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Journal of Critical Reviews

ISSN- 2394-5125 Vol 7, Issue 6, 2020

Review Article PROVIDING A FRAMEWORK FOR THE STUDY OF CRITICAL BASED ON CRIMINAL

Amir Mohamad Abedini1, Siamak Jafarzadeh2, Reza Nikkhah Sarnaghi3*, Ashkan Famil Modaberan4

1Master of and Criminology, Department of Law, Faculty Literature and Humanities, Urmia University, Urmia, Iran. 2Assistant Professor and Faculty Member of the Law Faculty, Urmia University, Urmia, Iran. *3Assistant Professor of International Law and Member of the Law Faculty, Urmia University, Urmia, Iran. 4PhD student of Criminal Law and Criminology, Department of Law, Faculty Literature and Humanities, Urmia University, Urmia, Iran.

Received: 12.02.2020 Revised: 10.03.2020 Accepted: 08.04.2020

Abstract Undoubtedly one aspect of changing societies is the attitude that people of all ages have toward the issue of , , justice, and so on. Critical and contradictory criminologist have been exposed to traditional or mainstream criminology in a variety of different ways, while challenging these criminologist from a different perspective due to the ontological, i.e., inequality and discriminatory, structure of society. It has been institutionalized in models such as racial stereotyping, gender discrimination, class inequality and the like, and proposes solutions to reform existing structures and inequalities of society in controlling and combating crime, as well as improving the conditions of the system. The perspective of can be seen as another manifestation of radical and general trends in the field of criminology. This view is based on the basic concepts and long- standing concerns of and , and is discussed from a perspective that can generally be considered as an anti- capitalist position. As many of the challenges facing various criminal justice systems, including in Iran, have emerged, some form of traditional criminological perspective has emerged, and this retreat has been completed at the expense of lessening the scope of criminal justice intervention. Sometimes referred to as the minimization of criminal rights in another language, it has not only influenced the policies and approaches adopted by criminal justice systems, but it has also provided an opportunity for some reformist Institutions to be recognized. It provides a kind of sheer laziness and is inspired by some sort of punishment. The perspective of critical criminology reflects the different concerns of different people in the context of contemporary societies. In general, it can be advocated for the kind of philosophy of libertarianism whose main purpose is the full participation of individuals in society, without resorting to factors such as race, ethnicity, gender, or class. In this paper we provide a framework for the study of critical criminology.

Key Words: Criminology, Critical criminology, Criminal law, Postmodern Criminology.

© 2019 by Advance Scientific Research. This is an open-access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/) DOI: http://dx.doi.org/10.31838/jcr.07.06.168

INTRODUCTION strategic issues, for example in relation to the issue that The Critical criminology's perspective has linked a number of unequal distribution of resources and facilities in society is the specific analytical ideas and trends. The main characteristic of underlying cause of crime among the . However, this view is that it has two opposing positions: first, with much while the fundamental differences between the two of the work in the conventional criminology domain, and approaches in areas such as ideology and ultimate goals second, with many contemporary policy makings in the cannot be ignored, they should be considered as elements that territory of the penal system. In other words, the main have important implications in both field of view and practice. characteristic of this view is that it holds a dissenting position The problem with transparency and the clarity of the term in relation to most conventional criminology literature as well "critical" is due to the blurring of the boundaries between as many contemporary policy developments in the field of liberal and radical analyzes and interventions [3]. criminal justice. Politically, this view has a strong socialist orientation [1]. The central theme of this theory and its In reality, critical criminology, with its obvious influence from emphasis is that is the main and fundamental cause Marxist criminology, views capitalism as an anti-human factor. of crime and its reaction to it. Critical criminology's It supports the liberal philosophy of the participation of all perspective can be seen as another manifestation of the radical peoples in the administration of society, regardless of race, and general trends in the field of criminology. This view rests ethnicity, gender, or class. Critical criminology supports on the foundations of the fundamental concepts and long- animal rights and environmental protection. However, the standing concerns of both Marxism and feminism, and is central theme of this theory is one of the instances of discussed from a perspective that can generally be considered structural inequality as a factor in mass crime. There is no a kind of anti-capitalist stance. It should be noted that many limit in determining instances and inequality. As a matter of authors have used the term critical criminology in a broad fact, anything that is vulnerable to the use of cruel methods, sense of theoretical and political positions. As in some cases, whether human, male, female, animal, environment, black, any criticism of the penal system from any political standpoint white, indigenous, and immigrant, must be protected and dealt was considered to be one of these opinions. Instead of using with as a factor of justice and restored to justice [4]. In this different terms in order to identify a particular analytic paper we provide a framework for the study of critical framework, the theory considers the word "critical" to be criminology. consistent with certain criticisms and considers one [2]. CRITICAL CRIMINOLOGY APPROACHES Proponents of both liberal and radical approaches can demand One aspect of the critical criminology perspective is that it changes to existing criminal justice and criminal justice focuses on the structure of power. Critical criminologists more systems and may share a particular range of conceptual and or less agree that the current functioning of the criminal

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justice system is unfair, biased, and in a way that overrides that counteract the influence of dominant particular groups or classes. Therefore, the lawmakers view languages, that is, languages that affect the lives of populations their task as actually revealing the nature of the underlying affected by alienation (especially members of ethnic power relations [5]. In many cases they find it their duty to minorities, indigenous peoples, women, etc.) [7]. step in and direct the current penal system as it enters into action. The point of view is how the power is gathered within HISTORICAL DEVELOPMENTS IN CRITICAL CRIMINOLOGY the vast territory of the penal system. Within the framework of The Critical Criminology perspective forms part of an the critical criminology perspective, there are a number of important tradition based on political conflict and strife, a different approaches that offer different methods, tradition that seeks to achieve and defend social and human experimental studies, as well as multiple theoretical insights; rights within a variety of social structures that focus on class, however it seems possible to examine and identify the two gendered segregation [2]. The ideology that dominates this general trends in the field of crime literature [6]. Critical view resembles, more than anything, the tradition of ontology intended to examine this view: and its emphasis on the three themes of power relations, , and change, which have been viewed by them as the 1. Structural approach whose focus is on the phenomenon of consequences of a struggle over opportunities and resources. power, as an entity that is rooted within social structures and The purpose of this view is, in fact, the establishment of social manifests itself in the face of institutional action as well as the justice, as well as the importance of the disadvantaged, to have actions of regional influential groups. legal rights and powers, although a new theory, but as a 2. The postmodern approach, which examines power by specific theoretical model in the field of criminology with relying on the concept of language and the ways in which the particular links to both approaches to Marxism and feminism process of knowledge formation shapes human experiences [8]. and at the same time creates a conflict of meaning. To some The early developments of critical criminology began in authors, the differences between the two approaches are so earnest in the contemporary era, and in the general process of great that they should be treated as separate models of social discipline, with the emergence of the theory of labeling. These research. There are other scholars who have not reached a authors claimed that the combination of two variables labeling definitive conclusion about the gap between these two views and the ability to insert labels had a significant effect on the [7]. label labeled. This is why this major perspective focused its attention on the following two areas: first, the forces and Structural oriented criminology institutions of social reaction, and second, how the crime This view is divided into several branches, but in general it can process is realized in practice within the framework of be said that crime is defined in terms of the concept of professional practice [9]. Against this category of writers, . Structural criminologists emphasize that some leftist critics of believed that analyzing the groups are particularly vulnerable to oppression, such as processes and situations of labeling itself was not enough, and members of the working class, women, ethnic minority groups besides, it was necessary to address the following two issues: a and indigenous peoples. At the heart of the analysis of the study of the structural relationships of power within society structuralize criminology perspective are both the of Second, crime in the context of social relations, state power holders and the weak sections of society [3]. In their institutions and the of advanced capitalist view, crime is a phenomenon associated with pervasive systems [10]. political and economic processes, while also remembering that each of the two different strata of powerless and powerless is At the same time, Marxist scholars have done a great deal to associated with pressures to safeguard and protect state identify this causal underpinning of crime and to show the link power. And the interests of a particular sector are in the global between the dominant institutions of society and the interests context of international trade and the monopolies of of the ruling class. Of course, in the course of these efforts, it transnational corporations [3]. For the powerless, the cause of was sometimes possible to see specific trends that either crime is also a phenomenon that is rooted in the interplay of attempted to give a statistical aspect to the crime or merely two variables: the phenomenon of marginalization (the viewed it economically. In any case, it was true that much of separation from social institutions) and the process of Marxist work ignored or did not fully explain issues such as (or government intervention) [5]. , , etc. This problem was not merely an analytical problem but also a political one [11]. Constructivists believe that confrontation with the offenses of power-holders is possible without the full accountability of all CRIMINAL JUSTICE SYSTEM APPROACHES CRITICAL TO public officials to the people. In addition, as part of the wealth CRIMINAL LAW adjustment process, they emphasize the need for some form of Inspired by some of the suggestions under the Critical wealth transfer from the private sector to state ownership and Criminology Theories, approaches to criminal justice systems consider doing so under community supervision. The view is have gradually been introduced that have called for a case-by- that the penal system should be based on a model of case approach to the criminal justice system with a critical , not on two concepts of retribution and view. Among these approaches are the most prominent, punishment. This view emphasizes that the state should not including , prosecution and suppress repression in pursuit of its goals and interests [7]. decriminalization. Then, according to the Islamic Penal Code, the reflections of these approaches will be evaluated [12]. Postmodernist (social constructivist) The idea of a postmodernist or social constructivist view is Disenfranchisement that language actually conceives the structure of thought and Disintegration includes all forms of condensation from the views language as a crucial interventionist variable in the criminal justice system. In this regard, whenever the penal relationship between social relations and institutions as well code strategy is used as a modification of the penal code of as in all modes of understanding the social world [3]. conduct that preserves its criminal title, the word discredit is Defines crime on the basis of linguistic production process and used [13]. Defamation is, in effect, the removal of a power relations. The social world is a phenomenon that is punishment from a behavior, or in other words, the abolition practically limited to the collective reality of language and is or modification of the punishment of conduct which does not constructed by it. This view considers the cause of crime to be necessarily eliminate the criminal character [14]. the phenomenon underlying linguistic domination itself. In Criminalization is a type of criminal policy tool that includes this respect, social constructivists believe that this domination, mitigating the punishment until it is eliminated or alternating in various ways, criminalizes speech, thought, and behavior between punishment and a non-criminal action against the that stands up to the power of current , does not criminal phenomenon. The process is divided into various regard it as legitimate, or opposes it. The solution to this categories: from judicial and executive disintegration to dilemma, according to the researchers, is to create alternative absolute and relative, as well as formal and informal, all of

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which have their content and content in general in line with It turns out that a behavior should not remain a crime and no the deregulation of the criminal justice system [12]. longer need to be punished, thereby eliminating the criminal character and excluding criminal behavior from the scope of Judiciary criminal law and bringing it to non-criminal institutions Critical criminologists challenge the practice and behavior of capable of non-criminal control. Through this process, this criminal justice criminal behavior as well as rigorous crime process is either initiated by the legislator, which is called control solutions, seeking non-criminal remedies such as official and legal decriminalization, or carried out by other mediation, conciliation, alternative remedies, and criminal institutions that call it practical decriminalization [17]. remedies. Criminals are small criminals. From this point of view, jurisprudence is the minimal intervention of the judicial The main mission of the Criminal Law right now is to find and system and diverting investigations from the criminal justice find appropriate solutions to control and manage the crime system to other legal mechanisms by means of pseudo-judicial and to do everything in its power to keep or reduce the crime mechanisms or shortening the criminal process. In other so that it can be achieved gradually in order to achieve justice words, preventing criminal proceedings that the criminal in the community [6]. In recent years, law enforcement in Iran justice system is competent to deal with by non-judicial has not only been successful in combating the phenomenon of methods is to address some of the offenses [15]. criminality, but also the criminals who have suffered the punishment have not been reprimanded and have again Judgment as a new of criminal justice seeks to committed a crime that reflects in a way that guarantees reduce the weight of criminal law and to use alternative criminal enforcement, It has been unable to combat criminality strategies in dealing with criminal disputes. In this regard ،by and the criminal justice system has failed to deal with this adopting measures such as civil ،administrative ،educational phenomenon. The failure of criminal law to tackle delinquency and social responses ،it seeks to distance criminals and other is one that has prompted the strategic debate on the retraction individuals from criminal and ineffective performance of the of criminal law and has led statesmen in some countries to criminal system [9]. The withdrawal of suspects, convicts and resort to non-criminal methods [2]. convicts from the judicial process and the execution of criminal sentences in the form of prosecution can take place at Therefore, the need for a realistic approach to crime-related any stage of the litigation in the general sense of the word. This issues in society in terms of its specific sensitivity and means that the use of judicial mechanisms in each phase of international relations and the treaties to which countries at prosecution, and enforcement of sentences seems useful the international level accede make them in some cases and necessary. This process is referred to directly involved inevitable from adopting criminal policy. . In this regard, the parties who can use the help of an external agent to solve the task of law enforcers is to find the expectations of the society problem [16]. In other cases, the emphasis is on the positive at any given time and to establish criminal law or to intervention of an external agent to help the offender resolve criminalize it from the previous penal code to fit the needs of issues that lead him to delinquency. The aim of this process is the time. In fact, decriminalization is an attempt to stifle the to prevent the perpetrators of criminal justice from engaging violent culture of society (both the state and the nation) and in the criminal justice process or preventing them from move towards more civilized responses to power anomalies pursuing their course by adopting specific measures. From this and problems [20]. perspective, by preserving the criminal title of the The overall approach to decriminalization is to increase the perpetrator's behavior, only the jurisdiction of the criminal rights and freedoms of the public and to open up the relatively justice system will be dealt with and decided upon by open political, social, economic and cultural space for citizens. resorting to civil, administrative, educational, and especially The process, in the simplest sense, is to remove the criminal social responses [17]. title from a conduct and given the congestion in the judiciary, the lack of force, the lack of facilities, the failure to change the Deregulation laws with the time requirements, the density of the , the Critical criminologists argue in the context of social reaction lack of prison, and the high criminal population rate. The criminology, such as the theory of interactionism, which the negative impact of dealing with people as having been process of smearing people through the strategy of criminality subjected to inappropriate behavior and the adverse effects of or criminal stigma extends to them. Deflection is not the labeling should be removed by removing criminal offenses by quality of action that one performs, but rather the observing the culture and values accepted by the public and by consequence of the kind of rule-making and performance working with the public and preparing people [14]. Using guarantees that others apply to a perpetrator. In this sense, it other ways and methods to encourage people to observe ethics is misogyny for the person to have used the label successfully, and piety others used it to prevent inappropriate behavior and and it would also be misleading to label people with the same resorted to other enforcement guarantees, including executive, label. From this point of view, these criminologists administrative, civil, disciplinary, law enforcement, and health acknowledge that society itself with new criminality, which guarantees. In fact, criminalization and decriminalization, includes more and more diversity of people's lives and which is primarily the legislator's responsibility, will never different ways of living and thinking about each other and achieve results except through attention to the demands of government, expands the scope of the criminal system's time, place, cross-sectional demands of society, the intervention [18]. development and evolution of various aspects of social To this end, while restricting the free space of free thinking institutions [17]. and free living, they expose citizens to crime and thereby Essentially, it seems imperative that in all cases of increase the stigma and exclusion of the public and provide the decriminalization, the association of selective behaviors with basis for the crime to be committed again. These the cultural and social conditions of each society should be criminologists, therefore, call for the use of alternative taken into account; otherwise decriminalization may play a mechanisms of the criminal justice system, such as reverse role. Thus, by consciously applying it, firstly, it can criminalization, as one of the manifestations of the limitation help reduce the burden of the criminal justice system in areas of the scope of criminal law intervention and one of the that are not essential for the security of society, and secondly, important means of restraining the criminal justice system it can help to better coordinate the actions of different sections [19]. of society (both formal and informal) [19]. Crime prevention In a simple definition of "decriminalization" means removing a was achieved. In essence, advocates of decriminalization rely criminal's label and title from an action or a behavior and on principles such as the need to reduce interference with including processes through which the "competence" of the individual liberties, to stay away from the negative penal system to guarantee performance is a reaction to certain consequences of criminal inflation and to increase the number behaviors, ie, to behaviors. Certain criminal offenses are of criminal offenses, to prove the inefficiency of the criminal denied [10]. justice system against criminals, and the requirements of time and crime. The social as well as the necessity of conformity

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with the international community justify the necessity of Semi-freedom system resorting to this process [2]. It is considered as one of the new manifestations of incomplete deprivation or in the semi-freedom system of In general, one of the factors that may accelerate Islamic Penal Code which, besides having a major role in decriminalization today is the recognition that some behaviors reducing the criminal population, especially in prison, has a are not undesirable, and that they are considered to be significant effect on maintaining family stability of offenders. offensive to the general public. Therefore, we must maintain And it puts reformers on the agenda; on the other hand, it the notions of crime and delinquency for a variety of behaviors guarantees the principle of individual punishment [21]. that involve violating the fundamental values of society [13]. In Iranian law, most criminal offenses are related to In fact, the findings indicate that the same (same-for-all) miscellaneous laws that relate to the duties and powers of practice in prison cannot provide the desired correction for ministries and agencies. In Islamic Penal Code, criminal the inmates and reveals the message that, rather than the offenses are usually devoted to important and highly damaging same, unified management practice for all, need to behaviors, which are not aimed at criminalizing them now, but use other models such as the semi-freedom system [16]. rather at a broad range of targeted criminal offenses that seem insignificant. They can be replaced by the judiciary in some This kind of system, whereby the convict keeps his job or at cases and transferred to other organizations and institutions least out of jail during the day and spends nights and [2]. weekends in jail, can be termed as close to week-end imprisonment. In addition, due to the specific basis of in Islamic penal law, in some cases, such as the red line of society, and The Islamic Penal Code has recognized the semi-freedom retribution and blood money, which is a personal right and the system in support of criminals and their families, as well as defense of the rights of individuals, the rule is outlawed. And it society, by using the theories of criminal jurists and benefiting is only in the field of ta'zir that, given the circumstances, it is from the discourse of international criminology as well as possible to apply this rule [8]. In general, areas where there is academic and scientific theories. In Chapter Seven he explains a greater tendency for decriminalization today can include it in two articles. With the implementation of the semi-liberty financial and economic offenses, traffic offenses, institution, many of the harms of prison can be speeded up, environmental offenses, drug offenses, ethical and punitive such as: the socialization of an individual whose sentence has crimes, health care and veterinary offenses. Did. In addition, expired, the prevention and correction of the offender, the some believe that unprovoked crimes, such as slavery, prevention of public expenditure on education and the tramping, drug use, etc. should be decriminalized and provide prevention of public spending [22]. reasons to justify and prove their point of view both Therefore, considering that the offender is occasionally out of philosophically and from a philosophical point of view [13]. prison and engaged in constructive activities is a move From a philosophical point of view, it is worth noting that, towards critical views, but at the same time, as we have noted from a philosophical point of view, man is created free and has in prison alternatives, the efficiency of whatever Most of these to live freely and the scope of human freedom is wide and his institutions depend on the proper and proper use of these only red line is "harm to others" and from a legal point of view institutions by the criminal justice system [18]. he believes that one Human behavior must be regarded as a crime and punishable if it does not constitute harm [19]. Therefore, the process of deciding to issue a semi-freedom system through two channels is possible, one through the REFORMIST INSTITUTIONS BASED ON A CRITICAL convicted person's request and the other through the judge's PERSPECTIVE ON CRIMINAL LAW recommendation of enforcement. Ultimately, it is up to the Because critical views have a very significant impact on the judge to decide whether he or she agrees. It is the judge's acceptance of criminal law institutions and institutions, one decision that determines whether critical criminological can here in particular consider the institutions provided by approaches result in enforcement. Prior to this, the existence Islamic Penal Code and the experience of some countries in of any conditions would impede the implementation of the analyzing the reflections and how the views are entered. Since semi-freedom system, and this would indicate a limited the reformist institutions have found a special place in and to acceptance of critical forensic results [20]. the extent that this law has been effective, critical views on these types of reformist institutions are more evident [20]. Postponement of sentence One of the innovations of the Islamic Penal Code is the delay in Alternative prison sentences issuing a sentence. Delaying in the word means suspending, Imprisonment leads to the attachment of a criminal label to a hanging and hanging on to something else, and in the legal person, and his isolation from society and social stigma and sense, delaying means reversing a sentence. In this social exclusion and ultimately the acceptance of his criminal establishment, the competent judge dealing with the criminal identity and profession. It also has consequences for the family case may, without delay, suspend the sentence of conviction of and those around him. Many social, economic, and a defendant whose conviction has been proven to the judge, if psychological studies have revealed the dangers of this the circumstances so warrant [6]. In general, regarding the punishment today, and various countries have taken various place of critical criminology's views in delaying the issuance of measures to reduce or even abolish it under the heading of a judgment, it is stated that due to the newness of this disqualification [11]. institution and perhaps the suspicion that law enforcement has, its issuance and enforcement continue to be under the In Iran, the detention movement began in the scientific and supervision of the criminal justice system [15]. This may academic circles about twenty years ago and then emerged as indicate that law enforcers have not fully moved to critical a judicial movement. That is to say, ten years ago, in some forensic perspectives or perhaps did not have the motivation cases, judges used alternative prison sentences. Another to provide these critical perspectives in general. For this important point is the separation of deliberate and reason, it can be seen that law enforcement has only moved to unintentional offenses that seem to be very unacceptable. the point of critical criminology to the extent that the labeling Because there are many unintentional offenses that carry of conviction has not been affixed [15]. irreversible dangers and that they can be substituted with whatever imprisonment they may have, the place of objection CONCLUSIONS is. An example of this is the Chief Justice's directive on the Critical criminology with its criticisms and changing view of possibility of using imprisonment alternatives to physicians, crime, punishment and criminal justice in general has led to a while physicians now face irreparable damages and damages. huge evolution in the field of criminology and the criminal On this basis, it seems that separating deliberate and justice system. In this regard, critical criminologists emphasize unintentional offenses in adopting detention alternatives is a the criminal behavior and practices of the existing criminal wrong domain to move towards the realization of critical justice system and its associated institutions, which somehow forensic perspectives [20].

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Therefore, this confinement to imprisonment, Psychological Assessment, Academic Press, pp. 383-403. which is of a different nature, is inconsistent with the critical 12. Stephanie Kewley, (2017), Strength based approaches view of designing alternatives to imprisonment in the form of and protective factors from a criminological perspective, social punishment. For this reason, an incomplete form has Aggression and Violent Behavior, Volume 32, pp. 11-18. been critically accepted. In the semi-liberty system, as well as 13. Elisa Impara, (2018), A social semiotics analysis of being condemned to exile and sometimes engaged in Islamic State's use of beheadings: Images of power, constructive activities, it is a move towards critical views, but masculinity, spectacle and propaganda, International at the same time as it points to alternatives to imprisonment. Journal of Law, Crime and Justice, Volume 53, pp. 25-45. The effectiveness of these institutions is dependent on the 14. Stéphane Richard-Devantoy, Anne-Isabelle Bouyer- proper and proper use of these institutions by the criminal Richard, Cédric Annweiler, Raphaël Gourevitch, Fabrice justice system. In this institution, it is the court's judge's Jollant, Jean-Pierre Olie, Marie-Chantal Bourdel, Jean- decision to determine whether critical criminological Paul Lhuillier, Olivier Beauchet, (2016), Major mental approaches result in enforcement. Prior to this, the existence disorders, gender, and criminological circumstances of of the conditions of each provides a barrier to the homicide, Journal of Forensic and Legal Medicine, implementation of the semi-libertarian system, indicating a Volume 39, pp. 117-124. limited acceptance of critical forensic results. However, the 15. Glenn D. Walters, Jon T. Mandracchia, (2017), Testing implementation of the semi-freedom system requires an criminological theory through causal mediation analysis: executive and many details and modes of operation Current status and future directions, Journal of Criminal must be specified in this regulation. Delaying its Justice, Volume 49, pp. 53-64. implementation to its bylaws is a contradiction of critical 16. Barnes J.C., (2018), A constructivist view of race in forensic approaches. modern criminology, Journal of Criminal Justice, Volume Lawmakers and law enforcers in Iran under the influence of 59, pp. 81-86. existing forensic and criminological developments have paid 17. Charles F. Wellford, (2015), Criminology: Development special attention to the use of new forensic achievements, and Current Status of the Discipline, International including critical criminology teachings to control and control Encyclopedia of the Social & Behavioral Sciences criminal phenomena, which is a positive step. 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