Reinventing Punishment: A Comparative History of Criminology and Penology in the 19th and 20th Century

Reinventing Punishment: A Comparative History of Criminology and Penology in the 19th and 20th Century

by Michele Pifferi


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Providing a historical analysis of the impact of criminology on the rationale of punishment and the sentencing systems in Europe and the US between the 1870s and the 1930s, Reinventing Punishment: A Comparative History of Criminology and Penology in the 19th and 20th Century investigates and contrasts the rise of the principles of individualisation of punishment, social defence, preventive justice, and indeterminate sentencing.

The manner in which American and European jurisprudence enforced these ideas resulted in the emergence of two different penological identities: the American penal reform movement led to the adoption of the indeterminate sentence system, whereas the European criminological approach resulted in the formulation of the dual track system with punishment and measures of security. This theoretical divide, discussed at many international congresses and in studies of comparative criminal law, not only reflects two different ideas on the legitimacy and purpose of punishment, but also corresponds to two different constitutional views of criminal law. The book considers the relation between constitutional frameworks (rule of law and Rechtsstaat) and penological claims, explaining how some of the tenets of penal liberalism (such as principle of legality and separation of powers) were affected by penal modernism, even with the rise of authoritarian regimes. It examines the dilemmas provoked by criminology focusing on the role of the judge in the execution of sentences, the distribution of sentencing powers among judicial and administrative bodies, the balance between social security and individual guarantees, and the inconsistencies of preventive detention.

Filling a notable gap in Anglo-American literature by providing a sophisticated panoramic analysis of the development of criminology in late nineteenth and first half of the twentieth century Europe, Reinventing Punishment will be of interest to scholars of criminology, criminal law, and criminal justice studies, as well as legal historians and theorists.

Product Details

ISBN-13: 9780198743217
Publisher: Oxford University Press
Publication date: 08/09/2016
Series: Clarendon Studies in Criminology
Pages: 320
Product dimensions: 8.60(w) x 5.80(h) x 1.00(d)

About the Author

Michele Pifferi, Associate Professor of Legal History, Ferrara University

Dr Michele Pifferi is Associate Professor of Legal History at the Law Department, University of Ferrara, where he teaches Medieval and Modern Law History and Criminal Law History. He has been visiting researcher at the Max Planck Institute for European Legal History in Frankfurt am Main (2002); Emil Noel Fellow at the Jean Monnet Center for International & Regional Economic Law and Justice, NYU School of Law (2009); Robbins Fellow at Berkeley UC, School of Law (2012); Academic Visitor at the Oxford Centre for Criminology (2014); and is currently Alexander von Humboldt Research Fellow at the University of Hamburg. His research interests focus on comparative history of criminal law and criminology and migration history.

Table of Contents

1 Introduction 1

1.1 The Claim for a New Penology 1

1.2 The History of a Failure? 3

1.3 The Dilemmas of Indeterminate Sentence 7

1.4 Plan of the Book 9

2 Designing the 'New Horizons' of Punishment 13

2.1 The Impact of Criminology on Liberal Criminal Law 14

2.2 Individualization as the New Face of Punishment 16

2.3 Different Sorts of Individualization 19

2.4 Positivist Criminology and Criminalization Process 22

2.4.1 Historicizing individualization 24

2.4.2 The penal reform movement and legal comparison 26

2.4.3 Global and national unity and diversity 30

2.5 From the Safeguard of Individual Rights to Social Defence 33

2.6 Conclusions 35

3 The Origins of Different Penological Identities 38

3.1 US Pragmatism versus European Doctrinarism 39

3.2 Legal Transfer and US Eagerness for Scientific Criminology 42

3.3 Legal Comparison to Design the Criminal Law of the Future 45

3.3.1 The International Union of Penal Law and La législation pénale comparée 46

3.3.2 The American Institute of Criminal Law and Criminology 49

3.3.3 Journal of the American Institute of Criminal Law and Criminology 50

3.4 Rereading the Past to Change the Future 52

3.4.1 Von Liszt's history of the 'social character of punishment' 53

3.4.2 The social history of crime in Saleilles and Cuche 54

3.4.3 Pound's historical compromise between progress and tradition 55

3.4.4 The radical evolutionism of Italian positivists 56

3.5 Conclusions 57

4 The Struggle over the Indeterminacy of Punishment in the United States (1870s to 1900s) 59

4.1 Brockway and the Origins of Indeterminate Sentencing 60

4.2 The Exaltation of the Rehabilitative Ideal in the United States 63

4.2.1 Reformation and elimination: The double soul of the reformatory system 65

4.2.2 The questionable constitutionality of the indeterminate sentence laws 68

4.2.3 Evolutionary interpretations and 'emphasis upon reformation' 72

4.3 Indeterminate Sentence and Social Defence 75

4.3.1 In search of new legitimating discourses for indeterminacy 76

4.3.2 The disillusion with the methods of application of indeterminate sentences 80

4.3.3 The rise of critiques against the new system 82

4.4 Conclusions 85

5 The Concept of Indeterminate Sentence in the European Criminal Law Doctrine 86

5.1 The Origin of a Genetic European Identity in Penology 87

5.1.1 Garofalo and the posftivist criterion of punitiveness 88

5.1.2 Psychiatry, determinism, and the need for social protection 90

5.1.3 Indeterminacy as a means of social security 92

5.2 The Strict Legality of Sentencing and Individualization 'as Far as Possible' 93

5.3 The Theoretical Conflict and the Building of an Alternative 97

5.3.1 Indeterminate sentences as supplementary punishment 99

5.3.2 The defence of judicial sentencing powers 102

5.4 The Sociological Retributivism of Durkheim and Tarde 105

5.5 Durkheimian Echoes in the Criminological Debate 108

5.6 Indefinite Detention as 'Peine de Réforme' and 'Peine de Sûreté' 110

5.7 Criminalizing Normal and Abnormal Offenders 111

5.8 Conclusions 115

6 The Formation of the European Dual-Track System 117

6.1 The European Sense of Indeterminacy at the Brussels Congress of 1900 118

6.1.1 Distinguishing between retributive and reformative measures: Saleilles and Gauckler 119

6.1.2 Ruggles-Brise: Preventive detention as a supplementary sentence 121

6.2 The European Dual-Track System in the Making 124

6.2.1 The Norwegian Penal Code of 1902 and other draft penal codes in Europe 125

6.2.2 The Prevention of Crime Act of 1908 in the United Kingdom 127

6.3 Measure of Security as Zweckstrafe 132

6.4 The Great Divide between European and US Penologies on Indefinite Punishment 135

6.5 The Dispute on Indeterminate Sentencing at the Washington Congress of 1910 137

6.6 Conclusions 141

7 The 'New Penology' as a Constitutional Matter: The Crisis of Legality in the Rule of Law and the Rechtsstaat (1900s to 1930s) 143

7.1 The Principle of Legality as Bulwark of Penal Liberalism 144

7.1.1 Revising the nulla poena principle 146

7.1.2 The principle of legality fragmented 149

7.2 Dissatisfaction with the Administration of Criminal Justice and the Criticism of Archaic Judicial Safeguards in the United States 151

7.3 Social Defence and the New 'Economy of Repression' 154

7.3.1 The reformatory system and the redistribution ofpowers 157

7.3.2 The claim for administrative discretion in sentencing 160

7.4 Bi-Phasic Trials and the Separation of Verdict and Sentencing in the United States 163

7.5 Procedural Consequences of the Bifurcated Criminal Trial 165

7.6 The Judge's Dilemma and the Inconsistencies of the Peno-Correctional System 168

7.7 The Reaction against Administrative Justice: Scientific Treatment and Disposition Tribunal 170

7.8 Conclusions 175

8 Nulla Poena Sine Lege and Sentencing Discretion 178

8.1 Sentencing Discretion and Constitutional Balance in the Rechtsstaat 179

8.2 Criminological Challenges to the Legality of Punishment 182

8.3 The Individualized Trial and the Judicialization of Punishment in the European Doctrine 184

8.3.1 Ugo Conti and the human element at the core of the criminal trial 185

8.3.2 Bruno Franchi and the individualizing criminal procedure 186

8.3.3 Social defence and the new 'Pillars of Hercules' of judges 188

8.4 Administrative or Judicial Individualization? The Debate at the London Congress (1925) 191

8.4.1 The US position 191

8.4.2 The European position 192

8.4.3 The concrete judicial individualization and its risks 195

8.5 Conclusions 197

9 From Repression to Prevention: The Uncertain Borders between Jurisdiction and Administration 199

9.1 Legalizing Dangerousness 200

9.1.1 De Asúa and the Ley de vagos y maleantes 201

9.1.2 Retribution and prevention: The European dualism of methods 202

9.2 'What a Vast Gulf Separates the Two Conceptions': Indeterminate Sentence and Measures of Security 205

9.3 The Growth of US Administrative Law in the Twentieth Century 208

9.3.1 From legal rules to legal standards: Pound and Frankfurter 211

9.3.2 Sheldon Glueck and the Rational Penal Code 212

9.3.3 Glueck's critique of Ferri's project 213

9.3.4 Looking for penological solutions in administrative law 215

9.4 The Administrative Security Measures in the Italian Fascist Penal Code 217

9.4.1 Penal and administrative: The hybrid notion of Arturo Rocco 217

9.4.2 A matter of boundaries for criminal law 218

9.5 The Powers of the Judge in the Sentencing Phase at the Berlin Congress (1935) 221

9.5.1 The unsolved problem of individualization 222

9.5.2 Latin versus German countries 223

9.6 'Reconciling the Irreconcilable': The Ambiguous Solution of the Dual-Track System 226

9.7 Conclusions 229

10 The Constitutional Conundrum of the Limits to Preventive Detention 231

10.1 Necessary Limits to the Individualization in the European Legal Culture (Late 1920s and Early 1930s) 232

10.2 The New Authoritarian Paradigm 236

10.3 The Authoritarian Use of Preventive Detention 239

10.4 Jerome Hall and the Call for Legality: The US Trajectory of Individualization 243

10.5 Fertile Ground for Totalitarianism? 246

10.6 Conclusions 250

11 Conclusions 252

11.1 Individualization, Social Defence, Prevention: The Roots of Two Penological Identities 252

11.2 The Conflict between Individualization and Individual Safeguards after the Second World War 254

11.3 The Current Constitutional Tensions of Preventive Justice 256

11.4 The Critical Contribution of Comparative Legal History 258

Bibliography 261

Index 301

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