, three essential practices,
the second and third of which are most relevant to our concerns.

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Since, “if he does not know a man personally there is very little
that he can assume about him” (1967a: 707), then a first practice of
peace keeping is for an officer to acquire a rich body of particular-
ized knowledge about the persons and places on his beat, knowledge
which provides the basis for an aggressively personal approach to
residents. In exchange for interrogation rights and obedience – refus-
ing to play by insisting on rights is one way to get arrested – residents
enjoy expressive freedom and a variety of services that officers render
to them. This is not done, Bittner says, out of a spirit of altruism, but
because “the hungry, the sick and the troubled are a potential source
of problems” (1967a: 708). Such services range from providing help to
get lodgings and welfare to keeping an eye out for missing dentures.
Second, police adopt the practice of proceeding against persons on
the basis of perceived risk rather than culpability. For officers:

compliance with the law is merely the outward appearance of an

intervention that is actually based on altogether different consid-
erations.Thus, it could be said that patrolmen do not really enforce
the law, even when they do invoke it [and “In the majority of minor
arrest cases . . . the criteria the law specifies are met”], but merely
use it as a resource to solve certain pressing practical problems
in keeping the peace.
(Bittner 1967a: 710)

A similar orientation characterizes the practices of courtroom attor-

neys (as we will see with Maynard’s [1984] studies of plea-bargaining
in Chapters 7, 8 and 9). Just as attorneys face the task of arriving at
an offence with which to strike a plea-bargain, so

the problem patrolmen confront is not which drunks, beggars,

or disturbers of the peace should be arrested and which can be
let go as exceptions to the rule. Rather, the problem is whether,
when someone “needs” to be arrested, he should be charged with
drunkenness, begging, or disturbing the peace.
(Bittner 1967a: 710)

For the minor matters that comprise the bulk of their work, the
overriding police preference is for not arresting where control can be
effected in other ways.This does not hold for serious offences such as

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cheque-passing; however, as other studies indicate, “[e]ven in a major

city like Toronto . . . district detectives and patrol officers averag[e]
15.5 criminal charges per year” (Hagan 1991: 151).
The third practice of peace keeping consists of using coercion to
manage situations rather than persons. Put differently, it amounts to an
orientation on the part of police officers to seek to reduce aggregate
trouble and prevent its proliferation rather than evaluating individual
cases by merit.This helps to make understandable arrest decisions that
otherwise appear ad hoc. Against the background of this general orien-
tation, situational factors become decisive.The action taken, including
arrest, depends on visibility, face (see also Chambliss 1976a [1973]),
location (as above), the importance of a quick decision and not having
to return later in the shift, the removability of the troublesome party
(whether culpable or not) and the availability of the police van. Since
there is always more trouble than can be handled, the law is regarded as
less important than practical control.This is a view shared by residents
themselves, who not infrequently ask to be arrested.
Bittner concludes by saying that for police on skid row,“playing by
ear” is the hallmark of good craftsmanship in peace keeping. It is not
something that can be systematically generalized or organizationally
constrained. They call it “getting along with people” (Bittner 1967a:
715), but as we have seen, it depends on developing a rich body of
knowledge about the beat and a set of skills that are critical even as
they are taken for granted.
Bittner is one of the exceptions to the claim of neglect stated
above in the section of the chapter surveying themes and studies.
At least, he is a partial exception. As Reiner says in “Revisiting the
classics: Three seminal founders of the study of policing”:

Whilst both Banton [The Policeman in the Community] and Skolnick’s

[Justice without Trial: Law Enforcement in Democratic Society] books
were rapidly canonized as seminal texts of the sociology of polic-
ing, widely reviewed and cited from the time of their publication,
Bittner’s reputation was a slow burn. His stature is still growing
and he is now clearly a seminal figure in the analysis of policing.
(Reiner 2015: 321)

Whether the “slow burn” can be explained by the fact that Bittner,
according to his own account (Brodeur 2007: 110), was never

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interested in producing a theory of the police (given the overrid-

ing importance attributed to theory in professional sociology), is a
moot point. As Reiner (2015: 323) observes, Bittner’s seminal 1974
Florence Nightingale paper is sub-titled “A theory of the police.” But
then, as Peter Manning (2007: 106) says, “Bittner’s characterization
of policing is not of course a ‘theory’ if one conceives of theory as
an abstract set of propositions that is interrelated, testable, empirically
verifiable, and can be rejected or falsified.” To appreciate Bittner’s
genius, readers are encouraged to read his work, followed by the fest-
schrift assembled to commemorate his passing (Carlin and Slack 2013).

Watson: eliciting confessions in murder interrogations

Before trial, adjudication, jury deliberation and possible imprison-
ment, but after arrest, comes interrogation. Here we consider the
work of Watson (1990) on the elicitation of confessions in murder
investigations.Watson’s data consist of two videocassette recordings of
police interrogations of murder suspects, Lewis Strawson and Stuart
Riley, in a large North American city. Strawson is accused of having
killed and dismembered a young woman and Riley is suspected of
three murders. Both of them confess and Watson seeks to examine
aspects of the methods through which these outcomes are interac-
tionally achieved. Watson’s work is especially interesting because it
combines each of the three main ethnomethodological strands we
described earlier: the explication of practical (including mundane)
reasoning in relation to its institutional setting; membership catego-
rization analysis; and sequential analysis.We shall consider briefly the
contribution of each of these to an understanding of interrogations,
paying particular attention, as Watson does, to the two types of CA.
A one-time student of Watson, Maria Wowk (1984), makes a related
analysis of these materials in pursuit of “the processes by which
blame is allocated around constructions about ‘victims’ which trade
on ‘what we all know’ about different kinds of women and their part
in precipitating behaviours by men” (Wise and Stanley 1987: 226).
We examine Wowk’s study in Chapter 8. An expansive appreciation
of Watson’s contributions to ethnomethodology, CA and MCA can
be found in Wowk and Carlin (2008).
Obviously, the main aim of interrogation from the point of view
of the police is to obtain a confession. To this end, a central task is

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getting the suspect not only to talk, but to continue to talk until a
confession is obtained. By drawing on the modes of ethnomethodo-
logical inquiry mentioned above,Watson is able to show in detail that
“getting the suspect to talk” and “persuading” the suspect to confess
are methodical and socially organized.

Questions and answers: utterance positioning as an

interactional resource

A key concept in sequential analysis is “speech exchange system”

(Sacks et al. 1974). Speech exchange systems are organizations of turn-
taking in social interaction that are tied to different tasks and contexts.
Some are “formal” in that many of their features are “prespecified” in
advance of the occasion (for example, marriages ceremonies, debates,
trials), while others have their features decided on a “turn-by-turn”
basis (for example, ordinary conversation).Watson suggests that inter-
rogation is a distinctive speech exchange system that contains many of
the features of ordinary conversation. In particular, he argues that the
inductive and persuasive character of the interrogation is dependent
on and embedded in organizational features of ordinary conversa-
tion. That is to say, Watson argues that some elements of what is
sometimes taken to be police officer control (including the capacity
to persuade and pressure) by virtue of objective power, turn out to
be at the disposal of any conversational participant. This is illustrated
in several ways.
In their work on speech exchange systems, conversation analysts
have paid considerable attention to what they describe as “adjacency
pairs” of utterances (Schegloff 2007c: 13–14). These are utterances
such as question–answer, summons–answer, greeting–return greeting,
request–compliance (or denial), invitation–acceptance (or rejection).
Such pairs of utterances are said to “go naturally together,” so that
the production of a “first part” of an adjacency pair makes relevant the
production of the “second part” in the next turn. Non-production
of the relevant second pair part is, for conversationalists, “notice-
ably absent,” a fact which conversation analysts take as evidence
of a “members’ orientation” to this method for the co-production of
orderly conversation.
A first feature of interrogation as a speech exchange system is the
alignment of the police officer and the suspect into the positions of

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recipient and informant respectively. This is achieved through what

Watson (1990: 278) calls a “considerable measure of pre-allocation
of turns and turn-types.” Of particular importance here are the turns
constructed as questions and answers. Questions help to keep the
suspect talking.This occurs because questions comprise first pair parts
of adjacency pairs, and as such, they maximize “the chances of the
suspect producing at least one more utterance as an immediate next
conversational action” (1990: 279). The production of questions, and
indeed other “first pair parts,” is a useful interactional resource in
keeping the suspect talking.
Also important in achieving the alignment of the suspect as
informant and the police officer as recipient is the use of “continu-
ers” or acknowledgements. These are minimal utterances such as
“mm hm” and “a ha” which display what Jefferson (1984: 200) calls
“passive recipiency” which is an utterance designed to indicate that
its producer does not wish to take a turn him- or herself, but rather
wants the current speaker to continue talking. Such a device is widely
used not only in ordinary conversation but, for example, in therapy
and interviews. In this context it serves, like the use of questions, to
“keep the suspect talking” (see also Sanders 1976).

Preference organization and knowledge claims

Practitioners of sequential analysis have developed our understanding

of the preceding issues by showing that where there are alternative
second pair parts available to members, as there are with respect to
invitations, requests, accusations and various other first pair parts,
then speakers are oriented to a “preference organization” (Pomerantz
and Heritage 2013, and references therein). This means that certain
second pair parts are “preferred,” while others are “dispreferred.”
Preferred and dispreferred items differ with respect to their “turn
shapes.”Thus, dispreferred items tend to be produced in conjunction
with such features as the partial production of preferred responses,
delays, transition markers. Preferred responses, on the other hand,
tend to be done immediately and directly following the first pair part.
For example, the “preferred” response to an invitation is acceptance.
When a person wishes to accept an invitation, they typically do so
straight away with utterances such as,“Yes, I’d like to,” etc. In contrast,
the dispreferred “second” to an invitation – namely, the rejection

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– is typically constructed with such additional components as partial

acceptance tokens, hesitation, transition markers, accounts and the
like, as in “Well, that’s very nice of you, errm, but I’m afraid I cannot,
I have to visit my doctor . . .”
In this connection,Watson focuses on how “knowledge is invoked
and mobilized in the course of the interrogation.” This involves
“avowals, ascriptions, elicitations and displays of specific items of
knowledge and the conversational vehicles and formats in which
these are incorporated, embedded, and organized relative to each
other” (Watson 1990: 265). In particular, he suggests that knowledge
claims (for example, “we know that . . .”) work to “upgrade” claims,
and as such, can be “persuasive” (cf. belief claims). This is traced out
in terms of preference organization “in that knowledge claims, as
opposed to belief claims . . . can . . . intensify a preference for con-
firmation rather than for disconfirmation of the claims being made
by the officer. Such confirmation can . . . be highly implicative for a
confession” (1990: 266). Knowledge claims are said to redouble the
relevance of confirmation, hence elevating the claims, accounts, etc.
in a “hierarchy of preference.” This is to say that the police officer’s
“account,” by being presented in this way, “becomes preferred rather
than dispreferred or of equivalent or equivocal status vis-à-vis other
hypothetically conceivable accounts” (1990: 266). Bland denials, fur-
thermore, of claims made via “we were wondering . . .” or “we think
you . . .” are probably “enough to terminate the sequence with, at
most, a simple ‘reception’ or acknowledgement from the officer in the
third utterance of the sequence” (1990: 267). However, in the face of
knowledge claims, a simple denial may “not be enough to override
the policeman’s ‘comeback’ in third turn” (1990: 267).

Story format and confession

A number of conversation analysts have shown how “stories” or

“storytelling” in various contexts are socially organized in a distinc-
tive way (Cuff and Francis 1978; Jefferson 1978; Mandelbaum 2013).
The “problem” for a storyteller is that stories (and jokes) typically
take longer to produce than the “average” turn at talk in an ordinary
conversation, where conversationalists operate on the assumption that
turn transition may occur at any “turn transition relevance place”
(for example, at the end of the current speaker’s sentence). However,

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if a speaker has a story to tell which consists of a number of sen-

tences, where the completion of each of which might be treatable as
a juncture where another speaker may select him- or herself to speak,
then some method for inhibiting this eventuality must be available
to the speakers. If not, then the story might never get told as a unit
of talk, becoming instead disconnected and fragmentary. Accordingly,
storytelling involves a distinctive format in which (1) the teller and
recipient produce a “story preface” in which permission to tell the
story is requested and granted, or where an invitation to tell a story
is issued and accepted; (2) the “story proper” is then told, typically
via a narrative structure; followed by (3) a story response on the part
of the recipient(s).
As Watson observes, the fact that for stories it is typical that “the
teller holds the floor so far as rights to tell the story are concerned”
would seem to suggest “certain incompatibilities between the inter-
rogation and story formats” (Watson 1990: 278). Given that speaker
transition is usually suspended or modified for the duration of the
story, is there not an inconsistency between inviting the suspect to
tell a story (and hence have the floor to tell it to completion) and that
which is conventionally constitutive of interrogation; namely, asking
questions? In this regard,Watson makes a distinction between the vol-
unteered story and the invited story. Confessions are achieved in part
via the format of the invited story. Like volunteered stories, they take
more than one utterance to do, and they provide for an alignment of
the suspect and police officer into the positions of teller and recipient
respectively; but unlike them, invited stories allow the recipient of the
story to take turns, and often quite long turns, throughout the course
of the story. The invited story format for interrogations not only
allocates to the suspect the turn type “telling a story”; it also permits
the recipient to ask questions and thereby collaboratively contribute
to the build-up of the story.
Questions, continuers, preference organization and story invita-
tions contribute to the production of confessions by achieving an
alignment of the co-participants in which the suspect is continually
selected as informant/confessor/storyteller.These are, thereby, highly
“felicitous” devices for “keeping the suspect talking.” They are also
useful in controlling what the suspect talks about. By recurrently
occupying first turn, so to speak, the police officer not only obliges
the suspect to speak in next turn, but also has some controls over

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what the suspect talks about. The police officer, within the limits of
topical coherence imposed by the unfolding story, can introduce new
materials for incorporation into the developing “confession.”

Persuasion and membership categorization

Watson’s work on interrogations also involves membership cat-

egorization analysis. Thus, he shows that persuasive pressure is also
generated by the presentation of the telling of the prospective story as
being a manifestation of (the extent of) the suspect’s honour, such that
telling the story might be seen as “doing the honourable thing.” The
activity “doing the honourable thing” is predicated of the category
“man or woman of honour.” The police officer is counting on the
fact that the suspect will regard him- or herself as an incumbent of
the membership category implied by this categorization. Category
imputations, too, then, may be persuasive devices in interrogations.

Knowledge claims, social facts and mundane reason

Finally, we note that another aspect of interrogations and, in par-

ticular, the persuasive character of the police officer’s interactional
activity, recalls our earlier discussion of practical reasoning. This is
that the presentation of claims as “knowledge rather than supposition”
works “to ‘establish’ the facticity of his version or reconstruction”
(Watson 1990: 266; see also Smith 1978; Hester 1991). It also helps
to “authorize” the account. Authorization procedures include the
following:
• that the suspect is “nailed to the wall”;
• that the evidence has been assiduously collected;
• that the evidence is genuine;
• that the police are not bluffing;
• that the witnesses are not lying;
• that their statements coincide with independently collected
evidence;
• that the police officer’s account is disinterested, cohort-independent;
• that the witnesses have not falsely accused the suspect;
• that they are not part of the police officer’s “team.”
All of these features “serve to forestall any counter-accusations by the
suspect, based on the discrediting of the origins of the policeman’s

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information” (Watson 1990: 268). They help to bolster the police

officer’s claims as correct and factual. The use of that contrast struc-
ture in which “the truth” is opposed to “a con,” “a lie” or “a bluff ”
works to upgrade and authorize the account; these “procedures work
in parallel with authorizations to elevate the account to the level
of ‘facticity’ or to bolster the account against straightforward chal-
lenges” (1990: 269). Presentation of claims as independent of any
single perceiver and as disinterested gives them a Durkheimian exter-
nality and a constraining quality. These features help to put pressure
on the suspect and make it more difficult for him or her to deny the
interrogator’s accusations. Notice that the Durkheimian social-fact
character of the officer’s claims and the distinction between “true and
false” are phenomena for members as lay sociologists (before ever being
such for professional sociologists) and are interactional accomplishments
of members’ methodic practices.

Lynch et al.: determining crime through DNA

fingerprinting
Nearly half a century after Garfinkel’s jury study, we find the same
phenomena in play in relation to a new feature of criminal justice.
The use of DNA profiling or fingerprinting has become the “gold
standard” of forensic evidence, whereby suspects are revealed as crim-
inals, not just on the television show CSI: Crime Scene Investigation and
its offshoots and simulacra, but in actual courtrooms across the world.
It has become a “truth machine,” widely regarded with the same
breathless awe as once greeted fingerprinting itself. For example:

Leo Adler, a Toronto lawyer who specializes in DNA cases, said

most lawyers simply don’t believe they can beat a DNA case and
seek a plea bargain. “I would say that 99 times out of a hundred,
nobody is fighting it any more,” he said. “I suspect that there are
lawyers whose clients say, ‘Hey, it wasn’t me,’ and the lawyer says:
‘You’re going to go down, so let’s work something out’.”
(Makin 2010: A4)

Born in science, DNA fingerprinting has enhanced the role of science

in legal proceedings, bringing with it challenges for courtroom per-
sonnel, not least juries in criminal trials. Just how did DNA profiling

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become a truth machine, and on what does its probative value actu-
ally rest? Is it simply a matter of the claimed hardness of science’s
data and methods, or does the science rest on an unacknowledged
assemblage of “soft” social considerations that make its “hardness”
possible?
In Truth Machine, Lynch and his colleagues (2008) address both
the historical and sociological questions. Their 400-page book is the
result of a series of historical and ethnographic investigations over a
15-year period between the late 1980s and the early 2000s, primarily
in the United States and the United Kingdom. The methods used
include interviews, observations, participation at laboratories and
courtrooms, conversation analysis and documentary reconstruction.

Although focused on specific legal decisions, legal briefs, trial tran-

scripts, and selected videotapes of the O. J. Simpson trial, our study
attempted to encompass a much broader scope than usually is the
case for detailed studies of text and talk.
(Lynch et al. 2008: xv)

It particularly deals with cases in which DNA profile evidence was

challenged in court. Such challenges put into question the status of
“science” and the expertise of the “expert,” in relation to the “common
sense” of the “ordinary person,” the “reasonable man” presupposed as
the arbiter of legal decision-making in the Anglo-American criminal
justice system. Rather than approaching the relationship of science
and common sense in decontextualized, philosophical terms, the
study addresses how these terms are deployed in legal proceedings.

Such pragmatic construals may or may not compare well with

philosophical or sociological conceptions of science, but the
important point is that they constitute what counts in the legal system
as science and expertise. Such constitutive work and its pragmatic
effects are phenomena for this study.
(Lynch et al. 2008: 16, emphasis in original)

The term “deconstruction” has come to be used to describe the way

in which expert evidence is taken apart in courtroom examination.
Though similar in meaning, it should not be confused with the post-
modernist concept. (See the Introduction to Part IV.) Thus,

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consistent with the research policies in the field of ethnometh-

odology, it is necessary to view courtroom deconstruction as an
interactional production, and not as a method for unmasking a
reality that supposedly lies beneath the construction of expert evi-
dence . . . it is itself a contestable (and frequently contested) source
of evidential claims and counterclaims.
(Lynch et al. 2008: 20)

For this summary, we shall consider just one of the cases treated in
the book, that of Smith.

The Smith case: chains of custody and administrative objectivity

[T]he scientific credibility that DNA typing currently enjoys has

much to do with the administration of objectivity.
(Lynch et al. 2008: 141)

The Smith case involved a rape and murder. Much of the prosecution’s
case turned on using DNA fingerprinting to match the accused’s
blood and semen with those in stains found at the crime scene. The
defence held that evidence up to scrutiny, thereby making evident
the complex journey travelled by the evidence from crime scene to
courtroom in the course of which it was constituted as evidence.
“Much in the way a suspect passes through a series of stages before
becoming a criminal, crime scene and suspect samples pass through
a series of stages on the way to becoming criminal evidence” (Lynch
et al. 2008: 121). What the study brings out is how the credibility of
the scientific evidence rests upon a whole series of administrative
tasks that have nothing to do with the science itself, but with what
the authors call “the administration of objectivity.”This series of tasks
is known to the personnel involved as the chain of custody.

The chain is made up not of tandem repeats of identical ele-

ments, but of representations of many different kinds: denatured
material extracts, designer fragments, gel images, paper transfers,
radioactive markers, x-ray exposures, visual matches, numeri-
cal codes, and statistical estimates. Expanding the chain so that
it extends beyond the lab, we find such items as tamper-evident
bags, courier services, forms, signatures, and oaths. And in addition

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to metaphoric bar codes inscribed on autoradiograms, we find real

bar-code stickers fastened to test tubes, records, and other items.
These bar codes are organizational artifacts used for tracking the
identity and assuring the integrity of samples.They are rails of jus-
tice: materials that facilitate the legally accountable transport and
transformation of evidentiary cargo from one designated staging
point to another . . . Throughout the process, bureaucratic records
stand as documents of identification, certification, and organiza-
tional memory: a signature, appropriately inscribed on a form by
the relevant official, performs witnessing, independently of what
the official may actually have seen or heard . . . Representation
unquestionably takes place, but not in accordance with a single
rule or set of criteria, and never with the certainty demanded by
the metaphysicians.
(Lynch et al. 2008: 132–134)

The credibility of the DNA match presented at the trial rested on

an acceptance of the various statements, attestations, and official
certifications, embedded in, and embodied by, the paper trail. And
so, while it might seem as though science, after being subjected to
challenge, triumphed at the end of the day, its victory was sustained
and supported at many points by a small, mostly hidden, labour
force of bureaucratic officials, clerks, and lorry drivers.
(Lynch et al. 2008: 132)

The reference to lorry (aka truck) drivers is interesting. Cross-

examination revealed that a clerk had used a photocopy of a form
with his signature already on it when certifying the proper transfer
of a blood sample from one forensic lab to another. The defence
demanded the original form, but since there wasn’t one, the trial was
delayed while the prosecution contacted the clerk and the courier
service involved.

According to the courier service’s records, the sample in ques-

tion was moved by four different lorry drivers on different legs
of its journey . . . The Crown attorney’s office located the four
lorry drivers and two controllers working with the courier firm
and arranged to have all of them [attend court], along with the
clerk . . . This now-expanded group of agents was prepared to

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testify that the evidence sample moved through an unbroken chain

of transfers on its [journey].
(Lynch et al. 2008: 131)

As it turned out, the defence accepted the integrity of the evidence

on the basis of other testimony so that “the clerk and lorry drivers
no longer were required to play their cameo roles at the Old Bailey”
(Lynch et al. 2008: 131). Smith was duly convicted and imprisoned.
The ethnomethodological-sociological point, however, is not to
bring the verdict into doubt, but to show in a perspicuous man-
ner how the scientific objectivity of the evidence rests upon the
administrative objectivity of the chain of custody, which rests upon
the practical reasoning of all the actors involved, in any case. Smith’s
criminality is the interactional accomplishment of the criminal justice
system’s management of practical contingencies.

Halkowski: “role” as an interactional device

We indicated at the beginning of the chapter that one of the key
differences between ethnomethodology and other sociological
approaches centres on the distinction between topic and resource
(Zimmerman and Pollner 1970). Ethnomethodologists treat as top-
ics that which other types of sociology take for granted as resources
in their investigative work and in their explanations. One such
resource, especially popular in functionalist and symbolic interac-
tionist accounts, is the concept of “role.” This concept refers to “the
set of behaviours appropriate to a particular social position or status”
(Halkowski 1990: 565). Traditionally, it has been used as an “ana-
lytic tool to account for social order.” However, ethnomethodology
reminds us that “members of society invented the concept ‘role’ as a
useful, practical part of their language” and that “rather than treating
‘role’ as a self-evident, social scientific resource for analysis . . . [they]
should take it as a topic of study” (1990: 565). The payoff from this is
intended to be a greater understanding of how members of society
organize their social worlds through the use of such notions.
This view of role as a topic of inquiry is evident in Halkowski’s
study of the Iran–Contra congressional hearings. Such hearings are
part of the US criminal justice system insofar as they may be used to
determine if criminal charges should be laid in matters of political

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significance usually involving members of the government. Much

of the talk in the Iran–Contra hearings concerned how people’s
actions should be seen (see Bogen and Lynch 1989, 1996). Halkowski
describes how the concept of role in lay usage is a technique for
engaging in what he calls “category shifting work.” Categorizations
of persons and actions used in the hearing (and elsewhere) can be
used to construct and to avoid accusations.This is because categories
imply devices. Category shifting is a means whereby members impute
and avow motives and define the character of their own and others’
actions.
The case in point concerns the shredding of documents contain-
ing financial records pertaining to the “residual funds being used
to support thuh Nicaraguan resistance” (Halkowski 1990: 571). The
issue for the hearing is whether the witness “obstructed justice”
by destroying documents required by an “official inquiry” of the
Attorney General’s office. We shall consider the following portion of
the transcript of the hearing (Halkowski 1990: 566).

CC = Committee Counsel (Mr. Nields)

W = Witness (Lt. Col. Oliver North)
1 CC: =are you he:re telling thuh committee. (.hh)
2 that y:ou don’t remember. (.hh)
3 Whether on November twenny first there was a
4 document in your files reflecting presidential
5 approval of the diversion.
6 (0.8)
7 W: As a matter of fact I’ll tell you specifically
8 that I thought they were all go:ne.
9 (0.3)
10 Because by thuh time I was to:ld
11 (0.5)
12 that some point early on November twenny first
13 (0.3)
14 that there would be an INnquiry.
15-> Conducted by:: (.) Mister Meese,
16 (0.6)
17 I assured (0.3) Admiral Poindexter
18 (0.2)
19 incorrectly it- it see:ms,

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20 that A::LL (.) of those documents no longer

21 existed.
22 (0.2)
23 and so that is EARly (0.3) on November
24 twennyfirst,
25 (0.2)
26 because I believe thuh decision (0.3) to make an
27 inquiry
28 (.)
29-> to have thee Attornally-Atttorney General
30 (0.4)
31-> or Mister Meese in his ro:le as friend ta thuh
32-> President
33 (0.30)
34 conduct a fact finding excursion,
35 on what happened in September an November
36 Nineteen Eighty F:I:VE,
37 (0.6)
38 I asssured the Admiral,
39 (0.3)
40 don’t worry (0.4) its a:ll taken care of.
41 (0.2)
42 CC: You(’d) all [ ready shredde ] d ‘em.
43 W: I thought
44 (0.2)
45 W: That’s right.

There are three different references to Mr Meese (the Attorney

General) in this passage. The first is to “Mister Meese” (line 15). The
second is to “thee Attornally-Attorney General” (line 29).The third is
to “Mister Meese in his ro:le as friend ta thuh President” (lines 31–32).
The question for Halkowski is “why does the witness refer to the
same person in three different ways?”
His analysis is couched in terms of membership categorization,
a form of ethnomethodological inquiry we considered in some
detail in Chapter 1. He suggests that the first reference does not
implicate a membership categorization device, but the second and
third references do.That is, “Attorney General” implicates the device
“cabinet members” or “law enforcement officers.” “Mister Meese

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in his ro:le as friend ta thuh President” implicates the device “rela-

tion to the President”: “friend”/“not friend.” These categorizations
are used in conjunction with action-descriptions, namely “make an
inquiry” (lines 26–27) and “conduct a fact finding excursion” (line 34).
Halkowski observes that:

with his person-reference repairs, as well as with his action-

description repairs, the witness is shifting from one categorization
device to another; from devices that might be implicated by the
categorizations “Attorney General” and “inquiry,” and repair-
ing those referents with categorizations that implicate the device
“relation to the President.”
(Halkowski 1990: 569)

The interactional utility of this “category/device shifting” procedure

is that:

with these descriptions the witness makes Meese and his actions
seeable as non-official.The witness thereby also proposes a descrip-
tion for his own actions. While he might be seeable as destroying
documents that were being sought by the “Attorney General,” he
refers to Meese as a “friend of the President.” Depending on which
description of Meese and his action prevails, the witness either
impeded an internal “fact finding excursion” or was involved
in the “obstruction of justice” and the destruction of evidence
needed by an official inquiry.
( Halkowski 1990: 569)

It is said that once a person has been referred to by a category, which

implies, by definition, a device, then one way or method for eliminat-
ing the initial device’s implicativeness for the characterization of one’s
actions, motives and character is by offering an alternative device.
This can be done by offering another category. In this particular case,
the method of category/device shifting has been deployed to avoid
imputations of criminal wrongdoing. Further ethnomethodological
analyses of a related episode to do with the Iran–Contra criminality –
namely, the George H.W. Bush/Dan Rather interview on CBS News
in 1988 – can be found in a special section of Research on Language
and Social Interaction (Pomerantz 1988/1989).

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Pollner: mundane reason in court

We introduced the concept of mundane reason in Chapter 5 in the

context of Pollner’s (1987) critique of Becker’s (1963) theoretical
model of types of deviant behaviour, and when we briefly consid-
ered earlier in this chapter Watson’s analysis of the deployment of
“factual knowledge” as an interactional device in interrogations. In
this section, we shall be examining this approach in greater detail.
The analysis of “mundane reason” involves the study of how mem-
bers of society make use of assumptions about the objectivity and
inter-subjectivity of the features of their social worlds. The interest
is in the use of these assumptions in fact production (as in the “facts
of crime,” the “facts of suicide,” the “facts of gender”). Much influ-
enced by Schutzian phenomenology (see, for example, Psathas 1973;
Luckmann 1978; Buckner 1970) and the early work of Garfinkel, the
major work in this tradition of ethnomethodology is that of Pollner
(1974a, 1974b, 1975, 1978, 1979, 1987; see Berard 2003). Adaptations
and extensions of this work can also be found in Smith (1978), Eglin
(1979) and Hester (1991).
For Pollner,“mundane reason” consists of the assumption, and rea-
sonings based thereupon, of the “objective” existence of the features
of the social world. In particular, it refers to the use of the assumption
that deviance (and crime, more specifically) is something that exists
independently of “subjective” views. Instead, it exerts a “constraining
influence” on such views. We react to something as crime because
it is crime, not because we have constructed it that way. We therein
mask from ourselves our own presumptive and hence creative and
assumptive work. Readers should bear in mind here the reservations
we expressed in Chapters 4 and 5 about Pollner’s apparent attribution
of a philosophical theory of reality to members of society, rather than
attending to members’ actual language use of “real,”“reality” and their
cognates. We could call it the “constructionist fallacy.” Nevertheless,
Pollner’s empirical studies of the court’s reasoning bear consideration.
The use of mundane reason – the assumption of the objectivity of
crime – is examined by Pollner in the context of the traffic court. He
suggests that a central component of mundane reason is each person’s
assumption that not only does crime exist independently for them,
but that it exists in the same way for others. Crime is, in other words,
not only objective, it is inter-subjective. We shall demonstrate the

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use of mundane reason with respect to, first, the resolution of what
Pollner calls “reality disjunctures” in court; and, second, judges’ use
of the mundane model of crime.

Resolving reality disjunctures in the traffic court

Pollner (1974a) examines how “disjunctures” in the traffic court are

dealt with. Are they grounds for calling into question the presump-
tion that the producers of the disjunctive descriptions are inhabitants
of the same reality? Are they both correct? Can they both be telling
the truth even though they can be heard to contradict each other?
The answer is “no.”The disjunctures are explained, accounted for, by
pointing to “exceptional” observational conditions that obtained at
the time of the “disputed” event. Pollner argues that it is through such
accounts that the “belief ” in the commonly shared world is sustained.
For example, puzzle: how could a defendant claim that he did not
exceed 68 miles an hour and an officer claim that he did? Solution:
faulty speedometer. Puzzle: how could a defendant claim that the vehi-
cle in front of him and not his camper held up traffic and an officer
claim that it was the camper? Solution: the camper blocked the officer’s
vision. Puzzle: how could a defendant claim that drag racing did not
occur at a specified time and place when an officer claims that it did?
Is it possible that drag racing did and did not occur? Is it possible that
drag racing did and did not occur at the same time? Are they both
right? Solution: the officer was actually referring to a different time.
In each of these cases, neither judge nor defendant brings the
inter-subjectivity of the events into question. Rather, they look for
a solution to the disjuncture. They hold that if “other things were
equal,” the persons would corroborate each other. If the various
obstacles, mistakes and pieces of faulty equipment had not prevented
it, then a uniformity of perception would have prevailed.
To reiterate, the central focus of this type of analysis is members’ use
of assumptions about the objectivity and inter-subjectivity of the social
world and its constituent “facts” and features. Essentially, the focus is
on how these assumptions are part of the process through which social
facts are constituted as objective and inter-subjective in the first place.
Pollner’s work on practical reasoning in traffic courts shows how the
“mundane model” of crime informs legal and judicial thinking about
crime and is thereby constitutive of crime in the courts.

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Mundane judicial reasoning

We saw in Chapter 5 that Pollner (1987) asserts that Becker’s (1963)
typology of deviance is not a “constitutive” (or what he calls a “sociolog-
ical”) conceptualization of deviance because it presumes that deviance
(or crime) exists independently of its recognition or “labelling.” Rather,
it is a picture of the possible relations that a mundane reasoner can see
as existing between (1) the response of the community and (2) what is
presumed to be real deviance – where this is defined by some method
other than the immediate response of the community.Thus, in a world
of real deviance, the community may succeed or fail to recognize it.
Where it fails, we have “secret deviance,” the “dark figure of crime.”
Where it succeeds, we have “pure deviance.”Where it “recognizes” devi-
ance when in fact there was none, we get cases of “false accusation.” In
the traffic court, the judge’s conception of the relational possibilities that
derive from the interaction between (1) law-enforcement officials and
(2) violators/non-violators of the law reproduces this typology.
For example, the judge “knows” that there is no one-to-one cor-
respondence between citations and offences that warrant a citation:
offences are increasing but some are undetected. These undetected
deviants are “secret deviants.” The judge “knows” that the police
make mistakes: they cite someone for an infraction they never com-
mitted. Such persons are “falsely accused.” Pollner’s critical point is
that both of these possibilities rest upon an assumption of objective
deviance or conformity.
Similarly, from the judge’s point of view, police discretion refers to
action taken by police that consists of not citing deviant persons.This
presupposes the independent character of the deviant. The judge’s
mandate is provided by the presumption of objective deviance and
the presumption that sometimes the identifiers of it “get it wrong”;
thus the judge is required to adjudicate on the relation between the
alleged crime and what really happened. Contestation and accusa-
tion make sense only if it is presumed that guilt and innocence are
independent of the methods by which they are determined. Similarly,
for a defendant to accuse the police of capriciousness or inconsist-
ency, it must be presumed that rule violations are objective stimuli
to which the police ought to respond in an objective – that is, cor-
responding – manner. With respect to evaluations of court verdicts,
the question of “correctness” presumes that the court’s judgment
corresponds with or fails to correspond with actual or real crime/

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conformity. According to mundane reason, some defendants, after

all, “get off ” and others who “get away with it” don’t even become
defendants.Their “crimes,” however, might well be deemed to warrant
the attention of realist criminology!
From within the crime-making enterprise, then, the mundane
or commonsense model is invoked as a method for describing the
enterprise – the enterprise conceives itself as confronting an order
of events whose character as deviant is presupposed as independent of
the response of the community. This is the same point that Garfinkel
(and Bittner) (1967) makes about police and psychiatric views about
crime and mental illness that we cited in Chapter 2. The participants
in the law-enforcement enterprise make use of a mundane model
of deviance or crime. From a theoretically consistent interpretative,
constitutive, sociological point of view, however, the use of the mun-
dane model is a constituent feature of the process through which
“deviance” or “crime” is realized as such.
It will be recognized that the mundane and the constitutive models
of deviance correspond to what we have alternatively characterized
as the “realist” and “interpretative” conceptions of crime, discussed in
Chapter 5. Furthermore, they and the confusion between them are
widely used in the field of criminology.Thus, the realist or mundane
model is used in generating the positivist critique of official statistics
on crime and criminals and in justifying self-report methodologies in
search of the “dark figure of crime,” as we argued in Chapter 2. Such
a model is used to warrant claims that the criminal justice system is
biased and inequitable in definitional activities.

Wieder: telling the convict code

Ethnomethodology draws our attention to the difference between
normative and interpretative approaches that studies of prisoner
subcultures exemplify. This difference becomes most apparent when
the ethnomethodological work of Wieder (1974) is compared to the
material on inmate subcultures examined in Chapter 5.Thus, despite
varying levels of subscription to interactionist premises, the work of
Clemmer, Sykes, Garabedian, Goffman, Jacobs and others imputes a
kind of causal role to the inmate culture. Each of these studies uses
the concept of the inmate or convict code to explain the behav-
iour of the prisoners. It is compliance to the code, these theorists

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argue, which accounts for their behaviour, in particular their devi-

ant behaviour, within the prison. Inmates and their actions are seen
to be governed by a set of rules. The inmates are conceptualized as
rule-followers. The code, then, becomes a professional sociologist’s
method for explaining behaviour that appears problematic to him or
her. In contrast, the work of Wieder (1974) is concerned not with
producing a sociological explanation of convict conduct in terms of
compliance with a code, but rather with examining how the inmates
themselves make use of the code in the course of their natural social
interaction.Wieder finds that the “code” as a corpus of rules or norms
is invoked in residents’ conversations with other residents and with
staff; in staff-initiated conversations with residents; and, interestingly
enough, in conversations among staff themselves, at the halfway house
where the research was done. The code is used as an interpretative
and as an interactional device, which is to say that the inmates are
able both to define and perform actions by making reference to the
code. Interestingly, one task they perform is that of accounting for
their own conduct in terms of conformity to the code. As such, the
prisoners are conducting themselves as “folk sociologists,” except that
they are not searching for social scientific explanation, but instead are
engaged in ordinary everyday social interaction.
It is this contrast between using everyday language and culture as
a resource in the construction of social scientific theories and treat-
ing the use of language and culture as a topic in its own right which
distinguishes the normative from the interpretative paradigm in soci-
ology (Wilson 1970). From an interpretative position (including, as
we said in the Introduction to Part II, both ethnomethodology and
the ideally interpretative form of symbolic interactionism), language
and culture are not determinants of social action; rather, they are
simply materials, tools, used in constructing social action.
Wieder (1974) lays out the report on his study of the convict code
in two parts. In the first part, he describes the regularities in resident
behaviour that sociologists would traditionally want to explain, and
provides a standard normative explanation in terms of compliance
with the maxims of the convict code. In the second part, however,
he conducts an ethnomethodological examination of the accounts
of their behaviour offered both by residents and staff in the course of
interaction and by such sociological explanations as he himself
provides in the first part.

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The regularities in the conduct of residents consist of six patterns

of deviance that Wieder (1974: 76–97) describes as follows:
1. “doing distance”;
2. “doing disinterest and disrespect”;
3. “passive compliance”;
4. “doing requests and demands”;
5. “doing unreliability as informants”;
6. “doing violations.”
Examples of the last, for example, include not showing up for “group,”
not looking for work, using drugs (the residents were all ex-narcotics
felons) and jumping parole. These patterns of deviance are massively
regular; are “independent of particular production cohorts” (Wieder
1974: 40; that is, are not specific to the particular residents inhabiting
the halfway house at any time); are chronic topics of staff concern,
being departures from the official order; and are seen as “caused”
by the code by all concerned, including sociologists. Wieder (1974:
115–117) describes the code itself as a set of eight maxims:
1. Above all else, do not snitch.
2. Do not cop out.
3. Do not take advantage of other residents.
4. Share what you have.
5. Help other residents.
6. Do not mess with other residents’ interests.
7. Do not trust staff – staff is heat.
8. Show your loyalty to the residents.
He then shows how the patterns of deviance may be explained by
regarding them as “caused by,”“governed by” or “following from” the
code maxims.Thus the first four patterns are explained by the eighth
maxim, the fifth pattern by maxims one, two, five, six and seven,
and the sixth pattern is “protected, supported, and encouraged by
the code, though . . . not directly prescribed” (1974: 119). Like Sykes
(1958) and Garabedian (1964),Wieder also shows how the categories
of convict/resident (for example, kiss ass, snitch, gorilla, merchant,
ball-buster, real man, square john, politician, outlaw) are also defined
in terms of the identities that the code makes available, and are in that
sense explained by it.
What makes his study ethnomethodological is the analytical step
which makes up part two. For the code is not simply an outside
sociological observer’s construct for explaining residents’ deviant

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conduct, but is used in the very course of interaction by all par-

ties to the setting as a way to perform actions and simultaneously
display what those actions are. (Recall this chapter’s opening point
about members making their actions “account-able.”) In Wieder’s
terms, “telling the code” is multi-consequential as a form of action
and multi-formulative of the (identity or meaning of) the action
itself, its immediate interactional context and the surrounding social
structures. For example, consider the utterance,“You know I won’t
snitch,” which “often terminated a relatively friendly line of conversa-
tion” (1974: 168) between staff or researcher (Wieder) and residents.
Wieder explicates its multi-formulative character as follows. It:

1. told what had just happened – e.g., “You just asked me to

snitch,”
2. formulated what the resident was doing in saying that phrase –
e.g., “. . . My answer is not to answer,”
3. formulated the resident’s motives . . . – e.g., “I’m not answering
in order to avoid snitching” . . . [and] . . . formulated the sensi-
ble and proper grounds of the refusal [the code],
4. formulated . . . the immediate relationship between the lis-
tener . . . and teller . . . [by invoking] the[ir] persisting role
relationships . . . – e.g., “For you to ask me that, would be asking
me to snitch,”
5. was one more formulation of the features of the persisting role
relationship.
(Wieder 1974: 168–169, emphasis in original)

“Beyond the multi-formulative character of this single utterance,

it was also a consequential move in the very ‘game’ that it formu-
lated” (Wieder 1974: 169).The resident, in saying “You know I won’t
snitch”:

1. negatively sanctioned the prior conduct of staff or myself . . .

2. called for and almost always obtained a cessation of that line of
the conversation . . .
3. [consequently] left me or staff ignorant of what we would have
learned by the question had it been answered . . .
4. signaled the consequences of rejecting the resident’s utterance
or the course of action it suggested. By saying,“You know I won’t

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 PART II: INTERPRETATIVELY TURNED

snitch” . . . the resident warned that the conversation would

turn nasty if staff or I did not retreat from the question . . . [and]
pointed to the consequences for himself if he were to go ahead
and answer the question . . . [which] could include beatings and
even death.
(Wieder 1974: 169–170, emphasis in original)

Thus, the code could be used for stopping a conversation or chang-

ing a topic, declining a suggestion or order, urging or defeating a
proposed course of action, and for accounting for one’s feelings or
actions in an acceptable way – that is, for demonstrating one’s com-
petence as a reasonable and moral person. The code was particularly
useful to staff as an excuse for the failure of house programs, as an
interpretation of residents’ complaints and, in general, as a method of
managing their circumstances.

“Telling the code” was useful to staff by converting problematic

acts of residents into instances of a familiar pattern, into acts which
were connected to plausible ends and other activities, into acts
which were rational or reasonable, and into acts whose occurrence
was not dependent on the specifics of any given staff–resident
encounter or relationship.
(Wieder 1974: 156–157)

In short:“The code, then, is much more a method of moral persuasion

and justification than it is a substantive account of an organized way
of life” (Wieder 1974: 175, emphasis in original).

Exercises
1. Without making it a “big” project, voice-record a snatch of con-
versation among friends or roommates or with family members
over a meal or during a car ride, about some crime-related topic.
Do it unobtrusively, or openly; it doesn’t really matter which.
Transcribe, say, a minute or so of the talk according to the models
shown in the chapter. See, in further reading, chapters 2 and 4 of
An Invitation to Ethnomethodology by Francis and Hester (2004).
Identify the actions each speaker is doing and what they are mean-
ing to say, in each turn of talk, as they are taken and understood by

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the next speaker in their turn.Then ask yourself what interactional

and conceptual resources the speakers and hearers (including your-
self) are using to see/hear what is being done and meant by what
is being said. Focus on membership categories and their predicates,
including the relational ones shared by the parties speaking, as well
as the sequential properties of the talk itself, and the logical gram-
mar of the topic itself. Notice and note to what extent speakers
tie in what they are saying to matters that are local and practical
to themselves, those others present and their ongoing activities
and relationships. That is, whether the topic is Donald Trump on
Mexicans, cop killings or sex assaults on campus, look for how it is
turned into “something for us.” Reflect on how crime is thereby
“social-ized.”

Review questions
1. What do you understand by “the rule of practical circumstances,”
and how is it related to the “etcetera clause”?
2. What do Lynch et al. (2008) mean by “the administration of
objectivity”?
3. How, according to Halkowski’s (1990) study, is role an interactional
device?
4. With reference to Wieder’s study (1974) of the convict code, how
do you understand the difference between the idea of the social
actor as a rule-governed creature and the idea of the actor as a
rule-using creature?

Further reading
Francis, David and Stephen Hester. 2004. An Invitation to
Ethnomethodology: Language, Society and Social Interaction. London,
UK: Sage. Look again at Chapter 2 for the three-step methodology
for EM/CA inquiry, then see how it is applied to conversation in
Chapter 4.
Eglin, Peter and Stephen Hester. 2003. The Montreal Massacre:
A Story of Membership Categorization Analysis.Waterloo, ON:Wilfrid
Laurier University Press. The book analyzes how the stories of
crime, horror, tragedy, gun control, the killer, violence against
women and the killer’s story, together with the event’s functional

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 PART II: INTERPRETATIVELY TURNED

consequences and causal explanation, were assembled using the

resources of membership categorization analysis by journalists and
other parties to the massacre in two English-language newspapers.

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PART III

Politically
challenged
 Introduction

The philosophers have only interpreted the world, in various

ways; the point is to change it.
(Marx, Theses on Feuerbach, XI, 1969 [1845])

The second of the challenges to professional sociology “positively

undertaken” is primarily political in character. Like the challenge
from the “interpretative turn,” the political critique really took off
in the late 1960s and early 1970s. Sociologists began to see pluralism
where they had previously seen uniformity, heterogeneity instead of
homogeneity, conflict rather than consensus. Much of the critique
was motivated by the view that Parsonsian “structural functional-
ism” was politically conservative in consequence, if not intent, and
needed to be challenged from the political left. These changes in
the discipline were almost certainly related to changes in the wider
society. Thus, as conflict in society became more visible, so sociolo-
gists incorporated a concern with it into their theorizing. What can
be called “sociology’s abiding trilogy,” class, race and gender, while
of long-standing interest as important social phenomena, owe their
emergence as professional sociologies in their own right to the quasi-
revolutionary tumult that erupted on the campuses and streets of
university cities across the United States, Europe and elsewhere
in that turbulent decade. A generalized anti-authoritarian and lib-
eratory impulse was unleashed that was anti-war, anti-imperialism,
anti-capitalist, anti-police, anti-racist, anti-patriarchy, anti-psychiatry,
anti-conservative, anti-authoritarian in general. Sex, drugs and rock
’n’ roll came of age as hallmarks of youthful anti-establishmentari-
anism (see Mooney 2012: 15). Social constructionism and symbolic

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interactionism, the subjects of Chapters 4 and 5 respectively, were

themselves partly infused with this spirit.
The revolts were themselves spawned by and further fomented
social movements that had their own long, if discontinuous, histo-
ries. The class struggle, the African-American civil rights movement
and “black power,” the women’s movement and the anti-war move-
ment gave rise to scholar-activists (like Angela Davis, Julian Bond,
Germaine Greer, Noam Chomsky) who fought for social change on
the streets and theorized about it in their academic offices, classrooms
and writings. Sociology, which expanded significantly on university
campuses at this time, was perhaps the principal site for reflecting, and
reflecting on, these momentous movements for social change. Before
long, though not without academic opposition, it was possible to talk
of Marxist Sociology (class), Feminist Sociology/Women’s Studies
(gender) and African-American Studies or critical race studies or
anti-racist or neocolonial perspectives (race) as distinctive sociologi-
cal or social-theoretical configurations in and outside the discipline.
Class, gender and race became institutionalized sites of sociologi-
cal theorizing with their own characteristic points of view. Later,
of course, the “abiding” trilogy became the “expanding” trilogy as
other identity categories (sexual orientation, ethnicity, ability . . .)
were added to the mix.

Emancipatory sociology
If, roughly speaking, before the 1960s, professional sociologists had
approached class, gender and race as forms of social stratification
that worked to bind a society together by integrating its members
around a concept of their place in society, from the 1960s, that view
was overturned as practitioners put their theorizing at the service of
emancipating the social category in question. Quite explicitly, theory
and praxis were seen and advocated as going hand in hand.The sepa-
ration of science from politics that Weber (and Durkheim) famously
advocated, and which, in any case, was the accepted view of the
matter in the natural and social sciences, was criticized and rejected.
Those who defended it were seen as ideological supporters of the
status quo. That would include us, the authors of this book.
In the history of social thought, it was, of course, Marx and the
Marxists who had always insisted on the unity of theory and praxis,

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INTRODUCTION

as famously expressed by Marx in the epigraph for this Introduction.

Thus, whether explicitly deriving their theoretical approach from
Marxism or not, the emancipatory sociologies of class, race and gen-
der that took off in the latter part of the twentieth century owe their
political and intellectual inspiration to Marxism. In borrowing the
title “Emancipatory Sociology” from Cuff et al. (2016: 357–384),
we depart from their treatment by including Marxism rather than
giving it its own separate section in the book; they confine their
treatment to feminism, queer theory and postcolonialism, while
acknowledging that “the critique of social science taken up by the
‘new’ emancipatory social theories was inherited in large measure
from the ‘old’ one: Marxism” (2016: 359). Accordingly, we defer to
them, and to our own first edition of this book, by devoting consid-
erably more space to Marxist sociology and criminology than to the
feminist and neocolonial varieties. Furthermore, we also adopt their
insightful three-stage model of the phases through which the theo-
rizing of identity politics has progressed.These stages are inclusionist,
separationist and transgressive.
In the inclusionist phase, emancipatory theory

is driven by a concern to break down the barriers between [domi-

nant and subordinate] identities, in order to promote social and
moral equalization. It does so by making a strong appeal to empiri-
cal facts. The exclusion of subordinate identities from the society’s
major institutions is shown to be arbitrary and unjustified, based
on assumptions that have no factual foundation.
(Cuff et al. 2016: 362, emphasis in original)

In the separationist phase, striving to be included is rejected as a fool’s

game;“emphasis is now on the differences between identities, and oppo-
sition to majority values” (Cuff et al. 2016: 362, emphasis in original).
Only members of the identity group really understand their experi-
ence of subordination, such that theorizing about it can be properly
done only from within. But since withdrawal from mainstream society
is a very difficult position to sustain, its theoretical justification comes
under critical scrutiny, leading “to a quest for a more nuanced theory,
one that can inform a broader-based politics” (2016: 363).
Thus comes about the third, transgressive phase of emanci-
patory theory, which largely coincides with the incorporation of

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poststructuralist and postmodernist theories into identity politics.

Accordingly, we leave its explication to Part IV of the book.

Crime
Theorizing aside, it may be said that the empirical motivation for
the critical revisionism entailed by the political challenge posed by
self-styled “radical sociology,” when addressed to the subject of crime,
came from observations such as these:

According to the official statistics for England and Wales and stud-
ies of officially convicted offenders, the official picture of crime
is one of a criminal population compris[ing] mainly . . . young
working-class males whose criminal activity is concerned chiefly
with property, violence, and a wide range of offences associated
with the automobile.
(Phillipson 1974: 100)

This is the picture for the United Kingdom in the early 1970s. From
the United States, we have the following popular/official picture of
the typical criminal in 2010:

The person is, first of all a he . . . Second, he is young – nearly half

(42 percent) of men arrested for all crimes were under the age
of 25 . . . Third, he is predominantly urban . . . Fourth, he is dis-
proportionately black – Blacks are arrested for violent crimes at a
rate more than three times that of their percentage in the national
population . . . Finally, he is poor.
(Reiman and Leighton 2013: 69)

As documented by Reiman (with Leighton in the more recent edi-

tions), this picture of the typical criminal in the United States has
remained the same since the 1970s and throughout all 11 editions of
his (their) book (see also Kappeler and Potter 2005: 33–34). It clearly
has much in common with the picture in the UK, and is repeated in
Canada and elsewhere.
In other words, the popular/official picture of crime is one that
supplies grist for the mill of theoretical explanation in terms of class
(poor), gender (he) and race (black/aboriginal). We take them up in

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INTRODUCTION

turn in Chapters 7, 8 and 9. It is also characteristic of the field that

monographs, expository texts and collections frequently include
all elements of the expanding trilogy (for example, Comack 2014;
Comack and Balfour 2004), the latest addition being human status
itself as animals find their place on the ark (Berry 2012: 238).

Grammar
At the end of a lecture titled “The MIR Membership Categorization
Device” that Sacks gave in 1964 and 1965, he speculates about what
he calls “two-set classes” or, in the last paragraph, “two-class sets.”
We opt for the latter expression. He’s referring to the class, gender,
race (and age) binaries. Although he wraps this line of thought about
“membership categorization devices” in demurrals, he also allows
that these classes of categories do seem to have descriptive validity
and, in particular, that the MIR device they instantiate does provide
a “basic mechanism of social control” that could be “something that’s
of theoretical importance in sociology” (Sacks 1992a: 48). Given their
obvious relevance to the subject matter of Chapters 7, 8 and 9, we
quote the passage in full in Box 3.To explain the acronym MIR:“‘M’
stands for membership, ‘I’ stands for inference-rich, and ‘R’ stands for
representative” (Sacks 1992a: 41; Schegloff 1992a: xli). See Box 3.

BOX 3 Two-set classes or two-class sets

Finally, let me offer something to consider. I have no idea whether it’s so. It sounds altogether
too smooth to me, and nonetheless it also looks, on the face of it, to be very descriptive.
Many of these classes are, or can be built as, two-set classes. Sex is a two-set class. Race
can be formulated as a two-set class; for example, non-whites and whites. And there’s rich
and poor, old and young, etc. The question I’m asking is, does it matter, for the kinds of
things that can be done with these classes, how many sets they contain? Two-set classes
would seem to have certain kinds of attractions. For example, they’re tremendously easy
to compare. With a two-set class you can apparently make an observation of comparative
lack much more easily than otherwise. And I wonder, for example, whether many kinds of
conflict and perhaps most sorts of revolutions occur by virtue of these two-set classes; as
we say, the haves and the don’t haves. Under such a view, you can see all sorts of different
things being fitted to the notion of the haves and don’t haves. Marx can be seen to have

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this two-set class. The movement for equality of women can be seen to be using it. And
the Negro revolution as well.
To establish a two-set class you might start with one group who you locate as the group
in power, or the haves. Give them a name: Whites, men, the old. And then assimilate all
the others to some predominant feature of those others; for example, a lot of them are
Negro so you call it “the black revolution.” But if you go through the ways revolutions tend
to organize themselves, or the ways movements tend to organize themselves, or notice
that games – which are indeed model conflict situations – are so often either two-party
systems or variants of two-party systems, it begins to look as though formulating in terms
of two-class sets is a method of doing things. Whether this is so or not, I haven’t the vagu-
est idea and it needn’t be taken with any seriousness. But what I said earlier, about this
device as a basic mechanism of social control is, I think, important. If we can come to see
what’s involved in it, I think we can see something useful, and something that’s of theoretical
importance in sociology.
Source: Harvey Sacks (1992a: 47–48), “Lecture 6: The MIR Membership Categorization Device.”

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 7 Class

It will never be a good world while knights and gentlemen make

us laws, that are chosen for fear and do but oppress us, and do not
know the people’s sores.
(From pamphlet of English seventeenth-century radical
democrats [Hill 1975, cited in Chomsky 1991: 358])

Introduction
There is a good reason why meat is not murder in capitalist society,
and that is because the institutionalized and industrialized killing of
animals for food for the market does not interfere with the orderly
exchange of labour for wages, nor violate the property rights of either
party – capitalist or worker – in the exchange. On the contrary, the
institutionalized and industrialized killing of animals for food for
the market is organized in and as the orderly exchange of labour
for wages. Notice that the language of analysis has changed from the
previous chapters: “capitalist society,” “market,” “exchange,” “labour,”
“wages,” “property rights,” “capitalist” and “worker” are concepts of
political economy, the home of Marxist sociological analysis. There
is, we think, no better way to introduce Marxist analysis than via an
iconic case of it, namely a passage from the Communist Manifesto. Not
only is the Manifesto perhaps the primordial Marxist document, the
selected passage is quite remarkable for its prescience. It’s as though
Marx and Engels were referring to the neoliberal, corporate-capitalist
“globalization” of our times, and not that of the early industrial capi-
talism of theirs (pre-1848). Accordingly, we invite you to read Box
4 (see also Panitch 2001, especially p. 121). Then consider what was

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BOX 4  Marx and Engels on “globalization”

Modern industry has established the world market, for which the discovery of America paved
the way . . .
. . . the bourgeoisie has at last, since the establishment of modern industry and of the
world market, conquered for itself, in a modern representative state, exclusive political sway.
The executive of the modern state is but a committee for managing the common affairs
of the whole bourgeoisie.
The bourgeoisie, historically, has played a most revolutionary part.
The bourgeoisie . . . has resolved personal worth into exchange value, and in place
of the numberless indefeasible chartered freedoms, has set up that single, unconscionable
freedom — free trade. In one word, for exploitation veiled by religious and political illusions
it has substituted naked, shameless, direct, brutal exploitation . . .
The need for a constantly expanding market for its products chases the bourgeoisie over the
whole surface of the globe. It must nestle everywhere, settle everywhere, establish connections
everywhere.
The bourgeoisie has through its exploitation of the world-market given a cosmopolitan
character to production and consumption in every country.To the great chagrin of reaction-
ists, it has drawn from under the feet of industry the national ground on which it stood. All
old-established national industries have been destroyed or are daily being destroyed . . . In place
of the old local and national seclusion and self-sufficiency, we have intercourse in every
direction, universal interdependence of nations. . . .
The bourgeoisie, by the rapid improvement of all instruments of production, by the
immensely facilitated means of communication, draws all, even the most barbarian, nations
into civilisation. The cheap prices of commodities are the heavy artillery with which it bat-
ters down all Chinese walls, with which it forces the barbarians’ intensely obstinate hatred of
foreigners to capitulate. It compels all nations, on pain of extinction, to adopt the bourgeois
mode of production; it compels them to introduce what it calls civilisation into their midst,
i.e., to become bourgeois themselves. In one word, it creates a world after its own image.
Source: Marx and Engels (1987 [1848]: 23–25, emphasis added): The Communist Manifesto.

driving the support for Bernie Sanders and Donald Trump in their
2016 US presidential campaigns, not to mention the “success” of
Brexit in the 2016 UK referendum about whether to leave or remain
in the European Union.
But then where and how does crime enter into Marxist analysis?
We invite you now to read a sample of contemporary erudition in
the form of a much-condensed version of Jeffrey Reiman’s (2013)

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terse and faithful derivation of a critical analysis of criminalization

grounded in the basic terms of Marx’s analysis of the exploitation and
domination of the working class in capitalism. See Box 5.
The force of Reiman’s succinct Marxian analysis of criminalization
is captured in part in these words of Howard Zinn (1970, read by
Matt Damon): “Our problem is that people are obedient while the
jails are full of petty thieves, and all the while the grand thieves are
running the country.” In 2016, we may adapt and extend Zinn’s apo-
thegm as follows:“our problem is that the jails are bursting with petty
thieves, and all the while the grand thieves are running the world, but
the people are increasingly restless.”The evidence of “restlessness” has
been accumulating since Zinn wrote. At the time of writing, it was

BOX 5  Reiman on Marx’s analysis of criminalization in capitalist society

Marx [1967 (1887)] says that capitalism is a system of “forced labour – no matter how
much it may seem to result from free contractual agreement” [Marx, Capital, vol. 3,
p. 819] .  .  .  [A]s long as it occurs in a context in which a few own all the means of production,
those who do not own the means of production will be compelled to give up some of their
labour without compensation to those who do. Thus, Marx [1967 (1887)] describes the
wage-worker as a “man who is compelled to sell himself of his own free will” (Capital, vol.
1, p. 766) . . . [I]n capitalism, the state uses overt force to protect private property . . . Thus
the state can treat capitalists and workers as having the same or “equal” property rights
over what they own. It just turns out that what capitalists own is means of production, and
what workers happen to own is the muscles in their arms . . .
1. Crime, then, is any violation by one individual of the property rights of another in what-
ever he owns, including his body [because bodily actions are what workers trade with
capitalists for their wages].This explains why the criminal law is primarily directed against
acts of violence, theft and fraud . . .
2. This account also tells us what we are not likely to see as crime in capitalist society,
mainly, exercises of the power inherent in the ownership of property itself. Thus, we
will not generally find that death due to preventable dangers in the workplace will be
taken as murder because that would assume that the worker was somehow forced into
the workplace by the power inherent in his boss’s private ownership of the means of
production. Because that is just the power that is invisible in capitalism, the worker is
taken as freely consenting to his job and thus freely accepting its risks.
Source: Jeffrey Reiman (2013: 227–229, 235–236): “Appendix 1:The Marxian critique of criminal justice.”

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being displayed in the support for Trump and Sanders and Brexit, and
was being explained as the result of

the new world economy . . . structured on gated citadels of pros-

perity and gaping joblessness in between, [and characterized by]
“a terrible shortage of homes, an impossibly precarious job mar-
ket” and residents boasting “a mixture of deep worry and often
seething anger.”
(Kendzior 2016: n. p., citing John Harris of The Guardian)

After shifts in the global economy in the 1970s, the economic and
geographic inequality endemic to capitalism deepened and sharp-
ened. In the aftermath of the 2007–2008 crash, when Capitalism Hit
the Fan (Wolff 2013), inequality dramatically increased even further,
to the point that “in [2016] just [8] individuals had the same wealth
as 3.6 billion people – the bottom half of humanity,” while “a global
network of tax havens further enables the richest individuals to hide
$7.6 trillion” (Oxfam 2016: n. p., updated by Oxfam 2017). If capi-
talism was already global long before Marx, the current version that
we know as “globalization” is markedly more so. It has led some to
speak of a “transnational” class of economic actors; namely, the huge
corporations that effectively own the world and run it through both
national governments and international institutions (George 2015;
Harris 2016). We should not be surprised, then, to find equivalent
“globalization” in all aspects of criminalization, and consequently
in criminology. In recent years, Routledge, for example, has pub-
lished handbooks in International Criminology (Smith et al. 2011) and
International Crime and Justice Studies (Arrigo and Bersot 2014), as
well as the International Handbook of Green Criminology (South and
Brisman 2013) that positions the environment in a global context.
These are matters we take up in Chapters 11 and 12. The questions
remain as always, however: what are regarded as the crimes, and who
are regarded as the criminals?
Marxism has its own very particular way of framing, studying and
answering these two fundamental questions. Given the inevitable limi-
tations of a textbook treatment in the face of a formidable amount of
scholarly research in Marxist studies generally, including Marxist sociol-
ogy and Marxist criminology, we will try to stick to essentials in what
follows. Our aim is to bring out what is distinctive about the Marxist

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approach rather than trying to cover the field. Accordingly, we work

through Marx’s theory of society, an abbreviated history of Marxism’s
twentieth-century theoretical development, the theoretical framework
of Marxist sociology, the interrelated stances and core questions char-
acterizing Marxist criminology, and summaries of representative works
on crime creation, policing, sentencing and imprisonment. We then
turn to consider the conceptual and interactional grammar of class in
Marxist criminology before concluding with a fairly lengthy statement
of Marxist criminology’s distinctive functionalism.

Marx’s theory of society

In the Preface to A Contribution to the Critique of Political Economy,
Marx (1970 [1859]) outlines the rudiments of his approach as follows:

The general result at which I arrived and which, once won, served
as a guiding thread for my studies, can be briefly formulated as
follows: In the social production of their life, men enter into defi-
nite relations that are indispensable and independent of their will,
relations of production which correspond to a definite stage of
development of their material productive forces. The sum total of
these relations of production constitutes the economic structure
of society, the real foundation, on which rises a legal and political
super-structure and to which correspond definite forms of social
consciousness.The mode of production of material life conditions
the social, political, and intellectual life process in general. It is not
the consciousness of men that determines their being, but, on the
contrary, their social being that determines their consciousness.
(Marx 1970 [1859]: 3)

This passage contains most of the key concepts of Marx’s approach;

namely, “forces of production,” “relations of production,” “legal and
political super-structure” and “social consciousness.” Together, these
concepts describe a model of the organization of society in which,
from the bottom up, the material productive forces shape the rela-
tions of production upon which arise the institutions comprising
the legal and political super-structure topped by a corresponding
social consciousness. To analyze the structure of a society in this way
is to describe its political economy. According to Carver (1982), and in

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contrast to crudely deterministic versions of Marxism, the relations

among these “levels” are not causal, but in part conceptual – that
is, matters of logical entailment or definition – and in part those of
“structural correspondence.”This is the interpretation we adopt here.
The forces of production are the means by which goods and ser-
vices are produced in society. These means include what professional
economists describe as the “factors of production”: land, labour, capi-
tal, organizational skills and technology. The relations of production are
those forms of association which people take up in order to make
their living by producing goods and services. There is no mystery
about this. Most of us work for employers; thus “employer–employee”
is a “relation of production.” Production could be, and in some cases
is, organized in terms of other relations among the parties. Instead of
one person or a few persons being the employer(s) of lots of other
people who take orders from the employer(s), production could be
organized co-operatively and democratically. Imagine that! According
to Marx’s theory, relations will differ according to the stage of devel-
opment of the forces of production. Social classes, for Marx, are the
most significant relations of production. Strangely, but interestingly,
they are nowhere defined explicitly by Marx, but Giddens (1971:
37) asserts that it is “relatively easy to infer from the many scattered
references which Marx makes in the course of different works” that:

Classes are constituted by the relationship of groupings of indi-

viduals to the ownership of private property in the means of
production.This yields a model of class relations which is basically
dichotomous: all class societies are built around a primary line of
division between two antagonistic classes, one dominant and the
other subordinate. In Marx’s usage, class of necessity involves a
conflict relation.
(Giddens 1971: 37)

Thus, for example, these groupings may be related in the sense that
one may own the bulk of land and especially capital while the other
may possess only their labour power. Insofar as the means owned or
possessed by each grouping are jointly required for production, then
the two classes may be said to be interdependent. But insofar as the
political domination of the one is built on the economic exploitation
of the other through the extraction of surplus value (i.e. robbing the

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worker of the full value of the product or service s/he produces),

then the relationship is necessarily one of conflict. This describes the
basic situation in capitalist society, the kind of world we live in today,
so named because capital is the chief means of production.
The forces of production and the relations of production, taken
together, comprise the economic “sub-structure” or “mode of produc-
tion” in a given society. On this base is erected the legal and political
super-structure. This consists of the whole range of social institu-
tions – the state, including the legal system (laws, police, courts and
corrections), other political organizations (e.g. political parties), the
education system, religion, the family, the elite and mass media,
the means of cultural expression, including the arts, organized sports,
etc. Expressed in and through these institutions are the ideas, val-
ues and beliefs that comprise the social consciousness or ideology of
society at a given stage of its development. The mode of production
is said to shape or condition the nature of the super-structure and
social consciousness, while the content of the latter (i.e. ideology)
is said to legitimate the underlying mode of production. As Marx
and Engels put it, in The German Ideology (1970 [1845/1846]: 64):
“the ruling ideas are nothing more than the ideal expression of the
dominant material relationships, the dominant material relationships
grasped as ideas.”

The ideas of the ruling class are in every epoch the ruling ideas,
i.e. the class which is the ruling material force of society, is at the
same time its ruling intellectual force.The class which has the means
of material production at its disposal, has control at the same time
over the means of mental production, so that thereby, gener-
ally speaking, the ideas of those who lack the means of mental
production are subject to it.
(Marx and Engels 1970 [1845/1846]: 64, emphasis in original)

On the basis of this theory, then, it would be expected that the

criminal law, for example, thought of as a collection of ideas – that
is, ideology – would express the “dominant material relationships”;
that is, would reflect and serve the interests of the ruling class, the
owners of the prevailing material means of production. Long before
Marx and industrial capitalism, seventeenth-century radical demo-
crats in England appreciated full well that the landed aristocracy – the

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pre-capitalist ruling class – made the laws to suit themselves with

scant regard for “the people’s sores,” as eloquently expressed in this
chapter’s epigraph.

Neo-Marxism or Western Marxism

Marx was not himself, of course, a professional sociologist. Though
Comte used this neologism – “sociology” – in 1839 in one of the
volumes of his Philosophie positive and J. S. Mill adopted it in 1843
in the final book of his Logic called On the Logic of the Moral Sciences,
“[i]t was not, in fact, till more than half a century had passed that
the word could be said to be accepted as part of the international
vocabulary of the learned world” (Branford 1903: 148). By then
Marx, whose Communist Manifesto (with Engels) had appeared in
1848 and his Capital in 1867 (first English translation 1887), was
dead (1883). He was also, he said, not a Marxist! But his work
was taken up by communist revolutionaries who went on to change
the world (Russia in 1917, China in 1949, Cuba in 1959). Marxism
as a political philosophy, social theory and would-be mass movement
took off in the 1880s. It challenged and provided an alternative to
capitalism throughout the twentieth century, but continues more as
theory than practice in the present day.This is largely because, as Cuff
et al. (2016) explain:

The Marxist tradition in European sociology starts with a dilemma:

if Marx was right, then a revolutionary transformation of society
should have taken place.The contradictions at the heart of capital-
ism would have resulted in either the rising up of the working class
to destroy it or it collapsing as a consequence of economic shocks
(or both). This did not occur.
(Cuff et al. 2016: 167)

The revolutions that did take place occurred not in capitalist socie-
ties, but in peasant ones. Since early in the twentieth century, then,
Marxist thought has been preoccupied with revising Marxian theory
to account for this failure.
In very general terms, the solution has been sought in an enhanced
role being given to culture (ideas, ideology) in the theory to explain
why people in general and workers in particular fail to see where their

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real interests lie, and thus why they fail to take the action required for
their own emancipation. Emancipation from what? From the shackles
of what the first industrialized workers, with deliberate reference to
slavery itself, then being abolished (in the 1820s), called “wage slav-
ery”; that is, taking orders in exchange for a pittance. The argument
is that they are victims of “false consciousness” propagated through
the ideas (culture) disseminated in capitalist society by the “owners
of the means of mental production” (the media) who just happen to
be “the owners of the means of material production” (capital) (Marx
and Engels 1970 [1845/1846]: 64). For example, at the time of writ-
ing, General Electric owned 49 per cent of NBCUniversal, which
includes the NBC television network in the United States.This prob-
lem was the preoccupation of Western Marxism through the first half
of the twentieth century, culminating in the “critical theory” of the
Frankfurt School; some of its members, forced to flee Germany under
Nazism, brought it to the United States shortly before and after World
War II (1939–1945). This train of thought in Marxism later gave rise
to the field known as “Cultural Studies,” which was much taken up
with “communication” and “media” as vehicles of ideology.
If “Western Marxism” was almost entirely a European affair, it
was because a left-inspired organized labour movement had been
crushed in the United States in the first three decades of the twen-
tieth century by state force. No labour party survived in the United
States. Instead, there is effectively a single party in the United States,
what Noam Chomsky calls the “business party,” with two factions,
the Democrats and the Republicans.1 It was not till the 1960s, then,
as part and parcel of the intellectual ferment that was an intrinsic
part of this revolutionary moment, that Marxist sociology, drawing
also on the Frankfurt School’s transplanted critical theory, took off
there. If it is true that large-scale class struggles bent on overturning
capitalism have largely, but not entirely, disappeared from the social
arena, this has not prevented class analysis from continuing to have a
presence in sociological theorizing (see Atkinson 2015). It has also
not meant that widespread social protest has disappeared from the
scene (see the end of this section). Even so, it has been increasingly
the case that practitioners of class analysis have come to supplement
the consideration of class with an appreciation of the importance
of other dimensions of conflict, notably race and gender, but also
religion, ethnicity and nationalism, and then sexual orientation and

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disability and now human/non-human status (Berry 2012). In this

way, of course, such work cedes ground to Max Weber’s view that
conflict in society is not just a matter of classes, but involves what
he calls status groups and political parties as well (Cuff et al. 2016:
100–101). From these developments, it has been but a short distance
to the new world of identity politics, intersectionality (Hill-Collins
and Bilge 2016; Berard 2014), furious internecine debates within the
academic left and latter-day attempts to save the Marxist project fol-
lowing the collapse of the Soviet Union in 1989–1991 (see Box 6;
also, for example,Veltmeyer 2011; Boron 2014).
Thus, more recent work has tended to speak of “structures of
dominance” in which capitalism (class), patriarchy (gender) and neo-
colonialism (race) are treated as at least analytically separate domains
of power, among which the exact empirical relationship at any his-
torical moment remains to be analyzed. Pushing this further, one
arrives at the “complementary holism” of the South End Press col-
lective/network (Albert et al. 1986: 21) in which the standard series
of monist treatments of the different types of domination – classism
by Marxism, sexism by feminism, racism by “nationalism,” politi-
cal authoritarianism by anarchism – is abandoned in favour of an

BOX 6  Capitalism as a totalizing process

Responding to the fragmenting, de-centring propensity of poststructuralist identity politics,

Ellen Meiksins Wood writes:

This is a serious business. Capitalism is constituted by class exploitation, but capitalism

is more than just a system of class oppression. It is a ruthless totalizing process which
shapes our lives in every conceivable aspect, and everywhere, not just in the relative
opulence of the capitalist North. Among other things, and even leaving aside the sheer
power of capital, it subjects all social life to the abstract requirements of the market,
through the commodification of life in all its aspects. This makes a mockery of all our
aspirations to autonomy, freedom of choice, and democratic self-government. For social-
ists, it is morally and politically unacceptable to advance a conceptual framework which
makes this system invisible, or reduces it to one of many fragmented realities, just at a
time when the system is more pervasive, more global than ever.
Source: Ellen Meiksins Wood (1990: 79): “The uses and abuses of ‘civil society’.”

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approach in which “economic, political, kinship and community

spheres . . . may be usefully characterized by a predominant activity
and particular defining social relations and group structures – each
entwined with the others in a complementary holist fashion.” (1986: 21,
emphasis in original). In a remarkable irony, what started out as a
theoretical development intended to depart from and be a critique of
Parsons’s functionalist conception of the social system (Parsons 1951;
Cuff et al. 2016: 89–92) comes full circle to embrace the very same
model – AGIL recidivus.
If Marxist sociologists sought an enhanced role for culture (ideology)
in the theory to explain the absence of revolutionary social conscious-
ness among the workers (proletariat), they also came to develop an
enhanced and more nuanced role for the state (in the legal and political
super-structure) than Marx had envisaged in his theory of capitalist soci-
ety. As we saw in Box 4, in the Communist Manifesto, Marx and Engels
famously characterize the state in capitalist society as the “executive
committee of the bourgeoisie” (where “bourgeoisie” means “capital-
ists,” the owners of the means of production). What executives do is
carry out the orders of the bosses who are the owners. In this view, the
state – meaning all three branches, but particularly the leader of the
government and his or her cabinet who together shape policy – fol-
lows the orders handed to them by representatives of the capitalist class
(instead of executing the mandate given them by the people in elec-
tions). In order to run for office and have a political career, politicians
need large amounts of money. Capitalists (owners of business) provide
the money, but expect the politicians to bring in legislation that will
benefit them. Put another way, the government is here conceptualized
as the “instrument” of capital. For examples, consider the role of money
in any US election (Nichols and McChesney 2013; Palast 2012), the
influence of the Business Council on National Issues (subsequently
the Canadian Council of Chief Executives) on the Liberal government
of Canada in the 1990s (Dobbin 2003, cited in Eglin 2013b: 25), and
the many such cases reviewed by Tariq Ali (2015) in the UK under the
Blairites.The state and the capitalists are said to comprise a single ruling
class with common interests, often common social backgrounds, and
current social, economic and cultural ties – in short, they comprise a
“power elite” (Mills 1956; Miliband 1969).
As with the prediction that the contradictions of capitalism would
lead to its overthrow or collapse, this “instrumentalist” view of the role of

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the state in Marxist theory didn’t fully match the facts. Not all actions
of government and the judiciary were seen to favour directly the
immediate interests of capital.The social legislation which began in the
mid-nineteenth century that shortened the working day and in other
ways regulated the health and safety conditions of work in the factories
of manufacturing industry, and that came to encompass state pensions,
unemployment insurance and welfare provision, public education and
health care, culminated in the post-World War II “welfare state” when,
in the words of then British Prime Minister Harold Macmillan, workers
“never had it so good.” How was Marxist theory to account for this?
The answer was the “structuralist” view of the role of the state.
Structuralist accounts reveal the extent to which the state develops
interests of its own, acts relatively independently of the capitalist class
and, indeed, becomes a site on which the contradictions of capital-
ism – for example, the built-in conflict between capital and labour
– are themselves played out. It is said to enjoy “relative autonomy.”
This kind of emphasis is captured through the frequent use of the
expression, “reproducing capitalist social relations,” to describe the role
of the state in managing class conflict. It also recognizes the extent
to which apparent consensus and working-class consent prevail in
what Marxist analysts would still want to call “class-divided societies”
(Standing 2014). Studies of this type are indebted to the structural
Marxism of Antonio Gramsci, Louis Althusser and Nicos Poulantzas
and the poststructuralism of Foucault (Scraton 1985): for example,
Gramsci’s “concept of hegemony . . . demonstrates how dominance
can be achieved and maintained without the use of direct coer-
cion” (Scraton 1990: 15; see Beckett and Sasson 2000 in section on
“Policing the dangerous classes”). See Box 7.
The conceptual innovation in the structuralist conception consists
of increasing the number of “functions” the state performs for capital
from one to three.These functions are accumulation, legitimation and
coercion. Accumulation retains the original idea of Marx and Engels
that the state, as the instrument of capital, passes laws and otherwise
administers the public purse in ways that favour business.This is done
through the tax system, through grants and loans to corporations and
in a myriad other ways.The new element (even though it was clearly
foreshadowed in Marx’s work) is the emphasis on the role of legitima-
tion, of “selling” to the public in general, and workers in particular,
the idea that they live in the best of all possible worlds. Part of the

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BOX 7  A note on structural Marxism

The meaning of the term “structural” in “structural Marxism” derives from structural lin-
guistics (Ferdinand de Saussure) where it refers to the system of contrasts (of sounds
and sense) from which any sign gets its meaning, and which then comprise “an underlying
framework of language and meanings whose symbolic systems shape up or ‘structure’ what
individuals can do, albeit unconsciously and unbeknownst to them” (Cuff et al. 1990: xv). We
may say that it structures people’s consciousness or thought processes, or at least the con-
tents of our thought, and thus explains the emphasis given to ideology in structural Marxist
theory. In partial contrast, “structural” in “structural conflict perspective” refers to “how the
organization of the whole society shapes or structures individual behaviour” (Cuff et al.
1990: 128–129, xv; see Williams 1985: 301). The two uses are not unrelated as the ideas
of de Saussure in linguistics were influenced by those of Durkheim in sociology (Cuff et al.
2016: 191–192). Poststructuralism is the movement in philosophy and the human sciences
that takes its point of departure from the notion of structure to be found in structural lin-
guistics and, subsequently, the structural anthropology associated with Claude Lévi-Strauss.
We take it up in Part IV along with Beata Stawarska’s (2015) dramatic revisionist account
of de Saussure’s structuralism as linguistic phenomenology.

“selling” is the provision of the above-mentioned welfare measures

or social programs to take the edge off the oppressive and exploit-
ative conditions that capitalist competition, left to itself, inevitably
produces in the race to the bottom: “to allow the market mechanism
to be sole director of the fate of human beings and their natural
environment . . . would result in the demolition of society” (Polanyi
1957 [1944]: 73; see also p. 3). And part of it is what is properly called
propaganda, the propagating of ideas through all media of commu-
nication that, on the one hand, “we are here for you,” protecting you
from enemies both domestic and foreign; and that, on the other hand,
to quote a later British prime minister (Margaret Thatcher), “there is
no alternative.” Only when legitimation fails is recourse to be had to
the third state function – namely, coercion – the use of force. As can be
seen, although it also means instituting practical measures, a signifi-
cant part of legitimation involves trafficking in ideas, the bread and
butter of the public relations and communication industries (Carey
1997).Thought of as ideology or propaganda, it is thus an expression
of the importance that culture came to have in Marxist theory, and
explains the rise of cultural studies, as we have said.

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The golden age of welfare state capitalism can be said to have

lasted from the end of World War II in 1945 to the mid-1970s, only
to be replaced by the “neoliberal” phase of capitalism that has con-
tinued from the late 1970s through to the present (2016), as we
stated in the introduction to this chapter. Very broadly speaking, it
may be said that the shift from “capitalism with a human face” to the
current more naked and brutal form characterized by widespread
precarious employment has entailed increasing recourse to coercion
as working-class consensus behind the state has withered. As shall be
seen below, this has meant increased militarization of the police and
accelerating growth of what was at first called the “security state”
(Beckett and Sasson 2000) and is now being called the “surveillance
state” (Greenwald 2015). It perhaps should be added that the sharp
and escalating economic inequality that neoliberal capitalism has
engendered, together with what Marxists call the “overaccumula-
tion” problem – this arises when the capitalist drive for profits so
impoverishes the working population that its members cannot afford
to buy the products the economy produces and thus threatens it with
collapse – led to calls by prominent capitalists like George Soros and
onetime unabashed proponents of neoliberalism like Jeffrey Sachs and
Joseph Stiglitz for mild redistributive measures and reforms to prevent
complete collapse of the global capitalist economy. Nevertheless, cap-
italism is still capitalism, with or without a “human face.” Moreover,
independently of whether the state employs more or less coercive
measures to defend it, capitalism as a political-economic system is
coercive in itself. You will recall that this is part of the point being
conveyed in the passage from Reiman in Box 5.
Such calls for some degree of redistribution acquired greater
saliency in the wake of the 2007–2008 global “financial collapse”
and ensuing “great recession” (Robinson 2016). Such calls have also
been motivated by the fear of growing social unrest arising from the
inequality and economic insecurity already mentioned. So, while it
is probably fair to say, as we mooted above, that purely class-based
struggles have declined in the later twentieth and early twenty-first
centuries – though according to Silver (2016: n. p.), there has been
a “worldwide upsurge of labor unrest and class-based mobiliza-
tions taking place since 2008,” especially in the global South (Ness
2015) – this should not be taken to mean that the population has
been quiescent. On the contrary, major anti-globalization, anti-war,

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anti-austerity and anti-capitalist movements have occurred through-

out the world, increasing in intensity following the “financial crisis”
(Makwana 2016).The “Arab Spring” began in 2010, followed in 2011
by “Occupy” whose “demonstrations spread to about 1,000 cities in
more than 80 countries around the world” (Hammond 2015: B4; see
also Chomsky 2012), followed in turn by “the Idle No More move-
ment that burst onto the Canadian political scene in the late fall/early
winter of 2012/13” (Coulthard 2014: 159). A sort of culmination was
reached (as of the time of this writing) in the worldwide “People’s
Climate March” or “March for the Planet” on 29 November 2015,
ahead of the Paris climate summit in early December. And the chief
work inspiring this event explicitly linked the problem of global
warming with capitalism itself: This Changes Everything: Capitalism
vs. the Climate (Klein 2014). Class disquiet was also expressed in the
extraordinary support for Bernie Sanders’s “democratic socialism”
and, to a degree, in Donald Trump supporters’ misguided backing
of their “class enemy” in the US 2016 presidential campaign, as we
noted in the chapter introduction.

Marxist sociology
Although the term “structural conflict theory” is applied to a vari-
ety of approaches in sociology, it may nevertheless be said that these
positions share in common at least the following two features:
1. any social fact (institution, practice, law . . .) is to be understood by
seeing it in relation to the structure of society as a whole;
2. the structure of society is best described, ultimately, in terms of a
conflict of interests rather than a consensus of values; thus power
is the fundamental societal ingredient; Marxist conflict theory, in
addition, holds that:
3. of the various dimensions (class, status, party, gender, race . . .)
of conflict over power, that between classes (in Marx’s sense) is
fundamental;
4. sociological analysis is intendedly critical of social arrangements,
and directed towards social and political change, usually of a social-
ist nature. Thus we get Marxist or “critical” criminology (Scraton
2007). For example: “It should be clear that a criminology which
is not normatively committed to the abolition of inequalities of
wealth and power, and in particular of inequalities in property

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and life-chances, is inevitably bound to fall into correctionalism”

(Taylor et al. 1973: 281).
Point (1) means that there is a functional component to much Marxist
analysis, as was noted in Chapter 3. However, unlike the functionalism
in the structural consensus approach, that in Marxist theory seeks to
describe not how a particular institution contributes to the overall
stability and persistence of society (as evaluated from an a-social and
a-historical God-like position); but instead how institutions serve the
interests of those with most to gain from current social arrangements,
whether via the direct instrumentality of the state in the interests of
the ruling capitalist class, or more indirectly, if nevertheless ultimately,
through the state’s reproduction of the structures of the dominant
social relations. In either case, Marxist theory pays particular attention
to the way in which the state secures ruling class domination by using
the criminal justice system as a means of controlling class conflict in
other-than-class terms.We treat this question in more detail in discuss-
ing the various examples below, particularly that of Comack’s (1985)
analysis of Canadian narcotics legislation.
To summarize then, neo-Marxist theory elaborates Marx’s own
analysis of the state as the “executive committee of the bourgeoisie,”
in terms of three functions that the state performs for the capitalist
system. It provides social and economic conditions that foster capital
accumulation, it provides the means of coercion against the system’s
opponents, and it supplies legitimation of the system itself. As will
be demonstrated below, the criminal laws, the police, the courts and
the correctional system are elements of the state that may then be
involved in performing these tasks.

Marxist criminology
Not surprisingly, Marxist or critical or, indeed, “post-critical”
(O’Reilly-Fleming 1996) criminology reflects the theoretical dis-
tinctions to be found in Marxist sociology generally.The former also
has at least one distinction of its own. As Hinch (1987) contends:

There is a strong tendency among non-Marxist scholars to assume

that there is only one Marxian theory of crime and criminality,
when in fact there are several. Furthermore, it is assumed that this
one Marxian theory is an extreme example of a style of argument

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known as economic determinism when, in fact, this type of argu-

ment is a highly contentious issue within Marxism. If there is one
issue or factor which seems to be common to the . . . examples of
Marxian analysis . . . it is that they all begin with the assumption
that class relations are the most significant factor affecting the defi-
nition of crime and criminalization. . . .[H]owever, . . . they assess
the issue of class relations differently, and give varying levels of
significance to noneconomic factors.
(Hinch 1987: 189)

Hinch goes on to distinguish four styles of Marxian analysis of crime:

namely, instrumentalist, structuralist, a third type that emphasizes the
role of contradictions, and a fourth type that emphasizes socialist
praxis, in terms of which we distinguish between “left realist” and
“left idealist” positions. Readers may wish to consult the collection
of Radical and Marxist Theories of Crime edited by Lynch and Stretesky
(2011a) for a relatively recent overview of the perspective in all its
variety.
Instrumentalist criminological accounts are those that emphasize
the use of these means by the state as tools for more or less directly
serving the interests of particular capitalist elements, if not the whole
capitalist class. As detailed in the first edition of this book, the analy-
sis of changes in police methods in the United States in the 1960s
and 1970s by the Center for Research on Criminal Justice (1977)
is an example of such instrumentalist accounts, as is the work of
Richard Quinney who wrote: “the law is the tool of the ruling class”
(Quinney 1974: 52). Quinney’s (1977) Class, State, and Crime is per-
haps the paradigm case of Marxist instrumentalism in criminology.
Fellow Marxists have evaluated such studies as inadequate because
they fail to explain why a biased and coercive legal system appears to
many in society as fair and just. Structuralist criminological accounts
attempt to meet this criticism by bringing out the state’s use of the
criminal justice system (among other means) as a way to legitimate
the structure of capitalist social relations as a whole, even where that
may mean on some occasion acting against the immediate, direct
interests of some capitalists. Comack’s (1985) analysis of the ori-
gins of Canada’s narcotic drugs laws, reviewed below, is an exemplar
of structural Marxist accounts. A clear and instructive comparison of
instrumentalist and structuralist accounts is afforded by Smandych’s

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(1985) analysis of the origins of Canadian anti-combines legislation

in the period 1890 to 1910, a “modified instrumentalist” position is
developed in McMullan and Ratner (1983), and a strong critique of
instrumentalist analyses of corporate crime can be found in Sargent
(1989).
The third type is exhibited in much of William Chambliss’s work,
including his outstanding ethnography of crime and corruption in
Seattle, On the Take, the final chapter of which has a section entitled
“Crime and structural contradictions: a theory” (Chambliss 1988:
207–212): “The processes that culminate in the creation and suste-
nance of criminal networks are those that involve the response of
people in positions of power to the contradictions that exist in the
social structure of which they are a part” (1988: 208). One of these is
what he calls the “wages-consumption” contradiction characteristic
of capitalist societies, which he analyzes in virtually the same terms
as Merton’s (1938) anomie theory, which he cites. He also consid-
ers the contradictions in which not only workers but government
officials, professional people and law-enforcement agencies, including
the police, are caught. The 1993 collection Making Law: The State,
the Law, and Structural Contradictions edited by Chambliss and Zatz
is a particularly fine exhibit of this tendency in Marxist criminol-
ogy. The Preface clearly reflects the desire by contributors to move
“away from the overly structuralist, materialist reduction common to
instrumentalist and early structural Marxist explanations of law and
society, including Bill [Chambliss]’s original formulation” (Zatz 1993:
x). It includes four essays by Chambliss among its 16 chapters. In the
first two essays (chapters 1 and 2), he critically compares functionalist
and Marxist accounts of the origins of criminal law, with particular
attention to Durkheim’s account, in the course of which he revisits
his analyses of the British vagrancy statutes and the African poll tax
laws (Chambliss 1964, 1976b [1974]) detailed in the first edition
of this book. The concept of “structural contradiction” is comple-
mented by the “methodology . . . of the dialectic, which sees people
creating their own history out of the resources and constraints that
they inherit from the past,” writes Chambliss (1993a: 9), channelling
Marx: “Men make their own history, but they do not make it as they
please; they do not make it under self-selected circumstances, but
under circumstances existing already, given and transmitted from the
past” (Marx 1852: n. p.).

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The distinction between “left realism” and “left idealism” has been
used, chiefly by Young, as a way to distinguish earlier, idealist work in
“radical” (Platt and Cooper 1974) or “new” (Taylor et al. 1973) crim-
inology from later, realist studies (Young 1979, 1986; Lea and Young
1984; Matthews and Young 1986; Kinsey et al. 1986). By left idealism,
its critics mean to refer to a combination of (1) an instrumentalist
conception of the state’s use of the legal system as a coercive tool for
criminalizing and putting down working-class opposition (as above);
and (2) what they consider a romanticized image of the criminal and
the deviant in which working-class street crime is seen as overt or
incipient political rebellion. Against this view, exponents of left realism
point out that members of the working class – notably women (see
Fairweather, quoted in Edwards [1990: 148]) – are themselves the
chief victims of working-class crime, and that their voices are among
the loudest of those calling on the state to impose law and order via
the standard means of the law, the courts and the police.
Thus, the current state of affairs in Marxist criminology (see
Matthews 2012), without regard for the impact of poststructuralism
(which we take up in Chapter 10), is one in which the earlier instru-
mentalist emphasis has given ground to two contrasting developments.
The one, left realism, returns to cause-and-cure correctionalism, if
not outright administrative criminology; while the other, embodying
a more structuralist emphasis, continues to provide analyses of the
relations among changes in crime control, the state and the politi-
cal economy of capitalism (Scraton 1985); furthermore, it finds itself
expanding to take in the types of domination based on gender and
race in addition to that founded in class (see Scraton 1987, 1990:
22; Fleming 1985; O’Reilly-Fleming 1996). In summary, Marxist
criminology asks the following questions:
1. What social relations and whose interests are served by the crimi-
nalization of certain forms of behaviour?
2. How are those relations and interests served through the organiza-
tion and operation of police work?
3. How are those relations and interests reproduced in the adminis-
tration of justice through the courts?
4. How are those interests reflected in the organization and operation
of the correctional system?
5. How do the news media and the communications industry
as a whole, acting in the interests of capital, shape the public’s

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perceptions of the “crime problem” (in all its manifestations,

including what is not to be taken as serious crime)?
To illustrate how Marxist criminology addresses these questions,
we now review Comack’s analysis of the origin of Canada’s drug
laws before summarizing, in turn, bodies of representative work on
policing, sentencing and imprisonment.

Criminalization to divide-and-rule:
Comack on the origins of Canada’s drug laws
Empirical observation must in each separate instance bring out
empirically, and without any mystification and speculation, the
connection of the social and political structure with production.
(Marx and Engels 1970 [1845/1846]: 46)

In contrast to instrumentalist accounts cited above, Elizabeth

Comack brings a structuralist interpretation to the role of the
state in criminalization. In Chapter 4 we examined Shirley Small’s
social constructionist account (1978 [Cook 1969]) of the origins of
Canada’s narcotics legislation.We are fortunate in having, in Elizabeth
Comack’s (1985) study, a Marxist account of the very same legal
events (see also Comack 1991).This happy coincidence affords a rela-
tively rare opportunity for comparing and contrasting rival accounts
of the “same” phenomena. Indeed, Comack begins by summarizing
and criticizing Small’s approach in Marxist terms. Small’s focus on the
activities of moral, professional and organizational entrepreneurs such
as, respectively, Mackenzie King, Colonel Sharman and the RCMP,
prevents her, claims Comack, from seeing the conflicting material
interests at stake. Small’s formulation of the relevant context in terms
of racial and status conflict fails to take account of the underlying class
conflict and the connected problem of state control.
This failure, says Comack, becomes apparent when the question is
raised of why the criminalization occurred when it did; that is, in the
period 1908–1923. For the very same moral concerns, racial tensions
and status conflicts that Small appeals to were present in the 1880s
in British Columbia (the province at the centre of these happen-
ings), but the British Columbia government’s repeated attempts to
introduce appropriate legislation did not succeed. Each bill the pro-
vincial legislature passed was later declared unconstitutional by virtue
of trespassing on the federal government’s jurisdiction over matters

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of criminal legislation. And the federal government itself did not

introduce a bill, as we have seen, until 1908. Why was this so?
The clue to the answer is afforded, ironically enough, by Mackenzie
King himself. King was Deputy Minister of Labour in the Laurier
government. That the deputy minister of this department of the
government was sent to British Columbia indicates that the state
defined the problem represented by the Anti-Asiatic riots of 1907 in
Vancouver as one of labour unrest.As Marxists are fond of pointing out
in other contexts, conflicts carried out in ostensibly religious, racial
or nationalist terms – such as those in Northern Ireland during the
“troubles,” or South Africa under apartheid, or between the “West”
and “Islam” or between Israel and the Palestinians – conceal, even as
they express, the deeper struggle of class conflict over ownership of
the means of production. Thus, for example, “‘the Troubles’ remain a
persistent reminder of the inherent contradiction of the British state
in Northern Ireland, whose ‘attempts to reform sectarianism abstract
it from class relations’” (O’Dowd et al. 1980, cited in Sim et al. 1987:
24). Similarly, the relaxed response of US law enforcement when
Ammon Bundy and supporters took over the visitors’ centre of the
Malheur National Wildlife Refuge in rural southeastern Oregon on
2 January 2016 was explained in satirical commentary by noting that
Bundy and co. were neither black nor Muslim. However,

these gleeful caricatures of bumbling redneck militants . . . gloss

over the political economy of the ranching industry that has
inspired the actions of the Bundys and their allies. In doing so,
they miss what’s really at stake . . . Bundy’s Oregon occupation is
capitalist at its core.
(Schwartz-Weinstein 2016: para. 2)

Moreover, revisionist accounts of the two so-called “Opium Wars”

fought between the UK and China in the mid-nineteenth century
substitute a political-economic explanation for one cast in terms of
moral humiliation.While it was certainly the case that Britain forced
China at the point of a gun to take ever-larger imports of opium
from its colony in India (although Chinese merchants were them-
selves quite willing to be partners in the trade), the point was not to
demoralize, humiliate and poison the people of China with an evil
drug, but to open up China to international trade.

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British historian Christopher Hibbert puts it this way: “It would be

called an opium war because opium was the article of commerce
that had caused it. But the war would not be fought over opium;
it would be fought over trade, the urgent desire of a capitalist,
industrial, progressive country to force a Confucian, agricultural
and stagnant one to trade with it.”
(Gee 1997: D4)

A Marxist criminological account of these events is contained in

Chambliss’s (1993c) analysis of “The political economy of opium
and heroin.”
To appreciate, then, why drug laws were seen as the appropri-
ate means of responding to an apparently racial problem of conflict
between Chinese and whites which was defined more fundamen-
tally as a labour problem (!), one must turn to an examination of
the political economy of the late nineteenth century period of British
Columbian history.The analytic procedure is to uncover the connec-
tions between a particular law and the social, economic and political
structures comprising the prevailing mode of production (Hall and
Scraton 1981: 471). This requires that the analyst consider the four
elements of the Marxist model of society outlined above: the stage of
development of the forces of production; the nature of the class rela-
tions of production; the role of the legal and political super-structure,
especially the state; and the prevailing consciousness or ideology.
Embree provides a related analysis of the passage of the Harrison
Narcotics Tax Act of 1914 in the United States as reflecting a “policy
which grew from domestic, racist, anti-Chinese feelings and from the
United States’ colonialist policy in Southeast Asia, particularly in the
Philippine Islands” (Embree 1977: 194).
Briefly, this period in the development of the forces of production
in British Columbia is one recognized as the early stage of industriali-
zation, characterized by “increased rationalization of the production
process through mechanization and application of scientific manage-
ment techniques” (Comack 1985: 73). In terms of the relations of
production, the industrialization is capitalist in form. A small minor-
ity of non-producers own as private property the principal means
of production, especially the industrial capital (the mines, factories,
machinery, etc.), while the mass of producers exchange their labour
power (both skill and sheer labour) with the owners for a wage.

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Conflict between these two principal classes – the capitalists and the
workers – thus describes at its simplest the social relations of that
mode of production known as industrial capitalism.
To elaborate, for British Columbia in the 1880s, increased ration-
alization of the means of production was in part a device used by
the capitalists to de-skill workers and thus reduce whatever control
the latter could exert over the production process. By developing
a “split labour market” – pitting skilled workers against a growing
army of unskilled workers – important divisions are created within
the working class; “divide-and-conquer” is a well-tried method of
class control. Immigration supplied a ready source of cheap, unskilled
labour. For various historical and geographical reasons, it was the
Chinese (but also the Japanese and East Indians) who filled that bill
in late nineteenth-century British Columbia. They were widely
employed in the canneries, mines and, of course, in the construction
of the Canadian Pacific Railway. One partial explanation, then, for
the racial hostility that the Chinese were subjected to throughout
this period is to be found in the resentment of skilled white work-
ers at a group that employers encouraged them to see as the cause
of “wage differentials and conflicts within the workplace” (Comack
1985: 75). The “Chinese question,” as one prominent theme of the
prevailing ideology of the times, is to be understood, then, as “an ideal
expression of the dominant material relationships.”
That the “Chinese question” came to be dealt with through the
criminalization of opium only in 1908 depended on the role the state
played, as the chief actor in the legal and political super-structure,
during this stage in the rise of industrial capitalism. Within Marxist
theory, the state’s function in capitalist society, under the structural-
ist interpretation, is seen to be the reproduction of capitalist social
relations. This involves the three tasks of accumulation, coercion
and legitimation introduced above. Comack confines herself to a
consideration of accumulation and legitimation.
As we have said, “accumulation” refers to the work of creating
the conditions that foster profitable capital growth. This is stand-
ardly achieved through providing grants, loans, tax breaks and the like
to the capitalist class. “Legitimation” refers to the work of securing
the consent of the working class to this (unequal and exploitative?)
social arrangement. It standardly occurs within the context of a liberal
democratic or social democratic framework. This is because such a

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framework provides a greater potential for persuading and co-opting

the working class and for mystification of the power relations of capi-
talism. Great emphasis is placed on the legitimation of state power
in this framework. Legitimation is achieved through the “powerful
ideology-producing institutions” such as the educational system, the
mass media and organized religion (Center for Research on Criminal
Justice 1977: 16; Potter 2010a). Each of these contributes to the mys-
tification of state power and its relation to capitalist interests. Such
mystification is achieved by the presentation of state power as being
independent of, and above, class conflict, as standing for the interests
of all the population, rather than as a means of control for the ruling
class. (Notice that it is hard to avoid some degree of instrumentalism
in the Marxist account.) Mystification is also achieved through the
work of the social welfare institutions (social security, unemployment,
welfare). These reinforce mystification by ameliorating the more
exploitative aspects of capitalism such as poverty and unemployment.
Clearly, the two tasks – accumulation and legitimation – stand in a
relationship of tension since an overemphasis on either one can only
be at the expense of the other.
It is Comack’s contention that the period of the 1880s was one in
which the state saw its principal task as that of nurturing accumulation:
thus Prime Minister John A. Macdonald’s “National Policy” fostered
and protected nascent Canadian industry, while government policy
promoted Chinese immigration as a source of cheap labour for such
projects as building the Canadian Pacific Railway. Until that was
completed, the state managed the legitimation problem presented by
the “Chinese question” by the “symbolic gestures” of establishing a
Royal Commission (1885) and instituting one of its recommenda-
tions; namely, a “$50 head tax on all Chinese entering Canada (except
for officials, merchants, and students)” (Comack 1985: 69).
Although the head tax had increased by the early 1900s to C$500,
such devices would no longer suffice. While the perceived racial
problem had assumed more significance, the essential difference was
the growth of industrial trade unions and their accompanying social-
ist ideology. Unlike the more conservative craft unions whose skilled
workers were hostile to the Chinese (because of the threat to wages
posed by cheap labour), but were willing to accept the capitalist wage
contract, the larger industrial unions were prepared to enfranchise the
Chinese labourers while being quite ready to kick capitalism into

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the sea. The state’s problem was now one of legitimation. As Comack
puts it,

a serious political crisis of legitimacy dawned in early-twentieth-

century British Columbia as the socialist movement grew in
strength there. The re-establishment of working-class consent,
which was imperative if capitalist industrialization was to proceed,
depended greatly on the repression and discrediting of the socialist
movement . . . [However, in terms of Marxist theory], for the state
to mediate class conflict successfully such “threats” must be dealt
with in other than class terms.
(Comack 1985: 80)

When the “labour problem” came to a head with the formation

in July 1907 of the Asiatic Exclusion League by members of the
Vancouver Trades and Labour Council (a grouping of conservative
craft unions) and the ensuing anti-Asiatic riot, the state responded
publicly in an all-too-familiar fashion by
1. trying to pin responsibility on “foreign agitators” – namely,
Americans (a wonderful irony in these “Trump-ed”-up times);
2. interpreting the conflict as a “race problem”; and
3. further specifying the situation, thanks to Mackenzie King, as a
“moral problem” arising from the opium trade carried on by the
Chinese.
Above all, the problem was not to be publicly perceived as one of
class conflict, even as the measures being taken were designed to
address it, albeit in disguise, at that level. Like Small (1978 [Cook
1969]) and Green (1986 [1979]) in Chapter 4, Comack sees the
Opium Acts as creating a social problem out of drug use. But notice
the sharp contrast in the analytic understanding of this process. This
is no “unintended” consequence.

In essence the criminalization of opiate use amounted to the

creation of a social problem by the state . . .
There appears to be a clear and inescapable connection between
legislation aimed at the “immoral” habit practised by the Chinese
and the ideology of an “alien element.” Opium-smoking became
an easy symbol for the dangers and evils embodied in the fan-
tasy of the “Yellow Peril,” and the opium legislation helped to

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affirm Oriental immigrants as a major cause of social problems.

Consequently one could argue that the drug laws were not so much
directed at the Chinese but rather helped to identify them – and
by extension “foreigners” and “aliens” – as a source of the problems
confronting B.C. society. In doing this the laws de-legitimized
further the competing view of the socialist movement, which
insisted on defining labour issues in class, not racial, terms.
Moreover, the continuing identification of unrest with aliens was
more or less a symbolic concession to the so-called “legitimate”
conservative unions, which were willing to co-operate with capi-
tal (as contrasted with the so-called “illegitimate” socialist unions
that were more hostile to capital). In this fashion the drug laws drove
another wedge – however small – into working-class unity.
(Comack 1985: 83, emphasis added to the last sentence)

To recapitulate, in brief: by criminalizing (non-medicinal) opium

use, the state effected a change in the legal super-structure so as
to shape social consciousness about the nature (moral) and source
(racial) of problems affecting society, thereby to divide the working
class, divert the socialist counter-ideology and so maintain capitalist
social relations in the ultimate interests of the ruling class. Solving the
legitimation problem permits accumulation once more to proceed.
Reinarman makes very much the same point in relation to cocaine
in the US case:

Although there was some legitimate medical concern over the

risks of these drugs, it appears doubtful that they would have been
proscribed on that basis alone. Knowledge of ill-effects and the
dangers of abuse or addiction seem to be necessary but insuf-
ficient conditions for proscription. A more adequate scenario
might suggest that basic economic conflict was transformed into
racial conflict, and racial conflict, in turn, was expressed (in part) as
conflict over drug use.
(Reinarman 1979: 235)

Policing the dangerous classes

[T]he police were created as a mechanism for coping with the
dangerous classes.
(Bittner 1974: 38)

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It follows from Reiman’s Marxian critique in Box 5 that the three

categories of offences into which criminal codes are conventionally
divided – namely, offences against the person, offences against prop-
erty and offences against public order (recall Chapter 2) – can be
reduced to two, insofar as offences against the person become recast
as property offences. Chambliss adds:“The protection of property and
personal security are obligations assumed by states both as a means
of legitimizing the state’s franchise on violence and as a means of
protecting commercial interests” (Chambliss 1989: 196). This view
does not, however, account for offences against public order, offences
that, at least in the Canadian Criminal Code, come first. Following
Part I which deals with administrative matters, Part II of the Code
sets out Offences Against Public Order beginning with Treason
and other Offences Against the Queen’s Authority and Person, and
includes Intimidation of Parliament, Sedition, Unlawful Assemblies
and Riots, Piracy, Hijacking and Using Explosives. Part II.I is then
devoted to Terrorism; it incorporates the Anti-terrorism Act passed in
October 2001 following 9/11. Part III concerns Firearms and Other
Weapons, while Part IV defines Offences Against the Administration
of Law and Justice. Part V is taken up with Sexual Offences [but not
assault], Public Morals and Disorderly Conduct including causing a
disturbance and vagrancy.
It’s interesting to reflect on how in popular and official discourse,
the “street” is thought of as the quintessential home of crime; when
we talk of “crime” without further specification, it is “street crime”
we have in mind. Indeed, it is the conviction of conservative crimi-
nologist J. Q.Wilson (1975: xix, quoted in Brake and Hale 1992: 22),
“which I believe is the conviction of most citizens, that predatory
street crime is a far more serious matter than [white collar crime and
crimes without victims].” In consideration of this view, Jack Katz
remarks, “As he was writing shortly after the Watergate revelations,
it is questionable whether [Wilson’s] convictions were the same as
most citizens” (Katz 1980: 180).Yet the street is the home of protest,
demonstration and rebellion against the state and the interests it rep-
resents. Such activities are not “street crime,” but they are subject to
criminalization beyond certain narrowly prescribed limits. And inso-
far as they occur on the street, there is a sort of merging or conflation
of public-order offences with street crime from the point of view of
state population control.Thus, when arranged in the following order

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– sleeping on the street, begging, aggressive panhandling, squeegee-

ing, pickpocketing, petty theft, mugging, vandalism, drinking or being
drunk in public, loitering, unlawful assembly, disturbing the peace,
causing an obstruction, marching without a permit, illegally demon-
strating, riot – many of the conventional forms of street crime merge
with those comprising political protest.The concept of the dangerous
classes may be used to embrace them both. Referring to the period
since the onset of neoliberalism in the 1970s with the conservative
ideology it fostered, Leonard writes, “Those who fought for social
change were reimagined as dangerous characters and criminals who
were disrupting the social order. According to this ideology, the poor
were no longer people in need, but undeserving and dangerous”
(Leonard 2015: 33).

By the sixteenth century, the categories of crime had become

established in a mould that still exists today—at least in relation
to serious crime. If we read the statutes and commentaries of that
period, we find that treason, murder, rape, arson, robbery and theft
were the most stringently condemned acts . . . The other serious
crimes gained prominence, however, because they also threatened
various forms of property rights that had become increasingly
important as a result of the rise of a bourgeoisie in industrial and
mercantile society. Indeed, the history of criminal law is very largely
a series of reactions to actual or perceived breaches of public order and
panic responses to emergencies that threatened private property and social
stability.
(Parker 1983: 45–46, 27, emphasis added)

The principal agents of the state charged with enforcing public order
are, of course, the police. For the Marxist criminologist, the police
are thus not simply neutral keepers of the peace in the general inter-
est, but political agents of state and corporate power whose job it is
to manage, if not suppress, opposition and dissent in the interests of
the ruling class of the day. Using the criminal law where necessary,
their job is to control the “dangerous classes.” It’s no accident, as
Marxist analysis likes to say, that the first modern police organization
was established by the Metropolitan Police Act in 1829 in London,
followed shortly thereafter by similar organizations in the United
States and in Canada. For this period corresponded with the coming

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of industrial capitalism as the dominant mode of production in the

Western world and the creation of the working class in conditions its
members regarded as “wage slavery” and vigorously opposed.

From my (no doubt) incomplete and imperfect record of the

twenty-odd major riots and disturbances taking place in Britain
between the Edinburgh Porteous Riots of 1736 and the great
Chartist demonstration of April 1848 in London, I have totted up
the following score: the crowds killed a dozen at most; while, on the
other side, the courts hanged 118 and 630 were shot dead by troops.
(Rudé 1970: 27–28, cited in Bunyan 1977: 306–307)

In the United States and Canada, the period between 1880 and 1920
known as the “Progressive Era” “was a critical period in that most
of what we think of as the modern criminal justice system was cre-
ated during this time” (Krisberg 1975: 15). It was a period of mass
immigration, labour strife and urban disorder, giving rise to fears
among the white ruling class that they were being swamped by an
“alien invasion” of inferior and unfit races of people (Europeans).
“The perceived atmosphere of impending doom for the white race
brought forth proposals to sterilize the mentally defective, the insane
and the criminal classes” (1975: 164). It was also the period in which
“much of the modern core of criminology was generated” (1975: 15).
Thus, the “dangerous classes” are the population that the criminal
code and criminal justice system were and are principally designed to
control, and the population whose “criminal behaviour” the standard
causal theories in correctional criminology have been designed to
explain.

The new scientists of crime and crime control were called upon
to construct theories and programs that would enable the domi-
nant elite to cope with real and imagined threats to its hegemony.
Perhaps the most important contribution of the new criminolo-
gists was to justify the ruling class’s overlooking of the relationship
between social injustice and the apparent threat to the social order.
(Krisberg 1975: 165)

That is, theoretical criminology itself has been, and largely continues
to be, a practical enterprise (conducted in the natural attitude with

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scientific trappings, as we said in Chapter 2) to assist the state in

population control; that is, control of the dangerous classes.
Who, then, are the dangerous classes? Insofar as the expression
is a term of ideological propaganda, its referent will depend on the
purposes of those dispensing the propaganda. It should not then be
surprising to learn that the concept is one that has been used (prin-
cipally by the rulers, their managers and propagandists, including
politicians) to refer at different times to various parts of “the peo-
ple.” Thus, it has been applied to the unemployed, the “underclass,”
the whole working class, the poor generally, the “criminal classes”
whether or not overtly or tacitly racialized, and sometimes to the
people (the subjects of rule) as a whole. In the nineteenth century,

It served the interests and relieved the conscience of those at the

top to look upon the dangerous classes as an independent category,
detached from the prevailing conditions. They were portrayed as
a race apart, morally depraved and vicious, living by violating the
fundamental law of orderly society, which was that man should
maintain himself by honest, steady work.
(Radzinowicz 1966: 38, quoted in Bottomley 1979: 42)

In the first half of the twentieth century, Hagan (1980: 617) notes
how, in contrast to alcohol prohibition, “narcotics legislation focused
more narrowly, and more successfully, on minorities of the poor who
could be defined as disreputable.”

Increasingly associated with the slothful and immoral “criminal

classes” who degraded the nation’s cities, narcotics use threatened
to retard national growth with pauperism, moral degeneracy, and
crime. A consensus had emerged: the nonmedical use of “narcot-
ics” was a cancer which had to be removed entirely from the social
organism.
(Bonnie and Whitebread 1974: 17, quoted in Hagan 1980: 617)

In the second half of the twentieth century

“in America, we have this section of the population called the

underclass. And they’re separated physically in the cities from
the white class. And somebody has to separate them from us . . . It’s

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my view that the white people, tacitly, have agreed that we’ll let
the police take care of that and that we don’t have to see them, or
we don’t have to hear them.”
(McMartin 1995: A1, quoting Robert A. Jones,
columnist for the Los Angeles Times in the wake of the
verdict in the O. J. Simpson trial; Jones is white.)

Here, “underclass” is a euphemistic racial designator for blacks. For

more on the racial dimension, see Chapter 9. To return to matters
of class in the United States, there’s this editorial from Covert Action
Quarterly:

The civil and human rights of the people have been at odds with
the property rights of the “landed gentry” for over two centuries.
And in this defining struggle, the FBI, police, et al. are merely the
enforcers for those who write the laws to make their activities
legal and hire the guns to keep the dangerous classes [the poor,
immigrants, ethnic minorities, youth, and dissidents] at bay.
(Editorial, Covert Action Quarterly 1995: 2)

In the twenty-first century, and as an example of the concept being

extended to the whole of the people, consider the widely voiced
opinion following the “wrong” Brexit result in the UK that entrust-
ing such a major decision to “the people” in a referendum was
downright “dangerous.” The people cannot be entrusted with the
unfettered exercise of their democratic rights. Being too stupid to
know what’s best for them, their consent must be “manufactured”
through the propagation of “necessary illusions” put before them by
their “proper leaders” in the controlled circumstances of an election
(Herman and Chomsky 2002 [1988]; Chomsky 1989, 2005 [1970]:
51–52). This view reflects the seventeenth-century argument of
Locke and Hobbes that “only persons with property were capable
of making the laws” (Vold and Bernard 1979: 30).
The concept of the dangerous classes includes especially the
“problem population” that Spitzer (1975) calls the “social dyna-
mite” (rather than his other problem population, the “social junk”
– namely, the mentally ill, the homeless and others, who nevertheless
routinely suffer violence at the hands of the police; see the docu-
mentary What World Do You Live In? [discussed by Karstens-Smith

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2014]). The social dynamite are workers, strikers, union activists and
their political representatives, “organized working-class terrorists, or
unemployed youth, especially black youth” (Brake and Hale 1992:
30, referring to the UK), aboriginal groups, visible minority groups,
women’s groups, gays (Kinsman 2010), animal rights militants, uni-
versity students and activists of all sorts. Such groups require special
handling, not just by the regular police, but by the “political police”;
for example, the Canadian Security Intelligence Service (CSIS), the
former RCMP Security Service in Canada, created “as a paramilitary
force often used to control workers and native peoples” (Caputo et al.
1989: 9; Brown, L. and Brown, C. 1978), the FBI in the United States
(Chomsky 1988a: 69–70, 1988b [1975], 1989: 189; Churchill 1991:
103; Churchill and Vander Wall 1988) and the former Special Branch
in the United Kingdom (Bunyan 1977). But it has also come to mean
the “surplus population”:

A critical feature of the use of the concept is to place those to

whom it is used to refer outside the pale of proper society; this can
then be the justification for inflicting extraordinary pain on them.
We are left with the surplus population, those outside production.
And we are left with the classical problem: How to control the
dangerous classes?
(Christie 1994: 61; cf. 2000: 67)

The idea of “surplus population” moves beyond simply the state of

being “outside production,” in the sense of being “unemployed.”
Being “unemployed” this month implies being “employed” next
month.“Surplus,” on the other hand, betokens the idea of permanent
unemployment and therefore disposability. And given that employed
work is the sine qua non of full membership in industrial capitalist
society (see Radzinowicz [1966: 38], quoted above), the requirements
for managing such surplus people loom large indeed.
There is not space to describe and analyze all the ways that crime
control in general and policing in particular have developed in order
to control the “dangerous classes/surplus population.” Such control
has grown in response to the general social unrest spawned by the
inequality and economic insecurity engendered by neoliberalism, not
to mention the waves of “third-world” immigrants and the “threat of
terrorism” arising from the international and much more devastating

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version of the same thing (structural adjustment programs), backed

up by predominantly US-led military intervention in recalcitrant
countries. In fact, the start of the contemporary trend may be dated
to 1971 when US President Richard Nixon launched the first “War
on Drugs.” In 2016, it was revealed that Nixon and his cabinet had
explicitly designed this move as a political counter-attack against the
domestic opposition to his presidency that had arisen in the rebellious
1960s (Baum 2016). Baum quotes John Ehrlichman, Nixon’s domes-
tic policy adviser, from his till then unpublished 1994 interview with
Ehrlichman:

The Nixon campaign in 1968, and the Nixon White House after
that, had two enemies: the antiwar left and black people. You
understand what I’m saying? We knew we couldn’t make it illegal
to be either against the war or blacks, but by getting the public to
associate the hippies with marijuana and blacks with heroin, and
then criminalizing both heavily, we could disrupt those communi-
ties. We could arrest their leaders, raid their homes, break up their
meetings, and vilify them night after night on the evening news.
Did we know we were lying about the drugs? Of course we did.
(John Ehrlichman, quoted in Baum 2016: para. 2)

The point is generalized by Beckett and Sasson (2004, 2000) who

conclude that the war on crime and drugs “was a reactionary response
to the social challenges of the 1960s, including the civil rights move-
ment, the women’s movement, the anti-war movement, the youth
movement, and the welfare rights movement” (Leonard 2015: 32).
Beckett and Sasson couch their analysis of the punitiveness of US
criminal justice policy in the 1980s and 1990s in terms of Gramsci’s
“neo-Marxist” theory of hegemony. They

argue that the adoption of punitive anti-crime and -drug policies

is best understood as a core component of a ruling class “hegem-
onic strategy” [in response to] the upheavals of the 1960s and
1970s by attempting to secure hegemony around a vision of gov-
ernment that divests the state of responsibility for social welfare
but emphasizes its obligation to provide “security” against foreign
and domestic threats.
(Beckett and Sasson 2000: 62)

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Their study seeks to explain the shift from the welfare state to the
“security state.”
Renewed in the 1980s, the War on Drugs caused “an enormous
increase in drug-related (often victimless) crimes and an explosion in
the prison population, reaching levels far beyond that in any industrial
country and possibly a world record, with no detectable effect on
availability or price of drugs” (Chomsky 2000: 81).

In all industrialized societies, the war against drugs has developed

into a war which concretely strengthens control by the state over
the potentially dangerous classes . . . a large segment of the non-
productive population is securely placed behind bars. Much of
the unbelievably rapid increase in the prison population in the
USA stems from the stricter laws and practice against illegal drugs.
Much of the severe strain on European prisons stems from the
same war against drugs.
(Christie 1994: 66)

Since it has spectacularly failed to achieve its announced ends, but is

nevertheless pursued vigorously, it has been proposed that the War on
Drugs must be achieving its real, but unannounced, ends. What are
they? First, to get rid of the “surplus population,” mainly black and
Hispanic (through imprisonment); and, second, “frightening every-
one else, not an unimportant task in a period when a domestic form
of ‘structural adjustment’ [i.e. neoliberalism] is being imposed, with
significant costs for the majority of the population” (Chomsky 2000:
81). Moreover:

“While the War on Drugs only occasionally serves and more often
degrades public health and safety,” a well-informed and insightful
review concludes,“it regularly serves the interests of private wealth:
interests revealed by the pattern of winners and losers, targets and
non-targets, well-funded and underfunded,” in accord with “the
main interests of U.S. foreign and domestic policy generally” and
the private sector that “has overriding influence on policy.”
(Chomsky 2000: 81)

In an endnote citing The Social Health of the Nation (Miringoff, Marc

L. and Miringoff, Marque-Luisa 1999), Chomsky (2000) writes:

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Their most striking conclusion is that social indicators tracked

GDP closely until the mid-1970s, and have since declined, leaving
the US below the level of 1959, in what they call a “social reces-
sion.” The shift coincides with the onset of official “globalization”
and the domestic version of selective “neoliberal reforms.”
(Chomsky 2000: 226, note 50)

We take up the specifically racial character of the “surplus popula-

tion” in Chapter 9.
Suffice it to say that in this political-economic context, more and
more offences have been added to criminal codes, criminalizing
more and more aspects of everyday life, not least those associated
with engaging in or supporting political activity. Penalties have been
made more severe: three strikes make you surplus in the United
States, while mandatory minimum sentences have been instituted in
Canada and elsewhere. Parole eligibility has been scaled back. New
laws include those creating special courts, held in secret, for so-called
“terror suspects,” the virtual suspension of habeas corpus, and special
powers accorded to prosecutors. In the United States, “a November
2015 ruling by the secretive Foreign Intelligence Surveillance
Court . . . confirms that NSA’s [National Security Agency’s] warrant-
less spying has been formally approved for use in general criminal
investigations” (Cohn, C. 2016: n. p.). In Canada, Bill C-51 allows the
Canadian Security Intelligence Service to arrest “on suspicion” any-
one that “might” carry out a terrorist act or engage in an act deemed
to “promote” terrorism, and to “disrupt” gatherings rather than sim-
ply monitor them (Martin 2016). Whole new “security” agencies
have been created, including vast outsourcing to the private sec-
tor (Shorrock 2016). Since 9/11, police have become what Murphy
(2007) calls “securitized,” adding a proactive “security” approach
to their traditional role of responding to public demand for peace
keeping and law enforcement. They have increased in number and
resources just as their weapons have increased in number, type, range,
size and power. Surveillance is everywhere: from cameras on street
corners and in establishments of every sort, to spying on computers
and phones, to the use of drones.The targets of spying run the gamut
from the population in general, to heads of state, to local activists
whose groups are infiltrated and leaders rounded up and detained
before protests take place (Greenwald 2015; Evans and Lewis 2013;

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Groves 2011). The policing of protest is militarized (Wood 2014).

Demonstrators are kettled and black youth carded. Imprisonment has
grown enormously (Christie 2000).The boundaries of affluent neigh-
bourhoods are “securitized” with walls and controlled entrances to
form gated communities, while “Forty-one forgotten and unclaimed
victims of Chicago’s killer heat wave were given a pauper’s funeral
Friday, laid to rest in plywood coffins in a mass grave that will be left
unmarked” (Associated Press 1995: D16).The borders of countries in
the global North are strengthened and militarized against the mas-
sive movements of refugees, displaced people and economic migrants
from the global South, generated by the intolerable conditions of life
resulting from Northern military interventions and neoliberal eco-
nomic policies and programs. Unacquainted with Pink Floyd, Donald
Trump threatens to build “The Wall.” The number of refugees in the
world in 2016 is the highest since World War II. We will take up this
topic again in Chapter 12.

Sentencing and class

How is ruling-class domination effected through sentencing? Marxist
sociologists/criminologists have approached this question from both
instrumentalist and structuralist orientations. Instrumentalists have
looked for discrimination against workers and women and racial
minorities in the form of heavier sentences for the same offence.
That is, the supposition is that judges’ sentencing practices would be
the vehicle by which the state, acting in the interests of capital, men
and whites, coerces the working class, women, indigenous people and
blacks through legal punishment.To test this, it would be necessary to
show that judges take such extra-legal or “non-legitimized” (Hagan
1991: 175–176) or “offender-related” factors as class and sex and race
into account at sentencing so as to produce more punitive outcomes
for the dominated groups.
The results of such studies as have been done do not generally
or clearly support the instrumentalist thesis. First, it is necessary to
say that much of the observed disparity in sentencing outcomes is
accounted for by such legal or “legitimized” or “offence-related” fac-
tors as seriousness of offence and prior record. Second, where, as in
Canada, the legal system gives judges wide discretion in the type and
length of sentences to be imposed, and a national basis for regulating

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sentencing has not existed, it is not surprising that considerable vari-

ation occurs (Griffiths and Verdun-Jones 1989: 336–337). Hogarth
(1971), for example, shows very wide disparities in the sentences
handed down for the same offence by different Ontario judges.
However, he also finds that individual judges’ sentencing patterns are
predictable on the basis of their sentencing philosophies.Third, where
studies do produce results showing the influence of class, gender and
race, the variation is not all in the predicted direction. That is, while
there is evidence that the poor and unemployed, women, indigenous
people and blacks have received more severe sentences than their
richer, employed, male, white counterparts when legal factors are
held constant, there is also evidence that the dominated groups have
been treated more leniently.
While these results clearly pose a problem for the instrumentalist
thesis, they are more readily accommodated, not to say expected, in
structuralist terms. If capitalism, patriarchy and neocolonialism really
are in control, and if the job of the state is to reproduce the social
relations whereby these types of domination are exercised, then both
severity and leniency of sentence are explainable in the right struc-
tural context.There are two points.The first point is that, as Sharrock
says in criticizing Marxist interactionists looking for signs of a strug-
gle for dominance in doctor–patient encounters: “Someone who is
genuinely and firmly in control does not have to contest that fact
with those he controls – that he does not have to contest it is one of
the things, surely, that being in control means” (Sharrock 1979: 136).
That is, the state through the courts does not need to discriminate
in order to rule. Indeed, structuralists would argue that to the extent
that rule is more efficacious when based on consent, then it is in
the interests of the rulers that justice be “fair”; that is, that it comply
with formal legal rules of due process and equality before the law.
This way it secures authority for itself, and is seen to be authorita-
tive. Consider, for example, the popularity of Justin Trudeau’s Liberal
government in Canada (2015– ) with its proud emphasis on formal
gender equality and human rights. If, as Marxists of all persuasions
argue, the whole system is substantively rigged in favour of power in
the first place (again, see Box 5, and see Hagan [1985 (1982)] for an
early study of the “corporate advantage”), then formal fairness will
produce the desired results anyway, and without the threat posed by
cases of gross inequality in sentencing giving the whole game away.

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As Michael Shapiro said to one of the authors in answer to his ques-

tion at a conference on “Discourses of Power” in Arizona in 1987,
“authority is power’s way of cutting the costs.”
The second point is, then, that the social relations of subordina-
tion are reproduced through sentencing simply by judges applying
the law fairly. We consider class here, gender in Chapter 8 and race
in Chapter 9.

Class

In sentencing studies, class has rarely been conceptualized and meas-

ured in Marxian terms. Rather, the employment status of the offender
has been examined. Here, it appears that judges see unemployment as
a mitigating factor in some circumstances and as an aggravating factor
in others. In either case, the dependent and manipulable status of the
unemployed is preserved. Some evidence of the perceived structural
conditions under which unemployment becomes an aggravating fac-
tor in sentencing comes from a study reported by Box (1983). He
argues that it is in times of economic hardship that inequality is
the outcome of judges’ sentencing decisions. Writing of the United
Kingdom in the early 1980s, Box says:

Thus the growth of unemployment, which is itself a reflection of

deepening economic crisis, has been accompanied by an increase
in the range and severity of state coercion, including the length
of imprisonment. The increased use of imprisonment was not a
direct response to any rise in crime, but was rather an ideologi-
cally motivated response to the perceived threat of crime posed
by the swelling population of economically marginalized persons.
Whether this perception was based on “fact” is unclear for the lit-
erature on unemployment and crime (Box and Hale 1982;Tarling
1982) comes to an ambiguous conclusion. But what is clear is
that this perception was real in its consequences. Unemployment
levels have and are having an effect on the rate and severity of
imprisonment over and above the effect produced by changes
in the volume and pattern of crime (Box and Hale 1982). The
unemployment-effect on prison population is not a result of the
courts mechanically responding to increased “work-load”; it is
essentially produced by the judiciary acting in terms of its beliefs

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on the relationship between unemployment and crime and what

might deter potential unemployed persons from committing
crimes.
(Box 1983: 212, emphasis in original)

Box and Hale (1982) show that in England and Wales from 1949 to
1979,“for every 1,000 increase in youth unemployment 23 additional
young males get sent to prison after the effect of crime rates and court
workload have been controlled” (Box 1983: 216, emphasis in original).
The condition is exacerbated for black and other ethnic minority
young men. And what is the purpose of this preference for imprison-
ing the “problem population” of young, working-class, urban (black)
males (and increasingly females)? Given, as we shall see, the extent
to which “crimes of the powerful,” as Marxist criminologists would
call them, go more or less unprosecuted and unpunished, then the
purpose cannot be to control serious crime.

Rather [governments] are more concerned to instil discipline,

directly and indirectly, on those people who are no longer con-
trolled by the soft-discipline-machine of work and who might
become growingly resentful that they are being made to pay the
price for economic recession. Whilst the powerful are getting
away with crimes whose enormity appears to sanctify them, the
powerless are getting prison.
(Box 1983: 219)

The class basis of sentencing is also evident, not in terms of dispar-

ity in sentences for the same offence, but in sentencing for different
offences. Glaring examples of inequality reside in the gap between
typical sentences for standard Criminal Code (Canada) offences
compared with those for white-collar crimes:

Item:The average prison sentence for robbery is 38.9 months; that

for income tax evasion (which nets the culprit 10 to 20 times as
much, on average) is 1.4 months (Mandel, 1983, cited in Brannigan,
1984: 108).
Item: The Department of Revenue reveals to the Supreme
Court of Canada that people who steal from the government
through tax fraud are not prosecuted if they can pay up when

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caught. In other words, only the relatively poor offenders are

charged (Tepperman, 1977: 163).
Item: No employer in Ontario has been imprisoned for stealing
from employees by paying wages below the legal minimum, deny-
ing vacation pay, termination pay, or the overtime pay required by
law (Snider and West, 1980: 225).
Item: Merchants who stole from customers by employing inac-
curate scales were fined an average of $204.26 per charge between
January 1974 and June 1976, and none were imprisoned (Snider
and West, 1980: 229, recomputed).
(Snider 1988: 304)

Readers may rightly feel that these data are “old.”We encourage you
to consult more recent or current sources such as the latest edition
of The Rich Get Richer and the Poor Get Prison (Reiman and Leighton
2016), Laureen Snider’s (2015) brief but hard-hitting book on cor-
porate crime in Canada, and Harry Glasbeek’s (2002) thoroughly
illuminating and closely analyzed Wealth by Stealth: Corporate Crime,
Corporate Law, and the Perversion of Democracy. We are confident that
you will find no appreciable differences in disparities, except insofar
as they have become worse. It is also instructive simply to google “top
corporate criminals” or “Corporate Crime Reporter” and bask in the
criminality of the richest and most powerful non-state institutions in
the world, many of which are household names: see especially “Top
100 Corporate Criminals of the 1990s.” At the time of writing, for
example, the Canadian press was reporting both theft of wages and
theft of taxes by employers and the rich.
What Snider and West were saying in 1980 (above) about wage
theft is exactly the case in 2016. According to the interim report
of an Ontario Ministry of Labour research study obtained by The
Toronto Star, not only has no employer in the province been imprisoned
for stealing wages, “less than 0.2 per cent of bosses guilty of mon-
etary violations are ever prosecuted” (Mojtehedzadeh 2016, emphasis
added).

Victims of wage theft across Ontario have lost out on $28 million
over the past six years because the Ministry of Labour failed to
collect the pay owed to them by law-breaking bosses, new statistics
show.

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Just $19 million of the $47.5 million stolen from out-of-pocket

workers since 2009 has ever been recovered.
(Mojtehedzadeh 2016: front page)

As for theft of taxes, in what was just the latest in a series of “rev-
elations” about “legal” tax avoidance by Canadian corporations, the
Canadian government, in 1980 and again since 2009, was reported as
having established tax treaties with a range of other countries, most
notably Barbados, to act as tax havens for corporations. As of 2015,
C$108.3 billion was parked in these tax havens (Dubinsky 2016).
Notice: this is the state facilitating the profitability of capital.

“These corporations benefit from public infrastructures. They use

roads, they have access to water, to electricity.Their employees are
trained by the state. They benefit from the social system. But they
don’t pay for it . . . They don’t pay their fair share and they know
how to manage it so they don’t.”
(Sociologist Alain Deneault, quoted in Dubinsky 2016: n. p.)

For an excellent catalogue of neoliberalism’s “kleptocracy,” see Hearse

(2016).You may also wish to consult the Panama Papers that are read-
ily accessible online. There you may find the name of Victor Phillip
Dahdaleh, “the Canadian middleman in a massive international ‘cor-
ruption scheme,’ in which U.S. officials say he ‘enriched himself ’ with
$400 million (U.S.) in markups and made ‘at least $110 million in
corrupt payments.’” He “was celebrated by York University with an
honorary degree Monday [20 June 2016]” (Cribb and Oved 2016:
para. 1). No crime here.

Imprisonment: punishing the dangerous classes

The development of the prison

It is only relatively recently that the prison became a dominant form

of social control. In this section we consider how this came about.
We shall consider briefly the work of Ignatieff (1978) and Melossi
and Pavarini (1981); the major focus of our attention, however, will
be on the earlier classic in this field, namely the work of Rusche and
Kirchheimer (1939) on Punishment and Social Structure. Before doing

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so, we wish to set the scene by presenting Cohen’s (1985) excellent

discussion of the “Great Transformation,” of which the develop-
ment of the prison as the major form of punishment was a central
part. We should point out, however, that Cohen’s account is heavily
indebted to Foucault (1977 [1975]) whose account of these matters
he discusses at some length.We consider Foucault’s “poststructuralist”
analysis in Chapter 10.
According to Cohen (1985), the Great Transformation in methods
of social control occurred around the end of the eighteenth and the
beginning of the nineteenth centuries. This transformation involved
four major changes in the social control of deviance in general
and crime in particular. The first was an increase in the involve-
ment of the state in the business of deviancy and crime control, an
involvement which was eventually to mean the development “of a
centralized, rationalized and bureaucratic apparatus for the control
and punishment of crime and delinquency and the care or cure of
other types of deviants” (Cohen 1985: 13).The second major change
was an increased differentiation of deviants from each other as they
were classified into separate types and categories. It also meant the
association of each type of deviance with a particular body of “sci-
entific” knowledge which was applied by recognized and accredited
“experts,” who eventually developed monopolies in the care and
control of deviants in their field (1985: 13). A third major change
was segregation. This process consisted of the increasing segrega-
tion of deviants into “asylums” – special institutions for each type
of deviant – “penitentiaries, prisons, mental hospitals, reformatories
and other closed, purpose-built institutions. The prison emerges as
the dominant instrument for changing undesirable behaviour and
as the favoured form of punishment” (1985: 13). The fourth change
is in the “object” of punishment: the mind rather than the body.This
meant “the decline of punishment involving the public infliction
of physical pain” (1985: 13–14). A plethora of “positivist theories
emerge” (as discussed in Part I of this book) “to justify concentrating
on the individual offender and not on the general offense” (1985: 14).
There are three models which have been used to explain these
changes and hence, specifically, to account for the development of the
prison as the dominant form of crime control.The first is an “idealist”
model which conceives of the development of the prison in terms of
penal ideas, especially those of reformers who were influenced by the

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Enlightenment philosophers of the eighteenth century. Penal changes

are characterized by “uneven progress” in the application of ideas
to the improvement of penal practice. The second model is a struc-
tural consensus or functionalist model which views the prison and,
more generally, asylums, as functional solutions to problems of soci-
etal disintegration and deregulation. According to Rothman (1971),
they were established with “good,” if “complicated,” intentions that
had “disastrous” consequences. The third model, deriving from the
Marxist or structural conflict tradition, is the “discipline and mystifi-
cation” interpretation of penal change (Cohen 1985). It is with this
interpretation that our concern lies.
The discipline and mystification interpretation of changes in penal
practice claims that the transformation of the criminal justice system
“was not what it appeared to be, nor should the subsequent history
of institutions like the reformed nineteenth century prison” (Cohen
1985: 21) be regarded as a failure. Rather, according to this view, the
prison in particular, and the criminal justice system in general, were
and have continued to be successful, but not in terms of conventional
notions of “reform” or “progress.” As Cohen points out, they have
instead been successful in the sense of fulfilling very different social
functions. These functions are the requirements of an emerging and
developing capitalist social order that “needs” the persistent repres-
sion of the unsocialized and recalcitrant members of the working
class. Furthermore, even the reformers themselves were mystified
into believing that the social control system was “fair, humane and
progressive” (1985: 22).
In accordance with our discussion above, we can say that the disci-
pline and mystification story has both instrumentalist and structuralist
versions.The former is a historical materialist account which assumes
that it is changes in political economy which underpin changes in
penal practice.There is little room for ideas, intentions and choices in
this story since everything that occurs is seen as required by the needs
of the capitalist system. Ideas are assumed to conceal the real interests
and motives behind the system.They are a façade to make acceptable
the exercise of otherwise unacceptable power, domination and class
interests. The works of Rusche and Kirchheimer (1939) and Melossi
and Pavarini (1981) exemplify this story.The structuralist version, on
the other hand, is less reductionist in two senses. First, it accords a
greater independence to the interests of the state in the formation

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of penal policy and practice; and second, it conceives of ideology

as a significant vehicle for domination and control in itself. The
study by Ignatieff (1978) approaches this less reductionist and more
structuralist version of the development of punishment.
Rusche and Kirchheimer’s study (1939) begins much earlier than
the eighteenth century since they also account for the historical
development of other forms of punishment. They consider three
historical periods: the early Middle Ages, the later Middle Ages and
the modern period, dating from the beginning of the nineteenth
century. In considering these three periods, they examine the rela-
tionship between three things: (1) forms of punishment; (2) social,
economic and political changes; and (3) penal ideology. Their thesis
is that changes in the mode of production create new class interests
and therefore changes in the forms and ideologies of punishment to
support those interests.
In the early Middle Ages, when much of European society was
feudal in character, the population was small and there was a high
demand for labour. The dependency of lords of the manor on their
peasant workers or serfs, together with the growth of towns that
for economic reasons attracted workers away from the land, meant
that landowners had to treat their serfs with care. Punishments were
therefore relatively benign. Order was maintained largely through
traditional and religious authority.Where offenders did stray from the
right and proper path, they were “persuaded” to return to the fold
through the imposition of fines and penance. Jails were only used to
hold persons until their fines were paid. Justice was largely a local
matter. The state remained a distant authority. Such a system served
well the interests of the landowners.
In the fifteenth century, certain changes took place in the political
economy that “required” the invention of new forms of punishment.
The population began to increase. This in turn led to the exhaustion
of fertile land and an unsatisfied demand for grain. Landowners turned
small tenant farmers off their land to make bigger profits. As unem-
ployment rose, landowners were able to pay lower wages. As poverty
increased, the unemployed peasants streamed to the towns, but the
townspeople enacted Poor Laws which criminalized the activities,
not to say the mere presence, of persons now defined as “beggars”
and “vagrants” (see Chambliss 1964); such laws were designed to
keep out these and other members of the “dangerous classes.” (For

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the story in the United States, see Shelden 2008.) The classic trilogy
of class struggle, unemployment and “crime” was thus formed. The
poor turned to “crime” as a means of survival. The authorities then
responded by enacting harsh criminal law to deal with this perceived
threat to social stability and to protect the interests of the new com-
mercial class emerging at this time.Thus the methods of punishment
that became routine at this time were execution, mutilation and
flogging.
The sixteenth century witnessed further changes in the politi-
cal economy that in turn led to new forms of punishment. These
changes included the growth of towns, increased demand for con-
sumer goods, growth of the financial system, expansion of trade and
markets and the conquest of foreign territories. All these added up to
the Age of Mercantilism. However, at the same time, the population
began to decline which meant a decline in the labour pool. This in
turn led to a rise in wages and a consequent decline of manufactur-
ers’ and merchants’ profits. The commercial class therefore appealed
to the state for help. Attempts were made to increase the labour
pool by increasing the birth rate through tax breaks for early mar-
riages and large families, laws prohibiting the clergy from sanctioning
unwed mothers, condemnation of the customary one-year period
of mourning and attempts to stop infanticide. When these were less
than successful, laws were passed forbidding the migration of labour,
fixing maximum wage levels, establishing working hours of between
12 and 16 hours a day, prohibiting worker associations and work stop-
pages and encouraging child labour. Most important, however, was
the introduction of state-sponsored systems of forced labour. Thus,
law violators and others under state supervision were drafted into the
“Houses of Correction.” The acute labour shortage became linked
to the perceived “plague of the beggars” and laws were broadened to
define vagrants to include all who refused to work at prevailing rates.
By the end of the seventeenth century, the “Houses of Correction”
became, in response to economic conditions, a significant part of
penal policy. In them prisoners were forced to work and thus develop
the habits of industry. The Houses were run either by state adminis-
trators or by private contractors. Either way, the inmates were used
to aid private enterprise at a time of labour shortage. This is a prac-
tice that has survived into the twenty-first century, regardless of the
available supply of “free” labour.

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The relationship between economic interests and penal practice is

particularly clear-cut in the cases of galley slavery and transportation.
Thus, galley slavery grew out of the need for rowers to propel sail-
ing vessels in the Mediterranean. Many European powers used galley
slavery as a form of punishment, not only for “senior offenders,” but
also for beggars and the “unworthy poor.” At the height of demand
for oarsmen, the courts in France, for example, were instructed by
the Crown to convict criminals more quickly and judicial administra-
tors organized hunts for potential felons who could be sentenced to
galley slavery. Private prison corporations in the United States have
made similar arrangements with willing judicial personnel in the
present (Wikipedia n. d.). The standard sentence for galley slaves was
between 10 and 12 years so that maximum utility could be obtained
from them. Galley slavery declined only when refinements in the art
of navigation eliminated the need for it.
Transportation – the shipping of convicts to distant colonies –
emerged when labourers were needed to exploit territories acquired
through the practice of imperialism. At first, as Columbus Day in
the United States reminds us, the colonial settlers tried to enslave the
native populations, but these groups tended to resist and were killed
off in colonial wars. Those indigenous persons who were enslaved
often died as a result of harsh labour and exposure to European dis-
eases (see Chapter 11). The importation of convict labour was thus
an attractive alternative. Not only was it a solution to the labour
problem in the colonies, but it also avoided depleting the labour
pool in the home country.Throughout the eighteenth century, thou-
sands of convicts were thus sent to the colonies, typically for a fixed
period of time after which they obtained their freedom. Many stayed
and became independent farmers and planters.Transportation ended
as a form of punishment when it became clear that the importation
of African slaves was more profitable. African slaves were considered
more valuable because of the indeterminate length of their servitude
and because of their average smaller size than European convicts.This
meant that more of them could be packed into the slave ships.
We mentioned earlier the influence of the Enlightenment philoso-
phers on the penal “reforms” occurring at the end of the eighteenth
century and, in particular, on the development of the prison. While
they recognize the role of these “thinkers” in the process of penal
change, Rusche and Kirchheimer (1939) nevertheless stress that these

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have to be seen in the context of the political and economic changes

occurring at the time. Thus, the late eighteenth and early nineteenth
century saw the birth of the Industrial Revolution and consequent
changes in the mode of production. It is against this background that
the development of the prison has to be understood. There was, in
effect, a coincidence of the rationalizing influence of the reformers
with the economic interests of those with most to gain from the new
industrial order.
The Industrial Revolution meant a declining need for labour
as industrial production was increasingly mechanized. At the same
time, the population of industrializing countries began to increase.
Work became scarce, unemployment rose, and again the poor turned
to “crime” as a means of survival. The authorities responded with
demands for a return to harsh punishment, with imprisonment the
chief form. Within the prisons, the inmates were subjected to harsh
regimes designed to discipline them. It was believed that they should
learn through exposure to routines, “proper” habits of industry and
submission to authority. Given the reserve labour pool and the
development of the factory system, there was no economic payoff in
exploiting the labour of prisoners. Work instead became a means of
punishment: prisoners were required to carry stones from one place
to another, work pumps which returned flowing water to its source,
use treadmills and, perhaps slightly more satisfying, grind pebbles
into sand.
For Rusche and Kirchheimer, then, the prison serves several
important functions for the industrial capitalist social order. It makes
docile the recalcitrant members of the working class; it deters other,
potential criminals; it teaches habits of discipline and order; and it
reproduces the hierarchy so integral to the system of capitalism.
In terms similar to Rusche and Kirchheimer, Melossi and Pavarini
(1981) argue that the concept of discipline is central to understanding
the emergence of the prison as the dominant form of punishment at
the time of the Industrial Revolution. The system requirement, they
claim, is for a “socially safe proletarian,” someone who has “learnt
to accept being propertyless without threatening the institution of
private property” (Cohen 1985: 23). The prison is therefore like a
factory. It is the function of the prison to produce such persons for
the capitalist industrial order. Instead of producing goods, it produces
disciplined workers.

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In his book, A Just Measure of Pain, Ignatieff ’s focus (1978) is not

only much narrower than that of Rusche and Kirchheimer, it is also less
reductionist and instrumentalist. His aim is to account for the emer-
gence of the penitentiary in England in the period between 1770 and
1840.At times, his account is quite similar to that of Foucault. However,
as Ignatieff emphasizes in his subsequent reflections (Ignatieff 1983
[1981]) on his own work and that of Rothman (1971) and Foucault,
there is also an instrumentalist strain running through Foucault’s writ-
ings on the disciplinary power of the state. In contrast, Ignatieff attempts
to explain the emergence of the penitentiary “without imputing
conspiratorial rationality to a ruling class” (1983 [1981]: 77).
A Just Measure of Pain stresses first how the reformers and classical
philosophers of the eighteenth century forged a “new disciplinary
ideology.” Cesare Beccaria, Henry Fielding, John Howard, Jeremy
Bentham and Samuel Romilly were central figures in what subse-
quently became known as “classical criminology” and the reformist
ideas for reshaping the criminal justice system associated with it.
“Just” and “equitable” measures of pain (through imprisonment) were
to be administered in carefully calculated response to the severity of,
and “pleasure” derived from, “crime” (our scare quotes). The ideal
of this new system was reform through punishment, not careless ret-
ribution as had been the case when the body rather than the mind
had been the penal object. Philanthropic campaigns to build prisons
and reform the old criminal justice institutions were launched. They
offered a new “strategy of class relations” although they did not express
themselves in this way. Thus, “in return for the humanity of minimal
institutional provision, the disobedient poor were drawn into a circle
of asceticism, industriousness and obedience” (Ignatieff 1983 [1981]:
87). It was argued that “they would return to society convinced of the
moral legitimacy of their rulers” because “prison reform was to be
humane and just punishment which would convince the offender of
the moral legitimacy of the law and its custodians” (1983 [1981]: 87).
The reformers gained support for their “disciplinary ideology”
from the “evangelical, professional, mercantile and industrial classes”
who were “seeking to cope with the dissolution of a society of ranks
and orders and the emergence of a society of strangers” (Ignatieff 1983
[1981]: 87).These members of the bourgeoisie were also victims, either
directly or indirectly, of the “crisis years of early industrialization,”
especially after 1815.

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The “crisis” was manifested in three main ways. First, there was
a breakdown in social relations because of the casualization of the
agricultural proletariat in, speaking of England, the southeastern agri-
cultural counties.This led to rising rates of vagrancy, pauperism, petty
“crime” (our quotes) and riots. Second, there were riots and rising
rates of juvenile “crime” (our quotes) in London, a state of affairs with
which the existing constabulary could not cope.Third, in the north-
ern industrial regions, labour markets tied to single industries like
cotton were vulnerable to the cycles of demand in international trade.
In “bad years,” this led to a breakdown in labour market discipline. In
these circumstances, the new policy of mass imprisonment was seen
as a potentially effective response to the breakdown in public order.
Even though there may have been a coincidence of interest among
the reformers and the bourgeoisie, it is important to remember, as
Ignatieff reminds us, that the reformers did not justify their program
as a response to the problems of labour discipline during this time
of crisis. The reformers’ ideas antedate these discipline problems by
a substantial period of time. Consequently, it would be incorrect to
reduce the emergence of the penitentiary to the economic interests
and problems of the bourgeoisie at this time of crisis. On the other
hand, of course, it is difficult to imagine that the reformers would
have succeeded in implementing their program “if the authorities had
not believed they were faced with the breakdown of a society of sta-
ble ranks and the emergence of a society of hostile classes” (Ignatieff
1983 [1981]: 90).
In sum, then, in Ignatieff ’s account, we find that the rise of the
penitentiary is explained not solely in instrumental terms. Ignatieff
does not, as do Rusche and Kirchheimer, account for the emergence
of the prison solely in terms of its instrumental “functions” for the
industrial capitalists. Rather, it is a more structuralist account and
seeks to incorporate an independent domain of ideas into its explana-
tory approach. To be sure, the emergence of the prison is not then
explicable in a simplistic idealist fashion. Ideas are important, it seems,
when viewed in conjunction with the forces of economic interests
and problems of class relations. As Ignatieff puts it,

the new carceral system was not the work of an overarching stra-
tegic consensus by a ruling class, but instead fell into place as a
result of a conjuncture between transformation in the phenomena

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of social order, new policing needs by the propertied, and a new

discourse on the exercise of power.
(Ignatieff 1983 [1981]: 95)

The functions of the prison

The work of Marxist theorists and their thesis that the function of the
prison is one of discipline and mystification has also been applied to
the contemporary prison. Thus, Fitzgerald (1977) compares what he
calls the “official functions” of the prison with those that are visible
from a Marxist point of view. From the official point of view, the
functions are reformation and rehabilitation, protection of society,
deterrence and punishment. Of course, of these the only one that is
successfully achieved is the last. Thus, prisons do not rehabilitate or
reform, they do not protect society because prisoners typically learn
from each other how to be “better” criminals, and they do not seem
to be very effective deterrents, reflected in the extremely high rates of
recidivism. However, from a Marxist point of view, prisons do appear
to be quite successful in some respects. Thus, Fitzgerald points out
that they serve a “sanitation function” insofar as they remove from
view those unproductive and recalcitrant elements created by the
social structural arrangements of capitalist society. Indeed, in some
Latin American cities, police forces have taken upon themselves the
task of “social cleansing” more directly by murdering, for example,
indigent youth trying to eke out an existence on the streets (see,
for example, Graham 2016). Furthermore, by sentencing individ-
ual offenders, the prison permits the “individualization” of crime
and therefore strengthens the individualistic ideology so central to
capitalism. Criminals are thus defined as “failures” in the “normal”
competition characteristic of capitalist society. This serves to mys-
tify the political character of eliminating such persons. The prison
may also be said to serve a “distraction” function insofar as the mas-
sive incarceration of largely petty offenders from underprivileged
and minority groups diverts attention away from the “criminality”
of the rule-makers and the “crimes” of the powerful. Punishment
of lower-class offenders also serves to distract attention from acts
which are much more harmful to the population at large, but which
are not criminalized. Finally, prison can be seen to serve a “symbolic
function” in that it represents what is currently conceived as “good”

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triumphing over “evil.” As such, it serves to deter would-be challenges

to contemporary conceptions of social and legal order. The inmates
themselves are socialized into a passive acceptance of the hierarchical
divisions in society, symbolized in the relations of domination and
subordination between them and the “authorities.”

The prison “crisis,” particularly in the UK

Developments in law creation, in police methods and in the courts

during the 1970s and 1980s have been interpreted by Marxist theorists
as responses to a crisis of capitalist political economy and hegemony.
The prison too has been a scene in which a greater repression has
been observable. In this section, we shall consider briefly the features
of this development and relate them, in Marxist fashion, to develop-
ments in both the wider criminal justice system and the political
economy at this historical juncture.
Sim (1987) identifies the most important features of the “crisis”
within prisons that emerged over the previous decade or so. These
include a crisis of overcrowding in disgusting, insanitary conditions;
conflict between rank-and-file prison officers and their bosses (the
Home Office, prison governors) and others (social workers, probation
officers and teachers); and conflict between prison officers and the
prisoners themselves, manifested in injuries to both sides, demon-
strations against officer brutality, and a series of disturbances, protests
and “riots,” especially in long-term maximum-security prisons. In
addition, prisoners have turned increasingly to the law itself as a
means of challenging existing treatment policy within prisons, result-
ing, for example, in winning the right to be legally represented at
prison disciplinary hearings (though, as Sim points out, this right has
since been subverted by the authorities). Finally, it has been increas-
ingly recognized, as we have already indicated above in our review
of the official functions of the prison, that incarceration does little to
prevent recidivism. In fact, it tends to achieve precisely the reverse.
The response by the state to the crisis of overcrowding is described
by Sim (1987: 194) as “classical and predictable.” That is, in the face
of rising rates of “indiscipline,” the state intensifies repression and
coercion. New prisons are built and old ones refurbished. But far
from relieving overcrowding, these measures simply create more
capacity for more prisoners; they permit the use of imprisonment as

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a punishment option to an even greater extent than before. As the

new places are provided, they are filled up so that the overcrowding
remains. Similarly, where alternatives to custody are used, such as
so-called “community control” (fines, suspended sentences, weekend
imprisonment, community-service orders, electronic tracking, etc.),
the result is not a diminution of the prison population. Rather, as
Cohen (1985), Hylton (1981) and Scull (1984 [1977]) have shown, the
“decarceration” movement and the alternatives to custodial control
mean, in fact, an increased penetration of social control into the com-
munity, where “offenders” who previously might have escaped the
attentions of the authorities are now drawn into the ever-widening
net of control.
In response to what Sim (1987) calls the “crisis of containment” –
the confrontations, disturbances and protests – the state reinforces and
consolidates prison security measures.This is achieved partly through
the application of advanced technology. In addition, as Sim points
out,

the authorities have introduced and extended various techniques

aimed at controlling, neutralizing and isolating those individu-
als who are regarded as difficult, recalcitrant or subversive. The
use of psychotropic drugs to control the behaviour of prisoners
has been a major area of controversy in British prisons in recent
years, as has been a number of cases of prisoners who have died
in custody either through violence or through lack of care by the
prison authorities. The introduction of a special squad of prison
officers trained in techniques of riot control – the Minimum Use
of Force Tactical Intervention Squad (MUFTI) – has further con-
solidated this drive towards maintaining order and control inside.
It has been intimated recently that all prison officers are trained
in the techniques of riot control. The prison authorities have also
used various forms of segregation in the form of solitary confine-
ment, segregation units and control units to isolate those regarded
as difficult.
(Sim 1987: 197)

If prison systems in the major English-speaking countries have both

expanded and become more repressive since the 1970s, the key socio-
logical issue for the Marxist theorist is why this is happening at this

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historical juncture.What political-economic conditions provide for a

plausible account of these developments? In part, the increased repres-
sion in prisons is understandable as one more constituent feature of
the array of authoritarian measures introduced over the period, par-
ticularly under the right-wing governments of Thatcher (UK) and
Reagan (United States) from 1979/1981 onwards. Legislation has
been passed extending state power, while the instruments of state
power, especially the police, have been strengthened with dispro-
portionate amounts of public expenditure. The expansion of prison
systems fits neatly into this picture. It also has benefited from the shift
in resources towards law-and-order expenditure. In instrumentalist
terms, this shift and the authoritarian response that it enables are
designed to support the interests of those who have most to gain
from current political-economic arrangements. The neoliberal capi-
talism sustained by governments of all stripes (conservative, liberal and
“new labour”) in Western societies since the late 1970s has resulted in
increasing class conflict as whole sections of society become “prob-
lematic” for the preservation of social order.Where there is resistance,
this is met with increasingly coercive instruments of control. Prisons
have a central role to play in controlling these problematic and
“surplus” populations. As Box (1983) puts it:

[D]uring times of economic crisis, state coercion increases in

response to the perceived threat, real or imagined, of public disor-
der including crime waves.The judiciary, being an integral part of
the state control apparatus, makes its contribution to this increased
level of coercion by imprisoning more, particularly those typifying
the actually, or potentially, disruptive problem populations. This
judicial response is one the state, by adopting a posture of non-
interference with the independence of [the] judiciary, gratefully
allows to occur.
(Box 1983: 217)

While it is possible to relate instrumentally these changes in the

penal system to (1) the increasing authoritarianism of the criminal
justice system as a whole and (2) the move to a neoliberal-capitalist
economy, it is also important to consider them in structuralist terms.
Indeed, as Sim (1987: 206) reminds us, “there is no straight ‘fit’
between economy, class and state.” Structuralist interpretations, as

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we have suggested, are less reductionist than instrumentalist accounts

in according a greater independence to the interests of the state in
the formation of penal policy and practice, and in elevating the role
of ideology as a significant vehicle for domination and control in
itself. The constituents of the “deep decisive movement towards a
more disciplinary, authoritarian kind of society” (Hall 1980: 3) are
“not invariably tied to the economic sector” (Davis and Stasz 1990:
70, emphasis in original). They can be seen to involve an exten-
sion of state power tout court and the reconstitution of “the whole
of society . . . as a field of social relations structured in dominance”
(Solomon et al. 1982: 21). Furthermore, as Sim remarks,

it is also important to acknowledge that these developments in

penal policies and criminal justice practices could be seen as
indicative of the government’s desire to establish a much more
integrated and less informal process of justice in England and Wales
which would approach problems of crime and public order in a
manner which is rational, professional and ultimately ruthless.
(Sim 1987: 205)

In other words, then, the state can be seen to have its own “authori-
tarian agenda” and “vision of order” (Ignatieff 1978), which cannot
be simplistically tied to the immediate interests of the economically
powerful.
In addition, far from being “economically rational,” in structuralist
terms, the expansion of the prison system and the containment of
increasing numbers of “offenders” within it can be seen to contrib-
ute to the contradictions of capitalism. We note briefly three ways in
which the growth of punishment described above embodies “struc-
tural” contradictions. First, by expanding the prison system and by
incarcerating ever-increasing numbers of prisoners within it, the state
contributes to the very problem of overcrowding in prisons that the
expansion was designed (in part) to alleviate. Second, at a time of
fiscal crisis, and with cuts in public expenditure high on the political
agenda, it is contradictory to spend more and more money punishing
people. Such a policy serves to deepen the fiscal crisis. Third, given
the crime-producing tendencies of incarceration, the expansion of
the prison system serves to create more and more criminals, a process
which, incidentally, costs more and more to control.

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Readers interested in how parole operates in these conditions of

structural conflict may wish to consult Mandel’s (1985) excellent
Canadian account.

The grammar of Marxist criminology

Marxism is a politics before it is a science. It is born out of a complaint
about a crime – that the fruits of the labour of the vast majority of
people in society are robbed from them by a small minority of other
people, the offenders, who then use the proceeds of that crime to
dominate its victims. Economic exploitation is the basis of political
domination; the crime is a political-economic one. Moreover, it has
happened throughout human history, from antiquity to the capitalist
present. In that such a claim is expressed in the form of a complaint,
members are inclined to take it seriously, complaints being a way to
package truthful speaking (Sacks 1975). But, as this book has been at
pains to remind us, simply calling the object of complaint a crime does
not make it so. On the contrary, far from being criminal, the “crime”
complained of is simply the actually existing (currently neoliberal,
capitalist) social order itself, sedimented in and by the really existing
civil and criminal law. Far from criminalizing the situation complained
of, the criminal law is turned decidedly against the complainants.
See Sasha Lilley’s (2011) Capital and Its Discontents: Conversations with
Radical Thinkers in a Time of Tumult for a collection of compelling
diagnoses of the current complaint and what to do about it.
Marxism seeks, then, to emancipate the oppressed (the econom-
ically exploited and politically dominated) from the rule of their
oppressors by overturning the given social order. Revolution as the
remedy follows from the diagnosis of the complaint.Though touched
off by symptoms readily observable in the mills, factories and fields of
industrializing societies in the early nineteenth century, the diagnosis
is developed on the basis of a theory. And the principal moving part
in the theory is the concept of class (Lynch and Stretesky 2011b:
xi; citing Wright 1997 [1985]). Whence did Marx and whence do
Marxists get the concept of class? It comes from the language of
everyday life. And what does it do there? And then what is it made
to do in the theory?
The dictionary reminds us that “class” has a number of related
meanings which vary from referring to a grouping of just about

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anything (as in Sacks’s “two-class sets” that we met in the Introduction

to Part III) to orders of plants and animals, to organizational units
(and associated meanings) within educational institutions, to, even-
tually, divisions among people generally, with particular reference to
economic divisions or occupational groupings or status differences.
These meanings do not account, however, for the uses to which
the concept is put according to context and practical circumstance.
Nor is there, to our knowledge, any sustained and detailed, empirical
examination of such uses. This is a truly vast lacuna in extant profes-
sional sociology, valuable conceptual histories (for example, Gobo
1993; Williams 1985) and linguistic etymologies (for example, De
Mauro 1958) and perhaps less valuable theoretical excursions (for
example, Bourdieu 1987) aside. Nor is it our mandate to fill that
gap here. Nevertheless we can do two things. The first is to con-
sider, if only briefly, the vagaries of the concept of social class in
ordinary usage. The second is to draw some lessons from Maynard’s
ethnomethodological study (1984) of plea-bargaining in which the
negotiating lawyers appeal to the social-class-related characteris-
tics of the offender before them in coming to an agreement about
sentence.
“Before becoming a concept of botany, mathematics, logic, geol-
ogy, economics or sociology, the concept of ‘class’ was a construct of
ordinary language, corresponding to what might be called ‘folk cat-
egories’” (Gobo 1993: 467).There are the lower class, the middle class,
the upper class, the higher class, the productive class, the useful class,
the idle class, the privileged class, the working class, workers, work-
men, labour and capital, the labouring class, the operative class, masters
and slaves, wage slaves, the managerial class, employers, owners, the
proletariat, the lumpenproletariat, the precariat, the bourgeoisie, the
destitute, the co-ordinator class, the professional class, the trading class,
people of independent means, the salaried class, wage-earners, the
rich, the super-rich and the filthy rich, the poor and the pauperized,
the one per cent and the ninety-nine per cent, the first class, second
class, third class, the well-off and the well-to-do, the affluent, the wel-
fare poor, the low-income, the middle-income and the high-income,
those of low, medium and high (socio-economic) status, landowners,
merchants and manufacturers, the aristocracy and the commoners,
the plutocrats, les gens humbles (humble people), persons of rank, the
common people, common folk, people of low, high and middling

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rank, top and bottom classes, people of low, medium and high station,
plural versions of many of the foregoing, and more you can probably
think of and think up. For we language users don’t stop. To repeat
a fundamental point from Chapter 1: “Language is an instrument.
Its concepts are instruments” (Wittgenstein 1972 [1953]: 569). We
use them for doing things, for performing actions. As instruments
or tools, concepts or words can be modified, extended, re-tooled.
And in any use, their meaning will be informed by the context of
their use. Thus have people from the dawn of time used language to
mobilize one another in support of political goals defined in such
terms as fairness (say, in the price of bread), justice, liberty, equality
or solidarity, independently of whether or not they had a theory on
which to hang their claims.

A good many criteria used in scientific analysis as instruments of

knowledge, including the most neutral ones and those that seem
most “natural” such as age or sex, operate in real practices as clas-
sificatory schemes . . . The representations which agents produce
to meet the exigencies of their day-to-day existence, and particu-
larly the names of groups and all the vocabulary available to name
and think the social, owe their specific, strictly practical, logic to
the fact that they are often polemical and invariably oriented by
practical considerations.
(Bourdieu 1987: 10)

Williams (1985: 64, 62) attests to the standard political context of

the use of class when he writes that from the 1840s, the singular
“class,” as in “working class,” is preferred by socialists, while conserva-
tives opt for the plural “working classes,” though they would like to
avoid using the concept of class at all. These days, of course, at least
in Canada, everybody is always already “middle class.” (In case you
are missing it, let it be said that the previous sentence is descriptively
accurate, politically observant and heavily sarcastic!) Williams traces
the emergence of the various concepts in relation to the social con-
text of the time, including the important period of the Industrial
Revolution (1770–1840), the words inhering in the forms of life
animated by them and which they animate: “The essential history
of the introduction of class, as a word which would supersede older
names for social divisions, relates to the increasing consciousness that

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social position is made rather than merely inherited” (1985: 61). And
it made and makes a difference whether a particular item in this
vocabulary of terms is avowed by, or ascribed to, a person or group
(see Jayyusi 1984; Eglin and Hester 1992). In the one use, a person
may invoke the concept of class to make a proud declaration of self-
identity. In the other use, an insult or putdown may be intended:
“Around 1830, class became an essentially relational concept, a social
epithet aimed at establishing distance in interactions, at including
or excluding people as belonging or not belonging to the speaker’s
world” (Gobo 1993: 473). Sacks points out, for example, that for the
MCD “class,” as for age,

If any Member hears another categorize someone else or them-

selves on one of these items, then the way the Member hearing
this decides what category is appropriate, is by themselves cat-
egorizing the categorizer according to the same set of categories.
(Sacks 1989: 277–278)

Except ironically, one does not hear “lower class” applied by a person
to him- or herself; it is more readily used in sneering contempt for
others to whom the speaker fancies him- or herself superior. It’s not
so much a description as an evaluation of the other.
To get greater purchase on the grammar of the concept of class,
we turn to a study in ethnomethodological conversation analysis of
the interactional use of language. Why? Because in EM/CA,

language is seen as foundational and omnirelevant; instead of lan-

guage being just another substantive topic, every topic of sociology
is seen as linguistically constituted . . . Thus, for instance, “social
class” is presented as a worded entity, an accountable and reportable
phenomenon for members.
(Watson 1992: 260)

To be sure, in the case that follows, the words “social class” do not
appear, but the concept that they name may readily be inferred from
the use of other terms in the family of concepts of which “social
class” is a member. In the case at hand, it is clear enough that class or
class-related matters are the basis of the public defender’s pitch for a
reduced sentence for the defendant.

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Maynard: the use of defendants’ attributes in plea-bargaining

On the basis of close examination of tape-recordings of plea-

bargaining sessions between attorneys in a US court system, Maynard
(1984) shows:
1. how both public defender and district attorney use defendant
attributes such as sex, race, age, marital status, number of children,
religiosity, occupational status and ethnicity along with other fea-
tures of the circumstances of the case to determine what offence,
if any, took place, and thus to justify proposed dispositions;
2. how the meaning of any attribute depends on its relationship to
the collection of others; and
3. how both these matters are assessed in terms of how the case
would look in court, before a jury (Eglin 1987: 206).
In the following extract, the public defender (PD) responds to the dis-
trict attorney’s proposal “that the defendant should spend 75 days in
jail on the present charge” (Maynard 1984: 157) of drunken driving.

PD2: See, here’s his problem. The guy lives and works in South
Beach, he’s got a good job, well, least he’s working, he supports
his family, wife and kids, and it’s his third drunk driving offense.
And, uh, if he does 75 days straight time, he’s going to lose his job,
his wife’s going to be on – kids, you know – family’s going to be
on welfare.
(Maynard 1984: 157)

Maynard makes two central observations in relation to this extract.

The first is that the public defender’s descriptions are not merely or
disinterestedly descriptive, but are selected for their interactional util-
ity, specifically to counter the position taken by the district attorney
and to solicit a penalty which is not only more lenient, but which
would avoid the undesirable outcomes projected by “75 days in jail.”
He subsequently argues for weekends in jail.The second observation
is that these descriptions do not stand in relation to each other as
independent items in a list, but rather are related to one another con-
textually. That is to say, the meaning of each descriptive item informs
and is informed by each of the other items. Thus, “it is not just that
he is ‘married’ and has ‘children,’ but that his family will be affected if
he serves ‘seventy-five days’ in jail” (Maynard 1984: 158).The number
of days is not significant in itself, but contextually, in terms of the

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defendant being “employed” and having a family, wife and kids to

“support.”
Like Sudnow (1965), Maynard uses such examples as this to show
that defendant attributes are “salient in negotiations because they
are used to construct the person as a good or bad character, thereby
providing a way of seeing the alleged offense as a ‘real’ crime or
not” (Maynard 1984: 160). This practice is a specific form of the
documentary method of interpretation (Garfinkel 1956, 1967) in which
the meaning of any of a collection of particulars, such as the person
descriptions above, is determined by a presumed underlying pattern
such as a “good character,” just as those particulars determine the
meaning of the underlying pattern. The descriptions form part of a
“gestalt contexture” built up around each case and not separable from
it, in which background and foreground, context and particulars,
mutually constitute one another.
Coming via descriptions to a determination of “what sort of a
person the defendant is,” and thus what his or her actions amount
to and what punishment, if any, they deserve, leads the attorneys, in
the absence of a Sudnow-like normal crime reduction scheme, to
a collaborative search for a suitable offence on which to settle the
plea bargain. This is quite reminiscent of and formally similar to the
skid row police officer’s problem that Bittner (1967a: 710) identifies
(see Chapter 6) as “whether, when someone ‘needs’ to be arrested,
he should be charged with drunkenness, begging, or disturbing the
peace.” And there is a quite obvious parallel with the world-orderly
considerations informing the US (and UK) decision to go out and
“arrest” Iraq in 1991 and again in 2003: should Saddam Hussein be
“charged” with harbouring “weapons of mass destruction,” getting
into bed with Osama bin Laden or having a wretched human rights
record? The question being posed by the global cop here is, as it were:
what will work best for what “we” actually want to accomplish here,
given the contingencies that need to be managed?
Maynard’s conclusion is one that directly addresses the overall
thesis of this book. If we are to understand which actions get con-
stituted as crime and what crimes they are constituted as, we cannot
avoid examining “common sense reasoning and the use of attrib-
utes to typify offenders and acts for deciding guilt or innocence”
(Maynard 1984: 163). Furthermore, he acknowledges the necessity
“to examine the typification process in relation to other aspects of

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the negotiational environment” (1984: 163), such as argument and

counter-argument, participants’ concerns for formal and substantive
justice and the anticipated defensibility of particular cases in court.
Last, he recommends a focus on “how discourse is organized within
the criminal justice process” (1984: 163; see Atkinson and Drew
1979).
Thus, Maynard’s study confirms again what many studies before
his have attested; namely, that defendant attributes – that is, offender-
related characteristics such as social class – are indeed used in
prosecuting, defending and sentencing offenders. But what his eth-
nomethodological approach reveals which other approaches do not
is the selective and contextual use of such attributes by members of soci-
ety themselves. Such uses are designed for the practical tasks at hand,
tasks that may be accomplished without any recourse to sociological
theories of the matters they take up. On the contrary, the intelligi-
bility of professional sociological theories going under the name of
Marxist criminology depends entirely on members’ commonsense
knowledge of the social structures being theorized about, from which
the theories’ concepts and analytic moves have been abstracted and
generalized. It is plain enough to every competent adult that, in terms
of the practical management of the ordinary affairs of everyday life,
wealth buys influence if not power, including access to the remedies
on offer from the criminal justice system, and protection in large part
from its strictures, and that this sociology operates at every moment
of criminalization from the making of criminal law to the conditions
of parole for the ex-con. See, for example, Walker (2015).2
According to an editorial in The Globe and Mail about “high-
priced justice,” the

Canadian Bar Association . . . estimates that, two decades ago, at

least 95 per cent of people appearing in court were represented
by a lawyer. Today, “anywhere from 10 to 80 per cent of litigants
are unrepresented, depending on the nature of the claim and the
level of court,”
(Editorial, The Globe and Mail, 6 January 2014: A8)

About “half of all family law litigants have no lawyer” (2014: A8).
As cases become longer and more expensive, only those earning less
than half the minimum wage are eligible for legal aid in Ontario. One

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superior court judge said “that the country’s courts were becoming
‘only open to the rich’” (2014: A8).

He was commenting on a case before him involving an alleged

$1.2-million fraud; the family being sued was well on its way to spend-
ing as much as $800,000 fighting the action.“If we have reached the
point where $800,000 cannot buy you a defence to a $1.2-million
fraud claim, then we may as well throw up our collective hands and
concede that our public courts have failed,” said Justice Brown.
(Editorial, The Globe and Mail, 6 January 2014: A8)

It is only because this is so, and is known by members to be so,

that Marxist criminological theory or any other sociological theory
about social class can be read as making any sense at all. For example,
Richard Quinney (1970) writes:

my perspective is based on a special conception of society . . . char-

acterized by diversity, conflict, coercion and change, rather than
by consensus and stability . . . [in which] law is made by men, rep-
resenting special interests, who have the power to translate their
interests into public policy.
(Quinney 1970: 35)

Is there really anything “special” about such a view outside profes-

sional sociology, other than the abstracted language in which it is
expressed? Such sociologists should perhaps be doing politics out-
right instead of doing the pseudo-politics of sociology. This applies
across the board, of course.
The problem, though, is not just a matter of doing politics instead
of doing social studies; it is the practice of imposing on members of
society concepts that are not theirs:

[T]here is a kind of theoretical imperialism involved here, a kind

of hegemony of the intellectuals, of the literati, of the academics,
of the critics whose theoretical apparatus gets to stipulate the terms
by reference to which the world is to be understood – when there
has already been a set of terms by which the world was understood
– by those endogenously involved in its very coming to pass.
(Schegloff 1997: 167)

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Similarly, the model of the television viewer or newspaper reader in

much of media studies (derived from cultural studies), despite pre-
tensions otherwise, is what Anderson and Sharrock (1979: 374) call
“the passive dope” and Sharrock and Coleman (1999: 1) call the
“media dope,” one who fails to detect and is thereby seduced by the
(right-wing) “bias” in the mainstream media that the professional
sociologist can see through, thanks to his or her powerful theory. It is
not being said here that the bulk of the mainstream media does not
have a right-wing, pro-business, law-and-order agenda. On the con-
trary, who would think or expect otherwise? Not only are the major
media themselves business corporations and thus would naturally
take such stances – and crime stories are, after all, cheap – but they
announce this in their editorials, if not their mastheads and entire
presentation. For example, consider the front page of the Toronto
Sun, a tabloid newspaper owned 35 per cent by a Manhattan-based
hedge fund, for Wednesday, 12 July 2000. The page is largely occu-
pied by the headline, in large red text, “‘Society Is Going Crazy
And You’re Not Doing Anything,’” next to a photo of the head and
face of a crying man. Under the masthead, in smaller black slanting
type, are the words, “Slain man’s dad pleads tearfully for tougher
laws . . .” It’s the idea that the typical media consumer is ignorant of
the paper’s position, cannot see it and is thus mystified by it that is
problematic.
This situation is not remedied by allowing that Marxist theory’s
validity is realized through the success or failure of the political pro-
gram to which it is dialectically related in a union of theory and
praxis, as in formulations such as this: “Only by the union of theory
and practice, by the conjunction of theoretical understanding and
practical political activity, can social change be effected” (Giddens
1971: 20). Whenever the theory is found wanting, perhaps the solu-
tion is not to revise the theory, to get a better theory, which, it has to
be admitted, is such practitioners’ constant recourse and refrain, but
to change the way of doing politics. And Marx might well agree with
this conclusion: “Marx’s work was theoretical because it was political”
(Carver 1982: 9, emphasis in original), not because politics demands
theory, but because, for a young journalist, writing “theoretically”
was a way to avoid the censor. Eleanor Marx, Karl’s daughter, would
have understood: her “father was a great philosopher but he never
rolled up his sleeves and got involved in organizing and activism the

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way his daughter did. It was Eleanor who really carried on the fam-
ily business” (Rachel Holmes [2014], quoted in Hunter 2015: IN2).

Conclusion: the functions of crime

Unlike the structural consensus view of functions as being per-
formed with respect to the whole society (Chapter 3 of this book),
the Marxist or structural conflict perspective sees functions in relation
to particular groups or classes within society. Thus, rather than “law
and order” serving the “national” interest, they are seen to serve the
interests of the ruling class (who will reliably try to represent their
interests as the national interest). This may be achieved directly for
the capitalist class under the instrumentalist interpretation, or more
indirectly via the interests of the state under the structuralist interpre-
tation. As we have tried to show throughout, if only selectively, this
may be seen in several ways: in the enactment of law, the nature of
policing, the administration of justice and the practice of punishment.
With respect to the enactment of law, we have seen via Comack’s
(1985) analysis of the criminalization of drugs that it is readily dem-
onstrated that the passage of laws is related to the political-economic
interests of the powerful within society, rather than the interests of
everyone in society. This is obviously so for the case of laws protect-
ing private property. These clearly do not benefit everybody equally;
rather, they benefit only those possessing it.To this, it may be objected
that, in fact, most officially recorded acts of theft are perpetrated
by working-class people on other members of the same class. This
state of affairs is one that the left realists have emphasized as a result
of their crime surveys. The implication is that “something has got
to be done about law and order,” the laws are there for the benefit
of working-class as well as bourgeois “victims,” and that the causes of
this irritation to the social body must be the focus of criminological
research. But, as Snider argues in the following passage, this position
misses the point about how property laws protect capital.

It is true that those who own the least may suffer more when
what they have is stolen, because they are losing a much greater
percentage of their worldly goods in this one transaction than a
middle- or upper-class person, who has property in many differ-
ent forms and locations, would be. The real basis for comparison

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here is not how much is lost per theft, but which class has more
to lose? Which would be the most threatened if 50-80 percent of
their wealth were to be confiscated, by land redistribution or by
revolution? Only then is it obvious how much our present sys-
tem of laws safeguards the institutions of private property, which
allows the most privileged to preserve, protect, and pass on their
vast enclaves of wealth.
(Snider 1988: 312)

Moreover, as Spitzer (1975) argues, the ruling class is quite ready to

tolerate intra-working class victimization, for obvious reasons.
But it is also true for laws that are ostensibly inimical or irrelevant
to ruling-class interests. Hepburn (1977), in a forceful rejoinder to
those critics who argue that the existence of such laws demonstrates
the weakness of Marxist criminology, reminds critics of an obser-
vation of Marx himself that, for example, labour laws designed to
protect the interests of factory workers in fact, in the long run, serve
the interests of the capitalist class through the cultivation of worker
contentment and consent: the Factory Acts in the mid-nineteenth
century “represented the state protecting capitalists from themselves”
(Caputo et al. 1989: 9; Hall and Scraton 1981: 493). Such steps
nevertheless leave the fundamental class divisions of society intact.
Furthermore, such laws not only protect, they also regulate, thus
ensuring the promotion of discipline in the workforce and workplace.
Laws regulating the activities of the capitalist class – for example, laws
on fraud, embezzlement, insider trading, worker health and safety,
combinations to restrict trade – can also be seen to promote rather
than inhibit the interests of this class, by serving to protect it from
the exposure that may be occasioned by the too obvious exploitation
by “rogue” capitalists “getting away with murder.” By enforcing the
law against the “deviant” members of the capitalist class – the Bernie
Madoffs, Ivan Boeskys, Nicholas Cosmos and others of similar noto-
riety – the state fosters the illusion of a society-wide social solidarity
under the rule of law, thereby masking underlying material divisions
and class interests.
Hepburn also argues that laws which apparently demonstrate the
prowess of pressure groups to shape public morality – for example,
in the area of sexual mores, drugs and alcohol, and gambling (recall
Chapter 4) – in fact help to divert attention away from structural and

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material matters to moral and status concerns which have no impact

on the underlying structural inequalities in society.They help to foster
the illusion of democracy in capitalist society by making the political
arena accessible to ordinary citizens, grass-roots organizations and
other relatively powerless groupings. The enactment of moral prohi-
bitions makes little difference to basic economic inequalities, though
it may serve to criminalize problem populations and otherwise divide
the working class on racial, status and otherwise moral lines. Again,
this is a lesson which we drew from Comack’s (1985) analysis of the
origins of Canada’s drug laws, and which Snider (1985) draws from
her analysis of the reform of Canada’s rape laws that we consider in
Chapter 8. It is also a lesson that is given wider currency in Spitzer’s
(1975) Marxian theory of deviance, where he argues that those activi-
ties that are most subject to the process of criminalization are those
that are performed by various “problem populations.”They comprise
“problems” because of their lack of integration and synchronization
with the workings of capital.
The Marxist conception of the functions of criminalization can
also be seen in connection with the enforcement and administra-
tion of law. Thus, both police and judicial processes can be analyzed
for the ways in which they serve not only to conserve current class
divisions, but also to perpetuate self-serving bureaucracies of legal
authority.We have seen how, from this perspective, the law is enforced
and administered inequitably, with the result that disproportionate
numbers of lower-class and minority-group offenders are selected
for criminal processing in the first place and, in keeping with their
subordinate positions in the structures of dominance that comprise
the ruling social relations, may receive either softer or harsher sen-
tences, compared to their more privileged and powerful counterparts,
when convicted. For, after all, “The law, in its majestic equality, for-
bids the rich as well as the poor to sleep under bridges, to beg in
the streets, and to steal bread” (Anatole France). It is also quite easily
appreciated that “crime” provides an essential material condition
for the livelihoods of vast numbers of police, lawyers, judges, court
workers, probation and parole officers, prison guards and governors,
prison doctors and psychiatrists, locksmiths, safe makers, insurance
companies and, of course, criminology professors.
Marxist theory also points to the functions of the use of myths
of crime, including “wars” on crime, and the failure to address the

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criminogenic social arrangements in crime control itself (Leighton

and Reiman 2014: 305). Taken together, these produce a cumulative
mystification of the social nature of crime, which in turn serves to
perpetuate current divisions of wealth, power and privilege in society.
Perhaps the central myth or ideology of crime for Marxist analysis is
the orientation of the criminal justice system in general to crime as
an individual problem. It is individuals who are seen as largely respon-
sible for their criminal behaviour, just as it is individuals who are tried,
convicted and sentenced. However, even though it is possible to point
to the “mistaken,”“misguided” and “mythical” nature of the individu-
alistic conception of crime, what is important for our purposes here
is to appreciate the social functions of this belief. It serves to obscure
and divert attention from the discriminatory criminalizing character
of the state itself. Inequalities of wealth, power, privilege and access
to opportunities are all more or less accepted as the “natural” facts of
life.When individuals are blamed for what is called “their own fault,”
these natural facts are left undisturbed, and indeed are endorsed. The
provision of social programs to alleviate the worst consequences of
industrial capitalism – now “global monopoly-finance capital” (Foster
2015) – does not relieve the individual of the burden of responsibility
for “failure.” On the contrary, there is judged to be even less excuse
for a person’s criminality when “you’ve never had it so good” (see
Caputo et al. 1989: 10), not that anyone would dare say that these
days. In short, the individualistic conception of crime is a particular
instance of the prevailing individualistic ideology so central to the
capitalist social system. Blame the individual offender and the system
escapes blame. Meanwhile, those with most to gain from the system
benefit.
Except, then, for the work of such as Dorothy Smith (1990),
Marxist theory generally takes for granted the detail of the inter­
actional processes through which social phenomena such as crime are
constructed. Instead, it invites us to consider that which is defined as
crime, both in law and in action, from a broader, collective vantage
point, with particular reference to the interests or benefits which it
serves and provides for certain social groups or classes and, as has been
increasingly emphasized by critical criminologists, the state itself.

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Exercises

1. According to Courage to Resist (http://couragetoresist.org/

ryan-johnson/),

US Army soldier Ryan Johnson was convicted of refusing to

deploy to the Iraq War, and remaining away from the military
for 4,175 days (nearly 11½ years). After surrendering himself
to the US Army three months ago, Ryan pled guilty to AWOL
and Missing Movement before a “Special Courts Martial” at
Fort Irwin, California, on September 26, 2016. US military
judge Colonel Michael Hargis sentenced Ryan to 10 months
of confinement in a military prison, reduction in rank to E-1
(from E-2), and a bad conduct discharge—after he is released
from the Naval Consolidated Brig at Miramar, near San Diego,
California.

How do you explain the conviction and sentence imposed on

Johnson in terms of Marxist theory? For direction, refer back to
the point in the concluding section of Chapter 2 on “the priority
accorded in criminal codes to actions taken against the state itself.”
2. Treat yourself to a walk in the Marxists Internet Archive (www.
marxists.org). Click on “select section” and then the “search”
button on the drop-down menu. In the search function, put in
“crime,” “criminal law,” “criminal justice,” “wage slavery,” . . . and
see what you come up with. Of course, take notes.
3. Note any instances of the everyday use of “class” you observe dur-
ing your course of study, particularly if they arise in the context of
talk about crime. Consider them in light of the grammar section
of the chapter.

Review questions

1. Explain what Marx means when he describes the wage-worker

as a “man who is compelled to sell himself of his own free will.”
2. What are the principal differences between the instrumentalist
and structuralist views of the state in Marxist theory? What differ-
ence do these differences make to the sociological understanding
of the criminal justice system? Focus on what acts are and are not

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criminalized in law, and the differential patterns of prosecution and

sentencing for different classes of offences.
3. How does Marxist criminology explain the origin and persistence
of correctional criminology?
4. Who are the “dangerous classes”?
5. How does Marxist theory explain the high levels of imprisonment
in contemporary industrial societies?
6. How widely does Schegloff ’s charge of “theoretical imperialism”
extend, in your view?

Further reading
Glasbeek, Harry. 2002. Wealth by Stealth: Corporate Crime, Corporate
Law, and the Perversion of Democacy. Toronto, ON: Between the
Lines. Crystal-clear, undogmatic, Marxist analysis of the “corporate
advantage” and its deleterious political consequences.
Reiman, Jeffrey and Paul Leighton. 2016. The Rich Get Richer and
the Poor Get Prison: Ideology, Class, and Criminal Justice. Eleventh
edition. London UK: Routledge. Elegant, precisely documented
and damning Marxist-informed analysis of the US criminal justice
system.
Snider, D. Laureen. 2015. About Canada: Corporate Crime. Black Point,
NS and Winnipeg, MB: Fernwood. Brief, hard-hitting account.

Notes
1 See www.brainyquote.com/quotes/quotes/n/noamchomsk447305.html
(Accessed 10 July 2016).
2 Thanks go to Tim Bousquet, editor of the Halifax Examiner, for the refer-
ence to Walker’s piece. See “In the Harbour” in the issue for 15 July 2016:
www.halifaxexaminer.ca/featured/nova-scotia-wants-to-spend-several-
billion-dollars-on-new-highways-morning-file-friday-july-15-2016/
(Accessed 15 July 2016).

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 8 Gender

[C]riminality is still assumed to be a masculine attribute and

women criminals are therefore perceived to be either “not women”
or “not criminals.”
(Worrall 1990: 31)

The women’s movement and feminism

The women’s movement was surely the most significant social move-
ment of the twentieth century. It changed women and girls and social
relations among women. It even changed some men. Likewise it
changed social relations between women and men, girls and boys,
wives and husbands, brothers and sisters, parents and children,
employer and employee, government and citizen, cleric and congre-
gation, and so on across all social institutions, in the broadest strokes
and in the smallest detail. Its struggle for women’s rights and women’s
liberation has been protracted. The struggle has long historical roots
and it is ongoing today. It is conventional to talk of the movement as
having four waves, the first beginning in the nineteenth century and
lasting through the first three decades of the twentieth, the second
beginning in the 1960s, the third in the 1990s and the fourth in 2008.
The first wave, sometimes described as “maternal feminism,” was
focused on securing certain legal rights for women such as a share of
matrimonial property, but above all the franchise, the right to vote. It
has been resoundingly successful. Only in Vatican City may women
not vote at all; Saudi Arabia comes a close second. Under the ban-
ner of women’s “liberation,” the second wave not only attacked all
forms of women’s inequality with men, but sought to free women

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from the internal chains which suppressed them and with which they
suppressed themselves. “The personal is the political” was its slogan,
“consciousness-raising” its particular method. The target was “patri-
archy” (rule of the fathers), the source of those external and internal
bonds. Feminists’ goal was and is not simply to name and understand
this institution, but to destroy it. (In this endeavour they are joined
by many pro-feminist men who seek to throw off their own shack-
les.) Their efforts have had the profound effects already mentioned.
Nevertheless, given at least the continuing global wage gap between
men and women, the recurrent reports across the Western world of
sexism in countries’ military, police and fire services, of sexual assault
and misogyny on university campuses and of sexual harassment every­
where, the project remains incomplete and continues to be pressed
forward. The third wave has sought to assert claims for recognition
by and for diverse groups within and without the women’s move-
ment based on racial and sexual identity.The charge contained in the
following headline is representative of the third wave: “Today’s femi-
nist problem? Black women are still invisible” (Anderson 2016). The
so-called fourth wave appears devoted to “calling-out” misogyny and
sexism in social media. There can be no doubt that it is second-wave
feminism from the 1960s onwards that has had the profoundest effect
on the academy in general and professional sociology in particular,
and this includes the sociology of crime.

Feminist social theory

The movement spawned feminist political philosophy from which
sprang feminist social theory. But, just as there are different forms of
symbolic interactionism, ethnomethodology and Marxism, so femi-
nist theory is not one thing. Given that it arose out of a political
struggle, it is not surprising that feminism as a movement should divide
along conventional political lines – conservative, liberal, socialist and
“radical,” not to mention “eco-feminism” and other variants. In terms
of theory, it may be said to have passed through the three stages identi-
fied by Cuff et al. (2016: 364–374) that we set out in the Introduction
to Part III. Given that feminist theory’s initial premise is a pair of
identities – male and female, men and women – characterized by
the domination of the second by the first, then three possible ways
of overcoming said domination offer themselves. In the terminology

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of Cuff et al., these are inclusionist, separationist and transgressive

strategies, and they have been pursued in that order.
Thus, first, the objective was to correct prevailing (functionalist)
sociological theory by showing that women had been systemati-
cally left out of its accounts of society. Such accounts emphasized the
importance of the “public” institutions inhabited typically by men –
namely, the economy and the polity – and downplayed the “private”
aspects, the home and family, inhabited by women.This misrepresenta-
tion was argued to be an ideological reflection of patriarchal society
in which women, being thought to be “closer to nature” than men
(Durkheim 1951 [1897]: 215–216, 272; see Lehmann 1994: 36), hardly
figured at all. Indeed, for Durkheim, “women are no less criminal or
immoral than men; they merely lack criminal opportunities owing to
their distance from social life” (Lehmann 1994: 37). “The inclusionist
approach assumes that ‘adding’ women to the sociological picture can
rectify the gendered misrepresentations of sociology” (Cuff et al. 2016:
368). While studies done under the auspices of this approach take as
their object of inquiry any subject under the sun, what they bring to
such inquiry always has to do with the gendered character of social
life, whatever “gender” is taken to be meaning in the context of the
inquiry. It is overwhelmingly women’s experience, women’s activities
and women’s social position that inquirers seek to illuminate. While
there is no single feminist perspective, theory or methodology on
these matters – indeed, studies of every sociological type already dis-
cussed in this book have been done under its banner – what might be
said is that such work adopts gender as a principle of inquiry in just the
sense meant by Durkheim when he writes that “the objective reality
of social facts” is sociology’s “basic principle” and “therefore it is upon
this principle that in the end everything rests, and everything comes
back to it” (Durkheim 1982 [1895]: 45).As a result, inclusionist studies
have tended to prefer empiricist methods.
Yet, if society truly is patriarchal, then this affects not only the
factual picture of the social world – a “man’s world” – revealed by
pre-feminist sociology, but also how that picture is constructed in the
first place. According to the separationist stance, knowledge itself is
socially located, indeed socially determined. How could “malestream”
sociology “see” the world as experienced by women if they had not
first lived it? A true picture could only be drawn from a women’s
“standpoint”; it must be a sociology by and for women (Smith 1997).

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Such theorizing provides a rationale for women separating themselves

from men not only in practice, but in theory too. As we indicated
in the Introduction to Part III, the “transgressive” phase of feminist
theory reflects the impact of poststructuralism and postmodernism,
and so we take it up in the Introduction to Part IV.

Feminist sociological analysis

We have said that Parsons’s AGIL model of the social system which had
dominated American sociology in the 1950s was subjected to political
challenge in the turbulent 1960s for its perceived conservative cast. It
was said not to be able to account for the conflict and change that its
critics said were readily observable in any extant society, not least the
United States itself. It became a stalking horse of conflict theory in
general and Marxist theory in particular. In 1973, Dorothy Smith pub-
lished a thoroughgoing critique that was not only Marxist in nature,
but also, and importantly, feminist. In “women, the family and corpo-
rate capitalism” (1977 [1973]), she takes on not only Parsons’s AGIL,
but also its application to the analysis of the family by Neil Smelser
(1959), a student of Parsons and a notable sociologist in his own right.

Dorothy Smith: women, the family and corporate capitalism

The Marxist critique of consensus functionalism of the sort repre-

sented by Parsons’s AGIL turns on a number of arguments:
1. that material factors (the forces and relations of production) are more
important in explaining social order than ideal ones (consensus on
fundamental values);
2. that functionalist analysis takes as universal features of social sys-
tems what are in fact features of a particular type of social system
– namely, capitalist society;
3. that this “mistake” is ideological; that is, it serves the interests of
the ruling class for people to believe that the structures of capitalist
society are simply necessary features of any social system; that they
are, so to speak, “natural”;
If one now adds in the feminist argument:
4. that capitalist society separates workplace (now “public”) from
home (now “private”) and consigns women to the sphere of the
private, “outside history” –

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then we have the kind of Marxist feminism exhibited in this classic work
of Dorothy Smith. Her thesis is that women’s situation is related to the
family’s place in corporate capitalist society. The thesis is developed
in a sequence of arguments.
1. Capitalist society differentiates the institutional orders that both ordi-
nary members of society and professional functionalist sociologists
take for granted and think of as universal; namely, the economy, the
government, the family, and cultural and community organizations
(the AGIL). In so doing, it externalizes them; that is, makes them
appear as if their existence is independent of the people (individu-
als) who make them up and whose activities make them happen. It
is tempting then to see them as separate spheres of social action and
ask how they are related: for example, was the nuclear family a cause
of industrialization, or was it the other way round? This misses,
Smith argues, how their “separation” is a product of the capitalist
mode of production itself; this origin in fact unites them.
2. The differentiation and externalization of the economy and the
family have different consequences for men and women. Drawing
on Marx’s concept of alienation, she writes, “The same moment
which alienates the worker alienates also the women, although
in a different way” (Smith 1977 [1973]: 18). That is, the historical
emergence of the capitalist enterprise separates workplace from
home. The workplace is in the realm of the public; the home is the
realm of the private. Women are assigned to the private sphere of
domestic activity. Women’s work becomes a “private service” to
their husbands.
3. Functionalist sociology has failed to make these connections. It
assumes as necessary and universal what is in fact contingent and
particular. This is particularly true of Smelser’s (1959) analysis
of the relationship of the family to industrialization in terms of
Parsons’s AGIL: “What is made possible by [functionalist] proce-
dure is the treatment of a version of the family which is special to
our historical time and to our relations of production as if it were
a universal form of the family” (1977 [1973]: 21). That is, Smelser
treats the relation between the bourgeois family and the capitalist
enterprise as if it were a universal relationship between family
and economy. “It is clear he is describing a form of the family as a
service organization to the occupational performance” (1977 [1973]: 22,
emphasis added):

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Essentially, then, from this point of view, the home is a place

where people are stored when they are not at work, where they
are maintained and serviced, fed and cleaned, where they are
psychologically repaired and the injuries of the daily routine and
tensions generated on the job made good, and where the next
generation of employees is produced and trained for their future
occupational roles.Translated thus it appears as an account of the
family in terms of its uses to the political economy of capitalism.
(Smith 1977 [1973]: 22)

4. Corporate capitalism alienates the middle-class manager as well as the

worker. Smith analyzes relevant differences between twentieth-
century corporate capitalism and nineteenth-century entrepreneurial
capitalism. Corporate capitalism “separates ownership from control
and . . . creates a form of corporate rather than private ownership
of capital” (1977 [1973]: 23). If entrepreneurial capitalism alien-
ates the workers, separating them from the product of their labour
and appropriating it so as to “draw from them [capital’s] power over
them” (1977 [1973]: 23), then corporate capitalism also alienates
the middle-class manager by subordinating him to the company.
He becomes authorized to do the company’s acts, but the author-
ity for them does not belong to him. It belongs to his office, which
is appropriated by the company. “What he does becomes its acts”
(1977 [1973]: 24).Thus what is alienated from him is not his prod-
uct (as in the case of the worker), but his activity. Insofar as his
activity emanates from himself, then it is his person that is alienated.
5. This has consequences for middle-class women. Management is
male-dominated, and women are assigned to the home, “which
is external to the place where the decisions which have conse-
quences for the conditions of their existence are made” (1977
[1973]: 26). Thus the relationship between men and women in
both working-class and middle-class homes is transformed into
one of personal service provided by women to men.
6. In the working-class home, “the production of the home as an actual
material state of affairs is the direct responsibility of women” (1977
[1973]: 29). It is a product of her considerable work. Historically,
investment in the home became important in working-class fami-
lies as wages rose above subsistence. It is the one place, the “place
of one’s own,” that is not appropriated by “them.”

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The remainder of Smith’s chapter is devoted to examining the con-

tradictions (an important Marxist concept as we saw in Chapter 7
of this book) that arise from the capitalist mode of production for
the characteristic relations between wife and husband, and between
mother and children, in the working-class and middle-class family
home.
7. The relations between working-class husband and wife are dependent on
their “relation to the economic order through the man’s employ-
ment” (1977 [1973]: 29). Thus her apparent dependence on him
is in fact her dependence on his source of employment. Moreover,
housework becomes a personal service when the household is
no longer part of a productive enterprise. Thus, “the relation of
wife to husband mimics the relation of husband to capitalist. She
works for him because he owns the means of production upon
which she depends” (1977 [1973]: 30).Their relationship may well
become attenuated both when he is unemployed, and when she
gets work. De-politicization also accompanies this dependence
that she has upon his being employed. Politics is too dangerous
to engage in, because it could cost him his job and with it their
life. As wages improve and employment becomes more secure,
however, these contradictions recede in significance. “Making a
home then becomes a common enterprise which is shared by
husband and wife to which each contributes in different ways”
(1977 [1973]: 32).
8. The determinations of the character of middle-class family life are
different because of the difference in the nature of the middle-class
manager’s alienation in the company. Because he must subordi-
nate his person to the company’s objectives, practices and “ethic,”
his acts are not his but the corporation’s. The kind of person he is
then becomes relevant to the doing of his job. He is the face of
the corporation. He has to enact it. His moral status thus becomes
crucially important.The middle-class family’s job, then, becomes that
of sustaining the breadwinner’s moral status. It does so by creat-
ing a visible moral order, in the home itself, and in the appearance
and activities and performance of all its members. Notice that this
means subordinating the family to the standards, definitions and
forms of an order imposed from outside. “It is the woman’s respon-
sibility to manage this imaged order” (1977 [1973]: 33, emphasis
added).

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The working-class family is for its members. The middle-class

family is for the realization of the ruling-class moral order. The
working-class family is privatized. The middle-class family is
“sub-contractual” – the corporation “subcontracts” to the fam-
ily the work which must be done to and for the members of
the corporation to keep it going, but which is not provided for
within the corporation itself.
(Smith 1977 [1973]: 33)

  9. Smith spends section 7 of her chapter analyzing the “order of the

home” in relation to capitalist society. “In a capitalist society the
home constitutes a dead-end” (1977 [1973]: 34). Its idealized
image “no longer stands in any essential relation to the order
of the home as it might be brought about in the activities of its
members or relative to their needs” (1977 [1973]: 35) “Nothing
is left to women but the execution of an order whose definition
is not hers” (1977 [1973]: 39).
10. The contradictions arising for women in the middle-class family
are different from those in the working-class family.They consti-
tute a “dialectic” between what the woman does for other family
members as individuals, and what she does for them in her role
as agent of an external moral order.
Because of the sub-contractual relation between family and capitalist
enterprise, the responsibility falls upon the wife to support the hus-
band (by repairing whatever damage he may suffer on and from the
job). But there is a “‘motivational corruption’ in the subcontractual
relation” (1977 [1973]: 39) which interferes with this support. She
gets caught in two double binds: (1) because his “role” belongs to the
company and not to him, to support him in his role, she must support
the very system which violates him; (2) because her role is that of
good homemaker in terms of the external moral order, in making vis-
ible that imaged order at home, she constructs the very environment
“in which his failures may also become apparent. Thus paradoxically,
in order to be a ‘good wife’ she must side with the external moral
order against her husband” (1977 [1973]: 39).
As regards the relationship of the mother to her children, “The
family must prepare the child to receive the school” (1977 [1973]:
40). Why? It’s because middle-class children are going to be the
future members of the “ruling class” (according to Smith’s very broad

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definition), and so need a lot of preparation. They “must develop

what has been called the ‘achievement’ structure of motivation, they
must internalize an ethic of responsibility and of respect for authority
in others and in themselves” (1977 [1973]: 40).This is the woman-as-
mother’s job, to produce such children. In order to love her children
– to do “the best” for her kids – she must subordinate herself and
them to the dictates of that external moral order “determined by the
occupational structure and mediated by the school” (1977 [1973]:
40–41). The personal value of child for mother becomes objectified
in such things as achievement at school. “And accordingly it is hard
for parents to love the child who fails or behaves badly. Love is trans-
formed into anxiety and anxiety corrupts love” (1977 [1973]: 41).
And if she fails in her sub-contractual task, she becomes visible as a
“bad mother.”The consequences for her are movingly spelled out by
Smith in section 10 of the chapter.
Smith’s career as a feminist sociologist exemplifies the variety of
theoretical perspectives informing women’s studies. In 1971, she
had published a study of “household space and family organization”
that was heavily indebted to Erving Goffman’s quasi-ethnographic
approach to the study of the interrelations of self and other in defined
social settings. By 1973, her inclusionist Marxist feminism was clearly
evident in the study reviewed above. In 1974 and 1978, she made
signal contributions to ethnomethodology, while her 1975 critique
of statistics on women and mental illness drew on interactionist
sources. In the 1980s and 1990s, she developed feminist standpoint
theory (above) and the sub-field known as institutional ethnography,
reflecting her long-standing interest in the role of writing, texts and
documents in the process of ruling. Her Marxist feminism, informed
by symbolic interactionism and ethnomethodology, recognizes that
social conditions can have a “constraining influence” on human
action, but she prefers to view those constraints as being not only
reproduced, but also produced in the first place through practical
activity, as Marx well knew (Rose 1982). Of course, it is central to
the Marxist paradigm that humans can be alienated from not only
the products of their labour, but from their very own experience, but
these reifications are themselves sustained only through particular
human social practices. The “natural facts of economic life” and the
class relations that sustain them are prime examples of these reifica-
tions that are produced and reproduced by practical actions in an

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ongoing way.Through a long series of publications, Smith (1990) has

been particularly influential in pressing this view against a determinist
Marxist political economy. Her position is well summarized by Sylvia
Hale in her very useful introductory text as follows:

What Smith advocates is a shift in focus from the description of

class as “empty places occupied by people” to the analysis of active
processes, actual things that people do in organizing the relations
of production so that the patterns that we see as “class” emerge.
The system of classes does not exist all by itself. People actually
produce these relations, and they also change them. When ques-
tions about class are raised like this, what women do ceases to
be a marginal topic and becomes central to the analysis. Women
can be shown to be very active in the social construction of class
relations through the work they do within the home, as well as in
the myriad of offices where secretaries put together the work of
their bosses.
(Hale 1990: 295)

That said, Smith’s formulation of standpoint theory has been criti-

cized from within feminist inquiry, a matter we will return to in the
Introduction to Part IV.

Feminist criminology
“There never has been nor is there one feminist movement . . . Nor is
there one feminist criminology or feminist approach to law” (Edwards
1990: 145). It is not our intention, nor do we have the competence, to
survey this entire body of work (see Chesney-Lind and Morash 2011;
Renzetti 2012; Downes et al. 2013; Smart 1990, 1977; Gelsthorpe
and Morris 1990; Valverde 1991; Carlen and Worrall 1987; Naffine
1987). Rather, as we said at the outset of the book, our intention is
to present work that exhibits itself as representative of a given genre
through selected, perspicuous examples. Our goal is, once again, to
show what professional sociology in its various guises can and does
contribute to our knowledge and understanding of crime.
That said, we recognize that criminology and this book itself are
open to the charge of sexism insofar as they found themselves on
the distinction between crime and tort (that is, between criminal

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law and civil law), and between crime and mental illness, in order to
deal only with crime. For to the extent that the crime/tort distinc-
tion marks a further distinction between public and private wrongs,
and women’s lives and actions have been traditionally assigned to the
private sphere, as Smith argues above, then to deal with crime is to
deal overwhelmingly with men’s lives and actions, and to marginal-
ize women’s. Allowing for the regulation of women’s occupational,
reproductive and sex lives exercised traditionally by the criminal laws
of prostitution, abortion and rape, then control of women, it may be
argued, resides primarily in other areas of state jurisdiction, notably
the laws and practices regulating employment, welfare, health, and
family and matrimonial life (see, for example, Brophy and Smart
1985; Smith 1990: chapter 5). Nevertheless, as we have said, there is
a range of vigorous feminist contributions to the sociology of crime
– including articles in such journals as Feminist Criminology, Violence
Against Women, Women & Criminal Justice and the Canadian Journal
of Women and the Law – and it is to these that we selectively attend.
Although not so evident in actual criminological studies, the theo-
retical distinctions among inclusionist, separationist and transgressive
forms of emancipatory theory according to Cuff et al. (2016) are
paralleled for feminist criminological theory by Smart (1990) who
distinguishes empiricist feminism, standpoint feminism and postmod-
ern feminism. We endeavour to illustrate the first two in this chapter
and the third in the Introduction to Part IV.
As we said in the Introduction to Part III, the received picture
of “crime” amongst the general public, in the news media, in poli-
tics and in correctional criminology, what people generally mean
when they talk of crime or the “crime problem,” is one that identifies
“crime” with street crime. The corresponding picture of the “crimi-
nal” is of a person whose perceived habitat is the street, one who is
young, poor, male and black or aboriginal. Although they may be
men’s (invisible) companions, women and girls are generally absent
from the picture, except for specific areas of “crime”; namely, abor-
tion, prostitution, partner-killing and rape, or some notable departure
from expected behaviour such as “girl gangs.” In partner-killing and
rape, women and girls occupy that ambiguous position in which they
are at once both the victim and the offender (see Ferraro 2006: 1).
Whereas Marxist criminology focuses on explaining why the official
criminal is poor, and neocolonial perspectives focus on explaining

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why the official criminal is black or aboriginal, the feminist perspectives

focus on explaining why the official criminal is not female, except in
relation to abortion, prostitution, partner-killing and rape. To repeat
this chapter’s epigraph: “criminality is still assumed to be a mascu-
line attribute and women criminals are therefore perceived to be
either ‘not women’ or ‘not criminals’” (Worrall 1990: 31). The Karla
Homolkas of the world are the infamous exceptions that prove the
rule. To illustrate feminist criminology’s various takes on the crimi-
nalization of women, in what follows we review the study by Pantazis
of the criminalization of female poverty, Petchesky and Snider on the
criminalization of abortion and rape respectively, the general results
of sentencing studies in relation to gender and Carlen’s analysis of
women’s imprisonment. For a recent collection of studies on the
criminalization of women, see Balfour and Comack (2014).

Pantazis: the criminalization of female poverty

Pantazis addresses the criminalization of female poverty in the UK in

the period 1980–1996 in the context of the feminization of poverty
thesis. Generally speaking, the impoverishment resulting from two
economic recessions in the period was experienced disproportionately
by women, in particular lone-parent and single-person households
headed by women. At the same time, prosecutions for three of four
“crimes of poverty” – television licence evasion, prostitution (solicit-
ing) and vagrancy – increased. (This was not true of social security
fraud.) “A major observation is the huge growth in the numbers pros-
ecuted for offences relating to television licence evasion over this
period” (Pantazis 1999: 113). (For the puzzled, it needs to be said that
those who own television sets in the UK must pay an annual licence
fee to the government in order legally to watch TV. At 97.50 pounds
sterling in 1999, it was a significant expense for low-income people.)
That it was women who came to be prosecuted more heavily than
men Pantazis explains as follows. Women were more likely to be at
home when the inquiry officer called, prosecution policy targeted the
partner who was prepared to be interviewed, and women in poor-
couple households more often have the job of “managing the budget,
including payment of bills such as the television licence” (Pantazis
1999: 116). In general, evasion was the result of poverty, and more
women were poor.

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Criminology had tended to ignore TV licence evasion because,

being a summary offence, “it was considered as ‘not really a crime’”
(Pantazis 1999: 113). By attending to its occurrence, Pantazis, follow-
ing others, brought about its inclusion in the field. And, insofar as it
was an offence for which more women than men came to be pros-
ecuted – “[b]y 1996, 63 per cent of total prosecutions for television
licence offences involved women” (1999: 113) – it can be said that
Pantazis’s study is representative of an inclusionist strategy regarding
women’s place in criminology. In Smart’s terms, it is an example of
empiricist feminism.

Petchesky: patriarchy and the criminalization of abortion

We have said that feminist sociology’s principal explanatory concept

is patriarchy, the rule of the fathers, a structure of dominance defined
by gender, “a system of power in which men as fathers and husbands
govern the labour, sexuality, and fertility of their daughters and wives”
(Petchesky 1990: 69). But the origins of patriarchy are inseparable
from the origins of the state. The state needs people (for work, taxes,
armies) and therefore needs women (for reproducing people). “To
secure the loyalty of men as taxpayers, property owners, and soldiers,
the ancient and the early modern state in Europe promised them
authority in their own house and the ‘legitimacy’ of their children”
(1990: 69).
With the state comes the distinction between the public and the
private realms of social life. Thus, as we saw above, a principal form
of patriarchal control becomes the assigning of women to the realm
of the private. In the realm of the public, that is, in the eyes of the law,
they are not “persons.” It was not until 1930 that women in Canada
attained the status of “persons” under the law with specific reference
to membership in the Senate. Thus, a principal form of male power
over females under patriarchy is through ownership via the institutions
of marriage and the family. Women and girls as wives and daughters
are the private property of husbands and fathers.Thus, as “the first per-
manent acquisition of man, his first piece of real property, woman
was, in fact, the cornerstone of the house of the father” (Brownmiller
1975: 8). Furthermore, “concepts of hierarchy, slavery and private
property flowed from, and could only be predicated upon the initial
subjugation of woman” (1975: 8).

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Since, under patriarchy, women and girls are not legal persons, but
rather the property of their husbands and fathers, their actions are not
their own, but those of their owners. (This parallels Smith’s analysis
of the role of the middle-class manager in the corporation as we
saw above: what he does becomes its actions.) Further, since, under
the patriarchal rule of the state, females are assigned to the realm of
the private, and criminal law does not cross the parlour threshold,
nothing done there constitutes crime. Thus, the actions of women
and girls are not criminalized (nor, of course, is male domestic vio-
lence). This explains, in a rather different fashion than Durkheim’s
account above (see “Feminist social theory”), the general absence
of women and girls from the received picture of crime. Let us then
consider why women are criminalized in relation to abortion and
rape.
Given that the state also has interests in maintaining the structures
of dominance based on class and race, its efforts to regulate and con-
trol women may give rise to contradictions (again, see Chapter 7) that
it then has to try and resolve through policy-making and law-making.
In the matter of abortion, since, under the patriarchal organization of
state societies, the primary function of women and girls is patriarchal
reproduction (sons! sons!), then controlling and regulating both their
fertility and sexuality is a critical task. But since this task is compli-
cated by the interest in having the right class and race of women
reproduce, contradictions can arise in practice as to the appropriate
policies to pursue.

In other words, while population control and sexual control over

women are coexistent strategies in state societies (which are also
male-dominated societies), at various historical junctures they
come into serious conflict. The role of the state is to mediate
this conflict by developing fertility policies that authorize popula-
tion control measures and set limits on the legitimate boundaries
of women’s control over their fertility and sexuality, especially
women who are the concern of patriarchal authority: wives and
unmarried dependent daughters. In this mediating function, state
powers recurrently seek to prohibit abortion, a means of fertility
control that is particularly incompatible with orderly sex-gender
relations.
(Petchesky 1990: 71)

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Petchesky’s analysis of the criminalization of abortion in the

nineteenth-century United States shows the complexity of the fac-
tors taken into consideration, including the entrepreneurial activities
of the medical profession trying to wrest a white, upper-middle-class,
female clientele away from midwives.

Women and rape: Snider on changing Canadian law

The way that rape has been treated in the criminal justice system fol-
lows from the treatment of women as patriarchal property. The male
owner typically cannot be charged with committing a “crime” against
his wife and daughter since she is his property. Since a woman is not
a person, she has no legal status and no basis upon which to claim
legal protection. A “crime” against a woman is, then, a crime against
her owner. Patriarchy protects the owner of a woman by keeping her
outside the legal system.The owner of a woman can seek legal redress
from any man who damages her as he can with respect to damage
to any of his property; rape is thus a property offence. This explains
both the criminalization of rape, including the long sentences it has
traditionally carried, and the acute selectivity of its enforcement –
only respectable women, that is, valuable patriarchal property, can
get convictions. Other complainants are treated as if they themselves
are the problem, as Edwards’s (1990) analysis of nineteenth- and
twentieth-century UK practice so clearly shows. This viewpoint
may seem dated to some, but it is generally accepted that we are still
dealing with the historical residue of such institutionalized practices
across the Western world; and in other places, the subjugation of
women in general has only partially abated. Susan Brownmiller (in)
famously asserts a more radical position: rape is “a conscious process
of intimidation by which all men keep all women in a state of fear”
in that “rape became not only a male prerogative, but man’s basic
weapon of force against women” (Brownmiller 1975: 5). Whichever
analysis is correct, it remains the case that, despite an initial increase
in the reporting of sexual assault in the wake of legal changes in
response to the feminist critique, the rates of reporting, prosecuting
and convicting for sexual assault continue to vastly underrepresent
the self-reported figure. According to Canadian official statistics,
“of every 100 incidents of sexual assault, only 6 are reported to the
police” (SexAssault.ca: n. p.); other studies report a figure of about

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10 per cent. Of those, about 85 per cent are recorded by police as

crimes, in about 35 per cent of cases charges are laid, about 20 per
cent are prosecuted and convictions result in about 10 per cent of
reported cases (Johnson 2012). It is generally conceded that the big-
gest obstacle to women reporting sexual assault continues to be the
unsympathetic response of the criminal justice system in general,
and the humiliating cross-examinations that women complainants
face in court in particular.
On 4 January 1983, new sexual assault laws were proclaimed in
Canada, replacing and abolishing the existing rape statutes. Snider
(1985) analyzes the involvement of various interest groups in the
creation of these new laws in a fashion initially quite consistent
with social constructionist accounts. But, like Comack in Chapter
7, she goes beyond the results of such an inquiry to show how the
state shapes the outcome of the legislative process so as to extend its
disciplinary control over the underclasses in the ultimately material
interests of ruling-class hegemony. And on the way, she draws out the
consequences for women.
Following a process of legal reform begun in the feminist move-
ment and the Law Reform Commission of Canada’s Report 10: Sexual
Offences (1978), the Canadian government introduced (after a failed
attempt in 1979) Bill C-53 in 1981 to reform and amend criminal
laws relating to sexuality in four areas. These were:
1. sexual assault (as stated above);
2. public morality (buggery, bestiality, gross indecency, etc.);
3. offences against young people (child abduction and child
pornography . . .);
4. assault and vagrancy (prostitution).
After first and second readings, the bill went to committee on 22
April 1982. Following several months of hearings, it emerged for a
third reading and was passed as Bill C-127 on 4 August 1982, reduced
in scope, changed in some areas and having a rather different impact
from what was originally broached.The major changes (Snider 1985:
341–342) may be summarized as follows:
1. The old rape statutes were indeed abolished and replaced with
a new three-tier classification of sexual assault (simple, with a
weapon, aggravated). Wives could now charge their husbands.
The evidentiary requirements were changed: corroboration is
not required for assaults; the doctrine of recent complaint was

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abolished; questions about the victim’s sexual history with per-

sons other than the defendant were generally forbidden; consent
remained a defence only if unforced, and the availability of
“honest, mistaken belief ” about consent was restricted as a defence.
2. The public morality offences, used chiefly against homosexuals,
were left unchanged.
3. Laws regulating the sexual activity of teenagers, and offences
involving “seduction” were left essentially unchanged. Matters
relating to the sexual exploitation of young people (child por-
nography) were turned over to what became the Badgley Royal
Commission.
4. “The sections on procuring and prostitution were left virtually
unchanged . . . although ‘prostitute’ was defined and de-gendered,”
(1985: 342) and the matter turned over to another (the Fraser)
Royal Commission.
In short, while the rape law was reformed, much of the rest of the
reforms proposed in Bill C-53 did not survive to C-127. It is Snider’s
contention that while these changes appear to represent at least a
partial victory for the women’s movement in having rape, especially,
re-defined as a crime of violence rather than sex, in fact the real
winner is the state whose interest in social control is reinforced even
as the modality of that control is somewhat shifted.
To demonstrate this argument, she first analyzes the positions and
contributions of the various interest groups represented at the hear-
ings before the Standing Committee on Justice and Legal Affairs.This
is a step entirely in keeping with social constructionist premises.Thus,
we are led through the arguments of (1) the women’s groups; (2) the
law-enforcement community (chiefs of police, Attorneys-General);
(3) the Bar associations; and (4) the gay community. The position of
the women’s groups is “liberalizing” in intent. It is designed to remove
the discrimination against women in the substance and administra-
tion of the rape laws, by, for example, bringing them into line with
other assault offences through, for example, removing the corrobora-
tion requirement and permitting wives to charge husbands. It seeks
to encourage reporting and prosecuting of offences and convicting
of offenders by not increasing penalties, trading severity of punish-
ment for frequency of conviction. (It should be noted, however, that
Snider’s interpretation of this particular goal of the women’s groups
is contested by Los [1990: 172].) The gay community’s position is

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similarly liberalizing and abolitionist, and that of the lawyers liberal,

if critical. What then of the outcome?
What makes Snider’s account of particular interest is the second
step in her argument in which she re-describes the “feminist victory”
(1985: 350) in the competition of interest-groups as “the expansion
of social control” (1985: 352) through the hegemony of the state. To
do this, she analyzes closely both the amendments introduced and the
reasons given by the government itself through the Department of
Justice as represented by the then Minister of Justice, Jean Chrétien,
in the course of six weeks before the committee after the other
witnesses had been heard.
The burden of the government amendments, Snider argues, is one
of resisting liberalization and extending state control. Thus, allowing
women to charge husbands, dividing the law into three tiers and
changing the evidence required for conviction – what the women’s
groups had campaigned for – makes successful conviction more likely.
In other words, the effect of the reforms is to make the law more
repressive. “The very different concerns of women and of the state
to tighten control coincided over this issue; this was not essentially a
pluralist or feminist victory over patriarchy” (Snider 1985: 350). She
explains the other changes and lack of changes in the same way.Thus,
feminists wanted lighter penalties, but instead they were increased.
The reforms intended to lessen or remove state control over the
consensual sexual activity of teenagers and of homosexuals failed.
At the level of ideology, Snider indicates how Chrétien, before the
committee, credited the sexual assault reforms to the women’s groups
and the absence of liberalizing reforms in the other areas to “public
opinion” and the “lack of a consensus.” In fact, it turned out “that the
law enforcement agencies of the state had exercised the real power. It
came out that private meetings had been held with senior law enforce-
ment personnel before the Committee hearings even began” (1985:
345). It is Los’s view, however, that the state’s interest in reforming the
rape law derived from its anticipation of court challenges to it under
the equal rights test of the Canadian Charter of Rights and Freedoms
then (1982) being enacted as part of the Constitution Act (Los 1990:
163). Readers may wish to consult Los’s article for a somewhat
different feminist assessment of the passage of Bill C-53 as Bill C-127.
More broadly, despite the liberalizing rhetoric associated with the
earlier (partial) reforms in the areas of divorce, homosexual relations

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and abortion brought in by the government of Pierre Trudeau in

1969, “the reality is,” asserts Snider, “that there has been a continuous
increase in control through criminal law in Canada during the post-
war period” (1985: 349). As elsewhere, universal, egalitarian, “[l]iberal
and humanitarian ideas in this sphere are inevitably processed and
transformed by the crime control culture and its allied institutions
into policy initiatives which have a very different impact than their
proponents envisaged” (1985: 352).
Finally, Snider predicts that the passage of Bill C-127 will not lead
to a decrease in sexual assault, and that with the exception of “a few
atypical and highly publicized cases in which middle-class feminist
victims insist on prosecution” any increase in enforcement will fall
on “young, poor sexual assaulters . . . [who] account for no more than
a minority of assaults . . . [since] [t]he majority of assaults are intra-,
not inter-class, performed by male relatives, acquaintances, and dates”
(1985: 352; see Box 1983: 120–164). We have examined in Chapter
7 why Snider would think that administration and enforcement of
these laws would have this character. It has to be said that, over 30
years later, Snider’s prediction appears to have been impressively accu-
rate insofar as official statistics of the rates of self-reporting of sexual
assault are substantially unchanged, while the rates of actual reporting
to the police, of prosecuting and of convicting sexual assault cases
remain, in comparison, outrageously low.
While Snider doubtless holds patriarchy to be its own structure of
dominance, it appears from this study that she is prepared to argue that the
state is willing to sacrifice, at least symbolically, some degree of patriarchy
in order to retain disciplinary – that is, coercive and repressive – control
over the underclasses in the ultimate interest of fostering the “working
conditions” conducive to ongoing capitalist accumulation. Writing of
the United Kingdom, although it is largely true of Canada, she says:

Certainly middle and upper class adults, whose abortions, homo-

sexual liaisons, divorces, and marijuana habits no longer had the
problems which attend illegal status, were the main beneficiar-
ies. However, while the substitution of control by professionals
means less repression for them, it may mean more repression for
the less articulate youth, the working, and the underclasses . . . The
elite groups’ fear of losing control, of opening up, of “licence,” is
connected to this need to retain disciplinary patterns of control

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over the working class (and the middle class, although their
control is conceived differently), since these habits of abstinence
and puritanism are still crucial to maintaining a controllable labour
force and a manageable populace.
(Snider 1985: 348–349)

Her analysis may thus be regarded as “structural Marxist/feminist”

and, at least, “post-inclusionist” in character. Such analyses reflect a
sceptical view of the efficacy of state action to produce justice for
women by “including” them through legal reform just because “[l]
aw does not stand outside gender relations and adjudicate upon them.
Law is part of these relations and is always already gendered in its
principles and practices” (Smart 1990: 80). Legal, judicial and polic-
ing reform are said then to reproduce the gendered social relations of
patriarchy and, Snider (1990) would add, of capitalism.

Sentencing studies

The same interest on the part of the state to keep the population
under control and to discipline it, which was revealed by Marxist
studies in Chapter 7 and again by Snider’s study of rape law reform
above, is repeated in the findings of sentencing studies with respect
to gender. As with the attribute of unemployment, both mitigation
and aggravation have been found. Thus:

After controlling for a large number of legal and extra-legal vari-

ables, and examining their effects on different stages in the criminal
justice process, [Nagel] concluded that her data failed to reveal
any: “evidence that females were more harshly treated . . . females
charged with a crime were significantly less likely than males
similarly charged to spend any time behind bars” (Nagel 1981: 111).
However, she also found that this conclusion did not apply
across the spectrum of offences, for where a female’s offence
exhibited “inappropriate sex-role behaviour” the penal outcome
tended to be harsher.
(Box 1983: 173; see also Smart 1990: 79)

Here the explanation is a feminist one. Sentencing decisions, whether

lenient or severe, reproduce patriarchy by embodying paternalism

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 PART III: POLITICALLY CHALLENGED

towards women. On the one hand, leniency is deemed appropriate

for women who are seen as primarily mothers whose essentially
domestic lives should not be interrupted by imprisonment. On the
other hand, “courts act to protect ‘traditional’ women by punishing
those who are ‘unconventional’” (Box 1983: 173). Box goes on to say
that given “the variability in the methodological adequacy and the
contradictory results of [much] research [on female crime], it would
be wise to avoid dogmatic assertions” (1983: 173).
For the range of crimes of violence against the person, where
the person is a woman or a girl, there has traditionally been a stark
contrast between the penalties available – for example, life impris-
onment in many jurisdictions for rape – and the actual sentences
meted out to the paltry few who “survive” the attrition through
the system (Clark and Lewis 1977). We once more have occasion
to invoke Gusfield’s formulation of “moral fault without censure,”
referring to the contrast between the inflammatory rhetoric that
accompanies the drinking-and-driving problem and the nominal
sentences traditionally received by the few who are ever convicted
(Gusfield 1981: chapter 5). The point of the legal rhetoric is not to
deter offenders, but to symbolically “man” the moral boundaries of
proper conduct (recalling Durkheim’s argument from Chapter 3 in
this book). It is tempting to say that the rape or sexual assault laws are
similarly symbolic insofar as: (1) their deterrent effect appears negligi-
ble, such assaults being not only “frequent” but virtually endemic; (2)
police have standardly unfounded or written off some 30 per cent of
reported cases; (3) victims have standardly felt that they were on trial
rather than the accused and so on.
But this is to ignore the way the laws have been framed and applied.
Thus, traditionally, at least four categories of women could not, for all
practical legal purposes, be found to have been raped; namely, wives
(by statute, until recently); prostitutes (by virtue of their occupation);
women with a sex life (i.e. “unchaste,” “promiscuous”); and women
on a date with their attacker. In its prosecution, the law became a
device for policing such women conceived as moral types, rather than
punishing and deterring those who did or would violate them.Where,
however, enforcement is pursued and punishment is severe is in the
case of the violation of “respectable” women. Such women are valuable
patriarchal property.The protection of such property is the purpose of
the prosecution of this law, according to this form of feminist analysis.

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Pat Carlen on women’s imprisonment

While the observations we noted in Chapter 7 about social control

within the prison applied to both men’s and women’s prisons, a num-
ber of features of women’s prisons in particular have been identified
as contributing to the reproduction of the oppression of women in
society. An especially notable example of criminological work which
makes this point is that of Carlen (1983) in her study of a women’s
prison in Scotland. This has been described by Sim et al. (1987: 15)
as the “first radical analysis of the state of women’s imprisonment in
the United Kingdom.” Carlen notes that

women’s imprisonment in Scotland is imprisonment in the general

sense that it has all the repressive organisational features common
to men’s prisons; at the same time, it is a form of imprisonment
specific to women in that it has repressive features not to be found
in men’s prisons.
(Carlen 1983: 76)

These repressive features are expressed in “the penal discourses and

the extra-discursive practices of the women’s prison”; they comprise
“contradictory definitions both of legitimate womanhood and the
conditions engendering it” (1983: 90). As Carlen puts it:

The features of the disciplinary regime . . . elevate, fracture and

realign opposed ideological elements of the prisoners’ subjective
experience until they have been constructed as women both irrev-
ocably within and irretrievably without adult female subjectivity.
Women prisoners are contradictorily defined as being: both within
and without sociability; both within and without femininity; and,
concomitantly . . ., both within and without adulthood.
(Carlen 1983: 90)

With respect to the first of these features – sociability – Carlen

describes the peculiar regime of restricted and enforced sociabil-
ity required of the inmates. Each was allocated to a “quasi family”
unit of seven prisoners. Within this unit, they were then subjected to
rigid surveillance and control; they were not allowed to speak to the
members of other units, they were locked up separately each even-
ing at 6.30 pm, conversations were constantly monitored by prison

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 PART III: POLITICALLY CHALLENGED

officers, with both the “mode” and “topic” of conversation being

continuously subject to the approval of the officer on duty; they were
required to be sociable with the other members of their unit without
being allowed to develop conversation considered “normal” outside
the prison; their mealtime talk and behaviour were constantly moni-
tored; they were forbidden to engage in mundane, everyday activities
such as giving each other a light, sharing information or sharing
privileges and skills. In short, the women were required to be sociable
with the members of their unit, but they were denied the “normal”
interactional routines for achieving this sociality. This contradiction
produced not “normal” sociable women, but tense and distrustful
inmates; it contributed to, rather than alleviated, the destruction of
the women’s sense of autonomy and self-direction. As Carlen points
out, the “irony” of this coercive, enforced and circumscribed sociabil-
ity is that it leads to greater isolation, a debilitating isolation “outwith
both sociability and privacy” (1983: 96). Furthermore, as the major-
ity of these women inmates had experienced “debilitating” family
environments prior to ending up in prison, this “family” discipline
within the prison worked as a vehicle for the reproduction of their
core features: domination and isolation.
If the women were expected to relate in terms of an enforced and
artificial sociality, they were also subjected to a contradictory regime
with respect to their “femininity.” It is by now well established within
professional sociology that gender identity is a social accomplishment
or “construction.” However, in the women’s prison, the inmates were
expected to “be feminine,” while many of the standard means for
achieving this were denied to them. These deprivations included the
enforced wearing of uniform dress; limited means of “improving”
their appearance with makeup; degrading sanitary conditions; lack
of access to a doctor and lack of privacy in medical matters; rigid
control over their hair, their bodies and their clothes. All this signi-
fies, according to Carlen, a contradiction between “the official and
discursive claims that women are ‘helped to regain their self-respect’
and the extra-discursive institutional conditions wherein the self-
respect is further battered and bruised, if not altogether destroyed”
(1983: 106–107).
Finally, there is the contradiction in the area of “adulthood.” The
inmates were officially supposed to be learning to behave “more
like adults,” and yet the everyday organizational arrangements of the

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prison entailed their being treated more like children. In general,

Carlen points to the hierarchical character of the prison as a form
of social organization that necessarily inhibits autonomy and inde-
pendent decision-making. More particularly, she indicates a number
of degrading social practices: the inmates were given meaningless
and unchallenging work to do; they were required to use specific
address terms when talking to staff (for example, utterances were to
include the address term “Miss”); particular forms of deportment
were required of them (they were frequently told to keep their hands
out of their pockets); they were persistently instructed in appropriate
conversation and etiquette; and they were subjected to close surveil-
lance of their leisure activities and mealtimes. All of these practices
add up to an assault on their self-worth as adults; they are demean-
ing and they contradict the official line that the women were being
assisted in the process of “becoming adult.”
Together, furthermore, these three contradictions can be seen to
embody an institutional reproduction of the very conditions of being
repressed and dominated which these women had experienced prior
to entering prison. There, as Carlen describes at some length, they
had been subjected to patriarchal repression, often of the most brutal
form.These practices within the prison served to “keep them in their
place,” rather than helping to “improve” their position in society.
Clearly, Carlen’s study is inclusionist in the sense of filling a gap in
the prison literature by focusing on women. Can it also be said to be
written from the standpoint of women?

Comparing women’s and men’s imprisonment

Finally, we note that in the classic ethnographies of women’s prisons

by Giallombardo (1966), Heffernan (1972) and Ward and Kassebaum
(1965) – which we elected not to discuss in Chapter 5 – both simi-
larities and differences in prison culture are observed. Several social
roles or social types similar to those found in men’s prisons are evi-
dent with respect to commitment to or compliance with the inmate
subculture. In Giallombardo’s study, for example, those who violated
the “no informing” rule were typed as “snitches,” those who “made
trouble” for other inmates were labelled “jive bitches,” while those
who were seen as largely accidental criminals or pro-administration
inmates were regarded as “squares.”

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 PART III: POLITICALLY CHALLENGED

There are also important differences in the inmate culture of

women’s prisons. In general, violence and aggression are less common
in the women’s prison. Homosexuality in the men’s prison is typi-
cally the product of violence and coercion whereas in the women’s
prison, it is entered into more voluntarily. Females tend to establish
“pseudo-families” among themselves, with the participants playing
the various family roles of “parent” and “relative” and so on. There is
less solidarity among female inmates, and the economic system that
provides for the production, exchange and distribution of goods and
services, often of an illicit nature, is less common in the women’s
prison. Finally, women inmates tend to be less committed to the
convict code than their male counterparts.

The grammar of gender in feminist criminology

To look up the definition of gender in the Oxford English Dictionary
online is to confront a seeming paradox. On the one hand, there is the
surprising variety in the range of meanings of the word, from those
associated with linguistic grammar, to a class of things having certain
characteristics in common (like “class” in Chapter 7 and “race” in
Chapter 9), to sex (whether biological, social or electronic), plus mul-
tiple phrases and compound forms (Oxford English Dictionary 2016).
On the other hand, that variety is illustrated in each case by numer-
ous literary examples of uses which are intended to show clearly
how the word means what it does. In other words, the puzzle of how
anyone could know what the word means in any use of it, given the
variety of its meanings, is belied by the very practice used to show
what it means, a practice that presupposes that the reader will find
such examples determinate and clear in meaning. The puzzle arises
only when the meanings of the word are contemplated in abstrac-
tion from the circumstances of their use. Professional sociological
theories of gender, being necessarily abstract, run that constant risk.
Situated uses generally do not. In order for the theories to get off the
ground, the theorist necessarily depends on the reader knowing
already what the concept means in its stock uses, which is to say how
it enters into the discourse of everyday life where it belongs. How,
then, does the concept of gender enter into the discourse of everyday
life in relation to crime? How does it get used to “see” crime? We can
get some purchase on this question from a study by Wowk (1984), a

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further case from Maynard’s (1984) study of plea-bargaining already

discussed in Chapter 7 and a summary account of a courtroom practice
described by Matoesian (2001).

Wowk: sex and gender in a murder interrogation

Maria Wowk was a student of Rod Watson, who was a student of Wes
Sharrock, who, with John Lee, more or less founded the Manchester
(UK) school of ethnomethodology, based on their reading of Garfinkel
and Sacks. Wowk applies Sacks’s work in MCA to an understanding
of how we, as members of society, use categories of gender and eve-
ryday knowledge of sexual politics as devices for particular practical
purposes in our interaction with one another.

Since when talking about sexual politics we are referring to actions

and interpretations in everyday life, one locus of such phenom-
ena may be not only where highly explicit references are made
to gender, but also where gender is tacitly used as a background
scheme for the performing of some “other” actions such as blame
allocation.
(Wowk 1984: 76)

Thus, in her analysis of the police interrogation data originally gath-

ered by Watson (1983) and displayed in Figure 8.1,Wowk shows how
the suspect (S) attempts to shift some of the blame for the victim’s
death on to the victim herself. He does this through the ways he describes
her. He refers to her as a “girl” (lines 110, 183, 214), as does the police
(P) interrogator (130, 172, 201) (as if quoting the suspect’s catego-
rization). But then S attributes to her the actions of propositioning
him (110, 124, 221), talking tough (113–114), getting drunk (184),
swearing (222) and assaulting him (223–224) that imply a morally
specified version of the category “girl” (or “woman”); namely, “slut”
or “tramp,” if not, in fact, “prostitute.” In any case, she is presented
as a female of low moral character. He invokes, that is, everyday
commonsense knowledge of moral types of female in the form of
category-tied activities in order to develop an account of her having
provoked him. In that way he might hope to attract a lesser charge
than murder, even perhaps that he acted in self-defence or that her
death was, after all, an accident (see 231–238).

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DATA APPENDIX
(All names of people and places have been changed
in the interests of confidentiality)

.....
107 P Alright continue
108 S hhh I kept walking (.3) and (.8) I got to the
109 intersection (.2) of Brookland and Slade (1.0) when this
110 girl walked up to me (.6) and propositioned me
111 (1.0)
112 P what did she exactly say to you Lewis?
113 S you look like a tough guy (1.2) y'look like the member
114 of a gang
115 (1.2)
116 S I told her I’m not a member of a gang (.) I'm an
117 independent (.7) and she propositioned me again
118 (1.2)
119 S I asked her (.3) if she'd like to go to a party (.5)
120 she said yes
120a P what did she ask actually say to you
121 S hh hh
122 P ye you can word it (.) use rr (.3)
123 (.3)
124 S she asked me if I would like to get laid
125 P (some of the) words
126 (1.0)
127 P alright
128 (1.2)
129 P now (.) where was this intersection that you ran
130 into this girl
131 (.3)
132 S hh (.) Brookland and Slade (.5) right across from the
133 Fuller library
134 (.7)
135 P alright
..........
147 P alright (.2) (then) what happened after she (.) propositioned
148 (sound of movement)
149 you
150 (.6)
151 S well as I said I asked her if she'd like to go to a party
152 she said yes (.2) hh so I said well come on
153 P alright (.) and where did you go?
..........
171 P Okay (.) is er (.3) and what happened after you arrived (.)
172 with the girl at two ten Portland
173 (.3)
174 S arr there were several people that I knew
175 (1.2)
176 P could you give their names?
177 S arr this was (.) this one guy (.2) Walley (.3) another one
178 Ricky (.6) I don't know their last names
179 P alright
180 (.5)

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8: GENDER

181 S and that was about it

182 (1.6)
183 S and (1.0) as I said before the girl was (.3) you might
184 say pretty well loaded (.3) (when) I met her (1.6) and
185 (.3) I had I believe it was three beers (.4) and she'd had
186 about (.) one quarter (.) of a beer (.) ( ) bottle
187 (crash)
188 P and you were at this time (.2) in er (.) ( ) in
189 S ( ) in
190 the kitchen
191 P in the kitchen?
192 S yes
..........
200 P and (.) then (.4) at this time there was just (.)
201 you and the unknown girl (.5) and Dominic (.2)
202 Lacey (.) in the apartment?
203 S Yes
......... .
212 P alright (.4) continue on
213 (.5) (background talking)
214 S urh (1.4) the girl got (.8) might say kind of (.2)
215 pricky (1.0) and er ::
216 P now tell me exactly what she did
217 S ( )
218 P or what she said
219 S hhh
220 P its (.) not going to embarrass us any =
221 S = she propostioned me again (.6) and then she called me
222 a prick hh (.)a no good sonofabitch (.) hhh and
223 she threw what was left at (.2) the remainder (.) of
224 the bottle of beer at me (1.6) and it struck me in (.3)
225 the right side of my forehead
226 (.6)
227 P show me in (.) indicate where the bottle hit you
228 S right about here
229 P alright
230 (.7)
231 S at that (1.2) I threw al (.) a right handed
232 punch (.2) from the waist towards her shoulder (.3)
233 she ducked (.3) and weaved at the same time (.3) I
234 caught in the neck (.6) at the same time I threw
235 a left handed punch (.3) and as she spun (.) from the
236 right (.) I caught her neck again (1.5) after that (.2)
237 she went down to the floor (.3) she was out cold (.8)
238 there were no signs of respiration (.3)
..........

Figure 8.1  Data appendix

Source: Wowk (1984: 80–82).

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 PART III: POLITICALLY CHALLENGED

Notice that he does this without himself using the name “slut”
or “tramp” to refer to her, thereby avoiding creating the impression
that he himself regularly associates with such disreputable types or
can tell one when he sees one. Rather, he can be seen to be claiming
innocence in the matter of such women. He uses the euphemisms
“propositioned” and “the girl got (.8) might say kind of (.2) pricky
(1.0) and er” (214–215), indicating reluctance to say in so many words
what the “girl” actually said. He quotes her actual, cruder words –
“asked me if I would like to get laid” (124) and “called me a prick
hh (.) a no good sonofabitch” (221–222) – only when solicited by P.
Moreover, his story of the encounter is one in which the events in
the narrative follow one another in the same order as they purport-
edly happened in the world, and in that narrative, the protagonist
is always the “girl.” She is presented as the one taking the initiative
in the encounter from walking up to him and propositioning him
to throwing the remainder of a bottle of beer at him. Insofar as one
who embarks on a course of action necessarily bears at least some of
the responsibility for how it turns out, S can be seen to be shifting
(some of) the responsibility for the outcome to the victim herself
through his use of this storytelling format. Moreover, he enhances that
blameworthiness by having it that she propositioned him.

This observation is informed by our commonsense knowledge of

what women purportedly “should be like.” A conventional view
of women is that they are “passive” and should “wait until asked.”
That is, women “should not” proposition men, or at least they can-
not do so without that action being rich in potential inferences
with respect to any characterological imputations which may be
made.
(Wowk 1984: 78)

In Wowk’s analysis, we can see how gender attributes and sexual poli-
tics are being used by a member of society in a particular interactional
context to achieve a practical end, here the shifting of responsibility
and blame for a death and thereby the mitigation of his guilt in its
occurrence. Rather than a theory of patriarchy (male dominance
of females) being used by the feminist sociologist to explain some
purportedly “given” facts about the gendered character of social life,
Wowk shows how the parties to the interaction, chiefly the suspect,

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themselves invoke and assemble gender attributes and the conventions

of sexual politics through such reasoning procedures as membership
categorization devices and storytelling formats to perform specific
social actions. She emphasizes that these reasoning procedures are
“ordinary society members’ procedures . . . for making sense of the
world” and that one generic set of such procedures consists simply
of “relating predicates and categories” (1984: 79). We return to this
fundamental point in the Conclusion.

Maynard: a case of the use of gender in plea-bargaining

PD1: On the face of it, it looks pretty bad. But investigating the
case comes up with some beautiful defences that I’m anxious to
go to trial on, if the DA is. Situation is this: she’s a 65-year-old
lady, speaks, uh, Castilian Spanish, she’s from Spain. Uh, she goes
into Davidson’s – Oh incidently, by way of background, for 20
years she’s worked in the Catholic Church of San Ramon as the
housekeeper for the nuns and the fathers and all this stuff, and
very religious, well known. I’ve interviewed half of San Ramon
concerning her background.Wonderful lady, no problem, 65 years
old. But on this particular occasion, she goes into Davidson’s, goes
into a fitting room, pins them up underneath her dress, and leaves.
(Maynard 1982a: 356)

Here PD1 explicitly invokes gender in the form of the morally speci-
fied term “lady,” the opposite, one might say, of “slut” or “tramp.” But
its meaning on this occasion of its use is not independent of the other
attributes used to describe the defendant; namely, her age, religiosity,
ethnicity and occupation. She’s not just a woman, but a very reli-
gious, 65-year-old, Castilian-Spanish-speaking lady who works as a
housekeeper at a Catholic church. Together these attributes establish
a type of person for whom shoplifting can be seen to be entirely
“out of character,” an anomaly. In subsequent talk, the PD explains
the anomaly by reporting that the defendant was taking pain-killing
drugs that can “cause a state of confusion, delirium, and put the per-
son in a situation where they’re just in a dream world” (1982a: 356).
Moreover, Maynard adduces data from another case to suggest what
role the mentioning of the defendant’s language capacity is playing
here. It is to project for the DA how the defendant will “look” in

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 PART III: POLITICALLY CHALLENGED

court testifying “in his native tongue” where, as DA3 puts it in that
case, “Why is there that – that feeling that if they can’t speak the lan-
guage they can harbour no malice or – or criminal intent” (Maynard
1982b: 205).
In other words, we see gender here being adduced, in combina-
tion with other attributes, to project a type of person who is not
really a criminal, and who will not look like a criminal in court, for
the purpose of advancing a disposition (“PD1: Want it dismissed”
[Maynard 1982a: 356]) in an environment of negotiation. Like the
other attributes, gender is not being adduced abstractly, in a checklist
fashion, but, as we said in Chapter 7, selectively and contextually, by
the parties to the setting themselves, in relation to the activities in
which they are engaged.

More generally, when persons are talked about in any conversation,

descriptions are selected and produced according to what activity
is being done: “complaining,” “praising,” “blaming” . . ., “insult-
ing” . . .,“talking objectively,” and so forth.Who a person officially
is, for others, depends on what activity is being accomplished
in their talk.
(Maynard 1982b: 209)

For a final example of an ethnomethodological respecification of

gender in a criminal-legal context, consider Travers’s (1997b) sum-
mary of Matoesian’s (2001) study of Law and the Language of Identity:
Discourse in the William Kennedy Smith Rape Trial in Box 8.

BOX 8  Matoesian on “detailing-to-death” in a rape trial

Matoesian [2001] provides a good example of how ethnomethodological research can

provide an alternative perspective on current debates about gender in the criminal justice
process . . . Matoesian looks in detail at a technique, known by attorneys as “detailing-to-
death,” which was used in an episode of cross-examination during the Kennedy Smith rape
trial . . . a devastating piece of cross-examination that seriously undermined the credibility
of the prosecution case.
What is ethnomethodological about this paper is that it shows, precisely, and in great detail,
how this was done, through identifying five variants of a device used in cross-examination

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that Matoesian calls “resumptive repetition.” .  .  .  [I]t illustrates that the outcome of rape-trials
cannot simply be accounted for by “patriarchy,” or by a speech-exchange system in which
lawyers have the right to ask questions. “Patriarchy” in ethnomethodological terms can be
understood as a diverse set of cultural understandings about the relationship between
men and women that are widely shared in society, and can become highly consequential
in rape trials .  .  .  In this case, the cross-examination drew upon culturally-shared knowledge
about the relationship between the categories “women” and “rapists,” that would lead us
to expect that a woman would not go for a walk in the darkness with someone who had
just raped her friend. This kind of exchange may be decisive in determining the outcome
of other trials involving rape or sexual assault . . .
Source: Max Travers (1997b: 133): “Introduction to Part II” in M. Travers and J. F. Manzo, Law in Action.

Conclusion
What we are saying, then, is that in keeping with professional theo-
retical sociology in general, feminist criminology misses how gender
operates across the various moments of criminalization by relying
on the same taken-for-granted methods that members in the course
of everyday life use to see everyday life as gendered (Garfinkel 1967:
116–185; Kessler and McKenna 1978; Button 1991; see Francis et al.
to appear; Eglin 2002). The principal method in use is simply the
two-category set or membership categorization device consisting
of the categories male and female (even as the third category of
“transgendered” is being adopted). To this basic set of categories a
whole range of predicates may be and are attached as circumstances
warrant, and for the practical purposes that members and theorists
have. Such predicates can include attitudes, knowledge, competences,
etc., including relationships, say, of subordination. Insofar as academic
feminism arises from and seeks to carry forward the political move-
ment of women’s emancipation, then it is hard not to agree with
Sacks (see Box 3) that this two-category set has been and continues
to be an essential weapon in the conceptual armoury of that strug-
gle. It is our view, however, that it is precisely its recourse to this
membership categorization device that stands in the way of feminist
criminology being able to see how gender itself is made to work in
relation to crime and criminalization. We conclude by revisiting the
studies reviewed above in the light of this critical stance.

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 PART III: POLITICALLY CHALLENGED

For all that Carlen’s study of women’s imprisonment is for and

about women, and to whatever extent it is written from the standpoint
of women, it does not tell us how the people of the prison – inmates,
staff or others – used the concept of gender to make their identities,
actions, intentions, motives – indeed the setting itself – observable
and reportable (that is, accountable) as female. Rather, Carlen relies
on members’ everyday commonsense knowledge of gender to find
the gendered character of the setting being studied.To appreciate this
point, consider the following adaptation of a passage from Sharrock
and Button (1991) that in its original refers to the sociology of edu-
cation and its unproblematized reference to classrooms, teachers and
pupils. It has been adapted to refer to Carlen’s (but not just Carlen’s)
study of a prison and its staff and female inmates.

She starts to collect her observations as events-within-a-prison and

she orders them, furthermore, in terms of the relationship between
“staff ” and “female inmates” from the very beginning. She does not,
that is, derive the categories “prison,” “staff ” and “female inmate”
on the basis of a set of observations, but organizes her observa-
tions and descriptions on the basis of those categories which are in
place from the very beginning. They are, of course, in place from the
very beginning because they are institutionalized (so to speak) in
the social setting that is being described, because they are socially
sanctioned ways of describing events which take place in that setting.
(Adapted from Sharrock and Button
1991: 159, emphasis in original)

Clearly this critical respecification of Carlen’s women’s prison study

applies across the board to professional sociological inquiries that use
the categories in situ in the settings they investigate to describe and
explain the inquirer’s observations, rather than seeking to discover
how the setting’s inhabitants themselves find and attribute the rel-
evance of those categories to whatever happens there (recall Wieder’s
[1974] study from Chapter 6). It applies to the sentencing studies
reviewed above, in contrast to Maynard’s (1984) respecification of
their outcomes in terms of courtroom personnel’s interpretative prac-
tices of using defendant attributes like gender.
Moreover, a good deal of feminist work on crime, what Smart
(1990) would call empiricist feminism, including the study by Pantazis

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8: GENDER

reviewed above, is open to the long-standing critique of variable

analysis emanating from symbolic interactionism (Blumer 1956) and
radicalized by Button (1991) in an ethnomethodological context:
the development of a sociology of and for women amounts to not
much more than a shift in the category-based focus of inquiries that
are quite orthodox in their form, including the standard recourse
to theory, as in the theory of patriarchy (see Petchesky and Snider).
Carol Smart’s sharp critique of much of left criminology is relevant
here: “The problem of positivism is, therefore, not redeemed by the
espousal of left politics. Positivism poses an epistemological problem;
it is not a simple problem of party membership” (Smart 1990: 72).
(See, however, Comack [1999] for a defence of feminist standpoint
theory in criminology, in response to Smart’s postmodernist critique.)
This also applies to the quantitative analysis of official statistics under
the banner of a “feminist-conflict” perspective such as that by Kleck
and Sayles (1990). We take up postmodern feminism in Chapter 10.
That Smart felt enjoined to utter this rebuke to fellow criminolo-
gists is reflective of the fundamental issue at the heart of emancipatory
sociology, including the feminist varieties.The issue arises from the very
desire to combine science and political action that Weber addressed
almost a century ago. Here is a representative statement of that desire:

[W]e must always remember that the origins of feminist, women’s,

queer, and gender studies lie in political movements whose goals
have not yet been reached, and, therefore, it is our responsibility
to always reflect on the ways in which our theory might inform
and support action.
(McKenna and Kessler 2006: 344)

The problem is not just that “[f]eminism is an emancipatory move-

ment, not a scientific theory” (Walsh 2014: 155). It is rather that
knowledge-seeking inquiry and political action simply don’t mix. It
is thereby and therefore subject to the same criticism we extended
to Marxist class theory towards the end of the grammar section in
Chapter 7, which we will not repeat here.
Finally, let us return to Worrall’s (1990) perceptive epigraph that
heads this chapter in light of the following remarks by Sacks on
“knowledge that is protected against induction.” He defines such
knowledge as a property of a category-bound predicate as follows:

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 PART III: POLITICALLY CHALLENGED

Such knowledge as is recognized as correct by virtue of the com-

bination: [a category (whatever it is) plus some thing they do or
attribute they have (category bound in that sense)] has a rather
important property which I talk of as “knowledge protected against
induction.”
(Sacks 1992a: 336, emphasis in original)

This would apply then to Worrall’s observation that the attribute crimi-
nality is bound to the category male (or masculine). Sacks elaborates
as follows:

[O]ne basic trouble with regard to determining the truth of state-

ments that have such terms as lawyers, males, women, etc., as their
subject term is that it is not obvious what constitute tests of the
incorrectness of such propositions. In particular, it is not obvi-
ous that showing that a person who could be so characterized,
i.e., could be characterized as “a male,” but doesn’t behave as the
statement proposes constitutes a counter example to the asser-
tion. Instead, statements in that circumstance may be treated as
“programmatically relevant” (Sacks [1972a]) such that a discovered
case that might stand in contravention of the proposition has as its
consequence, not asserting the error of the proposition, but leading
such a person as is not correctly characterized by the proposition to
change his ways so as to bring himself under its auspices. Also, if a
person seems not to be correctly characterized by the proposition,
then again, it may turn out that not the proposition but his status
as a proper member of that class is questioned. Let me present an
instance of this possibility: A woman asks,What man would want a
forty-year-old, divorced, childless, neurotic woman? No man.That
apparently does not mean for her that no one approaches her, but
that those who do approach her are not “men,” i.e., not socially
males, not properly motivated to pick a woman as one they might
marry, etc. That is, “He’s not really a man,” or not really what a
proper man is. All I want to note here is that one should not rush
to employ the obvious test of a proposition having, e.g., men as
its subject term, i.e., to find a case it does not characterize and
thereby show its falsity – ; for that technique may be found to be
inappropriate and not used for actual statements in conversation,
and is then not a suitable instrument for evaluating truth or falsity

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in that domain. A search for the possible truth of a statement in

conversation can have as an alternative procedure and outcome
a search for the procedures for evaluating truth or falsity in that
domain, used in it, appropriate for it.
(Sacks 1975: 60–61)

Exercises
1. By consulting your local, provincial, state or national crime statis-
tics, document the gender distribution of total criminal offences,
crimes of violence and non-violent crimes for a recent five-year
or ten-year period. Describe the distribution for each of the three
categories. Break the distributions down by age category. Which
sub-population defined by gender and age is the most criminal
and the most violent? Which is the least?
2. Using the same or related statistical sources, document the attri-
tion through the criminal justice system of sexual assault, following
Johnson’s model in the chapter.

Review questions
1. How does feminist theory account for the general absence of
women from involvement in crime?
2. How does the feminist theory of patriarchy come to regard rape
as a property crime?
3. What was “contradictory” about the experience of women in
prison studied by Carlen (1983)?
4. Explain in your own words what Sacks (1992a) means by “knowl-
edge protected against induction.”

Further reading
Chesney-Lind, Meda and Merry Morash. Eds. 2011. Feminist Theories
of Crime. The Library of Essays in Theoretical Criminology.
Farnham, UK: Ashgate. For the full range of feminist thought on
crime not covered in this chapter.
Balfour, Gillian and Elizabeth Comack. Eds. 2014. Criminalizing
Women: Gender and (In)justice in Neo-Liberal Times. Second edition.
Halifax, NS and Winnipeg, MB: Fernwood Publishing.

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 PART III: POLITICALLY CHALLENGED

The book shows how women have been surveilled, disciplined,

managed, corrected, and punished, and it considers the feminist
strategies that have been used to address the impact of impris-
onment and to draw attention to the systemic abuses against
poor and racialized women.
(from the publisher’s blurb)

Johnson, Holly. 2012. “Limits of a criminal justice response:Trends in

police and court processing of sexual assault.” In E. Sheehy (ed.),
Sexual Assault in Canada: Law, Legal Practice, and Women’s Activism.
Ottawa, ON: University of Ottawa Press, 613–634. A thorough
examination of the statistical picture.

352
 9 Race

A black friend told me . . . that she selects her clothes so that she
doesn’t look threatening to white people.
(Richardson 2016: para. 7)

If you f---ing move, I swear to God!

(Police officer to Alton Sterling, cited in Kelly 2016: para. 4)

Perhaps by the time you are reading this book, the subject of this
chapter will have resumed its social position as one of those issues that
for the most part resides just below the surface of public conscious-
ness and discourse, though occasionally bursting into prominence
for a short time in connection with some horrific incident. At
the time of writing (2016), however, and as graphically illustrated
in the epigraphs above, race had been occupying the public con-
versation for some considerable time both in the English-speaking
world and in continental Europe. See, for example, the Winter 2016
issue of Canadian Dimension devoted to “Racism.” Or simply watch
this “traffic stop”: www.youtube.com/watch?v=3P9-BjYxTu8
(accessed 15 July 2016). According to the first comment on this
video, from August 2015, “Denver Police cleared all the officers of
wrong­doing and they remain on the force today. The Denver City
Council quietly approved an out of court settlement with the fam-
ily for [$]795,000.00.” African Americans are, once again, in their
centuries-long struggle to gain recognition of their basic humanity
from Europeans and their white colonial transplants, having to assert
that “Black Lives Matter,” and having to deal with the often rac-
ist response to that declaration. The following video is instructive:

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 PART III: POLITICALLY CHALLENGED

www.youtube.com/watch?v=jQ_0bqWKO-k&list=PLnvZ3PbKAp
GM-hHuQ9lNc5oSKsusjn0Z6 (accessed 15 July 2016). Their resis-
tance is being directed particularly at the horrific killing of young
black men by police in the United States (Schenwar et al. 2016).
Arabic/Muslim citizens of “Euro-world” (Europe, Canada and
the United States, Australia and New Zealand) continued to be the
victims of Islamophobia, including the grotesque, quasi-fascist pro-
nouncements of the Republican candidate in the 2016 US presidential
election. And throughout the world, but notably in Canada, Australia
and the United States, not to mention the Occupied Territories of
Palestine, the indigenous peoples of settler colonialist societies were
forcing on their white rulers the demand that they finally come to
terms with their racist pasts and presents. Official apologies, truth
and reconciliation commissions, plus other commissions of inquiry
into particular oppressions (residential schools, missing and murdered
aboriginal women, discrimination in the provision of child welfare
services) filled the airwaves. In all cases, lawsuits and criminal trials
kept the subject alive in the public mind. From university campuses
in the United States, United Kingdom and Canada, to the Canadian
RCMP, to the UK, US and Canadian governments themselves, major
institutions were having to address the stubborn refusal of “systemic
racism” and racist practices to go away.1
And yet the criminals in society are widely perceived by white,
hard-working, God-fearing, property-owning, tax-paying citizens
to be those who have been traditionally coloured as black, brown,
red, and in an earlier time, yellow. (If you are offended by the col-
our references here, listen to them in the last verse of the song
“Everyday People” by Sly and the Family Stone.) East Asians no
longer bear that stigma (so much), but the rest continue to do so.
These are the categories of person who are feared and from whose
imagined threats to its safety white society organizes to protect itself
(Reiman and Leighton 2013: 69; Kappeler and Potter 2005: 33–34).2
The popular/official street criminal is black (see the Introduction
to Part III), the popular/official terrorist brown, the popular/official
drag on society red. And there is evidence to support such views.
While Arabs/Muslims are subjected to special scrutiny only in rela-
tion to suspected involvement in terrorism, people of African and
aboriginal descent are significantly over-represented in the crimi-
nal justice system in general. From police apprehensions to court

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appearances to imprisonment, these two minorities constitute a far

greater proportion of the criminalized than would be expected on
the basis of their percentage of the general population. In the cases of
African Americans and aboriginal Canadians (especially women), the
figures are . . . what? Marked? Striking? Dramatic? The author strug-
gles for an appropriate descriptor. Surely the figures are an appalling
indictment of the societies in which they occur.
Our approach in this chapter is somewhat different from that of
the previous chapters. We begin by presenting some official facts
and figures pertaining to the criminalization of people of colour
before turning to discuss how professional sociology has sought to
account for them. The studies we review are embedded within both
of these parts. Because recent events may well be fresh in readers’
minds, we consider some less recent cases to show that the matters
being described are persistent features of the interaction between the
criminal justice system and racialized minorities across the Western
world, if not beyond. We then turn to discuss the grammar of race
in relation to criminalization before concluding the chapter. One
particularly useful account of these matters in the Canadian context
is Racialization, Crime, and Criminal Justice in Canada by Wendy Chan
and Dorothy Chunn (2014).

The official facts

African-Canadian experience

“DWB,” “Driving While Black,” is the ironic title that African

Canadians and African Americans in the 1990s started giving to an
offence that only they appear to be able to commit (Harris 1997;
Meehan and Ponder 2002). In so naming their perceived discrimina-
tory treatment by white police officers, the alleged victims attempt
to turn the tables on the alleged offenders by making self-evident
the nature of the alleged offence against them. The acronym DWB
(Driving While Black) is modelled on the short-title form of standard
criminal code offences such as B&E (Break and Enter), ADW (Assault
with a Deadly Weapon) or DUI (Driving Under the Influence). But,
as everybody knows, and despite a long history to the contrary, the
criminal law is supposed to criminalize only people’s actions, not their
ascribed characteristics such as race or gender or sexual orientation.

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Thus, as the name of an offence, DWB makes the racism to which it

points self-evident in the name itself, without having to be formulated
in an explicit accusation.
The salience of the complaint was given fresh support in the Fall of
2002 when The Toronto Star published a series of articles based on the
records of the Metro Toronto Police Force itself, which appeared to
show that “racial profiling” was a common practice in the force. The
furore caused by the articles was surprising, given that racism in the
Ontario criminal justice system had been documented at least twice
in the previous decade, with substantial publicity on each occasion.
Moreover, the two inquiries themselves followed a period of black activ-
ism involving the formation of the Black Action Defence Committee
(Lennox Farrell, Sherona Hall, Dudley Laws and Charles Roach) after
fatal shootings by police of young black men (Michael Wade Lawson
and Lester Donaldson) in Toronto in 1988.The subsequent fatal police
shooting of Raymond Lawrence, and the not guilty verdict in the trial
of the Los Angeles police officers videotaped brutally beating Rodney
King set off further protests and civil disturbances in May 1992, leading
to the first of these inquiries. In his June 1992 report to the Premier
of Ontario, Stephen Lewis3 stresses that the principal target of racism
in Ontario is African Canadians. He reports the fear experienced in
African-Canadian communities in Ontario as a result of this racism. He
describes the gap between the Metro Toronto Police and organizations
representing the African-Canadian population as a “chasm,” and indicts
the province’s criminal justice system. He recommends the appoint-
ment of a Commission of Inquiry, which duly reported in December
1995.The report is damning, showing systematic racial discrimination
in the processing of African-Canadian citizens, suspects and defendants
at every stage of the criminal justice system.
The report’s study of police stops finds that 43 per cent of male
black respondents reported being stopped by police in the previous
two years, in comparison to 25 per cent of male whites and 19 per
cent of male Chinese. For being stopped two or more times, the
corresponding figures are 29 per cent, 12 per cent and 7 per cent
respectively. The rates are highest for the 18–24 years age group in
each racial category, and decline with increasing age.

The Commission’s findings suggest that racialized characteris-

tics, especially those of black people, in combination with other

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factors, arouse police suspicion, at least in Metro Toronto. Other

factors that may attract police attention include sex (male), youth,
make and condition of car (if any), location, dress, perceived socio-
economic status and lifestyle. Black persons perceived to have
many of these attributes are at high risk of being stopped on foot
or in cars.
(Commission on Systemic Racism in the Ontario
Criminal Justice System 1995: 92)

The report’s stance is expressed as follows:

Racism has a long history in Canada. It has led to denials of

basic civil and political rights to Canadian citizens. It excluded
adults from jobs and children from schools, limited opportu-
nities to acquire property, and barred people from hotels, bars,
theatres and other recreational facilities. In these ways, racism has
restricted the life-chances of some Canadians while it benefited
others.
Though many Canadians throughout history have accepted
racism, others have vigorously resisted it. These efforts have had
significant results. While the law once promoted or permitted
unequal treatment because of race, today it generally prohibits
such discrimination.
Despite these important achievements, racism is still entrenched
in Canadian society. Racism in Canadian society continues to
shape the lives of Aboriginal, black and other racialized people. In
order to make further progress in eliminating racism, Canadians
must grapple with racism’s systemic dimensions.
(Commission on Systemic Racism in the Ontario
Criminal Justice System 1995: 21)

Eighteen years later, in 2013, Canada’s Correctional Investigator

reports that “9.5 per cent of federal inmates today are Black (an
increase of 80 per cent since 2003/04), yet Black Canadians account
for less than three per cent of the total Canadian population.” He
notes that “all black inmates were viewed as having gang affiliations
by correctional staff, even where the label was demonstrably false”
(White 2015: front page, citing Office of the Correctional Investigator
2013: 9). Moreover,

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 PART III: POLITICALLY CHALLENGED

Over the past 10 years, the Aboriginal incarcerated population

increased by 46.4 per cent, while visible minority groups (e.g.
Black, Asian, Hispanic) increased by 75 per cent. During this same
time period, the population of Caucasian inmates actually declined
by three per cent.
(Hunter 2013: para. 4; see also McIntyre 2016)

But then 140 years before 1995, the black Canadian abolitionist
Samuel Ringgold Ward writes,

I beg to say, that sometimes the unfortunately disproportionate

number of Negroes in prisons is pointed out to me as evidence of
the very great criminality of my people. I ask any one to say, what
chance of a fair and just trial a Negro could have, before such a
judge as Mr. Justice Haliburton, when a white man was prosecu-
tor? (I happen to know how Negroes have suffered in such cases.)
(Ward 1855: 266, quoted in Jones 2016: n. p.)

To appreciate the contextual reference to Mr Justice Haliburton,

readers are strongly encouraged to turn to the “Saturday Morning
File” by El Jones (2016) that is the source of this quote from Ward.
There is no more acute Canadian commentator writing today about
race and the criminal justice system, or racism in general, than the
remarkable El Jones.
Aside, then, from the genocidal subjection by European settlers
of the aboriginal peoples of the Americas (taken up in Chapter
11), racism’s long history in Canada includes a substantial period of
black slavery, a fact of which many Canadians seem unaware. After
confederation in 1867, “if you did a chart of Canadian immigra-
tion policies right up to and including the early 1960s, it would
be like a chapter out of a scientific racism textbook,” according to
University of Waterloo professor of History, James Walker.4 That his-
tory includes the immigration experience of Chinese, Japanese and
East Indians in the late nineteenth and early twentieth centuries,
culminating in the Chinese Exclusion Act of 1923; the internment
of Japanese Canadians in World War II (not one ever being charged
with espionage); the exclusion of African Canadians from profes-
sions, employment, hotels, clubs, resorts, places of entertainment and
the like, lasting in some places into the 1950s and 1960s; the similar

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exclusion of Jews and the turning away of the ship, the St Louis,
carrying Jewish refugees from the Nazis in 1939 and so on. Walker
(1997) tells the story of racism’s legal history in his “Race,” Rights
and the Law in the Supreme Court of Canada. An artistic version is ren-
dered in James Rolfe and George Elliot Clarke’s remarkable opera
Beatrice Chancy, while students should not pass up the Canadian soci-
ological classic, Africville by Clairmont and Magill (1999). Canadians
are better acquainted, it often seems, with the story of slavery in
the American South and the continuing racism entrenched in US
society.

The contemporary aboriginal experience

“Racial tensions flare in Saskatchewan after killing of First Nations

man” was The Globe and Mail headline on 14 August 2016 (Canadian
Press 2016). A white farmer opened fire on five indigenous men who
drove onto his property looking for help with a flat tire. One was
killed.The initial RCMP “press release said that people in the car had
been taken into custody as part of a theft investigation” (Canadian
Press 2016: para. 15). Some social media commentary was “racist and
derogatory,” expressing satisfaction with the killing. The farmer was
charged with second-degree murder.
There is a long precedent for such events. An inquiry into how
the legal system in the neighbouring province of Manitoba treats
aboriginal people was undertaken in the Spring of 1988. The two
judges, Justice A. C. Hamilton and Judge Murray Sinclair, who con-
ducted Manitoba’s Aboriginal Justice Inquiry published their report
in August 1991 (Aboriginal Justice Inquiry of Manitoba 1991). The
inquiry was sparked by two cases, involving aboriginal people as
victims, in which racism appeared to play a role in the crime, the
investigation and the actions of officials and citizens.These cases were
seen by many as examples of the way Manitoba’s justice system was
failing aboriginal people.
The first was the murder of Helen Betty Osborne in The Pas
in November 1971. She was a 19-year-old Cree woman who was
abducted by four men, driven to a remote lake, sexually assaulted
and brutally murdered. No one was charged with the murder until
1986. The inquiry found that Betty Osborne would not have been
murdered if she had not been aboriginal.The four men went looking

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 PART III: POLITICALLY CHALLENGED

for an aboriginal girl to party with, and when Betty Osborne refused,
they took her out of town and killed her. The inquiry found rac-
ism in the RCMP’s investigation of the case. The first suspects to
be rounded up were aboriginal youths, some of whom were taken
away for questioning without the consent of their parents. The non-
aboriginal suspects in the case were not subjected to the indignities
and insensitive treatment that the aboriginal people received at the
hands of the police. Racism and the racial segregation of the town
of The Pas were partly responsible for the silence of the people who
knew the identity of the assailants – a silence which resulted in the
16-year delay in bringing suspects to trial and which continued to
protect the identity of two of the four men involved in the crime.The
inquiry also identified racism in the jury selection process. Ultimately,
one man only was convicted of any crime (York and Roberts 1991a;
Valpy 2015).
The second case was that of the fatal shooting of aboriginal leader,
J. J. Harper, by a constable of the Winnipeg Police Department in
March 1988 (Sinclair 1999). The inquiry found negligence in the
investigation by the police department which was primarily con-
cerned with vindicating the police by constructing a version of events
in which Mr Harper could be blamed for his own death. In addition
to negligence, the inquiry found racism in the police department,
expressed in jokes and racist slurs (York and Roberts 1991b). The
report of the inquiry revealed that aboriginal people, while compris-
ing 11.8 per cent of Manitoba’s population, represented at least 50
per cent of its prison population. Two paragraphs from the report
summarize its findings:

The justice system has failed Manitoba’s aboriginal people on

a massive scale. It has been insensitive and inaccessible, and has
arrested and imprisoned aboriginal people in grossly dispropor-
tionate numbers. Aboriginal people who are arrested are more
likely than non-aboriginal people to be denied bail, spend more
time in pre-trial detention and spend less time with their lawyers,
and, if convicted, are more likely to be incarcerated.
It is not merely that the justice system has failed aboriginal peo-
ple; justice also has been denied to them. For more than a century
the rights of aboriginal people have been ignored and eroded.
The result of this denial has been injustice of the most profound

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kind. Poverty and powerlessness have been the Canadian legacy to

a people who once governed their own affairs in self-sufficiency.
(Hamilton and Sinclair 1991, citing Aboriginal
Justice Inquiry of Manitoba 1991,Vol. 1: 1–2)

Among the reforms recommended in the report are the following

(York and Roberts 1991c: A2):
• formal recognition of aboriginal self-government;
• the setting up of aboriginal courts as the first step in establishing
an aboriginally-controlled justice system whose courts would have
clear and paramount authority within aboriginal lands; alternatives
to pre-trial imprisonment of accused people;
• alternatives to putting people in jail, such as stronger community
sanctions against an offender;
• recruitment of more “natives” for employment in courts, the
National Parole Board, jails and police departments;
• and the drafting of a charter of rights and freedoms that reflects
aboriginal customs and values.
The authors of the report emphasize that more important than the
reforms they recommend is this realization:

[T]he relationship between aboriginal people and the rest of

society must be transformed fundamentally. This transformation
must be based on justice in its broadest sense. It must recognize
that societal and economic inequity is unacceptable and that
only through a full recognition of aboriginal rights—including
the right to self-government—can the symptomatic problems of
over-incarceration and disaffection be redressed.
(Hamilton and Sinclair 1991, citing Aboriginal
Justice Inquiry of Manitoba 1991,Vol. 1: 2)

Manitoba’s problems were put in a national context by the 1996

multi-volume report of the Royal Commission on Aboriginal
Peoples (RCAP).Yet 22 years after the Manitoba report and 17 years
after the report of the RCAP, Canada’s Correctional Investigator
reported in 2013 that for the country as a whole, “Aboriginal people
represent a staggering 23 per cent of federal inmates yet comprise
4.3 per cent of the total Canadian population” (Hunter 2013: para.
5; see also Razack 2015). In February 2016, following a month-long

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investigation, Maclean’s magazine reported that Canada’s crime rate

was at a 45-year low, dropping by half since its peak in 1991.Yet,

[b]izarrely, . . . the number of people incarcerated hit an all-time

high. [Moreover,] while admissions of white adults to Canadian
prisons declined through the last decade, Indigenous incarceration
rates were surging: Up 112 per cent for women. Already, 36 per
cent of the women and 25 per cent of men sentenced to provincial
and territorial custody in Canada are Indigenous – a group that
makes up just four per cent of the national population. Add in
federal prisons, and Indigenous inmates account for 22.8 per cent
of the total incarcerated population.
(Macdonald 2016: para. 2)

The reporting evidently had its effect. Five months later, the then
recently elected liberal Canadian government was recognizing that
too many people were in prison and that thoroughgoing reform was
needed. Even as official violent crime rates fell to their lowest level
in 50 years, the number incarcerated in federal prisons had risen 17
per cent between 2006 and 2016 during conservative Prime Minister
Harper’s time in office. One participant in a group assembled by
the liberal Minister of Justice to brainstorm the issue summarized
the views of others at the meeting: “There’s too many people in
jail . . . There’s too many First Nations in jail.There’s too many people
with mental-health issues. There’s too many women in jail. There’s
too many vulnerable in jail.” (Fine 2016: para. 12).

The African-American experience

Useful and damning accounts of ongoing racism in the US criminal

justice system are to be found in the reports of Amnesty International
(for example, 1990a, 1992a, 1992b, 1998, 2003), which focus on police
brutality (including torture), violations in prisons and jails, and arbitrary,
unfair and racially prejudiced applications of the death penalty. The
stories that hit the front pages of the world’s press in 2015 (reviewed in
Patterson 2015) about the Chicago Police Department’s torture centre
or “black site” at Homan Square (touched on in the CBS legal TV
series, The Good Wife) only repeat what Amnesty International (1990b)
and the police department’s own Office of Professional Standards had

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reported in 1990: “Police routinely abused and tortured suspects at a

station on Chicago’s poor, predominantly black south side” (Associated
Press 1992: H8). Between 2004 and 2015, more than 7,000 predomi-
nantly black, often low-level drug offenders, whose detention resulted
in arrest, were detained there. How many were detained without arrest
is officially unknown since the “station” kept no booking records.
People “were essentially ‘disappeared’ – held and questioned without
access to attorneys or phone calls” (Patterson 2015: para. 3) for an
unknown period. In 2015, “after years of advocacy and a sustained
grassroots direct action campaign, Chicago . . . became the first city
in the [United States] to pass a reparations ordinance to compensate
victims of police torture” (Hayes 2015: n. p.). Here we will focus on
the gratuitously violent treatment meted out to those they encounter
by officers of the Los Angeles Police Department (LAPD), starting
with the case of Rodney King as a perspicuous example.
The beating of King, an African American, in the Spring of 1991
consisted of 56 truncheon blows and seven kicks that crippled him.
This kind of treatment, according to black and Hispanic Angelenos,
is more or less routine. What wasn’t routine was that an onlooker
recorded the incident with his video camera and released the tapes.
While LAPD Chief, Daryl Gates, insisted that the incident was an
aberration, many people saw it as typical of the tactics of that police
force. For many in the black community in Los Angeles, the police
are what one author calls “a redneck army of occupation” (quoted in
Campbell 1991: A12). Young African Americans complain that they
are continually stopped for questioning by the police who assume
that they are gang members or drug dealers. Even the black police
officers complain of harassment when they are off duty. The tactics
which the LAPD uses to fight youth gangs and the so-called crack
epidemic include military-style SWAT teams. As we note below, 25
years later, nothing much has changed.
Amnesty International (AI), as part of its ongoing monitoring of
ill-treatment by police throughout the United States, investigated
brutality in the LAPD and the Los Angeles Sheriff ’s Department
(LASD) in the year following the Rodney King beating. Its report,
Police Brutality in Los Angeles, published in June 1992, substantiates the
complaints that had been accumulating. In its examination of cases
in which the LAPD was ordered to pay damages in lawsuits brought
against it, AI finds that

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the police and Sheriff ’s deputies have used excessive force in a dis-
turbing number of cases in recent years, often resulting in serious
injury or death . . . In many of the cases police accounts of what
happened were inconsistent with independent witness testimony
or medical evidence.
(Amnesty International 1992a: 21)

The type of force used includes hitting people on the head with
heavy metal flashlights or lead-filled straps known as “saps,” even
though hitting suspects on the head is generally prohibited. It
involves police dogs attacking people who have surrendered or
pose no threat, and not calling the dogs off when they should.
And sometimes it means using “tasers” [a gun that fires two darts
which give an electric charge on contact], described as having the
stopping power of a small gun.
(Amnesty International 1992a: 21)

The description of weaponry in this account repeats Hunt’s (1985)

observations reported in Chapter 5 in relation to police conceptions
of “normal force.” Campbell (1991: A12) quotes Daryl Gates in 1982,
defending the number of “choke-hold” deaths of black men in police
custody: “We may be finding that in some Blacks, when the hold is
applied, the veins or arteries do not open up as fast as they do on
normal people.” Campbell assumes that any trust African Americans
placed in Gates up to the time of that utterance probably evaporated.
When the four police officers charged in the beating of Rodney
King were acquitted on 29 April 1992, there was an outbreak of
riots, which Campbell writes about as the “largest civil disturbance
in modern US history” (Campbell 1992: A11).They were echoed by
the riots in Toronto referred to above.
Campbell’s article reports on the conclusions of the American
Civil Liberties Union (ACLU) about the way that law-enforcement
officials handled the disturbances – that the need to process an
unprecedented number of arrests (12,500) and a climate of “political
vindictiveness” meant a wholesale stripping of civil rights. The study
by the ACLU refers to the uneven application of the dawn-to-dusk
curfew which resulted in arrests of homeless people, people on their
own property and on their way to or from work; the round-up of
suspected illegal immigrants, often arrested on the basis of their looks;

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and the hundreds of people who pleaded guilty and received criminal
records because of the broad discretion on arrests given to police and
the resulting overloaded court system.
Such policing of African Americans has been repeatedly studied
and commented on. For example, in the first three quarters of 2009, of
over 450,000 people stopped by officers of the New York City Police
Department, “an overwhelming 84 percent of the stops . . . were of
black or Hispanic New Yorkers” (Herbert 2010: para. 3). Nevertheless,

Street stops by Chicago police far surpass New York, ACLU finds
[headline] . . . The analysis of the department’s own data shows that
Chicago police stopped African-Americans at a disproportionately
higher rate than Hispanics and whites, especially in predominantly
white neighborhoods.
(Gorner 2015: para. 2)

One vehicle for such policing has been the so-called War on Drugs
which was discussed in Chapter 7 in relation to class. In his study
of the “ghetto underclass,” William Chambliss describes the conse-
quences of the War on Drugs in terms of the relationship between
race and criminalization in the United States in the 1990s. See Box 9.

BOX 9  Chambliss on race and the War on Drugs

The War on Drugs in the United States has produced another war as well: It is a war
between the police and minority youth from the ghetto . . . The chasm between black and
white in the United States grows deeper by the day, and the police, prosecutors, courts,
and prisons are the steam shovel digging it wider.
Young black men make up about 6 percent of the population but 40 percent of those
arrested for drug possession and trafficking and more than 50 percent of those convicted
of violating drug laws . . . The white male population, which is five times as large as the
black male population, accounts for only 37 percent of those convicted of drug offences,
despite the fact that, as national household surveys show, whites are more likely to use
illegal drugs than either blacks or Latinos. . . .
African American women and juveniles are particularly hard hit by the racially inequita-
ble enforcement of drug laws.The number of women in state and federal prisons increased
fourfold in the last twenty years of the twentieth century.The majority of female inmates are

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in prison for drugs, and the impact of this on black families is staggering, since 75 percent
of the black female inmates are mothers. Discrimination in sentencing for black juveniles is
incomprehensible by any standard. The number of white juveniles in locked detention for
drugs has declined since 1985, whereas the number of non-white juveniles (mostly black)
in locked detention has increased by 259 percent.
Source: William Chambliss (1999: 88–90): Power, Politics, and Crime.

The United States has held the record for the world’s highest
known rate of incarceration for many years. Martin Walker, writing in
the Guardian Weekly (30 June 1991: 10), calls the US prison system “the
American Gulag.” The criminologist Nils Christie adopts the term
for the sub-title of his book Crime Control as Industry (1994, 2000).
In 1990, with one million prisoners in federal, state and county jails,
the United States had a rate of 426 prisoners per 100,000 population,
compared with South Africa at 33 per 100,000, the former Soviet
Union at 268 per 100,000, and Great Britain at 97 per 100,000. By
1993, the US rate had climbed to 532 prisoners per 100,000 popu-
lation (Christie 1994: 191). From 2002 to at least 2013, the United
States had the highest rate of incarceration in the world. According
to the tenth edition of the World Prison Population List compiled
by the International Centre for Prison Studies at the University of
Essex, in October 2013, the incarceration rate of the United States was
716 per 100,000 population. With about 4.4 per cent of the world’s
population, the United States housed about 22 per cent of the world’s
prisoners. The Centre’s data for the United States are drawn from
the US Bureau of Justice Statistics. The UK rate at that time was
148, Canada’s 118 (Walmsley 2013). According to the eleventh edi-
tion of the List, by October 2015, the US rate had dropped slightly. Its
incarceration rate was then second to the Seychelles (Walmsley 2015).
The United States imposes longer sentences than any other indus-
trialized country. In 1990, one quarter of the inmates of the federal
prison system were serving sentences of more than 15 years, one half
were serving sentences of more than seven years.
The US criminal justice system is devastating for African Americans.
In 1990, “one in four black men aged 20–29 is either in prison, on
probation, or on parole (compared to one in 16 for whites)” (Walker
1991: 10).

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Walker explains that he uses the term “Gulag” because he sees par-
allels between Stalin’s imprisoning people because of their social class
and perceived threat to his system and the US treatment of African
Americans. “And there is an uncomfortable sense, even within the
American establishment, that the criminal justice system is racist in
practice, even when it claims to be neutral in principle” (1991: 10).
The point is that the criminal justice system has increasingly been
used as the main vehicle through which the United States handles its
social problems, a catch-all device which scoops up drug users, the
mentally ill, the homeless and other social “failures,” and puts them
out of sight and out of mind into the prison system. “Although we
ignore those at the top, the corporations and the privileged, the state
‘is intrusive and disciplinary at the bottom, when it comes to dealing
with the consequences of social divestment and economic deregula-
tion for the lower class’” (Leonard 2015: 33, quoting Wacquant 2009
[2004]: 83). Referring to Wacquant, Leonard continues:

He contends that race plays a central role here. Just as the criminal
is racialized in our imaginations, Wacquant points to three promi-
nent images found in the media and policy debates . . . the “welfare
queen,” the “teenage mother,” and the “deadbeat dad” (89). He notes
that, “All three were stereotypically portrayed as African-American
residents of the dilapidated inner city.”
(Leonard 2015: 33–34)

Sociology’s explanations
With the official facts of racial discrimination in the criminal justice
system broadly established as above, what does professional sociology
have to say about such criminalization based on race? How do sociol-
ogists go about trying to account, for example, for the criminalizing of
African Americans and the relative de-criminalizing of whites? Some
appreciation of the scope of theorizing about race can be gained from,
for example, Back and Solomos (2009), Theories of Race and Racism:
A Reader. Two broad positions can be identified within the structural
or critical conflict approach to the theoretical understanding of race.
The Marxist position treats race as an epiphenomenon of class, whereas
the neocolonial position treats race as its own analytically separate struc-
ture of dominance. The difference between the two positions, that is,

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turns on the definition of the groups seen by the perspective to be in

conflict. Under the first interpretation, racialized groups like blacks
or aboriginals are seen to be members of the working class or pro-
letariat. Under the second interpretation, they are seen to constitute
their own, separate conflict group marked by their racial identity dif-
ference from other groups identified by race.Transcending both these
positions is the postcolonial perspective based not on class or race, but
on the notion of surplus population that we encountered in Chapter
7. We present these positions in turn, including some representative
studies. In addition, from legal studies has arisen a perspective known
as “critical race theory” that takes as its mandate “to identify the overt
and covert ways in which race affects the identification, interpreta-
tion, and resolution of socio-legal problems” (Russell 2000: 47; see
Aylward 1999; Delgado and Stefancic 2012). We address it briefly in
the Conclusion to this chapter.

Marxist accounts

Oliver Cox: caste, class and race

In his useful review, Watson (1984) cites the work of Oliver Cox
(1948) as an example of the Marxist position:

Cox, an eminent black American sociologist, has argued that the situ-
ation of the vast majority of black Americans can best be understood
if we conceive them as being part of the propertyless American prole-
tariat in a capitalist economy . . . To understand the problem of black
Americans is to understand their position as proletarians . . . Broadly
speaking, says Cox, the black proletariat shared many of the eco-
nomic experiences of the white working class, owing to their being
in a similar overall social and economic position; both white and
black workers had to respond to changes in the capitalist labour
market. Revolts and protests of black people against their exploitation
both before and after slavery were very similar to the revolts, protests
and similar expressions of alienation of white people.
(Watson 1984: 54)

Thus, “the racial tensions between white and black proletarians were
part and parcel of an attempt by the dominant classes to divide the

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proletariat against themselves in order to prevent a revolution or

some other form of class-based collective action” (Watson 1984: 55).
Recall from Chapter 7 that Comack (1985) deploys more or less the
same argument in her account of the racial tensions between white
and Chinese workers in British Columbia in the early twentieth cen-
tury. In his representation of the two positions arising from within a
structural conflict perspective on race, Watson does not address the
topic of crime or criminalization. This is done, however, in Reading
Racism and the Criminal Justice System (Baker 1994), a collection of 17
separately authored chapters published by Canadian Scholars’ Press in
Toronto. In “Capitalism without racism: Science or fantasy?,”William
Sales, Jr (1994 [1978]) argues the more or less orthodox, Marxist,
class-conflict position that capitalism needs racism by first proletari-
anizing blacks so as to exploit their labour power, then separating
them from the white proletariat in a separate labour market for the
more despised blue-collar jobs.The more that blacks resist these “nig-
ger” jobs, the more they sink into the reserve army of unemployed
labour, to be replaced in the dirty jobs by immigrant third-world
workers. White workers attach themselves to the “centre,” while
blacks are forced to the “periphery.”Theoretically, race remains subor-
dinated to class in this analysis.This position has been used to explain
the Los Angeles riots described above in “The African-American
experience.”

Mike Davis: explaining the Los Angeles riots

Mike Davis, co-author of a study of the Los Angeles Police Department

(LAPD; Davis with Ruddick 1988), was interviewed for an article
in the Summer 1992 edition of Covert Action Information Bulletin, on
the events in Los Angeles in April 1992. Davis’s first point is that
the majority of those who participated in the events, particularly
the youths who started them, saw those events as a rebellion (some
referred to it as a slave rebellion), not a riot. Davis explains that the
revolt had three major dimensions:

It was a revolutionary democratic protest characteristic of African-

American history when demands for equal rights have been
thwarted by the major institutions. It was also a major post-modern
bread riot – an uprising of not just poor people but particularly

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of those strata of poor in southern California who’ve been most

savagely affected by the recession.
(Davis 1992: 12)

Third, it was an inter-ethnic conflict – particularly the systematic

destroying and uprooting of Korean stores in the black community.
Davis compares the April 1992 rebellion to the Watts rebellion
of August 1965. Martin Luther King described what happened in
Watts as a class rebellion: “a rebellion of the underprivileged against
the privileged” (1992: 12). In both cases, law-and-order politicians
and officials attempted to blame the actions on a criminal fringe,
but surveys in the community after the Watts rebellion showed it to
be extremely popular (22,000 people involved actively and another
50,000 to 60,000 people standing by “cheering them on” [1992:
13]). Davis estimates that the 1992 rebellion involved twice as many
people, with probably the same ratio of active participants to passive
supporters. Of those arrested in the early stages in 1992, 52 per cent
were Latino and 39 per cent were black. Davis concludes it was as
much a Latino as a black rebellion and the trigger was the current
economic condition – “the worst recession southern California has
seen since the ’30s” (1992: 13).
Its effects were disastrous for recent immigrants from Mexico and
Central America in areas like Hollywood and MacArthur Park. The
driving force behind the looting, Davis notes, was the need for basics
like food and diapers, in those neighbourhoods where the stores were
shut down for three or four days and power outages caused food to
spoil. Davis reveals that the repression that resulted from the upris-
ing was, from a very early point, federalized and federally driven.
In response to a request from Latino store-owners for protection,
the government sent in 1,000 personnel from the Immigration and
Naturalization Service (INS) and Border Patrol, and within a month,
nearly 700 people, most of whom had had no charges laid against
them, were deported. The LAPD, in contravention of city policy,
assisted the INS and the Border Patrol in rounding up people who
were then deported.The backlash that developed because of the loot-
ing was very hard on Central Americans, particularly Guatemalans
hoping to achieve protected status and Salvadorans trying to retain
protected status in the United States. Davis points out that there is,
however, some positive effect for the Central American community:

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“Because they sense that they’ve become the most vulnerable scape-
goats, the Central American community is rushing to register voters,
to encourage people to become active in local politics and to make
alliances” (1992: 15).
Another positive outcome to the rebellion, according to Davis, is
the politicizing of the gangs. Instead of continuing the endless cycle
of destructive gang warfare, Crips and Bloods were holding meetings
and gatherings, hundreds of them coming together as liberation fight-
ers instead of gang bangers. These meetings were violently broken up
by the police who, Davis asserts, “seem to fear gang unity above all
else” (1992: 17). Davis talks about the information-processing capa-
bilities of the Federal Bureau of Investigation (FBI) and local police
forces. The mass arrests following the rebellion depended upon the
databases on black and Latino youth that the LAPD and LASD had
put together over the previous decade, and also the FBI’s expertise in
analyzing video and photographic evidence. The FBI joined with the
police in demanding that the media and private individuals surrender
every negative and all videotape taken during the rebellion. Davis sees
the real danger with massive databases and information technologies as
being their application in the management of criminalized populations.

In Los Angeles I think we are beginning to see a repressive con-

text that is literally comparable to Belfast or the West Bank, where
policing has been transformed into full-scale counterinsurgency
(or “low-intensity warfare,” as the military likes to call it), against
an entire social stratum or ethnic group.
(Davis 1992: 18)

Davis makes the point that Landsat satellites, linked to Geographical

Information Systems (GIS) software offer the possibility of moni-
toring complex urban systems so minutely that the movements of
individual automobiles and people may soon be distinguishable.This
will revolutionize the policing of inner-city areas, experts predict.
Davis sees the possibility of everyone on probation or entered into
one of the criminal databases having to submit to some form of
24-hour electronic surveillance. Davis points to the features that
make the aftermath of the rebellion “the biggest domestic repres-
sion since the Nixon era” (1992: 19). The city attorney and District
Attorney in Los Angeles suspended plea-bargaining and went for the

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maximum possible indictments, bail amounts and sentences. Looters,

who would normally have been fined, were sentenced to two or three
years in prison. Curfew violators were held on $8,000 bail. Davis
points out that the curfew, nominally citywide, seems to have been
enforced only in communities of colour.
The technological features of policing that Davis comments on
which were relatively new at the time are now, of course, standard.

Center for Research on Criminal Justice: policing the slave economy

Perhaps the most notable characteristic of the criminalization of

African Americans is its stubborn persistence. The violent and dis-
criminatory modes of treatment of blacks by the predominantly
white criminal justice system – above all, by the police in the South
– that in 2016 are visible on computer, cell phone and television
screens, that are complained of by Black Lives Matter, and that are
substantiated by any number of official and academic reports are the
same as those observed and reported on each decade going back into
the past. According to the Center for Research on Criminal Justice
(1977: 20), that continuity is no accident. Its roots, they argue, are
in the policing of the American slave economy that began with the
Southern slave patrols in the late 1700s.

Black slavery was the dominant mode of production in the ante-

bellum South, and the largest 2-3 per cent of the planters ruled
the legislatures of each of the Southern states. These legislatures
established slave codes, starting with South Carolina’s 1712 copy
of the Barbados statute. The slave codes which provided for the
brutal slave patrols, both protected the planters’ property rights
in human beings and held the slaves, despite their chattel status,
legally responsible for misdemeanours and felonies.
The plantation slave patrols, often consisting of three armed
men on horseback covering a “beat” of 15 square miles, were
charged with maintaining discipline, catching runaway slaves and
preventing slave insurrection. In pursuing this duty, they routinely
invaded slave quarters and whipped and terrorized Blacks caught
without passes after curfew. They also helped enforce the laws
against slave literacy, trade and gambling. Although the law called
on all White males to perform patrol service, the large planters

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usually paid fines or hired substitutes, leaving patrolling to the

landless or small landholding Whites. These Whites hated the
planters, who controlled the best land and access to markets, almost
as much as the slaves, but whatever the object of their anger, the
slaves were its most frequent target. The slaves in turn resisted the
patrollers with warning systems and ambushes . . .
Policing, then, in its earliest years, developed as a planter class
strategy of race and class control, designed both to keep the Black
slaves in subjugation and to exacerbate the contradictions between
Black slaves and poor Whites. The patrols did not operate with
bureaucratic routine and tended to lapse between outbreaks of
slave revolt. They lasted, however, until the Civil War. In many
respects, the post-Reconstruction Black laws re-established the
police practices of the slave codes, while nominally changing “slave
patrols” to “police departments.”
(Center for Research on Criminal Justice 1977: 20–21)

In Marxist terms, slavery is a particular mode of production. In this

mode of production, the principal forces of production are land and
labour applied mainly to agricultural production; in the American
South, the principal crop was cotton, typically grown on plantations.
The crucial relation of production was that between (a) the plantation
owners who owned both the land and the labour, namely African or
African-American slaves, and (b) the slaves themselves. The planta-
tion owners both depended upon and exploited the slaves, much as
feudal landlords were dependent upon and exploitative of their serfs.
The political super-structure was in turn dominated by the landown-
ers and their representatives in the legislatures of state governments.
Accordingly, the criminal and civil laws established by these bodies
were designed to preserve and enhance the slave mode of produc-
tion. In this system, then, the slave patrols were an instrument of class
domination and discipline. When the slaves resisted their exploita-
tion, the slave police were used to crush their resistance in the name
of the slave codes, the rule of law that embodied and reproduced the
social relations pertaining to the slave economy. For a more structural
Marxist account of race and class, though not focused on criminali-
zation, readers may wish to consult the brief, but useful, discussion
by economist Richard Wolff (2016) which emphasizes the role that
racism plays in legitimating inequality produced by capitalism.

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Neocolonial accounts

Critics of the Marxist class model of racial subordination deny that

“the socio-economic position, experiences, or vested interests of black
people can be equated with those of members of the white work-
ing class” (Watson 1984: 56). They argue that societies like those of
Canada, the United States or the United Kingdom are characterized
by an “institutional” or “systemic” racism so profound that it sepa-
rates blacks from whites. In effect, blacks form an “internal colony”
within white society. This theoretical position is called accordingly
neocolonialist. It has been applied to the understanding of the nature
of black exploitation in the ghettos of urban America in Carmichael
and Hamilton (1967). It is also the position of Wotherspoon and
Satzewich (2000 [1993]: chapter 7) in their systematic analysis of the
race, class and gender relations of First Nations people in Canada.
It may be used to explain what would otherwise be an anomaly
in the official picture of racial criminalization.The apparent anomaly
is that the overall result of many sentencing studies, particularly in
the United States, is that in aggregate there is no appreciable dispar-
ity between blacks and whites in sentencing outcomes. However,
the aggregate result conceals two contrasting patterns of differential
sentencing. For the same offence, with legal factors held constant,
blacks may receive either more severe or more lenient sentences than
whites (Gibson 1978). Again, both differences can be explained as the
outcome of the same structure of subordination. Thus, for example,
when blacks kill blacks, they are treated more leniently than when
whites or blacks kill whites. Since blacks are not regarded as quite
fully human or quite fully civilized, their loss does not count as highly
as that of whites, and self-predation is after all only an expectable
reversion to type. In his study of judicial treatment of intra- and inter-
racial homicide in ten counties in North Carolina throughout the
1930s, Garfinkel (1949: 380) reports “the paradigmatic formulation
of one informant, ‘No Guilford County jury would give a nigger
the chair for killing another nigger. It just doesn’t seem worth it’.”
Accordingly, it is not murder, but manslaughter that is “peculiarly a
Negro’s offence” (1949: 380). Garfinkel concludes:

Crudely put, it is as if the white court will not allow that the
Negro as a person is of sufficient complexity and worth to make

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a conviction of [first degree murder] . . . reasonably representative

of the moral precepts that have been violated.
(Garfinkel 1949: 380)

Racism similarly may be said to account for the scandalous infant

mortality rates among blacks in the United States. On the other
hand, when black males were suspected of raping white women,
only lynching and castration were really good enough. According to
Amnesty International (2003), reviewing studies reported since the
1990 comprehensive study by the US General Accounting Office,
the race of the victim continues to be a factor in the imposition of
the death penalty in the United States. Those who murder whites
are more often executed by the state, whether the offender is white
or black.
The case of the treatment of the aboriginal peoples in Canada
is not dissimilar, if not so dramatic. It is not unusual for judges and
magistrates practising in the North to treat aboriginal offenders more
leniently than they would whites. But in the South, the poverty of
indigenous offenders sentenced to pay a fine for minor offences
like being drunk and disorderly results in their supplying a vastly
greater proportion of the inmates of prisons than their numbers in
the general population would predict (Hagan 1991: 180–181). It is
not necessary for the judiciary to be racist. In a racist society, just by
doing their job, they keep the bothersome “natives” off the streets.

Postcolonial accounts

Sidney Willhelm: prelude to genocide?

Sidney Willhelm (1994 [1986]) reviews both the class and neocolo-
nial models, and finds them both wanting. Both, he argues, rely on
the economic proposition that capitalism requires and exploits black
labour, whereas the goal of post-industrial capitalism is to elimi-
nate the need for labour altogether. “Instead of a transformation of
work, work is itself being destroyed; while the labour that is drawn
from the market is transformed, the need for labour is simultaneously
being curtailed” (Willhelm 1994 [1986]: 42). Only the assumption
that capitalism has moved into a new post-industrial, technological
phase, relying on automation to replace human labour, can explain

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the extraordinarily bleak economic facts about blacks in the United

States at all class levels.
The most important of these facts, he writes, is the permanent
joblessness among black men. For example, “the college-educated
black male is four times more likely to be unemployed than his white
male peer” (Staples 1994 [1987]: 66, citing a 1982 study). Anticipated
in reports from the 1960s, which spoke of two separate societies
emerging in the United States, “Black removal from the econ-
omy” (Willhelm 1994 [1986]) is being realized in the decades since
then.

When . . . automation is considered as a production technique that

is no longer labour dependent, then the affected blacks lose not
only their jobs but their class standing as well; they become not
members of an underclass but declassed people.
(Willhelm 1994 [1986]: 42)

Such a precarious position, ventures Willhelm, is a possible prelude

to genocide. From being useful commodities under slavery, to useful
wage labour under industrial capitalism, they have become a surplus
population of useless people under post-industrial capitalism, as we
saw in Chapter 7. Susan Searls Giroux draws our attention to the
racialized – if culturally coded as raceless – character of the question of:

how to dispose of . . . those populations whose culture or character

is alien and alienating, whose patterns of work and consumption
are neither required nor adequate, whose presence takes up too
much valuable space, whose movement remains the source of too
much unease, whose settlement threatens to drain once abundant
and now dwindling economic and ecological resources.
(Giroux 2010: 4)

As such a surplus population, blacks await their “Indian” fate of

“conditional genocide” (Sartre 1968, cited in Willhelm 1994 [1986]:
49). Christie (1994: 173–174) entertains the same stark proposition,
though in relation to “the lower classes, easily transformed into the
dangerous classes.” This combination of race and class, embodied
in the idea of a surplus population derived from Marx, is captured
well in the following words of Chris Hedges. Speaking of Cleveland

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and Philadelphia, the sites of the 2016 Republican and Democratic

national conventions, he says:

These are Potemkin villages, where the downtowns are Disneyfied,

and three and four blocks away people are living in appalling pov-
erty. We have responded to surplus labor, as Karl Marx says, in our
deindustrialized internal colonies, to quote Malcolm X, by put-
ting poor people of color in cages all across the country. Why? It’s
because [of] surplus labor—corporate entities cannot make money
off of surplus or redundant labor. But when you lock them in a cage,
they make $40,000 or $50,000 a year. This is the system we live in.
(Hedges 2016a: n. p.)

Finally, to return to Canada, where increased use of imprisonment is

also a prevalent way of handling the surplus population, the immi-
grant portion of the racially defined dangerous classes may also
face removal in the form of deportation. As Reiman and Leighton
(2013) and others have often pointed out, and as we noted in the
Introduction to Part III, official crime statistics reveal a typical “crimi-
nal” who is male, young, poor, urban and black. Thanks to media
depictions, this typification becomes a stereotype in the public mind
(Leonard 2015: 1), with the racial component often, it seems, empha-
sized. Crime, especially violent crime, comes to be associated with
race, thus with “coloured” immigrants, and thus with calls for their
deportation when convicted of crime. See also our discussion of
Henry and Tator (2002) in Chapter 10.
Although we devote Chapter 11 to postcolonialist theorizing, we
include Willhelm’s study here both because his concern is with the
fate of African Americans in the United States, and because his analy-
sis is not poststructuralist in character. When we consider studies of
postcolonialism in Chapter 11, it is in an imperial context and is
taken up with the writings of authors coming from a poststructuralist
perspective.

The grammar of race

It was an attack on Rinelle Harper, but to her loved ones, it was
an assault on her community.
(Carlson 2014: front page)

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As we saw in Chapters 7 and 8, checking the dictionary for the mean-

ing of a word can be a useful reminder of the fact that words quite
typically have more than one meaning and even more possible uses.
This is true of “race.” The online Oxford Living Dictionaries (2016)
of English give three definitions of race, the one to do with compet-
ing, one meaning ginger root and the one relevant here to do with
divisions of humankind: “each of the major divisions of humankind,
having distinct physical characteristics.” But this third meaning has
itself seven variants. “Race” can mean the following:
1. the fact of belonging to such a group (“people of mixed race”);
2. a group of people sharing the same culture;
3. a group of people with a common feature;
4. each of the major divisions of living creatures;
5. a distinct population within a species of animals;
6. a group of people descended from a common ancestor;
7. ancestry itself (archaic).
That is, “race” can be used to distinguish human beings from birds
(the human race), sub-species of a species of animal, men from women
(“some male firefighters still regarded women as a race apart”), or to
refer to a multi-generational family, an ethnic group like the Scots
or a major division of humankind based on physical characteristics.
The dictionary gives the expression “people of all races, colours and
creeds” as a prime example of the use of the term “race.” But even
here, it is utterly commonplace to observe races being distinguished
on the basis of colour and creed.We have already referred to the differ-
ent “colours” above, and one can hear discrimination against Muslims
being referred to as racism. Moreover, the phrase “a race apart” also
occurs in the quote from Radzinowicz (1966: 38) in Chapter 7. It
does not, however, refer to a gender, but to a group resembling a class.
The lesson to be derived from this brief visit to the dictionary is
that these meanings do not share a single feature in common, not even
“division of a group.” But they do share an overlapping set of family
resemblances that provide a resource, or set of resources, a set of linguis-
tic tools, with which members of society can produce and recognize
meaningful utterances containing the word “race.” And members of
society clearly have uses for the language of race, and though these uses
include making racist discriminations, they are certainly not confined
to that alone. Being endearing, joking, calling out a rival, making politi-
cal statements, collecting census data or employment equity figures,

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carrying out professional sociological analysis, telling stories, construct-

ing historical accounts, denouncing, putting down, lifting up, swearing,
justifying and excusing actions, seeing criminality, etc. – all can all be
done with racial terms. And it clearly matters who is using the racial
term in question. Context is crucial, as always.
It is crucial in the following regard. As with gender (recall Wowk’s
[1984] study from Chapter 8) and sexual orientation, racial terms
carry ranked connotations; namely, positive, neutral and derogatory
(Watson 1983: 34). Thus, in that order, we have “lady,” “woman” and
“slut”; “gay,” “homosexual” and “queer/faggot”; “African American/
Canadian/etc.”, “black” and “nigger”; and the correlative, if shifting,
terms “aboriginal/indigenous,” “native,” “Indian,” . . . In each case,
rights activists for the groups concerned have successfully defanged
the hateful insult contained in the negative term by adopting it for
exclusive use among group members. In other words, it makes a dif-
ference whether the membership category is being used by one to
whom it applies or not. The need for such radical identity politics
hardly needs detailing here, but Watson considers a case that is starkly
illustrative.The following are data extracts from his study of police (P)
interrogations of suspects (S) in a large US city. In this case, a white
male is accused of killing a black male.

Example A1
P: Why did you shoot at this G{…}?
S: He’s a nigger.

Example A2
P: Well then did you know that you were shooting at G. . . or did
you shoot at him just because he was colored, period?
S: He’s a nigger.
P: And that’s why you shot him and er.
S: That’s why I shot him.
(Watson 1997 [1983]: 92)

In this case, a single membership category is sufficient to give a hear-

able reason for murder. Similarly, in a news report of the trial of two
young white men – Steven Tyler Kummerfeld and Alexander Dennis
Ternowetsky – convicted of murdering Pamela Jean George, a young
aboriginal woman, it is reported:

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[I]n trial evidence, a friend testified that he asked Mr. Kummerfeld

the next day what the accused had done the night of the slaying.
According to his friend, Mr. Kummerfeld replied: “Not much.We
drove around, got drunk and killed this chick.” Mr. Ternowetsky
also was quoted as telling a friend, “She deserved it. She was an
Indian.”
(Roberts 1997: A9)

The judge in the same case is reported to have “told jurors it would be
‘dangerous’ to convict the young man of first-degree murder . . . because
Ms. George ‘was indeed a prostitute’” (Roberts 1997: A9). Just as stark
is the parallel case from the Montreal Massacre in which the killer is
reported as saying to his victims before shooting them, “You are all a
bunch of feminists. I hate feminists” (Eglin and Hester 2003: 3).
Subordination can be carried out, however, without the use of
a racially marked category at all. Thus, Alvin Toussaint, an African-
American psychiatrist, reports how on the streets of Jackson, Mississippi
in 1966 he was approached by a white police officer and the following
exchange ensued.

P: What’s your name, boy?

D: Dr. Poussaint. I’m a physician.
P: What’s your first name, boy?
D: Alvin.5

Here is a classic example of racial subordination without explicit

reference to racial categories or descriptors. Notice that it apparently
consists of nothing more than the employment of a single word
(“boy,” twice) and an apparently innocent question (“what’s your first
name?”). It is achieved through the use of the “stage-of-life device,”
a membership categorization device consisting of a positioned set of
categories for referring to persons according to their stage of life –
baby, toddler, infant, child, adolescent, teenager, adult, girl/woman,
boy/man and so on.The device is commonly used to praise or belittle
persons by referring to or addressing them with a higher or lower
positioned category respectively than would normatively apply to
them (Sacks 1972b: 336). It is demeaning to refer to a man as a boy
without qualification. It is worse, perhaps, to address him as such
because one is doing it to his face. Doing so from a position of

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authority over the recipient is especially humiliating. And doing so by

invoking the standardized relational pair of categories of white–black
(Watson 1983), and thereby the whole history of US anti-black, rac-
ist oppression including the infantilizing of men is downright cruel.
The victim responds with the one interactional resource available to
him for peaceful resistance in defence of his dignity – namely, the
occupational status hierarchy invoked by P acting as a police officer.
“Dr. Poussaint. I’m a physician,” he says. But to no avail.
As the Preamble to the Universal Declaration of Human Rights
(United Nations 1948a), says: “Whereas it is essential, if man is not
to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by
the rule of law.”
Nothing is more controversial in the politics of race than the
treatment of blacks, particularly young black men, by the criminal
justice system in general and by white police officers in particular.
Although matters have been changing rapidly in the 2000s, thanks
to the photographic and videographic capabilities of cell phones
and the increasing use of body cameras by police officers, tradition-
ally the putatively discriminatory actions of CJS personnel have
been conducted outside the public’s ken. Consequently, it has been
difficult to obtain hard data on the actual way race is taken into
account by CJS personnel. The findings of the Commission on
Systemic Racism in the Ontario Criminal Justice System reported
above suggest an avenue of inquiry. To repeat, the Commission finds
that “racialized characteristics, especially those of black people, in
combination with other factors, arouse police suspicion,” the other
factors mentioned including “sex (male), youth, make and condi-
tion of car (if any), location, dress, perceived socio-economic status
and lifestyle” (Commission on Systemic Racism in the Ontario
Criminal Justice System 1995: 92). Just how, then, do CJS personnel
in the course of their decision-making use race in combination with
other factors?
It is more or less a sociological commonplace that police orient
to the relevance of place. Where a report is coming from is treated
as indicative of what it amounts to as police business (Sudnow 1965;
Bittner 1967a, 1970; Sacks 1972c). Police treat the streets in terms of
an ecology of relevances. This is a particular form of a more general
use of location as an interactional device by members of society

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(Eglin 1980). Meehan and Ponder’s (2002) mixed-methodology

study of police stopping and interrogation practices in a US city
confirms the relevance of place to patrol officers’ attention to race:
“The practice of racial profiling is inextricably tied not only to race,
but to officers’ conceptions of place, of what should typically occur
in an area and who belongs, as well as where they belong” (Meehan and
Ponder 2002: 402, emphasis in original). Thus, “African Americans
are subject to disproportionate surveillance and stopping by the police
when they drive through white areas of the community under study”
(2002: 401, emphasis in original). Moreover, it’s not just that such
patterns of action by police reflect attitudes which they share with
the predominantly white community they serve, but they arise too
from the occupational necessity to indeed serve that community: “It
is those citizens they must satisfy” (2002: 401; see also Bittner 1970:
9–10). Police actions reflect and reinforce residential segregation in
US urban and suburban areas. They serve to protect and preserve
place. Furthermore, the authors report that

various court rulings have supported the legal justification of using

race as a proxy of criminality and dangerousness by creating legal
precedents in which race can be used as the sole consideration or
in combination with other contextual factors to trigger ‘suspicion,’
thus justifying police intervention.
(Meehan and Ponder 2002: 424)

For a more ethnomethodological answer to the question posed above,

we may turn again to Maynard’s (1984) study of plea-bargaining in a
California municipal court.

Maynard: a case of the use of race in plea-bargaining

Like the cases treated in Chapters 7 and 8, that involving race con-
sidered by Maynard is one of a series negotiated by the attorneys at a
“pre-trial and settlement conference” with or without the presence
of a judge (J). “Although judges contributed to the discussion in a
few cases, essentially they ‘rubber stamped’ decisions made by the
attorneys” (Maynard 1982a: 349). Discussion includes naming the
defendant, the charge (by title or penal code section) and any prior
convictions.

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J1: And now that brings us to Frank Bryan. Is he the poor chap
sitting out there all by himself?
PD2: Yeah he’s the sweet man with the nice smile. And this is a six
forty seven “f ” and a one forty eight.
(Maynard 1984: 144)

Bryan is charged with disorderly conduct (647f) and resisting arrest

(148).

The usual manner of handling such cases is to drop one of the

charges in exchange for a guilty plea to the other. Because in this
case the 148 charge carried a maximum penalty of one year in jail
and a $1000 fine, while the 647 offence had a maximum of six
months and a $500 fine, the 148 offence was considered the more
serious of the two. And it is over which charge is appropriate that
the DA and the PD contend.
(Maynard 1984: 67–68)

While the attorneys do maintain different positions on the signifi-

cance of certain facts of the case, they do arrive at an agreement on
the charge: the 148 will be dropped and the defendant will plead
guilty to the 647f. Then they discuss the matter of the sentence. The
DA reports that Bryan has a prior conviction for striking a police
officer and disturbing the peace. He formulates this by saying that
“it’s not uh this happy go lucky chap’s uh first encounter with uh
(the law),” to which the PD responds as follows: “PD2: Statistically
if you got black skin you are highly likely to contact the police, uh
substantially more likely than if you’re white, now c’mon, what do
you want from him” (Maynard 1984: 112).
After some further consideration of the length of time the defend-
ant has already spent in jail, the attorneys briefly haggle over the
amount of the fine before agreeing to one of $50. Maynard sum-
marizes the plea negotiation in this case in terms of the issues raised,
which include the “moral character of the defendant, the ‘facts of the
case,’ and the significance of ‘prior record’” (1984: 113).

For the public defender, Frank Bryan is a nice guy whose only
offence was being drunk, fighting with his family, and cursing in
his own home. He was intruded upon there by police officers who

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may have roughed him up during the arrest. He has a prior record
by virtue of being black and statistically more likely to encounter
the police. For the district attorney, the defendant is one who gave
the police much difficulty in making an arrest and who has a prior
conviction for the same kind of conduct. These different inter-
pretations buttress or provide the “reasonableness” of the original
positions that DA3 and PD2 take up, and their disparateness is
preserved as the negotiators, through bargaining sequences, reach
agreement on both charge and sentence.
(Maynard 1984: 113)

The race of the defendant is explicitly invoked in this case, but in such
a way as to mitigate the seriousness of the offence.The very argument
that professional sociologists doing critical studies of the CJS use to
point to racialized criminalization of blacks is here used by parties
to the setting itself to press for a light sentence. Race is a members’
concept. The deeper point is that while stereotyping is harmful, it is
hard to imagine how society could be possible without typification.
For this argument by Schutz, taken up by Sacks, see Kim and Berard
(2009: 268–270) and recall the quotations from Schutz in Chapter 1
of this book (“Members’ knowledge of crime”).
To repeat what was said in Chapter 7 and repeated in Chapter 8,
Maynard’s study confirms again what many studies before his have
attested; namely, that defendant attributes (typifications) are used in
prosecuting, defending and sentencing offenders. But what his eth-
nomethodological approach reveals that other approaches do not is
the selective and contextual use of such attributes by members of society
themselves, as this consideration of the role of race in Frank Bryan’s
conviction and sentencing shows.

Conclusion
Racial (or ethnic) emancipation is a political project. It responds to
discrimination that has been formally enshrined in laws, civil and
criminal, which themselves expressed and were embedded in wide-
spread and persistent, though arguably diminishing, racist public
sentiment and practice. As politics, it is understood as political. That
is, its expression in speech and writing is designed to persuade, to
educate, to agitate and organize or mobilize a constituency towards

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taking action to advance a cause, to right wrongs, to gain rights

and representation, to achieve justice. The political speech or tract is
not the scientific paper or scholarly treatise which seeks to advance
knowledge of a subject. For this reason, professors do not always make
good politicians.Yet critical race theory (CRT), as a species of eman-
cipatory sociology, defines itself as both political and scientific. “The
goal of the CRT approach is to meld theory and practice, thereby
narrowing the gap between what theory is and how theory operates
in the real world” (Russell 2000: 47). It conducts studies (science), but
for a political cause (emancipation of the racialized group). It is no dif-
ferent in this respect than correctional criminology seeking through
scientific inquiry to “do something about crime.” And though it
speaks in scientific vein of “criminalization” and “racialization,” rather
than crime and race, its political motivation requires falling back
on the pre-scientific, “two-set class” (Sacks 1992a: 47–48) of racial
categories in which it traffics; namely, for the principal case, black
and white. This distinction then affords the conceptual possibility
of “white racism” and “internalized racial oppression” characteristic
of “critical” sociological studies of race generally; for example, Pyke
(2010).There is here a further case of the ontological gerrymandering
that Woolgar and Pawluch (1985) identify as afflicting constructionist
studies generally. Preserved within the overall perspective, whether
inclusionist, separationist or transgressive, is “the Durkheimian theme
of the relations between dominant, morally affirmed identities and
subordinate, morally denied ones” (Cuff et al. 2016: 362), expressed
in the terms of Harvey Sacks (1992a: 40–48) as an inference-rich pair
of membership categories with asymmetric predicates available as a
reasoning device for all practical purposes. Once again, a character-
istic trope of a professional sociology is seen to rest on a practice of
reasoning arising out of the ordinary linguistic practices constituting
members’ methods of sociological inquiry.
In just this way can it be seen how members of Rinelle Harper’s
family could find that the brutal attack on her constituted an “assault
on her community,” where “community” here stands for aborigi-
nal people; how Iranian Canadians could be struck by a “sense of
sadness” and “betrayal” with “the widening allegations against [Jian
Ghomeshi] of sexual violence and his firing as host of CBC radio’s
Q . . . ‘We wanted his success to be our success’” (Yew 2014: paras
2, 4; Ghomeshi was subsequently acquitted of all charges); and how,

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in the wake of a presidential assassination (that of US President J. F.

Kennedy), African Americans could wait in trepidation to find out
if they had done it. In all instances, the parties involved can be seen
to be using what Sacks called the MIR categorization device (Sacks
1992a: 42–43; 1989: 274–275). Readers intrigued by this line of
inquiry may wish to take up the collection of studies titled Language,
Interaction and National Identity edited by Hester and Housley (2002).

Grand Chief Harper likened Ms. Harper’s defiance – she would not
die of her injuries – to that of her great-uncle Elijah Harper, the
late Manitoba politician who stood up in the legislature and said
“no” to the Meech Lake Accord. “This is the same thing Rinelle
did in the frigid waters [of Winnipeg’s Assiniboine River]. She was
attacked, beaten, left for dead,” he said. “She got back up from the
waters and she said, ‘No. This is not going to happen anymore’.”
(Carlson 2014: front page)

Exercises
1. Attempt to discover through official sources who is currently
being held in solitary confinement in the prisons of your province,
state or country. Compile a list of their names. Attempt to discover
their “racial” background as officially recorded. Nations’ prison
systems are overseen by official inspection bodies. In Canada it
is the Office of the Correctional Investigator. In the UK, it’s Her
Majesty’s Chief Inspector of Prisons. The United States appears
not to have a single national inspection body. Inspections appear to
be handled by each state. Possibly useful institutions at the national
(that is, federal) level include the Federal Bureau of Prisons and the
National Institute of Corrections. Amnesty International USA and
prisoners’ rights organizations may be helpful sources. The idea
is to see which “racial group” is currently most subjected to this
most “cruel and unusual punishment.” Keep detailed notes in your
notebook of the steps you took in this inquiry, the obstacles you
faced and any solutions that worked or didn’t work.
2. Note any instances of the everyday use of the language of race
you observe during your course of study, particularly if they arise
in the context of talk about crime. Consider them in light of the
grammar section of the chapter.

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Review questions
1. What are the similarities and differences between Marxist and
neocolonial accounts of race? How could they be used to explain
the differential stopping and carding of black and white people by
police? Which approach do you favour, and why?
2. How does the postcolonial account of race differ from the Marxist
and neocolonial accounts? What aspects of the experience of racial-
ized minorities with the criminal justice system does it explain
better than the other two theoretical approaches?
3. Including his cases from Chapters 7 and 8, say what you take it
Maynard (1984) means when he says that lawyers’ use of defendant
attributes such as class, gender and race is selective and contextual.
If this analysis is correct, what sociological significance does it
have?

Further reading
Back, Les and John Solomos. Eds. 2009. Theories of Race and Racism:
A Reader. Second edition. Routledge Student Readers. London,
UK and New York: Routledge. For more extensive coverage of the
range of theories than is provided in this chapter.
Chan, Wendy and Dorothy E. Chunn. 2014. Racialization, Crime, and
Criminal Justice in Canada. Toronto, ON: University of Toronto
Press. The book also includes consideration of immigration,
poverty and mental illness, and inter-sectionality.
Hester, Stephen and William Housley. Eds. 2002. Language, Interaction
and National Identity: Studies in the Social Organisation of National
Identity in Talk-in-Interaction. Aldershot, UK: Ashgate. Although
focused neither on race nor crime, the book presents detailed
investigations of how persons actually use national identity in their
talk, the interactional uses to which such expressions are put, and
the interactional consequences of such identity talk.

Notes
1 For example, Jeff Outhit, “Racism entrenched in university campuses,
forum told,” Waterloo Region Record, 21 March 2016: www.therecord.
com/news-story/6400143-racism-entrenched-in-university-campuses-
forum-told/ (Accessed 22 March 2016).

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 PART III: POLITICALLY CHALLENGED

2 See El Jones, “You have to fight for your right to party: A brief his-
tory of Halifax bars and racism.” Halifax Examiner, 7 May 2016: www.
halifaxexaminer.ca/featured/you-have-to-fight-for-your-right-to-party/
(Accessed 8 May 2016).
3 Stephen Lewis was a former leader of the Ontario New Democratic Party.
He was later appointed Canada’s Ambassador to the United Nations, after
which he became an inveterate campaigner on behalf of those suffering
from AIDS in Africa.
4 Kitchener-Waterloo Record, 2 November 1990, B2.
5 The transcript is taken from Watson (1984: 63), who simplifies it from
Speier (1973: 188), who cites Ervin-Tripp ([published as] 1972: 218),
who cites the original by Poussaint (1967). Speier and Watson both pro-
vide brief analyses of the interaction, while Poussaint himself describes
the episode more fully. The analysis presented here is drawn from Eglin
(2013c).

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PART IV

Epistemically
undermined
 Introduction

Professional sociology positively undertaken in the spirit of the

Enlightenment imagines that knowledge can be secured on true
foundations and thus serve as the basis of progressive change in society.
Philosophy is to provide the foundations and science the knowledge.
The change takes the form of piecemeal social engineering, otherwise
known as liberal reform. Those sociologies making the interpretative
turn do not so much doubt that the house of knowledge has stable
foundations as question just what it is that the foundations are made
of. Rather than true knowledge being secured by being expressed in
the terms of a formally incorrigible language and on the basis of valid
scientific method, the interpretative position points to the irremedi-
able dependence of formally correct language and valid scientific
method on practical reasoning involving constant and unavoidable
recourse to commonsense knowledge of social structures.

To treat instructions as though ad hoc features in their use were a

nuisance, or to treat their presence as grounds for complaint about
the incompleteness of instructions, is very much like complaining
that if the walls of a building were only gotten out of the way one
could see better what was keeping the roof up.
(Garfinkel 1967: 22)

Here, in Garfinkel’s formulation, the word “instructions” stands for

the whole edifice of Cartesian reason expressed in everything from,
indeed, instructions for, say, installing drywall, to the rules of formal
analytic philosophy and scientific method. And the second “their” in
the quotation refers to the “ad hoc features.” To grasp fully the point

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he is making here, the reader may profit from returning to the discus-
sion of the meaning and use of official crime statistics in Chapter 2
where we first quoted this sentence.
The political challenge to both positivistic and interpretative sociolo-
gies does not so much question the basis of their claims to knowledge
as contest the assumption that truth can be pursued independently
of politics. Science and politics cannot be separated, according to this
view, as is evident in the class, gender and racial biases to be found in
the content and form of such inquiries, so the argument goes. Inquiry
not directed to the emancipation of oppressed groups is either ideo-
logical or pointless. The point is to reconstruct society as a whole,
free of oppression, rather than seeking to reform it in piecemeal
fashion.
The postmodernist (PM) and poststructuralist (PS) turn does not so
much repudiate the interpretative and political challenges to posi-
tivistic inquiry as radicalize them in such a way as to undermine the
whole Enlightenment enterprise. The pursuit of true knowledge is
not just not value-free. It is itself a power play. Knowledge is not sepa-
rate from power: “behind the will to knowledge [is] a will to power”
(Seidman 2013: 165, channelling Nietzsche). The aim of inquiry is
not to progressively construct or radically reconstruct society, but to
deconstruct all claims to authority. “Poststructuralism is a kind of per-
manent rebellion against authority; that of science and philosophy but
also of the church and the state. Its strategy of linguistic and political
subversion is called ‘deconstruction’” (2013: 165).

Although Derrida gave rise to the interpretive program of “decon-

struction,” he is ambivalent about the use of the term; he claims
that deconstruction is neither theory nor method but is a tex-
tual intervention called forth by all writing that cannot escape
from assumptions, limitations and ambiguities of words, meaning’s
deferral.
(Agger 1994: 502–503)

The impact of the post-als was felt as strongly in English and

Comparative Literature and History as in Sociology. Why so?
The answer is writing, as intimated by Derrida in the quotation
above. Language conventionally breaks down into speech and writing.
Linguistics, as an empirical science, puts speech first, writing second.

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INTRODUCTION

Literary Studies, as a branch of the humanities, reverses that order,

putting writing first (even while acknowledging the primacy of the
spoken word in the form of the poem; but the poem is a literary form,
whereas talk is the home of speech). The post-als put “discourse”
first, which nominally includes, like language, both speech and writ-
ing. But by discourse, they have in mind texts, and texts are, in the
first place, written rather than spoken. Thus may be understood the
profound impact of the post-als on English, Comparative Literature,
History and the humanities generally insofar as they work primar-
ily with texts rather than speech. Since, then, that impact was felt
across the humanities and social sciences, its fundamentally sociologi-
cal character was rendered in the non-disciplinary expression “social
theory.” For some, this move represented the beginning of the end
of sociology as a discipline. Indeed, the post-als fostered the growth
of multi-disciplinary, cross-disciplinary and trans-disciplinary studies.
Not content with PS and PM, practitioners put “post” in front of
just about every academic endeavour – post-Marxist, post-critical,
postcolonial, postneoliberal, post-industrial, post-Fordist, post-you-
name-it.Why not post-sociological, post-disciplinary, post-academic?
If the radicalizing impulse knows no limit, then surely we must arrive
at post-postal . . . 
Deciding where to put the post-als in this book posed a problem
from the outset. Two broad principles organize the order of chapters
and parts: namely, chronology on the one hand; and methodology or
epistemology on the other. Methodo-epistemo-logically, PS and PM
depart from both the interpretative and political turns. They come
“after” them in the sense of radicalizing them both. But chronologi-
cally they arrive in sociology at almost the same time, if a little later
– that is, in the 1970s. If the interpretative and political turns occur in
the 1960s, the post-als are themselves post-1968. Geographically there
is a difference too. If the former pair happen primarily in the United
States, but also in the UK, the latter are a creature of France. The
post-als could have been placed as the last chapter in Part II or the
last chapter in Part III. Moreover, since the content of post-al studies
in sociology and criminology is very often taken up with class, gender
and race, that content could have been included in those chapters.
Finally, however, the author opted to sacrifice either principle alone
for the combination of both. Accordingly, they get their own part,
the last one, this one.

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The transgressive phase of emancipatory theory

You will recall that in the Introduction to Part III, we adopted
Cuff et al.’s (2016) set of three phases – inclusionist, separationist
and transgressive – in the evolution of emancipatory theorizing as it
applied to feminism, queer theory and postcolonialism.We noted that
the “transgressive” phase reflected the impact of the post-als on the
fields in question, and deferred its discussion until this point in the
book. Accordingly, we now take it up in relation first to postmodern
feminism, then queer theory, as they set themselves apart from the
separationist position, known in feminist sociology as “standpoint
theory.”
The problem with standpoint theory is its essentialism. If it is only
women who have access to the kind of experience that is a prereq-
uisite for speaking from the standpoint of women, then it must be
that women have a special access to reality unavailable to men, and
something in common that separates them from men. But if reality
is socially constructed, if sex is not a sufficient basis for gender, then
what could that essential difference be? Moreover,“‘women’s experi-
ence’ is a spectrum rather than a unity, and gender identity is cross-cut
by other social identities, such as race, ethnicity, class and age, in
complicated ways” (Cuff et al. 2016: 372). For example, queer, black,
feminist scholar Moya Bailey has coined the concept of “misogy-
noir . . . meaning the combination of anti-blackness and misogyny”
(Anderson 2016: para. 10). As we intimated above, this critique then
gives rise to the third “transgressive” phase in feminist sociological
theorizing. Based in postmodernist thinking, it more or less coincides
with the third wave of the women’s movement.
Rather than seeking inclusion in male sociology and society, and
instead of electing to separate themselves from both male theory and
practice, postmodern feminism opts for transgressing the boundaries
of the dual gender categories that feminism posited in the first place.
To transgress is to go beyond the bounds of a given. In this case, the
given is the idea that the dual gender categories of male and female
adequately describe the distribution of gender characteristics in a
population. More profoundly, it is not just a matter of adding in more
categories such as “transgendered” for, in the postmodernist view,
no linguistic category such as “male,” “female,” “woman,” “man” or
“gender” is stable in its meaning. Meaning is dependent on the dis-
course in which it is embedded (see, for example, Doezema 2010),

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and discourses are themselves multiple, variable, shifting and, as we

will see in Chapter 10 when discussing Derrida’s view of language,
have no determinate ending. It’s no use looking to biology for a stable
foundation since even the body is changeable. It is

on this basis [that Judith] Butler [2006 (1990)] proposes a “per-

formative” conception of gender identity. Drawing heavily on
Foucault, and in a typical poststructuralist move, she argues that
since the processes that realize gender identity are linguistic, gen-
der is best understood as something that is “performed” in and
through speech and other related practices of discourse.
(Cuff et al. 2016: 373)

By the 1990s the women’s movement had lost much of the impe-
tus it had had in previous decades; the separationist position in
particular had lost much of its force. In this context the transgres-
sive arguments of the postmodernists pointed in a more practical
and pragmatic direction, suggesting accommodation to and alli-
ance with other forms of identity politics . . . For these feminists,
the ideals of the gay and lesbian movement are integral to their
conceptions of feminism, especially since gay and lesbian theory
had, by the 1990s, arrived at the same postmodernist perspective.
Consequently, postmodern feminism and queer theory are both
politically aligned and theoretically contiguous.
(Cuff et al. 2016: 374)

Queer theory is heavily indebted to Michel Foucault, himself gay,

who is regarded as the poststructuralist whose work has had the
greatest effect on sociology.

Foucault’s argument concerning homosexuality mirrors his earlier

analyses of mental illness and crime. Like the mental patient and
the criminal, the homosexual is a social creation, the product of
an essentialist discourse that presupposes a necessary link between
forms of conduct and an inner “self ” from which that conduct
emanates. The label “homosexual” is invented to concretize this
link, thereby constituting the homosexual as a subject of medical
and scientific investigation.
(Cuff et al. 2016: 377)

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Following Foucault, postmodernist, transgressive, queer theory

abandons the idea of fixed sexual identities, treating the homosexual–
heterosexual or gay–straight binaries as themselves a feature of
hegemonic heterosexual discourse. That discourse is one that fixes
boundaries around such categories as “gay,” “lesbian” and “straight,”
whereas the “task is to open up all possibilities and resist all bounda-
ries” (Cuff et al. 2016: 378). In its postmodernist, transgressive form,
emancipatory theory acknowledges that emancipation itself can never
be total, but partial only, and never finished, but transitory only. The
third field of emancipatory theory that Cuff et al. trace through the
three stages of inclusion, separation and transgression is postcolonial-
ism, but since this is the principal theme of Chapter 11, we leave its
explication to the beginning of that chapter. Likewise, we leave the
question of how PS and PM have been taken up in the sociological
study of crime to Chapters 10 and 11 themselves.

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10 Power

CRIME PREVENTION/LA PRÉVENTION DU CRIME

Newsflash/Nouvelles éclairs
The Monetary Cost of Criminal Trajectories for an Ontario
Sample of Offenders
Summary of the Atlantic Youth Inclusion Program Evaluation
Now available on Public Safety Canada’s website
(Public Safety Canada)

The text of the epigraph above, with its colourful graphic design
restored, and in both official Canadian languages, appeared unbid-
den in the author’s inbox (the accompanying message informing him
that he is on the agency’s mailing list) on 20 September 2016. That
it so appeared in his inbox, that it comes from a governmental body,
that it concerns the prevention of crime and that its announcements
are about inquiries which are informed by economics and social
work make it grist for the mill of Foucauldian analysis of discourse,
discipline and power. To be more precise, the text invites considera-
tion in terms of Foucault’s concept of governmentality, which, while
appearing later in Foucault’s work than the previous three concepts,
nevertheless incorporates them (though Garland [1997: 193–195]
sees some confusion among the concepts appearing in the earlier and
later works). The bulk of this chapter and the theoretical aspects of
the next one are devoted to Foucault and his effect on criminology.
But before we introduce those of his ideas that have been taken up
in criminology, we consider his place in relation to poststructuralism

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and postmodernism generally. This also gives us an opportunity to

return to our interrogation of the words “Meat is Murder.” Following
the discussion of PM, PS and Foucault’s Discipline and Punish (1977
[1975]), we present Garland’s review of the field of governmentality
studies and two specific studies informed by Foucault’s work; namely,
Sangster’s (1996) analysis of the moral regulation of women’s sexu-
ality through the Female Refuges Act of Ontario, and Henry and
Tator’s (2002) critical discourse analysis of the racialization of crime
in Toronto’s print media. As usual, the review of exemplary studies is
followed by grammatical respecification, in this case of the part played
by power in poststructuralist (and not just poststructuralist) sociology.
The conclusion, believe it or not, comes at the end.

Poststructuralism and postmodernism

Structuralism is a theoretical position in the human sciences based in
de Saussure’s analysis of language. The meaning of words derives not
from the words themselves, nor from the things in the world to which
they may refer, but from the system of contrasts they draw with other
words. Their meaning, that is, is internal to the structure of language
itself. In saying this, de Saussure is thinking of what has come to be
called the “paradigmatic” axis of language.A given word’s meaning in a
sentence consists of the differences between it and all the other words
that could have been used in the grammatical position the given word
occupies.Thus, in “Meat is Murder,” the meaning of “murder” is given
by its difference from all the other words that could occupy that spot
in the sentence, such as “Tasty,” “Hope,” “Expensive” and so on. Post-
Saussurean linguistics adds a second dimension to the mix, what is
called the “syntagmatic” axis of language. Here it is recognized that the
meaning of a word will depend also on those words that come before
and especially after it. Hence, the meaning of “Murder” in “Meat is
Murder on Fridays” is different from its meaning in “Meat is Murder if
you have ill-fitting dentures,” which is different from “Meat is Murder
for babies” or in “Meat is Murder in the fourth quarter,” referring to
a player on the team colloquially known as “Meat” who is very good
at what he does. It makes a difference, too, if the sentence is written,
with a capital “M” for “Meat,” or whether we are dealing with spoken
utterances where the capital “M” can’t be heard unless we specifically
name it or insert it with a gesture.

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Before we proceed further with this disquisition, we will pull a

Derridean “interruption” of the text by referring to a just-published
review by Elena Ruiz (2016) of a book by Beata Stawarska (2015)
which completely upsets the received view of de Saussure’s views
on language that have just been presented in the previous paragraph.
In the book, titled Saussure’s Philosophy of Language as Phenomenology:
Undoing the Doctrine of the Course on General Linguistics,

Stawarska argues that Saussure’s attitude towards language is not

structural, but phenomenological, “in that it approaches language
the way it is (already) given to us in experience and usage, and
models its method on this prereflective manifestation of meaning
to the speaker rather than on ideals of metaphysically construed
objectivity posited by the scientist” (p. 119).
(Ruiz 2016: 481)

Three supporting arguments are made. First,“the Course [on General

Linguistics] is not representative of Saussure’s actual views on lan-
guage” (Ruiz 2016: 482). Second, his actual views are closer to the
European phenomenological tradition of Georg Wilhelm Friedrich
Hegel and Edmund Husserl.Third,“the established structuralist read-
ing of Saussure’s views (epitomized by oppositional pairings between
signifier/signified, synchrony/diachrony, la langue/la parole) are the
result of ghostwriting, editorial interventions, and outright bully-
some fabrications motivated by disciplinary agendas and personal
editorial gain” (2016: 482). It’s important to note that the Course on
General Linguistics, which is the basis of the structuralist reading of
de Saussure, was compiled posthumously from students’ notes. That
said, the author of this book is leaving what is to be made of this in
the hands of the reader. It being too late for him to read Stawarska’s
book and possibly revise this text in its light, he is resuming normal
programming, as the BBC used to say, in the following paragraph.
Structuralism stands, whether de Saussure remains associated with it
or not. Derrida would no doubt say, were he alive, that this author is
making his point.
Like Durkheim with respect to sociology, his contemporary “de
Saussure,” it has long been held (!), sought to establish linguistics as
a science with an object of its own he called “langue” (language) to
be distinguished from “parole” (speech). Just as “society,” Durkheim

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argues, is analyzable in terms of its own domain of structural “social

facts” (sui generis), so linguistics could have its own domain of facts
based in the structures of language abstracted from speech. In
abstracting language from speech, structural linguistics also abstracts
its object of inquiry from the speaker. No longer would the meaning
of words depend on what the speaker intended. Rather, what the
speaker could mean is given by the structures of the language being
spoken. Structuralism thus characterizes Durkheim’s sociology, struc-
tural linguistics after de Saussure and structural anthropology after
Lévi-Strauss. Poststructuralists were attracted to structuralism because
it had already de-centred the subject. Meaning no longer depended on
the presence of the speaker or, in the case of writing, the author, but
was internal to the text itself. Derrida, however, carries the argument
further.
If the meaning of a word or expression depends on those that come
after it, then it is never possible to say definitively what any given
word means since the chain of words coming after it is never-ending.

We seek to establish what the earlier words mean by listening to

or reading what comes later, but there will always be more signs,
i.e. more words and more sentences.We can never be sure that the
words will not take on a quite different meaning.
(Cuff et al. 2016: 270)

Thus, imagine how one’s understanding of an overheard conversa-

tion about the politics of the claim made by animal rights advocates
that “Meat is Murder” would change if it were revealed that it was
touched off by a previous topic in what was, in fact, a longer conver-
sation about the interlocutors’ host’s eccentric character, as displayed
in the name of his favourite racehorse “Meat is Murder” – where
“Meat” refers to horsemeat and “Murder” means, in slang, just the
best. Derrida captures this dual dependence of the meaning of words
on other words with the neologism “différance”: meaning depends on
how a word differs from other words (the paradigmatic axis) and on
how it defers to other words (the syntagmatic axis), where the latter
is of indefinite extension; it never ends. It then follows that definite-
ness of sense is irremediably elusive, and consequently illusory. It
simply can’t be had. “In simple terms, language cannot say anything
definite about the nature of things because language itself is not itself

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definite” (Hutchinson et al. 2008: 23). Hence, it makes no sense to

go looking outside the text for clues as to the text’s meaning, such
as experiences in the life of the author, or the speaker’s answers to
questions in an interview, for this step reduces to looking for the
meaning of one text by referring to another (the written account of
the author’s life, or the text of the interview).This practice of seeking
the meaning of one part of a text by examining other parts of the
same text or other texts is called intertextuality. It also makes the point
that, for Derrida, the true home of language is in writing and not in
speech.
Pressed further, this line of argument undermines all attempts
to, say, set up differences between the different disciplines on the
basis of the different kinds of texts they examine. Since, in Derrida’s
view, “every use of language is a text, there can be no principled
grounds for drawing definitive boundaries between any of the disci-
plines concerned with language and its uses” (Cuff et al. 2016: 274).
Disciplines reduce to being “nothing more than conveniences, impo-
sitions of arbitrary (and ultimately) groundless convention” (2016:
274). Pressed even further still, this argument leads to the conclusion
that all conventional distinctions in philosophy and science – say,
between language and reality, or between science and literature – and
all attempts to seek logical consistency in the conduct of inquiry –
that is, to employ reason itself in that pursuit – are spurious.They are
spurious because they reduce to seeking the meaning of one bit of
text by resorting to another bit of text, when we have seen already
that there is no solution in this direction. It can be seen now, per-
haps, how profoundly consequential Derrida’s argument is for the
whole Western intellectual enterprise and why we characterize PS
and PM as epistemically undermining the Enlightenment project
itself, if what they say is right.
A further consequence of this argument is that what are conven-
tionally presented as reasoned conclusions settling the meaning of
some intellectual question can no longer be regarded as such, but
reflect rather the attempt to assert closure, to impose a solution, to
invoke authority, to exert power. Insofar as these moves now appear
as illegitimate, it is the task of the inquirer to expose them for what
they are by showing that the texts in question are open to quite other
interpretations. Deconstruction is Derrida’s name for this “method.” It
proceeds by

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cultivat[ing] incongruities and paradoxes, highlighting the ways

texts are internally divided within themselves, showing how one
part of the text counteracts the effect ostensibly sought in another
and revealing especially where aspects of the text resist, confound
and unravel the order which seeks to impose itself upon the text.
(Cuff et al. 2016: 275)

The task is to reveal the wild, open and disorderly character of language
and to oppose the violence of ideological closure. In seeking definitive
accounts of “reality,”Western thought shows itself to be a violent and
repressive enterprise. Revealing this about it then becomes an act of
political opposition. Postmodernism and poststructuralism see their
intellectual activities as intensely political since, in effect, everything is
political (Fish 2008: 174; see Eglin 2013b: prologue).
As we will see with Foucault, poststructuralism is concerned to
locate ideas historically. It holds to the relativist idea that what is
thinkable is tied to historical circumstance. Ideas arise in relation
to societal practices that are current at a given time. “There is an
underlying matrix of presuppositions which confines the mind in a
given period and makes only certain kinds of thoughts thinkable.This
matrix is what Foucault terms the episteme” (Cuff et al. 2016: 245). If
this is so, however, it must mean that the kind of society in which it
is possible to think outside the box of Enlightenment thought must
itself have changed in order for these new thoughts to be thinkable.
If Enlightenment thought is characteristic of modern (as opposed
to pre-modern, classical or medieval) society, then it must be the
case that we are living in a form of postmodern society with a new
episteme. In the work of Jean-François Lyotard, Jean Baudrillard and
other postmodernists, we find the position being taken that not only
theorizing has become postmodern, but society itself has entered a
stage of postmodernity. As such, it is now possible, now thinkable, to
undermine the Enlightenment episteme.
The consequences for criminology of these largely philosophical
developments have been, as might be expected from the previous
discussion, two-fold. On the one hand, practitioners have sought to
adopt the language and theoretical outlook of PS and PM to ana-
lyze crime and criminalization; and on the other hand, they have
looked for empirical evidence of postmodernity in the character
of contemporary crime and criminalization. Readers tempted by

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the “wild” possibilities offered by the idea of “postmodern crimi-

nology” can obtain a good sense of its uptake from Milovanovic
(2012): “edgework,” for example, includes “extreme sports, ‘sneaky
thrills,’ the ‘badass’ and ‘righteous slaughter’ (Katz, 1988), out-of-body
experiences and near-death experiences” (Milovanovic 2012: 154).
Poststructural criminology is, by comparison, rather more subdued.
As we noted in Chapter 2, citing Paul Rock, of primary importance
in this field has been the work of Michel Foucault. From his early
books on madness, medicine and classification has come attention to
the concept of discourse. From Discipline and Punish (1977 [1975]) have
been derived the concepts of power/knowledge, disciplinary power,
docile bodies, moral regulation, etc. And from his later work on the
History of Sexuality (1990 [1976, 1984]) come the important con-
cepts of biopower and governmentality. In this chapter and the next, we
review sociological studies that employ these concepts, starting with
Discipline and Punish itself.

Foucault: Discipline and Punish

The “Enlightenment,” which discovered the liberties, also invented

the disciplines.
(Foucault 1977 [1975]: 222)

At the end of Discipline and Punish, Foucault (1977 [1975]: 303) asks,
“how were people made to accept the power to punish, or quite
simply, when punished, tolerate being so?” It’s an arresting question.
Why do we accept, to the extent that we do, that other people, usually
in uniform, can take our money in fines, imprison us and/or impose
other conditions on us that limit our freedom to act? The question
is all the more arresting when it is acknowledged that the standard
liberal-democratic answer – that as citizens we “signed a contract”
with the state to give up force and fraud in exchange for protection
and control by law backed by sovereign power – is empty of content.
None of us ever signed such a contract, explicitly or implicitly, either
as individuals or via social groups of which we are members, nor did
our predecessors. Moreover, the slightest observation of or reflection
on the social distribution of punishment reveals quite plainly that “the
jails are full of petty thieves, and all the while the grand thieves are
running the country” (Howard Zinn [1970], quoted in Chapter 7).

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Why, then, do we submit to what is to a large degree a system of arbi-

trary and unfair punishment that we never agreed to in the first place?
Foucault’s answer is discipline: thus the title of this, his most “crim-
inological” book. Its 300-plus pages develop his case. He argues that
we live in a “carceral archipelago” of disciplinary institutions that have
normalized us to accept such domination as just the way things are.
Such discipline has made us into “docile bodies.” “Carceral” means
“of, or relating to, jails or prisons,” and “archipelago” he uses after
Aleksandr Solzhenitsyn’s The Gulag Archipelago, referring to the vast
system of Soviet prison camps: hence the book’s subtitle, Birth of the
Prison. But given that so few of us have ever been imprisoned, what
exactly does he mean? Foucault extends the meaning of carceral to
take in other institutions that he likens to prisons, such as schools,
asylums, hospitals, military barracks and business organizations. All
are run on the basis of a disciplinary power so pervasive that we, as
users and inhabitants of such institutions, are simply accustomed to
its effects.We do not experience such effects as coercive since we are
formed, as social beings, in the ambience or field of their operation.
In fact, we are vehicles of such discipline, applying it to ourselves as
we apply it to others. But then what does he mean by “discipline,”
and what does he mean by “power”? Both, it turns out, have to do
with “knowledge.”
One part of the meaning of discipline is, in fact, punishment, but
that’s not what Foucault is getting at. He is using it, in fact, in its
principal conventional sense of being the practice of training people
to obey rules, both practically and theoretically, except that there is
no trainer other than the people themselves insofar as they participate
in their own training. The theoretical part is the knowledge, as in
the academic “disciplines.” The object of the training is “the body.”
Hence, he attends to all the ways we are trained and train ourselves
to fit into the requirements of the labour process at work, to sub-
mit to the rule of clock time (clocking on, clocking off), to subject
ourselves to timetables, to wait our turn in line, to train and educate
ourselves in all the ways that modern life demands, and to do so in
detail. “Discipline is a political anatomy of detail” (Foucault 1977
[1975]: 139). It is a micro-physics. Just consider the detailed care that
goes into the morning rituals of cleaning, dressing and preparing
“for the day.” Consider the scheduling of activities engaged in by a
modern, nuclear, middle-class family over the course of a day, a week,

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a school term, a year. Consider the progression of school “years”

and the “stages” of a career (those of you who can remember such a
thing). Consider the functional distribution of space in any modern
organization. Consider the rules that regulate all such spaces and the
enormous extent to which they are self-administered, not requiring
external enforcement.
Foucault draws economic and political inferences from this analysis
of discipline. He adds, as it were, his account of the disciplined body
to Marx’s account of the economic exploitation of workers through
the extraction of surplus value in the labour process to help explain
how workers come to be useful cogs in the machine, and why they
submit to their exploitation. Discipline produces bodies that are at
once useful and docile, where “docile” means essentially “obedient.”
In the same way, they become suitable bodies for modern armies.
As with discipline, Foucault starts with the conventional mean-
ings of “power,” and then elaborates them theoretically.Thus,“power”
means both the ability to do something oneself (the power of speech)
and the capacity to make others do things. It can enable (power to),
and it can impose (power over). But whereas professional sociology
has treated such abilities or capacities – with a heavy emphasis on
the repressive form of “power over” – as the property of “individuals
or groups, e.g. exercised by a ruler or by a ruling class – a con-
ception of power with a subject,” Foucault treats power “in modern
society . . . [as] . . . diffused throughout the affairs and activities of the
society, not exercised on behalf of any individual or group in par-
ticular. Rather, the operation of power has become internal to the
organization of activities” (Cuff et al. 2016: 256, emphasis in original).
Just as discipline has no trainer, so power has no subject who exer-
cises it. Moreover, since so many of the activities of modern society
have become rationalized and administered through the application
of supposedly scientific and technological means, then power is suf-
fused with knowledge, giving rise to Foucault’s concept of “power/
knowledge.” Given that discipline is also in part a function of knowl-
edge, it is not surprising, perhaps, that Foucault runs the two concepts
together so as to talk of “disciplinary power” as an abiding character-
istic of modern societies. It is a “network of relations” that can move
“from top to bottom, but also to a certain extent from bottom to top
and laterally” (Foucault 1977 [1975]: 176), and “is everywhere and
always alert” (1977 [1975]: 177).

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The effect of disciplinary power is to create (judgmental or moral)

norms for activities and thus to normalize activities and regulate
their docile subjects. In fact, Foucault may be said to be engaging in
a classic pursuit of professional sociology; namely, explaining how a
given type of society gives rise to a specific type of self or subject. In
Foucault’s case, “the term ‘subject’ now has very much the sense of
one subjected, i.e. dominated and controlled” (Cuff et al. 2016: 256).
Foucault’s argument is an historical one. In conventional terms, he
may be regarded as a historian of ideas, but his treatment of the place
of ideas in society is not conventional. Although Discipline and Punish
considers three periods of primarily French history, he does not put
them in a progressive sequence where developments in one period
lead to further developments in the next. To counter the standard
view that the present is somehow more “advanced” than the past, he
endeavours to show the internal coherence of the practices charac-
teristic of the period in question. His historical sociology is relativist.
Thus, punishment in the form of public spectacles of torture, mutila-
tion and violent execution makes sense in a period when absolute
power rests in the hands of a hereditary monarchy – the seventeenth
and eighteenth centuries prior to the French Revolution of 1789 –
where crimes are seen as an offence against the “body politick” in
the person of the King. The criminal act is the offence and public
repudiation of that act in the form of the visibly tortured body of
the criminal is the punishment. Just as in the contemporary putative
caliphate of Islamic State, its purpose is also achieved by terrorizing
the society of onlookers. Imprisonment is not itself a form of pun-
ishment, but merely a place to keep the offender while awaiting trial
and while awaiting punishment. The overlapping second period –
from about 1760 to 1800 – is one in which a “great transformation”
occurs in penology from the “terror” of public torture and execution
to the more “privatized” system of confinement in prison, and from
the mortification of the body to the disciplining thereof. The birth
of the prison is the engine of discipline.
It is Foucault’s analysis of the third period, that of the disciplined
“modern society” emerging in the nineteenth century, that has been
most influential in criminology. He reproduces Jeremy Bentham’s
design for an ideal prison which Bentham called the panopticon
because, being circular with a central observation tower, it made
prisoners permanently visible to surveillance. “Foucault treats the

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panopticon as a metaphor for modern society” (Cuff et al. 2016: 257).

It is a thoroughly rationalized plan for controlling people by making
them totally observable. It does not even need a central observer since
people internalize the surveillance and watch themselves. Think of
the selfie. They do so as individuals since the prison individualizes
them, each in their own cell. The prison creates individuals: power
“produces reality; it produces domains of objects and rituals of truth.
The individual and the knowledge that may be gained of him belong
to this production” (Foucault 1977 [1975]: 194). Inmates are not sim-
ply observed; their lives are completely supervised in the ways already
mentioned. “The model represents the ideal of a totally administered
society” (Cuff et al. 2016: 257).
The point of imprisonment is not now simply to punish the
offender for his (or her) criminal act by abusing his body, but to
reform him, to have him reflect on his conduct, to want to improve
himself and thereby achieve rehabilitation. His “soul,” in Foucault’s
expression, now becomes the object of investigation, judgment and
manipulation. It becomes the subject of inquiry by a number of
emerging human sciences, notably psychology, psychiatry and crimi-
nology. He becomes cast as a type, suitable for treatment by one
or more of the new “scientifically-based” helping professions like
social work. Each of them comes with its own “knowledge” that
makes the offender a subject of, and subject to, disciplinary power.
Thus, the human sciences themselves come to participate in the per-
vasive, diffuse system – what Foucault (1977 [1975]: 198) calls the
“capillary functioning of power” – that in a multitude of small ways
comes to permeate modern societies so as to control individuals,
not least through the ways they control themselves. The discipline
of the prison has become the discipline of society in general. Moral
regulation is everywhere. And this is why, to return to the opening
question, we obey.

Modern penality is characterized by efforts to problematize the

criminal’s personality, more than the crime itself; the concern to
punish in a way that will be a “correction, a therapy, a normali-
zation” of this personality; and the division of judgment among
“various authorities that are supposed to measure, assess, diagnose,
cure, transform individuals” [Foucault 1977 (1975): 227]. But these
disciplinary techniques are not limited to prison alone, as they

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are taken up and distributed throughout society by similar kinds

of institutions and their “experts in normality, who continue and
multiply the functions of the judge” [1977 (1975): 228]. Hence,
Foucault ends by asking: “Is it surprising that prisons resemble
factories, schools, barracks, hospitals, which all resemble prisons”
[1977 (1975): 228]?
(Schwan and Shapiro 2011: 138)

For Foucauldian analyses of the incarceration of people with dis-

abilities, see Ben-Moshe et al. (2014).
The influence of Marx, Weber, Durkheim and the critical theory
of the Frankfurt School on Foucault is clear. We have already seen
his acknowledgement of Marx’s analysis of the economic exploita-
tion built into the capitalist labour process, and his argument that
class exploitation and discipline complement each other. His assertion
that disciplinary power is exercised through freedom (which we note
below) is akin to how Marx describes the wage-worker as a “man
who is compelled to sell himself of his own free will” (see Box 5).
His account of rationalization and discipline is indebted to Weber’s
analysis of the “disenchantment” of the world and its “iron cage” of
bureaucratic administration. The fragment on crime in Horkheimer
and Adorno (2002) of the Frankfurt School pre-figures Foucault on
the transition from punishment of the body to punishment of the
mind, and from control through segregation in prison to control
through the labour process itself, on the way to the totally admin-
istered society. “Durkheim’s later writings on the social nature of
knowledge and the origins of the categories of thought are . . . vital
components in Foucault’s work” (Cuff et al. 2016: 264).
And there is more than a little functionalism in Foucault’s account,
in part 4 of Discipline and Punish, of how the prison’s production of
the “delinquent” as a new subjective identity – meaning “confirmed
criminal,” not “juvenile delinquent” – serves the interests of bour-
geois, middle-class society in controlling the dangerous classes beneath
them where crime and radical politics blend (see Chapter 7). That
the prison was recognized as a failure from virtually the beginning (it
doesn’t reduce crime; it does produce recidivists; it is a university of
crime; it impoverishes families, etc.), yet is reproduced in exactly the
same form from generation to generation, means that its “supposed
failure” is, in fact, its real function (Foucault 1977 [1975]: 271): “the

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strategic purpose of prisons is to produce ‘illegalities and delinquency’

or, more precisely, to transform criminals into delinquents, life-long
criminals” (Schwan and Shapiro 2011: 154). Delinquency is “a diver-
sion of illegality for the illicit circuits of profit and power of the
dominant class” (Foucault 1977 [1975]: 280).Through such tactics as
using delinquents as agents provocateurs, thugs, infiltrators and inform-
ers, and as an excuse for introducing general social control measures,
delinquency “constitutes a means of perpetual surveillance of the
population: an apparatus that makes it possible to supervise, through
the delinquents themselves, the whole social field” (1977 [1975]: 281).
It is also clear that Foucault seeks to separate his own account
of normative behaviour from those of his predecessors. Disciplinary
power is neither the coercive power of a capitalist ruling class plus
ideology and false consciousness (Marx; see Schwan and Shapiro
2011: 7), nor the result of value-consensus (Durkheim, Parsons), nor
the unintended consequence of religious asceticism (Weber).
To conclude this review of Discipline and Punish, consider for
a moment the humble and ubiquitous cell phone. Consider it in
Foucauldian terms as a technology of disciplinary power. Through
the conventions of its use it disciplines the user.That is, in being car-
ried everywhere and at all times by its user, it makes the user available
for constant surveillance.The surveillance is enabled by the very net-
work that connects the user to all those others to whom s/he wants
to be connected. To be constantly in touch with friends and family
is to be constantly available to their observation and judgment and
thereby to the norms that regulate their and the user’s actions, includ-
ing being in constant touch. At the same time, the user is constantly
available to surveillance by business corporations wanting to compile
a profile of them for the purpose of marketing products to them, and
to government agencies spying on them. The user is disciplined, not
coercively, but through their own subscription, not to AT&T, Bell
or BT, but to the very idea of personal freedom that the cell phone
offers as a “technology of the self, to be adopted by willing individuals
who take an active part in their own ‘subjectification’” (Garland 1997:
175). “Power is exercised only over free subjects, and only insofar
as they are free” (Foucault 1983: 221, as quoted in Garland 1997:
175). This vignette serves as an introduction to Foucault’s work on
governmentality which we take up next via David Garland’s lengthy
consideration of it.

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Garland: governmentality and the problem of crime

Rather than detail one particular study of governmentality and crime,
we will rely here on David Garland’s (1997) extensive review of the
field in which he brings out its themes, its positive contributions and
its limitations. He begins by noting that in the last years of his life,

Foucault’s work developed around a new theme:“the government

of others and the government of one’s self.” It focused particu-
larly on the relations between two poles of governance: the forms
of rule by which various authorities govern populations, and
the technologies of the self through which individuals work on
themselves to shape their own subjectivity.
(Garland 1997: 174)

Known as studies in governmentality, they have had a wide impact

in the human sciences (see now Brady and Lippert 2016), including
being taken up in theoretical criminology. The subsequent literature
written by Foucault’s followers

aims to anatomize contemporary practices, revealing the ways in

which their modes of exercising power depend on specific ways of
thinking (rationalities) and specific ways of acting (technologies),
as well as upon specific ways of “subjectifying” individuals and
governing populations.
(Garland 1997: 174)

Foucault’s ideas on governmentality

Responding to criticism of earlier work, Foucault revised his posi-

tion on the role of the actor to give greater emphasis to the acting
subject as the agent of his/her own governance (though to be fair, it
was always there in Discipline and Punish). As we saw above in rela-
tion to the cell phone, governmental power is now conceptualized
as “hold[ing] out technologies of the self, to be adopted by willing
individuals who take an active part in their own ‘subjectification’”
(Garland 1997: 175), where “[p]ower is exercised only over free sub-
jects, and only insofar as they are free” (Foucault 1983: 221, as quoted
in Garland 1997: 175). Moreover, government is not to be identified
simply with the state. Governing is understood as a collection of

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practices undertaken by “governing authorities” and these include

“families, churches, experts, professions, and all the various powers
that engage in the ‘conduct of conduct’” (Garland 1997: 175).
If in his earlier work, Foucault used the concept of “archaeology”
to describe his method of analysis, in the later work, he calls his
method “genealogy.” Both concepts suggest excavating the past to
reveal a “history of the present.” Thus, to understand how governing
is done in the post-war European welfare state, before the onset of
neoliberalism in the late 1970s (see Harvey 2005), he traces its roots
to three rationalities he calls “reason of state” (raison d’état), “police”
and “liberalism” that arose separately in Europe in the period from
the sixteenth to the eighteenth centuries. The first two rationalities
equate to getting to know the characteristics of the nation itself, its
resources, strengths, population and so on, in order both to com-
pete effectively with other states and to regulate the activities of
its own people. The third rationality is to leave a space of freedom
for individual economic enterprise. Accordingly, from the sixteenth
century on, Foucault argues, states have become progressively “gov-
ernmentalized.” Whereas the pre-modern state is concerned chiefly
with securing sovereignty over its territory, the modern state takes
upon itself the tasks of knowing itself in order to grow in security
and prosperity.

Post-Foucault studies

Donzelot’s (1979) history of the “policing of families” draws our

attention to the proliferation of agencies and knowledges that seek
to know and regulate the modern family. Governmental power is
“dispersed throughout the social field in hospitals, schools, social
work offices, juvenile courts and clinics, each of which concentrates
professional powers and acts as a centre of governance” (Garland
1997: 179), but which depend for their efficacy on families’ desires
for improvement and their fit with state priorities. Think of family
courts, the extent to which they intervene in the lives of families and,
indeed, the extent to which members of families seek such inter-
vention. Think of “family planning” (see Panu 2009). Then think of
schooling – what King and McHoul (1986: 35), following Foucault,
call “the most widespread technique of power in Western history.”
See Curtis (2012).

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It is hard to imagine the modern state without reference to

statistics. Recall Chapter 2.They enable the idea of the nation’s “pop-
ulation” to emerge as a thing in itself, which in turn stimulates the
development of statistics.“Budgetary calculations, economic forecasts,
demographic projections, actuarial tables, scientific surveys, market
research and epidemiological studies all function as technologies of
government in the modern state” (Garland 1997: 180). Insurance and
social security depend on the formation of large statistical databases.
Hacking’s (1986) essay “Making up people” shows how “statistics
contribute to the shaping and self-governing of people’s selves, as they
adjust their self-conception and behavior to fit with ‘the normal’ or
with other social types that are statistically produced” (Garland 1997:
180). Furthermore, “to quantify is to activate power” (Hovland 2011:
36).The studies collected in Saetnan et al. (2011b) that we alluded to
in Chapter 2 are particularly pertinent here.
Statistics are the basis of insurance and risk management, technolo-
gies of governing that permeate all institutions, it seems, of modern
societies. They rely on “actuarial knowledge of populations and
statistically-produced risk groupings, not upon a clinical knowledge
of individuals” (Garland 1997: 182). Risk management is “concerned
with the minimization of harms and costs, rather than with the attri-
bution of blame or the dispensation of individual justice” (1997: 182).
“Techniques such as these make it possible to govern health and
criminality at the level of the population, just as Keynesian demand-
management techniques made it possible to govern economic life at
the level of the whole economy” (1997: 182).
If Foucault, writing in the 1970s and early 1980s, had the post-war
welfare state in mind as he formulated his history of the present, it is
also true that “in his lectures of 1978–1979, Foucault discusses how
liberalism was transformed into neoliberalism” (Hammer 2011: 87).
His followers, in coming to apply his ideas to the world of the later
1980s and 1990s, found a resounding resonance in the technologies
of governance characterizing neoliberalism, with its idea of “one’s life
as the enterprise of oneself ” (Gordon 1991: 44, as quoted in Hammer
2011: 87) and where the market is a “regime of truth” (Hammer
2011: 87; see now Brady and Lippert 2016).

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Governmentality and the problem of crime

Garland proceeds to outline some of the ways in which the concept

of governmentality illuminates contemporary issues of crime control,
in addition to the managerialism, risk management and “actuarial
justice” that have already been observed as expanding features, par-
ticularly of US criminal justice. He notices the extent to which a new
rationality for the governance of crime control has emerged under
neoliberalism; namely, “a government style that is organized around
economic forms of reasoning, in contrast to the social and legal forms
that have predominated for most of the 20th century” (Garland 1997:
185, emphasis in original). This is not just a matter of calculating
value-for-money, but of using

[i] an analytic language of risks and rewards, rationality, choice, prob-

ability, targeting and the demand and supply of opportunities . . .;
(ii) . . . objectives such as compensation, cost control, harm-reduction,
economy, efficiency and effectiveness; and (iii) . . . technologies such
as audit, fiscal control, market competition and devolved manage-
ment to control penal decision-making.
(Garland 1997: 185, emphasis in original)

The criminal is re-conceived as a rational actor, the victim as a “sup-

plier of criminal opportunities.”The private sector’s way of calculating
“moral hazard” as a matter of cost is taken up by crime control
agencies. The new criminological theories referred to in Chapter 2
– rational choice theory, routine activities theory, various “opportu-
nity” theories – that view crime as a routine activity that should be
controlled by attention to social and economic routines rather than
to deviant individuals, appear on the scene.
For Foucauldian governmental analysis, the task is not so much to
critique such theories as to

address the substance of these discourses and the practical pro-

grammes that they support . . . It aims to describe how agents,
knowledges, powers and techniques are assembled into specific
apparatuses for these new ways of governing crime, thus making
these ways of thinking into practical ways of acting.
(Garland 1997: 186)

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Economistic rationalities of crime control are matched by a corre-

sponding conception of the “criminogenic situation”: “unsupervised
car-parks, town squares late at night, deserted neighbourhoods,
poorly-lit streets, shopping malls, football games, bus stops, subway
stations, etc.” (Garland 1997: 186).

Their status as more or less “criminogenic” – as hot spots of crime

or low-rate, secure areas – are established by local police statis-
tics, victim surveys and crime pattern analysis. Their fundamental
dynamics can be represented by a few simple parameters – the
presence of valuable targets and criminally-inclined individuals,
and the absence of effective guardians or situational controls – that
emulate the commodity/buyer/price formulae of neo-classical
economics.
(Garland 1997: 187)

In keeping with this conception of the criminogenic situation, there

arises a new solution aptly called situational crime prevention. Again,
recall Chapter 2 for our overall assessment of these theories.
At this point in his review, Garland introduces Foucault’s “sugges-
tion that the forms of modern power might be viewed as a triangle
of ‘sovereignty-discipline-government.’ Thus we find, co-existing on
the terrain of crime control, three practicable objects, and three forms
of exercising power in respect to them” (1997: 188):

 (i) the legal subject, governed by sovereign command and obliged

to obey or be punished;
(ii) the criminal delinquent, governed by discipline and required to
conform or be corrected; and now
(iii) the criminogenic situation, governed by the manipulation of
interests and the promotion of mechanisms of self-regulation.
(Garland 1997: 188)

Garland goes on to point out how these three forms of power with
their corresponding types of subject uneasily co-exist. Each of them is
associated with particular laws, bodies of knowledge, institutionalized
practices and professions (the judiciary, social work establishment,
crime prevention agencies).They don’t stand to one another as phases
in an historical progression, nor do they have a coherent relationship

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with one another. He asserts that “the value of Foucault’s analy-

sis . . . is that it allows us to analyze the crime control field as a field of
power relations and subjectifications” (1997: 188, emphasis in original) in
the light of new knowledges and technologies of governance.We will
take up some points from Garland’s subsequent sympathetic critique
of the governmentality approach in the grammar section and con-
clusion of this chapter. A valuable study that combines a Marxist and
Foucauldian approach to criminalization is Snider’s (2004) account
of “constituting the nonculpable subject” in a case of “environmental
crime.”

Sangster: the moral regulation of girls’/women’s sexuality

Studies of moral regulation have become a sub-field in their own
right within Foucauldian studies generally, particularly in Canada
(Valverde 1994), and particularly among those who combine history
and sociology. Again, we won’t attempt to survey the field, but will
instead direct inquirers to relevant collections by Glasbeek (2006) and
Brock et al. (2014), while selecting for closer attention this study by
Sangster of the application of the Female Refuges Act as an exem-
plar of the genre. Like Sangster, many of the practitioners in this
field combine a political-economic approach with their Foucauldian
studies.

The Female Refuges Act

The social historian Joan Sangster here reports a study of the “pro-
cess of sexual regulation” under the Female Refuges Act (FRA) of
Ontario between 1920 and 1945. The Act, which lasted from 1897
to 1958, and was specifically for girls/women between the ages of
16 and 35,“provided for low-security correctional institutions, where
women were offered shelter, work, and reform as an antidote to
‘unmanageability and incorrigibility’” (Sangster 1996: 240; see also
Sangster 2001). After 1919,

a new clause [gave] magistrates and judges wide-ranging powers

to incarcerate young women for immoral behavior. “Any per-
son” could bring before a magistrate “any female under the age of
35 . . . who is a habitual drunkard or by reasons of other vices is

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leading an idle and dissolute life.” All that was needed was a sworn
statement about the woman’s incorrigibility: no formal charge was
needed, and hearings were in private.
(Sangster 1996: 240)

The maximum sentence was two years, minus a day. In other words:

From 1920 to the late 1950s these provisions in the FRA allowed
parents, police, welfare authorities, and the Children’s Aid Society
(CAS) to use incarceration as a means to regulate the sexual and
moral behavior of women perceived to be “out of sexual control.”
For rebellious teenagers already serving time in industrial schools,
the act could increase their punishment by sending them to the
Mercer Reformatory for Women as soon as they were fifteen or
sixteen years old, for up to two more years.
(Sangster 1996: 240)

Theoretical approach and research questions

Using institutional records and FRA case files, Sangster aims “to
uncover the dominant definitions of idle and dissolute used by the
court” (1996: 241); how the definitions were applied to distinguish
the sexuality of bad girls from that of good girls; how those incarcer-
ated were turned into criminals, pathologized and treated; what the
process reveals about its patriarchal, class and ethnic dimensions; and
whether and to what extent the girls/women rejected the construc-
tion of them as immoral. In theoretical terms, she casts her inquiry in
the context of the literature dealing with the debates over social con-
trol, social censure and moral regulation involving various Marxist,
feminist and poststructural positions. She favours a Foucauldian,
poststructuralist approach using the concept of moral regulation, not
least because it has brought studies of the regulation of gender and
sexuality to the fore (see, for example, Strange 1995).

In understanding sexual regulation in particular, feminist-

Foucaultian insights have been invaluable, illuminating the way in
which medical, social science, and legal discourses criminalize and
pathologize certain women. Such a perspective accentuates the
ways in which women’s bodies, though culturally constructed, also

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become “saturated with sex” and “the objects of discipline” in the

view of experts. Both of these insights are evident in the case of
women incarcerated under the FRA.
(Sangster 1996: 243–244)

Furthermore, following Foucault, she notes how moral constructions

embedded in criminal law come to circulate in the wider society,
thereby “imprison[ing] all women’s psyches” in the fetters of a nor-
mative heterosexual sexuality “ordering all women’s self-discipline
and self-repression” (1996: 244). Nevertheless, she doesn’t wish to
abandon political economy to an exclusive focus on discourse, and so
opts to include both:“In the case of the FRA, these questions require
an exploration of the specific historical, materialist context and the
related discursive practices that together shaped the gendered power
relations of sexual regulation through the courts” (1996: 246).

The context of moral regulation

Sangster characterizes the period between the two world wars as one
of concern on the part of middle-class reformers about working-class
women’s sexuality and reproduction, against a general background
of fear about women’s sexual assertiveness that was seen to threaten
more general social disorder. At the same time, working-class women’s
lives came under greater scrutiny through the disciplinary attention
of social workers, psychologists and doctors who were increasingly
involved with the courts. While legal reformers advocated family
courts, it was the case that:

Young women especially had longer indeterminate sentences

at the Mercer Reformatory, sometimes handed out by the very
female magistrates whom suffragists had recently pressured the
state to appoint.These magistrates believed that the good example,
discipline, and retraining provided in reformatories run by mater-
nal feminists like themselves would offer young women positive
benefits.
(Sangster 1996: 247)

The interwar years that Sangster examines were peak years for FRA
convictions, most of which fell on women under 21 years of age and

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teenagers, almost all of whom were of working-class or otherwise

impoverished backgrounds. For the majority of the convicted, “dis-
solute” meant errant sexuality. Almost half of them had an illegitimate
child or were pregnant with such at the time. At least a third of them
were treated for venereal disease. The average sentence was one to
two years. Parents were complainants in one-third to one-half of
the cases. “A significant minority . . . came directly from some kind
of state care, many . . . from single-parent or reconstituted families”
(1996: 248–249).

The data

As mentioned above, Sangster’s data are the court’s case files and
other institutional records. She resists an empiricist treatment of her
data by pointing out that the number of girls/women convicted
under the FRA was small in comparison to the number of women
imprisoned in general, and the records that supplied her data were not
always reliable sources of accurate information.What she argues they
do reveal, however, is the discourse in terms of which these women’s
sexual behaviour was assessed. That is, the files “highlight the polar-
ized constructions of good and bad femininity and sexuality created
and justified by those with medical and legal authority, and the way
in which women were measured against these ideals” (1996: 249).

The findings: censuring sexual nonconformity

The bulk of Sangster’s article is taken up with documenting, as his-

torians do, the specifics of the cases in the files in terms of the three
principal reasons why women were convicted. These are sexual
promiscuity (nonconformity), illegitimate children and venereal dis-
ease, often intertwined. Staying out all night, running away, having
multiple sexual partners, sleeping with married men, sexual bravado,
consorting with Chinese men (if you are white, a sign of insanity) or
otherwise non-white men were sufficient to warrant complaint and
condemnation.Velma Demerson’s love affair and child with a Chinese
man were good enough to get her imprisoned, the story of which she
tells in unsparing detail in Incorrigible (Demerson 2004). “What most
concerned the court, regardless of ethnicity, was a woman’s willing-
ness to support herself, whether she was considered feebleminded,

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what her sexual practices were, and the role she played in the family”
(Sangster 1996: 258–259).

The findings: explaining sexual nonconformity

The data reveal more about the perceptions of the police, CAS offi-
cials and magistrates than about the women themselves. The state
officials

clearly saw these women as aberrant and abnormal and as potential

if not real criminals. They believed women’s sexual behavior was
pathological and harmful both to the women themselves (who they
thought had little self-respect) and to the larger community (by
encouraging bad moral standards). A woman’s sexual identity and
desire were thus not private matters: they were the focus of intense
scrutiny and management by “these engineers of the human soul,”
whose expert status and legal authority invested them with tremen-
dous power to censure what was criminal, immoral, good, or bad.
(Sangster 1996: 264)

Sangster continues:

The ideology of femininity used to understand these women was

clustered around the related concepts of “domesticity, sexuality,
pathology.” It was not simply women’s pathological promiscuity
but its very real threat to the nuclear family and traditional mar-
riage that fueled the convictions of many women. At the same
time, the fear of unregulated reproduction of very poor women,
connected to the prevailing eugenic agenda of white, middle-class
professionals, also lay at the heart of FRA prosecutions.
(Sangster 1996: 264–265)

The concept of “sex delinquency” in social work reports “had become

fused with images of working-class, poor (and often non-Anglo)
women” (Sangster 1996: 265). Domestic violence, men’s abusive
behaviour, stories of rape and incest were generally downplayed in
significance.
Women’s responses to the accusations brought against them in
court were generally to remain silent or to agree with the court’s

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opinion that they were immoral,“for some FRA women were simply
broken and unresponsive human beings: they were completely des-
titute, alcoholic, or disabled” (Sangster 1996: 271). A few talked back,
but only a few. According to Sangster, their rejection of the court’s
displeasure was less a proto-feminist one than a vague disgruntlement
with having to conform with prevailing norms. In prison they were
enjoined to emphasize “hard work, good manners and clean language,
and personal self-control and discipline” for “[b]ehind the language
of reform and personal change used by the reformatory was the stark
and brutal reality of discipline designed to coerce the woman’s psyche
and soul into a new mold” (1996: 271–272).

Conclusion

Sangster forms her conclusions in the framework of Foucault’s theory

of discourse, discipline and power, but adds to it gender, class and
race analyses.Thus, listing the defining elements of the “bad woman,”
as revealed in the discourse of the court, allows her to show what
the defining characteristics of that image’s polar opposite were, that
of the “good woman”: “to acquiesce to their conventional marital
and maternal role, to accept traditional lines of familial authority, to
avoid premarital and extramarital sex, and assume a position of sexual
passivity rather than assertiveness in response to men” (1996: 273).
Formulated in the prism of the court “as a locus of discipline,” these
dicta then came to be disseminated across the society, “through legal
and social science discourses,” where they constituted a “system of
moral regulation” for all women “by normalizing some behaviors,
pathologizing others” (1996: 273), partly specified by class and eth-
nicity (race). While these definitions were transmitted by the class
of professionals associated with the court, they were also “shared by
many working class parents who also saw a precarious line between
sexual immorality and respectability” (1996: 274). It was chiefly these
parents who, after all, sought the court’s remedy for their daughters’
incorrigibility. In the end what Sangster finds most compelling is
the reinforcement of patriarchy instantiated in the law itself and its
associated discursive practices.

The representation of women’s sexuality and reproductive capa-

bilities, and their discipline with stiff jail terms, reflected a power

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structure that controlled women’s reproduction and also punished

female sexual desire, assertiveness, and experimentation in a man-
ner quite distinct from the formal and informal sexual regulation
of heterosexual men. No equivalent law was used to incarcerate
heterosexual men between the ages of fifteen and thirty-five for
promiscuity. And the familial model the law implicitly reinforced
stressed adult and masculine authority structures.
(Sangster 1996: 275)

Henry and Tator: the racialization of crime in

Toronto’s print media
According to Diaz-Bone et al. (2007), like studies in governmental-
ity (Garland 1997: 184), Foucauldian discourse analysis has become
a “field” in recent years (see, for example, Miller 2008). By “field”
they mean to take notice of the fact that “the different researchers
and research groups that have adopted the Foucaultian concept of
discourse are not linked by a fully integrated common research
paradigm [although] they share common methodological problems”
(Diaz-Bone et al. 2007: abstract). In other words, such practition-
ers comprise a loose assemblage whose studies share the name of
Foucault and the words “discourse” and “analysis,” but perhaps not
much else. Lynch (1998: 14) makes a similar point about the loose
assemblage of inquiries that call themselves “constructionist,” includ-
ing the post-als. One such area of inquiry that cross-cuts the field of
Foucauldian discourse analysis is critical discourse analysis (CDA),
itself a melange of varying emphases. In selecting Henry and Tator’s
study of racialization in Toronto’s print media, then, we are cognizant
of the fact that Foucault’s concept of discourse is one element only in
the theoretical armoury informing the study.Thus, as Frances Henry
and Carol Tator say at the beginning of the first chapter of Discourses
of Domination: Racial Bias in the Canadian English-Language Press (2002:
19), “The theoretical orientation we employ in this book on the
(mis)representation of people of colour in the media is multidisci-
plinary . . . The field of knowledge it incorporates includes cultural
studies, communication studies, discourse analysis, critical race theory
and antiracist perspectives.”They go on to mention the importance of
the work in media studies of Stuart Hall and colleagues at the Centre
for Contemporary Cultural Studies at Birmingham University in the

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UK, and of Teun van Dijk who “was one of the first scholars to apply
critical discourse analysis to the study of the press” (2002: 19).
Critical Discourse Analysis (CDA) combines structural Marxism’s
critical analysis of culture with discourse analysis. Discourse analysis is
a form of structural linguistics that deals with units longer than a sen-
tence, but in CDA it also reflects the influence of poststructuralism in
the form of Foucault’s concept of discourse. Like Semiology, CDA is
an expression of the importance that culture and language have come
to assume in the contemporary human sciences. Like Semiology,
CDA deals in the “meanings and interpretations” associated with
images or textual expressions – in short, with “representations.” Many
studies in CDA have been about race. See particularly the works of
Teun van Dijk, who has been something of an entrepreneur for CDA,
producing anthologies and editing journals that feature studies in
this genre. See, for example, the journals Discourse & Society and Text.
Prior to publishing Discourses of Domination with Carol Tator,
Frances Henry (1999) produced a report on the same study that
was subsequently written up in the book. Focusing on the ideologi-
cal representation of race (rather than its material reproduction), she
examines in detail the form and content of two samples of news
stories, editorials and columns in The Toronto Star, the Toronto Sun
and The Globe and Mail from 1994 to 1997, one sample of articles
featuring Jamaicans and Vietnamese, and one comprising “all arti-
cles on all crimes committed by everybody” (1999: ii). She devotes
particular attention to a small number of case studies, most notably
the 1994 Just Desserts murder case that we take up in more detail
below. Her principal finding is that as a “result of the media attention
to crimes purportedly committed by people of colour, and espe-
cially Blacks, . . . crime becomes racialized” (1999: 135). Unlike white
crimes, those by blacks are used as occasions for generating negative
projections about blacks in general.They become vehicles for gener-
ating moral panics about “crime in society,” and societal crisis more
generally. Civilized (white) society is suddenly under threat from
blacks or Asians, immigrants or foreigners. Law and order need to
be reinforced. The offending parties need to be further controlled.
Criminalization and racialization become, for another first time,
inextricably intertwined.
For closer analysis, we turn to chapter 9 of Henry and Tator (2002),
entitled “The Racialization of Crime.” It presents the authors’ critical

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discourse analysis of 210 articles, devoted to the “Just Desserts case,”

from The Globe and Mail, The Toronto Star and the Toronto Sun from
1994 to 1997. The case refers to the armed robbery of patrons of the
Just Desserts café in Toronto in April 1994 by four young African-
Canadian men, in the course of which one patron was shot and killed.
The authors’ form of analysis isolates three “discourses” relating to
law and order in the media coverage. These are:
1. the discourse of gun control;
2. the discourse of the young offender;
3. the discourse of immigration/deportation.
The study then proceeds in two steps, description and analysis.

Description of the data

The presence of these discourses is documented, for each newspaper,

by the frequency of articles that “relate to” them, and various related
features of the coverage are identified. These include:
• comparison of the event with similar violence in the United
States;
• the association of crime with racial or ethnic designators, particu-
larly black men of Jamaican origin;
• emphasis on the fact that the offenders are young;
• racial specification of references to gangs (Chinese, black or white);
• invocation of the idea of a “culture of violence” among Jamaican-
Canadian youth;
• a focus on the issue of gun control, including gun smuggling;
• a focus, particularly after 28 April, on immigration/deportation
issues;
• invocation of the theme of “lost innocence” in the battle between
“good and evil” involving “wanton corruption”;
• invocation of the theme of inadequate socialization (bad families
plus culture of violence equals crime);
• the bringing in of cultural style (patois, music [gangsta rap], dress,
drugs).

Analysis

The analysis is presented as four steps in the racialization of crime in

the media, the first two of which we will review here.

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(1) Othering crime

This refers to the linking of crime to foreigners, in this case,Americans.

(Compare American “foreign agitators” blamed for the anti-Asiatic
riot in Vancouver in 1907, according to Comack’s [1985] analysis
of the origins of Canada’s drug laws reviewed in Chapter 7.) The
authors paraphrase the articles they examine as saying, in effect, that
“an invasion of ‘American-style,’ ‘drug-crazed, gun-toting barbarians’
was imminent” (Henry and Tator 2002: 92).They argue that this early
assessment of the crime by editorialists and columnists prepared the
ground for the subsequent racialization of the crime. They focus on
one article in particular, a column by Michael Valpy of The Globe
and Mail, and they do some cursory linguistic analysis of the form of
some of his sentences. They detect his use of passivizing and nominal-
izing syntactic practices, by which he generalizes his account from
the particular event to crime in general.

(2) Racializing crime

Here, Henry and Tator note the use of further linguistic strategies,
including intertextuality and hedging. The latter, for example, involves
the use of the expression “for some” as a way to hedge a claim that
the reporters themselves appear to want to make. The authors go on
to attend to the placement of racial designators in some of the cov-
erage, to writers’ use of paraphrase, to the use of racial identifiers in
the context of reported positions being taken by significant players,
to the use of contrasts, and to which items occupy the topical place in
articles. The third and fourth steps in the analysis consist of further
CDA of Guns and the other and of Criminalizing immigration.
Finally, being “critical” by self-description, this form of inquiry is
intendedly directed at not only the description and analysis of the
forms of social action that it is studying, but at their evaluation in
moral and political terms. As a result, like this one, such analyses quite
often have the character of exposés.

The grammar of power in poststructuralism and

postmodernism
By this point in the book, we have little new to say regarding the
grammatical respecification of theoretical inquiry that we haven’t said

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already in previous chapters. Much of what we have said regarding

the concepts of class, gender and race applies also to discourse, disci-
pline and, especially, power. They are concepts of ordinary language
that are abstracted from their ordinary uses to form the basis of theo-
retical claims, while the very understandings that accompany them in
their everyday uses are imported unnoticed and unaccounted for into
the analysis the theories provide. “As almost invariably in sociologi-
cal discourse, one needs to go by way of members’ understandings to
endow the standard abstractions with empirical reference . . . which
is, in sociology’s analytic practice, an overwhelmingly post hoc matter”
(Sharrock and Button 2007: 35).Yet for Foucault, for poststructuralism
and postmodernism generally, not to mention much of contempo-
rary professional sociology influenced by these perspectives or by
Marxism, including especially all forms of emancipatory theory, it is
simply given that power is everywhere, just as “everything is political.”
Accordingly, we shall take some further space to discuss it.

Within sociology, “power” is not, however, just another member

of the discipline’s technical armoury; rather it seems to be widely
regarded as occupying a special position within the array of con-
cepts that comprise the various sociological schemes. “Power”
is conceived as the fundamental originator of social relations –
all social relations ostensibly arise from relations of power, the
social order being the product of the directives power exercises
on conduct.
(Sharrock and Button 2007: 35)

In a footnote to this statement, Sharrock and Button declare:

The most prominent examples of theorists putting the ubiquity

of power at the forefront of their thought are Michel Foucault
(see, for example, Foucault 1977) and Anthony Giddens, who
insists that power is a dimension of all actions (cf. Giddens 1984,
pp. 14–16).
(Sharrock and Button 2007: 35, footnote 2)

In contrast to this view, ethnomethodology brings us back to the

actual world of everyday life where it is transparently the case that
not everything is political and power is not everywhere. In order to

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argue the contrary, professional sociology of the sort in question has

to mount the counter-intuitive theory that, of course, members of
society can’t see what’s going on, though the theory-possessed pro-
fessional sociologist certainly can. This seems to be Dorothy Smith’s
position, for example. According to Wise and Stanley (2006), Smith
“perceives women as outside of the ‘extralocal,’ located in a local life-
world organized by social relations ‘not observable within it’ ([Smith]
1987: 89)” (Wise and Stanley 2006: 444, emphasis added) and thus
requiring the services of the social scientist: “the pivotal assumption
here is that the observation that power is pervasive but unevenly
distributed requires some professional sociological scheme to pro-
vide its availability” (Sharrock and Button 2007: 33), whereas “from
ethnomethodology’s point of view, power is, of course, situated in
social settings and relationships” (2007: 35) and is readily detectable,
observable and useable by societal members as they go about their
daily affairs in those settings and in terms of those relationships. It is
just this mundane competence that the professional sociologist relies
upon to locate actual instances of power in operation, but which he
or she neglects to examine in the pursuit of theoretical explanation.
Garland notices, at least, that for all that Foucault talks of power
(and discipline) as exercised through “technologies of practice,”
meaning forms of action, neither he nor his followers ever actually
describe such practices in practice. Instead, analysis remains at the level
of “what are, in effect, historically-grounded ideal types” (Garland
1997: 199). For Garland, invoking Weber, this represents a failure to
appreciate that just because a conceptual or technological apparatus is
pervasively available does not mean that action in any actual situation
will be carried out in terms of its dictates. “If we want to understand
what is happening in the penal field, we need to study the pragmat-
ics of programme-implementation and the processes through which
rationalities come to be realized (or not) as actual practices” (1997:
200). For us – though not, we suspect, for Garland – it is just the sort
of studies by ethnomethodologists like Meehan and others that we
have reviewed in the grammar sections of earlier chapters of this book
which provide the missing analysis of actual practice. To be clear,
however, these studies do not so much examine how pre-existing
“rationalities” are “realized (or not) as actual practices,” but are con-
cerned to discover, as we said in Chapter 1, how “persons’ actual
usages are rational usages in some ‘language game.’What is their game?”

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(Garfinkel 1967: 70, emphasis in original). Sharrock and Button call

their chapter “The technical operations of the levers of power” to
show in detail just what the exercise of power amounts to in the
circumstances in which it gets exercised, circumstances that are par-
ticular to the situation or “language game” in question. Accordingly,
they examine a particular setting and occasion in which power is
transparently being exercised to see just how that gets done. Since
their data do not involve crime, criminality or criminalization – these
are not everywhere either! – we won’t reproduce a sample of them
here, but instead cite their conclusion:

Classic definitions of power as involving the means to coerce

people to do what they would not otherwise do might sound
reasonable enough. Whether or not they are, however, is beside
the point because the definition cannot give an indication as to
how in any instance one person can get others to do what is
wanted of them even over their opposition. This question is a
starting point for an ethnomethodological encounter with power,
not an explanation of action.What power relationships amount to
will be displayed in the particular circumstances of “this interac-
tion” between “these people” for “whatever purposes,” and done
“somehow.”
(Sharrock and Button 2007: 50)

Like Foucault, Derrida is hooked on power, though he sees it as

coercive and as exercised by intellectuals in bringing “ideological clo-
sure” to the otherwise illusory prospect of definitively determining
the meaning of texts. But this argument is a curious one insofar as it
runs up against the obvious feature of everyday life that conclusions
are reached, endings are made, meaning is determined, sense is made,
plans are realized, goals are reached, disputes are resolved, bridges are
built, bills are passed, verdicts of guilt are rendered, promises are kept,
souls are redeemed, and so on, and so on; and, furthermore, no exer-
cise of power need be involved whatsoever. The criterion that such
determinations have to satisfy is adequacy for all practically relevant
purposes specified by the language game of the activity in question in
relation to the local circumstances of its operation. Garfinkel’s (1967)
studies of the routine grounds of everyday activities demonstrate this
point in abundant detail (see also Sacks 1972a: 57). Interactants who

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are pressed to clarify the meaning of each utterance they make rapidly
run out of patience with their interlocutor. Why? Because:

The anticipation that persons will understand, the occasionality of

expressions, the specific vagueness of references, the retrospective-
prospective sense of a present occurrence, waiting for something
later in order to see what was meant before, are sanctioned prop-
erties of common discourse. They furnish a background of seen
but unnoticed features of common discourse whereby actual
utterances are recognized as events of common, reasonable, under-
standable, plain talk. Persons require these properties of discourse
as conditions under which they are themselves entitled and enti-
tle others to claim that they know what they are talking about
and that what they are saying is understandable and ought to be
understood. In short, their seen but unnoticed presence is used to
entitle persons to conduct their common conversational affairs
without interference.
(Garfinkel 1967: 41–42, emphasis in original)

Derrida comes to a finding of the indeterminacy of meaning in

language because he imagines it in the form of written sentences
in a theoretical space abstracted from any actual occasion of its use, a
space where the rule of Cartesian doubt holds sway. In this world, any
linguistic representation of some aspect of reality can only be partial,
since the capacity of language to represent reality is compromised by
the indefinite meaning of words when stripped of any context other
than other words. Consequently, representation can “provide . . . only
an ‘effect’ of representation, but not the real thing itself ” (Hutchinson
et al. 2008: 22). Hutchinson et al. add in a footnote what is a particu-
larly acute observation: “The preservation of the very idea of the real
thing itself here makes clear already that postmodernists are merely
sceptics in a new guise. They have not fundamentally shifted the
debate, as Wittgenstein does; they are merely disappointed Realists”
(2008: 22, footnote 29).
But this conception of language held by postmodernism is just
exactly what does not apply to the use of language across a myriad
language games in actual life, as the quotation from Garfinkel makes
clear. In short, while providing useful correctives to some misbegot-
ten epistemological and metaphysical notions, PM and PS persist

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in missing just what makes social life social. Dorothy Smith, here
defending her version of feminist standpoint theory against PS and
PM, has put this argument in somewhat different, if characteristic,
terms:

The project of a sociology from women’s standpoint as it is taken

up here, joins with poststructuralism/postmodernism in reject-
ing sociologies requiring an Archimedean point, objectifying as
authoritative a unitary consciousness grounded in and reproducing
existing relations of power. It also rejects the totalizing of a theory
that subdues all forms of consciousness to its own dominating sys-
tem of interpretation. However, poststructuralism/postmodernism
is challenged on two fronts: I argue here that the poststructuralism/
postmodernism critique of theories of language, meaning, refer-
ence and representation has “slipped into the form” of the theories
it criticizes by importing the very universalized subject of knowl-
edge it has repudiated.The unitary subject of modernity is rejected
only to be multiplied as subjects constituted in diverse and frag-
mented discourses. Secondly, postmodernism/poststructuralism
transfers the function of the subject to language or discourse rein-
forcing the traditional separation of the bases of consciousness
from the local historical activities of people’s everyday lives. Once
this step has been taken, the inquirer cannot find her way back to
a world in which people are active and in which we are constantly
bringing what we do in relation to others. She is confined to a
phenomenal world in which nothing ever happens.
(Smith 1999: 97–98)

Smith (1999: 239, note 6) gives as an endnote to the first argument

the following quote from Derrida:

There is no sense in doing without the concepts of metaphysics

in order to attack metaphysics. We have no language – no syntax
and no lexicon – which is alien to this history; we cannot utter a
single destructive proposition which has not already slipped into
the form, the logic, and the implicit postulation of precisely what
it seeks to contest.
(Derrida 1970: 250, emphasis in original)

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Conclusion

Professional sociologists are perhaps inclined to forget that the iconic

postmodernists and poststructuralists, notably Derrida and Foucault,
are philosophers and not sociologists or practitioners of the other
human sciences. This means that they tend to address themselves
to philosophical and not sociological questions. These questions are
the traditional ones of metaphysics and epistemology: what kinds of
things (objects, including subjects) there are in the world, and how
we can have knowledge of them. Thus, for all that Foucault carries
out his inquiries in historical terms and couches them in a concep-
tual language that sounds amenable to sociological use, his interest
throughout is in the kinds of objects that arise historically and the
kinds of knowledge that can be had of them. Such objects include (sub-
jects like) the madman, the homosexual, the “delinquent” and other
categories of person. The knowledges are both those of the received
human sciences and those that are or were unofficial, never approved,
submerged or forgotten. It is therefore both mistaken and unfair
to complain that, in the end, his studies don’t amount to worked-
out sociologies of the phenomena he addresses, even though he is
clearly influenced by Marx, Durkheim and Weber. The same cannot
be said, however, about professional sociology that remains at that
philosophical level of abstraction; that is, as Garland rightly says, not
getting beyond

a history of systems of thought, or a philosophical account of how

subjects have been governed by their relations to truth [instead of
providing] a grounded social analysis that tries to make sense of a
field as it actually operates and as it is experienced by those who
inhabit it.
(Garland 1997: 201)

He continues, “[i]t is necessary to look at the whole configuration of

practices, and not just the rationalities, or programmes, or even the
selected practices that best instantiate them” (Garland 1997: 202). In
the end, if, as a sociologist, one is to study crime and criminalization
in the context of power and politics, then one has to come to an
appreciation of just how politics are actually conducted, of what it is
to be “political”:

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For instance, if we wish to understand why it is that the “eco-

nomic” rationality tends to be displaced at certain points by a
very different “rationality” which asserts the need to punish and to
protect the public, whatever the cost . . . we must pay heed to the
ways in which public fears and anxieties about crime are taken up
in the political realm and represented there by populist discourses
and “expressive” measures of a punitive or incapacitative kind.The
process of switching between rationalities, or moving from one
discursive register (the economic-administrative) to another (the
populist-political), is very much a political process, structured by
political processes within government departments and the offices
of state, and motivated by all sorts of exigencies, political calcula-
tions and short-term interests.The practices that make up the field
of crime-control may be structured by government rationalities,
but in its detailed configuration, with all its incoherence and con-
tradictions, the field is also a product of a rather more aleatory
history of political manoeuvres and calculations.
(Garland 1997: 202, emphasis in original)

Exercises
1. Take a field trip through your home, or workplace, or university
or college campus, or local shopping mall or neighbourhood. Try
and “see” all the ways such settings are crime-free by being “mor-
ally regulated” via “disciplinary power,” diffused throughout the
setting and administered, if at all, not by coercive agents (police,
security, laws), but by setting co-inhabitants themselves (including
you) in terms of their (your) own comportment and behaviour.
Take abundant notes. Speaking into a voice recorder as you go is
a useful way to proceed.
2. Construct a scenario in which the meaning of some bit of text
(spoken or written) is changed by changing its linguistic context;
that is, by adding some text that precedes or follows it. Try and
make it relevant to crime and criminalization.

Review questions
1. How does Derrida come to argue that determinate meaning is
inevitably political, the result of the exercise of power?

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2. According to Foucault, what does knowledge have to do with

discipline and with power?
3. How does Sangster’s observation that it was mainly their parents
who sought the remedy of the Female Refuges Act for their incor-
rigible daughters support Foucault’s theory of disciplinary power?
4. How does an economistic focus on risk management change the
way that crime, criminality and crime control are traditionally
conceived?
5. What critical objections can be raised to the view that power is
everywhere and that everything is political?

Further reading
Ben-Moshe, Liat, Chris Chapman and Allison C. Carey. Eds. 2014.
Disability Incarcerated: Imprisonment and Disability in the United States
and Canada. New York: Palgrave Macmillan. For Foucauldian anal-
yses of the incarceration of people with disabilities.
Brock, Deborah,Amanda Glasbeek and Carmela Murdocca. Eds. 2014.
Criminalization, Representation, Regulation:Thinking Differently About
Crime. Toronto, ON: University of Toronto Press. Foucault’s con-
cept of governmentality is used to analyze and critique how crime
and criminalization are understood, reproduced and challenged.
Garfinkel, Harold. 1967. Studies in Ethnomethodology. Englewood Cliffs,
NJ: Prentice-Hall. (Reprinted in 1984 by Polity Press.) Chapter
Two, titled “Studies of the routine grounds of everyday activities,”
is essential reading as an antidote to PS and PM. It is the source of
the quote from Garfinkel in the grammar section of this chapter.

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11 People?

There’s still the preface – everything that happened before I was

born.The voluptuous field that was given to me – how did I come
to be given that one, and not the one that was black and barren?
Yes, it happened like that because before I was born, the fields
were apportioned, and some of the fields were pieced together.
Not by chance, not by fate. The fields were pieced together one
by one, by thieves, by killers. Over years, over centuries, night
after night, knives glittering, throats cut, again and again, until the
beautiful Christmas morning we woke up, and our proud parents
showed us the gorgeous, shining, blood-soaked fields which now
were ours. Cultivate, they said, husband everything you pull from
the earth, guard, save, then give your children the next hillside, the
next valley. From each advantage, draw up more. Grow, cultivate,
preserve, guard. Drive forward till you have everything. The oth-
ers will always fall back, retreat, give you what you want or sell
you what you want for the price you want. They have no choice
because they’re sick and weak. They’ve become “the poor.”
(Shawn 1991: 47–48)

This chapter is organized as follows. After introducing Chambliss’s

concept of state-organized crime, we broaden the scope of inquiry
to take in the international crimes before coming to focus on gen-
ocide, but in the context of that form of social theory known as
postcolonialism. We briefly consider Merry’s (1998) analysis of the
criminalization of everyday life in colonial situations by imperial
powers before reviewing the study by King and McHoul (1986) of
the discursive formation of the Australian Aborigine as subject, and

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Churchill’s (1998) account of genocide in the Americas. Our inten-

tion in this chapter is both to exhibit the poststructuralist elements
of postcolonial analysis and to convey just what imperial subjection
of colonized peoples amounts to in practice.

Chambliss: state-organized crime

In popular discourse and in academic criminology for most of its
history, “crime” and the “crime problem” have been understood
to refer to the murders, assaults, robberies, thefts, drug and juvenile
offences that fill the local news broadcasts and newspapers on a daily
basis. The criminology textbooks would include as well a chapter on
“white-collar crime” – the invention of Edwin Sutherland in the
1930s – and perhaps one on “organized crime.” The former refers
typically to the acts of white-collar employees ripping off the com-
panies they work for, while the latter refers to illegitimate business
and its associated street crime carried out in sharp suits or bikers’
outfits. As we have had occasion to point out earlier in the book,
“crime” has meant, basically, what is better called “street crime,” and
still largely does mean that. Not until the 1970s and 1980s, with the
focus put on violence against women by the women’s movement,
did crime discourse cross the threshold from the street to the parlour,
kitchen and bedroom, giving birth there to the concept of woman
abuse or domestic crime, a much bigger deal. The third step in the
evolution of the sociological concept of crime came when it began
to be appreciated just how enormous were the crimes committed not
by the employees of companies, but by the corporations themselves,
and corporate crime came to occlude white-collar crime. Finally, and
only in recent years, the textbooks have started to include chapters
on what are arguably the biggest criminals of all – the real murderers,
torturers, rapists, robbers, drug runners, fraud artists and thieves –
namely, states themselves. An early example is chapter 10 of Davis and
Stasz (1990) on “violence and the state.” One particularly influential
source and expression of this trend is the concept of “state-organized
crime” coined by William Chambliss and used in the title of his 1988
American Society of Criminology presidential address (Chambliss
1989), where it refers to “criminal acts committed by government
officials in the course of their responsibilities as government agents”
(Chambliss 1999: 142).

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In his treatment of state-organized crime, Chambliss discusses

the US Central Intelligence Agency’s role in assassinating foreign
leaders, arms smuggling, and especially supporting and contribut-
ing to the international traffic in opium, heroin and cocaine, as in
the Golden Triangle of Southeast Asia (Burma, Laos and Thailand)
(see McCoy 1991), as in support for the contra in Nicaragua, and as
in the war in Afghanistan. His book was published in 1999, before
9/11, so the war in question was that of the mujahideen against the
Soviet occupation of Afghanistan in the 1980s. “U.S. support of the
mujahideen in Pakistan and Afghanistan once again contributed to a
substantial increase in the production of opium and heroin,” he writes
(Chambliss 1999: 144). That business continues to thrive today.
In parallel with “state-organized crime,” recent work has combined
state and corporate crime to form the concept of “state-corporate”
crime. See, for example, Kramer (2013) and Smandych and Kueneman
(2010). Insofar as these studies concern environmental crime, they
relate to the issue we take up in Chapter 12.

The international crimes and imperialism

Chambliss’s concept may be extended to refer to the violations of
international law and international human rights carried out chiefly
by the armed forces of states, what is otherwise called “international
terrorism” or “state terrorism.” The international crimes, as they are
also called (Haveman and Smeulers 2008), include the Crime against
Peace, war crimes, crimes against humanity and genocide. They
include breaches of the Geneva Conventions of 1949. The worst of
these, the supreme crime, is the Crime against Peace. It was formu-
lated at the Nuremberg tribunal that tried the Nazi leadership and
its upshot was incorporated into the United Nations Charter (1945)
at the end of World War II. It refers to the “planning, preparation,
initiation, or waging of wars of aggression, or a war in violation of
international treaties, agreements or assurances, or participation in
a common plan or conspiracy for the accomplishment of any of
the foregoing” (Wikipedia contributors 2016). It was described at
Nuremberg as “the supreme international crime, differing only from other
war crimes in that it contains within itself the accumulated evil of the whole”
(Wikipedia contributors 2016, emphasis added). It was outlawed in
1945. In 2016, it clearly has many contemporary applications from

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the US/UK-led invasions of Afghanistan and Iraq in 2001 and 2003

respectively to US drone attacks in Pakistan (2004 to date), Yemen
(2002 to date) and Somalia (2007 to date) (Serle and Fielding-Smith
2015), the 2011 NATO assault on Libya, the 2015 Saudi Arabian
attack on Yemen (ongoing as at the time of writing), the 2011
foreign interventions in Syria (ceasefire in place at the time of writ-
ing), the ongoing 2014 Russian intervention in Ukraine and so on.
Complicitly enabling such crimes, as the United States, the United
Kingdom and Canada are doing in the case of Saudi Arabia’s assault
on Yemen (Greenwald 2016; Ceasefire.ca 2016), is itself a war crime.
See Box 10.
From outside criminology proper, however, have come studies and
reports focusing on purported crimes committed against whole peo-
ples or substantial segments of them, not just in the present or recent
past, but ever since Europeans set out to “discover” or “conquer”
the world. The scope and sentiment of these inquiries are caught
in the title and sub-title of one of Chomsky’s books, published in
1993 – Year 501: The Conquest Continues. The reports come from
human rights organizations and reflect the ongoing significance of

BOX 10 “The accumulated evil of the whole”: Afghanistan 2001–2016

On 18 October 2001, the village of Bibi Mahru on the outskirts of Kabul was hit by an
American “precision” 500-pound bomb. It killed Gul Ahmad, 40, a Hazara carpet weaver,
his second wife Sima, 35, their five daughters and his son by his first wife, as well as two
children living next door. “We buried them together in the graveyard. We divided it with
separate gravestones but their bodies were all in pieces,” said Mr. Ahmad’s first wife, who
was living in another village at the time of the bombing.
Source: Michael Mandel (2004: 29): How America Gets Away With Murder.

U.S. drone strike kills 15 civilians in Afghanistan, United Nations says.

.  .  .  including students, a teacher, and members of families considered to be “pro-government.” 

. . . All the civilians . . . were men [who] had gathered . . . to welcome a local elder on his
return from completing the Hajj pilgrimage to Mecca and were sleeping when the strike
happened . . .
Source: Reuters (2016: n. p.).

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the contemporary human rights movement built on the Universal

Declaration of Human Rights of 1948 (United Nations 1948a; see
Ignatieff 2009 [2000]). The academic studies’ sources are virtually
the whole range of the human sciences that have taken up emanci-
patory theory, including Anthropology, English, Geography, History,
Political Science, Sociology and all the multi-disciplinary “studies”’
programs. While Marxism and feminism are important theoretical
and political motivations for these works, in this chapter we turn to
that form of emancipatory theory that is particularly germane to the
study of “imperialism and the relationship between colonial rulers
and those they rule over” (Cuff et al. 2016: 379); namely, postcoloni-
alism. Although class and gender typically play a part in these studies,
it is race that is at the heart of them, and race understood as referring
to a “people.”

Postcolonialism
“Just as feminism challenges definitions of gender, and queer theory
challenges conventional sexual categories, so postcolonialism seeks to
problematize the idea of ethnic difference and the relation between
dominant and subordinate cultures across the globe” (Cuff et al. 2016:
379). Postcolonialism criticizes classical social theory as “Eurocentric”
and not just ethnocentric. Classical social theory measures the colo-
nized in Western terms, and finds them wanting. It tells a story of the
Rise of the West that focuses on its success and highlights the failure
of the rest of the world to measure up. Taking for granted a view of
the world and its history from inside the European project, it sees the
rest of the world and its peoples as outside, and therefore as “other.”
A major question in the human sciences, then, has been to explain
how this state of affairs came about. How did the “West” in general
– Western Europe and its North American (Canada and the United
States in particular) and southern hemisphere (Australia and New
Zealand) transplants – achieve such strong “economic fundamentals”
and the economic prosperity and general social and human benefits
that they have afforded (see, for example, D’Aliesio 2011)? And how,
in cultural terms, has it represented to itself its difference from the
lands it has colonized and dominated?
The mainstream historical account of the Rise of the West or
the “European Miracle” explains it by reference to some intrinsic

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characteristic of Europeans, whether of biology (race) or environment

(temperate versus tropical or arid) or culture (rationality) or technol-
ogy or society. As students of sociology, we are most familiar with
Max Weber’s cultural explanation of Western ascendancy in terms of
a spirit of rational acquisition arising as an unintended consequence
of what he calls the Protestant Ethic, a certain disposition towards the
world with a religious foundation. In Talcott Parsons’s formulation,
that disposition is rooted in an activist orientation towards the world.
Weber figured that it was this activist orientation that distinguished
Western folk from those of China and India and that this, together
with certain other political-economic pre-conditions, explains the rise
to worldly pre-eminence of the West (Hughes et al. 1995: 117–118;
Giddens 1971: chapter 12).
In The Colonizer’s Model of the World (1993), the historical geogra-
pher J. M. Blaut disputes all such explanations by showing that
1. at the point of European take-off, say around 1500, the civilizations
of China, India, Arabia,West and East Africa and the Americas (see
Mann 2011) were at a level of economic and technological and
“ethical” development comparable to that of Western Europe;
2. the subsequent Rise of the West was due to (a) the geographical
accident of Western Europe’s relative proximity and subsequent
access to the resources of the “New World”; (b) the “success” of the
conquest of said “New World” (facilitated by disease); and (c) the
willingness of the conquerors to exercise what Chomsky (1987a: 47)
calls the “Fifth Freedom,” the freedom to rob, exploit and dominate.
In other words, Blaut’s critique challenges the traditional explanations
with an altogether different and less flattering picture of Europeans
and their colonial transplants. In this view, the “triumph” of the West
is, to put it bluntly, the result of “violent crime,” of murder and rob-
bery on a massive scale. Much of the critique owes its inspiration and
impetus to Marx’s analysis of imperialism as the inevitable outcome
of capitalism’s constant need to expand and find new markets. Recall
this quotation from the Communist Manifesto in Box 4: “The need for
a constantly expanding market for its products chases the bourgeoisie over the
whole surface of the globe. It must nestle everywhere, settle everywhere, establish
connections everywhere.” However, this is, of course, itself a European
view and focused entirely on class. Like Weber and Durkheim, Marx
is one of the classical social theorists, after all. The postcolonial cri-
tique, by contrast, has come chiefly from outside Europe and the West

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generally (although some of its notable practitioners hold or have

held academic positions in the West). The violence of the conquest,
it points out, has been at the expense of the humanity of the people
whose lands have been colonized. In theoretical terms,

Marx’s view of class struggle as the motor of history fails to

account for the way in which imperialism transforms the differ-
ence between Europeans and non-Europeans into a racial divide
as well as a social and economic one . . . Postcolonial theory seeks
to do more than simply document the oppressive characteristics
of imperialism; it seeks to apply the insights of poststructuralism
to an understanding of the ideological structure of colonialism.
(Cuff et al. 2016: 380)

Sherene Razack, who writes prolifically in this genre, refers, for

example, to the “racial underpinnings of the New World Order”
(Razack 2004: 7; see also 1998, 2013):

the abandonment of populations, an abandonment configured as

emergency, is accomplished as a racial project . . . today’s empire is
most distinguished by the proliferation of camps and by the culture
of exception that underpins the eviction of increasing numbers of
people from political community.
(Razack 2008: 6–7)

This anticipates Jeff Halper’s (2015) study of “global pacification”

which we touch on briefly in Chapter 12. Cuff et al. (2016) trace
postcolonialism to such anti-colonialist writers as Frantz Fanon,
author of the celebrated books The Wretched of the Earth (2005 [1961])
about Algeria under the French colonial heel, and Black Skin, White
Masks (2008 [1952]), on which Glen Coulthard modelled his Red
Skin, White Masks: Rejecting the Colonial Politics of Recognition (2014),
referring to the relationship between the indigenous peoples of
“Canada” and the Canadian state.The principal exponent of the posi-
tion, however, was Edward Said, author of Orientalism (1978) and,
subsequently, Culture and Imperialism (1994). Said argues that Western
history books and literature have constructed in their image of the
“East” (the Orient) a cultural picture that is the diametrical opposite
of the “West” (the Occident).

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While the Orient is seen as overwhelmingly barbaric and cruel,

backward and authoritarian, static and unchanging, the Occident
is enlightened and civilized, progressive and democratic, dynamic
and forward-looking. Orientalist cultures are supposedly domi-
nated by mythology and magic, in contrast to the predominance
of reason (in the form of science) in the Occident.
(Cuff et al. 2016: 380)

The poststructuralist element in Said’s theorizing is the Foucauldian

idea that the Orient/Occident or East/West opposition is the prod-
uct of a single discourse in which “the two sides of a discursive
opposition are mutually defining” (Cuff et al. 2016: 381), as in the
bad girl/good girl case from Chapter 10. Who “Westerners” are, or
imagine themselves to be, is formed in opposition to and distinction
from the negative characteristics they project onto the “Orientals,”
the “other.” One particularly terrible illustration of this analysis is
to be found in the words used by a French military officer during
France’s genocidal subjection of the indigenous Algerian Muslims in
the period 1836–1846. The words come at the end of the following
quoted passage from Culture and Imperialism.

The core of French military policy as [Marshall Theodore]

Bugeaud and his officers articulated it was the razzia, or puni-
tive raid on Algerians’ villages, their homes, harvests, women
and children. “The Arabs,” said Bugeaud, “must be prevented
from sowing, from harvesting, and from pasturing their flocks.”
Lacheraf gives a sampling of the poetic exhilaration recorded time
after time by the French officers at their work, their sense that
here at last was an opportunity for guerre à outrance beyond all
morality or need. General Changarnier, for instance, describes
a pleasant distraction vouchsafed his troops in raiding peace-
ful villages; this type of activity is taught by the scriptures, he
says, in which Joshua and other great leaders conducted “de bien
terribles razzias,” and were blessed by God. Ruin, total destruc-
tion, uncompromising brutality are condoned not only because
legitimized by God but because, in words echoed and re-echoed
from Bugeaud to Salan, “les Arabes ne comprennent que la force
brutale.”
(Said 1994: 182)

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11: PEOPLE?

In English, “the Arabs don’t understand anything but brutal force.”

A more persuasive justification for murder, rape and pillage it would
be hard to imagine. The criminals are saved from self-examination,
however, by the binary presupposed in their actions: we are civilized,
they are savages. David Ben Gurion, heralded founder of the State of
Israel, was of the same opinion that “les Arabes ne comprennent que
la force” (Benny Morris, quoted in Ossipow 2005: 92). The Balfour
Declaration of 1917 is widely represented as leading to

settler-colonialism in the British Mandate of Palestine and to the

current Apartheid state in Israel-Palestine and the statelessness
and oppression at the hands of Israelis of millions of Palestinians.
This extended colonialism is unparalleled in the whole world: no
other colonial power now existing is keeping millions stateless and
without the right to have rights.
(Cole 2016: para. 2; see Pappé 2006)

For a critical examination of contemporary discourse on this issue,

see Jayyusi (2015).
In the same way that the French and Israeli exercises of power in
Algeria and Palestine respectively gave rise to indigenous resistance,
the emphasis in such studies as Said’s on Western cultural assumptions
has called forth a critique in which attention is turned to the colo-
nized themselves and their actions and viewpoints. Called “subaltern
studies,” these works seek to write a history of colonization from
below. This move, which has elements perhaps of both inclusionist
and standpoint positions, has been criticized in its turn for failing
to recognize that the effect of Western imperialism is to obliterate
the viewpoints of the “other” such that there is no oppositional dis-
course to be discovered. Gayatri Spivak (1988) makes this argument
particularly for the case of suttee, the Indian practice in which a
widow immolates herself on her dead husband’s funeral pyre: Spivak’s
“key point is that there is no point of view there to be captured,
since the conditions within which such a view could be formulated
are systematically withheld from such women” (Cuff et al. 2016:
382). Spivak’s view of the unavailability to such Indian women of a
viewpoint on colonialism (or is it patriarchy?) is not unlike Dorothy
Smith’s (1987: 89) view of women as, according to Wise and Stanley
(2006: 444),“located in a local life-world organized by social relations
‘not observable within it’” that we cited in Chapter 10.

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Merry: the criminalization of everyday life

Although we will not fully review her study here, Sally Merry’s
anthropology-of-law account of the criminalization of labour and
work in British colonial Africa, of the 1885–1951 ban of the pot-
latch (First Nations gift-giving feast) in Canada, and of regulations
pertaining to sexuality, marriage and labour in nineteenth-century
Hawai’i is a particularly acute postcolonial analysis of “three moments
of criminalization with particular attention to the discursive construction
of the criminalized behaviour and the identities of those engaging
in it” (Merry 1998: 15, emphasis added; see also Merry 2005). The
three moments of criminalization she examines are, first, the legal
processes of making or changing the criminal laws in question; sec-
ond,“the social organization of the legal system through which newly
constituted ‘crimes’ result in arrests, prosecutions, and convictions”
(1998: 21); and, third, “how newly constituted crimes become part of
popular consciousness about the nature of legal and illegal behaviour”
(1998: 21). Her distinguishing of the components of the discursive
“rhetoric” attending such cases of criminalization is particularly well
taken and worthy of extended quotation:

The criminalization of everyday life – the redefining of custom-

ary practices as crimes – takes shape on a rhetorical terrain of
threatened violence, disorder, and danger on which expanded legal
regulation promises dominant groups security and control. The
target population is often envisaged as degraded, indolent, vicious,
and licentious as well as racially distinct and inferior. It is portrayed
as unable to govern itself at the same time as the structures of
authority that have governed it in the past (such as village social
control, plantations, or slavery) are collapsing. Objects of crimi-
nalization are often urban migrants, newly freed slaves, or sexually
active women not controlled by husbands. The target population
is typically seen as racially “other,” immoral, and out of control: a
volatile and a dangerous group that requires the intervention of the
law. Through criminalization, such fears are converted into legal
texts and lower court and police procedures and then reconverted
through court cases and convictions into a truth of criminal iden-
tity. Racial fears and social images of disorder take solid form in a
procession of convicted and incarcerated bodies.
(Merry 1998: 15)

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The points she makes will reappear in the studies by King and
McHoul and Churchill which we review more fully below.

Genocide
The crime of destroying a people is called genocide. It is not our pur-
pose to survey what is now the burgeoning field of “genocide studies”
– see, for example, Women and Genocide (DiGeorgio-Lutz and Gosbee
2016) – but to draw out the elements of the postcolonial take on the
imperial subjection of indigenous peoples. To exemplify a straight-up
Foucauldian poststructuralist analysis, we review King and McHoul’s
(1986) study of the “discursive production of the Queensland [Australia]
Aborigine as subject.” For a less theorized, more documentary-
historical account, we rely on Churchill’s (1998) A Little Matter of
Genocide: Holocaust and Denial in the Americas, 1492 to the Present. Students
of the subject are recommended to read in addition major works by
indigenous or semi-indigenous scholars that have recently become avail-
able. These include An Indigenous Peoples’ History of the United States by
Roxanne Dunbar-Ortiz (2014) and The Colonial Problem: An Indigenous
Perspective on Crime and Injustice in Canada by Lisa Monchalin (2016),
the first indigenous woman in Canada to hold a PhD in Criminology.
Eduardo Galeano’s masterpiece, Memory of Fire (1985–1988), remains
an incomparable source. Its three volumes trace the stories of the
continuing conquest year by year from before 1492 to 1986.

King and McHoul: Foucault in Australia – the discursive

production of the Queensland Aborigine as subject
King and McHoul begin by clarifying what their analysis is, and is
not, about:

This paper is not written “about Aborigines” nor, more impor-

tantly, does it attempt to speak on their behalf. Instead, it tries to
describe some ways in which “concerned” whites have done so:
that is, how they have written about Aborigines and how, on occa-
sion, they have attempted to speak on their behalf. Consequently,
the topic of this paper is not Aborigines but discourse. It is a
discourse on discourse, a description of some early and still quite
influential discourses on Aborigines.
(King and McHoul 1986: 22)

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Ultimately, they say, citing Derrida, they are “writing about writing”
or “making a contribution to the political history of language” (1986:
22, emphasis in original). Recall the discussion of the significance of
writing to the PS/PM project in the Introduction to Part IV and in
the grammar section of Chapter 10. Because for PS/PM, language
is reality and discourse is power (or the claim is at least that the two
pair-parts in each binary cannot be separated), “It is our central, if
unstated, thesis that the forms of conceptualisation (i.e., the forms of
discourse) available to early colonial administrations in and of them-
selves constituted a field of power” (1986: 22, emphasis in original).
The discourses in question are those informing the texts of policy
documents used in the colonial administration of Queensland in late
nineteenth-century Australia as they pertained to the treatment of
Aborigines, the indigenous people of Australia. Such texts “are treated
as symptoms of how it was possible for an invading race to conceive
of those they attempted to conquer in the way they did” (1986: 22,
emphasis in original). It is through the discourses evident in the
texts “that one population knew how to dominate another” (1986: 22,
emphasis in original).
The authors identify three stages in the relationship of the European
settlers and the indigenous inhabitants: the stage of extermination
(1824–1908), the overlapping stage of protection and segregation
(1873–1957) and the stage of assimilation/multiculturalism (1957 to
the present). The first stage was characterized by “genocide, rape,
inter-breeding, ‘settling’ Aboriginal land, Christian conversion, the
spread of disease and so forth” (1986: 24). Such acts “tended to be
indiscriminate and brutal, involving as they did extensive slaugh-
ter and appropriation of traditional lands. There was no direct and
concerted legal/textual campaign aimed at the normalisation of
Aborigines until the 1890s” (1986: 25). It was at this time that officials
realized that “Aborigines could not be made to disappear physically”
(1986: 25). The authors’ concern, then, in this article is with the sec-
ond stage, that of protection and segregation, the principal vehicle of
which was the reserve.

Under the protectionist ideal, the concept of “being Aboriginal”

was re-created by white techniques: principally anthropological
techniques of investigation and classification and legal-textual tech-
niques of definition, constraint and surveillance, both informed by

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a more general discourse of “humanism.” Such techniques effec-

tively put Aborigines under a gaze which, for them, had never
existed before – a gaze which sought to incorporate them into
colonialist experience of “the native” – associated as it was with
mixtures of nobility and deviance.
(King and McHoul 1986: 24)

For Aborigines “to retain their self-understanding,” they had

necessarily

to remain outside non-Aboriginal law, surveillance and power.

Such immunity was only forfeited when [they] could be seen – by
the very gaze that would control them – to have moved on to the
terrain of white discourses, most notably by committing “crimes.”
(King and McHoul 1986: 24)

Bringing the Aborigines under the auspices of British criminal law

was then a way to know them. This move then constituted their
resistance as crime and made them criminals. By contrast, recognizing
them as a sovereign people would have meant that their resistance
to colonization would be necessarily seen as a political, and not a
criminal, act. It would have required negotiation rather than arrest
and imprisonment. Such a response was contemplated but rejected.
A similar situation arose in Canada in the summer of 1990 involving
a confrontation between Mohawk “Warriors” and the Canadian state,
known in English Canada as the “Oka Crisis.” See Box 11.

BOX 11  Politics or crime?

During the “Oka Crisis” in Canada/Quebec in the summer of 1990, what Mohawks and
native leaders across Canada defined as a political act of self-defence by the armed forces
of a nation – the setting up and defending by armed Mohawk “Warriors” of barricades on
disputed land in the environs of Mohawk reserves at Kanesatake and Kahnawake, first to
prevent the expansion of an Oka municipal golf course onto claimed Mohawk land, and
second in protest against an assault on the first barricades by Quebec Provincial Police
– was counter-defined by the Prime Minister of Canada, the Premier of the Province of
Quebec, the Mayor of Oka and government officials generally as a series of criminal acts

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of mischief, illegal possession of firearms, etc., by terrorists whose relationship to their people
was that of an “extremist minority suppressing dissent” (the Prime Minister, 28 August
1990). In short, one side defined the conflict in political terms as one between sovereign
entities where the applicability of the (criminal) laws of Canada was precisely what was at
issue; the other side defined the conflict in criminal-legal terms within the jurisdiction of the
Canadian state and constitution.
What does this mean in practice? To the extent that the definition of the situation as one
of criminal actions by a terrorist group can be sustained, then the relevant controlling agency
is the police. If, as happened, police resources are judged inadequate to maintain control and
bring the “criminals” to justice, then the army may be brought in. But their actions are then
seen as essentially police work; that is, assisting or replacing the police in the tasks of law-
enforcement. When police and/or army deploy high-powered weapons, including tanks and
helicopters, and fix bayonets to their rifles, when barricades are charged, persons terrorized,
food supplies interrupted, freedom of movement denied, freedom of assembly for peace
groups denied, freedom of the press restricted and so on, these actions are ones defined as
police work by civil authorities in the (ultimately national) interest of law and order. Or they
are counter-defined as acts of aggression, including invasion of sovereign territory and the
denial of human rights under the terms of international law as found in such documents as
the United Nations Charter and the Universal Declaration of Human Rights. In the preamble
to the Universal Declaration, for example, armed struggle is recognized as a legitimate last
resort for oppressed groups seeking political recognition of their rights. Clearly, in the hands of
the powerful, the distinction between the “political” and the “criminal” is a powerful discursive
tool for shaping social reality.
Source: Adapted from Hester and Eglin (1992: 167–168): A Sociology of Crime, first edition.

What especially engage King and McHoul, in this study, are the
discursive signifying practices that animate one policy text in particu-
lar. This is Archibald Meston’s (1895) Queensland Aboriginals: Proposed
System for Their Improvement and Protection, a report submitted to the
Colonial Secretary. Meston was regarded at the time as “something of
an expert on matters Aboriginal” (King and McHoul 1986: 26) and
thought so himself. His report

is one of the first thorough texts of an administrative or legal

kind which attempts to “know” Aborigines by consolidating the
quite diverse terms and categories then available to “concerned”
European bureaucracies under an umbrella of liberal humanism.

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The direct upshot of Meston’s proposal was the passing by the

Queensland Government of the Aboriginals’ Protection and
Restriction of the Sale of Opium Act, 1897–1901.
(King and McHoul 1986: 25)

The method of analysis

“The focus of the analysis is the text of its report and its discursive
conditions of possibility . . . [It] aims to give primacy to its theoretical
object – the discourse” (King and McHoul 1986: 26). The concept
“conditions of possibility” is informed by Wittgenstein’s treatment
of concepts and criteria as linguistic tools embedded in forms of life,
and by Foucault’s methodological remarks:“the text’s signifying prac-
tices . . . are taken to be political formations in their own right” (1986:
26). Instead of seeking teleological – that is, causal/functional – rela-
tions between problem (Aborigines), policy (Meston’s proposal and
the Act) and practice (reservization), the analysis posits conjunctures
of materialist and textual practices: “it examines ways in which dis-
courses are transformed, incorporated and/or neutralized into each
other such that any policy text which they, thereby, generate can be
seen to systematically ‘form objects of which [it] speaks’” (1986: 26,
citing Foucault 1972 [1969]: 49).

Meston’s text

The authors ask, then, how Meston’s text handles the differences
among the interested accounts of officials, police, judges, anthropolo-
gists, missionaries, etc. that themselves instantiate discourses which
Meston’s text must navigate so as to produce a “composite discourse.”
How does the text manage the contradiction between its political
purpose and its a-political narrative? Where are the slippages between
“what it says” and “what it’s doing,” between its attitude of liberal
humanism and its political project of surveillance and control?
According to the authors’ “discourse on discourse,” the text var-
ies between regarding Aborigines as persons and as natural objects.
The authors present this as a “contradiction.” The text represents the
Aborigines as “of the land” but also having “owned the land” before
the Europeans arrived.The text has black and white voices. It contains
“a promise of justice and atonement,” but this is to be accomplished
“through work and utility” as if these “would return the noble savage

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to Elysium” (King and McHoul 1986: 30). The Aborigines are to

move forward through anthropology’s stages. Being now “barbaric”
and “of the land,” they should be improved so as to become “peasants”
“on the land.” What the authors call the “problem” of sovereignty is
managed by acknowledging that the Aborigines had it in the past
but will not have it in the future. What they are owed is protection
(from extermination) as individuals under British law. Humanism
is understood as utilitarian. In the event, the Act turned protection
into segregation, converting a “social liability into an economic asset”
(1986: 32). Aborigines were to be confined to the reserves and could
own no property.
The authors have it that Meston’s text renders the Aborigines as
slaves or criminals, and thus needing to be brought under the terms of
British criminal law so as to be made into knowable subjects: “And, as
the Foucauldian pun has it, to become a subject is to become subject –
to power, control and the [white] gaze” (King and McHoul 1986: 33).

The sheer fact of Aborigines coming under an Act of Parliament

marked, in and of itself, regardless of its content, their point of
official incorporation into a State that was itself but 30 years old
by that time. And that marker points clearly in the direction of
incorporation by criminality. The title of the Act distinguishes
it as pertaining particularly to criminality and race as the main
textual-legal categories of incorporation.
(King and McHoul 1986: 33)

For readers puzzled by the reference to opium in the Act, it is

important to note “that opium dross (pipe-ash mixed with paste)
was continually used as payment for Aboriginal labour” (King and
McHoul 1986: 37, note 7). As in Canada, responsibility for selling
smoking opium was pinned on Chinese immigrants. Thus, the Act
forbids Aborigines from consorting with the Chinese. According to
King and McHoul, and on the basis of a brief membership cat-
egorization analysis, the crime the Act predicates of Aborigines is
“being Aboriginal” (1986: 33). At the time of writing (2016), and in
the wake of further police killings of black Americans, specifically
Terence Crutcher and Keith Lamont Scott, commentator William
C. Anderson writes, “Black people in the United States are often
charged with being alive and sentenced to death without a courtroom,

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because Blackness is rooted in associations that are contrary to liv-

ing” (Anderson 2016: para. 2, emphasis in original). Australians regard
Aborigines as “black.”
King and McHoul proceed to consider the effects of Meston’s
proposal as expressed in the Act with respect to the establishment
of the reserve system. To do so, they invoke Foucault’s analysis of
the panopticon as a device of surveillance: “The reserve system was
an instrument of discipline and punishment” (King and McHoul
1986: 33; quoting Wearne 1980: 13). They nicely invoke Foucault’s
points about how visibility to surveillance engenders self-surveillance,
and how a system of control also changes the controllers. The forms
of control instituted by the Act (1897) included discipline via the
daily timetable, the confinement of women to the reserve, the estab-
lishment of indigenous reserve police (supplemented by the right
of any white person to enforce the complete isolation provision),
the introduction of “white” education (“the most widespread tech-
nique of power in Western history” [King and McHoul 1986: 35]),
and the tight, bureaucratic control of black employment (including
unpaid labour, or at wage rates less than whites). Whether the Act
was followed or not is not the authors’ point. The discourses of the
proposal and the Act set the “possible conditions” of domination; they
constituted forms of power-knowledge.

If Meston’s proposal offered a number of dubious arguments for

reservisation and surveillance based on equally dubious ideas about
the “nature” of Aborigines, then the Act gave these arguments the
status of practical technologies. In concert, the two texts provided
a template for the technologies of power governing Aborigines
in a number of States of Australia.
(King and McHoul 1986: 36)

The authors conclude with a claim of their subject’s continuing

relevance, of what they call “discursive continuity.”

Aborigines’ movements were mapped and controlled . . . They

were made accessible to European discipline via the law, through
the carceral relocation of their bodies and by means of disciplinary
knowledges (principally those of law, Christianity and anthropol-
ogy). Those regimes still have their effect today. Almost no form

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of white knowledge of Aborigines can claim complete freedom

from those initial foundational discourses which give it its condi-
tions of possibility.
(King and McHoul 1986: 36)

Churchill: genocide in the Americas

Returning to Blaut’s (1993) analysis and Shawn’s (1991) epigraph,

we may ask the following questions. What, then, has this “violent
crime” involved in the “Triumph of the West” amounted to, and
whom has it victimized in the imperial context of the conquest of the
Americas; that is, who became “sick and weak . . . ‘the poor’”? How,
especially, has it been justified? In particular, how was the boundary
between legal and criminal managed? We will take these questions
in turn, focusing on the conceptual practices of racism that made
the conquest possible, its “conditions of possibility” to use King and
McHoul’s Foucauldian phrase. In his Preface to Ward Churchill’s
A Little Matter of Genocide, David Stannard writes:

[T]he European conquest of the New World, including the U.S.

government’s destruction of its own indigenous peoples, was the
most massive interrelated sequence of genocides in the history of
the world. Over the course of four centuries – from Columbus’s
first landing on Hispaniola [present-day Haiti and the Dominican
Republic] in the fall of 1492 to the U.S. Army’s massacre of inno-
cent Indian men, women, and children at Wounded Knee in the
winter of 1891 – tens of millions of the Western Hemisphere’s
native people were consumed in a holocaust of mass violence that,
in locale after locale, typically destroyed 90–95 percent and more of
the indigenous inhabitants.
(Stannard 1998: xvi, emphasis in original)

Churchill himself puts it like this: from 1492 to 1892 when the

U.S. Census Bureau concluded that there were fewer than a

quarter-million indigenous people surviving within the country’s
claimed boundaries, a hemispheric population estimated to have
been as great as 125 million [including 12 to 18 million in what is
now the United States] was reduced by something over 90 percent.
(Churchill 1998: 1)

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He continues:

The people had died in their millions of being hacked apart with
axes and swords, burned alive and trampled under horses, hunted
as game and fed to dogs, shot, beaten, stabbed, scalped for bounty,
hanged on meathooks and thrown over the sides of ships at sea,
worked to death as slave laborers, intentionally starved and frozen
to death during a multitude of forced marches and internments,
and, in an unknown number of instances, deliberately infected
with epidemic diseases.
(Churchill 1998: 1)

Thus, the principal impact of Europeans on the indigenous peoples

of what is now called North America has been their virtual elimi-
nation. As the title of his book indicates, Churchill argues that this
disaster did not befall the indigenous peoples by chance or inadvert-
ence or neglect, but as a result of genocide (see also Dunbar-Ortiz
2016). “Genocide” is defined in Article II of the Convention on
the Prevention and Punishment of the Crime of Genocide (United
Nations, 1948b) as follows:

In the present Convention, genocide means any of the follow-

ing acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on members of the group conditions of
life calculated to bring about its physical destruction in whole
or in part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another group.
(United Nations 1948b: Article II)

Furthermore, Article III lists genocide, conspiracy to commit geno-

cide, direct and public incitement to commit genocide, attempt to
commit genocide, and complicity in genocide as punishable offences.
In the course of our account of Churchill’s book, which focuses on

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the United States, we will insert some details of the Canadian experi-
ence with genocide.
Although Churchill devotes two lengthy essays in the book to
criticizing this “U.S.-designed and highly truncated instrument” as
“effectively gutting [Raphael] Lemkin’s original [1944] conception of
genocide” (Churchill 1998: 368) and to proposing his own improved
version which includes physical, biological and cultural genocide,
treating each of the three types as “possessing equal gravity” (1998:
433), he nevertheless argues and documents in excruciating detail just
how the huge number of aboriginal deaths resulting from European
invasion and colonization was the outcome of the colonizers’ poli-
cies which conform precisely with the Convention’s definition of
genocide.
Thus, although the greater part of the “population collapse” of
indigenous people had occurred in the first hundred years of the
conquest, for the hemisphere as a whole, the entire period from 1492
to the present is characterized by what seems to be an unending series
of massacres. Students should check the index of Churchill’s book
under “massacres of American Indians.” The list is long. The same is
true for the entry under “Native American peoples,” many of which
no longer exist.The indigenous people were simply killed off in large
numbers, repeatedly.This took place in the course of the conquering
of their towns and villages and the taking over of their land, in the
wake of pitched battles or just plain massacres (the so-called “Indian
Wars”), or as a result of them being worked to death as slave labour
in mines and plantations, or being starved to death by the burning
of their (corn) fields or being denied sufficient food to survive, or of
being hunted for sport, or of being deliberately infected with fatal
diseases such as smallpox.
Churchill is particularly critical of the generally accepted view that
because the Indians had no immunity to European diseases, the huge
proportion of their total death toll from this cause was inadvertent
and thus not the responsibility of the invaders. He points out how
the utter devastation of aboriginals’ lives by the colonists and their
armies so reduced them physically, culturally and spiritually that their
susceptibility to disease was immeasurably heightened.

The literature of the entire period from 1607 to 1920 is replete

with observations of this or that Indian, or entire people, having

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“lost the will to live” in the face of the sudden dispossession of

both their homeland and their way of life, as well as most of their
friends and relatives. The correlation between such psychological
devastation and the inability of the average human organism to
fend off disease is no mystery today, and it was not then.
(Churchill 1998: 151, emphasis in original)

It also led to a drop in fertility, as understood at the time, and expected.

All the colonizing groups are culpable. The savagery of the
Spaniards and the Portuguese was matched later by the English,
“the most overtly genocidal of the European powers operating in
North America” (Churchill 1998: 199), in setting up and then mov-
ing beyond their renowned Jamestown, Virginia and Plymouth,
Massachusetts plantations; by the French, briefly by the Dutch, and
then by the Americans throughout the first hundred years or so of
their independence. For one of many examples, on 27 November
1864, the Third Colorado Volunteer Cavalry Regiment commanded
by Colonel John Milton Chivington massacred several hundred non-
combatant Cheyenne, led by their peace chiefs, who were under de
facto internment at Sand Creek,

the majority of which were women and children . . . I did not

see a body of man, woman, or child but was scalped, and in many
instances their bodies were mutilated in a most horrible manner
– men, women, and children’s privates cut out . . . I also heard of
numerous instances in which men had cut out the private parts
of females and stretched them over the saddle bows and wore them
over hats while riding in the ranks.
(Churchill 1998: 233, quoting eye-witness testimony)

The story in Canada is not that different, and here too there has
been the charge of genocide (Davis and Zannis 1973; Palmater
2016), including by no less than the Chief Justice of the Supreme
Court of Canada, Beverly McLachlin (Fine 2015). However, in the
Chief Justice’s case, and in the view of the Truth and Reconciliation
Commission of Canada, it is “cultural genocide,” rather than geno-
cide proper, that may be said to have occurred (MacDonald 2015).
This is no doubt related to the fact that Canada’s Criminal Code
recognizes only clauses (a) and (c) of the UN Genocide Convention.

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(MacDonald [2015] is mistaken on this point.) Let us take the

Convention’s five forms of genocide in turn.

(a) Killing members of the group

In 1749, [Edward] Cornwallis was appointed governor of Nova

Scotia and sent to found Halifax to offset the French fort at
Louisbourg . . . Mi’kmaq leaders believed he had no claim to the
territory . . . In October 1749, he issued an order that came to be
known as the Scalping Proclamation. His government would pay a
bounty to anyone who killed a Mi’kmaq adult or child in a bid to
drive them off mainland Nova Scotia. It is not known how many
people died, but several reports detail attacks on Mi’kmaq villages
and mercenaries bringing in dozens of scalps to claim bounties.
(The Canadian Encyclopedia n. d.: “Founding Halifax”)

Three years before,

Cornwallis led 320 soldiers to pacify an area of the Western

Highlands [of Scotland, following the Battle of Culloden].
Suspected Jacobite families were boarded into homes and burned
to death. Properties were looted, livestock were chased off, and
crops were destroyed.
(The Canadian Encyclopedia n. d.:
“Pacification of the Scottish Highlands”)

See also Bousquet (2016).

(b) Causing serious bodily or mental harm to members of the group

Rather than physically exterminating the native peoples – but see sub-
section (c) below – Canadian officials after Confederation in 1867, in
parallel with the Americans and Australians, adopted the policy of so
assimilating them as to remove any trace of their “Indianness.” One
may wipe out a nation of people as effectively by removing their
identity as by killing them off bodily – “kill the Indian, spare the man”
(Churchill 1998: 245; 2004). A principal vehicle of this policy was the
residential school system. By removing aboriginal children from their
families and communities and confining them in the total institutions

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of the residential schools, both the US and Canadian federal states,

having sub-contracted the job to the churches, attempted to drum
out of the aboriginal children their indigenous languages and cul-
tures and convert them into some kind of Anglo person “with the
rudimentary skills which would allow them to serve as labourers and
functionaries for the dominant society” (Churchill 1998: 246). The
dreadful story in Canada is told in compelling detail in A National
Crime by John Milloy (1999), in the Report of the Royal Commission on
Aboriginal Peoples (Royal Commission on Aboriginal Peoples 1996)
and in the Final Report of the Truth and Reconciliation Commission
of Canada (2015). The policy was accompanied by endemic physical
and sexual abuse and malnutrition. Hundreds, if not thousands, of
children died at school.

(c) Deliberately inflicting on members of the group conditions of life

calculated to bring about its physical destruction in whole or in part

In his Clearing the Plains: Disease, Politics of Starvation, and the Loss
of Aboriginal Life, James Daschuk (2013b) describes how the new
Government of Canada under John A. Macdonald ethnically cleansed
the indigenous people from the central plains (contemporary
Saskatchewan) by withholding food (see also Savage 2012).

For years, government officials withheld food from aboriginal

people until they moved to their appointed reserves, forcing them
to trade freedom for rations. Once on reserves, food placed in
ration houses was withheld for so long that much of it rotted while
the people it was intended to feed fell into a decades-long cycle of
malnutrition, suppressed immunity and sickness from tuberculosis
and other diseases. Thousands died.
(Daschuk 2013a: para. 5)

Daschuk’s compelling journalistic account is reproduced in Box 12.

(d) Imposing measures intended to prevent births within the group

In An Act of Genocide: Colonialism and the Sterilization of Aboriginal

Women, Karen Stote (2015) provides a Marxist feminist postcolo-
nial analysis of legalized policies used to sterilize indigenous women

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BOX 12 When Canada used hunger to clear the West

Twenty years ago, Saskatoon scholar Laurie Barron cautioned that stories of sexual and
physical abuse at Indian residential schools should be taken with a grain of salt; he thought
they were just too horrific to be believed in their entirety. But national leader Phil Fontaine’s
public admission of his abuse, the Royal Commission on Aboriginal People and the haunting
testimony presented recently to the Truth and Reconciliation Commission of Canada have
brought the horrors of the residential school system to the forefront of our consciousness.
We are often shocked, but we really shouldn’t be surprised.
Nor should we be surprised by the revelations in Dr. Ian Mosby’s article about the
medical experimentation on malnourished aboriginal people in northern Canada and in
residential schools. Rather than feed the hungry among its wards (even adult “Registered
Indians” were not full citizens until 1960), government-employed physicians used pangs of
hunger to further their research into malnutrition, in a plot reminiscent of the Tuskegee
experiment on African-Americans with syphilis, whose conditions were monitored rather
than treated.
Researching my own book forced me to reconsider many of my long-held beliefs about
Canadian history. A professor of mine at Trent University once explained that Canadian
expansion into the West was much less violent than that of the United States, because
in that country, “the person with the fastest horse got the most land.” By contrast, in the
Dominion’s march west, the land was prepared for settlement by government officials
before the flood of immigrants.
What we didn’t know at the time was that a key aspect of preparing the land was the
subjugation and forced removal of indigenous communities from their traditional territories,
essentially clearing the plains of aboriginal people to make way for railway construction
and settlement. Despite guarantees of food aid in times of famine in Treaty No. 6, Canadian
officials used food, or rather denied food, as a means to ethnically cleanse a vast region from
Regina to the Alberta border as the Canadian Pacific Railway took shape.
For years, government officials withheld food from aboriginal people until they
moved to their appointed reserves, forcing them to trade freedom for rations. Once on
reserves, food placed in ration houses was withheld for so long that much of it rotted
while the people it was intended to feed fell into a decades-long cycle of malnutrition,
suppressed immunity and sickness from tuberculosis and other diseases. Thousands
died.
Sir John A. Macdonald, acting as both prime minister and minister of Indian affairs during
the darkest days of the famine, even boasted that the indigenous population was kept on
the “verge of actual starvation,” in an attempt to deflect criticism that he was squandering
public funds.

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Within a generation, aboriginal bison hunters went from being the “tallest in the world,”
due to the quality of their nutrition, to a population so sick, they were believed to be racially
more susceptible to disease. With this belief that aboriginal people were inherently unwell,
their marginalization from mainstream Canada was, in a sense, complete.
For more than a century, Canadians have been accustomed to reports of terrible hous-
ing conditions on reserves, unsafe drinking water, dismal educational outcomes and, at least
in Western Canada, prison populations disproportionally stacked with aboriginal inmates.
Aboriginal leaders and young people such as those who embraced the Idle No More
movement have been calling for Canadians to fundamentally acknowledge the injustices
and atrocities of the past and fix the problems that keep indigenous Canadians from living
the same quality of life as their non-aboriginal neighbours.
As the skeletons in our collective closet are exposed to the light, through the work of
Dr. Mosby and others, perhaps we will come to understand the uncomfortable truths that
modern Canada is founded upon – ethnic cleansing and genocide – and push our leaders
and ourselves to make a nation we can be proud to call home.
Source: James Daschuk (2013a: n. p.).

(though not only them) without their consent in Alberta and British
Columbia from 1928 to 1973.

(e) Forcibly transferring children of the group to another group

What is known in Canada as the “Sixties Scoop” refers to the accel-

eration in the practice used by child welfare authorities of adopting
or fostering out indigenous children to white families from the
1960s through the 1980s. It was “in most cases without the consent
of their families or bands” (Indigenous Foundations n. d.: para. 1).
Australia carried out a similar policy, leading to what is known
there as the “Stolen Generation.” But the Australian Human Rights
Commission “in 1997, delivered a bombshell when it concluded the
forcible removal of aboriginal children was genocide” (MacDonald
2015: A12).
Finally on Canada, readers might care to consider under what cat-
egory of genocide, if any, they would place the practice of conducting
nutritional experiments on the efficacy of food supplements – vita-
mins, etc. – on about 1,300 malnourished indigenous people, most
of them children in residential schools (Mosby 2013). See Box 13.

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BOX 13 Canadian government withheld food from hungry aboriginal

kids in 1940s nutritional experiments, researcher finds

Recently published historical research says hungry aboriginal children and adults were once
used as unwitting subjects in nutritional experiments by Canadian government bureaucrats.
“This was the hardest thing I’ve ever written,” said Ian Mosby, who has revealed new
details about one of the least-known but perhaps most disturbing aspects of government
policy toward aboriginals immediately after the Second World War.
Mosby – whose work at the University of Guelph focuses on the history of food in
Canada – was researching the development of health policy when he ran across something
strange.
“I started to find vague references to studies conducted on ‘Indians’ that piqued my
interest and seemed potentially problematic, to say the least,” he said. “I went on a search
to find out what was going on.”
Government documents eventually revealed a long-standing, government-run experi-
ment that came to span the entire country and involved at least 1,300 aboriginals, most
of them children.
It began with a 1942 visit by government researchers to a number of remote reserve
communities in northern Manitoba, including places such as The Pas and Norway House.
They found people who were hungry, beggared by a combination of the collapsing
fur trade and declining government support. They also found a demoralized population
marked by, in the words of the researchers, “shiftlessness, indolence, improvidence and
inertia.”
The researchers suggested those problems – “so long regarded as inherent or heredi-
tary traits in the Indian race” – were in fact the results of malnutrition.
Instead of recommending an increase in support, the researchers decided that isolated,
dependent, hungry people would be ideal subjects for tests on the effects of different diets.
“This is a period of scientific uncertainty around nutrition,” said Mosby. “Vitamins and
minerals had really only been discovered during the interwar period.
“In the 1940s, there were a lot of questions about what are human requirements for
vitamins. Malnourished aboriginal people became viewed as possible means of testing these
theories.”
The first experiment began in 1942 on 300 Norway House Cree. Of that group, 125
were selected to receive vitamin supplements which were withheld from the rest.
At the time, researchers calculated the local people were living on less than 1,500
calories a day. Normal, healthy adults generally require at least 2,000.
“The research team was well aware that these vitamin supplements only addressed a
small part of the problem,” Mosby writes. “The experiment seems to have been driven, at

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least in part, by the nutrition experts’ desire to test their theories on a ready-made ‘labora-
tory’ populated with already malnourished human experimental subjects.”
The research spread. In 1947, plans were developed for research on about 1,000 hungry
aboriginal children in six residential schools in Port Alberni, B.C.; Kenora, Ont.; Shubenacadie,
N.S.; and Lethbridge, Alta.
One school deliberately held milk rations for two years to less than half the recom-
mended amount to get a ‘baseline’ reading for when the allowance was increased. At
another, children were divided into one group that received vitamin, iron and iodine
supplements and one that didn’t.
One school depressed levels of vitamin B1 to create another baseline before levels were
boosted. A special enriched flour that couldn’t legally be sold elsewhere in Canada under
food adulteration laws was used on children at another school.
And, so that all the results could be properly measured, one school was allowed none
of those supplements.
Many dental services were withdrawn from participating schools during that time. Gum
health was an important measuring tool for scientists and they didn’t want treatments on
children’s teeth distorting results.
The experiments, repugnant today, would probably have been considered ethically
dubious even at the time, said Mosby.
“I think they really did think they were helping people. Whether they thought they
were helping the people that were actually involved in the studies, that’s a different
question.”
He noted that rules for research on humans were just being formulated and adopted
by the scientific community.
A spokeswoman for Aboriginal Affairs Minister Bernard Valcourt said the current federal
government is shocked by the findings.
“If this story is true, this is abhorrent and completely unacceptable,” Andrea Richer said
in an email. “When Prime Minister [Stephen] Harper made a historic apology to former
students of Indian Residential Schools in 2008 on behalf of all Canadians, he recognized
that this period had caused great harm and had no place in Canada.”
Little has been written about the nutritional experiments. A May, 2000, article in the
Anglican Journal about some of them was the only reference Mosby could find.
“I assumed that somebody would have written about an experiment conducted on
aboriginal people during this period, and kept being surprised when I found more details
and the scale of it. I was really, really surprised.
“It’s an emotionally difficult topic to study.”
Not much was learned from those hungry little bodies. A few papers were published

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– “they were not very helpful,” Mosby said – and he couldn’t find evidence that the Norway
House research program was completed.
“They knew from the beginning that the real problem and the cause of malnutrition was
underfunding. That was established before the studies even started and when the studies
were completed that was still the problem.”
Source: Bob Weber (2013: n. p.).

If the virtual elimination of the indigenous people of the Americas

– whether by causing their deaths, inducing sickness through
malnourishment, removing their identities, restricting births or trans-
ferring their children to non-indigenous groups – was the principal
impact of the Europeans upon them, then the second impact was
the wholesale robbery of their land and resources. The indigenous
inhabitants of Turtle Island were systematically dispossessed of their
heritage, if not by force, then by fraud (Wright 1992;York 1989). As
in Australia, what remained to them were the reserves or reserva-
tions, managed by the Canadian or US federal states as a system of
internal colonialism (Churchill 1998: 247–250, 289–362), what Todd
Gordon (2010: 66–133) calls the “empire at home.”What made these
genocides possible? What were their “conditions of possibility”?
Genocide is standardly made possible by racism (a view challenged
by Pat Marchak [2003] in her Reigns of Terror). The foundation of
racism is the view that the “other” is not as real as me. That usually
means assuming that they are not as human as me. In order to treat
another morally, I have to believe that they are as real or as human as
me. Denying them that reality or humanity means not having to deal
with them morally or humanely, and that usually means not having
to deal with them legally. If they are not really as human as me, then
the law and morality don’t really apply to them. I can do with them
as I like. Killing them and taking their land and resources are not then
crimes. Such actions are effectively de-criminalized from the outset.
As in other cases of genocide, then, we find that the invaders,
colonists and settlers, whether military officer, religious leader, gov-
ernment official, business person, farmer, teacher or domestic worker,
shared a pervasive, racist view of the indigenous peoples they encoun-
tered in North America (and subsequently of the Africans who were
imported as slaves to replace the decimated ranks of the original

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inhabitants). They were regarded as beasts, as vermin, as lice; that is,

as sub-human or infra-human, and therefore fit for extermination.
Colonel Chivington, for example,“a former Methodist minister with
political ambitions,” announced before the Sand Creek massacre that,
“My intention is to kill all Indians I may come across.”This included
new-born infants because “they would one day grow up to become
adult Cheyennes. ‘Nits make lice,’ Chivington asserted” (Churchill
1998: 229). He was echoing a jingle that was going around at the time
of “King Philip’s War” in 1675–1676 when the English were wiping
out the Wampanoags, Narragansetts and other First Nations in New
England (1998: 177–178):

A swarm of Flies, they may arise

a Nation to annoy.
Yea Rats and Mice or Swarms of Lice
a Nation may destroy.

“It should be noted that, eighty years after Chivington . . . SS

Reichsführer Heinrich Himmler would also refer to his exter-
mination of Gypsies, Jews, Slavs, and others as being ‘the same as
delousing’” (Churchill 1998: 229; see also Bousquet 2016). As for the
Wampanoags,

During the Thanksgiving holiday a few weeks ago, I took a walk

with some friends and family in a national park. We came across a
gravestone, which had on it the following inscription: “Here lies
an Indian woman, a Wampanoag, whose family and tribe gave of
themselves and their land that this great nation might be born
and grow.”
Of course, it is not quite accurate to say that the indigenous
population gave of themselves and their land for that noble pur-
pose. Rather, they were slaughtered, decimated, and dispersed in
the course of one of the greatest exercises in genocide in human
history . . . Hundreds of American citizens, well-meaning and
decent people, troop by that gravestone regularly and read it, appar-
ently without reaction; except, perhaps, a feeling of satisfaction that
at last we are giving some due recognition to the sacrifices of the
native peoples, presumably the reason why it was placed there.
They might react differently if they were to visit Auschwitz or

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Dachau and find a gravestone reading: “Here lies a woman, a Jew,

whose family and people gave of themselves and their possessions
that this great nation might grow and prosper.”
(Chomsky 1987b: 121–122)

A second racist conceptual practice is to regard the despised other as

not only sub-human, but as savage or barbaric. Thus, the indigenous
peoples of the Americas have been said to engage in human sacrifice,
to practise cannibalism, to scalp their enemies, to store their own
excrement for food, and never to have discovered how to fertilize
their fields. Churchill reviews the evidence for these claims, show-
ing that they are, for the most part, myths (Churchill 1998: 117–118,
135–136). There is, for example, “no evidence of mass institutional-
ized human sacrifice among the Aztecs” (Peter Hassler, quoted in
Churchill 1998: 118); nor is there “a shred of credible evidence to
support the cannibalism myth” (1998: 136, citing Marshall Sahlins).
As for scalping and other forms of bodily mutilation,

although it is likely that at least some Indians practiced scalping in

one fashion or another before the European invasion, “there is no
doubt that [generalized] scalp-taking . . . was due to the barbarity
of White men rather than the barbarity of Red men.”
(Churchill 1998: 179–1980, quoting Peter Farb)

Churchill continues,

in truth, the practice probably finds its origins in the same wars of
pacification in Scotland and Ireland whence the English imported
the rest of their exterminationist techniques, albeit the entire rep-
ertoire mutated into more extreme form when transplanted to
North America.
(Churchill 1998: 180)

See Cornwallis above. Thus, not only scalping, but taking heads and
displaying them stuck on posts, was a preferred method of inducing
terror in the subjugated populace.
But, in the words of the epigraph to Chapter 5 in this book by
W. I. and D. S. Thomas, “if men define situations as real, they are
real in their consequences” (1928: 572). Thus, it did not matter that

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these conceptions of the native peoples would later be shown to be

false, and that savagery belonged in the first place to the Europeans,
since, given that the “myths” were promulgated by the invaders
and believed by them, they could then serve their purpose of help-
ing to justify the barbarity inflicted on their enemies. Here is one
place where poststructuralism’s unacknowledged debt to symbolic
interactionism is evident (see Atkinson and Housley 2003). Thus,

the armed conquest in New England [and Virginia] . . . closely

resembled the procedures followed by the English in Ireland
in the sixteenth and seventeenth centuries. In these lands, the
English . . . held the simple view that the natives were outside
the law of moral obligation. On this assumption, they fought by
means that would have been dishonourable, even in that day, in
war between civilized peoples.
(Francis Jennings, quoted in Churchill 1998: 178)

These methods included inciting competition among different First

Nations “in order, by division, to maintain control,” disregarding
“pledges and promises to natives, no matter how solemnly made,”
practising “total exterminatory war against some communities of
natives in order to terrorize others,” and “a highly developed propa-
ganda of falsification to justify all acts and policies of the conquerors
whatsoever” (Francis Jennings, quoted in Churchill 1998: 178).
Third, fourth and fifth racist conceptual practices are to make out
the population of the territory being invaded and colonized to be
insignificantly small, to claim thereby that the land is essentially vacant
(the legal doctrine of terra nullius), and to assert that, since whatever
nations of people are in fact there have no history as independent
political states, then they have no real legal claim to the territory they
occupy, so that the invaders may take it, so to speak, legally. These
are by no means antique concepts: all have been used by the State
of Israel to justify its establishment of a Jewish state in Palestine in
1948 despite the presence of its existing indigenous inhabitants, and
its further occupation of the Palestinian territories since 1967; the
legal force of the doctrine of terra nullius as applied to the European
colonization of parts of Australia at the expense of that continent’s
aboriginal peoples has been tested in the Australian courts; Canadian
Minister for External Affairs, Joe Clark, asserted in 1990 “that there

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has never been any history of independence or self-government in

the territory,” in reference to East Timor when justifying Canada’s de
facto acceptance of Indonesia’s 1975–1976 invasion and annexation (as
its twenty-seventh province) of what was still under international law
a Portuguese colony (Clark 1990). These specious doctrines were all
used to justify the European invasion and colonization of the “New
World,” and have been defended by scholars virtually to the present
day (Churchill 1998: 2, 129–137).
A sixth racist conceptual practice is that of historical relativism.
Used properly, this is a valid and important principle of historical
scholarship and interpretation. It is an antidote to the ethnocentric
practice of imposing the values of the historian’s society in the pres-
ent onto the society that is under investigation in the past. But it
can become a tool in the armoury of the racist when the judgments
of contemporaries in the society under investigation are ignored.
Asserting that “people’s values were different back then, so we can’t
judge them” can become a means of justifying genocide or other
barbarism, when in fact those acts were being condemned at the
time. Thus, for all that the invaders produced justifications for their
actions based in theology, law, contemporary “anthropology” and so
on, there were those present at the time who could see the savagery
for what it was and said so. There is no fiercer judge of the Spanish
conquest than Bartolomé de las Casas, who recognized and defended
the humanity of the “Indians” (but not at first of Africans, though
he later recanted), and whose sixteenth-century history of the Indies
(de las Casas 1971 [1527–1561]) utterly condemns Spanish barbarity.
Moreover, the odd perpetrators were in fact tried for their crimes
against “Indians.” Churchill cites the cases of would-be conquista-
dors Francisco Vásquez de Coronado and Garcia López de Cárdenas.
Coronado was acquitted, but López was convicted for the massacre
at Arenal (in the area of what is now New Mexico) in the course
of their failed 1539–1542 expedition, and died in prison. Churchill
writes, “This is not proof that Spain was ‘struggling for justice in the
New World’ so much as it is evidence that the Spanish were perfectly
aware that their treatment of native people was criminal, whether
it succeeded or not” (1998: 160). He advances a similar argument
when discussing the illegitimacy, duplicity and, indeed, criminality of
the plans for the pacification, if not extermination, of the remaining
aboriginal peoples put forward by George Washington and supported

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by Thomas Jefferson as they contemplated coming to power in the

newly independent United States of the early 1780s (1998: 209–211).
If racism justifies genocide, it doesn’t explain why it might be
contemplated in the first place. Columbus and those who followed
him were not tourists.While they brought weapons, Christianity and
scientists to the “New World,” it wasn’t simply for the glory of bat-
tle, the salvation of pagans or the quest for knowledge that they
mounted what were expensive and dangerous expeditions.They were
financed (by royalty, aristocrats and others) because of the promise of
riches – a faster sea route to the East; then gold, silver and slaves; then
sugar, rum, tobacco and so on. They sought to colonize and exploit
the New World, and they did. They brought it under the tutelage
of European states which claimed its territory for their own. They
were, in short, vehicles of Empire.The existing inhabitants were to be
put down, or put to work (as slaves or as mercenaries), or otherwise
used in temporary political or military alliances for the advance-
ment of the colonists’ interests. They were no more than means to
Europeans’ ends. The importance of not ascribing human status to
“Indians” can be appreciated when one considers that it was in 1785
that Immanuel Kant wrote: “Act in such a way that you always treat
humanity, whether in your own person or in the person of any other,
never simply as a means, but always as an end” (1993 [1785]: 36).
The commercial centres of Europe were already capitalist or
proto-capitalist in 1500, in the mercantile if not the industrial sense.
Capitalism generates and depends upon continuous expansion of its
resources and markets. Since each capitalist class was “confined,” as it
were, to the national state that each later came to dominate politically,
then capitalist expansion took the form of inter-state competition.
Thus, European states competed for the riches of the rest of the
world.
The “Indians” of the Americas were not, and are not, naïve inno-
cents, helpless children in a pristine Garden of Eden. To think so
is to indulge the racist obverse of the view that they were and are
sub-human savages (or lazy, good-for-nothing drunks). They fought
back from the first moment of the invasion, and have continued to
resist the conquest through to the present day. They killed soldiers
and settlers, they made opportunistic alliances with one or other
invading group, and they entered into treaties with the colonizing
states they encountered. See especially Wright (1992) for the native

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peoples’ views, in their own words, of their invaders. Many of these

treaties, and land claims in general, as we know in Canada, have been
negotiated over decades, if not centuries, and some of them have been
resolved in our lifetimes, conferring substantial tracts of land, rights to
resources, and money on the First Nation in question. Some reserves
are comparatively rich. Some have reliable sources of income. Indeed,

contemporary Native North Americans, given their resource pro-

file and per capita land holdings, should be the wealthiest sector of
the continent’s populace, but are instead the most impoverished.
Indians incur by far the lowest annual and lifetime incomes of
any group on the continent, and the highest rates of unemploy-
ment. We also experience, by a decisive margin, the highest rates
of infant mortality, death by malnutrition, exposure, and plague
disease. Such conditions produce the sort of endemic despair that
generates chronic alcoholism and other forms of substance abuse
among more than half the native population – factors contribut-
ing not only to further erosion in physical health but to very high
accident rates – as well as rates of teen suicide up to 14.5 times
the national average.
(Churchill 1998: 247)

Add to this appalling litany high rates of family violence, including

extensive violence against women. Impoverishment affords little or
no privacy.Those for whom there is no life on impoverished reserves
end up in urban slums in the major cities.There, and on the reserves,
they come under intense police scrutiny and surveillance, carried
out, as repeated commissions of inquiry attest, with continuing rac-
ist preconceptions. Unable to conceal their drunkenness or assaults
behind the doors of private clubs or private homes, and unable to
pay the fines they incur for these violations, they end up constituting
a disproportionately high percentage of the inmates of the jails and
prisons of white society, as we saw in Chapter 9. In short, the indig-
enous peoples of North America are rewarded with criminalization
for the effects of, and their response to, the bounty of genocide with
which they have been so lavishly endowed over five centuries.

I, personally, will never choose to become a Canadian citizen (and

therefore part of the Canadian agenda) through “self government”

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or whatever means. I am a member of the Cayuga Nation and I am

content with my status as a dispossessed victim of colonialization
(1924). But I want everyone to know that I am just one of billions
of other victims of colonialism (which is the equivalent of a “break
and enter” at the national level). As long as I and other Native
people are recognised as verifiable victims, canada [sic] and her
civilised, enlightened, G7 partners (among others), will continue
to be seen as what they are – verifiable international criminals!
(Gawithra 1992: 7)

But, to return to the beginning, what of white, affluent, comfortable,

middle-class Canadian society, for whom the fate of the indigenous
peoples is but a remote irritation in the routine of our suburban lives
on their unnoticed, paved-over land? Blaut (1993) argues, convinc-
ingly, that it was the entry into circulation in the financial markets
of Western Europe after 1500 of the gold and silver robbed from the
New World off the backs of indigenous slave labour by the Spaniards
that was the decisive factor in affording the European economic
take-off. Add to that the ruthless suppression by European colonial
administrations of indigenous industrial production in the colonies
(for example, the destruction of the prosperous, eighteenth-century,
cotton textile industry in India and what is now Bangladesh), the
competitive advantage afforded southern US plantation cotton grow-
ers from the use of African(-American) slave labour, the exploitation
of the native peoples of Northern Canada in the operation of the fur
industry, and other such imperialist practices, and you have perhaps
the beginning of an adequate explanation of the Rise of the West
and the concomitant strength of the economic “fundamentals” which
underpin the rewards hard work can bring for white folks and others
in Canada and the United States, and which condemn the hard work
of people in the third and fourth worlds to poverty wages.
The final racist twist in all this is the truly awe-inspiring way in
which moral responsibility and criminality are inverted as between
the perpetrators of genocide and their victims. The ones who see
themselves as decent, hard-working, God-fearing, law-abiding,
somewhat-hard-done-by, tax-paying, property-owning citizens are
precisely the beneficiaries of the genocidal policies of their past and
present governments, while those who are the bare survivors of
those policies are precisely the ones who are seen as criminals, and

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criminally responsible for their own sad fate, and as an unwanted drag
on the progress of the rest. See, for example, Peter Edwards’s (2001)
account of the killing of Dudley George at Ipperwash, Ontario by
the Ontario Provincial Police and the attitudes and political practices
that informed that event.
Why did the native peoples not wipe out the invaders, given their
superior numbers initially? Churchill answers: “it did not and could
not occur to them . . . [No] known preinvasion indigenous people
pursued warfare by way of killing their opponents’ women, children,
and elders. Indeed, the terms of native warfare did not emphasize
killing at all” (Churchill 1998: 179).The genocide, racism and imperi-
alism that did not quite succeed in wiping out the indigenous peoples
of the Western hemisphere were and are the practices of the European
invaders and their descendants, my ancestors and perhaps yours.

The grammar of discourse in poststructural

postcolonialism
King and McHoul (1986) seek to specify what they call the “con-
ditions of possibility” of the actions undertaken by the Australian
colonizers to pacify the native aboriginal people they encountered
there. They locate these “conditions of possibility” in the “discursive
formations” inhabiting the texts of colonial officials and others, and
in one text in particular, Meston’s proposal. It is in the discursive
construction of the texts that they find the solution to their ana-
lytic problem of how the colonizers “knew how” to think about
the Aborigines in such a way as to know what to do with them. To
make this methodological gambit work, they have to suppose that the
colonial administrative officials themselves had a conceptual problem
for which the discursive formations that the officials came up with,
and articulated in the texts, served as solutions which they then could
implement (as in the Act and the reserve system itself). King and
McHoul say as much when they declare, “By 1788, European colo-
nial administrations faced the problem of developing relatively coherent
discourses for the categorisation and management of populations
which they classed as ‘native’” (1986: 24, emphasis added), and when
they say, “To locate Aborigines, to render them familiar, Europeans
had to situate them within existing discourses and, thereby, within
the dominant relations of power and knowledge available to nascent

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11: PEOPLE?

colonial administrations” (1986: 24). It is noticeable that they don’t

provide any evidence that the colonial administrations articulated in
so many words that they felt they had this problem. Rather, it is the
authors’ poststructuralist theory which requires that they have such
a problem so as to enable the authors to go searching in Meston’s
proposal for its solution.
Furthermore, there is a latent, occasionally manifest, anthropo-
morphizing of “discourse” (or at least “the text”) such that “it” speaks
(1986: 30) and has “voices” (“black” and “white” and that of a cer-
tain “Judge Willis”) (1986: 31). Nobody actually does speak, not any
black or white person nor Willis himself. Meston is not said to refer
to Willis or to the views of whites or blacks. Here again, these tropes
are features of the theory that the text or discourse is primary, that it
constitutes the objects and subjects that are referenced in it, including
the writer him- or herself.
In respecifying the grammar of this form of theorizing, what
needs to be considered is its “conditions of possibility.” One condi-
tion that is immediately relevant is that the theorists have a “mastery
of natural language” (Garfinkel and Sacks 1970: 342) such that they
know already that it is persons who speak, not inanimate objects or
non-human creatures. That is to say, they know what speaking is as
a natural/moral fact of life, and because they know it, and because
they know that their readers know it, they can attribute it to an
inanimate object, a text or discourse, and know that they will be
understood through the common method of extending the meaning
of a word metaphorically. We can see how texts can speak and have
voices because we already know that and how it is people (who)
speak. Through this and related members’ methods of sociological
inquiry, King and McHoul (1986) can construct a discourse, as they
say, about discourse. In so doing they become subject to critique in
terms of Smith’s second argument in the quotation from the grammar
section of Chapter 10: “postmodernism/poststructuralism transfers
the function of the subject to language or discourse reinforcing the
traditional separation of the bases of consciousness from the local
historical activities of people’s everyday lives” (1999: 98).In other
words, whether their post-al analysis counts as explicating how texts
such as Meston’s proposal actually enter(ed) into the politics of colo-
nial administration, get (got) taken up and used is another question
entirely. Merry says, for example, “that processes of criminalizing

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everyday life are not straightforward and unambiguous but instead are
contests within complex social fields including local judicial officials,
state officials, local people, and the regulated group. Success is often
fragmentary” (1998: 35). It may be helpful at this point to re-read
the passage from Garland (1997: 202) that concludes Chapter 10 as a
reminder of what “politics” entails.
What is useful in King and McHoul’s analysis is that the exercise
shows that state officials did work at justifying their actions, and
reveals the terms in which they did the justifying, the sources of
those terms, and the notional conceptual problems that work posed
as the officials went about doing it. That demonstration and explica-
tion would have been more persuasive, perhaps, if the authors had
shown the reader at least samples of Meston’s proposal so that the
verisimilitude of their analysis could be made visible.

Conclusion
And the book runs on, years, centuries, till the moment comes
when our parents say the time of apportionment is now over. We
have what we need – our position well defended from every side.
Now, finally, everything can be frozen, just as it is. The violence
can stop. From now on, no more stealing, no more killing. From
this moment, an eternal silence, the rule of law.
(Shawn 1991: 48)

The Helen Betty Osborne Ininiw Education Resource Centre

opened in 2004. Ininiw is the Cree word for “people” (Valpy 2015).

Exercises
1. Acquaint yourselves with the crimes your government is currently
committing internationally and internally by consulting the reports
of human rights organizations such as Amnesty International,
Human Rights Watch, Survival International, Rights Action, the
International Labour Organization and so on, as well as independ-
ent (“alternative”) media such as Democracy Now! or truthout.org in
the United States, rabble.ca in Canada and John Pilger in the UK.
(“Independent” here means not owned by governments or corpo-
rations.) Indigenous peoples typically have their own organizations

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and media. If you are a student at a Canadian or US college or

university that has an Aboriginal Centre, start there. Racialized
and ethnic groups are also usually self-organizing, often in the
form of campus clubs; for example, Students for Palestinian Rights
(University of Waterloo). Consult them. Compile a rap sheet for
your government in your notebook.
2. Extend Exercise 1 into the past. In the case of imperial powers
like the United States, the United Kingdom and, although to a
lesser extent, Canada and Australia, you will need a notebook with
many pages.
3. Try and document Razack’s claim (2008: 6–7) that

the abandonment of populations, an abandonment configured as

emergency, is accomplished as a racial project . . . today’s empire
is most distinguished by the proliferation of camps and by the
culture of exception that underpins the eviction of increasing
numbers of people from political community.

Compile a list of the world’s “camps.”

Review questions
1. What is poststructural about postcolonialism?
2. How does Merry (1998: 15) come to state that “[r]acial fears and
social images of disorder take solid form in a procession of con-
victed and incarcerated bodies”?
3. What is the relationship of discourse, policy and practice according
to King and McHoul’s (1986) Foucauldian analysis of Meston’s
proposal? Where does power/knowledge fit into the analysis?
4. How did the “conceptual practices of racism” provide the “condi-
tions of possibility” of genocide in the Americas?
5. What are the “conditions of possibility” of King and McHoul’s
(1986) poststructuralist analysis?

Further reading
Monchalin, Lisa. 2016. The Colonial Problem: An Indigenous Perspective
on Crime and Injustice in Canada. Toronto, ON: University of
Toronto Press.

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 PART IV: EPISTEMICALLY UNDERMINED

Dunbar-Ortiz, Roxanne. 2014. An Indigenous Peoples’ History of the

United States. Boston, MA: Beacon Press.
Jayyusi, Lena. 2015. “Discursive cartographies, moral practices: inter-
national law and the Gaza War.” In B. Dupret, M. Lynch and
T. Berard (eds), Law at Work: Studies in Legal Ethnomethods. New
York: Oxford University Press, 273–298.
Shawn, Wallace. 1991. The Fever. New York: Noonday Press.

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12 Conclusion

Science tells us that a new and dangerous stage in planetary evolu-

tion has begun, the Anthropocene, a time of rising temperatures,
extreme weather, rising oceans, and mass species extinctions.
Humanity faces not just more pollution or warmer weather, but a
crisis of the Earth System. If business as usual continues, this cen-
tury will be marked by rapid deterioration of our physical, social,
and economic environment. Large parts of Earth will become
uninhabitable, and civilization itself will be threatened . . . Facing
the Anthropocene [2016] offers a unique synthesis of natural and
social science that illustrates how capitalism’s inexorable drive for
growth, powered by the rapid burning of fossil fuels that took mil-
lions of years to form, has driven our world to the brink of disaster.
(Blurb for book presentation by author
Ian Angus, 25 August 2016)

The world in 2016

Standing on the “brink of disaster” puts its own dark complexion on
the task of concluding the writing of an academic textbook on the
sociology of crime. Never mind who is going to read it. The ques-
tion is: what is the point, what has been the point, of writing such
a book in the first place? Angus’s book, and the blurb introducing
it, are just two of many alarms that have been set off in recent years
about impending global catastrophe induced by triumphant global
capitalism’s (or, at least, Northern industrialism’s) parlous effects on
the climate and its standing in the way of taking effective steps to
avert or mitigate them (Klein 2014). Dystopian prognostications are

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a significant genre of several types of contemporary writing: of fic-

tion, as in Margaret Atwood’s (2013) trilogy Oryx and Crake, The
Year of the Flood and MaddAddam; of popularized scholarly works
as in Ronald Wright’s (2004) A Short History of Progress; of strictly
academic writing as in Garry Potter’s (2010b) Dystopia; and of truly
inspired journalism such as that of Chris Hedges (2016b) and John
Pilger (2016).
In matters criminological, the UN International Law Commission
has been moving to criminalize what is now called “ecocide” (Hart
2011), while “green criminology” has appeared on the scene (South
and Brisman 2013). In Chapter 11, we touched briefly on “state-
corporate environmental crime.” In a very interesting move, the
resistance to capitalism’s production of global warming is now being
expressed in the language of human rights. In her review of the
book The Right to Be Cold by Canadian Inuit Sheila Watt-Cloutier
(2015), Naomi Klein (2015: R16) summarizes Watt-Cloutier’s argu-
ment as follows:“the failure of the world to act to reduce its emissions
to prevent [the disappearance of the Arctic ice] constitutes a grave
human-rights violation.” Klein likens the case to others brought
against pollution-causing resource extraction. By endangering water
and wildlife, such development violates indigenous hunting and
fishing rights. She continues:

Watt-Cloutier’s innovation was extending this argument, . . . pre-

viously focused on site-specific mines and dams, to the planetary
scale crisis of climate change. . . . [S]he submitted a landmark
petition to the Inter-American Commission on Human Rights
arguing that, by failing to prevent climate change, the United
States was violating Inuit human rights.
(Klein 2015: R16)

The world in 2016 is facing major threats to the survival of human

civilization, not just from global warming, but also from nuclear
re-armament and the consequent renewed threat of nuclear war, from
a more and more permanent-looking, US-led, Orwellian, terrorist
“War on Terror” (Cohn, M. 2016) and from unprecedented levels of
economic inequality. Actually existing wars, notably the catastrophe
of Syria, but also the disasters in Afghanistan, Iraq, Somalia and else-
where have produced the highest number of refugees and displaced

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persons since World War II, not to mention the growth of armed
resistance in the name of Allah. Globalization’s deleterious effects are
generating huge movements of people from South to North, not just
refugees, but economic migrants and migrant labour, against which
we have been witnessing the unprecedented closing of borders, nota-
bly in some European countries, together with the rise of fascist or
anti-immigrant parties. The US empire continues to flex its mus-
cles both militarily and economically in support of the very global
capitalist system that is now increasingly seen as wrecking the planet.
Russia and China respond in kind. In pursuit of unchecked monetary
gain, through cheap labour and tax havens, a transnational capitalist
class increasingly off-shores both production and profits, thus making
more money from financial transactions than from actually producing
goods. According to Chernomas,

the world’s super-rich have taken advantage of lax tax rules to

siphon off at least $21 trillion, and possibly as much as $32 trillion,
from their home countries and hide it abroad – a sum larger than
the entire American economy . . . The Atlantic also reported the
same month that American non-financial corporations have nearly
$5 trillion sitting on their balance sheets.
(Chernomas 2014: A2, citing a 2012 report in The Guardian)

Turning to Canada, Chernomas writes,“According to Statistics Canada,

private non-financial corporations increased their cash holdings to an
extraordinary $630 billion (or nearly one third of Canada’s GDP) in the
first quarter of this year” (2014: A2).We cited similar data in Chapter 7,
as well as evidence of a growing, peaceful, global resistance movement
(end of section on “Neo-Marxism or Western Marxism”).
In response to the turmoil and resistance generated by its own
military and economic policies and practices, the United States and
its NATO allies fortify their bastions with global co-operation and
co-ordination in intelligence, surveillance, armed forces, military
bases and militarization of policing at all levels. Israel has cornered
for itself a niche market in this complex. Referring to the Palestinians
in the Occupied Territories, Naomi Klein writes,

What Israel has constructed is a system designed to . . . keep work-

ers from working, a network of open holding pens for millions

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of people who have been categorized as surplus humanity . . . In

South Africa, Russia and New Orleans the rich build walls around
themselves. Israel has taken this disposal process a step further: it
has built walls around the dangerous poor.
(Klein 2007: 532)

In War against the People: Israel, the Palestinians and Global Pacification,
Jeff Halper (2015) describes and analyzes in meticulous detail Israel’s
extensive contribution to sophisticated techniques of pacifying and
managing both perceived enemies and the “surplus” people gener-
ated by the global capitalist economy (recall Razack [2008] from
Chapter 11). Treating the Occupied Territories as a laboratory, Israel
and Israeli corporations have become expert in

the integration of militarized systems – including databases track-

ing civilian activity, automated targeting systems, [and] unmanned
drones . . . Halper goes on to show how this method of war is
rapidly globalizing, as the major capitalist powers and corporations
transform militaries, security agencies, and police forces into an
effective instrument of global pacification.
(From the publisher’s blurb for Halper [2015])

It is a quite remarkable book by the anthropologist and head of the

Israeli Committee Against House Demolitions (ICAHD).

A sociology of crime
Professional sociology has always responded to the tenor of the times,
whether in a spirit of positive scientific engagement or puzzled awe
or commitment to radical change or pessimistic undermining of
received truths. All of these attitudes can be found informing, if not
infecting, its approaches to the study of crime, criminality and crimi-
nalization, as I hope this book has demonstrated. Whether aligned
with correctional, interpretative, emancipatory or deconstructive
attitudes towards inquiry, professional sociologists of crime, one must
assume, have thought there was a value in exposing others, above all
university students and their colleagues in the profession, to their
thoughts – that in one way or another, it would be good for them.
And that pedagogical disposition presupposed that, after all, the world

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would carry on and would be better for their work. In his Massey
Lectures, published as A Short History of Progress (2004), mentioned
above, Ronald Wright reviews the fate of a number of former civi-
lizations that rose to prominence and then collapsed, among them
Mesopotamia, the Incas and Easter Island. But in the conclusion to
his book, he points out that whereas each of those collapses gave way
to the rise of another civilization there or somewhere else, if “our”
civilization goes down, there will be none to replace it since “ours”
is global in extent. We are inextricably linked to one another clima-
tologically and economically. As I said at the outset of this chapter,
this does put a chill on the writing of a textbook for undergraduate
students. What good will it do them in the face of such a prospect?
What good will it do you?
To be a little more circumspect about the dystopian predictions,
perhaps it may be conceded that not all humans will be wiped out.
Some pockets of life, perhaps quite large ones, will survive the rising
temperatures, rising waters, violent storms, polluted oceans, deser-
tification, insect infestations, species die-offs and so on. They will
go on living, together, starting again in some sense. And if that is so,
there is no reason to suppose that they won’t (continue to) judge one
another’s conduct, find it wanting and want to sanction it. At just
that point, however, might it not be advantageous for those engaged
in this socializing endeavour to have thought about what they are
doing or are about to do? Were they to reflect on Durkheim’s (1982
[1895]) community of saints, or Comack’s (1985) analysis of race,
class and morality, or Sangster’s (1996) interrogation of conceptions
of women’s sexuality, or Churchill’s (1998) dreadful story of colonial
genocide, would it not give them pause, cause them to think twice?
Might then the chances of not repeating the follies of the past and
present be increased, if just a little? Perhaps “committing sociology”
is just what is required (Coutts 2013).
But then what of “grammatical respecification”? Why did Steve
want so much to radically revise the first edition of this book in a
thoroughly ethnomethodological way? What would be the benefit of
doing that? Certainly the motivation was intellectual in nature. The
idea was to show on what the foundations of professional sociology
rested, that they rested on the sense-making practices of ordinary, eve-
ryday life that everybody used and engaged in, members’ methods of
sociological inquiry. There is certainly a sort of anti-pretentiousness

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involved. Yet, what possible good can come from that for people
struggling to survive, rebuild and maintain some semblance of civi-
lized life? What good is it now for those of us looking out across the
brink, trying to figure out what best to do now? “Garfinkel’s interest
in the specificity and ‘just-whatness’ of actions brackets normative
issues in favour of ‘how does this work’ questions about local social
order.The phenomena described by ethno/CA are neither good nor
bad: they just are” (Dingwall 2000: 901). Similarly, “Sacks did not set
out to study language or conversation but to discover how ordinary
things got done in a recognizably consistent and orderly fashion”
(Dingwall 2000: 893, citing Schegloff 1992a: xvi–xvii). So it is for the
studies of police work, lawyers’ work, jury deliberations and the use
of the convict code by inmates and staff of a halfway house reviewed
and replayed herein. Ethnomethodological studies reveal just how the
phenomena those activities produce, of which they consist, are made
observable and reportable as just what they are.
Furthermore, according to Dingwall (2000: 901), Sacks “once
remarked that a lot of revolutions could go on without ever chang-
ing everyday life very much.” In other words, members’ methods of
sociological inquiry, respecting the rule of practical circumstances to
which they are indexically and reflexively tied, will continue what-
ever. To point this out, however, can hardly be said to make any
practical difference to the task of deciding the fate of the world. It
has no practical purchase on the hard political and ethical choices of
vision, purpose and policy that are required now, if not to avert, then
to mitigate the coming disasters. That is indubitably true. Indeed, in
Wittgenstein’s famous dictum, like philosophy, grammatical respecifi-
cation “leaves everything as it is” (Sharrock and Anderson 1991: 62).
What, then, could be the point?
To be reminded of the interactional accomplishment of social facts,
of how phenomena are constituted as what they observably are as
social things, is to be brought back, perhaps for the first time, to just
what it is to be engaged in an activity as a course of action with
others. Such a realization invites awe at the fact that such socially
organized life exists at all. Wittgenstein is again illuminating beyond
the ordinary.To repeat a passage from Chapter 2, “Not how the world
is, is the mystical, but that it is” (Wittgenstein 2007 [1922]: 6.44,
p. 107). That socially organized life is possible at all is the amazing
thing. That the world is made social is the amazing thing. Moreover,

478
12: CONCLUSION

to the degree that ethnomethodology may be said to have a politics,

that politics is, indeed,

antiadministrative. By this I do not mean that ethnomethodolo-

gists necessarily are hostile to administrators. Instead, the idea is
that no amount of foresight or planning will ever be sufficient to
guarantee the effective realization of administrative schemes. This
lesson applies to reformists no less than to reactionaries.
(Lynch 2008: 728)

The outcome of this insight is at once amazement and a humbling

sense of the down-to-earthness of things. People’s doings in their
smallest particulars are both consequential and inextricably tied to
the life they share with others, from which there is no time out, and
for which it is an essential truth that none of it can be secured by
rule. Things can only be done with what Garfinkel calls the “this’s”
(as quoted in Chapter 2).The result, surely, is awe.What is its import?
It means, I think, that when contemplating the fate of the world,
we should do so in a spirit or attitude of awe or amazement at what
in the most mundane, everyday, prosaic way we produce together
as the ordinary miracle of social life. Noumenon is incarnated in
phenomenon (see also Janik and Toulmin 1973:195). Whatever the
resources at hand – people themselves, their knowledge, experiences
and abilities, the physical infrastructure, the time available, the local
history and geography of their institutional lives together, the events
of the day, the tasks at hand and so on – through the complex logis-
tics of concerted, settinged activities, for another first time, people
together produce the world they must perforce live in.
Ethnomethodological studies remind us of what it is we do
together, and how it is we do it, that makes of what we do social.
It is irremediably tied to the “this’s.” When those of us who wish to
intervene in the conduct of human affairs in pursuit of something
no less than the survival of civilization, do so intervene, we are well
advised never for one moment to forget the mutually accomplished,
here-and-now-occasioned character of what we do in any actual case
(adapted from Eglin 2009: 53–54).

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553
 Index

Page numbers in italics refer 156, 158, 161, 265, 273, amplification of crime
to boxed features. 310, 312 166–70
administration of objectivity Angus, Ian 473
(dis)ability 31, 33, 242, 256, 223–5 anomie see Durkheim;
405 administrative criminology Merton
aboriginal people 244, 278, 42–5, 265; and statistical Arabs 354, 440–41
326–7, 354, 368, 379, correctionalism 46–51; Atkinson, J. Maxwell 155
385; Aboriginal Justice see also correctional attitude: common-sense 14;
Inquiry of Manitoba criminology ethnomethodology xi–xii;
359–61; Australian Afghanistan 435–6, 436, 474 of everyday life 21, 77,
433, 443–50, 457, 463, African-Americans: civil 210; natural 21, 46, 275;
468; Canadian 65, rights movement 242; scientific 14, 46, 276;
355, 357–8, 375, 456–7, contemporary experience theoretic 210
458–9; contemporary of racist law enforcement Atwood, Margaret 474
experience 359–62; 362–7; criminalization of Austin, John L. 120, 194
genocide in the Americas 372; history 369; studies
434, 443, 450–68, 477; 242; Tuskegee experiment Bailey, Moya: “misogynoir”
missing and murdered 456; see also “Black Lives 394
aboriginal/indigenous Matter”; “Driving While battered women: battered
women xi, 2, 65, 354; Black”; slavery wife defence 138, 139;
Royal Commission African-Canadians: battered wife syndrome
on (RCAP) 361, 455, contemporary experience 138; charging practices
456; see also Truth of racist law enforcement 60–1; movement 139;
and Reconciliation 355–9; see also “Black shelters 4, 106; social
Commission of Canada Lives Matter”; “Driving construction of the wife
abortion 3, 138, 334; see also While Black”; slavery beating problem 138–41,
Petchesky Althusser, Louis 258 145; see also Loseke
actor’s point of view 118, American Sociological Becker, Howard S.:
173, 194 Association (ASA) 52, 76, becoming a marijuana
administration (government, 103–4 user 109, 167;
public, social, state) 33, 46, Amnesty International: contradiction in model of
51, 58, 62, 72, 74, 79–81; reports on racism in the types of deviant behaviour
colonial 444, 467–9 US criminal justice system 154–5, 160, 169, 189–91,
administration of justice 95, 362–4, 375 229, 231; labelling theory

554
INDEX

of deviance 122–3; Canadian Centre for Justice 264; see also crime,
Marihuana Tax Act 128; Statistics (CCJS) 50, 63–6 state-organized
moral entrepreneur 124, Canadian narcotics Chernomas, Robert 475
128; resort to quantitative legislation 129–36, 262; Chicago School of
measurement 155; values see also Comack; Small Sociology 55, 56, 153
133; see also Pollner capitalism 247–313, 335; child abuse 9, 137;
Bell, Daniel 59 contradictions of 254, construction of 127, 128,
Bentham, Jeremy: classical 257, 258, 300; corporate 138, 143, 144
criminology 294; 319–24; entrepreneurial Chinese: consorting with
panopticon 56, 406 321; and global warming men 418; Exclusion Act
Berger, Peter L. 41, 84–5, 261, 473–4; and 358; gangs 423; opium
177; and Luckmann 122 imperialism 438; industrial 129–32, 267–72, 448;
Best, Joel: “contextual” versus 247, 253, 269, 275, 313; police stops of male 356;
“strict” constructionism inequality endemic to “question” 269–71, 369
143; leading figure in 250; mercantile 465; Chomsky, Noam 80, 242,
constructionist studies neoliberal 260, 299; 247, 255, 277, 280–1, 436,
127 post-industrial 375–6; and 438, 462
Bittner, Egon 66–8, 79, 161, racism 369, 373; a system Christie, Nils: genocide 376;
232, 272, 306; the police of forced labour 249, 260; growth of imprisonment
on skid row 211–15 a totalizing process 256; 280, 282, 366; gulag 366;
“Black Lives Matter” 3, 353, welfare state 260 surplus population 278
372 carceral archipelago 404 Churchill, Ward see
Blaut, James M. 438, 450, career: criminal 182, 185; aboriginal peoples:
467 delinquent 176; deviant genocide in the Americas
Blumberg, Abraham 178–81 166; Matza’s steps 186; Cicourel, Aaron V.:
Blumer, Herbert: core moral 35, 183; of a statistic ambivalence 154; juvenile
theoretical premises 70, 145; of a suspect’s justice 174, 204; see also
151–2; influence of Mead statement 204 Kitsuse
120,156; sociological Carlen, Pat: on women’s claims-making 31, 32, 33,
analysis and the imprisonment 337–9, 348 124–49
“variable” 155; symbolic cell phone 1, 372, 381, 409, class 31, 32, 33, 61, 156,
interactionism 116, 122, 410 247–313; analysis 255;
126 Central Intelligence Agency conflict 262, 266–7,
Bogen, David 11, 13, 15, (CIA) 2, 435 270–1, 299; race and
143–9, 191, 202 Center for Research on gender 241–5, 261,
Bottomley, A. Keith 51–2, Criminal Justice 263, 270; 282–3, 374, 392–3, 420,
276 see also policing the slave 425; struggle 242, 255,
Box, Steven 53–4, 92, 94, economy 260, 291, 439; underclass
97–8, 155, 184–8, 284–5, chain of custody 223–5 276–7, 331, 334, 365,
299, 335–6 Chambliss, William 155; 376; see also criminal
Brexit 248, 250, 277 early 134; great Marxist classes; dangerous classes;
“broken windows” theory sociologist of crime 13; grammar of Marxist
56 political economy of criminology; sentencing
Brownmiller, Susan 328, 330 opium and heroin 268; classical criminology 294
Butler, Judith: “performative” protection of property Clemmer, Donald 183–4,
conception of gender and personal security 232
identity 395 273; race and the War cocaine 129, 131–4, 147,
Button, Graham 349; see also on Drugs 365, 365–6; 272, 435; crack 2, 129;
Sharrock structural contradictions epidemic 144

555
 INDEX

Cohen, Stanley 128, 155, 201–3, 204–5, 215–21, members’ knowledge of

166, 288–9, 293, 298 222, 304 crime
Colburn, Kenneth 86, 87; convict code 182–6, 478; crimes against humanity 9,
fistfight in ice hockey women inmates 340; 435
101–3, 104, 108–9 see also Wieder Crime Against Peace 435
Coleman, Wil see Sharrock; Cook, Shirley: see Small, crime prevention 397;
see also dope Shirley J. agencies 414; councils 4;
colonialism 439, 441, 455, correctional criminology situational 414
460, 467 32, 43–5, 46, 51–7, 80–1, criminal behaviour 32,
Comack, A. Elizabeth: 86, 90, 121, 131, 275, 326, 51–3, 74–7, 94, 121,
defence of feminist 385; form of theorizing 131, 153, 159, 173, 183,
standpoint theory 349; in 74–9; grammar of 275, 313; biological and
origins of Canada’s drug correctionalism 57–81 psychological theories of
laws 134, 262, 266–72, Coulter, Jeff 17–19, 21, 31, 53–5; sociological theories
310, 312, 369, 424, 477; 120, 142, 147, 191, 201 of 55–7
structural Marxist account Coulthard, Glen S. 261, 439 criminal classes 275–6
263 Cox, Oliver C.: caste, class criminal code 79–80, 273,
Commission on Systemic and race 368–9 275, 281, 314, 355;
Racism in the Ontario craving for generality 13, 19, Canadian 273, 285, 453
Criminal Justice System 62, 143 criminal law 84–88, 123–5,
357, 381 Cressey, Donald R. 12, 52, 133, 141, 208, 249, 253;
common-sense knowledge 171–2, 185 British 445, 448; history
of social structures 18, crime: and the changing of of 274; origins of 125–8,
208, 210, 391 moral boundaries 98–101; 264
Communist Manifesto 247, and the clarification of criminal: official 326–7;
248, 254, 257, 438 moral boundaries 97–8; typical 176, 244
Comte, Auguste 42–3, 254 a contested category 6; criminalization 80; in
conflict 255–6, 267; corporate 9, 264, 286, capitalist society 249; to
feminist- 349; Marxian 434; domestic 9, 434; divide-and-rule 266–72;
252–3; racial 129, 266, environmental 415, of indigenous peoples
268, 271, 272, 368; status 435, 474; funnel and 466; moments of 33–4,
129, 266; structural net 158–9; international 70, 123, 159, 188, 205;
conflict perspective xiii, 250, 435–7; and the as progenitor of social
155, 159, 259, 310, 369; maintenance of moral problems 134–6; site of
theory 115, 134, 153, 156, boundaries 92–7; of 32–3; see also abortion;
319; value- 156; see also poverty 327; problem 9, African-Americans;
class 44, 126, 146, 266, 326, Merry; Pantazis; women
consensus: normative 87; 434; state-corporate 435; criminogenic situation
structural consensus state-organized 434–5; 413–14
perspective 85, 87, 88, 97, street 9, 265, 273–4, 326, critical criminology 155,
135, 155, 168, 262, 289, 434; war 6, 8, 9, 435–6; 261–2
310; see also functionalism war on 279, 312; waves critical discourse analysis
Constructing Crime 12, 144 1, 9, 299; white-collar (CDA) 398, 421–3
constructivism 141 9, 128, 164, 171, 285, Croall, Hazel 33, 34
contingencies 35, 61, 69, 77, 434; violent 3, 49, 50, 90, Cuff et al.: Derrida and
143, 205, 207, 225, 306 244, 362, 377, 438, 450; deconstruction 400–2;
control theory 56 youth or juvenile 9, 50; emancipatory sociology
conversation analysis (CA) see also amplification of and its three phases
xii, 20, 30, 32, 71, 117, crime; functions of crime; 243, 317–18, 326, 385,

556
INDEX

394; Foucault 402, différance 400 normality and necessity

405–8; Marxism 254; Dijk, Teun A. van see critical of crime 91–101, 336;
postcolonialism 437, discourse analysis official statistics 121;
439–41; postmodern Dingwall, Robert 478 social facts 72, 88, 221;
feminism and queer discipline and mystification Suicide 12, 44, 57, 89;
theory 394–6; the interpretation of penal value-consensus 409; on
outstanding introduction change 289; see also women 318, 329; see also
to sociology 30 Foucault structuralism
Curtis, Bruce 89 discourse 31, 32, 417–18, dystopia 473–4, 477
440; in the criminal
dangerous classes: 376–7, justice system 307; on “ecocide” 474
408; policing the 272–82; discourse 443–50; of ecological fallacy 89
punishing the 287–301 everyday life 192, 340; economics 397; neo-classical
Daschuk, James 455 hegemonic heterosexual 414
Davis, Kingsley: 396; penal 337; populist Edwards, Derek 204
functionalism 103–4, 141; 431; post-als 393–5; Edwards, Susan 60, 140, 325,
prostitution 101 see also critical discourse 330
Davis, Mike: explaining the analysis; Foucault; Eglin, Peter xiii, 5, 7, 18, 50,
Los Angeles riots 369–72 postcolonialism 62, 206, 380, 445–6;
de las Casas, Bartolomé 464 DNA fingerprinting see see also Montreal Massacre
death penalty: race and 362, Lynch emancipatory theory xiii,
375 documentary method of 326, 425, 437; inclusionist
decarceration 298 interpretation 206, 306 phase 243; separationist
deconstruction 141, 392, dope: cultural 116–17, 147, phase 243; transgressive
401; courtroom 222–3; 200; judgmental 116, 147; phase 243–4, 394–6;
see also Cuff et al media 117, 309; passive see also sociology
defining the situation 32, 117, 309; philosophical Emerson, Robert M.
151–95 117, 147; procedural 117; 165 170–1; excuses,
DeKeseredy, Walter S. 11–12 psychological 116, 147; justifications and typical
delinquent: meaning reality 117, 147, 193 delinquencies in juvenile
“confirmed criminal” 408 drinking and driving 3, 5, 6, court 173–7
demand: characteristics 31, 7, 101, 128, 149, 336 Endicott, Shirley 134; see also
58, 178; conditions 178, “Driving While Black” Small, Shirley J.
212 (DWB) 355–6 Engels, Friedrich 48, 247,
Demerson,Velma: Incorrigible drones 125, 281, 476 248, 253, 254, 257, 258,
418 drug problem 126; 266
Derrida, Jacques 392, 395, constructing the 128–36, England, Paula 76–7
399–401, 427–9, 430, 444; 143 Enlightenment 41–2, 45,
see also Cuff et al Dunbar-Ortiz, Roxanne 443 289, 292; undermining of
deviance: societal reaction to Durkheim, Émile 45, 78, 391–402, 403
94, 155; sociology of 161, 104, 122, 125, 168, entrepreneur: bureaucratic
192; see also Lemert 242, 264, 438; anomie 134; political 134;
deviant behaviour 55, 122, 43, 55; community professional 134, 141, 266;
154, 169, 192, 233; types of saints 94, 477; programme 140; see also
of 160, 189–91, 229; functionalist approach Becker
see also Becker 86, 91; identities 385; Ericson, Richard V. and
deviant: process of becoming influence on Foucault Patricia Baranek 180–81
168–71 408, 430; mechanical and Erikson, Kai, T. 86, 168,
dialectic 19, 264, 309, 323 organic solidarity 31, 87; 187; see also crime and

557
 INDEX

the clarification of moral Ferraro, Kathleen J. 60, 141 homicide 374–5; the rule
boundaries “Fifth Freedom” 438 of practical circumstances
ethnic cleansing 457 Foucault, Michel 9, 63, 92, 206–9, 478; Studies in
ethnomethodology xi–xiii, 258, 288, 294; disciplinary Ethnomethodology 66,
18, 23, 30, 32, 121, 155, power 294, 403–9; 116, 198, 208; studies
192, 198–238, 317, 324, Discipline and Punish of the routine grounds
425; antiadministrative 56–7, 398, 403–9, 410, of everyday activities
politics of 72, 479; 449; discourse 397, 420, 427–8; the “this’s” 77, 479;
and crime 71, 202–5; 421–2; episteme 402; worldwide social science
compared to symbolic governmentality 57, movement 42; see also
interactionism 151, 158, 410–15; and the dope
173, 202; diversity of “homosexual” 395–6; Garland, David 13, 44, 58,
200–2; “interpretation” knowledges 411, 413, 397–8, 409, 410–15, 426,
unfortunate in relation 415, 430, 449; power 430–1
to 121; An Invitation to 397–431; power/ gay–straight binary see
Ethnomethodology 23; knowledge 33, 403, 405; homosexual–heterosexual
Manchester School of subjectification 409, binary
120, 341; mislabelled as 410, 415; technologies gender xiii, 19, 31, 32, 33,
“constructionist” 142; of practice 426; see also 48–9, 76, 80, 106, 108,
and power 425–6; see also King and McHoul; 242–3, 244, 256, 265, 283,
documentary method of poststructuralism 316–51, 379, 392, 416–17,
interpretation; Garfinkel Francis, David 20, 23–30, 437; categories 245, 394;
“European Miracle” see West 83n5, 145–6, 192, 199 in feminist criminology,
Europeans 275, 353, 358; Frankfurt School 255, 408 grammar of 340–7; in
conquest 436–70; project functionalism 30, 45, 86–8, plea-bargaining 345–6; as
437–8 133, 200; consensus a principle of inquiry 318;
“excited delirium syndrome” 116, 125–6, 319; in see also Butler; Maynard;
55 Foucault 408; grammar of patriarchy; sentencing;
Eysenck, Hans J. 53–4 103–8; Marxist 251, 262; Wowk
structural- 241; see also genocide 435, 443–68; in
Fanon, Frantz 439 Parsons; violence in ice the Americas 450–68,
feminism 30, 243, 256, hockey 477; in Canada 453–60;
394, 437; academic 347; functions of crime 88–101, conditional 376; cultural
empiricist 326, 328, 310–13; see also prison; 453; see also Willhelm
348; first-wave 316; punishment Giallombardo, Rose 339
fourth-wave 316; Marxist Giddens, Anthony 42, 43, 88,
320, 324; maternal 136, Gabor, Thomas 5, 75 252, 309, 425
316; postmodern 326, Galeano, Eduardo 443 Giroux, Susan Searls 376
349, 394–5; second-wave Garfinkel, Harold 11, 16, global warming see
316, 317; standpoint 326; 19–21, 22, 61, 78, 116–17, capitalism
third-wave 316; women’s 120, 122, 141, 198–200, globalization 247, 250, 281,
movement and 316–17 229, 341, 391, 427, 478–9; 475; Marx and Engels on
feminist criminology documentary method 248
325–39, 347; see also of interpretation 306; Goffman, Erving 33, 35,
gender “good” organizational 179, 183, 187, 203, 232,
feminist sociological analysis reasons for “bad” clinic 324
319–25 records” 66–9, 232; jurors’ Ghomeshi, Jian 385
feminist theory 32, 317–19 decision-making 201, 205, grammatical explication of
feminization of poverty 327 209–10, 221; race and social action 19–21

558
INDEX

grammatical respecification Hester, Stephen xi–xv, 18, Indians 376, 379–80, 454,
xii, 30, 424, 477–8 20, 23–30, 192, 198, 199, 456, 458–9, 461, 462,
Gramsci, Antonio: hegemony 201, 206, 380, 386, 445–6; 464–6; massacres of
258, 279 see also Montreal Massacre American 450, 452;
green criminology 32, 250, heterosexual(ity): men 421; see also aboriginal peoples;
474 relationships 184; see also Sand Creek massacre
Green, Melvin: discourse inequality 44; economic 250,
criminalization of drugs Hispanics 144, 186, 280, 358, 260, 278, 373, 474;
changing public morality 363, 365 in sentencing 283–5
135 historical relativism 464 international law 435, 446,
Gusfield, Joseph 7, 62, 95, Homans, George 12, 104, 464; UN International
101, 128, 140, 336 141 Law Commission 474
Homolka, Karla 11, 327 inter(-)sectionality 31, 256
Hacking, Ian: Kant the great homosexual–heterosexual intertextuality 401, 424
pioneer of construction binary 396; see also Iran-Contra congressional
120; making up people discourse hearings 225–8
412 homosexual(ity) 105, 128, Iraq 306, 436, 474
Hagan, John: corporate 332–4, 340, 379, 395, 430 Islamic State 406
advantage 283; focus human/nonhuman status Islamophobia 354
of narcotics legislation 245, 256, 465 Israel and the Palestinians 8,
on disreputable poor Hunt, Jennifer: police use 267, 441, 463, 475–6;
276; labelling theory of “normal force” 161–6, see also Palestine
as conflict theory 156; 193, 194, 212, 364
narcotic addicts 130; Hussein, Saddam 55, 306 Jacobs, James B. 186, 232
offender-related factors Husserl, Edmund 120, 399 Jayyusi, Lena 192, 441
in sentencing 282; rate at Hutchinson et al.: Derrida Jefferson, Gail 202, 217
which police lay criminal 400–1, 428; difference Jenkins, Philip 127, 129;
charges 214 between interpreting “contextual” versus
Hale, Sylvia 325 and grasping a rule 121; “strict” constructionism
Halkowski, Timothy see role harmless policy studies 64; 143
as an interactional device no such thing as a social Jews 105, 130, 359, 461
Hall, Stuart 421 science 74; postmodernists Jones, El 358
Halper, Jeff 439, 476 as disappointed realists 428 jury deliberations 205,
Harper, Elijah 386 478; see also Garfinkel;
Harper, J. J. 360 identity politics 243–4, 256, Pomerantz and Sanders
Harper, Canadian Prime 256, 379, 395 juvenile delinquency 43,
Minister Stephen xi, 1, 2, Idle No More 261, 457 128; lower-class 56; see also
362, 459 Ignatieff, Michael 287, 290, crime
Harper, Rinelle 377, 385–6 294–6
Hedges, Chris 376–7, 474 imperialism 292, 435–7, Kant, Immanuel 120, 465
Hegel, Georg Wilhelm 438–41, 468; see also Kappeler,Victor E. and
Friedrich 399 Schegloff Gary Potter 12; crime
Henry, Frances 422; imprisonment 282, 284; mythology 144
and Carol Tator 398; comparing women’s and Katz, Jack 273
racialization of crime in men’s 339–40; impact King, D. A. and Alec W.
Toronto’s print media of 186–8; punishing McHoul: schooling as
421–4 the dangerous classes technique of power 411;
Henry, Stuart 53 287–301; see also Christie; discursive production of
Hepburn, John R. 311–12 symbolic interactionism the Queensland Aborigine

559
 INDEX

as subject 433, 443–50; Leonard, Eileen B. 274, 367 Marxist sociology 13, 35,
see also postcolonialism Lévi-Strauss, Claude see 242–3, 250–1, 255, 257,
King, Mackenzie: Deputy structural anthropology 261–2, 282; structures of
Minister of Labour 267, Lewis, Stephen 356 dominance 256, 312, 329
271; moral entrepreneur Lombroso, Cesare 53–4 Marxist theory of the state:
about drugs 131–2, 266 Los Angeles riots see Davis instrumentalist versus
King, Rodney 356, 363–4 Los, Maria 332–3 structuralist views 257–9,
Kitsuse, John I.: official Loseke, Donileen 127; 263–5, 266, 269, 282–3,
statistics (with Cicourel) “experts” on battered 289–90, 294–5, 299–300,
154; see also Spector, women (with Cahill) 141 310
Malcolm and John I. Louch, A. R.: misconstruing Matoesian, Gregory M.:
Kitsuse of moral reasoning as on “detailing-to-death” in
Klein, John F. 179 causal hypothesis 110; a rape trial 346–7
Klein, Naomi 261, 474, social integration 109 Matza, David 51, 62, 115,
475–6 Lynch, Michael E. 11, 13, 116; ban and transparency,
knowledge: common- 15, 19, 20, 21, 72, 73, apprehension and labelling
sense and scientific 118, 120, 141–2, 146, 169–72; incarceration and
10–15; of the layperson 147, 148, 191, 199, post-prison stigmatization
and of the professional 200, 202, 204, 205, 186–8
12–15; protected against 421, 479; determining Maybee, Janet 95–6
induction 349–51; see also crime through DNA Maynard, Douglas W. 204,
commonsense knowledge fingerprinting 221–5 302; use of defendants’
of social structures; attributes in plea-
members’ knowledge of Macdonald, Prime Minister bargaining 305–7; use of
crime John A.: ethnic cleansing gender in plea-bargaining
Komagata Maru 130 455, 456; national policy 345–6, 348; use of race in
Komter, Martha L. 204 270 plea-bargaining 382–4
McNamara, Robert S.80 Mead, George Herbert 115,
labelling theory 166–70; “malignant narcissism” 55 120, 156
grammar of 189–94 Manning, Peter K.: on Egon Meat is Murder 1, 3, 47, 124,
language: game 19, 21, 192, Bittner 215 148, 398, 400
426–8; goes on holiday 19, Marihuana Tax Act 128 media 44, 64, 76, 104, 127,
30, 58, 143; mastery of marijuana 1, 3, 4, 65, 109–10, 167, 205, 255, 259, 265,
natural 20, 469; ordinary 129–134, 136, 147, 167–8, 367, 371, 377; elite 253;
30, 78, 191, 194, 302, 425; 172, 192, 279, 334 mass 139–40, 253, 270;
philosophy 19, 116, 120; Marshall, Donald 207 news 23, 33, 50, 59, 123,
region of 9 Marx, Karl 35, 241, 242–3, 144, 326; social 50, 317,
Latinos 365, 370–1 245, 254, 264, 309, 377, 359; studies 117, 309;
Lazarsfeld, Paul 12, 48 405, 408, 438–9; on the see also dope; Henry
Lee, John R. E. 341 criminal 100–1; theory of and Tator; membership
left idealism 155, 263, 265 society 251–4 categorization analysis;
left realism 155, 263, 265, Marxism 30, 243, 250–2, Montreal Massacre
310 263, 317, 425, 437; Meehan, Albert J. 69–71,
Lemert, Edwin M.: neo- or Western 254–9; 145, 206, 382
on de-criminalizing structural 258, 259, 422; Melossi, Dario and Massimo
marijuana 167–8; labelling see also capitalism Pavarini: development of
theory 168; primary and Marxist criminology 80, the prison 287, 289, 293
secondary deviation 250–1, 262–301, 311, 326; members’ knowledge of
169 grammar of 301–10 crime 9, 10–15

560
INDEX

members’ methods Mosby, Ian 456–7, 457, Perspectives in Sociology see

20; of making sense 458–60 Cuff et al.
199; of membership Mothers Against Drunk Petchesky, Rosalind P.:
categorization 22; of Driving (MADD) 4, 128 patriarchy and the
practical reasoning 32, Murphy, Emily: criminalization of
202, 206; of sociological “bright-browed races of abortion 326–30
inquiry xiii, 16–19, 24, 35, the world” 130; marijuana Pfohl, Stephen J.: “discovery”
385, 469, 477, 478 131–2; maternal feminist of child abuse 127, 144
membership categorization 137 phenomenology 116, 118,
analysis (MCA) xii, 19, Muslims 267, 354, 378, 440 120, 173, 229; linguistic
201, 215, 341, 448; and 120, 259, 399
the identification of crime neo(-)colonialism 242–3, Pistorius, Oscar 3, 73
21–30; MIR Membership 256, 283, 326, 367; Platt, Anthony M. 155
Categorization Device accounts 374–5 plea-bargaining 158, 179–82,
245, 245–6, 302, 347, 9/11 8, 273, 281, 435 204, 302, 371; see also
385–6; see also Pomerantz Maynard
and Sanders; race; Wowk offences: against the person Plummer, Ken 168–9
mental illness 6, 35, 232, 80, 273; against property police: brutality 193, 362,
324, 326, 387, 395; see also 80, 273; against public 363; political 278; see also
psychiatry order 79, 80, 273; known Bittner; Hunt; torture;
Merry, Sally Engle: to the police 59, 74 Watson
criminalization of official crime statistics see policing: militarization
everyday life 433, 442–3, state of 260, 475; the slave
469–70 “Oka Crisis” 445, 445 economy 372–3; see also
Merton, Robert K. 12, 89, opium 129–34, 137, 147, dangerous classes
101, 104; anomie 55–6, 269–72, 435, 447–8; wars political economy 247, 251,
264 267–8 267, 289–91, 325, 417; of
Meston, Archibald 446–9, Osborne, Helen Betty capitalism 265, 297, 321;
468–70 359–60, 470 of opium and heroin 268;
Mill, John Stuart 42, 254 of the ranching industry
Mills, C. Wright: abstracted Palestine 354, 441, 463 267
empiricism 48; grand Panama Papers 287 politics or crime? 445
theory 86; power elite panopticon see Bentham Pollner, Melvin: critique
257; vocabulary of Pantazis, Christina: of Becker 160, 169,
motives 161, 171–2 criminalization of female 189–92, 195; mundane
Monchalin, Lisa 443 poverty 327–8, 348 judicial reasoning 231–2;
Montreal Massacre 19, 21, parole 188, 281, 301, 366 mundane reason in court
109, 143, 380; Eglin and Parsons, Talcott 89, 118, 122, 229–30; resolving reality
Hester, categories and 438; normative consensus disjunctures in traffic
consequences of 104–8 115, 409; structural court 230
moral fault without censure functionalist AGIL model Polsky, Ned: pornography
7, 336; see also Gusfield of the social system 101
moral panic 128, 129, 155, 86–8, 102, 104, 241, 257, Pomerantz, Anita and
167, 422 319–20 Robert E. Sanders: the
moral regulation 55, 403, partner-killing 326–7 use of MCA in a jury
407; see also Sangster patriarchy 140, 256, 283, deliberation 210–11
moral statisticians 42, 88 317, 330, 333, 334, 335, population: control 273, 276,
Morrison, Revd. William 344, 347, 349, 420, 441; 329; prison 186, 188, 280,
Douglas 45 see also Petchesky 284, 298, 360, 366, 457;

561
 INDEX

problem 80, 277, 285, prostitution 1, 6, 101, 128, crisis centres 4; marital
299, 312; surplus 129, 278, 136–8, 326–7, 331–2, 336, 125; unfounding of 59;
280–1, 299, 368, 376–7 341, 380 see also Matoesian; sexual
positivistic (inquiry, Protestant Ethic 90, 438 assault
methodology, social psychiatry 174, 312, 407; rational choice theory 56,
science) 19, 48, 51, 61, anti- 241; clinic 66–8; 413
116, 121, 131, 153–5, illness 68; reports 178 Razack, Sherene H. 439
155–6, 232, 288, 349, 392; punishment: functional value realism: commonsense 154;
see also sociology of 93–4, 96; capital 3, 125 naïve 147, 191; see also
postcolonialism xiii, 30, 32, Hutchinson et al.; left
243, 368, 377, 394, 396, queer 379; studies 349; realism
433, 437–41, 468–70; theory 243, 394–6, 437 reality: disjunctures 191;
accounts 375–7; analysis Quinney, Richard 134, 155; members’ reality analysis
442, 455; grammar of paradigm case of Marxist 192–4; social construction
discourse in poststructural instrumentalism 263; of 122, 147, 192; see also
450, 468–70 special conception of Pollner
postmodern criminology 403 society 308 Reiman, Jeffrey 248–9, 249,
postmodernism xiii, 30, 32, 273; and Paul Leighton
319, 398, 402, 424–9, 469; race 353–86; critical race 244, 377
see also power theory 368, 385, 421; Reinarman, Craig: moral
postmodernity 402 emancipation 384–5; panic over crack cocaine
poststructural criminology grammar of 377–84; (with Levine) 129, 134,
403 membership categories 272; see also Mothers
poststructuralism xiii, 30, 32, 379–81; problem 271; Against Drunk Driving
63, 141, 258, 259, 265, profiling 356, 382; Reiner, Robert: on Egon
319, 392, 397, 398–403, relevance of place 381–2; Bittner 214–15
424–9, 439, 463, 469; science 54; studies 30, 32, reserve 444, 445, 447–9, 455,
see also postcolonialism; 242; see also Chamblis; 456–8, 460, 466, 468
power class; Cox; death penalty; reserve army of unemployed
Potter, Garry 474 Garfinkel; Maynard; labour 369
Poulantzas, Nicos 258 Murphy; sentencing residential schools 354,
Poussaint, Alvin Dr. 380–1, racialization 385; of crime 454–5, 456, 457, 459
388n5 355, 398; see also Henry rights: civil and political 357;
power 397–431; grammar of and Tator human 41, 277, 283, 306,
power in poststructuralism racism 85, 129, 256, 353, 381, 435–7, 446, 457, 474;
and postmodernism 359, 367, 369, 373, property 277; revolutions
424–9; see also Foucault 375, 378, 381, 450, 90; to self-government
practical reasoning 18, 24, 460–5, 468; systemic 361; see also sociology;
29, 31, 32, 77–8, 198–238, 354, 374; white 385; see Universal Declaration of
391; see also members’ also aboriginal people, Human Rights
methods African-Americans, risk: management 44,
pragmatism 116, 120 African-Canadians; 412–13; perceived 213;
prison: crisis in the UK Commission on Systemic society 57
297–301; functions of Racism in the Ontario Rock, Paul 56
296–7; subculture 232; Criminal Justice System role: as an interactional
see also Melossi and Radzinowicz, Leon 52, 276, device 225–8; role-taking
Pavarini; population; 378 157, 160, 194; as a set of
Rusche and Kirchheimer; rape 128, 138, 165, 223, 274, expectations about how
symbolic interactionism 326–7, 329, 419, 441, 444; to act 87, 102, 154

562
INDEX

Roshier, Bob 94, 96–7 118–20, 120, 122, 206, situations of choice
routine activities theory 56, 229, 384 (with Watson) 210;
413 science and technology de-criminalizing drugs
Ruiz, Elena 399 studies 63, 120, 201 136; deviant activities
rule 19, 25, 28–9, 94, 108, security state 260, 280 75; Durkheim and the
118–19, 121–6, 128, Searle, John 145–6 necessity of crime 93, 96,
202, 209–10, 233, 479; self-report and victimization 125; functional analysis
-breaking behaviour 154, surveys 62, 74 108; Garfinkel on legal
189–90; of the game semiology 41, 422 concept of guilt 210–11;
101–3; -governed versus sentencing 178–81, 348; and Manchester School of
-using 200–1; -makers class 282–7; and gender Ethnomethodology
296; of law 207, 311, 335–6; and race 366, 374 120, 341; members’
373, 381, 470; of the sequential analysis (SA) see ethnographic work
fathers 317, 328; see also conversation analysis (with Turner) 17; power
Garfinkel; Hutchinson sex 137, 241, 245, 282, 303, (with Button) 425–7;
et al. 305, 326, 332, 340, 357, social construction’s
Rusche, Georg and Otto 381, 394; interracial 131; debunking role (with
Kirchheimer: punishment life 336; -role behaviour Coleman) 144; social
and social structure 335; see also Wowk problems versus
287–95 sexism 105, 137, 256, 317, sociological problems 44;
Russia 254, 436, 475, 476 325 sociology of education,
Ryle, Gilbert 10, 120 sexual: abuse 138, 455, 456; adapted from (with
active women 442; assault Button) 348; sociology’s
Sacks, Harvey 11, 12, 78, 1, 3, 4, 49, 138, 237, 317, misbegotten dualisms
106–7, 141, 174, 304, 384, 330–5, 336, 347, 351–2, (with Watson) 146;
478; order at all points 359; categories 437; summarizing Lemert 168;
199; see also knowledge deviants 164; harassment what being in control
protected against 138, 317; identity 317, means 283; Wittgenstein
induction; membership 396; mores 311; offences (with Anderson) 478;
categorization analysis 90, 273, 331; offenders’ see also dope
(MCA); sequential analysis accounts 173; orientation Shawn, Wallace xiv, 433, 450,
(SA) 31, 33, 242, 255, 355, 379; 470
Said, Edward W. 439–41 partner 10; politics 341, Sim, Joe 267, 297–300
Sales, William Jr. 369 344–5; promiscuity 76, “Sixties Scoop” 457
Sand Creek massacre 453, 129; psychopathy 128; slavery 125, 302, 328, 376,
461 stereotypes 136; violence 442, 448; African 292,
Sanders, Bernie 248, 250, 261 385 460, 467; black 358,
Sangster, Joan: moral sexuality 328–30, 331, 442; 359, 368; galley 292;
regulation of girls’/ History of 403; see also indigenous 451–2, 465,
women’s sexuality 398, moral regulation of 467; mode of production
415–21, 477 women’s sexuality 373; rebellion 369; wage
Saussure, Ferdinand de 259, Shapiro, Michael 284 255, 275, 302; white 137;
398–400 Sharrock, W. W.: common- see also policing the slave
Scalping Proclamation 454 sense and scientific economy
Schegloff, Emanuel A. 202; attitudes (with Anderson) Small, Shirley J.: conflict
theoretical imperialism 14–15; common-sense theory 156; development
308 understandings (with of Canadian narcotics
school-to-prison pipeline 96 Button) 15; decision- legislation 129–34, 135,
Schutz, Alfred 13–14, making in commonsense 266, 271

563
 INDEX

Smart, Carol 156, 326, 328, social problems 126–7, Hunt; labelling theory;
335, 348–9 133, 134, 148; critique of plea-bargaining
Smelser, Neil J. 319, 320 Becker 155; value-conflict
Smith, Dorothy E. 20, theory 156 tax havens 250, 287, 475
313, 325, 329, 426, 441; Spitzer, Stephen 311, 312; Taylor, Sandie 53–5
critique of post-als 429, “social dynamite” and techniques of neutralization
469; feminist standpoint “social junk” 277–8 161, 172
theory 324, 325, 429; Spivak, Gayatri 441 television licence evasion see
women, the family and Stamp, Josiah 46, 58, 71 Pantazis
corporate capitalism Stannard, David 450 terrorism 1, 3, 8–9, 273,
319–25 state 46–81; and 354, 406, 446, 462–3;
Snider, D. Laureen 286, crime statistics and anti-terrorism act 8, 273;
310–11, 312, 415; and correctionalism 79–81; international 435; state 6,
West 286; women and meaning and use of 435; threat of 278–81; War
rape 312, 330–5, 349 official crime statistics on Terror 125, 149, 474
social constructionism 30, 33, 58–74; see also texts 393, 400–2, 422, 427;
32, 122–3, 126, 128, 134, administration see also intertextuality
199, 241; grammar of Stawarska, Beata 259, 399 the “this’s” 77, 479
141–7; see also Spector and Stote, Karen 455 Thomas, William I. and
Kitsuse structural: anthropology 259, Dorothy S. 151, 195, 462
social theory 141, 254, 393, 400; determinism 57, 116; Tierney, Kathleen J. see
433; classical 437; see also linguistics 259, 400, 422; battered women
feminist theory theorizing 200; see also Tilley, Nick 53, 56
social work 79, 80, 108, 127, Marxism Tonry, Michael 87: why
139–41, 297, 397, 407, structuralism 259, 398–400 crime rates are falling
411, 414, 417, 419 “subaltern studies” 441 throughout the Western
socialization 16, 184; Sudnow, David 175, 181–2, world 86, 90–1
inadequate 423 204, 306 torture 2, 125, 162, 362,
society 84–110; individual suicide 12, 42, 44, 57, 69, 78, 406, 434; Chicago Police
and 85; modern 405–7; 80, 88–9, 154, 229, 466 362–3
see also postmodernity surveillance 56, 169, 188, transportation 292
sociology 1–35; Canadian 281, 337–9, 371, 382, Travers, Max 203, 346, 347
89; committing xi, 477; 406–9, 444–9, 466, 475; Trump, Donald 237, 248,
emancipatory 242–4, state 8, 260 250, 261, 271, 282
349, 385; “folk” 233; Sutherland, Edwin H. 52, Truth and Reconciliation
functionalist 32, 320; 55–6, 75, 161, 171–2, 434 Commission of Canada
historical 97, 406; human Sykes, Gresham M. 184–5, (TRCC) 65, 354, 453, 455,
rights 42; interpretative 232 456
115–23; lay 14, 21, 36, symbolic interactionism: typification 173, 176, 306,
118, 200, 221; malestream accounts in social action 377, 384
318; positivistic 41–5; (justifications and excuses)
quantitative 12; the two 171–7; content and role unintended consequences
sociologies 15–19; see also of prisoner subcultures 91, 104, 135, 271, 409,
Marxist sociology 183–6; and the courts 438
sociology’s abiding trilogy 170–82; and the police United Nations Charter 435,
241 158–66; and the prison 446
Socrates 87, 99 182–8; and the self 156–8; Universal Declaration of
Spector, Malcolm and John varieties of 153–6; see Human Rights 381, 437,
I. Kitsuse: constructing also Blumer; Emerson; 446

564
INDEX

vagrancy 264, 273, 295, 327, 117–18, 122, 134, 152, women: aboriginal 60–1,
331 154, 242, 256, 349, 408–9, 455; criminalization of
Van Maanen, John 96, 163 426, 430, 438; action 327; emancipation 347;
variable analysis 121, 154, theory 152 experience 105, 318, 394;
155, 156; critique of 349 West(ern) 84; civilization 89; movement 136, 139, 242,
violence against women 9, cultural assumptions 441; 279, 332, 394, 395, 434;
12, 105–8, 126, 128, 326, East/West opposition 440; see also aboriginal people;
434, 466; constructing Europe 467; hemisphere battered women; Carlen;
the problem of 136–41; 468; history 411, 449; and feminism; rape; Sangster;
see also battered women Islam 267; Rise of the 91, Snider; violence against
violence in ice hockey see 437–9, 467; thought 402; women
Colburn triumph of the 438, 450; Woolgar, Steve and Dorothy
world 90–1, 275, 317, 330, Pawluch: ontological
Wacquant, Loic 367 355; see also Europeans; gerrymandering 144–5,
Walker, James W. St. G. 358, imperialism 385,
359 Wieder, D. Lawrence 199, Worrall, Anne 316, 327, 349,
Wallerstein, James S. and 201; telling the convict 350
Clement J. Wyle 5, 75 code 183, 184, 185, 232–6 Wowk, Maria T. 206, 215;
War on Drugs 3, 92, 129, Wilkins, Leslie T. 166 sex and gender in a
149, 279–80, 365; see also Willhelm, Sidney M.: murder interrogation
Chambliss prelude to genocide? 341–5
War on Terror see terrorism 375–7 Wright, Ronald 474, 477
Ward, Samuel Ringgold 358 Williams, Raymond 85, 303
Watson, D. R. (Rod) 24, 26, Wilson, James Q. 273 Young, Jock 44, 52, 155–6,
146, 210, 304, 341, 368–9, Winch, Peter 9, 74, 117–20, 265
374, 379, 388n5; eliciting 120
confessions in murder Wittgenstein, Ludwig 10, 15, Zatz, Marjorie 13, 264
interrogations 206, 19–21, 72, 118, 120, 141, Zimmerman, Don H. 117,
215–21, 229 146, 192, 201, 303, 428, 202, 204
Weber, Max 16, 41, 90, 115, 447, 478 Zinn, Howard 249, 403

565