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1 Points of view or opinions stated in this document are' those of the author(s) and do'not represent the official . ,t position or policies of the U. S. Department of Justice. 1 .; J " . t National Institute of Justice I United States Department of Justice ~ Washing~on, D.C. 20531 \ p" UNEDITED DRAFT i, o , " '\ I c I ~ 1i\ H

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United states Department of Justice Law Enforcement Assistance Administration Henry S. Dogin, Administrator TABLE OF CONTENTS National Institute of Law Enforcement and Criminal Justice e,ection Harry Bratt, Acting Director Paul Cascarano, Assistant Director Politics ~Criminal Justice Reform in Nineteenth cerit-ury France • • • • • • • • • • -~ ...... Thomas J. Duesterberg ...... Stanford University

State and Ptosti tution: Prohibition, Regulation or *WORKSHOP PAPERS Decrimi

Special National Workshop Development and Decay: Their Impact on Public Order in Western Histdry •• ...... Ted R. Gurr III HISTORICAL APPROACHES TO S'rUDYING CRIME Northwestern University

Chantilly, Virginia Ma trons and Mellis: The Study of Women's Prison History. .7··· 'I?II~ Nicholas F. Hahn October 11-12, 1979 Northeastern University

Urban Homicide in the Nineteenth Century: Some Lessons for For the Twentieth. • • • • • • . • • . • Roger Lane . . 7 ~ r.-; 'D'(; V THE NATIONAL CRIMINAL JUSTICE RESEARCH UTILIZATION PROGRAM Haver£ord College

, ~ ~ Interp:etations of 18th Century Gaming in England and Their Implica­ ~~ t~ons for Present Day Casino Control in Great Britain and the United States. • • • • • • • • • • • David R. Miers ..... 7~;J.ol VI University College - Wales ( .. fi) These papers are being presented at a Special National Workshop held pursuant ~The Qua)!tative Historical Study of Crime and Justice in the to Contract No. J-LEAA-004-79 awarded to University Research Corporation by United States •••••••••••• VIr the U.s. Department of Ju~;tice, Law Enforcement Assistance Administration, Eric Monkkonen ••• 7~7lJ2:-' under the Omnibus Crime C6ntrol and Safe Streets Act of 1968, as amended. The University of California at Los Angeles points of view or opinions 'expressed do not necessarily represent official " (pOlice in America • • • • policy or positions of the U.S. Department of Justice. ~ ...... '1. ..'i7(D ...... VIII ~\ James F. Richardson University of Akron

the Goodl of All: The Progressive Tradition in .piscrm *Unedited Draft. Not for Publication. Reform • • • • • ...... • ...... David J. Rothman . IX 91S8<: Columbia UniVersity

J , b n

'Uni'ced States Department of Justice Law Enforcement Assistance Administration Henry S. Dogin, Administrator' TABLE OF CONTENTS National Institute of Law Enforcement and Criminal Justice Section Harry Bratt, Acting Director Paul Cascarano, Assistant Director Politics ~ Criminal Justice Refor\'1l in Nineteenth

Ce'n~ury France ...... 0 • '/ • -~ ...... Thomas J. Duesterberg Stanford University

State and P~stitution: Prohibition, Regulation or *WORKSHOP PAPERS Decrim£nalization? ...... Mary S.'- Gibson Prepared for Grinnell College

Special National Workshop Development and Decay: Their Impact on Public Order in Western History •• 0 Ted R. Gurr 7 1" 03. III HISTORICAL APPROACHES TO STUDYING CRIME Northwestern University LI?/~ Chantilly, Virginia Matrons and Mallis: The Study of Women's Prison History. .77. IV Nicholas F. Hahn October 11-12, 1979 Northeastern University

Urban Homicide in the NirH~teenth Century: Some Lessons for For the Twentieth. • • • • • • • . • • • V Roger Lane .. 7 ~ r:;·D·~ THE NA~IONAL CRIMINAL JUSTICE RESEARCH UTILIZATION PROGRAM Haverford College

, ~ ~ Interpretations of 18th Century Gaming in England and Their Irnplica­ ~~ tions for Present Day Casino Control in Great Britain and the , United States. • • • VI David R. Miers ..... 71;;00, University College - Wales ( .. fil These papers are being presented at a Special National Workslibp held pursuant QuaMtative Histori.cal Study of Crime and Justice in the to Contract No. J-LEAA-004-79 awarded to University Res~arch Corporation by VII United States. • • • • • •• • • • • ••• 7iL/7'7\,' '. the U.S. Department of Justice, Law Enforcement Assistance Administration, Eric Monkkonen / U L--- under the Omnibu~ Crime Control and Safe Streets Act of 1968, as amended. The University of California at Los Angeles points of view 0r opinions 'expressed do not necessarily represent official policy or positions of the U.S. Department of Justice. \\ »(POI ice in America • • • • • • • 1.'-(7! t; • • • • • VIII 1 ~\ James F. Richardson University of Akron

I the Goo;i1of All: The Progressive Tradition in pi S0n *Unedi.ted Dr\fft. Not for Publication. Reform • • • • • . . . /-' David J o Rothman Columbia University

,

II

,'n I TABLE OF CONTENTS (con t. ) ---Section I section 'l'. i CSocial Ch-;;;]ge and th\Interpretation~f Research ...... Michael Wadswortl.,_"", University of Bristol - England I bJ ""'J Louis Police Recruits in the Twentieth Century .7 7. ./Q~ XI I Eugene J. Watts I Ohio State University

~~~OrniCide in the Twentieth Century XII I d 'L::. Margaret A. Zahn I Temple University I The POlitics of Criminal I I I ! Justice Reform in

,·'0 Nineteenth-Century France*

\

C) n . U..'D __i~t~·~ , MIiiUOniiI~ af~ This documctilt has ~reprod~ced 8XIClly AS r8celVed from the Pereon of Of!}Inlzltlar, originating II. Points 01 view or ~nlons stated In !hili docum.rnare tbose !:l' Ihe author!! al'ld do nOI necessarily ~t 1h,,·0IlciaI position ofpollaes Of the. National lnitllut~, of Q Jus!ice. .

PtIrmIIIlon to ~cit Ihis;,;iII_1d malenal hits been granted by. i\' --RubH, NILECJ· c TlCulai.n,? '

. .' ~-' i:. . "

Thomas J. Duesterberg August 25, 1979

* I have received invaluable assistance on this paper from Elizabeth Muenger. ~his paper has been prepared for de­ thelivery NlLECJ. to the sympoSium on 1iis tory and Crime sponsored by ------,-~------

1

I

The ,casual obser'ver of modern politics knows that the "c~ime problem" is an issue charged with political importance. A standard salvo in any political campaign is that one's opponent either exhibits indulgence toward the criminal or that repressive measures are weighted unjustly against him. Similar charges have been a regular source of political currency since the late eighteenth century.l What is perhaps less evident is that the repressive practices of a given regime inevitably reflect its most deeply­ rooted political beliefs and reveal much about the nature of its political arrangements. In this paper I would like to explore the history of criminal justice reform in modern France, showing the ways in which political considerations have tempered and shaped them. The French case offers a unique perspective on this question fOr two reasons. First, the history of criminal justice reform in France recapitulates the Western experience in modern times. Each successive stage in the development of the contemporary sys­ tem of criminal justice in the advanced vvestern world is clearly demarcated and articulated in French history. From the campaign against the "barbarism" and "inhumanity" of the Old Regime prac- tices, through the' world-wide movement of prison refOrm in the early nineteenth century, to contemporary practices of "social , defense" and scientific management of deviance, the French have .. been in the forefront of criminology and penal practice. Second, the French political life in the period from 1760 to 1900 (by I ------~~--~- -- -- ~

2 J

which the French. have approached this problem may prove useful. which time the contemporarY system of criminal justice was largely in place)' was more mercurial than that of other nations. More pertinently, the principal changes in criminal law and penal prac­ II

tices in France occurred invariably as the result of profound Before beginning a discussion of the pol;t;cal...... meaning of political transformations, that is, soon after revolutions or criminal justice reform, it is necessary to g;ve... a brief overview coup d'~tats. The coincidence in the histories of political of the major stages marking the development of the contemporary regimes and criminal justice reform allows us to gauge the deep program of criminal justice'~n F rance, and to describe in a cursory political grounding of each type of repressive practice developed manner how each stage.;... s I'~n k e d t 0 a particular phase in the evolu-

in modern times. tion of modern French democracy. I m~ght . add that I regard this My purpose in delineating the rela'tionship between poli tical process as teleological only in the sense that each of its stages change and reform in the system of criminal justice is of course have contributed to the constitution of the actual system of jus- to show the political limitations in inhibiting or promoting cer­ tice in France. I will also make a few remarks describing the tain types of criminal justice policy. But I would also like manner in which reform has been accompl;shed.... Th~s' will provide to suggest that familiarity ~ith some features of the French ex­ a preliminary indication of the sym b'~o t'~c relation ,between political perience is useful to those reflecting on the strengths and weak­ change and justice reform. nesses of the American justice system. An understanding of the Four essential components comprise the contemporary French process by which the contemporary French justice apparatus took criminal justice system: 2 retribution , the punishment of offenders; form will illumin~te some problems facing American justice officials. dete~rence, the attempt to discourage potential offenders through For the French have, since the end of the nineteenth century, re­ the threat of retribution; correctional or rehabilitative treat­ solved some of the political difficulties inherent to the imple­ ment, the use of methods devised by scientific experts to modify mentation of a policy designed to prevent crime by regulating some anti-social Or criminal tendences in the Offender·, and prevention, features of social life, OY implementing social scientific correc­ the implementation of programs ...;ntended t 0 combat those psychologi- tional strategies to treat deviants and potential deviants, and cal and social conditions thought to be conducive to criminal be- by taking precautionary measures against habitual offenders. These" havior. As is well known to students of th e history of criminal programs, which contemporary criminology recommends, have not been law, modern theories and institut;ons... of criminal justice first , fully implemented in the United states due to the deeply~rooted appeared in the latter half of the e~g'h teenth century in the con- respect for individual liberty lying at the heart of the American text of the campaign to reform the ~n' h umane and ineffective repressive political consensus. Consequently,an examination of the way in ~, d ~--~----~ ~------~~------~- ~--~-~~~--~~ -, - --~--

4 5

practices of the absolute monarchy. During the great age of re­ intentions of the philosophers who first elaborated the utilitarian formist thought and revolution in Europe, legislators and social theory of deterrence', the pristine rule of law envisidned by eight­ critics devised a new method of controlling crime which relied eenth-century reformers was never definitively established in primarily on the powers of retribution and deterrence. 3 The great­ France before 1830. Napoleon and the last two Bourbon kings abused est single monument to the reformist spirit of the eighteenth the intent of the Code~ by replacing the legally-constituted tri­ century is the Napoleonic Code (1808-1810). bunals with military jUrisdictions and employing blatantly arbitrary Supporters of the Code (a preliminary version of which was methods of political repression. Napoleon also modified the ori­ introduced in 1791) hoped both to control crime and to limit the ginal liberal codes to employ a harsher scale of penalties than absolute authority of the executive power. The repressive system the principles of proportionality and humanity authorized. Further­ employed by the Old Regime had become a symbol of its arbitrary more, by the late 1820's it had become apparent that criminal ac­

authority and its ineffectual rule (for crime was rampant.) The tivity was increasing o leading liberal critics to conclude that a basic assumption underlying the Code was that crime could be deterred system of harsh repression and deterrence was intrinsically in­ 5 most effectively by assigning a specific quantity of punishment effective.

to each socially harmful act (which is the utilitarian definition When the liberal critics of the 1820's assumed power in 1830, of crime.) Proponents of the rule of law also reasoned that liberty one of the first and most publicized of its reforms altered the could be protected best by a criminal code with a fixed universe nature of the criminal justice system. 6 The liberal social thinkers, of crimes and punishments and rules of procedure establishing the some of whom now were legislators and administrators, who engineered rights of individuals against arbitrary arrest and punishment. The the reforms reasoned that crime could be reduced and personal liberty purpose of the Napoleonic Code, then, was to deter crime through better protected by eliminating the authoritarian impediments to a reasoned scale of proportionate penalties while at the same time the rule of law and by perfecting methods of punishment. The 1830's protecting the freedom of the innocent. and 1840's mark the heroic age of prison reform in the Western

Soon aiter the fall of the Napoleonic Empire (1815), howev~r, world, and the liberals of.the July Monarchy made a significant 7 politicians and social thinkers began to ques~ion the, efficacy of contribution to the movement. One change implemented in the 1830's the Napoleonic system, which had been maintained largely intact had the effect of ii'ldividualizing punishment by giving judges and by the restored Bourbon monarchy (1815-18JO).4 Impetus for the juries the ri.ght to determine sentences wi thin fa iny broad limits. " assault on the deterrent system bequeathed to modern France by the MOre important to contemporaries, however, was the transformation Emperor came primarily from a group of liberals who were eventually of prisonsinto "pe;li tenti,aries" capal;lle of effecting the moral to take power after the Revolution of 18)0. Despite the liberal rehabilitation of inmates. Consequently, the French began to rely -44---'~;-.~P--~~+~?------~------~~------~ ---~

6 7

on an individualized, corrective prison regime as a necessary Napoleon did accomplish was to' break the stranglehold of classical supplement to the deterrent effect of the criminal code. liberal t.hinking in all fields, including that of criminal justice.

In 1848 the Constitutional Monarchy fell to a revolutionary After 18)~:~; (theorists- and practi tioners began to contemplate re­ upsurge, end in 1851 LO\2.is-Napoleon imposed an authori tarian regime pressive, correctional and preventive poliCies which challenged, on the French. The new Emperor, like his uncle and most dictators, at least implicitly, the principle of inviolability of individual

attempted to win prestige and maintain order by si19~ring up the liberty which informed the thinking of the philosphes and the forces of repression and by imposing harsh criminal penalties on practice of the July Monarchy. By challenging the classical liberal 8 j political and common-law offenders. He terminated the program I and penal philosophy of his predecessors, Ni\poleon opened the path of prison improvement, choosing instead to alter criminal law I to further innovations by the first stable democratic regime to and procedure to permit stiffer sentences,Napoleon thus reversed rule France, the Third Republic (1871-1940). the trend of the previous twenty years by increasing penalties and During the first three decades of the Third Republic the reducing emphasis on rehabilitative treatment.-His policy of French criminal justice system took its contemporary form. As achieving order through the use of blunt force was especially clear with the other changes of regime in nineteenth-century France, the in his harsh treatment of political dis~fdents and of petty recidi­ Third Republic was born on the heels of violent events. It was vists. The justification offered by the Emperor's supporters for only after their forces had decisively turned back efforts by con­ the new repressive regime, whose single lasting accomplishment was servatives to reinstate dictatorial rule (tnat is, after 1879)

improvin~ the training and tripling the size of the police forces, that the republicans were able to initiate the series of social gives an unusually clear insight into the political nature of reforms Which included profound changes in methods of repression lO criminal justice reform. The leading penal theorist of the Second and crime control. The republicans perceived that social reform Empire (1851-1870) made the following claim in his analysis of the was imperative if they were to maintain political power in the face justice reforms of the July Monarchy, of conservative and .authori tarian opposi tion. One means of SOlidi­ ,I One can also be certain that the 1832 reV1S10n of the penal fying political support was to find new, mOre effective means to code, however one interprets it (either as an abdication of the rights and duties of authori ty, or a9 a concession to restore the social and moral order"so gravely compromised by the disorder and the violation of laws, Or as the complete ener­ vation of the penal system) was the most direct, if least revolution and social crisis of the "1870's.11 A new approach to noticed, causes of the moral anarchy which brought the Revolu- tion of 1848: 9 . the crime problem, whose unacceptable growth a government study in , Apart from its decision to gu t the liberal refbrms of the 1880 confirmed, proved to be an important component of the reform July Monarch~, the Second Empire made no lasting contribution to program. 12 modern ideas or policies in the field of criminal justice. What The justice officials of the Third Aepublic developed a ciulti- ,I 8 9

faceted program to counter what they now labeled an "epidemic" of and correctional facilities for youthful offenders (completed in crime,13 One of the first major policy changes of the Third Re­ 1912),18 In this instance too the effect of the new procedures public was to reinstate and perfect the program of prison improve­ was to keep juveniles out of prisons and to e·ffectuate their re­ ments (1875), The major thrust of prison reform was to provide form in the context of the community rather than the asylum. 19 mOre adequate correctional treatment and post-liberation care for What was truly innovative in the penal reforms of the Third

t he pet t y Q ff en d ers wh 0 spen t I ess·th an t wo years b e hl.n· d bars,14 Republic, and what links them to contemporary policy, is that they The minister of justice also overturned those Napoleonic statutes I were conceived as part of a much broader program of social reform. which had undermined some rights and procedures designed to guaran­ I The political leaders and social thinkers of this period spearheaded ! tee due process and proportionality of punishment ,IS Next, a series 1 a series of reforms which inaugurated the age of the welfare state 20 of laws intended to permi t the forces of repression to protect in France. The most important innovations included the creation society against such "dangerous" individuals as alcoholics, violent of the modern system of secular education, economic stimulation revolutionaries, the criminally insane and habitual offenders were and labor regulation programs, expanded public welfare services,

passed into law between 1873 and 1894. A law of 1885, for instance', regulation of dangerous substances, public health pro~rams, and the allowed judges to sentence habitual offenders to penal colonies for first of the modern series of social sec'.lrity programs (all intro­ life, 'rhese laws mark a significant evolution in legal thinking, duced between 1874 and 1900). Republican politicians intended

as their intent was to punish a dangerous state rather than a these measures to supply the degree of socia_ justic~ tequired to specific act. consolidate support for the new democratic state, While at the same Another important body of legislation passed between 1885 and time breaking the stranglehold of the Catholic Church and the con- 1891 introduced parole and probation into sentencing procedures, servative elites on education, the economy, and public welfare and made the "legal pardon,,16 much simpler and easier to obtain. serVl.ces. . 21 The effect of these laws and sentencing practices was to reduce the . Criminologists viewed these programs as a means to. combat prison population by one-half between. 1870 and 1910.17 By this crime and social disorder in general. 22 They reasoned that it was

time criminologists had come to believe that the most ~ffective the "breakdown" of social organization, rather than simply the moral means to correct criminal 'b'ehaviQr Was to, effect the social rein- defects of the offender, which explained the "crisis of civilization" , tegration Qf the offender, hence to treat him outside the enclosed whose clearest i~~icator was the growth of crime. Both legislators walls of the 'prison, In close contact with an international move­ and social theorists want~d to restore social order by regulating ment to improve the judicial regime for juveniles, reformers also social institutions and providing those services deemed necessary gradually developed' and implemented a separate regime o·f tribunals to the maintenance of strong and healthy social ties. -----.,.--~--- -- ",~ - - ... - .. ------

.~ ~ 11 ~ 10 gration of deviants and potential deviants. The evolution of the contemporary juvenile justice system in the Third Republic provides the most striking example of the III links drawn between social reform and changes in criminal law. 2J Laws passed in 1889 and 1898 radically altered the regime of ju­ Thus far ~ have shown that the modern history of the French venile justice and at the same time ef_f'ected a profound change in criminal justice system can be ,divided into three principal phases, the most sacred ·of modern social insti tutions, the family. These that these phases describe a progressive evolution in which the two laws decla.red that in any case of a crime committed "by or contemporary strategy of repression has unfolded, and that each against" a child, the court could rule the family had failed in successive period of innova.tion can be linked to a specific politi­ its duty to educate its offspring. In such cases, the laws gave cal regime. My brief descriptive histo~y is the first indication the presiding judge power to revoke the legal authority of the of the political grounding of criminal justice reform. An exami­ parents over their child. The laws then charged the bench with nation of individuals (and political movements) taking the lead in seeing to the proper education and/or correctional treatment of the various efforts at reform provides evidence of a different the child, be he victim Or offender. Even a child victimized by sort to corroborate my thesis. In the interests of brevity, I his parents could be sent to reform school if the judge found,"'tis will restrict my observations to the first two waves of reforms behavior anti-social in any way. and reformers. The laws on child abuse and juvenile delinquency illuminate Preceding each wave of progressive cl'iminal justice reform several trends in the social and criminological thought of the in modern times (I use 'the term progressive to describe those Third Republic. They demonstrate, first, the degree to which legis­ reforms which have proved lasting and which are still incorporated lators linked social and penal reform. Second, they show how legis­ in contemporary strategies) was a sophisticated campaign of research lators invoked the threat of crime as a justification for broad and publicity by social reformers who were,at least partially. po­ social reform. Finally., they give proof of the shift in criminal litically motivated. The classic example of such a campaign is of thought which has caused modern social thinkers to combat delinquency COurse the theoretical and political agitation conducted by the

throu~h the regulation of social relations rather than through re­ philosophes for the purpose of terminating the "barbarism" of mon­

tribution Or correctional education alone. The use of parole 0 archical ju~tice.24 probation, and legal pardons, and the decline of imprisonments like­ What is most relevant to my argument is the source of criti­ , wise illustrate the same policy. For these n';;~ programs to succeed, cism and its content. The source of innovation in the late-eight­ it was necessary to exert some degree of control over the social eenth century (and throughout the nineteenth) was the pO'li tical networks burdened with the task of achieving the social re-inte- opposition to the existing regime. Many of the philosophes, who ---' -~---~ -" . - ... ; a

12 13

were later to become revoluti0.naries, seized upon the crime prob­ criminal justice system to maintain social order and protect the lem as a point of attack against the Old Regime. Mirabeau and lives and liberty of the citizenry. Studies undertaken by liberal Mably, for example, insisted that any legal system, such as that reformers drew attention to both the magnitude of the crime prob-

of Bourbon France, which was both unjust and inefficient, was by lem, by producin.g the first reliable times-series data on crime~ definition corrupt and inhumane. Marat, Brissot, Linguet, the and the inadequacy of current methods of punishment to correct Encyclopaedists, Voltaire, LeTrosne, and Robespierre all wrote aberrant social behavior, through a multitude of reports on prison

treatises condemn~ng the criminal laws and tribunals of the Bour- conditions and recidivism. In an age dominated by the "positive" bon monarchy. scientific spirit, the studies of liberal reformers tended to show The works of eighteenth-century reformers and revolutionaries that the system of harsh repression and inhumane methods of incar- were also an important source of the utilitarian theory holding ceration only served to create new sources of crime and erode per- that crime could best be controlled by imposing a strictly-delimited sonal liberties. As in the eighteenth century, the new theories rule of law and by regulating punishment according to the principles of criminal behavior (in this case the new "penitentiary science") of proportionality and humanity. Adherence to these principles served to condemn a political regime and a particular strategy of would, in effect, place limits on the absolute authority of the repression. monarchy, whose political ascendancy the philosophes contendad. What is particularly revealing in this period is that most of Hence the social and political critique of the Qbilosophes ,combined the important criminological studies were either conducted or sup­ theoretical and political arguments against the Old Regime and the ported by liberals holding important positions in the July ~ionarchy.27 system of justice it employed. Francois Guizot was a minister under Louis Philippe. Charles The bond joining penal reform tu political opposition is even Lucas, Louis Moreau-Christophe, L. R. Villerm{, and G. Ferrus all mOre evident in the era of the July MonarChy.25 In the 1820's and became prison inspectors during the July Monarchy. A. M. Berenger, 1830's, the theoretical and political impetus for progressive re­ "". the duc de Broglie and P. Rossi occupied influential positions in form originated in the liberal opposition to the restored Bourbon the Insti tut de 'France and as advisers to Louis Philippe. Tocque- monarchy. Social thinkers collaborated with liberal political r ville was of course an academician and legislator, but was sent I I actors in reform groups such as the Royal Prison Society, the abroad on one of the five missions to study the most advanced pri­ Society for Christian Morality, and (in the 1830's) the Academy son systems. Louis Philippe himself was a patron of the liberal , of Moral and Political Sciences. Social qritics of this era were reform agencies, the Royal Prison Society and the Society of even more sophisticg.ted than thephilosophes in that they used Christian Morality. After the Revolution of 1830, liberals used modern scientific studies to demonstrate the inabil.i ty of the governmen t machinery to stimulate :Z:'esearch supporting efforts at ---~.~------

15 14

tution of the July Monarchy li~ited the franchise to the wealthiest reform. The regime sent missions abroad, supported studies by two percent of the population, and power was shared between a academicians, and directed the department of justice to collect "citizen king" and a two-tiered legislature. The political phil­ statistics and conduct research on criminal behavior and methods osophy of the regime was intended as an antidote to the high-handed of punishment. The July Monarchy was the patron of the type of and reactionary tactics of the last Bourbon kings. The ruling scientific research which is at the origins of scientific crimi­ political class was determined to limit the authority df the execu­ nology, and which has provided scientific legitimacy for reforms tive power and the central government, to protect the political introduced for political reasons. In the next section I will show liberties of the citizens (at least of the full citizens), and to the positive polit~ca, 1 reasons st;mulating• liberals to such a vast create a political climate fostering economic prosperity and social reform effort. stability. A key maxim of the ruling elite held that to govern less was IV to govern better. Consequently, the government adhered to a To understand the politics of criminal justice reform fully. laissez-faire policy in economic and social affairs. Education arld a final aspect of the question must be explored, for the reforms public welfare were left largely in the care of private individuals I have associated with specific regimes and specific poli ti'-:al or groups. Professional philanthropists preached the doctrine of aqtors were also integrated with. positive political goals and self-help and personal responsibility. The government took few philosophies. Reformer~ have always been more than critics of their initiatives to stimulate the economy, provide measures of social poli tical opponen t s. They have always attempted to implement new security, to build public housing or to promote social and economic programs as- a means of consolidating political support and guaran- equality. Finally, the July Monarchy strove to maintain public order teeing social order. Furthermore, French politicians have exhibited and to protect liberty by adhering to the doctrine of a rule of an acute understanding of the philosophical (or ide.ological) aspects law. New laws assured fairness in criminal and civil procedure, of the issues they confront, and this is apparent in their approach reduced the scale of punishments, abolished most "religious offenses," to criminal justice reform. In this section, then, I will show eliminated most remaining physical and public punishments, and how two regimes, the July Monarchy and the Third Republic, have worked to protect against political repression. The government . strategy of 'J'ustice reforms with their most fun­ intep:rated the~r also recognized the rights of prisoners to ~dequate care while in- , damental political beliefs and struct~res. carcerated, and sponsored programs to aid in their rehabilitation. The Revolution of 18)0 brought to power a wealthy and highly I noted earlier that the two most important penal reforms of sophisticated elite which had been schooled in the precepts of this regime had the effect of individualizing punishment and of . 29 classical liberal political an d ~conom~c'thou g.ht The Consti- ~------~~---

16 17 introducing a modern penitentiary program. The scrupulous appli­ to treat the insane and the phys-ically ill) obviated the necessity cation of the rule of law went far toward protecting the liberal of any other social reform destined to preserve public order and political ideal of the July Monarchy, but the ruling elite reasoned stability.32 The modern penitentiary became the focus of the

that these additional improvements were necessary if their politi­ crimi~al justice system in the classical liberal era precisely be- cal credo was to be realized. 30 The law of 1832, which indivi­ cause it offered a solution to the problem of social order which dualized punishment by charging the presIding judge with the task did not entail massive social and economic reform. nor the brand of determining punishment according to the degree of responsibili­ of harsh repression characteristic of authoritarian regimes. Thus

ty and the motivation ~the offender, was motivated by the belief it helped accomodate the liberal political ideal of governing that the individual alone was responsible for his act and that the better by governing less by finding a better form of punishmen t. purpose of punishment was, consequently, to correct his aberrant After 1848, the central government in France began to assume character. 31 The se principles also informed 'the .great prison reform an ever-larger role in the regulation of economy and society. The of the 1830's and 1840's, which attracted the strong support of trend took form during the populist, plebiscitary regimeof louis­ great liberal thinkers~ the quality of Tocqueville, Guizot, and Napoleon, and gained speed during the Third Republic. France's

Charles Lucas. first stable dem~cratic regime was dominated by the parliament, In a liberal state intent upon restricting the authority of in reaction to the authoritarian tendencies in French political the central governmentald the executive, the scope of action of the culture. 33 The most pressing political question facing the nas­ criminal justice system must necessarily be restrained. The cent regime was to attract the type of broad popular support needed criminal justice reforms of the July Monarchy had just this effect. to preserve democratic rule in a country long dominated by con­ The new laws forbade, in most cases, the punishment of religiouq servative elites and the military. To achieve this goal republican anq political dissidents, assured that only those found guilty legislators introduced the social reform program discussed earlier.

~offenses against the written statutes would be punished, and Supporters of the program intended it not only as a means of con­ limited the extent of punishment. Furthermore, reliance on indi­ solidating popular support for the republic, but also as a means vidual punishment and rehabilitation in the prison placed the bur­ of preserving the social order so gravely compromised by the revo­ den for protecting social order squarely on the prison. As a con- lution of 1871, endemic political unrest in the 1870's and the sequence, the governmen t found it unnecessary to· .,embark on a frighte~ing growth of criminal activity. program of broad educational, social, or economic reform as a I explained earlier how the social and economic programs means of assuring social stabi~i ty. The liberals of thIs period, inaugurated by the Third Republic were coordinated with reforms concluded that the existence of the modern prison (and other asylums of the criminal justice system. By arrogating the right to edu- jq OUCQ ; 9 4 +~-

:f

It 18 19

cate the youth of France, regulate business and labor, manipulate Durkheim all contributed to the elaboration of the doctrine of social institutions, and make compensation for the underprivileged solidarism, which became something of an "official philosophy" 35 social and economic classes, the French state explicitly assumed of the Third Republic. The new social and political philosophy at least limited authority to control society when national inter­ argued that the rights of the community supercede those of the est so demanded. 34 (In effect, the concept of a IInational interest" individual in many circ:umstances. The sociological works of or a "social good" first became meaningful with the establishment Durkheim gave a scientific groundfng to the theory of communal

of a true democracy.) Criminal theory'propounded in t~is era had solidari ty by showing the irreducible: necessity of communal life advocated strengtheni!lg and improving social ties as a means of to individual fulfullment and to social order. combatting deviance. Many of the reforms mentioned earlier neces­ The doctrine of solidarism legitimated the social reform sitated the adjustment of social and economic institutions. Laws practice of the Third Republic and also provided a rationale for tending to sanction the states of drunkenness or of "dangerousness" the new focus of the criminal justice system. I noted earlier (habitual offenders act) involved a breach in the previously that criminologists frequently faulted social organization in sancrosanct principle of individua+ liberty preached earlier in seeking to explain crime, and in turn sought to combat deviance

the century. If. as con temporary criminologists argued, cri:~e by reinforcing what they considered to be healthy social ties. resulted from improper socialization or from economic deprivation, Analysis of the crime problem, furthermore, provided a stimulus to then only a strategy involving the regulation of society and. econo­ the elaboration of solidarism by demonstrating the extent of my could hope to contain the spread of deviance. In fact, the communal responsibility in the genesis of deviance. The theory programs to combat juvenile delinquency, to reeducate convicts and of punishment developed at this time also shoy;s the extent to first offenders, and to reintegrate ex:.-convicts into society could which sOlidarist theories penetra.ted criminology. Theorists such only be successful if the government exercised some control over as Tarde and Durkheim no longer considered the purpose of punish­ ment to be simple retribution 0;:.; rehabili tation, but rather the the social milieu into Which these categories of offenders were ') reinforcement of the sense of communal responsibility and justice often released. '.' J6 The doctrines of classical liberalism were fundamentally among the non-criminal population. As in the period of classical incompatible with the developments in social, economic, and repres­ liberalism, then, the theory and structure of the criminal justice sive policy in the Third Republic. Political thinkers, aided system both reflected the prevailing poli tical consensus and, pro-:­ , by the sociological theories of Durkheim and other criminologists, vided one sort of legitimation for that consensus. soon filled the ideol'ogical void created by this dissonance • The politician Leon Bourgeois,the social thinker Charles Gide, and 21 20

v deterrence seems to be associated with the current distrust of government intervention. As I noted earlie~, a retributive (or

Vihat can the contemporary observer learn from this brief even correctional) strategy does not entail manipulation of the survey of the political meaning of criminal justice reform? It is lives of third parties or innocent citizens. While there is clear that significant reform occurs in the wake of profound poli ti'­ much demand for changes along the general lines of the preventive cal transformation. Equally obvious, at least in tne case reviewed practices undertaken by the French and others, a full committment here, is that criminal justice reform has always been, in modern to such a policy will probably remain a vague dream until we re­ times, a highly politicized issue. This is true not only in the solve the accompanying political questions. sense that the crimn problem evokes partisan passions, but also

in the sense that particular reform schemes~ whether progressive or reactionary, are normally associated with specific political and/or ideological movements. One can also note that the scientific expertise associated with progressive reforms of the criminal jus- ., tice system has usually come directly from a political party or has enjoyed the support of some such group. Reform results from the coordinated efforts of politicians, $ocial thinkers, and justice officials. As a final point of interest, I think that the particular circumstances associated with the modern history of criminal justice reform has some relevance to cO,ntemporary America. It/hi Ie not wanting to press the argument too far, I would hazard the ob­

servation that the United States has not yet squarely faced ~Ae political problems associated with the implementation of reforms designed to control crime by regulating social and economic insti­

tutions. Perhaps the reason for this is that the political price~ in terms of the inr9ads that would be made on the sacred doctrine

I~ I of individual liberties. is too high for the American system to pay. The revival of the theory and practice of retribution and

~-~ ~-- ""_ ...... __ . 22 23 Notes 10. J. P. Azema and M. winock, La Troisieme R~publigue (Paris: 1. See. for example E. P. Thompson. Whigs and Hunters: the Oriein Calmann-L~vy, 1976), pp. 85-123.-- of the Black Act (~ew York: Pantheon Books, 1975); G. F. LeTrosne r f.ii'emoire sur lSS""""Vagabonds et les fIlendians(Soissons: Simon.1764); 11. J.~. Joughlin, The Paris Commune in French Politics; 1871------/ and Voltaire, "Prix de la --justice--- de de l'humanite," in Oeuvres 1880 (Baltimore: Johns Hopkins University Press. 1955). Completes (Paris: Garnier, 1880), XXX. 533-586. 12. ; France; lVIinistere de la Justice. Compte Ge;neral de l'Adminis­ 2. Among the best works on criminal justice in contemporary France trat~on de la~Juftice Criminelle (Paris: Imprimerie Nationale, are J. Leaute and R. Vouin. Droit Penal et Crimin010gie (Paris: 1882), "Resume retrospectif." Presses Universitaires de France. 1964): and P. Bouzat and J. Pinatel. Traite de Droit Penal et de Crimin010gie, second ed. 13· It was during this period that the science of criminology was (Paris: Dalloz, 1970), 3 vols. -- -- perfected. Among the many activities of the criminological experts was the production of time-series studies confirmin~ ). Recent works on this subject are Pierre Deyon, Le Tem~ des the overall growt~ of crime in the nineteenth century. Criminolo­ Prisons (Paris: Editions Universitaires, 1975): and Michel Foucault. ~ists also gave wldespread (and often alarmist), publicity to the Surveiller et punir: Naissance de la Prison (Paris: Gallimard, 1975). crime problem.

4. For criticism of the system created by Napoleon, see the pa~es 14. Comte Othenin d'Haussonville. Les Etablissements Penitentiaires of the Journal de la Societe de la Morale Chretienne (1822-1830); ~ France ~t ~ Colonies (Paris: Levy, 1875). A. M. B~renger,-oe-ra Justice-crIffiinelle en France (Paris: l'Hui11ier, 1818); and Charles Lucas. Du Systeme Penalet du §x.steme Repressif l? r'here is no single secondary source which ~ives a p,ood over­ en General: De la Peine de Mort en Particulier(Parisr Charles- Vlew of the reforms of this period. The best means to follow the B~chet, 1827). ------course of change is in the annual volumes of the legal journal, Dallozr Jurisprudence Generale, 1873-1900. 5. Contributing to the perception of a rise in crime in France was the publication of a serial record of criminal statistics 16. In French jurisprudence, a. "rehabilit~tion regale" meant only beginning in 1825. The Compte Gen'eral de l' Acministra tion de la that the.con~e~u~nces of a ~onv~ction, which normally included loss Justice Criminelle confirmed some of the fears of the critics ?,f ce:tal~ c~V~¥~i~~ts and the.e~istence of a criminal record (a of the Napoleonic system, especially concern with the rate of doss~er Judlcla~re ). were e11mlnated. The pardoned Offender recidivism, thus adding fuel to the debate on reform. normally served his sentence before the pardon was considered. 6. See Jean Bancal. "L'oeuvre penitentiaire de 1a Restauration et. 17. See France; Institut National de la Statistique et des Etudes de la Monarchie de Juillet," Revue de Science Criminelle et'de Dro~t Econ~m~qu~s, St~tistigue Generale de la France,CVIII (Paris: Penal Compare. VI (1941). 219-243; and Michelle Perro t, "Delinquance Imprlmlerle Nat~onale, 1951), p. 97. The total incarcerated et systeme penitentiaire en France au XIXeme siecle," Annales; population dropped from 53,461 in 1852 to 25,679 in 1910. Economies, Societ~s, Civilisations, No.1 (1975), 67-91. 18. See J. Donzelot, La Police des FamilIes (Paris: Minuit, 1977). 7. Foucault, Surveiller et Punir, has chronicled this movement. and H. Gaillac, Les Mai~ de Correction, l830-~ (Paris: Cujas. Among the most influential contemporary works werer G. de Beaumont 1971) . and A. de Tocqueville, On the Penitentiary System in the United States and its Application in France (Carbondal~1 Southern I~linois 19: I~ is instructive to observe that. psychiatric thin~ing at University Press, 1964), Charles Lucas, De la Reforme des Pr~sons, t~~s tlme also tended to emphasize treatment in a communal set­ ou 'Ilheorie d.e l'F~mprisonnement (Paris: Legrand & B~rf.ounioux, 1~J6- tlng rather than in the isolation of the asylum. The historian 38), 3 vols.; and L. M. Moreau-Christo p~e, De la Reforme des Prlsons of asylums in France has labeled this period that of the "revol t ~ France (Parisr Huzand, 1838), 2 vols. ap';ainst the asylum." See Robert Castel, L'Ordre Psychiatrigue (Paris: Minui t t 1976), chapter 7. - , 8. See Arnould Bonneville de Marsanf,y, De l'Amelioration,de la Loi , Criminelle (Paris: Cotillon. 1855-64), 2 vOls.; Pe:-ro t, "D~linquance 20. See ~. Hatzfeld, Du Paupe'risme ~ la Se-curi te- Sociale: 1850- et systeme penitentiaire;" and H. C. Payne, The Police State of 12~ (Par1s: Colin, 1971). Louis-Napoleon Bonaparte (Seattle: University of Wa~hington Press, 1966). , 21. Prior to the 1880s, welfare and education were dominated by )\ the Church and wealthy philanthropists. Religious and philan­ 9 .. Bonneville de Marsan@:y, De l'Amelioration. J:, 22-23. throp~c org~nizations also played a large role in the penal system. especlally ln the areas of juvenile reform schools, female prison- ;~!I~~~I"I;?Tn~~t::::a~~ ~~:i:~~:~. ___ ~~e Th~rd ~ept,lb~~c ex_~_e~<:led __the --... ------~------

r 24

22. Emile Durkheim, De la Division du Travail Social, eighth edt (Paris: Presses Universitaires de France, 1967), and E. Durkheim, Suicide (New York: Free Press, 1951).

23. See Donzelot, Police ~ Famillesi and G..aillac, Maisons de Correction. 24. Foucault, Surveil-Ier et Punir. 25. See especially L. R. Villerme, Des Prisons telles gg'elles sont et telles gg'elles devraient etre (Paris: Mequignon, 1820); LucaS:-­ Du Slsteme R~pressif; and Francois Guizot, De ~ Peine ~ Mort ~ M1jitiere Poli tigue, in his Melanges Historigues tl PeJl; tigues-rParis: Levy, 1869), pp. 239-434. 26. See the works of Tocqueville, Berenger, Lucas, Moreau-Chris­ tophe, Guizot and Villerme. 27. See T. J. Duesterberg, "The orlglns of Criminology in France," in John Conley', ed. Theory and Research in Criminal Justice: Current Perspectives (Cincinnati: Anderson, 1979~ 28. Gabriel Tarde, Penal Philosophy (New York: Little, Brown & Co., 1912); and Emile Durkheim, Moral Education (New York: Free Press, 1961) . 29. A. Jardin and A. J. Tudejq, La France des Notables, 1815-1848 (Paris: :3euil, 1973): and Rene Remond, The Right Wing in F'rancel from 1815 to De Gaulle (Philadelphia, University of Pennsylvania Press, 1969).- 30. See the works of Guizot, Berenger and Lucas; and P. Rossi, Traite de Droit Penal (Paris: Sautelet, 1829), 3 vols. Jl. France; Chambre des Deputes, Proc~s-Verbaux, Session 18311 "Expose des motj.fs du pro jet de loi tendant a introduire des reformes dans les lois penales," (Paris: Imprimerie Royale, 1831), I, 414-428. 32. Charles CoquereJ" "Note sur la questiort.,de la r~forme des prisons," " Journal de la Societe de la Morale Chretienne. 111, No. 17 (1824) I 214. 3J. Azema and Winock, La Troisieme Republigue, 159-200; and J. M. r\~ayeur, Les !Yebuts de la Troisieme R€publigue, 1871-1898 (Paris: Seuil, 197J), passim. I' I J4. Hatzfeld,!hi Pciupe'risme i la Securi t~ Sociale, passim. j 35.L. Bourl?;eois, SOlidarite (Paris: Colin, 1896); Ch, Gide, L'id~e de Solidarite," Revue Internationale de Sociologie, I (1893), 385- 400; and J. E. S-:-,Hayward, "The official social philosophy of the Third Republic: L. Bourgeois and Sblidarism," International Review 21 Social History, IV, No.2 (1959), 261-284. 36. Tarde, Penal Philosophy; and Durkheim, Moral Education.

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