CRIMINAL SANCTIONSonly the guilty are punished is the most important
function of the criminal process.
The crime-control model suggests that the
failure to provide an adequate level of security for
the general public will undermine the legitimacy
of criminal law. In contrast, the due process model
suggests that the wrongful punishment of an indi-
vidual is a greater threat to the legitimacy of law
(Turk 1969). Therefore, criminal sanctions must
be severe enough to contribute to crime control
and their application must be fair and consistent
in order to satisfy due process requirements (Pack-
er 1968). The additional constraint on criminal
sanctions that they be applied only in cases where
genuine intent can be conclusively determined has
contributed to the rise of alternative systems of
social controls.
SOCIAL CONTROL BEYOND CRIMINAL
SANCTIONSAs the definition of what constitutes criminal be-
havior is narrowed, the social control of noncriminal
normative transgression is transferred from the
jurisdiction of criminal law to the jurisdictions of
medicine and public health. Both public health
and psychiatry have long been concerned with
social control (Foucault 1965), but what is more
significant is the dramatic expansion of their influ-
ence and control over the past half-century. Much
of what was considered ‘‘badness’’ (and in some
cases criminal) and thereby worthy of punishment
has been redefined as sickness that requires a
therapeutic response. Though the response is quite
different, the objective of social control is funda-
mentally the same (Conrad and Schneider 1992).
Some forms of normative transgressions have long
been within the medical and public health domain
(e.g., mental illness). Research has shown, howev-
er, that an increasing number of behaviors that
had been punished in the past are now being
treated within the medical jurisdiction (e.g., sui-
cide, alcoholism, drug addiction, child abuse, vio-
lence, etc.). The most important implication in the
shift of the locus of social control from law to
medicine is the determination of individual re-
sponsibility. In the context of criminal law the full
responsibility for normative transgressions is vest-
ed in the individual. In the medical context trans-
gressors are not considered responsible for their
actions (or their responsibility is significantly miti-
gated), therefore, they cannot be punished for
actions that are beyond their control. The societal
response to behaviors so defined is therapeutic
rather than punitive (Conrad and Schneider 1992).The trend toward the decriminalization of
normative transgressions can be traced to the
emergence of deterministic criminology, which shift-
ed the study of crime causation from rational
action to biological, psychological, and sociologi-
cal sources (Kittrie 1971). The deterministic per-
spective was initially applied to juvenile delinquen-
cy. The influence of deterministic criminology
grew in proportion to the expansion of the juven-
ile justice system. As more questions were raised
about the ability of criminal law and criminal
sanctions to effectively deal with transgressors
such as juvenile delinquents, alternative methods
of control became more widely accepted. It has
been suggested that the shift from simple to com-
plex societies has necessitated an accompanying
shift from punitive to therapeutic methods of
social control (Kittrie 1971). For example, the
strength of criminal sanctions is believed to be
declining because of the increase in residential
mobility coupled with the decrease in the influ-
ence of primary institutions such as family, church,
and school (Braithwaite 1994). As the influence of
primary institutions has waned, their ability to
command conformity has declined. With the de-
cline of informal social control and the perceived
ineffectiveness of criminal sanctions society has
increasingly turned to the promise of therapeutic
social control as a means of responding to norma-
tive transgressions (Conrad and Schneider 1992).REFERENCES
Beccaria, Cesare (1764) 1980 On Crimes and Punishment.
Indianapolis, Ind.: Bobbs-Merrill.
Becker, Howard 1973 Outsiders. New York: The Free Press.
Bentham, Jeremy (1823) 1995 ‘‘Punishment and Utili-
ty.’’ In Jeffrie Murphy, ed., Punishment and Rehabilita-
tion. Belmont, Calif.: Wadsworth.
Bernard, Thomas 1983 The Consensus—Conflict Debate:
Form and Content in Social Theories. New York: Colum-
bia University Press.
Black, Donald 1976 The Behavior of Law. New York:
Academic Press.