The History of Criminal Selectivity

In my dissertation, The History of Criminal Selectivity: A Reading from Marx, Engels, and Contemporary Marxist Thought, I assess the historical and social-economic conditions that underpin the unequal legal treatment and selective prosecution of people based upon class, race, gender, and age. I identify particular patterns of “criminal selectivity.” I consider this phenomenon from the rise of capitalism to today, throughout Europe and the United States. Although the unequal functioning of the criminal justice system is widely recognized today as a key concept for analyzing crime and punishment, the selectivity phenomenon has not been strictly conceptualized and developed.

Up until mid-twentieth century, different criminological schools of thought concentrated only on the study of crime itself (Classical School), the criminal (Inquisition and Positivism), or the social and geographic environment of the offender (Sociological Schools). All of these traditions attributed the causes of criminal phenomena to behavioral or biological shortcomings or to problems of individual socialization. All ignore references to the social context that involves criminal conflict. It was only in the 1960s when U.S. sociologists developed the Labeling Approach Theory, which focused on the criminal agencies and their unequal practices, suggesting a break in the thinking about the criminal phenomenon. In the 1970s, Critical Criminology theory took a further step by researching the connection between the function of those criminal agencies and the characteristics of the capitalist system of production. Later, in the 1980s, the school of Left Realism focused on the advancement of criminal policies from a Leftist perspective, in order to confront the proposals of “Law and Order” sponsored by neoliberal governments. This theory, however, neglected wider theoretical research.

Though there have been attempts to clarify the inequality of the criminal justice system, as well as Marxist theoretical approaches to Criminology, there are almost no studies of the specific phenomenon of criminal selectivity. While it has been considered collaterally (e.g., Critical Criminology and Left Realism) and from an abstract perspective (e.g., Labeling Approach), it has not yet been explored in its historical and socio-economic context. Additionally, these theories did not identify specific mechanisms through which modern criminal selectivity is manifested, nor did they trace its development in earlier historical moments.

In my research, I unpack the relationship between the “productive structure” (the economic conditioning of social processes) and the various forms of criminal selectivity, from the fifteenth century (the period that Marx described as the dawn of the capitalist system of production) to today. I focus mostly on the experience of Western Europe because, generally speaking, it is where the historical trends first developed. Moreover, this region has been studied by the classics of Marxism with a greater emphasis. The project also considers the United States from the twentieth century to today, covering the period when it became an economic and political superpower. This period includes the time when the country emerged as a center for criminological theories.

My investigation relies on the theoretical and methodological legacy of Marx and Engels, in dialogue with contemporary Marxist thought and major theories within Criminology. On one hand, the legacy of Marx and Engels frees the research from the risk of relying on norm-based legalistic analysis, which is removed from empirical reality. On the other, the contributions of Criminology and other disciplinary fields help to avoid an over-simplified analysis with linear connections between “criminal selectivity” and the needs of the production system.

Against this backdrop, I propose a typology of criminal selectivity that goes along with the evolving “economic structure” (namely the relationship between “sum of relations of production” and the economic structure of society). From my analysis there are three modalities of criminal selectivity:

  1. original criminal selectivity” (late fifteenth to late eighteenth century),
  2. disciplinary criminal selectivity” (late eighteenth to twentieth century), and
  3. bulimic criminal selectivity” (late twentieth century to the present).

In each one of the three modalities of criminal selectivity, I analyze four relevant elements:

  1. the contextual setting,
  2. the mechanisms through which the selectivity shows up (which I refer to as “infra-criminalization” and “over-criminalization”),
  3. the subjects who have been persecuted through criminal selectivity and those who have been in power of this selectivity process, and
  4. the discourses that legitimized the application of punishment in each mode, and the material assumptions underpinning them.

Regarding the second element (b), it is important to note that the theories of “Labeling Approach” and “Critical Criminology” established the concepts of “primary criminalization” (the primary filtering process where only certain types of socially negative behavior are criminalized by the legislature) and “secondary criminalization” (the secondary filtering process where only certain types of criminalized behavior are actually prosecuted by law enforcement). Existing research in the area only explains that these concepts are highly relevant to understand screening by state agencies without, however, explaining how such screening is made. As a result, I develop the concepts of “over-criminalization” and “infra-criminalization,” which are traversed by the concepts of “primary criminalization” and “secondary criminalization.”

Infra-criminalization explains a double-process: on one hand, how the legislative branch is extremely reluctant to criminalize certain types of conduct perpetrated by individuals who are in an advantageous socio-economic position, even though such conduct can produce a significant “social harm” (“primary over-criminalization”). On the other, how the executive branch minimizes the prosecution of such conduct by these advantaged groups (“secondary over-criminalization”).

Over-criminalization also explains such a process: on one hand, how other types of conduct perpetrated by individuals with low socio-economic status are subject to an emphatic legislative treatment (“primary over-criminalization”), even though they produce scarce “social harm.” On the other, how the law enforcement agencies exercise an excessive prosecution of these type of conducts (“secondary over-criminalization”).

Within the dissertation, I show that “criminal selectivity” has been present since the dawn of the capitalist system of production and that it was an element of utmost relevance for the purpose of founding it and assuring its development. I highlight how, through over-criminalization, in its various configurations, criminal selectivity constituted an essential tool to ensure social control. Meanwhile, through infra-criminalization in its various forms, criminal selectivity facilitated the invisibility of those individual behaviors and collective enterprises that where necessary for the preservation and/or expansion of capitalism. The contributions of Marx and Engels, the Marxist tradition, along with Criminology in connection with related disciplinary fields, allow us to abandon the abstract perspective of criminal selectivity and read it in its historical context, from a praxis-orientated framework.