Translated material
Prison trial
Print Thomas Mathiesen
Abstract*
Thomas Mathiesen is professor of sociology and law at the University of Oslo. His work was published in Norway in 1987. Mathiesen's thorough study, presenting the prison system in its various aspects, is recognized as a classic. Very quickly translations were made into many European languages - Danish, Swedish, German, Italian. The book first appeared in English in 1990 and has already gone through two reprints. The scientist speaks mainly about the state of affairs that has developed in the European penal system. However, the trends he describes can also be traced on other continents - the book repeatedly mentions the USA, China and other countries.
Public Anxiety Barometer
Since the 70s of the 20th century, Europe and the United States have seen a rapid increase in the number of prisoners. So, if in 1970 there were 180 prisoners per 100 thousand Americans, then by 1985 this figure reached 320. In England and Wales over the same period, the number of prisoners increased from 80 to 100 people per 100 thousand citizens, in Italy - from 40 to 70. More recent data inspires the scientist with even less optimism: at the end of the century, the prison system continued to expand. The Russian reader will pay attention to the fact that in 1998 our country ranked first in the world in terms of the number of prisoners. For every 100 thousand Russian citizens, there were 685 people serving prison sentences1. The second place was taken by the USA - 645 people (for comparison: in Finland - 55, in Sweden - 60, in England - 125, in Holland - 85, in Germany - 90, in Canada - 115). In total, there were more than 8 million prisoners behind bars in the world in 1998, of which 1.7 million were in the USA, 1.4 million in China and 1 million in Russia.
Not surprisingly, this process led to overcrowding of prisons and, in many cases, to appalling conditions for prisoners. A campaign to build new prisons began. Mathiesen notes that the situation has not been improved by attempts in many European countries to change the entire penal system, making it more liberal.
Trends at the end of the century, Mathiesen believes, indicate that prison can no longer remain the only instrument of punishment in modern society.
Why did the number of convicts begin to increase sharply in the world in the 1970s? There is hardly a clear answer to this question. The author considers three possible explanations. The first is obvious: more crimes have begun to be committed in the world. However, there are at least two objections to this interpretation. Firstly, there are examples (Scandinavian countries, Germany) of an inverse correlation between crime trends and the number of prisoners. Secondly, and this is significant, we cannot confidently say that the number of crimes in the modern world is growing. In general, Mathisen notes, one cannot discount the fact that the principle of mirror correspondence between two indicators - the number of crimes and the number of prisoners - is the result of the conscious social policy of the state and is not in itself immutable.
Two other considerations look more convincing. The expansion of the prison system is associated with a new categorization of crime, that is, with the emergence of new types of social behavior interpreted by the state as criminal. In the 70s of the 20th century, drugs began to spread everywhere in Europe (especially in Holland and Norway). The authorities of many European countries have actively combated this phenomenon. An illustrative example of the state “criminalization” of drug addiction was, for example, a 1982 law passed in Norway, according to which drug use was transferred from the category of minor offenses to the level of criminal offenses. In the same Norway, the maximum penalty for drug use has increased over several years from 10-15 to 21 years in prison. There is no doubt that the number of drugs in the country and related offenses has constantly increased, but it is equally certain that if it were not for the active state “criminalization” of this type of act and the sharp rise in the upper limit of the terms of imprisonment determined by the court, there would not have been a blockage in the country prison system, as happened in the 80s.
The increase in terms of imprisonment for many types of crimes, caused by the tightening of criminal legislation, turned out to be so widespread and widespread in the 70-80s (the United States was one of the leaders in this area) that Mathisen identifies this phenomenon as a separate reason for the growth of the prison population .
Before embarking on a detailed critical analysis of the prison system that exists today, the author briefly describes the main stages of its historical development and their qualitative features. Prisons first began to spread in Europe in the late 16th and early 17th centuries. At that time, imprisonment did not replace physical punishment, but only created the conditions for it. Then, as a result of the collapse of feudal relations, a huge number of beggars and vagabonds appeared on the streets of European cities, greatly complicating the life of urban society. The only empirically effective form of control over this mass turned out to be the concentration of restless people in correctional homes and other similar institutions. In the age of economic and philosophical mercantilism, all these establishments were institutionalized as places of forced labor. Which one was dictated by demand. So, in France it was mainly the production of knitwear, in the Netherlands it was woodworking, etc.
The second stage occurred at the end of the 18th - beginning of the 19th century, a time of increasing crime in the impoverished environment of the emerging working class. The need to manage a new contingent of outcasts from society dictated new tasks. The faceless mass of prisoners was differentiated according to professional and other characteristics, physical punishment was banished from use: it became unsuitable for maintaining discipline in assembly-line production, which prevailed at that time in both the prison and “free” economies.
At present, Mathisen believes, we can talk about the onset of the third stage in the evolution of the penitentiary system. The distinctive features of the two previous phases were a noticeable increase in the number of prisoners and the intensification of prison construction. Both of these signs are evident now, but the core feature of each new stage, Mathisen believes, is a surge in demand from the population for new disciplinary measures in relation to certain groups and social segments. Legislators and courts can be considered as barometers that determine the level of anxiety in society. Nowadays, the author continues, these barometers are literally going off scale. Political conflicts, economic crises, acute migration problems, drug addiction, irresponsible behavior of the mass media - the author, apparently a left-wing thinker, lists all these among the factors that aggravate public anxiety and create a demand for tightening social control, and in fact - for expansion prison systems.
As he embarks on a detailed analysis and deconstruction of publicly supported prison apologetics, Mathiesen makes a special reservation regarding the method of presentation of the material in his book: in the future, he will rely on the power of rational argument, believing that reasonable arguments and convincing evidence are more likely to achieve the author’s desired political result than any emotional effects. And although too much in modern European society and modern social policy resists the voice of reason, the author, a resident of a peripheral European country where, in his opinion, “the argument still retains some strength,” hopes to influence broad public opinion with his book.
Mathiesen builds his work based on the structure of classical penitentiary theory, which divides the entire sphere of punishment into two parts: measures to protect society and those that carry out retribution. Within the first group, we can talk about individual and general prevention. In the first case, we mean methods of crime prevention addressed to former criminals and persons serving sentences. The second is crime prevention in a non-criminal environment. As for retribution, the corresponding theoretical constructs that determine the measure of punishment for various criminal acts are based on the concept of justice, the classic expression of which was given by Kant: “in the absence of justice, the existence of man on earth loses all value.” It is impossible not to mention the biblical: “an eye for an eye, a tooth for a tooth.”
The initial chapters of the book are devoted to issues of private and general prevention.
The myth of re-education
One of the key concepts on which the ideology of private prevention is based is “rehabilitation”. This word itself means “restoration”, “return to original properties” and in European languages it is applicable not only to political, medical, legal and other spheres, but can also mean, for example, the return to life of an old building. The rehabilitation of a criminal is fundamentally different from all other types of restoration in that in this case the source of the harm caused and then the regenerating force is ultimately the individual himself, no matter what society thinks about this, which is accustomed to attributing successful cases of “re-education” to state social services. programs.
How did it happen that the idea of rehabilitation from the very beginning became associated with the place of detention? The connecting link here was the category of time, explains Mathiesen. Back in the 17th century, at the first stage of the existence of the prison system, various methods of physical coercion, coupled with difficulty, were interpreted as a means of gradually correcting “moral defects.” One of the first institutions of this kind, the Parisian shelter Hopital general, was described by Foucault. A prisoner who had worked for a certain time in forced conditions and thereby proved his ability to work could be released - now he seemed to re-sign a certain agreement on a moral existence worthy of a person. Particular attention in such institutions was paid to young people who, in ascetic conditions - separately boys and girls - divided their time between physical labor and reading soul-saving books. The same goals were pursued by the correctional houses in Amsterdam. One document from 1602 stated that “young men who find themselves on the wrong path that leads straight to the gallows may yet be saved by honest work and a reverent fear of God.” [1] . In Norway, where the first houses of correction appeared 100 years later than in Central Europe, they were originally conceived as educational institutions for offenders [2] . The terminology is also interesting: these houses were called charitable institutions, and the prisoners were called poor people. An integral feature of all these rehabilitation strategies, Mathisen emphasizes, was the reliance on the potential of time.
Analyzing the ideological foundation of the rehabilitation myth, Mathiesen identifies four categories that have remained fundamentally unchanged throughout the four centuries of the existence of the correctional system. These are work, training, moral preaching and discipline. It is significant that none of these means of influence, according to Mathisen, ever achieved their goal, which completely discredits the very idea of prison rehabilitation. It is most convenient, he believes, to make a comparison using the example of the Amsterdam correctional houses, built back in 1596, because, in his opinion, they became the model for later punitive institutions throughout Europe. The scientist describes in detail their internal structure - everything here was adapted for physical work. The design of the premises was also reminiscent of this - on the doors of the front door the prisoners were greeted by a bas-relief image of people transporting logs and working on wood.
Ideas about the purpose of these institutions varied. In 1567 (even before the opening of the first prisons in the country), the Dutch writer and philologist Dick W. Kornhert wrote about the need to seriously combat widespread vagrancy, which was causing harm to the state. In his opinion, in order to change the situation, tramps must be forced to work for the state. People as such were of little interest to Kornhert, who was entirely focused on the idea of the economic benefits that could be derived from public works. However, already in 1589 a certain Jan Jl. Spiegel expressed the opinion that the purpose of imprisonment is to re-educate criminals, who should become healthy people, moderate in food, fearing God and hardworking. And for this, each prisoner must do the work that suits him best, including the level of difficulty. In his opinion, the range of work in captivity should be the same as in freedom. Spiegel wrote that on the basis of prisons it was possible to create manufactories for the production of shoes, wallets, gloves, bags, etc. However, this idea, which was initially received with great enthusiasm, turned out to be unviable. Prisoners continued to engage mainly in woodworking: this work brought more profit, and correctional institutions had to pay for themselves. Spiegel’s other important innovation did not take root: a wage system based on written contracts with prisoners.
In general, we can conclude that it was not possible to copy the order and structure of the “free” labor process in places of detention. In modern prisons, mostly low-skilled, compulsory and often meaningless labor is practiced, while up to 15% of prisoners remain without work.
Attempts to introduce systematic training in correctional institutions also failed. Modern heads of penitentiary structures, who introduce school programs in prisons, declaring that they are thereby turning a new page in history, forget that this page was first turned back in the 17th century. In the then Amsterdam correctional houses, a strict training procedure was also established using books specially published for this purpose. Soon, however, a fatal conflict emerged between the pedagogical idea and safety requirements. Teachers and preachers in the classroom were replaced by overseers, but, as a contemporary writes, “it was dangerous to remain alone with a horde of lawless and unbridled people.” Prisoners began to be locked in cells, forcing them to read textbooks on their own; for the illiterate, a reader was assigned from among their comrades. And this is far from the only case when the school retreated under the onslaught of prison routine and prison traditions. In today's prisons the picture is essentially the same, although it seems more complex. The demands of prison discipline and routine are crowding out the school: the movement of prisoners between prisons, cells, blocks destroys the educational process, various punishments remove students from the classroom, classrooms in most cases are squalid and dysfunctional, teachers consider cooperation with the correctional system too burdensome. It cannot be otherwise, writes Mathiesen: in prison, discipline and safety will always take precedence over the interests of education. Similar difficulties arise when trying to build a system of moral and religious care for prisoners.
Great importance was attached to discipline in the old Dutch prisons. This is evidenced by carefully developed rules for keeping prisoners. Order and obedience were introduced by the most cruel, sometimes torture, methods. Subsequently, the rules were finalized; they included, so to speak, a moral component. They began to punish for blasphemy, swearing, gambling, and even betting. But the most serious offense has always been considered refusal to work.
In the final part of the historical sketch of the idea of rehabilitation, Mathiesen states that its four components - work, school, religious piety and discipline (the bourgeois Protestant origin of which is obvious to anyone familiar with the works of M. Weber) - have always existed. However, the ratio of the “weights” of these components has changed historically and depended - this is the author’s observation - primarily on the needs of the penitentiary system, generally dictated by external conditions. Thus, in the 17th century, the need for “self-sufficiency” emasculated the apparently fruitful idea of diversifying forced labor, leaving only hard labor; in our time, when the issue of profit is not so acute for prisons, while, on the one hand, the prestige of education has risen, on the other, the number of strikes in prisons, riots, various protest actions has increased, prisons are flooded with drugs - they have come to the fore problems of strict discipline and training. Be that as it may, the request for one or another relationship of structure-forming factors does not in any way correlate with the needs of prisoners and is always formed behind prison walls - in the public political sphere.
Prison rehabilitation has always been a myth, Mathiesen summarizes the available statistics and numerous studies on this topic. Today, no one believes that prison can have a positive impact on criminals. It was found that the degree of moral influence on prisoners does not affect the rate of recidivism after their release [3] . Moreover, as many scientists argue, being in prison has a negative impact on a person and often provokes him to re-commit a crime [4] . In the 1960s, works began to appear devoted to the systematic study of a special prison culture that negatively affected the psyche of people serving sentences [5] .
They are scared, but they are not afraid
Another argument that is usually put forward in defense of prison is that it performs a general preventive role, that is, by its very existence it deters citizens from committing crimes. It is believed that by punishing criminals, the state sends a deterrent signal to the population. The strength of this public belief is such that no matter how the criminal situation changes, it is always interpreted in favor of this thesis. For example, if the crime rate falls, this fact is taken as evidence of the effectiveness of punitive measures. If crime increases, then society decides that legislators and judges are not strict enough, and punishments need to be toughened. In all cases, the preventive effect of punishment is not in doubt.
Meanwhile, there are systematic studies in which this problem is analyzed from two points of view. After all, the hypothetical general preventive effect can, in principle, be determined by two properties of punishment: its severity and inevitability. In the work of G. Klette, the results of the liberalization of the law on drunk driving carried out in the Scandinavian countries were analyzed. It turned out that although this measure did not improve the situation on the roads, it did not increase the number of accidents [6] . According to other studies, the threat of imprisonment and the severity of punishment have no effect on the behavior of criminals. The preventive effect is achieved only in the area of minor offenses committed by teenagers, such as riding a hare on public transport, driving without a license, petty shoplifting, etc. [7]
As for the threat of being detained and deprived of liberty itself, here too it was not possible to collect any significant evidence that it in any way influences the behavior of potential offenders.
Punishment can also be viewed from a communicative point of view - as a kind of complex message from the state to citizens, carrying information of a preventive, moral, deterrent nature, etc. This approach is also common in modern criminal sociology, but Mathisen seems dubious. He attributes the fuzzy and unreliable nature of the results of existing research on this topic not to the imperfections of the author's scientific methods, as is customary, but to the irrational properties of reality itself. Each message must be sent in a single system of characters for the sender and the correspondent, otherwise the information will be misunderstood. However, society is not a transparent semiotic environment. Potential criminals who receive certain signals from the justice system are, for the most part, unable to interpret them correctly, since these signals do not in any way affect aspects of life that are significant to them: difficulties in the family, unemployment, low level of education, addiction to alcohol, etc. It’s as if they are speaking to the state in different languages.
Specific examples also help Mathisen debunk the myth of preventive measures supposedly inherent in prison punishment. So, he talks about an episode from the history of Denmark when the country was left without a police force. During the Second World War, the entire police force of this country was arrested by the Germans. After this event, one could have expected a sharp jump in crime, but nothing of the kind happened.
The preventive strategy is also very vulnerable from a moral point of view. Do we have the right to deprive a person of freedom as a lesson to others? In addition, a person who is, for the most part, socially disadvantaged - there is a clear pattern: the most severe and lengthy punishments fall on the lot of the lower strata of the population [8] . The modern punitive system, which carefully avoids any appeal to the social status of the citizen and declares the equality of all before the law, in reality, according to Mathisen, has long acquired a class character. Wealthy people have more opportunities to give their dubious acts a decent appearance, avoid punishment, and resolve problems with the law without unnecessary fuss. It turns out that by depriving the poor of freedom, we sacrifice them in order to leave the rest in a narrower circle of their own kind.
So, Mathisen concludes, the idea of general prevention has proven untenable both from the point of view of efficiency and from the point of view of ethics and therefore cannot serve as a justification for a punitive prison system.
Paying with time
Having completed a detailed analysis of the theory of protecting society, based on a preventive approach, the author turns to consider the second fundamental element of the penitentiary doctrine - the concept of justice. The very idea of justice was born in ancient times and in the legal aspect was based on the idea of proportionality: fair retribution (retribution) must exactly correspond to the damage caused or the moral guilt of the defendant. It received its modern legal form during the Enlightenment and has not undergone major semantic changes. Since physical punishment was replaced by imprisonment, the main “currency” with which a criminal has to pay for his sins has become his time of life. At the same time, punitive “accounting” proceeds from two weakly reflected axioms: I) time is a transpersonal objective substance that can be measured using universal units: minutes, hours, days, years, etc.; 2) time has the rational property of additivity, so two five-year terms are equal to one ten-year term.
Both of these assumptions, considered in relation to the prison system, turn out to be untenable. Time spent in custody is in fact neither an objective nor a transpersonal category. It has an extremely large moral component, so no generally valid agreement about its value can be concluded. It is no coincidence that in different countries the same type of crimes are punished with different terms and no convergence is observed. And further, no correspondence between the amount of guilt and time periods can be established: when it comes to pain or the use of force, no one can say that “this” pain is two or three times greater than “that”. The abstract mathematical interpretation of time deprives it of content and thereby abstracts the very concept of justice from real life.
A future without prisons
The prison was a complete fiasco, the scientist concludes. During the investigation of her “case,” not a single undisputed theory remained that could justify her existence. Meanwhile, this conservative institution does not seem to be giving up its position. Mathiesen explains the persistence of the prison ideology, which permeates all pores of society, by its four main properties, or social functions. Firstly, prison helps to remove the unproductive layer of the population from capitalist society and keep it under control; secondly, it is a powerful regulator of power relations: people isolated from society are deprived of the opportunity to influence the processes taking place in it; thirdly, the prison machine grinds mainly a socially disadvantaged criminal contingent, distracts public attention from the offenses committed by those in power, and finally, fourthly, the prison performs a symbolic function: it marks its charges with black paint and thanks to this, the citizens who remain free perceive themselves whiter than they are on actually.
What to do with the prison in the future? On the one hand, all of the above arguments require an immediate reduction in the number of prisons, and possibly their complete abolition. However, in practice everything turns out to be far from so simple. Since the prison has such deep ideological roots, the attack on it must also be carried out by ideological means. Mathiesen believes it should start with countries such as Norway, Sweden and the UK, where social democracy is most developed and where the left is strongest. According to him, the practice of imprisonment makes the rich richer and the poor poorer, and this contradicts the basic tenets of leftist ideology. Already, the left is advocating a reorganization of the police, which, in their opinion, should transform from a militarized organization into a democratic institution of public control.
The scientist finds another factor that allows us to be optimistic about the future of the punishment system in its history. Over time, many coercive institutions have radically changed or disappeared altogether. Before the abolition of slavery, few believed that it would ever cease to exist. At one time, the practice of witch hunting seemed eternal, and even more so the Inquisition itself.
Mathisen is convinced that, in contrast to the existing state system of punishment, it is necessary to develop a new social ideology. Large-scale social work with offenders is needed, based on a thorough study of the relationship between criminal behavior, social status and professional activity of a person. Much needs to be done for the victims. For example, provide monetary compensation for some types of crimes. Due to the poverty of most criminals, these payments must be borne by the state.
All these changes will require considerable material costs, but they will be justified, especially since the prisons themselves cost a lot of money.
Elena Leinson
---------------------
* Mathiesen Thomas. Prison on Trial. Winchester: Waterside Press, 2006.
1 According to the latest data (March 2008), there are about 900 thousand people in Russian prisons, and this number continues to grow [ http://www.newsru.corn/russia/12mar2008/900000zeka.html ]. Meanwhile, Russia lost first place in the world in terms of the ratio of the number of prisoners to the total population to the United States. — Note. E. Leenson.
[2] Quoted from: Sellin, Thorsten. Pioneering in Penology. The Amsterdam Houses of Correction in the Sixteenth and Seventeenth Centuries. Philadelphia: University of Pennsylvania Press, 1944. - Note hereinafter. T. Mathisena.
[3] References to the manufacture of manufacturers of manuscripts: Bugge, Kjeld. The full grant of: liberty in the !8. Circle. The story of the prison system in the northern regions of the 18th century. Oslo: University Press, 1969.
[4] Cм.: Martinson, Robert. “What works? Questions and answers about prison reform”, The Public Interest: 22-54, 1974.
[5] Cм., p.: Clemmer, Donald. The Prison Community. New York : Holt , Rinehart and Winston , 1940 .
[6] Cм., напр.: Sykes, Gresham M. The Society of Captives. A Study of a Maximum Security Prison. Princeton University Press, 1958; Sykes, Gresham M. and Messinger, Sheldon L. “The inmate social system”, in Theoretical Studies in Social Organization of the Prison. New York: Social Science Research Council, pp. 5—12, 1960; McCorckle, LloydW. and Korn, Richard R. “Resocialization within walls”, Annals of American Academy of Political and Social Science, 293: 88—98, 1954.
[7] Cm.: Klcttc, Hans. «Drinking and driving in Scandinavia — with an emphasis on the law and its effects». Manuscript. Cologne, 1982.
[8] Cm.: Schumann, Karl F., Berlitz, Claus, Guth, Hans W. and Kaulitzki, Rainer. Juvenile Delinquency and the Limits of General Prevention. Cologne: Luchterhand, 1987.
[9] Aubert, Vilhelm. Equality and Law. Oslo: Pax, 1972.
Court and prison population The cost of life and death in a society without law and court