Approaches to Defining Crime
The human assault on the natural environment reaches back to prehistory when our predecessors first burned wood for food, warmth, and light. But the first serious human threat to the environment and public health arose from the Industrial Revolution.
Industry began to consume enormous quantities of hydrocarbon fuels and manufacture a vast array of products from raw materials, leaving in their wake hazardous waste and pollution.
Although the Industrial Revolution created modern civilization, it became capable of destroying that civilization (Gore, 1993).
Until the 1970s, in the United States, the prevailing view held that the environmental harm from industrial production was the unavoidable price for economic progress.
As this view was challenged with increasing frequency in the 1970s and 1980s, the perception grew that damages to the environment and individuals were not inevitable costs but punishable crimes.
Although all societies have a concept of murder, few share the same one.The killing of a spouse’s lover by her enraged husband is murder in some societies but not even an indictable offense in others.
Killing in a war may be celebrated as heroism, whereas the same killing at home may be con damned as mass murder. The question of what constitutes crime, then, does not yield straightforward answers.
Criminologists are divided into two schools on this question: the strict legalism perspective and the social legalistic perspective. The strict legalistic perspective emphasizes that crime is whatever the criminal code says it is.
Many works in criminology define crime as behavior that is prohibited by the criminal code and criminals as persons who have
behaved in some way prohibited by the criminal law (Schmalleger, 1995).=
Thus, crime is self-evident in the sense that the criminal code defines it. The strict legalist perspective on crime can be traced to a fundamental principle of English common law of the 12th century: null crime sine lege, nullapoena sine lege (no crime without law, no punishment without law
The social legalist perspective argues that some acts, especially by
corporations, may not violate the criminal law yet are so violent in their expression or harmful in their effects to merit definition as crimes.
This view originates with Edwin Sutherland, a leading theorist of modern criminology, and is shared by many contemporary advocates (Clinard & Yeager, 1980; Frank & Lynch, 1992; Lynch, 1990; Reiman, 1979). Sutherland (1940)
If pollution and hazardous waste were controllable, then corporations and persons could be held responsible for their offending behavior—and some of this misbehavior could be considered crime.
If disasters were not natural “acts of God” but human catastrophes, then the persons who make them may be committing crimes. The enormity of such highly publicized man-made catastrophes as Love Canal has only deepened this view.
This shift in perspective illustrates the key assertion of labeling theory: that an act is not criminal by virtue of its inherent quality but by virtue of definitions assigned to it by culture and society.
These definitions can change over time, as the government’s shifting view of drug use demonstrates. Opium, morphine, and other mind-altering drugs were legally available in the early 1900s to consumers.
Growing concern about addiction led in 1914to passage of the Harrison Act, designed to regulate the domestic use, sale, and transfer of opium and coca products.
The Marijuana Tax Act of 1937 placed a prohibitive tax of $100 an ounce on the drug. Not until the 1970s, however, did a law—the Drug Abuse Prevention, Treatment, and Rehabilitation Act (1972)—define drug abuse as a crime and prescribe criminal sanctions.
observed in his classic study on white-collar crime that the harmful acts of large U.S. corporations were often treated as mere regulatory violations or civil offenses. They carried neither criminal stigma nor the typical sanction of imprisonment.
Sutherland attributed this exemption to the ability of the corporate elite and their powerful allies to turn the spotlight of criminal law away from their misdeeds. He advocated a much stronger role for criminal
justice in the adjudication of corporate wrongdoing. These perspectives are more complementary than conflicting.
The social legalist approach focuses on the construction of crime definitions by various segments of society and the political process by which some gain ascendancy, becoming embodied in the law.
The strict legalistic approach, without denying this dynamic, emphasizes these final legal definitions of crime as the starting point of any analysis because they bind and guide the justice system in its work.
This book adopts the strict legalistic approach, for the most part, because our chief interest is in analyzing the growing number of environmental offenses that are being defined as crimes by the legal system and in assessing the effectiveness of criminal justice techniques in environmental protection.