The nature of punishment: Liberal and Marxist perspectives

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‘Explanations surrounding the changing nature of punishment, particularly the rise of the prison, vary from evolutionary to conflict accounts.’ Discuss with reference to liberal and Marxist perspectives.

The changing nature of punishment and the rise of the prison: human evolution or social exploitation? This essay will explore the Liberal and Marxist theories of the motives surrounding the changes in law and legislation during the18th and 19th century, with a particular emphasis on the birth of the modern prison system and its purpose in society. Following an overview of the changes in punishment and legislation which occurred during this time, the evolutionary and conflict accounts shall be discussed in turn. Finally, a conclusion shall be reached as to which account is most compelling.

The period of the late eighteenth to mid-nineteenth century has been as identified as one ‘crucial to the development of the modern prison’ and a time when ‘imprisonment became the predominant form of punishment in western society’ (Jewkes & Johnston, 2006). Before this time, the primary form of punishment was based upon the ‘Bloody Code’, with the death penalty taking the principal form; executions were public and drew crowds of thousands. Transportation to America and later Australia, under the 1717 Transportation Act, was based on the earlier form of banishment, considered to be a secondary form, it was essentially used for less major crimes and those whom received a reprieve from execution, which was many (Carrabine et al., 2009, pp.360-63: Godfrey & Lawrence, 2005, p.68). Other forms of punishment included flogging, mutilation, branding, public shaming, galley servitude, workhouse sentences, fines and prohibitions.

Imprisonment at this time had three uses; custodial, for detaining those awaiting trial or sentence, coercive, for forcing defaulters and debtors into paying and thirdly, punitive, for the instrumentation of punishment in its own right, with sentences likely to be corporal or capital (Carrabine et al., 2009, p.362). Custodial and coercive sentencing was reserved for the gaols, which made a profit from fees paid for release, food, lodgings and the ale available to prisoners and visitors, which could alleviate the hardships of imprisonment if one had the funds or support, however, to most prisoners, these were unattainable. The bridewell, or house of correction was used for ‘punishment and reformation through hard labour and discipline’, these were mostly for those guilty of crimes associated with the poor such as begging, vagrancy or disorderly behaviour (Innes as cited in Jewkes & Johnston, 2006, p.13). Generally, the bridewells and gaols used to house prisoners during this time were characterised by disorder, neglect, squalor, disease, particularly typhus, and corruption; Zedner states that there is much evidence to suggest that ‘many bridewells operated as lucrative brothels’ (Carrabine et al., 2009, p.362).

The implementation of the 1779 Penitentiary Act, which included proposals for an improved diet, paid labour and the building of two purpose built penitentiary houses; Milbank, and Pentonville, was prompted by several factors: transportation was difficult, the American War of Independence meant it was no longer viable to transport there, the practice was also becoming increasingly unpopular with the colonies. The Australian colonies became an alternative, however, reports of the deaths occurring during transportation combined with reports of previously transported prisoners enjoying their new life, made it an unsatisfactory deterrent in the long run (Godfrey & Lawrence, 2005, p.73). In 1852 transportation was abandoned completely and replaced with the introduction of the ticket of leave scheme; this has been described as the precursor of parole (Carrabine et al., 2009, p.300). Another factor was the use of penal warehouses; broken down and unused war and transportation ships referred to as ‘hulks’ or ‘floating hells’ were moored on river banks and often used to house prisoners awaiting transportation (Carrabine et al., 2009, p.362: Godfrey & Lawrence, 2005, p.73).

In 1816 Milbank was opened as the national penitentiary to house the overflow of prisoners from the gaols and bridewells.1823 saw the introduction of the Gaol Act, wherein a new classification system was introduced which separating men and women and was based on a regulated regime of hard work, religion and solitude (Jewkes & Johnston, 2006, pp.13-14). Further classification occurred with the arrival in 1838 of a juvenile prison at Parkhurst and the Penal Servitude Act of 1839 saw the introduction of manual labour as a standard feature of incarceration. By 1842, Pentonville prison was opened which housed a solitary confinement unit for the purpose of further reinforcing the aims of the Gaol Act. The gaol and the house of correction were formally merged under the 1865 Prison Act to be known collectively as the prison and subject to the same regulations. In 1868 public execution ceremonies had ended and capital punishment was retained only for murder and treason (Jewkes & Johnston, 2006, p.13), further adding to the need for alternative forms of punishment. Finally, the 1877 prison act brought control of local prisons under state control and a prison commission was established under the charge of the home secretary. In 1895 The Gladstone Committee compiled a report which recommends the rehabilitation, education and treatment of prisoners as a priority of prisons over simply punishing them (Carrabine et al., 2009, pp.299, 360-363).

The evolutionary account of why imprisonment became the dominant response to crime shall now be discussed. It is thought that this shift in punishment which saw an end to the Bloody Code of the past was the result of progress, evolution and consensus. Foucault (Foucault, 1995, p.11) stated that physical pain of the body is no longer the punishment, the body is merely an intermediary wherein the individual can be deprived of liberty: ‘From being an art of unbearable sensations punishment has become an economy of suspended rights’, he argues that the law will reach the body of the criminal from a distance, in a proper way, and with a much higher aim; punishment of the soul.

Durkheim agrees this change in punishment is indeed the result of progress; however, it is the progress of evolution wherein society shifts from a primitive one of mechanical solidarity to an advanced society with organic solidarity. This solidarity is what forms the conscience collective; the shared morality of society which guides and informs on which acts are acceptable. Acts which offend the group morality causing ‘moral outrage’ are considered a crime (Trevino, 1996, p.237).

A mechanical society is one wherein there is a lower division of labour and tasks are undifferentiated and simple, based on age or gender. The more mechanical, the more repressive or punitive the punishment, as the collective morality is well defined; all members share the same feelings, so an action which offends is more of an attack on the moral collective. In contrast, organic society has a highly differentiated division of labour or ‘dynamic density’, it is characteristic of large, industrial societies wherein skills are specialised, this society does not share a strong moral consensus, it is weakened by individuality of talents and objectives (Trevino, 1996, pp.233-42). Due to interdependence, a difference in opinions, deviance becomes more tolerated, Simmel (Trevino, 1996, p.239) states that individuals ‘living in the modern metropolis have a blasé attitude of indifference to many of the people and events around them’.

Using this theory to offer an explanation of the switch from execution to incarceration, Durkheim devised the Two Laws of Penal Evolution; the first is the principle of quantitative change, wherein there is a correlation between the severity of punishment and the level of social development. He argues that social development is the deciding factor in punishment and its severity; the more democratic the power structure and interdependent the society, the less likely it is to use ‘draconian forms of punishment’ (Trevino, 1996, p.237). For example, dictatorships have more resolute power and tend to administer more punitive punishments. Secondly, the principle of qualitative change suggests that brutal punishment will eventually give way to a more humane alternative of incarceration as society progresses and becomes more secular and democratic; In support, Parkin(1992) asks ‘if locking offenders away had not been available as an option, how would penal law have evolved along more humane lines? (Trevino, 1996, pp.244-45). Moreover, Durkheim asserts that crime is universal as it exists in all societies and it is also functional: it can encourage social change, as challenges to laws and norms can highlight the need to adapt to ever changing social conditions, moreover, punishment administered helps to generate, sustain and mark out the boundaries of social order while additionally reaffirming the conscious collective (Carrabine et al., 2009, pp.69-70: Garland, 1985, p.7). To summarise, Durkheim attributes the rise of the prison system to the evolution and advancement of society from one of primitive, punitive punishment.

This perspective is criticised by Garland (Garland, 1991, pp.120-25) for providing a one-dimensional account concerned with the moral content of punishment and ‘its role in the maintenance of social order’ with no attempt to explain the penal regimes or measures, or include other social forces such as the economy, politics, technical developments, science or professional interests. The functional aspect has also been criticised, as the solidarity which punishment is said to enhance may actually create social division; Mead (Carrabine et al., 2009, p.307) states that the solidarity produced is ‘solidarity of aggression’ towards the criminal, this in itself is unhealthy and promotes harmful consequences; the ‘rage which emanates from heinous crimes’ is described by Valier (Carrabine et al., 2009, p.307) as ‘traumatising rather than healing’. Finally, revisionists have criticised this theory for being based purely on the concept of human evolution and ignoring the notion of social control; the social solidarity championed is in stark contrast with the following perspective which suggests increased social conflict is a more likely result of punishment.

Having discussed the evolutionary view, the aforementioned conflict theory shall be approached; Rusche and Kirchheimer argue that the changes in methods of punishment which occurred were not the result of evolutionary or humanitarian considerations, but of ‘certain economic developments which revealed the potential value of a mass of human material completely at the disposal of the administrators’ (Rusche & Kirchheimer, 2009, p.24). Their theory is that prison emerged as ‘a way of producing a submissive and regulated workforce (Carrabine et al., 2009, pp.306, 363: Rusche & Kirchheimer, 2009, pp.72-75)

Prior to the industrial revolution and the new classes it produced; the factory owners or bourgeoisie and the workers or proletariat. The social order of the rural communities was based on a paternalistic relationship between landowners and peasants. However, parallel to the rise of industry, capitalism and the prospect of trade came the introduction of property laws against previously non-criminal activities such as poaching, trespassing and salvaging, and prohibitions on the drinking of alcohol and gambling (Godfrey & Lawrence, 2005: Taylor, 1998, pp.145-50). Moreover, there was a reduction in the enforcement of a fair price for goods and a set wage for labour. They further argue that an over-supply of labour resulted in an increase in executions and vice versa, executions declined and incarceration increased when labour supply was too low to keep up with the demands of commerce, or in order to stabilise the cost of employees (Rusche & Kirchheimer, 2009, pp.80-88). Additionally, punishment, particularly regimes, are for training the working class, teaching them to submit to authority without question and eventually resigning themselves to an orderly, industrious and productive life; the fate of the lower classes. Further, Melossi and Pavrani (Carrabine et al., 2009, p.309) state that ‘prison developed as response to crime because wage labour put a price on time, so time is revoked’, this supports the economically focused theory as well as provoking the question of whether imprisonment was another way of ensuring the poor stay poor, those being most likely to have their ‘earning’ time revoked.

Often the crimes the accused were charged with were only discovered after conviction and only then through the nature of punishment, this confusion surrounding its purpose and nature not only made it easy to supply a workforce but further made it possible to remove undesirable characters from the flourishing estates and towns; galleys and workhouses accepted convicts, vagrants, women, orphans the aged and lunatics, with little discrimination (Rusche & Kirchheimer, 2009, pp.53-57). This gradual acceptance of imprisonment for all types of crimes made it easier to instil the ideologies of the bourgeoisie; Pashukanis states that ‘penal sanctions articulate bourgeoisie mentalities and ideological conceptions relating to the commodity form’; punishment is an exchange transaction, a contractual debt of obligation which the criminal must pay in honour of fair trading and liberty, despite the inequality and impoverishment which exists in society (Carrabine et al., 2009, p.309: Rusche & Kirchheimer, 2009, p.72)

The idea of less eligibility is also introduced; the practices in place to assist those charged with a crime were unavailable to the poor, such as explanation and representation and the payment of fines (Rusche & Kirchheimer, 2009). Additionally, Reimer argues that the less likely a crime is to be committed by the lower class, industrial safety violations, embezzlement or tax evasion, the less likely it is to be considered a crime compared to those of theft, assault or burglary, which are considered lower class crimes (Carrabine et al., 2009, pp.99-100).

Despite receiving a lot of support, Ignatieff suggests this account is one dimensional due to being focused on economic determinism and relying on the labour market to explain punishment (Carrabine et al., 2009, p.308). Additionally, he argues early prison reforms were not economically motivated but political, religious and most importantly, social; an attempt to calm the crisis in class relations brought about by the rise of the industrial revolution and an increasingly divided society. The economic focus is further criticised as it is said transportation and imprisonment was actually more expensive than execution. Several authors, Forsythe, DeLacy and Johnston, have challenged the revisionist account of the rise of the prison after examining local prisons of the time, they conclude that the regimes and practices of the new prisons were only ‘gradually incorporated’ into the smaller prisons and so was not a ‘minutely organised total institution’ (Jewkes & Johnston, 2006, p.15) Further criticisms include the suggestion that criminal law and sanctions require the support of the subordinate classes which they are said to control, additionally, revisionist theory fail to recognise the positive features of prison regimes as a suitable alternative to brutal punishment and often incarceration was for their own good as they were less likely to die of starvation (Carrabine et al., 2009, p.309).

Feminists have criticised both liberal and revisionist accounts for failing to address the imprisonment of women in their theories; for example, why women were ‘more likely to be mad than bad?’ or address the issue of the differences in treatment (Carrabine et al., 2009, p.306), especially as female imprisonment causes problems with administrators due to their need for policies and practices designed for males to be altered, and finally for failing to recognise the subordinate position in the hierarchy. However, the revisionist perspective has since taken steps to address this issue (Jewkes & Johnston, 2006, p.15). Finally, Both accounts have been further criticised for taking the ‘Bloody Code’ at face value based on their modern perceptions; there is an assumption that it was meaningful to the social and political changes of the time, when in fact most executions were under the legislation of the Tudors and Stuarts (Godfrey & Lawrence, 2005, p.256).

In conclusion, both accounts have their strengths: liberal theory gives an interesting perspective of social structure and the way in which it develops, additionally it can be accepted that crime is functional in some respects, especially in relation to the changing of attitudes and legislation becoming increasingly common such as the legalisation of abortion and homosexuality, both previously illegal in Britain. The conflict account also gains much support for its interpretation of how social class may have contributed to a person’s probability of being incarcerated. However, both accounts have a single focus of interpretation; evolution or economics. Evolutionists fail to recognise or account for the political, economic and religious factors and similarly Marxists fail to account for the political, evolutionary or religious factors, both also fail to consider the role of gender. Therefore, both fail to offer a complete account of the changes in punishment and the rise of the prison, which no doubt incorporated many more factors than those assigned by the theories explored


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