Peter Kraska. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
What is criminal justice theory? Strangely, few academics in criminal justice studies would have a clear answer. Despite the large number of academic programs and scholarly works dedicated to studying criminal justice, the field has hardly asked, let alone answered, this fundamental question (Bernard & Engel, 2001; Duffee & Maguire, 2007; Hagan, 1989; Kraska, 2006; Marenin & Worrall, 1998). Given that a theoretical infrastructure is the intellectual and conceptual core of any legitimate area of study, the time is past due to begin recognizing and developing a theoretical foundation explicitly intended to make theoretical sense of criminal justice.
It is not that criminology and criminal justice studies scholars are not experienced with theory and the activity of theorizing. Researchers in the field have amassed an impressive body of theoretical work. The focus of this work, however, has concentrated mostly on answering the “why” of crime and explaining crime rates. When the term theory in used in the field, it usually refers to crime theory. Criminology theory courses and theory textbooks concentrate almost exclusively on explaining crime. Theoretical research in the field, as evidenced by the articles published in the journals Criminology and Justice Quarterly, mostly test preexisting explanations for crime. The field’s theoretical infrastructure is built on explanations of crime, not criminal justice.
An underlying assumption in the field is that the discipline of criminology is more interested in explaining the why of crime and thus by nature is more theoretically oriented. It follows, then, that studying criminal justice is necessarily a policy-based pursuit more interested in effecting practical crime-control initiatives, as derived from theories of crime (Gibbons, 1994). Studying criminal justice is tacitly relegated to the limited role of discerning “how to” and “what works”—laudable objectives, but incomplete insofar as understanding the nature of our formal reaction to crime. Dantzker’s (1998) delineation between criminology and criminal justice is typical of this view:
Criminology is the scientific study of crime as a social phenomenon—that is, the theoretical application involving the study of the nature and extent of criminal behavior. Criminal Justice is the applied and scientific study of the practical applications of criminal behavior—that is, the actions, policies, and functions of the agencies within the criminal justice system charged with addressing this behavior. (p. 107)
Are not both criminology and criminal justice studies diminishing their theoretical integrity with this conception? Surely the study of criminal justice, by both criminological and criminal justice scholars, has involved far more than merely describing its functioning and devising means of crime control. There is no reason that the study of criminal justice cannot be approached in the same way Dantzker (1998) views the study of crime. By slightly modifying his quote, criminal justice studies could similarly be viewed as “the scholarly examination of criminal justice as a social phenomenon—that is, the theoretical application involving the study of the nature and extent of criminal justice behavior.” The notion that the activity of theorizing criminal justice phenomena can somehow be excluded is not only erroneous but also highly damaging to the disciplinary integrity of criminal justice studies.
Some traditional criminological theorists might take exception to this view. After all, they would argue, crime theory has already been used as the foundational material for developing models of criminal justice functioning (see Einstatder & Henry, 1995). This approach to understanding criminal justice takes traditional crime theories and infers a model of criminal justice functioning based on that particular conception of crime causation. Although modeling criminal justice functioning does shed important theoretical light on the system, even those involved in the activity admit that these models do not constitute the development of theory (Einstatder & Henry, 1995). This exercise also reinforces the notion that there can be no other theoretical foundation for understanding criminal justice behavior besides those preexisting theories designed to make theoretical sense of crime.
Some critical criminological theorists might also take exception. Critical criminology has a rich body of work theorizing the behavior of the state, the legal apparatus, trends in social control, and oppressive crime control policies. In fact, compared with their analysis of criminal justice behavior, explaining lawbreaking has been a secondary pursuit. This is one reason critical scholarship often seems out of place in most criminological theory textbooks: Their object of study—an oppressive crime control apparatus—does not coincide well with theories focused only on crime causation. Even when critical criminologists explore the causes of crime, they most often focus on the oppressive features of how the state differentially defines acts as crime among marginalized groups (again, focusing on state behavior). Seen this way, critical criminology is more engaged in theorizing criminal justice than crime.
Criminal Justice Theory: Varieties and Possibilities
Theorizing crime has proved to be a complex endeavor. The object of study is difficult to identify and agree on, a plethora of theories compete for prominence, and determining the strength and worth of these theories is wrought with controversy and conflicting evidence. This description is not meant as an indictment; instead, criminological theory’s complexity and conflicts render it dynamic and intellectually stimulating.
Theorizing criminal justice possibly harbors even more potential for this type of complexity and stimulation. The central reason is the multifaceted nature of the object of study. The entity called criminal justice actually comprises numerous objects of study—including the criminal justice system; each of the major components within that system (police, courts, corrections, juvenile justice); crime control agencies and practices that fall outside the formal criminal justice system (private sector controls, social services); and other participants in criminal justice, including, but not limited to, academic researchers, the media, the legislative body, and the public.
The following questions are just a sample of the types of inquiry scholars pose when theorizing criminal justice:
- How do we best make theoretical sense of the criminal justice apparatus’s (CJA) long-term historical development?
- What accounts for the steep growth in power and size of the CJA over the last 30 years?
- How do we best make theoretical sense of current and possible future trends associated with the CJA?
- On what theoretical basis can we best understand various controversial issues facing the CJA (e.g., racial profiling, death penalty, erosion of constitutional safeguards, privatization, etc.)?
- On what theoretical basis can we best make sense of past and current criminal justice reform efforts, including what drives them and why they succeed or do not?
- How does the CJA affect the larger society in which it operates; conversely, what societal forces shape the CJA?
- How do we best make theoretical sense of the behaviors of criminal justice practitioners?
- What best explains the internal functioning and practices of criminal justice agencies?
These questions demonstrate that the field’s crime theories, because they have been constructed specifically to explain crime, are insufficient for providing adequate answers. Attempting to explain the behavior of the state, public agencies, the criminal law apparatus, trends in crime control thinking and practice, private crime control organizations, and trends in social control necessitate a theoretical infrastructure unique to these unique objects of study.
Numerous approaches to developing criminal justice theory are possible. One was already mentioned: constructing models of criminal justice functioning based on differing theories of crime. David Duffee (1990) took the more traditional approach by attempting to articulate a general theory of criminal justice grounded in the context of local communities. Of course, the development of a grand theory that accounts for all social, political, economic, and cultural influences would likely be an impractical undertaking. His more recent work (Duffee & Maguire, 2007) essentially argues for the same type of theory work advocated in this chapter. Another avenue has been to answer specific theoretical questions about a specific object of study. David Garland (2001a), for example, limits his theoretical analysis to the question of what accounts for the rapid growth of the criminal justice system over the last 30 years (focusing primarily on the correctional subsystem). Other researchers concentrate on explaining individual practitioner behavior—such as why some police officers engage in corruption. Finally, some academics have worked on developing normative theories of criminal justice, concentrating on philosophical principles intended to guide criminal justice practices (Braithewaite & Pettit, 1990; Ellis & Ellis, 1989).
Theoretical Orientations: Infrastructure Beginnings
The problem addressed here has been carefully framed as one of recognition and accessibility. If one conceives of criminal justice theory as a body of literature attempting to make theoretical sense of the various objects of study noted earlier, the problem also lies in the labels that are used to identify particular areas of scholarship.
Labels signify well-guarded intellectual territory. And has already been established, the label criminal justice studies is associated with atheoretical research and writing. Accordingly, even groups of scholars targeting their theoretical efforts explicitly on criminal justice phenomena would likely resist having their work identified as “developing criminal justice theory.” They would instead label their endeavors theories of social control (sociology proper, sociolegal studies, and sociology of punishment), theories of late-modern trends in crime control (punishment and governmentality studies), theories of oppression (critical criminology), or theories of public organization (public administration). Despite a lack of recognition and conscious pursuit of a theoretical project, there exists a substantial amount of theoretical work about criminal justice phenomena that can be conceived credibly as criminal justice theory.
One good example is the rigorous theoretical work in sociolegal studies and in the sociology of punishment. Here we have a rich intellectual project targeted at theorizing recent shifts in the crime control apparatus (see, e.g., Bauman, 2000; Garland, 1997, 2001a, 2001b; O’Malley, 1999, 2000; Rose, 2000; Simon, 1995; Simon & Feeley, 1994). Theorizing criminal justice in this instance is contextualized within the field of social control, which probably accounts for why this highly informative body of work has not had a significant impact on mainstream criminal justice and criminology literature and textbooks. Its influence is starting to take hold, though, in particular in the works of David Garland (The Culture of Control: Crime and Social Order in Contemporary Society, 2001a) and Jonathan Simon (“The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications,” Feeley & Simon, 2006; and Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear, Simon, 2007).
Another interesting example can be found in the field of critical criminology. For the last 25 years, scholarship in this area has examined the state’s oppression of marginalized groups (women, the poor, racial minorities, homosexuals) by means of the criminal justice system. This body of work could in fact be viewed legitimately as far more concerned with developing theories of crime control, specifically, oppressive state behavior, as opposed to crime behavior (see, e.g., Arrigo, 1999; Barak, Flavin, & Leighton, 2001; Martin & Jurik, 1996; J. Miller, 1996; S. L. Miller, 1998; Milovanovic & Russell, 2001; Parenti, 1999; Reiman, 2001; Shelden, 2001). This is the reason critical criminological theory fits awkwardly into traditional crime theory textbooks: The bulk of its explanatory attention concentrates on the behavior of the law, the government, and/or the state. Despite these various avenues for developing criminal justice theory, the field still does not have a well-recognized theoretical infrastructure about criminal justice.
To begin the process of rectifying this situation, Kraska (2004, 2006) has published two works that advance the obvious approach of identifying and articulating the contours of eight different theoretical orientations found in traditional and contemporary scholarship about the criminal justice system and trends in crime control.
A useful first step in mapping the vast terrain of criminal justice theory, therefore, would be to identify and elucidate the basic tenets of the various theoretical orientations that attempt to make sense of criminal justice phenomena. A theoretical orientation is simply an interpretive construct: a logically coherent set of organizing concepts, causal preferences, value clusters, and assumptions that work to orient our interpretations and understanding of criminal justice phenomena. The goal would not be to develop a single, testable criminal justice theory; to the contrary, the objective would be to illuminate the multiple theoretical lenses (broad-based interpretive constructs) crime and justice scholars use for helping people understand the behavior of the criminal justice system and trends in crime control.
The network of governmental agencies responding to the crime problem is universally known as the criminal justice system. Several theoretical orientations in the field are easily identified—the systems theoretical orientation being the most obvious. Most academics would agree that the systems framework has dominated the field’s thinking and research about criminal justice. The framework is derived from the biological sciences, Parson’s (1951) structural functionalism, and organizational studies. It has a strong reformist element, emphasizing the importance of enhancing criminal justice system coordination, efficiency, rational decision making, and technology.
Perusal of these eight orientations should demonstrate that the field actually has a rich set of theoretical lenses through which to make sense of criminal justice phenomena, aside from theories about crime. The multitheoretical approach depicted in Table 40.1 not only catalogs the diversity of thinking in the field of study but also avoids the ethnocentric tendency in academics to view phenomena through a single theoretical filter. Even though the systems metaphor has predominated, influential work has also used the interpretive orientation (social constructionism/cultural studies); the political framework; the oppression orientation; and, most recently, has studied criminal justice through the lens of late modernity.
The late-modern lens situates the criminal justice apparatus (broadly defined) within macroshifts associated with the current era of human history labeled late modernity. Criminal justice and crime control phenomena are best explained as adaptations to five late-modern social conditions:
- The rise of actuarial justice and the influence of the risk society
- A neoliberal shift in macropolitics
- Increasing contradictions and incoherence in crime control policy
- The decline of sovereign state’s legitimacy
- The ascendance of an exclusion paradigm for managing individuals perceived as posing a safety threat in an increasingly security-conscious society
The late-modern orientation is probably the most theoretically vigorous pursuit of criminal justice/crime control phenomena in the literature today.
Conclusion: Theoretical and Disciplinary Integrity
In 1998, Marenin and Worrall asserted that “criminal justice is an academic discipline in practice but not yet in theory” (p. 465). Scholars in the field have not placed high value on this endeavor for two primary reasons. The first has already been discussed: Crime theory suffices. The second is more difficult to overcome: Although exploring the why of crime has prima facie importance, our field has neither articulated nor acknowledged what value theorizing criminal justice provides. Some people assume, in fact, that studying criminal justice is inherently and necessarily atheoretical because it concentrates on practice. The notion that practice can somehow be severed from theory has been thoroughly debunked in most other major fields of study (Carr & Stephens, 1986; Fay, 1977; Habermas, 1972). Theory and practice are implied in one another; no policy analysis, implementation, strategic plan, or practitioner action is devoid of theory. To deny the integral role theory plays in all these instances is to remain ignorant of its influence.
In a sense, then, theorizing criminal justice is an inherently critical endeavor providing important insights into the systems irrationalities, missteps, and disconcerting implications. Numerous criminal justice issues guide our analysis: the criminal justice apparatus’s steep growth in size, power, and punitiveness; controversial new initiatives in the wars on terrorism and drugs; and disparities in the treatment of minorities, women, and the poor. Each of these objects of study necessitates a scholarly scrutiny of immediate causes as well as their larger theoretical context (cultural, political, economic, and sociological forces). Of course, the level at which this scrutiny is carried out will vary, ranging from a critique of a single administrative practice to perhaps a wholesale critique of the criminal justice growth complex (see Table 40.1, “Growth Complex” column). Theoretically based scrutiny focused on criminal justice and crime control should not be misconstrued as inappropriately critical. It is simply approaching criminal justice as a research problem—similar to the way crime is studied.
Theorizing criminal justice phenomena should also not be viewed as an endeavor intended exclusively for practical change. Numerous scholars in the field find the study of society’s reaction to crime intellectually stimulating in and of itself—much like a biologist studies the animal kingdom or an astronomer studies the solar system (see Kraska & Neuman, 2008). The study of humans and organizations attempting to control wrongdoing (and sometimes engaging in wrongdoing while trying to control it) yields intriguing insights about the nature of society, the political landscape, and cutting-edge cultural trends. In short, how we react to crime tells us a lot about ourselves and where our society might be headed.
Theories are repositories for substantive thought; impossible-to-avoid filters for thinking through history and major contemporary issues and trends; the foundational material through which innovative solutions to problems are developed; and the backdrop for all research in the field, whether policy based, descriptive, or theoretical. Numerous contemporary scholars are beginning to study criminal justice using more modern conceptions of systems theory, social constructionism, Foucauldian theory, feminist theory, and late modernism. The time appears right for scholars in the field to begin placing a higher value on developing a theoretical infrastructure about criminal justice. Criminal justice theory should become a normalized presence in the criminal justice and criminology degree programs, its textbooks, and its doctoral training. Nothing less than our disciplinary integrity is at stake.