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Penal Regressions

Published online by Cambridge University Press:  16 January 2009

Leon Radzinowicz
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Baron Raffaele Garofalo's memorable treatise Criminology ends (almost as an afterthought) with an Appendix entitled “Outline of Principles Suggested as a Basis for an International Penal Code”. In barely twelve pages he formulates: principles of criminal liability; an enumeration of categories of offenders; a system of penalties to be adopted to combat crime; and some basic rules of procedure for bringing offenders to justice. Garofalo was not a cranky, lofty or flamboyant idealist. Together with Cesare Lombroso and Enrico Ferri he was the founder of the famous Positivist School of Criminology launched in Italy towards the end of the nineteenth century. He was a High Court Judge, a tough realist with a sharp and incisive mind. Staunch traditional conservative that he was, he might instead have been expected to advocate that each nation should be free to express its unique individuality through its own distinctive legal and penal edifice.

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The Cambridge Law Journal , Volume 50 , Issue 3 , November 1991 , pp. 422 - 444
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Copyright © Cambridge Law Journal and Contributors 1991

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References

1 Garofalo, Raffaele. Criminology, pp. 405–416Google Scholar. (First Italian ed. 1885; 2nd ed. 1891; French ed. 1905; translated into English and published in the Modern American Criminal Science Seriesin 1914; reprinted in 1968).Google Scholar

2 See Franz von Liszt's preface to the first volume of Die Strafgesetzgebung der Gegenwart, etc (1894). pp. xxiv–xxv.Google Scholar

3 “These conclusions of a near-term decline are the direct consequences of the so-called ‘baby-bursts’, a precipitous decline in fertility from the post-war peak of 3–8 children per woman in the late 1950s to fewer than 1–8 children for women in 1976, the lowest level in American history … the relative numbers of teenagers to older people in this country can readily be predicted: they will decline until at least the 1990s. Consequently, any prediction of crime rates that depends primarily on the age distribution of the population shows a levelling or a decline in crime for the near future”: see Chaiken, Jan M. and Chaiken, Marcia R., “Crime Rates and the Active Criminal” in Crime and Public Policy, edited by Wilson, James Q. (1983), pp. 11–29 at p. 21.Google Scholar

4 It was a Japanese student who, at the beginning of the present century, in order to express this hidden reality, coined the word Dunkelziffer (see Oba, S., Unverbesserliche Verbrecher und ihre Behandlung, Berlin, 1908, p. 27).Google Scholar Since then, the term made its tour du monde and was readily accepted into criminological currency (le chiffre noir, il ciffro nero).

5 Surveys of crime victimisation “… ask representative samples of the population about selected offences they have experienced over a given time, whether or not they have reported them to the police … They have done much to elucidate the ‘truer’ level and nature of crime, the extent of unrecorded offences for different crime categories, and in particular the distribution of risks across different groups . “. See Dijk, Jan J.H. van, Mayhew, Pat and Killias, Martin, Experiences of Crime across the World (1990), pp. 2–3.Google Scholar

6 According to a Committee set up by the American Bar Association under the chairmanship of Professor Samuel Dash, “with the exception of the crime of murder only a small fraction of the serious criminal acts committed in the United States ever enter the criminal justice system, for reasons totally unrelated to constitutional restrictions. The overwhelming majority of these crimes, which keep Americans in fear, are untouched by the work of police, prosecutors, judges and prison officials. Thus out of the approximately 34 million serious crimes committed against persons or property in the United States in 1986, approximately 31 million never were exposed to arrest, because either they were not reported to the police, or if reported they were not solved by arrests…” See Criminal Justice in Crisis (American Bar Association, Washington, D.C., 1988), p. 4.Google Scholar

7 For my more detailed views concerning these vitally important subjects, see Radzinowicz, Leon, “The Criminal in Society” (The Peter Le Neve Foster Lecture), Journal of the Royal Society for the Encouragement of Arts (1964), vol. 112, No. 5100, pp. 916–929, at pp. 916–920;Google Scholar also Radzinowicz, Leon and King, Joan, The Growth of Crime (1977), pp. 31–54.Google Scholar

8 I was glad to see that the “left realist” criminologists have so firmly endorsed this point of view. See Lea, J. and Young, J., What is to be done about Law and Order (1984), pp. 11–75 and 262–273Google Scholar and Kinsey, R., Lea, J. and Young, J., Losing the Fight Against Crime (1986), pp. 57–63.Google Scholar It seems to me that The Times in its spirited leading article “Neither Prevented Nor Cured” (16 April 1991) went much too far in minimising the impact of contemporary crime.

9 It is estimated that, each day, the population of the world increases by 225,000 people, and that by about the year 2025 the world population will have doubled, amounting to 9 billion. Will this mass of humanity by then be less deprived of decent criminal justice? I wonder. For an exceptionally lucid overview of the world population, which according to the most recent estimates amounts to about 5 billion, made up of seven units and comprising some 225 countries, see 1988 Demographic Yearbook (40th ed.), United Nations, New York (1990), pp. 161–169.Google Scholar

10 For a brief, but illuminating, account of the historical roots of the concept of human rights, see Henkin, Louis, The Rights of Man Today (1978), pp. 1–30.Google Scholar

11 The volume of the Revue Internationale de Droit Pénal (1982), vol. 53 n.s. nos 3–4, pp. 553–972Google Scholar entitled “La Philosophie de la Justice Pénale et la Politique Criminelle Contemporaines” may be quoted as an example. It was the product of the work carried out in two international seminars, organised by the International Institute of Criminal Science of Syracuse (January 1981-May 1982) under the auspices of the four major organisations: the International Association of Penal Law; the International Penal and Penitentiary Foundation; the International Society of Criminology; and the International Association for Social Defence. It contains a valuable amount of information, but it is singularly deprived of realism and relevance with respect to the flaws and distortions which affect systems of criminal justice across the world. A similar escapism from reality may be levelled against another volume produced with the purpose of making a comparative review of the preparatory phases of the criminal process. See “La Phase Préparatoire du Procés Penal en Droit Comparé” in ibid., (1985), vol. 56, n.s. nos 1–2, a volume of 380 pages. No more than a few rather timid references to prevailing defects or irregularities can be found in this expansive collection of essays, and yet it deals with a field rampant with flagrant abuses.

12 In this connection the paper of the distinguished Dutch expert in Soviet criminal matters, van den Berg, Ger. P., “Judicial Statistics in a Period of Glasnost” provides an encouraging foretaste of better things to come. See Review of Socialist Law (1987), vol. 13, pp. 299–311.CrossRefGoogle Scholar

13 See “Communication de M. Solomon, Chef de la délégation officielle de Russie, sur la suppression de la déportation en Sibérie” in Actes du Congrés Pénitentiare International de Bruxelles, 1900 (Berne, 1901), vol. 1, pp. 74–82, at p. 82.Google Scholar

14 Criminal Justice in Cleveland. A Report (The Cleveland Foundation, Cleveland, Ohio, 1922).Google Scholar Particularly important is the piece by Roscoe Pound, “Criminal Justice and the American City”, pp. 550–654.

15 See American Bar Association Journal (1953), vol. 39, p. 743.Google Scholar

16 The Commission on Law Enforcement and Administration of Justice (established on 23 July, 1965, through Executive Order 11236). Chairman: Nicholas de B. Katzenbach, then the Attorney General. Executive Director: Professor James Vorenberg, subsequently Dean of the Harvard Law School. Main Report: The Challenge of Crime in a Free Society (1967).Google Scholar It was supported by an impressive series of Task Force Reports—all published.

17 See Harris v. New York, 401 U.S. 222 (1971).

18 See United States v. Hensley, 429 U.S. 221 (1985). The “Stop and Detain” case is called by American lawyers the “Stop and Frisk” case.

19 See New Jersey v. T.L.O., 469 U.S. 325 (1985).

20 On the Federal Preventive Detention Statute see: 18 U.S.C. 3142 (d), (e), (f), (g), enacted in 1984.

21 See, for the Statute passed in 1984 following John Hinckley's acquittal by reason of insanity for his attempt to assassinate President Reagan, 18 U.S.C. 17. Also, for a very informative discussion of the issues involved, Peter Low, W., Criminal Law (revised 1st ed., 1990), pp. 209–213.Google Scholar I am indebted to Professor Low for putting me right on a number of points.

22 See Leon Radzinowicz and Roger Hood, “The American Volte-Face in Sentencing Thought and Practice” in Crime, Proof and Punishment, Essays in Memory of Sir Rupert Cross, edited by Tapper, Colin (London, 1981), pp. 127–143.Google Scholar For valuable background information on this legislative and administrative movement which has been sweeping across the country, see Research on Sentencing: The Search for Reform (edited by Blumstein, Alfred, Cohen, Jacqueline, Martin, Susan E. and Tonry, Michael H.), 2 vols. (National Academy, Washington, 1983);Google ScholarBow, Sandra Shane-Du, Brown, Alice P., Olsen, Eric: Sentencing Reform in the United States (National Institute of Justice, Issues and Practices, 1985)Google Scholar; and the lively number of Judicature devoted to “Criminal Sentencing in Transition” (1984, vol. 68, Nos. 4–5). I am grateful to Professor Walter Gellhorn for having brought this number to my attention. For recent developments, see the well-informed article by Tonry, Michael, “Structuring Sentencing” in Crime and Justice (edited by Tonry, M. and Morris, N., 1988), vol. 10, pp. 267–337.Google Scholar

23 Parker, J. S. and Block, M. K., “The Sentencing Commission, P.M. (Post-Mistretta): Sunshine or Sunset”, American Criminal Law Review (1989), vol. 27, pp. 289–330Google Scholar, and A. von Hirsch, “Several Sentencing Guidelines: Do they Provide Principled Guidance?–,ibid., 367–390.

24 A fresh convert to the idea comes from England. The Labour Party promises that if it wins the next election, it will establish a “Sentencing Council”, either consisting entirely of judges (who would have the power to co-opt others) or, from the start, not limited to the judiciary. Its object would be “to produce a set of sentencing ceilings for different types and grades of offences (e.g. different types of burglary, different types of theft) together with principles for use in calculating the precise sentence beneath that ceiling, including principles governing the sentencing of persistent offenders. These recommendations will be issued as practice directions“. See A Safer Britain: Labour's White Paper on Criminal Justice (01 1990), pp. 13–15.Google Scholar See also the Fabian Tract (No. 522, October 1987) by Stephen Shaw, in which he advocates the creation of a Ministry of Justice, the abolition of the Lord Chancellor's Department and the setting-up of a sentencing council, Conviction Politics: A Plan for Penal Policy, pp. 24–25.Google Scholar But for reasons which remain to me unclear he describes these and several other proposals as a programme of “Socialist Penal Policy”. Similarly, the several important principles formulated by John Croft (writing from a Conservative Perspective) do not seem to me to be exclusively linked to Conservative ideology. See Croft, John, Croft on Crime (privately printed, 1990), pp. 6–7 and 28–33.Google Scholar

25 The most recent article by Professor von Hirsch seems to me to reinforce this contention. See “Proportionality in the Philosophy of Punishment” in Criminal Law Forum (Winter 1990), vol. 1, pp. 259–290.CrossRefGoogle Scholar

26 For the “condition” of capital punishment in the United States of America, see the excellent report of Dr. Roger Hood presented to the United Nations Committee on Crime Prevention and Control, The Death Penalty: A World-Wide Perspective (Oxford University Press, 1989), pp. 32, 40, 59–61, 63, 69–70, 74–75, 80–82, 85–86, 91–98, 98–116, 121–127, 130–148.Google Scholar

27 See “Judicial Conference of the United States”. Ad Hoc Committee on Federal Habeas Corpus in Capital Cases. Committee Report and Proposal. (Chairman: Lewis F. Powell, Jr.)

28 See Radzinowicz, Leon, History of English Criminal Law and its Administration from 1750, vol. 4 (1968 ), pp. 343–353.Google Scholar

29 See Thornburgh, Dick (Attorney General of the US), “One Anti-Crime Bill, One Pro-Crime Bill” in Wall Street Journal, 26 09 1990;Google ScholarBarr, William P. (Deputy Attorney General), “Death-Penalty Delay Doesn't Promote Justice”, New York Times, 5 10 1990Google Scholar, and Editorial, “Pro-Justice’, not ‘Pro-criminal”, ibid., 26 September 1990. And last, but not least, Lewis, Anthony, “Crime in Politics”, New York Times, 1 10 1990.Google Scholar

30 See 47 Crim. L. Reporter, 1349–51 (1990); 1060–63 (1990); 1130–31 (1990).

31 On 26 March 1991 the Supreme Court (by a majority of 5–4) upheld the “good faith exception”, allowing evidence seized through a technically faulty search warrant to be used at a trial if the police honestly believed the warrant to be valid. Also, a coerced confession can be admitted as “harmless error” if other evidence is sufficient to prove guilt (see McCleskey v. Zant, 111 S. Ct. 1454 (1991)). On 16 April 1991 the court decided (by 6–3) to redefine the doctrine of “abuse of writ”, thus severely limiting the right of State prisoners sentenced to death to raise constitutional claims in habeas corpus proceedings in the Federal courts (see Arizona v. Fulminante, 111 S. Ct. 1246 (1991)). The Bush Administration's Crime Bill will intensify this regressive trend by including a “firearms exception” under which illegally seized weapons could be produced as evidence in Federal trials for violent or serious drug crimes even if the police have no good-faith belief in the legality of the seizure of the guns. It also provides for a considerable extension of capital punishment. Senator J. Biden, the Chairman of the Judiciary Committee and a Democrat, counteracted by announcing his intention to introduce his own Crime Bill. In parallel, hard bargaining has at last led to a modest measure aimed at making it rather more difficult to obtain handguns for illegal purposes. Recently (May 1991), the Supreme Court by a 5–4 majority (County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991)), ruled that people who are arrested without a warrant may be imprisoned for as long as 48 hours (not including holidays and weekends) while awaiting a judicial determination of whether the arrest was proper. A breath of fresh air has been provided by a decision of a Federal Court in San Francisco to dismiss a criminal charge because of the Attorney General Dick Thornburgh's rules issued (June 1989) to Federal Prosecutors allowing talks between Federal Prosecutors and defendants when no defence lawyer is present and his consent had not been obtained. See United States v. Lopez 1991 U.S. Dist. LEXIS 7379

32 I would be hard pressed to find a more objective, informative and succinct analysis of the effect (if any) of the exclusionary rule and the Miranda decision on the control of crime than the one provided by Samuel Dash's Committee of seasoned experts set up by the American Bar Association. See Criminal Justice in Crisis (American Bar Association, Washington, D.C., 1988), pp. 27Google Scholar, passim. In December 1990, the Supreme Court in a 6 to 2 decision (Chief Justice Rhenquist and Justice Antonin Scalia dissenting) reaffirmed and in some ways extended the Miranda ruling. This rather unexpected decision must have come as a bitter disappointment to the Attorney General and his Deputy: see Minnick v. Mississippi, No. 89/6332 Supreme Court of the United States, 1990 USU Lexis 6118: 59 U.S. L.W. 4037.

33 An exceptionally ugly episode of political demagogy, twisting a tragic penal case, occurred during the last Presidential election. I refer to the case of Willie Horton (a black convict with a heavy previous record) who had been “furloughed” in Governor Dukasis's home state of Massachusetts. In the final stage of the campaign he was arrested in Maryland for raping a white woman and stabbing her husband. The electoral campaign committee for Vice-President Bush seized upon the case with unsavoury alacrity and gave it a nation-wide intense publicity to prove the bankruptcy of the social and liberal approaches to criminal justice. Warren E. Burger, the former Chief Justice of the United States, was the only man who could authoritatively redress this distortion because of his long-standing support of furlough, but he remained silent for quite a long time. Finally, a written statement from him was released to the Associated Press, but this was just a few hours before the polls closed on the East Coast. It was couched in gentle terms but it stated that “Unfortunately the issue of corrections is never likely to become adequately treated in any political campaign”. The tactic of the campaign committee was well calculated: according to the New York Times (11 9, 1988)Google Scholar, “One voter in five yesterday said that the punishment of criminals was among the issues that mattered most to them, a remarkably high proportion for a Presidential election. And voters who mentioned crime as an important issue went about 2 to 1 for Bush”. Governor Dukakis was asked on the screen what he would do if his wife were raped. I am not aware that Vice-President Bush was also subjected to this primitive ordeal.

34 See, for instance, the solid piece by Thomas, George C. III and Edelman, David, “An Evaluation of Conservative Crime Control Theology”, Notre Dame Law Review (1988), vol. 63, pp. 123–159.Google Scholar

35 SirRuggles-Brise, Evelyn, Prison Reform: At Home and Abroad (1925), p. 16.Google Scholar Ruggles-Brise was the Chairman of the Prison Commission (the Head of the Penal System) and President of the International Penal and Penitentiary Commission.

36 This is the very vivid impression which I gained when invited to listen to the debate in the House of Commons on the second reading of the Criminal Justice Bill just before the outbreak of the War.

37 Thus, for instance, in 1900 release with or without conditions was imposed in 17.1 per cent. of cases; in 32.1 per cent. in 1910; in 46.6 per cent. in 1924; and in 55.5 per cent. in 1936. The punishment of whipping which accounted for 7.1 per cent. of all punishments in 1900, dropped to 2.8 per cent. in 1910; to 1.2 per cent. in 1924; and constituted no more than 0–2 per cent. in 1936. The process was no less striking with respect to long-term penal servitude. The percentage of terms of 4 1/2 and 5 years dropped from 30.6 per cent. in 1900 to 14.1 per cent. in 1936; of over 5 years and up to 10 years from 13.7 to 3.9 per cent.; and of over 10 years from 1.4 to 0.2 per cent. For further changes of similar significance in the sentencing structure of the country at that period see Radzinowicz, Leon, “Assessment of Punishments by English Courts” in The Modern Approach to Criminal Law (vol. IVGoogle Scholar of English Studies in Criminal Science, edited by Radzinowicz, L. and Turner, J. W. C., 1945), pp. 100–122.Google Scholar I had discussed these and other changes some years earlier in my report to the Polish Ministry of Justice, part of which was published as “Le Systeme de Repression Penale en Angleterre” in Revue de Droit Penal et Criminologie (1939), vol. 19, pp. 1114–1148.Google Scholar

38 See e.g. Lady Blackstone's very effective tract Prisons and Penal Reform (1990).Google Scholar

39 Among the ideas borrowed from America are the privatisation of prisons and the electronic monitoring of offenders. On the former, see my letter to The Times of 22 September, 1988, “Principles at Stake in Prison Reform”.Google Scholar Perhaps one day Ewing, K. D. and Gearty, C. A., the two persuasive authors of Freedom under Thatcher: Civil Liberties in Modern Britain (Oxford, 1990)Google Scholar will join hands to ascertain whether a parallel can be discovered in the sphere of the evolution of criminal justice (legislation and practice). For an interesting attempt moving in this direction, see Perrill, Richard J. “Margaret Thatcher's Law and Order Agenda”, The American Journal of Comparative Law (1989), vol. 37, pp. 429–455.Google Scholar The study by Alan Norrie and Sammy Adelman picks up and develops several good points, but their ultimate assessment suffers greatly from a one-sided political approach. See “Conservative Authoritarianism and Criminal Justice in Mrs. Thatcher's Britain” in (1988) 16 Journal of Law and Societypp. 112–128.Google Scholar

40 Total indictable offences recorded by the police were: 438, 000 in 1955; 2,106,000 in 1975; 3, 706, 000 in 1989-a seven-and-a-half-fold increase of 3, 268, 000. It is true that changes in methods of recording and the incidence of reporting, among other factors, may push “the state of crime” up or down to a very considerable degree (more often up than down). The problem of so-called “statistical crimes” has been known for a long time by numerous students of crime trends and in many countries. One such example, by now ancient, and yet notorious is mentioned in my study “English Criminal Statistics”, in The Modern Approach to Criminal Law vol. IVGoogle Scholar of the English Studies in Criminal Science, edited by Radzinowicz, Leon and Turner, J. W. C., (1945), pp. 174–194, at pp. 179–180Google Scholar, where, as a result of a single change in the method of recordingcertain crimes, a real increase of about 5 per cent. in the Metropolitan area had been transformed to a “statistical increase” of 220 per cent.

41 The articles of Peter Jenkins in the Independent, 24 October 1989 (“Law as an Enemy of Justice”) and of Hugo Young in the Guardian of the same date (“Too much Faith in their own convictions”), eloquently expressed, needed to be written and reflected on. And so does the Leading Article in The Times, “Blaming Lord Lane”, 19 March 1991.Google Scholar

42 Lord Waddington's successor, Mr. Kenneth Baker, as well as the present Prime Minister, Mr. John Major, both oppose the reintroduction of the death penalty.

43 I very much hope that prison conditions in England are not as bad as those described by Paolo Graldi in the highly respected newspaper Corriere della Sera (1 08 1986, p. 7)Google Scholar “Poggioreale, nostra Caienna metropolitana”. To my knowledge, no independent and competent commission has been established in Italy in the past four decades (or even longer) to reveal the real conditions of penal institutions in that country.

44 The prison population of Great Britain, which was about 11, 000 in the period between the twowars, went up to 20,000 in 1955; 39,800 in 1975 and 48,600 in 1989: a four-and-a-half-fold increase. It went down in 1990 to 45, 500. To find reliable comparative prison statistics is even more difficult than crime statistics. Too many states have a vital interest in being discreet or evasive about it. There is such a thing as the “dark figure of prisoners”. A census launched by the United Nations some time ago remained largely unanswered (only 48 countries deemed it desirable to respond). It is much easier (though by no means with complete satisfaction) to get information on the prison populations of European countries. Prison Information Bulletins regularly published by the Council of Europe (in Strasbourg) go a long way to achieve this objective. I am unable to provide worthwhile data for other parts of the world. In the early 1980s the Russian prison population was estimated at 4 million. And although “no firm data are available on China's prison population, one source estimates that the population there totals at least 3 to 4 million persons”, whereas another suggests it may be as high as 20 million. See International Practices and Agreements concerning Compulsory Labour or Indentured Labour, United States International Trade Commission, Washington, D.C., 20436, Report 12 1984, ch. IX, at pp. 28–32.Google Scholar The Report urges great caution in making, or accepting, prison estimates, especially from the “Non-market economy countries”, and it emphasises the necessity of distinguishing between “Convict Labour”; “Forced Labour”; and “Indentured Labour”. The penal system of China is nothing less than a form of slavery of the worst kind. The information just discovered by Asia Watch (Prison Labour in China, 19 04 1991, New YorkGoogle Scholar), proves beyond doubt how the Chinese Gulag labour camps, encompassing millions of convicts, are being used to obtain better entry for their products into the American, Japanese and German markets. The treatment of accused persons and penal conditions in India are as bad as ever. The seeds for advancement were there but they were allowed to die. See the Report by Lieut-Colonel, F. A. Barker, The Modern Prison System of India, English Studies in Criminal Science, edited by Radzinowicz, L. and Turner, J. W. C., vol. III, (1944)Google Scholar, and Rothman, David J. and Neier, Aryeh, “India's Awful Prisons”, in New York Review of Books, vol. 38, No. 9, (16 05 1991)Google Scholar, p. 53. See also Maguire, M., “The Indian Prison” in Whitfield, D. (ed.), The State of the Prisons-200 Years On (1991), pp. 30–55.Google Scholar

45 The definition of “crisis” by the Oxford English Dictionary (the Compact Edition, col. 1, p. 60) provides no great comfort. Crisis: “the point in the progress of a disease when an important development or change takes place which is decisive of recovery or death; the turning-point of a disease for better or for worse; … a vitally important or decisive stage in the progress”.

46 Prison Disturbances April 1990. Report of an Inquiry by the Rt. Hon. Lord Justice Woolf (Parts I and II) and His Honour Judge Stephen Tumim (Part II), Cm. 1456 (1991), “Twelve Central Recommendations”, pp. 28–38)

47 See Between Prison and Probation (1990), p. 9.Google Scholar

48 See Justice Expenditure and Employment, 1988 (NCJ 124132).Google Scholar

49 Bureau of Justice Statistics Bulletin (1990) NCJ 124132, passim.

50 Op. cit. note 32 above, p. 5.Google Scholar

51 The expression is John Howard's. See his State of the Prisons in England and Wales (London, 1777), p. 489.Google Scholar