Editor in Chief: Nikos Passas

VOL 63 Issue 1-2, 2015 ISSN 0925-4994

Table of Contents

Can’t control/won’t control: opportunities and deterrents for local urban corruption in Lanzarote...... 1

Beneath the organ trade: a critical analysis of the organ trafficking discourse...... 21

Explaining fraud deviancy attenuation in the United Kingdom...... 49

The classlessness state of criminology and why criminology without class is rather meaningless...... 65

Could it happen here? Moral panic, school shootings, and fear of crime among college students...... 91 Crime Law Soc Change (2015) 63:1–20 DOI 10.1007/s10611-014-9549-z

Can’t control/won’t control: opportunities and deterrents for local urban corruption in Lanzarote

Mónica García-Quesada & Fernando Jiménez & Manuel Villoria

Published online: 29 November 2014 # Springer Science+Business Media Dordrecht 2014

Abstract Lanzarote is the most eastern island of the Canary archipelago (Spain). An important touristic resort, it was a pioneer territory in the fight against land speculation and was distinguished as a UNESCO biosphere reserve in 1993. Despite this, recent police and court investigations have shown the existence of illegalities and corruption in the granting of building licenses in two of the most touristic municipalities, Yaiza and Teguise. The article examines the opportunities for urban corruption and the deterrents in place at the local level in Lanzarote between 1998 and 2006. It shows that corruption derived not only from an inadequate formal incentive structure, but also from the prevalence of certain expectations contrary to the common good and from the absence of “principled principals” willing to ensure that agents acting on their behalf did not engage in corruption.

Introduction

Between December 1995 and December 2007, over 6.5 million new housing units1 were built on Spanish soil. More than 600,000 building licenses were issued each year in 2003, in 2005 and in 2007, and over an extraordinary 865,000 in 2006. During this period, a significant share of Spain’s economic growth was based on the construction sector, fuelled by low interest rates, access to private debt and a new legislative framework that, from 1997, eased the requirements to make new land available for construction [1, 2]. This building boom in Spain has been considered to be closely linked to the spread of urban speculation and corruption at the local level [3–10].

1A housing unit refers to a house, an apartment, a room or group of rooms that is occupied (or if vacant, is intended for occupancy) as separate living quarters. M. García-Quesada (*) Free University of Brussels (ULB), Brussels, Belgium e-mail: [email protected]

F. Jiménez University of Murcia, Murcia, Spain

M. Villoria King Juan Carlos University Madrid, Madrid, Spain 2 M. García-Quesada et al.

Indeed, in November 2009, 750 cases of political corruption involving more than 800 politicians were being investigated mostly for crimes related to urban planning [11]. Over six hundred municipalities in Spain have experienced some kind of corruption scandal [8] with some regions being very much affected, such as Murcia and the Canary Islands, with respectively 60 and 40 % of their municipalities involved in corruption affairs. In the last 3 years, 19 mayors have been arrested for corruption crimes. This article examines the opportunities for urban corruption and the deterrents in place at the local level in Spain in order to unravel why the Spanish local level has been particularly vulnerable to malfeasance. It analyses the case of Lanzarote, the most eastern island in the archipelago of the Canaries. From 1998 to 2006, Lanzarote was immersed in a series of political scandals involving over a hundred people including local politicians, businessmen and civil servants. The cases concerned the issuing of illegal permits to build large touristic complexes in two of the municipalities of the island – Yaiza and Teguise. Corruption in Lanzarote is particularly puzzling because, contemporarily to the corruption cases, the island developed one of the most pioneering policies for the protection of the land and for the control of urban and land planning, for which it received international recognition. These measures, however, were unable to avoid widespread political corruption. Thus, Lanzarote serves as a hard case to examine the failings of the Spanish urban planning model to contain local corruption even in a place where social and political commitment for sustainable development, protected growth and integrity has been considerably stronger than in most Spanish coastal areas. To examine the causes of local urban corruption, the present article follows Mungiu- Pippidi [12] and Mungiu-Pippidi et al. [13] in their examination of the principal’s interest in controlling the agent. Unlike Robert Klitgaard’s well-known corruption equation, which focuses on the principal’s difficulties to monitor and discipline the agent [14], Mungiu-Pippidi’s work pays attention to different social contexts where the principals might not be interested in controlling the agent. Thus, corruption is seen here as a consequence of failing collective action that derives not only from an inadequate formal incentive structure, but also from the prevalence of certain expectations contrary to the common good. In particular, the Lanzarote case shows that, while citizens in Lanzarote have the instruments (however imperfect) to exert controls over the actions of the agents – local representatives -, these instruments are of little use if citizens do not commit to certain standards of ethical conduct and rule of law. Thus, it provides a clear example that corruption is the consequence not only of moral hazard and failing oversight, but also of the absence of a “principled principal” [15], that is, an actor interested in controlling that agents acting on his/her behalf do not engage in corruption. This, we argue, has been frequently overlooked in the literature on corruption, which has often assumed that principals are interested in avoiding and penalizing malfeasance by agents. To understand why corruption happens, we need to examine the attitudes of principals, which inform the use (or lack thereof) of formal sanctions and incentives. More generally, the analysis contributes to understanding the causes of corruption at atierofgovernment– the local level – that has been scarcely examined in studies on corruption (despite some good exceptions such as Andersson [16] and Erlingsson [17]). Given that the local level is the closest to the citizen, the performance of local representatives could be expected to be more responsive to regulatory demands as Can’t control/won’t control: opportunities and deterrents for local 3 the pressure to comply might be stronger. The case analyzed here shows, however, that this is not always the case as the opportunities to exert control over the activities of local politicians are shaped by local institutional mechanisms and social expectations, which may not be necessarily conducive to accountability. The article is divided into four main parts. The first part describes the main characteristics of the corruption cases identified in Lanzarote. The second section explains the methodology of the research, consisting in a detailed examination of a case where corruption has been present even when there have been important efforts to contain it. A third longer part of the article examines the Lanzarote case in light of the literature on political corruption by focusing on the opportunities and deterrents for corruption in the municipalities of the island during the period 1998 to 2006. Finally, to close the article, the conclusions bring together the findings and discuss the contribution of the Lanzarote case to the understanding of local urban corruption.

Corruption in Lanzarote

Lanzarote is situated in the most northeastern part of the Canary archipelago. It is a beautiful natural volcanic island of almost 850 square kilometers, tradi- tionally dependent on a modest local agriculture, a fishing sector and a fish canning industry, which mostly disappeared in the 1980s. Its mild temperatures have made Lanzarote an all-year-round destination for foreign residents and tourism, which began to develop during the 1970s. Since 1988, resident population has gone from over 65,000 to almost 142,000 inhabitants, and the average number of visitors to the island has increased in over 200 % to well over the present 52, 000 tourists [18]. Lanzarote belongs, along with other six principal islands of the archipelago, to the Autonomous Community of the Canary Islands, which is one of the 17 political regions in which Spain is divided. During the democratic period inaugurated after the death of Francisco Franco in 1975, Spain has developed from a highly centralized to a decentralized state where regional governments have competences, either exclusively or jointly with the central government, over most policy areas including territorial planning and development. Singularly in the case of Canaries, however, the Cabildos insulares (the directly elected council governments of each island of the archipelago) are responsible, for the development of the islands’ territorial plans and for defining the uses of the island land – whether urban, green, rural or touristic- since 1987 [19]. In this sense the Cabildo of Lanzarote contributes to organise the geographical imprinting of the island’seconomicactivity. In addition, the island of Lanzarote is divided administratively into seven municipalities: Arrecife, Haría, San Bartolomé, Teguise, Tías, Tinajo and Yaiza. The local authorities are in charge, amongst others, of providing all urban local services, such as waste collection, lightening, water services, as well as for the adoption of the Local urban development plan, which is drawn up at the initiative of the local authorities and regards all land under their jurisdiction [20]. The local urban plan serves to classify municipal land and to decide about the different types and uses of real estate (residential, industrial, office, recreational, or equipment). It is subjected to all supramunicipal, regional and national plans, principles and legislation. 4 M. García-Quesada et al.

Although the first corruption cases identified in Lanzarote date from the early 1990s and are associated to the very influential figure of local politician Dimas Martin, the most relevant cases in recent times have had to do with the granting of 37 building permits for the construction of big touristic complexes (hotels and apartments) for more than 13,000 tourist vacancies (20 % of the total that existed in Lanzarote in 2006) in the two most touristic municipalities of the island, Yaiza and Teguise. The cases developed between 1998 and 2006 and have involved over 50 people, including two former mayors, two Municipal Secretaries,2 civil servants and private businessmen, accused of participating in bribery and influence peddling. During this period, the town councils of Yaiza and Teguise were in breach of the legal obligation to notify about the urban activities happening in their municipal land to the Cabildo. The Cabildo identified that large building works were being constructed without its required consent. After several administrative exchanges, the con- frontation between the Cabildo and the local councils of Yaiza and Teguise continued in the courts, at instances of the Cabildo. The judicial investigations shed light into administrative illegalities committed by the town councils in the issuing of the building permits and also into the criminal (penal) activities related to the building of these large projects. The administrative cases have been resolved in court, which have corroborated that local authorities committed administrative illegalities. The sentences have exposed that local mayors frequently extended the validity of expired building permits that did not meet legal obligations; that they ignored the requirement to include legal and technical reports by the Municipal Secretary and the technical staff when issuing a license to build (Teguise), or its content was absolutely irregular (Yaiza); that they granted building permit certificates despite the fact that the only authorized person to do so was the Secretary, and even though they had been informed negatively by the technical office (Yaiza). The speed at which building permits were issued was astounding. Despite the complex nature of these administrative files, some of these applications were positively answered on the same day, including three projects to build three hotels of more than 600 beds each. In just 2 days, these town councils granted permits for the construction of buildings able to accommodate more than 2,200 people. The criminal investigation is still on-going, so the penal fate of all the accused of corruption has not been decided yet. Nonetheless, the 30 police and judicial investigations initiated to examine the cases provide substantive evidence to suspect that these administrative illegalities were frequently accompanied of criminal (penal) action. In 2006, the councilor responsible for territorial planning at the Cabildo, Carlos Espino,, of the Spanish Socialist Workers’ Party (PSOE) initiated a criminal case by accusing two mayors, two secretaries, the legal advisor, local civil servants and several developers of both Yaiza and Teguise of bribing, abuse of office, conspiracy, influence peddling and some other crimes. Amongst the accused was, for instance, the mayor of Yaiza, José Francisco Reyes, of the Canarian Nationalist Party (PNC) for having benefited from taking unlawful decisions in exchange of economic favors. It was unveiled that he held at least 1.2 millions of Euros in cash, whose origin he was not able to justify. According to the prosecutor “there is enough evidence that Reyes abused

2 The Secretary is a professional civil servant whose main responsibility is the control of legality in the local government. Can’t control/won’t control: opportunities and deterrents for local 5 his public office to obtain illegal payments (in cash and in-kind) directly related to the granting of the building permits” [21]. The relevance of the Lanzarote case is that these administrative illegalities and this (allegedly) criminal activity happened in an island with a stronger sensibility to sustainability and a more robust commitment for harmonious urban development than any other coastal area of mainland Spain. Indeed, in 1991, the Cabildo adopted the Territorial Island Plan [22], which sought to decrease the total number of new beds that could be supplied in the whole of Lanzarote in hotels, apartments and residential housing from 400,000 to 100,000. It also set the pace for the construction of future buildings in periods of 4 years, favoring the building of low-density, five-star hotels and residential tourism in selected zones, with the purpose of attracting visitors of higher disposable income and ensuring the highest economic profitability for the island’s economy with the lowest territorial impact. The commitment of the Cabildo to this model continued later, in 1998, with the review of the PIOT resulting in the so-called Moratorium [23], which aimed at limiting the total number of beds supplied in Lanzarote and, very importantly, also to define the rhythm of construction of residential and touristic accommodation for the following 10 years (until 2010). The new plan set a maximum of 10,000 new touristic beds and 17,000 residential beds, reducing considerably the maximum ceiling of 100,000 of the 1991 PIOT. In recognition of the work undertaken to safeguard the island’s ecosystem, the United Nations Educational, Scientific and Cultural Organization (UNESCO) awarded Lanzarote the status of Reserve of the Biosphere (RB) in 1993 [24]. It was the first time ever that this status was applied to an entire territory beyond a protected natural park. The PIOT and the Moratorium, however, contradicted the interests of many of the island’s urban developers, who risked, at best, having to delay the construction of their residential or touristic projects to a time defined by the Cabildo, and at worst, losing their permits to build altogether.

Methodology

To undertake the analysis of the reasons for corruption in Lanzarote, we have carried out an in-depth desktop analysis of national, regional and local regulations in effect in the island, complemented with an examination of official documents and reports from different administrations, the courts, the police, news clippings, and semi-structured, open-ended, face-to-face interviews to over 20 key actors (over 40 h) from Lanzarote and the Canary Islands, including leading local and regional politicians, civil servants, urban planners and experts, members of local associations and organizations, businessmen, etc. – the list of names is available at the end of the article. A survey on corruption perception has also been administered to a sample of 250 citizens of Lanzarote, with the purpose of analyzing indicators on trust, perceptions on the partiality or impartiality of political institutions, and some other attitudinal variables present in the island’sinhab- itants. 3 All these aspects together have permitted to examine opportunities and

3 The target population is the total number of adult population resident and entitled to vote in Lanzarote, regardless of their nationality or citizenship. On 30 November 2001, this population equals 82.350 people. Individuals of the sample have been chosen randomly, and considering strata of gender and age. The size of the sample guarantees an adequate representation of different electoral profiles according to gender, age group and political affinity. The survey was administered by telephone, following a structured questionnaire. 6 M. García-Quesada et al. deterrents for corruption in Lanzarote, which, as we see further below, aid explaining the reasons for corruption in the island beyond the focus on the economic incentives for engaging in corrupt practices. The use of a case study is particularly pertinent to gain a comprehensive understanding of corruption, as it allows examining its complexity and the social contexts in which it develops, which is necessary given the subterranean, hidden nature of this phenomenon. Lanzarote is particularly interesting because with a high incidence of corruption despite its pioneering role in establishing innovative policies to limit urban (touristic) growth, invites to examine institutional factors that have either favoured, or fail to contain malfeasance.

Understanding factors favoring corruption in Lanzarote

Why has corruption taken place in Lanzarote? An extended literature has attempted to answer “why” corruption occurs in different contexts, pointing at numerous and diverse sets of independent variables. Some studies have built relevant systematizations of factors [25–30], others have adopted cultural and anthropological approaches to the subject [31–33] as well as psychological and criminological explanations [34]and approaches that focus on elements of social and economic structure, such as inequality [35]. Also there are combinations of economic and cultural factors such as Protestantism and capitalism [36]. For the particularly ravaging Spanish local urban corruption, several scholars have provided in-depth accounts on the relationship between the construction boom and the spread of corruption particularly at the local level in Spain [5–7, 9, 10, 23, 37, 38, 39]. These analyses have essentially focused on understanding the political economy of corruption in Spain. Indeed, they have examined the behavior, the interests and the powers of actors involved in urban planning policy making, including politicians, landowners, financial institutions, land developers, and the large economic gains that could be accrued in engaging in corruption. Our previous work has contributed to complement these analyses with an examination of institutional and organizational factors, as we have considered necessary to look at the particular and specific mechanisms by which public office is abused for private gain [10, 40–44]. Indeed, our work has examined the effects of different institutional elements such as the discretionary powers of public authorities, the existing accountability mechanisms and the presence of strong informal institutions such as entrenched patronage networks and irregular sources of party and election campaigns funding to explain town planning corruption in Spain For this, Klitgaard’s leading principal-agent approach to explain corruption has been fundamental [45–47]. His equation on corruption indicates that corruption flourishes when there is a monopoly over discretion of who gets what and how much of it, and when there is a lack of accountability for the decision [14]. Klitgaard’s explanation relies on a principal-agent model, by which corruption acts result from information and interest asymmetries between an agent acting in his/her self-interest (political representative) and a principal unable to control the actual execution of the delegated task (citizens). This approach has invited us to consider the degree of discretion and monopolistic powers of decision-makers and to Can’t control/won’t control: opportunities and deterrents for local 7 examine the existing institutional mechanisms to monitor their activities, favour transparency and to produce checks and balances [15, 45]. However, Klitgaard’s equation implies that the principal is interested in controlling the agent, which may not always be the case. Instead, corruption can also be understood as the result of a collective action dilemma, by which the behavior of defecting actors in pursuit of their own individualistic gains generate corruption as an outcome, with higher costs for society as a whole. Indeed, some scholars have argued that potential rewards from engaging in corruption depend on the number of people expected to be involved in corrupt exchanges [15, 48]. Insomuch that a large enough number of actors are expected to engage in corruption, they will gain personally from the corrupt exchange and will face lesser chance of being caught and punished [49, 50]. Thus, this situation develops a structure of incentives leading to a collective action problem: if most others are expected to play foul, everyone will play foul, even if a different outcome would be preferable for them all [15]. Mungiu-Pippidi [12] has recently proposed an alternative approach to examine the causes of corruption that avoids assuming the existence of a principal interested in controlling agents’ behavior. She suggests that corruption is best understood as an equilibrium between opportunities (resources) for corruption and deterrents (constraints) imposed by the state and, significantly, also society [2013: 28–29]. The first factor in the equation (opportunities) is composed by two elements: a) the discretionary power opportunities, which refer to all kinds of arrangements that guarantee a privileged access to public power for some private interests: i.e. “collusive arrangements, purposely poor regulation encouraging administrative discretion, lack of transparency turning information into privileged capital for power-holders and their relations and so on”; and b) the material resources for corruption, such as state assets, concessions and discretionary budget spending, foreign aid, “and any other resources which can be used and abused, turned into spoils or generate rents”. Among the deterrents of corruption, Mungiu-Pippidi distinguishes two different constraints: a) legal deterrents administered by the state, such as “an autonomous, accountable and effective judiciary able to enforce legislation, as well as a body of effective and comprehensive laws covering conflict of interest and enforcing a clear public-private separation”; and b) normative deterrents, which include the existence of societal norms endorsing “public integrity and government impartiality, and permanently and effectively monitoring deviations from that norm through public opinion, media, civil society, and a critical electorate”. Thus, Mungiu-Pippidi’s model provides a method to identify the complex set of informal and formal institutional factors that explains corruption. We test Mungiu-Pippidi’s model by examining the opportunities and deterrents present in Lanzarote during the period when corruption developed and so, by doing this, its power to explain the reasons why corruption happens.

Opportunities for corruption in Lanzarote (Discretionary power and material resources)

To understand what opportunities existed for urban corruption in Lanzarote it is necessary, first, to examine the role and powers of the local authorities. Lanzarote has offered singular opportunities for corruption, derived from the large discretionary powers that local municipalities enjoy and the material resources they mobilize [37, 41, 51, 52, 53]. 8 M. García-Quesada et al.

Table. 1 Local authorities of Lanzarote

Municipality Resident Estimated Total Area Population population number tourists population (KM2) density

Arrecife 57357 837 58194 22.7 2563.6 Haría 5203 237 5440 106.6 51.0 San Bartolomé 18468 62 18530 40.9 453.1 Teguise 20788 11968 32756 264 124.1 Tías 20102 20932 41034 64.6 635.2 Tinajo 5728 1271 6999 135.3 51.7 Yaiza 14871 16357 31228 211.8 147.4 Lanzarote 142517 51663 194180 845.9 229.6

Source: Cabildo de Lanzarote, http://www.datosdelanzarote.com/itemDetalles.asp?idFamilia=6&idItem=5365 Population data from 2011.

As indicated above, the island is divided into 7 local municipalities - see Table 1. They hold powers over urban planning following the very peculiar Spanish model for town-planning, which has created strong incentives for urbanization [10, 40–43]. Under this model, town councils have a decisive say in establishing which land in their territory is fit or unfit for building and urban development through the elaboration of the municipal plans. Nonetheless, local landowners, and not local authorities, have frequently acted as the urban developers by financing operations planned on their properties. As a way to compensate for this huge investment by landowners and to facilitate that they get the necessary loans from banks, policymakers have placed strong legal guarantees for landowners to keep most of the capital gains [4]. Since the late 1970s until the legal reform of 2007, private urban developers paid a percentage of around 10 to 15 % of the capital gains obtained in each development plan to the town councils. Thus, this model has given large incentives for urban development, with both town councils and landowners being interested partners in the urbanization of the local land as it brings opportunities for large capital benefits for them both (Table 2). As well as deciding on the uses of local land, town councils, and particularly the mayor, hold powers for urban planning discipline under the Spanish legal framework. The mayor issues building permits (in accordance with the current plans and after receiving technical and legal advice from local officers, such as the Municipal Secretary and the technical office for urban planning), which a developer must obtain before

Table 2 Spread of corruption according to Lanzarote citizens

How widespread is corruption in…

Central Gov’tRegionalGov’t Cabildo Town Councils Courts Police

Very or quite widespread 47.5 62.3 64.6 80.2 49.0 29.7 Not at all or little widespread 39.2 28.2 27.9 17.9 44.4 63.6

Source: Our own telephone survey on corruption perceptions. Fieldwork commissioned to Instituto Perfiles, undertaken from 26 to 31 January 2012. Lanzarote’s sample: 250 interviews Can’t control/won’t control: opportunities and deterrents for local 9 starting building or urbanization work. It is also the mayor who issues sanctions against all illegal buildings and constructions. Thus, local authorities enjoy large competences for urban planning policies. Their power is, however, limited by supralocal governments. In particular, local authorities have to meet regulations and measures adopted by the regional government on territorial planning and environment [19, 54, 55, 56]. However, and despite its powers to intervene, the regional government of the Canary Islands did not act to control the local authorities’ activities when they failed to meet regional legislation, or even when, like the local authorities of Yaiza and Teguise, failed to adopt a local plan for urban planning altogether until 2013; as a result, they operated without a overarching planning instrument. Frequently, the regional government of Canarias maintained a secondary role and shown resistance to enforce supramunicipal land policy – very much like all other regional governments in Spain. Most commonly, it has exclusively provided a legalistic overview of the content of municipal plans. In fact, the regional government instead introduced incentives that worked against land speculation control. In 1999 the Canary regional authorities adopted a fiscal device known as Reserva para Inversiones en Canarias (RIC) (Investment Reserve of the Canaries) thanks to the advantages granted to its EU status of “ultra-peripheral territory”. According to this instrument, the companies based in the archipelago could save up to 95 % of their corporate income tax whenever they invested the corresponding quantity of money in new fixed assets. As the construction sector was extraordinarily profitable during the mid 1990s to the mid 2000s, most of this investment went into the touristic construction industry. So while the overflow of cash into the construction sector was huge everywhere in the Western countries – which explains a lot of the real estate bubble of countries such as the United States, Ireland, Iceland, etc. - this oversupply of cash was even larger in the Canaries thanks to the RIC. One of our interviewees summarized the effects of this fiscal device: “Many investments would have never been made without the RIC as they had been scarcely profitable. The RIC has distorted the land, the real-estate and the touristic markets” (Interview 12). Most people interviewed in the context of our research share this view. Also, the regional government directed the management of EU structural funds towards urban construction in Yaiza and Teguise, even against island’sregulations. Indeed, the regional ministry of tourism helped the developers of at least eight large hotels to get 23.6 million Euros from EU funds to promote employment for the construction of those hotels, which were later on declared illegal in court for not meeting legal requirements [57, 58]. An interviewee went further to suggest that the regional government not only did nothing to challenge the town councils’ illegal authorization to build hotels, but instead it backed the hotel developers, as these businessmen had large influence over the political party in government at the regional level [59]. For its part, the Cabildo of Lanzarote has also had, de facto, a reduced role in limiting the discretionary powers of local authorities. On the one hand, it adopted the PIOT 1991 and the Moratorium, which aimed to reduce the discretion that local authorities could employ when deciding on urban planning in their municipal soil: to have their municipal land plans approved, local authorities needed to receive a prelim- inary report from the Cabildo on the adequacy of their local plans to the plan for the island. However, the Cabildo could do little to ensure the enforcement of these Plans. 10 M. García-Quesada et al.

The Office of the Plan, created by the Cabildo administration purposely to direct their implementation, was not designed for surveillance over the town councils but rather to give guidance to the municipal urban-planning officers [60]. The Cabildo “hadnopowersto enforce the PIOT directly” [61, 62]. Its only tool to ensure the enforcement of the plans was to bring the cases before the courts [61]. But even this tool was not as easy to use. The defense of the content of the island plans before the courts became highly dependent on the stability and continuity of the governing political coalition: to initiate judicial actions against local authorities, it was necessary to have full support of all political parties governing the Cabildo. However, the Cabildo has been politically very unstable, particu- larlyafteritstartedamoredecidedstrategytodefendisland’s Plans: in the 2003–2007 legislature seven different presidents headed the Cabildo, which created important difficulties to organize the judicial defense of the content of the PIOT 1991 and the Moratorium. Thus, even though local authorities in Lanzarote have had less discretionary powers in matters of urban development than other Spanish municipalities local authorities in mainland Spain, they have effectively acted as self-regulatory entities. Local governments have been the key administrators of the most important economic engine of the island: urban development and tourism. Local authorities have operated the “tourist monoculture” [63] of Lanzarote, where up to 90 % of its GDP originates from tourism. Certain key figures show the dimensions and the role of tourism for the economy of Lanzarote. From 1980 to 1987, the affluence of visitors increased in 359 % (Fig. 1), while the registered population of Lanzarote grew in 129 % from 1981 to 1988 (Fig. 2). The number of touristic beds increased in 1425 % between 1980 and 1987 (Fig. 3). Local authorities – particularly those with greater stakes in tourist development such as Yaiza and Teguise –have benefited critically from urban development plans. Figure 4 shows how the municipal budgets of the two main touristic municipalities of the island had increased from 1986 to 1989; the municipalities multiplied their income by 746 % and by 824 % respectively, greatly as a result of the building of new properties and the affluence of tourists. In this sense, during the period where the corruption cases occurred – from 1998 to 2006 -, investment in construction and urban development in Lanzarote offered large opportunities for profit, a circumstance intensified by the fact that, unlike the Spanish mainland or the Balearic Islands coastal areas, tourism in the Canaries is not seasonal but continuous along the entire year [64]. This makes investments in the touristic infrastructure building sector even much more profitable than in other locations.

Deterrents of corruption in Lanzarote: legal and societal constraints

As well as the opportunities for corruption, the Mungiu-Pippidi’s model stresses the role of the deterrents in explaining the occurrence of corruption. Deterrents refer to the

Fig. 1 Total number of visitors per year from 1967 to 2011. Source: ISTAC (Canary Institute for Statistics), González Morales and Hernández Luis (2004), Memoria digital de Lanzarote (www.memoriadelanzarote.com) Can’t control/won’t control: opportunities and deterrents for local 11

Fig. 2 Registered population in Lanzarote (1970–2011). Source: ISTAC

existing measures to monitor and discipline corruption, which, if inefficient, can explain the occurrence of corrupt practices at the local level. Unlike other approaches, here we consider both legal and societal deterrents: the analysis of the formal legal environment needs to be complemented with an examination of the functioning of the societal or normative deterrents, that is, the existence of societal norms endorsing public integrity and government impartiality and of monitoring practices searching for deviations from those norms. Doing so can explain more fully why, within a stricter institutional environment than in mainland Spain, corruption in Lanzarote has been pervasive. Concerning the legal deterrents, here we consider exclusively the penal and disciplinary system to combat corruption in Spain - and not to exert an influence or issue recommendations or advice. In the case of Lanzarote, this includes the courts and the regional government. In Lanzarote, the legal deterrents have worked ineffectively. This has meant that, in practice, when local authorities have failed to comply with the requirements of the PIOT and the Moratorium, hardly any disciplinary measure has been initiated. The extreme slowness and inefficacy of both criminal and administrative Spanish courts have posed further problems for a sound urban planning [39, 65]. Regarding the case of the illegal building permits in Yaiza and Teguise, it took almost 5 years for the courts to oblige the mayors to send the permits to the Cabildo, and another 5 years to nullify the permits. The first sentence arrived in 2005 and the last one in 2011. But even though all the permits that the Cabildo brought to the administrative courts were nullified, many of them continue to fulfill functions as touristic residences and hotels, for which they have no official authorization. No illegal building has been demolished or modified as a result of a court sentence [66]. Indeed, despite the judicial sentences, what is to happen to the 37 illegal constructions is still unclear (at September 2014); while the judicial sentence indicates that the buildings need to be demolished, the authority in charge of demolition – the Cabildo – has been showing some resistance to do it in light of the technical difficulties and the costs of such operation.

Fig. 3 Number of tourist accommodations (1988–2010). Source: Cabildo of Lanzarote Data Centre 12 M. García-Quesada et al.

Fig. 4 Budgets of touristic municipalities. Source: Ministerio de Hacienda y Administraciones Públicas y Cabildo de Lanzarote

The criminal courts have also taken long time to resolve the accusations of bribery and influence peddling. The charges presented by the then councilor for territorial planning at the Cabildo referred to circumstances that had taken place up to 8 years before. The investigative judge started then an investigation that, 7 years later, is still in process. For some, “as these businessmen and their legal advisers were well aware of the extreme slowness of Spanish courts system, they didn’t even bother to conceal the irregularities they committed to have the hotels and apartments built. Their actions have not been at all sophisticated but rather crude” [67]. A report (12 March 2012) from the prosecutor to the judge evidences the efficacy problems of judicial control. In that report the prosecutor asks the judge to lift the charges for bribing on the developers that allegedly benefited from the mayor’s illegal decisions. This has been the case even though, as the prosecutor himself says in his report, there is clear evidence on the illegal enrichment of the mayor of Yaiza via the granting of illegal permits. However, as the mayor had changed his mind after a first declaration where he recognized to have received bribes from the benefited developers and as nobody else has given any evidence on the sources of payments, the prosecutor asked the judge to lift the charges against the developers because he had not been able to collect the necessary evidence to present the case before a court.4 The regional government has been similarly ineffective to administer deterrents to fight against land abuse and corruption. On the one hand, it adopted clear legislation for safeguarding the environment. The 1999 regional law on territorial planning created an Agency for the protection of the urban and rural environment (APMUN) with the purposes of making environmental protection a more a technical matter and less dependent on the political-partisan relationship between the regional government and the town councils. Regional powers to act are strong; it is entitled by law to substitute the town councils in case of serious and very serious offences and whenever the municipalities do not act to pursue these rules breaches. However, the regional government did not truly act to safeguard environmental regulation and policy, and it did nothing to ensure the application of neither the PIOT nor the Moratorium. As the deputy regional minister for territorial planning told us, “regional governments never

4 Report 12 March 2012 from the prosecutor office of Las Palmas to the investigative judge in Court number 2 of Arrecife. A summary of the content of this document can be found in [21]. Can’t control/won’t control: opportunities and deterrents for local 13 go against town councils” adding that “there is no known case where a regional government takes direct action to ensure the enforcement of local urban plans when the town council does not do it itself” [68]. Indeed, in the cases of the unlawful building permits of Yaiza and Teguise, the APMUN did not open a single file ever, despite the gravity and dimensions of the illegalities. One interviewee summarized the main problems of this regional agency: The efficacy of the APMUN is quite doubtful. Even the High Court of Justice of the Canaries has harshly indicated that the regional government is failing ‘in a rebel and obstinate way’ to fulfill the sentences ordering the demolitions of the illegal buildings. Disciplinary action in urban planning is scarce as a consequence of political inefficacy (…). The people who work in the APMUN are highly demoralized. A lot of people work hard in files that finally are completely useless or, at best, result in a minor fine [69]. As for societal deterrents, Mungiu-Pippidi indicates that the existence of societal norms endorsing public integrity and government impartiality is a key factor to deter corrupt practices. According to this view, the dimensions and the persistence of corruption in Lanzarote cannot be explained without referring to the acquiescence of the local population. Along similar lines, Bo Rothstein and his collaborators at the Quality of Government Institute have argued that when people mistrust government institutions, perceive that they operate with prejudices and believe that all political parties are the same, they are more likely to opt for individual solutions to their problems (clientelism) instead of coordinate their action to try to resolve collective problems. [15, 46, 70]. In this regard, it is worth pointing out that Lanzarote has been one of the very few exceptional coastal areas in Spain where a majoritarian public sentiment arose against policies that supported accelerated land use and threatened the fragile environmental equilibrium of the island (other case is Menorca in the Balearic Islands). Indeed, while in 1986 only 6 % of the people in Lanzarote agreed on restraining the growth of touristic construction– a similar percentage to that of many other parts of Spain - in 1999 the percentage rose to 65.4 % [71]. In 2002 a mass demonstration under the banner “Stop now” the touristic growth was followed by 10,000 people and backed by 77.2 % of the population of Lanzarote [71]. The charismatic leadership of local artist César Manrique collaborated in creating this public opinion. Although he had been in favor of tourist developments in Lanzarote during 1970s, he grew increasingly concerned about the harmful effects of the accelerated growth of tourism for the island fragile equilibrium during the 1980s and 1990s. He published some resonant manifestos, such as “Lanzarote se está muriendo” (1986) (Lanzarote is dying) which were widely echoed by news media and had an important impact on public opinion; he supported a newly-born ecologist association called El Guincho, which was very active in denouncing threats to the island’s natural environment. Significantly, he convened meetings with the seven mayors, the president of the Cabildo and the central government representative under the slogan “Salvar Lanzarote” (Save Lanzarote) to discuss about the future of the island and the dangers of the marked increase of tourist developments. After his death, the Foundation carrying his name has taken a strong stand in the defense of sustainable development in the island. Thus, unlike other parts of Spain, Lanzarote enjoyed the presence of a socially respected leadership that supported and encouraged the sustainable use of common pool 14 M. García-Quesada et al. resources – a element, that according to some authors, facilitates coordinated action for the protection of the environment [72–75]. More recently, citizens of Lanzarote have been concerned about the existence of corruption practices associated to urban development in the island. Our 2012 survey shows that Lanzarote residents believe that corruption has been very or quite widespread in the island, and have pointed at the town councils as the hotspots for malfeasance. However, this sensitivity towards the environment and land protection was not reflected in the electoral results. Political parties that presented programs for the protection of the environment and to ensure greater local political integrity at the municipal level did not get higher support. Indeed, many of the parties accused of corruption, responsible for the fiercest policies of urban development, received the backing of the electorate. Table 3 shows how the mayors of touristic municipalities, where corruption cases and more exploitative urban practices have taken place, have enjoyed a more solid electoral support than non-touristic ones or the Cabildo, particularly up to 2007 – from then on, the values between the two types of municipalities become similar. The elections have not penalized corrupt parties and have not disciplined politicians supporting a more predatory urban development model. In this sense, the possibility of imposing electoral discipline has not served to hold accountable those responsible for local urban corruption. Thus, citizens of Lanzarote supported seemingly contradictory positions simultaneously: an agreement to set limits to tourism as a model for the island, but a support for the parties that generated short-term economic activity for the island via urban development, even at the expense of corruption. One of our interviewees referred explicitly to the apparent contradiction of, on the one hand, supporting a restrictive regulation of touristic growth and, on the other, voting for political parties that allowed massive developments: “Citizens of Lanzarote have supported the restrictions on tourist growth but they have lived this with schizo- phrenia: they agreed on setting limits to tourism as a public position but when their own personal interests were concerned this position became weaker” [62]. This interviewee pointed at the clientelistic relationship that public representatives built with potential voters, which took two forms. First, the touristic town councils employed public funds to provide public jobs. “The political leaders more able to build clientelistic networks have been those with greater capacity to give public sector jobs to their supporters” [62]. Secondly, public representatives have exchanged public resources for political

Table 3 Electoral support for the most-voted party in touristic vs. non-touristic municipalities and the Cabildo (1987–2011)

1987 1991 1995 1999 2003 2007 2011 Average

Touristic municipalities 70,57 57,73 51,73 64,07 49,87 36,07 37,43 52.5 % (Teguise, Tias, Yaiza) Non touristic municipalities and Cabildo 50,54 52,74 37,18 30,62 40,08 38,46 37,3 41 % (Arrecife, Haria, San Bartolome, Tinajo, Cabildo)

Source: Percentage of total valid vote of the most voted party. Data base of electoral results of the Ministry for the Interior Can’t control/won’t control: opportunities and deterrents for local 15 support by easing the restrictions on urban planning and giving a privileged treatment to voters. For instance, in 1997 the regional government decided to grant an amnesty to thousands of owners of illegal housing units built on rural land in the seven Canary Islands. Lanzarote was the island with the greatest number of cases - more than 700 [71]. As one interviewee told us, “the non-enforcement of the PIOT provides votes” [62]. Thus, the Lanzarote case works as an example of elite cartel corruption type where “networks of elites use corrupt incentives and exchanges to shore up their positions” [76]. In agreement with Rothstein, the case of Lanzarote provides support to the thesis that, in a context of deep mistrust in the functioning of political institutions and in the intentions of political representatives, citizens are less likely to overcome the collective action dilemmas. Indeed, Table 4 evidences a deep mistrust on political institutions and agents in Lanzarote. It shows that general trust – that is, the disposition to trust strangers - is low, and it is particularly so when referring to the activities carried out by town councils versus any other national, regional or island institution. The expectations on whether a civil servant will solve a conflict of interest without damaging the public good are extremely low. Moreover, the belief that political institutions (and particularly town councils) treat citizens unequally was very high. Finally, the belief in the importance of having the right connections as the key factor to become rich is shared by almost 40 per cent of the population of Lanzarote. In this sense, even if certain progress has been identified, particularly in comparison with other areas of the Spanish coast, a firm expectation on the partial working of political institutions led most citizens in Lanzarote to choose their individual, short-term preferences over the collective good of protecting the island land from urban speculation.

Conclusion

With over 750 investigations on local authorities’ urban activities and several local politicians and mayors accused of bribing and influence peddling, local urban corruption has been pervasive in the Spanish touristic municipalities during the decade from 1997 to 2007. This article set out to examine the reasons for the prevalence of corruption by taking Lanzarote as a particular case to examine the impact of various elements. Overall, the article has presented evidence of the complex set of reasons that explain the occurrence of corruption at the local level. It has argued that it is necessary to develop a holistic examination of the structural, formal and informal institutional factors that have favored its spread, beyond the role of regulatory deterrents. Mungiu- Pippidi’s corruption equation has proved to be a useful device to identify the key factors in play. The case illustrates how corruption was present despite a significant social resistance and a more restrictive legal framework than in mainland Spain. The combination of a failing formal institutional framework for the containment of corruption, plus a environment of clientelism and general mistrust, limited the opportunities to discipline those committing illegalities - in fact the article has shown that they frequently received political and social backing. Focusing on the opportunities for corruption has illustrated the failings of the Spanish local urban planning model to ensure integrity in local policy-making, even when special measures to contain urban development and to address local urban corruption 16 M. García-Quesada et al.

Table 4 The culture of mistrust in Lanzarote

Generally speaking, would you say that most people can be trusted, or that you can’t be too careful in dealing with people?

Most people can be trusted 27.9 You can’t be too careful in dealing with people 68.7 DK/NA 3.4 Level of trust in different institutions from 0 (no trust) to 10 (maximum trust) Average St. deviation Central Government 4.8 2.5 Regional Government 4.7 2.5 Cabildo 4.7 2.5 Town councils 4.4 2.6 Justice administration 4.5 2.6 Police 6.4 2.1 How should a civil servant behave when he/she deals with a close relative or friend and what do you expect he/she will actually do? Should do Expected to do To help this person beyond any other regard 4.6 38.9 To help this person trying not to harm the general interest 12.2 21.5 To undertake this case but behaving impartially 43.3 12.7 To abstain from this case 31.5 7.1 DK/NA 8.4 19.9 How do you agree with the following sentences? Agree Disagree Courts prosecute and sanction guilty people irrespectively of who they are 36.5 59.9 The internal revenue system treats clearly better well-off people 83.6 12.1 Some people in this island receive a preferential treatment by town 79.7 12.2 councils and the Cabildo Corruption is not penalized in this island 60.8 32.5 What is the most important thing to become rich in Spain? To have good connections and nurture them 39.1 To have good ideas and to try hard to implement them 34.6 To be lucky 22.3

Source: Our own telephone survey on corruption perceptions. Fieldwork commissioned to Instituto Perfiles, undertaken from 26 to 31 January. 2012. Lanzarote’s sample: 250 interviews are in place. The Lanzarote case shows to what extent local authorities have had large and fairly unaccountable powers and how strong the incentives for intense urban construction have been. This has been the case in a place where there was a serious social resistance to massive urban sprawls. Indeed, the artist César Manrique played a role as catalyst of the interests of much of the population of Lanzarote to protect their land. Manrique’s successful efforts to develop an strategy for tourist containment was facilitated by the presence of a receptive society, which aimed at reducing the negative effects of the over-exploitation of the land of the island’s resources. However, Lanzarote Can’t control/won’t control: opportunities and deterrents for local 17 shows that, whereas a determined leadership may contribute to the adoption of policies favoring collective action and the protection of common resources, a deficient (formal and informal) institutional framework may effectively water down these efforts if confronted to strong enough economic incentives. Only with the moral leadership of Manrique were the citizens of Lanzarote capable of overcoming the collective action dilemma – materialized in the adoption of land protection and environmental regulation for the island - and even then this was only a partial success. As for the deterrents mechanisms, the analysis has given evidence of the limited regulatory and electoral sanctions that existed to contain illegal practices in Spain. Although judicial measures were taken, they were insufficient to discipline and disin- centive administrative illegalities: the extreme slowness of the judicial proceedings and the highly frequent lack of execution of judicial decisions made court sentences a deeply ineffective deterrence mechanism. In addition, the lack of commitment of the regional governments to oversee the town councils posed problems for a sound urban planning in several cases [40]. Also, political parties and candidates involved in corruption practices have been scarcely disciplined by voters. Just as regulatory sanctions, political and electoral discipline did not work as a mechanism to punish illegal practices by the local representatives, who saw their actions greatly unchallenged, or even rewarded, by the vast majority of the electorate. In this context, the principle of “every man for himself” was prevalent, and thus citizens sought to develop the appropriate contacts in a context of mistrust and prejudice. The confluence of these factors during the “prodigious decade of Spanish town- planning” [77] provides explanations to the existence of corruption in areas where the demand for housing has been high, such as coastal areas and the outskirts of densely populated urban areas. Analyzing both opportunities and deterrents has provided the chance to take into account the preferences of actors involved and affected by corruption exchanges and also their behavior in the institutional environment where they operate. This has aided to uncover double standards and contradictions between what people tell and how they act, which is fundamental in understanding why corruption spreads. In particular, it has helped to overcome the common assumption that citizens are interested in reducing the degree of corruption, which has been a common feature in the analysis of corruption from a principal/agent perspective [14, 45–47]. Overall, analyzing these elements has shown the difficulties of ensuring lawful government action when, as in the decade from 1997 to 2007, there were large interests determined to subvert the rule of law. Since 2008, building activity has virtually collapsed due to the economic crisis. Current attempts to energize the sector have sought to remove barriers to construction – such as with Coastal Law 2013, which has sought to weaken the protection of the sea shore in favour of economic activities [78]– and so strong doubts remain as to what extent the existing institutional framework will be conducive to integrity at the local level, should the economic context improve. Policy measures destined to fight against corruption will need to be aware of the structural characteristics, and the beliefs and attitudes of the actors in the local political system so to develop anti-corruption strategies capable of bringing more effective results. 18 M. García-Quesada et al.

Acknowledgments This research has been made possible thanks to two grants from the Spanish Ministry of Science and Innovation awarded to the research projects CSO2008-03663/CPOL and CSO2012-32661. An earlier version of this text was presented at the XXII IPSA World Congress of Political Science, Research Committee on Political Finance and Political Corruption, Madrid. We are thankful to the participants and the two anonymous reviewers for their helpful and constructive feedback.

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Beneath the organ trade: a critical analysis of the organ trafficking discourse

Seán Columb

Published online: 4 December 2014 # Springer Science+Business Media Dordrecht 2014

Abstract This paper critically examines how the organ trade fits into the human trafficking discourse. The organ trade involves diverse actors and consists of various practices, i.e. organ trafficking, transplant tourism, organ sales and organ harvesting. Nevertheless the organ trade is predominantly defined in terms of organ trafficking. Although organ trafficking is a major concern it is not representative of the phenomenon as a whole. Evidence based research indicates that the organ trade is better characterised by organ sales and transplant tourism. This paper argues that co-opting the organ trade into the ‘meta- narrative’ of human trafficking resists a wider critique of the phenomenon linking the emergence of a global market in organs to broader socioeconomic conditions. Further it is argued that the organ trade is not a direct consequence of the global shortage of organ supplies, but is rather linked to the transfer of transplant capabilities to the global South. The rhetorical positioning of the organ trade as an object of crime control diverts critical attention away from the transplant industry and frames the phenomenon within a narrow criminal paradigm. Formulaic criminal responses follow which overlook important intersections of agency, identity, culture and politics.

Introduction

In the past few decades organ trafficking has emerged from the easy horror of science- fiction to the unsettling reports of the international community ([35, 110]: para 138). Since the 1980s rumours began to surface about various cases of organ theft in the popular press. Numerous speculative accounts of treacherous prostitutes drugging unsuspecting clients, who later wake up in a bath tub only to discover they are missing a kidney, were circulated via the world’smedia[49]. Accusations of child abductions by eye thieves followed, claiming that eyes had been forcibly removed from children for sale to private eye banks [16]. However, it was the ‘baby parts’ rumour that

S. Columb (*) School of Law and Social Justice, University of Liverpool, Eleanor Rathbone Building, Bedford Street South, L69 7ZA Liverpool, UK e-mail: [email protected] 22 S. Columb circulated widely in Latin America, that first prompted political attention at the international level.1 In a report submitted to the United Nations Working Group on Slavery by the International Association of Democratic Lawyers it was alleged that children were being kidnapped from orphanages in Guatemala and trafficked to the United States, to serve as spare body parts for affluent recipients ([111]: 9). The report was vigorously denied by the United States Information Agency which claimed that such rumours had no basis in reality [70]. Further investigation into these allegations could not find reliable information to substantiate the claims [98]. Social scientists, like Veronique Campion-Vincent and Alan Dundes corroborated this scepticism about the organ trade, arguing that the organ theft story is a contemporary reinvention of ancient body-stealing narratives, which include tales of liver eating Pishtaco monsters in the Andes, and accusations of Jews drinking blood from Christian babies [16, 43]. However, as recent cases in South Africa [108] 2 andKosovo[78] 3 have demonstrated, the organ stealing motif is much more than a gothic subtext to film and fiction; it is part of a complex and multifaceted phenomenon presenting a unique challenge to law, policy, ethics and medicine. The organ trade involves diverse practices: organ trafficking (trafficking in persons for the removal of organs), 4 organ sales (the commercial exchange of an organ(s)), organ harvesting (the forcible removal of an organ(s)), and transplant tourism (travelling across state borders to purchase an organ(s)). 5 Nevertheless, the organ trade is predominantly defined in terms of organ "trafficking". Although there can be some overlap between the different aspects of organ trading (i.e. when travel for transplantation involves an organ harvested from a trafficked person) the emerging discourse on the organ trade applies the term organ trafficking interchangeably without distinction as to the variable aspects involved. Hence, the phenomenon as a whole is represented as an issue of organised crime and human trafficking ([95]). Legislative responses reflect this interpretative bias: (1) concentrating efforts on increasing the donor pool by "legitimate" means to offset the demand for illegally sourced organs and (2) applying formulaic criminal prohibitions against organ sales. Yet, this response only addresses part of a much broader issue grounded in economic inequity, manifest in the uneven development of ‘transplant capabilities’ in the global south. Despite concerns over organ trafficking, the majority of writing on the organ trade is subsumed by a bio-ethical debate contesting the pros and cons of a regulated market

1 This rumour has recently resurfaced. See ([21], August 6). Guatemala Children Stolen for Illegal Adoption, Organ Trafficking. Retrieved from Insight Crime, Organised Crime in the America’s: http://www.insightcrime. org/news-briefs/guatemala-reports-22-cases-of-stolen-children-in-2013 Accessed 10 August 2013. 2 In this case St Augustine’s hospital in Durban, South Africa, was found guilty of 102 counts related to numerous offences, owing to the fact that it had allowed its ‘employees and facilities to be used to conduct … illegal kidney transplant operations’. 3 In the Medicus Clinic Case, five individuals were found guilty of organising and conducting illegal kidney transplants at the Medicus clinic in Pristina, Kosovo. See, Ruling Confirming the Indictment. 4 Trafficking in persons for the removal of organs is defined under Article 3 (a) of the Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (2000). 5 According to the Declaration of Istanbul (2008: 1228) “travel for transplantation becomes transplant tourism if it involves organ trafficking and/or transplant commercialism or if the resources (organs, professionals, and transplant centers) devoted to providing transplants to patients from outside a country undermine the country’s ability to provide transplant services for its own population.” Beneath the organ trade: a critical analysis of the organ 23 in organs [18, 40, 51, 94]. 6 While the importance of the moral issues raised by organ sales should not be downplayed there is a need for a more nuanced account of the mechanisms of organ trading, linking the emergence of the organ trade to wider political, cultural and socioeconomic factors. Accordingly, this paper advances a more substantive analysis of the various aspects of organ trading, examining the conceptual bias of the organ trafficking discourse and critically evaluating the underlying conditions beneath the organ trade. It investigates what assumptions are made in regards to this problem, by whom and for what purpose(s), through the following questions: How does the organ trade fit into the anti- trafficking framework? To what extent is the organ trade linked to the global shortage of organ supplies? What role has the transplant industry played in increasing the demand for illegally sourced organs?

The meta-narrative of human trafficking

The prevailing discourse or the meta-narrative of human trafficking is premised on a number of assumptions put forward by government authorities, human rights advocates, and NGOs. In general, human trafficking is constructed as a global crime and a grave violation of human rights that exists on an enormous scale [117]. It is purported that human trafficking is primarily a problem of crime control that persists due to weak regulations in ‘other’ States [116]. In response national anti-trafficking strategies should build expertise in law enforcement and strengthen legislation to protect victims [118]. Victims are generally portrayed as un-educated, poor and vulnerable. The following account taken from the US State Department Trafficking in Persons Report (US Department of State, 2012)issaidtoillustratethe‘myriad forms of exploitation that comprise trafficking and the variety of cultures in which trafficking victims are found’ ([119]: 9).

Uta was 7 years old when she was sent from Romania to work as a domestic servant in the United Kingdom. Her family thought this was an opportunity to get Uta away from poverty, but the Romanian couple who recruited her physically and verbally abused her daily and forced her to sleep on the floor. The couple also enslaved and raped another victim, Razvan, a 53-year-old Romanian man. After being severely beaten and seeing the way the couple treated Uta, Razvan escaped and reported the offenses to the police. When the police rescued Uta she was dressed in filthy clothes, had scabs covering her head, and her teeth were so rotten they had to be removed. She had never been to school and could not even count to ten in her own language. The Romanian couple was found guilty of trafficking and was sentenced to a maximum of 14 years in prison [119].

Victim accounts, like the one above, are found in news media, captured in docu- mentary films, feature on NGO websites and are published in international government reports. The grim image of a beaten, raped and/or enslaved individual is typically

6 Although this paper is critical of enforcement strategies it should not be mistaken as advocating a regulated market in organs. The key point is that Law enforcement needs to form part of a wider strategy, addressing the social determinants that sustain demand for illegal organ transplants. Any arguments for or against a regulated market would need to be context specific, taking into consideration the availability of resources necessary to implement a high level of regulatory oversight. 24 S. Columb juxtaposed with a foreboding statistic reporting that "millions" of people are trafficked each year [119]. 7 Extrapolating from the most extreme cases, an idealized image of victim suffering and criminality becomes representative of the phenomenon as a whole, despite evidence based research indicating otherwise [1, 122, 37]. Attitudes are adjusted and resources are allocated according to a particular regime of truth, belonging to the meta-narrative of human trafficking. Other factors or variables, such as human agency, migration patterns, cultural difference and socio-economic conditions are all overlooked. While there is no doubt that trafficked persons can and do suffer from extreme forms of violence a selective focus on exceptional cases of human trafficking, predominantly with a strong sexual component, does not account for the diverse circumstances and environments that foster exploitation of various kinds. In short, this discourse or meta-narrative represents a standard vision and approach to the problem, despite important intersections of agency, identity, culture and politics. The genealogy of the major international instruments that deal with human trafficking is revealing in this regard. Both the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention on Transnational Organized Crime [112] (hereinafter the Traffick- ing Protocol) and the Trafficking Victims Protection Act (TVPA 2000) were, largely, established in response to the persistent lobbying of abolitionist feminist groups and conservative Christian groups opposed to sex-work [6, 123, 7]. For these groups the phenomenon of trafficking was assimilated into a moral crusade to abolish ‘prostitution’. Advocates of this particular strand of feminism argue that women only resort to selling sex because they lack the same socio-economic opportunities as men [123]; therefore prostitution represents female subjugation to male dominance. Whereas the religious right is concerned with the threat commercial sex poses to marriage, family and moral order [123]. Integral to the construction of the meta-narrative was the belief that all sex-workers were in fact passive victims of predatory men whose subjugation had reduced them to the lowest form of moral deprivation: prostitution. As Laura Agustin reveals in her incisive book Sex at the Margins this narrative feeds into the governmentality (the techniques and/or strategies by which the population is rendered governable) of regulatory agencies and politically motivated NGOs who respectively aim to tighten migration control and abolish the sex trade [1]. 8 Without the sort of pressure described above, it is unlikely that trafficking as a phenomenon would have been elevated beyond the margins of political debate to the mainstream of political concern. 9 A similar "moral panic" precipitated the movement to make the illegal organ trade an object of international concern (see Introduction). In this instance the meta-narrative of human trafficking is being instrumentalised to advance

7 It is unsurprising then that the TIP report 2012 ‘estimates’ that there are currently around 27 million people trafficked around the world. A seemingly static figure alluded to by several authors and advocates since Kevin Bale’s account of modern slavery in 2000. 8 This is evident in the legislative bias of domestic human trafficking laws targeting trafficking for sexual exploitation ([8, 22]). 9 While originally spearheaded by a moral campaign to abolish sex-trafficking the final draft of the Trafficking Protocol includes human trafficking in various forms, i.e. organ removal. The TVPA does not directly recognise organ trafficking or the removal of organ(s) as a form of exploitation. See, Pugliese, E. (2007). Organ Trafficking and the TVPA: Why One Word Makes a Difference in International Enforcement Efforts. J. Contemp. Health L.&Poly, 24, 181. Beneath the organ trade: a critical analysis of the organ 25 the interests of the transplant industry, 10 concerned that the illegal organ trade will undermine the integrity/reputation of transplantation and essentially its economic validity. While it is important that organ trafficking is recognized as a trafficking offence, evidence based research ([130, 85, 55, 12, 83, 128, 80]) indicates that the majority of organ sellers 11 do not conform to the typical victim profile popularized by the meta-narrative of human trafficking.

The global crisis in organs

The organ trade is represented as being symptomatic of the "global crisis in organs", where the demand for organs has outreached supply to the extent that transnational criminal networks are now involved in the organisation and commission of organ trafficking [36, 39]. Various reports and accounts of this new form of trafficking construct a common narrative whereby impoverished donors are deceived into selling an organ, in most cases a kidney, for use in transplantation [75, 99, 125, 126, 35]. Brokers invariably use their position of power/authority to manipulate, deceive and/or coerce "vulnerable persons" into selling their organs [53]. Live donors are then typically trafficked to a medical facility where they are detained, if necessary, before having their organ(s) (predominatly kidneys) removed by unscrupulous medical professionals [99]. Despite there being different manifestations of the organ trade (i.e. transplant tourism, organ sales, organ harvesting) the emerging discourse characterising this phenomenon is centred on the trafficking of persons for their organ(s) and is thus situated within the meta- narrative of human trafficking [103]. This allows for a clear demarcation between the legal institution of transplant medicine and the illegal underworld of human trafficking and organised crime. Organ trafficking is represented as the "the dark side of transplantation" ([90]: 3); the counter-narrative to the "gift of life" rhetoric extolling the virtues of altruistic organ donation [14, 86]. It is externalised as a criminal practice operating outside the legitimate institutions that support the transplant industry. Essentially, a dyadic division is constructed between the "great medical and scientific miracle of transplantation" ([90]: 4) and the organised crime of organ

10 This is not an indictment of the transplant profession or a dismissal of the therapeutic benefits successful transplantation can provide. In referring to the ‘transplant industry’ the author is referring to the various parties, i.e. pharmaceutical companies, insurance companies, private transplant clinics, organ sharing organisations, medical professionals etc. that have a commercial stake in transplantation. Accordingly, it is argued that the transplant industry has a vested economic interest in the international promotion of transplant medicine. 11 According to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) “victims of crime” are defined in the broad sense as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of national criminal laws or of internationally recognized norms relating to human rights”. However, used in this broad sense the term victim has no specific legal status. Not all individuals who sell an organ can be considered a ‘victim’ of trafficking. I use the term ‘organ seller’ to make this distinction. In regards to organ trafficking the term ‘victim’ assumes that an individual has been trafficked. For legal purposes this can only be established after a judicial process. Unless the three elements of human trafficking (action, means, purpose) are satisfied an individual who may indeed be a victim, at least in the broader sense of the word, cannot be considered a victim of trafficking. Moreover, as this paper indicates the term victim is routinely used to convey a particular perspective or meta-narrative of trafficking which does not reflect the diverse experiences of trafficked persons. 26 S. Columb trafficking. This rhetorical positioning deflects critical attention away from the transplant industry and the role it plays in producing demand for illegally sourced organs. Rather the shortage of organs is promulgated as a type of moral crisis [27] which threatens "to undermine the nobility and legacy of transplantation worldwide" (Inter- national Summit on Transplant Tourism and Organ Trafficking, 2008: 1227). Accordingly, efforts to control the organ trade have looked at ways to reduce the global shortage of organs. The Declaration of Istanbul on Organ Trafficking and Transplant Tourism [88] suggests a number of measures to increase the donor pool, "to prevent organ trafficking, transplant commercialism, and transplant tourism" and "to encourage legitimate, lifesaving transplantation programs." In particular deceased organ donation is encouraged as a measure to prevent organ trafficking:

In countries without established deceased organ donation or transplantation, national legislation should be enacted that would initiate deceased organ donation and create transplantation infrastructure, so as to fulfil each country’sdeceased donor potential (International Summit on Transplant Tourism and Organ Traf- ficking, [88]: 1229).

In a joint study between the Council of Europe and the United Nations [35]"the need to promote organ donation and establish organisational measures to increase organ availability" is outlined as a key recommendation to prevent the organ trade/organ trafficking:

Preference should be given to deceased organ donation, which should be developed to its maximum therapeutic potential. In addition, there is a need to extend worldwide the organisational and technical capacity for the transplantation of organs ([35]: 7–8).

The World Health Organisation (WHO) Guiding Principles on Human Cell, Tissue and Organ Transplantation [127] supports this strategic approach; reproducing and reinforcing the rhetorical drive towards a global strategy to develop the technical capacity of transplantation by increasing altruistic and deceased organ donation to its ‘maximum therapeutic potential’ ([127]: Guiding Principal 3). Despite the fact that demand continues to outweigh the supply of transplantable organs in countries with established organ procurement programs, this strategic intervention has gained political support by way of the perceived threat of organ trafficking. Curiously, the probability that a narrow emphasis on increasing the donor pool is liable to encourage more drastic/illegal ways to meet demand is either blithely accepted or completely ignored by policymakers. The proposal in Utah to "permit" prisoners to donate their organs is a case in point [68, 20]. It is evident then that even in states, such as the US, that have the necessary technical capacity to support dedicated ‘organ- sharing’ programmes, the business of saving lives is not a simple altruistic endeavour. The organ trade co-exists with state sanctioned organ procurement and transplantation networks, to meet demand that altruistic systems fail to fulfil [3]. Moreover, while there is a perceived shortage of available organs in one part of the world (predominantly Western Europe and North America) this does not represent a global concern as it does not reflect universal values or standards in healthcare. The Beneath the organ trade: a critical analysis of the organ 27 benefits of transplant technology and bio-medicine in general only apply to states with advanced healthcare infrastructures and where the prerequisite insurance policies are available to cover the expenses involved in treatment and aftercare. Thus, the implications of this apparent "crisis" are radically different depending on one’s locality. For example, in a country like Moldova, where according to a Council of Europe report ([31]: sec II, para 23), the average monthly salary was around 30 USD and the unemployment rate was higher than 50 % the shortage of organs could not be described as a problem associated with national demand but rather supply. Moreover, in the Philippines Yea [128] has observed that there are more organ sellers than buyers. Surely then the universal benefits of transplantation are somewhat overstated. Undoubtedly transplantation has tremendous therapeutic value but the merits of such are contingent on economic prosperity. Considering the economic reality of the global South (where organ trafficking is reportedly most active) it would seem much wiser to prioritise the investment of available capital into primary health care rather than expensive bio-technologies, such as transplant medicine, that the majority of people simply cannot afford. This is not to suggest that low-income countries should not develop their transplant capacities, but rather that the development of such should not come at the expense of primary health care (see, below). In other words, the emphasis should be on preventing organ failure as opposed to instituting transplant programmes with limited accessibility. Similarly, in the advanced economies of the global North and West increased investment into end stage bio-medical treatments has correlated with a decline in the standard of primary healthcare and the rise of "diseases of affluence" such as diabetes, obesity and hypertension, which increase the demand for transplantable organs ([28]: 42). Additionally, ageing populations (in the global North and West) have increased demand for "life-enhancing" technologies like transplantation ([128]: 362). However, a shift in policy towards better primary care is unlikely as this would compromise the commercial interests of transplant medicine. Transplantation is part of the multibillion dollar biomedical industry. 12 Therefore there is a vested economic interest in ensuring that medical expenditure continues to be invested into the private bio-medical sector [24]. Crucially, the transfer of biotechnologies to the global South presents an unbridled opportunity to establish new markets. Thus in dealing with the undesirable consequences and notoriety of the illegal organ trade, it becomes necessary to control it in such a way that does not affect the commercial design of this new bio- market. Representing the organ trade as a human trafficking issue linked to a global shortage in organs produces a particular rationality or mode of thinking that supports specific forms of intervention. The belief that organ trafficking is a direct result of the global crisis in organs blunts a critical appraisal of the bio-medical process that has rendered our bodies subject to new modes of exploitation. Rather, the virtues of transplantation are celebrated as an indicator of social progress and prestige, generating demand

12 To put this into perspective: the Swiss pharmaceutical firm Novartis, which produces essential immuno- suppressant drugs for transplantation, posted an annual profit of $12,811 m in 2012. See, Novartis accessed 16 May 2013. 28 S. Columb amongst a new wave of consumer-patients in emerging economies in the global South [96]. States are encouraged to increase organ supplies and to develop their healthcare infrastructure to support the transfer of bio-technologies, such as transplantation [127]. Failure to do so could result in organ trafficking:

The scarcity needs to be urgently overcome otherwise unwarranted trade and crime are liable to thrive ([66]: 365).

Thus investing into advanced health technologies represents a legitimate domain of intervention for the betterment of society. On the other hand, co-opting the organ trade into the human trafficking discourse resists a wider critique of the phenomenon linking the emergence of a global market in organs to neoliberal globalisation and its discon- tents. Instead the organ trade as a whole is characterised by organ trafficking and positioned as an object of crime control. As the following section demonstrates, the predominance of the organ trafficking discourse obscures an analysis of the broader structural factors behind the organ trade.

The organ trafficking discourse

Early reports of organ trafficking were strongly denied by state authorities. In 1994, for example, the United States Information Agency described reported cases of organ trafficking as stories that "encapsulate widespread anxieties about modern life" and only achieve their credibility because they give, "voice, form and substance to unarticulated anxieties or suspicions" ([70]: 4). In 1997 the Bellagio Task Force investigated allegations of kidnap and murder for organs; largely propagated by "the baby parts rumour" (see Introduction). Although there was substantial evidence of organ sales the Task Force could not find reliable information to corroborate claims of organ theft and murder [98]. Subsequently however there have been documented cases of organ trafficking (See, [78]: [108]. Despite sustained academic interest and media attention such cases are extremely rare and are not representative of the phenomenon as a whole. The clandestine and illegal nature of the organ trade makes it difficult to gather reliable data and to confirm trends in global patterns [3]. Therefore in an attempt to influence state policy advocates tend to accept and reproduce popularised accounts and figures rather than challenge and critique them [4]. In the past decade reports and studies into the organ trade have proliferated, making various claims about the nature and extent of trafficking in persons for organ removal [35, 125, 126, 63, 71, 44]. Nevertheless there have been relatively few cases to appear at the judicial level. Despite the growing interest in what has been described as "a fatal form of exploitation" in a "fast and expanding black market" there remains a critical deficit of evidence based research into this area [61, 106]. In the absence of clear qualitative and quantitative data anecdotal accounts hold sway, influencing public opinion and therein political interest. At present, the only ‘official’ data that is available on the actual scope of the organ trade comes from a World Health Organisation (WHO) report in 2007 [101]. In this report it was estimated that 5–10 % of the 65,000 organ transplants that take place annually are performed Beneath the organ trade: a critical analysis of the organ 29 using illegally sourced organs. In other words, one in ten organ transplants are illegal. How exactly this figure was recorded or corroborated is unclear. Nonethe- less this statistic has been uncritically accepted and relied upon ([35]: 58). Although this statistic refers to illegal organ sales [11] reports on the organ trade frequently reproduce this figure in conjunction with incidental victim accounts used to underscore the prevalence and seriousness of organ trafficking [15]. More often than not the macabre details of isolated "victim" experiences are taken as evidence that organ trafficking is a ubiquitous crime. The emphasis on victim suffering attracts media attention and political support for government resources. However, it also constructs and reinforces a conception of the organ trade as a human trafficking issue that warrants an expansion of the law enforcement apparatus. The New Generation Foundation of Human Rights (NGFHR), an NGO in the North Sinai, Egypt, has reported on "hundreds" of West African refugees being kidnapped and murdered for their organs. Although there is some evidence to support a hypothesis that there is or has been instances of human trafficking in the Sinai region, accusations of widespread organ theft are completely unfounded [92]. Nevertheless in 2011 CNN released a two part report/story on organ theft in the Sinai as part of its "Freedom Project" [92]. Hamdy Al Azazy, the founder and director of NGFHR is quoted/mis- quoted as the authoritative source, alleging that ethnic (Bedouin) trafficking groups systematically drug and kill refugees for their organs:

The organs are not useful if they’re dead. They drug them first and remove their organs, then leave them to die and dump them in a deep dry well along with hundreds of bodies [92].

Accordingly, CNN reported that Bedouin smugglers "may" be stealing organs from African refugees in the Sinai desert [92]. Without evidence to the contrary it remains to be seen whether organ trafficking is occurring to this extent. 13 The concern is that exceptional cases of organ trafficking will become the focal point for political action, such that more implicit (and more common) forms of exploitation manifest in an organ seller’s lack of bargaining power, often due to acute income disparities and information asymmetry regarding transplantation, are overlooked. More credible information on the organ trade does exist. Evidence based studies reveal the acute financial difficulties that push people into selling their organs and the negative consequences that follow ([130, 85, 55, 12, 83, 128, 80]). There is little or no information to suggest that such cases involve organ trafficking [17, 128]). Moreover, as these studies pertain to small sample populations in multiple states or regions, the findings do not represent a global perspective of the organ trade. Nevertheless, numerous reports continue to link the organ trade with sophisticated international organ trafficking rings; usually operating between Israel and Eastern Europe [60]. The majority of these reports reproduce and refer to a handful of documented cases of

13 While conducting fieldwork in Cairo, the author did discover photographic evidence that kidneys were in fact being removed in the Sinai. However it was impossible to determine if this was an isolated incident or 30 S. Columb organ trafficking (i.e. the Netcare Case in South Africa and the Medicus Clinic case in Kosovo) to describe what usually amounts to organ sales or transplant tourism.

Conceptual misrepresentation

While organ sales are illegal in almost every state (Iran being the exception) to sell an organ does not constitute trafficking. For a trafficking offence to be established there must be evidence of an illegal act (i.e. recruitment) followed by an illegal means (i.e. coercion) for the purpose of exploitation (i.e. organ harvesting) ([113, 114]: Art.3 (a)). Further, transplant tourism refers to the practice of travelling to another state to purchase an organ. This does not necessarily involve organ trafficking. Nonetheless intergovernmental and media reports consistently use these terms interchangeably giving the impression that organ trafficking is a prevalent crime orchestrated by transnational criminal organisations [35]. Hence a sort of undifferentiated complacency prevails, reframing and linking singular victim accounts of organ sales and/or transplant tourism to the meta-narrative of human trafficking. Notwithstanding the current lack of empirical evidence on the organ trade reports consistently allege that organ trafficking is the fastest growing business of organised crime and is worth several billion dollars ([63, 50, 67]).

Organ trade is the second most profitable trade behind only weapons trade…It brings in more money than drug dealing and prostitution [92].

In 2011 Global Financial Integrity, a Washington based research and advocacy organisation working to curtail illicit financial flows, estimated that the organ trade has profits of between 600 million and 1.2 billion per year [56]. Such estimates have no empirical foundation; they are simply estimates of estimates [104, 123]. Similar to how sex-trafficking was conveyed in the late 1990s organ trafficking is said to be a prevalent and growing crime. In effect organ trafficking, as opposed to the organ trade as a whole, has become the focal point of investigation where emotive accounts of victim suffering come to define how this phenomenon is conceptualised. By co-opting the organ trade into the meta-narrative of human trafficking the multi- sited complexity of this issue is eschewed in favour of a reductionist response that constructs a definite set of actors with fixed roles and expectations, which fit neatly into a universal model of crime control. Following on from the epistemological tradition of "the white slave movement" [41] which classified all sex-workers as victims who need to be rescued; the subjects of this new form of human trafficking are the organ sellers who become victims of international criminal networks, composed of shady middle- men and rogue surgeons who operate outside the legitimate field of transplant medicine. Accordingly, international attention has responded to this issue with a focus on victim protection and law enforcement. This strategic response is evident in the UNODC ‘toolkit’ on human trafficking, which outlines four steps to prevent organ trafficking; notably emphasising the need to protect victims by building expertise in law enforcement to "identify potential and actual victims, and perpetrators of organ trafficking and trafficking for the purpose of organ removal" [116]. Beneath the organ trade: a critical analysis of the organ 31

As encouraging as this may seem, at least from an advocacy perspective, this conception of organ trafficking lends authenticity and moral purpose to the pursuit of more punitive responses that fail to locate actual suffering within broader political and structural contexts [76, 48]). Vulnerability and exploitation are variables contingent on a broad constellation of interpersonal relations, power dynamics and personal experiences. Victimhood is not a static position. For example, there have been instances where organ sellers or "victims" have subsequently become brokers upon selling a kidney of their own [62, 81]. According to Yea [128] in the Philippines recruiters are often neighbours, relatives or friends of organ sellers. Furthermore, many organ sellers actively seek out brokers/intermediaries to arrange the sale of an organ [128, 80]. An extremely complicated set of social relations cannot be reduced to clear-cut categories of right and wrong. There is always a parallel story where the moral truisms that define a particular perspective (or meta-narrative) are brought into question. This is not to suggest that organ sellers are not coerced and trafficked for their organs. The point is that the organ trade is dynamic, context based and linked to wider social, cultural and economic factors. An emphasis on victim suffering is morally/politically loaded. The image of the innocent victim deceived into selling his/her organ is represented as the binary opposite to the criminal offender (broker) who preys on vulnerable individuals. The normative power of these distinct victim and offender categories invests political capital into punitive measures that forego a wider critique of the socio-political structures that produce conditions where trading in organs has become an economic activity. The current international framework regulating organ sales and/or organ trafficking reflects this conception of the organ trade, advancing a formulaic criminal response. The efficacy of this response will now be explored

Criminalising the organ trade

Organ sales were first prohibited in 1987 by the World Health Organisation (WHO). Resolution WHA40.13 affirmed that the organ trade "is inconsistent with the most basic human values and contravenes the Universal Declaration of Human Rights (UDHR) and the spirit of the WHO Constitution" [129]. Subsequently the WHO Guiding Principles were established in 1991 (the guidelines were updated in 2010) declaring that organs should be "donated freely, without any monetary payment or other reward of monetary value" [127]. Other international standards followed suit. Article 21 of The Council of Europe Convention on Biomedicine and Human Rights asserts that ‘the human body and its parts shall not give rise to financial gain’ [30]. Further, the Declaration of Istanbul prohibits organ sales and calls for the prohibition of any ‘financial considerations or material gain’ for an organ donation(s). Although the above international standards are not legally binding, with the exception of Iran the prohibition of organ sales has been adopted into domestic penal codes worldwide. In the UK, for example, under The Human Tissue Act [105] ‘commercial dealings in human material for transplantation’ are prohibited. In the US the National Organ Transplant Act [107] states that, ‘it shall be unlawful for any person to 32 S. Columb knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.’ In response to mounting concerns over the organ trade in India the Human Transplantation Act was established in 1994 to ‘provide for the regulation of removal, storage, and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in organs’. In Egypt, the Organ Harvesting and Transplant Law (2010), prohibits the illicit removal of organs for financial gain However, notwithstanding the almost universal prohibition of organ sales new reports of illegal organ sales appear on an almost daily basis while prosecution rates remain low [83]. There are a number of reasons for this. 14 First, there is a growing body of evidence to suggest that organ sales are largely advertised online [79, 5, 77, 78]. Individuals looking to bypass prolonged waiting lists in their nation states can find willing donors and/or brokers online without difficulty. For example, a cursory search on Facebook for ‘kidney donors’ or ‘kidney for sale’ returns multiple pages hosting advertisements from numerous individuals looking to sell one or more of their organs (see appendix). Advertise- ments typically include an individual’s age, gender and blood type requesting prospective buyers to make enquires via a private message. Jurisdictional complications, online anonymity and privacy rights make it extremely difficult to monitor and enforce laws against illegal activity conducted online [9, 121]. Second, the majority of domestic transplant laws prohibiting the organ trade are restricted to offences committed within state borders [3, 28]. Therefore if a patient purchases an organ on the territory of another state he/she will only be criminally liable while in that state. Upon return to his/her home state that individual is no longer subject to criminal sanction. Third, a number of loopholes around consent limit the substantive application of domestic transplant laws. In India for example, an unrelated donor is merely required to sign an affidavit in a magistrates court stating that he/she is donating an organ for reasons of ‘affection or attachment’(Human Organ Transplantation Act (India), [109]). Clearly, it is not difficult to conceive of a situation where a recipient would develop a sense of ‘affection or attachment’ for a person who had agreed to provide a much needed organ. Critically however, criminalising organ sales does not effectively limit demand or address the cultural, political and socio-economic structures that precipitate the organ trade. Laws are introduced without any practical consideration of how to identify, prove and enforce measures against this phenomenon. While the aforementioned instruments were primarily established to prohibit organ sales the Trafficking Protocol has principle carriage for the prohibition of trafficking in persons for organ removal.

Including "the removal of organs" in the trafficking protocol

The Trafficking Protocol was the first multilateral treaty to explicitly recognise human trafficking for organ removal as a practice that should be criminalised and punished [113, 114]. Supplementing the United Nations Convention on Transnational Organised Crime (hereinafter the Organised Crime Convention) the Trafficking Protocol was established in response to the threat posed by ‘transnational’ organised criminal

14 This is not an exhaustive list. Beneath the organ trade: a critical analysis of the organ 33 networks involved in human trafficking. It was not established to account for local actors involved in illicit activities, i.e. organ sales. Its primary purpose is to bring State Parties into agreement as to what constitutes human trafficking in order to encourage the convergence of national approaches to crime control; to facilitate cross border cooperation in investigating and prosecuting trafficking offences that involve one or more states. For example, in order to extradite an offender the principle of double criminality must first apply, which requires the requesting state to have analogous laws to that of the state in request. Under the terms of the Protocol the offence of trafficking can only be established where an action (recruitment, transportation, transfer, harbouring or receipt of persons) followed by the means (threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person) for the purpose of exploitation (in this case, the removal of organs) can be proven ([113, 114]: Art 3 (a)). Under Article 3 (c) the means are irrelevant in any case involving a child. The decision to include ‘the removal of organs’ was made very late in the negoti- ations, at the ninth session of the Ad hoc Committee on the Elaboration of a Conven- tion against Transnational Organised Crime [112]. In support of recommendations made by Argentina and the United States during the first session of the Committee, several delegations requested that the exploitative purposes outlined under Article 3 (a) should ‘include the removal of organs or trafficking in human organs, tissue or body parts’ ([112]: para 12). Consequently, it was decided ‘to include such a reference for purposes of further discussion’ ([112]: para 12). Thus unlike other exploitative purposes specifically referred to in the Protocol organ trafficking was not previously considered in international law and as such had no prior legal definition. This combined with the fact that ‘the removal of organs’ was introduced at the final drafting stage of the Protocol meant that the concept had been introduced into international law, despite not being well understood or defined. This is evident in the absence of any nuanced provisions targeting the specific ethical, legal and medical challenges that organ trafficking presents. For example, there is no distinction made between the different practices involved in the organ trade, i.e. organ sales and transplant tourism. It was only in a subsequent report by the Conference of Parties to the Convention that it was explained that trafficking in organs, tissue or cells independent of the body is not covered by the Protocol (United Nations, 2011: para 8). Thus the Trafficking Protocol is only relevant where human trafficking for organ removal takes place. How exactly the ‘removal of organs’ becomes a criminal act or how prima facie a consensual agreement to sell an organ becomes exploitive and subsequently a trafficking offence is not elaborated. Therefore the substantive scope of the Protocol as it applies to organ trafficking, and related practices, is somewhat obsolete. The fact that Article 3 (a) includes the only reference to organ trafficking in the Protocol, where the term ‘removal of organs’ is listed as a form of exploitation, is in itself indicative of the lack of consideration given to this issue prior to its inclusion. 15

15 The removal of an organ is not always illegal. It is only illegal to remove an organ under commercial terms or when there is no medical reason to do so. Hence the Protocol would benefit from clarifying the term ‘removal of an organ’. 34 S. Columb

The Trafficking Protocol largely serves prosecutorial ends. The inclusion of open- ended terms like ‘the abuse of power’ or of ‘a position of vulnerability’ speaks to the definitional flexibility States Parties are granted when prosecuting suspected cases of human trafficking. For example, in the Medicus Clinic case [78] the Appeals Panel of the EULEX Court in Pristina confirmed the charges of human trafficking against the defendants on the basis that the particular means involved constituted an abuse of a position of vulnerability:

…the person who had come to Kosovo to donate their organs did not do so to assist a family member or for any of the usual reasons that people in a civilised society chose freely to donate their organs. They did so because of their position of vulnerability. To suggest that a person would travel to a foreign country, endanger their health through such invasive procedure on the say so of a stranger runs (if they were not in a position of vulnerability) contrary to common sense…[78].

Although there is some commitment to ‘victim rights’, states are merely urged to ‘consider’ implementing measures in cooperation with civil society to provide for the physical, psychological and social recovery of survivors of trafficking in persons ([113, 114]: Art 6 (a)). According to the Legislative Guide (para 368) the Trafficking Protocol does not oblige states to guarantee a victim’s right to compensation or other such remedies but rather calls on states to adopt all necessary legislative measures, such that remedies can be pursued [115]. More- over, a major drawback against the Protocol is the absence of any kind of monitoring mechanism to ensure that parties implement its provisions effectively. At the regional level the Council of Europe Convention on Action against Traffick- ing [32] (hereinafter The European Trafficking Convention) also enumerates ‘the removal of organs’ as a form of exploitation that constitutes the purpose element of human trafficking. While largely synonymous with the Trafficking Protocol the Euro- pean Trafficking Convention makes some notable developments. 16 The European Trafficking Convention represents a victim centred or human rights approach to human trafficking. As such the language in the Convention reflects much stronger obligations to adhere to provisions intended to protect victims [32;Arts10–17]. However the anti- trafficking framework remains limited in its reach, particularly in regards to the organ trade. While the human rights approach has been important insofar as many states now mediate their criminal policies with provisions that take account of a ‘victim’s’ situation (i.e. granting victim immunity from criminalisation, operating victim shelters and institutionalising special visa regimes for trafficked individuals) such assistance is contingent on the outcome of criminal proceedings [23, 103]. Although estimates of

16 In contrast to the Trafficking Protocol the European Trafficking Convention established a Group of Experts on Action against Trafficking in Human Beings (GRETA) charged with monitoring the implementation of the Convention through country reports. The implementation of the monitoring body is made possible by the integrated status of the EU. This would not be effective on a global scale. Another important provision to note in relation to the legality of organ sales is Article 19, which invites states to impose liability on persons who ‘use the services of a victim of trafficking’ with the knowledge that the person is a victim of trafficking. Accordingly, recipients of a trafficked organ could –potentially- be held liable by States Parties to this convention. Beneath the organ trade: a critical analysis of the organ 35 trafficked persons are in their millions relatively few are identified [104, 123]. Of those who are identified only the most extreme cases go to trial and only the most ‘deserving’ victims receive assistance [8, 22, 7]. Moreover, rehabilitation often amounts to lengthy administrative procedures that result in the involuntary repatriation of victims [23, 103]. All too often the rhetorical appeal of the human rights discourse is used to create the illusion that positive action is being taken by compassionate governments to end the injustice of ‘modern slavery’ [42, 84]. Critically however, the anti-trafficking framework is individualistic in its approach attending (in the best case scenario) to the post- ante consequences of a criminal act. An ex-ante approach is needed that attends to the economic conditions and legal rules that leave individuals vulnerable to varying degrees of exploitation. Given the covert and complex nature of the organ trade it is difficult to see how organ sellers (whether subject to trafficking or not) will benefit from an anti-trafficking perspective.

Council of Europe convention against trafficking in human organs

The Council of Europe Convention against Trafficking in Human Organs was adopted on July 9th by the Council of Europe Committee of Ministers, with the objective to prevent and combat trafficking in human organs. The Convention aims to achieve its objectives ‘through the introduction of new offences supplementing the existing international legal instruments in the field of trafficking in human beings for the purpose of the removal of organs’ ([33], Preamble). However, considering the Con- vention is intended to supplement existing international instruments, it is curious that there is no reference to ‘trafficking’ as defined in Art 3(a) of the Trafficking Protocol. Rather, for the purposes of the Convention trafficking in organs is broadly defined as the ‘illicit removal of human organs’. Articles 4 (1), 5, 6, 7, 8, and 9 outline a number of instances where removing an organ can be considered illegal, however similar to the Trafficking Protocol the draft lacks any kind of normative basis to support the notion of an ‘illegal removal’. This fragmented conception of ‘illicit removal of organs’ as distinct from the definition of ‘trafficking’ established in the Protocol is likely to serve a source of confusion for those states that adopt this Convention. As expressed in Article 4 (a) and (b) criminalization is contingent on (1) the lack of informed consent (2) the exchange of money. This is problematic for a number of reasons. Consent is generally taken to denote a voluntary agreement to another’s proposition. It involves the capacity, intention, and knowledge to make the decision of the kind purported. Accordingly, the majority of transplant laws require that voluntary and informed consent is obtained before a transplant can be approved. 17 The majority of organ sellers consent to the sale of their organs [13, 128, 80]; Naqvi et al., 2007, [57]). They do so for a number of reasons (i.e. poverty, debt, familial pressure, etc.) largely rooted in their socio-economic status [55, 130, 83, 10]. Although from a moral perspective it is not ideal to sell one’s organs this need not necessarily be exploitative insofar as the seller may at some level benefit economically, or in some other way, from the transaction. It is when consent gives way to exploitation that the

17 All the domestic transplant laws referred to in this article require that voluntary and informed consent is given prior to an organ donation. 36 S. Columb force of the law should be called upon. 18 Before we can determine whether consent is fully informed we must look at the context in which it is given. How was it obtained and for what purposes? Here however the notion of ‘consent’ is fixed to a particular construction of illegality and used as a standard bearer for criminality. The ex-ante structural conditions that render people vulnerable to exploitation are dismissed by a narrow emphasis on criminality. Organ sellers are not exploited because they sell their organs. They are exploited because of conscious choices at the global level to invest in transplantation facilities rather than basic public health [59]. Critically, the Convention does not distinguish between organ sales and organ trafficking; albeit the intended purpose of the Convention is in fact to prevent and combat organ trafficking as opposed to organ sales. The reliance on ‘financial gain or comparable advantage’ reflects the moral underpinnings of the predominant prohibi- tionist stance against organ sales. On this basis the act of exchanging an organ is rendered criminal by way of material advantage, regardless of the conditions involved. To equate the act of selling an organ with a serious criminal offence is wholly misconceived and disproportionate. Without any investigation into how consent is obtained or why it is given ‘consent’ becomes an open-ended judgment, open to state interpretation and manipulation for prosecutorial purposes. Accordingly, the Explana- tory Report to the Convention (para, 53) notes that the question of prosecution of “organ donors” will be left up to individual states. At present there is wide divergence amongst states in regards to the level of punishment to be administered for the offence of selling an organ and/or organ trafficking. Punishment can range from 3 months imprisonment and/or a fine (i.e. the UK) to over 8 years imprisonment and/or a fine (i.e. Egypt, Venezuela). 19 Rather than address such inconsistencies the Convention merely encourages states to adopt a number of new offences that will apparently prevent and combat trafficking in human organs. Ironically then we have a situation where unless an organ seller is considered a victim of organ trafficking he/she will be criminally liable. Misconceptions aside this Convention has little substantive purchase. Similar to the Trafficking Protocol the Convention uses discretionary non-binding language and terminology to convey various provisions. For example, Article 4 (4) only requires state parties to ‘consider’ taking the ‘necessary legislative or other measures to establish as a criminal offence under its domestic law the removal of human organs from living or deceased donors […]’. The Convention consistently uses vague and open ended terminology, such as “undue advantage” (Article 7) and “vulnerable person” (Article 13) failing to bring any kind of conceptual clarity to this phenomenon. 20 Further, important provisions such as Article 11 pertaining to corporate liability are subject to existing state laws which may or not be proportionate to the offence involved. In terms of prevention (see Article 21) there is no commitment to reducing organ failure as a

18 This is an important point to consider. However, it is beyond the scope of this article to deliberate on this further. 19 See, Arab Republic of Egypt, Law No. (64) Regarding Combating Human Trafficking (2010) accessed 12 June 2013; See also, Law of 19th July of Venezuela on Organ Transplantation 20 It is noted in the Explanatory Report that drafters are intending Article 21 to be limited to persons who are vulnerable because of age (presumably children, already covered under the previous clause), mental development or familial or social dependence on the perpetrator(s)). Beneath the organ trade: a critical analysis of the organ 37 viable strategy to prevent ‘trafficking in human organs’.Ratherpunitivemeasuresare conveyed as the only viable strategy to regulate the organ trade. Similar to the Trafficking Protocol, there is no mention of reporting requirements or implementation machinery. The follow-up mechanism outlined in Chapter IV of the Convention is reliant on the discretion or States Parties are their willingness to allocate the necessary resources. Given that there are several opt out clauses (Art 9 (3); Art 10(3); 10 (5); 30 (2)) undermining the scope of the treaty, it is unlikely that State Parties will feel ‘obliged’ to do so.

Beyond criminalisation

The above international instruments follow a clear ideological trajectory whereby the moral framework underpinning the prohibition of organ sales has been subsumed into the meta- narrative of human trafficking. This has prompted states to adopt more punitive measures in response to the organ trade as a whole; regardless of whether or not trafficking or organ harvesting has occurred. Consequently, organ sellers are as likely to be prosecuted for selling an organ as actors involved in the organisation and commission of organ trafficking (See, [93]). 21 It can come as no surprise then that sellers are reluctant to come forward and report instances of abuse, fraud or deception to state authorities when such violations have actually transpired [62]. 22 For an organ seller to receive assistance (limited as this may be) he/she must conform to a fixed victim profile attributed to an a priori criminal act. Consequently, the organ seller becomes a ‘victim’ of trafficking oppressed by a criminal underworld that threatens the moral fabric of society and must therefore be brought to justice. Such ‘victims’ are utilised to spearhead campaigns for increased crime control and tightened security measures, which conveniently displace the need to challenge the social, cultural, economic and political factors that push people into selling their organs. Conversely, many organ sellers who do not conform to a trafficking victim profile are likely to be excluded from assistance despite being subject to varying degrees of exploitation. Organ sellers are not necessarily trafficking victims per se, but are no less deserving of assistance. While criminal prosecution is important insofar as it represents society’sintolerance for particular crimes and may act as a deterrent for future offences, punishment does little to alleviate the conditions that produce crime. Rather an emphasis on prosecution

21 See, Wang Chin Sing v Public Prosecutor accessed 10 July 2013. In this case the organ sellers were warned that if they complained to the police they would be arrested, since they were complicit in an offence. 38 S. Columb and crime control may serve a distinct ideological and political function [47]. As discussed previously, the organ trade is the subject of increased media, NGO and inter-governmental attention. The overall picture that is being presented is one of organisedcrimeandhumantrafficking.Reportswithanemphasisoncriminality and victim suffering generate social fear which in turn wins public support for punitive measures and symbolic promises of ‘victim’ assistance. In spite of the limited number of legal cases that involve the level of force, fraud and coercion described in the organ ‘trafficking’ discourse, select prosecutions involving ag- gressive organised criminal networks are used as an investigative template for government strategies to counter the organ trade [89]. High profile prosecutions give the appearance that positive action has been taken, without challenging the broader political framework that produces victimisation. Nevertheless, it is these cases that receive media attention and ingrain a particular perspective of criminal phenomena into the social consciousness. Rights of victims are consistently referred to without any substantive basis for how these rights can be enforced. Various ‘official’ reports make grandiose claims of victim assistance and crime prevention appealing to a narrow conception of human rights, dignity, autonomy and empowerment, to convey a sense of commitment to laws which are symbolic in nature representing little tangible support ([117, 118]). While NGOs and interest groups can essentially motivate social change they often reinforce the meta- narrative of human trafficking by appealing to a mediated image of victim suffering to advocate for ‘remedies’ that have no substantive outlet [80]. Criminality is generally relegated to the global south where particular states are identified as trafficking hotspots [100, 101]. Advocates levy unrealistic demands on these states calling for a host of different victim services. However, the majority of states that are identified simply do not have the resources to follow through on commitments, which are essentially made to appease the prescriptive profile of international agreements. 23 The periodic assessment of ‘kidney scandals’ and high profile cases defers a more sustained inquiry into the local politics that underpin the everyday dealings negotiating the terms and conditions of the organ trade. Evidence based research indicates that the organ trade operates (predominantly) on a much more localised level where the experience of organs sellers vary, the operations differ and the push factors alternate ([55, 80, 83, 85, 130]). While local networks can and do interact with larger transnational networks of organ trading ([78, 108] the conditions that facilitate various aspects of the organ trade, are grounded in the particular circumstances and environments of a given context. There is however a pattern of indebtedness amongst organ sellers suggesting that the organ trade is better understood as an issue of economic malfeasance rather than a major organised crime operation or a serious threat to national security. Undertaking research in Chennai, India, Lawrence Cohen observed that ‘kidney zones – the vakkams and belts of Tamil Nadu – emerge through interactions between surgical entrepreneurs, persons facing extraordinary debt, and medical brokers’ (26: 676). Cohen explains: ‘Persons sell kidneys to get out of debt, but the conditions of indebtedness do not disappear’ (26: 676). Thus rather than introducing new criminal

23 For example, Article 27 of Law No. (64) Regarding Combating Human Trafficking (Egypt) outlines a commitment to establish a fund for victims of trafficking. This fund has never been established. Beneath the organ trade: a critical analysis of the organ 39 offences to deter the organ trade we should perhaps look at insufficient labour frameworks, local credit practices and ways of minimising the conditions of indebtedness that leave people vulnerable to varying degrees of exploitation [23]. In particular the nexus between medicine, politics and industry warrants closer inspection.

Re-assessing transplantation

While organ sellers may become victims of crime the fact the crime exists has nothing to do with their decision to sell. The organ trade can be considered an organised crime insofar as an organised criminal group is defined as:

…astructuredgroupofthreeormorepersons,existingforaperiodoftimeand acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’([114]: Art 2 (a)).

However, in contrast to the dark figure of the mob boss or predatory broker the diverse actors involved in the organ trade coexist with the legal institutions that constitute the transplant industry. There would be no organ trade without the necessary medical infrastructure or trained medical staff to remove/harvest the organ(s). Neither would there be demand without the life enhancing promise that transplant medicine holds out to terminally ill consumer-patients. The organ trade is not primarily a problem of crime control. It is an illegal subsystem of the transplant industry; an unregulated market solution to the surplus demand for organs, produced by the global transfer of transplant technologies. To be clear, this is not a critique of the therapeutic design of transplantation which as a last resort for terminally ill patients is a genuine life saving measure. What is at issue here is the economic design of a technology incoherent with local needs and/or resources. In an increasingly globalised world where neo-liberalism pre-dominates there has been a systematic grafting of market values into all aspects of social life. Medicine and its rationality have been shaped by this discourse, where the self-regulating principles of the market are applied to life itself. New ‘life-enhancing’ biotechnologies have introduced new calculations of life, influencing the ways we conduct ourselves. Medicine materialises time in its intervention, offering the possibility of additional weeks, months or years of life. Hence, our capacity to live becomes a material aspiration. To quote Nickolas Rose:

Biomedicine, throughout the twentieth century and into our own, has thus not simply changed our relation to health and illness but has modified the things we think we may hope for and the objectives we aspire to. That is to say, it has helped make us the kind of people we have become ([97]: 25).

Viewed from the perspective of individual patient success rates one can understand the almost uncritical acceptance of bio-medicine as an unprecedented social good, in particular when we consider the merits of kidney transplantation. In the UK, for example, there were 1148 successful kidney transplants from deceased donors in 2012–2013, and 1068 successful kidney transplants from living donors in the same 40 S. Columb period [86]. Yet, if we consider the success of transplantation in relation to the rise of ‘diseases of affluence’ (i.e., obesity, hypertension and diabetes) associated with end- stage renal failure (ESRF), ageing populations, rising medical costs, the decline of primary care and the emergence of the organ trade, it becomes apparent that our increasing reliance on transplant surgery is not an altogether convincing success story [38, 46, 64, 65]. The much vaunted ‘life-saving’ capacity of transplantation represents an undeniable medical achievement. Nevertheless, the fact that the global incidence of renal disease is increasing to epidemic proportions [102, 124] is a serious cause for concern, which calls for a re-assessment of how we structure our national health systems. In a number of states, identified as being hotspots of organ ‘trafficking’,suchas India, Pakistan and the Philippines [100, 101] where large sections of the population do not have access to basic sanitation and/or clean water, it seems counter- productive to invest limited resources into expensive transplantation programmes inaccessible to the general public. In such states where access to transplantation is limited, legal restrictions may be necessary to reserve treatment for the most serious cases (that is where transplantation is the only feasible option), while resources are made available to promote the early identification of diseases associated with organ failure. Early intervention is pivotal in responding to patients needs before transplantation becomes necessary [72]. Furthermore, there needs to be a focus on addressing the risk factors associated with organ failure. For example, rather than prioritising the investment of resources into a technology that attends to the consequences of organ failure, resources could be invested into public health schemes to improve waste management, sanitation, environmental degradation, food security etc. [58]. Essentially transplantation needs to be uncoupled from economic incentives and re-structured to accommodate domestic needs. Nonetheless, with a surplus demand for organs ‘developing’ transplant capabilities in the global South holds the dual promise of market expansion and industrial supply. The industrial and technological structure that transplantation necessitates con- tends to a distinctly Western public policy design, responding to the interests of the transplant industry rather than internal health/development needs. For instance, while transplants produce high revenues for insurance and pharmaceutical companies, organ procurement organisations, medical professionals, hospitals and their shareholders, the profits are largely remitted into the private sector at the expense of public health care provision [29, 73]. Subsequently, access to healthcare is increasingly becoming a feature of one’s ability to pay. This is particularly damaging in the global South, where existing inequalities are exacer- bated further polarizing domestic populations [2, 74, 82]. Significantly then, it seems that in the context of uneven development in the bio-medical sector, transplantation has rendered the biological value of human beings subject to the relative and comparative wealth of individuals. It is from this socio-economic interface that exploitation can and does follow. The fact that few people with chronic renal failure can avail of transplant medicine is not so much an issue of crime control but is rather an indictment of privatised medicine and the political economy. Preventing the organ trade will depend more on political decisions than misleading technical crusades to improve enforcement and reform victims. Beneath the organ trade: a critical analysis of the organ 41

Conclusion

At present little is known about the prevalence or nature of the organ trade. Much of what we do know is based on anecdotal accounts that betray an empirical objectivity for a biased subjectivity. Clearly then more evidence based research is needed to illuminate the multi-sited complexity of this phenomenon and to determine the actual scope of the problem; particularly in regards to the role the transplant industry plays in producing demand for transplant services and therein organ supplies - this will be the focus of some future publications. Nevertheless, organ trafficking is represented as the defining feature of the organ trade. Despite empirical evidence indicating that the organ trade is better characterised by organ sales and transplant tourism and the fact that there has been relatively few cases of organ trafficking to appear at the judicial level, organ trafficking is repeatedly referred to as a global crime organised and commissioned by sophisticated criminal networks. Co-opting the organ trade into the anti- trafficking framework is not an adequate solution to the challenge the organ trade presents. The anti-trafficking framework is limited in its reach attending to the post-ante circumstances of exceptional cases of trafficking. The majority of organ sellers who suffer from varying degrees of exploitation do not correspond to the standard victim profile of trafficked persons and thus may be further disenfranchised by the ascendancy of the organ ‘trafficking’ discourse. For example, in cases where some trafficking elements are present, the level of fraud and/or deception involved in an organ sale may not be considered serious enough to constitute the offence of trafficking under domestic laws. Hence, rather than simply co-opting the organ trade into existing laws, law and policymakers need to consider the unique challenges this phenomenon presents. The belief that organ trafficking is a direct result of the ‘global crisis in organs’ blunts a critical appraisal of the structural process that has rendered our bodies subject to new modes of exploitation. Instead of focusing on the pain and suffering of victims, positive action needs to be taken to make the transplant industry, as a whole, more accountable. The organ trade is not symptomatic of the global crisis in organs; it is an illegal subsystem of the transplant industry.

Appendix 42 S. Columb

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Explaining fraud deviancy attenuation in the United Kingdom

Mark Button & Martin Tunley

Published online: 5 February 2015 # Springer Science+Business Media Dordrecht 2015

Abstract Fraud is one of the most costly crimes to society. There have been a number of studies documenting the low priority and resources allocated to fraud, but there has been little attempt to conceptualise the processes which lead to this. This paper develops a concept that is the antithesis to deviancy amplification, deviancy attenuation, to examine why the level of resources and interest in fraud are not commensurate with the size of the problem. The paper also develops two further reverse concepts to further explain attenuation: de-labelling and immoral phlegmatism. Empirical evidence is offered in the form of case studies, statistical and survey data to support the arguments presented. The paper also illustrates these arguments through the comparison of the response to benefits fraud in the United Kingdom, which can be considered the one exception amongst frauds where labelling, moral panics and deviancy amplification occurs; explained by some Marxist commentators as a consequence of it being a lower class crime actively pursued by the powerful.

Introduction

Fraud is one of the, if not the most, costly crimes to society in the United Kingdom (and probably many other countries) [59]. Yet the response to it from the Government and from the criminal justice system, bar the exception of benefits fraud, has not matched the magnitude of the problem. Furthermore, the response from organisations who are victims also does not generally match the size of the problem, which this paper will illustrate shortly. Most of the research and scholarship which has touched on this anomaly is rooted in the broader subject of ‘white collar crime’ or its associated derivations of ‘corporate crime’ and ‘crimes of the powerful’ to name some, with limited attention to fraud [66, 64, 75, 5, 76, 62]. Much of this work essentially argues the difference in treatment of so called ‘white collar crimes’ can be explained in the social status of the offenders, their associations and ability to influence the institutions

M. Button (*) : M. Tunley Institute of Criminal Justice Studies, University of Portsmouth, Portsmouth, UK e-mail: [email protected] M. Tunley e-mail: [email protected] 50 M. Button, M. Tunley which have a stake in dealing with such crimes, which are ultimately underpinned by assessments of the consequences of the structure of modern capitalism [50, 64, 5, 76, 62]. However, the scholarship of the different treatment of white collar offenders has tended to focus upon the most powerful in organisations, rather than the middle managers and those at the bottom. Also very little has been said about the actual processes which lead to the different treatment of so called ‘white collar crimes’. This paper will seek to identify some of the processes which lead to this different treatment, using the example of fraud, which is often considered as a ‘white collar crime’. At this point in the paper, it is important to explain the authors’ position, specifically, that white collar crime is not always appropriate for exploring fraud as it is a crime committed by every part of society [23, 47]. ‘Lumping’ it together with ‘health and safety’, food offences, environmental crime and others to explain broad issues is ultimately flawed. It would be like trying to generalise about the response to murder and workplace deaths, which are very different problems and have very different responses. The authors believe even generalising about fraud poses problems given the wide diversity of the crime. However, one can unite it as a crime with deception as its principle modus operandi with the aim of producing a gain or causing a loss. It will also look beyond the most powerful who engage in fraud to illustrate and explain that some of the same differential treatments also extend to them too. It will seek to explain why fraud does not solicit the response it deserves. It will do so through the creation of concepts which are the antithesis to labelling, moral panics and deviancy amplification. These are: de-labelling, immoral phlegmatism and deviancy attenuation. It is also likely some of the concepts have utility for other social problems, particularly other white collar crimes and offences such as sex crimes (rape, child abuse, grooming), domestic violence and hate crime [19]. This is, however, beyond the remit of this paper. Before we embark upon this, it is first important to illustrate very clearly the evidence to show fraud is one of the most costly crimes to society. There are a wide range of measures of crime, but it is rare to actually put a cost upon it. In the United Kingdom the last serious effort was in 2000 when the Home Office published an estimate of the total cost of crime at £59.9 billion [11]. This included the costs of security, insurance, the criminal justice system, healthcare etc. The total value of property stolen or damaged as a result of crime was £18.6 billion. Fraud and forgery accounted for £10.3 billion of that value and no serious additional costs were added, bar the costs of the criminal justice system at £0.6 billion. Part of this figure—individuals and households—was reassessed a few years later, but produced no significant difference for the individual and households figure and fraud wasn’tevenincluded[29]. Thus, even on these figures, fraud was the most expensive crime by value of loss. Since this research, however, the National Fraud Authority has been established and it has published an annual fraud indicator covering the value of fraud losses. The most recent –and what will also be the last - estimates fraud to cost the UK economy £52 billion, which is down from its prior estimate of £73 billion [58] but up from £30 billion in its first annual report [57]. Given most property crimes have been in decline, the 2000 figure of £8.3 billion for the actual losses from all other crimes bar fraud was rounded to £10 billion for inflation, and ignoring the downward trend, would still be a fifth of the total losses from fraud. Given it is the most costly crime to society one would expect tackling fraud to be a major priority. This paper will show, however, the resources that are dedicated to deal with the problem of fraud do not reflect this, bar Explaining fraud deviancy attenuation in the United Kingdom 51 the exception of social security fraud, which will be considered throughout this paper to illustrate the differences. This paper will now consider the processes which explain the different treatment of most frauds. It will begin by outlining the process of de-labelling, before moving on to consider ‘immoral phlegmatism’. In considering the latter, the paper will show how fraud is not accurately measured and how the resources dedicated towards dealing with it are often not appropriate. Finally the paper draws these concepts together to show the deviancy attenuation process.

De-labelling fraud

Labelling is a well known criminological concept by which certain behaviours and individuals become labelled respectively as crimes and criminals by the wider community and official institutions. This has implications for those who are thus ‘labelled’ in terms of their future behaviours and the resources and the priority society puts in place to deal with them. Labelling is often associated with ‘moral panics’, the concept of deviancy amplification and with social problems such as drug-taking, juvenile delinquency to name some [68, 6, 77]. For most volume crimes definitions are fairly straightforward. There is a definition in statute or the common law of an offence, and offenders who undertake such behaviours are prosecuted against those definitions through the criminal justice system. A simple legalistic view would be the mere fact many of these deviant acts are not dealt with as criminal means they are not [64]. However, the reality is that for fraud it is more complex. There are behaviours committed by individuals and organisations which contain the basic foundations of the criminal act of fraud. However, those same acts are treated differently according to the victim and the enforcement body. For example Button [13] found two public sector organisations in one city dealing with comparable staff frauds. One was prosecuting criminally as well as pursuing other regulatory and civil sanctions; whereas the other, for capability and cultural reasons, was simply terminating their employment. In England and Wales a criminal definition of the offence is set out under the Fraud Act 2006 (among many other fraud related offences). However, unlike the other volume criminal offences the use of criminal definitions and the criminal justice system represents the tip of the iceberg. There are many more routes to pursuing sanctions for fraudulent behaviours through a ‘fraud justice network’ involving the civil law, regulatory sanctions and through private mechanisms, which create their own nomenclature, where the word fraud is often removed [50, 18].Thecreationofsomanynon-criminal alternatives could be linked to the ability of the powerful to influence the response to crimes which may affect them, something which will be returned to in the conclusion. There are also a variety of justice and regulatory routes to dealing with fraud which use other labels, and in many private organisations, frauds are labelled as something else because of the embarrassment they cause. Terms such as ‘fiddling’, ‘breach of contract’, ‘misconduct’, ‘failing to follow procedures’,a‘bad debt’ to name some are frequently used ([28, 55, 2, 52], p. 304). For some the de-labelling of certain criminal behaviours and the use of alternative justice mechanisms is seen as a positive [10]. The deceptive behaviours which fall under fraud are therefore much more elastic in what they can be defined as. As a consequence behaviours, which prima facie for most, 52 M. Button, M. Tunley would be considered as the criminal act of fraud, and if resources and commitment were available could be pursued in the criminal justice system, often become defined as something else and dealt with through different structures. Fraud is therefore a crime, which is often not labelled as such for a variety of reasons. It is worth illustrating this point with a number of examples. In many fraud cases where the offender has resources there is a preference to pursue them in the civil courts to recover some of the losses. Sometimes there is also a realisation a criminal prosecution is going to be costly and risky because the offender has access to top quality legal support where there are many more opportunities in a criminal case, because of the rules of evidence and disclosure, for quality lawyers to exploit weaknesses in a case to halt proceedings, compared to the civil route where such rules are not as extensive and operate to the lower standard of proof of the ‘balance of probablities’, rather than ‘beyond reasonable doubt.’ The civil route is also often used to bring the defendant to the negotiating table to secure a settlement before the court case. Whilst it is also accepted that in certain cases following the civil route, the defendant may also have access to a top of the range legal team, there is less ability because of the rules of evidence and lower standard of proof for the lawyers to exploit, to undermine a case and secure an acquittal for the defendant. Such cases are pursued through the torts of deceit, unjust enrichment and conversion to name some of the most common. They are thus immediately redefined as something other than fraud. Such cases can often involve quite serious misconduct involving substantial sums of money. Consider the case known as ‘Operation Holbein’ in the late noughties in the NHS in the UK. The case centred around an alleged £120 million of fraud by pharmaceutical companies fixing prices. Initially the target of a criminal case brought by the SFO, it collapsed in 2008 after an 8 year investigation. The NHS Counter Fraud Service, however, then pursued them through civil actions and out of court settlements with cases brought in parallel between 2002 and 2007, with around £46 million paid by five pharmaceutical companies in compensation (cited in [17]). Another way frauds often become redefined is through regulatory action. In 2012 the then Financial Services Authority published the decision in relation to a Mr Ravi Sinha a senior executive in a private equity firm. Mr Sinha had in the words of the FSA ‘fraudulently obtained’ just under £1.4 million for ‘himself’ from a company his employing firm had invested in. He did this by issuing invoices, which according the FSA ([31]: 2) were:

… payable to himself, to which Mr Sinha knew that he was not entitled. In order to secure payment of the invoices, Mr Sinha deliberately misled the CEO of Company A by claiming that the payments had been authorised and approved by JCF when in fact no such authorisation or approval had been sought or given. In addition, Mr Sinha dishonestly concealed from JCF the fact that he had received the payments from Company A.

His punishment from the FSA was a financial penalty just short of £3 million and a prohibition order from working in financial services. There was, however, no criminal prosecution and the British tabloid newspaper the Daily Mirror ran with a front page headline, ‘Call this justice? City banker steals £1.4 m… no charge. Shop worker steals £10 k… 9months‘ jail’ [25]. Indeed for many unfamiliar with the way fraud is dealt Explaining fraud deviancy attenuation in the United Kingdom 53 with will find the definition of such behaviour as ‘regulatory’, rather than criminal, most unusual. A trawl through the FSA website, nevertheless, reveals hundreds of comparable cases which have avoided the criminal justice system. It is not just at the regulatory level such behaviours become redefined as something other than criminal fraud. Many employees who engage in fraud and who are discovered by their employers are not dealt with by the criminal justice system. Frequently frauds are very embarrassing to the victim organisation, so they prefer to keep them private. Sometimes it is not possible to secure evidence for a criminal prosecution or there is no interest from overstretched statutory agencies such as the police and CPS. Frequently staff resign or are sacked for gross misconduct for not following procedures [14]. There are also more ubiquitous examples of this type of behaviour. The submission of false or fabricated insurance claims is very common amongst the general public [45]. Thousands of these claims are discovered by insurers every year. However in most of these claims the claimant faces nothing more than the repudiation of their claim. Indeed in one example Button et al. [18] secured access to over 30,000 claims which had been largely defined as ‘withdrawn not plausible’. In another example one of the authors was told by a counter fraud specialist who worked for a credit card company he had been head hunted by another. Upon meeting the prospective employers he secured information on a very low fraud rate, which seemed very impressive. However, when he sought information on the bad debt rates this was very high. He concluded the company was redefining fraud as bad debt and declined the offer.

Immoral phlegmatism

The term ‘moral panic’ is frequently used in criminology and wider circles to describe the response to certain types of deviance, which is a threat to social values, out of proportion to the reality of the problem, culminating in a spiral of over-reaction [56]. It originated in the classic studies of Cohen [20] vis-à-vis mods and rockers and Becker [6] and the use of Marijuana. There have been several other crimes and other problems which have spawned what could be described as moral panics since then. The concept is not without its critics (see [46]), but this paper will argue there is the antithesis and it can be found with most fraud offences, bar the exception of social security or benefits fraud (which will be considered separately later in this paper). We call this ‘Immoral phlegmatism’,whichis a social problem which is large, but for which the response to deal with it is disproportionately low and that lack of an appropriate response can be considered as immoral. It is important to stress the immoral aspect because there are social problems which are large for which there is also a disproportionately low response, but for most people this would not be considered immoral. Speeding could also be seen as another example of major problem, over which much more could be done to tackle it, such as more speed cameras and police officers patrolling. However, for most someone getting away with speeding would not be considered as immoral, compared to fraud where someone getting away with defrauding somebody or an organisation would for most [3, 47]. To develop this immoral aspect further, not tackling fraud with an appropriate level response could be considered immoral for a number of reasons. First, fraud in most cases is stealing money/resources through deception. Second, 54 M. Button, M. Tunley frauds against organisations ultimately impact upon society, frauds against insurers lead to higher premiums and frauds against the government lead to less public services and/or higher taxes. Third, frauds can have a devastating impact upon wider society, the financial crisis since 2007–8 can be attributed in a large part to sub-prime mortgage fraud in the USA [62]. Finally, frauds are more associated with higher status individuals and applying different standards to frauds, compared to other volume crimes usually associated with lower social statuspersonsisunfair. It could be argued, as by many writers on white collar crime that one of the reasons for the lower priority given to fraud, is because of business interests seeking to minimise the risk of possible sharp-practice undertaken by themselves, is restricted to state ‘regulatory’ enforcement, rather than ‘criminal’ enforcement [50]. Such arguments are plausible for crimes and fraud perpetrated by corporate bodies of which there is much evidence [10, 69, 5]. However, corporate bodies are victims of fraud too and lose out substantially in financial losses and the lack of interest of state institutions. There are a number of factors which influence this; the first we shall consider is the measurement of the problem.

Measuring fraud

The measurement of most volume crimes is relatively un-contentious. The weaknesses with the recorded crime statistics are well known with the attrition from non-reporting and non-recording well documented [9, 74, 21, 48, 53]. Whereas crime surveys, such as the English and Wales crime survey are seen as the gold standard—although even these have weaknesses. For instance, the survey excludes adult victims not living in ‘normal households’ ([65]: 8) and that, similar to many government statistical outputs, these data are collected principally to serve the political agenda of ministers ([67]: 257; [32]). One way in which this survey could stem the fraud attenuation rate and offer a more accurate picture of this crime is to collect more data relating to fraudulent scams perpetrated against members of the public. Until this happens, it is not surprising that if fraud is frequently defined as a non-crime that the recorded crime statistics would capture with even less accuracy the extent of the problem. However, added to this are some further attenuating factors. First of all many victims of fraud do not know they are victims, or elect not to report the incident ([33]: 7). Fraud is not like a burglary where there is a scene of crime, evidence of a break in and missing property. Many victims do not know they have been victimised for a very long time ([41]: 268). For example, many people fall victim to share sale scams. They buy investments which are essentially worthless. Unless the fraudster is caught or they seek to withdraw their investment they will be sitting on what they think is valuable, but in reality they have been defrauded. In organisations invoice frauds occur and until they are discovered lie on the company books as legitimate payments. Second, many fraud victims who know they are victims are reluctant to report it [16]. Third, as with other crimes many frauds which are reported are not recorded. For fraud offences there is also a much higher rate of no-criming at Explaining fraud deviancy attenuation in the United Kingdom 55 triage stage with a 12.5 % rate, compared to 3.1 % for other offences [42]. That said, the creation of the national fraud reporting centre Action Fraud, whilst removing localised reporting does appear to be having a positive impact on fraud reporting, there being an 8 % increase in reported fraud year ending June 2014 ([60], p.8). Should this trend continue, it suggests that reported crime data may offer a more accurate picture of the extent of the problem, and may put pressure on government, as there will be a public expectation for them to take action. General commentators on crime might then argue, but the crime surveys would then pick up a more accurate measure of the extent of fraud, at least of those willing to volunteer they have been victim? However, for individual victims up until 2011–12 there has been only one question asked in the survey vis-à-vis fraud, which related to fraudulent use of a plastic card in the previous 12 months. Only in 2011–12 have wider questions been utilised in the England WalesCrimeSurveywhichgobeyondthisinrelationtomassmarketingfraud. It is a positive step forward that this crime is at last on the agenda of the crime survey, but there are still weaknesses. For example, the survey fails to keep up to date with evolving technological changes that facilitate new opportunities for fraud it also did not offer a confidential survey as is done for domestic violence, which given potential embarrassment may have hindered honest an- swers by participants ([54]: 225; [41]: 267). There is also evidence from some studies and other countries which have been more pro-active in seeking to gauge individual victimisation of the significant extent of the problem. Karstedt and Farrall [47] in England and Wales, Germany and Eastern Germany found 80 % of those surveyed had been victims of ‘crimes of everyday life’ at some time, most of which could be considered frauds in their broader sense. Growing sophistication in prevalence surveys of crime conducted on a regular basis has emerged in several industrial nations. Unfortunately their coverage of fraud is generally weak to non-existent. Some countries have also commissioned one off pieces of research. The evidence shows very large numbers of people in the countries concerned who have fallen victims to frauds. In Australia 6.7 % of the population over 15 had been the victim of a personal fraud in the previous 12 months [4]. In the UK in 2006, 48 % admitted having been targeted with a scam and 8 % had been victims [61]. Research commissioned for the National Fraud Authority’s Annual Fraud Indicator in 2012 found 8.8 % of those surveyed had been victims of identity fraud in previous 12 months [59]. In the USA in 2005 13.5 % of adults were victims of a consumer fraud, in 2010 24 % of US households had one person who was the victim of fraud related crime and at least 7 % of households having at least one householder the victims of identity fraud ([30] and b; [44, 73]). The other major problem with crime surveys is that they do not cover organisations ([8]: 7). In England and Wales the Home Office commercial victimisation survey has sought to partly fill this gap. However, it only covers a few sectors and prior to the 2012 study the last undertaken was in 2002 [63]. The 2012 survey found that 5 % of manufacturing, 13 % of wholesale and retail, 7 % of transportation and storage and 10 % of accommodation and food 56 M. Button, M. Tunley premises had experienced a fraud in the past 12 months [43]. To this must be added the National Fraud Authority’s Annual Fraud Indicator which uses a basket of measures to estimate the costs of fraud to UK plc. The methodology has changed each year, so comparison is difficult. However, the findings from the latest indicator show a £52 billion problem. It is also interesting to note that this will be the last fraud indicator as the NFA is to be abolished and this indicator is one the functions which has not been re-distributed. This provides further evidence of the lack of interest in measuring the true scale of the problem from one of the most important quarters, the Government. In organisations too there is evidence that fraud is a much bigger problem than many consider when appropriate measures are undertaken. To really find out what the extent of fraud is within an organisation a fraud loss measurement (FLM) exercise needs to be conducted. FLM is an assessment of a statistically valid sample of transactions within a given population to determine whether they are fraudulent, an error or correct (clear standards are set to define fraud and error and this usually involves the civil definition of fraud). It is important to also note the thorough investigations which usually take place along with FLM on the sample transactions, called Payment Recapture Audits, which often involve (cited in [40]: 19):

investigations in which specialized private sector auditors use cutting-edge technology and tools to scrutinize government payments and then find and reclaim taxpayer funds made in error or gained through fraud (emphasis added).

These investigations go beyond a normal assessment and there is also an expectation to recover losses from the payments made in fraud and error. They are therefore more than an academic exercise to gauge the size of the problem. From this assessment it is then possible to accurately estimate to a given statistical level of confidence and tolerance range the true extent of fraud and error. This is usually presented as a Fraud Frequency Rate (FFR), which is the number of transactions which are fraudulent or errors and the Fraud Loss Rate (FLR), which is monetary value of losses [12, 15, 35]. In the USA fraud and error are combined under ‘improper payments’. FLM has largely been used in large public sector organisations relating to social security payments, taxation, contractor payments and for procurement and insurance frauds in the private sector. Indeed in the USA some Federal bodies are required to undertake such measurement under the Improper Payments Information Act 2002 and the Improper Payment Elimination and Recovery Act 2012 [40, 71]. Of those FLM exercises in the public domain, or which came to the attention of Gee et al. [35] 203 exercises have been identified producing an average fraud and errorlossof5.67%. It is rare, however, for organisations to conduct these types of measurement exercises. Indeed Tunley [70] found measurement of fraud in organisations, even with simple detected measures is not common (See Table 1). The research involved the issue of an online questionnaire to organisations representing the public, private and charitable sectors. Of those that responded to the survey question, one third of organisations did not measure fraud. Of those that did, Explaining fraud deviancy attenuation in the United Kingdom 57

Table 1 How does your organisation measure fraud?

Public Private VC Totals (n=)%

Received incidents of fraud (detected) by number of cases 51 42 11 104 34 Received incidents of fraud (detected) by total monetary 45 44 7 96 31 value of losses Fraud loss measurement exercise by number of suspected cases 21 21 5 47 15 Fraud loss measurement exercise by total monetary value 19 20 3 42 14 of suspected losses Other 9 6 1 16 5 Totals 145 133 27 305

Source: Tunley [70] there was a focus upon detected methods, with less than a third using FLM type approaches. Tunley [70] also uncovered some interesting reasons why organisations did not measure fraud also proved illuminating for the concept of immoral phlegmatism:

BSenior management and/or elected members are ambivalent towards fraud and corruption.^

Bno interest!^

BOther priorities are considered more important^

Bthe focus tends to be on measuring fraud in organisations we regulate rather than our own.^

Bno fraud in the organisation^

BAlthough the organization undertakes fraud work for other organizations there is little concern that fraud may be occurring within.^

Bbecause we are a religious charity there is no fraud.^

Bgiven the nature of my organisation, significant fraud is unlikely. Low level fraud is inevitable but we can live with it.^

BIs seen as a low priority because the level of fraud is perceived to be low and it is so difficult to gain an accurate measurement.^

Given there is evidence to suggest fraud levels in many areas can be around 5 % the lack of interest in most organisations in estimating the size of the problem can be seen as another illustration of immoral phlegmatism [1, 15]. 58 M. Button, M. Tunley

Approach and resources dedicated to fraud

The next aspect of attenuation is the resources given to counter fraud. One can see if it has already been de-labelled as crime and measures are in place which don’t capture the true size of the problem, therefore resources are not going to be of an appropriate size. The limited and declining resources of the police can be used to illustrate this. During the mid 1980s it was estimated there were about 600 fraud squad officers [49]. The 2006 Fraud Review identified 416 police officers in fraud squads throughout the country [33]. More recent research has suggested this has declined further [34]. This decline must also be set against a period of substantial increase in police numbers generally, further illustrating the disinterest of the police in fraud [7]. Given most police forces since 2010 have been experiencing substantial cuts in resources in the current climate (20 %), that economic crime departments are not protected and are generally of low priority, it would be reasonable to assume that the 416 officers have declined further. The Fraud Review Team [33] uncovered lots of examples on the inability of the police to deal with fraud. The ABI submission to the 2006 Fraud Review highlighted significant police disinterest in major organised crash-for-cash fraud. One case illustrated in the submission involved 400+ staged accidents involving organised criminals, who were using the money to fund drug-trafficking, prostitution and gun running. The police would only investigate if the insurers funded it. As a result this case did not go any further (Association of British Insurers n.d. cited in The Fraud Review Team 2006). Other cases like this were also cited. Indeed one of the conclusions in this submission was:

Most police forces do not have the resources to deal with fraud effectively. There is a shortage of experienced fraud officers, and those few with the right experience are frequently transferred to other duties. Even where dedicated financial crime units exist, their main role is to support other officers on technical issues (such as tracing money and asset recovery) arising from more Bconventional^ crimes (p 5).

One of the most damning discoveries was a letter from a Chief Constable to a bank concerning a £100,000 employee fraud ([33]: 69):

The investigation of fraud is extremely expensive in terms of hours spent obtaining statements and preparing a prosecution case. The Constabulary is required under the Crime and Disorder Act to produce a crime reduction strategy. Our strategy identifies priority areas and police resources are directed to those priority areas. Fraud is not one of them.

It is worth illustrating the lack of resources dedicated to fraud in general by comparing general fraud to benefits fraud. Several academics have noted the different way social security fraud is dealt with compared to other offences [23, 24, 26]. Politicians, the media and the public get worked up over social security fraud [37, 36, 22, 39, 72]. It is the one type of fraud for which there is widespread disapproval with aspirations and initiatives to do something about it. The Government has also been willing to invest in additional resources in the counter fraud infra-structure for this problem, funding an additional 200 officers [27]atatimewhere most other policing personnel are been cut. Indeed there are around 3000–3300 counter Explaining fraud deviancy attenuation in the United Kingdom 59 fraud staff employed by the Department for Work and Pensions to deal with this problem. If those 3000–3300 staff were compared to the 43 police forces in England and Wales it would be bigger than over a dozen police forces. It is interesting to then juxtapose these figures against the size of the problem, which for benefits fraud is also measured very accurately using FLM type techniques. Total identified and hidden fraud amount to £52 billion, with just under £21 billion in the public sector. In that amount benefits fraud amounts to £1.2 billion, with a further £670 million tax credits fraud. By comparison tax fraud is estimated as a £14 billion problem [59](seeFig.1). It could be suggested that benefit fraud is low because resources are devoted to investigating it, and should these be directed elsewhere, there is a likelihood that the figures would increase. However, it important to emphasise that devoting this amount of resources to benefit fraud is a political choice by government that this is the fraud they are going to squeeze. It could also be suggested that this level of resource further evidences the Marxist view that it is a lower class crime punished by the powerful [23, 24]. In further support of this assertion, the recent observations of Wood ([78], p. 36) that in addition to manipulating benefit statistics ‘for media consumption-encouraging public hostility towards benefit scroungers’, they even go so far as to use official government data bulletins, such as the one on how income tax was spent, ‘to perpetuate the same myth’. Adapted from National Fraud Authority [59]

Media interest

The media and sensational reporting are central to moral panics and for benefits fraud this is very important to the hype. The media regularly focus on benefit cheats with ‘luxurious lifestyles’ funded by defrauding the system [37, 36]. The tabloid newspaper The Sun has been very pro-active in reporting this problem. In May 2013 in launched a campaign to ‘beat the cheats’ encouraging readers to contact them with suspected benefit cheats. Their campaign has yielded many spectacular cases which have been published in the papers in great detail including a woman working as a pole dancer while claiming incapacity benefit for depression, a man claiming disability allowance while riding speedway motorbikes and another running a window-cleaning business while claiming benefits related to an inability to go outside, to name some of the more spectacular. It is not just the Sun which campaigns on this issue, all the other tabloid press cover these issues as do the ‘quality’ media outlets too, in part. BBC News, for example, regularly covers social security fraud cases and the topic of benefit fraud also receives regular coverage on television, such as ‘Saints and Scroungers’ [38]. This can be contrasted to general fraud where there is much less media interest. Frauds do get reported in the media, but they tend to focus upon staff frauds with some additional salacious factor, such as the money was used for gambling, prostitutes etc. or someone famous is linked to the story. This should be contrasted with the specialist media which Levi [51] has noted does tend to cover fraud, but in a different way.

Discussion and conclusion

The model below in Fig. 2 revisits deviancy attenuation to illustrate the discussion so far. If we commence at’1o’clock’, the process begins with the narrowing of behaviours defined as the crime of fraud, added to that is limited measurement, which leads to 60 M. Button, M. Tunley

Fig. 1 The cost of benefits fraud in The UK in comparison to others statistics showing fraud is not a major problem, which leads to a lower priority and resources dedicated to the problem, which means detections and sanctions are lower, which then reinforces to decision-makers fraud is not a problem. The exception to this benefits/social security fraud, which as the complete opposite, further illustrates deviancy attention and immoral phlegmatism for general frauds.

Fig. 2 Deviancy attenuation Explaining fraud deviancy attenuation in the United Kingdom 61

The process is underpinned by an immoral phlegmatism amongst the key decision- makers in Government, law enforcement and organisations which attenuates the problem. The limited interest which has examined white collar crimes and why they are treated differently has focused upon the links of the powerful. As Pontell et al. [62]notewithregard to the lack of criminal prosecutions relating to the fraud which caused the 2008 financial crash, ‘Those holding political power are generally reluctant to define the acts of close associates and beneficiaries as deviant or criminal.’ They also note that many of those in political power came from such positions previously or are likely to be heading to them when leaving office. Such class based explanations are plausible for the frauds which are committed by senior managers on their own corporations or by corporations. Indeed the processes that have been set out in this paper can be seen as the means by which some in positions of power operate to attenuate the problem. They do not, however, account for many other types of fraud committed by middle managers, low level employees and the public. Setting aside social security fraud the response to many of these frauds—although more concerted for those at the very top—is still not commensurate to the size and nature of the problem. It is here where the processes outlined in the paper and the under-pinning phlegmatism combine to attenuate. It is also perhaps also worth noting that ultimately most fraud (bar benefits fraud) has a much more ambiguous position compared to other volume crimes and this permeates all sections of society. Individuals exaggerating an insurance claim, under-declaring on a tax return, not paying VAT by paying cash, exaggerating travel expenses, miss-representing information for a job or a mortgage application or banks selling products which are in reality useless or organisations submitting false information to regulators; are just some of the many fraudulent behaviours which regularly occur and which significant numbers regard their seriousness as a criminal act ambiguously. Thus while the connections and attitudes of the most powerful are important for influencing the attenuating processes for some frauds, it must not be forgotten that there are also attitudes and beliefs more widespread in the population which influence the attenuating processes. This paper has introduced the process of de-labelling, which leads to frauds to not only being defined as something not criminal, but also called other names. The paper has also shown that there is an immoral phlegmatism dominant amongst those in positions of power at a national and organisational level. It has shown that fraud is not accurately measured and that the resources dedicated to dealing with it are not commensurate with the size of the problem. There is also less media interest in most frauds, particularly when compared to benefits fraud. All of these processes combine to attenuate the problem of fraud, leading to circle of attenuation.

Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

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The classlessness state of criminology and why criminology without class is rather meaningless

Michael J. Lynch

Published online: 7 March 2015 # Springer Science+Business Media Dordrecht 2015

Abstract Criminology has returned to a stage of development where class is no longer seen as a relevant theoretical or empirical concern. This state of classless criminology reflects the decline in radical scholarship over the past two decades and the absence of radical/Marxist critiques of criminology. Despite the neglect of class by criminologists, class remains an important construct for understanding the main issues of concern within criminology: crime, the construction of law, and justice. This article reviews the neglect of class analysis in contemporary criminology, and draws examples of the ways in which class remains an important consideration in the contemporary world where the world economy of capitalism dominates economic, social and political relations glob- ally. In reviewing the neglect of class, examples are provided of contemporary areas of criminological research where class based theory and empirical work could alter what we know about crime. While orthodox criminology has long neglected class, new forms of critical criminology that emerged since 1990 have also promoted the neglect of class analysis.

BAll history has been a history of class struggles between dominated classes at various stages of social development.^ Fredrick Engels.

The purpose of this article is to examine the neglect of class-based theory and research within contemporary criminology, and to point out the ways in which the neglect of class has re-emerged within contemporary criminology along with the decline in materialist analyses of crime, law and justice. The radical tradition which once offered an important class-based critique of criminology from the late 1960s through the late 1980s and did much to insure that orthodox criminology paid attention to class (see [57]) has now faded and has been replaced by cultural and postmodern critical critiques in which class is largely ignored [53]. This decline in radical class

M. J. Lynch (*) Department of Criminology, Associated Faculty, The Patel School of Global Sustainability, University of South Florida, SOC107, Tampa, FL 33620-8100, USA e-mail: [email protected] 66 M.J. Lynch analysis has created an intellectual environment within criminology where orthodox criminology and the new critical criminologies that emerged since the early 1990s can and have ignored class. Given this focus, this article is not a review of the literature on the ways in which radical criminologists have addressed class and crime, or other related issues such as the intersection of class, race and gender. Those topics, though important, must be the subject of another work where issues beyond the neglect of class can be addressed in more adequate fashion. Rather, the focus here is on the ways in which contemporary criminologists ignore class as relevant to explanations of crime, law and justice and how the neglect of class generates a perspective on criminology that lacks attention to a major factor that affects the making of crime, law and justice. With the exception of a few radical criminologists who have kept the discussion of class alive, contemporary criminology has mostly done away with class, failing to appreciate the impact of class structure on crime, law and justice, pretending that class does not matter and that what matters more than the structural nature of contemporary class society, its composition and its influence over people is the personal attributes of the individual, their preferences, their personality, and their interpersonal bonds, as if these were not, in the first place, a consequence of their class location and the class structure of society (see discussion below). This latter issue is addresses in this discussion with respect to specific contemporary criminological research which illustrates how criminologists omit class based approaches other disciplines embrace and apply to issues related to those that criminologists examine. Few things permeate society as widely as class structure, and hence the neglect of class analysis with respect to crime, law and justice points toward a major deficiency in criminological theory and research. Despite its relevance to crime, law and justice, contemporary criminologists rarely make reference to social class unless they are continuing the tradition of class analysis associated with radical criminology. The neglect of the structuring influences of class allows the contemporary criminologist to avoid theories of class power and promotes decontextualized analyses of crime, law and justice. This leads criminologists to overlook how the production of crime in its various manifestations as an expression of class structure within a given stage of human history. To posit that crime is a product of a given stage of history does not mean that the behavior of the criminal, which arises from the structure of society, is a revolutionary act designed by the offender to undermine the structure of society as cultural criminology asserts. Rather, it means that the production of crime reflects the inherent contradictions already contained in and produced by the very nature of class societies, an issue examined later in this discussion. Orthodox criminologists in particular cannot appreciate this possibility given their neglect of class analysis, and their misinterpretation of class and over-generalization of the term class as if that term has no theoretical attachment or content. In the present work, class is specifically addressed from a radical, Marxist of materialist frame of reference in which class structure is a central aspect of theoretical analysis, and in which class has a particular meaning and definition. Today, the majority of contemporary criminologist, regardless of orientation, tend to reject materialist explanations concerning the relevance of class, and fail to take notice of the spread and domination of class relations throughout society (for exceptions see below). While criminologists often undertake analyses of crime, law and justice without referring to class-based theory, class still matters in the real-world production of crime, law and justice. To believe or to think otherwise and to avoid any discussion of class with respect to crime, law and justice is to overlook the profound ways in which class influences crime, The classless state of criminology 67 law and justice, and how a materialist theory of class produces a more well developed and consistent analysis of crime, law and justice and the way crime, law and justice intersect around class structure. Despite the lessons on class offered by radical criminologists from the late 1960s onward, contemporary criminological literature is now regularly written without any reference to class, class analysis, class structures and class power. Ironically, perhaps one of the most comprehensive statements made on class and crime in recent years is found in Anthony Walsh’s[102] book, Social Class and Crime: A Biosocial Approach. For the most part, however, contemporary criminology has swept away class as if there were no such thing as class and class relations in the modern world; as if class were not a precursor to the manifest relations such as social bonds criminologists invent and take as real expressions of the relations that generate crime. Given the widespread importance of class relations across all the issues studied by criminologists, this Bclass cleansing^ of the criminological literature illustrates the extensive immaturity of the criminological literature which has become ideological in its rejection of class analysis. While class was once an important issue within criminology [57], today, class analysis withers away, not because it is unimportant, but because criminologists do not possess the analytic frame of reference necessary to understand class and do not possess the intellectual imagination to see the world as it is instead of how they wish or believe it to be, an issue examined further below. Despite this neglect of class, class has been shown to have important implications for the analysis of crime, law and justice across the nations of the world [73]. Across all nations, the poor are the primary subjects of criminal control and comprise the majority of those arrested, prosecuted and incarcerated for crime. In contrast, while criminologists focus attention on the crimes of the poor while neglecting class, they also overlook the crimes of the powerful and their class connection to the kinds of crimes they commit the kinds of laws that exist to control those crimes, and the forms of injustice the crimes of the powerful produce. These are irrefutable facts about class and crime. In the modern world capitalist economy that unites the nations of the world, drives their relations, and structures class relations within and across nations, there is no nation that has been studied in which class is irrelevant, in fact, in which class is not the primary relation structuring crime, law and justice.1 Though largely ignored by criminologists,

1 To be sure, criminologists have also classed attention to the importance of race, ethnicity and gender in the construction of crime, law and justice, but it is beyond the scope of the present study to address this issue. To be sure, it can be shown that ethnicity, race and gender also play a role in the construction of crime law and justice, and the current discussion of class is not a critique of race, gendered or ethnic analyses. Studies that refer to race, ethnicity and gender remain important to criminological discussions of crime, law and justice, but again, are well beyond the scope of the present analysis of class and criminology. Indeed, one would find that generally, research that ignores class also has difficulty addressing race, ethnicity and gender, but such a critique goes well beyond the scope of an analysis of the neglect of class. Despite their relevance to discussions of crime, law and justice, race, ethnic and gender structures are not uniform across nations while class structures are uniform especially from a theoretical perspective in which the analysis of class is derived from a theory of class and capitalism. For example, while race or ethnicity influences the construction of crime, across nations it is not the same racial or ethnic groups but racial and ethnic groups of Bof concern^ in different national contexts that are economically marginalized within the historical context of a given nation at a given stage of historical development that draw attention. In this sense, class supersedes other factors as the most obvious relational element presupposed by the study of crime, law and justice. To be sure, Marxist analysis has addressed the intersection of race, class and gender (see, for example, the Special Issue of Race, Gender & Class, volume 8, number 2, 2001; for additional discussions see: [6, 91, 105]), and has done so with respect to criminological theory as well ([64–67]). 68 M.J. Lynch there is a significant literature on class analysis and its continued relevance across nations of the world in disciplines other than criminology [14, 47, 106]. That criminologists ignore discussions of class found in other literatures is not a critique of the relevance of class based analysis, but rather is a critique of criminologists’ ability to sensibly include the kinds of class based discussions found in other literatures to address criminological issues that overlap with class concerns other disciplines have explored. In the sections that follow the relevance of class within criminology and the importance of its loss is examined. Here, we do not intend to review the radical literature that pays attention to class-based analysis, but rather point to the decline in studies of class and crime and illustrate the various ways in which criminology neglects class, though some discussion of how class has been used in criminology by radical criminologists is also presented. Rather than focus on the few radical exceptions that take up the study of class and crime, we concentrate on the general tendency for criminology to neglect class based analysis, and argue that focusing on more radical exceptions to this tendency that acknowledge the importance of class simply hides the more general neglect of class within criminology from view. In part, the argument that follows grieves the loss of class analysis, and one of the assumptions of the current argument is that without class-based analysis one cannot understand crime, law and justice. Indeed, the death of class analysis in criminology is the death of criminology itself, and a classless criminology has little to say about crime, law and justice in the contemporary world. A criminology devoid of class analysis becomes little more than ideological discourse concerning the causes of crime, law and justice criminologists are willing to recognize. A classless criminology is about the epiphenomenal things (i.e., the non-class concepts) that the criminologist invents to study crime, law and justice, and absent a connection to class, criminology cannot move beyond the study of mundane relations that appear relevant to crime only through the exclusion of class. To illuminate this argument, this article presents materials that illustrate the relevance of class analysis. We begin with the general observation that class is a relevant issue in the contemporary world, and then provide examples from the criminological literature in which class still matters, at least for radical criminologists. From there, we consider the general tendency among social scientist and criminologists to neglect class analysis and provide several relevant examples of how this neglect of class occurs within contemporary criminology despite the fact that the same issues are examined in other disciplines using class relevant explanations. The relevance of class analysis is reasserted using examples from Mills’s [69] analysis of the differences between traditional social science research and research that takes the propositions on class found in Marx’s work seriously. We then turn to address the minimal efforts criminologists make to address class based analysis and theory empirically, and how deficits in class based theory impacts and renders criminological efforts to control for class in empirical analysis an unsuitable response. Following that discussion and to illustrate that the neglect of class-based analysis is not confined to orthodox criminology, we turn to an analysis of the general absence of class in contemporary critical criminological research, focusing particular attention on cultural criminology to address its claims that it is sensitive to a need for class analysis. The classless state of criminology 69

Background: the continuing relevance of class analysis

This section addresses the relevance of class analysis for criminology. To summarize that view, there is no area of criminological research that cannot benefit from the inclusion of class analysis or in which class is unimportant. As noted above, there is no factor that is as persistently related to crime, law and justice across nations in the modern capitalism world system as class. Across the nations of the world, it is the poor who are arrested, prosecuted and punished most often for crime; it is the poor who, more so than other groups, are the subject of criminal legislation; it is the poor who receive the harshest punishments. These are well established criminological facts. Sometimes, these facts, which we know to be true because of their persistence across time and place, are hidden in empirical studies by the way class is measured or by the nature of the population under study. We take up these issues more specifically later in this work to more fully elaborate on this observation. At this juncture of the discussion, the main point is that in leaving out a materialist class-based theory and appropriate class related measures and class-linked analysis, the research criminologists produce are abstractions – meaning that they are artificially created depictions of crime, law and justice that remove the influence of class by failing to specifically address class and class relations. To illustrate this general argument, the material that follows demonstrates how various contemporary approaches to crime, law and justice ignore class, and how related research in other disciplines draws attention to class as relevant to perspectives criminologists have constructed about crime, law and justice. To begin to understand the widespread neglect of class within contemporary criminology, we begin with a discussion of one of the prominent contemporary criminological approaches, life course research. Life course research rarely examines class. How does one, for example, think of the life course of the individual or their relationship to crime without mentioning the effects of class on the life course? (for related critique see, [56, 57, 82]). In contrast to the criminological view of the classless life course, research outside of criminology indicates the importance of class in shaping the life course. These life course-class connections are illustrated in non-criminological literature in various ways. Meier and Allen [63], for example, show that an individual’s social class has life course effects that alter the kinds of intimate relationships people develop throughout their life courses and the bonds they form. While criminologists have focused a great deal of attention on the effect of bonds on crime and conformity, they rarely examine how social class affects the development of social bonds or how the life course influences and alters or reinforces bonding over the span of the life course, preferring instead to see bonding as an individual level phenomena isolated from class influences on the life course. This neglect of the connection between class and the life course occurs because criminologists treat the life course as an individual level phenomenon, and fail to appreciate the ways in which life course is a structured outcome associated with class and the class structure of societies. That is to say, the life course is not simply so many separate pathways followed by a variety of different individuals, but rather consists of groups of similar pathways that converge around social class. Outside of criminology, researchers have also noted the importance of class to human development, which has important life course implication. Human development is an important aspect of the life course, and human development, life course and class 70 M.J. Lynch all intersect to influence the path people travel throughout their social existence. In the late 1970s, for example, researchers outside of criminology had already suggested that it is difficult to comprehend the concept of human development and life course development absent reference to class related impacts [37]. As Havighurst [37]noted more than 35 years ago, class demonstrates the most powerful and pervasive influence on human social and cognitive development among the array of factors that had been examined. In that view, it was important to take class into account since it had an intergenerational effect that precedes human social and cognitive development of new generations or a structuring influence on an individual’slifecoursethatprecedestheir existence. Extending that argument, other research has demonstrated that class mem- bership impacts the life course of an individual even before they are born by influencing parents’ access to prenatal care, and altering the life course of the fetus even before it leaves the womb [9, 31, 32]. That particular finding concerning class and the life course is not recent news, and can be traced as far back as 1953 in medical literature [107], indicating that class and the life course are important even before the individual possess any potential to shape the path of their life course, and furthermore, that the shape of the individual’s life course has already been impacted by the intergenerational connection of the life course of parents and children in relation to class. Thus, some 60 years of research has drawn attention to the relevance of the effect of class and is intergenerational impact on development and the life course, an argument that is absent from the criminological literature on the life course (for further discussion from a health and epidemiological perspective see: [46]). Life course development and class are related through other aspects of social development within the confines of class societies. For instance, research indicates a connections between social class and cognitive development [17, 23, 74, 88]. That is to say, social class effects precede cognitive development and shape cognitive development of the next generation. That is an important finding since cognitive development has important impacts on the life course and can alter the life course of children [9, 62]. Indeed, as Lende [48] argues, the relationship between social class and neurodevelopment is now so widely accepted in neuroscience research that this relationship is referred to informally as the Bpoverty poisons the brain^ argument. Supporting the contention that class impacts brain function, D’angiulli et al. [22]found that ERP (event related potential) and EEG (electroencephalograhy) activity differed across students from different social classes and reflected genuine cognitive difference across social class groups, confirming prior research findings on this topic (see also, [83]). Yet, despite the efforts of medical researchers over the past 60 years to illustrate how class, development and life course intersect, criminologists continue to neglect these long-established findings from the medical literature linking class, the life course and brain development, and instead draw attention not to the social class implications of this research, but to the outcomes of the effects of social class (ie., development differences) without addressing the role social class plays in that process. These same class-life course relations extend to psychological studies and assumptions which draw attention to the importance of social class in structuring personality and the psychological make- up of the individual. Early in the life course before any personality characteristics can be said to impact or influence the life course of an individual, psychologists argue that social class plays a role in shaping personality by establishing the parameters of the structural context in which an individual will develop The classless state of criminology 71 and form their basic personality structure [45, 99]. These class-related life course factors include exposure to environmental toxins and other structural factors associated with parental class that can impact behavior and health and which shape cognitive abilities [5] and mental health status [104]. Some of these class effects may be life-long, and with respect to the kinds of causal processes criminologist study, these class impacts precede many of the life course indicators criminologists use temporally. This non-criminological literature makes it clear that social class precedes the life course, development, the formation of personality and so forth [86]. Yet, criminologists rarely discuss the life course, development or personality in relation to social class impacts and their intergenerational nature. Indeed, outside of the criminological literature, social class differences are interpreted as having many life long, life course impacts, some of which have important influence because they influence access to and attitudes toward the use of mental health services, another finding long known to researchers in disciplines outside of criminology (e.g., [51]). Recognizing this fact, medical research related to life course processes, unlike criminological research, has moved toward theorizing about social class effects [52], and a number of medical studies indicate the class effect of early life course adversity on latter life mental health and even physical performance ([20, 72, 75, 87]; for a theoretical description see, [71]). In literatures from other disciplines it is also clear that relationships such as peer associations that criminologists hold out as important for explaining crime and which also structure the life course have class embedded empirical class-based referents that precede the intervening variables criminologists are more likely to address [81]. Recent studies also indicate a relationship between social class and moral judgments [18], an issue criminologists treat as a personality concern or one tied to peer associations or rational choice decision making. Theoretically, this means that the explanations of crime criminologists pose are missing an important step: the identification of the prior structural relationship s and structures that shape peer associations (and decision making). Moreover, there is a large literature on intergenerational mobility and class – too large to summarize here and to make sense of the findings and methodological differences across studies. In brief, these studies indicate that not only is life course intergenerational, but that as an intergenerational force it is best explained by structural forces such as class rather than by individual traits (e.g., [7, 8, 19]; on mental health disorders, class and intergenerational mobility see: [95]; for an example relevant to crime see, [90]). Extant research also identifies social class differences in the school-to-work life course transition [92]. In sum, above the various ways in which class impacts the life course were reviewed. Yet, in the criminological literature on the life course and crime, social class is largely ignored. Thus, contrary to the focus other disciplines give to class effects on life course, orthodox criminology ignores how social class structures the life course and can produce crime (for an additional critique see, [56]). Importantly, this lack of class- based theory and analysis of the life course has not attracted any significant criticism from critical criminology (for an exception see, [56]). Thus, despite the limitations of criminological life course research with respect to class influences, critical criminologists hardly seem to notice this omission and it’s persistence in orthodox criminology. This inattention to class analysis and class based criticism has allowed contemporary orthodox theory to continue to ignore the relevance and importance of the class-life course association. 72 M.J. Lynch

This neglect of class relationships and structures infiltrates other contemporary criminological areas of research. An example related to life course analysis is trajectory research, where trajectories of crime are created without taking into account that those trajectories may be unique for different social classes, an issue recognized in medical research on health trajectories [103]. Another area of research in which the effects of social class is often ignored, especially theoretically, is in the study of the relationship between individual personality characteristics and crime. Research outside of criminology, for example, suggests that social class influences personality [29]. In the criminological literature, the Eysencks, who significantly influenced the analysis of crime and personality, discovered that class and personality were correlated [25]. This is an important observation because an individual’s social class standing precedes personality temporally, and it is therefore important to consider that the personality and psychological characteristics people develop may indeed reflect their class location. In the criminological literature there is little controversy on this class-personality hypothesis which is generally rejected as irrelevant to the study of crime. Thus, despite the link drawn between personality and social class in other disciplines, criminologists appear to be unaware of this approach to social structure and personality despite its long term existence in other disciplines [16, 41]. To understand this widespread neglect of class in criminology, it is important to recognize that the neglect of class is not an isolated event – meaning that this is not a condition found only in criminology. To be sure, criminology often mimics other disciplines, and many other social science disciplines reflect the same neglect of class analysis prevalent within criminology. This is an issue to which we shall return shortly. Before doing so, we examine some relevant literature written from the radical perspective that illustrates the importance of class.

The relevance of class to criminology

In contrast to orthodox criminology, those who follow the general assumptions of radical criminology pay attention to class and its effects [57]. Radical criminology, much more prevalent from the late 1960s through the 1980s, has now lost much of its influence in the criminological literature [53]. It is not our intention to review in its entirety this literature since the goal of this work is to reflect upon the ways which criminology ignores class in the contemporary era, and a useful review of the ways in which radical criminologists address class would require significant space (e.g., [57]). Within contemporary criminology more generally, however, research addressing class issues is rare. Moreover, since the early 1990s with the turn to postmodernism and then cultural criminology, class analysis has become less prevalent within the critical criminological literature [53]. Historically, in addition to radical criminology, the focus on class has been a theme in some of the literature on white collar, corporate, state and environmental crime, though here, too, it is the radical varies of such research that makes the link to class most evident. To be sure, white collar, corporate, state and environmental crime research ought to reflect some discussion of class since class is one of the defining characteristics of these kinds of crimes – they are the domain of the economically powerful. Still, research on the crimes of the powerful by orthodox criminologists The classless state of criminology 73 rarely makes any direct reference to class-based analytic frames of reference when examining these kinds of crimes (for an exception see, [84]). Illustrating the ways in which radical (as opposed to critical) criminology addresses class concerns, the Journal of Crime and Justice recently (2013) produced a special issue on the political economy of crime which also speaks to the relevance of class analysis within criminology. In addition to Lynch’s[53] review of the history of and trends in political economic and class analysis over the past 25 years, that issue contains work central to the proposition that social class and political economy play an important role in shaping various aspects of crime, law and justice [4, 12, 44, 54, 68, 93]. Other recent works by radical criminologists also speak to the continued relevance of class-based analysis, such as Gregg Barak’s[3] Theft of a Nation which examines the contemporary problems presented by financial crimes (for commentary see [10, 55]). Yet, despite the inherent claims in the radical criminological literature that link class, crime and justice together, few critically oriented studies on class, crime and justice are found in the criminological literature in recent years. For example, if one performs a Bgoogle scholar^ search for the words Bcrime^, Bsocial class^,Bclass^ and BSES^ from 2008 through 2013, only 30 studies are returned were a combination of these terms are mentioned in the title or abstract. Of those 30 items, only eight are clearly associated with radical or critical criminological approaches on the class-crime nexus, at least with respect to article titles and abstracts, and most of those are radical rather than critical. Thus, while one would expect that radical/critical criminologists would produce most of the literature on class, crime and justice, this is not at all the case with respect to article titles and abstracts. This lack of a significant number of articles on class, crime and justice indicates the extent to which discussions of class, crime and justice have also been displaced from the critical criminological literature [53]. To be sure, such a search may not be returning all the work that mentions class, crime and justice, nor all works in which class is a subtheme in the analysis. Nevertheless, even among critical criminologists, there is much less emphasis on class than there once was (e.g., see, [57]). This neglect of class is the subject of the section that follows.

The neglect and importance of social class

In The Marxist, C. Wright Mills ([69]:12) wrote the following concerning the importance of Marxist and class-based analysis for the social sciences. Mill’spointwasthat knowledge of Marx’s arguments made for better social science because researchers at least had sufficient knowledge to refer to the relevance of class and social structure in relations to the topics they studied, and could refer to how class and social structure pervade society and influences its members. Mills’ statement, though written in the early 1960s about social science research in general, is applicable to the current state of theorizing and research in criminology today, whether we focus on orthodox criminology or the last two decades of research in critical criminology:

. . . there is today no ‘marxist social science’ of any intellectual consequence. There is just social science: without the work of Marx and other Marxists, it would not be what it is today . . . . No one who does not come to grips with the ideasofMarxismcanbeanadequatesocialscientist....Many‘western’ social 74 M.J. Lynch

scientists would do more significant work if they paid closer attention to Marxism as a major source of their disciplines.

In short, we can say that today criminology finds itself in the same position as social sciences did in the early 1960s – lacking an understanding of the relevance of Marx and class analysis for the subject at hand. Despite various critiques offered by researchers such Mills, social sciences generally, and criminology in particular, finds it quite acceptable to proceed as if Marx and class analysis has nothing to offer. In contrast to this neglect of class, it should be very clear that the substance of criminological and criminal justice studies always includes matters relevant to class, class structure, class conflict, class relations, and class oppression. The study of crime and the study of class cannot be separated, yet this separation between class and crime is central to the majority of claims staked by criminologists in their research. As noted earlier, street crime is made up largely of the behavior of the lower social classes and the formal response of agencies of social control to the lower social classes, while white collar, corporate, state and environmental crimes are comprised of the behavior of the upper classes to the exclusion of lower class behavior. In this sense, class and crime are linked specifically by the various definitions of crime criminology offers, yet theories of crime neglect the class-crime relationship that criminology includes in its very definition of various crimes. Above, the neglect of class in many aspects of criminology was illustrated. That neglect of class is evident in both traditional and critical forms of criminology where the major emphasis is on crimes of the lower class. In contrast, radical criminology recognizes that the crimes of the lower class are produced in a context of class relations impacted by social structure and social interactions, meaning that they are a product of the intersection of the behavior of people with the behavior of the state in a given historical context embedded with a particular class structure. In this view, crime is not simply an individual behavior, but depends on how those behaviors are interpreted and defined by those with the authority to do so within the confines of class-based society. In the radical view, crime is produced by the intersection of individual and state behaviors and is not simply a manifestation of the behavior of the individual, and cannot be treated as if the primary causes of crime are located within the individual. The orthodox view that crime is an individual level phenomenon is illogical and inconsistent with the observation that crime is produced socially and economically [57]. It is precisely because crime is produced by the intersection of the behaviors of the state and the individual that class becomes an important consideration when discussing the production of crime. Class is an important factor on both sides of this intersection. Given their preference for individual level explanation, orthodox criminologists have devoted significant attention to attempts to explain away the relevance of class based analysis (e.g., [98]). Despite how those studies are produced or what they really show about the importance of class (see below), they tend to be held out as evidence that rejects social class arguments (for a critique of these methods and results, see, [24]). This tendency, though often unnoticed today, remains strong, as will be illustrated below. When posing a critique of contemporary criminological explanations of crime, it is important to bear in mind that the production of crime cannot be approached as if crime is independent of class impacts. The production of crime is not, as even some critical The classless state of criminology 75 criminologist argue, a manifestation, expression or product of culture alone; nor can crime be described simply as a process where signs and symbols of power associated with Bculture^ are inscribed on the body through labeling. The intersection of the behaviors that are produced by people, to which labels and power are applied in the modern context of nations in the world capitalist system is not simply a cultural product – it is more precisely a product of the intersection of the social and political construction of crime and individual responses to social, economic and political structures within the limits of capitalist economic relations in a class-based society where individual behaviors are limited by and connect to social class . Indeed, there is no modern society that is absent a class structure. In a more radical view, we might say that formal social control responses to crime produced in a capitalist system of production are transcribing onto individuals and the social body simultaneously in ways that reflect class location and power, domination and control and class conflict as well. This, however, is an act of class control rather than a cultural phenomenon, and mistaking class for culture renders the explanation of crime useless. If the phenomenon of crime were indeed cultural, and cultures vary widely from one nation to the next, then empirically one would expect that the chief correlates of crime would be some cultural variable and most likely some unique cultural construct that varied from one society to the next. Thus, if cultural criminology was correct, we should see empirical evidence of this widespread cultural variation which would mean that there should be no persistent cross cultural correlates of crime such as class across nations. The same general observations concerning the misinterpretation of class theory and analysis applies to other issues criminologists study, illustrating the extent to which the importance of social class relations have failed to penetrate contemporary analyses of crime, law and justice, and at the same time the extent to which criminologists ignore the importance of class. For example, when victims of crime are discussed by criminologists they are not often discussed as primarily being members of the lower class. Where class and victimization are explored, this is done in the absence of class-based theory that would make sense of intra-class victimization (for an exception see, [1]). Rather, criminologists treat victims of crime as abstractions – that is, as victims extracted from their class context. Victimological studies do not ordinarily suggest that the typical victim of crime is a member of the lower class, and that their victimization is part of the class context of the construction of crime in a class-based society. Rather, criminologists typically speak of victims as if they did not share a class standing or connection. The criminologist, proceeding without the aid of class analysis fails to appreciate how class and class relations produce both crimes and victims of crime, and fails to be concerned with the fact that different classes generate different kinds of harms that produce different types of victims. This exclusion of some types of crime and some kinds of victims from criminological discussions of victims (e.g., corporate or state victims and crimes) is also a product of criminology’s classless theoretical state. What criminologists typically allow to be called crimes, and hence the people who are usually described as victims, include only those people victimized by offenders who violate the criminal law and fit traditional stereotypes of the criminal. In taking this approach, the typical criminologist excludes the sizeable number of victims of the various crimes of the powerful – white-collar, corporate, green, state and state-corporate crime. And yet, despite their shared class position, criminologists do not often refer to social class when they address victimization. 76 M.J. Lynch

Criminologists also do not often refer to class when they discuss the criminal justice process, instead referring to that process in neutral language as if the process does not unfold around class relations and involve class conflict. The various segments of the criminal justice system – from policing, to the courts, to the correctional system – focus their power upon and apply their force primarily to members of the lower classes in society. Yet this fact, this outcome, this real relation central to the criminal justice process, remains hidden away in orthodox studies of criminal justice processes as if class were unimportant to that process. Instead, criminologists focus their attention on procedural justice, and here only encounter class when procedural biases become too blatant too ignore. When criminologists take up one of the most dominate concerns of criminology – the behavior of criminals and the causes of those behavior – they typically speak about criminal offenders who are in the first instance produced by the intersection of behavior, law and criminal justice and as if class were not only unrelated to these outcomes, but as if class were something to be avoided in such discussions. This neglect of class, routine in orthodox criminology, has in the past two decades found its way into the critical criminological tradition as well, where the critique of materialism and structural analysis has simply been replaced by the invention of culture as the structuring force behind crime (see discussion below). This neglect of class occurs when the distribution of crime is studied across individuals and space, and when criminologists focus their attention on specific kinds of offenders – lower class offenders – to the exclusion of other types of offenders because they have not, in the first instance, conceptualized class as an important part of the explanation of crime. Whether a street or corporate offender, the offender is one defined by law and the criminal justice process, and though those criminal people are largely comprised of individuals from the lower class, this relationship is lost on the criminologist who, lacking a class based frame of reference and tied to their dogmatic micro-level traditions, refuses to acknowledge the relevance of class even when that point appears to be required by the very nature of the production of crime. When the criminologist segregates out for analysis any particular kind of criminal offender – whether those offenders are burglars, gang members or graffiti artists, etc.,. – the kind of offender in question receives the same unrefined, sanitized treatment in which the discussion of class relations has been washed away by the accepted, traditional practices found within criminology that reject class analysis as essential to understanding crime. Finally, even when criminologists analyze the construction of law and the making of criminal justice policy, they are unable to understand the uses and importance of class for that type of analysis. Criminologists have forgotten the lessons derived from class analysis that explores the making of law and how the criminal law and the criminal justice process is an expression of class conflict and power [13, 84]. Thus, it is not surprising, for example, that even in specific analysis of criminal justice applications of police force such as tasering, that criminologists ignore the social class ramifications of the use of this technology of power, and that it takes a non-criminologist to raise power issues and to explore the class based ramifications of the application of taser technology [79]. Moreover, in the more general literature on police use of force, orthodox criminologists hardly ever referred to social class questions (except in studies of perceptions of the legitimacy of police use of force). One could imagine, for example, that the distribution of police use of force is spatially biased and is more likely to occur The classless state of criminology 77 in lower class communities, a proposition that has rarely been tested except in relation to community disadvantage [94]. That the majority of criminologists tend to discuss crime and justice without reference to class speaks to the severe limitations of the research criminologists produce. This neglect of class based analysis occurs, as noted in the quotation above from Mills, because criminological scholars neglect the contribution of Marx, appear unwilling to accept or apply a class-based analytic modes of thought for understanding crime, and fail to appreciate the relevance of Marx and class analysis with respect to the effort to study crime, law and justice and the social control of crime. But, we need not follow in the path of most criminologists who ignore Marx and who write about crime, law and justice as if these were not almost wholly class related social problems. What we should keep in mind is Mills’ observation that social scientists Bwould do more significant work if they paid closer attention to Marxism . . .^.

Marx and class versus routine criminological research

In his well know book, The Marxists, Mills offers a discussion of differences between typical social science research and the work Marx undertook. That comparison illustrates how ordinary social science fails at its task, and how reference to the influential work of Marx would improve the content of social science research and bring additional context to the analysis of social problems. Given the neglect of Marx within contemporary criminology, whether it is written from an orthodox or a critical perspective, these same comparisons drawn by Mills in the early 1960s about social science remain applicable to contemporary criminology. In order to represent Mills’ ([69]: 10–11) argument, this material is quoted in full below:

The social scientists study the details of small-scale milieus; Marx studied such details too, but always within the structure of a total society. The social scientists, knowing little history, study at most short-run trends; Marx, using his historical materials with superb mastery, takes as his unit of study entire epochs. The values of the social scientists generally lead them to accept their society pretty much as it is; the values of Marx lead him to condemn his society – root, stock and branch, The social scientists see society’s problems as matters only of ‘disorganization;’ Marx sees the problems as inherent contradictions in the existing structure. The social scientist see their society as continuing in an evolutionary way without qualitative breaks in its structure; Marx sees in the future of this society a qualitative break: a new form of society – in fact a new epoch – is going to come about by means of revolution.

If we take this summary as having utility, what we can see is that the ordinary social scientists fails to appreciate the big picture of social life, and how social life reflects and is conditioned by and responds to the larger forms of relational order that exist within society such as class structure – a structure that preceded the individual’s existence, and into which the individual is born and which impacts, as noted earlier in this work, the development of the individual and his/her life course. This subject was taken up more extensively by Mills [70]inThe Sociological Imagination. Following Mills argument 78 M.J. Lynch in that earlier work, we can appreciate his point that social scientists tends to develop a view of social problems inadequate to the task of understanding social problems as they exists within the confines of a particular historical epoch, rich with various preexisting structures such as class that shape and mold both social relations and the behavior of individuals. To abstract the individual from that societal and class context, to present them as individuals unconnected to social structural influences of class, to treat them as if they are free to act in whatever ways they so choose, to analyze them as abstract individuals outside of their class associations, is to fail to comprehend the intersection of class structure and individuals, or as Mills put it, how individuals live out their lives in the constraints of a given social order where biography and history intersect one another in the context of class relations. To justify this neglect of class, criminologists pretend to address class based theory by including class as a control variable in empirical research. Not only do criminologists rarely control for class, when they do so they fail to appreciate that there are a range of theories of class, and that the measure of class they choose has important empirically and theoretically ramifications. In the section that follows, we take up this issue in greater detail.

But, I controlled for class . . .

When criminologists take class into account, they tend to do so simply by including some measure of class as a control variable in empirical research studies without offering much theoretical discussion of class and its effects. This, of course, is an inadequate research approach to class analysis for at least two reasons. First, controlling for class is not the same as including a cogent theoretical explanation concerning the relevance of class. Second, because class can be measured in any number of ways, and those different measures of class represent entirely different theories about class and its effects, the theoretical description of class’ relevance is needed to make sense of the empirical outcomes. Here, our interest in is the Marxist analysis of class. Criminologists do not often employ Marxist models of class when they control for class, yet they nevertheless generalize their results to Marxism despite the fact that the empirical measure is not a relevant operationalization of a Marxist theory of class. For example, criminologists tend to use educational and income measures as class control variables and do not investigate how other measures of class impact the results of controlling for one empirical interpretation of class versus any other interpretations of class (for an exception see, [21]). Education and income, however, are not the defining characteristics of class in a Marxist view. This misrepresentation of the Marxist model of class occurs largely because criminologists do not understand class or class based theories well, or that different theories of class are measured in different ways. In other words, the measurement of class has different operationalizations depending on the theory of class analysis that is employed [106], an issue criminologists tend to ignore when controlling for class. There are important theoretical differences, for example, between a Weberian and Marxian perspective on class, and those theoretical differences create different measures of class that have different interpretive consequences. Other empirical measures of class might include the four-factor Hollingshead index, or those based in poverty, home ownership, occupation, income or wealth. Each of these The classless state of criminology 79 measures of class can produce different empirical results [21]. Criminologists seem unconcerned that measuring class in different ways can change the results of the research they undertake and the conclusions they can reach. That is because criminologists don’t much care for class analysis in the first place. Despite this practice, it is of the utmost importance to consider the theoretical foundations of the class measure the criminologist chooses to use in an empirical study. The choice of one measure of class from among an array of social class measures alters the theory that ought to be used to interpret an empirical class related outcome, and whether the result can be generalized to other theories and measures of class. Empirically, one of the widespread mistakes criminologists make when they control for class is failing to empirically assess whether the measure they have used has validity – that is whether it actually measures the concept of class. At a minimum, the researcher needs to assess whether the distribution of class in the sample looks like the distribution of class in the population from which the sample has been drawn or to which the researchers wishes to generalize. Sometimes the research may attempt to depict the class measure as useful through some measure of dispersion. Often ignored is whether the measure of dispersion and any particular theory of class coincide with or measures the actually dispersion of class in the larger society or within a theory of class. Inattention to the theoretical interpretation of class means that researchers will often misinterpret the results of research that includes a class measure. For example, when a researcher finds no class effect they do not ordinarily suggest that the outcome is dependent on the measure of class that was employed. They do not, for instance, suggest that the measure of class was invalid, or that the result cannot be generalized to other theories of class, or that perhaps that there was not enough variation in class in the sample to discover a class effect, or that there was a difference in the class of the sample population in comparison to the universe form which it was drawn. In other words, it is entirely possible that the class-based result is a methodological artifact of how class was measured. Thus, while the absence of a class effect may be an empirical artifact, this does not seem to trouble the criminologist very much who appears all too happy to generalize from a negative class-related outcome to all theories related to class.2 Criminologists not only fail to appreciate the relevance of class analysis, they have also been known to misrepresent the results of analyses that address the class-crime relationship. A good example is the well-known study of class and crime by Tittle et al. [98], which, by the way, includes in its title the biasing phrase Bthe myth of social class and criminality^ despite what the findings of that study actually indicated about class and criminality. Though published in the late 1970s as part of the critique of radical criminology, the Tittle, Villemez and Smith article remains well cited. Since 2010, this

2 An example of a study that compared sample class to population class characteristics is Dunaway et al. [21]. Here, measures of the sample’s class correspondence with the general population was conducted for personal and family income. On both measures, the sample population had a higher mean income than the general population (for personal income, 9.5 % higher; for family income, 12.5 % higher). Equally important in this kind of research is providing some measure of the dispersion of income. In Dunaway et al’s study, the proportion of the population comprised of low income families (28 %) was much lower than in the population from which the sample was drawn (38 %). At the upper end of the distribution, families in the sample were more likely have earned $60,000 or more (20.7 % of the sample) than the general population (13.5 %). These large differences in income between the sample population and the general population with respect to class variable means and distributions indicate that we should not generalize the results from the sample population to the entire population, and that the results have no relevance beyond the sample being studied. 80 M.J. Lynch article has been cited 43 times, and 154 time since 2000, while the critique of that work such as Clelland and Carter’sanalysis[15] has been cited only once since 2010. Tittle, Villemez and Smith’s study is often reported as showing that class and crime are unrelated and as a critique of the Marxist conception of class (e.g., the authors Bconcluded that there is not now, nor perhaps has there ever been, a relationship between class and delinquency^ [[100]: 250]). That is not actually what that study suggests, and interpreting that study’s results as a rejection of class effects misrepre- sents the findings of that study. Moreover, since the studies used to reach that conclusion contain no measures of a Marxian model of class, those results cannot be generalized to reach conclusions about a Marxist class model of crime. It is important to recognize that the negative conclusions about class and crime promoted by the Title, Villemez and Smith study were promoted by the researchers’ own presentation of their finding. Examining the results from only a handful of studies (N=35), Tittle, Villemez and Smith found a weak negative relationship between social class and crime. That effect was stronger for studies that used official crime data, and weaker for studies that employed self-reported crime data. With respect to the current argument, it is important to keep in mind that the empirical results of the Tittle, Villemez and Smith study do not suggest that class and crime are unrelated, but rather that they are, in the authors’ view, weakly related. Thus, when researchers employ this study to reinforce the idea that social class has no effect on crime, they are ignoring what this study actually indicates, and rejecting class relationships despite the fact that the empirical evidence does not support that conclusion.3 Again, this observation is particularly relevant to Marxist models of class and crime since the studies examined did not employ any operationalization of a Marxist theory of class. In contrast to the BI controlled for social class^ empirical approach which fails to address class-based theory or the differential effects of alternative measures of social class, one can offer for consideration an alternative, theoretical informed perspectives on class that can also be empirically tested. Among these studies one finds power control theory [34], and its persistent findings of a social class effect attached to a neo- Marxist interpretation and measurement of class [33, 35, 58, 60, 76]. Criminologists, however, tend to overlook such studies in their effort to sweep social class effects under the rug. These latter set of studies indicate that when measured using operationalizations that come close to a Marxist model of class, class and crime have been shown to be related. Empirically, the relevance of class should be examined using designs that have not been sufficiently examined in the criminological literature. For example, since class is a structure and it precedes factors criminologists hold out as the causes of crime (e.g., personality, life course, social bonds), studies of the class effect should include temporal order. For example, if, as the medical and psychological life course literature reviewed earlier suggests, class affects and precede bonding, peer association or

3 While the Tittle, Villemez and Smith study has more than 375 citations in the literature, criticisms of that study ([15], which appeared in Criminology) has fewer than 70 citations, indicating that criminologists do not pay significant attention to the critique of this class-crime relationship research. Tittle [97] reinforcing the conclusion that class and crime are unrelated, again despite finding that in some cases, SES and delinquency were related. Moreover, they generalized conclusions about the class-crime relationship without commenting on the measure’s empirical validity or theoretical content (for other anti-class discourse see [96]; for an alternative assessment of research on class and crime, see: [40, 100]). The classless state of criminology 81 psychological states, then models of crime should include those observations by measuring these variables at different points in time. This can be done, for instance, by modeling the direct effects of class on crime, and its indirect effects on crime through bonding, peer associations, psychological measures, etc.,. This is much different that the analytic technique ordinarily used by criminologists which is to control for some set of causes of crime and then adding class as if class did not precede the other variables. It is, however, difficult for criminologists to actually address the relevance of class since many of the samples they employ only include lower class individuals. Orthodox criminologists are not alone in consigning class to the dustbin of history. Since the late 1980s contemporary critical criminology has contributed to this neglect of class, an issue that is taken up in the section that follows with specific reference to cultural criminology.

Untouched by Marx: the neglect of class in cultural criminology

Today, even critical criminological variants seem to be untouched by Marx and class analysis. Contemporary critical criminology has had much less to say about class than its radical predecessors, and this replacement of class analysis with other forms of analysis is a point that cultural criminology specifically addresses. Ferrell [26]noted that the transition away from class analysis emerged among critical criminology about two decades ago with the extension of postmodern and cultural forms of criminology. These new variants of critical criminology assumed that something called Bpostmodern^ society had replaced modernist social and economic organization. Cultural criminology has taken up that view despite the fact that modernism, especially represented by its economic expression in capitalism and the continued expansion of the capitalist world order, defies the logic of postmodern expectations and postmodern assessments of contemporary social and economic relationships. Capitalism has not ended; nor has it been weakened; it remains a world order and the driving force behind international relations. Thus, any effort to suggest that the world is now in some postmodern condition does not appear to be support by evidence of the continued expansion and domination of capitalism as a world order. In defending Bthis turn^ away from social class and materialist analysis, Ferrell [26] writes: BThat turn two decades ago, that turn which cultural criminology does indeed continue today, was not so much away from a materialist analysis of capitalism as toward a fuller analysis of power, domination, and crime.^ Despite Ferrell’s assertion, much cultural criminology is written without reference to capitalism, class or materialism, a point to which we shall return shortly. Supporting the contention that Marx and class were now less important in a postmodern era, Ferrell notes that it was no longer sufficient to view Bcapitalism as the bedrock cause of crime.^ Ferrell makes no case for why that conclusion is justified, and offers no data or theory upon which such a conclusion can be based. As noted above, there is sufficient reason to believe that class remains one of the strongest structural forces impacting societies and crime, law and justice in the modern world system of capitalism. While it is not the intention here to produce a complete or extensivecritiqueofFerrell’s views on class and cultural criminology (for extensive criticisms see, [36]), it is important to address several points Ferrell raised to illustrate 82 M.J. Lynch that the effort to replace class analysis with cultural analysis has severe limitations, and that doing so effectively undermines more radical, class-based analysis of crime, law and justice without sufficient theoretical or, perhaps more importantly, any empirical justifications. One of the critiques of class analysis Ferrell [26] raises is his belief that materialist and class based analysis is ahistorical. That criticism flies in the face of the essential theoretical assumptions of Marx’s materialism and his effort to construct an empirically situated materialistic theory of society which is, at its root, both radical and historical, a point C. Wright Mills [69] reinforces. A small library can be filled with works on Marx’s historical materialist analysis [57], and this historical interpretation of Marx’s theory penetrates a variety of disciplines, even spanning as far as ecological or environmental studies [28]. What Ferrell actually seems to object to is that class-based analysis hasn’t changed much over time, and he confuses the constancy of the analytic form of class-based analysis as it reflects the persistence and growth of capitalism with the issue of ahistoricism. In other words, overtime, the general nature of class structures hasn’t changed much over the past three decades. Thus, the reason class analysis hasn’t changed significantly is that, first, class structure hasn’t changed dramatically due to the continued domination of capitalism as the primary economic form across nations of the world. Changes in class structure are few and often may be misinterpreted if one posits those changes with respect to, for example, the growth of the service sector and the growth of a new form of economic marginalization. In the Marxist view, however, the service sector is merely a new form of economic organization in which the working class is exploited in new ways [80, 39], and not the disappearance or remaking of class in any substantial way [106]. Second, it could be argued that Ferrell’s critique has some validity, but not for the reasons he asserts. One could indeed argue that in the criminological literature the discussion of class appears not to have changed much over time because it has not reflected subtleties in the transformation of class structure. To be sure, radical econo- mists are well aware of these subtle historical changes in capitalism, and discuss these matters routinely and widely (e.g.s., [78]; on the stability of empirical assessment of Marx’stheory,see[85]; on the effect of financial capital on class analysis see, [11]; on the relevance of social structures of accumulation as historical cycles, see, [61]; on the importance of the development of neo-liberal capitalism see, [2, 42, 43]; on historical interpretations of global capitalism see, [38]; on the new era of social structures of accumulation in the world economy see, [77]; on class struggle in the second half of the 20th century in the US see, [49]; for a criminological example see, [54]). That criminologists have failed to keep up with that literature is not, however, a reason to reject class analysis. It may be a reason to suggest that radical criminological analysis needs to update its depiction of class to reflect newer and more nuanced understandings of class. But to reject class analysis because it requires updating is, as they say, to throw the baby out with the bathwater. In jettisoning class analysis and materialism and claiming that these ideas are overly deterministic and essentially too structural, Ferrell recommends the strategy taken by critical criminologists since the late 1980s – focusing instead on gender, culture, postmodernism or what-have-you, so long as class is replaced by a structure other than class. To be sure, cultural criminologists reading this critique will reject the assertion The classless state of criminology 83 that gender, culture, etc., are structures rather than Bidentities^.But,giventhemethods of analysis cultural criminology employs which begins with the assumption that these cultural phenomena exist and have real meaning and consequences that precede the individual, they are inserted into cultural criminological explanations as structures that impact and constrain behavior. To be sure, while gender and culture may have important uses within criminological research, there is much that is missed once class is excluded from the analytic model. Moreover, excluding class makes little sense given the hegemonic and economic domination of capitalism in the modern world order. Capitalism is, as many studies illustrate, now a dominate world force. There is a global capitalist system, and researchers utilizing world systems theory have been exploring these issues in various ways since the early 1970s [101]. Indeed, capitalism is now so widely entrenched across the nations of the world that to ignore its significance is to misperceive the world order and the influential role capitalism plays [30, 89], and to misperceive how the world is ordered and how daily lives are influenced by the flux of world capitalism. That these ideas have not made their way into criminology speaks to the deficiencies of class analysis in criminology, not to the deficiencies of materialist theory or class analytic approaches. Indeed, the fact that these kinds of class issues and historical materialist frames of reference have been missed within criminology while they have been widely explored in other disciplines tells us much about the kinds of analytic (class-based) perspectives missing within criminology in general, and within critical criminology in particular. Perhaps more important is that Ferrell’s contention that cultural criminology pays significant attention to materialism or Marx is debatable. To illustrate this point, let us examine only one major work in cultural criminology selected because it represented a major statement on cultural criminology written by numerous authors. Thus, if cultural criminology pays significant attention to materialism, one would expect that this focus would show up consistently in a work created by multiple authors writing about cultural criminology. The work in question is the edited book, Cultural Criminology Unleashed [27] which features 24 chapters and 336 pages of text authored and coauthored by 26 scholars. Thus, if cultural criminology takes materialism serious, there should be some extensive discussion of materialism, class and Marx in this work. Yet, this book contains only three very general references to BMarx,^ or BMarxism.^ The first is a passing reference to B20th century Marxism^ on page 31; the second is a passing reference to Bexpressive Marxism^ on page 32; the third is a mention of the word BMarxism^ on page 38. All three of these references appear in one chapter written by one author. Marx’s name appears once, in the book’s reference sections in the title of a book by Althusser. There are two references to Bcapitalism^ (pages 277–79 and 283). There are six mentions of the word Bclass^ or Bsocial class,^ which hardly indicate the importance of this topic to criminology. As an important work in cultural criminology, this book provides no hint whatsoever that Marx or Marxism or class analysis are important to cultural criminology, and indeed suggests exactly the opposite – that Marx and class analysis has been buried by culture criminology behind cultural appearances, an issue Marx himself addressed in numerous writing on consciousness and false consciousness, and an issue extensively analyzed by Lukács [50]. There is more material in this edited work on MarilynMansonthanonMarx. 84 M.J. Lynch

A final point of discussion has to do with the perspective on culture and consciousness that pervades cultural criminology. Consciousness is, to be sure, an important concept in Marxist class analysis, and Marx and Engels devotes significant attention to consciousness and its material grounding in class structure. Cultural criminology overlooks this important aspect of Marx’s work. Marx and Engels’ critique of ideology and consciousness in the work of the Young Hegelians is especially relevant to posing a critique of culture and its connection to consciousness and behavior found in cultural criminology. Marx’s critique of the Young Hegelians and the conflation of consciousness with the material structure of human relations applies equally well to cultural criminology and its neglect of class. On this point, for example, Marx and Engels ([59]: 41) wrote about the deficiencies of the analysis of the Young Hegelians, and one could easily substitute the phrase Bcultural criminologists^ into the following passage where the term BYoung Hegelians^ appears:

Since the Young Hegelians consider conception, thoughts, ideas, in fact all products of consciousness to which they attribute an independent existence, as the real chains of men. . ., It is evident that the Young Hegelians have to fight only against these illusions of consciousness. Since, according to their fantasy, the relationships of men, all their doings, their chains and limitations are products of their consciousness, the Young Hegelians logically put to men the moral postulate of exchanging their present consciousness for human, critical or egotistic consciousness and thus of removing their limitations.

As Marx and Engels note, this tendency to substitute the study of consciousness – or in the case of culture criminology, the egoistic consciousness of the oppositional edifice of criminality which cultural criminology mistakes for a form of shared oppositional defiance and an elaborate cultural upheaval of material consequence rather than as an expression the manifestation of class relations – for the understanding of the real determining material forces moving society, merely recreates and conserves the notion that it is the construction of culture, of patterns of thought, that ought to be privileged. In this way, anything material and social is removed from the analysis, and instead, the words and phrases, to which Bthey themselves are only opposing other phrases . . . are in no way combatting the real existing world when they are merely combatting the phrases of the world^ ([59]: 41). In this view, it is the competition between ideologies that has been, in the hands of this cultural turn in criminological analysis, Bturned into a bitter struggle, which is now being extolled and interpreted to us as a revolution of world significance, the begetter of the most prodigious results and achievements^ ([59]: 40). One can posit that it is consciousness that determines the course of society. But before the analysis of culture and consciousness can even begin to grasp consciousness, it must recognize that humans must first produce their means of subsistence and create a routine for their existence – a structure of existence. Consciousness, in this view, is limited by the way that subsistence is produced. While Marx and Engels are not the final word on this issue, it is important to refer to their position since cultural criminology takes issue with the kinds of structural views posited by Marxist analysis. On this point, Marx and Engels ([59]: 42) wrote, BWhat they are, therefore, coincides The classless state of criminology 85 with their production, both with what they produce and how they produce. The nature of individuals thus depends on the material conditions determining their production.^ This leads to perhaps one of Marx and Engels ([59]: 47–48) most famous statements on consciousness and material conditions:

The production of idea, of concepts, of consciousness, is at first directly inter- woven with the material activity and in the material intercourse of men, the language of real life. . . Men are the producers of their conceptions, ideas, etc., . . . as they are conditioned by a definite development of their productive forces and of the intercourse corresponding to these. . . . Consciousness can never be anything else than conscious existence, and the existence of men is their actual life- process. If in all ideology, men and their circumstance appear upside down as in a camera obscura, this phenomenon arises just as much from their historical life-process as the inversion of objects in the retina does from their physical life- process. . . Life is not determined by consciousness, but consciousness by life. . . Viewed apart from real history, these abstractions have in themselves no value whatsoever.

In this view, that some people express oppositional consciousness is nothing other than an expression of real world material conditions – of the existence of contradictions and conflicts that already exist in the material structure of society. It is the real world material conditions, including class and class conflict, which allows the individual to perceive the nature of those real contradictions and to translate them into conscious expression ([59]: 52). The individual does not express in culture any form of contradiction that is not first evident in their material circumstances in the world around them produced by production, or in the class and productive relations that dominate their existence. That the individual, production and the state come into contradiction in the thoughts of the oppositional acts of the offender is merely a reflection of how things already come into contradiction with one another in the material spheres of existence ([59]: 52). In other words, the appearance of oppositional culture is nothing other than the expression of material oppositions already in existence in the structure of society, which consciousness only allows to be manifest in the thoughts of the individual. That these conscious oppositional thoughts can be identified and grouped does not require that they first be expresses as consciousness by any individual or group – those contradictions are already evident in and presupposed in the real, material relations of society, in production and relations to production, or in the class structure of a society and all the contradictions that structure already includes within itself. Thus, the expression of these contradictions in culture is not a force of opposition, but rather is an expression of the contradictions already embodied in the materials circumstances of social structure. If, indeed, cultural criminology is as it claims to be, inclusive of material theory and class analysis, one might expect first that it makes reference to Marx and Engels’ interpretation of consciousness to either accept or critique that view. And second, that it comes to grips with its misinterpretation of materialist theories of class analysis. In this sense, cultural criminology makes 86 M.J. Lynch the same mistake as orthodox criminology by failing to perceive the temporal association between class relations, production and culture. That is to say, material conditions precede consciousness/culture, and must do so. Class relations are not made from oppositional culture, but are part of the nature of class relations which are, at their very root, oppositional and structural. That some individuals at some point in time come to express these inherent aspects of class conflict tells us only how consciousness of the material conditions has changed, and tells us nothing about the actual nature of the contradiction which already exists in the material sphere of relations. That, in other words, some oppositional cultural position emerges, tells us nothing more than consciousness is catching up to real material conditions of existence already encapsulated within class structure – a structure that exists prior to the formation of consciousness (and prior to the psychological properties, bonds, or what-have you, that orthodox criminology posits as the causes of crime).

Conclusion: misunderstanding Marx and class

In the criminological literature, Marx and class analysis is avoided and denounced, both empirically and theoretically [57]. The neglect of class in contemporary criminology, its theoretical and empirically misinterpretation, and the inability of criminologists to frame class in relation to theory, have been common problems in orthodox criminology since its inception. Challenged by radical criminology in the 1970s, orthodox criminology made some effort to recognize class, but was still unable to address class in any meaningful way, theoretically or empirically, and at the same time mounted an offen- sive against class analysis. By the 1990s, with the decline of radical criminology and the rise of the new forms of critical criminology, the neglect of class analysis was reinvented and revitalized and extended to new varieties of critical criminology. Despite the relevance of class to the study of crime, law and justice, class remains a concern for a small community of radical scholars. This return to classless criminology has made it necessary to revisit the critique of a classless criminology and its limitations. Class has been made peripheral to criminology despite the relevance of class to other fields of research criminologists draw from as illustrated above. Without reference to class analysis and criticism criminology will remain an effort to legitimize a system of beliefs about the causes of crime and the structure of justice that can only be discovered once class effects have been removed from criminology’s field of reference. Devoid of class analysis, criminology will remain mired in its inability to understand and explain crime, law and justice. Classless, criminology remains wedded to exploring how individuals cause crime. Since crime is a social construction and crime is produced by the intersection of the behavior of people from different classes with the bureaucratic regime of the criminal justice process, and since the material conditions of life precede its psychological and cultural manifestations, a classless criminology can only present to us some abstract interpretation of the causes of crime. That abstraction, reinforced and reproduced by the edifice of the routine traditions of criminology has yet to produce a reliable answer to the question: what causes crime? And, this shall remain so until criminology recognizes the utility of class based analysis. The classless state of criminology 87

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Could it happen here? Moral panic, school shootings, and fear of crime among college students

Jaclyn Schildkraut & H. Jaymi Elsass & Mark C. Stafford

Published online: 12 March 2015 # Springer Science+Business Media Dordrecht 2015

Abstract Originating in the early 1970s, the concept of moral panic has been used to describe the public’s reaction to a real or perceived threat. Moral panic has been linked to well-known social problems, including muggings, drugs, juvenile ‘delinquency, gangs, and terrorism. More recently, researchers have examined school shootings in this context. Notably absent, however, is a quantitative application of Goode and Ben- Yehuda’s (1994a, 1994b) attributional model of moral panic. The present study examines the five key attributes of moral panic—concern, hostility, consensus, disproportionality, and volatility – as they relate to school shootings and fear of crime among college students. The results indicate that respondents’ fear of crime is the best predictor of students’ subscription to moral panic. Directions for future research, as well as limitations of the present study, also are discussed.

Prior to the late 20th century, fear of crime was associated with urban neighborhoods, especially those in inner cities. Residents of middle- and upper-class suburban and rural communities viewed their areas as safe, especially as crime rates, including the level of violence in schools, were declining [1–3]. The string of school shootings in the late 1990s, culminating with the 1999 Columbine High School shooting, changed the belief that these communities were immune to such violence. It was no longer limited to inner-city urban neighborhoods. School shootings are relatively rare in the U.S., with an annual average of less than 10 events [4]. The disproportionate amount of attention they garner, however, particularly in the media, has made them appear to many to be almost epidemic [5–8]. As a result, school shootings have the ability to incite what Young [9] and Cohen [10]have famously referred to as a “moral panic.” When an event, such as a school shooting, emerges as a perceived threat to social order [10], moral panic can ensue, and reactions are often disproportional to the actual threat [11]. School shootings, such as Columbine and the more recent tragedy at Sandy Hook Elementary School in Connecticut, have led to increased security in schools, including

J. Schildkraut (*) State University of New York at Oswego, 458 Mahar Hall, Oswego, NY 13126, USA e-mail: [email protected]

H. J. Elsass : M. C. Stafford Texas State University, San Marcos, USA 92 J. Schildkraut et al. metal detectors, identification cards, and zero-tolerance policies. Politicians and pundits typically have focused their discourse following such tragedies on hot-button issues, such as gun control, mental health, and violent media, including video games, movies, and music. Several school shootings have generated legislative responses aimed at addressing these issues [12, 13]. On December 19, 2012, in response to Sandy Hook, President Obama announced the creation of a national committee on mass violence aimed at targeting gun violence [14]. Less than a month later, the State of New York passed the first gun-control measures after Sandy Hook, which included an assault-weapons ban [15]. In addition to school shootings, which have been examined by Burns and Crawford [2] and Springhall [16], other perceived social threats also have been considered through the conceptual lens of moral panic. These include juvenile deviance and crime [10, 17, 18], gangs [19, 20], drugs [21], and terrorism [22]. In 1994, Goode and Ben-Yehuda introduced an attributional model of moral panic to the growing body of literature [23–25]. This model identified five key attributes – concern, hostility, consensus, disproportionality, and volatility – that became the framework for many moral panic scholars [25–27]. The moral panic research to date, however, has relied exclusively on qualitative, historical data. What is notably absent is a quantitative assessment of Goode and Ben-Yehuda’s[26, 27]five attributes. Also missing is any consideration of individual-level responses to a purported moral panic, such as that of school shootings. While moral panic generally is a collective, macro-level phenomenon, individual responses – both as a whole and based upon the individual attributes – to the panic still are likely without confirming or denying its existence, and thus also must be examined. The present study seeks to fill this gap by examining these key attributes, using quantitative data, as they relate to college students’ beliefs about school shootings. In the wake of tragedies, such as the shootings at the University of Texas at Austin (1966), Virginia Tech University (2007), and Northern Illinois University (NIU) (2008), the potential fear and panic generated among college students by these events are particularly relevant. Though these events typically receive less media attention than their elementary- or secondary-school counterparts, they still may invoke a belief among students that these events are possible on their campuses. As such, an examination of students’ reactions to the moral panic of school shootings is particularly warranted. Using a survey instrument at a large southwestern university, questions were asked of students related to the attributes of moral panic related to these events and fear of crime, among other variables. This paper presents the results of the survey.

Review of the literature

Moral panics

Though Young [9] has been credited as first using the term “moral panic” in research, it is Cohen [10] who usually is credited with developing the concept as it is used today. Cohen [10] has defined moral panic as:

A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by Moral panic, school shootings, and fear of crime 93

editors, bishops, politicians, and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges, or deterio- rates. (p. 9)

Whiletheseeventsemergeasperceived threats to the social order [10], it is often the responses that are more indicative of a moral panic. Reactions from officials, especially politicians and pundits, often are out of proportion with the actual threat of the person, group, or event [11]. Further, the greater the perceived threat to the social order, the harsher the responses to it [11]. It is a case where, as Jones, McFalls, and Gallagher [28] observe, “objective molehills have been made into subjective mountains” (p. 341). Even as early as 1971, Young realized the central role that the media played in constructing social problems. For much of society, behavior acquires its meaning from specific social contexts [25]. These contexts often are played out in the media, which can increase public fears about behaviors [9]. As Miller [29]notes,“part of society is used to represent (or perhaps distort) a wider problem” (p. 38). In a risk-laden society, such as the U.S., people often think social problems are increasing when they are, in fact, decreasing [29]. This has been seen with a number of social problems, including juvenile crime [1–3]. Goode and Ben-Yehuda’s[26, 27] five attributes of moral panic were introduced to supplement Cohen’s[10] original processual model by providing a comprehensive framework of characteristics emblematic of many moral panics [23–25]. The first indicator, concern, represents a heightened level of anxiety about a perceived social threat [26, 27]. Hostility in moral panics is often manifested through an “us-versus- them” mentality [2, 10, 26, 27]. Consensus occurs when people agree that a particular threat is “real, serious, and caused by the wrongdoing of group members and their behavior” ([26], p. 157). Moral panics are disproportional when the intensity of the public concern exceeds the actual threat of the social problem [11, 26, 27]. Finally, volatility occurs as a result of the sudden eruption and diminution of a moral panic [26, 27], which also may be witnessed in the amount of attention a particular phenomenon receives in the public discourse (see, for example, [30]).

Fear of crime

A considerable body of literature exists, spanning over 40 years, examining fear of crime. Although a direct link has yet to be proposed, research on moral panic clearly overlaps with research on fear of crime. Though researchers have utilized different approaches to study fear of crime, there are several consistent findings. Females are more fearful of crime than males, both in the general population [31–35], and among college students [36–41]. Early research [31, 33] suggests that elderly also are more afraid than youth, though more recently, it has been found that youth are more afraid [42, 43]. A third option has been presented – a curvi- linear relationship between age and fear—with those in both the youngest and oldest groups expressing the greatest fear [44]. These groups often are concerned they will be victims of personal crime, such as homicide or assault, when property crimes such as burglary are more common [34, 44]. 94 J. Schildkraut et al.

Several studies [45–48] specifically have examined college students’ fear of crime in the aftermath of school shootings. Stretesky and Hogan [48] analyzed data collected as part of a campus dating-violence survey at the Rochester Institute of Technology one week before and after Columbine. Their findings indicated that respondents’ perceived safety decreased following the shooting [48]. One significant limitation of the study, however, was that the sample only included females. Addington [45] also found that general fear of crime increased, albeit slightly, following Columbine. Still, the majority of respondents (77 %) reported not being fearful at school [45]. In their examination of fear of crime following the Virginia Tech and NIU shootings, Kaminski and colleagues [47] found that female students were significantly more fearful than their male counterparts. This held for fear of being murdered on campus and fear of being threatened with a knife or gun on campus, in addition to a general measure of fear of crime on campus [47]. These fears were significantly increased by both shootings [47]. Specific demographics of the students also were found to predict their fear. Younger students and those who lived on campus were more fearful than their respective counterparts [47]. White students were less fearful than minority students of being a victim of crime (attacked with a weapon or being murdered) on campus [47]. However, while the Virginia Tech shooting increased the fear of being a victim of both types of crime among minority students, only fear of being murdered increased following the NIU shooting [47]. Fallahi and colleagues [46] also analyzed reactions to the Virginia Tech shooting. Students who reported higher levels of fear and greater belief that a similar event would happen again expressed there was a lesser likelihood that a shooting could happen on their campus [46].

School shootings as moral panics

Burns and Crawford [2] conceptually applied Goode and Ben-Yehuda’s attributional model of moral panics to examine Columbine High School’s contribution to the panic over school shootings. This was especially relevant, not only because of the recentness of the event, but because the amount of attention the shooting received. Increased attention to school shootings, especially by the media, allows such events to take on a life of their own [4, 49]. Columbine, for example, would go on to become the archetypal model to which all other school shootings would be compared [50–55], or as Goode and Ben-Yehuda aptly label such a moral panic that can be sustained over time, “a cultural legacy” ([26], p. 158).

Concern Goode and Ben-Yehuda [26] note that concern must be measured in concrete and explicit ways, and Burns and Crawford [2] suggest that the most accessible way is through media reports and event saliency. Considerable amounts of news coverage have been devoted to school shootings. The Pew Research Center for the People and the Press [69] found that coverage of the 2007 Virginia Tech shootings consumed 60% of network news airtime and 76% of cable news airtime. Schildkraut [4, 84] found that in the 30 days following the event, The New York Times and The New York Post published 63 articles and 50 articles respectively (excluding op-ed pieces). Similarly, Chyi and McCombs [59] observed that 170 articles were published in the same time frame following the Columbine shooting, and over 130 articles were published follow- ingtheSandyHooktragedy[49, 84]. Interestingly, a Gallup poll conducted in March Moral panic, school shootings, and fear of crime 95

2001 showed that 64% of Americans believed that the coverage devoted to school shootings by the media was the cause of later school shootings [61]. A more recent poll indicated that respondents believed the 2012 Sandy Hook shooting to be reflective of broader social problems in the nation [92]. Concern over school shootings also can be measured by the saliency of the event. Columbine, for example, attracted the most interest of any news story in 1999, with 68% of Americans saying they followed accounts of the shooting very closely [65]. It was the third most closely followed story of the decade behind the 1992 Rodney King verdict and the 1996 crash of TWA flight 800 [65]. Virginia Tech was similarly the biggest news story of its week, which also included news on the war in Iraq and a critical ruling by the Supreme Court on abortion [69]. On the day of the shooting, 1.8 million viewers tuned into Fox News, and an additional 1.4 million viewers tuned in to CNN to watch coverage of the shooting [76]. In the year prior to the shooting, Fox News had an average daily viewership of around 900,000 viewers, and CNN had an average daily viewership of 450,000 [82]. MSNBC.com registered 108.8 million page views [69], when it typically averaged around 400,000 page views per day [63].

Hostility Increased hostility can be directed toward a deviant or out-group with problematic behaviors [2, 64]. This may involve the demonization, criminalization, and alienation of certain youth [2, 72, 73], whom Becker [85]called“outsiders” and whom Chermak [56] suggests, “deviate from what is statistically normal” (p. 580). Burns and Crawford [2] further note that those who have been marginalized may not have the resources to overcome their stigmatization. School shootings have given way to the idea that it was no longer an issue of minority, inner-city kids who were the sole perpetrators of violence [66]. Rather, school shooters came from either middle-class, white suburbia or from rural areas that were predominantly white, Christian, and conservative [16, 50, 66, 67]. After Columbine, increased hostility was directed at youth who wore trench coats or listened to “Goth rock,” such as Marilyn Manson, KMFDM, or Rammstein, all bands of choice for one of the Columbine shooters [15, 50, 67]. In fact, both politicians and some members of the public rallied after the shooting to have a Manson concert in Denver cancelled [16, 67]. Students who were in groups considered “subcultures” within high schools, those who were not the “jocks” or “elites” that ruled schools like Columbine, were routinely targeted as the next potential school shooters [50, 66, 67]. Anyone who exhibited traits similar to the Columbine shooters immediately were considered to be “alienated youth gone horribly wrong” and became immediate cause for apprehension ([67], p. 1387).

Consensus For consensus to occur, there must be a level of agreement that a given threat is “real, serious, and caused by the wrongdoing of group members and their behavior” ([26], p. 157). The panic must be widespread; however, it does not have to be accepted universally nor affect most people [2]. Altheide [55] further notes that a sense of disorder and lack of control are major impacts of a moral panic. Others (e.g., [2, 3, 5, 7, 8, 77]) have suggested that moral panics serve to amplify the public’s fear for school safety. Following the Columbine shooting, school shootings became a cause of national concern [81]. Discourse about school safety expanded from Littleton to all suburban high schools [5, 55, 81]. In many instances, the consensus among members of society is to “do something” about the problem so that “moral order” broken down by violence can be restored ([2], 96 J. Schildkraut et al. p. 149). Goode and Ben-Yehuda [27] note that a typical reaction “involve[s] strength- ening the social control apparatus of the society, including tougher or renewed rules, increased public hostility and condemnation, more laws, longer sentences, more police, more arrests, and more prison cells” (p. 30). Following Columbine, 53 % of Americans believed that metal detectors should be installed in schools, 62 % called for stricter gun laws for teens, and nearly 50 % felt that stricter regulation of television and movie content, as well as Internet-access restriction, was also necessary ([57]; see also [2, 16]). Additionally, many boycotted violent movies, such as The Matrix, The Basketball Diaries,andNatural Born Killers, following Columbine, and video games, such as Doom and, more recently, Call of Duty, were suggested to be instrumental in training individuals to become mass shooters ([60, 67, 78]; see also [5, 62]). Even non-violent video games, when linked to such extreme events, have been criminalized in the wake of school shootings (see, for example, [74], which includes the arcade-style video game Dance, Dance Revolution in the itemized list of evidence recovered from the SandyHookElementarySchoolshooter’s home). Such reactions, combined with the increased introduction of legislation to address the problem and its perceived cause, also are indicators of hostility ([2]; see also [12, 13]).Yet,inreality,nocausallink has been found between video games and violent crimes [5, 79, 87], though the myth persists.

Disproportionality The concept of moral panic is inherently subjective, as not everyone will subscribe to the same ideas about a particular phenomenon. A key to understanding how a moral panic exists is disproportionality. Moral panic concerning school shootings exhibits a high level of disproportionality between the amount of attention it garners and the frequency at which it occurs [2, 7, 8, 77]. This may be when the scale of the response received exceeds the actual magnitude of the problem [89]. The scale of the problem may be over-exaggerated by the media. Additionally, overly severe official reactions also inflate the problem [26, 89]. The series of school shootings in the late 1990s over a relatively short period also contributed to an inaccurate understanding of violence in schools [2]. Between the 1992–93 and 1997–98 school years, there were 226 school shooting-related deaths in the U.S. [71, 83]. During the same period, there were over 50 million students enrolled in over 80,000 schools nationwide [90]. Therefore, less than five ten-thousandths of students in the U.S. were killed in a school shooting over a six-year span. Donohue and colleagues [71] also point to the million-to-one odds of a student being killed at school, noting that the same student has a greater likelihood of being struck by lightning (see also [83]). This has, in turn, led to increased fear and concern on the part of the public and widespread reaction [2]. In particular, the majority of the reaction stemming from these events typically centers on several high profile cases [2, 6–8, 91], such as Columbine and Virginia Tech [6]. Many cases do not garner the same attention ([88], p. 90; see also [89, 93]), as evident in the public’s reactions (or lack thereof) to other school shootings, such as Pearl High School (Pearl, MS), Westside Middle School (Jonesboro, AR), Thurston High School (Springfield, OR), and NIU. Though researchers have yet to explore why some school shooting events receive greater attention and response than others, a cursory examination of the case facts can provide insight. Columbine perhaps can be considered the most notorious school Moral panic, school shootings, and fear of crime 97 shooting, primarily because it was believed to be the first of its kind. Though Columbine occurred in the midst of nearly a dozen other school shootings, those events did not have the high death tolls or the intense and methodical planning of the shooters. In most cases, these other events were more likely the consequences of snap decisions than a military-style operation. The 2008 NIU shooting followed the Virginia Tech shooting by nearly eight months. Though both events took place on university campuses, NIU had a considerably lower death toll (five as compared to 32), but also better emergency response notification. The NIU shooter also did not leave behind a multimedia manifesto later aired on news stations, as had the perpetrator at Virginia Tech. Further, much of the discourse related to NIU linked the event directly back to the Virginia Tech shooting. Most recently, the Sandy Hook Elementary school shooting also gained considerable notoriety, nearing (if not surpassing) the fear after Columbine. Unlike the aforementioned shootings, the majority of Sandy Hook’s victims were part of the most vulnerable group—young children (see [91]). In sum, differences between the cases also can lead to differences in how they contribute to the moral panic about the particular phenomenon, with some events failing to make a noticeable contribution. Additionally, not everyone will subscribe to the responses (e.g., gun control, banning of violent video games) associated with school shootings, again impacting the disproportionality as it relates to the panic.

Volatility Although Burns and Crawford [2] omitted volatility from their analysis of moral panic and school shootings, Goode and Ben-Yehuda’s[26] application of the concept is still relevant. Volatility refers to the sudden eruption of moral panic phenomena, which also can subside just as abruptly [26]. Simply stated, volatility refers to the unpredictability of these events in respect to where or when they will occur. Since volatility is a particularly difficult concept to measure, one way in which to examine the attribute is to consider the length of time in which public attention is focused on a specific issue. While many subjects that enter the public agenda have a lengthy issue- attention cycle (see, for example, [30, 94]), school shootings generally receive limited attention before being replaced by other stories of interest. Chyi and McCombs [59], for example, found that the life span of the Columbine case was about a month, and both Schildkraut [4, 84] and Schildkraut and Muschert [49] reported similar findings in their examinations of the coverage of Virginia Tech and Sandy Hook, respectively. This abbreviated media attention can be attributed to what Downs [30]referstoasthe “issue-attention cycle,” whereby interest in a particular point fades, requiring the media and the public to focus on a new topic of interest. What is important to consider with respect to volatility is the rapid succession of stories that may arise. For example, a mass shooting occurred at a mall just outside of Portland, Oregon only three days before the shooting at Sandy Hook Elementary. Therefore, the public focus shifted from one story of mass murder to another, though not all events within a specific panic will elicit the same reactions. With the continual transition between events, there may not be enough time for interest in an issue to subside. Rather, the panic from one event may simply be replaced with the panic from another. Additionally, the constant linkage of events in the media also keeps older events, such as Columbine and Virginia Tech, in the public awareness, which can make school shootings appear more continuous and streaming than they are. Still, as noted, not all panics, nor the events within each, are sustained or garner as much attention as others. 98 J. Schildkraut et al.

Methodology

Research question and hypotheses

The present study sought to expand on the growing body of literature pertaining to moral panic by quantitatively examining a phenomenon that has been researched previously only with qualitative, historical data. Specifically, the following question was the focus of this study: What characteristics of college students are the best predictors of reactions to moral panic over school shootings?Buildingonpreviousresearch,suchasthatonfearofcrime(e.g.,[33–35, 44]), it was hypothesized that (1) females, (2) younger respondents, (3) minorities, and (4) those reporting greater fear and perceived risk of personal crime and victimization would express heightened reactions to the school shootings panic, as compared to males, older respondents, whites, and fear and risk associated with property crimes. While these hypotheses were constructed for a general moral panic scale (the total measure of all questions assessing this phenomenon), it was posited that similar findings would emerge across the individual attributes (e.g., consensus).

Participants

The survey instrument was distributed to students during fall 2012 at a large southwestern university. Data collection began at the end of August and ended at the beginning of December. A convenience sample of undergraduate criminal justice classes was surveyed, and pen-and-paper instruments were administered. A total of 442 surveys were completed, and no student refused to participate. Table 1 presents descriptive statistics for the survey responses. Males represented the larger share of respondents (58.1 %), as did Whites (48.6 %). Students ages 21 and under accounted for 57 % of respondents. The majority of respondents identified themselves as non-gun owners (58.8 %) and lived off campus (86 %).

Dependent variables

Nineteen Likert-scale questions operationalizing Burns and Crawford’s[2]moral panic indicators as they relate to school shootings were included in the survey. Responses ranged on a five-point scale, from strongly disagree (1) to strongly agree (5). Maximum likelihood approach to factor analysis was utilized to determine if the questions loaded on the attributes they were originally intended to measure. While the majority of these questions did load on their designated attribute, several questions were determined to be better suited as measures of other attributes of moral panic. This is not unexpected, given substantial overlap between the theoretical concepts. Table 2 provides a complete list of the questions utilized in the survey, as well as their factor loadings. While Goode and Ben-Yehuda’s[26, 27] model of moral panic included five attributes, the factor analysis suggested that six factors were better suited for the data. Moral panic, school shootings, and fear of crime 99

Table 1 Descriptive statistics for Variables Respondents (N=442) respondents N%

Gender Male 257 58.1 Female 182 41.2 Race / Ethnicity White 215 48.6 Black 40 9.0 Hispanic 159 36.0 Other 13 2.9 Age 21 and younger 252 57.0 22 and older 186 42.1 Gun ownership Owns 145 32.8 Does not own 260 58.8 Residence Variable frequency percentages On campus 49 11.1 may not total to 100.0% due to Off campus 380 86.0 rounding error or missing data

The additional factor is the result of the concern attribute being split into two dimensions. The first concern attribute focused on defense, and includes questions that focus on gun rights. This attribute had two variables, both with high loadings (>0.75). Conversely, the second concern attribute, prevention, included questions that measure respondent attitudes towards gun control. Variables included were factored in with moderately high (>0.55). Essentially, these attributes represent opposite ends of the same spectrum (concern). The majority of questions pertaining to consensus loaded on this attribute with moderate scores (>0.40). Disproportionality, an attribute created from six questions, was dominated by moderately high (>0.60) loadings. The questions comprising the hostility attribute were split in their loadings, with two questions loading high (0.81 and 0.85) and two questions loading only moderately (0.59 and 0.34). The final attribute, volatility, is comprised of two questions. While one of the questions loads high (0.74), the second question, pertaining to media coverage of school shootings, loads weakly (0.22). While this loading is considered weak across all attributes, the loading score for the question on the volatility attribute is still the strongest. This likely reflects how the media can fixate on a particular event for a short period of time before moving on to another story [30].

Independent variables

Dummy codes were created for each independent variable except for those involving fear of crime. For the dummy variables, one category was omitted from each to serve as 100 J. Schildkraut et al.

Table 2 Moral panic indicator likert questions (with factor loadings)

Question Loading Cronbach’s Alpha

Consensus .356 School shootings are premeditated events. .615 I feel safe on campus. .216 Attention to a school shooting event does not last very long before another .402 news story replaces it. Concern (Defense) .802 I believe professors should be able to carry a firearm on campus if they have a .855 concealed handgun license. I believe students should be able to carry a firearm on campus if they have a .797 concealed handgun license. Concern (Prevention) .534 I believe that people should have to pass a criminal background check to purchase .622 a firearm from a private dealer or a gun show. I believe that there should be very stiff penalties assessed for guardians who fail .580 to keep firearms out of the reach of their minor children. Disproportionality .778 School shootings are a major problem in the U.S. -.735 I believe school shootings are a major issue worldwide. -.671 I believe a school shooting could happen at my school. -.628 I believe that juvenile crime over the last 20 years is on the rise. -.520 I believe that school shootings are on the rise. -.715 The odds of being a victim of a school shooting are greater than being -.416 struck by lightning. Hostility .749 I believe my school should have more rigorous safety procedures in place. .338 I believe that someone who brings a firearm to school should be expelled. .850 I believe that someone who brings a firearm to school should serve time in jail. .808 I believe that someone who brings a firearm to school should receive a mental .593 health evaluation. Volatility .241 School shootings are unpredictable. .738 I believe the media devotes too much coverage to school shootings. .224

the reference category. For each variable, 1 represented the presence of the characteristic, and its absence was coded as 0. Females were coded 1, with males as the reference category. Three individual dummy variables—black, Hispanic, and other (including respondents reporting they were Asian or biracial) were created to measure race and ethnicity, with whites serving as the reference category. It is especially important, given the location of the school, to account for Hispanics, as the university recently was designated as a Hispanic-Serving Institution, meaning that at least 25 % of the student body identifies with this group [86]. Age was dichotomized into two categories: 21 Moral panic, school shootings, and fear of crime 101 and under and 22 and older, 1 and the 21-and-under group was used as the reference category. Two additional demographic independent variables were included in the analysis. Respondents were asked whether they owned a handgun, rifle, or shotgun. Those reporting ownership of at least one firearm were coded as being a gun owner, which was used as the reference category. Respondents also were asked whether they lived on or off campus, as previous research (see, for example, [68]) suggests that people who are spatially more distant from a crime locale also will be less fearful. Those reporting that they lived on campus served as the reference group. The final independent variables relate to fear of crime and perceived risk of victimization. Though often mistaken for being synonymous, perceived risk of victimization is conceptually and empirically distinct from fear of crime [70], in that the former is proposed to be a cause of the latter [80]. Further, both are conceptually distinct from moral panic. While the latter is considered a macro-level response to a perceived problem, both fear and risk related to crime are more indicative of individual- level responses to a perceived problem [95]. In this study, two identical panels of survey items—one for fear of crime and one for perceived risk of victimization – were created using 10 crimes and public order violations [70, 80]. Respondents were asked about their fear or perceived likelihood of being approached by a beggar or panhandler on the street, being conned out of money, having someone break into their home while they were present and while they were away, being raped or sexually assaulted, being murdered, being attacked with a weapon, having their car stolen, being mugged, and having one’s property vandalized [70, 80]2. Responses ranged from 1 (not at all likely/afraid) to 10 (very likely/afraid). Additive scales were then created to differentiate between personal and property crime. Personal crime included questions about having one’shomebrokenintowhile away, being murdered, and being attacked with a weapon [70]. Though Ferraro’s [70] additive scale included a question about rape, it was omitted in the present study. Initially, a question about rape was included in the analysis as a separate variable, but it was highly collinear with fear and perceived risk of personal crime, which would be expected if fear of rape drives fear of overall crime, albeit only for women [34, 35]. Hence, fear of rape was dropped from the analysis. The fear of personal crime scale resulted in a Cronbach’s alpha of .916 and the perceived risk of personal victimization scale produced a Cronbach’s alpha of .847. Property crime was composed of the questions about being conned, having one’shomebrokeninto while away, having one’s car stolen, being robbed or mugged, and having property vandalized [70]. The fear of property crime scale resulted in a Cronbach’salphaof .876 and the perceived risk of property victimization scale produced a Cronbach’s alpha of .799.

1 Due to IRB restrictions, the researchers were not allowed to ask respondents the numeric value of their age, but instead were required to ask respondents where they fell in the following age groups: 18-21 (255 total respondents), 22-25 (195 total respondents), 26-29 (7 total respondents), 30 and older (1 respondent). These were then collapsed into 21 and under and 22 and over categories. 2 LaGrange and Ferraro [44] included an eleventh item—rowdy youth. This was later omitted by Ferraro [70], the model which was used in the present study. 102 J. Schildkraut et al.

Analysis and findings

Table 3 presents the results of OLS regression analysis. In order to understand how the regression results relate to the phenomenon of moral panic, it is important to examine it within the framework of each hypothesis. The first hypothesis focuses on the impact of gender on the attributes of moral panic, predicting that females have higher levels of moral panics than males. When inspecting the effects of being female on each of the individual attributes (e.g., concern), two significant effects were found. The regression results indicate that being female is negatively correlated with the defense dimension of the concern attribute, as well as on volatility. Females, as compared to males, were less likely to say that licensed students and faculty should be able to carry guns on campus (B=-0.028, p<.01). Females also were less likely than males to believe that school shootings are unpredictable events (B=-0.197, p<.01). Being female, however, was not found to be significantly correlated with consensus, the prevention dimension of concern, hostility, or disproportionality. The second hypothesis centers on the effects of age on the individual attributes of moral panic. Specifically, it was hypothesized that younger respondents have higher levels of moral panic compared to older respondents. The results of the regression analysis, however, did not indicate that age is significantly correlated with any of the individual attributes. The third hypothesis examines the impact of race/ethnicity on moral panic, predicting that minorities exhibit higher levels of moral panic as compared to whites. Race/ethnicity was found to have a significant correlation with two of the individual attributes of moral panic. With respect to the defense dimension of the concern attribute, blacks were significantly less likely than whites to believe that CHL holders should be permitted to bring firearms on campus (B=-0.195, p<.01). Additionally, as compared to whites, Hispanics offered greater support for volatility (B=0.170, p<.01). The remaining attributes of moral panic (consensus, concern prevention, hostility, and disproportionality) were not found to be significantly related to race/ethnicity. The final hypothesis focuses on the effect of respondents’ fear of personal crime on their subscription to moral panic. Specifically, it was hypothesized that those who report greater levels of fear of personal crime and victimization (as opposed to property crime) would express heightened reactions to the school shootings panic With regard to hostility, respondents who reported greater levels of fear of personal victimization express more punitive attitudes about school shootings (B=0.179, p<.05). A significant effect of fear of personal crime on the disproportionality attribute also was found. Respondents who reported greater fear of personal victimization also believed school shootings are more likely to occur than they actually are (B=0.290, p<.01). Fear of personal crime, however, was not found to be significantly correlated with consensus, either dimension of concern, or volatility. It is important to look at moral panic as it relates generally to school shootings. To accomplish this goal, a general moral panic scale was employed, comprised of all 19 questions used in the different moral panic attribute measures resulting in a Cronbach’s alpha of .370. These findings are presented in Table 4. Only one variable, fear of personal victimization, was significantly correlated with the general moral panic scale. Respondents who expressed greater levels of fear of personal victimization were more likely to report greater moral panic over school shootings (B=0.288, p<.01). oa ai,sho hoig,adfa fcie103 crime of fear and shootings, school panic, Moral

Table 3 OLS regression results for moral panic attributes

Consensus Concern Concern Hostility Disproportionality Volatility (Prevention) (Defense)

Gender Female -.064 (.228) -.028 (.208) -.127 (.285)** .016 (.431) .077 (.518) -.197 (.208)** Age 22 and older .048 (.217) .000 (.198) -.060 (.272) .057 (.410) -.016 (.494) .062 (.198) Race/Ethnicity Black -.025 (.375) -.066 (.342) -.195 (.469)** .073 (.709) -.034 (.853) .016 (.345) Hispanic -.045 (.233) .118 (.213) -.042 (.292) -.022 (1.103) -.019 (.532) .170 (.212)** Other .057 (.584) .102 (.533) -.032 (.730) -.019 (1.125) .013 (1.325) .002 (.531) Gun ownership Non-owner -.056 (.234) .040 (.213) -.385 (.294)** .200 (.442)** -.021 (.532) .008 (.213) Residence Off-campus .037 (.334) .030 (.305) .103 (.417)* .089 (.630)* .009 (.757) .008 (.303) Fear/Risk of crime Fear (Personal) .071 (.020) .068 (.019) -.027 (.026) .179 (.039)* .290 (.047)** .140 (.019) Fear (Property) -.087 (.017) .128 (.015) .029 (.021) .105 (.031) .064 (.037) .014 (.015) Risk (Personal) -.116 (.034) -.209 (.031)* -.088 (.043) .009 (.064) .042 (.077) .051 (.031) Risk (Property) .000 (.021) -.003 (.019) .099 (.027) .042 (.040) .126 (.048) -.054 (.019) R2 .052 .082 .280 .175 .217 .076 Adjusted R2 .022 .054 .257 .150 .192 .047

Note: Results are presented as the standardized coefficients with the standard errors in parentheses * p<.05. ** p<.01 104 J. Schildkraut et al.

Table 4 OLS regression results Moral panics for general moral panic scale Gender Female -.033 (.987) Age 22 and older .023 (.943) Race/Ethnicity Black -.051 (1.637) Hispanic .014 (1.015) Other .020 (2.516) Gun ownership Non-owner -.041 (1.016) Residence Off-campus .098 (1.438) Fear/Risk of crime Fear (Personal) .288 (.089)** Fear (Property) .101 (.071) Risk (Personal) -.067 (.147) Results are presented as the stan- Risk (Property) .118 (.092) dardized coefficients with the R2 .167 standard errors in parentheses Adjusted R2 .141 * p<.05. ** p<.01

There were a number of unanticipated results that emerged that do not directly relate to the four hypotheses. Interestingly, in examining consensus (Table 3), none of the independent variables were significant. When examining the concern prevention attribute (Table 3), only one variable, the perceived risk of personal victimization, was significant. Students who report having a higher perceived risk of personal victimization express less concern over prevention (B=-0.209, p<.05). Along with the significant effects directly relating to the hypotheses, the results indicate that lack of gun ownership and residing off-campus impact the defense dimension of concern (Table 3). Not surprisingly, respondents who did not own firearms also indicated less support for carrying firearms on campus than gun owners (B=-0.385, p<.01). Finally, respondents who lived off-campus offered more support for being able to carry firearms on campus than those who resided in on-campus housing (B=0.103, p<.05). This last finding may be attributable to a weapons ban at the university. The model for hostility, the attribute that represents punitive attitudes toward school shootings on campus, yields two interesting findings not anticipated by the hypotheses (Table 3). Compared to the gun owners, respondents who reported not owning a firearm reported significantly more punitive attitudes regarding school shootings (B=0.200, p<.01). Further, students living off-campus expressed more punitive attitudes than those living in on-campus housing (B=0.089, p<.05). While additional variables have been shown to be significant among the different attributes of moral panic, the results suggest that moral panic about school shootings is driven by several key variables. Fear of personal victimization was the most consistent predictor of moral panic. Specifically, the greater the respondent’sfearofpersonal Moral panic, school shootings, and fear of crime 105 victimization, the more they expressed support for the attributes of hostility, disproportionality, and moral panic overall. Both females and non-gun owners had lower levels of concern over defense measures, as compared to respondents who were male or owned guns. Females also expressed less support for volatility as compared to males, while non-gun owners reported greater levels of hostility towards would-be school shooters than respondents who own guns. Finally, respondents who live off campus expressed greater levels of hostility and concern related to defense measures, as compared to students who reside on campus. This is discussed further in the next section.

Discussion

Since the early 1970s, beginning with Young [9] and Cohen [10], research on moral panic has continued to evolve. From the “Mods and the Rockers” and muggings to the drug epidemic of the 1980s, satanic day care centers, and more recently school shootings, the moral panic literature (e.g., [2, 16, 21, 72, 89]) often has examined issues of special importance. These studies, however, typically have been conducted with qualitative, historical data. Notably absent from this research is a quantitative assessment of the concept of moral panic, specifically as it relates to a current issue of heightened concern. This is the important gap in the literature the present study sought to fill. The present study was designed to assess the attributes of moral panic proposed by Goode and Ben-Yehuda [26, 27] and later conceptualized in relation to school shootings by Burns and Crawford [2]. School shootings, though rare, are considered by many to be occurring much more frequently than they actually are. With events, such as the shootings at NIU, and perhaps more infamously Virginia Tech, school shootings graduated to a concern and threat for college students, in addition to elementary, middle, and high school students. In particular, the present study sought to determine what characteristics of college students would predict individual beliefs reflective of the moral panic over school shootings. It was hypothesized that females, minorities, and those with greater levels of fear of personal victimization would express such attitudes indicative of these events. The results of the study offer mixed support for these propositions. Fear of crime is the most salient predictor of respondents’ subscription to moral panic about school shootings. What is important to note is that it is the fear of personal, rather than property, victimization that is correlated with the overall moral panic about school shootings. Given the particularly violent nature of school shootings, this is understandable. Respondents who report greater fear of personal victimization also expressed greater hostility and disproportionality. In sum, those people who fear for their personal safety are more likely to believe that school shootings are occurring much more frequently than they actually are, and are more likely to want punitive action to be taken against would-be school shooters. The independent variables included in the models are most predictive of the defense dimension of the concern indicator, explaining 28 % of its variation. While it is expected that respondents who do not own guns would be less likely to favor gun rights, it is the other significant predictors that are especially interesting. The results 106 J. Schildkraut et al. indicated that females and blacks showed less support for the right to carry guns on campus. Similar to the finding on non-gun owners, ownership of firearms may be driving these results. Typically, females are less likely to own guns, as compared to males [96]. Further, blacks are less likely to own guns than both whites and Hispanics [96]. In addition to respondents’ gender, race, and status as gun owners, location of residence also is significantly correlated with the level of one’s concern over defense measures. Respondents living off campus were more likely to support carry-on-campus measures than those living on campus. This may be due, in part, to the campus ban on concealed handguns, requiring that all weapons remain off campus during one’satten- dance. In addition to illustrating respondents’ concern over defense measures, two independent variables also may be used to underscore respondents’ hostility towards would-be school shooters. Non-gun owners, as compared with respondents who own firearms, expressed greater levels of hostility toward would be school shooters. Taking the negative relationship between gun ownership and concern over defense mechanisms into account, it is plausible that respondents may exhibit more hostile attitudes when they believe their safety is threatened and safety practices are not in place. Further, one could attribute the greater level of hostility for off-campus residents, as compared to respondents living on campus, to the stringent screening and security measures in place at the dorms that are not necessarily in place at publicly managed facilities. Overall, the findings of the present study not only garner support for the application of Goode and Ben-Yehuda’s[26, 27] attributional model of moral panics, but also its quantitative application to the phenomenon of school shootings. School shootings, as the results indicate, have the ability to generate concern over the phenomenon. Interestingly, support was found not only for the use of concern as an indicator, but also for the use of opposite dimensions of the attribute (defense and prevention). School shootings also can elicit hostility in the form of punitive responses, and can ultimately paint school shooters as folk devils. The response to school shootings also was shown to be disproportional to how frequently the events actually occur—by and large, respondents believed that school shootings are much more common than they actually are, which correlates with their perceived likelihood of being a victim. This is shown to be due, at least in part, to the volatility that is characteristic of school shootings. Media coverage of these rare events often erupts as suddenly as the shootings, but dissipates nearly as quickly once the news organizations find their next big story [30]. Finally, the results indicate that, at least in part, a consensus exists about the nature of school shootings as a social problem. While the study yields a number of interesting considerations with respect to individual-level correlates of moral panic about school shootings, there are several limitations that must be considered. First, this test of moral panic was conducted at a single university. Moreover, convenience sampling was used for data collection, which can limit the generalizability of the results. In order to validate this study’sfindings,it must be replicated at other universities. Additionally, future studies may wish to include perceptions of the moral panic of school shootings from other groups in the college community, including faculty, staff, and on-campus law enforcement. Future studies also may wish to consider different questions that assess Burns and Crawford’s[2] application of moral panic to school shootings. While the majority of the questions were adapted directly from their article, there is a plethora of additional questions that could be used to measure moral panic. Researchers also should examine Moral panic, school shootings, and fear of crime 107 additional predictors of moral panic, such as media consumption and behavioral patterns. Media consumption is a particularly relevant variable, given its ability to influence public opinion and drive policy changes. At the same time, however, reactions from groups, such as college students, also may create a demand for more news coverage of these events. Such considerations also should be investigated through future research. Despite the limitations, this study contributes to the body of literature on moral panic in several ways. First, the information gleaned in the present study is beneficial, as it is among the first quantitative applications of moral panic, particularly in the context of looking at individual reactions to a specific phenomenon. Additionally, the findings support the use of Goode and Ben-Yehuda’s[26, 27] attributional model, which teases out different possible reactions to the same issue. Further, the findings of this study have potential policy implications that must be considered, both for universities and the media alike. Universities may wish to use this information when determining how best to educate students on the threats and responses to shootings on campus. In a broader sense, these findings also may be useful to media producers in determining how best to present the content related to school shootings in an attempt to mitigate potential fear caused by these events. In sum, the findings of this study pave the way for additional moral panics, whether over terrorism, drugs, or the next wave of “Mods and Rockers,” to be tested to offer greater insight into them.

Acknowledgments The authors wish to thank the anonymous reviewers for their feedback on this research. A previous version of this manuscript was presented at the 2013 annual meetings of the Academy of Criminal Justice Sciences.

References

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