“Our society has decided that man is a creature born of free will. At the same time, our system recognises that attitudes may be influenced by environmental factors.” (Taylor, 1984: 9) Adults who engage in criminal conduct are seen as having values which are distorted by adverse environmental conditions. “Guilt then is premised upon the concept that everyone who commits an act does so out of an exercise of free will. A person is fully capable of not committing the act, should he or she so desire.” (Taylor, 1984: 10) This approach is referred to as the ‘classicist approach’.
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Classicists have achieved near-total victory in the recent years resulting in our criminal justice system being founded upon the concept that criminal behaviour is the complete result of environmental influences, that it is nurture that shapes conduct. This has caused our social institutions to attempt to correct deviant behaviour through modification to environmental influences – through prison and rehabilitation programmes.
The number of offences recorded by the police in the UK between June 2012 and June 2013 is 3.7 million (Office for National Statistics, 2013). It needs to be questioned whether this crime level is the result of a troubled society or the result of a breakdown in the criminal justice system? Recidivism is still occurring with more than one in four criminals reoffending within a year of release (Ministry of Justice, 2013). A possible reason for this could be that the whole premise on which we base our criminal justice is defective.
If this classicist premise is wrong then it is no wonder that recidivism is continuing to happen and that as a society we are failing to eradicate crime. If the actual cause of crime is identified then there is the potential of eliminating crime, easing pain, and instilling common trust and security.
Stephen Mobley had all the attributes of a natural born killer. At the age of 25, he walked into a pizza store and shot the manager in the neck after robbing the till. Nobody could blame his upbringing – he came from a white, middle-class American family and had not been abused as a child. In 1995 he was waiting on death row in Georgia to hear whether his appointment with the electric chair was confirmed. His lawyer tried to plea that his murder was not the evil result of free will but the tragic consequence of a genetic predisposition. His aunt, a witness for the defence, testified that various members of their family over the past four generations have been very violent, aggressive and criminal. She told the court how the Mobley family had had murder, rape, robbery, and suicide. His lawyer therefore argued that there is no legal defence to Mobley’s crime. Mobley’s family history is an obvious mitigating factor and his actions may not have been a product totally of free will (Connor, 1995).
To date, there has been little agreement that a person’s biology has an influence on crime. Early biological theorists such as Lombroso have been widely discredited mainly on the basis of a flawed methodology however the recent and more contemporary biological explanations of crime have been shown to more credible.
This dissertation will explore contemporary biological ideas on crime – the role of genetics. What if there are people that are genetically predisposed to commit crimes? Should they be held to account for their actions that may have been completely beyond their control? In light of the apparent failures of our current criminal justice system, it is becoming increasingly difficult to ignore the real causes of crime. Can we afford to ignore the possibility that criminal behaviour could be due to genetics?
There is also the issue of how society should deal with the offender whose crime was genetically influenced? Society has decided that no individual should be held accountable for acts performed when he or she is mentally incapacitated. We have the defence of insanity when people who have a ‘disease of the mind’ commit crimes. It needs to be considered whether genetic aberration should be considered in mitigation of, or as a defence to, a criminal charge.
Some would say that to accept the notion that criminals are born rather than made would be opening a gateway to a moral minefield causing other factors including society, unemployment, and upbringing to be ignored (Connor, 1995).
General Research Aim
It is the purpose of this dissertation to assess the relevance of biological positivism in the modern society through way of literature analysis. I will briefly explore early biological theories such as those of Lombroso and his idea of a ‘criminal man’, moving on to discuss contemporary biological ideas – the influence of a person’s genetics on criminal behaviour. The research will explore the effectiveness of punishment and how biological ideas may have influenced punishment by placing emphasis on the treatment of offenders. Finally, the ethical implications surrounding the treatment model will be considered.
Aims and Objectives
In order to successfully answer my research aim, a number of sub-questions must be considered:
- How does society view crime?
This dissertation begins by explaining why further research into the topic is essential. The main body of this dissertation will be introduced with a discussion of how our society currently views crime – is it a product of a person’s biological influences, environmental influences, or a combination of the two?
- What is biological positivism?
In order to assess the relevance of biological positivism in the modern society, I must first clarify what biological positivism actually is. I will explore early biological theories leading on to a discussion of contemporary biological ideas. Relevant case studies will be looked at to inspect the usefulness of these present day theories in explaining crime and criminal behaviour.
- How has biological positivism affected punishment?
The dissertation will then move on to assess how these theories, previously discussed, have affected punishment. In order to do this I will first look to why we punish and what forms of punishment are currently used in the UK. Using reoffending statistics I will critically analyse the effectiveness of these current forms of punishment, leading on to a discussion about an alternative to punishment suggested by biological positivists: The role of treatment.
- Is the treatment model effective?
The effectiveness of the treatment model will then be evaluated. Consequently, emphasis on treatment over punishment carries huge ethical implications. These ethical implications will be discussed with an in depth exploration on the incorporation of the European Convention of Human Rights into domestic law through the Human Rights Act 1998.
- Are there any proposals for change to the current criminal justice system which suggests a move towards the treatment of offenders?
Finally, any proposals for change in the criminal justice system put forward by the Government will be discussed – if they are of relevance to key points highlighted in this dissertation. Suggestions for future changes in the criminal justice system made by biological theorists will also be argued.
Despite the in-depth research there is still much debate on the true causes of crime. The central importance of identifying the causes of crime has been discussed through this dissertation. With both crime rates, and reoffending rates, being considerably high (Office for National Statistics, 2013 ; Ministry of Justice, 2013) it is vital that the causes of crime are identified, and individuals are therefore dealt with accordingly, in order for these figures to decrease.
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After researching into biological positivism, the use of biological theories in the current criminal justice system are identifiably lacking with more emphasis on environmental factors being seen as the causes of crime. A biosocial, multi-factor, approach has been formed over the recent years incorporating environmental, social, and biological factors (Hopkins Burke, 2009) nevertheless there seems to be an ignorance of biological factors.
The aim of this dissertation was to identify the relevance of biological positivism in the modern society through an analysis of existing literature. The main focus of the research was to identify contemporary biological ideas, and then examine how they influenced punishment in the criminal justice system in England and Wales. Theses influences were then analysed in terms of effectiveness, with ethical issues later being questioned.
Biological positivism is relevant in today’s society. The research does not suggest that biological factors are the sole cause of criminal behaviour for every individual offender, but that it can have an influence on an individual’s susceptibility to commit a crime (Hopkins Burke, 2009). Environmental and social factors also later contribute to shape the offender.
Early biological theories stemmed from the work of Lombroso. Although his work is largely discredited, he laid the foundation on which much more plausible explanations could be formed. Research into contemporary biological explanations, including twins studies and hormones, has led to the conclusion that criminality in a minority of offenders is solely caused by biological factors (Hopkins Burke, 2009).
Although these more contemporary biological ideas have been shown to be credible, this credibility does not seem to be reflected in the current criminal justice system. Biological positivists have favoured treatment over punishment as way of dealing with offenders (Cavadino and Dignan, 2007). This dissertation has recognised that emphasis is currently placed on punishment, and primarily, imprisonment. There have been many attempts over the years to adopt a treatment approach however, due to both financial and time-related restrictions, these attempts have been limited considerably.
This limitation implies that sex offences are the only offences seen as a result of a biological defect in the offender. The rationale behind treatment being offered only to sex offenders however, is quite noticeably the result of some other reason: sex offenders are the most despised group of offenders, even among other offenders and therefore there is an increased pressure on the criminal justice system to ensure that these offenders do not re-offend. Specialised treatment techniques such as chemical castration have therefore been developed to deal with them (Miller, 1998).
An implication of these findings, that a person’s biology does have an effect on their susceptibility to commit crime, is that biological defects should be taken into account for all offenders and in turn, treatment should be offered to every individual offender despite costs. Although prison is used most commonly to punish offenders, and is arguably cheaper than treatment, long term costs are substantial. This suggests that it is more beneficial for the criminal justice system to invest in something that works to rehabilitate the offender and prevent them from reoffending, than to incarcerate them preventing them from offending only on a short term basis. It is important that the cause of crime in each individual offender is identified and then dealt with accordingly.
There have been numerous analyses of the treatment model in terms of ethical issues however authors of these analyses have either concluded that treatment violates all of the offenders fundamental rights, or none of them (Miller, 1998). The analysis of these ethical issues through this dissertation has led to the conclusion that the current forms of treatment, offered on a voluntary basis, are not in breach of offenders’ rights under the European Convention on Human Rights. There is an underlying issue of discrimination however, under article 14 ECHR, as it can be argued that treatment offered only to sex offenders is discriminating – it is discriminating for sex offenders, and also discriminating for those offenders that are not offered treatment.
By offering treatment to all offenders it will ensure that any biological influences to crime in offenders can be addressed, and then treated. It has been earlier identified that not all offenders have a biological predisposition, but for those offenders that do, it may rehabilitate the individual and prevent reoffending. In response to this, article 14 ECHR and the prohibition of discrimination may not be as much of a concern. To offer treatment to all offenders would be a step towards removing this cause of discrimination. Other ethical issues surrounding treatment, including informed and valid consent, and off-label drugs, have also been addressed in this dissertation, and have been seen to be justified.
- It has been identified that research into twin studies, in particular monozygotic twins, is the most credible in terms of ascertaining the influence of genetics on criminal behaviour. It is therefore recommended that if it were possible to locate a representative sample of monozygotic twins who satisfied experimental conditions, being separated at birth and growing up in different environments, then the true extent of how much influence our genes have on criminal behaviour can be determined.
- The criminal justice system must recognise that other offences, not only sex offences, can be the result of a genetic defect and consequently treatment should be offered to all offenders.
- Treatment given should be appropriate for the offender, and offered on a voluntary basis in order to avoid potential ethical issues. To ensure consent is free, informed and valid, offenders should be assessed to ensure they have the mental capacity to give consent, and to ensure they are aware of all risks involved. Although long term effects are unknown, as long as the offender is aware of the uncertainty then informed consent is not an issue. Drugs should also be licensed for the purpose of treating offenders. More rigorous testing is needed using double-blind randomised trials along with full medical tests prior to, during and after treatment (Harrison, 2008).
- Genetic aberrations should be considered as a mitigating factor with consideration given to biological influences on the offender when sentencing.
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