Seven: Breaking the Law
I have talked about norms already, expected or accepted ways of being in the world. Norms are informal, meaning they aren’t written down or something we learn through the processes of socialization. They can be rigidly defined, like an exclusive dinner party which will not allow men into the building who are not wearing a suit and black tie. If I get into the dinner party and then loosen my black tie or wear it incorrectly, I am committing an act of deviance, a departure from or violation of norms. It’s not against the law to wear my tie loose and unkempt, or to tie my tie in a knot instead of wearing it properly, but it’s a bit…weird…people “just don’t do that.”
I may be be socially policed, asked to provide an account of my behavior, but I’m not breaking any laws. Crime is of course policed as well, more serious violations that are officially stated or written down as “you can’t do that.” Social control, a set of mechanisms for defining the horizons or boundaries of acceptable behavior,is a human universal, or something that every culture has, to varying degrees. Every human group has norms, things we do or don’t do, that are learned by socialization. But some of these norms aren’t just deviant, they involve official punishment, or sanctions, which are typically written down in bigger, more complex societies, but are based on shared understanding in smaller, more tightly-knit groups, and may or may not be written down.
If I were to give a lecture sitting on the floor, or standing with my back to the audience, that would be an act of deviance, but not a crime. It’s just thought of as impolite or disrespectful. On the other hand, running naked down the street would be both an act of deviance: it is generally socially accepted that one simply does not do that—and a crime in the U.S., as the police would arrest the person who did this and charge them with indecent exposure or some related offense. Laws surrounding the human body and what parts of it can be exposed vary across place and time, and even across states within the U.S., but being naked in public in the U.S. is generally both deviant and a crime.
When we think of crime, we often distinguish between violent crime, in which people are subjected to or threatened with violence; and nonviolent crime, which does not involve subjecting people to, or threatening people with, violence. This is a legal distinction, not a sociological one. But violence itself is viewed as legitimate when carried out by the state. The state can be thought of as a monopoly on legitimate force, needing to have a military to protect its external borders and law enforcement to protect people from one another within. If a police officer uses force to restrain or arrest a resistant suspect, she is not engaging in deviance (though in the U.S. police are expected to both uphold and obey the laws of the land, and a police officer who uses force deemed excessive faces legal sanctions). Nor is a soldier fighting for her country, even if that violence is lethal, resulting in the deaths of other human beings, if those deaths are enemy combatants. A boxing match is not deviant, provided of course it takes place in a carefully controlled setting like a boxing ring and not a spur of the moment exchange of blows in a barroom (this would also be considered a crime). People are willing to accept violence, even a great deal of violence, provided they view it as legitimate; they will often tolerate little illegitimate violence, and so violent crimes are usually the most heavily policed and severely punished.
There are gray areas. If a person destroys another person’s property, is that a violent crime? Breaking a window to get into a home while its occupants are on vacation is different from an exchange of blows in a barroom. Laws, and exceptions to laws, around use of violence to defend oneself may also exist. What if that barroom brawl was started by one aggressor, and the other felt they had no choice but to use force to defend themselves from bodily harm? And what about nonviolent crimes? Debates about whether such crimes should, in fact, be crimes, or whether some such acts should be decriminalized, or no longer subject to official legal sanctions of one kind or another, are a hallmark of the social issues that arise in this particular sociological domain. Decriminalization is usually not absolute, in some all-or-nothing sense, but is partial; regulation is a way to maintain some social control over certain facets of social life when partial decriminalization is involved. In the United States, for example, there is a lot of variation in terms of what is criminalized or decriminalized. For example, I can go to a bar or pub, order a beer, and drink it on the premises, but I can only do this in Bemidji, Minnesota during certain times of day during a week, and it would be illegal for me to do this if I was not at least 21 years old.I also must consume the drink on the premises; I cannot leave with it in my hand and drink it while walking down the street, and I will be arrested if I am in public and noticeably under the influence of alcohol. These laws are specific based on city, county, region, and state; in New Orleans, Louisiana, or Las Vegas, Nevada, by contrast, bars and pubs have longer hours, and it is not illegal to drink alcohol while walking down the street, nor is public intoxication likely to result in arrest so long as one is not falling-down drunk. On the other hand, some cities and counties in the U.S. are completely dry—it is illegal to serve or purchase alcohol there.
Debates about decriminalization have long been part of the public conversation, and make for a fascinating way through which to social issues via norms, deviance, and crime. For example, debates about sex work (including pornography and prostitution), and smoking, (including tobacco and marijuana), as well as use of narcotics, have been raging in the U.S. for decades. Some who oppose decriminalizing marijuana also oppose efforts to further criminalize smoking tobacco, and others would support permitting pornography (committing sex acts for money while being recorded) but would strongly oppose decriminalizing prostitution (committing sex acts for money without being recorded). In some societies such as the Netherlands, possession or use of “soft” drugs such as cannabis is largely decriminalized, and while narcotics (including “hard” drugs such as heroin) are still illegal, policies prioritize rehabilitation over punishment. Worldwide, 34 countries retain the death penalty for drug offenses, with over 3,000 people on death row for drug offenses worldwide. In 2023, Minnesota became the 23rd U.S. state to decriminalize cannabis. In practice, when people have a say in policymaking, they have a tendency to want to see their own values and preferences reflected in the legal system; the idea of what should be illegal, as well as how various illegal acts should be punished, has never been a simple matter.
Of course, different cultures and societies might have different norms, as well as different formal legal rules codified as laws—it is not impossible that a society would tolerate public nose-picking or running naked down the street, or that it might not tolerate aggressive contact sports such as boxing. It is possible that any, none, or all of these acts might be deviant, criminal, both deviant and criminal, or neither deviant nor criminal. It’s possible to imagine crimes that are not deviant, such as traveling ten miles per hour above the speed limit on a highway on which most other cars are traveling a similar rate of speed, or ignoring a ban on shooting off fireworks during a holiday, as many U.S.-Americans do.
But is crime actually good for us? Durkheim thought so. Wait…what? His theory is simple. Durkheim argued that all societies have crime. Crime reinforces the collective conscience, the socially established moral code of one’s society. Norms are often invisible to us until someone deviates from them. When we see this deviation, and recognize it collectively as a society, it re-establishes our sense of morality. Crime, in a way, reminds us why one simply does not do that. When this happens, when we seem crimes committed, victims wronged, and people punished, it strengthens our sense of what is right and wrong. Durkheim went further: not only did every society have crime, but every society that could possibly exist would have crime. A society of saints would have crime, as he famously remarked. The difference would be that their collective conscience would be so strong that even the most minor deviation from the norm would be severely frowned upon—and severely punished. On the other side of the spectrum, people and societies for whom the norms were no longer clear would fall into a state of anomie, literally, “normlessness.” If neither the state, nor one’s family, nor those with whom one coexists have any interest in reinforcing norms, the collective conscience weakens. Crime increases because it is punished less often, and less severely. For consensus theorists, without a shared sense of norms from which to deviate, and some ritualistic way of reinforcing those norms through punishment, the connections human beings feel toward one another begin to crumble.
In “simpler societies” (again, not a value-judgment—he simply meant that they had fewer “moving parts”) there was mechanical solidarity, and retributive justice would prevail. There was not a separate group of dispassionate lawmakers or law enforcers, but community sanctions and decisions when persons violated rules, including those who were wronged, or felt wronged, directly involved in the process of judgement and punishment. Without a dispassionate legal system, societies would be expected to, in a sense, take revenge on those who violated norms sufficiently to be considered guilty of a crime. In complex societies with more people doing more different kinds of work, laws would become more complex, and would tend to focus on restorative justice, turning away from avenging wrongdoing and prioritizing restoring social consensus and trust. This may require a legal system and social control that are specialized and dispassionate, impersonal laws to which everyone is held and formal equality, through which everyone, at least in theory, is equal under the law.
This proved influential in the 1990s. From about the end of the 1960s until the mid-1990s, the crime rates in many major U.S. cities rose. New York City, in particular, experienced a spike in its murder rate. Two social scientists, James Q. Wilson and George Kelling, pioneered a new approach to crime: broken windows theory. Studies have shown that people are more likely to commit crimes in areas that appear to be run down, that have high levels of disorder: graffiti on walls, trash strewn across the ground, buildings in disrepair, and the like. Essentially, the idea was that if one window was broken by vandals, and was not repaired, it would invite further vandalism and broken windows. As Durkheim theorized, when people begin to lose interest in reinforcing social norms and expectations, the collective conscience weakens, and social bonds weaken with it. Lowering crime meant policing small-scale, often nonviolent, to prevent neighborhood disorder from taking hold in the first place, and the more severe crimes would be less likely to ever occur. It worked, violent crime rates did indeed decline and have remained low in the U.S., but it had consequences and costs. In some neighborhoods, it appeared as though “broken windows theory” gave license to heavy-handed styles of policing that ultimately led to more arrests and longer sentences for lesser crimes. This trend in part explains the current mass incarceration issue that faces the United States. The U.S. has one of the highest known rates of imprisonment per capita on earth. Prisons are expensive to maintain, and for-profit prison programs have increasingly stepped in to cover the gap. Evidence suggests that tying incarceration rates to government funding and for-profit companies may lead to increased incarceration rates and may increase recidivism, or being convicted of a crime again after being released from prison.
Homeless populations are also affected. Because broken windows theory prescribes getting rid of anything that might make a neighborhood appear to be disordered or run-down, this can give license to remove encampments where homeless persons set up residence, sleeping in tents, abandoned buildings, or in sleeping bags or old furniture. Homeless persons themselves become symbols of neighborhood disorder, and are more frequently fined or arrested for loitering, public intoxication, vagrancy, and panhandling, which has been made illegal in some cities (in city-level crime maps, such crimes are often called “lifestyle” crimes or offenses). These trends, in turn, have led to a rise in hostile architecture in many cities, or constructions designed specifically to prevent persons from sleeping or camping (as well as other undesired public activities) in specific areas. These include spikes and bolts placed beneath bridges, on the ground and stairways near shopping centers; benches, public transit seats, and other surfaces designed to make it uncomfortable or impossible to lie down, as well as networks of fences, walls, and cages that regulate human movement and separate some “desirable” persons from other “undesirable” persons. In short, broken windows theory does seem to reduce crime, but the human costs have been high.
Another approach, obliquely related to Durkheim’s theory, emerged from Robert K. Merton, from whom we heard in the last chapter. Merton developed structural strain theory, an approach to understanding deviance that attempted to understand violation of norms as occurring among those who found themselves in a difficult position within the social hierarchy. Merton argued that these individuals would be more likely to reject the norms of their society, which he separated into institutional means and culturally accepted goals. For example, if you are attending college in order to earn a degree and secure a better-paying, more stable job, perhaps in order to someday marry and start a family, Merton would label you a conformist, one who accepts both the culturally accepted goals and the institutional means of your society. If you have ever wondered why someone would get a Ph.D. in sociology, you might find Merton’s definition of a ritualist—one who accepts the institutionalized means (college education to get a job) and rejects the culturally-accepted goals (seek a career that earns lots of money after going to school for many years) of American society—informative. Though I am grateful to have stable employment in my field and a middle-class salary as a full-time, tenured professor, I did not go into sociology for the money; I did so because it is a challenging discipline, involving lots of reading, writing, and number-crunching, that offers the opportunity to study the nuances of the social world, and perhaps a chance to contribute in some small way to improving things.
Neither conformists nor ritualists are expected to pose much of a threat to the institutions of society. However, there are three other groups that potentially do: the first, innovationists, accept the cultural goals but reject the institutional means. It is worth noting here that no value-judgment necessarily follows from the use of any of these labels; the goal is to attempt to understand. One who quits her day job to open her own business is in a sense an innovationist; one who makes a living standing on a corner selling drugs is, as well. Organized crime syndicates and gangs might also be considered innovationist, insofar as they embrace cultural goals such as “the American Dream” but seek it from outside accepted institutional means. Finally, there are two other groups: retreatists reject both the means and the goals of society, instead (you guessed it) retreating from it. They are only different from rebels in one sense: retreatists may sink into anomie (see above), waywardness, or despair; rebels are intent on changing the goals and the means of society. Some homeless persons, or individuals with drug dependencies, might fall into Merton’s retreatist category, while rebellion might imply political activists or revolutionaries. It is worth asking whether it makes sense to describe the homeless, addicted, or downtrodden as “retreatists”—do they consciously reject the norms of their society, or is there more at work? Otherwise, however, Merton’s strain theory constitutes a social science contribution to approaching varieties of deviance.
Others have advanced labeling theories of deviance. Labeling theory focuses not on what is done, or how it affects society, but on how labels come to construct our realities and affect our identities. Once a person is labeled—thief, liar, drunkard, etc.—that label has a sort of “stickiness.” Both our understanding of that person, and over time, that this label changes a person’s understanding of himself or herself. That is, negative labeling can lead to stigma, a feeling or mark of disgrace transmitted to a person by a label. This is of critical importance over time—deviance, especially violent crime, becomes less and less common over the life course. That is, as people get older, they become ever less likely to commit crimes, especially serious ones. An individual who commits a crime in their late teens and is “found out” will live with a stigma for life even if that person is ever less likely to commit another crime later on. Labeling theory, advanced by numerous social psychologist and social constructivist researchers, tends to be more of a “view from the ground” than some of the previously mentioned theories of deviance. Studying labeling theory, and how it affects individuals, is amenable to qualitative research, to in-depth analyses of people’s everyday lives. Alice Goffman’s (2009) controversial work, On the Run: Wanted Men in a Philadelphia Ghetto, used six years of field work in a neighborhood to understand some of the negative repercussions of increased policing and its complex relationship to “wanted people,” those who find themselves spending a great deal of their daily lives avoiding jail, for crimes major and minor. Being “on the run” can also make one vulnerable to neighbors, enemies, and angry significant others, who might use this status to control the behavior of individuals. Such work is able to examine aspects of deviance and social control in greater texture and detail than some of the more functionalist approaches.
It is also possible to apply these theories of labeling and stigma to deviance, zooming out to reveal the lived lives and experiences of those whose lifestyles, preferences, and identities are labeled as deviant by the broader society in which they live. Imagine you have arrived at a party that you knew you had to attend; you did not know anyone there, and also did not know the norms of the people in attendance. You were not dressed in accordance with their expectations, and your speech, mannerisms, and social cues “gave you away” as someone who was not part of the group (incidentally, growing up in a working-class suburb this is how I feel at one of those fancy black-tie events I mentioned). What would you do? Would you spend the evening trying hard to learn how to fit in, “fake it ‘til you make it,” at great expense in the form of personal discomfort? Or would you instead decide to “just be yourself” and endure the slights and sidelong glances and constant discomfort? This is what it can feel like all the time in a society in which one’s own sense of self is fundamentally at odds with social norms or expectations. Over time, it is not only exhausting and quite uncomfortable, whether one choose to mask oneself or accept being a “deviant,” it can result in ongoing stigma. Social norms can be challenged, or changed, changed, according to this approach, but doing so means great personal cost and sacrifice, and being able to withstand a lot of discomfort, and even danger.
Conflict theorists have different views of crime, focusing on challenging some of these consensus-based approaches. Critical criminologists view crime through the lens of social conflict, by first focusing on the ways in which social consensus is, to some degree, illusory, masking social inequity and conflict. I have already mentioned some issues that critical criminologists would perhaps be drawn to, such as the rise in incarceration, the racial disparities in arrest, conviction, and sentencing, the rise in hostile architecture and stronger penalties for more minor crimes. There are also those who are interested in how comparatively minor “vice” crimes (from loitering to casual marijuana use) are both policed and prosecuted in ways that reinforce social, economic, and racial hierarchies. However, critical criminologists may not see these in terms of tragic, unintended consequences of effective approaches to maintaining social order, but as logical outgrowths of the broader social structures and the inequities they perpetuate. The system is designed this way; there is nothing “unintended” about such consequences. Some critical criminologists may argue, for example, that the goal of policing in a capitalist society is not to protect people from one another or to maintain a degree of social order, but to protect property and the owners of property from those who do not own property and have only their bodies with which to produce capital to survive. Acts of petty theft, or vices such as drug use or prostitution, from this framework, may be seen as adaptations to a society riven by inequity, or even as efforts at resistance, rebellion, or liberation among those who are “shut out” of the halls of political and economic power. Partly, this involves interrogating the institutions and social structures in which deviance and crime arise, rather than taking for granted, as the consensus theorists do, the reality of crime, and addressing it as a social problem to be managed. As captured pithily by Hélder Pessoa Câmara (1909-1999), a Brazilian Catholic archbishop: “When I give food to the poor, they call me a saint. When I ask why they are poor, they call me a communist.”
I became a permanent resident of Minnesota in the summer of 2020, but had lived in Minnesota on and off in 2019 and 2020. Academic life can be complicated—my wife lived in Kansas and worked in Missouri for the first year of my full-time academic life, and we traveled back and forth to see each other periodically. I moved back in with her in Kansas in March of 2020 when COVID-19 resulted in a shift to online schooling, which lasted more than a year after it began. In terms of deviance, of crime, of norms and laws, it seems to have been an unusually big year. Former Minneapolis PD officer Derek Chauvin was found guilty of murder through excessive force, in kneeling on George Floyd’s neck for upwards of eight minutes. This was followed by record-breaking international Civil Rights protests, and widespread calls to reform, defund, or even abolish the police. As COVID-19 disrupted life and livelihoods, political unrest included armed militiamen confronting police and storming federal buildings and assembling in scattered towns and suburbs. 2021 began with the January 6 insurrection, during which protestors and militia, some dressed in paramilitary gear, wounded and killed several capitol police, broke into the capitol building, and attempted to stop the congressional conformation of the November election results. It is hard to “take a big step back” sometimes and try to see from afar what seems so close.
Even years out from these events, I do not fully know what to make of these events, sociologically, but have spent some time studying the racial disparities in policing and use of lethal force (starting with the fatal shooting of Michael Brown in 2014 in Ferguson, Missouri), an issue which is itself complex. Data suggests racial disparities do in fact exist—I have consistently found, based on the limited data I have, and the research other scholars have done, that though lethal force by police in the U.S. is statistically rare, more than three times as many Blacks as whites are killed in encounters with police. Debates among those who call attention to different crime rates by neighborhoods are met with recognition that police and criminal justice reform may be necessary to reduce mass incarceration and confront racial disparities in policing. Professional sociologists armed with decades of research have argued that targeted reform ignores the broader history of racial disparities in education, employment, and more that have tended to concentrate Black persons in neighborhoods with more disorder and fewer opportunities. Though policing has been the focus of these events, it would seem that the convergence of sociological research in criminology, as well as at the intersections of race and class (including education and other factors, which will be discussed later) points to issues in the broader context in which policing is carried out.
Image: Anti-Homeless Floor Spikes in London, Image by Cory Doctorow, Wikimedia Commons https://commons.wikimedia.org/wiki/File:Anti-Homeless_Floor_Spikes.jpg
Important Words
Anomie
Broken windows theory
Collective conscience
Conformist
Critical criminologist
Decriminalize
Deviance
Dispassionate
Formal equality
Hostile architecture
Human universal
Innovationist
Labeling theory
Law
Legitimate
Mass incarceration
Nonviolent crime
Norm
Rebel
Regulation
Restorative justice
Retreatist
Retributive justice
Ritualist
Sanction
Social control
Stigma
Structural strain theory
Violent crime
Sit With It: Big Questions:
If broken windows theory seems to be effective in reducing serious crime, but has resulted in uneven effects to low-income persons, persons of color, and homeless populations, what could, or should, be done, based on what you’ve learned about crime and deviance in the course?
Can you think of an example of something that is a crime, but is not deviant, and something that is deviant but not a crime that was not mentioned in the chapter? Defend your answer.
