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For many, there is the belief that the existence of punishment is linked to the problem of ‘crime’, and that the extent of ‘crime’ is the key factor in determining the level of punishment. But some of the most important sociologists (and penologists) such as Karl Marx, Emile Durkheim and Michel Foucault argue that crime is relatively trivial, and that the form and degree of punishment in society must be understood through its relationship with other greater social, economic and political factors.
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Karl Marx was a 19th century sociologist and economist whom were interested in the role punishment held in class-based social and economic regulation. He criticized the failure of penal theory to consider the social factors, especially economic inequality and poverty, which underlay criminal activity. Using this framework, others such as Georg Rusche and Otto Kirchheimer, in Punishment and Social Structure (1939), looked at the formation of different forms of punishment in the context of the labor market’s fluctuating needs, from the Middle Ages through to contemporary society. For example, imprisonment serves as both a practical source of inexpensive labor for the state and, during periods of high unemployment, as a method of incapacitating dangerous offenders from doing public harm. These Marxist ideals influenced historical changes in penology in Western Europe beginning in the Middle Ages into the Mercantilist Era. During the early middle ages, there was a bot (betterment) paid by the criminal to the offended party – which gave rise to the idea of compensation – and a wite was a fine paid to the King. These fines were forms of tiered punishments that varied depending on ones’ socioeconomic class. For upper-class/freed citizens, punishment was given in compensation fines, but for lower-class/slaves punishment was much more brutal in the form of corporal death. These practices carried into the late middle ages and into the Mercantilist Era (1400-1700s). As middle-age feudalism declined, capitalism (as focused on by Marx) and international trade rose and expanded to new heights. These economic changes influenced the creation of new, wealth merchant class and the “vagabond” poor. Vagabonds were displaced workers from the former agricultural-run society of feudalism, who were now non-productive in a commercially dominant Western culture. This led to the widespread belief that work was to be associated with morality (17, B&L). The poor, criminal vagabond social class were exploited and sentenced as laborers. Karl Marx asserted that punishment could be used to force people to work – as here in the case where vagabonds worked in galleys as “reliable workforce,” served in workhouses in Great Britain to help change and reform their ‘character,’ and transportation where criminals were sent away for manual labor to help meet the needs of growing American and European colonization.
Durkheim “The Father of Sociology” published several works during his time, however, none has had more impact than his book, ‘The Division of Labor in Society’ written in 1893. Here he rejected the idea that punishment must break away from either vengeance or the emotional satisfaction it gives. Durkheim believed that the social function of punishment was to give effect to the moral and emotional outrage of a society whose norms have been violated by the criminal act. A criminal act is therefore identified as that which affects the community’s ‘collective conscience’; criminality serves as a way to explain the moral limitations of the social group. Punishment is the reciprocal effect of a collective moral outrage, creating and sustaining a type of solidarity crucial to the existence of a functional society. From these ideas arises Durkheim’s theory of social solidarity, as shown in his work “The Two Laws of Penal Evolution,” (1902) whereby he states that despite changing penal methods overtime, the underlying mechanisms and functions of punishment remain constant. Social solidairty insisted that rather than focusing on either the crime (or the criminal), one should observe the after-affect of crime on victims and the community as a whole. Offenders must be held accountable to these victims, and part of their penalty may involve direct restitution. The goal is begin a process of restoring the trust and solidarity that is broken by criminal activity by focusing on the social relationships that have been harmed as a result of crime. Durkheim’s scientific study of penology led to the conclusion that the severity of punishment was diminishing, and that solidarity could be broken into two categories: mechanical and organic solidarity. He called mechanical solidarity the solidarity of “sameness” which organic solidarity was made up of differences. The idea behind this is that organisms are made up of parts that serve different functions but manage to work together. In relation to society, Durkheim stated society was based on the division of labor, and is reliant on the community’s mutual dependency on one another.
Although before the time of Durkheim, these same theoretical ideas can be seen in Colonial and Federalist America. This period included the early settling of colonists in areas such as Massachusetts and Virginia (17th and late 18th centuries), where society was dominated by the institutions of church, family and most importantly community. While religion played an important role in determining punishment, punishment was more so based on the social reaction to crime. Crime was religiously reflected as sin and as a moral matter of right versus wrong. Methods of punishment included fines (to victims most commonly), whippings, mutilation, shaming and banishment. Discipline and punishment held a significant role in social solidarity by publicly demonstrating rules, and expressing moral outrage over wrongful acts in a collective manner. These principles can also be applied to provide insight in the American Temperance Movement of the 1830s. As democratization increased as the nation expanded economically and socially, religion still held a high importance that reflected in how crime was seen. Crime was viewed a moral disease, and more specifically alcoholism was becoming a national epidemic. The American Society for the Promotion of Temperance declared that, “all temperate people should remain so and that the others should kill themselves off” (50 B&L). Alcoholism was collectively viewed as having a linkage to crime that caused labor to decrease which consequently affected American economic prosperities. These abolition and temperance movements of the 1800s were representative of social and moral reform going on within American culture.
Michel Foucault was a 20th century French sociologist who argued that punishment is a threat to society, and that discipline is power-knowledge mechanism for domination. Foucault is well-renowned for his 1977 book entitled, Discipline and Punish: The Birth of the Prison, where he questioned how penology has changed in the way criminals are punished (in France) and introduces disciplinary punishment as the dominating practice in the modern world. He identified a qualitative shift in punishment from 1750 and 1820 in Europe and the U.S, pointing out three major changes: (1) punishment changed from “body” to “soul/psyche,” (2) from vengeance to transformation and (3) from punishment to corrections. In the second part of his book, Foucault marks the prison as the template for the technology of modern discipline. Disciplinary punishment gives “professionals” (psychologists, program facilitators, parole officers, etc.) power over the prisoner, most notably in that the prisoner’s length of stay depends on the professionals’ judgment. Foucault goes on to argue that Disciplinary punishment leads to self-policing by the populace as opposed to brutal displays of authority from the earlier eras. He utilized supervision, assessments, timetables and detailed attention to efficiency as tools for his studies of penology. Such ideas influenced the technology used in prisons such as Jeremy Bentham’s ‘Panopitcon.’ The Panopticon, usually located in the center of a prison floor consisted of a single guard who could watch over many prisoners while remaining hidden. Ancient prisons have been replaced by clear and visible ones, but Foucault cautions that “visibility is a trap.” It is through this visibility, Foucault claims, that modern society exercises its controlling systems of power and knowledge. Increasing visibility leads to power located on an individualized level – as shown by the possibility for judicial institutions to monitor individuals throughout their lives. Foucault suggests that a “carceral continuum” or a “carceral archipelago” runs through modern society, from the maximum security prison, through secure accommodation, probation, social workers, police, and so on into our daily working and home lives. All are joined together by the supervision (surveillance, application of social/moral norms of acceptable behavior) of some humans by others.
Although the methods in which these sociological theorists approached penology, their ideas helped influence and change the way in which we [as society] view crime and the correlation it holds with punishment. These dominant theories shaped the evolution of American and European penal history which reflected the social, cultural and moral reforms of their times in relation to crime and the administration of punishment.
Punishment in Ancient European society was brutal and based primarily on private vengeance. Retaliation was violent and often community participation was encouraged. These tribal communities settled their conflicts through “blood feuds” held in public areas. These feuds, however, did not follow every crime. By 700 A.D. people mediated their offenses through fines. These were called bots (meaning betterment) and were paid to the offended party, while wites referred to fines paid to the King. These fines were highly discriminatory based on social-class structure. Penology practices then began to evolve as attempts were made to match the severity of offenses with the severity of the punishment itself – such as in the Roman Justinian Code of 529 A.D. Punishment served as a way to uncover the truth behind crimes, sometimes through compurgation where witnesses were presented on behalf of the accused through trials by ordeal. Punishment was administered through torture if found guilty.
The Early Middle Ages (700-1000) was defined as a power struggle between the church and society. The church was so powerful at the time that it had its own system of justice governed by the bishops and clergy. During this time, the church introduced the “benefit of the clergy” that gave protection from prosecution for church members and leniency to other related groups. Punishment was issued in the form of confinement rather than corporal punishment because the church believed that, “such punishment would inevitably lead to the offender’s despair, which impeded the ability to repent” (15, B&L). Only secular courts had the right to executions or any blood shed. Mutilation was popular to match the sanction with the crime (e.g. liars – tongues cut out). Banishment and fines were still present. The Late Middle Ages (1100-1300s) signified a time of change in European history as the Church (sacred) power began to decline in daily social life, and with this, began the rise of the secular State power. Despite this decline, the church continued to use even more torturous, brutal punishment especially during the period of the Inquisition (13th-15th centuries) to weed out heretics.
The end of the medieval period is marked within the social and economic changes brought on by the Mercantilist Era from 1400s-1700s. This era represented a decline of feudalism amongst society hierarchy, and gave birth to the rise of capitalism. Capitalism spread as globalization and commercial activity and trade increased. Power passed into the hands of the wealthy, known as the merchant class. This dissolution of feudalism and a once, agriculturally dominated society brought forward a number of displaced, non-productive people who were very poor called the “vagabond poor.” These people were focalized in crime and punishment, which gave rise to the understanding the conditions of this social class by learning how they became to be vagabonds. This questioning reflected the importance of work, for work was associated with morality. These vagabonds thus ‘threatened’ society as a result they were exploited to working within the galley, workhouses and transportation. Transportation especially served as a means for states to solve crime problems by sending criminals away to the new colonies for indentured labor.
There are several historical trends that can be identified from Ancient society to the end of the Medieval ages. First, there was a decline in direct participation by the community and by victims in primitive European societies. Secondly, there was a direct shift from private vengeance to church power during the Early Middle Ages. The Middle-Ages was a time where general deterrence was essential to preventing crime by instilling fear within the people after witnessing brutal, torturous penal practices. The Late Middle Ages through the Mercantilist Era was characterized by the growing popularity of state and secular justice over the church, and the rise of crime and punishment focused on labor. By the end of the 1700s, secular authorities controlled social classes by transporting criminals and vagabonds overseas to colonies, or by holding them in galleys and workhouses where they were incapacitated to extensive labor.
Changing gears from Europe to Colonial America (1600-1790), the new nation was dominated by three primary social institutions which included church, family and community. Crime was viewed as sin and punishments mostly served religious ends, directly or indirectly in nature to reflect the laws and morals of the time. Colonial American society was centered on religion, where there was the mentality of, “God wants people to behave a certain way, and it is the peoples’ job to set morality and justice.” Punishment was administered for many common offenses and resulted in fines, shaming, whippings and sometimes exile. Executions were made public in order to have an ‘educational’ purpose where community was intended to learn, however, intentional cruelty behind corporal punishment decline.
The rise of the new nation could not have evolved without the presence of European Enlightenment Ideas in the American colonies. The prominence of human reason served as a tool to battle ignorance, superstition and tyranny targeted mainly in religious and hereditary aristocracy. Crime and punishment evolved to becoming a philosophy of understanding the offender. This gave birth to the first modes of classical criminology that assumed all people were rational beings that must be equated with a balance between crime and punishment. Ideas such as these enlightened moderation of punishment to focus on rationality and more importantly, efficiency. Punishment was concealed behind bars in prisons where criminals were to be held separate from society as a means of incapacitation. Early prisons and other penal institutions, such as the penitentiaries increased incarceration in America.
Together the Colonial Ages and American Federalist period (1790-1830) marked a time of social reform where there was the suppression of the emotional purposes of punishments and execution to a newfound emphasis on their instrumental purpose instead. Criminals were to be understood rationally taking into account human reason, and crimes were to be administered fairly with a balance between offense and sanction. Punishment was morally defined.
Punishment and reform in 19th century America (1830-1880s) prospered with the shift from prison-to-penitentiary. Societal influences included: alcoholism, gangs, and immigration. The Temperance and Abolitionist movement deemed alcohol use as moral failings/disease in society. Punishment revolutionized out of Enlightenment ideals that focused on democratization where society was governed by the people. Crime was spreading and was soon viewed as moral and social pathology. It was believed that crime could be combated with the help of penitentiaries. The goals of these institutions were to reform criminals through routine, surveillance and discipline. Blomberg and Lucken best define crime as: “criminal activity was attributed to human interactions with a morally depraved environment” (61). This penal ideology spread into Progressive America where crime and punishment were studied with science to understand criminality through biological, psychological and sociological reforms. From the Progressive Movement into 20th century America, there flourished the proliferation of penal services (parole, probation, indeterminate sentencing, prison specialization – min., med., max.). This ideology focused on social and moral reform as well by introducing reformatories (not vengeance), specializing and professionalization in prisons and a growing focus on juvenile and female offenders. Academic and medical questioning ruled criminology, the understanding of offenders and how to treat prisoners which lasted until the 1960s.
The 1970s is best defined as a time of American Liberalism. Within society there were cultural changes taking placing as social activism and protest amongst all groups – civil rights, women, prisoners, etc. Growing emphasis was put on prisoners’ issues and rights and through this we [society] made attempts to understand the internal and external relations of offenders with society. Decentralization emerged with the idea of ‘Less is Better’ where importance was aimed at the criminal justice system through reforms such as ‘net-widening’ that identified people who were at high risks to commit crimes, and deinstitutionalization of juveniles (not behavior that determines crime, age status instead). The 20th century was a change to rehabilitative and specific deterrence amongst criminals.
From the 1980s to the present, crime increased as political and social turmoil grew in America. The war on crime that evolved with the staggering drug use of the ’80s was counteracted with the conservative backlash by the government that installed harsher prison sentences focused on retribution, deterrence and incapacitation (three-strikes rule, mandatory minimums, etc). Increasingly so, social inequality is the underlying factor of high imprisonment rates amongst the poor and minorities. Privatization of prisons and companies led to a culture of greed that resulted in growing crime rates. This soon led to the collapse of the rehabilitative ideal into the era of “get tough” punishment and ‘law and order’ punishment that was termed Neo-Conservative criminology.
Jails and prisons were among the first public structures built in colonial America. Besides serving as a place for emigrants, jails were an essential part of the system of bondage that existed in America. At a time where the dominating institutions consisted of the church, community and family, any crime committed was viewed as sin. Criminal activity was reflecting religiously onto the community as a whole. Executions were carried out for “ordinary” crimes other than murder, under local rather that state authority, and were made public. Punishments focused on retribution rather than understanding the crime, or the criminal. There began a shift from the 18th century to 1789 after the ideas of the Enlightenment reached the western world. The belief in human reason and rationality governed all aspects of life, especially penology. As a new nation emerged, penal practices changed to view criminals as rational beings, and an increased notion that there should be a balance between crime and punishment so it can be efficient. In regards to capital punishment, people felt it did not equate with the democratic ideals founded within our nation and it was in fact ineffective as a deterrent. From this point until the 1900s into the Progressive Era, crime changed and adapted according to the cultural changes that corresponded. America’s growing population boom, immigration increase, industrialization and urbanization were all factors in growing incarceration rates. Over time, prisons trended towards becoming more pervasive, more secure, and more permanent.
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In contemporary America there is a growing sense that the cost of fighting of crime, incarceration and rehabilitative services is spiraling out of control. There are more criminals, more courts, more prisoners and more anger as society focuses on the criminal as the cause for the economic collapse and downturn.
The most recent historical factors that have led to today’s conditions begin in the 1960’s – the age of disconnect – where many significant changes to societal norms started. These included the civil rights movement, freedom of the individual, increased used of illegal substances, changing attitudes to sex and sex education, and in general, a focus on a more liberal and less-controlled societal model. During this period America experienced a debilitating military conflict (Vietnam), a break-down of the family unit as defined in separation statistics, and a core change in the role of women in society. At this time there was substantial focus upon prisoner rights, focus upon rehabilitative rather than punitive punishment ideals and a number of inside-prison demonstrations and even rioting against the methods of incarceration being used. America’s death penalty collapsed after the Furman v. Georgia decision where it was nullified and made unconstitutional. By the end of the 60’s and 70’s this era of liberalism was being pointed to as the cause of other significant societal problems – crime being one of the most prominent.
The 1980’s witnessed a major shift back towards a more conservative America.
The war on crime changed from one focusing on rehabilitative and (what caused) criminal activity to one that called for substantially-increased reliance on incarceration and an almost sole focus upon stopping the activities of criminals. Through a combination of sentencing guidelines (mandatory minimums, truth-in sentencing, three strikes) the aim was clear. By incarceration, clearly, the activities of the individual criminal were curtailed through incapacitation. There was little, if any concern, on rehabilitation and many argue upon humane treatment. Against this trend American society experienced large swings towards materialism, a lifestyle of financial improvement without concern for the morality of society as a whole (Boesky). These changes led America to become entrenched in a culture of greed where inequality between social and economic classes rose enormously, and so began the widespread politicization of criminal justice as crime was brought to political form.
Beginning with the Reagan administration, the political goals, reflecting society’s attitudes were quite evident. There were to be more incarcerations for more criminals for more offenses with greater sentences and less focus on parole provisions and rehabilitative treatments. These “Get Tough” penal philosophies exploded after the war on drugs invaded America as more people (many minorities) were being arrested and placed in prisons for much harsher sentences. Because of the increased prison population numbers, there was the need to specialize prisons based on the type of crime/the incarceration period imposed. This included a tiering, or separation of prisons into three divisions: minimum, medium and maximum facilities. The societal shift continued through the Bush (senior) administration and into the 1990s, where theories of penology are characterized by culture of control (B&L). Control, in this context means: reinforcing more rigid guidelines for sentencing, more inflexible guidelines towards rehabilitative treatments, and in general, a harsher, punitive mindset towards criminals. The changing economic climate has now introduced a move towards privatization. Privatization is a desire to outsource the management of prisons and criminals away from the state. Because the goals of private enterprise are profit-based, this suggests a shift to penology model with even less of a concern upon prisoners’ rights, rehabilitative treatments and any actions outside strict profit-based incarceration.
From colonial times to contemporary society, American penal history has undergone significant changes. Various penal innovations have been presented, some of which have had major impact on penology as a whole.
Many of the thoughts and beliefs from Europe’s Age of Enlightenment carried onto the new-world, which helped birth the flourishing democratic ideals founded in the United States. The Enlightenment (18th century to 1789) was characterized by the belief in human reason and rationality. In regards to judicial reform, the goals of this era were to form a better world by using human reason to combat the negativities of ignorance, susperstition and tyranny that governed old monarchial practices. It also sought to target religious and hereditary aristocracy to create a more socially and economically equal society. The Enlightenment gave American penal policy and practices the push it needed to moderate punishment on the basis of rationality and efficiency. As a result most notably criminals were viewed as rational beings; punishment was to be efficient and logical, discipline changed from being public to conceal – all factors which led to the early emergency of the prison and growing incarceration.
The presence of enlightenment ideas in America influenced sociologists of the early 20th century such as Max Weber and Norbert Elias. Both sociologists studied the ‘science’ of punishment by observing penal and other worldly changes from 19th century onwards leading towards rationality. Elias in particular held the notion that Western societies have become more “civilized.” This notion followed the trends of punishment, which he believed were reflected in the changing sensibilities in the “civilizing” evolution of Western culture. Despite there being a tension between moral imperative and bureaucratic management of the more highly privatized modern world, discipline was starting to be rationalized in a scientific, logical manner for means of justifying penal practices.
Such social and moral reforms influenced the rise of one of the most prominent penal innovations – the American penitentiaries of the 1800s.
During such times crime was seen as a moral and social pathology. In the 1820’s, two variants, the Pennsylvania System and the Auburn System competed for the role of best in the handling of the incarcerated population in America. The silent method of the Pennsylvania System required absolute silence, complete lock down in a solitary environment and produced mental problems at a rapid rate. It was espoused by the religious zeals such as the Quakers who felt that prisoners would be ‘rehabilitated’ by that system. The belief was that silence and isolation helped criminals reflect on their crime alone. The Auburn System was seen as more cost effective because it required labor which offset the cost of prison housing. Auburn introduced uniforms, the lockstep and harsh punishment for minor infractions. The idea in the Auburn system was that silence, working together and discipline could yield reform in criminals. These two great penitentiaries were based on the ideas enveloped within each given region in America. In the North, rehabilitative ideals aimed to change/transform individuals, while the South adopted a convict lease system built on the slavery model that influenced penal reform to exploit labor to satisfy economic and political means. In truth, neither penitentiary created a model prisoner or one that entirely rehabilitated. The debate continues today between those that argue in long sentences and those that want reform. The importance in such an innovation was that it reflected the beliefs and ideals of democratization and moral reform of the 19th century. It exemplified the prisoner as a rational being that could and must be studied to explain criminality, diagnose and treat and then correct the criminal through rehabilitation.
The second penal innovation grew out of former rehabilitative penal practices into the Progressive American Era (1880s-1930s) that theorized crime through biological, psychological and sociological factors for better understanding. These beliefs introduced positivist criminology, which asserted faith in the scientific study of criminals and crime through classification. In relation to penal ideology, it created reformatories, indeterminate sentencing, parole and probation. Punishment was less punitive and searched for the causes, treatment and corrections of criminals, especially juveniles. This movement led to the Juvenile Court Reform Movement.
The Juvenile Court Movement lasted for nearly sixty years, beginning in 1900. Juveniles were seen as ‘lost children’ who required guidance and whose crimes were subject to indeterminate sentencing to show leniency on the behalf of courts in hopes that treatment could help transform the characters of such offenders. This movement revolved around the rehabilitative ideal centralized in society as this time that claimed human behavior was a product of antecedent causes which could be identified, classified in accordance to specific scientific treatment, which could then be treated therapeutically. The importance behind the juvenile court movement is that it launched the specialization of penal practices. For example, the term prison guard expired and advanced to corrections ‘officer.’ The term “corrections” emerged as professionalization and bureaucratization was introduced (as seen in Weber). Next, the treatment of offenders was individualized and penal services were broadened to accompany for the various causes of criminal behavior, and was more accessible than ever before. Prison specialization led to the classification and division of these institutions into minimum, medium and maximum facilities governed by corrections officers with the aid of psychiatrists, psychologists, social workers, vocational counselors, etc.
Although the innovations of the juvenile reform movement and the progressive era were promising, by the late-20th century, America was headed towards decentralization. Criminologists and penologists created labeling theories that took focus away from the offender and onto the criminal justice system as an entity. “Net-widening” occurred in penal reforms that formed programs that identified people who were considered at ‘high-risk’ to commit crimes. There began an academic focus on social control that influenced the contemporary penal model characterized by ‘Get Tough” punishment. Policy makers have implemented multiple-strategies approach to combat crime including: retribution, incapacitation (search for habitual offender), deterrence (escalation of penalties), restoration and rehabilitation (214). Present-day America has evolved to become a culture of control and greed (211, B&L).
Truth-in-Sentencing standards and Three-Strikes Laws were some of the few penal methods introduced in the 1980s to curb crime rates and put habitual offenders away for longer periods of time. Truth-in-sentencing refers to policies and legislation that aim to abolish or curb parole, so that convicts serve the period that they have been sentenced to. Three-Strikes law statutes enacted by state governments in the UHYPERLINK “http://en.wikipedia.org/wiki/United_States”S require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. Restorative justice has also been implemented recently that puts criminals up against the state, holding the criminal accountable through highly retributive means. These various methods comb
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