Crime and Power in Society - Criminal Justice

Crime and power in society examines how dominant groups use law to define crime, target offenders, and reproduce existing social hierarchies. Within Crime as a Social Phenomenon, the relationship between power and crime definition is foundational: it explains why the criminal law looks the way it does, why enforcement falls where it does, and why the gap between social harm and legal sanction is so systematically structured. Marxist criminology, conflict theory, and critical legal scholarship have each developed distinct but overlapping accounts of how political and economic power shape the criminal law — accounts that collectively challenge the liberal premise that crime is a neutral category applied equally across social positions.

Introduction

The relationship between power and crime is among the most politically consequential in the social scientific study of criminal justice. It is also one of the most contested. The liberal tradition holds that criminal law represents a social contract — a set of rules agreed upon by all members of society for mutual protection, applied by the state without favor and enforced by institutions that, whatever their imperfections, are answerable to democratic accountability. The critical tradition denies all three premises: that the criminal law reflects genuine social consensus; that it is applied without structural favor; and that the institutions that enforce it are meaningfully democratically controlled. Criminology has never resolved this disagreement, but it has accumulated a substantial body of empirical evidence that speaks to the relative merits of the competing positions.

That evidence, taken as a whole, lends considerably more support to the critical than to the liberal position. The criminal law systematically excludes or minimizes the harms characteristic of organizational and corporate conduct while intensifying the criminal designation of harms characteristic of street-level individual conduct. Enforcement resources are disproportionately concentrated (Currie, 1998) in communities with the least political power to resist intensive policing. Prosecutorial charging decisions amplify these enforcement disparities (Tombs & Whyte, 2007) through the exercise of discretionary authority that is structurally insulated from democratic accountability. Sentencing law, shaped by legislative choices that reflect the organized interests of dominant groups (Young, 1999) and the organized interests of politically mobilized constituencies, produces incarceration rates for racially and economically marginalized populations that are historically unprecedented in advanced industrial societies. Understanding these patterns requires a theoretical framework that places power at the center of the analysis rather than treating it as a peripheral consideration.

This article develops such a framework. It begins with the foundational theoretical traditions — Marxist criminology and conflict theory — then examines the specific mechanisms through which power shapes criminal law: legislative definition, police discretion, and prosecutorial selection. It proceeds to the particular case of corporate crime and regulatory impunity, considers the possibilities for counter-power through social movements and international law, and concludes with the contemporary manifestations of power in mass incarceration and digital surveillance.

Theoretical Foundations: Power and Crime Definition

Marxist Criminology and the Political Economy of Law

Marxist criminology, as Bonger (1916) first systematically argued, begins from the premise that the state and its legal apparatus are not neutral arbiters of competing social interests but instruments through which the economically dominant class reproduces the conditions of its dominance. Law, on this account, is a superstructural phenomenon — one that reflects the underlying organization of productive relations and serves primarily to protect the property rights, labor control mechanisms, and market conditions on which capitalist accumulation depends (Quinney, 1977). Criminal law, specifically, functions to protect private property from (Michalowski, 1985) those who lack it, to regulate the conduct of the dispossessed in ways that make them available as a disciplined labor force, and to suppress the forms of collective action — strikes, riots, organized political opposition — that threaten the stability of capital accumulation.

This is, of course, a stark theoretical position, and it has been considerably refined since its initial formulations in the 1970s. The instrumentalist version of the Marxist argument — that the state simply does the bidding of the capitalist class — was challenged by structuralist accounts that granted the state relative autonomy from direct class control while insisting that the structural logic of capitalist reproduction shaped legal outcomes without requiring direct instruction from capitalist interests (Chambliss, 1975). The state must appear sufficiently legitimate and impartial to secure the consent of subordinate classes; it cannot simply be a naked instrument of class power without generating the resistance that would undermine both accumulation and stability. Legal ideology — the representation of law as neutral, universal, and protective of all — is therefore a functionally necessary feature of capitalist legal orders, not merely a propagandistic convenience.

The Marxist framework’s most enduring empirical contribution is its analysis of the relationship between property law and criminal law. The extensive criminalization of property offenses, combined with the relative under-criminalization of corporate conduct that dispossesses workers and consumers through legal but harmful practices, reflects a legal order designed primarily to protect existing property distributions rather than to minimize harm in the aggregate. Thompson’s (1975) historical analysis of the Black Act of 1723 — which created some fifty capital offenses protecting the property rights of English landowners against the customary use rights of rural poor — illustrated how the criminal law could be used to eliminate pre-capitalist social relations and enforce a new property regime that directly served the interests of the emerging agrarian capitalist class.

Gramsci’s (1971) concept of hegemony added a further dimension to this analysis, showing how the dominance of ruling-class interests in the legal order is maintained not primarily through coercion but through the production of consent — through the representation of ruling-class values and legal frameworks as expressions of common sense, natural order, and universal interest. Criminal law, on the hegemonic account, does not merely coerce compliance; it produces subjects who understand themselves as having a stake in the legal order that criminalizes their own conduct. The ideological work of hegemony is more durable and less costly than naked coercion, and it operates primarily through legal education, media representation, and the procedural rituals of the criminal justice system.

Conflict Theory and the Sociology of Criminal Law

Conflict theory, as developed by Dahrendorf (1959), Vold (1958), and Turk (1969), offered a less totalistic account of the power-crime relationship than Marxist criminology while sharing its core insight that criminal law reflects the interests of those with sufficient power to define its content and direct its enforcement. For Vold (1958), crime is a product of group conflict — of the normal political struggle between organized groups with competing interests, in which the less powerful group finds its characteristic conduct designated as criminal by the victorious more powerful group. Criminal law is not the product of consensus but of political defeat; its content reflects which groups won the legislative struggle, not which harms the community most urgently needs to address.

Turk’s (1969) formalization of conflict theory within criminology proposed that the probability of criminalization varies with the cultural and organizational differences between authorities and subjects. Groups whose conduct, lifestyle, and values diverge most sharply from those of legal authorities — who are themselves drawn disproportionately from socially dominant groups — face the highest probability of having their conduct criminalized. Turk identified five factors shaping the probability that a given group’s conduct would be defined as criminal: the sophistication of authorities and subjects in their power struggle, the organization of the subordinate group, the realism of the move toward conflict, the relative power of the groups, and the enforcers’ orientation toward the prohibited conduct. This framework generated testable predictions about differential criminalization that have been substantially supported by subsequent empirical research.

Chambliss and Seidman’s (1971) Law, Order, and Power synthesized conflict and Marxist perspectives in a systematic account of how law operates to serve the interests of the powerful at every stage of the legal process — from legislative definition through enforcement, adjudication, and punishment. Their analysis demonstrated that the formal neutrality of legal rules and procedures is systematically undermined by the ways in which organizational resources, legal knowledge, and social connections translate into differential outcomes at each decision point. The poor defendant who cannot afford bail, who is represented by an overworked public defender, who faces a prosecutor incentivized to maximize conviction rates, and who appears before a judge socialized in the values of the legal profession encounters a legal process whose formal equality conceals profound substantive inequality in outcomes.

The Power to Criminalize

Legislative Power and Selective Criminalization

The content of the criminal law is determined through legislative processes in which organized interests compete for definitional authority, and the outcomes of these competitions are systematically skewed by the differential political resources available to competing groups. The classic account of this process is Sutherland’s (1949) analysis of white-collar crime, which demonstrated that the socially harmful conduct of business elites — price-fixing, securities fraud, workplace safety violations, environmental contamination — was systematically excluded from the criminal law or subjected to much weaker criminal penalties than the property offenses of individual actors, reflecting the greater legislative access of business interests compared to those of their victims. The pattern Sutherland identified has been replicated across a wide range of legislative domains in the seventy-five years since his foundational work.

The legislative history of drug prohibition illustrates the process with particular clarity. Federal narcotics legislation in the United States has repeatedly been shaped by racially charged political contexts that had little to do with objective assessments of pharmacological harm. The Harrison Narcotics Act of 1914 targeted opium and cocaine in a legislative context shaped substantially by racist anxieties about Chinese immigrants and African Americans. The Marihuana Tax Act of 1937 was crafted in a campaign driven by the Federal Bureau of Narcotics, whose director Harry Anslinger associated cannabis use with racial minorities and social disorder. The Anti-Drug Abuse Act of 1986 established a 100-to-1 sentencing disparity between crack cocaine — associated with Black urban communities — and powder cocaine — associated with white users — that produced massive racial disparities in federal drug sentences without any defensible pharmacological basis (Alexander, 2010).

Legislative criminalization is also shaped by the agenda-setting power of organized moral entrepreneurs who successfully promote particular harm constructions to legislative audiences. Gusfield’s (1963) analysis of the temperance movement demonstrated how a well-organized coalition of rural Protestant interests secured the constitutional prohibition of alcohol not through majority support for the underlying moral position but through effective political organization, strategic alliance-building, and the successful framing of alcohol consumption as a threat to the American family and the Protestant work ethic. The legislative success of organized moral entrepreneur campaigns depends less on the severity of the underlying harm than on the organizational capacity of the campaigning group and the political vulnerabilities of the legislative targets.

The flipside of criminalization is non-criminalization — the failure of the legislative process to extend criminal sanction to harmful conduct engaged in by politically powerful groups. The history of workplace safety regulation illustrates this pattern: the conditions in American factories and mines throughout the industrial era produced death, injury, and disease at rates that dwarfed the harms associated with any category of street crime, yet these harms were systematically addressed through civil regulatory regimes rather than through criminal law, reflecting the political power of industrial employers to resist criminal designation of their operational decisions (Reiman & Leighton, 2017). The legal architecture of capitalism — in which market decisions that produce harm are presumed to be lawful unless specifically prohibited — systematically deflects criminal designation away from organizational conduct and toward the individual transgressions of those without organizational shelter.

The political economy of criminalization has been further shaped by the emergence of the prison-industrial complex (Christie, 2000) as an organized economic interest in the maintenance and expansion of incarceration. Private prison corporations, correctional officers’ unions, rural communities dependent on prison employment, and the industries that supply carceral institutions have developed organized legislative interests in policies that maximize the incarcerated population (Wacquant, 2009). This represents a further inversion of the liberal crime-control model: the legislative expansion of criminal law is partly driven not by harm reduction objectives but by the economic interests of institutions that profit from criminalization.

The Politics of Drug Law and Race

No domain of criminal law more clearly illustrates the relationship between racial power and criminalization than the history of American drug prohibition. Alexander’s (2010) analysis of the War on Drugs as a system of racialized social control argues that the criminal justice response to drug use and distribution has functioned — and continues to function — as a mechanism for the legal subordination of African American communities in a formally post-civil-rights era. The facially race-neutral drug laws enacted in the 1980s and 1990s have produced a racial composition of the imprisoned population that rivals the explicit racial apartheid of the pre-civil-rights period, while maintaining the formal legal fiction of color-blindness that insulates the system from constitutional challenge.

The empirical evidence supporting this analysis is substantial. Despite similar rates of drug use across racial groups, African Americans are arrested for drug offenses at rates far exceeding their population share, are charged with more serious offenses, are convicted at higher rates, and receive longer sentences than white defendants charged with comparable conduct. These disparities cannot be fully explained by non-racial factors — they persist in analyses that control for offense severity, prior record, and geographic location, suggesting that race operates as an independent variable in enforcement and sentencing decisions at multiple points in the process. The cumulative effect of these disparities at each decision point is a racial distribution of punishment that is not reducible to the aggregate of individual-level decisions but reflects a systemic pattern of racially structured enforcement.

Enforcement Power and Differential Application

Police Discretion and the Exercise of Power

The translation of legislative crime definitions into enforcement action requires the exercise of discretionary judgment by police officers who make decisions about which behaviors to observe, which encounters to investigate, and which to escalate through formal legal processes. This discretion is not exercised randomly; it is structured by organizational priorities, institutional cultures, neighborhood contexts, and the social characteristics of the actors involved in ways that systematically concentrate enforcement attention on the conduct of socially marginal populations. The result is an official crime rate that measures not the distribution of harmful conduct but the distribution of enforcement attention — a profoundly different quantity that reflects the priorities and biases of law enforcement institutions as much as the behavior of the populations they police.

The organizational context of policing amplifies these individual discretionary biases into systemic patterns. Departments that adopt aggressive order-maintenance strategies — broken windows policing, stop-and-frisk programs, drug market sweeps — concentrate enforcement resources in low-income communities of color in ways that generate a self-fulfilling cycle: intensive enforcement produces elevated arrest rates, which produce elevated official crime rates, which produce political justifications for continued intensive enforcement. The communities subject to this enforcement cycle bear its costs — damaged relationships with law enforcement, elevated rates of incarceration and its downstream consequences, the production of criminal records that impair employment and housing — while the benefits of the resulting official crime statistics flow primarily to political actors seeking to demonstrate enforcement activity. Fagan and Davies (2000) documented this dynamic in New York City’s stop-and-frisk program, showing that stops were concentrated in minority neighborhoods independent of crime rates and that the program produced no measurable crime reduction benefit commensurate with its racial costs.

Skolnick’s (1966) foundational study of police work established that officers develop a typological framework — what he called the “symbolic assailant” — that organizes their perceptual field in ways that increase the probability of encountering crime in interactions with individuals whose social characteristics match the type. This typification is not simply individual prejudice; it is institutionally transmitted through training, organizational culture, and the informal transmission of working knowledge among officers. It produces a police gaze that is systematically more alert to the conduct of the young, the male, the poor, and the racially marginalized — not because these individuals engage in more harmful conduct, but because they more closely match the institutionally constructed type of the likely offender. The power to define who looks like a criminal is, in this analysis, inseparable from the power to produce the crime statistics that appear to validate the definition.

The consequences of these enforcement patterns for public trust in legal institutions are direct and well-documented. Residents of communities subject to intensive, discretionary enforcement report significantly lower confidence in the fairness of police, are substantially less likely to report crimes or cooperate with investigations, and are more likely to view legal institutions as instruments of racial control than as providers of protection. The enforcement patterns that generate apparent crime-control benefits in the short term undermine the legitimacy conditions on which effective long-term crime reduction depends — a dynamic that Fagan and Davies (2000) documented in their analysis of New York City’s stop-and-frisk program and that deterrence-focused accounts of policing systematically fail to capture.

Prosecutorial Power and Charging Decisions

Prosecutorial discretion constitutes one of the least visible but most consequential sites at which power shapes the outcomes of the criminal justice process. Prosecutors decide which cases to charge, at what severity level, and whether to offer plea arrangements that effectively determine the sentence before any judicial involvement. These decisions, made largely in private and subject to minimal external accountability, systematically shape who goes to prison, for how long, and for what. The aggregate effect of prosecutorial decision-making across thousands of cases in any given jurisdiction is a distribution of punishment that reflects prosecutorial priorities, implicit biases, and resource constraints as much as the underlying distribution of harmful conduct.

The mandatory minimum sentencing provisions enacted in federal law from the 1980s onward vested extraordinary power in prosecutors by making the severity of the potential sentence contingent on the charge selected rather than on judicial assessment of individual circumstances. A defendant charged with a drug offense triggering a mandatory minimum faces a choice between accepting a plea offer — typically a lesser charge or a reduced sentence recommendation — and exercising the right to trial, knowing that conviction at trial will trigger the mandatory minimum that the prosecutor controls. This charging power effectively compels plea agreements that resolve the vast majority of criminal cases without any judicial assessment of the facts, concentrating adjudicative authority in prosecutorial offices that operate without the procedural safeguards and democratic accountability of the trial process (Pfaff, 2017).

The racial dimensions of prosecutorial power mirror and amplify those of policing. Studies of prosecutorial charging and plea bargaining decisions have consistently found that Black defendants receive less favorable plea offers, are charged with offenses carrying higher sentencing exposure, and are more likely to face mandatory minimum charges than white defendants with comparable criminal histories and offense conduct. These disparities are not explained by legitimate prosecutorial considerations and represent an exercise of discretionary power that systematically disadvantages defendants based on race — a pattern that is structurally insulated from challenge by the legal doctrine that grants prosecutors broad immunity from review of their charging decisions.

Corporate Power and Crime

White-Collar Crime and the Limits of Criminal Law

Sutherland’s (1949) conceptual innovation in identifying white-collar crime — the crimes of the powerful committed in the course of their occupations — as a legitimate object of criminological inquiry exposed a fundamental asymmetry in the criminal law’s reach. The harms produced by corporate and organizational conduct — financial fraud that destroys the savings of millions, environmental contamination that causes cancer and premature death in neighboring communities, workplace safety violations that kill and injure workers at rates exceeding those of street crime — are not only comparable in aggregate to the harms addressed by the criminal law; they vastly exceed them by any measure of social cost. Yet the response of the criminal justice system to these harms is characteristically civil, regulatory, or administrative rather than criminal, and where criminal prosecution does occur, the penalties are typically modest relative to both the harms caused and the resources of the offending organizations.

The legal mechanisms that produce this asymmetry are not accidental; they are the product of the same legislative and enforcement processes analyzed above. The concept of criminal liability for organizations requires attributing a mental state — mens rea — to a corporate entity, a requirement that creates legal complexity that skilled corporate defense attorneys can exploit to secure acquittals or negotiate settlements. The organizational diffusion of decision-making in large corporations makes it difficult to identify specific individuals responsible for harmful outcomes, enabling those outcomes to be characterized as the result of systemic failures rather than individual criminal choices. Regulatory agencies, rather than criminal prosecutors, are typically assigned jurisdiction over corporate harm, and the political capture of regulatory agencies by the industries they regulate is a well-documented feature of the American regulatory state (Pontell & Geis, 2007).

Regulatory Capture and Organizational Impunity

The concept of regulatory capture — first developed in the economics literature and subsequently elaborated by political scientists and legal scholars — describes the process through which regulatory agencies designed to protect the public interest come to serve the interests of the industries they were established to regulate. Capture operates through multiple mechanisms: the revolving door between regulatory agencies and industry; the informational advantage of regulated industries over their regulators; the disparity in organized political resources between diffuse public interests and concentrated industry interests; and the long-term career dependence of regulators on industry goodwill in both government and post-government employment. The result is a regulatory apparatus that is structurally inclined toward accommodation with industry preferences and structurally resistant to aggressive enforcement against organizational harm.

The consequences of regulatory capture for the crime-power relationship are direct and substantial. When regulatory agencies decline to pursue criminal referrals against corporate offenders, when they settle serious violations for civil penalties that represent a small fraction of the harms caused, or when they adopt enforcement policies that effectively immunize organizational actors from criminal liability, they are exercising the power of non-enforcement — a power whose exercise is structurally invisible compared to the highly visible machinery of criminal prosecution directed against individual street offenders. Simpson (2002) documented the strategic calculations through which corporate actors assess the costs and benefits of compliance with regulatory requirements, showing that the effective deterrence calculus for organizational crime is shaped less by the formal severity of sanctions than by the perceived probability of detection and prosecution — a probability that regulatory capture systematically depresses.

The financial crisis of 2008 provided a compelling illustration of the dynamics of regulatory capture and organizational impunity at scale. The financial sector’s production of structured products that generated enormous concentrated profits while imposing massive diffuse risks on the broader economy represented a form of socially harmful organizational conduct that met virtually no serious criminal prosecution. Despite documented evidence of fraud, misrepresentation, and manipulation by major financial institutions, the criminal justice response consisted primarily of deferred prosecution agreements and civil settlements that imposed financial penalties while leaving individual executives free from criminal liability. Pontell, Black, and Geis (2014) analyzed this non-response as a product of the regulatory capture of federal financial oversight institutions and the strategic insulation of financial executives from individual criminal accountability through the organizational structures of modern finance.

The contrast with the criminal justice response to individual property crime is stark and politically significant. A person who steals several hundred dollars from a convenience store faces a potential felony prosecution and incarceration. A financial executive whose decisions contributed to the destruction of billions of dollars of household wealth faces a civil settlement negotiated between institutional attorneys — if any adverse consequences follow at all. This asymmetry is not a failure of the criminal justice system to function as designed; it is the system functioning precisely as the political economy of criminal law definition and enforcement has shaped it to function.

Resistance, Counter-Power, and Legal Change

Social Movements and the Redefinition of Crime

The power to define crime is not held without contest. Social movements representing subordinate groups and previously unrecognized victim populations have repeatedly succeeded in expanding the criminal law to cover conduct previously immunized by the political power of offenders, and in contracting criminal law applied to conduct whose criminalization reflected the power of those who benefited from its suppression. The history of domestic violence criminalization illustrates the former dynamic: throughout most of American legal history, violence within the family was treated as a private matter beyond the reach of criminal law, reflecting both the political powerlessness of women as a legislative constituency and the legal doctrine of marital unity that denied wives independent legal standing. The feminist movement of the 1970s and 1980s successfully challenged this immunization, securing mandatory arrest laws, no-drop prosecution policies, and civil protective order regimes that transformed domestic violence from a private matter into a criminal justice concern (Schneider, 2000).

The decriminalization of homosexual conduct represents the counter-movement: the successful mobilization of an organized constituency to remove criminal designations applied to conduct whose original criminalization reflected both moral entrepreneurship and the political powerlessness of gay and lesbian communities. The trajectory from the American Psychiatric Association’s removal of homosexuality from its diagnostic manual in 1973 through the Supreme Court’s invalidation of sodomy laws in Lawrence v. Texas (2003) illustrates how counter-power can ultimately succeed in altering criminal law, though the timeline of several decades also illustrates the structural advantages that original criminalization holds over subsequent challenges. Legal change of this kind requires not only organized political mobilization but also cultural change in the legitimating narratives that make criminal designations appear natural and necessary.

The cannabis legalization movement represents a contemporary example of successful counter-power challenging a criminal designation that critics argue reflects racial and political bias more than rational harm assessment. The progression from state-level medical marijuana initiatives through recreational legalization in a growing number of states illustrates both the possibilities and the limitations of democratic challenge to existing criminal law: the federal law remains in effect, creating a complex legal environment in which state-level decriminalization coexists with continued federal criminalization, and the racial disparities in enforcement that characterized the prohibition era have been only partially addressed by the reform process.

Mass Incarceration as an Exercise of Power

The American experiment with mass incarceration — the fourfold increase in the incarcerated population between 1975 and 2010 that produced incarceration rates without parallel in the democratic world — represents the most consequential exercise of criminal law power in the nation’s recent history. Wacquant’s (2009) analysis framed mass incarceration not as a response to elevated crime rates — which were falling for most of the period of prison expansion — but as a mechanism for governing social insecurity produced by the neoliberal restructuring of the American economy. As the welfare state was retrenched and the labor market was restructured in ways that left the least-skilled workers behind, the carceral state expanded to manage the resulting social marginality through confinement and surveillance rather than through social provision.

The racial dimension of this carceral expansion is central to any power analysis. African Americans constitute approximately 13% of the general population but approximately 40% of the incarcerated population, a disparity that reflects the cumulative operation of the enforcement and prosecutorial biases analyzed above, amplified by mandatory minimum sentencing provisions that concentrate their effects in communities already subject to intensive enforcement. Pettit and Western (2004) demonstrated that incarceration had become so prevalent in certain demographic groups that it had to be understood as a normal life event rather than an exceptional one — that for young Black men without college education, imprisonment was more likely than not at some point in their lives, with profound consequences for employment, family formation, civic participation, and the intergenerational transmission of disadvantage.

Gilmore’s (2007) political-economic analysis of California prison expansion showed how the carceral state absorbed surplus labor, surplus capital, and surplus state capacity in a political economy that generated these surpluses as byproducts of its restructuring. Prison construction was simultaneously a mechanism of social control over a criminalized population and an economic development strategy for rural communities abandoned by the manufacturing economy — a convergence of interests that produced bipartisan political support for expansion that had little to do with crime rates or rehabilitation prospects. Understanding mass incarceration requires understanding it as an exercise of power with multiple political and economic beneficiaries, not as a crime-control policy that simply failed to achieve its stated objectives.

Uggen, Larson, and Shannon (2016) documented one of the most consequential downstream effects of this carceral expansion: the disenfranchisement of millions of citizens with felony convictions, including in states that permanently strip voting rights from those with criminal records. The political incapacitation of a population concentrated in African American communities produces a further feedback loop between criminalization and political power: those most subject to the criminal law are systematically excluded from the democratic processes through which the law might be reformed.

The carceral apparatus also reshapes the social organization of communities subject to intensive incarceration in ways that extend its effects well beyond the imprisoned population. Clear’s (2007) research demonstrated that the removal of large numbers of adults from already fragile communities through incarceration paradoxically increases crime in those communities by disrupting family networks, eliminating legitimate earners, and concentrating the destabilizing effects of reentry among populations without the social capital to absorb them. Mass incarceration thus produces the social disorganization that crime theories identify as criminogenic, through the operation of the mechanism ostensibly designed to reduce crime — a self-perpetuating dynamic that serves the interests of the carceral apparatus even as it defeats the stated crime-control rationale.

Surveillance, Technology, and Disciplinary Power

Foucault’s (1977) analysis of the emergence of disciplinary power in modern institutions — most famously articulated through the figure of the panopticon — provided a theoretical framework for understanding how surveillance operates as a mechanism of social control that extends beyond the criminal justice system into the full range of institutions through which modern subjects are produced and regulated. The panoptic principle — that subjects who know themselves to be potentially under surveillance modify their behavior to conform to normative expectations, regardless of whether surveillance is actually occurring — describes a form of power that is simultaneously more efficient and more pervasive than sovereign punishment. Disciplinary power does not primarily threaten violence; it produces self-governing subjects who internalize the norms of the institutions that surveil them.

The digital transformation of surveillance has enormously amplified the panoptic potential that Foucault identified in the architecture of the nineteenth-century prison. State surveillance capabilities — including mass interception of digital communications, facial recognition at scale, location tracking through mobile devices, and the analysis of social network connections through predictive algorithms — have expanded dramatically in the post-September 11 security environment, extending surveillance beyond the already-criminalized population into the general public. Harcourt’s (2015) analysis of the “expository society” — in which citizens voluntarily expose themselves to surveillance through social media participation, location-sharing applications, and commercial data collection — argued that the distinction between voluntary self-exposure and state surveillance has become analytically untenable, as commercial surveillance data flows routinely into law enforcement use through both voluntary data sharing and compelled disclosure.

Conclusion

The relationship between power and crime is neither incidental nor correctable through marginal reforms of the criminal justice system. Power shapes which conduct is defined as criminal, which harmful conduct is left outside the criminal law’s reach, which populations bear the enforcement costs of the law that exists, and which actors are protected from enforcement by their organizational resources and political connections. The traditions of Marxist criminology, conflict theory, and critical legal scholarship have documented these relationships with increasing empirical precision over several decades, establishing what is now a substantial evidentiary case for the proposition that the criminal law systematically reflects and reproduces the interests of those who control the processes through which it is made, interpreted, and enforced.

This is not to say that legal change is impossible or that counter-power is always ineffective. Social movements have repeatedly succeeded in expanding the criminal law’s reach to previously immunized conduct and in contracting criminal designations applied to politically subordinate groups. But the structural advantages of existing criminal law over challenges to it, the political economy of the carceral state, and the insulation of prosecutorial and judicial discretion from democratic accountability create conditions in which the burden of legal change falls systematically on those with the least political power to bear it. Criminology’s engagement with these dynamics is not merely academic; it is a precondition for any serious account of what criminal justice reform would need to accomplish and against what structural obstacles it must contend.

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