Neo-Retributivism in the Embrace of Human Rights

By Adnan Sattar

Something startles me where I thought I was safest.
— Walt Whitman1

Introduction

Penal policy in the West took a punitive turn in the mid-1980s. The period since the late ‘60s saw growing disenchantment, especially in the United States and Britain, with the long-standing tradition of positivist criminology and the associated projects of offender rehabilitation and individualised sentencing. Significantly, that period also marks the ascendance of human rights as a pre-eminent moral language of our times.2  A number of philosophers then began to assess social problems in the language of rights.3 Kantian and Hegelian ideas were revived proposing an essentially retributive vision of justice and, with it, the image of man as an isolated, self-interested being conceived of in asocial terms. Ours is an era marked – albeit with regional variations – by the intellectual hegemony of both retributivism and human rights. Only recently have scholars enriched the debate by addressing the expansion of the state’s punitive power in regions other than the United States and Western Europe.4

What seems acutely missing in the burgeoning scholarship on the subject is an analysis of the theoretical affinities between neo-retributivist ideas and the discourse of human rights. Some of the most brilliant critics of neo-retributivism and the expanding reach of the criminal justice dragnet manage to skirt around this relationship. It is no quaint coincidence, I shall suggest, that almost the entire corpus of human rights scholarship is virtually silent on the idea of offender rehabilitation and alternatives to prison-based retributive justice. For example, one of the most widely used textbooks on prisoners’ rights, i.e. Nigel Rodley’s Treatment of Prisoners in International Law, says next to nothing on moral justifications for imprisonment.5 Even as a legal commentary, it leaves you perplexed that it does not have a word on offender rehabilitation – a glaring omission in a text that purportedly provides a comprehensive analysis of international law regarding prisoners.

Contemporary human rights scholars do not seem to have any interest in either the context of crime or the collateral consequences of punishment, for example, in terms of the effects of incarceration on a prisoner’s children.6 Human rights discourse as embodied in academic commentaries and textbooks, I shall argue, signifies an implicit approval of the central tenets of neo-retributivism, i.e. individual criminal responsibility, retribution and proportionality as the basis of sentencing, and the separation of criminal justice from social justice. Once you endorse these basic ideas and premises, the ground rules and terms of reference are already set. All involved begin to play the game of criminal justice on ‘the home ground of conservative law-and-order politicians’, and then ‘the genteel visions of retribution’, as John Braithwaite and Phillip Petit have cautioned, ‘count for naught’.7

Punishment in Classical Penal Thought

The history of human rights in the mainstream literature is told as a moral success story representing an onward march of humanity from barbarism to civilization.8 The story is marked by unexplained transitions and ruptures. In relation to penal reforms, the advances represented by the Enlightenment are duly recognized, and the codification of human rights in the aftermath of World War II is recounted in triumphalist tones. However, there is a near-total silence on the legacy of positivist and Marxist criminology. The reasons for this go beyond the association of the positivist school with eugenics and fascism.9 They lie more firmly in the theoretical affinities between human rights and classical retributivist philosophy, particularly the philosophy of Immanuel Kant, on whose giant shoulders ‘the modern theory of human rights largely rests’.10

Linked to the categorical imperative, which, in its best-known formulation, posits that individuals ought never to be used as merely a means to an end, punishment in Kantian theory is based on an inherent duty to punish a wrongdoer regardless of any other good or potential consequences.11 Kant’s unflinching defence of a particularly strong version of retributivism makes for a sharp contrast with the emancipatory possibilities of his notion of human dignity. In Kant, we find a modern articulation of lex talionis, the principle of eye for an eye, a tooth for a tooth. In The Metaphysical Elements of Justice, Kant makes it clear that it is ‘only the Law of retribution’ that can determine appropriate penalties for specific crimes.12 A literal interpretation of lex talionis would make room for penalties too gruesome for modern sensibilities. However, the Kantian ‘law of retribution’ continues to cast a long shadow on the discourse of human rights, as we shall see in some detail.

Kant takes the categorical imperative to its logical end by arguing that in failing to execute the last murderer the society would be remiss in treating him as an end in himself. That the execution would be of no use to a society about to dissolve itself is irrelevant.13 Punishment is purely retrospective. Reference to any instrumental value or societal good is simply unacceptable on Kantian ethics:

Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will dully receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation.14

It is obvious that Kantian theory is a double-edged sword. On the one hand it rules out punishing the innocent for the sake of preventing future crimes or punishing the guilty excessively for that purpose. But on the other hand it also undermines the potentially liberating – or, at least, less repressive – idea of the rehabilitation of offenders. Kantian theory of punishment is ‘built on tension’, as Jeffrie Murphy has remarked, contrasting the respect for human dignity with ‘smugness and self-righteousness’ associated with Kant’s conviction that punishment is an absolute moral obligation.15

Whereas Kant centred punishment on the dictates of moral obligations, his compatriot, G.W.F Hegel, formulated his account of retributivism around the concept of rights whilst retaining the centrality of autonomy to moral philosophy. In the Philosophy of Right, Hegel justifies retributive punishment by first differentiating crime from civil wrongs and deception (fraud).16 Crime, as distinct from the other two categories, is a coercive act by a free and rational agent representing a threefold negation. A crime, according to Hegel, violates not only the rights of the victim, but also those of the criminal himself. Additionally, in committing the crime, the criminal, as a free and rational agent, violates the very concept of rights.17 It is through punishment that the state honours the criminal as a rational being. The justification for punishment is to be derived from the criminal’s own act, argues Hegel, and not ‘with a view to deterring or reforming him’.18

Other Enlightenment thinkers, most notably Cesare Beccaria (1738-1794), grounded the justification for punishment in the utilitarian ideals of crime prevention and deterrence whilst reiterating the Enlightenment critique of the arbitrary use of judicial power and uncertainty in the law. The purpose of punishment, Beccaria stated, ‘is not to inflict torment and pain on a sentient being, nor to undo the crime that has already been committed.’ ‘Punishments, and the method of inflicting them’, he argued, ‘must be chosen according to the amount needed to make an impression more useful and more lasting on the minds of men, and less to torment the body of the offender’.19 The justification for punishment on Beccaria’s account, then, contra Kant and Hegel, is not based on desert or annulment of a wrong. Rather, it is centered on the utilitarian goals of deterrence and prevention. Beccaria, however, was united with Kant and Hegel in espousing the image of man as an abstract, self-calculating being.

Enlightenment thought generally, and Beccaria’s treatise Dei delitti et delle pene (On Crimes and Punishments) in particular, played no insignificant role in the abolition of judicial torture, brutal penalties such as breaking on the wheel, and the legal privileges which the nobility and the clergy had historically enjoyed.20 However, despite its general opposition to religious dogma, Enlightenment thought somehow preserved the Judeo-Christian ideal of absolute individual responsibility almost as a theological necessity connected with divine retribution and eternal damnation for choices human beings made. There was little attention paid in classical accounts to the causes or the context of crime. It resulted, as Raymond Saleilles put it, ‘in a view of the criminal act as an abstraction…a sort of algebraic quantity independent of the personality of the offender’.21 It was this violence of abstraction which Marx targeted, writing for the New York Daily Tribune in 1853. The article began as a modest critique of capital punishment questioning its deterrent effect but expanded to an indictment of classical penal philosophy:

Is it not a delusion to substitute for the individual with his real motives, with multifarious social circumstances pressing upon him, the abstraction of ‘free-will’ – one among the many qualities of man for man himself! This theory, considering punishment as the result of the criminal’s own will, is only a metaphysical expression for the old jus talionis…. Now, what a state of society is that, which knows of no better instrument for its own defense than the hangman, and which proclaims through the “leading journal of the world” its own brutality as eternal law.22

Marx’s critique resonates powerfully with contemporary evidence demonstrating how mental illnesses and social circumstances draw – and often trap – individuals into crime. In Britain, for example, ‘mental disorders of every variety…are present (in prisons) at vastly elevated levels relative to the surrounding community’.23 According to one estimate, seventy percent of the prisoners in England and Wales ‘will have a substance misuse problem on entering prisons’.24 Studies have also shown links between learning disability and juvenile and adult offending.25 All this is not to suggest that offenders have no control over their behaviour and ought to be absolved of all responsibility. Rather, the point is to view human behaviour on a continuum with moral responsibility and free choice on the one end, and psychological, social, and possibly, neurobiological factors on the other.

The Forgotten Legacy of Positivist Criminology

The positivist school broke fresh ground by directing attention to the factors which presumably shaped ‘deviant’ behaviour and by challenging the assumptions about individual responsibility underlying classical thinking. From around the last quarter of the nineteenth century up until the 1950s and 1960s, the ideas of positivist criminology had gained a firm foothold in penal discourse. Predicated on the positivist belief in the possibility of furnishing scientific solutions to social problems, the penal discourse during that period lay great emphasis on the ‘prevention’ of crime and ‘reformation’ of offenders as against the focus on ‘retribution’ in Kantian and Hegelian theory. The rationales for punishment during the heyday of positivist criminology, or what David Garland famously dubbed the era of ‘penal welfarism’, were anchored within utilitarian philosophy, with retribution dismissed by some penal reformers as altogether unnecessary in the ‘scientific project’ of preventing crime and treating criminals.26 The influence of positivist criminology could be seen in a range of penal measures such as individualised and indeterminate sentencing schemes, and the development of probation and parole. In the area of prison reforms, the ideas of positivist criminology led to a growing focus on classification and psychiatric treatment of prisoners. The new approach supplanted the monastic ideals of penance through silent contemplation that had inspired early prison reformers such as John Howard in England and the Quakers on both sides of the Atlantic.27 Admittedly, the positivist creed had its dark side, manifested most chillingly in the Nazi experimentation with eugenics and the cynical exploitation of social Darwinism and the idea of ‘atavistic type’ or ‘born criminal’ during Hitler’s Third Reich.28 Elsewhere, however, many saw the positivist era in penal policy as decidedly ‘the “age of reform” in which calls for progress were not only made but answered’.29

To understand the legacy of positivist criminology, it is essential to place it within the context of several advances in knowledge occurring in mid-nineteenth-century Europe against the backdrop of a rapidly industrialising and urbanising society. With the publication of On the Origin of Species in 1859, Charles Darwin revolutionised biology and paved the way for a fundamentally new worldview throwing religious beliefs about the status of man into doubt. In time, the theory of evolution and natural selection would go on to influence fields well beyond biology. Already in the 1830s, French thinker Augusto Comte (1798-1857) had coined the term ‘positivist philosophy’ as part of his laws of three stages of knowledge. The pursuit of knowledge in any field, Comte held, began with theological speculation followed by the transitional phase of metaphysical theorizing. Knowledge is perfected only in the third and the final stage or what Comte called the positivist or scientific era. Comte sought to apply ‘the system of observational sciences’, i.e. astronomy, physics, chemistry and physiology to the study of social phenomena for which he chose the term ‘social physics’.30 The positivist spirit inaugurated by Comte found its practical application in the work of criminologists who turned attention toward the ‘scientific’ study of crime and criminals, as distinct from the abstract speculations of the Enlightenment thinkers. By the turn of the nineteenth century, as Richard Tarnas remarks in his history of Western thought, among ‘scientifically inclined modern thinkers idealist metaphysics could not command widespread philosophical acceptance’.31 Instead, it was materialism and positivism that captured the spirit of the times. The emergence of positivist philosophy and sociology during the nineteenth century was matched by several advances in medical sciences and psychiatry which, in due course, would provide the basis for humanitarian penal reforms as well as a far more sinister project of eugenics and racial hygiene.32

It is common these days to dismiss the doyens of positivist criminology as cranks.33 The distaste evoked by the idea of inherent criminality and racial stereotyping as they prefigured in the works of Italian physician and the founder of positivist criminology Cesare Lombroso (1835-1909), and their appropriation by Nazi Germany, is quite understandable. It is also true that judicial discretion and indeterminate sentencing were sometimes misused to confine those deemed incorrigible for indefinite periods of time in the name of the utilitarian ideal of crime prevention. Some peripheral voices are heard from time to time, however, arguing that the ideas put forward by Lombroso and his disciples made sense within ‘the specific historical context in which they were first articulated’, as a reaction to the naiveté of classical penology and a ‘new language of social representation’ in an era of social unrest.34 Adrian Raine has recently attempted to revive biological causation of violent crime, summarising contemporary evidence on how genetics and environmental factors can influence violent behaviour. Whilst distancing himself from ‘racial stereotyping’, Raine believes that Lombroso ‘was on the path toward sublime truth’.35 Perhaps, Raine is being too charitable. But the crucial point to note is that positivist criminology did not just provide intellectual ammunition to fascist regimes for their genocidal designs. As Leon Radzinowicz conceded in his assessment of what he called the ‘deterministic position’, the ‘provocative assertions’ of positivists ‘stirred up similar enquiries in different parts of the world’ and provided an impetus for resources of sciences to be mobilised for understanding offenders.36

One of Lombroso’s students and a key figure in the Italian positivist school, Enrico Ferri (1856-1929), ended up putting his faith in Mussolini’s fascism. Other thinkers sympathetic to the positivist approach, most notably the Dutch sociologist William Bonger (1876-1940), worked more consistently within the Marxist tradition relating crime to capitalist political economy. In retrospect, the links drawn between criminality and class by Bonger would appear to be overly deterministic.37 His work, however, prefigured Marxist theories of crime by restoring the centrality of social environment as a causal factor instead of focusing on individual pathology.38 A similar sociological focus could be seen in the work of Raffaele Garofalo (1851-1934), another student of Lombroso’s.39 At the turn of the century, these ideas were taken up by some eminent European jurists such as the German Professor Franz von Liszt, who stressed the relevance of social conditions to crime and recidivism and rejected the retributivist notion of punishment.40

The impact of the positivist ideas was also reflected in the establishment of a number of international bodies during the second half of the nineteenth century to facilitate collaboration on penal matters, most notably the International Penal and Penitentiary Commission.41 The positivist approaches of dealing with crime also left their mark on the United Nations. The newly established UN set up a Section of Social Defence built into the Division of Social Activities (later to become part of the Department of Social Affairs). Implicit in the term ‘social defence’, which can be traced back to the writings of Ferri and Garofalo, was a utilitarian focus on the prevention of crime and the protection of society, in contrast to the view of punishment as an independent moral imperative. Subsequently, the notion of social defence lost currency within official UN discourse. It is hard to find a reference to the term in contemporary human rights commentaries or material produced by major human rights NGOs. Within the UN, there was also a Social Defence Research Institute (UNSRDI) established in 1969, which was eventually renamed the United Nations Interregional Crime and Justice Research Institute (UNICRI) in 1989.42

The Rebirth of Retributivism

It was during the 1970s that liberal theorists, returning to Enlightenment approaches, began to justify punishment in terms of a backward-looking Kantian moral imperative. The quantum of punishment was to be determined through a fixed sentencing scheme on the basis of ‘proportionality’ to the seriousness of an offence rather than any attempt to reform offenders or prevent crime. With echoes of Hegel clearly discernible, some appealed to reprobation or the expressive function of punishment as providing the basis for sentencing.43 The resurgence of what is variously described as ‘retributivism’ or ‘just deserts’, or more euphemistically, the ‘justice model’, seems to have been a consequence of the presumed failure of the rehabilitative ideal and perceived inconsistences in sentencing practice due to wide discretion given to judges and probation officers as part of indeterminate sentencing schemes.44 However, changes in penal theory and practice rarely occur in a social and political vacuum. The revival of retributivist ideas and the growing disapproval of positivist criminology were bound up with a more general distrust in the ‘overreach’ of the welfare state.

One of the most remarkable features of the post-World War II West had been a wide consensus on welfare policy and a minimum social democratic programme. Under the tutelage of Keynesian economics, governments in the United States and Western Europe oversaw exponential state-led economic growth, expansion of public sector education and health services, and full employment in what was dubbed by some as les trentes glorieuses.45 As the economic boom began to falter in the 1970s in the wake of the global oil crisis, the ‘nanny’ state was attacked for inefficiency and wastefulness, and for sapping the moral fibre of the nation. In their assault on the ‘welfare consensus’, the New Right drew on the largely forgotten argument by economist Friedrich von Hayek that freedom and collectivism were incompatible and social democracy was a contradiction in terms.46 Margaret Thatcher eventually gave a very crude expression to this viewpoint when she proclaimed: ‘There is no such thing as society’.47 Writing in 1974, Robert Nozick, the central figure in what has been dubbed the ‘neo-classical moment’ in the evolution of rights in liberal theory, advocated a minimal state whilst constructing a case for rights as side-constraints.48 Rights, on Nozick’s account, were justified on the basis of the Kantian categorical imperative and conceived of in negative Lockean terms as individual freedom to be left alone:49

A minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right.50

It is not difficult to see that the idea of the minimal state fit well with the assault on the rehabilitative ideal, which was itself predicated on state assistance and intervention. The de-legitimization of the welfare state and of offender rehabilitation thus went hand in hand. The liberal conception of rights and freedoms put forward by Nozick is also of a piece with the neo-retributivist conception of the individual as an isolated, autonomous entity responsible for his or her own failings. Nozick, in fact, removed any doubts as to the connections between neo-retributivism and the New Right worldview more generally by furnishing a widely quoted justification of retributive punishment. Punishment, Nozick reasoned, was meant to give effect to the ‘correct values’ from which the wrongdoer had become disconnected. Whether the supposed ‘re-connection to correct values’ had any deterrent effect was not relevant to what Nozick called a ‘non-teleological view’ of ‘retributive punishment’.51 More importantly, the reprobative theory of punishment does not say at what point the expression of indignation ought to cease: as soon as a prison sentence has been served out? Even if a ‘criminal record’ is formally expunged,52 does the element of ‘indignation’ built into the conviction not send out a signal to the society that the released offender is an untrustworthy outsider? There is a vast amount of evidence that ex-offenders run up against massive difficulties in finding jobs and participating in civic life, suggesting that the ‘expressive function’ of punishment carries over into life outside the prison.53

Nozick is also remembered for drawing a rather spurious distinction between retribution and revenge. Leo Zaibert and Nigel Walker have both taken apart each of the so-called contrasts between retribution and revenge and demonstrated them to be exaggerations at best.54 Zaibert, for example, has pointed out, using a hypothetical case, that it would be incorrect to assume that revenge does not have any internal limits as suggested by Nozick. Even in the modern folklore of Hollywood Westerns, where revenge is portrayed sympathetically and celebrated as justice, for a hero to deploy a weapon of mass destruction to avenge the burning of his painstakingly built ranch would be recognised more as comedy than revenge.55 And indeed, some traditional societies were known to have codes specifying limits on the legitimacy of revenge and restrictions on indiscriminate destruction or targeting of the old, women and children.56 It is even harder to accept Nozick’s claim that retributive punishment is somehow cool and detached, lacking in emotional tone that characterizes revenge. The calls for ‘justice’ by tabloids and some human rights organisations, for example, are every bit infused with the emotional tone of ‘getting back’ at criminals, blurring the distinction between punishment and revenge.

In the United States, the attack on individualised sentencing and the rehabilitative ideal came on the heels of what some historians have called a dual social and economic crisis of capitalism in the late 1960s.57 Against the backdrop of the Vietnam debacle and anti-war agitation, Conservatives stoked fears of a breakdown in law and order and the spread of drugs in American society. Starting with Richard Nixon’s so-called war on drugs and climaxing with Roland Reagan’s belligerent brand of neoliberalism, the criminal justice system in the US underwent major transformations manifested in the expansion of the ‘prison-industrial complex’, soaring imprisonment rates, and an array of punitive legislative measures including mandatory minimum penalties and three-strikes-and-you’re-out laws.58 Writing in the broader European context, Mark Mazower saw the decades of the ‘70s and ‘80s as the era when there was a remarkable boom in prison populations even in countries which had traditionally been known for moderate criminal justice systems. Summarizing a range of literature, Deborah Drake et al have noted that there ‘was a discernible trend towards harsher criminal justice polices’ from the mid-1980s in the USA, followed by England and Wales, and other European countries in the 1990s. Examples of such harsher policies, on their account, include increased use of incarceration, introduction of longer and mandatory prison sentences, zero tolerance for first-time offenders, and the increased use of capital punishment in parts of the United States.59 Any exercise in periodization inevitably involves simplification of complex realities. The dominance of positivist criminology through the first half of the twentieth century did not herald the demise of retribution in penal policy and practice. Likewise, the revival of retributivism during the ‘70s and ‘80s did not entail a complete rejection of offender rehabilitation. The accent in penal policy in the Western world, however, shifted decidedly on retribution, proportionality and fixed sentencing.

It is significant to note that the “long seventies”60 was also a period when human rights went through a resurgence, spreading out from the hallways of the United Nations and into the space of social activism. To Samuel Moyn, human rights emerged as ‘the last utopia’ because other visions – anti-colonialism, nationalism, socialism – had ‘imploded’.61 The emerging discourse, on Moyn’s account, was focused heavily on civil and political rights and was marked by a strong anti-communist streak.62 The ‘70s was also the period when in both the US and Britain, feminist, sexuality and identity movements rose to prominence articulating their demands in the language of human rights.63 These movements were instrumental in exposing the relations of domination within family and community that had earlier been subsumed under the broad categories of class and nation. At the same time, as social historian Selina Todd has recently argued, the economic and political power enjoyed by the working class since World War II began to decline with the resurgence of neoliberal economics and government surveillance and policing of trade union activities.64

Historians documenting the rise of punitiveness during the long ‘70s and those tracing the genealogy of modern human rights are somewhat like ‘ships passing in the night’, each unaware of the presence of the other.65 There is hardly any dialogue between the two sets of scholarship. True, the emerging international human rights movement provided moral and legal resources for the protection of vulnerable groups including prisoners. No doubt, human rights has done a great deal of good in terms of minimizing the suffering of detainees in the punitive climate ushered in by the war on terror. Crucially, however, there was nothing in the emerging human rights discourse – including in theoretical work by the likes of Robert Nozick – that could pose a fundamental challenge to the ideology of retributive justice or the institution of prison. Rather, in some very important ways, neo-retributivism and human rights shared the same logic and grammar. There is evidently a lack of recognition among non-retributivist scholars as regards the theoretical affinity between retributivism and human rights and the limitations inherent in the discourse of human rights for posing a challenge to the new punitiveness. Let me elaborate the point with reference to contemporary scholarship.

Critiques of Neo-Retributivism: The Missing Links

In a recent journal contribution that builds on her arguments presented earlier in The Prisoner’s Dilemma,66 Nicola Lacey, with co-author Hannah Pickard, exposes the false promise of the proportionality principle.67 The ‘just-deserts’ or ‘justice’ movement, on this account, was, at least in part, built on the well-meaning premise that determinate and proportionate sentencing would ‘foster robust limits on the state’s power to punish.’ In reality, the scale of punishment has increased considerably over the past three or four decades in ‘liberal market countries such as England and Wales, Scotland, Australia, New Zealand and – most spectacularly – the United States’.68 By contrast, the Nordic countries have, by and large, resisted the punitive turn owing to distinct institutional arrangements of political economy that prioritize co-operation, consensus, long-term relationships and reconciliation among citizens, or what Lacey and Pickard have called a high ‘Associational Value’.69 In sum, it is not appeals to proportionality (the notion that criminal penalties should fit culpability and the harm done) but particular social arrangements that have enabled certain countries to maintain relatively moderate criminal justice systems.

The principle of proportionality, a modern re-working of lex talionis, provides no independent substantive criteria on how to punish and how much to punish. Answers to these questions remain open ‘to the sway of convention, political decision, or expediency’.70 The fittingness of a penalty for a particular offence varies substantially across jurisdictions and over time. What Lacey and Pickard fail to take on board though is that proportionality is an absolutely fundamental tenet of human rights law. The limitations of the principle of proportionality in restricting states’ punitive power then, are inter alia, the limitations of the ideology of human rights. Also missing in Lacey and Pickard’s thesis is any engagement with the collateral consequences of criminal penalties for the offenders and their families, which further weakens the substantive import of proportionality as a limit on punitiveness. More on this shortly.

Coming from a penal abolitionist perspective, criminologist Deborah Drake has attempted to show the futility of the prison system in the pursuit of safety and security, based partly on an ethnographic study in Britain’s maximum security prisons, Drake’s work brings into focus the symbolic functions of the prison as an aid to law-and-order politics, exclusionary political rhetoric, and rapidly intensifying security ideologies.71 Politicians tap into the prison as political capital by constructing prisoners as the dangerous Other, the enemy within, ‘undeserving of human rights’.72 Any benign pretentions to the effect that the prison could create law-abiding citizens, on Drake’s account, are defeated by the focus on punishment and a neglect of the ‘social or structural factors and barriers…that lead people to the prison in the first place’.73 A central claim Drake makes is that ‘the moral underpinnings’ and the rhetoric of rationality attached to the criminal justice system deflect attention from the failures of the system to deliver either justice or security.74 Crucially, Drake does not appear to contemplate the fact that the better part of what she calls the moral underpinnings of the system is supplied in our times by the ideology of human rights. The idea of due process of law, the principle of proportionality, and prisoners’ rights are normative concepts anchored to human rights. Without wishing to tarnish the positive contribution of these norms in reducing the suffering of prisoners, I simply wish to underscore the limitations of their emancipatory potential. The prison, after all, is taken for granted not only in crime control agendas, as Drake correctly points out, but also in the discourse of human rights. I have yet to come across a single academic commentary on human rights that questions the validity of the prison per se. Drake’s conclusion that the way out of the punitive dragnet is to stop moralising and judging the behaviour of others is perhaps the weakest part in the thesis. In identifying the hypocrisies of the criminal justice system, Drake herself repeatedly makes normative statements. Curiously enough, in advocating possible ways of ‘ending punishment’, Drake cites the example of the South African Truth and Reconciliation Commission, an initiative that was itself informed by a deep sense of morality.75 It is a telling indicator of the hegemony of the just-deserts movement and the ideology of human rights that morality in our times gets equated with punishment and retributive justice. Alternative ways of dealing with crime are categorised as pragmatic at best, and moral sell-outs at worst.76

In a recent essay, Ramiro Avila Santamaria sets out to address a question that is central to our present discussion: ‘Could human rights discourse provide a possibility of transforming punitive power’, asks Avila, ‘or, to the contrary, is it a discourse that legitimizes it?’77 Setting the context, he notes with concern the dominance of the topic of ‘insecurity’ in presidential campaigns in virtually every country of Latin America. He recounts the introduction of new criminal offences – drugs, money-laundering, human trafficking, child pornography – and adoption of harsher sentences throughout the region. It would be hard to refute Avila’s implied argument that in recent years it is the discourse of security, public safety and crime control that has increasingly been used to legitimize the punitive power of the state.78 However, he stretches his argument in suggesting that historically it was ‘criminal positivism’,  ‘functionalist theories’ of crime (the idea of ‘criminal dangerousness’) or ‘criminal doctrine of social defense’ that justified the expansion of the punitive power. Admittedly, positivist criminology had its shadow side. It would be a distortion of history, however, to put down the expansion of the state’s punitive power to what Alvira calls ‘criminal positivism’. As we have seen, positivist criminology also facilitated a shift in penal thinking toward a contextualised understanding of the offender. This was something of an advance on the metaphysical speculations of Enlightenment thinkers. Through much of the first half of the twentieth century, positivist ideas in conjunction with Keynesian economics, also informed the development of probation, parole and rehabilitative services.

The crucial point to underscore is that rejecting the positivist creed and the rehabilitative ideal altogether may play into the hands of modern retributivists. Once neurobiological, psychological and environmental explanations of crime are ignored or marginalised, it becomes that much easier to anchor sentencing practices and prison regimes in retributive justice by pronouncing that the criminal alone is always the one to blame. It is true that post-9/11 security regimes have been built on an essentially Manichean concept of ‘light versus darkness’ and ‘good versus evil’ with entire communities typecast as suspicious or dangerous. However, historical evidence indicates that it was the rise of neo-retributivism together with neoliberal political economy that paved the way for the punitive turn, at least since the 1970s.

That retributivist ideas are to be implicated in the rise of punitiveness flows logically from Avila’s own observation that criminal law reduces the problem of ‘violence’ to ‘the offense and to one person’. The blindness of criminal law, he rightly suggests, obscures the contextual complexity of a criminal act. This was precisely the crux of the criticism launched by Marxists and positivists against classical retributivism: Kant and Hegel had stripped crime of its social context and reduced it to the question of free will. Individual actions were abstracted from the social relations of power and dominance within which they took place. Avila, in fact, seems to be misreading Kant by positing that the idea of dignity (in the sense that a person ought not to be used merely as a means to an end) invalidates the kind of punishment which does not serve positive ends. This is the exact opposite of Kantian justification for punishment, which, as we have already seen, is purely non-consequential. To his credit, Avila debunks the criminal justice myth that ‘punishment is individual’ in its impact. Rather in the process, ‘his or her spouse, children, mother, father, and friends also suffer’.79

Avila makes a bold attempt to problematize the relationship between criminal law and human rights. Contrary to the general image of human rights as a defence against the excesses of the criminal law, he correctly points out that provided certain conditions are met, ‘human rights discourse could legitimize not only the criminal justice system but also its expansion’.80 The argument is that whereas domestic constitutions and international conventions impose limits on the state’s punitive power by providing due process and fair trial guarantees, human rights discourse requires classification of human rights violations as crimes. Avila warns against the negative consequences of the tendency of contemporary ‘emancipatory movements’ to seek criminal law solutions to social problems, as it involves ‘usurping the pain and conflict of the victim’ and reducing the struggle to a ‘procedural fight’.81 Rather simplistically though – and in a somewhat self-contradictory manner – he pins his hopes on the ‘emancipating human rights discourse’ as a counter to the repressive and damaging tendencies of criminal law. To Avila, human rights discourse can have this effect if it: 1) takes on board both substantive and procedural criminal law, 2) adopts a multi-disciplinary, social science approach, 3) is minimal and restorative, and 4) is inspired by ‘interculturality’, i.e. alternative, indigenous methods of justice.82 There are no leads provided though as to how this transformed human rights discourse might come about. No attention is paid to the limitations associated with the intellectual roots of the discourse of human rights, which is firmly wedded to the classical Enlightenment idea of retributive justice and the tradition of abstract theorizing bereft of sociological inquiries into crime and criminality.

The Myth of Proportionality

We have no reason to doubt that the scheme of sentencing based on ‘commensurate-deserts’ put forward by Andrew von Hirsch and some other liberal theorists in the 1970s was motivated by a genuine desire to limit judicial discretion in passing long indeterminate sentences and to provide a corrective to a twisted sense of paternalism that characterised some correctional institutions.83 In a prophetic observation, however, Gardner Martin, had warned in 1976 of the potentially undesirable consequences of reforms.84 The subsequent punitive turn in the US and elsewhere has clearly demonstrated that determinate sentencing and the allocation of penalties on the basis of proportionality, or ‘commensurate deserts’ (Andrew von Hirsch’s preferred expression) has not necessarily led to more moderate or shorter sentences.85 The parsimony in the use of incarceration that von Hirsch had hoped for has not been realized either.86 Rather, the ‘just deserts’ approach has resulted in a greater use of custodial sentences. Since scholars have already addressed the failure of the proportionality principle to rein in the state’s punitive power, there is no point labouring this issue further.87

However, there is another dimension to the proportionality principle which has not received much attention. The idea of proportionality is far less determinate than it is thought to be and is blind to the full extent of the suffering that attends a custodial sentence. Typical of Kantian ethics, the principle of proportionality rests on the image of the offender as an abstract, autonomous being detached from the concrete context of personal and social relationships.88 It is important to recognise this weakness since otherwise we slip into assuming that retributive justice and proportionality is all we have got as the endpoint of history. A strong indication of this tendency is the deferential posture adopted by human rights scholars toward the proportionality principle. It is a notion deeply embedded within retributivism and is something we inherit in a taken-for-granted way in our human rights culture.

The brief critique presented here addresses something other than the socially contingent nature of any exercise in determining relative seriousness of offences (ordinal proportionality) or the question of what specific penalty is deserved for a particular offence (cardinal proportionality).89 Let us also leave aside the issue of whether it is the seriousness of the actual harm done or the motive for performance of the harmful act that should be the reference point for the scale of cardinal proportionality.90 The claim I wish to make is that a custodial sentence can only be thought of as proportionate in a very loose and indeterminate manner. We cannot let the case rest with the ‘intuitively appealing’ assertion that ‘only grave wrongs merit severe penalties; minor misdeeds deserve lenient punishments’.91 The principle of proportionality as it is proclaimed in theory and as it is experienced in reality are distinct matters. The point is that the privations of incarceration are never experienced uniformly by all convicts, nor are they restricted to the convicts alone.  Further, the suffering that attaches to a term in prison does not cease magically at the point when a convict steps out of prison gates. The insidious effects of incarceration, including the social stigma it carries, follow an ex-offender around like a shadow. In calling a custodial sentence ‘proportionate’, we thus trade in half-truths and self-delusion. It is quite another matter that the principle of proportionality even in its restrictive import (as imposing upper limits on criminal penalties or prohibiting grossly disproportionate sentences) has been rendered ineffective in some jurisdictions under the influence of conservative ideology. Examples would include failed legal challenges to California’s ‘three strikes’ laws which provide a sentence of 25 years to life for a third felony even if it involves a minor or non-violent offence.92

There is a fast growing body of literature emerging mostly from the United States that deals with the ‘collateral consequences’ of punishment. You will struggle in vain to find a single reference to this literature in mainstream human rights scholarship. Some scholars tend to use the term ‘collateral consequences’ or ‘invisible punishments’ to include administrative and legal measures piled up on top of a custodial sentence: felon disenfranchisement, eviction from public housing, and the requirements of criminal record disclosure.93 I am more interested in exploring the other set of ‘collateral consequences’, namely the impact of imprisonment on offenders’ children and partners. Even though it is only recently that sociologists have begun to map out the ‘collateral consequences’, awareness of this reality is not entirely new. Sanford Bates, a towering figure in the long-defunct International Penal and Penitentiary Commission and Director Federal Bureau of Prison in the United States, had this to say in a 1937 publication:

The prisoner’s life is ordered for him. His meals, though simple, come regularly. No landlord presses for his rent…But the wife and children have to carry on the battle – and many times it is a losing battle – deprived of their source of income, obliged to scrimp and economize in every way, and, worst of all, forced to face the taunts or shrugs of their neighbours.94

As part of a broader study that looks at the disproportionate impact of ‘mass incarceration’ on America’s black population and how the exclusion of inmates and former inmates from official survey data creates an illusion of ‘black progress’, Becky Pettit sheds light on unseen casualties of penal expansion, focusing in particular on children. Pettit’s claim that ‘incapacitation by the criminal justice system not only shapes the lives of adult inmates but has potentially long-term effects on their children’ is of crucial importance in unmasking the conceptual holes in the doctrine of proportionality.95 She cites empirical evidence to argue that children of prisoners not only suffer as a result of reduced economic capacity and family instability, but also (especially boys) have a greater risk of developing emotional and behavioural problems.96 Other scholars have classified collateral consequences on children as comprising ‘strain’, ‘socialization’ and ‘stigmatization’ to refer respectively to economic deprivation, absence of parental role modeling, and the shame and stigma that the children of prisoners have to live with.97 Research focusing on maternal incarceration has revealed particularly profound impact on children’s lives that accentuates pre-existing disadvantages. Evidence has been put forward to link maternal incarceration with ‘school failure, antisocial and delinquent behaviour, and higher rates of inter-generational incarceration’.98 To Holly Foster and John Fagan, ‘Americans rarely think of prison inmates – black or white, men or women – as parents’.99 This view of prisoners as abstracted from their contingent circumstances, including parenthood, is not confined to the American public though. The tendency runs deep within legal academia and the discourse of human rights as well. It should be clear in the light of the previous discussion that retributivist theory, including the principle of proportionality, are directly implicated in our failure to notice the collateral consequences: the theory, after all, is avowedly non-consequentialist; it espouses the fragmentation of criminal justice and social justice; and operates with the image of the legal subject as an abstract moral agent. The demonization of offenders, as part of the law-and-order politics and moral panics generated by the media, makes it even more difficult for us to give attention to the collateral consequences of incarceration.

To be fair, we have to recognise also that there may be cases where incarceration of a violent or abusive partner or parent is to a family’s immediate benefit. In a fascinating ethnographic study that combines participant observation in the waiting area of San Quentin State Prison in California with in-depth interviews of women whose partners were behind the bars, Megan Comfort attempts to provide a corrective to the body of scholarship that views ‘correctional system as a monolithically negative force in the lives of inmates and their families’.100 Describing women’s complex interactions with the institution of prison and prison guards as ‘secondary prisonization’, Comfort argues that partners’ incarceration allows some women to escape domestic violence and ‘to reframe and manage troubled relationships’.101 The reactions of these women, however, are rarely expressed in straightforward black and white terms. As Comfort explains, a woman with a drug-abusing husband behind bars ‘might keenly miss his companionship but find herself more financially secure during his incarceration’.102 Crucially, the enabling role of the prison, such as it is, emerges only against the context of a failure of other state institutions – income support, healthcare, psychological counseling, childcare benefits – to intervene positively in women’s life.103 In her final summation, Comfort agrees that any short-term benefits women may extract out of their partners’ incarceration do not override the ‘much more obvious and amply demonstrated destructive effects of forced separation and confinement on families’.104

The Fragmentation of Criminal Justice and Social Justice

In 1976, the Committee for the Study of Incarceration published its report, Doing Justice, setting out a case for ‘desert-based’ system of punishment. Following its publication, several states in America introduced sentencing guidelines.105 Even as the report eschewed the term ‘retribution’, it was, at its heart, a re-packaged version of Kantian theory combining appeals to human rights with philosophical justifications based on ‘commensurate desert’ and ‘moral reprobation’. It constituted a clarion call for a return to Enlightenment ideas. The introduction to the report set a gloomy tone upfront by admitting that ‘the quality of heady optimism and confidence of reformers in the past, and their belief that they could solve the problem of crime and eradicate the presence of deviancy, will not be found in this document’.106 In many ways, this frank admission sums up the tenor of mainstream human rights scholarship as well. One struggles in vain to find a reference in contemporary human rights texts and commentaries to criminological and other social science investigations into crime or ‘deviancy’.

Anticipating criticism on the grounds of the inherently contradictory nature of ‘just deserts in an unjust society’, Andrew von Hirsch devoted a few pages to the question of social justice.107 Reasonably enough, he interpreted Marx’s critique of punishment as based on a disapproval of utilitarian justifications of punishment.108 Playing down the irony of Marx’s comments in his essay on the death penalty, though, von Hirsch claimed that ‘desert is essential’ in Marx’s view to ‘the case for punishing’. Whilst von Hirsch recognised Marx’s point that punishment is not defensible in a fundamentally unjust social system, he found it difficult to embrace ‘the logic of that position’ as ‘it leads to opposing the existing institutions of punishment’.109 There are, however, more modest implications of the Marxist critique than the one von Hirsch ascribed to it.

In his seminal work, The Idea of Justice, Amartya Sen reminds us of the Sanskrit literature on jurisprudence, which made a distinction between niti (procedural justice) and naya (substantive or ‘realized justice’).110 Legal theorists in ancient India warned against what they called matsyana, i.e. ‘justice in the world of fish’, where a big fish can freely devour a small fish.’ Preventing ‘the justice of fish’ is itself an essential part of the pursuit of justice.111 Sen takes issue with Roman Emperor Ferdinand I’s famous edict ‘let justice be done, though the world perish’ as a very severe form of niti. The same could be said of the kind of robust Kantian retributivism that von Hirsch set out to revive with its indifference to the consequences of punishment and a focus on procedural fairness (niti) rather than fair outcomes (naya). A substantive or ‘realization focused perspective’, Sen forcefully argues, requires that we prevent ‘manifest injustice in the world, rather than seeking the perfectly just’.112 One possibility, then, is to readjust the focus of criminal justice by aiming its punitive arm toward the crimes of the powerful rather than ordinary, everyday crime. Sensitivity to the disadvantaged backgrounds that many offenders come from would also warrant greater reliance on non-custodial rather than custodial sentences and a renewed focus on offender rehabilitation, which finds only a marginal place in the theory proposed by von Hirsch.113

Another dimension of the criminal justice-social justice interface, which von Hirsh was rather quick to dismiss, is the question of social deprivation as a criminal defence. Somewhat reminiscent of novelist Anatole France’s observation that the law in its majestic quality ‘forbids the wealthy as well as the poor from sleeping under bridges, begging in the streets, and stealing bread’,114 under von Hirsch’s ‘commensurate-deserts principle, an impoverished defendant would be punished no more severely than an affluent individual convicted of an equally serious crime.’115 Whilst acknowledging the correlation between crime and social deprivation, von Hirsch did not consider this ‘an issue that judges can be expected to deal with fairly’.116 The issue then, it would appear, is more of convenience rather than principle. The best that a sentencing scheme can hope to achieve, we are told, is not to aggravate the disadvantage that the poor already suffer pre-conviction. That is to be achieved through procedural guarantees of fair trial and a determinate sentencing scheme. To be convincing, this argument, typical of deontological theory, rests on the suspension of empirical perspective. How is it possible, we may ask, that two differently situated individuals will experience a given length of imprisonment in the same manner? Will a poor and a rich person be in the same situation coping with the stigma of punishment as they try to reintegrate into society?

Conclusion

By stopping short of addressing the failure of social institutions in the context of criminality and the destructive effects of incarceration, the criminal law and the discourse of human rights clearly diverge from what Amartya Sen has referred to as naya, i.e. substantive or ‘realized justice’ as distinct from niti (procedural justice). The social context of criminality is barely relevant to the prevailing theories of punishment – a blind spot that goes unaddressed in human rights scholarship. Both neo-retributivism and the discourse of human rights operate with a split between criminal justice and social justice. There is a strong convergence of views on the nature of humans as free and autonomous beings exclusively responsible and accountable for their actions regardless of the social situation they find themselves in. Both share the same intellectual springboard, i.e. Enlightenment philosophy represented by Kant and Hegel, which results in a paradoxical commitment to human dignity, and, at the same time, to punishment as an absolute moral obligation.

It is no surprise that those who directly challenge the ideology of retributivism come from the entirely different intellectual traditions of critical theory, Marxist criminology and restorative justice.117 They rarely articulate their agendas in the language of human rights. Given its theoretical affinity with Kantian and Hegelian philosophy, the concept of human rights lends itself to be used most effectively to justify retributive justice. The discourse of human rights has certain a priori assumptions about the ‘individual’ and ‘society’ built into its accounts of punishment and justice, which may be formally correct but are materially incorrect in the sense that they do not correspond to an actually existing society. That compartmentalized vision mirrored within the corpus of international human rights law in the separation of ‘civil and political’ rights from ‘economic, social and cultural rights’ plays into retributive and sociologically ill-informed models of punishment. The division helps insulate ‘penal policy’ from ‘social policy’, and re-enacts cycles of exclusion and deprivation created by socially unjust arrangements in the first place.

Notes

1. Walt Whitman, “This Compost” in The Complete Poems (London: Penguin 2005), 390.

2. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge MA: Harvard University Press 2010); See also Jack Eckel and Samuel Moyn (eds.), The Breakthrough (Philadelphia: University of Pennsylvania Press, 2014).

3. Rolf Sartorius, “Utilitarianism, Rights and Duties to Self”, American Philosophical Quarterly, Vol. 22, No. 3, July 1985.

4. Ramiro Avila Santamaria, “Citizen Insecurity and Human Rights: Toward the Deconstruction of the Security Discourse and a New Criminal Law”, in Cesar Rodriguez-Garavito (ed.), Law and Society in Latin America: A New Map (Abingdon, Oxon: Routledge, 2015), 251-78.

5. Nigel S. Rodley with Matt Pollard, The Treatment of Prisoners under International Law (Oxford: Oxford University Press, 2009 3rd Edition).

6. Some key texts reviewed are: Sarah Joseph and Melissa Caston, International Covenant on Civil and Political Rights: Cases Material and Commentary (Oxford: Oxford University Press, 2013 3rd Edition); Philip Alston and Ryan Goodman, International Human Rights (Oxford: Oxford University Press, 2013); Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds.), International Human Rights Law (Oxford: Oxford University Press, 2010); and, Ben Emmerson, Andrew Ashworth and Alison MacDonald, Human Rights and Criminal Justice (London: Sweet & Maxwell, 2007).

7. John Braithwaite and Philip Petit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1998), 15-16.

8. Examples of such teleological accounts can be found in Paul Gordon Lauren, The Evolution of Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998) and Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2004).

9. Nicole Rafter, “Criminology’s Darkest Hour: Biocriminology in Nazi Germany”, Australian and New Zealand Journal of Criminology, Vol. 41, No. 2, 2008. 287-306.

10. Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard University Press, 2012), 19.

11. Kant’s theory is a prototypical example of deontological ethics, which requires a moral choice to be justified on the basis of certain a priori principles rather than expected outcomes of that choice. The approach contrasts with utilitarian theories which hold that moral choices and actions ought to maximize the overall good.

12. Immanuel Kant, The Metaphysical Elements of Justice: Part I of the Metaphysics of Morals. Trans. John Ladd (New York: Bobbs-Merrill, 1965), 101.

13. Barbara A. Hudson, Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory (Buckingham: Open University Press, 1996), 51.

14. Kant, The Metaphysical Elements, 140.

15. Jeffrie G. Murphy, Retribution, Justice and Therapy (Dordrecht: D. Reidel Publishing Co., 1979), 90.

16. G.W.F Hegel, Elements of the Philosophy of Right. Trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1991), 116.

17. Ibid., 124-7.

18. Ibid., 126-7.

19. Cesare Beccaria, On Crimes and Punishment (New Brunswick: Transaction Publishers, 2009 5th Edition), 33.

20. On Beccaria’s influence on the European penal landscape, see Leon Radzinowicz, Ideology and Crime: A Study of Crime in Social and Historical Context (London: Heinemann Educational Books, 1966), 14-28; Elio Monachesi, “Cesare Beccaria” in Hermann Mannheim (ed.), Pioneers in Criminology (London: Stevens & Sons, 1960), 36-49.

21. Raymond Saleilles, The Individualization of Punishment (Boston: Little, Brown & Co., 1911), 18.

22. Karl Marx, Dispatches for the New York Tribune: Selected Journalism of Karl Marx (London: Penguin, 2007), 122.

23. Ian Cumming and Simon Wilson, “Mentally Ill Prisoners and Mental Health Issues in Prison”, in Simon Wilson and Ian Cumming (eds.), Psychiatry in Prisons: A Comprehensive Handbook. (London: Jessica Kingsley Publishers, 2010), 41.

24. John Podmore, “The Current Structure of Prison Service” in Wilson and Cumming (eds.), Psychiatry in Prisons, 21.

25. Adrian Raine, The Psychopathology of Crime: Criminal Behavior as a Clinical Disorder (San Diego: Academic Press, 1993), 241.

26. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (New York: Oxford University Press, 2001), 34-40.

27. Alexander W. Psciotta, “Scientific Reform: The ‘New Penology’ at Elmira”, Crime and Delinquency 29, January 1983, 620.

28. Rafter, “Criminology’s Darkest Hour” (n 9).

29. Francis T. Cullen, “Rehabilitation: Beyond Nothing Works”, in Michael Tonry (ed.), “Crime and Justice in America: 1975-2025”, Vol. 42 of Crime and Justice: A Review of Research (2013), 312; also see Francis T. Cullen and Karen E. Gilbert, Reaffirming Rehabilitation (Cincinnati: Anderson Publishing, 1982), 7.

30. Auguste Comte, Introduction to Positive Philosophy. Trans. Frederick Ferre (New York: Bobbs-Merrill, 1970), 13, 56-7.

31. Richard Tarnas, The Passion of the Western Mind: Understanding the Ideas that Have Shaped Our World View (London: Pimlico, 1991), 352.

32. The term ‘eugenics’ is believed to have been coined by Charles Darwin’s half-cousin, the self-styled geneticist, anthropologist and explorer, Francis Galton in 1883. See Clare Anderson, Legible Bodies. Race, Criminality and Colonialism in South Asia (Oxford: Berg, 2004), 181.

33. For a case against such broad-brush dismissals of positivist criminology, see David Garland, “Criminal and His Science. A Critical Account of the Formation of Criminology at the End of the Nineteenth Century”, British Journal of Criminology, Vol. 25, No. 2, April 1985, 109-37; on the decline of biologically oriented studies in criminological research in the US, see John P. Wright et al. “Lombroso’s Legacy: The Miseducation of Criminologists”, Journal of Criminal Justice Education, Vol. 19, No. 3, November 2008, 325.

34. Daniel Pick, Faces of Degeneration. A European Disorder, c. 1848 – c. 1918 (New York: Cambridge University Press, 1989), 110.

35. Adrian Raine, The Anatomy of Violence: The Biological Roots of Crime (London: Allen Lane, 2013), 13.

36. Radzinowicz, Ideology and Crime, 56-7.

37. William A. Bonger, Criminality and Economic Conditions (New York: Columbia University Press, 1943).

38. For an introduction to Marxist criminology, see Stephen Jones, Criminology, 2nd ed. (New York: Oxford University Press, 2006), 232-60.

39. Francis A. Allen, “Raffaele Garofalo” in Mannheim (ed.), Pioneers (n 20), 254-276.

40. Richard F. Wetzell, “The Medicalization of Criminal Law Reform in Imperial Germany”, in Norbert Finzsch and Robert Jutte (eds.), Institutions of Confinement: Hospitals, Asylums, and Prisons in Western Europe and North America, 1500-1950 (Cambridge: Cambridge University Press, 1996), 275-83.

41. Radzinowicz, Ideology and Crime, 57.

42. Explaining the full significance and genealogy of this shift merits a separate essay. For a useful catalogue of institutional changes, see Roger S. Clark, The United Nations Crime Prevention and Criminal Justice Programme: Formulations of Standards and their Implementation (Philadelphia: University of Pennsylvania Press, 1994).

43. See, for example, Joel Feinberg, Doing & Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), 95-118.

44. Martin Gardner, “The Renaissance of Retribution: An Examination of ‘Doing Justice”, Wisconsin Law Review 1976: 781-815.

45. Donald Sassoon, One Hundred Years of Socialism: The West European Left in the Twentieth Century (London: I.B. Tauris, 2010), 145; also see Mark Mazower, Dark Continent: Europe’s Twentieth Century (London: Allen Lane, 1998), 359.

46. Friedrich von Hayek, The Road to Serfdom (London: George Routledge & Sons, 1944), 67, 84; Mazower, Dark Continent, 206.

47. Prime Minister Margaret Thatcher talking to Women’s Own magazine, October 31 1987.

48. Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), 151-203.

49. Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), 10, 26-53.

50. Ibid., ix.

51. Robert Nozick, Philosophical Explanations (Cambridge, MA: Belknap Press, 1981), 374-5, 77.

52. For a recent analysis in relation to the British disclosure rules and the jurisprudence of the European Court of Human Rights, see Elena Larrauri Pijoan, “Criminal Record Disclosure and the Right to Privacy”, Criminal Law Review, Issue 10, 2015. 723-737.

53. See, for example, Becky Pettit, Invisible Men: Mass Incarceration and the Myth of Black Progress (New York: Russell Sage Foundation, 2012).

54. Leo Zaibert, “Punishment and Revenge”, Law and Philosophy, 25, 2006. 81-118; Nigel Walker, “Nozick’s Revenge”, Philosophy, Vol. 70, No. 274, October 1995. 581-586.

55. Zaibert, “Punishment and Revenge”, 97-8.

56. See, for example, Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: W.W. Norton, 1975), 152-53.

57. Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (London: Verso, 2008 2nd Edition), xii.

58. On the ‘prison-industrial complex’, including the exploitation of prison labour for weapons production in America, see Tara Herivel and Paul Wrights (eds.), Prison Profiteers: Who Makes Money from Mass Incarceration (New York: New Press, 2007); see also Parenti, Lockdown America, 10, 48, and Tod R. Clear and Natasha A. Frost, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America (New York: New York University Press, 2014), 71-112.

59. Deborah Drake, John Muncie, Louise Westmarland, Criminal Justice, Local and Global (London: Sage, 2010), 39. See also John Pratt et al (eds.), The New Punitiveness: Trends, Theories and Perspectives (Devon: Willian Publishing, 2005); Loïc Wacquant, “The Penalisation of Poverty and the Rise of Neo-Liberalism”, European Journal on Criminal Policy and Research, 2001, Vol. 9, No. 4, 401-12; Trevor Jones and Time Newburn, Policy Transfer and Criminal Justice: Exploring US Influence over British Crime Control Policy (Maidenhead: Open University Press, 2007).

60. The period from the late ‘60s to the mid-‘80s (cf Eric Hobsbawm’s characterization of 1789-1914 as the ‘long 19th century’).

61. Moyn, The Last Utopia, 16.

62. Ibid., 17.

63. Andy Beckett, When the Lights Went Out: Britain in the Seventies (London: Faber & Faber, 2009), 209-33.

64. Selina Todd, The People: The Rise and Fall of the Working Class (London: John Murray, 2014), 299-315.

65. Philip Alston, “Ships Passing in the Night: The Current Status of Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals”, Human Rights Quarterly, Vol. 27, No. 3, August 2005. 755-829.

66. Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge: Cambridge University Press, 2008).

67. Nicola Lacey and Hannah Pickard, “The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems” (2015) 78 (2) Modern Law Review, 216-240.

68. Ibid., 225, 227.

69. Ibid., 236.

70. Ibid., 235.

71. Deborah H. Drake, Prisons, Punishment and the Pursuit of Security (Basingstoke: Palgrave Macmillan, 2012).

72. Ibid., 108.

73. Ibid.

74. Ibid., 134.

75. Ibid., 172; also see William Schabas, Unimaginable Atrocities (Oxford: Oxford University Press, 2012), 168.

76. This type of dichotomous thinking is quite common in scholarship in the area of transitional justice. See, for example, Tristan Garcia, “Amnesties and the Rome Statute – A Legitimate Bar to Prosecution?” 13 Australian International Law Journal. 187, 2006; and Andreas O’ Shea, Amnesty for Crime in International Law and Practice (The Hague: Kluwer Law International, 2004).

77. Avila Santamaria, “Citizen Insecurity and Human Rights” (n 4), 251-78.

78. In the context of the Netherlands, Renée van Swaaningen has argued that the discourse of ‘safety’ emerged in the 1990s replacing the narrower concept of ‘crime control’. Renée van Swaaningen, “Public Safety and the Management of Fear”, Theoretical Criminology, August 2005, Vol. 9, No. 3, 289-305.

79. Avila Santamaria, “Citizen Insecurity and Human Rights” (n 4), 259.

80. Ibid., 254.

81. Ibid., 267.

82. Ibid., 269.

83. Andrew von Hirsch, Doing Justice. The Choice of Punishments: Report of the Committee for the Study of Incarceration (New York: Hill & Wang, 1976).

84. Gardner, “The Renaissance of Retribution” (n 44) 785.

85. Andrew Von Hirsh, “Penal Theories” in Michael Tonry (ed.), The Handbook of Crime and Punishment. (New York: Oxford University Press, 1998). 659-82

86. von Hirsch, Doing Justice, 107-17.

87. See Lacey and Pickard, “The Chimera of Proportionality” (n 67).

88. For a broader critique of Kantian ethics on these lines, see Victor J. Seidler. The Moral Limits of Modernity: Love, Inequality and Oppression (Basingstoke: Macmillan, 1991).

89. See Lacey and Pickard, “The Chimera of Proportionality” (n 67) and Nigel Walker, “Desert: Some Doubts”, in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart Publishing, 1998 2nd Edition), 156-60.

90. John Kleinig, Punishment and Desert (The Hague: Martinus Nijhoff, 1973), 127-8.

91. von Hirsch, Doing Justice, 66.

92. Ewing v California 538 U.S. 11 (2003) and Lockyer v Andrade 538 U.S 63 (2003).

93. Jeremy Travis, “Invisible Punishment: An Instrument of Social Exclusion”, in Marc Mauer and Meda Chesney-Lind (eds) Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: Free Press, 2002), 15-36.

94. Sanford Bates. Prisons and Beyond (New York: Macmillan, 1937), 233.

95. Pettit, Invisible Men, 83.

96. Ibid., 84.

97. John Hagan and Ronit Dinovitzer, “Collateral Consequences of Imprisonment for Children, Communities, and Prisoners”, in Michael Tonry and Joan Petersilla (eds.), “Prisons”, Vol. 26 of Crime and Justice: A Review of Research (1999), 123.

98. Joyce A. Arditti, Parental Incarceration and the Family: Psychological and Social Effects of Imprisonment on Children, Parents and Caregivers (New York: New York University Press, 2012), 59.

99. Holly Foster and John Hagan, “The Mass Incarceration of Parents in America: Issues of Race/Ethnicity, Collateral Damage to Children, and Prisoner Reentry”, Annals of the American Academy of Political and Social Science, Vol. 623 (May 2009), 180.

100. Megan Comfort, Doing Time Together: Love and Family in the Shadow of the Prison (Chicago: University of Chicago Press, 2008), 2, 9.

101. Ibid., 12, 17.

102. Ibid., 17.

103. Ibid., 185-98.

104. Ibid., 196.

105. Garland, The Culture of Control, 59-60; von Hirsh, “Penal Theories” (n 85), 666.

106. Willard Gaylin and David J. Rothman, “Introduction” in von Hirsch, Doing Justice, xxxiv.

107. Von Hirsch, Doing Justice, 143-9; for arguments in support of social justice concerns informing the doctrine of criminal responsibility, see David L. Bazelon, “The Morality of the Criminal Law”, 49 Southern California Law Review (1976), 385; also Stephen J. Morse, “The Twilight of Welfare Criminology: A Reply to Judge Bazelon”, 49 Southern California Law Review (1976), 1247.

108. von Hirsch, Doing Justice, 144; Marx, Dispatches, 119-122.

109. Marx, Dispatches, 145.

110. Amartya Sen, The Idea of Justice (London: Penguin, 2010), 20.

111. Ibid.

112. Ibid., 21.

113. According to von Hirsch, ‘even if rehabilitation works, basing the sentence on the offender’s need for treatment falls afoul of the commensurate principles’. Rehabilitation, he believed, ‘should be distinguished from helping an offender with his own problems’, which ‘ought to be offered on a voluntary basis’. von Hirsch, Doing Justice, 127-128.

114. Anatole France, The Red Lily (Boston: IndyPublish.com, 2002), 62.

115. von Hirsch, Doing Justice, 147.

116. Ibid., 146.

117. See, for example: Vincenzo Ruggiero, Penal Abolitionism (Oxford: Oxford University Press, 2010); Nils Christie, Limits to Pain: The Role of Punishment in Penal Policy (Wipf & Stock, 2007); Thomas Mathiesen, Prison on Trial (Winchester: Waterside Press, 2006 3rd Edition); Braithwaite and Petit, Not Just Deserts.

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