6 Punishment in the age of anxiety

From the 1970s, we then see the emergence of the ‘age of anxiety’, with all its uncertainties and insecurities brought on by the social and economic restructuring that has taken place across modern society as a whole. Its development in these ways has had important consequences for the expectations and understandings of punishment. When social cohesion breaks down to such an extent, then punishment, as Tyler and Boekmann (1997) have argued, is likely to be called upon to play a much more central role in governance. This is because of its ability to unite the general public against common- sensic ally obvious enemies, while sending out messages of reassurance that social order and the authority of the state are being restored in visible and demonstrative ways. However, as we have seen, the intensity and effects of this restructuring have been experienced differently in the Nordic and Anglophone societies.¹ In the former, although likhet and lagom have weakened somewhat, these values still inform and contribute to much of the conduct and understandings of everyday life; at the same time, the social democratic welfare state, despite some narrowing and paring back, remains very much in place. The result has been that cohesion and solidarity remain relatively strong, without the need for punishment to stabilize and bolster them with dramatic excesses. Instead, although there have been some detours and checks along the way, much the same penal route - one that reflects the values of moderation, restraint and inclusion – has continued to be followed. However, in the latter, the much deeper and more intense restructuring of already more divided and unequal societies has led to a further erosion of the liberal welfare state itself. In the absence of more inclusionary social mechanisms, punishment comes to play a much larger role in providing stability and cohesion. In so doing, its powers have become more exaggerated, enhanced and exclusionary, its signs and symbols more shrill, unequivocal and uncompromising. This has been the route that has taken these Anglophone societies to their penal excesses of the early twenty-first century, while the Nordic societies have demonstrated their exceptionalism to these trends.

The Anglophone route to penal excess

What was it that made this journey possible? Two features that propelled these societies along this route from the 1970s stand out: first, the removal of the penal restraints that the liberal welfare sanction had previously been able to put in place; second, in their absence, the emergence of a more emotive and more exclusionary brand of punishment.

Exit the liberal welfare sanction and the limits it had placed on punishment

This was the product of five separate but interconnected social forces. First, increasing opposition to the liberal welfare sanction from criminal justice elites. It had never had the level of acceptance from academics, intellectuals, senior judges and civil servants that the social democratic welfare sanction had enjoyed from their Nordic counterparts. Now, amidst its ruins at the end of the 1960s, there were few voices from this quarter that were prepared to speak for it, particularly after new revelations of its ineffectiveness and expense.² Instead, what faith there had been in the ‘treatment’ for crime that it offered evaporated altogether – ‘the rhetoric of treatment and training has had its day’ (May Committee, 1979: para 426). In addition, the injustices it had made possible by its insidious assumptions should be brought to an end: ‘imprisonment must be justified as punishment and not be based on false claims of “rehabilitation”’ (Report of the Director of the [New South Wales] Corrective Services Commission, 1979:1 ). Similarly, there was disapproval of its insistence that welfare experts knew what was best for the individual: ‘it is probably a mistake to suppose criminal tendencies can be “cured”. In any event, paternalism – doing something to a person for his own good–cannot by itself justify measures that would not otherwise be appropriate for the offence’ ([New Zealand] Penal Policy Review Committee, 1981: 32).

What should replace it? It was the intent of these elites that there should be less use of punishment altogether, particularly imprisonment. There would then be less scope for the abuses of the power to punish that were now associated with the welfare sanction. In England, Lord Lane, Chief Justice, issued a Court of Appeal guideline judgment that prison sentences should be ‘as short as possible, consistent only with the duty to protect the interests of the public and to punish and to deter the criminal’ (R v Bibi, 1980³). Some prominent Conservative politicians even shared these views at that time. William Whitelaw, the first Home Secretary in the three Thatcher governments, was of the opinion that ‘building new prisons cannot by itself be a solution [to crime] … there could be a substantial fall in our use of imprisonment without any significant rise in the threat to individual safety’ (Home Affairs Committee, 1981: 221). Thereafter, the Home Office Green Paper (1988: 2) Punishment, Custody and the Community took the view that ‘imprisonment is not the most e ffective punishment for most crime’. In New South Wales, the Corrective Services Commission, throughout the 1980s, reiterated the view that prison should be a ‘last resort’ sanction.⁴ In New Zealand, one of the explicit aims of the Penal Policy Review Committee (1981: 39) was ‘to consider the means by which the incidence of imprisonment can be reduced’. By the late 1980s, these aspirations for less punishment, rather than more, had found a philosophical home in the ideas of the ‘Justice Model’ (von Hirsch, 1985; Ashworth, 1989). With invocations of Beccaria and Kant, Justice Model theorists argued that punishment should be proportionate to the offence rather than exceed its gravity; it should be certain, finite and limited, rather than uncertain and indefinite; and it should respect the rights and responsibilities of those on whom it was to be inflicted, rather than view them as ‘sick’ or ‘deficient’, in need of state-provided care and ‘assistance’.

Further restrictions, indicative of the grip on penal power that these elites still held, had been put in the way of imprisonment, including presumptions against incarcerating property offenders;⁵ and more liberal parole legislation (largely detached, now, from any connection with an applicant’s response to ‘treatment’). As a consequence, Anglophone imprisonment rates stabilized and declined somewhat in the late 1980s. In addition, to allow greater public scrutiny of prison life, an independent prison inspectorate was established in England in 1980 (following the recommendations of the May Committee). The English Criminal Justice Act 1991 was intended to further advance these reductionist trends. Under its provisions, an offender’s past convictions would not be allowed to increase their punishment. In accordance with Justice Model thinking, this should fit the immediate crime they had committed, rather than be determined by any shortcomings in their life that came to light as a consequence. The legislation also provided for ‘day fines’ to ensure that the pain of this sanction would be equally distributed, whatever an offender’s income (and introduced, of course, in all the Nordic countries by the 1930s). At the same time though, the idea of welfare assistance as a response to crime, along with the welfare language of punishment – ‘needs’, ‘insights’, ‘support’, ‘rehabilitation’ – and the curbs and blocks that it had offered by its willingness to reduce penal severity for some offenders at least, had been largely removed from the penal thinking of these elites.

Second, the insistence from the political right wing that punishment needed to play a more dramatic role in these societies. The liberal welfare sanction was also under attack from the political Right, for whom punishment – more demonstrative punishment, free from moderation and restraints – was needed, rather than less, if social order was to be maintained. From this quarter, the operation of the liberal welfare sanction and, more generally, the liberal welfare state itself, had put this at risk. The cry that welfarism would only encourage feckless dependency and irresponsibility was nothing new in these societies, of course. However, rising crime from the beginning of the post-war period, amidst a range of other graphically documented scenes of turbulence, disaffection and disorder in the 1970s (strikes, high taxes but seemingly generous benefits, creaking and collapsing public services⁶), was hailed as irrefutable proof of these predictions of catastrophe. The right wing British ideologue Patricia Morgan (1978: 12–3) thus claimed that ‘[crime] has now ceased to be merely a symptom of urban breakdown in this country … and has become a major contributor to it’. In effect, it was as if the liberal welfare state had only brought social disintegration, rather than the improvements in social cohesion that had once been the expectations of some of its leading proponents. The implications were, as Margaret Thatcher (1993: 626, our italics) later explained, that ‘the root cause of our contemporary social problems – to the extent that these did not reflect the timeless influence and bottomless resources of old fashioned human wickedness – was that the state had been doing too much.’ Accordingly, while the post-1970s social and economic restructuring of the Anglophone societies was justified as being necessary to free individuals from the constraints that the welfare state was thought to have placed on their aspirations and horizons, these same individuals would also have to be ready to accept much greater responsibility for their conduct. Rather than excusing them from this if they fell into one of the ‘deserving’ categories of the liberal welfare sanction, punishment should act as a constant reminder of the consequences of lawbreaking through the more identifiable and understandable signs and symbols that it sent out.

One of the first intimations of the possibilities of this enhanced role for punishment was set out in the Conservative Party election manifesto that brought Margaret Thatcher to power in 1979. It carried a section on ‘Deterring the Criminal’ (rehabilitation received no mention at all), signposted by the promise of the reintroduction of ‘short, sharp shock’ detention centres ⁷ for young offenders, and a free vote in the House of Commons on whether the death penalty should be restored (a sanction that still had a nostalgic place in the hearts of most of the British public⁸). The resurrection of these two particularly expressive penalties from the past conjured a return to mythically untroubled days of order and certainty, of fixed and certain social hierarchies, where what threats that did emerge to social stability could simply be beaten down or expelled, without any recourse to troubling social questions or investigations into an offender’s background. The detention centres, modelled on the British army’s own disciplinary institutions, resonated with past glories of militarism and imperialism, and stood in contrast to the apparent national decline and degeneracy that had coincided with the development of the post-war welfare state. Initial incomprehension from critics⁹ that detention centres could be reintroduced in contravention of the vast body of research demonstrating that such deterrent policies failed to reduce crime, were simply ignored. But criticisms of this nature had anyway missed the point. For the Thatcher government, and others in its wake, policies that brought about measures such as the reactivated detention centres were not to be judged by the reconviction rates they produced. Instead, they were to be judged by the power they possessed to bring unity and political support for the undisguised, unequivocal expressions of authority that these measures symbolized. This was the way forward for penal policy: not with reference to the statistics of reconviction rates or even economic costings; but, instead, the ability of a particular sanction and the imagery associated with it to galvanize public support and unite it as it despatched those who brought the most obvious kinds of instability and disorder to these societies. The sanctions themselves, of symbolic, rather than real, importance, could then be simply tossed away at quieter moments, as was the fate of the detention centres,¹⁰ or when further innovations were needed to reaffirm the cohesive role that punishment was now expected to perform.

Third, the subsequent formation of a political consensus that disavowed the liberal welfare sanction and the penal restraints previously associated with it. Conservative governments in the Anglophone societies had always been circumspect, at the most, in their support for such welfare-based initiatives. From the 1980s, however, this turned into outright hostility as the liberal welfare sanction began to be pulled to pieces after being overwhelmed by their new approaches to punishment and the language in which these were couched. Thus, in England, restrictions on the imprisonment of young offenders, introduced in 1961, were removed in 1980; those serving life sentences would remain in prison until the Home Secretary, rather than the Parole Board, decided otherwise; at the same time as parole was being liberalized in the 1980s, its availability for sexual and violent offenders was retrospectively tightened (see Sim, 2009: 35–52). But, rather than try to repair the damage to the welfare sanction, successive Labour governments (in New Zealand and New South Wales, as well) then abandoned what previous commitments they had given it and joined – and then began to outbid – Conservatives in arguing for more, rather than less, punishment. Here again, then, any alternative way of thinking about punishment that welfarism had made possible disappeared.

In England, the murder of 2-year-old James Bulger in 1993 by two 9-year-old Liverpool boys was pivotal in bringing about this shift inLabour thinking. The case became a signifier of the fragility of cohesion and order in these societies – the hatred expressed for the two juveniles by local crowds at their court hearings, egged on by a frenzied media (Green, 2008), was evidence enough of this. However, it was not the limitations of the liberal welfare state – that it was not sufficiently equipped to secure the level of cohesion and order, with bonds and reciprocities, that might otherwise have prevented the child’s murder – that were understood as its cause; rather, it was the liberal welfare state itself, in relation to which the Bulger case became one of the most vivid illustrations of the disorder and moral decline it was thought to have engineered. The reaction of Tony Blair, then Shadow Labour Home Secretary, was that ‘a solution to this disintegration doesn’t simply lie in legislation. It must come from the rediscovery of a sense of direction as a country … We cannot exist in a moral vacuum. If we do not learn and then teach the value of what is right and wrong, then the result is simply moral chaos that engulfs us all’ (quoted by Sim, 2009: 55). As with the Thatcherite view of the world, the implication was that the state had previously been too eager to absorb responsibility and guilt for the wrongdoing of individuals: they should have to make their own moral choices instead, and be held accountable for them. In this way, a mainstream political consensus was established for which the only legitimate response to crime was in the form of more dramatic, exclusionary punishment. This was the solution to it, rather than any more discredited welfare-type responses – there had been a surfeit of welfare thinking already. Thereafter, for both left and right governments in these societies, the duty of the state would not be to alleviate the burdens of the unfortunates who appeared in court, but instead to punish and exclude them for challenging its authority. As Blair later explained: ‘crime, anti-social behaviour, racial intolerance, drug abuse, destroy families and communities. They destroy the very respect on which society is founded … Fail to confront this evil and we will never build a Britain where everyone can succeed … by acknowledging the duty to care, we earn the right to be tough on crime … it is time for zero tolerance of yob culture’ (The Guardian, 27 September 2006: 6).

Fourth, silencing opposition. As punishment became increasingly suffused with melodramatic symbolism, so the policy making and advisory role of the expert – likely to recoil in revulsion at such distasteful representations (Loader, 2006) – was undermined and reduced. It was such experts whom Morgan (1978:48) had referred to as ‘the new establishment’ – the cadre of civil servants, officials and academics whose powers had been aggrandized during the welfare era but who, simultaneously, she claimed, had undermined the traditional structures of authority: ‘the procedures of social control and socialisation… have been largely taken away from lay experience and practice, and exchanged for a body of socio-psychological theory, whose special recipes only special practitioners are competent to apply.’ Here, then, was the opportunity for the longstanding suspicions of the expert in these societies to reassert themselves. One of the first actions of the newly elected Thatcher government was thus to abolish ACTO in 1979: the development of penal policy would not, any longer, be the exclusive prerogative of its elite membership; instead, it came to be forged out of a partnership between governments and the public at large or, more specifically, those who claimed to speak on their behalf, notably the tabloid media and law and order lobbyists. Meanwhile, as in other areas of the social body, the authority of the civil service was gradually emasculated, as it was made more directly accountable to the political interests of successive governing parties. Rock (1995: 2) subsequently reported on the consequences of this: ‘Home Office policy no longer follows once standard processes of informal consultation … portions of criminal justice policy making have become somewhat less cohesive, coherent, controlled and centralized as they come under the sway of devolution, “contracting out” and external consultants.’ In New South Wales, the Corrective Services Commission, established in 1979, with a professor of behavioural sciences as its first chair, was abolished in 1989 on the basis that it was ‘inefficient and not sufficiently responsive to Ministerial Direction’ (NSW Department of Corrective Services, 1988–1989: 15, our italics). In New Zealand, the Department of Justice (2002: 1) demonstrated its own acquiescence to the shifting balance of penal power by acknowledging ‘the need to respond to the 1999 referendum which revealed public concern over the sentencing of serious violent offenders’, notwithstanding the ‘hard labour’ proposal in its content and the other contradictions and uncertainties in its phrasing.

Furthermore, those criminal justice elites who still had the temerity to place themselves in opposition to the removal of the restraints and moderation that was occurring were likely to become the subject of attack and vilification themselves if they now spoke out. In these anxious, more insecure societies, in which simple, magical, solutions promised deliverance from social problems, in contrast to their more measured equivocations, there were few reservations about removing what tenuous grip they still had on penal power: what grudging respect that there had been for their pedigrees was not sufficient to protect them. In New Zealand, the response of the organizer of the 1999 law and order referendum to those who were sceptical of its validity was to say that these were typically ‘upper class individuals and a few trendies … [are] they saying the public is thick? You can’t twist the result around and start shanghai-ing it … what we have before us is a document that has gone through the whole process … as far as I’m concerned, the question was plain English’ (The Dominion, 17 February 2000: 1). More vituperative insults and criticisms fromMPs came the way of the New Zealand Governor-General who, when opening the Crime and Justice Research Centre at Victoria University of Wellington, in 2002, dared to suggest that ‘prison does not work’ (see Pratt and Clarke, 2005). Similarly, the subsequent reactions to the New Zealand Chief Justice, for expressing her reservations, in 2009, about the direction of criminal justice policy from politicians.¹³

Fifth, the reporting style of the Anglophone media. The nature of this – sensation, scandal, hostility towards the most worthless members of these societies (whether these were criminals, or the bureaucrats who seemed to shed tears for them), amidst demands for more protection for law-abiding members of the public -had the effect of making the kind of restraint associated with the liberal welfare sanction politically untenable. The way in which it was possible to think about crime and punishment in this setting was no longer directed by criminal justice elites. Instead, new media outlets – 24 hour news channels on satellite television and talk back radio – provided the opportunities for loquacious law and order lobbyists to simply drown out any opposition to their views, usually based on anecdote or one-off cases, that maximum use of punishment would bring an end to insecurity and fear: and here, also, was the way to provide headlines that would guarantee viewers, listeners and advertizers for this section of the media.¹⁴ Furthermore, the size and popularity of the tabloid press, especially, created a framework of understanding outside of which it became very difficult to stand. One of the clearest illustrations of this occurred in the campaign waged against ‘paedophiles’ by the now defunct, but then the most popular, British Sunday newspaper, the News of the World (owned by Rupert Murdoch) in 2000. Widespread vigilante attacks against suspected paedophiles by local citizens’ groups took place across the United Kingdom after it ran a ‘naming and shaming’ campaign.¹⁵ That is, it published the names and photographs of 49 convicted sex offenders (it went on to publish similar details of 200 more, notwithstanding that they had all served their punishments, almost always imprisonment). This, though, was no longer sufficient to mollify the hostilities of the publicthathadbeenarousedto them. The ‘naming and shaming’ was prompted by the rape and murder of a child by a previously convicted sex offender. The newspaper demanded that the government establish a sex offender registry to which the public would have access, in order to check on suspicious neighbours, strangers in the locality and so on, rather than giving authorized welfare professionals alone the right to do so, as was then the policy. As the Labour government prevaricated, the paper ran a series of exposés on convicted paedophiles, beginning with the headline: ‘Does a Monster Live Near You?’ It then claimed that ‘everyone in Britain has a child sex offender living within one mile of their home’ (News of the World, 23 July 2000: 2). The feature sparked vigilante attacks on convicted paedophiles, suspected paedophiles, people who were ‘different’ and even paediatricians – any connection with the prefix ‘paedo’ was sufficient evidence of guilt.

The very fact that such attacks did occur on this occasion, and have subsequently occurred on numerous others in these three societies,¹⁶ is a reflection of the way in which, with the unravelling of social cohesion, fantastic fears that the media stimulates, rather than rational deliberation, can come to inform the conduct of everyday life; and a reflection of the shallow interdependencies that undermine levels of trust, civic duties and responsibilities in these societies. Popular social movements in the Nordic countries had always been brought within the orbit of the state, thereby strengthening its authority. Here, though, these ad hoc vigilante groups operated outside of it, directly challenging and undermining its authority. They were indicative of its weakness, a weakness that was further reflected in the absence of any formal inquiry into the attacks (these led to a number of suicides, physical assaults and verbal abuse, as well as property destruction and harassment); or into the power and morality of the media in provoking these incidents (any such inquiry would have run into conflict with the ability of the media barons to not only single out ‘monsters’ and feed them to an outraged public but, also, to direct the flow of political preferences).

Enter a new brand of punishment, thick on emotion and exclusion

In these ways, then, welfare thinking about punishment came to be largely erased from public and political discourse in these societies, while, at the same time, the carefully calibrated moderation offered by the Justice Model was also jettisoned: the elites that favoured it were, themselves, just as remote from the public at large as the welfare experts had been. As this occurred, so a new brand of punishment with three central features emerged. First, a determination to make victims’ experiences pivotal in the criminal justice process. Their experiences, or those claiming to speak for them, came to be recognized as the new authority for directing the course of penal development. As Tony Blair (2004: 5) subsequently put the matter, ‘the law-abiding citizen must be at the heart of our criminal justice system. For too long it was far from the case … the system seemed only to think about the rights of the accused. The interests of victims appeared to be an afterthought, if considered at all.’ Here was the real injustice of the welfare sanction, rather than the way in which it had cloaked state coercion, as the criminal justice elites had previously maintained. The subsequent ‘rebalancing’ that has taken place has thus been marked by a series of measures restricting the rights of defendants (to jury trials, legal aid entitlements, to silence during questioning, to the principle of autrefois acquit), while boosting and enhancing those of their victims. They have been given the right to read out impact statements describing the extent of their suffering and loss; the right to receive legal aid; the right to pursue redress, themselves, against those who have harmed them, rather than simply hand over their conflict to the state; the right to give their own views about the level of punishment to be imposed; the right to challenge the judiciary’s ownership of courtroom practices and previous etiquettes and protocols that might stifle or censor their outpourings of emotion;¹⁷ and the right to haunt, thereafter, successive stages of the penal process, confronting all in attendance with the baleful stare of Banquo’s ghost, as if to say, ‘now you will never forget that I am why you are here’: attending and making submissions to parole hearings, disputing prisoner applications, proclaiming the presence, still, of unwarranted pain and suffering, as they are provided with the opportunity to re-live their experiences over and over again.

Rather than hastening the departure of victims from a process with which they never expected to be involved, and allowing them to peacefully rebuild their lives, they have been enthusiastically propelled to the centre of the criminal justice system, with their stays often prolonged, further undermining state authority, as the criminal justice process continues to produce turbulence, animosity and disappointment instead of healing and closure. In New Zealand, the mother of one murder victim – attacked by a gang of six – appeared at 28 separate parole hearings for his assailants between 2006 and 2010 (New Zealand Herald, 30 August 2010: A3). At the same time, any departures from their expectations of the process of justice after the rights that, with much political acclaim, they have been awarded, any departures from the level of punishment they think is warranted – in many cases, some sort of exactitude between this and the level of pain they have had to endure, which is beyond the capability of modern criminal justice systems to provide – are seen as another betrayal of them by the state and its representatives. Their anguish at such moments can then be projected onto a national canvas by the media, ensuring that punishment and its supposed inadequacies – lack of commonsense, lack of transparency, lack of ability to punish enough and to keep on punishing until such victims and their supporters are satiated – remain a central issue of everyday discourse in these societies,¹⁸ requiring further rounds of legislation to rectify, and then rectify again when more dissatisfaction inevitably comes to light.

Second, a direction that punishment should be a more differentiating and extensive experience. If it is to act as a symbol of deterrence to offenders, and as a symbol of assurance to the general public, then punishment should take on more theatrical, spectacular, understandable forms, to ensure that those being punished are made to stand apart from the rest of society with their criminal identity and outsider status proclaimed for all to see. Hence the transformation of the British community service order. Introduced to that penal system in the 1972 Criminal Justice Act, it was intended to allow offenders to expiate their crimes through the longstanding tradition of voluntary work. It would provide them with the opportunity of working alongside others – they would be at one with them, rather than standing out as different from the rest of society. Its purpose was to utilize ‘the positive attributes of the offender’ (Young, 1979: 40). In2008, however, this sanction became the community payback order. Now offenders so sentenced are made deliberately identifiable as such as they perform their tasks. They are no longer one anonymous member of a company of volunteers. To ensure that they are known as criminals, they have to wear orange fluorescent jackets with ‘Community Payback’ on the back – the then ‘Victims’ Commissioner’, Louise Casey, had suggested this, along with ‘conviction posters’ that would be displayed in public places, showing the identity of those convicted of crime: ‘criminals must wear their badges of shame’, she reported to the Labour government.¹⁹

At the same time, to make punishment more central to the ordering of everyday life, it has become more extensive. At one end of the penal spectrum, punishment involving a prison term may no longer be punishment enough. On completion of sentence, the post prison conduct of sex offenders can be regulated by stipulating how far they are to keep away from parks, schools, swimming pools and so on – any venue, in effect, where young people gather. Or the end of a prison term can be ignored altogether: in New South Wales, post sentence detention provisions for some sex offenders, who would otherwise have been released on completion of a finite sentence, have been introduced. In New Zealand, there are similar plans for ‘civil detention orders’ for ‘high risk sexual offenders’ that will allow for their continued incarceration, in a ‘secure civil detention centre’. At the other end of the penal spectrum, there are opportunities to punish and control the most minor deviance, in ways in which the liberal welfare sanction had never been inclined, nor given the power to do. The then Shadow British Home Secretary, Jack Straw, thus promised that New Labour would ‘wage war on aggressive beggars, winos and squeegee merchants … we have literally to reclaim the streets for the law-abiding public citizen, to make street life everywhere an innocent pleasure again’ (The Independent, 5 September 1995:2). When social cohesion is not strong enough to absorb such irritants in these societies, the state only seems capable of reacting negatively to them with injunctions and threats, promising that they will be expelled altogether if these are not heeded. The subsequent anti-social behaviour legislation of 1998 took the rare form of a hybrid measure that imposed a civil penalty (the kinds of behaviours it was to regulate were not crimes), backed by criminal sanctions of up to five years imprisonment for non-compliance.

Third, a strengthening and enhancement of punishment’s exclusionary capabilities. To this end, it is not only the restraints of the liberal welfare sanction that have been removed; those from the brief and tenuous Justice Model interregnum ofthe 1980s and early 1990s also disappeared. This was marked in the subsequent reversal of two of its cardinal features. First, indefinite sentences of imprisonment have been revitalized and have pushed aside the importance it had given to fixed and certain punishments. Previous restrictions and stipulations on the use of such measures, in relation to mental health, age and recidivist criteria, have beenrelaxed, bringing these sanctions much more into sentencing mainstream, rather than leaving them as a largely unusedreserve power. In England, the Butler Committee’s report (1975), with its suggestion that a ‘reviewable sentence should be introduced for offenders who are dangerous [and] who present a history of mental disorder which cannot be dealt with under the Mental Health Act, and for whom the life sentence is not appropriate’, had encouraged reviving such measures (Bottoms, 1977). However, at that time, ‘dangerous behaviour’ was still linked to mental disorder– it was not to be determined only on the basis of crimes committed or likely to be committed. Twenty years later, however, the Home Office (1996: 48) White Paper, Protecting the Public, demonstrated the important changes that had since occurred in conceptualizing dangerousness: ‘too often in the past, those who have shown a propensity to commit serious or violent sexual offences have served their sentences and been released only to offend again … the government is determined that the public should receive proper protection [from such criminals].’ Now, removing the previous connections between dangerous offending and mental disorder, dangerous offending per se would be sufficient justification for indefinite detention. The Home Office (2001: 32) thus recommended the introduction of anew ‘special sentence’ for dangerous offenders, those who had ‘a high risk of committing a further offence that would cause serious harm to the public’. Such offenders would only be released at the discretion of the Parole Board when ‘their risks are considered manageable in the community’ (Home Office, 2002: 95). The courts were then given powers under the Criminal Justice Act (2003) to impose ‘indeterminate sentences for public protection’ [IPPS] on all offenders – no longer just recidivists – who were likely to cause ‘serious harm’ in the future (Harrison, 2011). After only six years of its existence, this had led to more than 6,000 IPPS prisoners in 2010 (that, along with another 10,000 serving life terms, meant that around one fifth of the prison population had no certain date of release). Parole has thus become an all-important means of getting out. But, to gain this, prisoners are likely to have to successfully complete various ‘programmes’, demand for which dramatically exceeds supply, while ensuring that release dates become ever more uncertain.

The situation is similar in New Zealand, where the Penal Policy Review Committee (1981) had counselled that there was a strong case for the abolition of preventive detention (it was then restricted to persistent sexual offenders aged over 25 years). However, this sanction was then extended in the Criminal Justice Act 1985 to include recidivist violent offenders, and further extended in 1993 when it was made available for first time sexual offenders. Furthermore, the minimum length of preventive detention increased from seven to 10 years, while the age of eligibility was reduced from 25 to 21 – then reduced again in the 2002 Sentencing Act to 18. From having only 12 preventive detention prisoners in 1986, there were 250 in 2010. Meanwhile, the previous judicial resistance to such measures seems to have largely evaporated, or has been bypassed by mandatory sentencing legislation (Baldry, et ah, 2011), or has simply been worn down by heavily publicized oversight of sentencing by governments eager to prove their own virility. They seize on this chance to put themselves on the side of victims and against judges still harbouring suspicions over such dramatic uses of the state’s power to punish. When setting new lengths for non-parole periods of imprisonment, the New Zealand courts have thus justified them on the grounds that ‘society’s attitude to very serious crime has hardened’ (R v Lundy, 2002 ²⁰) and that ‘society’s attitude to violent crime has moved on since [a 1995 case], as have sentencing levels’ (R v Bell, 2003²¹).

Second, the introduction of punishments that are disproportionate, rather than proportionate, to the crime that has been committed. In a reversal of the intents of the Criminal Justice Act 1991, repetition of crime, as well as the gravity of a particular crime, became a trigger for penal severity in England (day fines were also abandoned in 1993, after much public outcry, orchestrated by the tabloid press, against this ‘injustice’ that allowed the levels of fines to penalize the rich as much as the poor,²² and the presumptions against the imprisonment of property offenders have gone). The Crime (Sentences) Act 1997 then required the imposition of a life sentence after an offender was convicted of a second serious violent or sexual offence; a minimum term of seven years’ imprisonment on those convicted for a third time of drug trafficking; and a minimum sentence of at least three years for those convicted of domestic burglary for the third time (Cavadino and Dignan, 2002: 106).²³ In New Zealand, a ‘three strikes law’ was introduced in 2010: those convicted for a third time of one of 40 qualifying offences (that carried with them prison terms of five years or more) would automatically receive the maximum penalty with no possibility of parole. In proposing this legislation, the government chose to ignore the submission of its own Ministry of Justice to the Parliamentary Law and Order Select Committee that ‘three strikes’ would not deter criminals. It also ignored a warning from its Attorney-General that this legislation might contravene the New Zealand Bill of Rights. Instead, the legislation was another symbolic gesture – one that promised an immediate solution to violent crime, even though the law change would not begin to take effect for another 10 years or so – the earliest time when those on their third strike would be likely to come up for sentence: ‘if offenders are going to do the crime, they need to do the time. They need to think more about their behaviours’ (Hansard [NZ], 4 May 2010: 10679); ‘deterring criminals who are rational enough to see that their repeat violent offending will be met with an escalating level of punishment. Those who are not rational will be locked away, which is as it should be’ (ibid., 10684); ‘this Bill assures me that violent offenders will think twice before deciding to become recidivist offenders’ (ibid., 10694).

Punishment has thus been able to celebrate its unrestrained freedom in these ways. And it has an unequivocal purpose again, to single out, differentiate, and exclude – there is to be no more welfare-ridden hesitation about this – in the hope of bringing about security and cohesion: social cohesion through exclusion, then. To perform these tasks, old powers have been rekindled and new ones placed on its agenda. Indeed, so much faith has been placed in punishment’s supposedly magical qualities that the more elusive these effects become, the more the resources that are thrown to it and devoured in these already punishment-saturated societies.

Prison and the normalization of security

The development of prison policy has followed much the same course. Continuing attempts to make imprisonment a more reintegrative experience by liberal prison authorities have been overwhelmed by government policies that have had the effect of enhancing and extending its disqualificatory, exclusionary impact. Certainly, during the 1970s and 1980s, improvements continued to be made in relation to visiting arrangements, more regular changes of clothing, and personal hygiene. Censorship was reduced; radios, then televisions, were allowed in cells. There were also attempts to engineer more harmonious, co-operative working relationships between prisoners and officers: ‘inmates cook and eat in units. This style of accommodation creates a more relaxed and informal atmosphere and encourages closer relationships among inmates and between inmates and staff’ (Report of the Director of the Corrective Services Commission, 1983: 15). But, even as these ameliorations were being put in place, conditions were also becoming more intolerable, because governments chose to ignore the fundamental problems of under-investment and over-use of the prison in these societies. Prisons remained not worth investing in – they were merely useful dumping grounds for increasing numbers of those judged to be unwanted or unacceptable in free society: what did the squalor inside them matter for those who probably knew no better, and certainly deserved no better, anyway?

As a consequence, in England, the Report on the Work of the Prison Department (1971: 3) acknowledged that ‘more than one third of those in custody sleep two or three in a cell designed for one, usually in prisons built 100 years ago’. In addition, ‘there are not enough places [in open prisons] because of the lack of resources. Category C makes up 41 per cent of prisoners, but only one quarter are in C [open] accommodation’ (Report on the Work of the Prison Department, 1976: 10). In New Zealand, the Report on the Department of Justice (1971: 12) noted that ‘there is a need for restraint in staff numbers and expenditure …we are forced to restrict staff overtime and abandon most staff training … we continue to have a relatively high rate of imprisonment.’ In New South Wales, the Department of Corrective Services (1977: 1) acknowledged that ‘there is no relief in accommodation problems or progress towards fully implementing the policy of “one man, one cell”’. In addition, the more productive features of prison life – education, for example – became further restricted,²⁴ while resources continued to be made available for security. Although the number of escapes declined in the 1970s, the continued possibilities of escape in these increasingly anxious and insecure societies represented a danger and hazard that now demanded foolproof solutions from the authorities.²⁵ ‘Special units’ were thus introduced, and specialist security squads within the prison officer corps were formed, along with changes in the physical design of prisons to more efficiently bring about ‘lockdown’.

In these ways, the causes of the 1960s disturbances were not only ignored but were exacerbated, ensuring that the disturbances themselves continued unabated through the 1970s and 1980s. They were also sometimes provoked by the officers themselves, feeling empowered, it would seem, by the new importance given to them as security enforcers: cells might be ransacked under the guise of searches for contraband or security checks; prisoner demonstrations might be met by retaliatory punishments in the form of beatings or other abuses – the insistence that there should be ‘no retaliation’ became a regular demand of prisoners attempting to ‘surrender’ after rioting or trying to bring mass demonstrations to an end (see Fitzgerald, 1977; Brown and Zdenkowski, 1982). The physical and geographical isolation of most prisons in these societies- from the late nineteenth century, public antipathy to them for what they represented had forced them away from urban locations to remote rural areas (Pratt, 2002) – allowed the officers to act more or less with impunity in these ways. Indeed, it was as if they were simply passing a secondary judgment on those who had already been judged to be unfit to live amongst the rest of society and, in so doing, distancing themselves from the inmates who shared the same prison space within them.

At the same time, the authorities and the inmates stood so far apart that it was difficult to de-escalate the conflicts. Any attempt to resolve them through dialogue and discussion was impossible for this reason. For the authorities to have acted in this way would have meant that they were prepared to acknowledge a degree of legitimacy to prisoners and their representatives. In these societies, though, the very fact of being a prisoner meant the forfeiture of rights of negotiation, or representation, or of being able to dispute in any way their conditions of confinement. Although a prisoners’ rights group was formed in England, and played a leading role in coordinating and organizing demonstrations and strikes in the prisons in the 1970s, ‘the Home Office re fused to publicly acknowledge its influence or even [its] existence’ (Fitzgerald, 1977:150). Indeed, the very idea of any such prisoners’ organization in England provoked derision.²⁶ Thus, with no possibilities of compromise, or of resolution other than through force and intimidation, the rioting became so inflamed that both Bathurst Prison in New South Wales, in 1974, and Strangeways Prison in England, in 1990, were virtually razed to the ground. In the immediate aftermath of these very visible,²⁷ symbolic events, which seemed to signal the futility of existing prison policy – how was it possible to expect ever increasing numbers of human beings to live peacefully in such debasing surrounds that continued to deteriorate still further? – a Royal Commission into New South Wales Prisons (Nagle, 1978) and a Public Inquiry, headed by Lord Justice Woolf (Woolf, 1991) were established. In New Zealand, after regular, if less spectacular, disturbances during the 1980s, a Committee of Inquiry into the Prison System was set up in 1987 (Roper, 1989).

These settings now provided the opportunity for criminal justice elites to reassert themselves. Amidst some measure of respect and acknowledgement that they were prepared to show prisoners, the reality of the prison experience that precipitated the demonstrations and the destruction – and the response of the authorities to this – could be revealed. Nagle’s report, in particular, provided graphic accounts of the ferocity of the violence that had occurred throughout the prison system of this state – Bathurst was simply the most visible manifestation of it. After previous disturbances and protestations had achievednothing, those of 1974 that culminated in the prison being destroyed were met by ‘floggings and bashings’ from the officers: ‘[prisoners’] heads were cut open. Some were left lying unconscious or semiconscious on the prison floor. One was seen huddled and whimpering in the corner of his cell. Another lay naked on the floor surrounded by seven or eight officers who beat him with batons. These are a few sordid examples of what occurred’ (Nagle, 1978: 16). Other systemic abuses emerged: revelations of longstanding practices that were indicative of what could happen when prisons, as shameful stains on the fabric of these societies, were shut out of public life. Thus Grafton, 650 kilometres to the north of Sydney, had served as an institution for ‘intractables’ –those inmates designated as troublemakers – from the 1940s, and ‘over a 33 year period, brutal, savage and sometimes sadistic physical violence was inflicted on prisoners sent there’ (ibid.: 108).²⁸

Gestures of reconciliation, prompted by these revelations, then followed. For example, after Woolf, there was to be no more reading of prisoners’ letters (except those in high security prisons); and pilot projects were introduced, whereby prisoners would be allowed to wear their own clothes (Report on the Work of the Prison Service, 1990–1991: 15). After Roper, ‘traditional antagonisms … declined and at Wellington Prison, staff and inmates even played together on the same football team in the local competition’ (Newbold, 2007: 56). After Nagle, censorship, including that of newspapers, was removed; inmates could now have ‘contact visits’ (that is, they could sit together round a table, rather than being separated by a glass partition); prisoners were to be called by their names, rather than their numbers; and communal dining facilities were introduced. Furthermore, both Nagle and Woolf attempted to systematize strategies that were intended to make the prison experience more inclusionary. For the former, ‘the deprivation of liberty is an essential punishment but prisoners should retain other rights, except those necessarily limited or curtailed by the maintenance of security … prison officers must possess the necessary training and means of containing disturbances quickly and with the minimum of danger to people and property; there must be grievance channels for prisoners; the daily management of prison must depend on a system of initiatives, rather than physical coercion’ (as noted in the Report of the Director of the Corrective Services Commission, 1980–81: 14, our italics). For the latter, there had to be a balance between ‘security, control and justice’: ‘justice itself is compromised if prisoners are held in conditions that are “inhumane or degrading”, or which are otherwise wholly inappropriate’ (Woolf, 1990: 241).

But, injust the same way that the 1991 Criminal Justice Act represented the high-water mark of the possibilities for moderation and restraint in the penal arena in general, so these inquiries came to have the same significance in relation to prisons. Their proposals for change were offset and overtaken by government demands for further intensifications of security and control – immediately so, in relation to Woolf. The day after its publication, the Home Secretary stated that ‘the country will not tolerate the kind of disgraceful behaviour witnessed [by prisoners at Strangeways]. We must make clear our utter condemnation of it by introducing a new deterrent. We shall, therefore, bring before [parliament] proposals to create a new offence of prison mutiny, which will carry a maximum penalty of ten extra years in prison … Dangerous criminals have to be detained to protect the public’ (Hansard [UK], HC Deb, 25 February 1991, col. 659). There would be a high price to pay for any further insurrections. Prisoners could now wear their own clothes and even be allowed more regular changes of underwear but, fundamentally, there could be no compromises on intensified levels of security that greatly restricted freedom of association, time out of cell, access to visitors and so on.

Furthermore, having set so much store by the way in which dramatic, exclusionary punishment would now be central to the governance of these societies, escapes from, and disturbances within, the prisonnow represented something more than the inefficiency of prison staff, something more than the innate cunning and duplicity of prisoners: in addition, these were an intolerable affront to the authority and credibility of the government itself. Therefore, after more high profile escapes in England – soon after Howard’s claim that ‘prison works’ – new inquiries, one headedby a former Chief Inspector of Police, the other an army general, rather than judges, were established.²⁹ Now, there were to be no gestures of reconciliation emanating from these much more narrow enquiries – security, and how best to police it. Instead, there was a reaffirmation that the purpose of prison was as a deterrent in the first instance; in the second, a means of incapacitation. The way to prevent further escapes and future rioting was not to relax conditions but to further limit the movements of prisoners, as well as putting new limits on the quality of prison life. Moreover, it was no longer sufficient to affirm that there would be more people sent to prison to demonstrate governmental authority; in addition, prison should also become more demonstratively associated with misery and deprivation, a reassurance to the public that these were indeed the unhappy consequences of crime. Prison regimes should thus be constructed in such a way as to remind those who were sent to prison that their rightful place was at the very bottom of society. As Cavadino and Dignan (2002:196) observed, improvements in conditions beyond this then came in the form of privileges to be earned, rather than allowances that were available to all. In England, this meant, as Howard explained, that ‘prisoners who behave responsibly, work hard and participate fully in the regime could qualify for extra visits and wages… those who fail to conform and refuse to make positive use of their time in prison will find themselves on a basic regime without privileges’ (The Independent, 30 June 1995: 7).

To ensure that the authorities did not depart from or dilute such expectations, private sector ownership and private sector management practices were now introduced to these prison systems. The prison did not escape from the more general restructuring of public services in these societies. Indeed, its inadequacies and inhumanities that had been revealed in Woolf, Nagle and all the other reports became another illustration of the inevitable failure of publicly provided state services, rather than the failure of the culture of exclusion that had put so much emphasis on the use of prison and the character of life that could be experienced in it. Private prisons, it was thought, would bring competition and efficiency (the power to punish could be offloaded like any other state responsibility in these societies where employment in the private sector was held in so much higher regard than the public), while also making those it employed more compliant with government demands and expectations. This would be the opportunity, for example, to weaken the power base of the prison officers’ unions, who were held responsible for a remuneration system heavily weighted with double and triple payments for overtime, extra shifts and so on. This had been the only way, of course, to entice recruits to the public prisons, so stigmatic had any association with them become, but unions remained an enemy to be kept at a distance from governance, rather than brought within it. Meanwhile, the introduction of private sector management practices would ensure that the prisons advertized their successes rather than their failings. Accordingly, while, in England, the Report on the Work of the Prison Department (1977: 1) had referred to ‘the continued problems of overcrowding [and] the growing numbers of difficult and subversive prisoners’, from the 1990s the reports contained only references to the excellence of the service that was being provided: ‘our vision is to provide a service … of which the public can be proud and which will be regarded as a standard of excellence around the world’ (HM Prison Service Annual Report, 1994–1995: 1).³⁰

What such services might be was then set out in a series of ‘Visions’, ‘Mission Statements’ and ‘Goals’ that reveal the shift that has taken place in the priorities ofthe Anglophone prison services from the 1990s: from services that had aspirations (however unlikely in reality) of turning their inmates into better people, to services that had to provide more cast-iron guarantees of public protection. The first English Mission Statement had maintained that ‘the task of the prison service is to use with maximum efficiency its resources to keep prisoners in custody with such degree of security as appropriate. [And to] provide for prisoners as full a life as possible as is consistent with the facts of custody’ (Report on the Work of the Prison Service, 1986–1987: 3). However, in the HM Prison Service Annual Report (1992–1993: ii) this had become ‘the prison service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and help them lead law-abiding and useful lives in custody and after release.’ In New South Wales, the Mission of its prisons became one of ‘protect[ing] the community by managing inmates in an environment which is safe, secure, fair and humane and to actively encourage personal development through correctional programmes’ (NSW Department of Corrective Services, 1991–1992: 1). In New Zealand, the first Mission of the Penal Division was ‘to contribute to the protection of society [and] reduce the likelihood of reoffending by providing the secure, fair, safe and humane containment of persons committed to custody’ (Report of the Department of Justice, 1991: 67). However, the Report ofthe Department of Justice (1994: 60) then stated that this was ‘to promote safety and social cohesion in society; contribute to a reduction in reoffending; and promote public confidence and support for public corrections. [It is] charged with providing a secure, fair, safe and humane corrections system.’ Thereafter, its vision is ‘to have the New Zealand public’s understanding and confidence’ (Report ofthe Department of Corrections, 1996:11). In these ways, what level of autonomy the authorities once had had been stripped away: their first duty is to give satisfaction to their ‘stakeholders’ – the public at large, rather than their inmates; the security of the former rather than the well-being of the latter was to be paramount. This, rather than present them with details of treatment programmes and the statistics of reconviction, was the way to ensure ‘public understanding and confidence’.

Moreover, although both Woolf and Nagle had spoken of the need to open up the prisons to public scrutiny (as May had also done), the effects of the new management practices have been to neutralize the potential for criticism from within the prison service. This has then meant that the reality of prison life has become more opaque, rather than transparent. The Report on the Work of the Prison Department (1980: 4, our italics) had argued that ‘a reduction in the prison population is the only way of achieving any improvement in [prison] conditions’. However, the Report of HM Prison Service (2001–2002: 12, our italics) simply stated that ‘the prison service has no control over the numbers of prisoners sentenced’. Indeed, the annual reports have turned into a self-congratulatory paean of praise, reciting the various KP Is that have been achieved. In England, although the aim was to have 36 per cent of prisoners unlocked on weekdays for at least twelve hours, ‘40 per cent was achieved’ (HM Prison Service Annual Report, 2001–2002: 12). In 2003–2004, the prison service met nine out of its 14KPIs,and ‘its excellent record on security was maintained’ (HM Prison Service Annual Report, 2003–2004: 6). And the HM Prison Service Annual Report (2006–2007: 6; 30) states that it ‘is delighted to report how well the prison service performed … the service met 9 out of 12 annual delivery targets agreed with Ministers … escapes fell from238 in 1992–1993 to just one in 2006–2007’.

There is very little publicly accessible knowledge to counter these testimonies of untroubled excellence. In these countries, members of the prison service cannot make any public representations – letters to newspapers, for example – about their work. In England, the annual report by the Inspector of Prisons makes headlines in the broadsheet press, but seems to carry little weight or influence elsewhere ³¹ (New Zealand and New South Wales do not have an independent inspector). As a consequence, public understandings of an institution that has come to have so large a symbolic and material presence in these societies has continued to be shaped by the morbid curiosity that the popular media demonstrates in it. This both reaffirms these understandings and also exacerbates public antagonism to those who live and work in the prison. News features on New Zealand prisons, for example, are likely to take the form of ‘scandals’ that expose the supposed luxuries of prison life, along with the incompetence of prison officials: ‘Inmates Fed Diet of Violent Flicks [movies]’ (The Dominion Post, 27 February 2006: A1); ‘Jail Lets Sex Crims Out to Pick Fruit’ (The Dominion Post, 28 February 2006: A1); ‘Good Inmates Get Steak and Lollies’ (The Dominion Post, 18 March 2006: A5); ‘Violent Crim in Chalet with TV’ (The Dominion Post, 8 June 2006: Al). These representations of prison life, with very little alternative to them because of the structure of the news media in this society, then put more public pressure on the authorities to demonstrate their acquiescence to popular expectations of what it should be.

As this has occurred, rights that might previously have given prisoners a stake in the world have been removed or denied them in a series of ‘gestures of nullification’ (Garland, 2005: 814). Although the courts had shown a willingness to protect the rights of prison inmates in the 1970s and 1980s (Brown, 2002; van Zyl Smit, 2007), such matters have since tended to be brushed aside (as also with some of the more punitive legislation of this period, such as the New Zealand three strikes law), as if of no consequence in relation to the more utilitarian intent of making public safety a priority. Indeed, the division between prisoners and the rest of society is so entrenched, and the expectation that going to prison involves substantial loss, rather than mere detention, is so acute, that any attempt to reduce these divisions and losses is likely to be met with derision and disbelief (see p. 25). In New Zealand (where, as with New South Wales, there is no equivalent oversight of the ECHR), the justification for removing the right to vote under the provisions of the Electoral (Disqualification of Prisoners) Act 2010 was that possession of this right implied that prisoners were being treated as if they were ‘normal people’: ‘if people do a crime, they do the time and give up the electoral right that normal citizens have. The legislation gives supremacy to a person’s moral obligation not to commit a crime, rather than to the moral obligation of that person to vote’ (Hansard [NZ], 21 April 2010: 10345). Equally, the right of prisoners to receive compensation for wrongful treatment was removed (retrospectively) by the 2005 Prisoners and Victims Claims Act. The legislation prescribed that any such ‘windfalls’ must go to their victims instead. It had been prompted by five prisoners being awarded $NZ136,000 damages by the New Zealand High Court³² after they were subjected to ‘inhumane treatment’ in a ‘behaviour management regime’ – something similar to conditions in a US supermax prison, and for which there was no lawful authority. In the ensuing parliamentary debate on the bill,³³ it was variously claimed that ‘criminals have won awards for things like hurt feelings. It is pathetic!’ (Hansard [NZ], 14 December 2004: 17998); ‘these prisoners – who may be feeling a sense of grievance because they have not had fresh towels, or because they have been forced to clean out their own cells – are claiming for breaches of standards that are not extended to law-abiding innocent citizens’ (ibid. : 17997) ; ‘in prison it is very simple ; in prison are the greatest thugs – the most brutal people – in our society… those poor, darling prisoners will work out for themselves that if they make life very hard for the prison guards, who, ultimately, will retaliate, they will get some compensation because their human rights have been breached’ (Hansard [NZ], 1 June 2005: 21021).

At the same time, further deteriorations in the conditions of prison life have reversed much of the improvements that the authorities had been able to put in place from the 1970s to the 1990s. Despite newprison building programmes, the provision of places has been unable to keep up with the numbers being sentenced: in England, double-bunking increased from 17 per cent of the prison population in 2001–2002 to 24.7 per cent in 2006–2007. Similarly, in New Zealand, four new prisons, optimistically built on the expectation of single cell accommodation in the early twenty-first century, became double-bunked within three or four years of opening. If the prison diet has become more varied, and there is more careful adherence to nutritional science, virtually all provisions for communal dining in closed prisons have disappeared. Meals have to be eaten in cell, while food is prepared from a central kitchen, which means that its quality is likely to have deteriorated by the time it arrives. Here, then, are some of the aspects of that ‘tighter and deeper’, ‘more intense’ experience that imprisonment has come to be in these societies.³⁴

The Nagle Committee (1978: 270) had been shocked to find that, ‘in some prisons, inmates are locked in their cell for up to 15 hours a day’. This is now routine for the vast majority of prisoners in closed institutions in these countries – indeed, it is often exceeded. That this has become so is emblematic of the dramatic changes in values in relation to what are tolerable and intolerable conditions of prison life since Nagle, as the prison itself has come to assume a much larger role than a mere receptacle, unwanted and ignored, for society’s undesirables. As restraints on punishment have been stripped away, it has become, for many, a necessary symbol of security in an age of insecurity and anxiety, the point of division between respectable, worthy members of society and all those thought to pose a danger to them; a point of division that has become much sharper as public fears demand that security within the prisons be intensified to keep them safe from those inside, while public hostilities demand that those being sent to prison should know only disadvantage and misery from this experience.

The Nordic route to penal exceptionalism

While there have certainly been modifications to the social democratic welfare sanction over the same period, these have not been sufficient to undermine its foundations. The familiar Nordic dualism of extensive forms of control and regulation, on the one hand, and the simultaneous depenalization of punishment, on the other, remains largely in place.

The social democratic welfare sanction under threat

As in the Anglophone societies, so too, in the 1970s, there was recognition in the Nordic that welfare-sponsored ‘treatment’ was little more than a sham. Norman Bishop (1974: 97), head of the Research Group of the Prison and Probation Services in Sweden, argued that ‘evidence for successful penal treatment [in Sweden] is both meagre and unreliable’. Moreover, it was also recognized that its benign language could be a mask for unnecessary and unjust levels of coercion – especially so in these countries where legal traditions generally upheld the procedures and practices of state organizations, rather than the rights of prison inmates (the pioneering work of Nils Christie (1960) and Thomas Mathiesen (1965) had helped to ignite this awareness). In the light of this, the Finnish Prison Administration Decree of 1971 stipulated that ‘the enforcement of punishment must be arranged so that it does not needlessly complicate, but if possible promotes the prisoner’s relocation in the free community’. In Norway, the Ministry of Justice (1977–1978: 25, our italics) took the view that ‘the treatment optimism underlying many penal sanctions earlier in the century is difficult to maintain today … the use of imprisonment can never be justified as a measure of rehabilitation. There is an inherent contradiction in the fact that as society implements penal sanctions on groups in need of help, this only serves to exacerbate their problems.’ As a consequence, crimes were no longer so readily seen as symptoms of some sort of illness. And, similar to the moves to restrict some of the more extensive powers of the social democratic welfare state (along with the abolition of the sterilization laws by the mid–1970s, a few hesitant steps had been taken towards the liberalization of alcohol policy ³⁵), the social democratic welfare sanction’s powers of control and coercion began to be scaled back, sometimes rescinded altogether. Preventive detention was thus allowed to fall into disuse in Norway, and internment for alcoholics was abolished in 1970. In addition, the vague concept of ‘mental abnormality’ that had provided a prescription for indefinite detention was removed in 1974, with separate sanctions available for ‘sane’ and ‘insane’ offenders. In Finland, from 1971, from being an extensively used penal sanction in the 1960s,³⁶ preventive detention became available only for those ‘who actually presented a danger to society – that is, who were in certain ways a danger to the life or health of other people’ (Lahti, 1977: 145). In 1974, the term ‘recidivist’ was to be applied only to offenders who had previously been found guilty of an offence involving serious violence: ‘the result has been that in a five year period the number of individuals sentenced as dangerous recidivists has fallen from 389 to seven’ (Zagaris, 1977: 457). In Sweden, public drunkenness was decriminalized in 1977, indefinite youth prison terms were abolished in 1980 and other forms of indefinite detention in 1981.

To further prevent the kinds of injustices that the welfare sanction had allowed, Justice Model principles of proportionality, certainty and rights began to be written into the penal codes of these societies. Hence, the Finnish Sentencing Act (1976, s.1, our italics): ‘in measuring a punishment, all the relevant grounds increasing and decreasing the punishment, as well as the uniformity of sentencing practice, shall be taken into consideration. The punishment shall be measured so that it is in just proportion to the harm and risk involved in the offence and to the culpability of the offender manifested in the offence.’ In Norway, the Ministry of Justice (1977–1978: 2) proclaimed that ‘the demand for justice is a more secure penal foundation than theories that are grounded in the view that punishments are meant to achieve other goals’. In Sweden, the Report of the Council for Crime Prevention (1977: 12) argued that sanctions should be determined not by the kind of person an offender was thought to be but by the penal value (strajfvärde) of the offence they had committed: ‘with special regard to the harm, offence, or risk which the conduct involved, what the accused realized or should have realized about it, and [their] attention and motivation.’ This principle finally became law in 1989: ‘punishment shall be decided with regard to the desirability of uniform and consistent adjudication and set within the scale of punishment applicable to the culpability of the offence or the offences taken as a whole’ (Jareborg, 1995: 110). In effect, the individualization of treatment, one of the foundation stones of the social democratic welfare sanction, had been removed.

With such curbs on its powers, it was thought that the place of punishment in these societies could be further reduced. Indeed, the consensus to this effect between politicians, civil servants and academic critics of the welfare sanction led to a sense of penal optimism at this juncture, rather than the despair that then permeated Anglophone discourse, where there was much greater division over the role and place of punishment.³⁷ Lennart Geijer, the Swedish Minister of Justice, thus predicted that the Swedish prison population could be reduced from its existing daily average of 2,808 to 500 (Ministry of Justice, 1974: 2). Finland, now free from its highly repressive social defence legislation, had begun its decarceration programme : ‘there is no reason to toughen imprisonment penalties. Prison sentences nowadays have anyway led to problems in the prison administration, which cannot be aggravated any further. This is why the general prevention effect of the penal system must be otherwise improved: by enhancing the risk of getting caught, expanding the range of punishments, and using other sanctions besides imprisonment, with the same general preventive value as short-term incarceration would have’ (Government Bill 110/1975: 6). Fines began to be used in place of short prison sentences, while the latter were also reduced in length: the average length of imprisonment for theft came down from 7.4 months in 1971 to 2.6 in 1991 (Lappi-Seppälä,2000: 31). Following ‘driving under the influence’ reforms in 1976, more use was made of conditional prison sentences. As a consequence, while 70 per cent of those charged with this offence were imprisoned in 1971, by 1981 the number had been reduced to 12 percent. In Norway, there were also plans to scale back the level of punishment. From 1973, the time in remand was to be included in a prison sentence. Life sentences were abolished in 1981 and replaced by a maximum finite term of 21 years. In addition, a prison ‘waiting list’ was introduced for those sentenced to prison for non-violent or non-drug related crimes, to limit the size of the prison estate: they would have to wait until a ‘vacancy’ occurred in their local prisons before commencing their term – something that could only be conceived of in a society with high levels of cohesion and stability, trust and tolerance. In further revisions to the Swedish penal code, imprisonment was designated as a ‘last resort’ penal option: ‘wherever possible, preference is to be given to measures that avoid the deprivation of liberty’ (Report of the Prison and Probation Board 1980, 1981: 2). The 1986 Commission on Prison Sentences then argued for more fines and less use of imprisonment, particularly for alcohol related driving offences. Parole, more or less automatic, became available on completion of 50 per cent of sentence in Norway and Sweden, and two thirds of sentence in Finland, in the 1980s.

However, Geijer’s predictions didnot come to fruition, and the optimism proved somewhat unfounded. In 1974, the prison rates of these societies had stood at 50 per 100,000 of population in Norway and Sweden, 112 in Finland. By 1992, these had increased to 58 in Norway and 63 in Sweden, but had declined to 70 in Finland. By 2010, though, while the Finnish imprisonment rate had declined further to 59, that for Norway had increased to 72, and that for Sweden to 78. Moreover, instead of looking forward to reducing the level of imprisonment, the website of Kriminalvården announced in 2006 that Sweden was undertaking ‘the biggest prison building programme in Europe’. Similarly, in Norway, VG (11 May 2006: 3) reported that ‘the government is establishing 150 new prison places this year … [overall] the government will establish 500 new prison places over four years’. In addition, the prison ‘waiting list’ (althoughnot the possibility of deferment of the prison sentence) was to be terminated. These steady increases in imprisonment in Norway and Sweden point to some weakening of the restraints that had previously been placed on punishment in these societies. Indeed, the increases coincided with declines in their homogeneity (it is surely no coincidence that, in Finland, where homogeneity has been least threatened by immigration, prison rates continued to decline) and the arrival of economic uncertainties in Sweden and disparities in Norway. New risks and dangers had emerged – exemplified by drug use and violent crime – that seemed to have the power to corrupt and destroy the fundamental qualities of stability, cohesion and solidarity with which these societies had come to be associated.

These concerns have been most prominent in Sweden, the Nordic country where the social and economic changes have probably been greatest, and where welfare retractions are likely to provoke the deepest angst – the commitment to welfare had been so firmly embedded and so emblematic a characteristic of this society that any retractions of it would be likely to be given an exaggerated significance. In these respects, the concerns about drugs and violence have a symbolism that go beyond their particular threats to the well-being of individual Swedes. Although both drug use and levels of violence are actually very low in these Nordic countries (see, for example, Tham, 1995; Estrada, 2001; Lenke and Olsen, 2003; von Hofer, 2011), the way in which these crimes are understood conjures up age old anxieties that this former standard bearer of the West is under threat, once again, from ‘the East’ (Tham, 1995). This no longer comes, of course, from Mongol hordes, Tsarist Cossacks or even the Red Army but, instead, from drug trafficking and organized crime and corruption. These activities are thought to be endemic in this mythologized but geographically proximate region, and, so these fears go, have been allowed to make their way into Sweden because of its liberal immigration policies. When having to carry such highly charged, emotional burdens, the punishment for drug crimes is going to assume dramatic, excessive dimensions. Prison terms for trafficking were thus increased from a maximum of four years imprisonment in 1968 to 10 in 1972. Penalization of consumption became law in 1988. The Ministry of Justice (1993: 1) later confirmed that ‘punishment for minor drug offending has been increased’. Thereafter, no mainstream political party could afford to be seen as being ‘soft on drugs’, in just the same way that being thought to be ‘soft on crime’ became a precursor for political disaster in the Anglophone countries. As a consequence, the constituency of the Swedish prison population has been transformed. Eight per cent of inmates were drug offenders in 1980; by 2010 this had increased to 24. In much the same way, drug smuggling in Norway is one of the two crimes (the other being murder) that can lead to the 21-year maximum prison sentence – here, too, drug crime has become linked to broader anxieties about immigration and its effects on social cohesion and solidarity.

Equally, concerns about violence, which also began to gather momentum in the 1980s, can be traced back to the same source: the worrying threat of national decline and identity that was being brought about by ‘Eastern’ influences and immigration, asÅkertström(1998: 323, our italics) inferred: ‘violence [in the 1980s in Sweden] seemed to be regarded as something more than violent behaviour: it was seen as a foreign social force with a life of its own.’ In a country where there had been no involvement in war for nearly 200 years, and where there were stringent prohibitions on violence in the home, on television, in sport, in the penal system and in schools,³⁸ then the growing appearance of violent crime in the media was inevitably shocking and threatening and has since helped to change public sensibilities: the values of moderation, restraint and high levels of self-control are no longer such prominent features of everyday life. Frederik Fleisher (1967: 170), in The New Sweden, had written that ‘the appreciation of restraint, a certain aloofness, and the disapproval of displays of emotion play a vital part in forming the general outlook toward violence’. Since the 1980s, however, ‘new ceremonies to commemorate the memories of those who had fallen victim to violence occurred. People lit candles and put flowers in the streets on the spot where someone had been killed; torchlight processions and demonstrations opposing violence were held in the streets, and support groups organized in the name of murder victims’ (Åkertström, 1998: 325). These public outpourings of grief reached a crescendo at the funeral of 10-year-old Engla Höglund in 2008, murdered by a man with a history of violent crime. State television broadcast the funeral in full, the first time for any such event, and a special funeral song was composed – ‘Living without You’. Furthermore, new reports of violence can seem all the more alarming and ‘foreign’ because of the strong associations that have been made between ethnic minorities and violent crime (although Engla Höglund’s murderer was a local truck driver), pointing again to the way in which immigration was jeopardizing one of the strongest pillars of support – homogeneity – on which the values of moderation and restraint had been built. As Brown (2008: 203) observed, ‘immigration is certainly not the only threat to [Swedish values and conventions] which are understood and enforced by almost everyone in the community. But it is the most visible. The behaviour of the immigrants need not be destructive. The belief in foreign scroungers can be destructive even when they don’t exist.’

For the right wing populist parties in Sweden and the other Nordic countries, social problems of this nature are seen, and have been exploited by them, as being both the creation of the social democratic welfare state and, at the same time, beyond its capacity to remedy because of its willingness to assist refugees, illegal immigrants and so on. Moreover, dissent from ‘the social democratic image of society’ has periodically surfaced in the political mainstream as well, with the accompaniment of promises that there would be more emphasis on penal exclusion, rather than inclusion. Oneoftheslogans Moderaterna used to win the 1991 Swedish election was ‘Keep them locked in, so we can go out!’ (Leander, 1995: 169). Thereafter, the Ministry of Justice (1993: 5) White Paper, To Restore a Degenerated Criminal Policy, took the form of a repudiation of the social democratic welfare sanction: ‘[Under the Social Democrats], criminal policies were shaped from the perspective of the offender and the suffering of the victim was treated as a less important element. The offender was regarded as a victim of the forces of society … the new criminal policy is based on the idea that the most important task of the state is to protect its citizens from crime … by punishing the offender the state gives victims restitution.’ Here, then, we have a way of thinking about punishment that does not differ greatly from similar pronouncements made during the course of Anglophone restructuring, amidst public displays of pain and emotion brought about by needless victimization that are likely to put pressure on governments to make more punitive, more authoritarian gestures in response, rather than stand back and allow its officials to pursue their policies of moderation and tolerance.

The reaffirmation of social democratic values and the social democratic welfare sanction

There is a strong sense of familiarity about this post-1970s Nordic sketch so far: the intentions of a liberal establishment to bring more leniency to the penal system, with recognition that the Justice Model, rather than the welfare sanction, was the means to achieve this, only for these elites to be undermined as ‘the age of anxiety’ began to change the social landscape and the prevailing Nordic mindset. Yet, it is from this point that the similarities in penal development between the Nordic and Anglophone societies cease. Indeed, while the restraints on punishment have been further eroded in the latter, these have remained largely in place in the former, while the values that are represented in the social democratic image of society have been reaffirmed rather than replaced.

How has this happened? First, the responses to drug related and violent crime can be seen as a continuation of social democratic thinking rather than some sort of dramatic right wing, repressive departure from it. If the reactions of the Swedish state to these crimes are indicative of the way in which trygghet has become more precarious, then these reactions are also indicative of the way in which social democracy, as we have seen, has always been preoccupied with protecting its communities from risk and danger, and particularly from out of control, unpredictable behaviour. While its tolerant and humane penal measures have become prominent internationally, this side of social democracy has always run in tandem with its less well known, more coercive and regulatory side. As such, it was always the state’s duty to correct, to change, to ‘cure’ such propensities in the individuals concerned – the security of the community overrode the liberties of the individual, as we have already seen. This was in contrast to the Anglophone societies where it was thought that the liberty of the individual needed protection from over-excessive state regulation. From the late nineteenth century, alcohol consumption had borne the brunt of these concerns, followed by the sexual conduct of the mentally abnormal and so on. During the late twentieth century, drugs and violence became their latest manifestations. And just as, in the past, social movements had been instrumental in identifying and defining problematic behaviour, this also remains the case. In relation to violence, the women’s movements in these societies have been able to draw public attention to the gendered nature of much of this crime. By the same token, the Social Democrats, as has always been the case, were prepared to support initiatives that protected the vulnerable from oppressors and exploiters: here, women and children from male abusers. Accordingly, as well as increasing penalties for assaults and sexual attacks, the ‘Violence against Women’ proposal (Department of Justice, 1990) urged the new crime of ‘violence against women’s integrity’ – repeated crimes of violence by men against female partners – which became law in 1995. The motivation was the same for the subsequent criminalization of the purchase of sexual services – aimed at the male clients of prostitutes – which became law in 1999 (and was then replicated in Norwegian legislation that took effect in 2009 ³⁹). As Ekberg (2004: 1189) explained, ‘in Sweden, it is understood that any society that claims to defend principles of legal, political, economic, and social equality for women and girls must reject the idea that women and children, mostly girls, are commodities that can be bought, sold, and sexually exploited by men. To do otherwise is to allow that a separate class of female human beings, especially women and girls who are economically and racially marginalized, is excluded from these measures.’

Having once identified problem behaviour in this way, a familiar pattern of development then takes place: a series of commissions are established to examine it, eventually followed by the introduction of sweeping regulatory measures based on the commissions’ recommendations. The Swedish anti-drugs campaign had begun around 1970. Geijer himself, when proclaiming that prison numbers could be reduced to 500, had also acknowledged that ‘there is a small group of lawbreakers who[se] dangerousness for all of us leaves us with no other option than to place them in prison’ (Ministry of Justice, 1974: 3). Thereafter, the ideal of Sweden becoming a ‘drug free society’ was first approved by the Social Democrat Congress in 1978. This would drive out drug crime and rid Swedish society from the impurities, real and symbolic, associated with it. Commissions were set up during the 1980s for further investigations of the problem. These were staffed by representatives from all the main political parties to ensure consensus, and also narcotics experts. In these respects, it is not the case that the previous importance given to expert knowledge in policy making has been abandoned. Instead, rather as had been the case with the medical professionals during their earlier dominance in the development of criminal justice policy, experts are invited to participate in examining a problem they have a vested interest in enlarging. The commissions and other official inquiries have thus continued to highlight the urgency of the drugs issue (‘worrying deterioration’ (Department of Justice, 2000: 126); ‘the research on the pernicious effects of cannabis is not conclusive [but] it appears to have far more wide ranging and far more malicious effects than previously thought’ (Swedish National Drug Policy Coordinator, 2003: 4); ‘cannabis is more harmful than previously thought’ (Statens Folkhälsoinstitut, 2011: 143)). At the same time, they have broadcast the ‘success story’ of Sweden becoming a drug free society to the rest of the world in ways that are redolent of its past presentations of social and penal policy (Nilsson, 2011): ‘there are hardly any countries comparable to Sweden where the attitude to drugs is so repudiating, new recruitment of drug abusers so limited and mortality among drug abusers so low’ (Government Bill 91, 2001–2002: 1–10). The point is, then, that, while concerns about drugs and violence may be indicative of the social tensions that have emerged in these societies since the 1970s, the reaction to them represents the continuation of a long tradition of state activity to protect trygghet from perceived dangers to it. The introduction of extensive state powers of regulation and control to bring this about is not something new to the Nordic region.

Second, while the social democratic welfare sanction has been restructured, it has not been dismantled. Although its psychodynamic ‘treatment’ aspects have been greatly scaled back, faith in rehabilitation and inclusion has been maintained. In the criticisms of the social democratic welfare sanction, treatment and rehabilitation were not conflated, as happened in the Anglophone societies: there was no full scale repudiation of the welfare sanction itself, nor the broader welfare programme of these societies. Instead, the deficiencies in the existing practices of the social democratic welfare sanction were seen as reaffirming the need for stronger welfare policies, rather than any kind of reversal of them – the exact opposite, then, of what happened in the Anglophone societies. In this regard, there was not so much a ‘collapse of the faith in the rehabilitative ideal’ (Allen, 1981) but a lack of faith in the ability of punishment to produce any productive solution to crime. As the Finnish Criminal Law Committee (1976, 2: 41, our italics) acknowledged, in one of its briefing documents around this time, ‘the penal system is not the only system or even the main device to manage behaviour so that it is in accordance with socio-political goals … it is the nature of penal provisions and punishments to be subsidiary: cultural changes cannot be led by them’. Rather than being abandoned, rehabilitation remained central to social democratic thinking. The manifesto of the Finnish Social Democratic Party (1969: 2, our italics) had thus stated that ‘crime forms a major part of social policy. Hence the solving of the problems of social policy and the achieving of the goals set for it may affect the problems of crime policy a great deal. This is why crime policy must strive for the same economic, educational values and values of fairness that are strived for in other solutions related to social policy.’ Similarly, the Norwegian White Paper On Criminal Policy, althoughrejecting treatment ideology, insisted that ‘weshould however maintain the humanisation of the penal system, as was introduced with the welfare model… responsibility for the convicted person’s rehabilitation and return to society is not vested in the Ministry of Justice alone … the convicted person should not be deprived of their civil rights, and [state organizations] should be responsible for offering their services also to convicted persons and inmates’ (Ministry of Justice, 1977–8: 26, our italics).

In effect then, there was no Kantian insistence in these countries that offenders were responsible citizens who had the right to be punished for their misdeeds, as if their term of exclusion from society would then annul their offence. Instead, they were still seen as the victims of disadvantage for whom the state had the responsibility to ensure more effective inclusion into society at large. As Geijer had observed, ‘[offenders] come from deprived backgrounds, their schooling and vocational education has been neglected. Society carries a larger responsibility when it comes to alleviating these scarcities’ (Ministry of Justice, 1974: 2). Even drug criminals were not to be written off as ‘evil’. A former Minister of Health and Social Affairs confirmed that ‘Sweden’s drug policy is part of our general social policy, which aims at giving everyone in Sweden social security via a system of common welfare. The restrictive form taken by Sweden’s drug policy is part of the general perspective. Everyone has the right to a dignified life, and no groups may be ostracized from the collective agreements of society’ (Westerberg, 1994: 94). Similarly, ‘a restrictive drug policy has to be combined with measures characterized by humanity, dignity and care’ (Socialdepartementet, 2003: 12). Again, then, social democracy was prepared to take extensive measures to protect all its citizens from the drugs menace with its high penalties for using, selling and trafficking; but, at the same time, it was not prepared to simply expel those who constituted such a threat. Instead, it took upon itself the task of integrating them back into society. Similarly, in relation to violent crime, ‘[the violent male] is often a socially marginalised person with drug and alcohol problems and a difficult psychological background. Hence actions to reduce violence against women must consist of both efforts that reduce the general oppression of women and interventions aimed particularly against men who abuse women’ (Department of Justice, 1990: 14, our italics).

And, while it is no longer the case that Social Democrats have political hegemony in this region, the social democratic way of thinking about crime and punishment remains the dominant one. In Sweden, the attempt by Moderaterna to break away from social democracy when in government from 1991 to 1994 led to electoral disaster and their subsequent rebranding. Returned to government, the Social Democrats then reaffirmed a more familiar penal policy in the subsequent White Paper, A Reformed System of Punishment (Department of Justice, 1995): the emphasis was on the need to restrict the prison population because of its negative effects on offenders, rather than increase it in the name of public protection, as in the Anglophone countries: ‘in general, prison has negative consequences for those who are subj ected to it. To be locked up means that the sentenced person is isolated, institutionalized and in many cases finds it difficult to return to a normal life in society. Prison is also very expensive from a social cost perspective … there is no evidence to suggest that prison would have a greater general deterrence effect than other types of punishment.’ In Norway, the Labour Party was elected to government in 2006 and 2010 with a penal policy that emphasized the importance of inclusionary responses to crime. In contrast to the way in which Anglophone Labour parties reaffirmed the Conservative Weltanschauung of those societies with their exuberant use of exclusionary punishments from the 1990s, the social democratic values of this region were reaffirmed: ‘with good welfare services for everyone, crime can be prevented and many of the initial incentives for a life of crime can be removed. Given that 60 per cent of violent crime is committed under the influence of alcohol, it is important to adhere to a restrictive drug and alcohol policy. Good psychiatric health care services and an active labour market policy are important for comprehensive crime fighting’ (Norwegian Labour Party, 2006: 1).

Third, the social democratic welfare sanction has been largely able to contain the emotions provoked by crime victimization. Crime victims feature very little in the Nordic criminal justice process. In contrast to the Anglophone societies, they are treated as welfare rather than juridical subjects, the purpose being to expedite their release from victimhood with therapeutic and financial assistance, rather than providing them with legal rights of representation that prolong it. Nor has it been the case that the social democratic welfare sanction gave thought only to rehabilitating offenders ⁴⁰ – the Social Democrats extended welfare responsibilities to victims as well: ‘a system for damages caused by offences should be developed in such a way that it would not depend solely on the solvency of the offender. This could be partly achieved by developing the [state] insurance system so that all property owners could share the damages caused to risky property. There has to be research done on how to compensate all bodily injury and loss of earnings by social insurance provisions. The securing of the family’s livelihood is especially important when the breadwinner has been victim of an offence’ (Finnish Social Democratic Party, 1969: 2). Thereafter, under the provisions of the Finnish Victim Compensation Act 1973, crime victims have been given the right to receive compensation from the state, initially for personal injuries suffered, but then extended on a discretionary basis in the 1980s to cover property crime. The victims’ claims are dealt with at the same time as conviction is secured. In unproblematic cases, they need not appear in court at all – the prosecutor claims damages on their behalf. In effect, the ‘victim’s rights are associated, not with the right to exercise personal vendetta in the court, but with the victim’s possibilities of getting his/her damages and losses compensated’ (Lappi-Seppälä, 2007: 284). Victim impact statements – and their inflammatory capabilities – are thus unknown: ‘a search from the Finnish supreme court case register covering the years 1980–2004 did not find a single case with the words ‘public opinion’ or ‘general sense of justice’ cited in the decision’ (ibid.: 272).

Of course, with the undeniable changes that have taken place in public sensibilities, there may well be occasions when inconsolable crime victims and their supporters come more to the forefront of these societies. However, by taking care of most prior to the court, the overall effect has been to ensure that they are not left confused and helpless within it, and then vulnerable to political exploitation after it. Without the politicization of victimhood that has allowed raw emotions to be injected into the Anglophone criminal justice system, the dispensation of punishment is more likely to remain determined by calm, objective deliberation. It also ensures that crime continues to be understood as a problem that must be solved by society as a whole: victims have not been granted ‘ownership’ of the solutions to it. In Norway, the Punishment that Works White Paper (Ministry of Justice, 2008:4, our italics) insisted that ‘the government desires corrective services based on knowledge –policy must not be based on individual incidents. National and international research is therefore of great significance for the government’s choice of measures.’ Preparation for this document had involved discussions with ‘former Justice Ministers … [then] a think-tank of professors and artists … two big professional conferences were held… in six prisons dialogue conferences were held in which both inmates and staff participated and discussed what a good day in prison would be like for them… Victims and the family and friends of inmates also had the opportunity to have their say… At a “grand conference” in May 2007, the relevant partners were invited to discuss the work of returning prisoners to society. Both public agencies and voluntary organizations took part.’ Here, then, instead of being shrouded with invocations of ‘public opinion’ and expressions of reverence for victims, primacy is given, first, to former Justice Ministers, demonstrating the relatively consensual nature of political life in this country. Thereafter, it was the views of professors and artists that were elicited, demonstrating the continuing respect for the intelligentsia. Victims were consulted at a later stage – as were all other ‘stakeholders’ in penal policy development, including their offenders.

Fourth, important sectors of the Nordic media have continued to demonstrate a commitment to the social democratic image of society. Because there is not the same preponderance of sensation and drama in the reporting as there is in the Anglophone, and because state broadcasting and the broadsheet press remain popular and influential, crime and punishment issues still seem to be reportedmore dispassionately and descriptively. As regards the media reaction to prison escapes, we see in a Swedish example that ‘Escapee Stabbed Birthday Guests’. The wet [that is, alcohol had been consumed] birthday party in Hedemora went off the rails. Fighting started and two of the guests were stabbedby a 37-year-oldman who was later identified as an escaped prisoner. The man, who was later arrested, had absconded from the prison in Uppsala’ (Dagens Nyheter, 9 May 2006: 8). And, as regards its reaction to new crimes committed by ex-prisoners on parole, a Norwegian example is ‘Raped Woman (62) While Going to Therapy’. As soon as the twenty-three year old had completed his sentence and was attending therapy, he is suspected to have brutally raped [the woman] … in 2002 he was sentenced to five years in prison for aggravated assaults and rapes in Kristianstad. The Prison Service released [him] on parole in May 2004. He then had one year and 255 days left to serve of his sentence … The Prison Service states that “we never comment on individual programs, not even when the people we are dealing with will be charged in new cases or the reasons for parole” said Signe Gunn Ropstad of Correctional Services, Western College’ (VG, 11 May 2006: 6). It is evident from the latter that the prison service still controls the flow of information to the public, and the news item was content to leave the matter at this. There was no attempt to undermine or criticise the prison authorities for their parole decision. Again, then, it is not that there is no mention of prison escapes and so on in the media in these countries; rather, it is the restrained and factual nature of the reporting that stands in contrast to the emotive sensationalism of much of the Anglophone press. At the same time, the overall context of escapes remains in view, rather than the thrilling minutiae of each incident: ‘Fewer Escaped From Prison: last year, 15 escaped from closed prisons. Never before have there been so few escapes. The number is the lowest since statistics began being collected and can be compared with 33 escapes in 2004’ (Svenska Dagbladet, 10 January 2006: 8).

This style of reporting has also meant that some of the other dynamics that underlie the more uncontrolled and emotional outbursts to crime of the Anglophone societies are either much more muted, or missing altogether, in this region. Thus, notwithstanding the public grief that child murders can now provoke in Sweden, there have been no subsequent nationwide vigilante activities against suspected paedophiles, nor any agitations, led by the media, for publicly accessible registries of sex offenders. At the same time, there seems no desire to have their supervision by state employed social workers made more publicly transparent and accountable. Moreover, the values of moderation and restraint, along with the more respected authority of the central state itself, are still strong enough to prevent vigilante excess and the ‘naming and shaming’ practices that have become regular occurrences in the Anglophone countries. This is not to say that the barriers against punitiveness have been impenetrable in this region. However, while there have been increases in sentence lengths in all three societies from the 1990s, it remains that most offenders in the Nordic countries are sent to prison for significantly shorter periods than in the Anglophone. In New South Wales, the average prison sentence length in 2009 was 395 days; in New Zealand, it was 325 days; in England 300, compared with 100 in Norway, 220 in Sweden and 250 in Finland. Average prison sentences in England are twice the length of those in Norway: ‘only seven per cent of Norwegian prisoners serve more than 10 years whereas a full 17 per cent of prisoners in England are serving over 10 years’ (Green, 2008: 67). Certainly, in Norway, dangerous offender legislation was reactivated in 2002 after decades of equivocation: under the new sentence of forvaring (literally, ‘storing’) for those so judged, the maximum twenty-one year finite prison term can be given, with the possibility of indefinite extensions to this. Sixty prisoners were serving indefinite sentences in 2009. In Finland, the number of preventive detention prisoners increased from 10 in 1992 to 33 in 2010–but these developments have to be seen in contrast to the much more dramatic escalation in indeterminate sentencing that has taken place in England and New Zealand (see p. 176). If the time to be served before parole eligibility has increased in the Nordic countries (two thirds of sentence in Norway and Sweden, five sixths in Finland), then the granting of parole has become much more problematic for many in the Anglophone countries. Moreover, there are no vestiges of the highly symbolic three strikes laws or powers to extend prison sentences after the term set by the courts has finished in the Nordic countries, as is variously the case in the Anglophone.

When we return to our initial indicator of punishment – imprisonment rates – we find that this increased by 24 and 23 per cent, respectively, in Norway and Sweden between 1992 and 2010, from a relatively low starting point; and there was a 16 per cent decrease in Finland. However, in England, from a relatively high starting point, the increase in imprisonment was 73 per cent over the same period; New Zealand 67 per cent; and New South Wales, 35 per cent. This was the growing gulf in imprisonment rates that was observed in Chapter 1, and which positions the two clusters of societies at opposite ends of the Western imprisonment spectrum.

The normalization of prison life

In the Nordic prisons, the paternalistic authoritarianism – uppfostran – that was characteristic of the operation of the unreconstructed social democratic welfare sanction was also challenged. A series of strikes, demonstrations and sit-ins that began in Swedish prisons in 1966 spread across the other Nordic countries over the next few years. Initially, the prisoners demanded better food,⁴¹ hygiene and improved access to ‘treatment’. However, this quickly turned into a demand for the greater democratization of prison life. Thus, the aims of KROM (the Norwegian prisoners’ rights group, with members consisting of prison inmates and ex-prisoners, academics and other supporters) were to ‘work for measures towards offenders which are more worthy of human beings and more expedient … in particular, to reduce the damaging effects of incarceration, and which may make incarceration less burdensome for inmates’ (Mathiesen, 1974: 68). Now, prison was understood as the product of the divisions brought about by ‘class society’, rather than a necessary institution for rectifying the assumed personality deficiencies of those offenders sent to it. On this basis, the need for the prison itself would cease when such social divisions were healed, rather than any quality of treatment that it was able to provide for individual inmates. Prisoner demands thus changed from simply wanting more treatment to wanting more influence over their treatment and a range of other aspects of prison life.

However, the subsequent conflicts in the Nordic prisons took on a very different form and were resolved in a very different way from those in the Anglophone. In the former, inmate participation was on a much wider scale, at one point involving 60 per cent of the Swedish prison population, whereas the demonstrations in England never exceeded 25 per cent (Fitzgerald, 1977). At the same time, the disturbances and protests were conducted without any violence from the prisoners or prison staff. Indicative of the higher levels of trust in these institutions and these societies at large, there was no insistence from Nordic prisoners that there should be ‘no retaliation’ at the end of their demonstrations. There was certainly obfuscation on the part of the prison authorities when dealing with prisoners and their representatives, and various prison officers voiced disapproval at the legitimacy given to the prisoners and their organizations, but there was no violence, no destruction (see Mathiesen, 1974⁴²). Moreover, in contrast to their reception in the Anglophone countries, prisoners’ rights organizations were accorded much greater legitimacy. Mathiesen ( 1974:171 ) thus wrote that, in Sweden, the influential and social democrat leaning Dagens Nyheter ‘faithfully supported the prisoners’; there were also expressions of support for them from some prison officials, including Director of Finnish Prisons K.J. Lang, in Finland, as well as prison psychologists and prison teachers (Marnell, 1974).

The much shorter social distances between prisoners and the rest of society in Sweden also made it possible for the prison authorities to negotiate with inmates and their representatives over extensive reforms, something impossible, as we have seen, in the Anglophone countries. A Director of Prisons’ press release in 1971 (our italics) thus stated that ‘negotiations at ×steréker prison are unique in history. They placed on an equal footing the delegates of the country’s 5,000 prisoners on one side and representatives of the correctional authorities and the personnel organizations on the other’ (quotedby Mathiesen, 1974:174). Of course, the extent to which both parties to these negotiations really were on an ‘equal footing’ is highly contestable. However, what is so different from the approach to such matters in the Anglophone countries is that the authorities were not only prepared to enter into negotiations with prison inmates about reform but were formally prepared to acknowledge that they were doing this. At the same time, the social movement and ‘organizing from the bottom of society’ Nordic tradition ⁴³ also helps to explain the more conciliatory attitudes and approaches of the authorities and mass media to prisoners’ rights movements than in the Anglophone countries. Marnell (1974: 17) explained that ‘it should be kept in mind when speaking of democracy within prisons that similar trends have existed for years in Sweden’s universities and schools, hospitals, factories and armed services. The general public has thus been accustomed to think in terms of democracy, democratization and the cooperative influence of clients in different organizations.’ Accordingly: ‘for many years KRUM [the Swedish prisoners’ rights group] has had a government grant, on the decision of the Swedish parliament after a government proposal. It has also been accepted as an official body to which proposed legislative measures concerning the treatment of prisoners and other questions of prison policy are referred for comment’ (idem).

The ability of these new social movements to highlight the injustices of another oppressed group – prisoners – also rekindled the interest of Social Democrats in prison reform. In Finland, a Penal Code Reform Committee was constituted in 1972, consisting exclusively of academics and civil servants, most of whom had been active in ‘the November Movement’ formed in 1967 and the precursor to KRIM (the Finnish prisoners’ rights group). Tham (1995: 92) wrote, ofSweden, that ‘Social Democrat Party congresses up to 1975 were clearly influenced by the criticism voiced by KRUM … a number of motions demanded equality under the law, humanization of the correctional system and more effective aftercare for released prisoners’. Indeed, Geijerhadreferredto the presence of ‘a small but vocal group [the prisoners’ rights organization] that demands complete abolition of the prison system. This opinion cannot be ignored. It has to be observed that well-established criminological researchers form part of that group’ (Ministry of Justice, 1974:2, our italics). These comments provide another illustration of the continuing respect for expert knowledge in these countries at that time, and the importance given to allowing this knowledge to inform policy development, even if it now came from abolitionists, rather than those skilled in psychodynamic theory. In addition, the integrated and still largely homogeneous nature of Nordic society meant that there were ‘close personal and professional contacts with senior politicians and academic research’, further consolidating the influence of expert knowledge on policy development (Lappi-Seppälä, 2000: 37). In Finland for example, K. J. Lång was thus not only the Director of Prisons but also the Chairman of the Council for Mass Media, from which he was able to criticize any over-sensational reporting of crime and punishment issues, while at the same time playing a leading role in the development of prison policy.

In these respects, the Nordic prison disturbances contributed to the further normalization of prison life (as we saw in Chapter 5, this progression was already taking place) rather than the normalization of security. The Swedish Correctional Treatment in Institutions Act 1974 thus stipulated that ‘inmates shall be treated with respect for their human dignity … they shall be treated with understanding for the special difficulties connected with a stay at any institution’. To this end, ‘prison conditions in penal institutions have to be arranged as well as possible to resemble the common living conditions in society’ (Prison Administration Decree, 1975). In Finland, ‘the prison sentence should be carried out in such a way that punishment involves only the loss of freedom’. As such, prison conditions were to correspond ‘as close as possible to living conditions in a society’ (Ministry of Justice, 1975). Such developments would go some way to meeting the inmates’ demands for improved material conditions and greater democratization within the institutions; at the same time, they would be in line with Social Democrat thinking that the negative, stigmatic consequences of punishment should be further reduced. Geijer thus confirmed that ‘this year a reform is being introduced that will result in improvements for normal prisoners – they will be given expanded rights to parole, improvements in visitation rights, the right to use the phone and so on’ (Ministry of Justice, 1974: 2). Inmate councils were set up, along with the introduction of minimum standards of payment for prison labour, the abolition of censorship, and more liberal visiting rules, including provisions for unsupervised visits and more home leaves.

Prison design and refurbishment also followed these attempts to further depenalize the Nordic prison experience. In Norway, VG (6 March 1976: 17) reported on the refurbishment of Oslo Botsfengslet: ‘the cells now resemble little hybler [bed-sitting rooms] with hot and cold running water, a radio and a desk. There is also an intercom in each room so that the prisoner can contact staff any time of the day or night. There are also new bathrooms and toilets in each avdelning [wing, literally ‘department ’] and a living room with television, a kitchen for making snacks, and in the fridge prisoners can keep some milk and sandwich fillings … since lockdown is at 9.00 pm, TV programmes after this time are taped, so that prisoners can watch them the next day.’ Bishop (1991: 136–8) described conditions in a Swedish medium security institution: ‘there is little to suggest to the passerby that this is a prison. It could well be a factory or office similar to those around it. All buildings are inter-connected and reached by corridors painted and decorated in light colours … each unit of five has its own set of showers and a small well-equipped kitchen-cum-pantry combined with a breakfast room… Each room has its own toilet separated from the living space in the same way as in most modern hotels. There are no bars on the windows; strengthened laminated glass is used instead. Recreation rooms and a sauna are provided for common use in four of the residential blocks. Coin-operated telephones are installed in the inmate’s living quarters … between 06.30 and 07.30 prisoners are expected to wake up (a clock radio is in each room) prepare and eat breakfast in the living units … staff and inmates share the same dining room and food … the evening meal is served in the cafeteria at 17.00. Locking-up time for the living units is at 19.45 but organized leisure activities can continue until 21.30.’

At the same time, plans to build any more large, impersonal institutions were abandoned. Thus, in Sweden, ‘no more prisons like Kumla will be erected … the local [prison] community is intended to be as much as possible integrated with its neighbourhood. This has a twofold objective: to counteract the negative effects of institutions and to encourage citizens living close by to play an important part in preparing for the after care stage’ (Marnell, 1974: 11). To this end, new, smaller institutions continued to be built in or near urban centres, with 40 places per institution: ‘the local institutions have open, flexible regimes that will permit inmates to have intensive contact with normal society and especially with families, employers, education facilities and leisure time associations (Report of the [Swedish] Prison and Probation Board, 1981: 4). In addition, ‘inmates are increasingly able to improve general education and to take vocational training. Some institutions now offer full courses at the secondary level. A few institutions cooperate with nearby folk high schools. The teachers from these schools hold daily classes … for the inmates interested in studying’ (ibid.: 3). In these countries, the authorities emphasised the importance of the similarities – not the differences – that there should be between prison conditions and those in everyday life outside the prison. It was thus claimed that ‘industrial workshops in the new institutions are comparable in every respect with their [non-prison] counterparts’ (idem). In Finland, ‘the normal working [prison] day lasts eight hours, with a 40 hour week, and accelerated payments for overtime work. A four week vacation from work is afforded inmates’ (Zagaris, 1977: 45). Rather than having rights stripped away from them simply because they were prisoners, inmates continued to have the same rights of access to healthcare and other social services as non-inmates: ‘it has been decided that health services in prison should be dealt with in the same manner as for all other people – through the social services. That department is taking over responsibility for all health services in prisons, and each local community is responsible for that particular area’ (Prison Administration/Department of Justice, 1986:73).

Again, rehabilitation (but not psychodynamic treatment) remained central to Nordic prison administration. There seem to have been no references to ‘humane containment’ – the concept that began to feature strongly in the administration of Anglophone prisons over this period,⁴⁴ a negative value based on recognition of how little the prisons were expected to achieve, other than containment itself. Instead, the productive possibilities of the prison, and the way to bring these about by normalizing prison life, continued to be emphasised. In Finland, the Prison Administration Decree of 1971 stated that, ‘while the objective of incapacitation was previously defined as curing the prisoner[,] it was now set to be the reducing of harm imposed on the prisoner by the punishment and promoting the prisoners’ relocation in society’ (our italics). And a Norwegian advert for those wanting to join the prison service specified that ‘in this job it is important that you are a responsible person and that you have the desire and ability to solve human problems in a difficult but rewarding environment. You need to be able to deal with a two-sided task: first, to undertake the deprivation of freedom that has been given by society; and secondly, to help the inmates to solve a range of problems that occur as a result of their stay in prison’ (VG, 20 June 1986: 40, our italics).

Moreover, continuing high levels of prison escapes and disturbances were not allowed to interrupt this pattern of development. There were more than 1,000 escapes in Sweden in 1973, while, in Norway, escapes doubled from 86 in 1980 to 170 in 1982. Prison disturbances had also become more dramatic, with hostage-taking incidents in Norway and rioting in Sweden in the 1980s. The escalation of these incidents, involving property destruction and personal violence, is perhaps a reflection of the transformation of the prison populations of these societies then taking place, with considerably more drug and organized crime inmates serving longer sentences. It is also likely to be a reflection of how the broader social changes – the erosion of trust and interdependencies that homogeneity and guarantees of security had made possible – now make such conduct more of a likelihood than in the past. However, in just the same way that the solution to social problems outside the prison was seen as more welfare, rather than less, so problems within the prison were seen as demanding more rehabilitation and less security: ‘instead of giving up on tough prisoners, further efforts at reintegration are made. The staff are trying to reduce the harmful effects of prison by extended use of furloughs, increase probation staff and the education of prison officers to ensure a service delivery marked by knowledge and compassion’ (Report of the [Swedish] Prison and Probation Board, 1977: 9). In Norway, the response to escapes from the Ministry of Justice (Prison Administration/Department of Justice, 1986: 71, our italics) was that ‘society shies away from methods that would completely incapacitate those people who have committed the most serious and heinous acts. These people will be released after a certain number of years. This we must live with in a society that strives for a humane criminal justice policy.’

Meanwhile, the Nordic press not only put little pressure on the authorities to intensify security after escapes, but its reports on other features of prison life also continued to demonstrate the very different way of thinking about punishment in these societies. For example, there was a meeting between 15 Moderaterna politicians and 70 prisoners at Österaker Prison: ‘[they] met over coffee and cakes. The aim of the visit was to show that Moderaterna were not advocates for a harsh criminal justice policy’ (Svenska Dagbladet, 26 January 1976: 6). Despite the way in which the prison has become such a central feature of political discourse in the Anglophone societies, very few of their politicians would ever consider visiting one, let alone try to explain their policies to inmates.⁴⁵ On another occasion, at the end of a rooftop demonstration, prisoners were allowed to give a press conference – something unimaginable in the Anglophone societies, where prisoners, as non-citizens, have no access to such self-promotion: ‘prisoners were pleased with the opportunity to address the press and voice their complaints’ (Svenska Dagbladet, 21 May 1976: 8). The much greater freedom of movement that inmates were allowed was also in stark contrast to the Anglophone prisons. Thus, in Norway, under the headline ‘Jogging Robber at Seminar’, VG(18 January 1986: 14)reported that ‘he will attend a KROM seminar … and talk about his experiences of being in prison, without yet having a right to furlough. The former policeman had been sentenced to seven years in prison for four armed robberies in 1984 … the Associate Prison Director at Ila prison will accompany him. He says that “I trust him and do not rate him as an escape risk. The purpose of a prison sentence is also to rehabilitate the inmate and give them social training so they can return to society”.’ And, while Anglophone prison officials are not allowed to write to the press, it had become permissible for Nordic prison inmates to do so: under the headline ‘Letter From Despairing Inmate’, a prisoner writes to ask, ‘Can someone get me a job?’ (VG, 30 June 1976: 14).⁴⁶

It has only been in the early twenty-first century that there has been any significant interruption to this pattern of normalization – specifically, the sudden intensification of security in Swedish closed prisons following the escapes of 2004 (see p. 22). The reaction to them was dramatically different from what it had been to previous escapes and violent incidents. In 1996, after riots at Tidaholm, the Director of Prisons presented the familiar argument that ‘the recipe for increased security is not tougher measures – but a rather more humane and flexible system’ (Svenska Dagbladet, 23 May 1996: 6, our italics). Accordingly, ‘common wake up calls, showering times, and strictly scheduled days will disappear. Recreation activities such as sport will be allowed during the day. Visitors are allowed during weekdays and relatives who have a long way to travel are offered stay overs in special visitation flats’ (idem). The different reaction in 2004, however, demonstratively indicates that escapes of this magnitude can no longer be ignored, nor will they provide the opportunity for further liberalizations of prison life. Instead, they now constitute risks that can no longer be tolerated and the authorities will be held to account for endangering public safety.⁴⁷ The social fabric of ‘the new Sweden’ is more taut and fragile than the previous one, less able to absorb disorder and disharmony, more likely to provoke it, instead, and needing to respond to it with more overt demonstrations of state authority. Indeed, in the aftermath of these escapes, there was an attack on the erstwhile ‘exceptional’ Swedish prison conditions in A Safer Sweden, a policy document authored by Moderaterna and their political allies (Alliance for Sweden Political Group, 2006). However, rather than this marking the beginning of some great retreat from the prison regimes that these societies have become known for, these proposals came to nothing. Facilities, ‘benefits’ and rights are still distributed across the vast majority of the prison population, irrespective of the prisoner’s status. Furthermore, the report, written by an alliance of right of centre parties in the highly charged aftermath of the 2004 escapes and murders, had, anyway, argued for more self-care arrangements in the prisons, thereby giving inmates more autonomy, along with improved visiting facilities for their families. There was no mention of the need for ‘austerity’ or ‘spartan conditions’.

These differences are also reflected in the ‘Mission Statements’ of the Nordic prison systems. Rather than the attention given to ‘public protection’ in the corresponding Anglophone documents, the emphasis continues to be on the rehabilitation and réintégration of the prisoner. That for Sweden states that ‘the purpose of prison is to prepare prisoners for a return to society and to counteract any adverse effects of imprisonment’ ([Report of the] Prison and Probation Board, 2010: 3, our italics); that for Norway notes that ‘punishment shall be served in a manner which secures society and gives the sentenced prisoner the best possible opportunities for a life without crime’ (Report of the Prison Administration Board, 2006: 1, our italics); that for Finland is ‘to take care of security in society by maintaining a legal and safe system of enforcement of sentences [and] to contribute to the reducing of recidivism and to the breaking of the cycle of social exclusion which is known to reproduce crime’ (Annual Report of the Finnish Prison and Probation Services, 2002: 4). Nonetheless, the implications of the changes taking place in the closed Swedish prisons should not be underestimated. The new emphasis on security, along with the high numbers of non-Swedish prisoners (27.6 per cent in 2011), many of whom will be deported on completion of their sentence, and the normalization of body searches and urine samples to check for drugs (Hörnqvist, 2010), may eventually undermine the ‘exceptional qualities’ ofthis part of its prison estate.

This, though, does not mean an end to the exceptional prison conditions – by comparison with those in the Anglophone countries – in the Nordic region as a whole. These qualities are still firmly embedded in the Finnish and Norwegian prisons. In Finland, after eight escapes from closed institutions in 2008, the Report of the Criminal Sanctions Field (2008: 14) merely noted that ‘this means that 1.4 prisoners per 100,000 prison days escaped from prison in 2008. At the end of the year, three prisoners were at large. There is no single reason for the … escapes. In most cases, the prisoner had just taken advantage of the situation. ‘ Here, then, the authorities were still sufficiently powerful to be able to define down such events – this is prison, its inmates try to escape, this is what happens here, there is nothing unusual or untoward about this. Meanwhile, although the designs for a new prison in Finland had a high security unit, those for the routine wings in this closed institution included ‘an open kitchen area, a common room and a sauna. All in all, 85 of the 263 cells are designed for two prisoners and the rest are single cells … the size of the cells is 12 square meters. In general, these are equipped with a toilet, shower, television, radio, DVD player, and speech connection to the ward control room’ (idem: 5). In Norway, there are clearly defined limits to the extent that security will be allowed to dominate prison policy: ‘public safety is a paramount objective of the government’s crime policy … security work in the Norwegian Correctional Services shall not, however, mean an unnecessary high level of security for all inmates and convicted persons. It is only a minority that constitute a threat to public or individual safety’ (Ministry of Justice and the Police, 2008: 4, our italics).

Indeed, it is as if Norway has become the new standard bearer in the development of prisons that represent the furthest departures from the way in which it has been possible to think about imprisonment in the Anglophone societies. Halden prison thus received a number of awards for interior design and innovation. The jury nomination for the innovation award stated that ‘[this] is the first prison in Norway that does not have bars in front of the windows, but rooms with lots of light, space and good views out over green areas. There are different colours for different areas in the buildings … Emphasis has been placed on the movement between different buildings and functions, so to reflect the difference between home, school, and work place … The project touches very important aspects of how we design our society. The way this has been resolved touches us and makes us reflect on our common values’ (Norwegian Design Council, 2011: 1).

Figure 6.1 Cell in Halden prison, Norway. Photograph: Statsbygg, Norway

Figure 6.2 Cell in one of New Zealand?s newest prisons. Photograph: John Pratt

Figure 6.3 Visiting room in New Zealand’s newest prison. Note that the tables and chairs are bolted to the floor for ‘security reasons’. Prisoners wearing red Guantanomo Bay-style clothing, have to sit in the light-coloured chairs where they are observed at all times by prison officers in attendance. Photograph: John Pratt

Figure 6.4 Visitation house inside prison grounds, Halden prison, Norway. Photograph: Statsbygg, Norway

Rather than have them hidden away in disgust and built with the insistence that inmates will find no luxuries and enjoy no privileges when sent there, here was a society in which it was thought that penal institutions should neither be shameful buildings, nor should they be buildings intended to emphasize deprivation and misery – leave all that to the Anglophone countries saturated as they already are with punishment: let them advertize themselves to the world about the kinds of societies they have become, with their prisons made out of shipping containers and the latest initiatives they have conjured in the hope of locking up more people for less money.

Instead, there is pride in the very fact that prisons are not built in this fashion, amidst recognition that the Halden design is a signifier of Norwegian society as a whole, not just that particular institution; it is a signifier of its longstanding inclusionary values and the way in which these have made it possible to think about punishment in this country and in this region.

***

When punishment is spoken about, it is usually by reference to crime rates and which are then the most ‘effective’ types of sanction – matters such as these, it is thought, control its level and intensity. This is mistaken. Instead, deeply embedded cultural values that have come into existence over the last 200 years or so have provided the Nordic and the Anglophone societies with ways of thinking about punishment that are now represented in the penal exceptionalism of the former and the penal excesses of the latter. The Nordic values emerged out of their particular early nineteenth century social arrangements, whereby the state was able to assume a ‘saviour’ role in this region. It provided longed-for guarantees of security, thereby generating high levels of trust and prestige in its own organizations of government. These arrangements also necessitated strong and extensive interdependencies and reciprocities between individuals, then also facilitated by the extreme homogeneity of these societies that encouraged mutual identification and solidarity. In addition, without being prepared to aid and assist their neighbours, each individual’s well-being would be put at risk. In this way, the strength and vitality of the community at large assumed a greater importance than those of the particular individuals living within it. At the same time, Lutheranism gave a necessity to educational achievement, and educational qualifications became emblems of success in these otherwise egalitarian societies. The end product was the values of moderation, restraint and inclusion that shaped both everyday interaction and the state’s programmes of governance, presided over by civil servants and directed by experts. As regards punishment, this meant that corporeal sanctions could be very quickly dispensed within the modern period; and prison was intended to bring about the reintegration of its inmates – initially through the provision of ‘soul care’, then psycho-therapeutic treatment followed by the normalization of prison life itself- in a bid to reduce, as much as possible, the distinctions and divisions between prisoners and the rest of society.

There was a price to be paid, though, for these values. Indeed, the informal controls that policed and regulated moderation and conformity became too high a price for many: poverty was not the only reason for mass emigration from these societies during the nineteenth and early twentieth centuries (Barton, 1976); and the extensive formal controls that allowed the state to correct and cure departures from the norm, as well as the most serious law-breaking, produced their own injustices. Nonetheless, what has ultimately been purchased are the low rates of imprisonment of this region and, by comparison with Anglophone countries at least, remarkably humane and liberal prison conditions. In contrast, the values of the Anglophone countries came from England, of course, in the first instance. Great store was set on individual success – personal wealth, land and property ownership – rather than community vitality and strength. In this society, the state was seen more as an enemy than a saviour, as if it only impeded the route to success, providing unfair props for those who would never have been able to complete this journey anyway, while simultaneously blocking the route of potential champions. In a society with such extensive social divisions and exclusionary barriers, there could be little of the interdependencies and reciprocities, little of the solidarity and trust that marked the Nordic countries. Accordingly, rather than endowing the state with the positive, preventative, powers of normalization it came to exercise in the Nordic countries, it was thought that it should have mainly reactive, negative powers of punishment – powers that should be used almost exclusively on those kept behind these divisions and barriers.

Much the same set of values came to be adapted in Australia and New Zealand, albeit mediated through their own particular colonial histories. Thus, while these gave much more emphasis to egalitarianism, this came to mean equality of opportunity that would then allow those who made the most of this to enjoy the same kinds of successes as in England; it did not mean everyone receiving very similar rewards, as in the Nordic countries. Furthermore, the ‘fair go’ reputation that Australia andNew Zealand did come to be known for has, since the post-1970s restructuring, been overwhelmed by a much more aggressive individualism on the one hand, and an increasing fear and intolerance of outsiders, of those who are different due to race or social background, on the other. In addition, while the state had a more legitimate place in infrastructural development in these two societies, there was still a suspicion of anything more than this, and a lack of trust in its officials. And, in all three Anglophone societies, there has been a strong anti-intellectualism running through their histories to the present day. Thus, in New Zealand, the British broadcaster and scientist Lord Robert Winston observed that ‘the culture of New Zealanders undervalues thinkers and idolizes sports stars … In New Zealand, being an intellectual is slightly disadvantageous and is often seen by the press as being something … not to be celebrated’ (as reported in the New Zealand Herald, 14 December 2009: A6).

The end product of these particular arrangements has been a set of values where division, intolerance and exclusion have been stronger than moderation, restraint and inclusion – with its own costs, in terms of countless thousands of lives unfulfilled and burdens unfairly shared. In terms of punishment, then great symbolism was attached to the death penalty, amidst fears of social collapse should it be abolished. Alongside this, there was the particularly repressive nature of nineteenth century imprisonment. There were also the limitations of the liberal welfare sanction in bringing about more fundamental changes to prison life, then followed by the outlandish growth in prison numbers, and the new intensity of the prison experience in these societies, as policy was influenced more and more by ‘public opinion’ and sensational one-off cases rather than research. Of course, though, these values are not set in stone and individual differences in punishment will occur in these clusters depending on their ‘local centrifugal forces’ (Elias, 1939/1979) – that is, the extent and intensity of their fundamental cultural characteristics and the social arrangements underpinning them.

Nonetheless, the ability of these values to shape the way in which it is possible to think about punishment in these different types of modern society was seen in the responses to two major crime incidents that occurred in 2011 in England and Norway. In August, in the former, mass rioting, involving property destruction to the value of around £100,000,000, assaults and murder took place across the country. Indeed, such scenes have taken place on a fairly regular basis since the early 1980s when the consequences of the restructuring being engineered by the first Thatcher government began to take effect, de industrializing and making redundant large sections of British society. At that time, the rioters were met with punishment, but also with gestures of reconciliation and government aid.⁴⁸ Such gestures, though, have been long since abandoned as the divisions, distances and distrust in this society have become still more firmly set in place. On this latest occasion, the government decided that there was no need for any further formal enquiries (what happened should no longer come as a shock or even a surprise, here, anyway): the rioting was caused by ‘sheer criminality’ claimed the Home Secretary (London Evening Standard, 8 August 2011: 1 ). For Prime Minister David Cameron, the riots were a sign of a ‘broken society’ in ‘moral collapse’ (BBC News, 15 August, 2011). The way his government chose to restore this broken society, though, was to continue to withdraw the already limited forms of welfare assistance and other social measures. In so doing, the weakness of the authority of the central state, which was reflected in both the riots themselves and in the formation of disparate vigilante groups during them, some to protect property, others to make racial attacks, was further weakened by the government’s own responses. Evidence that the rioting was caused by extensive social deprivation was ignored.⁴⁹ Instead, it was to be met with a ‘war on gangs’ (idem), amidst proposals that those involved in the rioting should lose social security benefits as well as face penal sanctions; and that the families of looters should be evicted from state housing properties.⁵⁰ Once again, it is as if the state in this society only knows how to use its powers negatively: more divisions, more punishment, more exclusions. Six months after the riots, almost 1,000 people had been sent to prison as a result of their involvement in these incidents, with the average prison sentence of 14.2 months being four times the average for similar offences in 2010.⁵¹ One received a six-month sentence for theft of a case of water (£3 in value) from a supermarket. In another case, a Blackberry message was sent, inviting its recipients to ‘kick off’ in another northern city: nobody did so, there was no riot, and the sender was sentenced to 39 months for inciting the riot that never happened.⁵²

However, the Norwegian reaction to the mass murders (77)⁵³ committed by Anders Breivik in Oslo and on the island of Utøya in July was very different. When apprehended, Breivik claimed to be ‘saving Norway’ from the perils of mass immigration. Three days afterwards, there was a march and memorial meeting outside the City Hall in Oslo, with around 150,000 to 200,000 of the city’s population of 600,000 in attendance. This, though, was not a meeting where speakers demanded savage recrimination from the state, on peril of vigilantism if this was not forthcoming. There were no demands for the death penalty nor, at that time, that ‘life should mean life’. Instead, the emphasis was on reaffirming solidarity, democracy and unity. The citizens held hands and carried roses. Speaking to the crowds, Crown Prince Haakon declared that ‘tonight the streets are filled with love’. Prime Minister Jens Stoltenberg, at the same event, reaffirmed Norway’s unwavering commitment to social democratic values: ‘by taking part [inthe march], you are saying a resounding “yes” to democracy … a march for democracy, a march for tolerance, a march for unity … Evil can kill a person but never conquer a people’ (BBC News, 26 July 2011). Similarly, Nils Christie (2011, our italics) has since written that ‘what has happened is a catastrophe that can only be met by holding on to the foundational values of Norwegian society. If we abandon those, then Breivik has achieved something… Of course a society has to react, otherwise there would be no society. But with most terrible crimes, we also see the helplessness of punishment clearer than at other times.’

These ‘foundational values’ of Norwegian society, similar to the foundational values of the other Nordic countries, had become weaker since the 1970s. Now, though, when subjected to such a profound test, they reasserted themselves. They may even have been strengthened by this catastrophe.⁵⁴ And what they show in such a stark light are the differences in reacting to crime and to thinking about punishment that exist between these two types of societies.