From the late nineteenth century, however, both ways of thinking about punishment were subjected to new social forces. For Garland (1985), this period marked the emergence of ‘the welfare sanction’. In keeping with the broader trajectory of welfare governance, its characteristics included a ‘distinct positivistic approach to the reform of deviants … extensive use of interventionist strategies … deployment of social work and psychiatric expertise, [a] concern to regulate, manage and normalize rather than immediately to punish’ (ibid.: 128). Certainly, these characteristics began to feature in subsequent penal development all the way through to the late 1960s – the high-water mark of the welfare sanction per se – in these societies. However, the range and extent of these characteristics took place within the parameters of their respective models of welfare state development and the values embedded in them. The end product was that, just as there were two models of welfare state development, so there were two distinctive welfare sanctions, each corresponding to the broader welfare state typologies in which they were situated, and with similar consequences in their respective penal realms. Thus, while the social democratic welfare sanction of the Nordic countries began to be put into effect through new mechanisms, and was derived from secular, rather than religious, modes of knowledge, it also represented a line of continuity with the past in so far as punishment was still intended to be used for productive and inclusionary purposes. Similarly, in the Anglophone countries, there was a line of continuity with the penal past in the form of disqualificatory, exclusionary punishments that the liberal welfare sanction was ultimately unable to eradicate: while its reformist intents succeeded in significantly reducing prison levels in these societies in the inter war period, its own limitations and those of the liberal welfare state meant that this was unable to be sustained post war; similarly, its attempts to ameliorate prison conditions were consistently offset and ultimately undermined by the stamp of less eligibility that it carried with it.
How, though, did the two welfare sanctions come into existence, and what kinds of penal arrangements did they oversee and sponsor?
The intellectual origins of the social democratic welfare sanction are to be found in the ensemble of Italian, French and German scholars who, from the publication of Cesare Lombroso’s (1876) L’Uomo Delinquente to that of Enrico Ferri’s (1928) Principles of Criminal Law, dramatically revised the post Enlightenment legal and religious foundations on which thinking about crime and punishment had been based in the Nordic region. Some of the central themes in this scholarship1 were (1) the classification of criminals by type (rather than seeing them all as sinners); (2) the denial of free will (rather than crime being understood as the product of moral culpability); (3) the role of punishment as a form of social defence (rather than providing the opportunity for offenders to seek redemption from God), thus its extent should thus be determined by the crime risks and dangers that should be assessed in each offender (rather than be commensurate to the particular crime they had committed); and (4) punishment should then take the form of incapacitation, or neutralization2 and, until those risks had been brought under control, some form of indefinite detention would be the principal means of achieving this3 (thereby overturning the Enlightenment principles that insisted on finite punishments). The regular international conferences that were held in Europe and North America between 1872 and 1935 provided some of the main outlets and discussion points for this scholarship, although periodic ruptures within it led to the formation of competing associations (Alper and Boren, 1972). The International Prison Congress (IPC) was probably the foremost of these, but others included the International Union of Penal Law (IUPL).
Prominent Nordic scholars, penal administrators and civil servants regularly attended the congresses and the second IPC meeting was held in Stockholm in 1878. However, the German law professor Franz von Liszt who, with others,4 founded the IUPL in 1889 (which had its second meeting in Oslo in 1892), was the most influential of ‘the new penologists’ in this region, even though his work remains little known in the Anglophone world.5 The founding statement of the IUPL indicates the focus of this organization and his own oeuvre: ‘crime is viewed more and more as a social phenomenon; its causes and the means to be employed in suppressing it are, then, plainly as much the concern of sociological investigators as of judges and lawyers’ (quoted by Alper and Boren, 1972: 33, our italics). As with his contemporaries, von Liszt was prepared to accept that criminals were not responsible for their actions because of their absence of free will. However, in contrast to the biological determinism of Lombroso and his followers, he was also of the opinion that crime was as much the product of the social environment as any individual deficiencies or defects that criminals might have (von Liszt, 1882). This premise had three important implications for policy development. First, ‘the concept of punishment gives way to those of curative rehabilitation and preventive detention. The conceptual dividing line between crime and insanity [also] gives way’ (von Liszt, 1897: 76).6 In these respects, there were no ‘natural limits’ to how much punishment should be inflicted, nor should there be any legal restrictions to it: crime was essentially an illness and, like any other illness, should be treated as such until it abated. Second, criminological research ought to provide the foundations for penal policy and assess its effectiveness, rather than leave this to be determined by judges using abstract legal principles. Third, there was an onus on the state to develop social policies that would reduce the criminogenic features of the criminal’s environment (housing, public health, education and so on). In these ways, it would become possible to prevent crime by the use of social measures, rather than relying exclusively on punishment to bring about the ‘neutralization’ of the criminal. However, this aspiration was qualified with the proviso that, until the modern state and its organizations of government were sufficiently developed to perform these tasks, punishment should still be the main instrument for protecting citizens from crime risks (von Litsz, 1882). Again distinguishing himself from the determinism of Lombroso and others, he went on to argue that its form should provide ‘safety from the incorrigibles [and] the rehabilitation of the improvables’ (ibid.: 174, our italics). The former, by whom he meant selective recidivists, should be imprisoned indefinitely, with their cases reviewed every five years to assess signs of good behaviour and improvement – indicators that their risks of future crime had diminished. For the latter, he advocated a one to five year prison sentence, the release date to be determined by the inmate’s progress in prison, rather than being set in advance by judges. Work and education would then provide the means for them to show improvement while serving their sentence. For a third group – the ‘incipient chronic’ or ‘occasional offender’ – fines or ‘conditional’ (that is, suspended) prison sentences would act as ‘a rebuke to their selfish impulses’ (ibid.), and would be punishment enough. The meetings of local criminalist associations that were formed in each of these Nordic countries in the late nineteenth century then provided opportunities for further dissemination of his ideas, as did the journal Nordisk Tidsskrift for Kriminalvidenskab (Nordic Journal of Criminology), founded in 1893 (Andenaes, 1959).
There are some obvious reasons for the resonance of his work with Nordic audiences at that time: his dislike of unnecessarily repressive punishment and belief that some offenders, at least, were redeemable sat well in these societies in which prison regimes were intended to reclaim offenders; as did his downplaying of the importance of judicial thinking in the development and application of the principles of punishment where judges administered law, rather than made it, and where civil servants and the criminal justice intelligentsia were held in high regard; as did his advocacy of indeterminate prison sentences for recidivists in a society in which collective well-being had priority over individual rights; as did his insistence that the state, rather than responding to crime with punishment, should develop preventative social policies – a state in which extensive powers were already in existence and would be extended further as the social democratic welfare state began to be constructed. The introduction of suspended sentences of imprisonment in Norway in 1894 was an indication of his immediate influence in this region, as were the provisions for the indefinite imprisonment of habitual criminals in that country’s 1902 penal code, drawn up largely by Getz, himself a member of the IUPL (Stang Dahl, 1985). Suspended sentences were then introduced in Sweden in 1905 and Finland in 1918. In the latter, Professor of Law Allan Serlachius, petitioning for revisions to the penal code to this effect in 1905, used von Liszt’s framework of criminal classification in his justification. Its existing provisions, he claimed, ‘only applied to, and were apparently designed for “real”, in other words chronic, offenders. For chance – that is acute – offenders, imprisonment, especially, did more harm than good, and society should show its disapproval of their acts through the use of conditional sentences’ (quoted by Lahti, 1977: 130). Thereafter, with a view to restricting unnecessary entry to imprisonment for the ‘occasionals’ or ‘chance offenders’, legislation for ‘day fines’7 was introduced in Finland in 1921.
The more wide ranging penal reforms that were put into place in these societies from the 1920s to the 1960s situated the possibilities of punishment that von Liszt, in particular, had offered within the framework of social democratic welfare governance.8 In this way, the reforms gave further impetus to the binary system of penal control and regulation in the Nordic countries. On the one hand, the state should be given increased powers of control and coercion over those whose unpredictable or unproductive behaviour put the well-being and security of the rest of the population at risk. On the other, rather than allowing such measures to seal their exclusion from society, these same groups of deviants and lawbreakers should be treated with moderation and restraint in a bid to more effectively bring about their social inclusion.
This was manifested, first, in the growing importance given to medico-psychological knowledge as a way of understanding crime – necessary if crime was indeed to be understood as an illness (von Liszt’s position) and in need of treatment. Thus, in Sweden, Victor Almquist (1927: 322), the Director of Prisons, claimed that ‘the criminal act is a manifestation of a moral disease, but only a manifestation, not the disease itself. Through its manifestation, one can make a judgement as to the seriousness of the disease, but without being able to judge, before the fact, if treatment, or the length of treatment, could have an effect on the disease.’ Swedish legislation in 1927 and 1937 thus provided ‘custodial care’ for ‘mentally abnormal’ offenders and ‘internment’ for habitual criminals. In principle, such confinement was ‘to continue just as long as the person is considered a menace to society’ (Göransson, 1938: 125). Minimum, not maximum, terms of detention were set. In making their decisions, the courts would be guided by a ‘Detention Committee’ of psychologists and prison officials. In Norway, legislation in 1929 allowed for the indefinite detention of those who posed a danger due to ‘abnormal conditions of the soul’, an amalgam of religious and medico-psychological knowledge that marked the crossover point in the respective dominance of these discourses in criminal justice policy. Although, in Finland, medico-psychological knowledge was to have minimal impact on policy and administration,9 the use of the indefinite sentence as a form of social defence was reinforced by the Dangerous Recidivists Act 1932: those who endangered ‘public or private security’ by their repeated offending would be contained indefinitely. In the spirit of von Liszt, the purpose was to reinforce the prevention of ‘chronic criminality’. The length and terms of confinement would also be determined by a Prison Tribunal (Lahti, 1977).
New spaces were then opened up, within the criminal justice and penal system, that provided the opportunity for diagnosis and assessment of the risks each offender posed. As the Norwegian Director of Prisons, Hartvig Nissen (1935: 139, our italics), wrote, ‘When modern criminal justice policy demands that society’s reaction toward those who violate its laws must take into account the individuality of the offender, the authorities must have the means to gather extensive and in-depth knowledge about the man’s character and his entire personality.’ To achieve these tasks, psychological experts, rather than Lutheran pastors, now became pivotal figures in the penal system. Conrad Falsen (1930: 61), the Director of Opstad Work Colony in Norway, thus recommended the recruitment of ‘psychiatric doctors’ to the prisons. Furthermore, prison directors ‘should undertake a course in psychiatry before being allowed to undertake this important job.’ As Torsten Eriksson, subsequent Director of the Swedish Prison Commission, later explained, in an address to the Finnish Criminalist Society (1951: 67), ‘If we treat offenders, we must have the same liberties in criminal care as they do in medical health care and this means we have the power to free a person immediately if the treatment requires or keep him in an institution for any length of time if it seems appropriate.’ For these purposes, the new position of Professor in Forensic Psychiatry at the Karolinska Institute (Stockholm) and Chief Medical Officer at Långholmen Prison had been established in 1946.
Indeed, in conjunction with the increasing powers of the social democratic welfare state and the way in which it was prepared to absorb the responsibilities of individual citizens, so diagnoses of mental abnormalities and other personality deficiencies in offenders – and the need for specialist provisions for them – grew exponentially. While, from 1930 to 1935, 25 per cent of male defendants examined by psychiatrists in Sweden were diagnosed as ‘probable recidivists’, this increased to 68 per cent in the period from 1946 to 1950. While preventive detention was used in only three cases in 1928, there were 121 such sentences in 1946, and 204 in 1954, by which time preventive detention inmates constituted around 15 per cent of Sweden’s total prison population (Eriksson, 1954). In addition, the number of offenders found to be insane and not punishable also reached high levels. Eight hundred out of the 164,000 who were convicted in 1945 were then committed to mental hospitals. Indeed, it was seldom determined that those defendants who were examined were not suffering from some sort of mental disorder – only 13, for example, out of 555 referrals in 1970 (Moyer, 1974: 810). Furthermore, ‘every murderer has to be examined by a psychiatrist – the examination takes at least six weeks – and most are found to be insane, needing hospital care instead of prison treatment. The result is that murderers in Sweden – especially the most dangerous of them – are seldom convicted and imprisoned nowadays. Out of 63 murderers in the four years 1944–47, 48 were found insane and committed to hospitals’ (ibid.: 806, our italics).10 As Hardy Göransson (1938: 130), Director of Swedish Prisons, had pointed out, ‘the prerequisites for such a judgement by the court are not so rigid as in countries that follow the M’Naghten rule11 or similar precepts. This means, among other things, that many psychopaths are sent to mental hospitals on a finding of insanity.’ In these societies, without the same level of insistence on individual responsibility in criminal law as in the Anglophone, the rigidity and narrowness of the M’Naghten distinction between sanity and insanity could be dispensed with, allowing for much more fluid interpretations of mental health and much higher numbers of positive diagnoses of mental deficiencies. By the mid-1950s, 255 psychiatric beds were available in the Swedish prisons, accommodating eight per cent of its total prison population (Rylander, 1954–1955). Indeed, the Swedish Social Welfare Board (1952: 6) reported that ‘many penal institutions are provided with mental [health] departments. In fact there has been a strong tendency in recent decades to bring medical sciences, particularly psychology, to bear on treatment. The Prison Board has a department staffed with forensic psychologists, and to an increasing extent the courts order a mental examination of the defendant.’ In the 1960s, there were 14 different centres of forensic psychiatry in Sweden.
Second, in the development of eugenics based penal strategies. In keeping with the power of Nordic social movements to define social problems, eugenics movements in each of these societies pressed for more extensive state controls over the reproductive habits of ‘the unfit’ in the early twentieth century (Broberg and Roll-Hanssen, 1996). In Finland and Norway, the sense of national identity, so important in their struggles for independence, became linked to the need to maintain racial purity. After the triumph of the ‘Whites’ over the Russian influenced ‘Reds’ in the civil war, the Finns were particularly anxious to assert their Nordic ancestry, rather than the Mongol with which they had previously been associated. As ‘proof’ of the former, beauty contests were organized, with the winners becoming ‘representatives of a racially pure Finnish womanhood in the eyes of the rest of the world … independent Finland needed its national symbols to increase its own feeling of solidarity’ (Hietala, 1996: 200). By the same token, though, vigilant ‘race hygiene’ was also needed to stamp out any impurities that jeopardized this desired identity, including those thought to be caused by the hereditary effects of alcohol – crime, mental disorder and unwanted children (see Roll-Hansen, 1996). In Sweden, similar concerns had been raised by the apparent decline of ‘Swedish national character’ (Sundbärg, 1911b). Mass emigration had contributed to population loss (ensuring that this society was able to reproduce itself was to be an important theme in the formation of the social democratic welfare state, as we have seen), while Norway’s unilateral declaration of independence in 1905 was thought to have harmed its national prestige. Furthermore, the consequences of late industrialization and land redistribution in Sweden were now beginning to take effect. While the middle classes were becoming more prosperous (Ericsson, Fink and Myhre, 2004), the cohesion of the Swedish bönder class had fragmented, bringing into existence some 1,400,000 landless peasants in the early twentieth century, many of whom were thought to have alcohol problems (Fleisher, 1967: 15). Again, then, it was thought that racial health was being put at risk by alcohol and its degenerative physical and mental consequences. Moreover, the mere confinement of those so affected was not sufficient to counter the hereditary dangers that they posed to national well-being.
Olof Kinberg (1930: 367, our italics), the Swedish psychiatrist and ‘Alienist to the Central Prison, Stockholm’, thus called for ‘the temporary élimination of criminals’ through ‘a registration of all individuals who are endangered by an asocial environment or whose course of activity already shows them to be asocial and for a stop to the increase of such persons whom experience shows are predisposed to crime’. In Norway, Nissen (1935: 134, our italics) maintained that, ‘as true as it is that a significant cause of crime is poor human material, it is also true that the reduction of this through preventing its continuation to the next generation has to be the main aim of criminal justice policy in the future’. Thereafter, Göransson (1938: 132, our italics) observed that ‘it is becoming more and more clear that the treatment of asocial persons is a question which concerns everyone, since criminality and other asocial conduct means heavy economic burdens on the community and constantly threatening danger to life and property. It is not only humane but prudent to prevent and to combat such phenomena.’ In this context, ‘prevention’ did not merely refer to enhanced social measures of assistance. It also obliquely referred to the need for medical procedures on the reproductive capabilities of those thought to be ‘asocial’.
The legitimacy of such proposals was affirmed by the commitment of Social Democrat and Labour parties to produce ‘better quality citizens’, as well as a better quality of life for them (Sundell, 2000). While the state would give right of entry to ‘the people’s home’ to all, it would also be given, in return, the power to ensure that each individual member neither diminished nor threatened the well-being of the population at large; hence the justifications for the sterilization laws in the 1930s. Indeed, in Sweden, Myrdal and Myrdal (1934: 83) argued that this procedure should not only be administered on the degenerate and the defective, but that it should also be considered for much wider categories – ‘“the psychologically inferior” though not formally legally incompetent, with asocial disposition’. The 1941 Penal Law Commission then justified sterilization of those who were insane or mentally deficient, and those who had ‘a marked asocial way of living that as a rule could be said to be combined with psychic inferiority of one kind or another’ (quoted by Sundell, 2000: 508). Sweden also introduced a castration law for sex offenders in 1944, and Finland in 1950 (Norway rested with voluntary castrations). In this region, the grubby, sordid brutalities of punishment that involved the infliction of pain on the body of lawbreakers had no role to play in the sanitized framework of the social democratic welfare sanction. However, surgical operations that were carried out by white-coated medical professionals on those who jeopardized community health and security were to be encouraged.
Third, in the development of social democratic influenced social engineering, designed to bring about more cohesion, solidarity and security. This was reflected in the increasing regulation of normative behaviour as well as breaches of the criminal law. The temperance movement had been instrumental in bringing about restrictions on alcohol production and consumption from the late nineteenth century and the internment of alcoholics in Sweden under the provisions of the 1913 Inebriety Act. The Social Democrats then revised this legislation in 1932, and made it applicable to ‘those addicted to alcohol who on account of such abuse are a danger to themselves or others, who depend on private or public charity, fail to provide for themselves and their families, or are incapable of taking care of themselves’ (Göransson, 1938). It allowed for internment for between two and four years on the recommendation of the local Temperance Boards (similarly, in Norway). Their committees would also determine the release date. There were 10 such alcoholics’ institutions in Sweden, with a capacity to hold 700, by 1938. In addition to these and the sterilization measures, the state’s right to correct departures from normative expectations was also reflected in internment provisions for vagrants – along with ‘pimps, confidence men, professional gamblers and liquor smugglers’ – in a workhouse or labour colony where they would be made to undertake compulsory labour for between one and three years: ‘the county administration or board also fixes the length of the internment period’ (ibid.: 132). These kinds of social problems had now become matters of public health and national vitality to be addressed by the state, rather than being left to God to decide on redemption or otherwise for the individuals concerned. In these respects, the very consumption of alcohol, not simply those who were alcoholics, constituted a danger to social well-being. In addition to the existing restrictions on consumption, Sweden (1936), Finland (1937) and Norway (1941) became the first countries to introduce specific legislation relating to driving under the influence of alcohol (generally, imprisonment was likely for consuming anything more than one small alcoholic drink).
In the post-war period in Sweden, penal policy also reflected the egalitarian thrust of social democratic social engineering. Rather than focussing on crime committed by poor people, the Report of the Penal Code Commission (no. 55, 1956: 36) was of the view that ‘white collar crime completely dominates the most serious types of crime in this country’. Nonetheless, the prosecution of alcohol related crimes also increased from 3,460 in 1950 (49 per 100,000 of population) to – in the post motbok era – 17,036 in 1970 (212 per 100,000). Indeed, the scourge of alcohol was thought to run right through the criminal population. The Report of the Penal Code Commission (1956) claimed that, in addition to those prosecuted for driving under its influence, ‘33 per cent of all criminals were drunk at the time of their crime’; ‘violent criminals 84 per cent drunk; thieves 35 per cent drunk’; and, of men over 25 committing crime, ‘50 per cent had misused alcohol’. In the same period, more than half of the Swedish prison population was made up of those convicted of alcohol-related driving offences (for example, 1,154 out of a daily average population of 1,871 in 1947 (Report of the Royal [Swedish] Prison Board 1946–1947 (1947)).
The end product of this intention to control minor illegalities and breaches of norms as well as major crimes was a rise in the Swedish prison population even though, when the Social Democrats had come to government in the 1930s, they had launched a concerted drive to bring about its reduction, favouring (in the manner of von Liszt) preventative rather than penal solutions to crime. As Minister of Justice Karl Schlyter (1934: 17, our italics) explained, in what became his famous Depopulate the Prisons speech, ‘more important than all reforms of imprisonment and more important than removing a number of offences from the criminal code or reducing the sentencing scale, are those social reforms that can change the environment that creates the prison customers in the first place’. He also referred to the ‘shame’ of the unnecessary incapacitation of vagrants, young people, fine defaulters and alcoholics (ibid.: 12). To this end, and following Finland’s earlier lead, day fines had been introduced in Sweden in 1931 (and Norway in 1933). In further legislation in 1939, imprisonment only became an option for fine defaulters if there was a deliberate refusal to pay. This had the effect of reducing the number of imprisoned fine defaulters from 13,358 in 1932 to 286 in 1946. Even so, the rate of imprisonment then increased from 45per 100,000 of population in 1950 to 60 in 1965. This seems likely to have been caused by the almost absolute belief that this apparently benign, protective state was justified in using its extensive powers to take care of those who could not take care of themselves, in whatever capacity. Indeed, there were no qualms about removing children from home if necessary: the Report of the Penal Code Commission no. 55 (1956: 40, our italics) stated that ‘it is important to recognize the importance of early influences on criminality. Childhood is very important in relation to crime … a bad upbringing justifies removal from the home. Crime prevention is very important from an early age in relation to training in values and morals. The state is prepared to provide the upbringing children need.’ Moreover, policy in the post-war period was largely under the direction of welfare experts and civil service technicians, rather than Social Democrat politicians, imbued with evangelical faith in the curative powers and resources that had been invested in them (Lexbro, 2000).
However, while the state’s power to regulate and control was increased in these ways, the pain of its penal sanctions was significantly reduced. The medicalization of crime and alcohol problems had begun a process that would lead to the removal of pastoral power from the prison and the practice of cellular confinement that was its bastion. Amidst growing recognition in Sweden that this contributed to mental illness (despite the virtues that the pastors had attributed to it), from 1916 ‘the three year term was kept, [but] after the first year freedom from isolation was allowed during walks, school time and when in church’ (Almquist, 1927: 324). It was then reduced to a maximum of one year in 1921. In Norway, the term of confinement had been reduced to three months in 1933 but, by this time, the authorities were, anyway, relegating its significance: ‘the cell should make up the basis of prison treatment, used during the night-time, rest and for some individual work tasks. But work should be undertaken together with other prisoners’ (Falsén, 1933: 139, our italics). Indeed, church attendance in Norwegian prisons was made voluntary in 1939. With this increasing secularization of the prison, so interest in the mental health of prisoners began to supersede interest in their ‘soul care’. In the 1927 Report of the Royal [Swedish] Prison Board (1928), there are the first references to ‘the mentally weak’. By the time of the 1938–1940 Report of the Royal [Swedish] Prison Board (1941), prison classifications based on religious status (‘confirmed’ or ‘unconfirmed’) have disappeared. Instead, a new section, ‘Treatment and Care’, refers not only to religious instruction but also to education, training and medical and social work intervention.
By this juncture, the Social Democrats had also become interested in reform within the prison. To a degree, this had been prompted by the publication of Else Kleen’s (1944) edited book, Prisoner, Person, Punishment (her marriage to the Social Democrat Minister for Social Affairs gave additional importance to the text12). In Sweden, there seems to have been virtually no tradition of prisoner biographies, as there was in England, and which gave very different accounts of prison life to those set out in the annual reports.13 Now, though, Kleen (ibid.: 46–7) brought the debilitating consequences of cellular confinement to a wider audience: the prisoner ‘has become a number and even in the best circumstances, can only hope to be treated as such. Others regulate all his actions in minute detail; he does not even possess everyone’s birthright to be alone. Through the cell’s Judas eye, his actions are constantly monitored, the space which he can call his own is not much bigger than a grave, in the workshop he is crowded by other people; if he has a right to be in communal areas he still cannot choose his own company even here … he can in no way give expression to his own personality in a way that he can keep to himself.’ She was arguing, in effect, that the separate cell system was not only harmful, in itself, for prisoners, but also contradicted the value given to personal space in these increasingly secular societies.14 Serene, rural solitude was prized now (as reflected in the popularity of summer cottages in the country), rather than the privations of monastic isolation in the cell. As such, this mode of confinement represented an archaic contravention of these values, and the opportunities for all to enjoy them, that egalitarian Social Democrat governments should be providing.
Thereafter, the world beyond the cell was welcomed in, rather than fearfully shut out. The 1941 Report of the Royal [Swedish] Prison Board (1942: 41) refers to a psychiatric prison where ‘football is arranged between prisoner teams and those from outside’. Swimming pools were built where the inmates had ‘no natural facilities’. The 1942 Report of the Royal [Swedish] Prison Board(1943: 43) refers to ‘bigger cell windows, more light, air and the possibility of a view for the bodily and spiritual health of the intern.’ Cellular confinement was then finally abolished in Sweden in 1945, under the provisions of the Penal Reform Law (although it lingered on in Norway until 1959 and Finland until 1971, it had never been anything like as extensive as in Sweden). Now, those admitted to prison should be treated, as Eriksson (1977: 132) later explained, ‘with regard to their human worth. This deviated from many contemporary laws and came into being after all the revelations that had been made about the barbaric treatment of the prisoners in concentration camps by the Nazis.’ The knowledge of what human beings were capable of doing to each other under such a regime had given additional strength to the Nordic values of restraint and moderation, and a determination amongst those developing policy that the treatment of prisoners should not be an exception to them. Accordingly, the 1945 legislation also stipulated that ‘the loss of liberty … need not be accentuated by repressive means to be a deterrent. The loss of liberty can never be outweighed by any benefits … [but] one should strive to make conditions in the institutions resemble life in free society as much as possible and encourage the prisoner’s efforts and capacity for independent work … imprisonment should not be harmful to the prisoner’s economic life and social status’ (quoted by Sellin, 1948: 23, our italics).
These intentions were further developed in the Report of the Penal Code Commission (no. 55, 1956: 40). Now it attempted to omit all oppressive connotations from the context of this document. For example the term ‘punishment’ (straff) should be replaced with that of ‘consequences’ (påföljder). Prisons were to be ‘prisoner care institutions’; cells were to be ‘living rooms’; prisoners were to be known as ‘interns’ and were to be addressed by name or by ‘Ni’, the polite form of ‘you’. Mentally ill offenders were held in ‘protective custody’, which was ‘not seen as punishment’ (Report of the Royal [Swedish] Prison Board, 1956–7). The report also stressed the importance of community involvement in reintegration – prisoners were not a race apart to be administered in isolation by Corrections officials: ‘if a prisoner feels excluded from socializing with respectable people, he is likely to seek out other criminals. The community has a duty to take care of its criminal members.’ Equally, the language of punishment had to change in ways designed to more clearly convey its inclusionary intents and soften its blow, with the effect that previous distinctions between lawbreakers and the rest of society became blurred. Prison design was also intended to reduce the ‘difference’ between prisoners and the rest of society. The small, urban prisons that have become characteristic features of the Nordic prison systems of the twenty first century were one such innovation. These were institutions that, as Schlyter (1946: 66) indicated, ‘differ little from normal houses … the majority of prisoners are relatively harmless and do not need to be cared for in the fortress like institutions’. The ‘open prisons’ that also date from this time were another. Soine’s (1964: 213) description of these latter establishments in Finland15 dramatically highlights the transformation in the possibilities of imprisonment that had now taken place in this region: ‘a common feature … is that they are operated in the same way as free working places … in all these institutions there are big dining halls with self-service. In addition to this, every barrack has a small kitchen of its own where the men can make coffee or tea or some other snack for themselves. The colony also has a canteen, a radio and often a television set, as well as a reading room where newspapers can be read and visitors received. There is also, of course, a Finnish bath, or “sauna”.’ The importance of personal space was also recognized, now, in the organization of both closed and open institutions. Eriksson (quoted by Fleisher, 1967: 188) thus explained that ‘inmates should have to walk some distance to get to work, to watch a movie, to eat their meals. There should be enough space for a football field. Space is very important for the mental health of prisoners.’ In Norway, during the 1960s, prisoners were allowed short periods of leave (a few hours) outside the prison ‘for taking a walk with a visitor … this has also been used for some staff to take inmates for a walk to the village, to the theatre or a football match or to do some needed shopping’ (Report of the Director of the Prison Board, 1973: 74). Similarly, in relation to internal living arrangements: ‘productive work and security demands are satisfied through the physical design and surveillance technology. There are also common rooms, study rooms, a library and a small kitchen on each wing’ (Report of the [Swedish] Prison and Probation Board 1961 (1962: 115)).
As the purpose and construction of prison changed, so too did the roles and expectations of prison staff. The emphasis on therapeutic rehabilitation, rather than spiritual redemption, demanded new professional standards across the prison service. Under the provisions of the social democratic welfare sanction, prison inmates were now to be restored to well-being just like any other group of welfare clients (they were no longer seen as sinners who should seek redemption). As Moyer (1974: 41) put the matter, ‘prisoners and criminal patients are thus viewed in many ways the same as unemployed persons – a group whose existence detracts from the complex functioning of society and who thus must be trained and guided to find useful positions again’. Indeed, it was as if prisoners had become ‘orphans of the welfare state’ (styvbarn i folkhemmet16), in relation to whom the prison staff, at all levels, would be expected to act in an uppfostran capacity. That is, they would steer the ‘interns’, the ‘orphans’, onto ‘the right path’, and correct unwanted behaviour through the provision of education, trade training and so on. This was an attribute of the highly paternalistic nature of the social democratic welfare state, as a whole, towards those thought to have lost their way in life. The literal translation of the term uppfostran is ‘to raise’, as in ‘raising a child’, and implies the establishment and enforcement of rules, boundaries, firmness, education and approval of ‘the child’, with simultaneous disapproval of rule breaking actions. To better carry out and facilitate this role, there was to be a renewed emphasis on training and qualifications for those working in the prisons. As Soine (1955: 31, our italics) put the matter, ‘the modern perception demands psychologists, psychiatrists, sociologists and social workers to treat offenders and that the guard, who is the prisoners’ daily instructor and long term companion, is the prisoners’ most important pedagogue. This kind of perception sets a whole new set of quality requirements to [sic] prison staff beginning from the youngest guard. In this sense he can hardly be called a mere guard anymore.’ From 1954, the Swedish ‘prisoner care’ men would also be expected to contribute to a ‘“Treatment Collegium” consisting of a variety of prison staff and psychiatric experts, where the cases of prisoners serving six months or more would be heard. A treatment plan would be developed, with the inmate having the right, but not the obligation to participate in this’ (Report of the Royal [Swedish] Prison Board 1953, 1954: 28).
Importantly, then, it was intended that there would no division of labour between white collar treatment staff and uniformed guards: contributing to prisoner rehabilitation was the goal of all those employed in the prison.
Meanwhile, security would not be allowed to compromise the intention to place the pattern of prisoner employment on a par with that of the outside world. As Eriksson (1967: 199) put the matter, ‘first we build the factory, then we build the prison’. That is, factory conditions would determine the nature of confinement, rather than prison conditions determine the kind of work that would be available to inmates. Accordingly, ‘prison workshops … were organized in the same way as work outside the walls, with work measured per unit produced, clocking on and clocking off and so on’ (Rudstedt, 1994: 149). Prisoners, like all other citizens, were expected to work in these societies – full employment was now central to the economic foundations of the social democratic welfare state, as well as the value that the Lutheran heritage had placed on it: ‘a full employment policy is followed in the modern treatment of criminals. Inmates are under the obligation to work and all able-bodied offenders shall be employed. Idleness cannot be tolerated’ (Report of the [Swedish] Prison and Probation Board 1961, 1962: 16). At the same time, the Swedish trade unions, rather than seeing the workshops and other employment initiatives as a threat to free labour, had become involved in their development, indicative, again, of the high levels of solidarity and cohesion in this society. Gunnar Marnell (1974: 19), then Director of Stockholm Prisons, wrote that, ‘in 1964, the trade unions of building and construction collaborated with one of our open borstals in such a way that the boys were members of the union when they left the institution … The Prison Board now has appointed a special official (from the trade unions) to promote this form of collaboration. Other unions may follow this example shortly since the central management of the unions has appointed a special working party to develop collaboration with prisons.’ A similar pattern was taking place in Norway. The 1956 Prison Reform Commission stated that ‘maximum effort should be made to make the work regulations of institutions resemble work conditions on the outside, and work should take place under conditions and in surroundings which stimulate work habits and work interests’ (quoted by Mathiesen, 1990: 26). Thereafter, a prison visitor described modern ‘prisoner care’ at the newly built Ullersmo Central prison: ‘well equipped, inmates have the possibility to learn a trade, and eventually receiving a qualification. Such things give self-confidence.’ Indeed, the visitor goes on to report that ‘the whole institution will be as little like a prison as possible … Regarding warm water and internal phones, it is beneficial to have warm water to wash one’s hands in after a long day at work, and the phone is useful when the inmate needs to use the toilet. His intestines are hardly different from those not in prison. Sport and swimming are of course important tools in education and discipline’ (VG, 28 March 1966: 3, our italics). In Finland, the equivalent of a market wage was paid to prisoners working in its open institutions. Some Swedish prisoners were allowed to continue in their previous employment: The New York Times (30 October 1970: 9) reported that ‘inmates travel each morning to civilian jobs and return to their quarters at night’.
At the same time, it was also recognized that prisoners, like any other group of workers, should be entitled to holidays. One Swedish ‘treatment experiment’ thus involved a three-week vacation for 10 long-term prisoners, with no obligation to work, on a remote farm in the company of ‘a close friend or relative’ (Report of the [Swedish] Prison and Probation Board, 1968, 1969: 6). During the 1960s, various other pilot programmes involved prisoners and students sharing a hostel and studying together in Uppsala (The Times, 13 October, 1967: 10). In this country, prison could be a means of facilitating inmates’ access to education, in relation to which they should be treated like any other student, rather than reinforcing their disqualification from society. In another, a ‘prison hotel’ was opened at Ulrikfors offering board and lodging to visiting relatives and intimate friends at weekends – with the prisoners accompanying them. Meanwhile, the high level of escapes and failures to return from leave17 were not allowed to jeopardize these initiatives. Instead, for the authorities, escaping ‘was a natural reaction to unnatural circumstances’ (Report of the [Swedish] Prison and Probation Board, 1964,1965). Escapes represented a failure of state policy, not in relation to security, but regarding the unnecessarily repressive nature of imprisonment that contradicted social democratic values. As Eriksson (quoted by Rudstedt, 1994: 126, our italics) explained, ‘our task, to guide [‘interns’] towards a responsible use of freedom while in such a forced environment becomes impossible if the treatment is aimed towards demanding complete obedience … We shall not forget that we live in a society that wants to show respect for the individual human beings – this is part of the essence of democracy.’ Rather than allowing the escapes to become a pretext for more security, the response of the Nordic authorities was to further liberalize the prison system: parole was increased, more staff were hired and they were provided with better training (in psychology, psychiatry, criminology and ‘social care’, as well as self-defence).
The responses of the authorities were facilitated by the way in which the Nordic media generally replicated the values of moderation, restraint and inclusion when reporting prison issues. Indeed, to ensure that there were no departures from them, ‘rules of communication’ were agreed between the Swedish Criminalist Association and the Publishers’ Association at a meeting in 1953. While this, again, is indicative of the way in which corporate agreements were used to ensure consensus across these societies, it was also indicative of the standing of criminologists at that time in Sweden. As it was, the rules recognized that ‘readers’ confidence is the basis of all sound journalism’. It was thus important that ‘all efforts were made to publish correct information and to distinguish between news and opinion, as well as a prohibition on judging anyone who had not yet been convicted – hence names, addresses and photographs of suspects could only be published after conviction’ (Holmberg, 1953: 62, our italics). In effect, the Nordic press was as factual and dispassionate in reporting prison matters as it was other news items. The details of escapes were given, for example, but without explicit or implicit criticism of the prison authorities for not preventing them. Thus, in Sweden: ‘five escaped from prison during one day. One person in the morning, using a plank to scale the wall; another four that afternoon via a roof in Gothenburg Prison’ (Svenska Dagbladet, 4 January 1956: 3, 6). Similarly in Norway: ‘Dangerous Opstad Prisoners on the Run … A large group of prison staff and police are today searching for three prisoners who escaped while working outdoors … they were spotted at 5.30 pm yesterday at Undheim, but since then there has been no trace of them. Two of them are seen as dangerous men who can cause a lot of trouble while on the run. One of them drove a horse and carriage yesterday when they were working, and it was this they used for their escape. Officers, who saw them drive away, presumed that they were just off to collect more materials. The prisoners left the horse outside the prison grounds’ (VG, 9 June 1956: 1, 9). Then again, as prisoners were seen as ‘just another group of welfare clients’, with no great differences between them and the rest of the population, they were of no special interest anyway, and their escapes from prison were unlikely to attract sensational headlines for these reasons.
Instead, it was when the plans or reactions of the authorities seemed to contravene the prevailing penal values that critical comments were raised – there was too much security, rather than not enough. Kumla high security prison in Sweden, opened in 1965, was thus described as being ‘too security conscious and austere’: ‘a psychologist working in the prison system has directed sharp criticism against the prison constructions at Kumla, which offers a particularly depressive environment that makes the readjustment of the prisoners much more difficult. From the low buildings, one cannot see over the seven metre high wall. All transports take place underground, and the technical equipment replaces human contact. Kumla has the character of a concrete bunker. The police, who have experience of [this prison,] emphasize that the inmates are worn down, they emerge much worse than they came in, suffering from claustrophobia and … apath[y], after long stays in small concrete cubes’ (Svenska Dagbladet, 26 February 1966: 4).
For the international community in the late 1960s, Sweden had become the leader of Western penal reform (although by now the parameters of the social democratic welfare sanction had also been set in place in Finland,18 as well as Norway). While the rise in its rate of imprisonment over this period received little attention, a succession of visiting journalists and travel writers marvelled at its prison conditions (in much the same way that its welfare reforms had captured the attention of the international community): ‘in the open prisons, guards are not armed, windows not barred and nothing prevents a prisoner from quietly strolling away over the fields’ (Strode, 1949: 225); ‘I asked what was done about escaping prisoners, since none of the guards had guns and the [prison] walls were not exactly formidable. [The governor] replied, “it is better to let the man go than to put a hole in him… we can always catch him later”’ (Connery, 1966: 409–10); ‘if the sentence is imprisonment, the prisoner has the comfort of knowing that Swedish prisons are world famous, the explicit aim being to reform, not to punish or take vengeance’ (Jenkins, 1968: 65); ‘if one should be sentenced to a work camp for driving under the influence of alcohol, it will not be in the newspaper even if one is well known; and one has some choice as to when he will serve his time, such as during vacations, so that even his employer need not know’ (Tomasson, 1970: 276); ‘Sweden’s prisons are models of decency and humanity’, claimed The New York Times’ journalist Tom Wicker (1975: 201), under the headline, ‘Almost the Best of Everything’, linking its prison conditions to the quality of life outside of them in this society.
In reality, both sets of practices – the growth of imprisonment and the remarkable conditions of imprisonment – were complementary, rather than contradictory, features of the Swedish adaptation of the social democratic welfare sanction: an insistence that the state needed to correct, to whatever degree was necessary, deviation from social norms, as well as lawbreaking; and an insistence that the pains of correcting these deficiencies would be minimized for those individuals concerned.
Even though, in the late nineteenth century, there had been far fewer direct contacts with the European theorists and the international criminology associations (English officials, reflecting the suspicion of intellectuals, theorizing and anything ‘foreign’ that were such strong characteristics of these Anglophone societies, had been reluctant to participate in these meetings19), there were broad parallels in the intellectual roots of both models of welfare sanction. As with the Nordic societies, so in the Anglophone: criminals began to be classified by type: Havelock Ellis (1890: 1–21), for example, distinguished between ‘the political criminal; … the criminal by passion; … the instinctive criminal; the occasional criminal … and the habitual criminal or the professional criminal’. Similarly, the assumption that criminals chose to break the law began to be disputed. Charles Goring (1913: 368), on the basis of his research on English prisoners, claimed that ‘[criminality is] inherited at much the same rate as are the other physical and mental qualities and anthropological conditions in man’. The need to reconsider the question of responsibility in criminal law came with these doubts. As the Prison Medical Officer J. M. Sutherland (1908: 57, our italics) observed, ‘there is much to be said for the relativity of the responsibility of the derelicts of society with all the drawbacks and disadvantages of environment, bad heredity and degeneracy bequeathed or acquired’. There was also support for punishment as a more extensive form of social defence, rather than the preoccupation with its use as a feared deterrent. Sir Robert Anderson, a senior figure in the London police, thus argued (1907: 36) for the compilation of criminal ‘dossiers’: ‘these should consider the criminal and his antecedents and circumstances; and that, moreover, with the object of safeguarding the interests of the community, as well as dealing fairly with the culprit … the essential inquiry should be “Who is the offender?”, “What is his character?”, “What are his antecedents and circumstances?”’ Under these circumstances, punishment should principally involve some form of bland, indefinite ‘neutralization’ rather than a finite term of misery and deprivation in one of Du Cane’s prisons, as Sutherland (1908: 70) again explained: ‘It is for the public and administrative bodies and individuals directly concerned with social order and good government to evolve a penal organization [that will] gradually eliminate from communities those elements which are unfit for its evolution and dangerous to society.’ These new ways of thinking about crime and punishment in England then came to Australia and New Zealand through contacts between the respective prison authorities, visits to Europe by senior officials from these colonies, and correspondence between local penal reformers and the new penology fraternity.20
Nonetheless, the subsequent parameters and scope of the liberal welfare sanction took on a different form from those of the social democratic model. While the latter was concerned to provide greater protection of society as a whole through extending state power over individuals, the former was concerned with providing more protection for individuals from excesses of state power than had previously been the case (Bailey, 1997): excesses in the sense that in these Anglophone societies it was thought that individuals should be able to live their lives, for good or bad, without any unnecessary interference. This, rather than any elaborate development of psychodynamic treatment programmes, was the liberal welfare sanction’s distinguishing feature. However, while the social democratic welfare sanction intended to correct and normalize in such a way as to bring about the social inclusion of its recipients, the liberal welfare sanction was ultimately limited in its ability to reduce penal severity. As with the distinctions that the liberal welfare state itself made in the determination of who should receive its assistance and who should not, distinction was made between the ‘deserving’ and ‘undeserving’: although some special categories thought ‘deserving’ might have their sentences reduced, those deemed ‘undeserving’ – most adult offenders – were still held responsible for their crimes and would be met with exclusionary penalties.
During the 1920s, the same elements that had coalesced around the development of the social democratic welfare sanction were also present in the Anglophone societies. First, in the form of the growing presence of medico-psychological knowledge in penal discourse. In The Roots of Crime, Edward Glover (1922: 4) argued that ‘crime is not simply an anti-social phenomenon to be dealt with by the judiciary in accordance with fixed penal codes, but also a psychological problem involving close study on the part of all who are concerned with the motivation of human conduct’. From this point, and similar to the transformations taking place in Nordic prison discourse in the early twentieth century, references began to be made in the Anglophone prison reports to the ‘mental weakness’ of inmates; to courts ‘becoming more interested in the mental condition of prisoners’ (Report of the Commissioners of Prisons, 1919: 15); to ‘mental instability’ (Report of the Comptroller-General of Prisons (1927–9); to ‘disordered impulses’; and to offenders ‘who cannot be certified as insane, but whose mentality is such that their power of inhibition is below normal’ (Report on the Prisons Department, 1926: 9).
Second, in the promotion of eugenics-based penal policies. It was not only the case that the British race was in danger of physical deterioration, it seemed, in the early twentieth century. It was also apparent that the breeding habits of ‘the unfit’, greatly exceeding those of the upper and middle classes,21 were likely to exacerbate this dangerous trend. At the same time, the undesirable qualities of those judged to be ‘unfit’ were thought to be the products of heredity. The statistical innovations22 of the prominent mathematician and eugenicist Karl Pearson (1903: 608) seemed to prove that ‘we inherit our parents’ tempers, our parents’ conscientiousness, shyness and abilities, even as we inherit their stature, forearm and span’. Goring’s subsequent research, as we have seen, then extended the powers of heredity to disposition to commit crime. Accordingly, if the British race was to be saved, the mere segregation of those who threatened its vitality and quality was insufficient. As Pearson (1907: 406) then explained, ‘education for the criminal, fresh air for the tuberculous, rest and food for the neurotic – these are excellent, they may bring control, sound lungs and sanity to the individual; but they cannot save the offspring from the need of like treatment nor from the danger of collapse when the time of strain comes. They cannot make a nation sound in mind and body, they merely screen degeneracy behind a throng of averted degenerates.’ To prevent their propagation, there had to be what the New Zealander W. A. Chapple (1903: 118) described, in The Fertility of the Unfit, as ‘external restraint’ (that is, vasectomy or sterilization). In particular, women offenders ‘should be offered the alternative of surgical sterility or incarceration during the child rearing period of their life.’ The respective Anglophone eugenics movements that favoured such proposals enjoyed support from all sides of the social and political spectrum. In England, the Fabian prison reformer Sydney Webb (1909: 3) was of the view that ‘race deterioration, if not race suicide, has to be avoided, hence the legitimacy of compulsory sterilization’. Similarly, the novelist H. G. Wells (1904: 11, our italics): ‘I believe that now and always the conscious selection of the best for reproduction will be impossible; that to propose it is to display a fundamental misunderstanding of what individuality implies. The way ofnature has always been to slay the hindmost, and there is still no other way, unless we can prevent those who would become the hindmost being born. It is in the sterilization of failure, and not in the selection of successes for breeding, that the possibility of an improvement of the human stock lies.’ In New Zealand, the leading eugenics advocate was Chief Justice Sir Robert Stout (1911: 6), who argued that ‘sterilization or de-sexualization … will prevent breeding and also destroy the sexual desire that leads to sexual crime’. In New South Wales in 1927, Millicent Stanley, the first woman elected to its General Assembly, spoke in favour of legislation that would ‘segregate the unfit’ from the rest of society (Carey, 2007).
Third, in the rise of political forces committed to reducing social inequalities and lessening the severity of the state’s response to crime. Around the turn of the twentieth century, reformist Liberal governments, along with the rising Labour party,23 were prepared to widen the assistancial orbit of the state. Some of these politicians also pursued penal reform, most famously Churchill who, in 1910, minuted that its first principle ‘should be to prevent as many people as possible getting [to prison] at all. There is an injury to the individual, there is a loss to the state wherever a person is committed to prison for the first time’ (quoted by Bailey, 1997: 320).24 There were also important links between radical politicians and pressure groups such as the Humanitarian League and the Howard League in England, even if these consisted mainly of middle class intellectuals and others with derided ‘egghead’ associations: their constituency was thus quite different to – more elitist and isolated than – the more broad-based Nordic social movements. In addition, some politicians were willing to take up the causes of political prisoners, imprisoned conscientious objectors and suffragettes in the early twentieth century.25 These interconnections brought about some notable successes in reducing the levels and intensity of punishment. For example, a member of the Humanitarian League himself, John Galsworthy’s (1910) play Justice featured a law clerk who, sent to prison for his first offence (embezzlement), suffered a nervous breakdown as he experienced separate confinement at the start of his sentence. After the uproar caused by these scenes (see Nellis, 1996), the Home Office rushed through further reductions to the period of isolation.26
In addition, the authorities were now prepared to loosen the rigidity that their predecessors had brought to penal administration. In England, Du Cane’s successor, Sir Evelyn Ruggles-Brise, had been a student of the Oxford Professor of Philosophy, T. H. Green, whose work challenged the hegemony of economic liberals in relation to the role of the state in modern society. In Prologemena of Ethics (Green, 1883), he had argued that an extended, enhanced, state authority would provide each citizen with the opportunity to bring to fruition ‘their best self’, thereby providing the opportunities for more ‘just’ and ‘efficacious’ social arrangements. His influence on Ruggles-Brise can then be seen in the latter’s comments, as Chairman, in the Report of the Commissioners of Prisons (1918: 8): ‘a social system which could facilitate the means of employment while at the same time maintaining its sobriety at the present level would incidentally find in such measures the solution of the penal problem.’ On the face of it, this was a retreat from the insistence that individuals had to accept full responsibility for their (criminal) conduct. Instead, the suggestion now was that it was the responsibility of the state to take preventative social measures to reduce their criminogenic surrounds.
In much the same way, then, as the Nordic countries, the coalescence of these forces provided a nexus for penal reform. Indeterminate sentences thus became entry and exit points of the prison in the Anglophone societies. This sanction was introduced for recidivists in New South Wales (1905) and New Zealand (1906) in habitual criminals’ legislation. In England, preventive detention was introduced in the Prevention of Crime Act [PCA] (1908), taking the form of a double track penalty for third conviction recidivists: a finite sentence for the offence was to be followed by indefinite confinement at special prisons27 for up to ten years, or until ‘there is a probability that [the prisoner] will abstain from crime and lead a useful and industrious life’ (s. 14(2) PCA 1908). Furthermore, the release of those sentenced in this way would be determined by an advisory committee of experts (much the same mechanism was also introduced for the corresponding legislation in New South Wales and New Zealand), rather than the judge at the time of sentence. Even then, this would not mark the end of their punishment, since release would instead be hedged around with conditions relating to employment, association and so on. In this way, their normative behaviour would be checked and regulated in addition to any lawbreaking propensities they might have. The use of the penal law to regulate norms as well as punish crimes was also reflected in inebriety provisions in England (1898), New South Wales (1905) and New Zealand (1906) that were similar to those for the internment of alcoholics in the Nordic countries. There were also proposals for the establishment of labour colonies for the unemployed in England, similar to those for Nordic work colonies. Equally similar was the way in which criminals with mental abnormalities could be detained indefinitely. In England (similarly, New Zealand from 1911), the 1913 Mental Deficiency Act28 allowed for ‘moral defectives – ‘those who from an early age displayed some permanent mental defect coupled with strong vicious or criminal propensities on which punishment had little or no effect’ – to be held in this way.
However, it is also at this point that the similarities and parallels between the two welfare sanctions come to an end. Rather than the further extensions of the state’s power to regulate, control and correct, which came with the subsequent development of the social democratic welfare sanction, any more systematic advances in this direction were largely blocked or impeded in the Anglophone countries. There were two main reasons for this. The first was the residual suspicion of any such enhancement of state power and authority – exactly what would be necessary for punishment to be transformed from being a juridical calculation of culpability to the administrative mechanism of social defence that it was becoming in the Nordic. Accordingly, those measures that did extend the state’s power to punish by eliding breaches of criminal law and normative deficiencies became peripheral, rather than central, to the operation of Anglophone penal systems. The English judges, in particular – in contrast to their Nordic counterparts, who were more used to sharing their knowledge and authority in court and who, anyway, were civil servants rather than a specially selected elite group from an already elite profession – were antithetical to indeterminate sentences and the regulatory framework attached to them. Their judgments thus set carefully prescribed limits on these new penal powers. The Court of Appeal in R v Sullivan (1913, our italics)29 recognized that ‘it was necessary in the interests of the prisoner that very watchful care should be exercised by this court and also by those who preside over trials in which a prisoner is charged with being a habitual criminal, to see that the prisoner’s interests are jealously safeguarded’. Rather than allow state power to be used to provide protection for society as a whole, the judgment was focussed on protecting individuals – even the most worthless, as here, a criminal threatened with preventive detention – from undue enlargement of state power: ‘persistence [in crime] is not proved by evidence of a number of convictions beyond the three. Where the interval between the crime charged and the offender’s last release from prison is substantial, evidence of criminality must be submitted … the mere fact that a convict on license had not reported himself to the police is not sufficient to establish that he is leading a dishonest or criminal life’ (R v Mitchell, 1912).30 Furthermore, these laws should only apply to crimes rather than mere breaches of normative conduct. Thus: ‘although association with other criminals was proven this was insufficient to result in a habitual criminal conviction’ (R v Hammersly, 1925)31; ‘it is impossible to say that the jury would inevitably have found the appellant to be a habitual criminal if the importance of his period of honest work had been explained, and the sentence of preventive detention must therefore be quashed’ (R v Winn, 1925).32
These restrictions on punishment were in keeping with the thrust of the more egalitarian polity of this period. As William Crick, speaking out against the habitual criminals measures in the New South Wales Assembly explained, ‘the tendency of modern legislation is not to brand a man as being incapable of reform because he has fallen once, but to give him a chance’ (Hansard [NSW], 1905: 24). In these societies, ‘giving him a chance’ meant setting him free from the state, rather than entrusting him to it. Whatever prisoners might have done to justify their exclusion from the rest of society, this should not reduce them to the level of playthings of the state, to be tossed out of prison by bureaucrats at the point when they decided that they had amused themselves enough at their expense. Indeed, the penal authorities themselves were suspicious of the new powers they had been given under these measures. Ruggles-Brise (1921: 58, our italics) was thus at pains to point out that indeterminate sentencing provisions ‘do not touch that large army of habitual vagrants, drunkards, or offenders against bye-laws who figure so prominently in the prison population. [These are] weapons to be used only where there is a danger to the community from a professed doer of anti-social acts being at large, and reverting cynically on discharge from prison to a repetition of predatory action or violent conduct.’ There was also widespread public suspicion of any such measures, reflecting the way in which state authority, certainly in England, continued to be seen as something alien, frightening and unwelcome by many. The Report of the Departmental Committee on Sexual Offences Against Young People (1925: 61, our italics) noted that ‘we consider special action is called for in cases of repeated sexual offences … [but] we are aware that the public mind is distrustful of any kind of indeterminate sentence’.
The overall effect of these limits and restrictions on the new powers of punishment that had been given to the state was that the highpoint of the use of preventive detention in England was in 1910, with 162 such sentences; by 1948 only six sentences were imposed in that year (Morris, 1950). By the 1960s, such measures had largely fallen into disuse (Bottoms, 1977). The pattern was similar in New Zealand and Australia: ‘notwithstanding that approximately 30 per cent of total receptions in [New Zealand] prisons are of the petty recidivist type who are not deterred, or in respect of whom society is not protected, by repeated short sentences, there has been no recourse by the court to [habitual criminal declarations] at least during the past 20 years and possibly longer’ (Report on the [New Zealand] Prisons Department, 1948: 4). In New South Wales, only 20 habitual criminal orders were made in the first 20 years of that legislation (Grabosky, 1977). Similarly, there was little enthusiasm amongst the body politic for the various plans and proposals to give the state the power to correct the habits and conduct of inebriates, defectives and vagrants. Even amongst those, such as Green, who favoured the idea of a more interventionist state, the intention was that it should facilitate opportunities for self-improvement. It was not intended that the state would become involved in anything like the social engineering programmes of the Nordic countries, Sweden especially. The inebriates’ legislation thus came to a swift end. In England, two such institutions that had been established in 1899 were closed in 1923 because of lack of use. The only specialist institution in New South Wales (none were ever opened in New Zealand) was closed in 1929. The laws against mental defectives were much more likely to be used – when they were used33 – against women of supposedly dubious sexual morality, rather than against all those male criminals whose defectiveness was thought to be conjoined with drunkenness and recidivism, and who had originally prompted these measures (Walmsley, 2000; Fennell, 2001).
As for the vagrants, the labour colonies that had been considered in England never came into existence. Nor was such a measure even considered in New South Wales and New Zealand. In these colonial societies, it was thought that there were ample employment opportunities that individuals should seek out for themselves without the need for any such direction from the state. Similarly, rather than compulsory sterilization being seen as a legitimate way to safeguard racial and national well-being, the prevailing view was that vulnerable individuals had to be protected from such an insidious use of state power. Sutherland (1908: 92–3), although a strong supporter of the indeterminate sentence, was also of the opinion that ‘there is not the remotest chance of a British legislature entertaining or sanctioning such a proposal [for the sterilization of criminals and defectives, and even if there was] it would be impossible to find a public mutilator … no doubt it is a simple and speedy remedy to put the habitual criminal and delinquent “on the list” as persons who “would not be missed”, but listing them for lethal, or mutilating, chambers is not the way either justice or humanity points’. And the New Zealand prison reformer and chaplain, the Reverend James Kayll (1905: 112–3), denounced Chapple’s sterilization proposals: ‘regard yourselves for the moment as being brute beasts and discuss [compulsory sterilization] upon that level. Murder the social instinct; murder the compassionate spirit; disregard the Divine Law and stifle all faith in the providence of God.’ The subsequent Report of the Departmental Committee on Sterilisation (1934) in England extinguished any further interest in eugenics-based penal policies, concluding unanimously against compulsory sterilization. In these countries, the surgical interference with the body’s reproductive capabilities to eliminate risks to normative well-being remained off the agenda, even though punishing the body for crime, by whipping, flogging or hanging, remained possible in them until the 1960s.34
The second reason for the departure of the liberal welfare sanction from the route of the social democratic model was because of a reluctance to retract the principle of individual responsibility in criminal law: at least, a reluctance to retract this beyond those categories of offender who qualified as being worthy of assistance from the state and who were thought deserving of some mitigation of their punishment. Medico-psychological knowledge, the main vehicle for this secular absolution of criminal responsibility in the social democratic welfare sanction, was only allowed to make limited intrusions into Anglophone criminal justice systems (notwithstanding the references to ‘mental weaknesses’ and similar comments in the prison reports in the inter war years). The idea that crime was some sort of predestined activity that individuals could do nothing to resist was met with considerable scepticism, not least amongst English prison medical officers. Common sense and pragmatism based on experience was valued, in these societies, more than theory and remote intellectualizing. William Norwood East (1923: 229), then medical officer at Brixton Prison, thus counselled against ‘the hyper-enthusiasts for inherited degeneracy’. Ruggles-Brise (1921: 162–3, our italics) himself conceded very little ground to those who claimed exemption from responsibility for their crimes on the basis of inherited deficiencies. As regards the inebriates, ‘[this] is a constitutional peculiarity, and depends in many cases uponqualities with which a person is born, in many is acquired by vicious indulgence … [but] it is erroneous and disastrous to inculcate the doctrine that inebriety, once established, is to be accepted with fatalistic resignation’. As regards the mental defectives: ‘defectiveness … must not be pressed so far as to affect the liability to punishment of the offender for his act’ (ibid.: 170, our italics). Thereafter, as psychological abnormality began to replace biological determinism in medico-psychological discourse, the Report of the Departmental Committee on Persistent Offenders (1932: 46, our italics) was dismissive of such explanations of crime: ‘we do not agree with the view that crime is a disease, or that it is generally the result of mental disorder … and further, if we accept the psychological explanations in certain cases of crime, we do not regard it of necessity as an excuse for the offence’. Under the operation of the liberal welfare sanction, any attempts to challenge the deeply embedded emphasis on individual responsibility by reference to this knowledge would be more likely to be seen as an ‘excuse’ for crime than under that of the social democratic welfare sanction, which demonstrated a much greater readiness to shield individuals from their culpability.
Thus, while psychological deficiency was eagerly diagnosed by prison medical staff in Sweden, Norwood East and Hubert (1939: 7), in their research on a prison cohort of men aged under 40 who had been convicted of sexual or arson offences,35 maintained that 80 per cent of them were ‘psychologically normal’. And only seven per cent of the remainder, they then claimed, were actually ‘treatable’: not only was there little evidence of the psychological abnormalities that the Swedish authorities had found so readily but, in addition, even when discovered, there seemed little that could be done to correct them. There was no corresponding enthusiasm, then, for the great investment in treatment facilities that came to be characteristic of the Swedish version of the social democratic welfare sanction. This remained so even in the post-1945 period, after medico-psychological knowledge had been able to demonstrate successes in alleviating Allied physical and mental wounds during the war, as well as in operations it had helped to conduct against the Nazis (Rose, 1985). This was the period when liberal elites situated at leading British universities, in conjunction with senior civil servants and members of the legal profession, were at their most influential on the development of penal policy (Loader, 2006), as already seen in relation to the death penalty debates of this period. The Advisory Council on the Treatment of Offenders (ACTO) was established in England in 1944 and was followed by the Home Office Research Unit in 195 7.36 Nonetheless, considerable scepticism about the claims made for medico-psychological treatment in the criminal justice system remained amongst these elites; in addition, there were concerns that this masked more intrusive forms of state power. As one of this circle’s leading lights, Baroness Barbara Wootton (1959: 218) put the matter, ‘fine phrases cannot, however, obscure the fact that “adjustment” means adjustment to a particular culture or to a particular set of institutions; and that to conceive adjustment and maladjustment in medical terms is in effect to identify health with the ability to come to terms with that culture or those institutions’. Similarly, the authorities continued to warn that ‘it is a mistake to assume that every person who fails to adapt themselves to social conditions is a psychopath’ (Report of the Commissioners of Prisons, 1946: 64); and ‘the aim should be for more intensive individual investigation … in such a way that an individual offender will accept it and not use it as a reason for regarding themself as a medical case or psychiatrically abnormal person’ (Report of the Commissioners of Prisons, 1951: 86). Clearly, as the latter comments indicate, inquiries into an individual’s background, to elicit the cause of their criminality, were permitted within the liberal welfare sanction – the Home Office (1959: 13) White Paper, Penal Practice in a Changing Society, thus favoured the development of ‘more humane and constructive methods’ of responding to crime. This, though, was very different to allowing psychological knowledge to absolve criminals from any responsibility for their conduct and, in so doing, turn them into objects of special curiosity as mental health professionals meticulously probed behind the presenting symptoms of their crime to bring to light the dark secrets of the unconscious mind. Indeed, diagnoses of criminal insanity remained at a minimal level in England: ‘5,158 cases were referred for psychiatric investigation, but 5,000 were considered unsuitable for treatment’ (Report of the Commissioners of Prisons, 1945: 39); ‘it is interesting to note that despite the great increase in the number of remands for medical reports, the numbers found insane and mentally defective have considerably decreased’ (Report of the Commissioners of Prisons, 1951: 20).
In such ways, the much more extensive regulatory state powers with which the social democratic welfare sanction was associated were largely shut out of the liberal model. In the social democratic welfare sanction, these powers had allowed searches for psychological deficiencies in the individual, which were then were likely to be followed by the provision of state care – often indefinite institutionalization. In contrast, in the liberal model, a gradually widening category of special circumstances was allowed to mitigate the level of punishment that would otherwise have been imposed. Rather than the provision of more state care as a response to crime and deviance, there was to be less punishment and more assistance within prescribed categories of acceptability. From the late nineteenth century through to the 1960s, a series of measures were introduced to this effect. The introduction of probation orders was one of the first. As Howard Vincent MP thus explained, when proposing his First Offenders’ Probation Bill in the British parliament, ‘there were many offenders whose crimes did not arise from a criminal and habitually vicious mind – the means ought to be found of reforming the character without giving the prison taint’ (Hansard [UK], HC Deb, 5 May 1886, col. 334). In the early twentieth century, further extensions of probation followed – it became available to most deserving offenders, not just first timers37 – along with the introduction of ‘time to pay’ legislation for fines (imprisonment for non-payment declined from 85,000 in 1910, to 15,000 in 1920 (Bailey, 1997)).38Although, at that time, further ameliorations in the form of suspended sentences and parole were blocked (such measures seemed to contravene the strict principle then in place in these societies that only judges could determine the extent of punishment39), these measures were subsequently introduced in the post-war period, indicative, in themselves, of the stronger influence of welfare expertize on policy formation then.40 By this time, there were also restrictions and prohibitions on sending first offenders and young adult offenders to prison.41
Furthermore, while the social democratic welfare sanction sought to extend the state’s powers of regulation and correction, these were cut back during the operation of the liberal welfare sanction. One of the most striking illustrations of this difference can be seen in the respective approaches to alcohol-related conduct. There was a higher level of tolerance of this in the Anglophone societies. While these also had strong temperance movements in the early twentieth century, there was a much larger constituency for whom ‘having a drink’ carried little by way of any immoderate, licentious connotations. Indeed, in Australia and New Zealand especially, ‘drinking, not abstinence [was] usually regarded as desirable behaviour’ (Sargent, 1973: 2). Heavy drinking had acted as a form of male bonding, and had encouraged mutual reciprocities and obligations during their evolution from being frontier colonies in the early nineteenth century. As Ward (1958: 35) explained in relation to Australia, ‘no people on the face of the earth ever absorbed more alcohol per head of population’. By the same token, ‘the pub’ had become the focal point of community interaction in these societies, rather than the church or the schoolroom, as in the Nordic.42 These differences in tolerance led to imprisonment for drunkenness in England declining from 7,764 such receptions in 1905 to 1,933 in 1930. Post-1945, there were further declines in the prosecution of drunkenness, from 52,700 in 1938 to 23,700 in 1947. As Göransson (1949: 147) observed, during the course of a study tour to England, ‘the social workers do not find the issue of alcohol a big problem [here]’. There were also markedly different approaches to alcohol-related driving offences. In the Anglophone societies, these were likely to be committed by all classes, rather than confined to the poor, and thereby carried much less moral turpitude than in the Nordic. Indeed, such conduct seemed to belong merely to that category of crime that was described by the New Zealand Department of Justice (1968: 11) as ‘social welfare offences’: ‘those who commit them are not properly regarded as “criminals”. A similar attitude certainly tends to apply to traffic offences including even serious breaches which result in death or injury to others. If these offences are not exactly condoned, they do not appear to carry serious moral blame. The offender is felt to be unfortunate rather than wicked.’ In contrast to Sweden, where the prosecution of such offences was driven by a much stronger commitment to use criminal law to provide community safety, only 3.9 per cent of those convicted of driving under the influence of alcohol were sent to prison by magistrates courts in England in 1959, and 6.6 per cent of those so convicted by higher courts. The overwhelming majority were simply fined (Willett, 1964: 165).
The result was that, by the mid-twentieth century, while Anglophone prison populations were made up largely of serious/violent offenders serving long sentences, along with short-term prisoners who did not belong in the ‘deserving categories’, those of the Nordic societies – Sweden, especially – were made up of white collar criminals, drivers who had been drinking alcohol and ‘mentally abnormal’ offenders serving indefinite sentences. As a consequence, the operation of the liberal welfare sanction, in its focus on protecting individuals from over-use of the state’s power to punish, had helped to bring about dramatic reductions in the Anglophone rates of imprisonment, to the extent that, in England in 1939, it was lower than that of all the Nordic countries in which the social democratic welfare sanction had been more active in the development of its elaborate networks of regulation and assistance (see Figure 5.1).
| Figure 5.1 | Imprisonment rates, 1920–1940 (all six societies). |
Sources: New Zealand: New Zealand Yearbook (various). England and Wales: Home Office (2003). Sweden: Christie (1968). Norway: Statistics Norway (2012a). New South Wales Official Yearbook (various). Finland: Christie (1968).
Thereafter, up to the mid-1950s, the prison rates of both clusters remained much the same (with the exception of Finland, still coming to terms with its extreme poverty, post-war repairs and the cultural legacy of its civil war).
Nonetheless, the inherent limitations and constraints of the liberal welfare sanction allowed these reductive possibilities, as well as any reformatory intents, to be surpassed and ultimately overwhelmed by the longstanding exclusionary penal characteristics of the Anglophone societies. This was subsequently reflected in (1) the increases in Anglophone imprisonment rates from the mid-1950s (see Figure 5.2); and (2) deteriorating prison conditions brought about by the continuing stamp of less eligibility on prison policy, which undermined the reformist intentions of the liberal welfare sanction.
The shift from pre war prison reductionism to post-war inflation in these Anglophone societies was caused first, by the parameters that had been set for the operation of the liberal welfare state itself. There were firm limits to the degree of equalization and inclusion it could achieve. In effect, it was unable to redress the much more extended criminogenic social distances and inequalities that were still in place in these societies. While the Nordic countries not only maintained high levels of homogeneity but also a much more entrenched commitment to egalitarianism that their model of welfare cemented firmly in, the Anglophone divisions and disparities became more obvious from the mid-1950s with the growth of affluence and consumerism. In England, class divisions and barriers remained largely in place. In Australia, there were concerns about the criminal behaviour of new Eastern and Southern European migrants, now that the immigration laws had been liberalized (Mukherjee, 1999). In New Zealand, these disparities were ethnic rather than class-based. Maori urban migration at this time led to suspicion and alarm, among the white urban communities, at this sudden intrusion of ‘difference’ to the idealized world they had come to this country to create, or had expected to find. The New Zealand Department of Justice (1968: 398) thus warned that ‘theft and car conversion are not regarded as seriously in a Maori community as in a European … sexual mores amongst Maori also have a slightly different basis … the traditional Maori attitude towards common assault is that it is a matter for the community to deal with … A relatively low income, together with high city rents, makes it difficult for [the Maori] to obtain reasonable accommodation. Loneliness and the anonymity of city life are especially difficult for [them] when used to a full community life. Crime is often a product of temptation.’ The point is that each of these societies had their increasingly visible and prominent underclasses, with very loose social bonds, that were then held largely responsible for the increases in violent crime and property crime that began to occur in these societies in the 1950s and 1960s.43 At the same time, the prevailing social distances and barriers restricted the formation of interdependencies and reciprocities that might have been able to put restraints on immoderate conduct, whether this related to committing crime or punishing it.
| Figure 5.2 | Imprisonment rates, 1950–1970 (all six societies). |
Sources: New Zealand: New Zealand Yearbook (various). England and Wales: Home Office (2003). Sweden: Falck, von Hofer and Storgaard (2003).
Norway: Statistics Norway (2012a). New South Wales Official Yearbook (various). Finland: Falck, von Hofer and Storgaard (2003).
And second, by the parameters that had been set for the operation of the liberal welfare sanction. The limits that were to be placed on the exercise of the state’s power to punish in these societies, the limits to which it would be allowed to assume responsibility for the behaviour of its own citizens, also meant that most offenders were still likely to be held fully responsible for their actions. As such, there were very clear limits to tolerance in the operation of the liberal welfare sanction. It was not the case that assistance would be extended to all – this was not, after all, the ‘the people’s home’ model of welfare. The emphasis on individual responsibility, family responsibility, but not that of the state, is seen in the comments of the Report on the [New Zealand] Department of Justice (1968: 400): ‘insufficient parental care and affection, an unacceptable code of behaviour derived from parents or peers, difficulties in learning … and lack of training for work and leisure combine to produce a sense of inadequacy, frustration and resentment. This either turned inward in self-destructiveness, or outward in aggressive, defiant behaviour that flouts the laws of society.’ When they came to the attention of the courts, inadequates and incapables could be helped, as could juveniles and the inexperienced, and even those who had ‘responded to treatment’, with the introduction of parole in these societies in the 1960s. However, outside of these special ‘deserving’ categories, the vast majority of offenders were still understood as wilfully challenging the authority of the state. They would continue to remain outsiders: the liberal welfare sanction did not change this. Thus, in the pre war period, while there had been none of the internment provisions of the social democratic welfare sanction for vagrants, nor any compulsory despatches of them to work colonies, they would periodically have to spend a few days in prison if caught without any means to support themselves. In between, they were left to beg or seek assistance from charities.44 In ‘public assistance institutions’ in Britain in the 1930s, still run on workhouse principles, they were allowed to stay one night only, in the most spartan conditions, before being moved on.45 In contrast to the inclusionary intents of the social democratic welfare sanction, the liberal welfare sanction wanted to be rid of them – their fate was in their own hands, given that they did not fit the criteria for assistance that was given to ‘the deserving’. It did not wish to go about the business of trying to normalize their conduct, nor did it have the resources to do so. Indeed, throughout the era of the liberal welfare sanction, the vast majority of adult offenders were thought to have no special features: they were entirely forgettable, mundane, criminals, nothing more, nothing less – even the prison psychologists denied them otherwise. Accordingly, without being thought worthy of any mitigation, they would still be met with punishment and exclusion. Thus, while crime rose across Western society as a whole, post-1945, the way of understanding and responding to it in the two clusters of societies came to be very different. In the Nordic countries, the emphasis was on the gravity of white collar crime and the dangers of alcohol. In the Anglophone, the emphasis was much more on penalizing the crimes of all the ‘undeserving’ criminals; this, in practice, meant the crimes of the poor and the powerless46 who then began to populate the Anglophone prisons in increasing numbers.
From the late nineteenth century through to the 1960s, the authorities attempted to ameliorate prison conditions, thereby reducing the severity of punishment in line with the broad expectations of the liberal welfare sanction. In England, the Gladstone Committee’s report (Gladstone, 1895: 16) now specified that prison policy should pursue both deterrence and reform: ‘so much can be done by recognition of the plain fact that the great majority of prisoners are ordinary men and women, amenable more or less to all those influences which affect persons outside’. From that point, more attention was, indeed, given to social and educational training. The Report of the Prisoners’ Education Committee (1896: 6) thus wished to ‘double the amount of time given to teaching: the present limit of 15 minutes per week is by no means sufficient’. Reflecting the increased priority given to education in New South Wales, the Report of the Comptroller-General of Prisons (1911: 17) noted that, at Darlinghurst, ‘a schoolroom is now being used for education, instead of a shed’. In New Zealand, the Report on the Prisons Department (1928: 11) later observed that ‘education classes supplemented by lectures are provided by the Workers Education Association’. Similarly, prison labour changed from being afflictive to productive in purpose. In England, the treadwheels and cranks were phased out in 1898. By 1920, only ‘one in 33 [English prisoners] were employed on picking, teasing and soaking oakum, cotton etc’ (Report of the Commissioners of Prisons, 1920: 25). In New South Wales it was claimed that ‘no capable able-bodied prisoner is engaged at labour that condemns him. He is encouraged to do good work and take a pride in it’ (Report of the Comptroller-General of Prisons, 1916: 43). In New Zealand, it was reported that ‘the days are over when, until comparatively recently, it was by no means uncommon in our local prisons to see prisoners using wheelbarrows to convey soil backwards and forwards in profitless and pointless task fulfilment’ (Report on the Prisons Department, 1934: 2). Indeed, some innovations, such as tree planting camps and farms, were introduced to the prison systems of New South Wales and New Zealand in the early twentieth century.
Furthermore, living conditions became more relaxed. In England, conversation was to be allowed for good conduct and ‘convicts were allowed to retain the photographs of their respectable friends and relatives’ (Report of the Commissioners of Prisons, 1900: 27). At the same time, more emphasis was placed on elevating prisoners’ self-respect and dignity (‘shaving has made a great difference to self-respect … the hang-dog look so characteristic of many prisoners in former days tends to disappear’ (Report of the Commissioners of Prisons, 1923–1924: 19)). Uniforms that had been deliberately designed to humiliate were replaced by workmen’s overalls. There was also more freedom of association: ‘most prisoners are no longer locked up for the day at 4.40 pm. They either come out again after the evening meal and resume associated work, or in some cases, the evening meal is postponed to a later hour’ (ibid.: 23). In New South Wales it was claimed that ‘prisoners are now treated as human beings’ (Report of the Comptroller-General of Prisons, 1917: 4). This allowed ‘wires and bars [to be] removed as far as possible from compartments in which visits paid by relatives and friends and governors are asked to exercise freely the option of allowing visits to take place in a room, if no risks are to be apprehended. The prisoner and his friends in such cases merely sit on opposite sides of the table … the general object of enabling prisoners to see friends under ordinary conditions … is being pushed forward’ (Report of the Comptroller-General of Prisons, 1927: 8). And there was to be less austerity and more opportunities for socialization. Thus, in New Zealand, there were ‘facilities for team sports; sheets are provided for all prisoners; there are shelves for books; a cell chair replaces the stool; flowers and pictures are allowed in the cells’ (Report on the Prisons Department, 1939: 3). Dietary arrangements also improved: ‘there is now no penal element in the diet … each ration is weighed out after cooking, and no reasonable fault could be found with the food, its cooking or distribution’ (Report on the Prisons Department, 1928: 5); ‘the nutrition of the prisoners has been kept well up to standard, and the majority of both men and women are found to put on weight’ (Report of the Comptroller-General of Prisons, 1937: 6).
As these changes occurred, relationships between prison staff and some prisoners began to be conducted on the basis of trust, rather than command. ‘Red collars’ were thus introduced for trustworthy prisoners in England in 1912. The first open prison was established in this country in 1933, receiving ‘star’ prisoners (New Zealand and New South Wales followed suit in the 1950s): ‘there were no walls nor fence, the men sleeping in wooden huts and the boundaries designated, if at all, by whitewash marks on the trees’ (Fox, 1952: 152). At the tree planting camps and farms, it was reported that ‘a considerable amount of trust is necessarily placed in the young men and while there is a reasonable measure of disciplinary control, there is little of the prison characteristics about the treatment’ (Report of the Comptroller-General of Prisons, 1927–1928: 8). The authorities were also insistent that the underlying purpose of these new possibilities of imprisonment should not be compromised by security concerns.
Post-1945, it was intended that imprisonment should further throw off its exclusionary effects and become more productive in purpose. The 1948 English Prison Rules thus stated that the purpose of imprisonment was to help inmates ‘to lead a good and useful life on release.’ Similarly, in New Zealand and New South Wales, ‘the primary aim of the [Prisons] Department is the ultimate satisfactory rehabilitation of every prisoner’ (Report on the Prisons Department, 1949: 1); and ‘a prisoner’s punishment consists of being sent to prison, with its ensuing loss of freedom. If an effort is to be made to rehabilitate, it is essential that, so far as is reasonable and consistent, conditions within the prison should constitute a social life that is approximately that of the community’ (Report of the Comptroller-General of Prisons, 1949–1950: 10). To help them bring about these possibilities, educational services were to be increased – there was a reported 45 per cent attendance of the prison population at evening classes in England, for example (Report of the Commissioners of Prisons, 1948: 27). Nor would these continue to be restricted to illiterates: ‘240 prisoners in New South Wales have enrolled in tertiary education since 1960’ (Report of the Comptroller-General of Prisons, 1965–1966: 3). Similarly, there were improvements to hygiene and other aspects of everyday living arrangements. As regards diet, ‘the traditional breakfast of porridge’ was supplemented by ‘sausage and gravy’ or ‘bacon and fried bread’ with ‘a reduction in the amount of oatmeal and bread being balanced by an additional item of food suitable for providing an extra dish, [giving] a welcome break in the breakfast monotony’ (Report of the Commissioners of Prisons, 1956: 126). In relation to personal appearance, uniforms were redesigned with a view to further reducing the prisoner’s sense of shame and difference from the rest of society: ‘new dresses for women prisoners have been completed. These are non-institutional in appearance and offer a choice of colour to meet, to some degree, the personal taste of the women’ (Report of the Commissioners of Prisons, 1950: 4). Thereafter, ‘a start was made on a programme that aimed at improving practically every article of prison wear and at bringing scales of issue up to modern standards of living and hygiene. Outer wear has already been radically altered with a smarter jacket to replace the outmoded battle dress style blouse. More and better shirts, socks and sets of underwear were issued’ (Report on the Work of the Prison Department, 1968: 11). The authorities also wished to further relax prison security, with Sir John Simon, Under-Secretary of State at the Home Office, explaining that ‘the public should accept something less than 100 per cent security. Protection of this standard … could no doubt be brought about by the strategic confinement of prisoners by loading them with fetters and manacles and irons and so on. [But] no-one today would countenance such a thing … if society wants to develop the positive and redemptive side of prison work, it must face the fact that the occasional prisoner may escape and do damage’ (quoted in the Report of the Director of Penal Services, 1957: 8).
However, running alongside these ameliorative developments, less eligibility insisted throughout that prisoners had to be disadvantaged, rather than advantaged, by their crimes. Thus, the improvements in prison conditions had to be carefully tailored to demonstrate that the prison would remain a place to which its former inmates would never wish to return: ‘it is, we hope, quite unnecessary to refute the idle statements which obtain currency among those unacquainted with the system, that prisons are made “comfortable”; they are only “comfortable” so far as the laws of hygiene compel cleanliness and wholesome food and decent clothing’ (Report of the Commissioners of Prisons, 1912: 27); ‘before discussing the progress of education and other measures, it is worthwhile to make their object clear … this is not to make prisons pleasant’ (Report of the Commissioners of Prisons, 1923: 17, our italics). Furthermore, prisoners still had to internalize the indissolvable taint of being imprisoned – the state was not going to absorb it for them, in these societies, and allow them to escape the consequences of their crimes. It thus remained that ‘the penalty is in the dishonorary circumstances which must accompany loss of liberty, in the deprivation of what liberty permits in the way of indulgence and self-gratification; in compulsory labour; in the loss of self-respect. Nothing can add to the fletrissure [humiliation] which these things involve’ (Report of the Commissioners of Prisons, 1925: 14). Prisoners had to recognize the distance that they, of their own volition, had placed between themselves and the rest of society: ‘a prisoner must be made to realize that he must first discipline himself by learning to adopt himself to the institutional regime before he can conform to more exacting standards in civil life. It is fundamental that he should appreciate that offending against society involves deprivation of liberty and the denial of certain privileges that law-abiding men enjoy’ (Report on the [New Zealand] Prisons Department, 1936: 5).
And, while some prisoners might indeed now be considered more trustworthy, the vast majority were still seen as utterly worthless. Formally, at least,47 they were no longer compelled to perform afflictive labour; however, there seemed little point in trying to organize more productive work for them: ‘[the prison population] is of a low order of physical and mental development, it is constantly changing, and in short presents no favourable feature whatsoever for the development of industrial work’ (Gladstone, 1895: 22). The Report of the Departmental Committee on the Employment of Prisoners (1933: 17, our italics) later noted that ‘the Prison Commissioners make no claim that a prisoner is taught a trade that he can follow on release, as they have reached the conclusion that the poor quality of labour [and] the conditions of an institutional life … make this impossible for all but a minority of prisoners.’ At the same time, employment prospects in prison were limited by stringent opposition from trade unions to any possibility of prison-made products competing with those of free labour.48 In these societies, solidarity between workers was not extended to prisoners. Nor was there any tradition of corporate governance, whereby the unions would have some involvement in the development of prison labour, as in Sweden.
Furthermore, notwithstanding the more inclusionary emphasis in post-1945 policy, prisoners remained at the bottom of the hierarchy of acceptability and worthiness that directed the operation of the liberal welfare state. They were still unwanted outsiders, rather than just another group of welfare clients, as in the Nordic countries. All other state organizations had priority on the welfare state’s resources, and the prison authorities themselves accepted this: ‘with pressing social need for houses, hospitals, and schools, we very well know where we stand in order of priority for capital works’ (Report on the [New Zealand] Department of Justice, 1954: 6); ‘the erection of prisons is a slow and costly business and it would have been completely wrong for the department to have sought to build prisons which may or may not have been needed, particularly at a time when the erection of schools, hospitals and houses could have had a high priority’ (Report of the [New South Wales] Comptroller-General of Prisons, 1956–1957: 5). This kind of public recognition – prison was the home of the dregs of society and it thus could not expect any embellishment that would change its standing – added to the difficulties of recruiting uniformed staff. There was no possibility of this employment becoming a more attractive vocation, as was beginning to occur in the Nordic countries. Instead, as the Report on the Prisons Department (1951: 4) noted, in New Zealand ‘the vocation of prison officer is not popular’. In England, it was acknowledged that ‘the staff situation is serious and discouraging. Recruiting is worse than ever’ (Report of the Commissioners of Prisons, 1955: 32). Thereafter, following ‘an extensive recruiting campaign, on television and in the press, the result is most disappointing. Of 378 inquiries, only 35 were appointed’ (Report on the Department of Justice, 1966: 15). In these countries, inducements to join the prison service consisted of trying to improve the material rewards of this employment – providing housing subsidies, overtime and triple-time payments for weekend work and so on. There was very little to try and raise the status or educational background of the applicants, as if such skills would be wasted in this low status occupation. As it was, standards had had to be further reduced to facilitate recruitment, while enhanced training opportunities were periodically cut because of economic stringencies.49 At the same time, officers were largely excluded from participating in the much higher status treatment work that did begin to be developed in some English prisons in the 1950s.50 Roper (1955: 99, our italics) thus distinguished the role of ‘discipline staff’ in the following way: ‘whilst [these] officers are mainly in a supervisory and custodial position, it is perfectly natural that benign authoritarianism should be the ideal because simple obedience is the chief requirement from the prisoners who are in their charge.’ While there were, from time to time, plans to make the work of the prison officer more challenging and demanding,51 it remained that ‘much of the time of the general prison officer is spent on custodial duties, including court and escort work’ (Home Office, 1969: 94).
Even so, deteriorating conditions in the Anglophone prisons in the 1950s and 1960s further widened the gulf between these and the Nordic prisons that less eligibility had already put in place. These deteriorations were caused by, first, a combination of under-investment and over-use (itself the reaction to increasing crime in these societies). References to overcrowding – the confinement of three prisoners in a cell built for one – began in England in 1947 (Report of the Commissioners of Prisons, 1949). By 1950, there were 2,000 inmates living in such conditions. By 1961, the figure was 8,000, or around one third of the total prison population. In New Zealand it was acknowledged that ‘prison accommodation is on the verge of crisis. Overcrowding is always a source of trouble and we must strive to avoid the expedient of holding more than one to a cell’ (Report on the Department of Justice, 1954: 6). In New South Wales, it was recognized that ‘one has a penal system operating largely in walled prisons which are too small, built 50 to 120 years ago, with inadequate facilities’ (Report of the Comptroller-General of Prisons, 1965/6: 3). Although major prison building programmes began to be put in place in the early 1960s, the design of the new prisons gave little recognition to the importance of personal space and freedom of movement that had become such an important feature in Swedish prison building. Indeed, cell sizes were actually reduced from the standard measurements of the Victorian era.52 This was justified on the assumption that ‘[the cell] is no longer a place in which the prisoner will eat his meals and do his work; nor will he be occupied [there] during the day. [It] is primarily a place in which he sleeps and need not therefore be as large as the cells of earlier prisons … The new cell is designed for occupation by one prisoner only, and could not be used to house three prisoners … careful consideration was given to the possibility of providing washbasins and waterclosets in individual cells, but it was decided that the considerable expense involved would not be justified in this type of prison’ (Paterson, 1961: 309).
Sir Alexander Paterson’s assumptions were unfounded. Work, education and association – the main activities that took prisoners out of their cells – were all restricted, anyway, by the very nature of the less eligibility determined prison policies of these societies. Now, though, they were to become more so. Prisons remained largely separated off from the rest of society – still a place to send those who were different, who did not belong; those, in fact, who would never be able to hold on to a legitimate place in these societies and who were thus not worthy of any attempt to assist them to do so: ‘the government recognizes it is right to provide facilities for the comparatively small proportion of offenders who are capable of learning and benefitting from a skilled trade … it is, however, neither practicable nor indeed necessary to provide for most offenders exactly the same work in custody as they might obtain after release’ (Home Office, 1969: 26, our italics). Indeed, in contrast to Eriksson’s dictum, ‘first we build the factory’, the Report of the Commissioners of Prisons (1956: 26, our italics) insisted that ‘prison is not a factory’. Here, then, the demands and rules of the prison determined the employment opportunities of its inmates. The result was that most prisoners who did have work in England found themselves sewing mailbags: ‘nobody likes it … it fits a man for no form of work he is likely to do outside, and few are likely to feel anything but dislike for doing it inside. And you do not even train men “in orderly and industrial habits” by setting them to work in which they do not take and can scarcely be expected to take any intelligent interest’ (Fox, 1952: 181). Prison labour was no longer tortuous and backbreaking in these societies; instead, it had become tedious and pointless. Work thus remained a punishment, something to be avoided if possible. In the Nordic countries, however, it was not only intended to assist in prisoner reintegration but was also to be something that gave pleasure and enjoyment: ‘all prisoners have a duty to undertake work in prison. The aim for such work is that it should be of interest to the inmate, that he should enjoy it and gain something from it’ (Report of the Director of the [Norwegian] Prison Board, 1973: 91).
Similarly, education services remained limited and generally of a low standard: ‘we may now say that any educable prisoner whose sentence gives him or her enough time to learn and is willing to, need not leave prison as an illiterate’ (Report of the Commissioners of Prisons, 1951: 51). In addition, these services remained a privilege, not a right, available only after working hours. Even though, as the prison population rose, employment prospects within the prison declined further,53 education was not allowed to become a substitute for work. If this happened, prisoners would be provided with opportunities to better themselves without having done anything to earn them.
Second, by a new emphasis on security during the 1960s. This was the reaction to a series of high profile escapes.54 While the Nordic authorities had been able to handle their own escapes – with some of these also being high profile55 – with equanimity, the greater social divisions, and the more threatening nature of imprisonment itself and the inmates it housed, had begun to create a more heightened sense of alarm and drama over prison escapes in the Anglophone societies. Its media then exacerbated these concerns in its more melodramatic and sensationalist reporting style.56 For example, after two armed robbery prisoners murdered a guard during the course of their escape from a New South Wales prison, The Sydney Morning Herald (10 October 1959: 1), in episodic detail, reported ‘Dangerous Escapees Holed Up in Dramatic Hunt’. Thereafter, ‘One Thousand Pound Government Reward for Recapture of Long Bay Fugitives’ (The Sydney Morning Herald, 12 October 1959: 1); ‘Police Told Escapees “Must Be Caught At Any Cost”’ (The Sydney Morning Herald, 13 October 1959: 1); ‘Milkman Says [Escaper] Spoke to Him: Police Defied’ (The Sydney Morning Herald, 20 October 1959: 1); ‘Alarm Over [Escaper]. People Lock Homes’ (The Sydney Morning Herald, 15 November 1959: 4) – and so on, until their eventual recapture some five weeks later. Furthermore, without the degree of autonomy and the respect that, as civil servants, their Nordic counterparts enjoyed, the Anglophone authorities could only acquiesce to government insistence that security was to become the first priority of prison policy. By the same token, the authorities were also hemmed in and constrained in their attempts to modernize, make improvements or construct alternatives to the prison estate. The intended expansion of open prisons in England was halted for these reasons (Report of the Commissioners of Prisons, 1957: 23). Despite Simon’s expectations to the contrary, the public were not prepared to accept ‘something less than 100 per cent security’ (indicative of the gulf that existed here between penal elites and the public at large). While education services were further cut,57 investment increased in floodlighting, CCTV and ‘electronic devices that were introduced at selective prisons … even though the number of escapes [had not] been appreciably higher’ (Report on the Work of the Prison Department, 1966: 2). Freedom of movement and association within the institution was also curtailed and restricted: ‘educational and hobby groups were among the first to suffer. The allotment gardens … organized for lifers at Wormwood Scrubs [London] disappeared under the “dog track” of the steel-mesh inner perimeter fence’ (Morris, 1989: 134–5).
By the end of the 1960s, the differences in the way in which it was possible to think about punishment in these two types of societies were now manifested in both their rates of imprisonment (or the direction of these rates in respect of Finland and the Anglophone countries) and their prison arrangements (the different approaches taken to prison size and location, the different approaches to staff recruitment, the different status and standing of the prison authorities, the different conditions in which prisoners lived and so on). The Nordic prison reports had begun to contain references to ‘prison hotels’; to prisoners and students studying together; to prisons that were intended to painlessly restore their ‘interns’ to citizenship rather than impose further disqualifications on this section of the population. But there were no such references in the Anglophone reports. Even the earlier references to trust, and to a readiness to reduce security, had gone. Instead, with increasing regularity from the mid-1950s, it was noted, in England, that ‘disturbances at two prisons attracted public attention’ (Report of the Commissioners of Prisons, 1954: 4); ‘morbid incidents [that is, riots] occurred at three more institutions’ (Report of the Commissioners of Prisons, 1957: 32); ‘mass indiscipline occurred at a number of prisons and included a work standstill’ (Report of the Commissioners of Prisons, 1961: 13); there was ‘a riot’ at Dartmoor in 1962 (Report of the Commissioners of Prisons, 1962: 2); and ‘major disturbances in Durham and Leicester’ (Report on the Work of the Prison Department, 1968: 5). In New Zealand, there were ‘riots in two prisons’ (Report on the Department of Justice, 1961: 12); an ‘insurrection’ at New Plymouth Prison (Report on the Department of Justice, 1963: 12). In New South Wales, there was a ‘disturbance’ at Bathurst and also at the State Penitentiary (Report of the Comptroller-General of Prisons, 19561–1957: 5). There were ‘demonstrations and fires’ at Long Bay Prison (Report of the Comptroller-General of Prisons, 1965–1966: 3); and ‘three arson attempts at Bathurst Prison’ (Report of the Comptroller-General of Prisons, 1967–1968). As the New Zealand authorities themselves recognized, ‘by any standards, save the very lowest, prison remains an unpleasant place’ (Report on the Department of Justice, 1961: 6).
In contrast to the shining icon of Western tolerance and humanity that the social democratic welfare sanction had come to be understood as, at this juncture, the liberal welfare sanction was turning into a crumbling ruin, neither able to arrest the growth of imprisonment nor the declining standards of its prisons. It was in the process of being destroyed by its own limitations, those of the liberal welfare state itself, and the exclusionary values of these societies that it had ultimately been unable to scale back or hold in check. Just as there had been two lines of development in penal policy within the social democratic welfare sanction (more extensive social control in conjunction with a reduction of penal pain), so there were two within the liberal welfare sanction. In the former, however, these were complementary to each other, running consensually out of its structural arrangements; in the latter, these were contradictory, competing against each other for power, influence and resources. One was a reflection of the emphasis given to alleviating levels of punishment and reducing the rigours of prison life; the other, altogether more forceful, insistent and ultimately dominant, emphasized that, save for specific categories of deserving offender, those who broke the law would continue to face disqualificatory, exclusionary punishments, exemplified by restrictive and deteriorating prison conditions.