A Little about Postmodern Criminology

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                Foreword

Since the end of the 20th century, we have all been living in a new social formation: a postmodern society. The peculiarities of this new social formation (globalization, mass migration, consumerization of consciousness and activity, virtualization, etc.) affect all manifestations of human life, including "criminal" ones.

Criminology goes through certain stages of development. Modern criminology is only a stage in the development of science. Postmodern criminology includes various directions - constitutive criminology, cultural criminology, feminist, etc.
Some essential features of understanding criminality, its "reasons", non-existent "personality of the criminal", punishment as a means of counteraction crime will be the subject of subsequent discussions.

                Crime

Crime is normal because
a society without crime
completely impossible.
                E. Durkheim

In recent decades, it has become clear to most criminologists: in fact, there are no acts that would be “crime” in their content. Crime and criminality are relational, conventional (how legislators "agree"), they are social constructs that only partially reflect some social realities: some people kill others, some take possession of others' things, etc. But the same actions can be recognized as crimes or not be crimes. For example, murder is the deliberate infliction of death on another person (Article 105 of the Criminal Code of the Russian Federation), a grave crime. But intentionally inflicting death on another person is also a feat, killing an enemy in a war. This is also the professional activity of an executioner in countries where, unfortunately, the death penalty remains. And this is a legal deliberate infliction of death on another person, if it was committed in a state of necessary defense.

This does not mean that the social construction of "crime" is completely arbitrary. The state "constructs" its elements on the basis of some ontological, existential realities. So, the reality is that some types of human activity cause certain harm, and therefore are negatively perceived and evaluated by other people, society. But another thing is also real: some types of criminalized acts do not harm others, or cause minor harm, and therefore are criminalized without sufficient grounds.

Criminalization of acts that do not pose a real threat to society turns all members of society, every citizen of the country into a “criminal”. This is and the current Criminal Code of the Russian Federation.
P. Sorokin remarked: "There is not a single act that, by its very content, was a criminal offense... Therefore, to classify certain acts by their very content as criminal offenses... is a hopeless task". This understanding was also in ancient Rome ("Ex senatusconsultis et plebiscitis crimina exercentur" - crimes arise from the Senate and popular decisions), however, in modern criminology, the recognition of criminality as a social construct came relatively late, but today it is shared by most criminologists. L. Hulsman writes about this: “Crime is not an ontological reality ... Crime is not an object, but a product of criminal policy.

Criminalization is one of many ways of constructing social reality". N. Christie writes that crime is a product of cultural, social and mental processes. And hence the conclusion: “Crime does not exist”. The understanding of crime and criminality as social constructs is substantiated in the Oxford handbook on criminology. So, “the term crime is a label that we apply to behavior that breaks the law. The key point is the creation of crimes by criminal law, which is created by people. Crime as such does not exist in nature; it is an invention of people".
Yes, criminality is normal, not in the sense of being good, but common, natural, widespread. What society (the state, the authorities) considers "criminal" is committed constantly in a single process of life to satisfy needs - for food, warmth, well-being, sex, self-affirmation.
 
Moreover, since the time of E. Durkheim it is known: “Crime is necessary; it is firmly connected with the basic conditions of any social life and precisely because of this it is useful, since the conditions of which it is a part are themselves inseparable from the normal evolution of morality and law ... How often a crime is only a premonition of the moral of the future, a step towards what lies ahead!”. And E. Durkheim refers to the example of Socrates, who as sentenced to death for ideas that were ahead of his century. Is it only Socrates? And what about Giordano Bruno, who was burned for "heresy"? And Miguel Servetus and Jan Hus who shared his fate? Thousands of scientists, writers, artists, destroyed by the Stalinist regime. Professor K.-L. Kunz writes: “Society needs crime as an engine of social transformation. A society without significant deviations in behavior of a criminal nature would have frozen in its development".

The above is not an excuse for what in most societies is called a "crime", but an understanding of the inevitability of all kinds of actions, including those that are very dangerous for others. “The understanding of crime as a special phenomenon also raises doubts. It is not opposed to society, but accompanies it". Therefore, “the prevailing attitude towards crime must be demystified. It should be studied and evaluated as a part of real behavior”.
"Crime" was, is and will be as long as the state exists. And maybe the largest representative of German criminal law, Professor H.-H. Jescheck, was right, who raised the question of repealing criminal legislation incompatible with human and civil rights?

                Grounds for criminalization and “genesis” of crime

The only "basis" for the criminalization of acts is the will of the sovereign, the president, the authorities. I. Kozachenko and D. Sergeev made an excellent analysis of the search for grounds of criminalization at different times in different countries. And their conclusion: "The main myth of criminalization is about the possibility of building its rational model".

At least since the eighteenth century (C. Beccaria, I. Bentham) and in detail since the nineteenth century (C. Lombroso, J. Tarde, A. Quetelet and others) criminologists are trying to find the "cause" of the criminality. They look in biology and genetics, psychology, social factors.
Obviously, there is no and cannot be a single reason for a variety of crimes. You can find many factors - social, economic, political, demographic and even cosmic (the works of A. L. Chizhevsky), which to a greater or lesser extent correlate with the volume, dynamics, structure of certain types of crimes.
But if crimes are “normal” actions, if each of us commits “crimes” ... Can it be pointless to look for reasons, factors that determine exactly a criminality (crimes)? Do not the same factors determine drug addiction, suicide, prostitution and scientific, technical, artistic creation and the most ordinary actions of ordinary people?

 Of course, many of the factors identified by criminologists affect the state, trends and structure of crime. But the same factors affect other undesirable or desirable actions, any actions of people. Thus, the growth of economic inequality can lead to an increase in the number of violent and mercenary crimes, to drunkenness and drug use, to death (suicide), to creativity, simply to the poverty of some people and others to excessive wealth. The same social, economic, political, psychological and other factors affect any behavior of people. Therefore, are criminogenic factors criminogenic? Yes. But equally alcoholgenic, narcogenic, suicidal, generating creative activity and everyday life.

                A little about the “personality of the criminal”

Criminology, starting with C. Lombroso (1835-1909), tried to find the features, properties, characteristics inherent in the "criminal". There are many classifications of "criminal personality". Meanwhile, no “personality of the criminal” exists and cannot be.

 First, the criminal law of each country is very diverse and changeable. Where do the “personality of the criminal” of the decriminalized acts go? And where do the “personality of the criminal” of the newly criminalized acts come from? Why is there a “criminal personality” who consumes alcoholic beverages in the UAE and there is no such personality in European countries?
Secondly, no one has ever named a single personality trait, feature, quality inherent only to a “criminal”. Aggressiveness, anger, jealousy, rancor, greed, rudeness, envy, hot temper can, to varying degrees, be inherent in a wide variety of people, incl. never prosecuted.

Thirdly, (and this is the main thing!) As noted above, according to the criminal law, all or almost all adult citizens have committed in their lives what is called a "crime" in the criminal law. So, everything is a "criminal personality"? And are there any “non-criminal” personalities, and who are they?
The absence of a "criminal personality" is in the book by A. Yakovlev, and later in the work of A. Rybak with the conclusion: "in criminology ... it is necessary to finally, categorically abandon the doctrine of the personality of the criminal".

                Punishment in the system of social control over crime
 
 Since the time of Cain, the world
 has never could neither fix nor
 frighten punishment. Just the opposite!
                K. Marx
               
Simultaneously with the beginning of the epoch of postmodernity - comes the realization of the "crisis of punishment". Punishment, intended for millennia to perform the function of deterrence, reduction of crime, is ineffective, does not fulfill the tasks assigned to it! “Punishment is an obvious expense and an implicit benefit ... One should take into account the well-known properties of criminal law, which are that it is an extremely costly and very dangerous means of influencing social relations".

The "crisis of punishment" is manifested, in particular, in the fact that (1) in the entire history of mankind, the most severe punishments (including the qualified death penalty) did not "liquidate" crime ; (2) from the end of the Second World War to the late 1990s - early 2000s, the crime rate increased throughout the world, despite all the efforts of the police and criminal justice, and from the late 1990s - early 2000s it has been decreasing in all countries, regardless of the activities of law enforcement agencies; (3) the relapse rate is relatively constant for each country. In addition, according to psychologists, prolonged isolation leads to irreversible changes in the psyche.
Punishment in Russia, as in other countries, does not achieve any of the goals listed in Part 2 of Art. 43 of the Criminal Code of the Russian Federation.
Achieving social justice. But what is "social justice"? And from whose perspective?

It is impossible to correct someone by punishment. Whether it is the punishment of a naughty child, a bully schoolboy, a subordinate in the service, or a person who has committed a crime. Psychologists and teachers know this well.
Prevention of new crimes, as noted above, is also not very successful.
The death penalty is murder, a crime unacceptable by the state. C. Beccaria wrote about this back in the 18th century: “It seems ridiculous to me that the laws ... which prohibit and punish murder, themselves commit it and, in order to avert citizens from killing, they themselves prescribe it” . And the Russian professor M.N. Gernet believed that the death penalty is "the institution of legal murder". The death penalty should be permanently excluded from the list of punishments. More and more states are taking this path.
 
With the abolition of the death penalty, deprivation of liberty becomes the “highest measure”. And the use of deprivation of liberty should be minimized (if the world is not ready to abandon it). “All the shortcomings of the prison are known. This is known to be dangerous, if not useless. And yet no one “sees” what to replace him with. This is a disgusting decision, which is obviously impossible to do without”.

As a rule, imprisonment can only be used for violent crimes and only for adults.
The term of imprisonment, as a rule, should not exceed two to three years. For example, in 2016, according to information provided at the European Conference of Criminologists (M;nster, 2017), the average prison term in European countries did not exceed 1 year 8 months. In Japan, only 3-5% of all convicts are sentenced to imprisonment (85% are sentenced to a fine), and the term of imprisonment usually does not exceed two years.
The conditions for serving a sentence of imprisonment should not be repressive, but aimed at re-socializing, re-adaptation of convicts, training them in new professions or raising their professional level. Prisoners should live in normal, human, familiar conditions, be provided with high-quality nutrition, modern medical care, the ability to use modern technical means. And this is reality carried out, for example, in the countries of Northern and Western Europe.
It is necessary to develop and improve non-custodial penalties. These are fines, various types of community service, restriction of freedom, "combined order" in England and Wales - a combination of community service with a probationary period.
Modern possibilities of limiting freedom in the form of electronic tracking make it one of the most promising and of all.

                Conclusion

So, postmodern criminology:
 (1) believes, that there are no acts of "criminal" in their content. "A crime" is what the state (by the government, the legislator) here and now is included in the criminal law.
(2) The main basis for the criminalization / decriminalization of acts is the will of the state leadership, the will of the political regime, the will of the head of state.
(3) No, and there can be no “personality of the criminal.” Acts recorded in the criminal law of the state are committed to a greater or lesser extent by all (majority) citizens.
(4) Under the influence of the same factors people can behave "law-abiding" or commit "crimes", or use drugs, or commit suicide, or engage in creativity - technical, artistic, scientific.
(5) The punishment does not and cannot fulfill the tasks and functions that are assigned to it. Until the states abandoned the criminal law and punishment, it is necessary to minimize the harm from punishment.