How does social injustice lead to crime

Operations: Articles, Equality - 1/5/73

Inequality Before the Law: Criminal Justice and Social Classes

By: Rüdiger Lautmann and Dorothee Peters

events No. 1 (issue 1/1973), 45-54

"Do you think that in court the common man is not treated as well as the better people?" 42% of a cross-section of the population answered this question in the affirmative. And as many as 74% agreed that “it is easier to win a lawsuit when you have a lot of money” (1). Survey results of this kind do not, of course, say much about the actual conditions in the judiciary. But there are apparently pronounced assumptions in the consciousness of the population, the cause of which some find in a “class justice”, while others see nothing at work here as the “defamation sociology of system defenders”. Some empirical studies from the last three years allow us to leave the level of conjecture and assumption; The sociology of law is today able to largely answer the question for the criminal justice system: Are members of the lower social classes disadvantaged in court?

Inventory: Different judgments on the same facts?

The people in the Federal Republic are unequal in terms of wealth, income, working conditions (especially autonomy in the profession), education and other life opportunities: According to the proportion of these goods, they can be assigned to social strata (or classes), the easiest being to refer to the profession - as the dominant stratification criterion - assumes:

- Upper class (0, e.g. board members of a large AG) = 1%
- upper middle class (OM, e.g. authorized signatories, doctors, university councilors) = 6%
- middle middle class (MM, e.g. middle merchants, inspectors = 14% - lower middle class (UM, e.g. salespeople, sergeant) = 29%
- upper lower class (OU, e.g. skilled workers) = 29%
- lower lower class (UU, e.g. auxiliary and agricultural workers) = 17%
- Outclassed (e.g. tramps, people in preventive detention) = 4%.

Crime, as it is prosecuted by the criminal justice system, is not distributed among the social classes in the way that would be expected based on their size: half in the upper and middle classes, the other half in the lower classes. Every visit to courtrooms teaches us something different; only a few White Collars are charged here - the vast majority are workers. The selection process, with which mainly workers are recruited for the roles of defendant and criminal record, begins with the police. Let's take a look at the example of theft (because this is the most common offense; this includes over half of all reported crimes, excluding traffic offenses, and over a third of the perpetrators arrested). The people suspected of theft by the police during an observation period came from social classes (2):

- O-I-OM + M = 1%
- UM = 3%
- OU = 30%
- UU and outclassed = 65%

It shouldn't look much different before the criminal court, because this is where the cases researched by the police and prepared for the prosecution by the public prosecutor come to. Criminal justice, to put it bluntly, has to do with “little people” and “poor devils” - the members of the social lower classes. There are three attempts to explain this (which are not mutually exclusive). On the one hand, according to a widespread view, lower-class people are so often charged, simply because they break the criminal law so often (3). As we shall explain later, such a theory appears to us to be a consequence that is most welcome to the beneficiaries of the social class structure and thus as a latent function of criminal proceedings. But the studies available to date on the actual breaches of the norm, including the dark field, by no means confirm these assumptions; there are numerous norm breakers of high social rank - just not before the criminal court. It is because of the content of criminal law that the behavior of workers tends to be criminalized. The property and the integrity of those in possession are seamlessly protected by criminal law with numerous articles on theft, embezzlement, stolen goods, etc. Even the little thief risks a long prison sentence in the event of repetition. In contrast, workers 'claims to fair wages and secure jobs, consumers' claims to edible goods, reasonable prices, usable apartments, etc., are largely ignored in current criminal law, so that violations by employers, dealers, homeowners, etc., are not considered criminal. This interest-relatedness of criminal law stamps it as class law, and those who enforce it become inadvertently the enforcer of the interests behind it.

Finally, the new criminal sociology emphasizes that Law enforcement selectivityto explain why the lower classes are so overrepresented among the defendants and convicts. The sanctioning authorities proceed - without bad intentions - in such a way that people with certain characteristics (especially typical for the lower class) are punished. We have learned recently that the police primarily control "suspicious" areas and people who "suspect" look or behavior; Therefore, the members of the socially underprivileged classes have the far higher prospect of being suspected and being controlled, as well as relatively little power and little knowledge of defending themselves from the definition of criminal (4). The next station in the criminal proceedings is the (still little investigated (5)) public prosecutor's office. An accused academic can intervene here; his lawyer gives exonerating interpretations, and it is not uncommon for the matter to be brought to a halt (perhaps in return for a generous fine). An accused worker, on the other hand, usually not represented by a lawyer, can hardly intervene in his favor; if the suspicion against him is confirmed, charges will be brought.

How do the criminal judges deal with the accused? At least this should be undisputed on all sides: criminal judges do not consider the interests of criminal law; In the probably erroneous assumption that they are abiding by the law and following the principle of separation of powers, they apply the law as it is discriminatory on paper - instead of using the existing scope for decision-making with a compensatory interpretation. Criminal judges also do not take into account the selectivity of criminal prosecution on the part of the authorities assisting them; rather, it seems that they increase this selectivity to the detriment of lower-class defendants. So far, this has only been observed directly for traffic offenses; there, defendants from the lower class are more likely to be punished with deprivation of liberty and driving licenses, and the proceedings rarely end with acquittal or suspension - compared with defendants from the middle classes (6).
These are statistical tendencies that cannot easily be generalized. Another study produced inconsistent results. A large number of judges were presented with a case for assessment: a man has raped a girl and is shot dead in affect by her father; how is the father to be punished? The class affiliations of the father and the husband were now varied during the survey. In one of the two cases, the judges questioned punished the lower-class member more severely than the middle-class member (if the victim, the man who was shot, was himself a lower-class member); in the other case (the victim was a middle-class man) the lower-class defendant got off better (7).
At this point, by the way, the methodological and theoretical problems that arise when one investigates the question of class justice empirically and sociologically (instead of deducing the result from an a priori assessment of the social superstructure or simply dismissing the question as defamation) become visible. From the examples of traffic and manslaughter offenses mentioned, it can now be concluded that it depends on the type of offense whether defendants from the lower classes are discriminated against. The investigation method may also be relevant: Are live or fictional cases investigated? Are the judges under observation given clear facts, or do you let them determine it first? After all, it is probably all too easy to simply oppose the lower and middle classes to one another (for example, in the form of the occupation statement worker or councilor); rather, the judge's behavior is influenced by other, only indirectly class-specific, characteristics that are mediated, for example, by the judicial conception of stratification.
So is the latest research on criminal justice and social stratification decisive, how the judge assesses the professional and family situation of the defendant. If the accused has a job that “binds” him and which he does regularly, if he does not change jobs frequently, has a permanent address, especially does not live in an emergency shelter, is married and lives with his wife - then his lifestyle appears as regulated and orderly. If a defendant meets these criteria badly or not at all, so his living conditions appear to be unregulated, then the judge often qualifies the accused behavior as a "planned act of particular injustice" and the judge's prognosis of future behavior is rather unfavorable - because it does not appear as Occasional offenders rather than habitual criminals - so that a fine is not considered sufficient and a prison sentence is imposed instead (9). Those unfavorable properties can be found individually and occasionally also in the middle and upper classes; They occur more frequently and particularly often in the lower class, namely in the lower lower class and among the declassed (10). Therefore, the members of these lowest strata are most severely sanctioned by the criminal justice system.

Mechanisms: rules of judicial construction of reality and application of law

The discriminatory assessment of the lower-class defendants is far removed from anything that the judges consider Perversion of the law would reject indignantly. Criminal law, as set out in laws, supreme court decisions, and explanatory books, is followed fairly faithfully. The mechanisms of discriminatory criminal justice are also hardly covered by the formal legal trade; They lie on those two levels of legal activity that have always been ignored by official jurisprudence: Reconstruction of the facts to be assessed and filling of the scope for decision-making always granted by the legal norms, in other words: Discrimination takes place through the application rules of the judges. In addition to the formal legal rules, there are also informal (non-codified and unspoken) rules that guide the judge in concretising the often abstract and flexible legal norms. Only when these rules of application are taken into account do the structures of judicial behavior become transparent.
The criminal judge must determine whether the defendant has committed the offense against which he is charged. Only rarely are all the relevant details of the event unequivocally established (namely the external course, the contributions of the accused to it and the contents of his consciousness). The judge forms a certainty about this without being able to explain everything worth knowing. In this situation - almost every case forces him to do so - he relies on assumptions about the regular nature of social reality and courses of action. What has not become evident in the course of the process must be constructed with the help of judicial theories (namely lay theories whose sources are for example "common sense", "life experience" and internal professional traditions). It looks like this, for example: a penniless woman has been surprised while attempting to steal; in court she now claims that she voluntarily stopped shortly before the discovery. During the deliberation, the criminal judge rejects this assertion: “People are in a situation where they have no choice but to steal” (11). With this assumption about the behavior of penniless people, the exemption from punishment from the attempt is constructed away.

Criminal judges have a wide range of theoretical assumptions about the character and living conditions of people who typically commit theft. In the case of property delinquents, they repeatedly suspect the following characteristics: casual and unskilled labor of a manual nature, work reluctance, indebted emergencies, striving for easy money-making, addiction to pleasure, anti-social milieu, primitive nature, unrestrainedness and aggressiveness12. People to whom one can ascribe such characteristics appear to the criminal judge to be downright predestined for theft; The “born criminals” are to be found in the asocial milieu. If someone with a number of those negative traits is charged with theft, and if there is certain evidence (he was seen at the scene, the stolen property was found on him, etc.), then the criminal judge will tend to convict him to keep. Above all, the judge will also consider the subjective prerequisites for theft to be given: intent and intent (13).
All of this is largely at the expense of relatives lower lower layer - because that is where most of the unskilled workers live, the unpleasant job is often changed there, there are problems with the expensive apartment, family difficulties are difficult to cover up, etc. So the meanings of "unskilled laborer" and "thief" are narrow in the judicial imagination together, while the meaning of “executive” differs significantly from “thief” (verified using polarity profiles). (14)
With the relatives of the Middle and upper classes one suspects compliant, lawful behavior - and it is precisely this that protects them from being criminalized in a criminal trial (15). Now one also catches wives of academics shoplifting, employees with embezzlement and entrepreneurs with economic crimes. But this property crime is valued differently: it arises from seduction and does not express the attitude of a "normal" thief who, according to his whole way of life, tends to repeat the crime. In this way, many judges decriminalize property offenders from a higher social class; Their actions are not attributed to them as criminal, rather they tend to be unconscious or unmotivated and certainly not deducible from their social situation. The property delinquents from the lower class are quite different: here it is conscious and planned actions that grow out of the asocial milieu and express an overall criminogenic potency of this milieu. With this mechanism, the criminal justice system achieves the exculpation of the high-ranking norm-breakers and at the same time ensures the punishment of the lower-ranking ones.
Application rules also guide the judges in the interpretation of the almost always ambiguous legal rules, which often even expressly give him a discretion, such as for the selection of a sentence from the legal penalty framework and from the optional provisions on further measures. The judge can go to the upper limit of the sentence and impose ten years imprisonment for a burglary; but it can also stay at the lower limit - then it is only three months; he may even drop the case entirely on the grounds of triviality. He can also convert a smaller prison sentence into a fine or suspend it on probation. All of this is largely left to the discretion of the judge, and his rules of application intervene when the leeway is filled.

Let us consider this using the example of Parole on probation. The judges decide here according to these criteria (in order of priority):

- perpetrator has not yet been punished
- The perpetrator has started to make amends for the damage,
- he pursues his career plans with determination,
- he got married and thus gave up his bondless life,
- he now has regular work, but was unemployed at the time of the offense, and other things (16).

These criteria reflect the values ​​of the upper middle class, to which the judges themselves belong and mostly also come from, and the living conditions and habits of the privileged are reflected in them. Seven of the eight criteria classified as most important by criminal judges favor people from the upper classes and burden those from the lower classes. The decision to suspend the sentence is therefore made on a shift-specific basis.
The other discretionary decisions are also made by many criminal judges on the basis of class-discriminatory application rules. In the decision-making situation of a fine or imprisonment, the majority of the judges focus on whether the defendant appreciates regular work, is ambitious, has acquired property, etc.These judges say about a warehouse worker with an unregulated lifestyle, for example, that imprisonment is not so bad for him, as it is a common occurrence in these circles. In contrast, according to one of the judges interviewed, “an academic in prison ...”. actually unthinkable for us "(17).
We have considered the rules of application of the judge - his lay theories, values ​​and procedural routines - in great detail (however, the theses are only adequately substantiated in the cited new literature). Another important mechanism should be pointed out: a defendant from the lower class is at a disadvantage in the main criminal trial because he does not have the expressiveness and the activity that a middle class man mobilizes in this precarious situation by virtue of his education and agility. The resistance of the lower class member against the attribution of the act and the perpetrator characteristics therefore remains low, the sentence becomes tougher (18). Our judges, however, are exercising their office, hardly touched by sociological criticism and with little awareness of the problem of the mechanisms of class discrimination: most judges see themselves as objective, neutral bodies (19).

Overall social functions: legitimation and consolidation of social inequality

It would mean misunderstanding the power of social structures if we were to limit ourselves to exposing this consciousness of the judges as a concealment of interest-dependent jurisprudence, as pure ideology. The judiciary, whose judgments suggest a coalition with the ruling social groups, is generally carried out without the judges being aware of that coalition. Yes, it is precisely the lack of insight into the mechanism of unequal application of the law that means that social structures can shape the decision-making criteria to such an extent and that the independence of the judiciary becomes legitimacy. The same criteria for evaluating actions and people who have become social reality in this society and in the inequality that characterizes it, function in the form of judicial application rules as supposedly objective criteria for reaching a judgment. It does not mean anything else if, for example, the work conduct of the accused, the steadfastness and ambition he shows in his work and in his profession, as well as the professional success, the prestige of his professional position appear suitable to confirm or dispel suspicions, To facilitate the decision between a fine and a prison sentence and to provide the arguments for or against the suspension of a prison sentence on probation. This mode of distributing sanctions is similar to the mode of other social distribution processes: according to the extent of such conformity (or the social characteristic that is considered the measure of conformity, the professional position), other opportunities for action are measured in society, namely income, prestige, educational opportunities Children etc. Generally speaking: the social characteristics that are revealed in the judges' rules of application as conditions for criminalization (or as protection against criminalization) are at the same time the criteria according to which goods and opportunities for action are distributed in this society. A judiciary that uses the structure of social inequality as a measure of the distribution of sanctions acts against its principles, but conforms to the laws of other social distributions.

It is precisely from this that the accusation of class justice can be derived. The criteria that guide social distribution processes are only to a very small extent to be regarded as regularities on which “society” would have agreed; rather, they are the subject of social conflict. Their validity comes about through power and is guaranteed through domination - also through the fact that those excluded from power accept the criteria which justify the distribution of social power and thus their low social rank. The mode of distribution that applies in society is based on the stronger battalions. This is particularly true for the social area, to which the judges' rules of application, which are based on the work and professional behavior of the accused, refer. Those who are successful according to this standard are interested in the importance of work behavior as a yardstick for the distribution of social goods and in the control of this distribution through assessments and sanctions, and in particular those who define conformity or deviation with regard to the norms set with it can. In our society, this power lies primarily with the owners of the means of production. Ultimately, they decide about the working conditions, about professional success or failure and thus about the share of goods and opportunities for action of those who depend on them and thus have to earn a living. By making the degree of conformity in the work area a criterion for its judgment, the judiciary fights with the stronger battalions and judges as a class judiciary.
Every now and then (but by far not with all judges for whom these application rules can be proven) this social location of the judiciary is consciously accepted and understood in terms of class struggle. This is how a judge justifies his view that burglary and theft in general are serious offenses, with the following remarks on the social type of property delinquent: “He is a family member and has an educational burden. These are almost always elementary school students, often those who have dropped out. Like the rest of us, you have no inhibitions. The father says something like: 'Who will let the capitalists get along? I'll get the things myself if I don't get them. ' These are mostly people who are not accustomed to regular work after their upbringing, according to tradition - mostly the unskilled worker "(20). Overall, however, the prevailing interests seem to assert themselves so successfully in the judicial rules of application because the Justice is not aware of the social function of criminal law and the rules of application: their validity appears to be independent of interests, often even absolute "(21).


The function of the judiciary for the structure of social inequality is not limited to the fact that the judges confirm the criteria of the distribution of goods by defending norms which express the social distribution of power and by developing rules of application which guarantee those norms. The function of the judiciary is therefore not limited to the legitimation of the ruling structure. Rather, the judiciary is also involved in solidifying this structure by imposing sanctions that affect the social rank of the accused. By setting a penalty, the judges decide, for example, whether the accused will lose his professional position, whether he will ever be able to find a job that corresponds to the judges' ideas of regularity and social commitment, whether or not his family or marital relationships are endangered and with all this also about whether he will be able to meet the expectations of a regulated lifestyle in the future. The judgment itself creates the living conditions that will be used as criteria for the formation of a judgment in future criminal proceedings. Thus the "theories" of judges about crime and criminals are confirmed when they are applied. Not least because of this, judges even decide on the likelihood of relapse. This is proven by studies that deal with the forms of criminal careers. A criminal career with an ever increasing relapse rate is regularly initiated by the fact that the criminal law measures on the occasion of the first breach of the norm make it more difficult for the delinquent to take action and to make contact with law-abiding partners (22). The criminogenic effects of the intervention are so important for the progress of the criminalization process that those who are caught have a significantly higher subsequent crime rate than those who can evade this intervention (with the same “criminality” of both groups) (23). The extent to which a sentence has these social effects depends on the extent to which its execution disrupts social contacts and the stigma it attaches to the person who has served it. Today it can no longer be questioned which type of punishment has the most criminogenic effect. The served custodial sentence leads to the highest follow-up crime compared to other types of punishment; relapse statistics make this clear again and again. Criminal decisions are made according to rules of application that are directly based on the social rank of the accused (for example: an academic in prison is unthinkable) or that indirectly take into account the behavior attributed to a social rank (professional success documents determination at work). The inequality of the accused before the law is followed by an even greater social inequality after justice has been performed on him. The high-ranking norm-breaker is saved from the social decline that serving a prison sentence would cause. In contrast, for the lower-ranking norm-breaker, the stigma of having been released from prison means relegation from the lower class to the group of the declassed. Hence, the judiciary could not contribute to the reduction of social inequality even by mechanically realizing equality before the law; it would have to go beyond that. The judiciary would have to judge in a compensatory way: by privileging the disadvantaged.

 

1 W. Kaupen reports on this survey (summer 1970, representative cross-section of the population), The relationship of the population to the administration of justice, in: Yearbook for Legal Sociology and Legal Theory 3 (in press); furthermore, legal policy and opinion research, in: Law and Politics 7 (1971), pp. 162-167 (165).
2 D. Peters, The social origin of the perpetrators picked up by the police, in: J. Feest, R. Lautmann (Hgb), Die Polizei, Opladen 1971, pp. 93-106 (96).
3 See, for example, T. Moser, Juvenile Criminality and Society Structure, Frankfurt 1970, pp. 11-18. Marxist criminologists also think so; See author collective R. Ahlheim et al., Gefesselte Jugend, Frankfurt 1971, pp. 95-100.
4 J. Feest, E. Blankenburg, The power to define the police, Düsseldorf 1972, p. 57.
5 See, however, P. Best, The role of the youth public prosecutor in the criminalization process, in: Kriminologisches Journal 3 (1971), pp. 167-184.
6 Cf. on this K. F. Schumann, G. Winter, On the analysis of criminal proceedings, in: Kriminologisches Journal 3 (1971), pp 137-166 (142); H. Lewrenz et al., The practice of sentencing for traffic offenses in the Federal Republic of Germany, Hamburg 1968, pp. 32, 35, 39, 48.
7 K.-D. Opp, R. Peuckert, Ideology and Facts in the Jurisdiction, Munich 1971, S 31f, 42-45.
8 D. Peters, Judge in the Service of Power. On the Social Distribution of Crime, Stuttgart 1973 (in press), Part 3.1.
9 Ibid, Part 3.2.
10 Ibid, Part 3.4, (Table 7).
11 R. Lautmann, Justice - the silent violence. Participatory observation and sociological decision-making analysis, Frankfurt 1972, p 141.
12 Peters op. Cit. (Note 8), parts 5.1.1., 5.1.2., 6.1 (table 17).
13 For example A. Menger, Civil Law and the Possessed People Classes, 3rd edition, Tübingen 1904, pp. 27f.
14 Peters op. Cit. (Note 8), part 6.2.
15 For this and the following see ibid, parts 5.3.1., 5.4., 7.4.
16 Ibid, part 7.4.1.
17 Ibid, part 7.4.3.
18 See Schumann, Winter aa0 (note 6), p. 145f.
19 So for administrative judges: A. Görlitz, Verwaltunsgerichtsbarkeit in Deutschland, Neuwied 1970, p. 218.
20 Peters, loc. Cit. (Note 8), part 5.1.2.1.
21 Ibid, part 5.1.3.2.
22 Howard S. Becker (Outsiders, New York 1963) and Edwin M. Lemert (Social Pathology, New York 1951) have described the course of such processes. Their work shows that the probability of a criminal career is much greater with those whose norm break is sanctioned.
23 See Martin Gold, Delinquent Behavior in an American City, Belmont Brooks 1970.