Designing criminal policy

Until relatively recently, criminal justice history was written not by professional historians but by the system’s practitioners – retired prison officials, civil servants, criminologists, reformers of various kinds. The widely shared conviction that the penal system was being shaken free of the irrationalities of the past and brought closer to the professional wisdom of the present tended to permeate even the best of these accounts and to impart an onwards-and-upwards structure to their narrative. ‘Progress in Penal Reform’ was the name of a collection that appeared as late as 1974, but it could well have served as a collective title for the historiography of the post-war period.

The self-confidence and sense of achievement which sustained this reformist vision disappeared during the Seventies. Rising crime rates suggested the ineffectiveness of police and prisons; critics of the treatment approach pointed to the invasive and discriminatory effects of social welfare measures; and prisoner protests, suicides and recidivism rates tended to ironise the notion of penal reform and to cast doubt upon its claims. These developments – together with the rise of the new social history – prompted a second wave of criminal justice histories much more sceptical and critical than the first. Writers such as Douglas Hay, E.P. Thompson, Michael Ignatieff, and especially Michel Foucault, retold the story in a much more analytical and sophisticated way, showing how criminal justice developments were tied into wider social movements such as the rise of capitalism, the expansion of the state, and the disciplining of social life. In particular, they demonstrated how the reform of penal laws and institutions enhanced rather than diminished the power of legal authorities and further subordinated deviant individuals and the social classes from which they were drawn. The policing and punishment of offenders ceased to be a social function ever more humanely carried out and was recast as a politically-charged area of social life, crisscrossed by state controls, professional interests, power relations, and mechanisms for the surveillance and subjectification of individuals, all of which were becoming more extensive and more entrenched with every reform.

By the early Eighties the new orthodoxy in the expanding field of criminal justice history had become a political one, highly attuned to the search for ulterior motives and hidden controls. Measures such as probation and community corrections – once considered the epitome of progressive sanctions – were reinterpreted as means whereby the normalising gaze of the authorities could be extended into the homes of deviants and non-deviants alike, while the reformers’ ideal of a rehabilitative prison was depicted as an Orwellian nightmare of surveillance, discipline and all-encompassing control. The loss of legitimacy which affected state institutions in the Seventies, together with the reaction of professional historians to the naive positivism of previous historical writing, had produced a reading of criminal justice which was at once radical, provocative, and somewhat overstated

Martin Wiener’s book might be taken to mark the third wave in the development (and deepening) of our historical understanding of criminal justice. In the last few years several authors have voiced misgivings about the tendency of the power perspective to ignore the role of culture, values and sensibilities in the shaping of penal history and about its depiction of complex institutions in a monochrome political colouring. Reconstructing the Criminal takes up this critique. It deliberately sets itself apart from both reformist and revisionist camps and offers instead ‘a cultural interpretation of Victorian and Edwardian criminal policy’. As Wiener argues in his introduction, changes in criminal law – whether conceived of as pragmatic reforms or political power plays – necessarily embody cultural and intellectual premises and draw upon the symbolic resources of the wider culture in which they occur. Any framework of criminal policy inevitably deals with key social questions such as the nature of the person, the role of the state, the sources of deviance, and the foundations of social order, so that an investigation of ‘criminal policy discourse’ promises to provide surprisingly rich material for cultural analysis. In much the same way that classic ethnographies are now being reread to disclose the cultural sense of self in the anthropological depiction of ‘others’, Wiener’s reading of criminology and criminal policy sets out to track down the established images of self and society lurking behind official characterisations of crime

Wiener’s thesis is relatively simple. Underlying the criminal policy reforms of the two periods with which he is dealing are two quite contrasting images of the person: a Victorian image of the criminal as a wilful, undisciplined savage in need of control and an Edwardian image of a debilitated, unfit offender in need of help and revitalisation. These two conceptions are to be understood not as peculiarities of criminal policy but as cultural themes which ran through the whole intellectual life of the respective periods. The images projected onto the criminal, and the frameworks of understanding and anxiety brought to bear upon crime, are viewed by Wiener as versions of more general ‘patterns of assumption and concern’ which organised the manner in which policy-makers thought about themselves and their world. Having identified these two key images, Wiener first conducts a wide-ranging tour of the various intellectual spheres in which these ideas occur, and then proceeds to show in more detail how the formation of criminal policy can be understood as a working through (but also as an extension and a practical embodiment) of these concerns.

Wiener’s factual account of how criminal justice was transformed in the mid-19th century and then again at the start of the 20th is a very familiar one, being a reworking of the basic story told by the historians of the first wave, although he is able now to draw upon a large body of empirical research which gives his study a richness and a depth which would have been impossible a generation ago. His contribution, though, like that of Foucault et al, is not to provide new information about the course of penal change but rather to place this story in a new interpretative frame and to open up new areas of empirical research. The most interesting and original sections of the book are those which range widely over the literary, scientific and political writings of the two periods, highlighting how themes of impulsiveness and enfeeblement emerged in the minds of contemporaries.

Wiener explains the emergence of these specific conceptions of human nature as a reaction to the different cultural predicaments which affected English society at these two historical moments. For the Victorians (or at least for the policy-making classes) the problem was to contain and control the forces unleashed by the anarchic dynamics of capitalism and individualism – the breakdown of traditional structures of authority, the agitations and excitements of modern urban life, the sheer welter of desires which market forces had set free. The spectre haunting social order was that of unbridled instinct and he shows in painstaking detail how the psychological, social, ethnological and political thinkers of the mid-19th century repeatedly set up a contrast between ‘savagery’ and ‘civilisation’ by means of which they attempted to rework and resolve the obsessions and anxieties of the time. The emerging problem of criminality – nurtured by the growth of cities and registered by the new statistical returns – was likewise read as a problem of unloosed instinct and ineffective moral restraint, and according to Wiener, crime became ‘a central metaphor of disorder and loss of control in all spheres of life’. The Victorian response to this predicament was the elaborate and all-embracing discourse of ‘character’. Character-building, and in particular the insistence upon personal responsibility and self-discipline, became the central plank of public policy, and the reform of the criminal law like – the contemporaneous changes in civil law and poor law administration – is best understood as an attempt to embody and project this new insistence upon the need for internal behavioural controls.

The Edwardian predicament was the reverse of that facing the Early Victorians. A growing awareness of supra-individual forces apparently beyond human control, the emergence of a more deterministic understanding of the human world, evidence of declining productivity and degeneration in sections of the population, and the perceived success of Victorian efforts to reimpose restraint, all combined to prompt a new and opposite anxiety: ‘fears of a dam-bursting anarchy began to be replaced by opposite fears of a disabled society of ineffectual, devitalised and over-controlled individuals moulded by environmental and biological forces beyond their control. By the Edwardian era ... policymakers ... became sensitive to the limitations of a programme of control and were concerned instead with finding new ways to re-enable, even revivify, both the populace and themselves,’

This new and, as Wiener puts it, ‘weakened’ image of the individual is once again identified as a recurring motif in a whole range of Edwardian writings, ranging from the natural and social sciences to fictional literature and political rhetoric, and it is described as the basis for a whole new style of social and criminal policy. In particular, Wiener views it as the key to understanding what he terms the ‘demoralising of criminality’, whereby crime came to be understood as a weakness or defect of the individual – a matter of causal determination rather than wilful choice – which thus required a more positive welfare and treatment-oriented response. This movement from ‘moralism’ to ‘causalism’, and the rather abrupt change of policy direction that it implied, were in turn facilitated by a declining belief in sin, the rise of professional groups claiming expertise in the administration of deviance, a confidence that crime was no longer such a serious threat, and an adjustment to a more democratic polity in which the lower classes could no longer be dealt with so harshly. The effect of this ‘erosion of moral discourse’ in bringing about the ‘administratisation’ of the criminal law and the development of a penal-welfare system is described in close detail.

There is much to commend in this deeply researched and well-written book, not least its insistence on viewing criminal justice as playing an active part in the construction of cultural meaning and experience. But one leaves off from reading it with a sense that much scholarly effort has been expended to produce results that are already familiar to anyone who knows the field. And while the big picture is not much transformed by this study, there are aspects of the work which seem paradoxically to flatten out a landscape which previous research had shown to be more diverse. The ‘cultural’ approach which Wiener develops is not an ethnography of particular institutions in the style of Daniel Arasse’s vivid study of the guillotine or John Bender on the penitentiary, but rather an analysis of ideas which is concerned to trace intellectual continuities over a wide field of documentation. Thus although Wiener talks of ‘images’ and ‘depictions’, there is no discussion of visual representations or of cultural symbols other than those that take a written form. This approach to cultural interpretation, despite its historical intent, also has a markedly static quality, providing a cross-sectional analysis of two distinct periods, each one focused around a key idea, rather than an account of the transformatory struggles that bring about cultural change.

By training his attention upon a single cultural figure, Wiener is able to trace its recurrence across a whole range of intellectual fields, thus showing how the different strands of a complex culture are interwoven and mutually supporting. But the disadvantage of this approach is precisely its insistence upon singularity and its smoothing-out of cultural difference. It is simply unconvincing to suggest that there was a single image of the person which suffused the whole of a culture, or indeed the whole of criminal policy, at any one time. If one looks, for example, at the political debates and courtroom exchanges that took place in the early years of this century when the new criminology was seeking to influence legal practice, it becomes apparent that there were several competing images of man in circulation – that indeed was what the debates were all about. Even today, the criminal justice system is still marked by this variousness and one sees the imagery of ‘moral man’ ‘economic man’ and ‘psychological man’ – together with a new image that one might call ‘situational man’ – fleetingly appear and disappear as different agencies utilise different conceptions of human nature and its workings.

There is also the sense that at least one of Wiener’s key images – the weakened, debilitated figure of the Edwardian imagination – can be said to be pervasive only because Wiener’s image conflates a number of radically different ideas. He is clearly on solid ground when he talks of the widespread concern about degeneracy which marked this period (although one might note that this concern had prompted articles in the Lancet as early as 1866). For the most part, however, this ‘taint’ was understood to be confined to certain sections of the population, as the 1904 Report on Physical Deterioration made clear. Wiener extends the grip of this image by arguing that the new sociological and statistical sciences also projected a ‘weakened image of the individual’ as they embarked upon their analysis of how social aggregates affected the patterns of individual behaviour. But this characterisation is misleading. The point about these new forms of knowledge and the social action that they implied was not to suggest a ‘weak’ concept of the individual, but to shift social reasoning to the quite different plane of the population as a whole. Insofar as these new ideas had consequences for man’s self-image, they were more likely to produce a new sense of power and possibility – at least for the new classes of professional social administrators – than to reinforce generalised anxieties about impotence. Wiener’s method of analysis is not sensitive to differences in the experience of different social groups, so cultural divisions – such as those implicit in Edwardian eugenics with its twin fixations upon the genius and the degenerate – tend to be passed over.

This focus upon a single, simplified image for each period also leads to a misreading of the policy debates. The criminal and social policies which were constructed at the start of the 20th century did not abandon the ‘programme of control’ and concentrate instead upon the re-enablement of a sickly cast of the unfit. Nor were these developments prompted by an overly successful Victorian discipline. On the contrary, the plethora of official reports that appeared in these years on habitual offenders, inebriates, vagrants, the feeble minded, juvenile delinquents, all laid great stress upon the failures and limitations of control inherent in the Victorian strategy of treating individuals as reponsible moral agents. Part of the attraction of the new welfare style of policy was its capacity to impose sanctions on the basis of ‘mode of life’ and the deviant’s ‘irresponsibility’, thus bypassing legalistic restriction on state coercion upheld by the Victorian criminal law.

Wiener’s cultural interpretation is less novel than expected because he concentrates upon a theme – the cultural construction of the individual – which has already been given extensive attention in the work of the ‘political’ historians of criminal justice. Despite Wiener’s claim that the political narrative has excluded such questions, writers such as Ignatieff, Foucault and others have offered analyses of the way in which ideologies and power relations set up conceptions of the subject and give these conceptions a positive experiential reality – analyses which are, in fact, very close to those developed in Wiener’s work. A ‘culturalist’ approach to other aspects of criminal justice – such as the ceremonies of the scaffold, prison architecture, courtroom language or the distribution of sentences – might turn out to have more explanatory power and originality, though even these examples would also invite analysis of the way that they encode power relations and respond to the practicalities of punishing. Wiener’s study, and the approach that he outlines, add an interesting coda to a well-established interpretation rather than offering a new framework of historical understanding. But the broader message that emerges from this work is an important one – for present-day policymakers as much as for historians. In designing criminal policy, we are not affecting only a group of people on the margins of society. Nor are we simply deploying the law for political and penological ends. We are also defining ourselves and our society.