CRIMINALIZATION OF DEVIANCEthe deviant of the benefits of his nonconformity,
and therefore he becomes unenviable in the eyes
of conformists.
Yes, society may stigmatize and perhaps im-
prison perpetrators, amid hope that imitators will
be rare. But criminalization arouses opposition.
Libertarians lean toward permitting almost any
nonviolent behavior except the exploitation of
children. Mental-health advocates perceive steal-
ing to feed a passion for gambling as a symptom of
illness; they may perceive even predatory violence
as symptomatic of a sick personality for which the
individual cannot be considered responsible. Prag-
matists point out that when large numbers of
people want to do something, such as gamble or
use drugs, it is not practical to attempt to stop
them by criminalizing the behavior. They argue
that deviants cannot all be punished, certainly not
by imprisonment; they corrupt police forces through
bribes and deflect police efforts into tasks that
cannot be accomplished instead of more feasible
deviance-control activities; and the criminal or-
ganizations that emerge to cater to these forbid-
den pleasures promote crimes that would not have
occurred in the absence of criminalization.
On the other side of the ledger is the tendency
for the absence of criminalization to encourage
individuals to engage in a behavior they would not
have engaged in when faced with possible criminal
sanctions. The Prohibition experiment of the 1920s,
despite its perception as a failure, did succeed in
reducing the incidence of alcoholism, as reflected
in reduced incidence of alcoholic psychosis and of
cirrhosis of the liver. But the social cost of
criminalizing alcohol consumption was not only
the proliferation of criminal enterprises to supply
the demand of social drinkers; criminalization also
prevented many people who wished to be social
drinkers from having the freedom to do so. True,
some of these would go on to become alcoholics,
but most would not. Thus, the criminalization
issue always involves a tradeoff between partially
legitimating possibly harmful behavior, such as
smoking cigarettes, or curtailing freedom by
criminalizing the behavior. This judgment has to
be made on a case by case basis. Most people who
drink socially do not become alcoholics and most
people who smoke do not get lung cancer; hence it
is difficult to justify criminalizing drinking and
smoking despite the likelihood that more people
become alcoholics and get lung cancer than would
if smoking and drinking were criminalized. On the
other hand, the tradeoff goes the other way with
‘‘hard’’ drugs; the main argument against decrimi-
nalizing the sale of heroin is that the health costs to
the general population would be too great; de-
criminalization would inevitably increase experi-
mentation with the drug and ultimately the num-
ber of addicts (Kaplan 1983).OTHER CONSEQUENCES OF
CRIMINALIZATIONThe absence of criminal law—and consequently of
state-imposed sanctions for violations—is no threat
to small primitive communities: Informal social
controls can be counted on to prevent most devi-
ance and to punish what deviance cannot be pre-
vented. In heterogeneous modern societies, how-
ever, the lack of some criminalization would make
moral unity difficult to achieve. When Emile
Durkheim spoke of the collective conscience of a
society, he was writing metaphorically; he knew
that he was abstracting from the differing con-
sciences of thousands of individuals. Nevertheless,
the criminal law serves to resolve these differences
and achieve a contrived—and indeed precarious—
moral unity. In democratic societies, the unity is
achieved by political compromise. In authoritari-
an or totalitarian societies the power wielders
unify the society by imposing their own values on
the population at large. In both cases law is a
unifying force; large societies could not function
without a legal system because universalistic rules,
including the rules of the criminal law, meld in this
way ethnic, regional, and class versions of what is
deviant (Parsons 1977, pp. 138–139).The unifying effect of the criminal law has
unintended consequences. One major consequence
is the development of a large bureaucracy devoted
to enforcing criminal laws: police, judges, prosecu-
tors, jailers, probation officers, parole officers,
prison guards, and assorted professionals like psy-
chologists and social workers who attempt to reha-
bilitate convicted offenders. Ideally, these employ-
ees of the state should perform their roles
dispassionately, not favoring some accused per-
sons or discriminating against others. In practice,
however, members of the criminal justice bureau-
cracy bring to their jobs the parochial sentiments