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Imputations of deviance occur whenever there is stigmatization, condemnation, segregation, retribution, or rehabilitation. Criminalization refers to the process of applying the criminal law to certain behaviors. Criminalization reinforces the dominant standards in a society through threatened criminal penalties, criminal prosecution, and punishment. Not all deviant behaviors are criminal. Many scholars study the processes through which, and conditions under which, the criminal sanction is applied to particular deviance categories.
To change the status of a deviant category to a crime requires collective action. Thus studies of the criminalization of deviance reveal the links between deviance, political action, and social change. The dominant approaches to studying criminalization are the deviance and social control viewpoint, which asks whether criminalization is a neutral process or if it serves the interests of the powerful, and the social problems viewpoint, which looks at the social meanings, or collective definitions of crime. Of course, not all demands to criminalize deviant behaviors and conditions are successful -many are ignored; others are overshadowed by new demands.
Jenness (2004) presents an authoritative review and evaluation of criminalization scholarship. Organizing this massive literature both chronologically and thematically, she examines three lines of inquiry. The first is classic work examining criminal laws that emerge in response to demographic changes that upset the balance between powerful interest groups and those they control. Classic work demonstrates the roles of both instrumental and symbolic politics in deviance defining and the emergence of criminal law. The second, contemporary line of inquiry ”unpacks” the relative influences of organizational, social movement, and state-related factors involved in efforts to criminalize deviance. The focus is less on changes in structural conditions than on the specific strategies for producing criminal law. The third, more recent line of inquiry looks to connect local criminal law formation politics with broader processes of institutionalization, globalization, and modernization. This line of inquiry asks whether deviantization and criminalization at the local level (i.e., county, region, state, country, etc.) intersect with some larger social, political, or cultural system.
The study of when and how deviant behaviors and statuses become defined as criminal has expanded in many directions since Edwin Sutherland’s groundbreaking and now classic study of the origins and diffusion of sexual psychopath laws (Sutherland 1950). Theoretical accounts of criminalization have moved away from traditional consensus and conflict models and toward integrative models which point to multiple factors, including individual activists, interest groups, the media, and organized social movements; the tactics, power, and motivations of these social forces, entities, and actors; and the political opportunities and structural conditions that make the criminalization of deviance possible. Contemporary work includes more sophisticated analyses of combinations of these factors, as well as how they operate across time. Very recent work is beginning to examine criminalization as a social process operating across geopolitical units.
Methods for studying criminalization have progressed as well. Assessments of the field argued that research on the emergence of criminal law suffered from a tendency to unconsciously vacillate between description and explanation, to focus on historically grounded case studies rather than general processes of criminalization, to substitute moral prejudgments for empirical inquiry, and to bog down in the stale debate between consensus and conflict theories. In response to these critiques, scholars began to inject other areas of sociological inquiry, to examine multiple case studies, and to create general models of the criminal law formation process. The literature now reflects the work of criminologists, sociologists, political scientists, and sociolegal scholars. Very recent research, theory, and methodology include linking research on the criminalization of deviance to the policy studies literature.
- Hagan, J. (1980) The legislation of crime and delinquency: a review of theory, method, and research. Law and Society Review 14: 603—28.
- Jenness, V. (2004) Explaining criminalization: from demography and status to globalization and modernization. Annual Review of Sociology 30: 147—71.
- Sutherland, E. H. (1950) The diffusion of sexual psychopath laws. American Journal of Sociology 56: 142—8.