ii Prison On Trial

Prison On Trial Thomas Mathiesen

Third English edition (2006)

This third edition of Prison On Trial contains all the material from the first and
second English editions together with a new Foreword, Preface and Epilogue and
other revisions.

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First edition The first English edition of Prison on Trial was published by Sage
Publications Ltd. in 1990 (ISBN 080398225 9). This was a revised and updated edition
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 Thomas Mathiesen iii

Prison On Trial
Thomas Mathiesen

THIRD EDITION

Crilllinal Policy Series

Editor Andrew Rutherford

WATERSIDE PRESS

WINCHESTER UK
CHAPTER 1

Prison: Does it have a Defence?

THE PRISON: A SYSTEM IN GROWTH

'The phenomenon has European dimensions.' Thus wrote Michel
Foucault, in 1961, about the sudden and rapid growth of the new
institutions of confinement in the 1600s, institutions which brought tens
of thousands of people behind walls within a few decades. In his book
on the topic, he called the major chapter on the growth of the new
institutions 'The great confinement' (Foucault, 1967, Ch. 6).
That title, 'The great confinement', could well be used about the
European prison situation of our own time, the late 1900s. And though
precise comparisons of numbers and proportions cannot be made, it
could be said too that the phenomenon, in the late 1900s, has 'European
dimensions'.
In our own time, as in the 1600s, the large, central Western European
countries take the lead in a spectacular growth in prison populations.
Add to this North America, and the scene of our own time is more
complete.
Figure 1.1 shows the increase in prison populations between 1970
and 1985 for four selected large Western countries-the United States,
England and Wales, West Germany and Italy. The United States takes
the lead, with an increase from about 180 prisoners per 100,000
population in 1970 to a little under 320 in 1985, an increase of about 106
per cent over fifteen years. This includes federal, state and local prisons.
For the state prisons alone, the increase was even more marked-156 per
cent (based on Rutherford, 1986: 49). England and Wales shows an
increase from under 80 to close to 100 per 100,000. The figures for
England and Wales are all the more serious because figures went down
during the early 1970s, to a low of a little over 70 in 1974. We shall
return to this temporary trend in a moment. Suffice it here to say that it
means a major growth in English/Welsh prison populations over a few
years. Italy shows an increase from a little over 40 to over 70 per 100,000
during the period. This is close to a doubling of the prison population
over a period of fifteen years. Though Italy has shown a decrease after
the period (see below), the only country among these four which shows
a reversal of the trend during the period is West Germany, with a
marked increase up to 1983, but an interesting and major drop after that
year.
10 Prison on Trial

320 r - - - - - - - - - - - - - - - - - - - - - USA

300

280

260

240

220

200

USA 180
160

140

120

100
EnglandlWales
EnglandlWales 80 West Germany

West Germany 60 Italy

Italy 40

20 .................._ .................._ ........a--..........I...........-.-.a...---I.......a.--.&.........

1970 1975 1980 1985

Figure 1.1 Average number of prisoners per 100,000 inhabitants for the
United States, England/Wales, West Germany and Italy 1970-85
Source for the United States: Rutherford, 1986: 49. Figures only for 1970, 1978 and 1985.
The figures comprise federal, state and local prisons. For figures only comprising
federal and state prisons, see Austin and Krisberg, 1985: 18.

Source for England and Wales: for 1970-84: Prison Statistics England and Wales (1977 and
1984), London: HMSO. For 1985: Sim, 1986: 41.

Source for West Germany: for 1970-84: 'Strafvollzug 1984', Rechtspflege Fachserie 10,
Statistisches Bundesamt Wiesbaden. For 1985: information from Statistisches
Bundesamt Wiesbaden.

Source for Italy: for 1970-82: The Prisons in Italy: History, Development, Perspectives
(1985), Minestero di Grazia e Guistizia, Ufficio Studi, Ricerche e Documentazione.

Why the drop in West Germany? The process started with remand
prisoners in 1982, was followed by juvenile prisoners in 1983 and adult
sentenced prisoners in 1985 (Feest, 1988). The shift cannot be explained
 Prison: Does it have a Defence? 11

by the unemployment rate (which has increased dramatically rather than

decreased). It can only be explained marginally by demographic factors
(there are currently smaller birth cohorts, but any major effect of cohort
size could only have reached adult criminal courts in 1988 at the earliest).
The crime rate cannot explain anything (it has increased, or, for
imprisonable offences, only decreased slightly). There have been no
major changes in legislation (Feest, 1988: 4-6). The reduction, Feest says,
is therefore attributable to changes in the practice of prosecuting
authorities and/ or judges. He emphasizes the prosecutors in particular,
and speculates about whether the long tradition of academic critique of
remand, a growing number of ambulatory alternatives with an educative
function in relation to prosecutors, and the movement against prison
construction channelled through the Greens, may be important
background factors explaining increasing restraint on their part. Now,
these background factors are partly present in other countries as well.
Could their particular activation in the German context follow from
Germany's dark political experience in the fairly recent past, an
experience not shared (or not to the same extent) by other countries,
which warns seriously against an unlimited growth of the use of physical
power on the part of the state? We do not know, but sentencing practice
at least seems to be a factor, partly keeping figures in check.
But West Germany is the deviant case for the period concerned, not
only compared to the other three countries in Figure 1.1, but compared to
other large European states. Furthermore, the pressure on the prison
systems has also been great in smaller European countries, such as
Sweden, Denmark and Norway. Prison administrators have been greatly
concerned with the overload in Scandinavian prisons. In Norway, the
pressure has not led to a significant increase in the prison population, but
to a very sizeable waiting list: you now have to up' to serve your
sentence. The country has about 2,000 prisoners at anyone time, and-in
1985-about 6,500 on the waiting list. The waiting list increased by 49 per
cent between 1981 and 1985. Of course, there are priorities in the queue:
drug offenders and violent offenders do not have to wait. Yet the list
does not include only minor criminals. Thus, in late 1985, about 52 per
cent of the queue consisted of people who had not been convicted for
drunken driving (at the time, driving with an alcohol concentration of
0.05 per cent automatically implied three weeks or more in prison).
Finland is the only Nordic country with a steady decline in its (high)
pri$on figures during the period.
For Western Europe, a condensed general picture of the development
can be given. For the member states of the Council of Europe, the prison
figures for 1 February 1986 have been calculated with a basis of 100 on 1
February 1983 (Council of Europe, 1986: 27). Only four states showed a
12 Prison on Trial
decrease from the base of 100 in 1983: Austria to 95, West Germany to 91,
Malta to 89 and Sweden to 85. The decline in Sweden was temporary,
caused by a change in release practice in 1983 (see pp. 84-6). For all other
states where information was provided, a greater or smaller increase
could be seen: Belgium to 119, Cyprus to 110, Denmark to 109, France to
122, Greece to 109, Ireland to 145, Iceland to 106, Italy to 120,
Luxembourg to 116, The Netherlands to 124, Norway to 103, Portugal to
183, Spain to 104, England/Wales to 105 and Scotland to 108. Altogether,
this amounts to fifteen member states. It should be mentioned that three
of these, Belgium, Cyprus and Greece, showed a provisional peak in
1984, with a subsequent decline to 1986. However, the main overall
tendency is very clear.
Above, we have brought the figures up to 1985 or early 1986. We
should note that the overall tendency has continued in the latter part of
the 1980s. In absolute numbers, West Germany, Italy, Turkey, Portugal
and Malta showed a decrease between 1985 and (approximately) 1987.
Denmark and Norway were fairly constant (for Norway, however, note
the large queue mentioned earlier). But England and Wales, France,
Spain, Belgium, Sweden, Greece, Ireland, Luxembourg and Cyprus
showed an increase. Only three states showed a stable decrease from the
early part of the 1980s to 1987: West Germany, Turkey and Malta
(Council of Europe, 1987: 19-20). The total growth in absolute numbers
for member states in the Council of Europe, excluding Austria, Iceland,
The Netherlands, Switzerland and Turkey, between 1971 and 1986 is
shown in Figure 1.2 (the necessary data for Austria, Iceland, The
Netherlands and Switzerland are not available; Turkey is omitted due to
special features of the Turkish situation). The overall development for
Western Europe has also continued beyond 1986/87: between 1 February
1987 and 1 February 1988, a clear majority of eleven out of nineteen
countries within the Council of Europe showed an increase in their
prison populations: Iceland (with 13.3 per cent), Italy (8.4 per cent),
Cyprus (8.3 per cent), Sweden (7.8 per cent), Spain (7.2 per cent), Greece
(6.1 per cent), Luxembourg (5.8 per cent), France (4.1 per cent), Ireland
(3.2 per cent), Federal Republic of Germany (3.1 per cent; in contrast to its
long-term decline), and the United Kingdom (2.3 per cent). In three
states, the figures were relatively stable: Belgium (0.6 per cent), Denmark
(-0.2 per cent), and Portugal (-1.7 per cent). Five countries saw a drop:
Turkey (-2.5 per cent), The Netherlands (-4.0 per cent), Norway (-6.0 per
cent; note again, however, the large queue), Austria (-6.4 per cent) and
Malta (-25.3 per cent); Council of Europe, 1988: 18). Though it should be
noted that detailed comparisons between countries are a hazardous
business due to differences in registration practices, the general tendency
is clear. For the United States it may be added that by 1989, the state of
 Prison: Does it have a Defence? 13

California had reached 570 prisoners per 100,000 inhabitants (and 255 on
death row; information provided at IV International Conference on Penal
Abolition, Kazimierz Dolny (Warsaw), May 1989).

240
Populations at 1 January (in thousands)

230

220

210

200

190

1971 1975 1980 1985

Figure 1.2 Changes in prisoner numbers in Council of Europe member states

since 1970 excluding Austria, Iceland, The Netherlands, Switzerland and
Turkey
Source: Prison Infonnation Bulletin, Council of Europe, No. 9, June 1987: 18

The growth becomes all the more significant if it is viewed in a

somewhat broader context. Four features should be kept in mind.
First, the growth implies that conscious efforts, made in several
Western countries during the 1970s and the early part of the 1980s, to
change the course of development of the respective prison systems, were
quickly and easily overcome by other forces. The mid-1970s saw a
decline and to some extent a reversal of the growth tendency in prison
figures. For example, a decline could be seen in several states in the
United States, in England and in Sweden. At the same time, conscious
efforts were made to channel convicted individuals into alternative
measures, and in several countries-such as Sweden and Norway-the
14 Prison on Trial

political administration in the area of criminal policy was distinctly

liberal, with ministers of justice having liberal convictions or inclinations.
The early 1980s saw attempts, in Sweden and Denmark, to halt prison
increase by, inter alia, changes in release practices and in maximum
sentences (for more details, see pp. 90-2 and Chapter 6 below). These
efforts and tendencies were rather quickly superseded by later
developments in Sweden and Norway, with the political 'fall' of liberal
cabinet ministers.
Secondly, if the growth of the prison systems between 1970 and the
latter part of the 1980s is seen in a broader time perspective, two major
trends appear. Together, the two trends form a general picture. On the
one hand, in some countries the growth dates from before 1970. This, for
example, is the case for England/Wales, where an important increase
took place before 1970, and where the prison population per 100,000
population was about 32 in the 1930s, as opposed to a little less than 80 in
1970 and 96 in 1985. In England/Wales, then, the growth is a part of a
long-term trend. On the other hand, in some countries the growth
superseded major falls in prison figures before 1970. This is the case for
Italy, West Germany and Norway. In Italy, new legislation concerning
pardoning was introduced in 1970, bringing prison figures down to the
lowest number since records have been kept (1860). In West Germany,
the number of short prison sentences was significantly reduced prior to
1970, also bringing prison figures significantly down. In Norway, public
drunkenness was decriminalized in 1970, resulting in the release of a
large number of alcoholic vagrants, who had spent years in forced labour
camps within the prison system, again bringing overall prison figures
down. The subsequent increases in prison figures mean that with the
possible exception of West Germany, reforms of this kind were more
than neutralized by later developments.
One reservation should be made: however overcome by later
developments, some of the reforms, prior to 1970 as well as later, did
contain interesting evidence in terms of finer details pointing to the
possibility of change in prison policy and figures. We shall return to
some of this evidence in the final chapter (Chapter 6).
But as an overall conclusion, it may be said that the present growth
has either been part of a long-term trend, or been of such strength that
even major reforms prior to 1970 have been cancelled out as far as effect
goes.
Thirdly, in several countries the growth has led to appalling prison
conditions. The doubling of prison figures in Italy between 1970 and 1985
meant extensive overcrowding. The growth in England/Wales and
France, as well as several of the smaller European countries, has brought
about the same result. For the United States, conservative and reputable
 Prison: Does it have a Defence? 15

Time magazine had this to say about prison conditions as early as 1983 (5
December):
This spectacular increase has created appalling living conditions for many
inmates, who are sleeping in gymnasiums, day rooms, corridors, tents,
trailers and other forms of makeshift housing. Until early November, 170
prisoners were sleeping on the floor of a gymnasium at Illinois' Centralia
Correctional Center. And Maryland, with one of the country's most grossly
crowded systems, is bunking prisoners in basements, recreational areas,
temporary buildings and 'anywhere they'll fit', according to an official.

Fourthly, the growth in prison figures has-in varying degrees in many

countries-been followed by major building programmes in the prison
systems concerned. The building programme in the United States became
a public issue in the early 1980s, when, to quote the same cautious
source, Time informed its readers (5 December 1983) about 'A growing
crisis behind bars', and about the fact that 'New prisons cannot be built
quickly enough to accommodate all of the new inmates . . . The
construction bill alone is enormous: about $4.7 billion in prison and jail
construction is planned across the country over the coming decade,
including $1.2 billion for 16,500 new cells in California and $700 million
for 8,800 in New York'. The sums, in other words, are extremely large.
An important development in the United States is the advent of private
prisons. The market mechanism, with an emphasis on profit, is currently
in the process of penetrating a prison system under pressure. In
England/Wales the autumn of 1985 saw the planning of sixteen new
prisons, with total costs of about £500 million (1983 value). Twelve
thousand new prison places were planned (Sim, 1986: 42). The
programme has been characterized as the 'biggest-ever jail-building
programme' in England (The Evening Standard, 23 November 1983: 5). For
the smaller European countries, the building programmes are more
modest. But they are usually there, with prison construction for example
in Sweden, Norway and Holland.
The growth of the Western prison systems, and the four features
mentioned here which expand on the growth, add up to a conclusion. In
terms of statistical developments, living conditions, and construction
programmes, there are significant differences between Western prison
systems-as there are in terms of size, with a range from 45-60 inmates
per 100,000 in Holland and the Scandinavian countries through 100 per
100,000 in England/Wales to far more than 300 in the United States.
Despite these differences, which should be given their due emphasis, a
change appears to be taking place as far as the role of the prison goes: the
importance of the prison, as a sanctioning mechanism, seems to be
increasing. With some exceptions, the phenomenon seems to be general
16 Prison on Trial
throughout the West. In some countries, notably the United States and
Great Britain, the increase is staggering.
The growth of the prison systems raises a new question: why the
growth?

WHY THE GROWTH?

The question is complex. It is not easy to give an unequivocal answer.
But some explanations may be ruled out, at least as major explanations,
and others given credibility. Three possibilities will be briefly reviewed.
The first is that the increase follows from an increased crime rate,
notably an increase in registered crime. With the courts as an intervening
mechanism, the registered crime rate is presumably automatically
reflected in higher prison figures. There are several problems with this
explanation. Two may be singled out.
For one thing, we have solid empirical examples showing that the
registered crime rate may go up while the prison rate goes down, and
vice versa. West Germany today partly provides an example of the
former possibility (see p. 11). The 1970s provide a good example of the
latter: in many countries-notably in Scandinavia-the crime rate
showed a rapid increase during that decade, while prison figures were
failing or at least constant.
For another, the crime rate is not unequivocally increasing at present.
In the United States, the national crime rate was dropping in the early
1980s, while prison figures were soaring (Moerings, 1986).
An automatic reflection of the general crime rate in prison figures, if
it had occurred, could have been interpreted as a consequence of political
decisions: it would have implied that the countries concerned simply
followed the same criminal policies as earlier. Put differently, even such
an automatic reflection would have been a result of political decision
making-an often overlooked fact. However, since an automatic
reflection hardly exists, even more clearly political interpretations are
near at hand.
A second possibility is that a change has been occurring in the
pattern of criminalization. New behaviour patterns may have been
drawn into the criminal policy orbit and criminalized, or criminalized
more harshly. This seems to have happened in several European
countries as far as drug offences go. Increased criminalization and
harsher legislation/sentencing· practice in relation to drug offences has
apparently been of great importance in countries like Holland (de Haan,
1986) and Norway (Falck, 1987). For example, Norway recently (1982)
changed its classification of drug use from misdemeanour to felony
(jorseelse to forbrytelse), thus increasing the degree of criminalization.
 Prison: Does it have a Defence? 17

Within a few years, the maximum penalty for drug-related offences in

Norway has increased from ten through fifteen to twenty-one years of
imprisonment (see also pp. 122), a fact which his influenced sentencing
practice in a major way. Of course, drug-related offences as such,
reflected in the registered crime rate, have also increased. But without
the increase in criminalization, and without the above mentioned
spectacular increase in maximum sentences (which is all the more
spectacular in view of Scandinavia's relatively low punishment level),
the significant increase in the number of long-term drug offenders in
prison would certainly not have occurred to the same extent. And that
number clogs up the system, and is in a major way responsible for the
Norwegian queue.
A third possibility, which does not exclude the second one, is that a
general increase in the punishment level has occurred across several, or
some, offence types. There is evidence to suggest that this has happened
in several countries, partly through legislation, partly through sentencing
practice, partly through both. It seems to have happened for example in
the United States. Mandatory sentencing legislation, stipulating that
offenders convicted of certain crimes, or of a succession of crimes, must
go to prison, is part of the pattern. For example, the prison explosion in
the state of New York may partly be viewed as a result of a 1978 law
requiring judges to imprison all violent-felony offenders. At the same
time, minimum prison sentences have been significantly increased in
many states. In Norway, the number of long-term unconditional prison
sentences, which for that country means one year or more, has increased
significantly from 1981 on, as opposed to the shorter sentences, which
have stagnated (B0dal, 1984; with supplementary data in Mathiesen,
1987: 36). The number of drug-related offences with long sentences may
partly, but probably not wholly, account for this. There seems to be a
general tendency, also in Norway, towards a higher punishment level for
several offences over and above the drug-related ones.
Of the three explanations given so far, the first-the automatic
reflection theory-has been more or less ruled out, whereas the second
and the third-new criminalization patterns and a generalized increase
in punishment level-have been given credence. As already suggested,
different countries probably vary in terms of the latter two explanations.
On this level of analysis, it may therefore be said that there is no one
'cause' behind the institutional growth pattern. But on a more
generalized level, the two explanations have something in common:
whether through new criminallzation patterns and/or more or less
across-the-board stiffer legislation/sentencing practice, the implication is
that a tougher criminal policy, with more active use of prison as a
response to criminality, is behind the growth. In one form or another,
18 Prison on Trial
then, a more severe criminal policy, with more relentless use of prison,
seems to be an underlying pattern in a wide range of Western countries.

A NEW STAGE IN THE USE OF PRISON?

In several countries the institutional growth pattern is so marked that one
wonders whether we are entering a new stage in the use of prison.
When asking this question, we should note immediately that the
prediction of institutional development is a hazardous business. The
history of institutions is full of examples of predictions that proved to be
false. One example is the development of prisons in Norway in the 1800s.
As a consequence of the change from corporal punishment to prison
towards the end of the 1700s, prison figures showed a spectacular
increase during the first part of the 1800s. Responsible authorities,
predicting continued increase, were greatly worried, and during the
1840s an extensive building programme was launched. But after the mid-
1840s, figures again declined significantly, and continued to do so until
1900. From then on, figures were fairly stable for many decades, in fact
during most of this century.
As we shall shortly see, however, the concept of 'stages', and the
possibility that wOe are entering a new stage of penal development, may
usefully be introduced without implying that prison figures will continue
to rise more or less indefinitely. Irrespective of the difficulties of
prediction, a new stage of development in a sociological sense may be
hypothesized.
The prior development of Western penal institutions, and the growth
of such institutions, may be viewed in terms of two major stages.
The first stage was the 1600s, which we have referred to already.
Numerous works have been published on this particular period of
institutional history (among them Rusche and Kirchheimer, 1939; Cole,
1939; Sellin, 1944; Foucault, 1967; Wilson, 1969; Olaussen, 1976;
Mathiesen, 1977). This was the stage of the first rise of the institutional
'solution' to social problems. Those incarcerated were not just criminals,
but a broad range of unemployed beggars and vagrants. And
institutionalization did not supplant physical punishment, but was
apparently added to it. In the wake of Rusche and Kirchheimer's classic
work, which emphasized the importance of variations in the labour
market as a causative factor, a great debate has followed concerning the
causation of the rise of institutions during the 1600s. We need not enter
the debate in detail here; it is well known, and readers not familiar with
it are referred to the works mentioned above. For our purposes, two
points may briefly be singled out.
 Prison: Does it have a Defence? 19

First, the institutions which saw such a rapid and spectacular growth
in the late 1500s and during the 1600s-so-called hospitals in France,
zuchthausern in Germany, tuichthuisen in Holland, correctional houses in
England, and tukthus in the Norwegian periphery 100 years later-were
to a large extent forced labour institutions. Labour, selected on the basis of
market considerations and performed as profitably as possible,
constituted a major core of institutional life-knitting in France (Cole,
1939), the rasping of wood in Holland (Sellin, 1944), and so on.
Secondly, however, the emphasis on profitable labour did not
necessarily constitute the 'cause' of the rise of institutions. The study of
social 'causation' presupposes knowledge of the relevant actors'
subjective motivation or definition of the situation. That motivation or
subjective experience may be formed by a context of factors, but is in
itself a necessary condition for grasping the 'why?' question when it
comes to dramatic political changes such as the introduction of
institutions on a grand scale throughout a continent. Although there
were variations, substantial historical material (summarized in
Mathiesen, 1977) suggests that what primarily motivated the French, the
British, and even the Dutch mercantilist state builders of the 1600s was
the deeply troublesome issue of the vagrants in European cities and
towns. After the breakdown of the feudal social order based on
disposition over land, Europe in the 1500s and 1600s was overpopulated
by large numbers of people-beggars and vagrants in general-adrift in
society (for attempts to give figures, see Wilson, 1969: 125; Cole, 1939:
264, 270). The vagrants constituted a deeply disturbing and disruptive
element to mercantilist production and trade. The control of the vagrants
therefore became an immediate political problem. The numbers were far
too large for old-fashioned penal methods alone to be effective, and mass
rounding up and subsequent incarceration on a large scale became the
solution. Once institutionalized, it is not surprising that the beggars and
vagrants were put to work, and to as profitable work as possible. This
was entirely in line with mercantilist economic philosophy.
In short, then, the first stage of institutional development had the
disciplining of new and highly disturbing groups of people as its
motivational background.
The second stage of development occurred during the late 1700s and
early 1800s. Again, the phenomenon had European dimensions. This was
the time of the differentiation of the criminals, and their placement in
actual prisons in the modem sense. And this was the time when the
institutional 'solution' actually supplanted physical punishment. Much
has been written about the institutions of the 1800s (Rusche and
Kirchheimer, 1939, Ch. 8; Foucault, 1977; Melossi and Pavarini, 1981). In
terms of ideological content, Godly penitence, in the context of radical
20 Prison on Trial
isolation, was central, at least in Europe. A number of new penitentiaries
were built for the purpose. What was the motivational background of
this development? The question is clearly complex, but the following
hypothesis may be ventured.
By this time, the large European countries were entering a new mode
of production, the truly capitalistic mode. A formally free working class
was now in the making. But it was an impoverished, destitute working
class. Crime was in a very real sense rooted in material poverty. The
violent physical penal methods of earlier times could in theory have been
used against the crimes of the new class. But physical punishment could
not sensibly be related to the new type of discipline-'the assembly line
discipline'-which was now being developed in the economy, and which
was demanded in production. It seemed senseless to use spectacular and
arbitrary mutilations when people were to be adapted to the pedantic
and detailed types of disciplined work now necessary in production. On
this motivational background, the new truly disciplinary prisons-the
penitentiaries so well described by Foucault-rose as a main method of
bringing the impoverished criminals of the new working class in line.
Thus, the second stage of institutional development also had the
disciplining of new groups-the deviants of the working class in the
making-as a main motivational background.
With this as a background, we may return to our original question:
are we today entering a third stage of institutional development? Three
major developmental points suggest that we are.
First, the major long-term increase in prison populations. Similar
increases characterized the two prior stages. As already pointed out, the
present increase may level off or even decline at some later date, due to
new historical conditions. But as we have illustrated, so in fact did the
increases during the 1600s and the 1800s. The concept of 'stage' as used
here does not imply that incarceration reaches a new and higher plateau
than earlier stages, although this has been suggested as a possibility for
some countries (for the United States, see Austin and Krisberg, 1985). The
concept of 'stage' only implies that a dramatic and long-term increase
takes place.
Secondly, the greatly increased significance of the institutional
solution as a component in criminal policy is important. Today that
increased significance is reflected in the sizeable or enormous building
programmes in a number of countries, and the general expansion of the
prison systems in question. Similar increased significance of institutions,
including large scale building programmes, characterized the 1600s and
the 1800s. Then as now, the institutional solution moved to become a
much more centrally located factor in the sanctioning system.
 Prison: Does it have a Defence? 21

Thirdly, a presumption on the part of responsible authorities is

present to the effect that there is an increased need for the disciplining of
important population segments and groups. This is reflected in the
significantly increased reliance on stiffer legislation involving prison
and/or longer prison sentences, partly for new groups such as drug
offenders, partly on a more general level. As we have suggested, a
presumed increased need for discipline was probably an important
motivating factor also in the 1600s and the 1800s. As far as the late 1900s
go, we may now briefly expand on this latter point.
As a point of departure, legislators and the courts may be viewed as
'anxiety barometers', that is, institutions which, through their decisions,
reflect the anxiety level in society. (The term 'anxiety barometer' is taken
from Box and Hale, 1982, 1985, but used independently here.)
Our times are full of disquieting signs. Some of these are close to us
and therefore observable, such as, in many Western countries, political
protests, conflicts between immigrants and other parts of the population,
and stagnation or even dissolution of social services and support systems
which a few years ago were thought to be utterly solid. Other worrying
signs are reflected through the Mass media: for example, increased
violence (despite the fact that violent crimes have only increased slowly,
and despite the fact that a large majority of them are of the least serious
kind), increased drug use (despite the fact that drug use-at least in the
Norwegian setting-has stagnated, and despite the fact that heavy use is
limited to a few; see Hauge, 1982; Christie and Bruun, 1985), and so on.
With their tendency to focus on personified drama, the mass media have
a significant magnifying effect on the realities involved in these issues.
Together, the actual conflicts and the media-enlarged problems produce
a 'legitimacy crisis', that is, minor or major breakdowns in people's
confidence in general in the state's attempts at problem solution and
people-oriented activity. I would say that 'below' the legitimacy crisis we
find the economic crisis: the late capitalistic economic stagnation, in
several countries with persistent and extremely high unemployment
towards the end of the 1900s. But in people's minds, the crisis appears as
a question of confidence in the state's problem solution in a wide sense.
There are probably great variations in the extent of the legitimacy
crisis in various Westem countries. The crisis seems to be widespread
and deeply felt in the British context (Hall et al., 1978). It is probably less
widespread and not so acute in a society like the Norwegian, with
greater confidence in public solutions common to everyone. But the
question of confidence is certainly present there too.
The legitimacy crisis is reflected in the decision-making process in
legislative bodies and the courts. More precisely, in both of these
institutions the legitimacy crisis is perceived as a new and increased need for
22 Prison on Trial

discipline in given segments and groups in the population. Put differently,

when the confidence in public and authoritative organs begins to fail, the
failure appears, from the point of view of the legislators and the courts,
as an increased need for discipline. The definition of the situation on the
part of legislators and the courts constitutes a connecting link between
external and influential factors such as actual conflicts and media-created
problems on the one hand and the growth of the prison system on the
other. When legislators and judges experience the situation this way, that
experience becomes consequential for penal practice and development
(Box and Hale, 1982).

In the preceding discussion, we have viewed the development of the

penal system in a sociological context. But the galloping development of
the prison solution most certainly also represents a question of values.
The question of values is this: do we wish to have this galloping
development? Do we want a society which is becoming increasingly.
reliant on the use of prison as a major method of conflict resolution? The
question of values is acutely important.
First, it is important to the increasing number of people-in England
one out of a thousand of the population, in the United States between
three and four out of a thousand-who are in prison at anyone time, and
who are subject to isolation, rejection, deprivation and meaninglessness.
Secondly, it is important to the political climate and life of the
society. The growth of the prison solution implies a significant change of
traditional methods of controL It implies that sheer physical repression is
increasingly used in relation to significant parts of the population.
Thirdly, the question of values is important in a wider cultural sense.
The use of physical force through prison signals that violence is an
adequate method of conflict resolution in society. A significant increase
in the use of physical force will strengthen that signal, thus having wide-
ranging effects on our norms and on our understanding of our fellow
human beings.
This book is written in an attempt to take the question of values
seriously. It is written in an attempt to contribute to the levelling off and
reversal of the major contemporary trend. It is written in an attempt to
contribute to the shrinking-perhaps abolition-of the prison solution.
As I have indicated, the developmental sequence in terms of growth
and possible stages may usefully be viewed with a background in broad
economic and social forces: the breakdown of the feudal social order
towards the 1500s and 1600s, the new mode of production before and
during the 1800s, an economically motivated, increasing legitimacy crisis
during the late 1900s. These forces create conflicts and issues perceived
and treated as issues of discipline. But the implication is not that
 Prison: Does it have a Defence? 23

institutional development is pre-determined, inescapable, and not subject

to change through concerted and persistent political action.
My contribution is a modest one: it consists of a collection of
arguments. In the chapters that follow, I shall discuss in some
considerable detail the usual arguments for the prison solution, used by
those advocating that solution. I will confront these arguments with a
wide range of empirical evidence and theory, and for each argument I
will raise the following question: Does prison have a defence on these
grounds?
When discussing the various arguments in favour of prison, and
when confronting them with theory and evidence, I will not be
particularly original. I will rely on my own research, but certainly also
heavily on the work of others. So far, however, much of the discussion of
these issues has been scattered throughout criminological and
sociological literature. Because they are scattered, the various parts of the
discussion have little or no bearing on policy, and remain the semi-
secrets of criminological and sociological specialists. I see my task as that
of bringing the scattered discussion together, thus in a collected and
systematic fashion taking stock of the prison as a mode of punishment in
our society.
When delivering this contribution, and when thus taking stock, I am
making an assumption. The assumption is that commW1icative
rationality-where 'rationality' is taken to mean sensible and convincing
argumentation rather than efficient methods to reach ends-may have a
political effect, and is still a political possibility, in societies like ours.
Certainly, much of sociology and criminology goes against such an
assumption. Most significantly, much of what we know about the
communication systems of modem society goes against it. Political
decision making in our society is very far indeed from anything like a
'seminar'.
Yet I make the assumption, believing that it most certainly should
not be left unmade and untried. Added to this, on my part, comes a
strong belief in political practice related to argumentation.
Perhaps my belief in communicative rationality in the area of penal
policy stems from the fact that I personally live and work in a very small
society on the periphery of Europe-where arguments still have a
chance. If arguments do have a better chance in such a society than in the
large Western countries, perhaps the latter countries may learn
something from the former through a book like this.
CHAPTER 6

The Future of Illlprisonlllent

The theories of individual prevention-rehabilitation, incapacitation,

individual deterrence-are unable to defend the prison. Neither is the
other major theory of social defence-the theory of general prevention.
And neither is, finally, the theory of justice. The prison does not have a
defence, the prison is a fiasco in terms of its own purposes.
This is what we find when we carefully and in detail take stock of the
prison. It forcefully raises the question of what is to be done with the
prison. Before trying to answer that question, it is necessary ·to look at
another: since the prison is a fiasco in terms of its own purposes, why do
we have prisons at all?

THE IDEOLOGY OF PRISON

In a very general sense, it may be said that we have prisons despite the
fiasco because there exists a pervasive and persistent ideology of prison in
our society.
Ideologies are belief systems which render social life meaningful and
legitimate. An ideology of prison exists which renders the prison as an
institution and a sanction meaningful and legitimate. The ideology of
prison contains two major components-a supportive and a negating
component.

The supportive component

Some fifteen years ago, I argued that the prison serves four important
ideological functions in advanced welfare state capitalist societies
(Mathiesen, 1974: 76-8).
I called the first of them the expurgatory function. I saw the prison as an
institution within which a proportion of the unproductive population of
late capitalist societies could be housed, controlled and conveniently
forgotten. I saw the prison, in this perspective, as part of a much larger
expurgatory system-comprising a wide range of institutions and
institutional arrangements.
The second function was the power-draining function. Those who are
purged away, I argued, are placed in a structural situation where they
remain unproductive non-contributors to the system containing them.
Unlike the factory's dependence on the workers' contribution, which gives
142 Prison on Trial
the workers power because they can withdraw the contribution, the prison
is not dependent on the prisoners' contribution.
The third function was the diverting function. Socially dangerous acts
are increasingly being committed by individuals and classes with power in
society. Those caught by the punishment machine, and especially those
placed behind bars, are, on the other hand, very largely traditional
criminals from the lower working class. The heavy-handed use of prison
against them, I argued, diverts our attention from the dangers flowing
from those in power.
The fourth and final function was the symbolic function. I saw the
symbolic function as closely related to the diverting function, but with a
difference: when those caught by the punishment machine are imprisoned,
they are stigmatized as black. Against this background the rest of us, on
the outside, may define ourselves as all the whiter, though also we are
certainly grey or black.
A basic underlying notion in the analysis was that though other types
of institutions and institutional arrangements have these functions too, the
prison in a unique way combines all of them. Therefore the prison
survives, even in situations where other institutional types are dismantled.
I viewed these functions as ideological in the sense mentioned above.
Nowhere do we see more clearly that ideological functions have material
underpinnings (Mathiesen, 1980). In terms of observable consequences,
the prison physically helps to bifurcate society between the 'productive'
and the 'unproductive'; it sets up a structure which, quite observably,
places the prisoners in a powerless situation; it also sets up a structure
which places members of one class in such a situation that the attention we
might pay to the members of another is diverted; and it uses a variety of
physical-but not only physical-methods to stigmatize the members of
the former class. But the functions as such are ideological: they make
prisons appear meaningful and legitimate.
Through the fifteen years which have passed since the above analysis
was presented, I have not seen analyses or data fundamentally
contradicting the significance of the functions summarized here. I would
today add a fifth function, perhaps equally important, which I would call
the action function: the prison, and imprisonment, is the most observable
type of sanction in our society. In earlier times, bodily harm was the most
observable type. Our society has passed beyond that sanction. The prison,
however, is equally observable, not on the individual level, but as an
institutional entity. In this sense there is continuity and change between
the two types of sanction. They are similar in the sense that they both
'stand out', as positive, observable signs that something is done. They are
dissimilar in the sense that the former sanction is observable in
individuals, and the latter in establishing a physical arrangement covering
 The Future ofImprisonment 143

large numbers of people. The change is in turn continuous with a changed

society: modem society, with its size and complexity, in this context
requires collective solutions. By relying on the prison, by building prisons,
by building more prisons, by passing legislation containing longer prison
sentences, the actors on the political level of our own times thus obtain a
method of showing that they act on crime as a category of behaviour, that
they do something about it, that something is presumably being done
about law and order-to quote the title of a recent book. No other sanction
fulfils this function as well.
The analysis may be tied to the introductory discussion in Chapter 1.
There we emphasized that the three major stages in the development of
prisons may be viewed as institutional attempts to discipline disturbing or
threatening population categories, brought forth by basic upheavals in
society, in our own time by an important legitimacy crisis on the part of
the state (see pp. 18-21). The various theories of punishment and prison
which we have reviewed in the preceding chapters are ideologically
acceptable and rationalized formulations of such a perceived need for
discipline. The functions introduced here explain why the prison
continues to exist and thrive despite the fact that the need, formulated so
acceptably and rationally, is not met.

The Negating Component

The ideological functions discussed above constitute a 'supportive'
ideological component in the sense that they imbue the prison with
something positive. The prison performs something. The ideology of
prison also contains what we may call a negating component, that is, a
component through which the fiasco of the prison is negated.
Negation of the prison's fiasco takes place in three important public
spheres in society-in the widest public sphere, consisting above all of the
whole range of modem mass media; in a narrower public sphere,
consisting of institutions directly engaged in crime prevention such as the
police, the courts, the prosecuting authorities and the prisons themselves;
and in an even narrower sphere consisting of particular professional
groups, for example in research.
The three public spheres are, simultaneously, systems which
supposedly perform the task of continually keeping institutions such as
the prison under review and control. The first sphere may be called the
'outer' feedback circle of control, the second may be called the 'inner'
feedback circle, and the third may be viewed as a kind of 'kernel' circle.
Therefore, the negation which takes place of the prison's fiasco is
particularly serious.
144 Prison on Trial
In the first public sphere or feedback circle, negation takes place
through what I will call non-recognition, in the second through what may
be called pretence, and in the third through disregard.
In the widest public sphere or 'outer' feedback circle, non-recognition of
the prison's fiasco takes place all the time. In the newspapers, on
television, in the whole range of media, the prison is simply not
recognized as a fiasco, but as a necessary if not always fully successful
method of reaching its purported goals. The prison solution is taken as
paradigmatic (see pp. 55-8), so that a rising crime rate is viewed as still
another sign showing that more prison is needed.
In the narrower public sphere or 'inner' circle-in the police, the
courts, and so on-there is also a good deal of non-recognition of the
fiasco. But the fiasco is also partly recognized as such. The various earlier
quotes from authoritative Swedish sources are indications of this. Many in
the police, in the courts, in the prosecuting authorities, know. But pretence
takes over: the participants pretend that the prison is a success, though in
fact it is not and they more or less know it. Pretence in this sense may be
found throughout the police, the courts, and so on. Why? Because without
it, much of the work done by people and institutions within this sphere
would appear meaningless and counterproductive.
It is important to realize that the boundaries between the wider and
the narrower public spheres are perforated, so that the pretence in the
'inner' circle feeds into the non-recognition pattern in the 'outer' circle,
perhaps in many ways creating it, or at least supporting it. There is, in
other words, an important interaction between the two spheres.
In the narrowest public sphere, or 'kernel' feedback circle consisting of
professional groups such as researchers and others, there is probably non-
recognition as well as pretence. But for professionals, and indeed for
researchers, it is more difficult not to recognize the fiasco, and it is-in
view of very traditional professional and research ethics-more difficult to
pretend or lie that success reigns when in fact a fiasco is recognized. But
here disregard partly takes over: the ineffectiveness of prison, and the deep
troubles involved in establishing proportionate justice, which are well
known, are overlooked: simply not discussed or treated in the context of
the functioning of the penal system as a whole. The prison as such is
conveniently forgotten in some of the discussions.
Again, there is interaction between the various spheres: the boundary
between the narrowest sphere and the two other spheres is perforated, so
that the disregard in the narrowest sphere spills over into the other two,
strongly supporting pretence as well as non-recognition there. The
disregard of the facts of the fiasco supports, if not creates (that would
imbue researchers with too much influence), the development of
mythology in the other spheres.
 The Future of Imprisonment 145

Let it be emphatically. stated that not all research has the quality of
disregard. There is, certainly, a large body of research of a fact-finding,
critical kind; if there was not, this book could not have been written. But it
should be recognized that the information reception centres in the other
spheres-journalists in newspapers, etc, as well as police chiefs, judges
and so on-actually seek confirmation rather than information, so that the
message of disregard is quite selectively transposed in the other spheres, in
line with the convictions and needs in those spheres. This makes the
responsibility of those disregarding the facts of the fiasco all the greater.
While non-recognition in the widest and pretence in the narrower
sphere are probably reasonably acceptable notions to many readers of a
book like this, the process of disregard in the narrowest sphere, especially
in the research branch of it, requires some further detailing. We shall
return to this detailing shortly.

WHAT IS TO BE DONE?
In one sense, what is to be done is a simple question. The fiasco of the
prison rationally requires a contraction of the prison, and an eventual
abolition of it. From a practical point of view, however, the question is
obviously not so simple. The strategic problem is acute.
When approaching the question, it is essential to keep the ideological
character of the functions and defences of the prison in mind. The purging,
power-draining, diverting, symbolizing, and action-signifying functions of
the prison make it appear meaningful and legitimate, and throughout the
spectrum of public spheres or feedback circles, a pervasive ideological
mystification packages this legitimacy further.
With this as our point of departure, we shall proceed by sketching
some possible steps, keeping in mind that this is the beginning of an
analysis rather than a final one.

From where?
First, from where can an attack on the ideological defence of the prison be
expected? I am thinking of countries like Norway, Sweden and Britain. In
a wide sense of the word: from the left, from social democracy and
leftwards. Why? Because the left, in this wide sense, fosters an ideology
which directly counters the prison solution, and which would, if taken
seriously, basically challenge the presumed meaningfulness and
legitimacy of prison.
I am thinking of the ideological components, common to socialists in a
wide sense and social democrats, consisting of solidarity and compensation.
Solidarity refers to instrumental-task-oriented-and expressive-
empathic emotional-relationships between two or more actors, whether