Chapter 5. Neo-classicism
5.1. Birth and re-birth
In order to describe the new classicism, it is expedient to take the old classicism as a starting point. A few words will suffice to give us some foundation. This classical trend was a true continuation of what is often known as the age of enlightenment. This age gave us Rousseau and Voltaire, and with it came a general underlining of the dignity and potentiality of man. (But with Rousseau, most definitely not of women.) In the field of criminal law, the movement was based on two main demands. Firstly, there was a demand for as little direction as possible over human conduct. Punishment should not exceed that which was necessary to prevent the criminal from doing the same thing again, and to prevent others from committing similar crimes. Secondly -- and this was more strongly emphasized -- there was a demand for a clear specification of what sort of sanction was to follow what sort of crime. Clarity and certainty became key words in the criminal courts. Both crime and punishment were to be clearly defined in advance. The punishment should be specified in detail according to the gravity of the crime.
It was the growth of the bourgeoisie in opposition to the aristocracy that lay at the root of this movement. The classical trend in criminal politics was sustained by the demand for protection from the oppressors' systematic arbitrarinesses. The bourgeoisie had grown in power and self-confidence to such a degree that it would no longer tolerate situations where a nobleman could get off with a fine whereas a commoner had to pay with his life. The demand was for equal punishment for nobleman and commoner in eases where the breach of law was the same. In order to secure this equality, the measure of punishment was to be firmly established in advance, according to the gravity of the deed, and not according to the social standing of the culprit or the discretion of the judge. The great scholars of criminal law, such as Beccaria and Blackstone, became great because they were great; but they also became great because their message was right for the times. It was compatible with the interests of a powerful group and with political and economic ideas and reasoning.
5.2. With Beccaria to USA.
Cesare Beccaria would nod with satisfaction if he were systematically to work his way through these three important books:
- American Friend's Service Committee: Struggle for Justice. N.Y. 1971
- Andrew von Hirsch: Doing Justice. Report of the Committee for the Study of Incarceration N. Y. 1976.
- The Twentieth Century Fund Task Force on Criminal Sentencing: Fair and Certain Punishment. N.Y. 1976.
All three publications are a result of committee work. True, these committees were self-appointed, but they were all important, because of the integrity and calibre of their members, because of the position of these members in American society, and because of the strength of their arguments. In fact the titles of these books tell us a great deal. There is the struggle for justice, and then doing justice, and finally, when the term "justice" has been exhausted, we find the similar term "fair and certain punishment". Even then, characteristically, punishment -- not treatment.
The first of these committees is an offshoot of the Quaker community in the United States. This fact in itself is important. It was precisely the Quaker movement which had introduced the ideas of corrective treatment to the USA, mainly on the lines of those in force in the Pennsylvania Prison, where the inmates were kept in complete isolation, each in his one-man cell, there to meditate upon their sins in undisturbed contact with God and the prison director, until they were fit to be discharged. As a reaction against this well-intended torture, later Quakers went in strongly for a completely time-fixed system under which punishment was meted out according to the gravity of the crime. Any other considerations not pertinent to the gravity of the crime would lead to an unfair allocation of punishment.
The second committee is usually called the von Hirsch Committee. It opened the way for certain exceptions from justice in the case of particularly dangerous criminals. It also allowed for an additional quota of extra time to be served by recidivists, and some reductions or increases in those cases where it was possible to produce evidence of mitigating or aggravating circumstances.
The third report can in many ways be seen as an operationalization of the second report; several of the members were also the same. Their system is, in their own description (p. 20), as follows:
For each subcategory of crime, we propose that the legislature, or a body it designates, adopt a presumptive sentence that should generally be imposed on typical first offenders who have committed the crime in the typical fashion.
The legislature also would determine how much the presumptive firstoffender sentence ought to be increased for each succeeding conviction according to a formula based on a predetermined percentage. The theory behind this approach is that sentences for first offenders should be relatively low but that they should increase -- rather sharply -- with each succeeding conviction. Thus, we have suggested a geometric progression as the appropriate increment for more serious offenses: 50 percent "enhancement" for the second armed robbery, 100 percent for the third, 200 percent for the fourth, etc. The rise would, however, be less steep for petty offenders: 10 percent for the second-time pickpocket, 20 percent for the third, 30 percent for the fourth, etc.
The Task Force recommends that the legislature, or the body it designates, also define specific aggravating or mitigating factors, again based in frequently recurring characteristics of the crime and the criminal.
The concrete handling of mitigating and aggravating factors is described later (p. 46):
If the number of mitigating factors substantially exceeds the number of aggravating factors, the sentencing judge may reduce the presumptive sentence for the particular offender (presumptive sentence plus increment for prior convictions) by up to 50 percent. If the number of aggravating factors substantially exceeds the number of mitigating factors, the sentencing judge may increase the presumptive sentence for the particular offender by 50 percent.(1)
5.3. Beccaria in Scandinavia.
Publishers worked fast in the old days. Not more than 4 years after the original publication in Livorno of Dei delitti e delle pene, the book was translated into Swedish and published in Stockholm. The book was re-issued in Stockholm in 1977 in a beautiful Italian-Swedish edition. So, Beccaria would also have fared quite well if he had taken a study trip to northern Europe. Certain American details would have been missing, but in addition to the beautiful copy of his own book he would have found much to please him, at least in two of four committee reports:
1. Straffrättskommitteens betänkande 1976:72. (Pa svensk: Band I og 2 1978) Finland. (Considerations of the Penal Law Committee 1976:72.)
2. Arbetsgruppen rörande kriminalpolitik. Nytt straffsystem. Brottsforebyggande rådet. 1977:7. Sweden. (Working Group on Criminal Policy. New Penal System. Advisory Committee for the Prevention of Crime. 1977:7.)
3. Stortingsmelding nr. 104 (1977-78) Om Kriminalpolitikken. Norway. (Parliamentary Report No. 104 (1977-78). Concerning Criminal Politics.)
4. Alternativer tit frihedsstraf -- et debatophæg. Betlænknin nr. 806. 1977. Denmark. (Alternatives to Imprisonment -- A Debate Proposal. Report No. 806, 1977.)
Beccaria would have felt most at home in Finland, where it may be said that neo-classicism has had its strongest spokesmen. This is hardly mere coincidence. Classicism never quite lost its hold in Finland, which is natural in a society where the judicial system represents an important line of defence in foreign policy. In a Swedish summary of the Finnish edition of the Penal Law Committee's report, the conclusion is as follows:
To guarantee proportionality between crime and punishment, as well as the legal predictability, crimes within the new penal law have to be strongly differentiated according to severity so that the limits for punishment for each individual crime will be sufficiently narrowly delineated. To direct the opinions and attitudes with regard to law (rättsuppfatningarna) and the flow of information, one ought to mention typical punishments for each category of crime (p. 182).
In an article describing the proposals, a key member of the commission, Inkeri Anttila (1977, pp 103-104) states:
To make the system more clear there is proposed an ordering of all crimes in a limited number of severity grades . . . so that each category is related to a fixed place on the scale of punishments. The very name of the crime should be sufficient to decide on the minimum and maximum punishments.
The Swedish proposals for a new penal system are more soft-spoken than the Finnish with regard to the demand for simple categories:
One must consider both the desire to obtain a clear and uniform practice in relation to the nature of the offence and the desire to be able to adjust the sanction according to the personality and social conditions so that future law-abidance might be accomplished (p. 405).
But this is immediately qualified:
According to the views of the working group, the gravity of the crime and the demand for proportionality between crime and punishment ought to be given a more dominant influence as regards the choice of punishment. Special rules must be created to do this. The necessary and natural reasons for such rules are well defined punishment scales in the catalogue of crimes, and specific rules concerning the internal severity of various means of punishment (p. 406).
That general prevention is the reason for punishment seems to be increasingly clear both in Finland and in Sweden. Inkeri Anttila (1977, p. 103) states:
The system has still, according to the committee, a major function in clarifying the content of and limits to the central prohibitions at the same time as it expresses the authoritative condemnation of disapproved acts. The punishment is first and foremost supposed to have a general preventive effect.
The Swedish report is completely built up around a discussion of the two alternatives: individual prevention (treatment) or general prevention. And at page 199 comes the conclusion: "We do thus recommend a penal system with a careful upgrading of the importance of general prevention."
The Norwegian report is very much like the other two in that it rejects the ideology of treatment for crime. What is different, and what Beccaria would dislike, is that the Norwegian report does not advocate any precise relationship between the gravity of the crime and the severity of punishment. Neither does it attempt to found the system on a basis of general prevention. Denmark has kept somewhat to the sidelines in the ideological debate, but has perhaps done more in practice through taking the lead in. drastic reductions in the application of special measures based on treatment.
So far, so good. And I really do believe that what has happened is to the good -- so far. The injustices within systems pretending to give treatment have been exposed by criticisms of such systems. The pains of punishment have been honestly exposed through the writings of the advocates of general prevention or deterrence. The need for protection against unjust pain delivery has been brought into focus by the neo-classicists. These have been necessary and important steps.
But now, when all that is done, what then is the next task?
My personal view would be: now the time is due, overdue, to stop any further advances of the ideology of general prevention, and also to prevent ideas of neo-classicism getting any further hold, at least within our Scandinavian societies. These ideologies have had a happy clarifying effect, they have triggered off necessary awareness. The simplicity and rigidity of neo-classicism makes it easy to see what it is all about. It also makes it easy to see that such a system is not acceptable as a foundation for a crime-control system.
1. von Hirsch, followed by Judge Gilmore, dissents at this point and says that "The presumptive sentencing structure should also recognize that some mitigating or aggravating factors may be more important or serious than others and therefore could be assigned different weights" (p. 46). In the von Hirsch report, however, it is stated explicitly concerning aggravation or mitigation: "But such variations could not depart from the presumptive sentence by more than a prescribed amount. The limits on the permitted variations should be designed to preserve the basic ranking of penalties -- and restrict overlaps in the severity of punishments for offenses of characteristically distinct seriousness" (p. 100).