CRIMINALIZATION OF DEVIANCETo be sure, from living in a society the indi-
vidual has a pretty good idea what sorts of behav-
ior will trigger indignant reactions, but not with
great confidence. The issue is blurred by subgroup
variation and because norms change with the pas-
sage of time. Bathing suits that were entirely prop-
er in 1999 in the United States would have been
scandalous in 1929. A survey might find that a
large percentage of the population disapproves
now of nudity on a public beach. The survey
cannot reveal for how long the population will
continue to disapprove of public nudity. Nor can
the survey help much with the crucial problem of
deciding how large a proportion of the population
that disapproves strongly of a behavior is enough
to justify categorizing public nudity as ‘‘deviant.’’
In short, the scientific observer can decide
that a normative consensus has been violated only
after first establishing that a consensus exists on
that issue at this moment of time, and that is not
easy. To determine this, individual normative judg-
ments must somehow be aggregated, say, by con-
ducting a survey that would enable a representa-
tive sample of the population to express reactions
to various kinds of behavior. Ideally, these re-
sponses differ only by degree, but in a large society
there are often qualitatively different conceptions
of right and wrong in different subgroups.
In practice, then, in modern societies neither
the potential perpetrator nor the onlooker can be
certain what is deviant. Consequently the social
response to an act that is on the borderline be-
tween deviance and acceptability is unpredictable.
This unpredictability may tempt the individual to
engage in behavior he would not engage in if he
knew that the response would be widespread dis-
approval (Toby 1998a). It may also restrain on-
lookers from taking action against the behavior—
or at least expressing disapproval—against per-
sons violating the informal rules.
WHAT CRIME INVOLVES: A COLLECTIVE
RESPONSECrime is clearer. The ordinary citizen may not
know precisely which acts are illegal in a particular
jurisdiction. But a definite answer is possible. A
lawyer familiar with the criminal code of the State
of New Jersey can explain exactly what has to be
proved in order to convict a person of drunken
driving in New Jersey. The codification of an act as
criminal does not depend on its intrinsic danger to
the society but on what societal leaders perceive as
dangerous. For example, Cuba has the following
provision in its criminal code:Article 108. (1) There will be a sanction of
deprivation of freedom of from one to eight
years imposed on anyone who: (a) incites
against the social order, international solidari-
ty or the socialist State by means of oral or
written propaganda, or in any other form; (b)
makes, distributes or possesses propaganda of
the character mentioned in the preceding
clause. (2) Anyone who spreads false news or
malicious predictions liable to cause alarm or
discontent in the population, or public disor-
der, is subject to a sanction of from three to
four years imprisonment. (3) If the mass media
are used for the execution of the actions
described in the previous paragraphs, the
sanction will be a deprivation of freedom from
seven to fifteen years (Ripoll 1985, p. 20).In other words, mere possession of a mimeo-
graph machine in Cuba is a very serious crime
because Fidel Castro considers the dissemination
of critical ideas a threat to his ‘‘socialist State,’’ and
in Cuba Castro’s opinions are literally law. Hence,
possession of a mimeograph machine is a punish-
able offense. Members of Jehovah’s Witnesses who
used mimeograph machines to reproduce relig-
ious tracts have been given long prison sentences.
On the other hand, reproducing religious tracts
may not arouse indignation in the Cuban popula-
tion. It is criminal but not necessarily deviant.In California or New Jersey, as in Cuba, a
crime is behavior punishable by the state. But the
difference is that in the fifty states, as in all demo-
cratic societies, the legislators and judges who
enact and interpret criminal laws do not simply
codify their own moral sentiments; they criminalize
behavior in response to influences brought to bear
on them by members of their constituencies. True,
women, children, members of ethnic and racial
minorities, and the poorly educated may not have
as much political input as affluent, middle-aged,
white male professionals. But less influence does
not mean they don’t count at all. In a dictatorship,
on the other hand, the political process is closed;