Abstract
Reinventing Punishment begins with an interesting comparative question: how did the reforms proposed by criminologists in the late 19th century fare in the different legal systems that they influenced? The new criminological science developed by Cesare Lombroso, Enrico Ferri et al. prompted a transnational reform movement that pressed for new penal principles—principles that were understood as scientific in character and therefore global in their reach. But these universalistic reform principles were to some extent localized when they came to be enacted within particular legal systems—and the histories that resulted are liable to be revealing. Michele Pifferi’s new book is a scholarly exploration of this episode in legal history, focused on the individualization of punishment and the differing ways in which it was enacted in Europe and the USA between 1870 and 1939.
The insistence that punishment be individualized, with penal measures being flexibly adjusted to the offender’s disposition, dangerousness and corrigibility (rather than strictly proportioned to offence and culpability) lay at the heart of the new reform movement. Pressed to extremes, this was a revolutionary demand, uprooting the established principles of criminal responsibility, proportionate punishment and uniform penalties—and unsettling the liberal insistence on judicial control, equality before the law and strictly limited discretion. As things turned out, the individualization of punishment was implemented in more qualified, compromised ways, but Pifferi shows that there were striking differences between the indeterminate sentencing laws established in the USA—generalized in application, enabling reform as well as restraint—and Europe’s more restricted forms of individualization—selectively applied to dangerous individuals as a means of social defence. In a richly detailed discussion he describes how theory was modified and pragmatic compromises were constructed by reformers struggling to come to terms with legal cultures and political realities.
The archive from which Pifferi draws his material consists of the proceedings of the International Congresses of Criminal Anthropology and the International Penal and Penitentiary Congresses; reports of associations such as the International Union of Penal Law and the American Institute of Criminal Law and Criminology; and the publications of individual reformers such as Enrico Ferri and Rafaele Garofalo of Italy, Adolphe Prins of Belgium, the Dutchman Gerard Anton Van Hamel, Franz Von Liszt of Germany, Raymond Saleilles of France, Sir Evelyn Ruggles-Brise, Chairman of the English Prison Commission and Zebulon Brockway, Francis Wines, JH Wigmore and Maurice Parmalee of the USA. It may surprise some readers to learn that the turn of the 20th century saw such a vigorous international movement for criminal justice reform—a movement that continued for decades and attracted penal elites and governmental delegations from scores of countries. Globalization notwithstanding, there appears to be rather less international cooperation and debate today, perhaps because organizations like the Council of Europe and the UN have absorbed these functions and rendered them less visible. Certainly the nearest equivalent today—the quinquennial World Congress of Criminology—is less focused on developing shared policy proposals than was the case a century ago.
Pifferi argues that these international deliberations saw the formation of two distinctive schools—an American penology and a European penology—each with its own identity and characteristics. He is well aware that these ‘identities’ gloss over variation and conflict within each of them but his point is that this fundamental contrast formed the basis for debates among the conference delegates. These contrasting identities were real and meaningful for the historical actors involved, even if their empirical referents (in the world of policies, laws and practices) were more complex and varied.
According to the conventional characterizations, the USA was more experimental and more radical—as demonstrated by that nation’s enthusiastic embrace of indeterminate sentencing and the establishment of parole boards (or ‘prison boards’ as they were known) with administrative powers of discretionary release. Americans had a ‘practical genius […] unfettered by precedent or tradition’ (p. 49) and their actions were shaped not by legal theory or criminological science—as with the Europeans—but by pragmatic considerations and powerful practical examples. (The pioneering work of prison warden Zebulon Brockway at the Elmira Reformatory in New York—and the indeterminate system he established there—was held out as the very model of the new penology.) The Americans were also widely assumed to be soft-hearted, humane and given to a naïve trust in the possibility of rehabilitation. So for example, Ruggles-Brise remarked in 1901 that the ‘US school’ is ‘notoriously lenient’ with ‘a generous faith in humanity’ (p. 122) and a few years later President Theodore Roosevelt complained about the ‘sentimentality’ that characterized US criminal justice.
By contrast, the Europeans (which, for these purposes, included the UK) were more conservative and more firmly attached to classical legal liberalism. If indeterminate sentences were to be employed, they would be imposed and overseen by judges, and restricted to special cases involving threats to public safety. If discretionary judgements about dangerousness or incorrigibility had to be made, these would be tightly circumscribed and subject to judicial review. Unlike their American cousins and their criminological compatriots, European jurists were resistant to fundamental change, and especially to any echo of absolutism or arbitrary state power. Schooled in the traditions of Enlightenment liberalism, they were much less willing to relax the principles of legality or to support the more radical demands of penal modernism.
Pifferi suggests that these contrasting cultural identities help explain the rather different patterns of legal reform that appeared on either side of the Atlantic. Whereas the Americans established indeterminate sentencing systems in which judges imposed maximum sentences and parole boards determined the date of release, the Europeans favoured a ‘dual track’ system, consisting of a retributive prison sentence followed by a ‘security measure’ of preventive detention overseen by a judge. (A diluted version, preferred by liberal scholars and adopted in some jurisdictions, replaced the prison sentence with conditional liberation, and imposed security measures only if offenders failed to observe these conditions.)
Pifferi shows that the problems that surfaced in the 1970s, prompting a sharp reaction against indeterminacy, were already visible 100 years previously. A case in point was the difficulty of ensuring that parole boards were expertly staffed, removed from political pressure and equipped with knowledge that would enable them to make predictive decisions. Zebulon Brockway wrote in 1871 that a well-constituted prison board would consist of ‘a physician, an educator, a judge well-versed in moral as well as legal science, a mechanic, a manufacturer, a merchant or financier, an editor or man of letters, a man specially distinguished for his “common sense” and independence of character, a matronly woman of sound sense and a woman zealous for the rights of her sex’ (quoted on p. 61) and this board would proceed independently of outside influence. But the reality was quite different. US parole boards were too often composed of political place-men who owed their positions to the spoils system of gubernatorial appointment rather than to any expertise or experience—and that same problem continues in several states today. And though indeterminate sentencing was intended as a way of supplementing ‘the law of force with the law of love’ and ‘giving the inmate the key to his own cell’—parole boards veered between the causal, routine award of early release and overly long sentences prompted by political considerations. The worries of European conference delegates about arbitrariness, political influence and the rule of men rather than of law, were shown to be all too prescient.
The contrast between Europe’s cautious approach to individualization and the USA’s enthusiastic embrace of indeterminate sentencing is the big story that Pifferi tells, but his research brings to light some other material that will also be of interest. One revelation is that Emile Durkheim’s ideas figured prominently in the international congress debates, with his ‘sociological retributivism’ providing a much-cited source of support for classical criminal justice. Durkheim’s theory that the punishment of offenders functions to reaffirm social values and maintain solidarity had the effect of propping up older conceptions of punishment that were under assault. And it did so not by denying the need for social defence (the goal of penal modernists) but by insisting that vengeful, expiatory punishment is the most vital form of social defence, albeit one that operates behind the backs of those outraged citizens who demand retributive punishment for its own sake.
Pifferi is also informative on the relationship between the new criminology and the penal regimes of Nazi, Fascist and Soviet states in the 1930s. According to earlier writers such as Jerome Hall or Leon Radzinowicz, new criminological concepts such as ‘state of danger’ or ‘measure of security’ had a repressive potential that totalitarian governments picked up and ‘ruthlessly expanded’. But Pifferi casts doubt on this notion of direct influence and proposes an alternative way of thinking about the historical relationship. Citing Gustave Radbruch, he suggests that the new criminology should be understood as a progressive, scientistic current within modern liberal culture, to which Nazis were in general opposed. He shows that Nazi and Fascist writers criticized the new penology as overly lenient, too individualistic and insufficiently concerned with nationalist values. Instead of individualizing treatment Nazi reformers reinstated harsh retaliatory punishments—including a vigorous death penalty—and used them to enhance state security and express popular will. According to Pifferi, the relationship between criminological science, penal modernism and totalitarian government was rather more indirect and contingent. By challenging legality and the separation of powers, penal modernism undermined the previously unquestioned idea of the Rechsstaat and the rule of law. And though it mounted this challenge in the name of progressive, reformative values, its criticisms of liberal principles had a destabilizing effect that later made it easier for authoritarians to shake off their restraints.
Reinventing Punishment is a serious work of scholarship by a trained legal historian that makes a valuable contribution to comparative research. (That its Italian author wrote the book in clear concise English is also a commendable achievement that is likely to go unnoticed.) But the care with which Pifferi substantiates each of his claims can sometimes make for a repetitive exposition, particularly when the same issues were debated over the course of multiple congresses. And Pifferi generally stays rather too close to the evidence, focusing almost exclusively on the statements of reformers and Congress participants and saying too little about the wider social and political context in which these debates took place. The book’s topic is the differential legal impact of criminological science but most of its analysis focuses on reformer’s debates rather than on the processes of policy-making and legislation that translated proposals into criminal justice outcomes. One would have liked to have known more about how these reform processes were played out in specific jurisdictions, and how different national contexts of implementation brought new political and institutional pressures to bear, resulting in further rounds of compromise and modification. Had he taken this next step, he might have been able to say more about the national, state and regional differences that emerged within ‘Europe’ and ‘America’ rather than talking about each of these continents as if they were each unified in their penal policies. In the absence of these national histories, the book can seem a little ungrounded, existing in the liminal space of the international congresses, rather than anchored in the specifics of particular jurisdictions.
Moreover, in his analysis of the differential take-up of penal individualization, Pifferi talks almost exclusively about sentencing and not about the institutional regimes—the varied forms of classification, confinement, treatment and resettlement—that were required to individualize punishment and ensure that offenders were suitably corrected or controlled. These regimes were, after all, topics of debate at the Congresses, and an abiding concern of penal reformers and prison officials. But they hardly feature in Pifferi’s discussion, except as an occasional reference to the disillusionment that affected US states by the 1930s. As Sheldon Glueck observed, US states had adopted indeterminate sentencing as a bold step towards a correctionalist criminal justice (p. 172). But in itself this was merely a redistribution of sentencing powers and points of decision. To be effective, it also required the deployment of correctional facilities, effective treatments and reliable penological knowledge. Little of this infrastructure was ever developed, with the result that US sentencing became a recipe for arbitrariness and bias rather than for effective correction and control.
Readers may be forgiven for asking whether Pifferi’s study tells us anything about present day penology and the stark differences between Europe and the USA. I think it possible that it does. In an uncharacteristically speculative passage, Pifferi remarks (p. 30) that ‘America’s high incarceration rate, its return to strict retributivism, and its general harshness of sanctions—can all be partially explained’ by the history he presents. He never develops this claim but it seems to me that one could plausibly elaborate it along the following lines.
The fateful embrace of indeterminate sentencing by US states eventually generated a powerful reaction against these arrangements resulting in a counter-revolution in sentencing law that began in the late 1970s. That counter-revolution has been transforming US punishment ever since. Determinate sentencing, mandatory penalties, parole abolition, truth-in-sentencing, distrust of penal professionals and a refusal to allow officials discretion lest they release dangerous offenders into the community—each of these is a contributing cause of mass incarceration and each is a reaction against the earlier indeterminate sentencing developments that Pifferi describes. Indeed, as Michael Tonry (2016) has suggested, it may be the case that the extraordinarily severe sentences that are handed down by US courts today are a legacy of very lengthy sentences that were announced by courts in the indeterminate sentence days, safe in the knowledge that they would later be reduced by a parole board.
The transformation of US sentencing—and the run-up of mass incarceration—was, no doubt, shaped by the pressures of high crime rates, the spread of joblessness and drug markets in inner city neighbourhoods, a retreat from social provision, the politicization of crime policy and much else besides. But it was, first and foremost, a reaction against the system of indeterminate sentencing that was ‘hurriedly’ established in the period and by the reformers that Pifferi describes. The path dependency is clear, even if it involves a dialectic of reaction and reversal. In contrast, the European nations have not experienced this kind of upheaval in their sentencing regimes, and have exhibited more stability and less volatile rates of incarceration. In other words, we can infer from Pifferi’s study that one of the genealogical lines leading to the USA’s current patterns of sentencing and punishment was its enthusiastic embrace of indeterminate sentencing in the 1870s and the reactions that followed.
Reinventing Punishment is a pioneering work of comparative criminal justice history—and one of only a handful of works of its kind. If comparative penology is to develop an historical consciousness and thereby fulfil its promise as a research programme—and some of the most exciting recent work has been in that field—then we will need more studies of the kind that Michele Pifferi provides.