The Function of Reason in Hume and Consequences for the Classical

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2004 If Reason Is Not Sovereign: The Function of Reason in Hume and Consequences for the Classical/Positivist Divide, Rational Choice Theory, Low Self-Control Theory, and the Criminal Propensity Construct Michael Jason Kissner

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THE FLORIDA STATE UNIVERSITY

SCHOOL OF CRIMINOLOGY AND CRIMINAL JUSTICE

IF REASON IS NOT SOVEREIGN: THE FUNCTION OF REASON IN HUME AND CONSEQUENCES FOR THE CLASSICAL/POSITIVIST DIVIDE, RATIONAL CHOICE THEORY, LOW SELF-CONTROL THEORY, AND THE CRIMINAL PROPENSITY CONSTRUCT

MICHAEL JASON KISSNER

A Dissertation submitted to the School of Criminology and Criminal Justice in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Degree Awarded: Fall Semester, 2004

The members of the Committee approve the Dissertation of Michael Jason Kissner defended on November 10, 2004.

______Daniel Maier-Katkin Professor Directing Dissertation

______Barney Twiss Outside Committee Member

______Cecil Greek Committee Member

Approved: ______

Thomas Blomberg, Dean, School of Criminology and Criminal Justice

The Office of Graduate Studies has verified and approved the above named committee members.

TABLE OF CONTENTS

ABSTRACT ...... Page iv

INTRODUCTION...... Page 1

1. THE GREAT DIVIDE IN THEORETICAL CRIMINOLOGY...... Page 10

2. HUME’S EMPIRICISM AND CLASSICAL CRIMINOLOGY ...... Page 23

3. BECCARIA’S CRIMINOLOGICAL VIEWS ...... Page 40

4. LOMBROSO’S POSITIVISTIC CRIMINOLOGY ...... Page 60

5. CHOICE THEORY IN CONTEMPORARY CRIMINOLOGY...... Page 76

6. CLASSICAL CRIMINOLOGY AND LOW SELF CONTROL THEORY..Page 94

7. A THEORY OF CRIMINAL PROPENSITY GROUNDED IN EMOTIONAL DETERMINISM ...... Page 111

CONCLUSION ...... Page 126

REFERENCES ...... Page 128

BIOGRAPHICAL SKETCH ...... Page 134

iii

ABSTRACT

This work shows that classical criminological doctrine has been misunderstood and that the consequences of this misunderstanding for contemporary criminological theory and research are grave. In particular, classical criminologists subscribe to a view of rationality that is strikingly different from that which is usually attributed to them. Classical criminologists deny that behavior is invariably rational, and hold that emotional considerations are determinative of the degree of rationality expressed in any given behavior. This view, called “emotional determinism”, is used to generate a theory of criminal propensity that can be empirically tested. The theory is intended as a replacement for Gottfredson and Hirschi’s 1990 low self-control theory, which, while influential, succumbs to the criticism that it is too heavily reliant on rational choice principles. Finally, the work suggests that the genuine distinction between classical and positivist criminologies consists in the fact that as empiricists classical criminologists are committed to holding that environmental forces can in principle be used to dissuade even the most committed of criminals.

INTRODUCTION

This work is about individual-level criminological theory1. It carefully examines the genesis of criminological theory in the so called “classical” and “positivist” schools of criminology and demonstrates beyond a reasonable doubt that contemporary criminological theorists are operating with seriously mistaken conceptions of the doctrines espoused by classical criminologists. The classical school has been systematically misinterpreted, and the consequences of this misinterpretation for contemporary criminological theory are grave. Because the genesis of criminological theory is steeped in British Empiricist ideas, this work is inherently philosophical as well as historical in character. An underlying motif of the work is that examination of the thought of great philosophers can yield fruitful theoretical ideas. Contemporary mainstream criminology divides the criminological tradition into two camps-the “classical” tradition and the “positivist” tradition. The former is customarily traced backed to the mid-eighteenth century writings of Beccaria, who was a utilitarian and an empiricist. The latter is traced backed to the late nineteenth century and early twentieth century writings of Lombroso, who is best known for his investigation of the relationship between biological factors and crime. Today, theories descending from the classical tradition are called “choice” theories. Theories descending from the “positivist” tradition are called “individual difference” or “propensity” theories. It is widely believed that there are paradigmatic differences between the two traditions, and hence between the theoretical descendants of those traditions. This belief is false. While there is a real difference between the two traditions, the difference is in principle empirically resoluble. Therefore, it is probably best not to characterize the difference as paradigmatic (Kuhn, 1970). The phrase “great divide” is used to designate the fiction, believed by nearly all contemporary criminologists, that there is a paradigmatic difference between the traditions. The remainder of the introduction briefly2 characterizes the divide and gives preliminary reasons for thinking that the great divide is an illusory construction. A concise rendition of the more salient consequences of the illusory divide is given as well. Finally, a thumbnail sketch of a conceptual replacement of the great divide that solves a host of problems bequeathed by the divide is outlined.

Characterizing the Divide

Most criminologists think that the classical tradition subscribes to free will, denies that there are individual motivational differences relevant to criminal behavior, is unscientific, and disavows the concept “cause”. Most criminologists think that the positivist tradition subscribes to determinism, upholds the idea of individual motivational differences relevant to criminal behavior, is scientific, and accepts the concept of cause.

1 Hereinafter, all references to “criminological theory” denote “individual-level” criminological theory unless otherwise indicated. 2 A more detailed characterization of the great divide is offered in Chapter 1. The discussion here is simply intended to orient readers.

1 These contrasts help constitute a great metattheoretical divide. It is easy to see that the above suppositions (alleged suppositions, as we shall see) of the two traditions are in stark contrast. The received view3 of the classical tradition ascribes to that tradition the belief that criminal behavior represents a freely chosen and rational response designed to maximize the pleasure/pain ratio of actors. The received view of the classical tradition ascribes to that tradition the belief that reason is sovereign over behavior, such that behavior invariably conforms with the dictates of reason. Combining the above ideas, the received view of the classical tradition ascribes to that tradition the view that criminal behaviors are simply rational solutions to self-interested pleasure/pain problems. The received view of the positivist position, on the other hand, holds that all behavior is caused by arational forces, and that the magnitude and/or intensity of these forces can vary across individuals and within the same individual over time. Freedom and the sovereignty of reason are denied by the received view of the positivist position. The Oxford English Dictionary (2nd edition) provides in pertinent part that “arational” means “not governed by the laws of reason” as well as “non-rational”. The positivist position is looked upon as holding that arational forces, or motivations, can issue from sociological, psychological, or biological sources. These considerations tend to make typical positivist theories “type of person” (Nagin and Paternoster, 1993) theories, or “propensity” theories. The typical positivist position says that criminal behavior represents the effects of an individually varying confluence of arational forces. For positivists, reason is not sovereign, the arational is. Theorists in this camp view crimes as the result of motivational propulsions operating on the organism, and any correspondence of criminal responses with rational views of self-interest is viewed as fortuitous in a causal sense. For positivists, behaviors are not performed because rational self-interest prescribes them; they are performed because arational forces propel them. These are strikingly different views of human behavior. The received view of the classical position essentially says that there is no need to worry about making people behave in rational, self-interested ways. This view holds that people invariably behave that way because it is human nature to do so. The foregoing suggests that received views of the two traditions differ sharply with respect to their estimation of the nature of rationality and its effect on human behavior. Typical positivists are understood as holding that if behavior happens to accord with what actors perceive to be in their self- interest, this is no indication that some mysterious faculty of reason is itself directing behavior. Along the same lines, positivists hold that there is nothing metaphysically special about reason or mind; that is, reason is viewed as a part of nature in such a way that it has no special causal significance with respect to behavior. Thus, the positivist view is that if behavior happens to accord with what reason specifies, this is due to a felicitous confluence of arational forces rather than the effect of a special faculty of reason that is insulated from the world of empirical facts. A major corollary of these doctrines is that positivists deny that behavior is invariably rational and self-interested. The positivist view is that this is precisely what is to be logically expected if reason is viewed as rooted in, and subject to, empirical processes rather than as an ontologically

3 The phrase “received view” is hereinafter used to designate the view of the two major criminological traditions that is accepted by the vast majority of criminologists.

2 privileged characteristic of human beings. The received view understands the classical tradition to hold that behavior is invariably rational and self-interested, because the faculty of reason is believed to be metaphysically insulated from empirical contingencies. One major theoretical contention in the present work is that there is no great divide in theoretical criminology if faithfulness to the actual thoughts of classical thinkers is a relevant consideration. Succinctly, classical criminologists do not accept the views ascribed to them by the received view of that tradition in criminology. In reality, classical thinkers deny that free will exists and so accept that idea that human behavior can be explained causally. They also accept the existence of individual motivational differences and hold that these arational differences can explain individual variation in criminal behavior. Perhaps most importantly, classical criminologists argue that rationality enjoys no metaphysical privilege and maintain that as a consequence of this lack of privilege there is no guarantee that behavior will meet the specifications of rational self-interest. In fact, a careful reading of the classical criminologists surprisingly shows that their views seem to conform with received wisdom regarding positivist criminology. These thoughts require another piece of terminology that distinguishes between the “classical criminology proper” and the “received view” of the classical tradition. The former phrase refers to the historically and textually accurate rendition of the views of those figures, together with their British Empiricist forebears-in particular, David Hume. The latter phrase refers to the set of views (already outlined) held by nearly all contemporary criminologists-foisted upon Beccaria. To repeat: classical criminology proper refers to classical criminology as it is actually specified in the writings of Hume and Beccaria. The “received view of the classical tradition” refers to the mistaken and false understanding of the writings of Beccaria. The failure to acknowledge the true views of the classical criminologists has led to unhappy theoretical consequences. Criminological theory has devolved since the mid- eighteenth century. The reason criminological theory has devolved is that important insights into human behavior offered by figures such as Hume and Beccaria are lost on criminologists. More importantly, criminological theory continues to devolve because the proper logical basis for a distinction between the classical and positivist traditions has not been recognized. The behavioral picture that the great divide offers us, which is metaphysically sovereign reason versus domination by arational forces, is historically and textually inaccurate. Classical criminology proper recognizes the existence of arational forces and their tendency to defy the dictates of self-interested rationality, where self- interested rational behavior is understood as behavior which at a minimum takes into account the frequency, duration, and magnitude of likely consequences for near future selves. Dismantling the great divide and replacing it with a distinction between the traditions that is grounded in text and logic remedies many ills produced by the great divide. It opens up genuine lines of communication between the traditions while confiding independent theoretical and investigatory jurisdiction to each tradition. It illuminates taxonomic puzzles that still plague criminologists. It also points the way to the construction of a logically sound individual-level theory. Let us briefly illustrate these points and give some indication as to how the distinction between the classical and positivist positions should be drawn. The major

3 contemporary heir of the inaccurate but received view of the classical position is rational choice theory. This theory is criticized in Chapter 5. On the “connection” between classical criminology and rational choice theory, Exum says: Classical criminology is grounded in the tenets of free will, rationality, and hedonism (Liska and Messner, 1999). Accordingly, human behavior is seen as a choice undertaken after calculating the response that will afford the highest pleasure:pain ratio. Although these perceptions of pains and pleasures may be constrained or “bounded” by factors such as health, intellect, and frame of mind4 (Bentham, 1789/1970), classical criminology argues that all individuals (regardless of these differences) choose their behavior based on an assessment of the perceived consequences. Theories derived from the Classical School therefore provide a general explanation for crime and delinquency. One such example is rational choice theory (Akers, 2000). In the tradition of the rational choice perspective, researchers have invoked an expected utility model in order to understand the occurrence of criminal activity in terms of its probabilistic costs and benefits to the offender…(2002:933). Exum states that the classical position sponsors the conceptual trinity of free will, rationality, and hedonism. In fact, classical tradition proper denies free will, denies that humans are rational by nature, and only accepts hedonism with qualifications of vital importance. From a historical and textual standpoint, the conventional classical position is therefore more than two-thirds incorrect on substantive matters of theoretical consequence. Chapter 5 shows that the rational choice position in contemporary criminology holds that actors invariably and necessarily act rationally so as to advance perceived self- interest. Viewed from the other direction, rational choice theorists hold that it is impossible for persons to act against their perceived self-interest, at least with respect to the short-term, since doing so would contravene the fundamental rationality assumption. Similarly, rational choice theorists are said to hold that ultimately there is only one “cause” of human behavior: reason. It is very important to get clear on this. Rational choice theory, although it is not always (and certainly not always clearly) argued, is compatible with the idea that individuals want and enjoy different things to different degrees. As a matter of fact, we shall see in Chapters 2 and 3 that this is exactly what Hume and Beccaria assert. Contemporary rational choice theorists, unlike Hume and Beccaria, view these differences as irrelevant to actual behavior in the following sense: the prospective pleasures and pains emanating from various motivational sources can only yield behavior if reason allows them to. This amounts to assigning a kind of metaphysical power to reason that Hume and Beccaria deny it has; this is the sense in which rational choice theorists view reason as a “cause”. For rational choice theorists, no motivation, whatever its origin (biological, psychological, sociological, etc.) can push people into the commission of a crime. Rational choice theorists think that saying that people can be pushed into crime is too Newtonian and positivist. There is no need, these theorists think, to puzzle about motivational pushes, since whatever individual variation with respect to motivational pushes there might be (and again, such variation is not always acknowledged by these

4 We shall see that criminologists rarely incorporate into their theories even this elemental characteristic of the true classical tradition.

4 theorists) is irrelevant with respect to actual behavior in the following sense: the efficacy of those forces is always voided if reason concludes that acting upon them is not justifiable in cost/benefit terms. Thus, rational choice theorists, as the label might suggest, think that reason is ultimately sovereign with respect to behavior. Adhering to this position has a theoretical price. The price is that lines of communication between choice theories and “positivistic” propensity theories are severed. Acceptance of the great divide forecloses the assignment of clear, mutually reinforcing theoretical tasks to the two traditions, since the traditions view themselves as operating upon completely different core assumptions. Rational choice theorists think that searching for individually varying “pushes” toward crime is a waste of time. This is what firmly situates rational choice theory in the control tradition of criminology (Hirschi, 1969; Hirschi, 1986). Essentially, rational choice theorists think that positivists are foolishly violating Sutherland and Cressey’s (1978) admonition counseling against preoccupation with a hodgepodge of unorganized concrete correlates of crime. Why do so if reason alone supplies the answer to theoretical criminological inquiry? Gottfredson and Hirschi (1990) make the same argument, although less clearly than Sutherland did. With respect to the control tradition, rational choice theory subsumes it because it agrees with Hirschi’s (1969) exhortation to ignore motivational considerations that prompt people to commit crime and to concentrate instead on considerations that discourage crime, such as costs, or social bonds. The great divide situates positivists in the dark realm of individual motivational differences that operate as natural causes and classical criminologists in the sunlit realm of sovereign reason. This would never have happened had criminologists paid attention to the actual writings of the classical criminologists. Classical thinkers do not believe that reason is sovereign. In fact, classical thinkers plump wholesale for Hume’s justifiably famous dictum that “reason is the slave of the passions”. Hume holds that the view that reason has sovereign efficacy is an illusion, and that what is really happening in cases where it seems like reason is controlling is that a passion5 in favor of what calculative processes suggest is the behavioral option that most advances self-interest wins out over other conflicting passions. In short, reasonable people are those who are more passionate about behaving rationally. The view that reason never directs action of itself6 implies that behavior is produced by arational forces (which can also be called motivations) that is, forces that have no intrinsic connection with reason whatsoever. The forces that dictate all human behavior simply are. They are not in and of themselves either rational or irrational. These views are also in line with Freud’s conviction that there can be no psychic activity whatsoever without a wish. Acceptance of the idea that all behavior is prompted by arational and causal motivational forces together with acceptance of the idea that these forces might operate differently in different individuals might seem to imply agreement with the positivist side of the great divide. It does not. The explanation as to why it does not involves indicating

5 Depending on the occasion, we shall substitute the word “desire” or the word “motivation” for “passion”; we shall see that “passion” is a term of art for classical thinkers that is identical in most respects to the contemporary criminological word “motivation”. 6 In Chapter 5, the conception of “satisficing” from decision theory is drawn from in the course of presenting an a priori argument which we think demonstrates that contemporary rational choice theories are false.

5 what we believe to be the genuine distinction between the two traditions, a distinction that we believe is in principle empirically testable and therefore not paradigmatic. The main difference between the two traditions, it turns out, has to do with sharply contrasting views regarding the potential power of learning processes vis a vis other arational forces.

Replacement of the Great Divide

Since the classical tradition proper as well as the conventional positivist tradition both acknowledge determinism, the dominance of the arational, and individual differences that can amount to criminal propensity, some other distinction7 between the traditions must be found if a distinction is to be maintained. A litmus test to determine whether criminologists subscribe to positivism or classical criminology is: does the criminologist think that arational motivational forces, whether biological, psychological, or sociological, or some combination thereof, can be strong enough to override the rationally grounded perceived self-interest of actors even if the actor has been exposed to ideal learning procedures? There is a second equivalent, but more succinct, litmus test: does the criminologist think that optimal learning processes can in principle create a passionate commitment to self-interested rational behavior that can thwart any arational impingements on behavioral processes? If the answers to the first and second questions are “yes” and “no” respectively, the criminologist is a positivist. If the answers are “no” and “yes” respectively, then the criminologist is a classical criminologist. The great divide should be replaced with a distinction that is in theory empirical if we believe that experience can help us decide what the relative power of learning forces is with respect to other arational forces. The litmus test suggests that the crucial question in principle is whether one thinks sets of organized arational forces called selves, or egos, can be taught through experience to resist other sets of arational forces that tend to propel behavior in directions that are unwanted from the standpoint of rationally grounded perceived self-interest. The litmus test assumes that both traditions hold that behavior is the spawn of arational forces. Empirically deciding between the traditions (under the reformulation) involves looking at the evidence. Does it appear to be the case (other things being equal) that carefully and lovingly taught people are better than others not so taught at resisting arational motivations that tend to propel them away from rationally perceived self-interest? With respect to particular situations, the reformulation of the tradition offered suggests that observed behavior is a function of the competing strength of motivations emanating from proximate and distal sources impinging on the organism. When a given behavior strikes us as extremely unreasonable, or compulsive, we are apt to conclude that whatever rationality exists in the organism has been overwhelmed by the arational, but until further investigation of learning processes and other arational motivations is undertaken we cannot safely conclude that the behavior would have occurred even if learning processes had been ideal. In some cases, such investigation is not necessary; mimicked rationality is clearly overcome by other arational forces. For example, if someone has to urinate badly enough, then they will urinate involuntarily no matter what even the immediate consequences (in a suitably contrived situation) of doing so are. The

7 The attempted distinction on philosophy of science grounds is addressed in Chapter 1.

6 extent to which similar results obtain in cases not involving involuntary functions might be susceptible to empirical investigation. There is an intriguing philosophical sense in which the reformulation of the divide proffers two quite different visions of reality. The true classical position specifies that experience and learning can prevail over other arational forces in the battle for governance of behavior. The deep structure of this last utterance is that reality is such that in theory the battery of arational forces that constitute the human organism can be forced into an order that mimics self-interested rationality by arational reward and punishment processes. In order for this to happen, forces that lead to behavioral discharge regardless of the consequences for future selves must be corralled, subjugated, and organized so as to serve future selves. The reformulated positivist position maintains that in theory the universe is arational to the core in the sense that the “right” confluence of forces can always undo even the strongest of desires to act in ways that comport with perceived self-interest as that is viewed in light of a solid understanding of informational factors. The position maintains that there is always the possibility of an assault from the ocean of arationality that is nature and that any given self might lack sufficient self- interested power to withstand it. The positivist view holds that even the most hallowed, vigorously fought for, and scrupulously abided by principles can be demolished, house of cards style, by nature. We are not talking merely about the possibility of the death of a scion philanthropist in a car crash. We are talking about whether Martin Luther King, for example, could have been made to compromise his principles by torture. The above amounts to a curious state of affairs, and one by no means lacking in relevance to more specific theoretical criminological inquiries. Notice first that under the litmus test, the fact that a theorist espouses biological considerations is neither here nor there with respect to whether they are a positivist. Since criminologists universally consider biologically inclined criminologists to be positivists, our reformulation of the distinction refurbishes positivism at least to that extent. The test is not whether one thinks biochemical processes silently at work in the organism can increase the likelihood of criminal behavior. The test is what one thinks the relative potential impact of learning processes on the biochemical processes is. Related to these ideas is the notion that the concept “cure” can support the maintenance of the great divide. This is a superficial distinction of no avail. First, just speaking to someone effects biological changes in them. Indeed, Freud referred to psychoanalytic treatment, which he viewed as designed to bring patients around to the life of reason, as “the talking cure”, but he was of course by no means averse to the notion that biological forces drive behavior. Second, there is nothing magical about biological forces, and there is nothing magical about the word “pathology”. From a true classical standpoint, it is possible to say that a person dominated by arational forces to such an extent that they damage themselves (from their own standpoint) is afflicted with the disease of arationality, although it is questionable how useful a diagnosis this would be. Pills and praise are equally arational forces that may compete, in a given case, for the governance of behavior. Which force is more effective cannot be decided a priori. Third, it is not unreasonable to say that effective behavioral aversion therapy works a cure. Alex, the “protagonist” from A Clockwork Orange,8 probably would not argue. In

8 In our opinion, here- as elsewhere-one is well advised to forget the movie and read the book. Burgess is a terrific writer.

7 sum, it is perhaps best to neither privilege biological forces nor exercise prejudice against them. This motto plays on Quine’s well known dictum drawn from his influential “Two Dogmas of Empiricism”: let the tribunal of experience determine the victor, if such there can be, between the two traditions. Finally by way of introduction, a specification of where the work is headed is in order. This involves summarizing the foregoing and indicating more precisely what the benefits of the reformulation are. The reformulation of the divide provides that the true difference between the classical and positivist traditions concerns the power of learning. Caution is necessary here. In and of itself, ascribing causal importance to learning variables is neither classical nor positivist. There is nothing that prohibits a positivist, for example, from endorsing the causal relevance of learning variables. Arational behavior can be, and we think often is, reinforced. What matters with respect to criminal behavior (indeed, all behavior) is firstly whether one thinks that learning can in theory overcome all other arational forces in play that propel towards crime. This immediately suggests a division of labor for theoretical and research criminologists. Practically speaking, criminologists should align themselves either with a “learning perspective” or a “positivist” perspective, where the latter perspective is understood to involve itself with the investigation of arational motivational forces other than those connected with learning. Chapters 2 and 3 make the argument that Hume and Beccaria were early learning theorists and that the classical tradition proper has withstood the test of time and is still serviceable. These considerations leave us with the idea that learning perspective criminologists should theorize about, and empirically investigate, the arational learning variables that tend to produce self-interested and rational egos: the very entities that the mistaken conventional classical position starts off with. Criminologists aligned with the positivist perspective should do the opposite. They should theorize about, and investigate, those arational forces that militate against efficacious learning and against passionate simulation of rational, self-interested behavior.

Roadmap

Chapter 1 takes a close look at the conventional characterization of the classical/positivist divide. Chapters 2 and 3 look at the writings of the classical criminologists Hume, Beccaria, and Bentham and show how their thinking does not at all square with contemporary renditions of it. This paves the way to our reformulation of the great divide. Chapter 4 looks at the writings of Lombroso and illustrates what is definitive of conventional positivism. At the conclusion of that chapter, results up to that point are drawn together and an argument made as to the reformulation of the divide makes good sense. Chapter 5 looks at contemporary choice theory. An a priori argument is presented, derived from Simon’s conception of satisficing, that choice theory is false, which is another way of saying that reason cannot determine behavior. Chapter 6 criticizes the most widely researched variant of choice theory, low self-control theory, and points out deep inconsistencies and other theoretical inadequacies. Chapter 7 brings the work to a close by offering a classically inspired, and empirically testable, theory of criminal propensity. In closing, the following two quotations capture the spirit of the work:

8 Thought is after all nothing but a substitute for a hallucinatory wish; and it is self- evident that dreams must be wish fulfillments, since nothing but a wish can set our mental apparatus at work Freud (1900/1998:606). A wise man associating with the vicious becomes an idiot; a dog traveling with good men becomes a rational being Arabic Proverb quoted in Paternoster and Bachman (2001:177).

9 CHAPTER 1 THE GREAT DIVIDE IN THEORETICAL CRIMINOLOGY

Ordinary observation suggests that reason and desire have something to do with human behavior generally as well as criminal behavior. In turn, these concepts are closely related to concepts of pleasure and pain. Generally speaking, people like pleasure and tend to seek it out. Ordinary observation also tells us that generally speaking, people dislike pain and tend to avoid it. Jeffery (1994:23) goes so far as to state: “[t]he one basic rule of behavior is that of the maximization of pleasure and the minimization of pain. This pleasure/pain principle is found in Plato, in Jeremy Bentham and the classical school of criminology, in Freud, in behavioral psychology, and in neuropsychiatry and psychobiology”. This is a provocative claim. It is provocative because it suggests that seminal thinkers as philosophically opposed as Plato and Bentham (rationalist and empiricist respectively) and as scientifically9 diverse as Freud and Skinner are agreed on the idea that the pleasure/pain principle is of utmost importance in the explanation of human behavior. One is prompted to wonder how paradigms purported to be sharply divergent on fundamental ontological and epistemological questions can arrive at the same conclusion about the fundamental principle of human behavior. Jeffery’s statement draws attention to two broad, conventionally accepted paradigms in mainstream criminological thought: the “classical” paradigm and the “positivist” paradigm. Bentham, a utilitarian and a British Empiricist, represents the “classical” paradigm. Neuropsychiatry and psychobiology represent the “positivist” paradigm. Most introductory textbooks in criminology mention and sharply distinguish these traditions, as do many graduate level theory classes in criminology. It is widely believed that the nature of the great paradigmatic divide can be settled on philosophy of science grounds of one type or another, so the Jeffery quote is for that reason alone provocative, since it suggests that the same basic principle of human behavior has been arrived at by representatives of strongly and rather unsubtly opposed paradigms. The alleged great divide is of considerable magnitude and functions as a central axis that historically and currently serves to orient theoretical inquiry in criminology. Attempts are frequently made to justify a great paradigmatic divide on logical, or formal grounds. The phrase “formal grounds” is here understood as pertaining to the basic

9 Conundrums surrounding the question of what constitutes “science” are important and difficult but are for the most part beyond the scope of the present work. They will therefore be addressed only where immediately relevant to the substantive point at hand. The reference to Freud and Skinner in connection with the idea of scientific differences is meant to convey the point that conceptions of unconscious influences on behavior were wholly alien to the kind of methodological behaviorism that Skinner is famous for promulgating. Daniel Maier-Katkin suggests that Freudian constructs such as the “id” are metaphysical constructs since they are not amenable to observation by sensory modalities and are not otherwise measurable. Maier-Katkin concludes that modern empiricists therefore place Freud outside the ambit of science. It is by no means to clear to the writer that either the premise or the conclusion is correct. It all depends on what is meant by “modern empiricism”, “measurement”, and the relationship between the two. The formulation “otherwise measurable” threatens to become the exception that swallows up the rule of modern empiricism. In any event, it is not clear that observations and theory can be completely disentangled. We take this to be the central teaching of Kuhn that has withstood onslaught.

10 logical structure of a body of thought, as opposed to its content. “Formal grounds” are therefore distinguished from “substantive grounds”. The latter refers to the content of a body of thought. In what follows, “formal grounds” are those basic logical distinctions that many criminologists have employed to justify the maintenance of a paradigmatic divide. Some criminologists think that one major formal difference between the two traditions involves the notion of free will. Recently, Liska and Messner (1999) have said so; Exum (2002:933) claims that “[c]lassical criminology is grounded in the tenets of free will, rationality, and hedonism”. Pfohl (1994:63) states that “[t]he classical perspective’s vision of human nature as a free and rationally10 calculated choice for pleasure and of society as a consensual social contract permeates everything it has to say about deviance and social control”. Jeffrey remarks that “[t]he Classical School emphasised free will; the Positive School emphasised determinism”, and places Bentham, Beccaria, Montero, Durkheim, and Bonger in the Classical camp and figures such as Lombroso, Ferri, Garofalo, and Tarde in the Positivist camp. Sylvester (1972:3) states: Some may argue that the classical school was not properly a school of criminology but only of criminal jurisprudence since its emphasis was not on an empirical assessment of data, but on establishing the preeminence of certain social values. This position seems to have some support. The classical school did appear to make certain a priori assumptions regarding the nature of man, his free will, rationalism, and so forth. However, this may not totally condemn it to the realm of the unscientific because all sciences make some assumptions of necessity, which assumptions may forever remain unproved. Not to do so would create an infinite regress of colossal proportions. Vold et al (1998:6-7) comment that in classical criminology there is the view that: …intelligence and rationality are fundamentally human characteristics and are the basis for explaining human behavior. In this view humans are said to be capable of understanding themselves11 and of acting to promote their own best interests. And, additionally: [c]rime is seen as a product of free choice of the individual, who first assesses the potential benefits of committing the crime against its potential costs (1998:7). With respect to positivism, on the other hand, Vold et al claim that it holds that: …behavior is determined by factors beyond the individual’s control. This view implies that humans are not self-determining agents free to do as they wish and as their intelligence directs. Rather, it is more accurate to say that people can only behave as they have been determined to behave. Thinking and reasoning are actually processes of rationalization in which individuals justify their predetermined courses of action, rather than processes by which individuals freely and intelligently choose what they want to do.

10 The coupling of freedom and rationality traces back at least to Kant. In the Critique of Pure Reason and in Groundwork to the Metaphysics of Morals Kant formulates the view that the phenomenal, empirical world is causally determined while leaving open the possibility that a noumenal realm exists in which reason acts freely when, and only when, it acts pursuant to the categorical imperative. 11 This point is of elemental significance with respect to the notion of unconscious influences on behavior.

11 This is the frame of reference of positivist criminology, as well as of positivist thinking in other fields such as psychology, sociology, and philosophy. These theories arose in criminology after classical theories had dominated the field for about 100 years and repeated attempts to reduce crime by making punishments more prompt, certain, and severe had failed to succeed. In a sense, these new theories were offered as explanations of why classical theories had failed: If criminal behavior was determined by factors beyond the control of the individual, then punishing that individual would not have any effect. Within this frame of reference, the problem criminologists attempt to solve is to identify the causes of criminal behavior. The original positivist criminologists looked mainly at biological factors, but later criminologists shifted their focus to psychological and then to social factors in their attempts to find these causes (1998:7-8). Jeffery states that “the Positive School emphasised determinism” and that “the Positive School said that punishment should be replaced by scientific treatment of criminals to protect society” (1972). Similarly, Beirne (1991:777) states that “[b]y the term positivist criminology, I refer to a discourse about crime and criminality predicated on the belief that there is a fundamental harmony between the methods of the natural and social sciences”. (Beirne also observes that “like most other scholars (emphasis added) I have always uncritically assumed the truth of the hallowed distinction between positivist criminology and classical criminology12” (p.777). Sylvester (1972:3-4) states the following about the origins of the positivist school in criminology and more generally the field of social statistics: The beginnings of what would be admitted by all to be truly scientific criminology occurred in the early nineteenth century in France and Belgium. In an almost classic design for empirical research, two statisticians-Adolphe Jacques Quetelet and André Michel Guerry-sought for regularities in criminal behavior as they might appear to official statistics, specifically the Compte Général de l’Administration de la Justice Criminelle en France. With these data in mind, Quetelet and Guerry sought after statistics of other social factors occurring within the same geographical area from which the judicial statistics were obtained in an effort to explain any concomitant variation which might exist. The implications of these researches for criminology were far-reaching. For the first time, crimes were seen as social data, empirical facts capable of statistical representation and objective analysis. Three major interrelated points in relation to attempts to draw formal distinctions between the two traditions can be observed. The first attempted formal distinction relates to free will. If it is true that the two traditions assert opposite positions on the metaphysical free will question, then the traditions are wholly distinct on that ground.

12 Beirne’s reasons for rejecting the distinction largely have to do with his rejection of the idea, frequently associated with the classical tradition as indicated by the quotes above, that figures such as Beccaria believed in free will. More on this will be discussed in chapters 2 and 3. Beirne seems to be the only criminological scholar to have detected that the classical school rejected free will. He has not, however, drawn the logical inferences that are necessary to show what the genuine distinction between the two traditions is, and he has not detected the classical school’s true position with respect to rationality and hedonism. Even more importantly, the fact that classical thinkers rejected free will does not, contra Beirne, “cast[] doubt on the very existence of a distinctive “classical criminology”” Beirne (1991:777).

12 Reasons are given in chapters 2 and 3 for strongly doubting that there is such a distinction, whether such a distinction is attempted on either historical grounds or logical grounds. More important (for present purposes) than the merits of such a distinction, however, is to ensure that the consequence of such a distinction, if it could be maintained, is appreciated. If free will exists and if humans are possessed of it13, then it seems to follow in a deep sense that human behavior cannot be the subject of scientific investigation, if one holds that scientific investigation is predicated on the discovery of causes (unless one were to hold that the will can be simultaneously caused and free). As Jeffery and Zahm (1993:339) put it, “[p]ositivists argue that free will and determinism are incompatible because free will suggests a lack of scientific determinism as found in science”. This would seem to be, whether it is always acknowledged as such or not, the most fundamental reason why some commentators are hesitant to attribute scientific status to classical criminology14. The second point has to do with a second proposed formal distinction between the two traditions. This proposed distinction raises the issue of what one counts as empiricist, or positivist, methodology, which in turn is connected to the question of what constitutes scientific enquiry. Supporters of the alleged great divide seem to think that “classical” figures such as Beccaria did not employ the empirical methods of positivist science. In chapter 3, it will become clear that there are reasons for thinking that Beccaria thought there was nothing mysterious or hidden about human behavior: it seemed to him that ordinary, everyday observation of human behavior (surely an empirical method of evidence gathering if such there be, contra Sylvester) discloses that people are (1) generally motivated by the pain/pleasure principle and generally strive to maximize pleasure and minimize pain and (2) are aware of their desires and theoretically capable of using their reason to maximize pleasure and avoid pain. If this is true, though, (so that classical criminologists can be said to have used empirical methods) then where does the conventionally alleged divide between classical and positivistic criminology lie? It is possible to argue that the paradigmatic divide is conventionally founded on the idea that classical thinkers were not disposed to test their claims, which together with Popperian inspired ideas such as “falsifiability” might be understood to entail that the classical thinkers did not approach human behavior scientifically. Such a stance raises two main issues. The first issue is that “falsifiability” is a problematic notion, especially in connection with the practice of social science. If falsifiability is to be used as a standard to determine whether or not a claim is scientific, we have a right to ask how we determine that a given observation falsifies a hypothesis. The answer will undoubtedly embed theoretical claims that in turn must be falsified. In short, one cannot avoid viewing observations through theoretical lenses. Truth and falsehood cannot be “read off” data, as though data exist in a vacuum. Difficult issues are raised at this point. Fortunately, we need not address them since the practice of social science indicates pretty convincingly that “positivist” theories are no more falsifiable than “classical theories” are. In criminology, theories are typically tested, or subjected to falsification, with statistical means. Readers familiar with criminological research results are well aware that every single research result ever published, whether its hypotheses concern serotonin

13 It is a curious fact that writers always seem to assume that if free will exists then human beings have got it. Such inadvertent interspecific discrimination is likely attributable to human narcissism. 14 It is possible to reason logically preconsciously.

13 or deterrence, are always subject to the suspicion that important variables have been omitted from analysis. Since one can always raise the claim that reported statistical associations are spurious, there is a very real sense in which the “nature of the beast” precludes falsification in social science research. A closely related issue involves what is meant by “testing”. If it is said that classical theorists do not even attempt to test their theories because they make no predictions, this is false. A pure utilitarian and classical theorist could predict that an individual faced with a choice between a certainty of $100 and a 5% chance of $1000 would choose the former, since the expected utility of the former is higher. If it is said that classical theorists might make predictions, but that they cannot be tested, then precisely what is meant by “testing” comes into play. “Classical” theorists can argue that their theoretical claims are tested by ordinary perception. If “positivists” object that perception does not amount to a testing device, it can be pointed out that no matter how sophisticated instrumentation gets, evaluation of results always boils down to one form of perception or another. It can also be pointed out, as Kuhn (1970) has done, that it might not be possible to disentangle theory from observation. If this is true, what one considers a “test” depends on what one’s theoretical outlook is, and one begs the question against theorists who subscribe to different paradigms if one asserts that one’s own paradigm alone supplies the truth about what “testing” really is. Finally, a “positivist” might argue that “classical” theorists only appear to be using perception as a testing standard, since in principle no perception can disconfirm their theoretical understanding of human behavior. This objection, however, would only serve to reinstate the “falsifiability” problems mentioned in the previous paragraph. The third major formal point relates closely to the previous two, and it concerns the argument of many criminologists that a sharp paradigmatic divide between the classical and positivist traditions can be based on the differing modes of punishment prescribed by the traditions. Jeffery, and legions of others, point out that deterrence and determinate sentencing have been associated with the classical tradition while prevention, cure, treatment/rehabilitation, and indeterminate sentencing have been associated with the positivist tradition. A useful way of encapsulating these differences is to say that it is often believed that classical theorists think punishments should be tailored to the nature of the offense, whereas positivists think punishments should be tailored to the nature of the offender. Such distinctions may well be true as a historical matter. As criminological theorists, however, we should be interested in whether there is any underlying theoretical substance that supports the historical distinction made on the basis of punishment recommendations. Theories of empirically efficacious punishment do not just hang in thin air. They are derived from theories about what prompted the behaviors that elicit punitive reactions. Therefore, the distinction based on historically documented differences in penal policy justify accepting the existence of a paradigmatic divide only if there are cognizable formal and/or substantive differences in theories associated with the two traditions that are used to derive the policies. If the traditions cannot be formally distinguished on the basis of either testing or method, the question becomes what the formal basis of the distinction might be, assuming there is one. The answer criminologists seem inclined to give is, once again, “free will”. It therefore becomes important to establish that the classical theorists, allying

14 themselves as they did with the British Empiricist school of thought, did not endorse free will. This will be done in Chapters 2 and 3. Might the traditions be deeply15 distinguishable, on either formal or substantive grounds, or both, in some way or ways not yet precisely specified although it has been hinted at? The present work suggests that this is so. Contemporary developments in criminology afford some clues as to how this can be done. These developments implicitly, but not explicitly in a clear way, recognize that there is a problem with the conventional wisdom regarding the nature of the classical/positivist position. A current trend in criminological theory acknowledges, sub silentio in most cases, that there are problems with conventionally accepted distinctions between classical and positivist criminology. Recognition that there is such a problem is of course the first step towards solving the problem; to date, however, a good case can be made that criminologists have not succeeded in identifying and clearly formulating a crucial difference between the two traditions that has large implications for criminological theory.

Current Trend: Confusion about the Classical/Positivist divide

Not all criminologists presently accept the classical/positivism divide as it has been framed by many other criminologists. There is a detectable trend towards fusion of the two traditions. Two quite renowned theories (that will be discussed in detail later in the work) illustrate the movement towards some kind of fusion of the two traditions. Gottfredson and Hirschi (1990) see their low self control theory as combining choice elements from classical type thinking with individual difference elements usually associated with positivistic type thinking. Wilson and Hernnstein’s (1985) version of rational choice theory proceeds similarly. There is room for doubt as to whether these writers successfully fuse the traditions. For now, it is important to note that the work of these criminologists is indicative of a trend towards some kind of reconciliation. Gottfredson and Hirschi (1987:14) state, for example: “in short, the classical school…is compatible with the idea of determinism”, since deterrence-a staple of the classical tradition-is compatible with determinism. Similarly, Hirschi (1986:112) argues that “[c]hoice theory is…perfectly compatible with the idea that criminal behavior is caused, and choice theory therefore cannot be rejected on grounds of inconsistency with the idea of causation. In choice theories, causes of crime are factors consistently taken into account by the choice maker”. Nagin and Paternoster (1993:467-468) frame the above issues clearly: Criminological theory has developed along two separate and distinct tracks. Theorists along one track have argued that time-stable individual differences distinguish offenders from non-offenders…[i]n one form or another, such theories constitute “types of person” theories. While differing somewhat in their exact nomenclature, the theories share the common theme of explaining the distribution of criminal offending with reference to individual differences in something like “criminal disposition” or “criminal propensity”.

15 The adverb “deeply” is used because if it is the case that theorists in the two traditions are distinguishable only in terms of relatively specific and technical theoretical constructs rather than in terms of more fundamental paradigmatic and substantive differences, it is difficult to maintain that there is as sharp a divide between them as many criminologists are inclined to assert.

The second track of criminological theory rejects the assumption that offenders dramatically differ from non-offenders in terms of some time-stable personal characteristic. Instead, these theories attribute crime to circumstances and situations in the social setting that are external and proximate to the offender. The early classical school of criminology, for example, attributed crime to the nexus of costs and benefits of offending. Economic theories of crime (Becker, 1967) have elaborated this line of argument, and early social control/social learning theories brought non-legal costs and benefits explicitly into considerations of the causes of crime… …work by Wilson and Hernnstein (1985) and Gottfredson and Hirschi (1990) continues the tradition of attributing persistent criminal offending to enduring differences in criminal propensity among persons; their work, however, radically departs from early “type of person” theories. While underappreciated, both sets of authors also incorporate key assumptions of rational choice theories. Finally, Nagin and Paternoster opine that “in the end, we do not believe that the two criminological traditions examined here should be viewed as competing explanations” (1993:490)16. Perhaps even more tellingly, Vold et al (1998:37) remark that “[p]ositive criminology might seem opposed to classical criminology…but this is not necessarily the case. Rather, classical theories can be interpreted as implying a theory of criminal behavior that is quite consistent with positivism”. Those writers then observe, as does Hirschi, that the certainty and severity of punishment, with which classical thinkers were occupied, can be viewed as just two of many potential causal influences on human behavior, and, likewise, that biological and sociological factors contributing to human behavior can be supplemented by deterrence type variables: “[t]hus, positive criminologists can include the certainty and severity of criminal punishments among many other factors that might influence criminal behavior”(1998: 38). They conclude by stating that: Positivist and classical criminology therefore are really part of the same enterprise-they both seek to identify the factors that influence the incidence of criminal behavior. The basic controversy between them is empirical rather than theoretical: Which factors have more influence on criminal behavior and which have less (1998:38). From the “positivist” standpoint, consider: Children with low HR17 levels have been shown to exhibit a lack of anxiety and are temperamentally fearless (Scarpa, Raine,Venables, and Mednick 1997). Reduced fear is thought to predispose to violence because fearless individuals are less concerned about negative consequences of fighting (e.g., injury or punishment) (Yaralian and Raine, 2001). This quotation evidences a drift towards received view classical style cost/benefit reward/punishment language, even within a biological rubric. Clearly some prominent criminologists feel comfortable enough with the mutual consistency of the propositions arrayed under the two traditions to work with propositions derived from each. Much of

16 We indicated in the introduction that we believe this is error. There is a very big difference between the traditions that involves very disparate views on the efficacy of learning. 17 Heartrate.

16 what the present work attempts to show is that it is indeed possible to work productively while using elements derived from classical criminology as well as positivist criminology, but only when genuine differences between the two are properly understood. Hirschi and Vold et al are in error when they claim that the major difference between the two is an empirical one that involves identifying different types of causes. The attempts to fuse the two traditions fail. The received view of the classical tradition cannot be fused with the received view of the positivist tradition. The classical tradition proper-which we discuss in Chapters 2 and 3-and the received view of the positivist tradition can be fruitfully contrasted, a division of theoretical labor can be based upon the contrast, and the competing predictions emanating from theories aligned under those traditions can be evaluated empirically. The remainder of this chapter outlines the logic underlying these claims by using contemporary theoretical mistakes as a foil.

Some Contemporary Theoretical Mistakes Spawned by the Great Divide

In chapters 2 and 3, strong reasons are given for thinking that the classical criminologists in fact rejected free will, accepted that there is such a thing as criminal propensity, and denied that people invariably behave rationally so as to maximize their self-interest. Had this been recognized by criminologists, major mistakes could have been avoided. These major mistakes still infect theoretical criminology today. The story behind the major mistakes is a simple one. People like simplicity. Furthermore, specialization demands that people rely on what others have said about topics that are seemingly of tangential importance to one’s focused pursuits. A central point of the classical position proper is that individuals differ with respect not only to how well they reason, but with respect to what they desire and how strongly they desire it. Bentham refers to the latter type of variation as the “quantum of sensibility”. This facet of the classical position has been received very little attention by contemporary rational choice theory, which is the heir of the conventional classical position. Rational choice theory seems to be asking us to believe that people commit crimes exclusively as means to the realization of other garden variety ends that are uniformly shared in terms of both degree and kind. This claim is thoroughly documented in Chapter 5, but we note now that Clarke and Cornish (2001) finally appear to be coming round to the more plausible position with respect to motivation (suggested by the “quantum of sensibility” conception) that was maintained by the true classical criminological tradition, although the true classical views on the matter receive no mention. Instead, those authors are content to recite the claim that rational choice theory’s “focus on offenders as rational decision makers calculating where there self- interest lies, and pursuing it, puts it squarely in the classical tradition as developed by Beccaria in the eighteenth century” (2001:24). Theorists who subscribe to the false received view of classical criminology must, if they are to remain loyal to that tradition, eschew versions of criminal propensity theory that ascribe such propensity to special motivational pushes and that hold that such pushes are causally efficacious. This last sentence points to a crucial distinction not picked up on by rational choice theorists that was picked up on by true classical theorists. At first blush, it sounds logically odd to say that one can acknowledge individual variation with respect to motivational pushes towards crime while simultaneously

17 denying that such pushes are causally relevant to behavior. Yet this is precisely what rational choice theorists do, although they are not terribly clear about it. Although it might seem illogical to hold this position, in fact it is not. This position is exactly what is meant by the idea that rational choice theorists subscribe to the sovereignty of reason, which is a doctrine falsely attributed to classical criminologists. In contemporary rational choice language, assertion of the sovereignty of reason is presented as assigning determinative importance to situational variables rather than deep- seated motivational variables. Recent articles on rational choice pay more attention to the notion of criminally inclined motivation, but its influence is relegated (somewhat incoherently) to “background involvement” decisions which are held to take place a long time before crimes are actually committed. “Biopsychological”, “upbringing”, and “social” factors are viewed as having influence “because they shape both the nature of the individual’s accumulated learning and experience as well as his or her current life circumstances” (2001:27). And: Most theories are preoccupied with the factors giving rise to criminal motivations- deep-rooted inclinations or dispositions to commit crime. The rational choice perspective, on the other hand, takes more interest in criminal motives-more fleeting needs or wishes that might be met by crime (2001:33) . Which should be read together with: …it is the immediate influence of situational variables, such as needs and motives, and opportunities and inducements, that trigger the actual decision on whether or not to commit a particular crime (2001:27). What is happening is that rational choice theorists are “hedging their bets”. Faced with the very well known criminological reality that a disproportionate amount of crime is committed by a disproportionately small number of people, some room for criminal propensity must be found without sliding into a causally efficacious propensity position. The way to do this is to say “yes, there may well be individual differences with respect to background motivational factors, but, nevertheless, crime only occurs if rational self- interest, operating in the immediate situation (see the quote alluding to Beccaria above) allows them to”. This is a huge mistake. Hume, whose philosophical thought strongly influences classical criminology, says: Men often act knowingly against their interest18: For which reason the view of the greatest possible good does not always influence them. Men often counter-act a violent passion in prosecution of their interests and designs: ‘Tis not therefore the present uneasiness alone which determines them. In general we may observe, that both these principles operate on the will; and where they are contrary, that either of them prevails, according to the general character or present disposition of the person. What we call strength of mind, implies the prevalence of the calm passions above the violent; tho’ we may easily observe, there is no man so constantly possess’d of this virtue, as never on any occasion to yield to the solicitations of passion and desire. From these variations of temper proceeds the great difficulty of deciding concerning the actions and resolutions of men, where there is any contrariety of motives and passions (Hume, 1739/1985:465)

18 Emphasis added.

On the next page, Hume says “…when we wou’d govern a man, and push him to any action, ‘twill commonly be better policy to work upon the violent than the calm passions, and rather take him by his inclination,19 than what is vulgarly call’d his reason (1739/1985:466). Consider now Beccaria’s statement that “[e]very act of our will is always proportional to the force of the sensory impression20 which gives rise to it” (Beccaria, 1764/1995:41). As to Bentham, the moral philosopher David Lyons states that: Bentham…does believe that our motives and our consequent behavior are strictly determined by unswerving causal laws-laws of human nature. On Bentham’s view of man and motivation, it is as impossible for me to act without such predetermination as it is for me to jump over the moon; and it is impossible in at least as strong a sense. Man is part of the real, natural world, the only world there is, and the mental and volitional aspects of his life are as fully a part of that world as the purely physical aspect (1991:14). These are excellent encapsulations of genuine classical criminological views. The typical criminological representation of these views is a misleading caricature. In a single sentence, what seems to have happened is that criminologists have confused the classical endorsement of the pleasure/pain principle (although even this remark must be qualified) with acceptance of free will and rationality. This mistake is of critical importance for contemporary criminological theory. It infects rational choice theory, biological theory, clouds important issues with respect to social learning theory, and prevents communication between classical and positivist theorists by erecting an impenetrable ontological barrier between them. The above quotes give some indication as to what the genuine classical position is on the related ideas of freedom, rationality, and hedonism. The classical thinkers believed that any given instance of behavior might or might not be self-interested and rational. In any event, they held that behavior is causally determined by the force of passions. They held that the nature and strength of these passions could vary individually. Therefore, they held that the degree to which behavior would exhibit self- interested rationality varies individually. We shall see in Chapters 2 and 3 though, that they also believed that rewards and punishments could be used to generate the semblance of self-interested and rational behavior. In view of these considerations, Cornish and Clarke are completely incorrect in thinking that classical theorists held that people invariably by nature act freely and in self-interested rational ways. Compare now Lombroso’s conventional positivist views with respect to criminal behavior and self-interested rationality. Lombroso says of the female “born criminal”: Their passion of love is extraordinarily impulsive21 and casual. When they conceive a passion for a man they are impelled to gratify it instantly, even at the cost22 of a crime.

19 Emphasis added. Readers may agree that this is a word that smacks more of propensity.than the calm calculus of reason, especially since it is contrasted with reason, which appears in the next clause. 20 Emphasis added. The “sensory impression” language is very likely to have been drawn from Hume. This is documented in Chapters 2 and 3. 21 “Impulsivity” is of course the central construct of Gottfredson and Hirschi’s low self-control theory. Those authors, however, claim that impulsive behavior is actually rational behavior with respect to short- term interests. We canvass this important issue in Chapter 6.

Possessed by one idea, hypnotised, one may say, they can think of nothing except how to appease their passion: they are unconscious of peril and rush into crime to get that which, with a little patience, they might obtain without risk23 (1895/1958:159). Furthermore, in a later major work entitled Crime: Its Causes and Remedies, (1911) Lombroso states:24 Criminaloids, while quite separable from born criminals, do not lack some connection with epilepsy and atavism…[p]sychic anomalies are especially less frequent with the criminaloid, who has not the cynicism of the born criminal nor the passion for doing evil for its own sake25; he confesses his fault more easily and with more sincerity, and repents more often…[t]hey are often drawn into crime by a greater opportunity, although lack of self-control26 which makes the epileptic commit crime without reason27 is sometimes found in the criminaloid also. We may recall how Casenova confessed that when he committed a fraud he never premeditated it, but “seemed to yield to a superior view”. A pickpocket said to me, “When the inspiration comes to us we cannot resist”. Dostojevsky depicts smugglers of the prison as carrying on their occupation almost without returns, notwithstanding the grave risks they run and in spite of repeated promises not to relapse. Mendel and Benedict describe the impulsive nature of the vagabond, which keeps him moving without object and without rest (1911:374). These statements are all instructive. Chapters 2, 3, and 4 produce additional evidence for the following observations: contrary to received views, the classical and positivist positions both accept that behavior is determined by arational, natural forces. Indeed, they both assign signal importance to the passions as individual level causal determinants of behavior. Both traditions accept that the passions can vary in degree as well as kind across individuals. Both deny the idea that humans invariably behave in rational and self-interested ways. Much more importantly for our overall theoretical project, the quotes give some indication that both traditions are willing to acknowledge that in many cases pseudo- rational28 considerations moderate the forceful impact of the passions to steer behavior closer to that which rational self-interest demands. Hume refers to the battle of calm and violent passions while Lombroso observes- at least with respect to criminaloids- that “greater opportunity” can intersect with passionate forces in the determination of behavior.

22 Emphasis added. 23 Emphasis added. 24 Later commentators and textbooks typically shoehorn Lombroso’s views into a simplistic typology that distinguishes between “born criminals”, “occasional criminals”, “epileptic criminals” and “insane criminals” following Wolfgang(in Mannheim (1961)(1972). This quote illustrates that Lombroso’s distinctions between the types are not as sharp as easy categorizations would have us believe. 25 We comment upon this in a moment. 26 Gottfredson and Hirschi’s low self-control theory, which is promulgated in a book that has more than 200 pages and purports to be concerned with traditional criminological issues, makes nary a mention of what Lombroso has to say about impulsivity/self-control. 27 Emphasis added. 28 Any position that does not assign unconditional sovereignty to reason must view actions that simulate rationality as ultimately produced by arational forces and thus only “pseudo-rational”.

20 So far, the traditions seem close to identical. Lombroso, however, says: It would be a mistake, however, to imagine that the measures which have been shown to be effective with other criminals could be successfully applied to born criminals; for these are, for the most part, refractory to all treatment, even to the most affectionate care begun at the very cradle, as Barnardo finally became convinced (1911:432). Lombroso (whose views are pondered in Chapter 4) thought that born criminals could not be brought through instruction to a life emulating the life of reason. We shall also see in Chapter 4 that positivists generally hold that public responses to crime should, if possible, be directed at the removal, if possible, of arational sources of crime rather than the production of self-interested, rational behavior. This represents a third way (the first two having been stated in the introduction) of portraying the genuine difference between the classical and positivist positions. The great irony and the great predicament of contemporary criminological theory is that it fails to make “self-interested rationality” problematic. This is in large part due to unquestioned assumptions about the nature of classical criminology mistakenly cast as knowledge about its nature: “[w]e know that a child of Enlightenment thought was the classical school of criminology, with its emphasis on human beings as rational, calculating, and self-interested creatures” Paternoster and Bachman (2001:47). Many contemporary theoretical errors could have been avoided had criminologists paid attention to what classical criminologists actually said. Theoretical criminology has not advanced nearly as much as 240 years suggest it should have. After 240 years, we are saddled with competing pictures of criminal behavior that are cartoonish in nature. Rational choice theorists place “malevolent” motivations (which we all know exist-sometimes people just want to hurt people for the sake of doing it, and situational factors alone do not always engender such desires) in the background and tell us that people always behave in rational and self-interested ways when all one has to do is open one’s eyes (and/or look in the mirror) to see that this is not so. Positivists would have us believe that it is never the case that people commit crimes just because it makes good sense to do so. Are serotonin levels, unemployment, and strain always relevant to the explanation of crime? Sometimes crimes are committed because passionately constructed pseudo-rational self-interest recommends it. (Incidentally, these are the kinds of crimes that give the illusion of freedom). If behavior were always rational and self-interested, there would be nothing to explain, although there would be a great deal to identify and predict. Predicting criminal behavior would be akin to identifying the initial parameter settings of a computer program. Having identified those settings, the behavior would be deducible by applying a rational self-interest algorithm, and the behavior would require no more explanation than the output of your computer’s calculator does. Just why behavior departs from self- interested rationality, in what ways it departs from self-interested rationality, and how to get it to better conform with the dictates of self-interested rationality are the problems with which theoretical criminologists should be concerned. It makes sense to say to the descendants of the wrongly interpreted classical tradition: there is such a thing as malignant motivation and, furthermore, people do not always behave prudently. It makes sense to say to the positivists: sometimes a cigar is just a cigar.

21 It is therefore suggested that the great divide be replaced by a distinction that retains the idea that there are two camps in criminology but which says that the distinction is in principle empirical in nature and which says that there is abundant room for genuine communication between the camps. One camp can be called the “positivist camp”. Criminologists in this camp should theorize about and research the conditions in which considerations of rational self-interest are substantially (in the “ideal” case, entirely) disregarded. The other camp should be called the “learning camp”. It should theorize about and investigate the conditions that produce the illusion of self-interested rationality in spite of arational forces that work against self-interested rationality. Among other things, this distinction solves the problem mentioned in the introduction of where to situate learning theory. There is no problem as to whether learning theory is a conventional classical theory or conventional positivist theory. Properly interpreted, classical criminology shows us that it deserves a perspective all to itself. Chapters 2, 3, and 4 present abundant strong evidence in support of the above claims regarding the classical and positivist positions. Thus, the next few chapters show that classical criminology proper recognized the causal status of motivational factors, recognized that these factors vary in kind and intensity across individuals, denied that people always behave in self-interested rational ways, and maintained that the semblance of self-interested rationality could be brought about via careful administration of rewards and punishments. Finally, it is shown that the positivist criminologists were also focused on the causal efficacy of individually varying motivational factors and that they deny the view that an ideal administration of rewards and punishments can engender self- interested rationality in offenders.

22 CHAPTER 2 HUME’S EMPIRICISM AND CLASSICAL CRIMINOLOGY

The introduction and the first chapter indicate that the great divide between the classical and positivist traditions places Beccaria and Lombroso on opposite ends of the theoretical spectrum. This is usually done on the basis of free will, the sovereignty of reason, and scientific/methodological criteria. While there is a very significant difference between the two figures, it is cannot be drawn with those criteria. To see this, and to see how they can be more justifiably distinguished, it is necessary to begin by examining the theoretical tradition that Beccaria adopted:British Empiricism.

The Relevance of Hume’s Ontology and Epistemology to Beccaria’s Thinking

There can be no doubt that Beccaria is closely affiliated with British Empiricist figures, in particular with David Hume. Beirne (1991) and Bellamy (1995) note Beccaria’s close intellectual ties to that school of thought. More importantly, Beccaria himself indicates his indebtedness to Hume. In his letter to André Morellet, (1995:121), Beccaria states: I was equally abashed by the obliging things which you pass on to me from those matchless philosophers who do honour to humankind, Europe and their nations- d’Alembert, Diderot, Helvetious, Buffon and Hume: what illustrious, what stirring names!…I find myself repaid beyond my hopes in receiving signs of respect from all these famous men whom I consider my teachers. And: What a wonderful man he must be! Mr. Hume’s profound metaphysics and the truth and novelty of his views astonished and enlightened my mind (1995:122). Finally, from the Inaugural Lecture of 1769: With the overthrow of the dark idol of peripatetic superstition, the light of the most useful sciences29 to humanity began to shine in Europe. The keen observational spirit of natural science spread to public economy and to commerce. Bacon had already sewn the seeds of these first sciences in England, and they were subsequently developed and brought to fruition by other worthy men of that great nation. The first to make the unknown language of economic reason heard in France was the Marshal de Vauban, who shared the profession of arms with Xenophon, from whom we have received the only monument the ancients left us in this area of politics. Melon, the immortal Montesquieu, Ustariz, Ulloa, the philosopher Hume and the founder in Italy of public economy, abbot Genovesi, as well as many others, have pressed on with this science, from which nothing is missing but the final, though by no means less difficult, touches to make it complete and a sound and widely used practical instrument (1769/1995:139). These quotations indicate that Beccaria sympathized strongly with Hume’s metaphysics in addition to sharing Hume’s interest in the burgeoning human science of economics. It is not surprising that Beccaria’s fascination with the human science of economics

29 More on the word “science” in a moment.

23 coincide with his general acceptance of Hume’s metaphysics as well as his (Beccaria’s) interest in moral questions. This is because in the middle of the eighteenth century, moral, philosophical, and scientific questions were viewed as of a piece with one another, and found what many writers believed to be a harmonius fusion in the doctrine of utilitarianism, which even today is the philosophical underpinning of mainstream economics. Consider Bellamy: Beccaria’s brief essay on smuggling of 1764, for instance, offered a classic early application of the mathematical formulation of rational choice theory in order to quantify how high tariffs could be before contraband proved worthwhile…[u]nderlying these economic proposals, with their attack on feudal attitudes and practices, was a new account of human motivation30 and morals. The link between economics, ethics, and psychology was provided by the concept of happiness-the subject of Verri’s31 Meditations on Happiness of 1763 (1995: xiii-xiv). There is therefore something to the idea that Beccaria is interested in science if economics is considered a science, since Beccaria entertains economic problems and treats them mathematically, which is what economists still do. On the surface at least, economics seems to have as much of a claim to scientific status as any other social science, although admittedly opinions differ. The fact that ethical considerations enter into Beccaria’s thinking might be thought to detract from claims that he is practicing science. This is not the case. There is a logic to the convergence of moral philosophy, psychology, and economics. At that point in history, they were believed to complement one another. Hume’s writing evidences these ideas. Hume’s masterwork, A Treatise of Human Nature, (1739) was a work of moral philosophy. In the era of British Empiricism, moral philosophy was distinguished from natural philosophy. Natural philosophy was the study of nature. Newton’s Principia: Mathematical Principles of Natural Philosophy expressly states in its title that it is a work of natural philosophy. Just as natural philosophy preceded what we today call physical science, so did moral philosophy precede what we today call social science. Moral philosophy32 comprehends disciplines of philosophy such as epistemology, metaphysics, and ethics that have to with the nature of reality and humanity’s place within it. In turn, philosophical views were believed to have consequences for views about human conduct. The reasoning was simple. If certain philosophical conclusions regarding human beings were true, what must the abstract influences on human behavior be? Hume’s thought exemplifies this manner of reasoning well. Hume, like many other British Moralists, was interested in ethical questions concerning what “goodness” and “justice” are. Readers might ask themselves how they would go about answering such questions. It is natural to ask what kind of existence goodness and justice are supposed to have, and how we are to gain knowledge of them

30 Emphasis added. 31 Monachesi (1955)(1972:55) notes that Beccaria consulted closely with Verri on the subject of penology before publishing Dei Delitti. Bellamy observes that “Verri played a major role in initiating and eventually editing Beccaria’s most important work” (1995:xii) and also notes that “Verri followed David Hume in believing that luxury provided a necessary incentive for work and industrial innovation, both creating wealth and destroying privilege in the process by forcing landowners to dissipate their wealth in conspicuous consumption, and with it their economic power (1995:xii). There is therefore a fairly direct link between Beccaria and Hume through Verri.

24 assuming they exist. It is a short step from there to ask what knowledge is. The same process can be undertaken in reverse, and this is what Hume did. As empiricists, the British thinkers were primarily interested in epistemology. They came to epistemological conclusions, and used those conclusions as premises to draw additional conclusions about human beings, about ethics, and about behavior. It is easy to show that Hume’s epistemology led him to conclusions about human behavior that functioned simultaneously as conclusions about ethics and about the ruling influence over human behavior. For Hume, questions about ethics and about human behavior were both empirical33 questions having to do ultimately with the same subject matter: ideas and impressions, which in Hume’s ontology is all there is. A synopsis of Hume’s philosophical views sheds light on Beccaria’s views by showing just how the classical thinkers understood reality and human behavior. A concise discussion of Hume’s ontology and epistemology is here offered. Since this is a work on criminological theory and space is a consideration, textual references to Hume are, with some exceptions, confined to his views on human behavior and reason. Hume’s version of empiricism was the most virulent the British School had to offer, and amounted to a full -scale assault on continental rationalism. The rationalists had a substance-based ontology and an a priori epistemology. Hume rejects the concept of substance as well as a priori knowledge, with the famous exception of logical and mathematical truths, which he thought were true by definition. Rationalists thought that 7+5=12, for example, was an eternal and substantive truth about a piece of reality; Hume thought it was true by definition alone34. Now consider an apple on a tree. A rationalist would say that in addition to the perceptible properties of the apple such as shape, smell, taste, color, and so forth, there is an underlying, perduring substance that “supports” those properties. Hume says that all there is- indeed, all there is period- are ideas and impressions35; he thinks that there is no justification for the inference of substances, since these are in principle undetectable by empirical experience (this is his major epistemological point-we can only know that which is given to us in experience). Thus, Hume thinks that material objects such as the apple (and the tree, for that matter) are nothing more than combinations, or bundles, of

33 Hume’s parsimonius empiricism is what underpins the “logical positivist” philosophy of science of the Vienna Circle, which sponsors the notorious “Verification Principle”. Essentially, epistemological and ontological problems associated with that principle coupled with the fact that the practice of science frequently postulates unobservable theoretical entities led to the downfall of logical positivism, which during its heyday was considered the ultimate form of scientific empiricism. Therefore, one should be careful to distinguish “positivism” in its philosophy of science sense from its usage in theoretical criminology. In ontological and epistemological terms, the true classical criminologists were actually philosophy of science positivists, and they would have viewed figures such as Lombroso who explained criminal behavior via the postulation of unobservable entities as unscientific. Barbour’s (1974) Myths, Models, and Paradigms provides a good account of many philosophy of science doctrines that is accessible to those without formal philosophical training. 34 Another way of putting this is to say that rationalists thought that 7+5 would equal 12 even if there were never any human beings. Hume does not agree with that. 35 Hume says “[t]he difference betwixt these [impressions and ideas] consists in the degrees of force and liveliness, with which they strike upon the mind, and make their way into our thought or consciousness. Those perceptions which enter with the most force and violence, we may name impressions; and under this name I comprehend all our sensations, passions and emotions, as they make their first appearance in the soul. By ideas I mean the faint images of these in thinking and reasoning…Hume (1739/1985:49).

25 impressions (ideas are copies of impressions; so that, if I feel an ice cube, the immediate feeling of coldness is an impression, and my memory of that feeling a minute later is an idea of that impression). Hume famously applied this ontology and epistemology to the concept “causation”36. Suppose our apple falls off the tree. Rationalists think that the mind has a priori knowledge that something causes the apple to fall off the tree- i.e, that there really is such a thing as a cause in nature, and that we can be certain that there is in spite of our experiencing only a succession of perceptions (in Humean terms, ideas and impressions) Hume says: It is only on the discovery of extraordinary phenomena, such as earthquakes, pestilence, and prodigies of any kind, that they [the generality of mankind] find themselves at a loss to assign a proper cause, and to explain the manner in which the effect is produced by it. It is usual for men, in such difficulties, to have recourse to some invisible intelligent principle as the immediate cause of that event which surprises them, and which, they think, cannot be accounted for from the common powers of nature. But philosophers, who carry their scrutiny a little bit farther, immediately perceive that, even in the most familiar events, the energy of the cause is as unintelligible as in the most unusual, and that we only learn by experience the frequent conjunction of objects, without being ever able to comprehend anything like connection between them (Hume, 1748/1974:356-357). The same reasoning applies to the mind. Hume did not believe in free will, since he did not think it made sense to say that people can determine themselves to action by the exercise of willpower (which would be a kind of cause): A man, suddenly struck with palsy in the leg or arm, or who had newly lost those members, frequently endeavors, at first to move them, and employ them in their usual offices. Here he is as much conscious of power to command such limbs, as a man in perfect health is conscious of his power to actuate any member which remains in its natural state and condition. But consciousness never deceives. Consequently, neither in the one case nor in the other, are we ever conscious of any power. We learn the influence of our will from experience alone. And experience only teaches us, how one event constantly follows another…(1748/1974:355-356). In a similar vein: As to free will, we have shewn that it has no place with regard to the actions, no more than the qualities of men. (1739/1985:658). Since Hume did not believe in free will, and since Beccaria was aware of Hume, extolled Hume, adopted an ethical approach (as we shall see in the next chapter) entirely consistent with British Empiricism’s utilitarianism, accepted (as we shall see in the next chapter) the idea of “associationism”, and, lastly, nowhere in his major work expresses a belief in free will, the burden of proof should be placed on those who think Beccaria did espouse free will. If Beccaria did not believe in free will, then his status as a classical criminologist cannot be based on that criterion alone. He cannot reasonably be called classical on grounds of his failure to use scientific methodology, either. On the subject of “associationism”, Hume says:

36 Here, we are closing in on the classical/positivist divide and Hume (as well as Beccaria’s) view of human behavior.

26 As all simple ideas37 may be separated by the imagination, and may be united again in what form it pleases, nothing wou’d be more unaccountable than the operations of that faculty, were it not guided by some universal principles, which render it, in some measure, uniform with itself in all times and places. Were ideas entirely loose and unconnected, chance alone wou’d join them; and ‘tis impossible the same simple ideas should fall regularly into complex ones (as they commonly do) without some bond of union among them, some associating quality, by which one idea naturally introduces another. This uniting principle among ideas is not to be consider’d as an inseparable connexion; for that has already been excluded from the imagination: Nor yet are we to conclude, that without it the mind cannot join two ideas; for nothing is more free than that faculty: but we are only to regard it as a gentle force, which commonly prevails, and is the cause38 why, among other things, languages so nearly correspond to each other; nature in a manner pointing out to every one those simple ideas, which are most proper to be united into a complex one. The qualities from which association arises, and by which the mind is after this manner convey’d from one idea to another, are three, viz. resemblance, contiguity in time or place, and cause and effect39 (Hume, 1739:57-58). Hume here announces his theory about what accounts for the way in which ideas succeed one another in the mind. He thinks the mind tends to associate ideas on the basis of resemblance, contiguity in time or place, and “cause” and “effect”. One component of learning theory (which is of course a staple of contemporary social science) is established here-the specification of mental operations in terms of the experienced association of ideas and impressions. The mind is viewed as linking together ideas on the basis of experienced relations between impressions and the ideas those impressions generate. All that is needed to round out the conceptual foundation for a proto-learning theory is a view about the relationship between the association of ideas by the mind and the pleasure/pain principle. This is exactly what Hume offers. In his terms, painful and pleasurable responses from the external world set up associations of ideas in the mind of actors, associations which yield aversion to painful situations and attraction to pleasurable ones. Before specifying Hume’s account of this process, it is worth pausing for just a moment to highlight the fact that Beccaria adopted wholesale Hume’s account of associationism. This is important, because one’s views about the fundamental operations of the mind have a great deal to do with one’s views on the influences on human behavior. If, therefore, Beccaria adopted Hume’s views about the workings of the mind, one should read Beccaria from a Humean standpoint: that is, as an empiricist and a determinist who thought that experiences with pleasure and pain were of fundamental importance in the explanation of human behavior. Moreover, if Beccaria adoped Hume’s views on the workings of the mind, we have every reason to expect that his explanation

37 Simple ideas are “such as admit of no distinction or separation” (Id.:50) and that complex ideas are “the contrary to these, and may be distinguished into parts. Tho’ a particular colour, taste, and smell are qualities all united together in this apple, ‘tis easy to perceive they are not the same, but are at least distinguishable from each other” (Id.) 38 Hume is not being inconsistent here. He is using the word “cause” in the colloquial, and not the philosophical sense. 39 Again, Hume is expressing himself colloquially.

27 of human behavior will comport with Hume’s. There would therefore be additional justification for criminological exploration of Hume’s views about the explanation of human behavior. That Beccaria did adopt these views is clear from the following declarations by Beirne, supported by citations from Beccaria’s Dei Delitti: Beccaria’s penal calculus rested on the view that it is better to prevent crimes than to punish them. This can only occur if the law forces potential criminals to make an accurate “association” of ideas between crime and punishment. “It is well established”, Beccaria claimed, along with Hume and Helvetius, “that the association of ideas is the cement that shapes the whole structure of the human intellect;40 without it, pleasure and pain would be isolated feelings with no consequences” (1764:36) (Beirne,1991:804)41 Hume and Beccaria’s associationism has direct bearing on the great divide, and so a parenthetical discussion on the divide is offered here. We return to the main line of argument shortly. Readers will recall that one key plank of the great divide asserts that the classical and positivist traditions can be distinguished in terms of scientific method. It is asserted that the classical thinkers did not test their claims, and it is believed that positivist thinkers did. Hume, however, proposes experimentation to lend credence via induction to his claims about associationism. He makes a theoretical claim about the origin of the passion “pride” which holds that pride can only arise if there are objects somehow available that are capable of stimulating a pleasurable response42 that is associated with some aspect of the self. He then proposes exposing people to “neutral” objects such as stones to see whether or not pride can be stimulated by such objects. (Hume, 1739/1985:383-384). This is hardly a sophisticated experimental protocol. Is it, however, any less sophisticated a method than Lombroso’s skull measurements (which are often graced with the label “scientific method”, albeit crudely so)? Furthermore, one might argue that Hume’s experiment is more methodologically sound than Lombroso’s methods were since Lombroso’s methods, by their nature, were incapable of yielding anything other than, to use his term, “signs”, or evidence consistent with his theory of atavism; his methods could not prove atavism. The theoretical construct of atavism refers to an in principle unobservable phenomenon. Hume’s approach at least appealed to phenomena that were in principle observable to consciousness, as one would expect given his

40 Emphasis added. 41 In a footnote to the quotation, Beirne remarks that the philosophical writings of Hume and Helvetius were among the “French books” to which Beccaria admitted “I myself owe everything”. 42 It is worth noting here that Hume viewed the connection between pleasurable affects, the self, and the passion pride as empirical, not logical, in nature. This is important, because it relates to the “tautology” dispute that surrounds learning theories. Hume thought it was an empirical law that the above terms are so associated; he did not think that by definition pride must have the self as an object and must be accompanied with a pleasurable affect. He thought similarly (as we shall see) about the connection between pleasure, or reward, and human behavior. He believed that it is an empirical law that human beings invariably acted so as to pursue pleasure and avoid pain. Otherwise put, he thought it logically possible that things might have been otherwise. Akers (1998:108-109) is therefore incorrect when he asserts that the impossibility of falsifying reinforcement theory (if reinforcement is not defined independently of strengthening of response) shows that the theory is tautologous. He is confusing tautology with falsifiability. Logically speaking, any asserted empirical law can be falsified, although it might not be possible to do so in practice. A tautologous statement, on the other hand, cannot be falsified as matter of logic, since tautologous statements are empty and make no claims.

28 empiricism. Moreover, in a related vein, one can argue that Hume’s experiments are at least as scientific as Lombroso’s are, since Hume proceeds inductively while Lombroso hypothesizes unobservable entities that are arguably no more “real” than Plato’s “Ideas.” Furthermore, it should be remembered that Lombroso’s physiognomic measurements were not understood by him to constitute atavism; they were understood as indicators of atavism, and so the possibility of ad hoc attributions of atavism in the absence of previously identified physiognomic indicators plagues his system. The writer does not hope to have completely convinced readers that the arguments are knockdown winners against attempted methodological distinctions between the classical and positivist traditions. It is only hoped that readers are convinced that the methodological distinction is more problematic than it might seem at first blush. If the free will distinction is invalid, and the methodological distinction is shaky, it would seem that there are good reasons to cast about for a distinction that better withstands close scrutiny and that is not ultimately heavily reliant on the notoriously slippery definitions of words such as “testing” and “scientific method”.

Hume’s General Theory of Human Behavior

It was mentioned above that Hume’s (and Beccaria’s) doctrine of associationism supplies one part of a learning theory foundation. Learning occurs in part because the mind is disposed to associate ideas and impressions in terms of resemblance, “cause and effect”, and so forth. The other part, of course, has to do with pleasure and pain coupled with some doctrine pertaining to reinforcement. Reflecting on Hume’s metaethical43 theory is a good way to gain understanding of his views of the causes of human behavior. A byproduct of discussing Hume’s approach to ethics is that readers will have a better idea about why Beccaria, and other classical thinkers, fused the discourses of morality and psychology. In turn, this will afford even more reason for viewing Beccaria as a criminological theorist and not as just concerned with criminal justice policy. On the subject of good and evil, Hume says: Some objects, by being naturally conformable or contrary to passion, excite an agreeable or painful sensation, and are thence called good or evil. The punishment of an adversary, by gratifying revenge, is good: the sickness of a companion, by affecting friendship, is evil44 (Hume, Dissertation on the Passions vol iv)45 Hume here rejects supernatural, or metaphysical, conceptions of good and evil. He locates their meaning, and their referents, in experience. Their meaning and their referents are feelings of pleasure and pain. He asserts that the meaning of ethical words like “good” is whatever pleasurable affect occurs in the speaker that corresponds to their use of the word “good”. This metaethical connection of the good with pleasure forms the basis of the linkage between utilitarian moral claims of the kind Beccaria advances and a complementary learning theory type of psychology that incorporates pleasure and pain

43 Metaethics deals with the truth value, or lack thereof, of ethical statements, and does not debate substantive moral claims. 44 Hume probably should have said “other things being equal” here. 45 Hume continues the Pythagorean and skeptical project in the sphere of ethics in that he thinks man is the measure of all things ethical.

29 as key elements. Hume thinks that just as there is a fact (albeit highly relative) of the matter as to what “good” and “evil” stand for, there is also a fact of the matter as to the basic motivators of human conduct. They are the same facts: pleasure and pain. People desire pleasure and are averse to pain; they declare those things to be “good”46 that bring them pleasure, and those things “evil” that bring them pain. The task now is to show precisely how Hume conceived the relationship between associationism, pleasure, pain, desire, and human behavior. Hume says: All laws47 being founded on rewards and punishments, it is supposed as a fundamental principle, that these motives have a regular and uniform influence on the mind, and both produce the good and prevent the evil actions. We may give to this influence what name we please, but as it is usually conjoined with the action, it must be esteemed a cause, and be looked upon as an instance of that necessity, which we would here establish48 (1748/1974:378). For Hume, then, the basic influences on human behavior are pleasure and pain. In a passage from his Treatise, he connects “pleasure” and “pain” vocabulary with his theory regarding the passions, impressions, and ideas: An impression first strikes upon the senses, and makes us perceive heat or cold, thirst or hunger, pleasure or pain of some kind or other. Of this impression there is a copy taken by the mind, which remains after the impression ceases; and this we call an idea. This idea of pleasure or pain, when it returns upon the soul, produces the new impressions of desire and aversion, hope and fear, which may properly be called impressions of reflexion, because derived from it. These again are copied by the memory and imagination, and become ideas; which perhaps in their turn give rise to other impressions and ideas (1739/1985:55). Hume states that in the typical course of events, impressions from the “external world” appear in the mind and produce impressions of pleasure and pain. In turn, pleasure/pain impressions are copied and reappear as ideas which, in their turn, engender new impressions of desire and aversion. These latter impressions are passions. Hume divides passions into two kinds: the calm and the violent. “Of the first kind is the sense of beauty and deformity in action, composition, and external objects. Of the second are the passions of love and hatred, grief and joy, pride and humility49” (1739/1985:328). In general and concise terms, Hume thinks that passions are: “sensible emotion[s] of mind” that typically arise when “any good or evil is presented” (1739/1985:484). Hume also argues that:

46 Calling a “sinful” activity “good” means that the sinful activity is disapproved of by the speaker-i.e., the speaker feels a sense of aversion at contemplation of the action. 47 By “laws”, Hume means to refer to laws of human psychology. 48 Readers are asked to recall the specialized interpretation Hume gives to the word “cause”. The reference to “necessity” is yet another indication of Hume’s rejection of free will. 49 “Humility” is the passion that is “directly contrary to pride”. Hume says that “humility” and “pride” have the same object: the self. The passion pride arises from the pleasant sensation one experiences when contemplating one’s advantages; humility is the painful sensation of dejection one experiences when contemplating one’s disadvantages. (See Id.:329). For purposes of completeness, we should mention that Hume denominates each of these “indirect passions” and says that such passions result from a double relation of ideas and impressions. Hume’s distinction between direct and indirect passions does not affect our argument.

30 …passions frequently arise from a natural impulse or instinct, which is perfectly unaccountable. Of this kind is the desire of punishment to our enemies, and of happiness to our friends; hunger, lust, and a few other bodily appetites. These passions, properly speaking, produce good and evil, and proceed not from them, like the other affections (1739/1985:486). Thus, Hume believes that human nature is constituted by something like what moderns would call drives, and he thinks these drives generate passions the gratifications of which yields pleasure and the frustration of which can generate pain. This means that Hume recognizes that behavior can be “pushed” by arational forces as well as “pulled” by pleasure/pain expectations. As Hume puts it: “[w]hen I receive any injury from another, I often feel a violent passion of resentment, which makes me desire his evil and punishment, independent of all considerations of pleasure and advantage to myself” (1739/1985:465). Readers may note that the great divide characterizes this kind of thinking as positivist thinking, since it alludes to biological forces, curtails the dominance of the pleasure pain principle, and undercuts the importance of rationality. Developing Hume’s thought further helps us to see that from a criminological standpoint Hume is best thought of a classical criminologist even though he held the above views. This entails that the great divide misspecifies both classical and positivist criminologies. A better specification of the distinction between the traditions is offered later in the work. Even more important than this distinction for Hume is the above mentioned distinction between calm and violent passions. The distinction is one of intensity. Hume puts the distinction this way: What we commonly understand by passion is a violent and sensible emotion of mind, when any good or evil is presented, or any object, which, by the original formation of our faculties, is fitted to excite an appetite. By reason we mean affections of the very same kind with the former; but such as operate more calmly, and causes no disorder in the temper: Which tranquility leads us into a mistake concerning them, and causes us to regard them as conclusions only of our intellectual faculties (1739/1985:484). Later in the work it will become clear that Hume’s distinction between the calm and violent passions has direct bearing on the contemporary “impulsivity” construct. The classical criminological view turns out to be that impulsive behavior is behavior that results when the influence of violent passions outweighs the influence of calm passions. Hume rejects the contemporary idea (the origin of which is incorrectly attributed to the classical criminologists) that impulsive behavior is the product of a free and rational choice to enjoy short-term pleasures. Far from ascribing impulsive behavior to free and rational (albeit only for the short-term) choice, Hume ascribes it to determination by violent and intense passions. It is now possible to construct a summary of Hume’s psychology, or his general account of human behavior. Hume thinks that that the passions (in particular, their strength), and not reason, are what determines the will, and therefore behavior. He also thinks that passions arise from two casual sources: experiences with pleasure and pain and drives. Hume’s psychology integrates the passions, experiences with pleasure and pain, drives, and associative processes in arriving at a conception of behavior that blends elements usually thought of as being housed under paradigmatically separate theoretical traditions. From what most criminologists would call a “positivist” standpoint, Hume

31 assigns causal relevance to bodily processes, denigrates the influence of rationality on behavior, and assigns a strong causal behavioral role to automatic, arational associative processes. From what most criminologists would call a “classical” standpoint, Hume assigns causal significance to experiences with pleasure and pain and recognizes that behavior can on occasion mimic rationality by virtue of being determined by “calm” passions. To see why Hume is overall best viewed as a classical thinker, and to get a better idea of just how the present work argues for a rethinking of the great divide, we must turn to a more precise examination of just how Hume conceived the relationship between reason, the passions, and behavior.

Hume’s Theory of the Relationship Between Reason and the Passions

Hume articulates himself clearly and powerfully on this point. Let us look at some length at how he specified the relationship between reasons and passions, and hence, behavior: ‘Tis obvious, that when we have the prospect of pain or pleasure from any object, we feel a consequent emotion of aversion or propensity, and are carry’d to avoid or embrace what will give us this uneasiness or satisfaction. ‘Tis also obvious, that this emotion rests not here, but making us cast our view on every side, comprehends whatever objects are connected with the original one by the relation of cause and effect. Here then reasoning takes place to discover this relation; and according as our reasoning varies, our actions receive a subsequent variation. But ‘tis evident in this case that the impulse arises not from reason, but is only directed by it. ‘Tis from the prospect of pain or pleasure that the aversion or propensity arises towards any object: And these emotions extend themselves to the causes and effects of that object, as they are pointed out to us by reason and experience.50 Since reason alone can never produce any action, or give rise to volition, I infer, that the same faculty is as incapable of preventing volition, or of disputing the preference with any passion or emotion….[n]othing can oppose or retard the impulse of passion, but a contrary impulse…[b]ut if reason has no original influence, ‘tis impossible it can withstand any principle, which has such an efficacy, or ever keep the mind in suspence a moment. Thus it appears, that the principle, which opposes our passion, cannot be the same with reason, and is only call’d so in an improper sense. We speak not strictly and philosophically when we talk of the combat of passion and of reason. Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them (1739/1985:461-462). Hume argues that reason alone cannot motivate the will, and therefore behavior. Rather, reason is what allows individuals, in varying degrees depending on the circumstances and depending on the individual51, to formulate a cognitive conception of the world in order

50 We shall call this operation of reason “executive rationality”. 51 That Hume thinks there are individual differences in the capacity to reason will be documented shortly. The fact that he does think there are such differences strikes another strong blow against the conventional criminological view that classical thinkers did not recognize such differences, and that it was not until the advent of positivism that such differences were recognized.

32 to satisfy the passions in ways that yield pleasure and avoid pain. It does so on the basis of principles announced earlier. It uses association, contiguity, “cause and effect”, resemblance, and so forth to indicate ways in which pleasures can be had and pains avoided, and what the likely results of possible behaviors are. This is a very deterministic position. Hume thinks that self-interested reason is at best, and in varying degrees, the “governor”, in the mechanical sense of the word, of desire. Actions can fail to conform with the dictates of self-interested rationality (“men often act knowingly against their self-interest [f]or which reason their view of the greatest possible good does not always influence them” (1739/1985:465)) for two types of “reasons”. The first type of reason is that associative and calculative processes may yield inaccurate information about the consequences of actions. This can be called a failure of “executive rationality”. Additional discussion of this type of failure follows shortly. Second, even if the executive operations of reason are functioning smoothly, behavior will depart from the dictates of self-interested rationality to the degree that people refuse to abide by the course of conduct recommended by executive rationality. We call this a failure of “evaluative rationality” because it consists in disregarding, or ignoring entirely, the output of executive rational processes. Since Hume’s ontology is such that it contemplates the breakdown of each these forms of rationality, classical criminological views are sharply different from those so often attributed to it. Hume thinks that arational, natural passions (such as revenge and lust) can dictate conduct without regard to the operations of executive rationality (which is tantamount to saying without reference to rational pleasure/pain calculations). Furthermore, he thinks that even if executive rational processes are functioning properly the possibility of present-oriented impulsive actions that irrationally discount future pleasures and pains remains: Accordingly we find in common life, that men are principally concern’d about those objects, which are not so much remov’d either in space or time, enjoying the present, and leaving what is far off to the care of chance and fortune. Talk to a man of his condition thirty years hence, and he will not regard you. Speak of what is to happen tomorrow, and he will lend you attention (1739/1985:475).52 Thus, Hume thinks that even if attention is paid to rational pain/pleasure considerations, those considerations may be discounted by actors. In sum, Hume thinks that reason cannot on its own motivate behavior and that there is no guarantee that reason can check impulsive behavior. These are hardly the views of rationality that are usually ascribed to classical criminology. By way of common sense illustration of Hume’s idea that reason is the slave of the passions, suppose someone reasons and concludes that “I should go on a diet; my doctor told me so, I would feel better about myself, and I could go to the beach again”. Hume says that this reasoning has absolutely no power to generate the behavior of dieting. It is only, Hume says, if that person already has a sufficiently strong passion, or desire, to diet that they will set about reasoning to uncover, and eventually execute, ways of dieting that tend to yield pleasure and minimize pain. The question now arises: what accounts for the confusion that many people have that reason does in fact sometimes govern behavior? Answering this leads directly to Hume’s views regarding learning and

33 allows us to fulfill the earlier promise regarding the elaboration of the “calm passion” and “impulsivity” notions. Hume says: Now ‘tis certain, there are certain calm desires and tendencies, which, tho’ they be real passions, produce little emotion in the mind, and are more known by their effects than by the immediate feeling or sensation. These desires are of two kinds; either certain instincts originally implanted in our natures, such as benevolence and resentment, the love of life, and kindness to children; or the general appetite to good, and aversion to evil, consider’d merely as such. When any of these passions are calm, and cause no disorder in the soul, they are very readily taken for the determinations of reason, and are suppos’d to proceed from the same faculty, with that, which judges of truth and falshood. Their nature and principles have been suppos’d the same, because their sensations are not evidently different (1739/1985:464). Here Hume acknowledges that there is an instinctive component to human behavior (a fact completely missed by the usual interpretation of classical criminology) and asserts that what appears to be rational behavior is actually behavior that is governed by calm passions that are instinctive. Therefore, insofar as criminal behavior is behavior that departs from the dictates of self-interested rationality, Hume is saying that some people are more prone to criminal behavior by nature, which is exactly what the conventional classical position denies. Clearly, conventional classical criminologists have not read Hume carefully. Moreover, lest there remain any doubt on the issue in light of the foregoing, Hume explicitly asserts that such instinctive differences with respect to self-interested rationality vary individually: In general we may observe, that both these principles operate on the will; and where they are contrary, that either of them prevails, according to the general character or present disposition of the person. What we call strength of mind, implies the prevalence of the calm passions above the violent; tho’ we may easily observe, there is no man so constantly possess’d of this virtue, as never on any occasion to yield to the solicitations of passions and desire. From these variations of the temper proceeds the great difficulty of deciding concerning the actions and resolutions of men, where there is any contrariety of motives and passions (1739/1985:465) These passages indicate Hume’s belief that many people mistake the influence of calm passions on the motivation of behavior with a supposed influence of reason on the motivation of behavior. This is just another way of stating the idea that “reason is the slave of the passions”. For Hume, rational behavior, when it occurs, is an illusion. If, however, it is really the calm passions that motivate conduct in cases where it looks like reason is doing so, then it follows that if behavior is to be produced that displays rationality-in the sense that it takes into account the cognitive estimation of future consequences in terms of pleasure and pain-then there must be some manner of ensuring that the “calm passions” prevail over the violent ones. The next question, then, is how is how does Hume think a second-order calm passion in favor of the results of reason is brought about? Does he think self-interested rationality is a hopeless prospect if a person is instinctively driven to entirely arational conduct?

34 Of course not. In consistent empiricist terms, he argues that experience, or “learning” can effectuate the illusion of self-interested, rational behavior. A calm second-order passion in favor of selecting behaviors suggested by reasoning processes must be nurtured and reinforced if it is to motivate conduct, and, therefore, if conduct is to conform with what reason communicates to the actor about future consequences. Since Hume thinks that on the whole humans are more rational than animals53, the following quote gives a good preliminary indication of the role he thinks learning has in shaping the passions: An old greyhound will trust the more fatiguing part of the chase to the younger, and will place himself so as to meet the hare in her doubles; nor are the conjectures, which he forms on this occasion, founded in anything but observation or experience. This is still more evident from the effects of discipline and education on animals, who, by the proper application of rewards and punishments, may be taught any course of action, and most contrary to their natural instincts and propensities. Is it not experience, which renders a dog apprehensive of pain, when you menace him, or lift up a whip to beat him? (1748/1974:384). In addition to providing some evidence of Hume’s commitment to a kind of learning theory, this quote affords us a good opportunity to depart from the present discussion for just a moment in order to make an important point. While the discussion of Hume has shown that there are good reasons for thinking that both traditions, contrary to the received criminological view, recognize individual differences and reject free will, positivism does not hold that “the proper application of rewards and punishments” is in theory sufficient to overcome “natural instincts” and “propensities”. Not even an omniscient deity, positivists think, could train people so well that they invariably tend to maximize their rewards and minimize their punishments. The logic of the positivist position is: if conditions X, Y, Z, etc. obtain, then crime will occur no matter what a person has learned and no matter what self-interested rationality has to say. Returning now to the main line of argument, it is important to understand that Hume thought reasoning applies to ordinary human behaviors in a way that is quite different than it applies to scientific or philosophical activity. Appreciating this is the key to fully comprehending the learning element in his theory. Logical reasoning conducted on the basis of ideas and impressions is different, Hume thinks, than the associative reasoning that is connected with human behavior. Suppose a scientist starts with the proposition “all metal expands when heated” and then picks up a piece of metal. Next, suppose they say “this is a piece of metal”. Logical reasoning will lead them to the conclusion that “this piece of metal will expand if I heat it”. With respect to behavior, however, it is “custom”, or habit, and not necessarily conscious, or argumentative, inference, that yields the associations that generate impressions and ideas of future pleasures and pains. It is impossible, that this inference of the animal can be founded on any process of argument or reasoning, by which he concludes, that like events must follow like objects, and that the course of nature will always be regular in its operations. For if there be in reality any arguments of this nature, they surely lie too abstruse for the observation of such imperfect understandings; since it may well employ the

53 Documentation of this will appear shortly.

35 utmost care and attention of a philosophic genius to discover and observe them. Animals, therefore, are not guided in these inferences by reasoning; neither are children; neither are the generality of mankind, in their ordinary actions and conclusions…Nature must have provided some other principle, of more ready, and more general use and application; nor can an operation of such immense consequence in life, as that of inferring effects from causes, be trusted to the uncertain process of reasoning and argumentation. Were this doubtful with regard to men, it seems to admit of no question with regard to the brute creation; and the conclusion being once firmly established in the one, we have a strong presumption, from all the rules of analogy, that it ought to be universally admitted, without any exception or reserve. It is custom alone, which engages animals, from every object, that strikes their senses, to infer its usual attendant, and carries their imagination, from the appearance of the one, to conceive the other, in that particular manner, which we denominate belief. No other explication can be given of this operation, in all the higher, as well as lower classes of sensitive beings, which fall under our notice and observation (1748/1974:384-385). Hume thinks that in human beings, as in animals, executive rationality works by way of customary and habitual associations, the nature of which is driven ultimately by rewards and punishments, a highly learning oriented approach indeed. What is customary and habitual, however, is not necessarily rational and self-interested. This is why learning theory at bottom is not a rational choice theory. It is because learning theory confuses sensitivity to rewards and punishments with rationality that learning theory misconceives its relationship to rational choice theory. Chapter 5 relates these insights of Hume’s regarding the operation of reason with respect to behavior to the contemporary notion of “satisficing”. In sum, then, for Hume the challenge involved in teaching people to behave rationally is two-fold. First, the mind’s natural process of association must be trained-on the basis of rewards and punishments-in such a way that two capacities are facilitated. The capacity to anticipate the likely outcomes, in terms of rewards and punishments, of potential behaviors must be honed, and habits of linking together associations in ways that yield efficient strategies for gratifying desires must be shaped. Second, the capacity to prioritize a second-order calm passion that favorably weights the likely outcomes of behaviors, as yielded by associative reasoning processes, must be encouraged. In both instances, the mechanisms that achieve the results are learning-type mechanisms. We can summarize them by saying that Hume thinks people must be taught to properly execute rational processes and must be taught to abide by the results of proper execution. Two very important and related metatheoretical conclusions flow from Hume’s thought. First, if Hume’s argument regarding reason and the passions is correct, the view that behavior invariably maximizes perceived pleasures/rewards is false. Hume argues that reason has no independent causal significance and that it is the strength of the passions that determines behavior. There is therefore nothing to prevent strong, intense passions from producing behavior that conflicts even with short term perceived rational interests. Hume observes: “[m]en often act knowingly against their interest: For which reason their view of the greatest possible good does not always influence them” (1739/1985:465). Second, Hume’s empiricism suggests that the calm passions, and

36 hence behavior that mimics rationality, should be cultivated by removing, or limiting the influence of, environmental variables that tend to precipitate intense emotions and by administering repeated and swift relatively low intensity rewards for behavior that issues from calm, tranquil passions. Swiftness/celerity, it should be noted, matter according to Hume because one is trying to generate or improve (depending on how calm the individual is by nature) a calm emotional phenomenology. Since such a phenomenology is by hypothesis passionate and not rational, utilization of incentives is increasingly useless the more the incentives are in the future. Hume believes that if this process is successful, “a settled principle of action” (1739/1985:466) in favor of the calm passions is brought about; that is, a character trait is molded, with the expectation that a gentle but forceful emotionality and rational reflectiveness will pervade the character. It is true that, as we recognized above, Hume acknowledges that “the causes and effects of these violent and calm passions are pretty variable and depend, in a great measure on the peculiar temper and disposition of every individual” (1739/1985:484). This just confirms that Hume that recognized individual differences, even those of the sort we would today call biological/organic, are relevant to behavior. In spite of his recognition of such factors, Hume’s endorsement of the supremacy of the reward/punishment law makes him a classical criminologist. Hume’s position can be viewed as the first criminological control theory, with the added benefit that it does not sweep motivational considerations under the rug in the way Hirschi’s version does. Hume’s control theory is a theory that appeals to control of emotionality, not rationality- unlike Hirschi’s theory which seeks to establish control along cost/benefit lines. Before concluding the discussion of Hume and moving to a discussion of Beccaria, it is worthwhile to provide an indication of Hume’s thinking regarding the nature of individual differences in relationship to executive rationality. We have already seen that he holds that there are such differences with respect to evaluative rationality. Doing so provides additional evidence against the contemporary view that classical thinkers believed individuals are equally rational (Gottfredson and Hirschi, 1990:86-87; Wilson and Hernnstein 1985:515-516; and Nagin and Paternoster 1993:305-306 for examples of important individual-level theorists who make this claim) and also shows that Hume addressed, albeit with different terminology, issues raised by contemporary “bounded rationality” theorists, who we will have occasion to consider in Chapter 5. With respect to the nature of differences in the capacity of individuals to behave rationally, Hume states: Since all reasoning concerning facts or causes is derived merely from custom, it may be asked how it happens, that men so much surpass animals in reasoning, and one man so much surpasses another?…We shall here endeavor briefly to explain the great difference in human understandings; after which the reason of the difference between men and animals will easily be comprehended. 1. When we have lived any time, and have been accustomed to the uniformity of nature, we acquire a general habit, by which we always transfer the known to the unknown,54 and conceive the latter to resemble the former. By means of this general habitual principle, we regard even one experiment as the foundation of reasoning and expect a similar event with some degree of

54 This would seem to correspond to the “generalization” of stimuli mentioned by the social learning theorist Akers (1994).

37 certainty, where the experiment has been made accurately, and free from all foreign circumstances. It is therefore considered as a matter of great importance to observe the consequences of things; and as one man may very much surpass another in attention and memory and observation, this will make a great difference in their reasoning. 2. Where there is a complication of causes to produce any effect, one mind may be much larger than another, and better able to comprehend the whole system of objects, and to infer justly their consequences. 3. One man is able to carry on a chain of consequences to a greater length than another. 4. Few men can think long without running into a confusion of ideas and mistaking one for another; and there are various degrees of this infirmity. 5. The circumstance, on which the effect depends, is frequently involved in other circumstances, which are foreign and extrinsic. The separation of it often requires great attention, accuracy, and subtlety.55 6. The forming of general maxims from particular observation is a very nice operation; and nothing is more usual, from haste or narrowness of mind which sees not on all sides, than to commit mistakes in this particular. 7. When we reason from analogies, the man, who has the greater experience or the greater promptitude of suggesting analogies, will be the better reasoner. 8. Biases from prejudice, education, passion, party, etc., hang more upon one mind than another. 9. After we have acquired a confidence in human testimony, books and conversation enlarge much more the sphere of one man’s experience and thought than those of another. It would be easy to discover many other circumstances that make a difference in the understandings of men (1748:385-386). Thus, Hume offers a scrupulous account of the ways in which reason can fail to indicate the most rational and efficient course of action. The account also has consequences for the conventionally drawn distinction between classical criminology and positivist criminology. If Beccaria is considered a classical criminologist, Hume should be considered a classical criminologist as well as a philosopher. There is plenty of reason to think Beccaria knew of Hume and closely followed Hume’s theories. In the next chapter, we shall see abundant textual evidence that Beccaria accepted Hume’s position on the pivotal importance, with respect to rational conduct, of associative processes as well as the passions. Hume’s empiricist program begins with ontological and epistemological considerations, from which he derives conclusions about human behavior as well as, and at the same time as, ethics. The failure to recognize that Beccaria’s positions have a philosophical basis in Hume’s empiricism might be why many criminologists have failed to recognize that Beccaria’s views are criminological in nature as well as policy oriented. Once one has read Hume’s major philosophical works, one sees that to empiricists (of which Beccaria was one) pleasure and pain, and reinforcement processes, are fundamental ethical concepts and fundamental motivational concepts.

55 Here Hume refers to what, in methodological terms, we call “spuriousness”.

38 Looking at Beccaria, the father of classical criminology according to the conventional view, through Hume’s system contradicts many hallowed assumptions about the nature of the classical/positivist divide. Hume did not, and thus more than likely (on that ground alone, even aside from the textual evidence in Beccaria’s seminal text) Beccaria did not believe in free will. Furthermore, they did not believe that all people reasoned equally well, or that they were not possessed of passions and/or instincts that could thwart the optimum operation of reason in ways that prevent them from maximizing their own utility. Thus, they recognized individual differences and accepted determinism, which hitherto have been taken as hallmarks of positivism, not classical criminology. Fortunately, we can detect in Hume a genuine difference between the two traditions that we intend to elaborate in forthcoming chapters. Classical thinkers, because of their commitment to empiricism and the dominance of rewards and punishments and associative processes that are part and parcel of empiricism, logically had to believe that an ideally administered battery of rewards and punishments would tend to yield self- interested rational conduct and triumph over whatever arational passions might prevail in the individual. To hold otherwise would have meant compromising the associationism and supremacy of the rewards and punishments law that were the keystones of empiricist psychological thought.

39 CHAPTER 3 BECCARIA’S CRIMINOLOGICAL VIEWS

The last chapter observed that Beccaria himself indicates his indebtedness to Hume, and at least two writers, Bellamy and Beirne (the latter a widely respected criminologist well known for his thorough investigation of texts pertaining to the history of criminological thought) have acknowledged this connection. We should therefore not be surprised to find in Beccaria’s text theoretical evidence consistent with the views of these writers and with Beccaria’s own expressed appreciation of, and endorsement of, Hume’s “profound metaphysics” as well as Beccaria’s declaration of the “truth and novelty”56 of Hume’s views. There is considerable evidence that Beccaria was a Humean. Let us therefore investigate Beccaria’s seminal text On Crimes and Punishments with Humean tools. Beccaria’s work draws from Hume’s empiricism and reflects on the ways in which perceived costs, benefits, pleasures, and pains contribute to some, perhaps most, human decision-making, and the ways in which reason serves the passions so as to yield behavior that can closely approximate self-interested rationality. In the course of discussing these ideas, it should become even more clear that classical criminology is not primarily about rationality, free will, and hedonism, contra Liska and Messner (1999), but instead is about the ways in which reward and punishment processes affect executive rationality and evaluative rationality indirectly through their influence on the passions. Classical criminology is much more absorbed with passion and instinct than it is with reason. Classical criminology assigns a subsidiary behavioral role to reason and holds that reason is not metaphysically sovereign with respect to behavior. Before proceeding to Beccaria’s criminological views, it is worth noting that some writers hold the view that “criminology” proper did not begin until much later, when “positivism” achieved ascendancy. Garland (1985) is an exponent of this view. He says: Unlike subsequent criminologies, which based themselves upon a particular characterisation of “the criminal” and its differences from the non-criminal, the classical theory recognised no such entity or differentiation. Criminal acts, like any other actions, were the outcomes of individual choice and volition on the part of human subjects. Criminals differed from non-criminals only in the contingent and non-essential fact of their law-breaking. In fact to call the work of writers such as Beccaria, Voltaire, Bentham and Blackstone a “criminology” is altogether misleading. Their work is essentially the application of legal jurisprudence to the realm of crime and punishment, and it bears no relation to the “human sciences” of the nineteenth century that were to form the basis of the criminological enterprise. The voluntarist and rationalist theory of action, which formed the centerpiece of this jurisprudence, borrowed from utilitarian psychology the idea of the free and calculating individual engaged in the pursuit of pleasure and the avoidance of pain. Each individual, with the exception of the mad or the infant,

56 Emphasis added. The citations to Beccaria’s words appear in the previous chapter.

40 possessed these faculties of will and freedom and could choose his or her own destiny. Criminals, then, were to be presumed to have calculated that crime would serve them well, and were to be shown that in a civilised social order, this was an erroneous calculation. Hence the emphasis upon less eligibility, deterrence and a voluntarist process of reform, all of which presuppose a freely calculating and reasoning subject. The universal, rational subject-at-law is thereby carried over into the penal realm without modification (1985:14-15). The evidence presented so far (and more follows), demonstrates that Garland’s view, and the view of others who share it, is just wrong. Beccaria did not believe in free will, and to the extent that he applied “legal jurisprudence” to the realm of “crime and punishment”, he did so only because that legal jurisprudence was itself derived from Humean empiricism. What Beccaria did was apply Hume’s thinking to crime and punishment. Furthermore, he did not start with utilitarian moral psychology any more than Hume did. Rather, he derived that as well from empiricist ontological and epistemological assumptions.

General Observations Regarding Beccaria’s Criminological Views

Classical criminology is frequently said to have begun with Cesare Beccaria’s On Crimes and Punishments (1764). This work shows broad agreement with empiricist conceptions of human reason and expresses an idealistic confidence in the ability of human reason to justly regulate the affairs of society. In a sense, it depicts the rise of a “modern sensibility” in that concerns regarding abstract equality in terms of rationality come to the fore. These concerns replace monarchical hierarchies and ideological doctrines emanating from theological sources. It might be that confusion regarding Beccaria’s thought flows from mistaking his concentration on reason with traditional accounts of the Enlightenment known at least indirectly by many academics. Simply put, Beccaria sponsored the ideal of governance by reason, but he was not nearly as Polyannish about this possibility as the typical criminological account would have us believe. The work seems to have been immediately motivated in part by Beccaria’s dissatisfaction with existing criminal laws that allowed for the imposition of draconian punishments such as torture as well as denied basic procedural rights to those accused of a crime (Vold et.al.,1998). Beccaria’s work, however, is more than just an ethical criticism of existing penal and procedural institutions. That criticism, which is utilitarian in nature,57 is the natural doctrinal complement of a theory of human behavior that he inherited from Hume’s empiricism. The utilitarians rejected a priori ethical claims, and grounded their ethics on what they believed were empirical facts about human behavior together with theories, stemming ultimately from epistemological and ontological considerations, about the nature of those facts. In keeping with the British Empiricist position as it is represented by Hume, individual behavior, according to Beccaria, is by and large driven by the pursuit of pleasure and the avoidance of pain: “[t]he proximate and efficient cause of actions is the

57 Beccaria says, in speaking of the word “right” with respect to “right to punish”, that “the word “right” is not opposed to the word “power”, but the former is rather a modification of the latter, that is to say, the species which is of the greatest utility to the greatest number (1764/1995:11).

41 flight from pain, their final cause is the love of pleasure” (1764/1995:157). He thinks that ideally men should pursue the goal of rationally maximizing the self-interested pursuit of pleasure. He did not think they always do so, any more than Hume did. Like Hume, Beccaria recognized the evaluative rationality problem of “impulsivity”, which he called lack of foresight. Lack of foresight involves the irrational discounting of future costs and benefits. In empiricist language, it involves the failure of reason to serve as the slave of the passions; it involves the triumph of violent, intense passions and consequent irrationality (or perhaps arationality)-in short, it involves the failure of the individual to maximize their own utility as they see it. Since Beccaria was interested in law and philosophy and was steeped in the thinking of British empiricists such as Hume, it is unsurprising that he views rational actions as those which maximize the actor’s utility, since that is what figures in the British empiricist (and utilitarian) tradition thought. The following quote crystallizes Beccaria’s entire argument: What were wanted were sufficiently tangible motives to prevent the despotic spirit of every man from resubmerging society’s laws into the ancient chaos. These tangible motives are the punishments enacted against law-breakers. I say tangible motives because experience shows that the common run of men do not accept stable principles of conduct. Nor will they depart from the universal principle of anarchy which we see in the physical as well as in the moral realm, unless they are given motives which impress themselves directly on the senses and which, by dint of repetition, are constantly present in the mind as a counterbalance to the strong impressions of those self-interested passions which are ranged against the universal good. Neither eloquence, nor exhortations, not even the most sublime truths have been enough to hold back for long the passions aroused by the immediate impact made by objects which are close at hand (1764/1995:9).58 This quote illustrates several things that will be of importance in what follows. It indicates Beccaria’s commitment to Humean vocabulary. It shows that Beccaria thinks that the “passions” (the main theoretical term in Hume’s psychology, as we saw last chapter) cause individuals to act in ways that are disruptive to the functioning of society. More importantly, it exemplifies Beccaria’s adoption of Humean theory, not just Humean vocabulary. Beccaria argues that violent (readers are asked to recall that the empiricist sense of the term “violent” is “intense” when it pertains to the passions) passionate impressions (another technical term of Hume’s empiricism) can produce impulsive behavior detrimental to the public good unless these passions are counteracted by remembrance of experienced punishments whose force on the mind varies as a function of (1) whether the punishments have been experienced “directly” as opposed to vicariously and (2) whether the punishments have been repeatedly administered, in perfect keeping with Hume’s recognition of the importance of habit and its forceful influence on behavior. The empiricist view is that certainty and celerity matter more than severity. The empiricist ontology of ideas and impressions and Hume’s view of the relationship of reason and the passions argues against the importance of the severity of punishment, since those views contend that everything hinges on the strength and vivacity of passionate forces and nothing on reason alone. It follows immediately that an

58 Emphasis added. This tracks Hume’s language regarding impulsivity well.

42 abstract rational awareness of awful punishments does little to influence behavior. Having said that, it is of course true that punishment severity can independently effect behavior, but only if punishments are timed properly and swiftly administered. The empiricist message is simply that celerity and certainty matter more than severity. Later, we shall see that the empiricist view on celerity is that it only matters for those who are determined to action by violent passions. Finally, the reference to the “principle of anarchy”, “man’s despotic spirit” and “ancient chaos” in conjunction with the rootedness of his position in social contract/state of nature theory suggests that Beccaria believes that society must corral the passions that reign supreme in the state of nature. It is the job of punishment, Beccaria thinks, to see to it that people do in fact pursue their self-interest rationally rather than “despotically”. Beccaria thinks, in other words, that punishment should, in an ethical sense, be designed so as to encourage people to behave rationally and that it does tend to make people rational-depending on what is punished and what is rewarded. (Once again we have occasion to issue the caution that sensitivity to rewards and punishments is not the same as rationality). The former is the ethical, utilitarian, criminal justice sense of deterrence and the latter is the criminological sense of deterrence spoken of earlier. These points relate to Beccaria’s discussion of social contract theory. Understanding Beccaria’s view on social contract theory help us to see even more clearly the connection between his utilitarian ethical views and the empirical psychology he borrowed from Hume. Under social contract theory, the possibility of state imposed reasonable punishments is nothing more than the trade-off rational individuals are willing to make for the sake of the self-betterment that results from the security against depredations that state imposed punishment offers. Beccaria’s argument on this score is that since rational punishments really do make people better off than they would be in the state of nature, they are ethically justified. With respect to the criminological component of Beccaria’s view of deterrence, the above quote shows that Beccaria thinks deterrence can only work if there is simple weighing property of the mind is operative that “counterbalances” anticipated pains against anticipated pleasures. Putting the two conceptions together, the claim is that punishment will effectively, as an empirical matter, “teach” people to pursue their rational self-interest if and only if society is regulated by just laws. Such laws, in turn, are ones that assume Hume’s psychology is accurate and which attempt to maximize social utility on the assumption that people are in fact so constituted as to pursue pleasure and avoid pain. The empirical claim about the efficaciousness of punishment and the ethical claim about what makes laws good, or right, or just, are inextricably interwoven. Let us look more closely at the ways these ideas unfold in Beccaria’s writing. The historical genesis of these linkages traces back to the thinking of the social contract and state of nature theorist-and empiricist- Hobbes. Beccaria says: No man has made a gift of part of his freedom with the common good in mind; that kind of fantasy exists only in novels. If it were possible, each one of us would wish that the contracts which bind others did not bind us. Every man makes himself the center of all the world’s affairs. The multiplication of the human race, however gradual, greatly exceeded the means that a sterile and untended nature provides for the satisfaction of man’s ever evolving needs, and brought primitive man together. The first unions

43 inescapably gave rise to others to resist them, and so the state of war was translated from individuals to nations. Thus it was necessity which compelled men to give up part of their freedom; and it is therefore certain that none wished to surrender to the public repository more than the smallest possible portion consistent with persuading others to defend him. The sum of these smallest possible portions constitutes the right to punish; everything more than that is no longer justice, but an abuse…(Beccaria, 1764/1995:10-11). These claims are in line with the Hobbesian empiricist/materialist conception of the state of nature and the transition to civil society. Beccaria uses the word “necessity”, which certainly has a Darwinian flavor, in discussing the origins of society. Indeed, the quote seems to suggest that survival interests-not rationality- prompted formation of society. The claims are consistent with the view that they are inferences about how human society may have originated if Hume’s philosophy and the human psychology which that philosophy entails are correct. In all seriousness it can be said that it is perhaps no coincidence that Darwin was British. Civil society makes possible mutually beneficial forms of interaction that cannot thrive without the security that government provides. The security provided by governmental coercion, however, is intended only to ensure that egotistically inclined individuals do not overstep the bounds of reason (from the standpoint of the criminal justice/ethical conception of deterrence, the “claims of justice”) in their dealings with one another. For Beccaria, then, any governmental regulation or punishment that exceeds in degree or kind that which is necessary to facilitate the rule of self- interested reason in individual lives is unjustified. This ethical stance, Beccaria thinks, simultaneously builds a bulwark against tyranny and despotism and accords with what he thought we accurate views about human psychology. It is easy to see from the foregoing quotations that there are reasons for thinking that Beccaria views the moral legitimacy of state regulation as operating hand in hand with a utilitarian and egotistically oriented moral psychology. Rational self-interest and the gratification of desire prompted the formation of society. Beccaria then reasons that if this is so, the adoption of social regulations ought to be tailored so as to be in conformity with the psychological (perhaps even biological) realities that engendered society in the first place-both from a moral perspective and a practical, empirical perspective. It is very important to emphasize that Beccaria thinks that criminal laws have their moral basis in utility and that this moral basis is in turn grounded on a utilitarian conception of human psychological processes. Criminal justice and criminology are yoked together in Beccaria’s mind: If a punishment is to serve its purpose, it is enough that the harm of the punishment should outweigh the good which the criminal can derive from the crime, and into the calculation of this balance, we must add the unerringness of the punishment and the good59 produced by the crime. Anything more than this is superfluous and, therefore, tyrannous (1764/1995:64). Beccaria’s text contains additional examples showing the connection between his ideas regarding penal reform and his views on moral psychology:

59 Beccaria has in mind the benefits, or rewards to the actor, resulting from commission of the crime.

44 It is better to prevent crimes than to punish them. This is the principal goal of all good legislation, which is the art of guiding men to their greatest happiness, or the least unhappiness possible, taking into account all the blessings and evils of life…[d]o you want to prevent crimes?…Make sure that the laws favour individual men more than classes of men60 (1764/1995:103-104). The last sentence suggests that Beccaria thought his criminological theory relevant to an explanation of macro-level variations in the crime rate as well, insofar as class-based considerations enter the picture. These ideas should be unpacked a bit, both to clarify them and to help round out a sociological picture of classical criminology as Beccaria paints it. Understanding his sociological contributions will crystallize his view of the factors contributing to crime at the individual level.

Sociological Implications of the Philosophical Foundation of Beccaria’s Thought

Beccaria’s sociological views are well illustrated by another one of his writings, one that is not often touched upon in the criminological literature: Reflections on the Barbarousness and the Civilization of Nations and on the Savage State of Man. In this writing, Beccaria characterizes his views of the ideally ordered society by contrast with a portrayal of the state of nature. The quotation also serves to illustrate the importance he assigned to the passions: The formation of hunting parties encouraged the invention of weapons and stratagems to use against wild animals, but which, as a disproportion developed between needs and the means for satisfying them, later became the instruments for men’s destroying their own kind. The closer men are to primary sensations, and the more they are ruled by their primitive passions, and the morality of their actions is measured in terms of natural forces and the vigour of their souls, the less the differences between them diminish and their feelings and actions come to resemble each other. This can be clearly seen even in a state of society: violent passions bring all ranks and creeds down to the same level; they unite the extremes; and they make all men either brothers or competitors, because an extreme passion, which is nothing but the concentration of all the soul’s strength on a single object61, leaves the whole range of adjunct feelings inoperative and unused (Beccaria (1764/1995:146)62

60 Readers might note a similarity to Merton’s strain theory here. 61 There is a striking similarity here to Freud’s notion of the concentration of the whole quantity of libido onto the loved object. 62 Hopefully, it is not belaboring the point to once again draw attention to the Humean language Beccaria uses. “Natural forces”, “violent passions”, and their preeminence over primitive passions if reason is not enslaved by calm passions produced by a rationally organized society are all Humean notions. The reference to “natural forces” and their potential distorting impact on behavior also indicate that he was not a simple- minded thinker who believed that all the answers to questions about human behavior can be derived from free will and the rational maximization of self-interested desire. Beccaria was not a classical criminologist in the sense that most criminologists currently use that term.

45 Thus, for Beccaria, the major goal of society is to temper the passions (episodic or more deeply rooted) and to remedy the unhappy existence of a state of nature63. Society accomplishes this by institutionalizing reason. Reason is what guides men to their “greatest happiness” or “least unhappiness” (1995:146). Beccaria thinks rational individuals will see that they must balance their interests, or passions, against the interest of society as a whole: For there is no enlightened man who does not love the public, clear and useful compacts that guarantee the common security, comparing that small portion of useless freedom that he has sacrificed with the sum of freedoms sacrificed by others who, without the laws, could become conspirators against him. Looking upon a well-framed code of laws and finding that he has lost nothing but the sorry freedom to do harm to others, any sensitive soul will be compelled to bless the throne and its occupant (1764/1995:105).64 Reason forces the individual to recognize that the maintenance of an ordered society, which is in the rational self-interest of everyone concerned since the alternative is the state of nature, demands the compromise of certain passions, both in degree and, in so far as is possible, in kind if the situation demands it.65 Reason at the social level requires that the institutions of society, particularly its laws, embody a similar kind of balance. Beccaria thinks that laws should recognize that people are after personal pleasure, and should not criminalize actions unless those actions can rationally be said to have an impact on the social good, which is another way of saying unless they violate the social contract. More precisely, we have also seen that Beccaria thinks that laws should punish proportionately to the harm done to society. It makes sense that he should say this, since it follows directly from his pleasure/pain psychology and his social contract view of the origin of the state. We are now in a position to return to the suggestion that there is a relationship between strain theory and Beccaria’s thinking. If laws could be said to benefit classes of people rather than individuals, it would mean that the utility, or pleasure, of certain groups of people enjoyed higher status than other people simply by virtue of membership in a preferred group. This would be irrational and violative of the social contract. Laws, in order to be rational and therefore just, must ultimately benefit society as a whole, and not treat certain groups preferentially: “make sure that laws favour individual men rather than classes of men” (1764:104). Notice that this is not to say that there are to be no inequalities whatsoever in Beccaria’s ideal society. It is to say that whatever inequalities there are must be sanctioned by reason. Thus, laws might impose strict requirements for the licensure to practice medicine, which might thwart the strong desire of someone to

63 Primatology might be of some relevance here. The study of the interaction of non-human primates might lead to ties between Mr. Hume, Sr. Beccaria, and Mr. Darwin. That, however, is a project for another day. 64 In the writer’s view, the safest speculation as to what Beccaria’s preferred form of government might have been is one that closely in line with empiricist philosophical tenets. Beccaria might well have reasoned that the best form of government is whatever form proves itself, through experience, to be the best at fostering rational behavior in its citizens. This of course leaves room for the notion that different forms of government are better suited to different times and places, which is what one would expect from an empiricist as opposed to a rationalist. 65 This is one of the reasons why Hobbes, a state of nature theorist, was so taken with the prisoner’s dilemma problem. The question of when it is rational to “cheat” has long been, and still is, relevant to social theory.

46 become a doctor. Nonetheless, the thwarted doctor would be capable of seeing, through the light of reason, that such laws increase utility for society as a whole.66 It is when individuals begin to believe that laws are not rationally designed to serve the utility of society as a whole that unrest develops, and the threat of a return to chaos and the state of nature occurs (1764:9). For Beccaria, then, macro-level variations in crime rates have a distinctively sociological, structural source. “Primitive passions” and the “natural force” and “vigour” of the individual soul are aroused when society is structured in such a way that resources are distributed irrationally. A specific indication of an early version of strain theory appears in the course of Beccaria’s discussion of theft: Whoever seeks to enrich himself at the expense of others ought to be deprived of his own wealth. But, since this is generally the crime of poverty and desperation, the crime of that unhappy section of men to whom the perhaps “terrible” and “unnecessary” right to property has allowed nothing but a bare existence…(1764/1995:53). Here, there seems to be a claim that theft is often the result of some kind of deprivation. This view is consistent with a key strain theory hypothesis promulgated by Merton, which argues that the motivation to commit crime is in some sense positively engendered by external barriers rather than negatively released by the absence of constraints, as control theories would have it. Indeed, if questioned, Beccaria might well have said something like “if the criminal laws are rotten in that they unjustly, in violation of social utility, work to deprive people of those things reason says they have a right to, you should expect a sizable amount of theft-more than there would be if the laws were more reasonable”. Thus, there is some evidence that Beccaria thought strain type thinking might be relevant to the explanation of crime at the individual level as well as at the macro-level.

Beccaria’s Individual Level Views on Motivation and Punishment

Beccaria thinks, along lines inspired by Hume, that there is a connection between crime, the passions, and reason. Sociologically, Beccaria thinks that unjust punishments and irrational criminal laws are wont to trigger a kind of regression to a state of nature mentality, resulting in the unleashing of sometimes intense and aggressive passions. Beccaria thinks it is difficult for reason to serve as the slave of the passions when laws are such that they discourage rational analysis of experience and fail to encourage passionate enthusiasm for the workings of reason. To the extent that these defects can be traced to structural considerations, then, Becarria offers a distinctively sociological conception of variation in crime rates: What are these laws which I have to obey, which leave such a gulf between me and the rich man? He denies me the penny I beg of him, brushing me off with the demand that I should work, something he knows nothing about. Who made these laws? Rich and powerful men, who have never condescended to visit the filthy hovels of the poor, who have never broken mouldy bread among the innocent cries of starving children and a wife’s tears. Let us break these ties, which are pernicious to most people and only useful to a few and idle tyrants; let us attack

66 Assuming “guild” type forces are not operating.

47 injustice at its source. I shall return to my natural state of independence….(1764/1995:69). Thus, Beccaria thinks that bad laws can trigger something like individual passionate motivation to violate the laws by triggering violent passions in individuals who, in part perhaps due to their material conditions and the irrationality of the laws, have not been taught to desire the rational life, and who, even if they had been so taught, might well, depending on the circumstances, consider it rational to violate unjust laws, since such laws leave them no better off than they would be in a state of nature. At the individual level, Beccaria’s views are what we might expect they are, given his treatment of the social contract concept and his acceptance of Humean empiricism generally and Humean psychology in particular. When we take a close look at what Beccaria wrote about individual behavior with these thoughts in mind, evidence appears that casts strong doubt on the plausibility of the great divide. Currently, individual-level criminological theorists are situated in one of two camps. One camp, the individual differences camp, is represented by biological criminologists as well as the influential theorists Gottfredson and Hirschi, and, to a lesser extent, Wilson and Hernnstein. These writers believe that criminals differ from non-criminals in that criminals are possessed of a time-stable trait or traits that predisposes them to criminal behavior. Gottfredson and Hirschi, as well as Wilson and Hernnstein, think that this trait is “impulsivity”. The other camp is called the rational choice camp. Its representatives include Cornish, Clarke, Felson, and, arguably, Akers. The rational choice view is often traced back to Beccaria (see, e.g., Liska and Messner, 1999; Exum, 2002; Akers, 1990). This tracing is incorrect, and it has the consequence of distracting attention from the fact that Beccaria appreciated individual differences and, consequently, from the fact that a quite fertile and subtle view of the relationship between individual differences and learning processes has been overlooked. Beccaria expresses the idea that if the malevolence of intentions were the criterion upon which a penal code were based, a different penal code for every citizen and a different law for every crime would be necessary: …the one true measure of criminality is the damage done to the nation…therefore, those who believe that the true measure of criminality lies in the malefactor’s intention are mistaken. A person’s intention is contingent on the impression caused by the objects at the time and the preceding disposition of the mind, and these vary from man to man and in the same man according to the very swift succession of ideas, emotions67 and circumstances68. It would, therefore, be necessary to frame not only a special code of laws for each citizen, but also a new law for each particular crime…(1764:22).69 Beccaria is here arguing that the measure of criminality, here meant to be the danger crime poses to social welfare, must be measured in terms of the consequences to society

67 The Paolucci (1963) translation translates this term as “passions”, which is probably more accurate. 68 Emphasis added. 69 This quotation is can be understood to pertain to the criminal law concept of mens rea. Since Beccaria held views largely utilitarian in nature, he might well have endorsed mens rea distinctions to the degree that the consequences of adhering to the doctrine were salutary, but it is doubtful he would have assigned absolute ethical importance in the deontological sense to them. The quotation also expresses ideas consistent with Ferri’s (who is often viewed as a positivist) conception of “social hygiene”.

48 rather than any alleged evil quality70 of a malefactor’s thoughts. This reinforces Beccaria’s observations, documented earlier, that he had no illusions about why humans formed societies. Humans did not form society to subject themselves to the ethical scrutiny of others. They did it out of necessity. It also indicates that he was by no means oblivious to the idea that sometimes people are motivated by malevolent desires. Once it is recognized that Beccaria, like Hume, thought that passion can vary across individuals, one major currently accepted distinction between classical criminology and positivist criminology evaporates. Simple logic shows that Beccaria accepted individual differences on characteristics relevant to the commission of crime. Beccaria thinks the commission of crimes is closely related to passions. These passions can vary across individuals. Therefore, there are individual differences on a type of variable relevant to the commission of crimes. If such passions can be stable within individuals, the argument is strengthened. Nothing in Beccaria’s thought suggests they cannot be: as a matter of fact, his reference to predispositions of the mind suggests they can be, and, moreover, such a view would be fully consistent with Hume’s views on the importance of habit and custom. In fact, Humean and Newtonian psychological language pervade Beccaria’s work and give us additional insight with respect to his psychological views. Beccaria notes that “violent passions take hold of men but not for long” (1764/1995:68). He indicates that forgetfulness is “natural and speeded by the passions” (1764/1995:68). Beccaria also speaks of customs and manners in ways that sound as though they were written by Hume himself: By customs, I mean the results of the emotions and passions which move men;71 by manners, I mean their external behaviour… (1995:149). The multiplicity of manners, by increasing men’s sensations and occupations, reduces the power of the passions, and softens fierce peoples..(1995:153). Beccaria’s determinism is expressed in language both Humean and Newtonian. Beccaria declaims that “[e]very act of our will is always proportional to the force of the sensory impression which gives rise to it…” (1764/1995:41). Beccaria also draws upon Humean language when he analogizes individual psychology to governance and state of nature considerations: “[s]tronger and more easily felt impressions have to be made on a people only just out of the savage state. A lightning strike is needed to stop a fierce lion who is provoked by a gunshot. But as souls become softened by society, sensitivity grows” (1764/1995:113). We saw earlier in the chapter that Beccaria does not think that people in the state of nature behave rationally. We now begin to see more clearly why he did not think so. It is because he adopted Hume’s psychological precepts, which specify that (1) other things being equal behavior is motivated by the force of the passions, not reason and (2) that until a calm passion in favor of reason has been cultivated, behavior must be regulated by strong sensory impressions that precipitate violent passions: “…’twill commonly be better policy to work upon the violent than the calm passions, and rather take him by his inclination, than what is vulgarly called his reason” (Hume (1739/1985:464). Beccaria explicitly applies Humean and Newtonian ideas in his characterization of adultery:

70 A modernist turn away from demonological, or theological, views. 71 Emphasis added.

49 Adultery is a crime which, viewed politically, is motivated and directed by two factors: the fluctuating laws of men and that very powerful attraction which urges one sex towards the other. This latter is similar in many respects to the gravitational forces that move the universe. Like gravity, it diminishes with distance, and, if the one rules all bodily movements, the other, so long as it lasts, rules all the movements of the soul. But sexual attraction differs from gravity in that gravity is counterbalanced by obstacles, whereas sex gathers strength and keenness the more obstacles are placed in its way…[a]dultery arises from the abuse of a constant and universal need in mankind, a need antecedent to and, indeed, a need antecedent to, and indeed, foundational of society itself, whereas other socially destructive crimes result from transitory emotions72 rather than natural need (1764/1995:80). With respect to infanticide, Beccaria observes that it “results from the unavoidable conflict in which a woman is placed if she has given in to weakness or violence” (1764/1995:81). Lastly, it should be remembered that Beccaria thinks of pleasure and pain as the “motive forces” of behavior. Nowhere does he say that reason motivates behavior. Beccaria recognizes that the passions, not reason, motivate behavior. Does Beccaria think people invariably behave-or act upon their passions- in rational and self- interested ways? Of course not. He recognizes that people frequently behave in ways that they themselves regret and that have very bad consequences for even near future selves. In other words, Beccaria does not think that reason is always capable of “putting a brake” on the precipitous actions of the passions. He certainly does not think it can do so if people are not taught to abide by reason’s dictates. This brings us to Beccaria’s learning oriented view of punishment. Close attention to Beccaria’s remarks on punishment alone indicates that the received view of the classical position is incorrect. While Beccaria’s views on motivation strike at the “free will” component of the conventional classical position, his views on punishment strike at the “rationality” component of the received view of the classical position. How does Beccaria think the influence of violent passions is to be counteracted? The following quotation spells out the answer lucidly: experience with pleasures and pains. Beccaria thinks that in the ideal case, the mind’s natural associative processes are trained to generate accurate cognitive maps of the environment and accurate representations of the likely consequences of action: I have said that promptness of punishment is more useful because the smaller the lapse of time between the misdeed and the punishment, the stronger and more lasting the association in the human mind between the two ideas crime and punishment. The former will come to be sensed as the cause and the latter as the necessary, inexorable effect. It is proven that the compounding of ideas is the cement which holds together the fabric of the human intellect, and without it pleasure and pain would be unconnected feelings and of no effect. The further men move away from general ideas and universal principles, that is, the less refined they are, the more they act on immediate associations that are closer to home, ignoring the more remote and complicated ones which are of use only to men impassioned strongly by the object of their desire, the light of whose

72 Note that Beccaria does not say “reasons”.

50 attention illuminates a single object, leaving everything else in the dark. The more remote and complicated associations are also of use to more sophisticated minds, which have become accustomed to passing many objects in review at one time, and are able to compare many fragmentary feelings with each other, in such a way that the resulting action is less risky and uncertain (1764/1995:49). Earlier, evidence was presented indicating that Beccaria recognizes individual differences in terms of the variety and strength of passions. In the above quote, Beccaria suggests that individuals also differ in the degree to which their actions are in conformity with self-interested reason. “The less refined” people are, the less reasonable they are. Beccaria also indicates his full support for Hume’s ideas regarding cause and the importance Hume placed on associative processes. In the last chapter, Hume’s argument that “cause” means nothing more than the constant conjunction of impressions was presented. Essentially, he thought that “causes” were nothing more than projections of the mind’s natural associative tendencies upon nature. This makes sense of Beccaria’s observation that it is by associating crimes with punishments that the efficacy of punishment is achieved. The connection Beccaria makes between the notion of causation and the efficacy of punishment is of utmost importance for understanding Beccaria. It is what underwrites his claim that the celerity of punishment is vital. Beccaria thought that celerity’s primary deterrent effect would be manifested only in situations of those individuals wont to succumb to arational, passionate influences in such a way that the dictates of self- interested rationality are disregarded. Putting these individual differences with respect to the passions and individual differences with respect to rationality together with the doctrine of associationism yields a simple model of human behavior that is fully consistent with Hume’s vision. The model says that individuals are acted upon by situational influences that trigger, in accordance with the empiricist model of the mind, numerous associations that each have pleasure/pain values attached to them. These pleasure and pain values then raise a host of desirous and aversive passions. These passions yield tendencies to the manifestation of a behavioral response, but the behavior is not initiated until potential behaviors have been subjected to an additional associative process that considers the likely outcomes of behavioral alternatives in terms of pleasure and pain. This process, which we have called “executive rationality”, can vary across individuals for reasons having to do with either “natural” causes73 or because of some defect in learning, or both. Even if executive rational processes operate properly, though, rational behavior is not guaranteed. There is still the question of whether the second-order calm passion in favor of executing the output of reason exists, and if so, how effective it is. To the degree that this last process is ineffective, the behavioral output will depart from whatever degree of rationality the executive process has yielded. This last process is called “evaluative rationality”. For classical criminologists, therefore, self-interested rational behavior was the exception to the rule and an ideal-not the fundamental rule of human behavior,

73 Readers are asked to recall that the distinction between the classical and positivist positions in this work holds that classical thinkers are free to invoke “natural”, (such as biological) causes in their explanations of behavior, just so long as they do not hold that these natural influences can resist even perfectly administered training.

51 contrary to the received view. They saw that too many things could go “wrong”, in other words, to expect that human behavior was invariably rational. The above model contains elements of both classical and operant conditioning. The model helps to elucidate Beccaria’s criminological views regarding the certainty, celerity, and severity of punishment. This will also be discussed in the next section. First, though, a bit more on classical and operant conditioning. These approaches furnish us with a platform from which we can address an important misunderstanding regarding learning theories that could have been avoided by paying closer attention to the writings of the classical criminologists. These psychological perspectives are contained in germ in the empiricist theory of mind Beccaria inherited, and they can help us to understand the way Beccaria’s psychology of criminal behavior and his theory of punishment fit together. They also show that Beccaria’s philosophy has relevance to later, more “scientific” criminology by suggesting testable theories. Moral philosophy, indeed, is the mother of the social sciences. The importance that Beccaria assigned to the association of ideas in the punishment of criminal conduct makes his theory a kind of early blend of classical and operant conditioning. The classical conditioning part consists in Beccaria’s belief in the importance of association. Association is the central mechanism in classical conditioning. Pavlov dangles the meat in front of the dog; it salivates. Pavlov pairs the dinner bell with presentation of the meat, and pretty soon the dog salivates when the dinner bell is heard even if no meat is available. Similarly, pain can be attached to conditioned stimuli by the mind, leading, Beccaria thought, to desistance from the potentially pain inducing behavior. The above can also be looked at from an operant conditioning standpoint. The main distinction between classical conditioning and operant conditioning boils down to the idea that human behaviors viewed as “voluntary”-in the sense that they are contrasted with reflex- type behaviors such as the salivation of Pavlov’s dogs-are not considered amenable to classical conditioning. In the words of Ainslie (2001:19): “an alcoholic can’t be made to bend her elbow by the conditioned stimulus of the bar”. If operant conditioning is true, though, she will bend her elbow and consume her drink if the balance of learned reward tilts in that direction. Beccaria was obviously unaware of the terms “classical conditioning” and “operant conditioning”. He was, however, perfectly aware of the idea that human beings generally seem to pursue pleasure and avoid pain. Operant conditioning is built on the assumption that humans pursue pleasure and avoid pain and are sensitive to previous experiences of pleasure and pain. The question as to whether there is an element of operant conditioning thinking present in Beccaria therefore amounts to whether he thought that efficient reasoning processes could be engendered by a regime of rewards and punishments and whether he thought a passion in favor of abiding by the results of those reasoning processes could be fostered by learning methods.

52 Beccaria’s View of Reason and its Relationship to the Celerity, Certainty, and Severity of Punishment

Beccaria did not think that behavior was always rational. He thought the degree to which behavior conformed with rationality varied individually. This could be for one of two reasons-the failure of executive rational associative processes or the failure of evaluative rational associative processes. Beccaria believed that the contribution of reason could vary across individuals, and that its force was one of degree, ranging from near zero force in the “worst” case to near complete force in the case of the one who takes due consideration, on the basis of relatively objective facts, of future consequences. The “less refined” (1764/1995:49) men are, that is, the less they employ their reason in the sense of forming general ideas and universal principles, the more they are enslaved to their passions, which press for immediate gratification of the pleasure principle. Passions are not interested in whether potential behaviors will elicit painful consequences; they are interested (if we may be permitted a bit of personification here) in immediate gratification.74 In contrast to the “less refined” men, those “men strongly impassioned by the object of their desire, the light of whose attention illuminates a single object, leaving everything else in the dark” are the lovers of reason.75 Referring to Montesquieu at the beginning of his work, Beccaria says: I shall be happy if, like him, I can deserve the private thanks of humble and peaceable lovers of reason76 and if I can arouse that sweet stirring of sympathy with which sensitive souls respond to whoever upholds the interests of humanity” (1764/1995:8). Beccaria’s recognition that reason must be taught to and loved by the actor if it was to regulate their conduct together with his belief that the passionate pursuit of pleasure motivates crime is why he (somewhat notoriously, given what the relative paucity of empirical evidence has to say about its seeming lack of importance) (see Nagin and Pogarsky, 2001; Legge and Park, 1994) thought celerity so important a deterrent of crime77. Beccaria’s doctrinal view on celerity closely tracks Hume’s. Beccaria says “the contiguity (another Humean word) of crime and punishment is of the highest importance if we want the idea of punishment to be immediately associated in unsophisticated minds with the enticing picture of some lucrative crime. A long delay only serves to separate these two ideas further (1764/1995:49). Hume says:

74 This is an extremely Freudian point indeed-which is perhaps not surprising given Freud’s almost fanatical devotion to the empiricist tradition. Perhaps that, however, was a defense against criticisms of the scientific status of psychoanalysis? 75 One is reminded here of Freud’s famous dictum: “Where id was, there shall ego be. It is a work of culture-not unlike the draining of the Zuider Zee” (Emphasis added). 76 Emphasis added. 77 Not so incidentally, Gibbs (1975:130-131) says: “[t]he only rationale for an emphasis on celerity is found in experimental psychology, notably research on “operant” behavior, classical (Pavlovian) conditioning, or aversive conditioning...”. This affords additional reason for thinking we are on the right track when we claim to detect a version of classical and operant conditioning in Beccaria, since Beccaria was such a strong believer in a celerity effect.

53 …any distance in time causes a greater interruption in the thought than an equal distance in space, and consequently weakens more considerably the idea, and consequently the passions; which depend in great measure, on the imagination, according to my system (1739/1985:476-477). The key behavioral variables for both are the efficacy of the associative processes and the strength of motivating passions. Each thinks that the importance of celerity is logically entailed by their empiricist view of the mind78. The empiricist theoretical basis that underwrites true classical claims about the importance of celerity is vital, although it has not quite been appreciated by criminologists. The genuine classical position with respect to celerity says that celerity matters only when actors are unable to govern themselves by universal principles and abstract ideas that refer to temporally distant prospects. The “celerity” issue therefore raises difficult questions about rationality and impulsivity. In the contemporary work of Gottfredson and Hirschi as well as Wilson and Hernnstein, impulsivity is a key construct. They interpret it as a time discounting function; impulsive people are those who opt for short-term gratifications even when doing so compromises longer term interests. This way of presenting impulsivity, however, has the effect of obscuring the fact that these authors accept the received view of classical criminology which holds that behavior is invariably self-interested and rational at least for the short-term. A major problem for these theorists, however, is: if we are willing to admit that people can act against rational self-interest with respect to long term prospects, why should we not admit that they can do the same even with respect to short-term prospects? The answer can only be “because we accept the received view of the classical model of rationality which says that by nature people behave in self-interested and rational ways even if only for the short-term”. This is sheer dogma, and no better justified than belief in ghosts. The genuine classical view affords a different way of looking at the problem of the connection between impulsivity and rationality. To see how Hume and Beccaria’s empiricist model of the mind interprets the problem, we must first distinguish between two different types of impulsivity79. Type I involves discounting the future without bothering to represent to oneself the future consequences of one’s actions, or, alternatively, without properly assessing those consequences that are represented, each of which has the result that long-term interests

78 Therefore, the failure to find consistent celerity effects calls into some question the validity of their model. However, as Nagin and Pogarsky (2001) observe, the failure to find celerity effects might be due to the failure to properly specify the effect. It might be, for example, that only immediate punishments show a celerity effect, so that any additional delays represent a flattening out of, in modern terms, a “discounting function”. 79 Beccaria’s recognition of impulsivity is indicated in this quote: But a man who sees ahead of him many years, or even the remainder of his life, passed in slavery and suffering before the eyes of his fellow citizens, with whom he currently lives freely and sociably, the slave of those laws by which he was protected, will make a salutary calculation, balancing all of that against the uncertainty of the outcome of his crimes, and the shortness of the time in which he could enjoy their fruit. The continued example of those whom he now sees as the victims of their own lack of foresight, will make a stronger impression on him than would a spectacle which hardens him more than it reforms him (1764/1995: 69-70).

54 are sacrificed.80 The second type involves appreciation of the future consequences of one’s actions and the formation of a present desire to opt for the better long-term alternative, but the subsequent collapse of this desire when an immediate moment of temptation presents itself. This second type can be called “the weakness of will” type. To elaborate on the point about celerity mentioned earlier: it is a straightforward consequence of the empiricist view of the mind that the efficacy of a celerity effect, in addition to being a function of delay-which is a way in which rational considerations come into play, since people are entitled to make their own judgments about how much they wish to discount future prospects81- is also a function of how impulsive people are, in either or both of the above senses- which is how arational, passionate influences come into play. If people are impulsive in the type I sense, then they are less likely than others to attach aversive passions, which are the motivators of avoidance conduct, to future painful consequences. Beccaria thinks rapid punishment can either repair or establish associative links between behaviors and punishments. Other things being equal, celerity is necessary in these cases because it circumvents the absence of either, or both, a calm passion in favor of reason or ineffective executive processes. In other words, celerity makes the link between the behavior and the punishment automatic, without any mediating influences on behavior being necessary. The situation is similar with respect to type II impulsive individuals. Those individuals are similar to type I individuals that make an imperfect attempt to represent future consequences, since a representation of those consequences takes place, but they are different in that we assume they do in fact properly execute those processes. Their impulsive behavior results from weakness of will, which is a temporary failure of evaluative rationality. The rationale for a celerity effect in these cases is that punishments administered with celerity fill in for the defective evaluative process. With respect to the certainty and severity of punishment, Beccaria observes: The certainty of even a mild punishment will make a bigger impression than the fear of a more awful one which is united to a hope of not being punished at all.

80 Readers may note that inaccurate representation of future consequences corresponds to a defect in executive rationality, whereas disregard of future consequences suggests a defect in evaluative rationality. 81 There is nothing inherently irrational about someone’s preferring present enjoyment at the expense of the enjoyment of future selves, if that is what their utility function specifies. Irrationality comes into play when people either “switch preferences” when short-term gratifications draw near or when people act in complete disregard of how considerations of rational self-interest tell them to behave with respect to future selves. An example of preference switching is when people succumb to temptation by consuming a piece of cake, thereby compromising longer-term dietary interests. If, when asked well in advance of being presented with the piece of cake what they would do a preference in favor of foregoing the cake is expressed, but the cake is nonetheless consumed when the opportunity presents itself, we say that “preference switching” has occurred. An example of acting in complete disregard of considerations of rational self-interest with respect to future selves is the commission of a homicide while in a blind rage. Contemporary criminologists only address “preference switching” cases of impulsivity and ignore the second type of impulsivity we have discussed. We think that this is probably because the second type of impulsivity smacks too much of “determinism” and crime prone motivational structures. In Chapter 6, we criticize the idea that “choice” makes sense even with respect to “preference switching” cases of impulsivity. Why not say that people eat the cake because their preference for it is stronger at the moment than countervailing preferences rather than saying (baldly asserting might be a better way to put it) that they choose to eat the cake because they prefer short-term gratifications at the expense of long -term rewards and costs? Indeed, ought we not raise suspicions about the choice model simply in virtue of the fact that the preferences switch?

55 For, even the smallest harms, when they are certain, always frighten human souls, whereas hope, that heavenly gift which often displaces every other sentiment, holds at bay the idea of larger harms, especially when it is reinforced by frequent examples of the impunity accorded by weak and corrupt judges (1739/1985:63). Here, hope is viewed as a passionate device that can mitigate the deterrent factor of large punishments. It would seem that Beccaria is rejecting the straightforward Bayesian account of expected utility, which says that expected utility is equal to the expected cost (or benefit) multiplied by the likelihood of its accruing. The Bayesian model is one that computers might use. Human beings, however, are not computers. Their passions distort their perceptions of reality. Looking at the differences between the Bayesian model and Beccaria’s approach gives us additional illumination as to the manner in which he conceived reason to operate. If hope can mitigate the perception of the cost of behavioral consequences, it would seem that perceived cost of a punishment varies with the perceived certainty of the punishment. Lowering the certainty of a punishment reduces the perceived cost of the very same punishment by reducing the perceived severity of the punishment in addition to the lowering of the cost created by the diminished probability of the sanction. Beccaria would say, therefore, that hope is sometimes used as a passionate ploy to secure the realization of desire. Apparently, then, Beccaria believes that some kind of function can operate that serves to decrease the importance of severity as a function of certainty. If the reasoning in the last two sections is correct, such a function is one measure of the degree of irrationality present in human behavior. To the ideally rational actor in the behaviorist’s sense or the economist’s sense, the absolute cost assigned to a severe punishment should not be lowered simply because its realization is uncertain. The position of Beccaria on the relationship between certainty and severity that we have set forth in the preceding quote logically allows for the claim that deterrence would be maximized by increasing both severity and certainty. Beccaria has two responses to this: first, “the harsher the punishment and the worse the evil he faces, the more anxious the criminal is to avoid it, and it makes him commit other crimes to escape the punishment of the first” (1764:63). Thus, punishments can be viewed as overly severe if they entail spillover costs, or externalities, to use jargon connected with the economist’s conception of rational man. It should be noticed, though, that nothing Beccaria says here implies that commission of the initial offense would not be additionally deterred by increasing the severity of the punishment, so long as certainty is set at the requisite level in keeping with our discussion in the previous paragraph. His objection to overly severe punishments is justified more in terms of his belief that punishments should not be more severe than necessary to achieve their goal, and that eventually a level of severity is reached after which marginal returns in deterrence units are zero: As punishments become harsher, human souls which, like fluids, find their level from their surroundings, become hardened and the ever lively power of the emotions brings it about that, after a hundred years of cruel tortures, the wheel only causes as much fear as prison did” (1764/1995:63). This is only enough, however, to support the claim that eventually punishments become irrationally severe. How severe punishments must be to achieve maximum deterrence at the margin is a question, at the individual level, of how much irrational “hope” people

56 have82 in addition to how certain the administration of the punishment is. Let us look once again at a piece of Beccaria’s text quoted earlier in order to facilitate illustration of these ideas: If a punishment is to serve its purpose, it is enough that the harm of punishment should outweigh the good which the criminal can derive from the crime, and into the calculation of this balance, we must add the unerringness of the punishment and the loss of the good produced by the crime. Anything more than this is superfluous and, therefore, tyrannous (1764/1995:64). If this paragraph is consistent with the immediately preceding paragraphs in Beccaria’s text, and if “unerringness” is an adjective that modifies “unerring” (so that Beccaria is understood to be talking about the degree of certainty of punishment), then, as certainty moves away from one hundred percent, the degree to which the harm must outweigh the good derived from the crime must increase to a degree that exceeds that prescribed by Bayesian calculations if deterrence is to occur. To illustrate: Bayesian theory says that the choice between a 90% probability of a loss of $1000 and the 75% probability of a loss of $1200 is rationally indistinguishable. If Beccaria’s position regarding “hope” and its effect on the absolute magnitude actors assign to the perceived costs of a potential punishment is correct, though, then although the two might be equivalent from the standpoint of a purely rational economic actor, they are not equivalent from the standpoint of real world human beings, since hope tends to intervene. An idea of potential relevance to criminological theory, measurement, and research, therefore, is that hope, impulsivity, and criminal behavior might be related. Since Beccaria’s general point is that the operation of the passions can distort reason, the possibility that “hope” is a proxy for other variables should be considered. In his discussion of the death penalty, Beccaria provides an analysis that should resolve once and for all any doubts as to his views regarding the nature and efficacy of human reason as well as learning processes. He states: It is not the intensity, but the extent of a punishment which makes the greatest impression on the human soul. For our sensibility is more easily and lastingly moved by minute but repeated impressions than by a sharp but fleeting shock. Habit has universal power over every sentient creature. Just as a man speaks and walks and goes about his business with its help, so moral ideas are only impressed on his mind by lasting and repeated blows. It is not the terrible but fleeting sight of a felon’s death which is the most powerful brake on crime, but the long drawn out example of a man deprived of freedom…[m]uch more potent than the idea of death, which men always regard as vague and distant, is the efficacious because often repeated reflection that I too shall be reduced to so dreary and so pitiable a state if I commit similar crimes (1764/1995:67). Here, Beccaria indicates steadfast adherence to empiricist principles regarding the operation of the mind. These same principles, however, indicate that Beccaria does not think that reason is sovereign in human beings. He suggests that the achievement of deterrence relies on repeated, habitual administrations of punishing impressions, and that humans are wont to disregard even highly threatening impressions if those impressions are “fleeting”. Rational human beings, however, do not (other things being equal) disregard or discount highly threatening consequences, nor is repetition necessary to

82 And hope, of course, “springs eternal”.

57 deter fully rational agents, provided cognitive processing and memory are functioning properly. In sum, Beccaria thinks that repeated impressions are necessary if people are to behave in rational and self-interested ways. In essence, Beccaria’s views on certainty, severity, and celerity flow from his empiricist conception of the human mind and indicate his recognition that people do not as a rule behave rationally in the economist’s sense of the word. Rather, he thinks, the motivating influence of passions on behavior together with possible defects in executive as well as evaluative rationality dictate that at best behavior will only approach rationality. Second, if reason can forestall the activity of the passions, where does it get its power to do so from? There is only one answer consistent with Beccaria’s acceptance of the empiricist program: the passions. Incidentally, this is precisely what Freud said as well.

Summary of Beccaria’s Thought and its Connection to the Rest of the Work

Beccaria’s criminological views derive from the work of Hume. If those figures are viewed as expressing classical criminological doctrine, then the contemporary characterization of the classical/positivist divide cannot stand. Beccaria and Hume did not believe in free will, they did not believe that individuals invariably maximize their own utility as they see it, and they had what might well be called a motivational and “causal” account as to why they do not. They each recognized that individual motivational differences contribute to human behavior, and neither believed that behavior is based exclusively on what reason detects the current situation demands, in such a way that people who are, let us say, more aggressive will only behave aggressively if the situation rationally justifies it. What makes them classical criminologists is that their empiricist model of the mind commits them, in spite of their recognition of the potential relevance of individual differences to human behavior, to hold that the influence of these differences can in theory be mastered by a system of rewards and punishments administered by an omniscient observer. The true classical criminological view holds that learning is in theory sovereign, not reason. Positivists deny that learning is in theory sovereign, and hold instead that arational forces can in principle overcome the most steadfast self- interested resolve brought about by ideal training. Let us turn to the figure who is perhaps criminology’s most notorious positivist-Lombroso. Because we have carefully demonstrated that the genuine classical position departs from the received view of the classical position considerably, we should not be surprised to discover that the differences between Lombrosian positivism and classical criminology are not nearly as stark as they are almost always supposed to be.

Postscript

Readers might find a concise summary of propositions accepted by the genuine classical criminologists useful. Classical criminologists: 1. Accept empiricist metaphysics and philosophy of mind 2. Accept determinism

58 3. Hold that behavior is determined by the passions, not reason 4. Hold that reason has no independent motivational power 5. Hold that reason at best can only serve as the slave of the passions 6. Hold that the passions can distort perception of facts and likelihoods 7. Hold that individual differences exist with respect to rationality and motivational intensity 8. Hold-perhaps most importantly- that the reward/punishment law is the supreme law of human behavior

59 CHAPTER 4 LOMBROSO’S POSITIVISTIC CRIMINOLOGICAL THOUGHT

A good point of departure is to reflect on what Lombroso’s daughter observes with respect to what she takes to be her father’s view about the difference between his approach to criminology and Beccaria’s: The Classical School based its doctrines on the assumption that all criminals, except in a few extreme cases,83 are endowed with intelligence and feelings like normal individuals, and that they commit misdeeds consciously, being prompted thereto by their unrestrained desire for evil84. The offense alone was considered, and on it the whole existing penal system has been founded, the severity of the sentence meted out to the offender being regulated by the gravity of his misdeed. The Modern, or Positive, School of Penal Jurisprudence, on the contrary, maintains that the anti-social tendencies of criminals are the result of their physical and psychic organisation, which differs essentially from that of normal individuals; and it aims at studying the morphology and various functional phenomena of the criminal with the object of curing, instead of punishing him (1911/1972:4-5). In the last chapter, it was argued that there are good reasons for concluding that Lombroso is simply wrong if he is understood to be suggesting that Beccaria was unconcerned with individual-level causes of criminal behavior. Although Beccaria accepted the Humean ontological position on the nature of causes, we saw that there is a perfectly ordinary sense in which he accepts that there are forces which can influence human behavior. Indeed, he, like Hume, thought the passions were the motivators of human behavior, and he thought that passions could vary individually in terms of type, strength, and their impact on the will. Ultimately, Beccaria and Hume think that arational passions can in theory be overcome by appropriately tailored punishment regimes, which, if properly realized, would yield executive rationality and evaluative rationality in actors. Lombroso did not, contrary to popular belief, shift the focus of criminological inquiry from the mind to the body, from free will to determinism. Since classical criminology’s ontology does not distinguish between the mind and body, it does not make sense to say that positivism shifts the focus from the mind to the body. Hume’s philosophy of mind was “neutral monism”, which provides that reality is ultimately of one kind, which is neither mental nor physical. Hume himself says: Bodily pains and pleasures are the source of many passions, both when felt and consider’d by the mind; but arise originally in the soul, or in the body, whichever you please to call it, without any preceding thought or perception (1739/1985:328).

83 It is quite possible that here Lombroso is referring to the “compulsive” criminals we have identified in Beccaria’s work-those for whom celerity of punishment is necessary, at least initially, to effect deterrence. 84 In the next chapter, it becomes evident that this component of the classical school is ignored by those who subscribe to the conventional classical position. Although there is some wavering on the point, the tendency of the contemporary position is to hold that crimes are committed as means to the realization of other ends and not because their very commission provides pleasure by gratifying inherently malevolent desires.

What Lombroso argues is that arational bodily forces (passions) influence behavior much more than experience does. Lombroso should be viewed as rejecting empiricist claims about the power of learning rather than fictitious classical claims regarding free will and rationality85. Like classical criminologists, Lombroso claims that ultimately criminal behavior is prompted by arational passionate forces, although we shall see that he allows, just as the true classical criminologists did, that some criminals exhibit signs of rationality. Lombroso emphasizes more strongly than classical criminologists the role of passions directed toward the commission of crime for its own sake and the compulsive, irresistible nature of crime to certain classes of people. If criminologists had understood true classical thought, they would have recognized that that this is a merely shift of emphasis and not of substance, since, as the last two chapters make clear, classical criminologists accepted the idea of individually varying criminally inclined motivations and accepted the idea that reason does not always direct behavioral outcomes. Somewhat ironically, the shift of substance that occurs in the transition from Beccaria to Lombroso derives from Lombroso’s emphasis on “bodily” factors and their impact on crime. Lombroso accords a kind of ontological superiority to the body that is inconsistent with the empiricism of Hume and Beccaria. Lombroso exalts the behavioral relevance of bodily considerations in such a way that bodily forces are said to be capable, in some circumstances, of dictating behavior no matter what experience and reason have said in the past and what they suggest in the present. This is the philosophical underpinning of Lombroso’s infamous position regarding the inevitability of criminal behavior for born criminals: It would be a mistake, however, to imagine that the measures which have been shown to be effective with other criminals could be successfully applied to born criminals; for these are, for the most part, refractory to all treatment, even to the most affectionate care begun at the very cradle…(1918:432). In the introduction it was suggested that the notion of “cure” cannot serve to meaningfully distinguish the classical and positivist positions. If behavioral aversion therapy works, a classical criminologist can say that, to some extent at least, arationality has been “cured”. Classical criminologists think, however, that the right form of instructional intervention can arrest whatever arational tendencies to criminal behavior are in play. Lombroso, the prototypical positivist criminologist, did not think so. Lombroso was steeped in Darwin’s evolutionary, and revolutionary, thought86. In

85 Although he does reject free will as well as the idea that reason is sovereign, this does not distinguish him from the true classical criminologists. 86 Parmalee, in the introduction to the English translation of Lombroso’s “Crime: Its Causes and Remedies” (1918:xxxi)(1911) states that “Lombroso may have believed in the hereditary transmission of acquired characteristics” and cites as evidence of this that Lombroso “speaks as if habits of the effects of habits are transmitted by hereditary means” (xxxi). This is a curious question. Lombroso does say “[t]he progeny of the alcoholic are blind, paralytic, impotent. Even if they begin life with wealth, they must necessarily become poor. If they are poor, they are incapable of working”. (1918:89). In addition, Lombroso’s reference to the habit of “tattooing” as an atavistic trait is consistent with a Lamarckian interpretation, but it need not be interpreted that way. Our own judgment is that it is difficult to determine whether Lombroso accepted the inheritance of acquired characters or not. Criminologists might well find the question worth investigating, since Lamarckianism inherently assigns more direct importance to the experience of progenitors than Darwinsim does, since Darwinism looks at the experience of progenitors primarily in terms of survival of the germ line.

61 his Descent of Man, Darwin argued that “some men were closer to their primitive ancestors than others” (Savitz, 1972:vii). Thus, there is a straightforward connection between Darwin’s thought and Lombroso’s conception of the born, atavistic, criminal. Savitz also notes that early speculations on degeneracy, construed as a pathologic variety of normal species with physiognomical abnormalities, probably influenced Lombroso. He also suggests that psychiatric notions of moral insanity, which posited that excessive egotism, laziness, and general immorality might have a biological basis, were in the air. There were several influences operating in the climate of the time that converged on the idea that the locus of crime was somehow in the biological organism, and the companion idea that to the degree crime could be viewed as mediated by mental manifestations (such as immorality, for example), this was only because of the ultimate generation of these phenomena by the soma. These developments militated strongly against the idea that the mind is some kind of soul substance possessed of free will and encouraged the implicit incorporation of a materialist philosophy of mind into behavioral explanations. The traditional basic assumption on the mind-body problem is dualism. Descartes, a rationalist87, sponsored dualism and argued that mind and matter are ontologically distinct mental substances. Empiricists, with whom Beccaria aligned himself philosophically, rejected the idea of substances alleged to underlie the properties experience detects largely on epistemological grounds, but also on metaphysical grounds. Since they rejected substances, they rejected dualism. Another form of dualism, however, can be distinguished from Descartes’ substance, or ontological dualism. This form of dualism is called “property dualism”, or “epiphenomenalism”. This view says that matter has certain properties that can be called mental, and that these mental properties have no effect on the behavior of the organism. Thus, this view holds that while there is only one substance (matter), that substance has certain properties we think of as mental. In contrast to dualism is the doctrine of materialism. Materialism rejects both forms of dualism and says that there is only one type of substance and one type of property- to wit, matter. With respect to the “mind”, then, materialists think that the brain is all there is. (Churchland, 1988). Materialism, since it posits that there is only one kind of substance ontologically speaking, is a form of monism. British empiricists such as Hume and Bishop Berkeley were monists in an even more radical sense than materialists are, since they rejected the idea of substance entirely. They thought that ideas and impressions are the only things there are, with matter being nothing more than a compound of ideas and impressions. With respect to the mind, which is the issue that is of most importance to criminological theorists at the individual level, Hume said it is “nothing more than a bundle or collection of different perceptions, which succeed each other with an inconceivable rapidity”. In short, the idea of a mysterious agency underlying the flux of perceptions was sacrilege to the empiricists, and hence, probably to Beccaria as well. Beirne puts it in a way that draws attention to the Humean influence on Beccaria: Beccaria was so fearful of the censor precisely because his text implied that human agents are no more than the products of their sensory reactions to external

87 The word “rationalist” here points differences with respect to empiricists on epistemological and metaphysical issues. Rationalists believed in substances, empiricists did not. Rationalists believed in a priori knowledge, empiricists did not (save with respect to logical truths).

62 stimuli. His text, replete as it is with probabilism, associationism, and sensationalism-all directed to the new objective of deterrence-is resolutely opposed to any notion of free will. Dei delitti contains a concept of volition, it is true, but it is a determined will rather than a free will: “sentiment is always proportional to the result of the impressions made on the senses” (p.25)…[i]n this discourse, punishments (“tangible motives”) have “a direct impact on the senses and appear continually to the mind to counterbalance the strong impressions of individual passions opposed to the general good” (p.7) (1991:807). Beccaria’s empiricist philosophy of mind, then, precluded his endorsement of free will. What about Lombroso? Darwinist88 thinking was about as anti-theological as you could get at the time, and so it is highly unlikely that Lombroso held dualist views that admitted of free will. Furthermore, Lombroso’s conviction that the sources of human behavior are ultimately organic in some fashion means he is logically committed to either epiphenomenalism, materialism, or, perhaps, monistic empiricism. Lombroso’s emphasis on the importance of the material body with respect to behavior suggests he was probably a materialist; in any event, though, he certainly did not subscribe to a belief in free will. This is one reason why he emphasized the idea of a “cure” as opposed to “punishment” for at least certain classes of criminals. The major point of the foregoing is that neither Beccaria nor Lombroso endorsed the concept of free will, and that Lombroso most likely was a materialist who thought human behavior was the resultant of organic processes, and that any psychological state seemingly mediating the processes of the body into human behavior were wholly illusory, or at a minimum inefficacious. None of this is to say, however, that he did not share a basic rubric with Beccaria: the rubric of the passions in battle with reason. They disagreed, however, on a fundamental point. Lombroso thought that there could be individual variation in executive and/or evaluative rationality functions that, due to organic causes, elude domestication by reward/punishment processes. These considerations have a bearing on the more frequent (but also more superficial from a theoretical standpoint) concentration on Lombroso’s “scientism”. Paternoster and Bachman state: By the beginning of the nineteenth century…there was a revolution in intellectual thought throughout Europe. This revolution was based upon the objective empirical examination of the natural world and was driven by important discoveries in chemistry, astronomy, and physics…[t]he works of Darwin and other scientific biologists were to influence an Italian physician, Cesare Lombroso, whose own work was instrumental in establishing a new criminological point of view-the positive school of criminology. If the classical school was influenced by the Enlightenment and its belief in a free-will based moral philosophy, the positive school of criminology was influenced by the newly developing natural sciences and the scientific method (2001:47). Paternoster and Bachman state that Lombroso’s approach “…captures most of the important themes that are to characterize the positive school of criminology” (2001:48). They state that Lombroso “was interested in the detailed measurement of things; in his case it was the physical characteristics of people” (2001:48); “he was interested in quantification-the precise and accurate measurement of objects in the world” (2001:48);

88 Even though he was a Christian.

63 “his measurements of the physical characteristics of criminals and non-criminals led him to the conclusion that criminal motivation was not, like rationality, a characteristic that all people equally possessed” (2001:48). Furthermore, they maintain that “Lombroso’s notion of the atavist was based on the important premise that criminals are qualitatively as well as quantitatively different from noncriminals. Lombroso, therefore, believed in the notion of the differentiation between offenders and nonoffenders” (2001:48). By now the response should be familiar. We respond that the classical criminologists knew perfectly well that there can be qualitative motivational differences that distinguish criminals from non-criminals. We respond that the classical criminologists knew perfectly well that all people are not equally rational. This leaves the issues of quantification and measurement to be addressed together with the putatively positivist notion that behavior is law governed. Taking the latter issue first, Paternoster and Bachman think that “the task for those in the positive school of criminology is to use the objective stance of the scientific method to discover what these laws are and to apply them to behavior” (2001:49). In the last two chapters, we presented abundant evidence which shows that the classical criminologists maintain that human behavior is every bit as determined and law governed as nature is. This brings us to quantification and measurement. We respond here that it may well be true that Hume and Beccaria did not, unlike Lombroso, garner data pertaining to physiognomic minutiae. It should be remembered, however, that Hume and Beccaria were early reward/punishment based learning theorists. Consequently, their theoretical views are just as amenable to quantification and measurement as contemporary operant conditioning theories are. In general, attempted simplistic distinctions between classical criminologists and positivist criminologists along grounds of measurement, scientific law, and quantification are shaky. In addition, we have argued that casting the distinction in these ways perpetuates the errors of the great divide and obscures the more fruitful way of contrasting the traditions mentioned in the introduction and in the last two chapters. At present, we want to mention that it is easy to mistake alleged traditional differences regarding measurement and quantification (even if it were true that they existed) for deep theoretical differences. For theoretical purposes, the proper question is “are there substantive conceptual differences between the traditions” whether or not one tradition is associated with measurement of those differences while the other tradition is not. In the remainder of this chapter, we buttress our contention that there is only one such substantive difference and that the difference is in line with our suggested replacement of the Great Divide.

Lombroso’s Theoretical Approach to Criminology

Lombroso’s Criminal Man, first published in 1876, consists in part of a presentation of anatomical measurements collected and classified by Lombroso. He “thought it useful to begin the study of delinquents with an anatomical discussion which permits a complete detailed examination, although necessarily limited, of a relatively small number of individuals-66 in all”89 (1972:67)90. Lombroso explored “cranial

89 This is of course an unacceptably small sample by modern statistical standards. Furthermore, the sample was not randomly selected.

64 capacity”, “facial angles”, “cranial sutures”, “occipital depressions”, characteristics of the hands, and so on. This physiognomic and rather phrenological approach led Lombroso to the conclusion (after comparing the findings from his sample with “832 other measurements taken on living persons” that although there are some “healthy” upstanding citizens with irregular physiognomies and some “delinquents” with “perfectly regular” or even “beautiful” physiognomies, “these are exceptions, striking and fascinating by the contrast they present to our expectations”. Indeed: [b]ut when, instead of these isolated individuals, these rare examples forming the oligarchy91 of crime, we come to study the whole mass of these unfortunate wretches, as fell to my lot in various houses of correction, we find that, without having always a physiognomy which is grim and frightful, they yet have one which is peculiar to them, and almost special for each form of delinquency (1972:70). These are especially astonishing claims, are they not? The idea that there is an association between offense class and physiognomic features strikes one as being just about as unscientific as one can get-perhaps it has even less of a scientific basis than astrology does. As a matter of fact, in many ways the idea is the exact opposite of an idea espoused by contemporary choice theorists, which holds that the offenses committed by criminals are dictated by “choice structuring properties” (e.g., Clarke and Cornish, 2002) that appeal to rational considerations to explain offense differences. In any event, Lombroso concludes from these “anthropological” investigations that “born criminals” share certain physiognomic and psychological characteristics with savages. Since he thinks that savages are essentially a comparatively unevolved species of man, he comes to associate habitual criminality with “atavism”. Specifying just what Lombroso meant by atavism is not easy. Essentially, what he seems to mean is that approximately one third of criminals are biologically similar to primitive man. That is, “proper” ontogenetic development in these criminals has been “stunted”. Gould (1996:164) characterizes this position as saying that “criminals are apes in our midst, marked by the anatomical stigmata of atavism”. Gould (1996:155-156) also notes that there is an element of the nineteenth century idea that “ontogeny recapitulates phylogeny” in Lombroso’s approach. This notion works hand in hand with the concept of atavism. It expresses the idea that the individual organism replicates the evolutionary history of all life, including his own species, in its own development. If this development is curtailed, then, the individual organism remains “frozen” at a kind of “prehistoric”

90 The next several quotes are taken from excerpts of Lombroso’s The Criminal Man that appear in the 1972 book The Heritage of Criminology edited by Sylvester unless otherwise indicated. The writer’s online search of the Library of Congress suggests that surprisingly there does not appear to be an extant English language translation of Lombroso’s Criminal Man. Since the writer is only fluent in English, (a sad state of affairs indeed) he has been forced to rely on translated excerpts from that work when citing to it. Fortunately, English versions of Lombroso and Ferrero’s The Female Offender (1895/1958) and Crime: Its Causes and Remedies (1918) are available and will be discussed in addition to the oft-cited summary of Lombroso’s ideas- written by Lombroso’s daughter Gina- entitled Criminal Man According to the Classification of Cesare Lombroso (1911/1972). 91 Criminals with “beautiful” and “perfectly regular” physiognomies are, for example, “skillful swindlers”, “bandit chiefs”. It will become clear shortly that since Lombroso thinks these criminals are “almost always persons of uncommon intelligence” who have a “certain gracefulness of form” that he does not think that biological factors completely explain these kinds of criminals.

65 stage, and, Lombroso thinks, it is to be expected that the behaviors exhibited by such an organism will indicate this. Criminal man, in short, is primitive man92. Lombroso’s evidence for this kind of atavism is, of course, somewhat suspect. It is important to appreciate, though, that Lombroso did not think that these features themselves created criminal behavior; rather, he thought they were indicators of something we would today call a “latent variable”. The summary of Lombroso’s views prepared by his daughter states: In neither case have the anomalies an intrinsic importance, since they are neither the cause of the anti-social tendencies of the criminal nor the mental deficiencies of the cretin. They are the outward signs of a mysterious and complicated degeneration, which in the case of the criminal evokes evil impulses which are largely of atavistic origin (1911/1972:24). In keeping with his association of atavism and savagery, Lombroso implicitly adopts a Hobbesian state of nature assessment of the nature of primitive life that has consequences for his criminological views. Born criminals, Lombroso thinks, are possessed of violent, brutish, and wanton criminally inclined passions: “I know of an eminent poet who no sooner sees a calf shot or even its bleeding carcass hanging, is seized with lust; and another who experiences ejaculations merely strangling a fowl or a pigeon” (1911/1972:73). Furthermore, Lombroso claims that born criminals exhibit “relative insensibility to pain” but “precocity to sensual pleasures” (1918:365-366; citing to 1876 pp136-579). We shall find this observation to be of considerable relevance in the next chapter, where we discuss contemporary rational choice theories. More generally on the subject of born criminals, Lombroso states: Knowing that the delinquent is not far removed from the uncouth and the savage, and that at times the distance between them disappears altogether, we can appreciate why men from the lower orders, even if not immoral, so frequently have a real predilection for crime and why convicts in turn mix so easily with savages…(1918:365-366). Lombroso’s daughter attributes to Lombroso the belief that the atavistic born criminal is devoid of repentance and remorse, cynical, vain, treacherous, and impulsive. It is interesting to observe that it seems quite possible to cast Lombroso’s “defects in moral sense” in terms of what Beccaria might have called intemperate, perhaps even natural, passions. We saw in the first section that there is no ontological reason why such an equation cannot be made. Beccaria and Lombroso both think that “passions” can, other things being equal, prompt criminal behavior, although it is true that Lombroso appears to place more emphasis on the idea that some people (born criminals, for example) are more prone than others to entertain and act upon evil, or malevolent, passions. Understanding Lombroso’s account of atavism enables us to perceive the role he assigned to psychic organization. He thought psychic organization tracked biological or physical organization in such a way that passions flowed out of the soma. If the soma’s development is arrested, he thought, we can expect certain passions to prevail which are primitive and “evil”, as Lombroso’s daughter indicates: No one, before my father, had ever recognised in the criminal an abnormal being driven by an irresistible atavistic impulse to commit anti-social acts, but many had observed (cases of the kind were too frequent to escape notice) the existence of

92 This view resonates with Freud’s conception of the “Id”.

66 certain individuals, nearly always members of degenerate families, who seemed from their earliest infancy to be prompted by some fatal impulse to do evil to their fellow men (1972:52).93 And, furthermore, Lombroso’s daughter offers the following account of the born criminal: “To give up stealing, said Deham to Lauvergne, “would be like ceasing to exist. Stealing is a passion that burns like love and when I feel the blood seething in my brain and fingers, I think I should be capable of robbing myself, if that were possible”… (1972:38). These accounts of “irresistible atavistic impulses” and passions that “burn like love” the giving up of which would mean “ceasing to exist” have the air of something primordial, or compulsive about them. Lombroso seems to contrast these with passions that have something “extra-organic” about them in the sense that they are in part, at least, generated by environmental cues. Wolfgang, in the course of a discussion of Lombroso’s views, states: Crimes of violence based not upon conditions arising from the nature of the organism [the born criminal soma] but often from “anger, platonic or filial love, offended honour, which are usually generous passions and often sublime” characterise the “irresistible force” manifested by the “deliquente d’impeto o passione” (1972:253). There are therefore passions that can be classified into two types that Lombroso thinks can produce crime. Hume, however, said the same thing. Readers may recall from chapter I that Hume distinguished between passions that arise from a “natural impulse” or “instinct”, such as hunger, lust, the desire for punishment of our enemies, and other passions having to with bodily “appetites’, and passions that arise from experiences with “good” and “evil” (pleasure and pain). He thought the former type of passion (akin to what we would today call drives) yields pleasure when gratified, and did not arise from experienced or anticipated gratifying objects. So, Hume, and therefore likely Beccaria as well, recognized the concept of a born criminal in a sense. They thought that in the absence of a well-crafted rewards and punishments scheme, passionate forces might prevail, but that those forces could be corralled by suitable rewards and punishments. Lombroso largely adheres to his claims regarding atavism and born criminals in later works. In the (1895/1958) Lombroso-Ferrero work The Female Offender, the authors state that female born criminals exhibit “refined diabolical cruelty” (1895:148). In addition, they are said to be motivated by passions such as “vengeance” (1895:154), “violent hatred” (1895/1958:158) and “insatiable egotism” (1895/1958:159). Furthermore: These women have the same passion for evil for its own sake which characterises equally the male born criminal and epileptic and hysterical subjects. Their hatreds are automatic, springing from no external cause, such as an insult or an offense, but from a morbid irritation of the psychical centres, which finds relief for itself in evil action (1895/1958:158). Still later, in 1918, Lombroso states that born criminals have a “passion for doing evil for its own sake” (1918:374) and that born criminals show “characteristics that are almost

93 Toward the end of the quotation the “morally insane” criminal makes an appearance. This type will be discussed shortly.

67 always “atavistic” (1918:365). Such characteristics include “impulsiveness”, “laziness”, “physiopsychic excitability”, “improvidence”, “violent passions”, and “great vanity” (1918:366). Wolfgang (1972:251) notes that “[a]s his analyses continued, Lombroso came to believe that the moral imbecile and the criminal were fundamentally alike in physical constitution and mental characteristics”. Since evidence indicated that “many characteristics of the criminal could not be explained by atavism” (1972:252), Lombroso began to look for other pathological conditions that “arrested development of certain organs, particularly the nerve centers” (1972:252). Wolfgang quotes Lombroso as saying “[t]he fusion of criminality with epilepsy and with moral insanity alone could explain the purely pathological and non-atavistic phenomena in the delinquent” (1972:252). Thus, Lombroso came to group born criminals, epileptics, and insane criminals into a class that can be called “abnormal”, or “degenerate”. Lombroso thinks that the differences between these types is one of degree rather than kind (see 1918:365-376), and retains the idea that at bottom organic defect is what contributes to the criminality of each of these classes of criminal. Indeed, in his later work, Lombroso seems to be of the view that atavism is more of a condition than a cause, and speculates that this condition can be brought about by either congenital defects or deleterious environmental impacts on the developing fetus. In the course of discussing the substantial identity of the born criminal class and the epileptic class, Lombroso approvingly cites the following von Jauregg statement: “The idea”, he writes, “that the atavism of criminals is associated with some specific disease of the foetus has been completely confirmed by the discoveries of Ettinghausen. If, for example, we freeze the roots of an oak so as partly to kill it, the following year it will put out leaves that are not like the leaves of the modern oak, but like those of the oak of the tertiary period. This fact explains the reappearance of intermediate and indistinct fossil forms. We see very clearly, then, that influences capable of producing a disease can bring about atavistic morphological retrogressions” quoted (1918:373). The above quotations indicate that Lombroso’s conception of the born criminal and the closely associated classes of the epileptic and insane criminal can be effortlessly brought into line with key conceptions advanced by Hume and Beccaria. Born criminals are simply a class of individuals who, due to primarily organic causes, are dominated by arational, criminally inclined motivational forces and who tend to disregard what experience and the situation say would be conducive to rational self-interest. For example, Lombroso and Ferrero (1898/1958:159) state of female born criminals that “[t]heir passion of love is extraordinarily impulsive and casual. When they conceive a passion for a man they are impelled to gratify it instantly, even at the cost of a crime”94 and: Possessed by one idea, hypnotised, one may say, they can think of nothing except how to appease their passion: they are unconscious of peril and rush into crime to get that which, with a little patience, they might obtain without risk (1898).

94 Emphasis added.

68 In addition, after discussing the “lack of self-control95 which makes the epileptic commit crime without reason” (1918:374), Lombroso refers to Dostojevsky’s depiction of “smugglers of the prison as carrying on their occupation almost without returns, not withstanding the grave risks they run and in spite of promises not to relapse” (1918:374). Lombroso’s views about the nature of the born criminal, then, differ in no meaningful substantive respect from Humean and Beccarian psychological accounts. The only theoretical shift as to the origin of criminal behavior offered by Lombroso is one of emphasis: he tends to emphasize “evil” passions more than Hume and Beccaria do, and he tends to ontologically privilege bodily considerations whereas Hume and Beccaria assert that the “body” has no more reality than other bundles of ideas and impressions. This ontological privileging, however, has no theoretical causal consequences, since both parties are willing and able to attribute causal status to “bodily” forces. Consider now the views Lombroso’s daughter attributes to Lombroso about the born criminal who is a gambler: The passion for gambling is so strong that the criminal is always in a penniless condition, no matter how much treasure he has appropriated, and cases of starvation in prison are not unknown, prisoners having sold their rations in order to gratify their vice (1911)96. These views help us to indicate a genuine difference of considerable theoretical magnitude between classical criminology and Lombrosian positivism. They have differing views regarding the efficacy of punishment, which is just another way of saying they have differing views about the ultimate capacity of self-interested rationalityd to govern behavior. Presumably, if the prospect of starving to death is insufficient to deter a behavior, then the prospect of teaching desistance from the behavior through some form of education does not appear promising. Lombroso believed that the crimes of born criminals were compulsive in nature. He also believed that the malevolent, morally depraved passions motivating crimes in the born criminal have an extraordinary strength. Punishment is not an effective deterrent for criminals of this ilk because: As long as, in the eyes of the world, the criminal was a normal individual, who voluntarily and consciously violated the laws, there could be no thought of a cure97, but rather of a punishment sufficiently severe to prevent his recidivation and to inspire others with a salutary fear of offending the law (1911:153). Punishment, Lombroso thinks, cannot extirpate passionate predispositions to crime. Lombroso is therefore suggesting that born criminals are immune to the effects of education and punishment. Lombroso says “atavism shows us the inefficacy of punishment for born criminals and why it is that they inevitably have periodic relapses into crime” (1918:369) and “[t]here exists, it is true, a group of criminals, born for evil, against whom all social cures break as against a rock- a fact which compels us to eliminate them completely, even by death” (1918:447).

95 Self-control is of course the central construct of Gottfredson and Hirschi’s A General Theory of Crime. In addition to failing to acknowledge Hume and Beccaria’s views on impulsivity (which as we shall see in Chapter 6 is a perfect synonym for low self-control that is used by Gottfredson and Hirschi themselves), they make no mention of Lombroso’s many invocations of the concept of impulsivity. 96 One is reminded here of rats that kill themselves by repeatedly pressing a mechanism that injects them with cocaine.

69 Reflecting on the example of the gambler is a good way to grasp what is really at take between the true classical criminologists and Lombroso. Let us assume that there are prisoners willing to starve to death in order to gratify their gambling habit. If we assume that the gambler believes that the likely imminent consequence of their continued gambling is starvation, but they continue gambling anyway, then one of two possibilities seems to hold. The first possibility is that the gambler derives so much enjoyment from gambling that their behavior is rational in the sense that it maximizes their immediate utility to gamble; the second possibility is that there is a recognition that the gambling does not provide enough utility to justify its continuance given the likely imminent consequences. We argue in Chapters 5 and 6 that the first possibility is actually an illusory one. Rather than assume that conduct which is clearly detrimental to even the short-term self-interest of actors is rational, we should accept the alternative answer suggested by Hume, Beccaria, and Lombroso: to wit, that people do not invariably behave rationally since they can be overwhelmed by arational forces in such a way that self-interest is disregarded. If the second possibility obtains, then it is likely that a preference to stop gambling is formed that is insufficiently strong to counteract the gambling impulse. Those who have not been exposed to Hume’s influence on Beccaria might be surprised to hear that neither of those figures would have rejected the abstract possibility of someone who is heedless of future consequences; they would respond, however, that however strong the compulsion was the gambler could in theory either be rewarded in ways or punished in ways that would make them desist (perhaps there are “fates worse than death”). Lombroso would deny that this is always the case. With respect to this second possibility, Beccaria and Hume would detect a failure of evaluative rationality, and would seek to reinforce, through training, a calm passion in favor of reason. Lombroso would assert that the effectiveness of such training, at least in the born criminal cases, would be minimal. If it is true that some biological (or sociological or psychological, for that matter) forces can be so strong as to resist even very well-crafted reward/punishment schemes, what accounts for the fact that these forces do not always manifest themselves, and only manifest themselves under certain environmental conditions? Lombroso gives us a clue. The clue occurs in the context of Lombroso’s daughter’s estimation of his views on impulsivity: That which in ordinary individuals is only an eccentric and fugitive suggestion vanishes as soon as it arises, in the case of abnormal subjects is rapidly translated into action, which, though unconscious, is not the less dangerous (1911:36). Apparently, Lombroso thinks that arational somatic forces are not always operative (“as soon as it arises”) with the same magnitude. This prompts us to formulate a general rule regarding the relationship between arational forces and self-interested rationality98. The general rule is that the behavior performed by actors in any given situation is a function of the nature and magnitude of arational motivations all of which vary situationally and temporally as well as the strength of arational forces successfully channeled into the semblance of self-interested rationality, which can also vary temporally and situationally.

98 We wish to remind readers that when we use the phrase “self-interested rationality”, we mean the semblance of self-interested rationality, since we hold that all behavior is ultimately arational.

70 For the sake of presenting a more complete account of Lombroso’s thought as it pertains to the concerns of the present work, something should be said regarding some other classes of criminals identified by Lombroso. We also wish to indicate briefly Lombroso’s ideas regarding experiential influences on criminal behavior. Lombroso’s picture of criminal behavior is somewhat more complete than he is usually given credit for. Let us consider first the “criminaloid”. Lombroso says that “[c]riminaloids…differ from born criminals in degree, not in kind” (1918.374). He also states that “[c]riminaloids, while quite separable from born criminals, do not lack some connection with epilepsy and atavism” (1918:374). In the same section, he goes on to state that in the biology of the criminaloid there are anomalies regarding touch and sensitivity to pain, although to a lesser extent than is found in the born criminal. More importantly, Lombroso thinks that the criminaloid “has not the cynicism of the born criminal nor the passion for doing evil for its own sake”. Essentially, Lombroso thought that “criminaloids” were “dampened” versions of born criminals with the qualification that they are not motivated by malevolent desires and are slightly less sensitive to pleasures and more sensitive to pains than born criminals. Since criminaloids are characterized in these ways, it is to be expected that the criminaloid’s behavior is more situationally driven than the behavior of the born criminal. This is of course a very short step from the proposition that criminaloids are more amenable to the life of simulated self-interested rationality than born criminals. Lombroso’s daughter states: We have said that education is not sufficient to convert a criminal into an honest man. Conversely, trials and difficulties and the want of education are powerless to make a criminal of an honest individual. Hypnotism, the most powerful means of suggestion possible, cannot induce a good man to commit a crime during the hypnotic sleep, but vicious training has an enormous influence on weak natures, who are candidates for good or evil according to circumstances. Such individuals were classified by my father as criminaloids (1911:101-102). The suggestion seems to be that since the criminaloid by definition does not exhibit malevolent motivational tendencies, acts performed by criminaloids that can be labeled “evil” or “wicked” stem from circumstantial provocations. The criminaloid is drawn into crime “by a greater opportunity” (1918), but they also tend to exhibit “lack of self control” (1918). Lombroso’s daughter states: But besides this percentage of born criminals, doomed even before birth to a career of crime, whom all educational efforts fail to redeem and who therefore should be segregated at once; besides the epileptic, hysterical, and inebriate lunatics and those insane from alcoholisation, of whom we have already spoken, there remain a number of criminals, amounting to a full half, in whom the virus is, so to speak, attenuated, who, although they are epileptoids, suffer from a milder form of the disease, so that without some adequate cause (causa criminalis) criminality is not manifested. The inhibitory centres are somewhat obtuse, but not altogether absent, so that a healthy environment, careful training, habits of industry, the inculcation of moral and humane sentiments may prevent these individuals from yielding to dishonest impulses, provided always that no special temptation to sin comes in their path (1911:101).

71 In addition, on the topic of criminaloids, Lombroso daughter says: The magnitude of a crime does not imply greater criminality on the part of its author, but rather that he is a man of brilliant endowments, whose culture and talents multiply his opportunities and means for evil. In all cases where opportunity plays an important part, the crime must necessarily be committed by individuals exposed to special temptations….(1911:107). And: In Lord S---we find united all the characteristics of the criminaloid: repentance, the desire to confess, irreproachable antecedents99 a strong incentive100 to dishonesty, and great intelligence (1911:108). Thus, although criminaloids are not believed to have any innate predisposition to criminal behavior, they are sensitive to the cost-benefit structure attending the situation. A tempting opportunity is one in which the potential benefits of a situation can appear to the actor to outweigh any potential costs attaching to it, particularly if the ability to execute the offense and get away with it is high. Indeed, if we strip away the physiognomic and biological characteristics Lombroso assigns to criminaloids, what remains is indistinguishable from Gottfredson’s and Hirschi’s (1990) characterization of the criminal- i.e., someone without special motivations leading them to crime who nevertheless succumbs to situational cost-benefit structures in impulsive ways. This is important, since Gottfredson and Hirschi consider themselves classical theorists, not positivists. We comment at length on their work in Chapter 6. For now, it seems reasonable to interpret “special temptations” as those which either make it truly in the actor’s self-interest101 to engage in the crime, or those in which the prospect of relatively immediate satisfaction is sufficiently high and future costs and benefits are discounted. Criminaloids, therefore, would appear to be capable of impulsivity as well as more or less “rational” criminality. Looking at what Lombroso says about his third major class of criminals, criminals by passion, helps to round out his views and better situate him with respect to our proposed replacement of the great divide. Criminals by passion are distinguished from born criminals and epileptics in two key ways. First, like the criminaloid, they are not motivated by malevolent desires. Rather, they are motivated by “noble and powerful” (1918:376) sentiments such as “love” and “politics” (1918:376). Second, unlike the born criminal, criminals of passion exhibit no physiognomic anomalies, although they do exhibit “tendencies to excess” (1918:376) and “impulsiveness” (1918:376). To summarize: Lombroso adopts a criminal propensity position which says that individually varying motivational differences rooted in biological processes frequently generate criminal behavior. He thinks that these forces are arational in nature and that they tend to override whatever self-interested rationality is in place. Furthermore, he thinks that in the case of born criminals criminally inclined motivational forces may be so strong that (1) they cannot be extirpated by the administration of punishment and (2) behavior tends to be unresponsive to situational disincentives that counsel against acting upon them, even if people have been carefully trained to take into account situational

99 Here, it is likely that Lombroso is referring to Lord S’s heritage. 100 Emphasis added. 101 That is, when future cost/benefit ratios are rationally calculated without discounting occurring.

72 cost/benefit considerations. With the exception of (2), nothing in Lombroso’s thinking substantively distinguishes him from the classical criminologists. Lombroso believes, just as the classical criminologists did, that individual differences with respect to the passions and individual differences with respect to the degree of control reason has over behavior together explain a good amount of criminal behavior. He also believes, in line with the true classical thinkers and with contemporary low self-control theory, that crimes are sometimes committed because people respond more or less rationally to tempting situational incentives. Once again, the genuine difference between Lombroso and the classical thinkers consists in Lombroso’s denial that ideal learning processes can extirpate criminal inclinations and generate self- interested and rational behavior in the face of countervailing arational forces. With respect to social factors and crime, Lombroso issues claims that actually resonate rather well with contemporary criminological theories. Wolfgang (1972:253) attributes the view to Lombroso that “[a]ssociations of criminals such as the Mafia and Camorra in Italy contain members drawn into crime by association”, which Wolfgang compares to Sutherland’s learning oriented theory of “differential association”. In a passage that smacks of both differential association theory as well as control theory, Lombroso states: Civilization, by relaxing the bonds of the family, not only increases the number of foundling asylums, which are the nurseries of criminals, but also multiplies the desertions of adults, rapes, and infanticides (1918:58). He also comes close to advancing a view associated with the Chicago ecological school regarding the effects of area characteristics on crime when he states: On account of railways, and governmental and commercial concentration, civilization tends continually to make the great centers of population still larger and to overpopulate the principal cities. And, as is well known, it is in these that are found crowded together the greatest number of habitual criminals.102 This unfortunate concentration of crime is to be explained by the greater profits or the greater security which the large cities offer to criminals. But this, perhaps, is not the only reason, for if in cities vigilance is more relaxed, prosecution is more active and systematic; and if temptations and inducements to crimes are more numerous, so are the opportunities for honest labor. I believe there is another influence which is more powerful still. The very congestion of population by itself gives and irresistible impulse toward crime and immorality (1918:53). Thus, Lombroso thinks that sociological conditions can increase crime by providing increased situational incentives that appeal to rational processes as well as by exacerbating motivational criminal propensities, although it is true that he places more emphasis on the latter. In general, while it seems fair to say that Lombroso concentrates much more heavily on biologically derived motivational propensities toward crime, he is also sensitive to the idea that sociological conditions can aggravate these propensities, although he does not seem to think that sociological forces alone can generate such motivational propensities. What is perhaps most interesting about Lombroso’s

102 In his introduction to Lombroso’s (1918)(1911) work, Parmalee notes that “[t]he habitual criminal, though born without criminal tendencies, has them developed in him by the circumstances of his early life” (xxix).

73 sociological ruminations is the way in which he treats class considerations. He seems to put forward a strange blend of Social Darwinism combined with sympathy for the plight of the poor. The argument seems to be that the influence of the arational biologically grounded passions decreases as one ascends the social ranks, which has consequences for the form of crime committed by members of different classes: “Why does the criminality of the rich take the form of cunning, while that of the poor is based upon violence?” The answer is easy. The upper classes represent what is really modern, while the lower still belong in thought and feeling to a relatively distant past. It is, then, logical and natural that the former should show the result of modern development in their collective criminality, and that the latter should remain, on the contrary, still violent, not to say absolutely atavistic (1918:52). And: Necessity increases the defensive power of those who stand alone and feel their weakness. The instinct of self-preservation, aroused by danger, gives to the organism the courage of despair. In the field of crime this natural law cannot fail to show itself among the lower classes, who have to contend against great odds and make up for their natural weakness by the boldness and violence of the means they employ (1918:52-53).

Summary

We have arrived at the conclusion of the historical component of this work. We carefully examined the thinking of the classical school as well as Lombrosian positivism. Results show that there are strong similarities between the two traditions with respect to individually varying motivational differences, determinism, and the imperfect ability of reason to govern behavior. We pointed out serious problems with the false but received view of classical criminology, which holds that the classical criminologists subscribed to free will, upheld the sovereignty of reason, and unqualifiedly accepted hedonism. The great divide should be replaced by a distinction grounded in the genuine views of classical criminology. Such a distinction involves appreciating differences regarding the potential power of learning processes to (1) extinguish motivational propensities toward crime and (2) encourage individuals to live the life of self-interested rationality. Consequently, the proposed replacement of the divide argues that the major distinction between the traditions is that classical criminology stands for the ultimate behavioral supremacy of reward/punishment processes. The proposed replacement holds that questions regarding whether motivational predispositions toward crime and propensities to emotional volatility can be successfully altered by experience have empirical answers, with the implication that it is in theory logically possible that one tradition or the other can emerge victorious (although in practice it will always be possible to argue that different learning procedures might have produced different results). One of the more significant metatheoretical consequences of the replacement of the divide is that proponents of classical and positivist criminologies can pursue collaborative work without unnecessary fear that they operate from logically inconsistent basic premises. Indeed, the proposed replacement of the great divide suggests that those

74 criminologists aligned with the classical school should investigate the variables that maximize the effect of learning processes on behavior so as to increase the rationality of actors, while criminologists aligned with the positivist school should investigate those motivational forces that tend to promote criminal behavior directly and by discouraging situational and developmental rationality. Finally, it is important to observe that classical and positivist criminologies as represented in the writings of Hume, Beccaria, and Lombroso each specify that crimes can be committed because the actor finds committing them intrinsically rewarding, or because actors find their commission to be rational means to the satisfaction of independent motivations. Furthermore, from a more temporal angle, each tradition specifies that motivations toward crime can issue from proximate episodic forces or from distal drive type forces. In the next two chapters, we show that two major contemporary criminological theories purportedly based on classical criminology fail because they do not appreciate genuine classical criminological behavioral principles.

75 CHAPTER 5 CHOICE THEORY IN CONTEMPORARY CRIMINOLOGY

Rational choice theory and individual differences theory are the two major perspectives in contemporary individual-level criminological theory (see, e.g., Paternoster and Bachman, 2001; Nagin and Paternoster,1993); Fattah 1993; Pallone and Hennessy,1993). They respectively descend from the false view of classical criminology criticized in previous chapters and the positivist tradition. In this chapter, rational choice theory is examined with a critical eye. In doing so, conclusions from previous chapters are applied. If contemporary criminologists had appreciated the empiricist underpinnings of classical criminology, they might have seen that there is no inconsistency between the recognition of individually varying affective predispositions to crime and the recognition that rationality and the pleasure/pain principle can exercise strong influences on human behavior. If that had been realized, a paradigmatic separation of classical and positivist criminology probably would not have occurred. If criminologists had appreciated Beccaria’s determinism, “free will” might well have been (and justifiably so, in the writer’s opinion) rejected as a theoretical non-starter in criminology. Rational choice theorists have decided to instead to operate with the fictitious version of classical criminology criticized as textually inaccurate in previous chapters: Rational choice theory is the mainstay of economics and has been applied widely in sociology…[a]lthough it is comparatively new to criminology, its focus on offenders as rational decision makers calculating where their self-interest lies, and pursuing it, puts it squarely in the classical tradition as developed by Beccaria in the eighteenth century Clarke and Cornish (2001: 23-24). One major problem with rational choice theory is that the assumption regarding the sovereignty of reason over behavior (falsely imputed to classical theorists) is wrong. The classical criminologists did not hold this, and they had good reasons for not holding it. People act against their perceived rational self-interest all the time. There are plenty of instances in which people regret having done something the instant they have done it. In some cases, people regret doing something while they are doing it, but feel like “they can’t help it”. Chapter 1 discusses why this is a major problem for rational choice theory. If reason were sovereign over behavior, then in a very real sense there would be absolutely nothing to explain regarding behavior. Alternatively worded, rational choice theory would be a perfect, albeit trivial and degenerate, explanation of behavior. It is true that there would still be problems with prediction, since accurate prediction would require information about the individually varying and situationally varying utility functions operated upon by reason. The deep theoretical problem about behavior, however, would be solved; or, perhaps more accurately, ruled out of court by fiat. The explanation of any given behavior would be “this is what they wanted, and that was what they viewed as the rational way to go about getting it, therefore that is what they did”. This belief that human behavior is invariably rational is no more justifiable (perhaps less so, since each day provides empirical evidence against it) than the belief

76 that people are born morally evil or good (in the metaphysical sense-if any- of those words), or that God exists. It is an article of faith, and nothing more. The opposing position, that people do not invariably act in accordance with perceived rational self- interest, flows directly from genuine classical criminology and is also highly relevant to the next chapter’s discussion of low self-control theory, and so we shall expound on it again there. A second major problem that plagues rational choice theory is similar to the first. The first problem identified provides that it is not true that people invariably behave in accordance with perceived rational self-interest. The second problem is that Simon’s notion of “satisficing” demonstrates that reason never determines behavior. The notion of “satisificing” amounts to an a priori proof of Hume and Beccaria’s view regarding the complete supremacy of the passions. It is therefore strange that rational choice theorists have, we shall see, enthusiastically adopted the satisficing idea. A reasonable conclusion to draw is that rational choice theorists have not thought about the idea carefully, since it logically implies the falsity of rational choice theory and is in no way compatible with it. The third major problem for rational choice theory is that its failure to carefully inspect the writings of the classical criminologists has fostered confusion on pivotal issues. The rational choice emphasis on the sovereignty of reason, derived from the mistaken conventional classical view, has tended to preclude adequate recognition of individually varying motivational differences relevant to crime. In general, early rational choice thought disregarded these differences, while more recent rational choice thought is slowly coming around to the recognition that they exist. Even when such recognitions are made, however, the causal emphasis is placed on situational, proximate factors at the expense of distal motivational factors. This could be yet another vestige of the mistaken interpretation of the classical tradition and that interpretation’s emphasis on the sovereignty of reason. Rational choice theorists have not yet come to the lucid recognition that rational choice theory is fully compatible with the notion of criminally inclined motivational differences across individuals, and so the pains that have been taken to distinguish rational choice theory from individual difference theories have been totally unnecessary. A simple, but hopefully nonetheless important, theme has emerged in the work so far. The theme is that rationality is not a given. It must be generated, and even then it can only be “emulated”. Indeed, we take this to be the most pregnant of the true classical criminological lessons. It follows that the overarching goal in this chapter is a simple one: to demonstrate that the foundation of contemporary rational choice theory is fatally flawed. Because rational choice theorists have no means of addressing these problems, they have been forced to hold one of two basic positions, each of which is implausible. The two basic positions involve different understandings of the way defects in reason contribute to criminal behavior. The first basic position, which is supported by those who explicitly call themselves “rational choice” theorists, holds that the only internal individual differences that are relevant to criminal behavior have to do with how well people compute behavioral alternatives and behavioral consequences. This is different from typical propensity positions in that it holds that there is no special motivation to crime; rather, it holds that a key mechanism relevant to criminal behavior is not operating efficiently. In other words, the key mechanism-reason- does not vary individually, only

77 its operation does. The position holds that by far the most important influences on behavior are the situational incentive structure facing actors together with individual preferences for goods such as money that are presumed to be relatively invariant across individuals, although the means for satisfying those preferences might well be unequally distributed103. The second basic position tries a formal compromise with “propensity” theories. This line of choice theory holds that while there can be important individual differences with respect to the workings of the faculty of reason, those differences have to do with the formal property of discounting future prospects. Like the first position, the second position thinks that motivational differences are either nonexistent or inoperative. The two positions can be treated in terms of our distinctions of executive rationality and evaluative rationality. The first position emphasizes defects in executive rationality; the second position concentrates on defects in evaluative rationality. Gottfredson and Hirschi accept the second position. They hold that “propensity to crime” means that some individuals (those predisposed to crime) discount the future more than non-criminals. Their position is addressed in Chapter 6. Readers may recall Nagin and Paternoster’s (1993) assertion that “criminology has developed along two separate and distinct tracks”. The track considered in this chapter is what Nagin and Paternoster call the “proximate situational influences”, or “rewards and costs” track. They trace this track back to the Beccarian utility school, and so the track is historically related to “choice” insofar as Beccaria is viewed as sponsoring choice. It is substantively related to rational choice in that major contemporary individual-level theorists expressly incorporate the notion of choice into their “situational” and/or “utilitarian” accounts of criminal behavior. The second track Nagin and Paternoster identify is the “propensity”, or “time-stable individual differences” track. This track is traced back to Lombroso, and holds that individuals differ with respect to “criminal predisposition”, where that predisposition is understood as a distal factor that is said to override in importance-with respect to the contribution to criminal behavior- more proximate situational factors. It is the track that is often called “positivist”, or “determinist”. Adherents of the mistaken interpretation of classical criminology are saddled with settled empirical facts the tendency of which is to dissuade one from holding a full-blown choice, non-propensity view of criminal behavior. For example, the realities that a small percentage of offenders are responsible for a highly disproportionate amount of serious crime (e.g., Wolfgang, 1972; Moffit et al., 1989), that nearly all serious repeat offenders exhibit antisocial tendencies at very early ages and that there is very little evidence for crime specialization (Wolfgang, 1972; Gottfredson and Hirschi 1990), are irritants to choice theorists even though they do not, strictly speaking, logically entail some kind of propensity view (at least for certain cases). Nevertheless, it would probably be admitted by most criminologists that the above facts at least tend towards some kind of propensity view, especially when considered collectively and when evidence from genetically informed studies is entered into the fray.104 On the other hand, “positivist/propensity” theorists face the opposite problem. To paraphrase Katz (1988), propensity theorists are stumped by the question of why, if there are such things as “drives”, or internal “time-

103 Later, we shall have occasion to draw a direct link between choice theories and the strain tradition. 104 Findings pertaining to potential genetic influences on criminal behavior will be canvassed in Chapter 6.

78 stable predispositions” to crime, it is true that some with those predispositions do not commit crimes (or at any rate not always) and why some who do not exhibit such predispositions do commit crimes. It seems as though these facts mandate recognition that some kind of phenomenon that approximates “rationality”, or sensitivity to context and consequences, must be recognized, although calling these things “choice” might be going too far. Let us now trace the development of contemporary rational choice theory in order to see how its present positions were arrived at.

Recent History of Criminological Choice Theories

In the 1960’s and 1970’s deterrence theory was a hot topic in criminology Grasmick and Bursik (1990). Deterrence theory incorporates the commonsense view that awareness of the possibility of legal sanctions should influence the decision to commit criminal acts. Pogarsky states: How, if at all, does the threat of punishment deter crime? Virtually the identical deterrence theory posed by Beccaria and Bentham underlies most research on this topic: an individual will commit a crime if the benefits from offending outweigh the potential costs. An increase in the certainty, severity, or celerity of potential punishment increases the perceived costliness of the contemplated offense and can thereby discourage it (2002:431). The following inequality captures these sentiments: U (Benefits)> pU (Costs); where U* is a utility function that evaluates the benefits and costs in a common metric, and p is the perceived risk of being sanctioned Nagin and Pogarsky (2001:870). Deterrence theory is one of the most frequently researched criminological theories. Punishment certainty has been found to deter criminal behavior (e.g, Horney and Marshall, 1992), but the evidence regarding punishment severity and celerity effects is less clear. Deterrence research in the 1960’s and 1970’s focused mostly on legal sanctions, and placed less weight on the possible effects of informal sanctions. Moreover, most of these studies neglected to consider the rewards dimension as a factor influencing decisions to offend (Nagin and Paternoster, 1993:482). Thus, many of the extant deterrence studies are arguably inadequately specified. Rational choice theory made its way into criminology in part as a palliative to these misspecifications (Grasmick and Bursik, 1990 suggest a fusion of the perspectives). Akers observes: The utility premise of rational choice theory has an obvious affinity for the deterrence doctrine in criminology. Deterrence and the utilitarian view of rational human nature have been with us since at least the eighteenth century. The deterrence doctrine, which was at the heart of classical criminology, arguably has been the most researched topic in criminology since the latter part of the 1960s. Deterrence theory applies utilitarian philosophy to crime. “Rational choice” is based on economic theory derived from the same utilitarian tradition. Both theories assume that human actions are based on “rational” decisions-that is, they are informed by the probable consequences of that action..[d]espite the long historical connection suggested by their common utilitarian source, rational choice did not enter criminology primarily as research or theory on deterrence; instead, it was first introduced through economic analysis of crime (1990:654- 655).

Gary Becker’s (1968) expected utility model of behavior “marked the beginning of attempts to apply economic models of decision making…to offending” Cornish and Clarke (1986:128). The expected utility model has been variously formulated. The following is a formulation that is intuitively clear: EU (X)= p1(x1) + p2(x2)+…pn(xn).. Where pk is the probability that state k=1,2…n will occur, and xk is the outcome if state k occurs; u is a utility function that assigns utility, in a common metric, to the outcomes xn. (see Lattimore and Witte (1986:132). The assigned utilities can be either costs or benefits. This equation is of course an “ideal”. It can be viewed as a mathematical representation of the “perfectly rational economic actor.” Perfectly rational economic actors have optimum command of facts about the world and are capable of processing those facts optimally in terms of discerning factual interrelationships and likely consequences. They are also assumed to reason flawlessly and compute expected outcomes (probabilities multiplied by utility outcomes) without error. In short, the expected utility model builds in the incorrect assumption (falsely attributed to the classical school) that reason is sovereign. Johnson and Payne say of the expected utility model: According to this model, people are assumed to assign probabilities and values to all the outcomes of an action, to multiply the probability and value of each outcome, and to sum the products over all outcomes into an overall evaluation of the action. This process is repeated for every action and ends with the selection of the action with the largest expected utility (1986:171). The expected utility model can be framed in either “objective” terms or “subjective” terms. In the “objective” sense, the model assumes that actors are operating with “real” information about probabilities in facts that is undistorted by subjective factors. For example, the objective expected utility model anticipates that the decision to commit a criminal act is informed by “real” probabilities of detection and “true” information about subsequent punishments. Research by Schneider (2001), Klepper and Nagin (1989), and others shows, however, that the “objective certainty” of punishments, for example, is by no means perfectly related to subjective estimations of that same certainty. Thus, the current criminological gold standard has been to investigate associations between subjective perceptions of information relevant to decision making and criminal decisionmaking. Criminological recognition of the everyday fact that gaps exist between objective realities and subjective perceptions of those realities prompted concentration on “subjective perception” formulations of the expected utility model. The spirit behind the “subjective” expected utility model is that if actors do not have completely accurate representations of factual realities, it is not to be expected that their behavior will be “rational” in the ideal, objective sense: In spite of their uncertainty, persons still use the information that they possess at the moment to determine which of the many possible decisions they could make in a given situation will produce the most favorable outcome. In other words, they choose behaviors that they expect will be most satisfying or beneficial for them (hence, the idea of expected utility). More specifically, because the

80 outcome is expected to be beneficial in the eyes of the one making the decision (i.e., the determination of what is or is not “beneficial” is a subjective and not an objective determination), this model of decision making has also been termed a subjective expected utility model (SEU) Paternoster and Bachman (2001:19). The “subjective expected utility” model is formally identical to the “objective” model; it simply substitutes for “p” subjective probability assessments and considers utility assignments to be subjective as well, in the sense that it is “what persons believe they stand to gain or lose by committing offenses” rather than “the objective benefits and costs of. offending” (Paternoster and Simpson 1993:41). Although the shift from the “objective” model to the “subjective” model might seem substantial, in fact it is not. Both models assume that actors look to maximize their utility. The subjective utility model is compatible with the idea that actors work rationally with the information they have, in the sense that they compute expected outcomes properly and make reasonable, although objectively mistaken, efforts to find out what the facts are. Each model assumes, in other words, that reason is sovereign over behavior since each holds that all behavior issues from rational reflection on incentive structures. Both versions of the expected utility model prompt a simple question: what is it that is supposed to be making the “choice” to act upon that alternative recommended by reason? The term “evaluative rationality”, canvassed in chapter 2, comes into play here. “Evaluative rationality” is the capacity to act in accordance with what reason informs will tend to maximize our utility. Let us assume for a moment something that is false. Assume that human beings always calculate their prospects without error on the basis of completely accurate information about the world and completely accurate information regarding their preferences (that is, assume that executive rationality processes operate perfectly). How can we move from the hypothesized fact that a person has a rational representation of conduct that will maximize her utility to her automatically performing that conduct, which is what expected utility theory argues happens? Even if free will, or choice, does exist, it does not save the expected utility model of behavior, for we would be justified in asking why the existence of free will is any kind of guarantee that the expected utility model of human behavior is true. If people are truly free, why would they always exercise that will in the same formulaic way, unless free will is intrinsically rational? If the argument is then made that free will is intrinsically rational, it can then be argued that the pervasiveness of irrational conduct is good evidence that we have not got free will. A second approach is to assume that human beings are so constituted that they invariably tend to maximize their utility as they see it. This, however, would imply determinism. It also would be inconsistent with the facts. A third approach builds on the truth that there is no inherent incompatibility between rational choice theory and determinism. This approach argues that although free will does not exist, it is nevertheless true that people invariably behave rationally since that is how they are constituted by nature. Contemporary criminologists do not doubt that there are serious problems with the objective expected utility model of behavior. There are simply too many ways in which behavior can depart from the specifications of that model; for example, computational errors might be made, there might be an information shortage, logical

81 reasoning skills may be defective, and so on. The subjective expected utility model is therefore the favored alternative, and the current approach of criminologists in the choice camp is to speculate about factors that affect perception of risk and estimation of rewards and costs. These ideas bring us to the topic of “bounded rationality”, the idea that human behavior, for various different reasons, is imperfectly rational in the sense that it does not meet the strictures of the objective expected utility model. We pause to reiterate the vitally important point that subjective expected utility models still accept the flawed assumption of the sovereignty of reason, and mention that until that assumption is discarded subjective expected utility models are no better than objective expected utility models.

Contemporary Rational Choice Theory and Bounded Rationality

Criminologists currently recognize that there are serious problems with the objective expected utility model of behavior. While these problems should prompt the recognition that rational choice theory’s belief in the sovereignty of reason and the causal irrelevance of individually varying criminally inclined motivations is invalid, so far it has not. Instead, those theorists have attempted to maintain that belief by acknowledging and incorporating the insights of “bounded rationality” thinkers in combination with the subjective expected utility model. This strategy does not work. It does not work because the strategy shares with the objective and subjective expected utility models the mistaken assumption that reason is somehow, perhaps metaphysically, sovereign over behavior. In the remainder of the chapter, it is shown that the insights of bounded rationality thinkers show conclusively that reason does not determine behavior at all, even though this point is not appreciated by those theorists. “Bounded rationality” theory is the response of choice theorists to the problems presented by the objective expected utility model. The nature and depth of those problems is striking. The definition of “bounded rationality” gives some indication of those problems. Paternoster and Simpson (1993:55) observe: The belief that the commission of a crime involves a rational decision does not, however, imply the notion that would-be offenders are strictly rational calculators, that is, that they are utility maximizers. Rational choice theorists recognize that humans are limited in the amount and kind of information they are able to process, the amount of information they are able to store, and in how the information gets processed and interpreted. This is the notion of bounded or minimal rationality (Simon 1957; Cherniak 1986). Harding (1993:99) states: Bounded rationality is the term used to express the notion that human information processing limitations put constraints upon or bring about distortions in decision processes. The bounded rationality hypothesis states that behavior is reasoned within constraints, but is not necessarily fully rational in the strict sense of maximizing expected utility. Clarke and Cornish (2001:25) state: “[B]ounded” rationality…is to say that criminal decision making is inevitably less than perfect, because it reflects imperfect conditions under which it naturally occurs. Because offending involves risk and uncertainty, offenders are rarely in

82 possession of all the necessary facts about costs and benefits (the risks, efforts, and rewards of crime). Although they try to act as effectively as they can, choices may have to be made quickly and revised hastily. And, because there are constraints on human information-processing abilities, criminals, like the rest of us, may use rules of thumb to guide their actions. The notion of “bounded rationality” rejects the objective expected utility model of human behavior derived from economic thought. It contemplates that information that informs decisions can be defective in several respects. The information used in decision making can be composed of poor judgments about objective facts-including probabilities; it can be composed of conclusions drawn from poor reasoning; computational errors can be made; crucial pieces of information might be missing from calculative processes due to lack of effort, capacity, or both-and so on. Compounding these problems is the fact that decision procedures depart from ideal rationality. For example, “a bounded rationality view suggests that only a few aspects of a few alternatives may be considered and the rest ignored” Johnson and Payne (1986:173). Thus: [a]ccording to the bounded rationality view, a burglar might only consider houses near easy escape routes and only examine the probable take in choosing a target, ignoring other information. Evidence of such simplification is provided by Carroll (1982), who showed that criminals ignored certain aspects of possible crimes in judging their attractiveness (1986:173) In short, people use heuristic, or “noncompensatory” (Ibid) strategies when choosing: Consider a potential burglar. A compensatory model, such as that implied by the expected utility model, would suggest that he or she examines all the alternatives and evaluates them individually, combining their good and bad points into an overall evaluation. Thus a fairly visible house might be selected because the perceived benefits of the burglary are high. In contrast, a noncompensatory model might simply eliminate that alternative because it was too visible, ignoring all other factors, such as the potential take (1986:173). Furthermore, the above limitations seriously compromise the “maximization” component of the expected utility model. If, for example, assessments of certainty of success and amount of gain are made hierarchically, or serially, in such a way that information is not combined unless early steps are “acceptable”, then utility cannot be maximized (other than fortuitously) and behavior is not fully rational. Instead of expected utility maximization, or optimific105 rationality, what occurs is “satisficing”. “Satisficing” involves: [t]he selection of the first alternative to pass a set of criteria. Another way of putting this is that choice will be determined, in part at least, by the order in which alternatives are presented to the decision maker. All other things being equal, the decision maker will be more likely to choose from the first alternatives presented. This has two implications: First, variables that may seem relatively meaningless from an expected utility perspective, for example distance from a perpetrator’s residence, have more meaning within a noncompensatory model (1986:182).

105 Believe it or not, this is actually a word. It is used in the economic and philosophical rational choice literature.

83 Byron (1998) notes that satisficing is cheaper106 than optimizing because it lowers search costs107. Rationality is thus compromised horizontally across alternatives-since only certain aspects of certain alternatives are evaluated- as well as vertically since alternatives appear to influence decisions differently depending on the order in which they are considered and/or presented. The main consequence of these observations is that actors do not maximize their utility; they compromise and behave in ways they view as “reasonable”. “Gains” reflected in lower search costs and reduction of opportunity costs are traded against outcomes the utility of which is less than optimal. The next section returns to a discussion of satisficing and argues that the falsity of rational choice theory logically follows from satisficing. Now, however, we continue with a discussion of the ways in which the objective expected utility model is flawed. If all of the above shortcomings of “executive rationality”-the rationality associated with evaluation of facts and consequences-were not enough, the work of Tversky and Kahneman creates even deeper problems for objective expected utility models. Their work raises issues about “executive rationality” and “evaluative rationality”108. Lattimore and Witte (1986:139) modify the above expected utility equation in a way that captures the insights of Kahneman and Tversky (1979) and (1983): V=w1v(x1) + w2v(x2) + wnv(xn)…where V=prospect that offers the highest overall value; w is a decision weight that replaces the p from the expected utility function, and v is a subjective value function that replaces the u from the expected utility function. Kahneman and Tversky (1983) notes that experimental research suggests that the expected utility model’s assumption about how people evaluate utilities is incorrect. The value function is concave when gains are experienced and convex in the domain of “losses”, which illustrates the empirical facts of “risk aversion” and “risk seeking”. Risk aversion is exemplified by a preference for a certain $800 over an 85% chance of $1000. Risk seeking is exemplified by a preference for a 50% chance to win $10000 over a certain $6000. Risk neutrality is what is expected if the expected utility model is correct. “Value” is therefore a function of expected utility such that increasing gains have progressively decreasing marginal value109 and increasing losses have progressively increasing marginal “disvalue”, or disutility- i.e., the difference between a loss of $100 and $200 is less than the difference between a loss of $1100 and $1200. Kahneman and Tversky110 summarize this by saying that “gains” and “losses”, rather than total expected wealth, are what matters to decision makers. The value function might seem to be fairly innocuous in terms of how it should effect our view of what rationality is, since one might be tempted to say that people are entitled to evaluate their own utilities as they see fit. It has surprising implications,

106 The notion of “satisficing” resonates with “low self-control”, as we shall see in the next chapter. Low self-control solutions are not the best solutions to problems in terms of long term interests. 107 Byron also suggests, however, that satisficing is closely related to subtle optimization. Subtle optimization calculates the search costs implied by continuing to look for optimal results and estimates the expected utility of better options that searches might disclose. 108 Readers might like to be reminded that “executive rationality” involves accurate computation of alternatives and outcomes. “Evaluative rationality” involves the willingness to abide by these computations. 109 The function expressing this idea is a second-order derivative in terms of calculus. 110 Readers can see the excellent (1983) article for an enumeration and brief characterization of the numerous experimental studies reporting these effects.

84 however. It leads to the recognition that rationality alone cannot determine conduct. Let us quote an example, used in experimental research, from Kahneman and Tversky (1983:343): Imagine that the U.S. is preparing for the outbreak of an unusual Asian disease, which is expected to kill 600 people. Two alternative programs to combat the disease have been proposed. Assume that the exact scientific estimates of the consequences of the program are as follows: If program A is adopted, 200 people will be saved. (72% of respondents) If program B is adopted, there is a one-third probability that 600 people will be saved and a two-thirds probability that no people will be saved. (28%) Which of the two programs would you favor? Now consider the same “cover story” with a different description of the two programs, or “prospects”: If program C is adopted, 400 people will die. (22%) If program D is adopted, there is a one-third probability that nobody will die and a two-thirds probability that 600 people will die. (78%) The percentages indicate the proportion of respondents who selected each option. Notice that the paired options are identical in terms of consequences. They are merely described differently. How can it be that the responses differ so sharply between the sets? The authors argue that a phenomenon called “framing” occurs in which options are evaluated from the perspective of gains or losses rather than total wealth or absolute outcome. In other words, the value function entails a violation of rationality in the sense that identical outcomes lead to different choices depending on how the alternatives are experienced, or framed. In the first pair of options, A is selected by those who view the reference point as a situation in which 600 people will die, and “saving” 200 people is better than risking the loss of all 600. Thus, A represents “risk aversion” in the area of gains, just as the value function would predict. The opposite occurs in the next pair of options. The outcomes are no different, but people’s choices pretty much reverse! People are risk-seeking in the domain of losses. Since there is no good reason to switch preferences, arational (what Hume and Beccaria would call passionate) factors must account for the switch. It follows that there is at least at least one set of circumstances (namely, those in which the framing of outcomes matters) in which rationality alone does not determine decisions. Johnson and Payne (1986:175) observe that if the value function applies to criminal decision making, then how decision makers view the status quo is vital. For example, if tax cheating is viewed as reducing losses rather than increasing gains, it is more likely to occur, even if the expected utility outcomes are identical. Clearly, the value function111 raises deep problems for expected utility theory, and hence for choice theorists. The substitution of decision weights (w) for probabilities (p) also has disturbing implications for choice theorists. Kahnemann and Tversky note that probabilities are functionally transmuted by decision makers in such a way that small probabilities are viewed as nullities and very large probabilities are viewed as certainties. Johnson and Payne (Id) note that this has straightforward implications for deterrence policies.

85 Implications for Contemporary Rational Choice Theory

There are very good reasons to think that the expected utility model of decision making is wrong. How have criminologists reacted to the above assaults on rational choice? By compromising and ignoring certain realities so as to cling to something approximating a “choice” position without sliding into what they view as an individual differences, or propensity position. Each of the major compilations of rational choice theory and research- the Cornish and Clarke edited The Reasoning Criminal: Rational Choice Perspectives on Offending (1986) and Routine Activity and Rational Choice (1993)- contains articles by criminologists, economists, and psychologists who without exception acknowledge that the objective expected utility model is fundamentally flawed; that is, bounded rationality is now the norm in criminological theory. We should note that so far, we have left the subjective expected utility model intact. Indeed, the present status quo is that rational choice theorists and researchers operate with subjective expected utility models in conjunction with bounded rationality precepts (see, e.g, Exum (2002); Pogarsky (2002); Nagin and Pogarsky (2002); Paternoster and Simpson (1993)). Trasler clearly indicates the reason why theorists and researchers have enthusiastically accepted the subjective expected utility model as a response to the objective model’s shortcomings when he says that “some exponents of rational choice theory are undismayed by [the failure of the objective expected utility model], arguing that while the potential criminal may be mistaken in his assessment of the consequences and probabilities contingent upon an action, he may still act rationally in the sense that he derives a logical inference from the data available to him (1993:308). Thus, the motive of rational choice theorists is unsurprisingly to maintain the conviction that behavior is ultimately and invariably rational in spite of strong evidence (and good theoretical reasons for thinking) that it is not. It is indeed tempting to think that one can preserve the sovereignty of reason over conduct by concentrating on perceived costs, benefits, and probabilities instead of “objective” ones. Rational choice theorists believe that problems with respect to decision making processes, the analysis of facts, and computations and deductions based on such facts still leave room for the idea that reason is ultimately and invariably sovereign over behavior, since one can argue that actors always behave rationally with respect to the facts as they happen to have considered, analyzed, and deduced them. Thus, rational choice theorists try to fuse bounded rationality ideas with the subjective expected utility model to preserve rational choice theory in the wake of the demise of the objective expected utility model. Unfortunately, this attempt fails. To see why, let us begin by looking in some detail at rational choice contentions advanced by Cornish and Clarke. Clarke and Cornish (2001:24) state that “[f]or the rational choice perspective…crimes are never senseless. To the contrary, they are purposive acts intended to bring some benefit to the offender”. In addition, the rational choice theory “focus on offenders as rational decision makers calculating where their self-interest lies, and pursuing it, puts it squarely in the classical tradition as developed by Beccaria in the eighteenth century (2001:24). Also, “[b]ecause offending involves risk and uncertainty, offenders are rarely in possession of all the necessary facts about costs and benefits (the risks, efforts, and rewards of crime). Although they try to act as effectively as they can, choices may have to be made quickly

86 and revised hastily” (2001:25). These sentiments echo those stated by the same authors as long ago as 1987: …[R]ational choice” perspective on crime assumes that offenders seek to benefit themselves by their criminal behavior; that this involves the making of decisions and choices, however rudimentary on occasion those choices might be; and that these processes, constrained as they are by time, the offender’s cognitive abilities, and by the availability of relevant information, exhibit limited rather than normative rationality. Our own formulation of rational choice theory was founded on the additional premise that the decision processes and the factors taken into account are likely to vary greatly at the different stages of decision making and among different crimes. For this reason, we drew attention to the needs both to be crime-specific when analyzing criminal choices and to treat decisions relating to the various stages of criminal involvement in particular crimes (initial involvement, continuation, desistance) separately from those, such as target selection, relating to the criminal event itself (1987:933). Thus, Cornish and Clarke think that criminal behavior should be explained with concepts such as “self-interest”, “limited”- or bounded- rationality, and opportunities, costs, and benefits. Because rational choice theorists think that self-interested reason (albeit bounded) is sovereign over behavior, they downplay theoretical positions that emphasize individually varying motivational tendencies toward crime. Accordingly, rational choice theorists prefer to concentrate on crime-specific, offense considerations such as situational incentive structures that trigger criminal events rather than motivational propensities, or offender characteristics: If crimes are the result of broadly rational choices based on analyses of anticipated costs and benefits, it suggests that, instead of seeing crime as a unitary phenomenon, our analysis of criminal behavior must become much more crime- specific; and that, instead of concentrating attention solely on the criminal and on factors governing his involvement in particular crimes, adequate attention must be paid to the criminal event itself and the situational factors that influence its commission Cornish and Clarke (1986:vi). In a similar vein, Cornish and Clarke state that “[r]ational choice theory assumes that offenders respond selectively to characteristics of particular offenses-in particular, to their opportunities, costs, and benefits…” (1987:934) and that: Rather than assuming that potential offenders are fueled by a general disposition to offend which makes them relatively indifferent to the nature of the offense they commit, the rational choice perspective asserts that specific crimes are chosen and committed for specific reasons…[t]he final decision to become involved in a particular crime is the outcome of an appraisal process which evaluates the relative merits of a range of potential courses of action, comprising all those thought likely in the offender’s view to achieve his or her current objective (for example, for money, sex, or excitement Cornish and Clarke (1987:935). More recently, those authors state that: Most theories are preoccupied with the factors giving rise to criminal motivations- deep-rooted inclinations or dispositions to commit crime. The rational choice perspective, on the other hand, takes more interest in criminal motives-more fleeting needs or wishes that may be met by crime (2001:33).

These episodic motives include “to obtain money or goods”; “to gain access to services”; to obtain sexual gratification”; “to avenge an insult”; and to “obtain excitement, fun, or thrills and to relieve boredom” (2001:33). Summarizing so far, rational choice theorists view offenders as exhibiting bounded rationality and as motivated primarily by episodic, fleeting desires to procure the same types of things most people want. Essentially, then, offenders are viewed as purposeful, imperfect analyzers of situational incentive structures who seek to do the best they can i.e. they “satisfice” (2001:25) in a given situation so as to gratify ordinary desires. Clarke and Cornish’s recent work, however, does a better job of paying some attention to the possibility that criminally inclined motivations can have implications for criminal behavior. For example, they acknowledge that some criminals want “to assert dominance or control”; “to see someone suffer or become frightened”; and “to hurt an enemy” (2001:33). Although Clarke and Cornish classify these desires as episodic motives, and not criminally inclined motivations,112 it seems clear to us that they are better viewed as persistent, rooted arational motivations rather than episodic motives, although we admit that the desire to “hurt an enemy” might plausibly be read as either. Although they pay some lip service to the conventional positivist notion of causally relevant criminally inclined motivations, rational choice theorists attempt to follow the path of wrongly interpreted classical criminology. They try to deny the ultimate causal relevance of arational motivational factors by segmenting the criminal decision process into “involvement decisions” and “event decisions” (2001:26). Clarke and Cornish (2001) divide the criminal decision process into two main parts: “involvement” and “events”. The involvement part is in turn divided into “initiation”, “habituation”, and “desistance”. “Initiation” concerns whether offenders “are ready to begin committing crime to get what they want”; “habituation” concerns whether offenders “having started…should [they] continue with crime”; “desistance” concerns “whether they ought to stop” (2001:26). Arational criminally inclined motivations, personality structures, neurobiological factors, sociological factors, and so on are grouped by the authors into “background factors” and are said to exert their influence at the initiation stage. As one moves beyond initiation to habituation and desistance113, however, arational factors diminish in importance, and variables are said to influence crime by factoring into rational calculations. More importantly, arational background factors influencing involvement decisions are not viewed as causing criminal events at all, because reason is viewed as sovereign: During all stages, however, it is the immediate influence of situational variables, such as needs and motives, and opportunities and inducements, that trigger the actual decision on whether or not to commit a particular crime (2001:27). If situational incentive structures as computed by bounded reason do not countenance acting on episodic motives, then crime does not occur. This is what is meant by the assertion that rational choice theorists advocate the sovereignty of reason. It is also what is meant by our statement that rational choice theorists deny the causal relevance of arational background factors. Causal, “triggering” importance is assigned by rational

112 The authors do not specify examples of “criminally inclined motivations”. 113 Sampson and Laub’s theorization concerning “turning points in the life course” is relevant here.

88 choice theorists to situational incentive structures, not background factors. Furthermore, in spite of their willingness to accord some kind of role to background factors with respect to involvement decisions, it is by no means clear that rational choice theorists accept that ultimately anything other than rational choices are made at that stage as well. Clarke and Cornish state of biopsychological, uprbringing, and social background factors that: In a rational choice context, however, these factors are reinterpreted as influencing the judgments and perceptions leading the individual to make a criminal choice (2001:29). The conceptual tool rational choice theorists use to analyze the all-important situational variables is “choice structuring properties”. Examples of choice-structuring properties given by Cornish and Clarke (1987:935) include “type and amount of payoff, perceived risk, skills needed…which are perceived by the offender as being especially salient to his or her goals, motives, experience, abilities…”. Choice structuring properties take into account the idea that “specific crimes are committed for specific reasons Cornish and Clarke: (1987:935). The value of choice structuring properties is said to be that they clarify “the unique constellations of motives, opportunities, rewards, and costs” (1987:936) of specific offenses. The proper employment of the “choice structuring” construct requires minute differentiation among similar offenses. For example, from a policy standpoint one might want to distinguish “burglaries committed in middle class suburbs” from burglaries committed in “wealthy residential enclaves” (Cornish and Clarke 1986:2) or even “a purse snatched” as opposed to “a car stolen” in a parking garage Clarke and Felson (1993:8). The major point to be made here is that such fine grained distinctions are only as useful as people are rational. In their article Tinderbox Criminal Violence: Neurogenic Impulsivity, Risk- Taking, and the Phenomenology of Rational Choice (1993), Pallone and Hennessy acknowledge the abstract compatibility of rational choice theory and individual difference theory when they state: It is our contention that the self-selection of an environment with high tolerance f or risk, in which impulsive violence is perceived as normal and normative, indeed constitutes a “rational” choice for the person with a high taste for risk-and that, in making that choice, he or she thereby “creates” the opportunity for discharging impulse into behavior (1993:137). The assertion is that rational choice is logically compatible with widely varying motivational structures. This is insightful, and it should be viewed as the wave of the future for rational choice theory in particular and criminological theory in general. However, the fact that rational choice theory is logically compatible with individual difference theories represents only the starting point for criminological theorization. Pallone and Hennessy mistakenly subscribe to the position that reason is sovereign, which is why their concession to individual difference theories is only a superficial one. They state that the “pivot that guides the behavior” of even the “psychopathically deviate” (1993:145) is “the mis-construing of the costs, benefits, and risk associated with behavior-invariably in the direction of under-estimating costs and of over-estimating benefits” (1993:145). The true classical criminologists thought this goes too far. People do not invariably act in accordance with even bounded rational self- interest. The cognitive assessment of the cost-benefit characteristics of behavioral

89 alternatives do not always determine the behavior that is performed; the emotional value that a behavior has can trump the cognitive value of the behavior in the battle over the determination of behavior. In short, psychopathic behavior is likely to be the product of domination by certain emotional forces, not cognitive error. Arational forces, not reason, are the “pivot” of behavior. It is time to provide some arguments as to why this must be so. Reasons Why Rational Choice Theory is False

The mistaken interpretation of the classical position should be dismissed once and for all. This is for logical reasons as well as textual reasons. Reason is not sovereign over behavior. Arational forces are. There are plenty of reasons for believing this. The most damning argument against rational choice theory is saved for last. First, reflect once again on the work of Johnson and Payne and the notion of bounded rationality. They note that decision makers use non compensatory strategies; that is, they consider only certain alternatives and only certain aspects of those alternatives when deciding. If this is true, though, then why not believe that some individuals are more likely than others, due to considerations completely apart from rationality, to consider criminal alternatives? In other words, if some persons can disregard certain alternatives even when there is no good reason for doing so (when considerations of rationality counsel in favor of considering it), why not assume that some persons are more likely to regard criminal alternatives than others even though there is no good reason for doing so? Second, the views of Kahneman and Tversky provide good reasons for thinking that rational considerations alone do not determine decisions, since they show that identical incentive structures can yield different decisions depending on how the structures are framed. Thus, the rate of credit card usage is comparatively higher when price differences between cash purchases and credit card purchases are labeled as “cash discounts” rather than “credit card surcharges”. Surely arational considerations are what determines behavior in these situations. The degree of arational control over behavior might well depend on the nature and pervasiveness of framing. Third, we shall see in the next chapter that there is good evidence that people behave impulsively; that is, that they discount future prospects. In technical jargon, “preference switching” (Ainslie: 2001) occurs. People tend to choose smaller, earlier rewards over later, larger rewards, and then kick themselves for their weakness of will. Their resolve crumbles as smaller but earlier rewards approach. At time t, a person might consider it in their rational self-interest to forego reward r at time t +1 in exchange for experiencing reward s at time t +2. As t+1 approaches, however, the will collapses and r is selected. The problem that rational choice theorists cannot avoid, however, is: if people can act against perceived rational self-interest in the fairly near future, why can they not act against perceived rational self-interest in the immediate, or “extremely near” future? If they can, then (at least in those situations) rationality has nothing to do with behavior. We now come to the argument that we think conclusively demonstrates the falsity of rational choice theory.

90 A Priori Argument Demonstrating the Falsity of Rational Choice Theory

Consider a game of chess. Mathematically speaking, there is in theory an algorithm which ensures that white either wins or obtains a draw, but computing that algorithm would take billions of years. Assuming one desires to win the game, and that winning the game is the only utility relevant consideration, if one knew the algorithm and could process it in a game situation, one would use it and likely win, thereby maximizing local utility (utility with respect to the “winning” goal). For most of us, thinking even three moves ahead implicates too many combinations to reliably compute. Still, if one wished to maximize the likelihood of winning the game, and therefore utility under our assumption, in theory one would search alternatives until the point at which the expected marginal return on the search is equal to the marginal cost of the search. Even this point, however, is likely (especially for uninformed chess players) to be very difficult to compute. The next maximizing strategy likely to occur to someone is to search alternatives until it becomes unclear whether additional search is justified in terms of returns. If one stops the search at that point, a maximization interpretation is possible on the grounds that one has searched up to a point beyond which there is no reason to think additional gain worth pursuing (taking into account search costs) is to be had. Now add into the mix a timer and goals competing with the desire to win the chess game (we are getting closer to the “real” world). What you are likely to do now is employ heuristics that simplify your choice, reduce search costs, and diminish opportunity costs (which might take the form of thinking about other things and so on). You will start to think about the value of each piece and the overall pattern of distribution of pieces on the board. The move you make will be a move that you consider “good enough” considering that that there are time constraints, and that additional search tends to conflict with other considerations. Indeed, you are likely to terminate the search even before it becomes clear to you that it is unclear whether additional search is justified in terms of returns in the form of winning the game. This example illustrates the ideas behind the bounded rationality conception of “satisficing”. The satisficing conception recognizes that due to information processing constraints, associated search costs, and opportunity costs attendant upon searches, we cannot expect that our decisions will optimize (maximize) self-interested reward even with respect to the inherent limitations of the situation. Simon, the progenitor of the satisficing idea, lucidly explains the italicized sentence: “[i]n a formal sense, a process of satisficing could always be converted into a process of optimizing by taking into account the cost of search, and only searching up to the point where the expected gain derivable from another minute of search is just equal to the opportunity cost of that minute (Simon, 1955; Stigler, 1961). However, this conversion imposes a new, possible (sic) heavy, informational and computational burden upon the chooser: the burden of estimating the expected marginal return of search and the opportunity cost. Solving these estimation problems may be as difficult as making the original choice, or even more difficult. An alternative is to search until a satisfactory alternative is found (1997:296).

91 It is very important to understand that the satisficing conception does not argue that choices depart from ideal optimization (which is what would be done by an omniscient and rational deity with perfect information) merely in the sense that choosers do not have the information that omniscient deities have. Rather, the satisficing conception supposes- at least in dynamic, relatively complex choice contexts- that the behavior chosen is the one that actors believe- on the basis of a heuristic-driven evaluation of a salient subset of the many aspects potentially relevant to the decision- produces a satisfactory outcome. Clarke and Cornish (2001:25) say of people that “their decision making is satisficing rather than optimizing-it gives reasonable outcomes (“it seems to get me mostly what I want”) rather than the best that could be achieved (“all I can get with the least effort”). One more example with specifically criminological relevance might be useful. Consider a burglar. Let us contrast a burglar who tries to optimize in a limited information environment with a burglar who satisfices in a limited information environment. The optimizer may say to themselves “I have decided to commit a burglary. I want to ensure that the burglary maximizes expected yield. Therefore, I must identify, to the best of my ability given that my reasoning is not perfect and given that there is a limit to the amount of information I can process, each of the many factors, and each of the aspects of those factors, that pertain to expected yield”. Suppose visibility of the target and proximity of the target to a freeway come to mind as factors. Now, each of those factors must be evaluated in terms of their aspects. Visibility to whom? To the police? To children? To neighbors? What are they like? What is the neighborhood like? Is it the kind of neighborhood where I might look out of place? If our burglar is serious about optimizing, they will continue asking these sorts of questions about each relevant factor until they conclude “now I have reached the point where additional inquiry is not justified by expected yield. Plus, I’ve got other things to do-like actually burgling- besides thinking about these things”. The problem for the putative optimizer is that ascertaining the point at which it becomes rational to stop investigating factors and aspects is likely to be prohibitively costly. Furthermore, even ascertaining the point where it is clear that it is unclear whether additional search is justified by expected yield is likely to be prohibitively costly, especially if one considers opportunity costs and time constraints. Therefore, our burglar is overwhelmingly likely to stop short-probably well short-of a solution that is optimal even given informational constraints114. The shift from optimizing efforts to satisficing efforts hinges on information processing limitations in conjunction with search and opportunity costs. It suggests that the basic law of human decisions, if there is one, is reasonableness, not optimization. We now have the tools to succinctly present our a priori argument against choice theory. To the extent that people satisfice, and empirical evidence as well as common sense suggests they do, choice theory is false. Recall that the mistaken view of classical theory accepts as the basic law governing behavior the notion that human beings are rational and self-seeking reward maximizers. If this were true, then in theory any instance of any person’s behavior could be predicted if we had full information about that person as well as their environment, since we are to assume that they are rational and that they are operating a maximization algorithm. “Rationality” and “choice” go hand in

114 This shows that subjective expected utility models are flawed. Actors typically are not even in a position say even that “this is the best I can do given the information I’ve got”.

92 hand. It is because choice theory links rationality with the maximization algorithm that it is able in theory to predict human behavior without invoking the idea of cause. In other words, for choice theorists, “rationality” goes proxy for “causal determination”. What “determines” behavior for choice theorists is rationality, but because the maximization algorithm is accepted, predictability is not sacrificed. But people do not maximize. They satisfice. Satisficing assumes correctly, however, that there is no formally specifiable way for actors to arrive at a conception of what is “good enough”, or “reasonable given the circumstances”. Therefore, rationality can no longer substitute for causal determinism as a predictor of human behavior. There are now three logical alternatives for choice theorists to “choose” from. The first logical alternative is to maintain that free will holds, and that people exercise it in order to “determine” what results are good enough, or reasonable, given the circumstances. This response is unscientific and threatens the idea of predictability. The second alternative is to hold that random factors determine what results are viewed as good enough. This is probably unsound as a matter of empirical fact and in any event destroys the idea of predictability. The last alternative is to accept that the satisficing conception shows that choice which lacks direction in the form of an algorithm dissolves into either capriciousness or randomness, and that, if we are to remain in the business of providing theoretical accounts of human behavior, we must accept that direction of “choice” must come from arational, substantive, sources. Formal considerations alone cannot account for behavior. We must accept that there are motivational causes for our views of what counts as reasonable in any given situation, and that these motivational causes are the only possible determinants of behavior. We therefore adopt the last alternative. Choice theory is a metatheoretical dead end, satisficing entails this. This chapter canvassed rational choice theory. Rational choice theory has been claimed as the major descendant of the mistaken interpretation of the classical tradition. At its theoretical core, rational choice theory is flawed. Reason is not sovereign over behavior. Since reason is not sovereign over behavior, arational forces must be. The belief that behavior invariably issues in accordance with rational dictates and the belief that behavior issues only if reason allows it to are mere articles of faith. A wiser theoretical position holds that rationality is not a given- its semblance must be produced by capitalizing on sound learning strategies and the appropriate arational motivational forces. The next chapter applies results from this chapter to what is perhaps the most prominent theory in the criminological landscape: low self-control theory. Since low self-control theory is a version of rational choice theory, we should not be surprised to find that it succumbs to the conceptual objections made in this chapter.

93 CHAPTER 6 CLASSICAL CRIMINOLOGY AND LOW SELF-CONTROL THEORY

The incorrect interpretation of the classical tradition views that tradition as holding that human behavior is a product of free will and rationality. When combined with the pleasure/pain principle, the “classical” emphasis on free will and rationality yields a basic law of human behavior which says that actors behave so as to rationally maximize the self-interested pursuit of pleasure and avoidance of pain. The essential message of the last chapter is that this law is flawed in several respects. The idea of “bounded rationality” has come to the fore, and with it serious questions regarding the degree of influence reason has on behavior, although the nature of these implications is not fully acknowledged by rational choice theorists. Gottfredson and Hirschi’s theory of low self-control is one of the most widely researched theories of criminological theories (Pratt and Cullen, 2000). Low self-control theory is a species of choice theory. This is uncontroversial. The authors accept this characterization and the text of their work supports the characterization. We have aligned contemporary criminological choice theories with a mistaken interpretation of the classical tradition. The mistaken view falsely attributed to classical criminologists says that reason is sovereign over behavior, that free will exists, and that there are no important substantive individual differences with respect to the passions, or motivators of conduct, that might be relevant to criminal behavior. Hume and Beccaria, that is, genuine classical criminology, denies each of these claims. The discussion of discussion of Hume and Beccaria highlights the concepts of “executive rationality” and “evaluative rationality”. The former essentially concerns the potentially varying (Hume and Beccaria recognized not only that it could but that it does so vary) individual capacity to calculate results and probabilities and to extrapolate logical conclusions from an information set. The latter essentially concerns the issue of to what degree individuals actually abide by the results that executive rationality yields, and we suggested that this too can vary individually, and that Hume and Beccaria recognized not only that it could but that it does. Gottfredson and Hirschi’s low self-control theory resurrects the formal focus on evaluative rationality differences, although they never indicate their indebtedness to the classical figures Hume and Beccaria, who announced the idea long before Gottfredson and Hirschi did in 1990. The central idea of low self-control theory, which is formulated in different ways throughout the text, is “impulsivity”, or the tendency to discount future prospects. Gottfredson and Hirschi think that individually varying criminal propensity, or criminality, consists in nothing more than this- and certainly nothing more in a substantive sense. While their theory is compatible with executively oriented individual differences in the sense indicated by bounded rationality thinking, they make no mention of this in A General Theory of Crime (1990). This is perhaps understandable since that work is devoted to investigating the criminological relevance of evaluative rationality considerations, not executive rationality considerations. Their silence on the issue since then, however, is a bit more difficult to understand. In any event, we might want to

94 round out low self-control theory by showing how the bounded rationality concern with executive rationality fits in. The major objective of this chapter is to show that low self-control theory is at bottom a rational choice theory, and that as a result of this it suffers from the same incurable defects that afflict all rational choice theories. Low self-control theory argues that criminal behavior is behavior that is rational with respect to the short-term but irrational with respect to times beyond the short-term. Its supposedly unique contribution to criminological theory, therefore, consists in its emphasis on evaluative rationality issues. “Impulsive” behavior is simply behavior in which evaluative rationality has failed. The interesting and important theoretical point, however, is why evaluative rationality fails and what it means to say it fails. Gottfredson and Hirschi, having composed their theory on the basis of the mistaken interpretation of classical criminology and its misapprehension of the nature of, and role of, reason with respect to behavior, argue that impulsive behavior is freely and rationally chosen. The genuine classical view, however, argues that impulsive behavior is determined by passionate forces. The genuine classical view is superior because (1) it does not have to invoke a mysterious faculty of reason the smooth operation of which is somehow immunized against the impact of empirical forces; (2) it need not deny that it is possible to act against perceived rational self-interest, even in the short-term; and (3) it is more faithful to the phenomenology of cases in which people behave in ways that they themselves wish they could resist. In the next and final chapter, it will be shown that the competing interpretations of impulsivity issue in quite different recommendations with respect to reducing criminal behavior.

Low Self Control Theory and Rational Choice Theory

At the beginning of A General Theory of Crime,, Gottfredson and Hirschi state: A conception of crime presupposes a conception of human nature. In the classical tradition, represented by Thomas Hobbes, Jeremy Bentham, and Cesare Beccaria, human nature was easily described: “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure (Bentham 1970 [1789]:11). In this view, all human conduct can be understood as the self-interested pursuit of pleasure or the avoidance of pain (1990:5). Gottfredson and Hirschi are friendly to what they see as the classical tradition’s emphasis on the fundamental importance of the pleasure/pain principle with respect to the governance of human behavior. They go on to say “…the existence of any item of behavior is prima facie115 evidence that its benefits exceed its costs” (1990:9). They see their project as “reinterpret[ing] the classical tradition and emphasiz[ing] its explanatory power” (1990:4). By reinterpreting the classical tradition, they seem in part to want to

115 Gottfredson and Hirschi never elaborate what they mean by the “prima facie” qualification. In view of the work as a whole, though, they seem to mean that benefits exceed costs with respect to the present but not necessarily with respect to the future: “[s]o, the dimensions of self-control are, in our view, factors affecting calculation of the consequences of one’s acts. The impulsive or short-sighted person fails to consider the negative or painful consequences of his acts; the insensitive person has fewer negative consequences to consider; the less intelligent person also has fewer negative consequences to consider (has less to lose” (95).

95 “disavow the current construction of the classical view, especially the construction prevalent in economics that would limit this tradition to concern about government- defined and sanctioned behavior” (1990:4). Thus, Gottfredson and Hirschi’s modified vision of classical criminology extends the range of sanctions to be considered to encompass such phenomena as moral and social sanctions, which they view as having been slighted by contemporary criminologists, especially those with an economics bent.116 Much more important, though, is their attempt to use classical (in the mistaken sense) tools to explain individual differences in the propensity to commit crime. Since the mistaken view of classical criminology emphasizes “choice” and “rationality”, we can expect that explanation of criminal propensity amount to claims about differences in the way choice and rationality operate in criminals as opposed to non-criminals. It turns out that Gottfredson and Hirschi’s low self-control theory accepts a position that has no historical precedent in the classical criminology of Hume and Beccaria and which holds that behavior inevitably tends to maximize self-interested reward, albeit perhaps only for the short-term. It is extremely important to emphasize this point, for a great deal hinges on it that we shall have occasion to comment upon later. It is what makes low-self control theory a choice theory. It is because the theory views human nature as rational, even if only for the short term, that it makes sense for the theory to call itself a choice theory. If it is human nature to enjoy pleasure/reward, and if people are by nature rational (even if only for the short term), then it follows that people will strive to maximize rewards at least in the short term, since failing to do so would be irrational and therefore inconsistent with the postulated view of human nature.117 Such criminologists must then conceive of momentary impulses, personality traits, stable social- structural circumstances, and even biological predispositions) as wholly irrelevant to conduct in the sense that they will be acted upon only if short-term rational pleasure maximization countenances it. These variables are viewed as incapable of issuing in behavior on their own. This is merely another way of saying that there are no arational causes of human behavior. It is as though behavioral decisions are made by a disembodied consciousness that views competing motivations and acts upon them only if it makes rational sense to do so. This consciousness is viewed as deciding, or choosing, on the basis of at least short-term pleasure considerations, to let itself, if it makes sense in terms of short-run utility, or not let itself, if it does not make sense in terms of short-run utility, act upon powerful passions. Because Gottfredson and Hirschi’s theory is a choice theory, albeit only with respect to the short-term, it ultimately fails for the same reason choice generally fails: once satisficing is recognized, choice cannot account for human behavior, whether in the long term or in the short term. Some account of causal motivation is necessary if we are to explain criminal behavior. Gottfredson and Hirschi think otherwise. Let us look now at their rejection of this view, which they call “positivism”.

116 The history of deterrence research in criminology supports this claim. See Grasmick and Bursik (1990), published in the same year as Gottfredson and Hirschi’s work. 117 This is the position Gottfredson and Hirschi’s low self-control theory takes, as we shall see momentarily. It is what makes their theory “classical” in the mistaken sense of the word. The failure to understand that low self-control theory subscribes to a version of rational choice theory with respect to short term consequences has spawned considerable confusion. We will have occasion to remark upon this confusion later.

96 Gottfredson and Hirschi attempt to wield a modified vision of what they believe to be the classical view in such a way as to distance themselves from what they view as “positivist” criminology. Akers (1991:207) notes that “G & H”118 do not define exactly what they mean by the label of “positivistic”, but it appears that they are referring primarily to theories which they characterize as proposing one or more positive causes of criminal behavior, while self-control theory proposes “negative” causes”, but this is only part of what Gottfredson & Hirschi seem to mean by positivism. Now, however, we are interested in understanding how they view positivism so as to better illuminate how they see themselves as modifying a classical position that they fail to understand properly in the first place. Akers is correct that Gottfredson and Hirschi are unclear about the meaning they assign to positivism. The crux of their perspective seems to be contained in the following passage, which is, however, not a model of clarity: Lacking the classical theory of behavior,119 however, positivists have not been able to deal with the connections among the many acts that make up deviance and crime. Consequently, they have tended to develop behavior-specific theories and to treat the relations between deviance and crime as cause and effect rather than as manifestations of a single cause. One purpose of this book is to reunite deviance and crime under a general theory of human behavior (1990:3-4). Fortunately, a bit more textual evidence suffices at least to justify a reasonably responsible interpretation of what they mean by positivism: In positivistic thought, the definition of a phenomenon is distinct from its explanation or causes. The motives or desires of those committing criminal acts may be different from the motives or desires of those committing immoral or physically harmful acts. Thus in positivistic thought the only thing possibly common to diverse acts is that they may be effects of the same causes (1990:11). In addition: Theories that do not implicate acts in their own causation tend eventually to forget why they were put together in the first place, and naturally enough when acts are seen to be different there is an inclination to produce different explanations for each of them. Having separated the definition of crime from the causes of crime, the positivists have had no way to see the similarities among criminal acts beyond the fact that they are violations of the law. This deficiency in the conceptual apparatus of positivism eventually produces radical empiricism120, which attempts to discover distinct types of causes for distinct types of offenses (1990:11). Moreover, “positivism brought with it the idea… that criminals carry within themselves properties peculiarly and positively conducive to crime” (1990:86). Lastly: When the classical school gave way to the positivists, with their assumption that crime is evidence of biological, psychological, or social pathology, force and fraud were no longer assumed to be natural, and some special motive or

118 The abbreviation “G&H” appears in the original. 119 The rational reward maximization theory. 120 Here, Gottfredson & Hirschi seem to take for granted that we all know what justifies their use of the phrase “radical empiricism”. If they are talking about radical empiricism in a Humean sense, then they should view Hume, Beccaria and Bentham as positivists in their sense of the word, since those figures allow for as many causes as there are different constantly conjoined impressions and ideas together with their associated pleasure/pain values.

97 compulsion was required to explain their use. The major source of such compulsion was, from the beginning, low social class, poverty, or inequality (1990:181). Gottfredson and Hirschi view positivist criminologists as holding the mistaken belief that criminals and non-criminals act from substantively different motivational causes. They seem to waffle a bit on just what it means to be a positivist in terms of the search for “causes”. While they say above that positivists are looking for “distinct types of causes for distinct types of offenses”, they also attribute to the positivist perspective the idea that “the only thing possibly common to diverse acts is that they may be effects of the same causes”. These observations are separated by one paragraph, but they seem to be in considerable tension, since the logical possibility (which Gottfredson and Hirschi grant to positivists) that a multiplicity of events can be traced to a common cause seems to be at odds with the idea that positivists are looking for separate causes for each distinguishable event. What are we to make of this? The most charitable move for us to make is one that directs us to look at the broad portrait Gottfredson and Hirschi try to compose with what they view as classical materials. The central point seems to be that in their view positivism unnecessarily complicates criminological theory (e.g., there is no need to ascribe differing motivations to criminals and non-criminals; likewise, there is no need to ascribe different motivations to different types of crime) and that it has no genuine explanation of a crucial fact that serves as the empirical basis of self-control theory: the fact that criminal behavior is well correlated with other non-criminal, but in some sense deviant, forms of behavior such as cigarette smoking, risky sex, and automobile accidents (“the connections among the many acts that make up deviance and crime”): …[t]he classical image of human nature and the classical conception of the criminal act seemed to us better able than any positivistic theory to accommodate the finding that crime is only part of a much larger set of deviant acts, acts that include accidents, victimizations, truancies from home, school, and work, substance abuse, family problems, and disease (1990:xiv). These ideas can by crystallized by reflecting on the title of the work “A General Theory of Crime”. As the title suggests, Gottfredson and Hirschi are after a general theory of crime. On the topic of general theory, Gibbons (1997) observes: As for general theory, its underlying premise seems counterintuitive to many persons. Scholars often have contended that the forms of criminal conduct or the types of persons who engage in these disparate acts cannot possibly be explained by a single, overarching theory. There is no logical principle, however, that can be invoked in order to deny the idea of a general theory. On the contrary, Braithwaite (1989a) argues that in order for a general theory of crime to be developed, it is necessary only that instances of it have some characteristics in common; they need not be homogenous on all dimensions. The task of the theorist is to identify those commonalities which justify treating some congeries of activity as a single category or form. As Braithwaite put it: “In advance, giraffes, clover and newts might seem a hopelessly heterogeneous class, yet the theory of evolution shows how the proof of the pudding is in the eating (1989a:130)

General theories try to locate common elements in seemingly disparate phenomena so as to unite those phenomena under a common rubric. Thus, with respect to offenses, a general theorist argues that there is a sufficient degree of commonality between robberies, homicides, rapes, thefts, drug use, cheating on exams, and so forth, to justify treating them as manifestations of an abstract and unified process or set of processes. With respect to offenders, the same thinking holds. General theorists argue that there is no need, at least at a deep theoretical level, to produce separate theories to account for the criminal behavior of Caucasians as opposed to Asians, or men as opposed to women, and so forth. Since the general theorist is of the opinion that deviant behavior is “of one cloth, explicable within a systematic, coherent general theory” Tittle (1995:21), they view subject-specific, narrowly tailored theories (assuming they are successful) as logical derivations from the abstract process or processes specified by the general theory. With these ideas in hand, it seems pretty clear that Gottfredson and Hirschi are essentially arguing that positivists should be faulted for their unduly narrow concentration on particular types of crime and/or criminals. The result of such myopia, they believe, is to lose sight of elementary similarities among phenomena that seem, from a theoretical standpoint, to be so disparate as to require different theoretical explanations. A single, simple, unified theory of criminal behavior (and non-criminal deviance as well) is viewed as preferable to a patchwork raft of disconnected and isolated theories each tied to specific forms of criminal motivation leading to different deviant acts. Gottfredson and Hirschi offer their general theory of crime in part as a response to the above mentioned worries about positivism. The centerpiece of their problem with positivism is the issue of criminally inclined motivational propensities toward crime. In addition to their fear that the positivistic, individual-differences theoretical concentrations on criminally inclined motivations leads to an unacceptable multiplicity of theories for different crime types, they reject the idea that “different motives or desires” (1990:11), or “special motive[s] or compulsion[s]” (1990:180) contribute to criminal behavior, since holding that they do would be to resort to “determinism, a positive tendency to crime that is contrary to the classical model” (1990:88). Differential motivations or compulsions toward criminal behavior would, Gottfredson and Hirschi think, inappropriately suggest that “people differ in the extent to which they “require” or “need” (1990:88) crime. The sense of propulsion in these formulations contradicts the choice position they accept, and so the formulations are rejected as explanatory candidates. It should be noted that Gottfredson and Hirschi’s rejection of the potential explanatory relevance of differential motivation, “compulsion” and “need” forecloses recognition of sociological stalwart variables such as social class just as much as it forecloses resort to heredity: In classical theory, it was assumed that resort to force or fraud was an ever- present potential in human affairs. Both force and fraud were seen as means of pursuing self-interest, and the distinction between the two was not taken to be of theoretical interest. When the classical school gave way to the positivists, with their assumption that crime is evidence of biological, psychological, or social pathology, force and fraud were no longer assumed to be natural, and some special motive or compulsion was required to explain their use. The major social source of such compulsion was, from the beginning, low social class, poverty, or inequality (1990:181).

The words “need” and “compulsion” and the phrase “differential motivation” have a very broad scope for Gottfredson and Hirschi. The scope is connected with “positivistic determinism” and must be understood with reference to it. Indeed, it seems to be the case that “specific” or unique motivations are actually “compulsions” in disguise, which is consistent with one possible reading of the (1990:181) formulation just quoted. To see this, let us look at Barlow’s observation: Gottfredson and Hirschi start out with a condemnation: positivists generally look for the causes of crime within their own disciplines. “Thus, sociology looks to social class, culture, and organization; psychology looks to personality; biology looks to inheritance; and economics looks to employment or work” (xiv) (1991:230-231). Two paragraphs later, Barlow states: Since crime, as any other behavior, turns on the likelihood that it will bring pleasure, its characteristics must in general be consistent with that result irrespective of the specific motives, interests, or talents of perpetrators. Criminal acts therefore tend to be easy and simple to commit, to involve little skill or planning, and to be exciting, risky, or thrilling. What makes crimes distinct from analogous acts is that they entail the use of force and fraud. According to Gottfredson and Hirschi, “[f]orce and fraud are ever-present possibilities in human affairs (1990:8)”, and their use helps make gratification immediate (1991:231) These are remarkable claims. Gottfredson and Hirschi argue that factors like frustration, poverty, genetic characteristics, imitation, learning by positive reinforcement, and so on have zero relevance with respect to the causal explanation of criminal behavior. This observation must be immediately be tempered, however, even though neither the commentators upon low-self control theory nor Gottfredson and Hirschi themselves develop the reasons why very well. The qualification is derived from the following paragraph, and others like it scattered throughout A General Theory of Crime (none of which, however, even remotely approaches even the minimum amount of sustained discussion in the paragraph quoted here): Obviously, the mechanism of crime causation is fair game for all disciplines and cannot reasonably be claimed to be the sole province of any of them. For example, family socialization practices may produce variation in concern about the costs of short-term hedonistic behavior (Hirschi, 1969). By the same token, biological differences in physical size could reduce the costs of such behavior, thus increasing the probability that the actor will choose to engage in it (1990:83). The message here seems to be that while criminals are not compelled to behave differently from non-criminals because they have unique motivations, there is room for the idea that unique motivations stemming from sociological, biological, and psychological sources can influence behavior by figuring into rational choice calculations that issue in behavior. This interpretation (and it seems to be facially accurate) is fully consistent with Gottfredson and Hirschi’s central project, which is based on the fact that there are individual differences in criminal propensity that remain stable with change in the social location of individuals, since the idea is that “specific

100 motives, interests, or talents” can influence cost-benefit calculations without compelling a choice. The interpretation also provides a benefit that seems to be of considerable value. It allows Gottfredson and Hirschi to say that while the true “cause” of criminal behavior is the propensity to exercise choice in a particular way to be detailed shortly (it has to do with discounting future prospects) there are also influences which can shape the behavior ultimately chosen by impacting reward/punishment considerations. Thus, those who experience relative deprivation might find that victimizing a wealthy individual furnishes rewards (perhaps in the form of discharged frustration) in addition to whatever other rewards might attend the victimization-rewards that someone else with the same degree of underlying propensity but without the sense of relative deprivation might not register. It so, it would then follow that those with a higher propensity to commit crime who are also relatively deprived would commit more crimes than those with equally high propensities without the relative deprivation, other things being equal. It would not obviously follow, however, that the relative deprivation should be called a “cause”, since it could be the case, for example, that those with low self-control coupled with relative deprivation also experience a greater likelihood of short-term sanction imposition, in which case criminal behavior would be correlatively less likely. Perhaps the best reading of Gottfredson and Hirschi’s position on “specific motivation”, then, is that specific motivations exert no effect on criminal behavior that cannot be counteracted by suitable short-term sanctions and which can operate independently of criminal propensity, or low self-control. Indeed, part of what makes low self-control theory fascinating is its insistence that suitable short-term sanctions must, as a matter of human nature, counteract whatever criminal propensity exists in a person, no matter how high that propensity is. The reason for this is that low self-control theory is, once again, a short-term rational choice theory. It views human nature in such a way that it is impossible for a person to act contrary to their short-term interests as they see them. We shall see that this proposition, together with the conception of satisficing, ultimately destroys the theory.

Low Self Control Theory: Specific Constructs

The empirical starting points for low self-control theory are the well established facts that a disproportionate amount of crime is committed by a disproportionately small groups of offenders even when controlling for sociological factors; that there is little evidence for offender specialization; and that criminal behaviors are well correlated with “analogous” noncriminal acts such as risky sex, smoking, and automobile accidents. Gottfredson and Hirschi state: …the fact remains that classical theory cannot shed much light on the positivistic finding (denied by most positivistic theories…)121 that these differences remain reasonably stable with change in the social location of individuals and change in their knowledge of the operation of sanction systems. This is the problem of self- control, the differential tendency to people to avoid criminal acts whatever the circumstances in which they find themselves (1990:87). And:

121 The authors here indicate that theoretical criminology has on the whole been unfriendly towards psychological and biological theories of crime.

101 In spite of years of tireless research motivated by a belief in specialization, no credible evidence of specialization has been reported. In fact, the evidence of offender versatility is overwhelming (Hirschi, 1969; Hindelang, 1971; Wolfgang, Figlio, and Sellin 1972; Petersilia, 1980; Hindelang, Hirschi, and Weis 1981; Rojek and Erickson 1982; Klein, 1984) (1990:91). Finally: We know that criminal and deviant acts have something in common because participation in any one of them predicts participation in all of the others. People who smoke and drink are more likely than people who do not smoke or drink to use illegal drugs, to cut classes, to cheat on tests, to break into houses, to rob and steal. People who rob and steal are more likely than people who do not rob and steal to smoke and drink, use illegal drugs, break into houses, and cheat on tests. What do robbery, theft, burglary, cheating, truancy, and drug use (and the many forms of criminal and deviant behavior not listed) have in common? They are all quick and easy ways of getting what one wants. They are all also, in the long run, dangerous to one’s health, safety, reputation, and economic well-being Hirschi and Gottfredson (2001:82). The challenge that Gottfredson and Hirschi set for themselves is to theoretically account for these facts without sliding into what they believe to be the errors of positivism. Thus, they are looking for a general theory of criminal behavior that avoids reliance on individual motivational propensities towards crime. They believe, mistakenly, that the classical school’s conception of human nature meets the challenge. Thus, Gottfredson and Hirschi accept that “people behave rationally when they commit crimes” (1990:5); that “people are free to choose their course of conduct, whether it be legal or illegal” (1990:5); that “human conduct can be understood as the self- interested pursuit of pleasure and avoidance of pain” (1990:5); that “what distinguishes offenders from others is not the strength of their appetites” (Hirschi and Gottfredson 2001:90); that “crimes will be committed whenever the pleasures produced by them exceed the pain attendant on their commission” (1990:5); and that crimes “involve no driving force beyond the satisfaction of everyday human desires” (2001:92). Each of the elements of the conventional classical position- free will, rationality, and hedonism- are accepted by Gottfredson and Hirschi. The positivistic notion of arational forces driving behavior is rejected. Together, these ideas suggest Gottfredson and Hirschi that one should be able to read off the nature of criminal propensity from the characteristics of criminal and associated analogous noncriminal acts. Their reasoning is that since motivational differences are either nonexistent or behaviorally irrelevant (or both), acts can only be manifestations of the self-interested pursuit of pleasure and rationality, since those are the behaviorally relevant factors bequeathed to us by the incorrect interpretation of the classical position that they accept. Otherwise put, since Gottfredson and Hirschi do not think that there are “deep” motivational drives towards crime, they look upon criminal behaviors as indicators of self-interested rationality and hedonism- in short- human nature. So far, this sounds just like Cornish and Clarke’s version of rational choice theory. In fact, low self-control theory is a two part theory. The relationship between these two parts is not at all well understood by researchers and theorists. The two parts are the construct of low self-control and the construct of “opportunity”. Low self-control

102 theory is actually a theory of criminality and a theory of crimes. In Hirschi’s words, theories of criminality discuss “relatively stable differences among individuals in their propensity to engage in criminal or equivalent acts” (1986:114). They are offender theories. Theories of crime, on the other hand, are theories about situational triggers of criminal behaviors. They are “offense” theories. In Cornish and Clarke’s terms, it is a theory of involvement decisions and criminal events. The criminality component of low self-control theory is the basis for the name of the theory. The “opportunity” construct of low self-control theory is the criminal events portion of the theory. We shall discuss these components in order, and then discuss vital misunderstandings by contemporary researchers and theorists.

Component 1 of Low Self Control Theory: Low Self Control

In accordance with the reasoning outlined above, Gottfredson and Hirschi investigate the characteristics of crimes and analogous acts in an effort to discern features consistent with the idea that the rational and self-interested pursuit of pleasure “causes” them. The features they discern are that crimes and analogous noncriminal acts provide “immediate gratification of desires”122 (1990:89); “easy or simple gratification of desires” (1990:89); “are risky, exciting, or thrilling” (1990:89); provide “few or meager long-term benefits” (1990:89); require “little skill or planning” (1990:89); and “often result in pain or discomfort for the victim” (1990:89). Gottfredson and Hirschi then infer, again in accordance with their conventional classical program, the properties of criminal propensity (low self-control) from these features. Taking the above features in order, they conclude that those with low self- control have a “concrete here and now orientation” (1990:89); “lack diligence, tenacity, or persistence in a course of action” (1990:89); “tend to be adventuresome, active, and physical” (1990:89); “have unstable marriages, friendships, and job profiles” (1990:89); “need not possess or value cognitive or academic skills” (1990:89), and tend to be “self- centered” (1990:89).. Gottfredson and Hirschi refer to these inferred properties as “dimensions of self- control” (1990:95), but this is an inaccurate use of the term “dimension” and leads to confusion. Maxfield and Babbie (2001:421) provides that a dimension is “a specifiable aspect or facet of a concept”. They illustrate the idea of a dimension by mentioning that two dimensions of the concept “crime seriousness” are “victim identity” and “victim harm” (2001:103). With reference to this example, use of the word “dimension” means that it makes sense to say that “victim identity” and “victim harm” are two different ways in which crime seriousness can be understood. It does not make sense to say, however, that “having a concrete here and now orientation” and “not valuing academic skills” are two different ways of understanding low self-control. The latter might well be a consequence of low self-control, but surely it is not an aspect or facet of it123. The former best captures what Gottfredson and Hirschi mean by low self-control. Indeed, the “low self-control” construct essentially means “impulsivity”, or a high degree of present orientation. This reading is in line with statements made throughout

122 Gottfredson and Hirschi’s theory is certainly compromised on the generality front by its failure to provide a plausible explanation of planned crimes. 123 The failure to appreciate this has had unfortunate consequences for research.

103 Gottfredson and Hirschi’s 1990 text. For example, they state that: “targets that provide immediate benefits will be selected over targets that occasion delay” (1990:13); “[w]hat classical theory lacks is an explicit idea of self-control, the idea that people also differ in the extent to which they are vulnerable to the temptations of the moment” (1990:87), and “pleasures and pains are time-discounted” (1990:13). In 2001, Hirschi and Gottfredson state: [p]eople must differ in the likelihood that they will take the quick and easy way regardless of long-term consequences. This enduring difference between people the theory calls self-control. Those who have a high degree of self-control avoid acts potentially damaging to their future prospects, whatever the current benefits these acts seem to promise. Those with a low degree of self-control are easily swayed by current benefits and tend to forget future costs (2001:82). Finally, Hirschi and Gottfredson state that “[t]he concept at the heart of the theory is self- control, defined as the tendency to avoid acts whose long-term costs exceed their immediate or short-term benefits” (2001:82). The concern about the dimensionality of the low self-control construct is more than academic. Improper specification of the dimensionality of low self-control can distort research results. More importantly for our purposes, it has theoretical consequences. As Barlow (1991:233-234) states, there is no theoretical basis for predicting which of many possible crimes and analogous acts will be committed by individuals with low self control”. This is because low self control theory rejects the idea of individually varying motivational propensities toward crime and because it accepts the idea (to be canvassed under our discussion of the opportunity component of the theory) that the form of crime is determined by immediate local opportunity incentive structures (i.e., low self-control theory is a short-term rational choice theory). If low self- control were actually a multidimensional construct, however, then “individuals scoring high on just one of the dimensions of low self-control may tend to specialize in certain crimes even after controlling for the influence of opportunity Arneklev et al. (1999:312). As those authors note, however, this would be in “direct opposition to Gottfredson and Hirschi’s position that each member of society has a similar “nonnegative level of “criminality” or “criminal propensity” that influences involvement in all forms of criminal and analogous behavior (1999:312). In other words, if the several properties of low self-control cited above and identified by Gottfredson and Hirschi in 1990 bear differential relations to specific forms of crime (a possibility implied by multidimensionality but logically foreclosed by unidimensionality), the generality of low self-control theory would be compromised, since “different offenders might be influenced by the different dimensions of low self-control and their offending patterns would reflect this” (1999:312). There are very good reasons for thinking that low self-control is a unidimensional construct. It accords with Gottfredson and Hirschi’s most recent statement of the theory and has salutary consequences for the interpretation of empirical tests. Arneklev et al. (1999) and Grasmick et al. (1993) employ factor analytic methods and determine that it is unidimensional. Those findings, however, are based on conventional interpretations of

104 the meaning of factor loadings124 and not on substantive theoretical considerations. We maintain that the substantive theoretical core of the low self control construct is simple: it consists in the tendency to opt for small short-term cost/benefit ratios at the expense of larger but delayed cost/benefit ratios. Low self-control represents the failure of evaluative rationality that was identified by Hume and Beccaria. Viewed this way, low self-control is a formal defect of reason in its relationship to the governance of behavior. Although people may end up undervaluing such properties as cognitive skills and stable marriages because of low self-control, these properties should not, in our judgment, be understood as constitutive of low self-control, contra some language in A General Theory of Crime. People with poor cognitive skills might commit more crimes than those with stronger cognitive skills, but this need not have anything at all to do with low self-control. To summarize, low self-control is a unidimensional construct. Those with low self-control are wont to discount future costs and benefits and engage in preference- switching. At time t, the impulsive actor prefers option b to option a, but as time t +1 approaches, (as the time for the experience of the earlier option “a” reward draws nearer) option a is preferred even when it means foregoing the later but larger option b reward. When viewed in conjunction with Gottfredson and Hirschi’s claims that “crimes are acts of force and fraud undertaken in the pursuit of self-interest” (1990:15), that crimes “satisfy universal desires” (1990:12) and that offenders are not distinguishable from offenders in terms of “the strength of their appetites” (2001:90), the picture of criminal propensity that emerges is such that the criminally inclined are those who unreasonably discount future costs and benefits in the course of freely choosing crime as a means to the realization of perfectly ordinary, universal, and short-term desires to experience pleasure and avoid pain. Having indicated what self-control is, we consider Gottfredson and Hirschi’s claim regarding the origins of low self-control. They state: [t]he major sources of self-control, in our view, are the actions of parents or other responsible adults. Parents who care for their children watch them as best they can. When they see their children doing something they should not do, they correct, admonish, or punish them. The logical structure of successful socialization thus has four necessary conditions: care, monitor, recognize (deviant behavior), and correct. When any one of them is missing, continued low self- control may be the result (2001:90) . In addition: Low self-control is not produced by training, tutelage, or socialization. As a matter of fact, all of the characteristics associated with low self-control tend to show themselves in the absence of nurturance, discipline, or training (1990:95). Gottfredson and Hirschi also state that “[t]he major “cause” of low self-control thus appears to be ineffective child rearing” (1990:97). They think that the cause of low self- control is negative: it consists in the failure of parents to properly monitor, recognize, and punish deviant behavior. They reject the possibility that low self-control has biological and/or experiential sources as too positivistic. Furthermore, they think that theories

124 This is an instance of a general problem that plagues criminological theory. In our judgment, the use of sophisticated statistical techniques is often undertaken for its own sake and without sufficient regard to theoretical underpinnings.

105 which locate impulsivity in biological and/or experiential sources end up offering inconsistent “distant” and “proximate”, or criminality and crime, theories if they acknowledge the influence of rationality on behavior (1990:113-114). Gottfredson and Hirschi reason that if impulsivity is an individual difference with “positive” causal sources, then “unrestricted decisionmaking from moment to moment depending on the situation” (1990:113)-i.e., rationality- is not possible. Their point seems to be that locating criminal propensity in arational causal sources while explaining specific criminal behaviors by reference to rational decisions made in immediate situational incentive contexts is inconsistent. This is incorrect. Commitment to the idea that impulsivity has positive causal sources does not logically commit one to the idea that rational decision making is impossible, and Hume and Beccaria see why this is so. Gottfredson and Hirschi think there is such a commitment because they accept the wrongly interpreted classical position on choice and rationality. Under that interpretation, people always behave rationally and freely, and so one must hold that distal criminal propensity as well as proximate behaviors are explicable in terms of rationality alone. From that standpoint, it might look inconsistent to say that impulsivity is due to arational causes and that people can behave rationally in immediate situational contexts. If they had understood the message of the true classical criminologists, however, Gottfredson and Hirschi would realize that the point of the classical tradition is that all phenomena, including the semblance of rationality, have arational causes. This is just another way of stating Hume’s basic message: that even apparently rational behavior is motivated not by reason, but by a calm passion in favor of reason. In fact, Gottfredson and Hirschi themselves are the ones that are inconsistent. If they are willing to acknowledge that impulsive people can act against their rational self- interest with respect to consequences to be experienced 3 weeks from now (and that is part of what it means to be impulsive), why not hold that they can do so with respect to consequences to be experienced 3 milliseconds from now? Their answer to this question can be no more than: “we accept the conventional classical model on blind faith, and that model says people always behave rationally, at least with respect to the short-term.” As the time until ill future consequences are to be experienced approaches zero, though, it becomes increasingly implausible to say that rationality controls conduct, since if “rationality” means anything it means that people act in accordance with perceived self- interest. It is therefore reasonable to believe that Gottfredson and Hirschi are wrong to hold that low self-control has no arational sources. Even if they were right about the origin of impulsivity, however, their policy recommendations regarding parenting are flatly inconsistent with their specification of the low self-control construct. If the source of behavioral problems in children is low self-control, which implies that they impulsively discount the future, then how is punishing them supposed by Gottfredson and Hirschi to remedy it, since the whole problem is supposed to be that children irrationally discount future punitive consequences? Although Gottfredson and Hirschi think that criminal propensity consists in irrationally and impulsively discounting future prospects, they think that people invariably behave rationally with respect to short-term prospects. The failure to fully appreciate this has led to serious consequences for criminological theory and research.

106 Let us expand on these points by discussing the “opportunity” component of low self- control theory.

Component 2 of Low Self-Control Theory: Opportunity

Four years before the publication of A General Theory of Crime, Hirschi published an article entitled On the Compatibility of Rational Choice and Social Control Theories of Crime (1986). In the article, he speaks of the need for an integration of a theory of crime with a theory of criminality. He holds that rational choice theory furnishes a good theory of crime, or criminal events. We saw in the last chapter that rational choice theory focuses on situational cost-benefit structures. He notes that situational variables “affect the likelihood that people will commit crimes without affecting their relative propensities to commit crime- that is, without affecting their criminality” (1986:117). Low self control theory acknowledges the relevance of such situational incentives to criminal events while fashioning a theory of criminality consistent with the idea that reason governs behavior and consistent with the idea that there are no significant motivational differences that distinguish criminals from noncriminals. Essentially, low self-control theory holds that while such situational factors do not compel crime, they can deter the crime of even impulsive individuals, since low self-control theory holds that even those individuals are viewed as rational with respect to the short-term. Thus, low self-control theory holds that “[t]argets that pose little risk of detection and little risk of resistance will be chosen over those with greater risks” (1990:13), and accepts that “family socialization practices may produce variation in concern about the costs of short-term hedonistic behavior, thus increasing the probability125 that the actor will choose to engage in it” (1990:83), quoting Hirschi (1969)). More recently, Hirschi and Gottfredson explicitly endorse the rational choice position regarding the sovereignty of reason at the point of commission of offenses: Because offenders have low self-control, they are easily deterred by increasing the immediate difficulties and risks of criminal acts and are generally unaffected by changes in the long-term consequences of behavior. Consequently, steering wheel locks are more effective than increased penalties in reducing auto theft, and moving in groups is more effective than increased police presence in preventing robbery (2001:92). In addition: …increasing the cost of alcohol or banning its use in particular settings126 will often produce the desired result with little effort. Guarding parking lots or apartment complexes can also be effective in preventing theft and vandalism…low self-control theory actually supports an offense-specific approach to crime prevention (2001:92-93). Low self-control theory therefore accepts the rational choice view that opportunities, or situational incentive structures, influence the likelihood of crime because criminals are rational decision makers, albeit only for the short-term. These incentive structures, however, are not viewed as causing crime, since they will only generate crime if reason declares that it is in the actor’s short-term self-interest to commit the crime: crimes are

125 Emphasis added. 126 The result of the “War on Drugs” seems to militate against this claim.

107 “acts of force or fraud undertaken in pursuit of self-interest” (1990:15); “people behave rationally when they commit crimes and when they do not (1990:9). Recent commentators and researchers have seriously misunderstood this aspect of Gottfredson and Hirschi’s theory. While Nagin and Paternoster properly note that low self-control theory “treats individuals as rational decisionmakers who respond to perceived incentives”, they draw totally incorrect conclusions from this. They state: [t]hose with low self-control find it difficult to invest in conventionality because they discount future rewards in favor of immediate pleasures. Since they have fewer investments in the future, persons with low self-control have much less at risk than those with greater self-control. We believe that the reason persons with poor self-control commit crimes at a consistently higher rate than others is because they have less to lose (1993:470). This is error. Those with low self-control are more likely to commit crimes because they discount future prospects, not because they “have less to lose”. Recognition of the short- term opportunity/rational choice element in self-control theory must not cause one to lose sight of the present orientation specification. While it is true that those with low self- control might have less to lose in terms of future prospects, making self-control theory turn on this would be tantamount to converting it to garden variety rational choice theory. From the standpoint of a proper reading of low self-control theory, having less to lose matters only insofar as it makes present opportunities more or less appealing than they otherwise would be. The issue can be thrown into relief as follows: suppose two individuals with the same amount of future utility at risk, one of whom is low in self- control and one of whom is high in self-control. Who is more likely to commit a crime? The answer of low self-control theory is obvious, and this shows that having less to lose is at best a possible causal path from low self-control to crime and by no means the exclusive way in which self-control affects criminal behavior. Grasmick and Bursik (1993:11) “would note…an apparent inconsistency between the “risk seeking” component of low self-control and the inclusion of “little risk of detection” in the definition of crime opportunity. Those with low self-control, by Gottfredson and Hirschi’s definition, should not be attracted to situations involving little risk”. While Gottfredson and Hirschi’s theory does have its inconsistencies, this is not one of them. Gottfredson and Hirschi theorize that those with low self-control pursue risky activities because they are more pleasurable, not because they are more risky simpliciter “riding a motorcycle is more exciting than driving a car” (1990:12). Just because those with low self-control are more likely to jump out of airplanes127 does not mean they are not going to wear parachutes when doing so. Grasmick and Bursik’s mistake reflects a failure to appreciate the short-term rational choice/opportunity component of low self-control theory. Evans et al. (1998) make a mistake of crucial importance for the testing of low self-control theory. They think that if low self-control theory is correct, then the influence of variables such as strain, association with delinquent peers, conventional

127 Gottfredson and Hirschi think that short-term pleasure premiums together with rationality explain why those with low self-control are more likely than others to jump out of airplanes. Surely this is incorrect. There must be individually varying arational motivational inclinations-of whatever source- to such activities. This should be obvious from the fact that not everyone finds the prospect of such behavior equally appealing.

108 social bonds, and so on should disappear when statistically controlling for low self- control. This is false. Low self-control theory’s opportunity/situational rational choice component provides that those variables influence rational cost-benefit calculations in the short-term, and therefore should influence criminal behavior. The proper conclusion regarding the effect of other variables in equations containing low self-control is this: variables with implications for short-term costs and benefits should show significant effects (assuming rational choice theory is at least in part correct), but long-term cost- benefit variables should not. Because low self-control theory is a short-term rational choice theory, it is subject to the criticisms we developed of that theory in the last chapter.

Low Self-Control Theory: Criticisms

Each of the two components of low self-control theory is defective. Let us take the opportunity/rational choice component first. The last chapter’s argument regarding satisficing applies. Satisficing provides that at best, behaviors will only conform with what actors view as reasonable, not what is optimific. Since nearly all given situations admit of many possible behaviors indistinguishable in terms of “reasonableness” (think for example of an appellate court decision), extrarational, or arational, determinants must produce behavior. Satisficing forecloses the possibility that reason can determine behavior by issuing a single behavioral alternative derived from a choice algorithm. Next, low self-control theory admits that behavior can depart from the dictates of long-term self-interested rationality. Why then can it not do so with respect to even very near term situational considerations? If it can, however, then there is no guarantee that that short-term behaviors will be self-interested and rational. Furthermore, if we admit that people can behave against perceived self-interest, it becomes difficult to see how we can call such behavior the result of a free choice. When criminals phone in confessions to the police and commit homicides next to the constable on the corner, we are justified in doubting that the decisions are freely made. These considerations mean that it is a good bet that the origin of low self-control must be located in arational sources. Finally, with respect to low self-control theory’s claims that there are no motivational differences in degree or kind between criminals and noncriminals, we mention that Bentham (who Gottfredson and Hirschi extol at some length) asserted that there were certainly differences in the degree of sensitivity to pleasure and pain across individuals, and we wonder how Gottfredson and Hirschi could have overlooked this. We also ask how Gottfredson and Hirschi can be so confident that there are no qualitative motivational differences relevant to criminal behavior when they admit that those with low self-control are more apt to pursue “thrilling” activities. Not all people find “thrilling” activities pleasurable. Some find them scary. If that motivational difference obtains, why believe that there are no such differences more immediately relevant to crime? All forms of rational choice theory are seriously problematic, including low self- control theory. In a sentence, we reject choice theory’s endorsement of the sovereignty of reason and align ourselves with Hume and Beccaria. The arational governs behavior, but environmental inputs might be able to create the semblance of self-interested and

109 rational behavior. In the next chapter, ways in which our reformulation of the great divide allow us to improve criminological theory are identified.

110 CHAPTER 7 A NEW THEORY OF CRIMINAL PROPENSITY GROUNDED IN EMOTIONAL DETERMINISM

The most important message of the work is that there are problems with the rational choice position and that the classical criminologists suggest a conceptualization of reason that makes it possible to avoid such problems. The rational choice position is far too confident in reason and ignores the fact that emotional forces often yield behavior at odds with the dictates of reason. This chapter summarizes the difficulties with rational choice theory and shows that an adequate theory of criminal propensity necessitates adoption of the understanding of reason put forth by classical criminologists. The chapter opens by restating exactly what rational choice theorists are committed to. Then, argument is given as to why the rational choice position cannot be correct. Next, the structure of the “criminal propensity” construct is restated in substantive terms and given a formal characterization as well. The chapter continues by presenting a theory of criminal propensity rooted in “emotional determinism and Freud’s distinction between the “pleasure” and “reality” principles. “Emotional Determinism” is a name for the classical criminological view that behavior is ultimately the product of competing emotional forces of varying relative strengths. In conclusion, the chapter reflects on the situation of the theory of criminal propensity with respect to the division between classical and positivist criminologies. Overall, care is taken to specify the precise but abstract way in which classical criminologists understand reason to interact with emotions in the decision making process.

THE RATIONAL CHOICE POSITION AND ITS DEFECTS

The philosophical literature contains references to a “principle of charity”, which counsels in pertinent part that those engaged in criticism of a position should ascribe to their opponent the best defense available to them. In the present context, this certainly means that rational choice theorists must not be saddled with the indefensible position that behavior invariably maximizes utility from an objective standpoint. Fortunately, Chapter 5 shows that criminologists are moving away from this position. Chapter 5 also shows, however, that prominent criminologists (e.g., Paternoster and Simpson, 1993) remain sympathetic to the maximization of subjective expected utility position, which provides that actors invariably behave so as to produce the most perceived utility possible given the circumstances. The information processing constraints identified by bounded rationality theorists, however, show that even this more relaxed position is doubtful. Because of such constraints as well as opportunity costs, actors are rarely in a position to say that “this is the best I can do given such limitations”. Rather, the bounded rationality claims show that the most actors can assert is that their decision makes them better off than alternative decisions would. This rather diluted position, however, still leaves the question whether the rational choice theorist must hold that all decisions make actors better off with respect to all time frames. As Gottfredson and Hirschi and others have recognized, it is possible to act irrationally with respect to future prospects. This means

111 that actors can do things that make themselves better off in the present even though future prospects, which are more highly valued, are compromised. Succumbing to temptation cases illustrate this point. Everyone will have had the experience of indulging in a behavior that they know, as they are indulging, is not in their self-interest. In fact, what are believed to be stern resolutions against indulgence often break down in the face of temptation; an extra piece of pie is consumed; an extra beer is imbibed; a trifle is stolen; a lover is shot in an uncontrollable rage. Since such behaviors are interesting precisely because they defy the dictates of rational judgement, the rational choice theorist has an imposing problem to confront. How can such behaviors be explained in terms of rational choice? The principle of charity, however, commands that we construe the rational choice position in such a way that it can be best defended. In the present context, that means imputing a retreat from the position that all decisions make actors better off with respect to all time frames (as far as actors can tell given the information they have) to the seemingly more modest position that all decisions invariably make actors better off at least with respect to the present. This formulation builds in recognition of satisficing and thereby alleviates the maximization burden. Furthermore, although adoption of the position amounts to an abandonment of the intention to explain “succumbing to temptation” behaviors, there would seem to be no alternative if rational choice theory is to make defensible claims regarding human behavior. Lastly, the position accords well with the recent declaration of Clarke and Cornish that rational decision makers are “calculating where their self- interest lies” and “pursuing it” (2001:23-24). Therefore, the proposition ascribed to rational choice theorists in accordance with the principle of charity is: the power of reason guarantees that actors invariably behave so as to make themselves better off at least with respect to the present. Unfortunately, this position is also indefensible. The first argument in demonstration of the indefensibility of even the diluted version of rational choice theory flows from satisficing, which is discussed at length in Chapters 5 and 6. Briefly, the idea is that information processing costs together with opportunity costs entail that it is impossible for actors to calculate which behavioral alternative maximizes their prospects. Furthermore, the satisficing construct contemplates that in most cases it will be true that it is impossible to evaluate whether additional search costs are justified. Consequently, at best actors end up selecting behaviors that are reasonably satisfactory. Notice, though, that in most situations any number of different behaviors satisfy the criterion “reasonably satisfactory”. Since reason can typically only carve out a set of behaviors for potential realization rather than a particular behavior, the particular behavior that is ultimately chosen must be determined by arational forces. It follows immediately that the rational choice claim that the “power of reason” guarantees that actors invariably behave so as to make themselves better off at least with respect to the present” cannot be correct; if the satisficing conception of behavior is correct, then the ultimate determinant of behavior must be arational forces, not reason. A second argument, first sounded in Chapter 6, can be directed against the proposition that behavior invariably makes actors better off at least with respect to the present. If it is possible to act irrationally with respect to future prospects 6 months from now, it is possible (barring arbitrariness) to act irrationally with respect to consequences 6 milliseconds from now, and so on to even shorter time frames. Thus, it turns out that the

112 rational choice theorist finds no refuge in a “present oriented” position, since precisely the same problem that afflicts them with respect to succumbing to temptations at the expense of a relatively distant future arises no matter what the argument satisfying the function/predicate128 “future” is. If irrational behavior is possible with respect to the future, it is just as possible with respect to the present, and rational choice theory cannot account for it. Such behavior must be produced by arational forces, and the position advocated by Hume, “emotional determinism”, is an account based in the idea that behavior is ultimately produced by arational forces. A third argument against the rational choice view cuts even deeper. The argument builds on Hume’s declaration, discussed in Chapter 2, that “reason is the slave of the passions”. This phrase means several things. First, it means that reason cannot of itself justify the ends of behavior or the content of character. It is impossible to establish, using reason alone, that “conscientiousness” is desirable. Similarly, it is impossible to establish, using reason alone, that trustworthiness, cooperativeness, nonviolence, and so on are desirable as ends in themselves, although, as will be shown in a moment, it is perfectly true that reason can recommend behaving in the above ways as means to ends that are ultimately desired on arational grounds. Perhaps the clearest way to make Hume’s point here is to draw attention to the reality that it is impossible to establish, using reason alone, that suicide is irrational, even for someone who is genuinely enjoying themselves and looks forward to what the future has in store. To someone who claims that reason alone can supply such justifications, the response is “prove it”; and such a response admits of no answer. The principle here is that reason can recommend a line of behavior only if that line of behavior is already desired for “reasons” having nothing to do with reason. Additional illumination of Hume’s point comes from the recognition that a major target of his are rationalist claims regarding the sovereignty of reason in our lives and the ability of reason to, for example, disclose supposedly eternal ethical truths. Next, reflect once more on the “succumbing to temptation” problem. Hume’s account of such phenomena is simple: emotion is overriding the recommendations of reason. It follows for Hume that there is no need to undertake the unrealizable project of accounting for such behaviors in rational choice terms. The phenomenological evidence is certainly on Hume’s side in the form of experiences such as “I just can’t help myself”; “my desire was just too strong”; “I couldn’t overcome my craving”, and so on. It might seem as though the rational choice theorist has an out. They might claim that at the time temptation is succumbed to, the behavior is such that it accords with what reason prescribes with respect to the short-term. The response here is two-fold. First, this claim succumbs to the above argument that there can be no guarantee that behavior is invariably rational in the short-term. Second, and more importantly, Hume’s question would be “what rational explanation can there be for the preference switch from “I won’t use physical force the next time I get into an argument” to “I’m going to use physical force as a way of “resolving” this argument”, especially when we take into account the regret that often follows “uncontrolled” behavior? Hume’s point is therefore that there is no automatic transition from the rational recognition that a given piece of behavior is/is not in one’s self-interest to actual performance/avoidance of that behavior. Temptation cases are by definition those in which actors are prompted to behave out of line with their own judgments about rational self-interest; that is why they are called “temptation” cases.

128 The terms “function”, “argument”, and “predicate” are here meant in terms of symbolic logic.

113 The moral of Hume’s story, and part of the meaning behind the phrase “reason is the slave of the passions”, is that whether one listens to the counsel of reason cannot be determined by reason. Thus, even if we put to one side the argument leading to the conclusion that it is false that behaviors are invariably rational with respect to the short- term, it remains the case that the rational choice theorist must give some account as to why a decision in favor of the short-term, even if rational with respect to the short-term, is selected in favor of decisions that are rational with respect to longer-term prospects. The rational choice theorist has no answer. Hume does have an answer. One listens to reason, Hume thinks, only if one is emotionally inclined to do so. The short-term solution is selected when emotional forces in favor of the short-term solution are strong enough to prevail against emotional forces ranged under the interest of reason. Notice that Hume is not saying that behavior never accords with reason. Nor is he saying that there is no such thing as a behavior that fits the description “rational”. The next section expands on these points in the course of restating the way in which Hume conceives the influence of reason on behavior.

THE ROLE OF REASON IN DECISION MAKING ACCORDING TO HUME

It is extremely important to understand that Hume in no way rejects the idea that there is such a thing as rational behavior. The question is what ultimately accounts for such behavior. It is reason that tells us, for example, that if for no good reason we strike someone larger and more athletic than ourselves, we are likely to end up receiving a good bit of pain, and we might on that account desist from the striking. Similarly, suppose someone tells us that there is an apple on the table in the next room, and that we happen to desire an apple. We might reason as follows: the information about the apple comes from someone who has proven a reliable source of information in the past; the person delivering the information has no reason to lie; an apple was spotted on the table in the next room an hour ago, and so on. It might well be the case that as a result of such reasoning we might venture into the next room in the hopes of eating the apple. Hume’s point here is, once again, that the rational recognition that I am likely to receive a thrashing if I strike someone larger and more athletic than me is of itself no guarantee that I shall desist from the striking. Whether I desist from the striking or not is ultimately not a matter of reason; it is a matter of whether I am willing to listen to reason, which is not something that reason can of itself determine. The rational choice view, by contrast, holds that if a rational judgement is formed that striking out is likely to leave me worse off than alternative behaviors, I am guaranteed not to perform the behavior. This is precisely what Hume denies. For Hume, there is no such automatic link between rational judgement and behavioral output. Behavior ultimately turns, Hume thinks, on emotional inclination, which is by no means always in conformity with rational dictates. All told, Hume argues that reason can influence behavior in one of three ways. First, it can disclose behavioral possibilities to us that hitherto we did not realize existed. Second, it can reveal the operation of causal processes in the world and thereby indicate strategies that enable us to get what we desire. Third, it can inform us of the likely consequences of potential behaviors, and thereby determine our behavior if we are emotionally inclined to listen to it. The following quote from Hume is instructive:

114 ‘Tis not contrary to reason to prefer the destruction of the whole world to the scratching of my finger. ‘Tis not contrary to reason for me to chuse my total ruin, to prevent the least uneasiness of an Indian or person wholly unknown to me. ‘Tis as little contrary to reason to prefer even my own acknowledg’d lesser good to my greater, and have a more ardent affection for the former than the latter (1739/1985:463). Some readers may be comfortable with a construal of the above account which specifies that reason interacts with the emotions in the determination of behavior. Indeed, the above account indicates three ways reason can influence the outcome of behavior. Furthermore, it might be true that experience can shape emotions, so that emotions themselves become “more reasonable” the more behavior in accordance with reason proves rewarding. Hume would see no reason to disagree with this view. At bottom, however, the interesting behavioral points for Hume are that no matter how rational people are, there is always the possibility that they will behave irrationally, and that conformity with the dictates of reason is ultimately a matter of the emotions, even if a series of behaviors in accord with reason can contribute to the emotional inclination to obey reason in the future. These simple ideas lead to a theory of criminal propensity that might yield reasonably good empirical results.

TOWARDS A NEW THEORY OF CRIMINAL PROPENSITY

A theory of criminal propensity that comports with Hume’s views subscribes to the proposition that there is individual variation with respect to the degree to which persons conform their behavior to the dictates of reason, and this variation is emotional in character. While in view of the above discussion this should be reasonably straightforward, a bit of background on the “criminal propensity” construct is probably a good idea, so that readers are aware of exactly what the goal of the rest of the chapter is. To paraphrase Gottfredson and Hirschi (1990), criminal propensity can be understood as the differential tendency of individuals to commit criminal acts holding constant variables such as social location and relationship to sanction structures. The most important motivations behind formation of the criminal propensity construct are the empirical facts that: there is “a moderately strong correlation between past and future offending” (Nagin and Paternoster, 2000); a small percentage of offenders are responsible for a highly disproportionate amount of serious crime (e.g., Wolfgang, 1972; Moffit et al., 1989); nearly all serious repeat offenders exhibit antisocial tendencies at very early ages; and there is very little evidence for crime specialization (Wolfgang, 1972); (Gottfredson and Hirschi 1990). The nature of the criminal propensity construct is well specified in the above mentioned seminal article by Nagin and Paternoster (2000). They use the phrase “population heterogeneity” to describe a view which explains the autocorrelation of criminal behavior: This explanation [population heterogeneity] attributes the correlation [the autocorrelation of criminal behavior] to differences across persons in an initial propensity or proneness to commit crime that has various reverberations over time. That is, according to this interpretation there is heterogeneity within the population in a time-stable characteristic that affects the probability of anti-social

115 conduct early in life and at all subsequent points (Nagin and Paternoster, 2000:119). Those authors also offer the following “visual” depiction of criminal propensity: In the urn scheme illustrating population heterogeneity, individuals are initially assigned urns in which the proportion of red and blue balls vary across persons, but remains relatively constant over time. Since individuals sample with replacement from their own urn, and the initial proportion of red balls (antisocial behaviors and attributes) and blue balls (prosocial behaviors and attributes) in each person’s urn varies across the population, some people are more likely to pick a red ball (i.e., more likely to commit a crime) than others. Therefore, persons differ from one another in their initial proneness to commit a criminal offense, and this difference remains relatively stable over time (Nagin and Paternoster, 2000:120). Rowe et al. (1990) offer a precise mathematical formulation of the criminal propensity construct. They view criminal propensity as a latent trait and hypothesize that the trait is normally distributed in the population. The normally distributed latent trait is linked to an offense rate λ with a link function of the form λ=ea (θ-b), where θ is the normally distributed latent trait and “a” and “b” are constants defining the exponential curve. In order to account for the fact that offenses are not evenly distributed throughout an offense period, the offense rate λ can be viewed as part of a Poisson process thusly: P(n)= (λt)ne-λt / n!, where P(n) is the probability of n offense in a given time period. Although reasonably good conceptual and mathematical foundations for the criminal propensity construct have been produced, to date no viable substantive account of criminal propensity has made its way into the criminological literature. Gottfredson and Hirschi attempt such an account, but the last chapter shows why their project does not succeed. What is needed is an account of criminal propensity grounded in emotional determinism, not rational choice theory. Before proceeding to such an account, it is important to note that any theoretical account of criminal behavior, including all extant accounts in the criminological literature, must confront the fact that crimes are crimes because they have been denominated as such by the state. The task of the criminological theorist must therefore employ the following logic: suppose a state of nature where there are no laws. Nevertheless, it may well be the case that some people in the state of nature are more likely than others to pick up clubs and smash others over the head with them, even though “head-smashing” is neither legal nor illegal. Were such a state of affairs to obtain, it would make sense to look for explanations of head-smashing behavior even though such behavior has not been outlawed. Now suppose that coalitions against head- smashing form and a law is passed prohibiting “head-smashing”. It will now be the case that “head-smashers” are criminals. After enactment of the law, the incidence of head- smashing behavior might increase, decrease, or remain stable. It is possible that the enactment of the law will have an effect on head-smashing behavior. Its having an effect, however, says nothing about causal correlates of head-smashing behavior that obtain whether there is a law prohibiting the behavior or not, and it is these other correlates that criminologists are interested in investigating. Criminological theorists and researchers in the real world can proceed similarly. They can look for the correlates of behavior that varies from other behaviors on many dimensions other than the dimension of legality. Whether it is legal or not, violent behavior is presumably different than retiring behavior,

116 and if not, we have left the domain of social science. It will of course be important to keep in mind that the fact that behavior is illegal may well contribute to increases in its occurrence. In addition, it should be noted that criminal propensity theories are designed to be general in nature. Indeed, it was mentioned earlier that the reality that offenders tend not to specialize is in considerable part what motivated theories of criminal propensity in the first place. Having said this, it is important to be very clear on exactly what the criminal propensity position is. The criminal propensity position holds, with Gottfredson and Hirschi and Nagin and Paternoster, that there are time-stable and individually varying traits that make the commission of a wide variety of criminal offenses more likely. Thus, the criminal propensity construct builds in the idea that not all criminals score high on criminal propensity and not all people who score high on criminal propensity are criminals. The construct builds in the idea that medicare fraud might be committed by a doctor who scores low on criminal propensity. Opportunity, for example, matters as much, perhaps even more than, criminal propensity. Criminal propensity theorists say simply “find me a doctor who commits medicare fraud and one who does not and it is a safe bet, but by no means a certain win, that the former scores higher on criminal propensity than the latter”. Finally, it is important and useful to discuss the three theories of criminal propensity that are in circulation in contemporary criminology. Each of these theories can be improved upon in significant ways, and the theory of criminal propensity to be advanced shortly tries to implement such improvements. The first, Gottfredson and Hirschi’s (1990) low self-control theory, was criticized in Chapter 6. To briefly recount those criticisms here, Gottfredson and Hirschi’s theory is an attempt to synthesize a theory of rational choice with a theory of criminal propensity. They want to enjoy the benefits of positivism’s emphasis on individual differences without compromising what they mistakenly see as classical criminology’s emphasis on freedom and rational choice: …the idea of low self-control is compatible with the observation that criminal acts require no special capabilities, needs, or motivation; they are, in this sense, available to everyone. In contrast, the idea of criminality as a special tendency suggests that criminal acts require special people for their performance and enjoyment (Gottfredson and Hirschi, 1990:88) . The burden of criticism in Chapter 6 argues that one cannot have propensity without push. Some element of compulsion is necessary if propensity is to be accounted for, especially if propensity is construed in terms of impulsivity, which is what Gottfredson and Hirschi do. Put aside the objections to rational choice theory specified in Chapters 5 and 6, and outlined above, and suppose that Gottfredson and Hirschi are correct that impulsive decisions are those that are rational with respect to the short-term even though they are irrational with respect to the long-term. How can rational choice alone account for the selection of the short-term choice as opposed to alternatives that are rational with respect to the long-term? Wilson and Hernnstein’s (1985) theory of criminal propensity is similar to Gottfredson and Hirschi’s, although they make some effort to supply the necessary push. They argue as follows: In this chapter we wish only to establish the fact that individuals differ at birth in the degree to which they are at risk for criminality. The evidence of this is of two

117 sorts. First, certain human features that are indisputably biological-an individual’s anatomical configuration-are correlated with criminality. We do not argue that these anatomical features cause crime, only that they are correlated with criminal behavior. But the fact of their correlation indicates that there is some psychological trait, having a biological origin, that predisposes and individual to criminality (Wilson and Hernnstein, 1985:70). The “psychological trait” fastened upon by Wilson and Hernnstein is impulsivity (1985:49-56), which is what makes their theory similar to Gottfredson and Hirschi’s. Unlike Gottfredson and Hirschi, however, Wilson and Hernnstein purport to locate criminal propensity in the biology of the organism. The meaningfulness of this, however, is substantially compromised by their simultaneous unflinching reliance on conventional rational choice theory: At any given moment, a person can choose between committing a crime and not committing it (all these alternatives to crime we lump together as “noncrime”. The consequences of committing the crime consist of rewards (what psychologists call reinforcers) and punishments; the consequences of not committing the crime (i.e., engaging in noncrime) also entail gains and losses. The larger the ratio of the net rewards of crime to the net rewards of noncrime, the greater the tendency to commit the crime (1985:44). Consider also: Persons who commit “irresistible” crimes, especially ones that involve violence or passion, are sometimes thought by society to be in the grip of a strange compulsion or a deranged mind. What seems rational from the offender’s point of view appears irrational from society’s. Some people will urge that such an offender be excused or his penalty mitigated because they cannot imagine themselves acting in this way. But if crime is distinctive at all, it is only because the underlying drive for its reward is uncommon, or uncommonly intense. The crime is no more irresistible than cheating on one’s income tax; it could have been suppressed by a greater or more certain penalty (1985:56). Wilson and Hernnstein make an error opposite to that committed by Gottfredson and Hirschi. Wilson and Hernnstein acknowledge that propensity requires psychological/biological push, and then try to effect a synthesis with rational choice theory. Their allegiance to rational choice theory subjects them to each of the weaknesses of the rational choice position. An overarching message of the present chapter (indeed, of the dissertation as a whole) is that if one wants propensity, one had best steer clear of rational choice theory. Once again, this is not to say that there is no such thing as behaviors that satisfy the predicate “rational”. Rather, it is to say that there is individual variation with respect to whether or not the dictates of reason are obeyed, so that any behavior, whether impulsive or not, is ultimately produced by emotional inclination. Moffitt (1993) advances a third theory of criminal propensity that eschews rational choice parlance in favor of a characterization of criminal propensity in terms of neuropsychological deficits. Moffitt states: …the theory begins with a trait variation between individuals in neuropsychological health. The trait is truly underlying in that it seldom comes to anyone’s attention unless an infant is challenged by formal examinations; it is

118 manifested behaviorally as variability in infant temperament, developmental milestones, and cognitive abilities (1993:684). Slightly more specifically, Moffitt posits that the neuropsychological deficits of those predisposed to criminal behavior yield behavioral manifestations in the form of diminished “receptive listening and reading, problem solving, expressive speech and writing, and memory” (1993:680) as well as “inattention and impulsivity” (1993:680). From an etiological standpoint, Moffitt wisely acknowledges that neuropsychological deficits likely have environmental as well as heritable components (1993:680). A clue regarding why Moffitt’s theory is unsatisfactory from a theoretical standpoint emerges from reflection on the ultimate similarity between her theory and the Lombrosian point, made by Moffitt, that: Minor physical anomalies, which are thought to be observable markers for hidden anomalies in neural development, have been found at elevated rates among violent offenders and subjects with antisocial personality traits (1993:680). The question is how much better off we are, from a deep theoretical standpoint, when we move beyond physiognomic markers to what is supposedly causal bedrock in the form of neuropsychological markers. The explanatory power that is seemingly gained by identification of neuropsychological correlates of antisocial behavior is every bit as illusory as the explanatory power once associated with physiognomic differences. If we are told that criminal predisposition consists in neurotransmitter dysfunctionality, for example, are we really in a better position to understand associated behavior than we would be upon being told that criminals tend to have longer noses? Criminological theorists and researchers must do more than supply concrete correlates of criminal behavior and predisposition; the goal should be to understand criminal behavior and predisposition. It might be the case that achievement of genuine understanding in the area of human behavior necessitates reference to the rubric of decision making. Whether human behavior is determined or free, there does seem to be a meaningful and important sense in which much human behavior can be said to be the product of a “decision”, and as a consequence it seems that a good understanding of behavior requires understanding of the decision making process. The question to be directed at Moffitt’s theory is then “how does an account in terms of variation in neuropsychological deficits better enable us to explain the decision making processes of those predisposed to criminal behavior? It would seem that such accounts cannot provide such an explanation, since they are couched in terms too remote from decision making. The same point can be made from a somewhat different angle. A priori, there is no reason to believe that those with slightly lower intelligence, poorer reading skills, and shorter attention spans are also those who are predisposed to criminal behavior. The reason is that there is no intrinsic, logical connection between such behavioral manifestations and a predisposition antisocial behavior. If Moffitt is correct, then there is mounting empirical evidence that such phenomena are associated with criminal predisposition. Nevertheless, it is still legitimate to ask what such correlations really tell us about the nature of criminal propensity. Furthermore, it would be difficult for anyone to deny the claim that brain function and architecture have a significant impact on behavior and behavioral predisposition, and we should be surprised if the empirical

119 evidence said otherwise. The notion that criminal propensity has something to do with variation in brain function is consequently rather uninformative. In view of the above, the logical foundations of a good theory of criminal propensity are clear. Such a theory should build on the idea that individual variation in emotional constitution influences the degree to which persons conform their behavior to the dictates of reason. Incorporation of this idea provides coverage of the notion (quite prevalent in criminology, as we have seen) that criminal propensity consists in the tendency to irrationally discount future prospects. It would be very good if the theory of criminal propensity could simultaneously furnish plausible and testable hypotheses regarding the nature of a motivational propensity towards criminal behavior that is consistent with a decision making rubric and which affords the conceptual tools to go beyond the mere identification of concrete behavioral correlates of criminal propensity.

THE THEORY OF CRIMINAL PROPENSITY IN RELATION TO CLASSICAL AND POSITIVIST CRIMINOLOGIES

There can be no doubt that Freud is a watershed figure in the history of human thought, and it should be remembered that Freud’s psychoanalytic theorization is couched in terms of the way reason and emotions interact. Freud was interested in exploring the forces that prompt irrational behavior, and he understood the goal of psychoanalysis to be the subjugation of such forces by bringing them under the sway of reason. This dissertation argues that the relationship of reason to the emotions should be of interest to many criminologists, and that to date this relationship has been undertheorized. Toward the end of his career, Freud expressed doubts (1930) about the extent to which reason can prevail against irrational motivations. Freud’s beginning assumption is one that criminologists should take seriously, and it is one that the classical criminologists accepted. This assumption is the idea that it is by no means the case that behavior is invariably rational. What needs explanation, ultimately, is rational behavior. Historically, positivist criminologists saw that this is so, and classical criminologists did as well. In large part, then, this dissertation draws attention to the similarities between classical and positivist criminologies. The central misconception of classical criminology is that is assigns far too much power over conduct to the operation of reason, and the main message of the present work is that criminologists should consider beginning from a stance which supposes that rational behavior, or behavior that accords with one’s judgment regarding what it is in one’s self-interest to do, needs to be explained, not assumed. A virtue of Gottfredson and Hirschi’s low self-control theory is that it shines the spotlight on the relationship between classical and positivist criminologies in its effort to account for criminal propensity, which is supposedly a positivist concept, by situating it within a supposedly classical rational choice framework. Chapters 1,2,3, and 4 give reasons for thinking that the understanding of classical and positivist criminologies assumed by this attempt is wrong. The notion of “criminal propensity” is as compatible with the classical school as it is the positivist school. Both schools question the idea that propensity can be explained in rational choice terms. The classical and positivist schools question, in the words of Yaffe, whether it is true that “there can be no break at any particular time between what the agent judges to be best and what she is most motivated

120 to pursue” (2002:183). Hume, Beccaria, and Lombroso all believe that emotional forces are capable of overriding rational judgments regarding what it is in one’s self-interest to do; for those figures, there is no necessary correspondence between rational judgment and behavior. For Hume, Beccaria, and Lombroso impulsive behaviors are more akin to crimes of passion or addictions than they are to behaviors that follow dispassionate judgments regarding likely utility outcomes. If we accept the Gottfredson and Hirschi view, there is no sense in looking for substantial empirical causes of impulsive behavior, since such behavior simply manifests the exercise of rational judgment about short-term prospects. If we accept the Hume, Beccaria, and Lombroso view, there is sense in looking for substantial empirical causes of impulsive behavior, and the presumption is that such causes function by either overriding rational judgment or otherwise prompting one to disregard it. If criminologists accept that impulsive behavior is something other than the product of an inexplicable rational decision to prefer short-term to long-term prospects, they are free to consider the possibility that impulsive behavior is a manifestation of deeper forces that imply certain substantive characteristics and consequences. The theory of criminal propensity presented in the next section contains reasonable and testable hypotheses as to what such characteristics and consequences might be. Chapter 4 closes by expressing the idea that classical and positivist criminologies should be distinguished in terms of the power each tradition assigns to learning. As empiricists, classical criminologists would seem to be committed to the proposition that it is possible that motivational propensities toward crime can be extinguished by suitably tailored environmental interventions. Indeed, the positivist view, hailing from Lombroso and echoed, for example, in the idea that there really are such a things as irretrievable born criminals and ineradicable “irresistible impulses” is strangely similar to the view that people can always choose completely freely and rationally no matter the forces that are impinging on them. The positivist view that some people are fated to criminal behavior no matter what environmental interventions are undertaken is formally similar to the implausible rational choice view, since each view assumes that the individual can always muster enough force to counter and supersede the forces impinging on them. The main lesson of a synthesis of classical and positivist criminologies, then, is that a careful investigation of the nature of rationality and its relationship to learning is necessary. Those who align themselves with the classical criminologists should set themselves the task of investigating the ways learning strategies can be employed to enhance rational behavior, and those who align themselves with the positivist tradition should set themselves the task of investigating what forces, and in what ways those forces, detract from the goal of engendering rational behavior. The mandate of a theory of criminal propensity is similar. A theory of criminal propensity should acknowledge that forces are in play that tend to detract from rationality while leaving open the possibility that environmental interventions can enhance the prospect of rational behavior. The possibility of such a theory is not wholly alien to sociological thought. Katz, writing in part under the sociology of emotions heading, specifies reasons for considering more closely foreground emotional determinants of crime. Katz remarks: The study of crime has been preoccupied with a search for background forces, usually defects in the offenders’ psychological backgrounds or social

121 environments, to the neglect of the positive, often wonderful attractions within the lived experience of criminality (1988:3). In opposition to models of criminal behavior that emphasize determination by material processes, Katz offers a model that concentrates on individuals’ subjective awareness of themselves as “moral” beings that are continually constructed in ongoing processes of symbolic interaction that can implicate powerful emotions. The phrase “moral beings” indicates that Katz means to draw attention to the notion that the family of moral emotions such as humiliation, righteousness, arrogance, ridicule, cynicism, defilement, and vengeance (1988:9) often plays a foreground, causative role in the generation of criminal behavior, often at the expense of reason (1988:168; 235). In Katz’ words, with respect to criminal behavior the “attraction that proves to be most fundamentally compelling is that of overcoming a personal challenge to moral-not to material-existence” (1988:9). Thus, for Katz there is frequently a link between criminal behavior and the pursuit of noninstrumental and emotionally oriented ends, which is a considerable distance from rational choice emphases on utilitarian goals. Consequently, there would seem to be affinities between claims made by the classical criminologists with respect to the behavioral importance of emotional processes and lines of inquiry initiated in symbolic interactionist schools. Because the focus of the present work is on decisionmaking processes, however, the following theory of criminal propensity is grounded in a view that is more straightforwardly compatible with the kind of mainstream, decision- oriented constructs concentrated on throughout the work.

A PLEASURE PRINCIPLE/REALITY PRINCIPLE THEORY OF CRIMINAL PROPENSITY

Reasonable support for such a theory can be located in Freud. While Freud is hardly a welcome participant in contemporary criminology and is frequently accused of being unscientific, this counsels caution in applying his thought rather than summary dismissal of it. Accordingly, the following theory of criminal propensity makes no mention of the Oedipus complex, penis envy, or other such phenomena whose existence is controversial. Moreover, the scale accompanying the theory does not even presuppose the reality of unconscious thought processes. Indeed, the entire subject of sexuality is bypassed in the following theory. The goal is to construct a theory of criminal propensity and test it, not to practice psychoanalysis. A theory of criminal propensity can be developed from Freud’s simple but reasonable model of very basic mental operations that in one way or another have already been adopted in mainstream criminological circles, such as the “pleasure principle”, which appears in a slightly modified form in Gottfredson and Hirschi (1990) and has echoes in rational choice theory’s emphasis on costs and benefits. Freud’s model of elemental mental operations is compatible with emotional determinism and predicts a range of behaviors, including impulsive behaviors, that have attracted criminological interest. Freud proposes that two basic principles govern mental life-the “pleasure principle” and the “reality principle”. The pleasure principle, as the name suggests, “strive[s] toward gaining pleasure” and yields the result that “from any operation which might arouse unpleasantness (“pain”) mental activity draws back (repression)” (1911/1997:22). Freud’s simple idea is that the mental life of the infant exclusively

122 obeys the pleasure principle, even to the extent that satisfactions can be hallucinated during the absence of sources of satisfaction such as the maternal breast. Eventually, however, the absence of such satisfaction and associated pain means that: the mental apparatus ha[s] to decide to form a conception of the real circumstances in the outer world and to exert itself to alter them. A new principle of mental functioning was thus introduced; what was conceived of was no longer that which was pleasant, but that which was real, even if it should be unpleasant (1911/1997:22). Thus, the reality principle arrives on the scene. Under the influence of the reality principle, the mental apparatus tests reality, directs attention to and gathers information from the “real”, external world, records its experiences and learns to pass judgment and direct motor behavior in lieu of denying, or repressing, the reality of unpleasant phenomena. Thus, Freud remarks that with the inception of the reality principle: [a] new function was entrusted to motor discharge, which under the supremacy of the pleasure principle had served to unburden the mental apparatus of accretions of stimuli, and in carrying out this task had sent innervations into the interior of the body (mien, expressions of affect); it was now employed in the appropriate alteration of reality. It was converted into action (1911/1997:24).

Other signal behavioral functions of the reality principle include restraining behavior, thinking before acting, and, of particular interest to criminal propensity theorists, delaying gratification: …the substitution of the reality-principle for the pleasure-principle denotes no dethronement of the pleasure-principle, but only a safeguarding of it. A momentary pleasure, uncertain in its results, is given up, but only in order to gain in the new way and assured pleasure coming later (1911/1997:24). Indeed, Freud contends that thought itself originates as a mechanism designed to delay gratification: “thought was endowed with qualities which made it possible for the mental apparatus to support increased tension during a delay in the process of discharge” (1911/1997:24). It is not difficult to derive a set of empirically testable measures of criminal propensity from this small set of simple ideas, and a nominal level theoretical formulation of criminal propensity readily suggests itself. Criminal propensity consists in the emotional predisposition to disregard the demands of reality, which can vary for either or both of constitutional and environmental reasons. For example. Freud suggests that poor parenting as well as overprotective parenting can contribute to the relative inability to adapt to reality. Noncriminal manifestations of “disregarding the demands of reality” include an emotional perspective on the world that functionally denies that others have claims to resources (broadly construed) that might be as reasonable, perhaps even more reasonable, than one’s own; that other people have feelings, expect to be respected, and are capable of retaliating when they are not so treated; that work must often be performed before rewards can be had; that things are not always the way one wants them to be; that patience is often required; and so on. None of these manifestations of disregarding the demands of reality is directly measured in the items that follow.

123 In sum, if Freud’s view is correct, we can expect to find that criminals tend to shut out, or repress, unpleasant stimuli; that they tend to avoid initiating motor behaviors that have the purpose of altering reality in sophisticated ways that yield long-term reward; that they tend not to make fine discriminations in their judgments; that they indulge themselves more frequently in fantasy related activity; and that they tend not to like learning new things. Furthermore, if Freud’s theory that motor behavior initially (before it is brought under the sway of the reality principle) serves as a mechanism to express and discharge accreted stimuli is correct, we can expect to find that criminals tend to express affects to an unusual degree, which is of course related to the extroversion construct. It is worth noting that theorizing criminal propensity in terms of a conflict between the pleasure and reality principles has consequences for “discounting” conceptions of impulsive behavior. In Freud’s view, “the urge for immediate gratification, or the repulsion from inhibiting discharge, is a force which stands in opposition to rational or utility consideration, rather than a[n] element which enters into estimates of utility (Koriat and Nisan, 1977:204). If it is true that frustration figures into “decisions” as an emotional force and not as a cost of waiting, the notion that impulsive actors are behaving on the basis of discounted judgements regarding future costs and benefits is incorrect. A major goal of the following scale is to create items that do not on their face directly measure the kinds of behavior criminologists are seeking to explain but which will hopefully yield reasonable empirical results, including the prediction of impulsive behavior as well as criminal behavior. Each item can be measured on a standard four or five point Likert scale.

A CRIMINAL PROPENSITY SCALE THEORETICALLY GROUNDED IN HUME’S EMOTIONAL DETERMINISM AND FREUD’S PLEASURE PRINCIPLE/REALITY PRINCIPLE DYAD

1. I tend to spend too much time daydreaming. 2. It’s usually not too difficult for people to tell what I’m feeling. 3. If I could go on the vacation of my choice tomorrow, I’d prefer to go to a faraway place. 4. There are many things I enjoy even though I’m not good at them. 5. I procrastinate more often than I’d like. 6. Often, I find myself saying things I don’t really believe. 7. Things like ESP and moving objects with your mind happen more frequently than most people think. 8. When I talk to people in positions of authority, it seems like they’re speaking a different language. 9. If I’m going to watch TV, I’d rather watch a comedy than the news. 10. I’d say I have a more active imagination than other people. 11. If a task needs to get done, I prefer to wait in the hope that others will do it. 12. For me, things are usually either good or bad; there isn’t much in between. 13. I tend to make up my mind about people soon after I’ve met them. 14. I usually don’t have much difficulty making up my mind about what to do. 15. If I’m doing something difficult, I’m inclined to pray for help.

124 16. I enjoy learning new things.

Hopefully, these items manage to avoid directly tapping the kinds of behaviors that criminologists want to predict, thus enhancing explanatory prospects should the scale meet some degree of empirical success. Furthermore, because the scale derives its theoretical support from a theory of elementary mental operations, it is in principle able to predict irrational phenomena such as impulsivity, which, if successful, would yield the benefit that impulsivity could be viewed as symptomatic of deeper mental processes rather than a piece of theoretical bedrock and a mere concrete correlate of criminal behavior. Additionally, the theory undergirding the scale offers an assessment of the kinds of motivational variation that underlie criminal propensity, and it does so an economical way. For Freud, the same propensity that predicts irrational behavior also predicts diminished motivation to learn new things, increased expression of affect, blunderbuss judgement, and the failure to pursue long-term goals, all while leaving room for amelioration of such tendencies by appropriate environmental interventions. Finally, if the theoretical rationale underlying the scale has been lucidly stated, criminologists should have little difficulty in supplementing and/or modifying the scale in other ways.

125 CONCLUSION

Classical and positivist criminologies are different in ways hitherto undetected by criminologists. Classical criminology is philosophically rooted in British Empiricism, and as a consequence it rejects free will and subscribes to a view of rationality quite different from that usually ascribed to them. Classical criminologists hold that behavior does not always correspond with rational judgments regarding self-interest. They also hold that whether behavior does so correspond is ultimately a question of the emotional predisposition of actors, which can vary individually. Since positivist criminologists accept the idea of individually varying motivational differences and downplay the role of rationality with respect to behavior, there are striking similarities between the two traditions. As empiricists, however, classical criminologists are committed to the proposition that it is always in principle possible that environmental forces can overcome, and perhaps even eliminate, whatever emotional predisposition to criminal behavior might exist, which is what ultimately distinguishes them from positivists. Perpetuation of the ingrained, conventional view of classical criminology, which assigns to that tradition the belief that behavior is the product of a free and rational choice, has led to serious problems in contemporary criminological theory. The contemporary choice theory view, which is that behavior invariably accords with rational judgments as to where self-interest lies, cannot be correct. Evidence that actors are capable of acting irrationally with respect to future prospects shows this. If one can act irrationally with respect to prospects 6 months from now, there is no reason why one cannot do so with respect to prospects 6 milliseconds from now. Moreover, since there is no way to establish that it is either rational or irrational to obey the dictates of reason, obedience to the dictates of reason must occur only when there is an emotional inclination to do so. Finally, since in most instances any number of alternative behaviors will satisfy the predicate “rational”, the selection of any particular alternative must be determined by nonrational forces. The most frequently tested and empirically successful theory in contemporary criminology, Gottfredson and Hirschi’s 1990 low self-control theory, is flawed because of its reliance on rational choice propositions. If criminologists accept the empirical evidence that suggests criminals tend to be impulsive, some explanation of impulsive behavior other than one which relies on rational choice premises must be found. Such a theory can be derived from Freudian hypotheses regarding basic principles of mental functioning. Reasoning from Freudian premises suggests that to the extent that criminal propensity consists in the tendency to devalue future prospects, at bottom this is explained by a less than optimal orientation to reality, or, in other words, by a tendency to disregard the demands of reality in favor of discharging accreted stimuli in obedience to the pleasure principle. The tendency to immediately discharge stimuli and disregard the demands of reality suggests that in addition to exhibiting a host of impulsive behaviors criminals will also tend to: deny and/or repress the existence of painful stimuli; have difficulty making discriminating judgments; avoid learning new things; and indulge themselves in the life

126 of fantasy more frequently than others. This theory accommodates the metatheoretical position sponsored by Hume and Beccaria called “emotional determinism”, which specifies that while behavior in accordance with the dictates of reason is by no means impossible, its occurrence depends ultimately on the emotional constitution of actors. Finally, a scale is offered whereby the theory of criminal propensity can be tested.

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133

BIOGRAPHICAL SKETCH

Born: Salt Lake City, Utah 10/21/69

B.A. High Honors, University of Florida (1990) Major: Philosophy Phi Beta Kappa

J.D. Cornell Law School (1995)

Member, Florida Bar (1996-present)

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