The Dilemma of Penal Reform

Hermann Mannheim

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000436259
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

First Published in 1939, The Dilemma of Penal Reform presents Hermann Mannheim's discussion on the impact of economic, social, and legal factors on methods of punishment. Set against the background of author's wide knowledge in German, French, American and Soviet penal methods, the volume brings comparative analysis to address the question, whether it is possible to combine the old practice of making life inside prison less attractive than outside with the outlook aiming at the regeneration of prisoners, and to reconcile the stigma connected with a fair chance of rehabilitation. It also examines the conflict between the requirement of modern penology and some traditional principles of criminal procedure specially for the juvenile courts. One of the pioneering works in the history of Penal Reform, this book will be of interest to scholars and researchers of legal history, law, sociology, and social work.

PART I

THE ECONOMIC DILEMMA OF PENAL REFORM

CHAPTER II

THE ROLE OF THE ECONOMIC FACTOR IN PENAL HISTORY

WHAT is the nature of the economic factor in the penal problem and in Penal Reform? To state our problem as clearly as possible: we concern ourselves not with the economic causes of crime, but with the economic implications of punishment. Such implications may assume three forms: in the first instance, the origin of penal methods, such as deprivation of liberty, transportation, fines, and even capital punishment, may be traceable to considerations of an economic character; secondly, the way in which the administration of the penal system is carried out may depend upon the economic position of the country in general; and, vice versa, penal methods may themselves have important effects on the economic life.

Such are the possibilities. It is our task to see how far they have become actual facts in history. Statements of a rather sweeping nature have sometimes been made in this respect. This was bound to happen as a consequence of the materialist interpretation of history. It was almost inevitable that, at a certain stage of the development of penological thought, the contention had to be made that there had been no change in the world’s penal methods that were not capable of a purely economic explanation. To express the theory in the simplest terms: Penal problems, according to this hypothesis, have been solved and will continue to be solved not in conformity with criminological and penological factors, but according to economic expediency. Whether a given country at a given time resorts to imprisonment in preference to capital punishment, or to transportation in preference to mutilation, or to probation and fines in preference to imprisonment, whether it adopts a stricter or a more lenient course in the prison administration itself—the answer to all these and many similar questions depends on the state of the slave trade and the labour market rather than upon humanitarian principles. If there is a scarcity of labour, with correspondingly high wages, it is uneconomical to execute the working classes, instead of leaving them at large as free labourers or of employing them profitably in the prison workshop. If, however, there is a large surplus of unemployed labour, demoralized by economic misery, prison will lose its efficiency as a deterrent, unless its severity surpasses even the wretchedness of the slums.

A few years ago the attempt was indeed made to interpret the whole trend of the history of penal methods so as to fit into this theory.¹ In the history of penal methods—it has been said—there are four stages which clearly demonstrate this close interdependence of penological developments and economic factors: First, the composition system of the early Middle Ages; here we are shown the type of an agricultural economic society in a sparsely populated country, where all hands are needed for work in field and farm. Consequently, imprisonment as a penalty was almost unknown at this stage, and everything had to be settled by payment of a composition in money or in kind, technically impossible as it then was to invent such a kind of work as could be performed in a closed institution.

When, however, the later Middle Ages saw a considerable growth of the population—followed by social crises, economic misery and an enormous rise of crime against property—there came into being the ill-famed system of cruel penalties with its horrors of capital punishment and mutilation. The lowest strata of society, from which emerged the majority of criminals, required harsher methods than a composition system.

Exponents of this theory regard the year 1600 as the beginning of the third period. The discovery of new continents in the fifteenth century in connection with prolonged wars, plagues and famine had resulted in a great decline in the European population, which made a more humane treatment of the criminal classes unavoidable. Hence the beginning of prison reform in England and Holland at the end of the sixteenth century, a stage which, however, did not last long, as the Industrial Revolution of the eighteenth century soon began to upset the whole economic situation. With the coming into existence of a new army of unemployed, the reformatory spirit of the early English Bridewell, this precursor of the Dutch Zuchthaus, was doomed, and its place was taken by the treadmill and the crank and, above all, by a new wave of death sentences. Even the American invention of strictest solitary confinement—on the surface of it an outcome of the humanitarian and religious ideas of Quakerism—was, if one follows this theory, in fact simply intended to offer a deterrent to those poorest classes of the people who had become too much hardened to privation to be sufficiently deterred by ordinary prison life. If the various American penal systems of the later nineteenth century were, nevertheless, somewhat more lenient than the contemporary European ones, the simple explanation—so we are told—lies in the fact that the American economic system was in greater need of human labour.

Fundamental developments in penal methods have no doubt often been due mainly to economic factors. Nevertheless, if we look more closely into the matter, we find that it was usually something more than mere economic influences that brought about a particular change. And, on the other hand, we may encounter many occurrences that show no connection whatsoever with such factors.

In support of this perhaps a few examples may be quoted taken from the principal turning-points of penal history.

(I) It is surely one of the greatest miracles of the history of penal methods that primitive people should have agreed to renounce the right of vengeance and blood feud in favour of compensation in money or cattle. Measured according to modern standards it is, of course, far from surprising that the injured party should be willing to compound a felony—“the most obvious method of putting a stop to the feud,” as Sir William Holdsworth¹ calls it. This complaisant attitude seems, however, to be somewhat at variance with the psychology of primitive mankind, and we can well understand why Professor Jenks,¹ though conjecturing that “Christianity, with its hatred of bloodshedding,” may have had something to do with it, has confessed to be “in the dark as to the origin of the change.” Legal historians and anthropologists have tried to explain away the metallic flavour of the old compensation system by pointing out that such payment, far from being regarded as compensation only, was in the first place a sign of apology, humiliation and atonement, coming not only from the individual lawbreaker himself, but above all from his group.² Others think that this evolution was closely connected with the development of the idea of individual property, which brought to the surface the passion of avarice that proved as strong as vindictiveness,³ whilst Noyes⁴ seems to regard such property rather as a consequence of “the customary claim of the wronged to the person, or body, of the wrongdoer … or in default of that to vengeance or the price of forbearance.” Sir Henry Maine maintained that the composition system had in fact nothing to do with the penal law and rather belonged to the realm of civil torts.⁵

The interest of the State in the promotion of peacemaking by composition instead of blood feud was obviously also twofold: the ideological interest in the avoidance of bloodshed as well as the economic interest in getting the peace money, the fredus.¹

The impact of a penal system upon the economic life of the community has probably never since been so deeply felt as in those days when, especially in the Teutonic world, owing to the wide scope of the penal laws and the enormity of their tariffs, poverty or wealth of whole families were frequent consequences of wrong-doing.²

The interpretation of changes of this kind was much simpler for the Bolshevist philosopher of the pre-purge period than for the bourgeois student of penal history. To Pashukanis and his followers, the essence of bourgeois penal law lies in its connection with the economic principles of free trade and exchange of goods of equal value on the open market by private individuals.³ It is this idea of barter, of exchanging equivalents, that has brought about the displacement of blood feud by the principle of talion or later by the payment of money compensation. According to this theory, the present “price-list” character of the penal law will not finally give way before the complete destruction of the economic foundations of the bourgeois community, whilst in a socialist society crime will disappear even without the permanent pressure of punishment. Pashukanis’ downfall in 1937 is said to have mainly been due to the conviction that his thesis of the complete subordination of crime and penal methods under the ruling economic principles had caused him to assume a too fatalistic and defeatist attitude towards crime. The coincidence of certain penal methods with bourgeois economy is now believed to have been more a matter of chance than of any causal relationship, and self-defence as the basic idea of punishment is now regarded as indispensable whatever form the political organization and ideology of the State may assume.

The gradual collapse of the composition system was due to changes in the conditions that had been responsible for its coming into being: The Church had undertaken its fight against the barbarity of the old penal system not only because “ecclesia abhorret a sanguine,” but also for the special reason that the original death penalty bore chiefly the character of a religious ceremony, and, therefore, fighting capital punishment meant fighting the old gods. When this motive had lost its power and when, moreover, the Church dignitaries began to participate in the worldly business of the State, their opposition to barbarous penalties weakened.¹ Moreover, the impoverishment of large classes of the population made it impossible to enforce the composition system, and other, non-economic forms of punishment had to be found.¹ “The bill that a man-slayer ran up,” says Maitland,² “became in the days of feudalism too complex to be summed, too heavy to be paid… He had to pay with his eyes or with his life a debt that he could not otherwise discharge.” Corporal penalties and banishment had to take the place of the composition system, because almost the only worldly goods that had been left to the great masses were their bodies and, perhaps, their citizenship.³

(2) If the penologists of that age had been capable of acting according to the rules of economic prudence, it might have been more profitable to have lowered the tariffs, to have invented some sort of Dawes Plan so as to make payment again possible. Instead of doing so, the Church, having failed to save the composition system and shocked by the new methods that succeeded it, established a system hardly less clumsy, but at least less cruel: the institution of Sanctuary and Abjuration, which dominates the period from the thirteenth to the sixteenth century.⁴ The criminal who takes refuge in a sanctuary loses everything he possesses except his life; civilly, he dies and has to abjure the realm. Once more, however, the effects of the economic and social changes make themselves felt: banishment begins to lose its terrors and the loss of valuable manpower through abjuration becomes rather unpleasant to the country of origin.¹ There can be little doubt that outlawry, one of the most frequently used penal methods of that age, was at the same time thoroughly uneconomic. It is, moreover, rather annoying to observe how little the Middle Ages were even capable of using, in suitable cases, the wonderful economic opportunities of banishment which are now so well understood. Instead of a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Copyright Page
• Preface
• Foreword
• Table of Contents
• I. Introduction
• Part I The Economic Dilemma of Penal Reform
• Part II The Social Dilemma of Penal Reform
• Part III The Legal Dilemma of Penal Reform
• Index of Subjects
• Index of Persons