labor market and penal sanction thoughts on the sociology of criminal justice

LABOR MARKET AND PENAL SANCTION: THOUGHTS ON THE SOCIOLOGY OF CRIMINALJUSTICEAuthor(s): Georg Rusche and Gerda DinwiddieSource: Crime and Social Justice, No. 10 (fall-winter 1978), pp. 2-8Published by: Social Justice/Global OptionsStable URL: http://www.jstor.org/stable/29766043 .

Accessed: 06/09/2013 09:51

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Social Justice/Global Options is collaborating with JSTOR to digitize, preserve and extend access to Crimeand Social Justice.

http://www.jstor.org

This content downloaded from 136.159.235.223 on Fri, 6 Sep 2013 09:51:44 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=socjusgloopt

http://www.jstor.org/stable/29766043?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


LABOR MARKET AND PENAL SANCTION: THOUGHTS ON THE SOCIOLOGY

OF CRIMINAL JUSTICE

Georg Rusche* Translated by Gerda Dinwiddie

Editors9 In troduc tion

The following English translation of Georg Rusche's "Arbeitsmarkt und Strafvollzug" (1933) appears in print for the first time. Orginally submitted as a research proposal to the Frankfurt Institute of Social Research in 1931,

Rusche's article laid the foundation for the book, Punish? ment and Social Structure, which he later co-authored with Otto Kirchheimer. First published in 1939 by Columbia

University Press, the book was re-issued in 1968 by Russell and Russell Company.

Punishment and Social Structure continues to be

neglected by American criminologists. Barnes and Teeters (New Horizons in Criminology, Prentice-Hall, 1943) and Edwin Sutherland (Principles of Criminology, 4th Edition, 1941) are the only two "older" textbooks that acknowl?

edge its existence. While Sutherland merely listed the work as suggested reading, Barnes and Teeters at least recognized the importance of the book: "In a stimulating and provoca? tive work on the subject, Rusche and Kirchheimer have

given us a clear idea of how changing social and economic

systems fundamentally altered the ways of thinking and

acting in relation to crime and punishment.99 The only American criminologist to employ the thesis

developed in Punishment and Social Structure was Thorsten

Sellin in Pioneering in Penology (1944) and in his most recent work, Slavery and the Penal System (1976). (See the review essay of Sellings writings by Greg Shank in this issue of the journal) Sellin was also familiar with Rusche's "Arbeitsmarkt und Strafvollzug" (see Sellin's Research Memorandum on Crime in the Depression, Social Science Research Council, Bulletin 27, 1937).

In a review essay of Punishment and Social Structure in Crime and Social Justice 9 (Spring-Summer 1978), Dario

Melossi points out how Rusche's writings in Chapters II

through VIII, which carefully follow the hypothesis laid down in "Arbeitsmarkt und Strafvollzug," were re-worked

by Otto Kirchheimer. Rusche was less than enthusiastic about what had been done to his portion of the book. For this reason, Crime and Social Justice made the decision to print an English translation of how Rusche originally viewed his plan of research.

This English translation is almost a faithful reproduc? tion from the original German. We have, however, modern? ized the language and idioms without fundamentally altering the original meaning. It is apparent that Rusche was

embarking on a radically new kind of analysis and, there?

fore, his vocabulary and categories of analysis are some?

times unclear and tentative.

I.

The study of crime and crime control is a fruitful field for sociological research. We are dealing with phenomena here which are determined to a large extent by social forces. Consequently, on the one hand, they practically compel an explanation derived from social relationships; on the other hand, they lend themselves especially well to an illumination of these relationships. The reason for this is that mystification and cover-up, which make the investiga? tion of other social interconnections so very difficult, are to a great extent forced aside by the brutality of these

phenomena and by conflicts which must necessarily be

fought in the open.

* Georg Rusche (1900-?) studied law, philosophy, economics and

the social sciences in Paris, London and at several German universi?

ties, graduating from Cologne University in 1924. He pursued his studies at that same university and completed his thesis on economic

theory in 1929, followed by the writing of "Arbeitsmarkt und

Strafvollzug" in 1931 (published in 1933). After Hitler came to

power, Rusche left Germany and experienced years of difficult exile from Paris to London, then to Palestine, and back to London. Interned in a camp in Great Britain, Rusche was later released and was on his way to Canada when his ship was torpedoed. He was returned to London where he remained, at least until March 1941. There is no further information on Georg Rusche.

** Gerda Dinwiddie is a graduate student in German literature at the University of California, Berkeley.

2 /Crime and Social Justice



Surprisingly, research has made only minimal use of the possibilities offered here. Sociological considerations have been included extensively in the examination of

criminological problems. However, they have not been done

justice in any way. For, even if the relationship between socioeconomic phenomena and the problems of crime and

crime control are obvious to sociologists, there is still a

long way to go from the naive recognition of this fact to

making use of it in a systematic and scientific fashion. This failure is explained by the fact that, in general, the

researchers who devote themselves to criminological

problems are not familiar with the fundamental principles of the social sciences, but approach them more from the outside. They are usually jurists or doctors. When they employ sociological categories in their work, they are derived from naive experience or, at best, if these categories are scientifically founded, they rely exclusively on social

psychology. Certainly the more recent criminology, partially

stimulated by psychoanalysis, has produced valuable

insights about the individual and social causes of crime and about the sociopsychological functions of punishment. But these studies lack a foundation in the basic principles of

sociological knowledge. They are neither connected to economic theory, nor are

they historically oriented. Rather,

they imply a fixed social structure which does not exist in

reality, and they unconsciously characterize the social

system as eternal and unchanging rather than as a historical

process. The social function of crime and criminal justice can be

clarified far beyond previous research, if simple axioms of economic theory

are used and one does not presuppose a

more or less static and ahistorical system of class relations.

In this paper, some basic ideas for research along these lines will be proposed and discussed.

Although highly complex and somewhat independent circumstances influence the field of criminology7, especially biological and psychological aspects, nevertheless economic

theory and historical observation can clarify many questions. The dependency of crime and crime control on economic and historical conditions does not, however,

provide a total explanation. These forces do not alone

determine the object of our investigation and by themselves are limited and incomplete in several ways. For example, the penal system and the ritual of criminal procedure are

shaped by various forces, including religious and sexual

phenomena. Similarly, our method of investigation is not sufficient to explain the specific fate of a single individual

who becomes a criminal and his particular punishment.

But, within these limits, certain mechanisms can be discovered by economic-historical analysis with sufficient

accuracy.

II.

It can be said without contradiction that crimes are acts which are forbidden in society. Debates about the

meaning of punishment will not be addressed here. I shall

not discuss whether the goal of punishment is retribution, deterrence or reform of the criminal. One thing, though, is certain: no society wants its penal system to incite the commission of crimes. In other words, punishment has to

be constituted in such a way that those people who appear to be criminally inclined or inclined to commit acts that are undesirable to the society, are at least not encouraged to do

so by the prospect of being discovered and punished. On the contrary, it is even hoped that the prospect of punish? ment will deter if not all members of this class, then at least a substantial part.

Indeed, the anticipation of future suffering and painful reprisal, which by far exceed the possible pleasurable gain, should be an effective counterbalance for any rational

person. Now experience teaches us that most crimes are

committed by members of those strata who are burdened

by strong social pressures and who are relatively disadvan

taged in satisfying their needs when compared to other classes. Therefore, a penal sanction, if it is not to be counter?

productive, must be constituted in such a way that the classes which are most criminally inclined prefer to abstain from the forbidden acts than become victims of criminal

punishment.

Perhaps, one could argue that such a proposition does not sufficiently consider the impact of the sense of honor and fear of disgrace associated with punishment. Indeed, the solidity of the social structure does in no way depend only on the strength of external measures of coercion

which are supposed to guarantee the continuation of

society. The great majority of people has to be psychically willing to accommodate to the existing society, to regard the state as their state, the law as their law. But, according to experience, there are classes for whom this adjustment and identification break down.

Criminality certainly occurs, throughout all social classes. But disregarding persons for whom social inhibitions are without effect, or a few crimes which are not affected

by social position, such as slander or political and related offenses or isolated cases of sensational trials, then it becomes clear that the criminal law and the daily work of the criminal courts are directed almost exclusively against those people whose class background, poverty, neglected education, or demoralization drove them to crime. It

is rarely maintained anymore today that the individual alone is responsible for his crime. On the other hand, not

everybody necessarily becomes a criminal even under the

heaviest social pressure. Thus, the range of possibilities extends from law-abiding people in a wretched environment to confirmed criminals in a bourgeois milieu. Indeed, the

power of resistance can be abnormally low or the induce?

ment overly high in an individual case. At any rate, an

extremely high capacity for resistance is expected of the lower strata, of whom large masses are

regularly deprived of

their livelihood by long, severe winters, inflation and crises, and the spiritually and physically weakest are thrown into the path of crime. If penal sanctions are supposed to deter these strata from crime in an effective manner, they must

appear even worse than the strata's present living conditions.

Fall-Winter 1978/ 3



One can also formulate this proposition as follows: all efforts to reform the punishment of criminals are inevitably limited by the situation of the lowest socially significant proletarian class which society wants to deter from criminal acts. All reform efforts, however humanitarian and well

meaning, which attempt to go beyond this restriction are condemned to utopianism. If penal reforms should be demanded by public opinion and carried out, the reforms would have to be undermined by a more subtle deterioration of prison conditions. For, a genuine improvement in the conditions of imprisonment beyond this limit would no

longer deter such large groups of people, and, as a conse?

quence, the purpose of punishment would be destroyed. George Bernard Shaw once said:

When we get down to the poorest and most

oppressed of our population we find the conditions of their life so wretched that it would be impossible to conduct a prison humanely without making the lot of the criminal more eligible than that of many free citizens. If the prison does not underbid the slum in human misery, the slum will empty and the prison will fill.l

The preceding analysis, though abstract and formal, has been stated often enough.2 Naturally, it should not be assumed that this proposition will be exactly reproduced in

society in the manner in which it has been expressed here. It is only a principle of investigation, a guide to approach the subject matter. We will then find that there are very

peculiar and unpredictable events, often strangely inter? twined and quite different in conception and execution, which determine the course of real life.

If we want to make concrete the proposition that effective penal sanctions must deter the lower social classes which are the most criminally inclined, we must clarify what economic categories determine the fate of these classes. It is not at first easy to realize that these classes have no other goods at their disposal but their ability to sell

III.

A factory within a prison


their labor power and that, therefore, the labor market is the determining category. The situation of the working class is different in an economy in which a large reserve

army of starving proletariat follows the employers and drives the wage for each job opportunity offered down to a

minimum, than in an economy in which workers are scarce, as for example where free land is available and therefore

nobody is forced to earn a living through dependent labor, and the employers compete for the few available workers and drive wages up.

Naturally, the scarcity or surplus of workers does not

unequivocally determine the nature of the labor market. Political interventions can correct the fluctuation of supply and demand. When there is a lack of workers, for instance, the employers can try to compensate for the lack of eco? nomic incentives by introducing slavery or other forms of forced labor, or by setting maximum wages or taking similar measures pertaining to labor law. When there is a

surplus of workers, the unions can protect wages from

falling by withholding the supply of labor, or the state can do so through sociopolitical measures, particularly payment of aid to the unemployed. Depending on which of these situations prevails, the criminal justice apparatus will have to meet different tasks.

Unemployed masses, who tend to commit crimes of

desperation because of hunger and deprivation, will only be

stopped from doing so through cruel penalties. The most effective penal policy seems to be severe corporal punish? ment, if not ruthless extermination. In China, where there is a huge reserve army of wretched and starving proletariat which pours into the cities and is forced to sell its labor for

any price (if it can find work at all), large gangs of merce? naries are always fighting one another. Under these condi? tions, the mere fact of being given food would make prison an enticement, not a deterrent. Prison sentences, therefore,

only exist where European influence has asserted itself, and

they are an indescribable cruelty. "Every socially thinking person who comes to China," writes Agnes Smedley in a

report, "Prisons in*China^ "receives an extremely sad, depressing impression when he must see how lowly an

ordinary human life weighs. This disregard becomes particu? larly clear when one realizes that criminals of any kind, who are caught here, are being shot, hanged or beheaded, and that these executions arouse hardly more than fleeting notice."

In a society in which workers are scarce, penal sanctions have a completely different function. They do not have to

stop hungry masses from satisfying elementary needs. If

everybody who wants to work can find work, if the lowest social class consists of unskilled workers and not of wretched

unemployed workers, then punishment is required to make the unwilling work, and to teach other criminals that they have to content themselves with the income of an honest worker. Even more: when workers are scarce, the wages will

be high. But then it will be profitable to lock up criminals and let them work for food only, since the costs of guarding and enforcement will still be less than than the normal

wage. Therefore, there is in all societies in which workers



an* scarce a tendency away from corporal punishment and

the extermination of the criminal. Where the criminals labor is valuable, exploitation is preferred to capital punish?

ment, and forced labor is the corresponding mode of

punishment.

IV.

This economic theory of punishment which has been

developed here in a broad outline seems to me to be the

key to understanding the criminal law. It would be quite wrong, however, to apply it to the present in exactly the same way as it has been presented here.

Important peculiarities in the contemporary criminal law cannot be explained without a historical framework .... That our criminal law exists in its present-day form is to a

great extent comprehensible only through an appreciation of its origins and development. Its present form is, so to

speak, a projection of the past. In spite of fluctuations in the political economy, the criminal law has not become

insignificant and, though adjusted to a great extent to

present-day tasks, it exerts far-reaching effects. This cannot be comprehended if one tries to understand the penal system only from the viewpoint of today. Without a historical overview, it is impossible to rationally explain an

incomprehensible state of affairs. That means, however, that our economic theory has to be supplemented by a historical analysis without which the present system of crime control is incomprehensible. This work has not been done so far by legal historians. The history of law, as it is practiced at the moment, is far too much a brand of

positivist jurisprudence to be capable of analyzing it socio

historically. The history of the penal system is more than a history

of the alleged independent development of legal "institu? tions." It is the history of the relations of the "two nations," as Disraeli called them, that constitute a people?the rich and the poor. The unproductive and conventional notions which legal historians usually hang onto hinder more often than help a truly scientific explanation. And when jurists rise above the juristic horizon, they often treat their object of interest in the manner of a meticulous collector of

curiosities, without any criteria for the selection of the

significant, because they do not question the legitimacy of traditional archives. But historians record things which

appear important and remarkable to them, while we, however, are interested in day-to-day events. It is the same with reports about sensational legal cases which fill all the

newspapers but tell us little about the actual criminality of the masses.

Often, legal historians are guided not by an unprejudiced analysis of social laws, but by an evolutionary conception of the development of legal institutions: from barbaric

cruelty to the humanitarianism of the relatively perfect legal system which we supposedly enjoy today. They overlook that we are dealing with a very long, now halting, now regressive movement. Accordingly, they are often rather generous with praise for the eras which confirm their

IKCnRPUKATCD

Cloth label for Hamilton Mfg. Co., Lowell, Mass., ca. 1860

theory and at the same time scathing about those centuries which do not fit into it?a procedure which does not

always promote the understanding of facts.

Therefore, the task has been to study the historical

relationship between criminal law and economics, the

history of class struggle, and to utilize these interrelation?

ships to analyze the present prison system. At this point, only a short overview of the results of this research can be

given, as much as is necessary to explain the logic of this

essay ....

V.

In the history of punishment, three epochs succeed one another. They are characterized by the prevalence of quite different methods of punishment: penance and monetary7 fines are practically the only form of punishment in the

early Middle Ages; they are replaced in the late Middle Ages by a system of cruel corporal punishment and death sen?

tences, which in turn make way for prison sentences in the 17th century. If one compares these phases in the history of penology with changes in social history, one finds

surprising interconnections.

The early medieval system of fines and penance corre

Fall-Winter 1978/ 5



sponded to the needs of a thinly populated, peasant econ?

omy. The possibility of settling on free land hindered any strong social pressure on the lower classes and led to a

relatively even distribution of society's wealth. Thus, there were few crimes against property, for a farmer would

hardly take things from his neighbor which he could

produce himself at a much lesser cost in psychic expenditure. What led to crimes were rather the primitive stirrings of

sexuality and hatred. A real deterrent at this time was the fear of private revenge by the injured party. In order to

prevent this situation from degenerating into blood feuds and anarchy, society strove for accommodation. Crime was

regarded as a form of war and the goal of legislators was the reconciliation of the enemies by recognized principles rather than crime control as we know it today.

In the later Middle Ages, the situation changed com?

pletely. If, until then, as Schmoller says, "people were more in demand than property,"4 now there is a growth in

population, the land is settled and a crowding of the available living space occurs. A separation of classes into rich and poor begins; property less workers drive down wages; and, for the first time, a quasi-capitalistic mode of

production emerges; armies of beggars, social unrest and revolts, culminating in the peasant wars are the result. The nature of criminality is completely changed: a rapid increase in property crimes occurs and hordes of beggars, thieves and robbers flourish. As a result, the sphere of action of criminal justice had to be completely altered. If in the Middle Ages fines were preferred over corporal punish?

ment, now the traditional system of monetary fines had outlived its usefulness because these criminals had no

possessions with which they could pay. Gradually, tradi? tional punitive methods were replaced by whippings,

mutilation and killing, at first still redeemable through money, later the universal means of punishment of and

protection against the criminality of the gathering crowds of have-nots. The most gruesome imagination is hardly sufficient to visualize the justice of that time, which soon

plunged vagabonds into destruction side by side with bandits and murderers and ended with the extermination of the jobless proletariat.

Around 1600, the conditions of the labor market again changed fundamentally. The supply of labor became scarcer as a result of the expansion of trade and new markets, the influx of precious metals from the New World, and wars and plagues, especially the Thirty Years' War and its decima? tion of the population. A period of noticeable shortage of workers occurred; workers' wages rose and the standard of

living of the lowest class improved considerably. People became valuable and workers thought twice before putting their labor power at anybody's disposal. As the gains of the contractors receded and the "economy" declined, force

replaced economic incentive. The whole social structure is determined by this effort and, as a consequence of it, the system of mercantilism emerges. From this perspective, it is easy to interpret the well-known fact that until then it had been easy to collect soldiers in sufficient numbers simply through the "propaganda drum," for jobless proletarians


Working in a U.S. prison

streamed together in crowds wherever they saw a possibility for continuing their existence. But now they had to be enlisted with force and trickery because they could find more favorable conditions outside the military. In this situation of constant scarcity of workers, where everybody's labor is valuable, it would be an economically "senseless"

cruelty to keep destroying criminals. Confinement to prison takes over the role of corporal punishment and death sentences, "humanitarianism" replaces cruelty; wherever

there used to be gallows, now prisons stand. This humani? tarianism was absolutely profitable: "What good is a thief, who has been hanged because of 50 Gulden, either for himself or for the one he stole it from, when he can earn four times that amount in one year in a workhouse?" asks a

distinguished labor economist of that time, J.J. Becher.5 This "humanitarian" system of punishment lost its

utility when the Industrial Revolution, the replacement of the worker by the machine at the turn of the 18th century, removed the scarcity of workers, and the industrial reserve

army came into existence. The lower classes sank into

misery, underbid each other on the labor market, and

compulsory measures lost their meaning. Prisons were no

longer profitable. When wages were high, they had brought high gains; but when workers voluntarily offered their labor for a minimum existence, it was no longer worth it to come

up with the cost for confinement and supervision. The

proceeds of prisoners' labor were not even sufficient for the

upkeep of the building and the maintenance of the guards and prisoners. The prison failed in two ways: again, as in the Middle Ages, the criminality of the pauperized masses rose and the penitentiary no longer terrorized them. Some advocated the return to medieval methods of punishment. Though it was demanded loud enough, it did not materialize because hard-earned humanitarian ideals hindered it and

political wisdom kept the ruling class from overstraining an

already revolutionary situation with such open provocation. Penal punishment remained a leftover from a previous and

quite different epoch, but adjusted by necessity to changing needs. Institutions of forced labor, penitentiaries became

places of pure torture, suitable to deter even the most wretched. Prisoners were insufficiently clothed and were



cramped together. Work, having become unprofitable, served as torture: loads of stone had to be lugged without

purpose from one place to another by the prisoners: they had to work waterpumps which let the water flow back

again, or treadmills which were not used for any purpose. The discipline of this routine was reen forced by the deter? rent effect of beatings.

The introduction of solitary confinement was only an

apparent reform. It too was a punitive device which could

arouse fear even in the hungry and act as a deterrent for

people who did not know how to stay alive. For there is

hardly a greater torment than the feeling of total depend? ency and helplessness, being cut off from all stimulations and distractions, which is induced by solitary confinement.

Only in form did the idea of deterrence differ from the

corporal punishments of the Middle Ages, but the con? science of the reformers could be at peace. In solitary confinement they could see, not torture, but the reform of

the penitentiaries. In America, punishment developed differently than in

Europe because there was a greater demand for workers

than during mercantilism. The free land and industrial

development created a vacuum in the labor market which

immigration could not fill. Everybody who was the least bit useful could find work, wages were high, possibilities of

upward mobility were not closed to any capable person. The lowest socially important class were the unskilled, recent immigrants or the native colored workers. Public

assistance for the unemployed was not needed. For the sick

and weak, and those unable to work, private philanthropy was enough. The number of crimes was low and the form of

punishment could take this into account. As under mercan?

tilism, prisons became very profitable places of production whose main task was to transform criminals through education into useful members of society, i.e., industrious

workers. Consequently, reformers were able to make

surprising gains ?education, learning of skills, hygiene, indeterminate sentencing, conditional pardon, probation,

parole, separate treatment of juvenile delinquents and first offenders all had their starting point here. Also, scientific

organizations investigated the individual and social causes of crime and methods of crime control through welfare and

prevention.

Only when the situation improved somewhat in Europe, when the pressure of the unemployed which had weighed on the labor market since the Industrial Revolution slowly subsided, when unemployment as a permanent phenomenon

disappeared, when social welfare lessened the misery of the

helpless and, therefore, the rate of criminality went down

considerably, was the American example slowly and hesitat?

ingly followed, more perhaps in theory than in praxis. The

development, for example, of effective aid for released

prisoners in the period before the war was motivated by the

scarcity of agricultural labor and employers' willingness to

accept any labor force, provided that they contented themselves with sufficiently low wages. Thus, there was an

urgent demand for vagabonds and criminals, as well as

foreigners.

VI.

After the war, when there was chronic unemployment, a breakdown of the labor market in the countries which were most affected was avoided by unemployment assistance.

Wages and the standard of living did not sink as low as they would have in an

unregulated economy. I wen those who

dropped out of the production process wen1 assured of

satisfying their most immediate needs and, generally,

they did not need to become criminals. Consequently, the

penal system was saved from the task, which it had to

perform several times in its history , of containing criminals

for whom prison would not be intimidating, given the

regular supply of food. Disregarding the short period of inflation, criminality did not rise above its prewar level; it even showed until recently a

declining tendency. As a

result, penal reforms which began even before the war did not at first have to be given up, but wen1 partially con?

tinued, given the favorable political climate ....

This effort, which was carried out in the last few years with considerable public participation, shall not be discussed at this point. As far as the results can be estimated, it is not

necessary to abandon the simple heuristic maxim to which

we evidently owe so many correct results.

In Germany, the class which is the most criminally endangered is the unemployed on relief, particularly young singles who keep house on their relief alone and at the

moment receive about seven to eight Mark per week lor all

their living needs. Besides this class, there exists a group of

people who do not receive assistance, for to a great extent

the effectiveness of our very humane welfare laws is under?

mined by the apparatus created for their realization. A large

part of the welfare law in Germany demands a high degree of a personal sense of responsibility from the officials. Given that the administration is cutting back personnel,

establishing written records, and asking for the centralization

of authority , the justification of aid in eaeli case means a

new burden for the functionaries, a burden which can be

avoided by a simple denial of aid to the petitioner. Any way, considering the extremely limited budget of public welfare, the officials are

encouraged to make a negative decision and

to refuse aid in case of doubt. Therefore, strong motives

exist for an unfavorable decision in any case.

The class of the unaided supplies the beggars, vagabonds, peddlers, prostitutes, pimps and those who lower the wages for occasional work of any kind ?guests of the hostels and

asylums, when they have "sleeping money," otherwise

without shelter, desperately awaiting the morning in

waiting rooms and hallway s?

According to our heuristic maxim, we should assume

that in the interest of deterring these classes, punishment must mean a hell which they would not voluntarily exchange for their living conditions. But until now, the satisfaction of the elementary needs of food and warmth does not seem to

have been denied the prisoners too much. On the contrary,

they receive "appropriate nourishment," which perhaps would even compare favorably with the nutrition of the

unemployed (the price of food in the prisons is about .70

Fall-Winter 1978/ 7



Reichsmark per day). The degradation, the meaninglessness of penal labor, the prison discipline with its enforced order, the exclusion of all normal sexual activity, as well as the

hostility of the overworked guards ?in short, the deprivation of freedom?appears to be effective enough so far. Accord?

ing to the scandalous trials of the last few years, a similar state of affairs must be assumed for education in juvenile reformatories. Naturally, the forces which bring about this state of affairs are anything else than conscious intent.

There is, however, an extraordinary confirmation of

the proposition expressed here: the dramatic breakdown of "humane" punishment in America. In the United States

today, the high level of unemployment is not absorbed by the welfare system. Consequently, there is an

unimaginable rise in crime, an

unimaginable brutality of repression, the

breakdown of all humanitarian reforms, the overcrowding of the prisons, hunger, filth, joblessness, hopelessness and

despair, leading to these penitentiary revolts, these out? breaks of madness, which for a time shocked world opinion.7

So far, the treatment of prisoners in Germany, though not as humane as some people assume, is nevertheless not as

harsh as in America. But our humanitarianism is hardly effective enough to lift punishment out of the sphere of that fatal dependency on which we based our theoretical

premise.

FOOTNOTES

1. See the Forward to Sidney and Beatrice Webb, English Prisons Under Local Government, London, 1922, p. xL

2. The most concise example is found in Kriegsmann, Einfuhrung in die Gef?ngniskunde (Introduction to Penology), Heidelberg, 1912, p. 175: 'The care must not go so far, that the prisoner is being spoiled, that the prison becomes el dorado of the poorest classes of

the population."

3. Frankfurter Zeitung, September 15, 1930.

4. Grundriss der Allgemeinen Volkswirtschaftslehre (Principles of General Economy), Volume II, Leipzig, 1901, p. 513.

5. Johann Joachim Becher, Politischer Discurs: Von den eigentlichen Ursachen dess Auff- und Ahnehmens der Stadt, Lander und Repub? liken (Political Discourse: Of the Actual Causes of the Rise and Fall of Cities, Countries and Republics), Frankfurt, 1688, p. 245.

6. The released prisoners should not be driven into joining these

classes, but are to receive welfare; but even then enough of them wind up among these groups: those who do not know their rights or

do not know how to defend them in a suitable manner, those who cannot register with the police because of previously committed

crimes, namely runaways from juvenile reformatories.

7. Compare my essay, "Zuchthausrevolten oder Sozialpolitik" ("Penitentiary Revolts or Social Politics"), Frankfurter Zeitung, June 1, 1930, No. 403.




labor market and penal sanction thoughts on the sociology of criminal justice

Documents