Gearóid Ó Loingsigh
(Reading Time: 12 mins.)
The press and large swathes of the academic world usually think of crime as natural, even normal and constant throughout the history of our societies and consequently, punishment is also natural and normal, although one or other of them usually condemns punishments which seem abhorrent, such as the death penalty. Although within that group there are those who only oppose the death penalty because they acknowledge that they could end up executing some innocent people. But neither crime nor punishment is constant in history.
There have always been transgressions of societal norms, but the concept of crime that we use today is not the same as a transgression in a communitarian society. Of course, a person could attack another, even end up killing them, but the transgression is against the community and its social harmony and not just against the person. Crime as we conceive of it nowadays comes into being with class society. In a society where goods are held in common, such as water or collectively such as tools or food, the modern crime of theft cannot exist. The Anarchist Proudhon, wrote a piece entitled What is Property? Better known for its famous phrase “Property is theft.” Marx in response ridiculed Proudhon explaining with very little patience that in order for there to be theft, the property must previously exist. If there is no private property then neither can there be crimes such as theft. It is something basic the poor Proudhon did not see, but neither do the majority of commentators, academics, jurists and other liberal style personalities.
So in the case of private property, people are alienated from other people’s property, from that which is not theirs. Before, in the face of threat from another tribal group, the collective responded jointly, but any threat to private property is only defended by those who have deeds on the asset and as is obvious, one person cannot respond to attacks or threats from more than one person, nor can they enjoy their property, if they have to protect it constantly and so they have to use a part of their wealth to hire those who will do that work for them and thus private and later still the armed forces are born. As property is no longer collective and the rules on its usufruct, possession or consumption are not agreed upon, nor obvious and with a greater commercial exchange amongst groups there is a need for agreed upon norms between the proprietors on the rights and obligations of others regarding their property. The development of writing allowed for the drawing up of the first penal and civic codes for everyone, so as all knew their rights and duties. So one of the first known codes in the world was the Hammurabi Code in 1,772 B.C., in Babylonia, the region in which writing was born. This code contained severe punishments for physical injury, it is one of the first times the adage of “Eye for an Eye” is mentioned, but the guilty party could avoid such a punishment by paying a fine, however this was not the case with crimes against property, which were punished by the death penalty;1 i.e. with money you could avoid or minimise punishment but private property was sacred. This was a clearly classist penal code just like the other ancient codes from India, China and Philippines amongst others that punished the poor more severely than the rich. One exception was that of the Aztecs that expected the nobility to behave well and punished them more severely when they didn’t,2 i.e. not only is crime born with class society but also punishment is clearly classist.
It is worth saying that the need for a state comes into being with private property, which is a distinct form of community organisation. The State represents the interests of the dominant classes and the form and structure it takes, whether it is slave, feudal, monarchist, or capitalist depends on which are the dominant classes and the dominant mode of production. But as for crime, an infraction was an injury to the community, its social harmony, whereas in class society, crimes are not committed against the person but rather against the State and this can be seen even today in trials which are presented as cases of the State vs X. This is so in cases of crimes against property and against the person.
Even with codes and private and state armed forces, punishment as we know it today in the shape of prisons was not common. Hollywood has inflicted great harm to our concepts of crimes in society, giving us a continuous line in terms of concepts, crimes and attitudes regarding them and also twisting the history of punishment. Prisons as we conceive of them today are an invention in a constant changing state of flux and in Roman and Ancient Greek times that concept did not exist. There have always been places of confinement for criminals, however imprisonment in and of itself was not the punishment. The dungeons of old were on the one hand transitory in nature, whilst the real punishment was awaited or places where debtors and people who had not paid their taxes were placed etc. and stayed there until such time as they paid their debt, tax or fine. Today, in many countries they continue to imprison people for this type of behaviour.
The main punishments were different. You only have to read the Bible, especially the books of Leviticus and Deuteronomy, where the Jews consecrated their laws, both those that were supposedly divine in nature or profane to get a general idea of what punishment was like. There is no real difference between the divine and profane laws, both responded to the material needs of society e.g. the prohibition on adultery in the Ten Commandments is supposedly divine, but really the pleasure of this sin is that it calls in question the lineage and the inheritance of private property.
In the Book of Genesis Adam and Eve are shown to be expelled from the Garden of Eden. Banishment was a common practice and even today there are various tribal peoples who practice it in cases of serious or repeated transgressions. But in various books from the Bible we can see different crimes and punishments such as compensation, whipping, mutilation, torture etc. It is clear however that the main punishment was the death penalty, described precisely according to the type of crime, so prostitution was punished with the bonfire, adultery with stoning, which was the most common method and not only permitted for an endless list of crimes but rather ordained by a supposed law of god, something the modern Right forget when criticising Islamic countries, as they continue to practice the same rules of the Bible in that sense. They weren’t the only ones, the Greeks also used the death penalty for a wide range of crimes just like the Romans.3
Prison, in the modern sense, was rare. The modern prison is the product of large scale expansion at the end of the 18th Century. Before then prisons were different and served a different purpose and what passed for justice was clearly a lack of justice and thirst for vengeance and public shaming with social control in mind. You only have to look at the punishments in the Bible, but if you don’t like referring to a text so basic to the social, moral and legal formation of the European countries that would later impose their vision on the rest of the world, then just look at what those countries did from the Middle Ages onwards. Amongst the punishments, there to be found some practices that leave the chosen people in second place when it comes thinking of the most inhumane thing in the search for a supposed “justice”. It is presumed that we have made progress and have improved, however as Roth explains the punishments were severe and ruthless, but the majority of the ancient punishments were insignificant in comparison to the punishment of the wheel, being burned alive or disembowelled alive.4
Physical punishment was common and there existed a wide variety of punishments across time and societies. Roth shows in his book An Eye for an Eye: A Global History of Crime and Punishment how stoning, flagellation, banishment, mutilation and amputation existed in one form or another in societies as diverse and different as Egypt of the Pharoahs, Greece and Rome, Sumer and China. Of course, the most inhumane punishment is the death penalty. In 2021, there were 35 countries that retained the death penalty in practice, amongst countries as diverse as the USA, North Korea, Iran, China and Japon. There are a further number of countries who retain it for non-common crimes (six, amongst them Israel) of those that retain it as a legal practice but do not implement it (48) and others that abolished it formally for any type of crime (93).5What is clear is that the barbarity of the past is not in the past but the present and can return at any time.
The death penalty as stated has been one of the constant aspects in the sad history of punishment. However, it has evolved and changed through history and was applied in the same manner in all country, just like it is not applied uniformly nowadays.
There are various methods of applying the death penalty, some are from the Judeo-Christian tradition such as stoning and decapitation still exists in various Islamic countries, whilst the Christians in the USA opt for equally cruel methods, such as the electric chair. Fortunately, the practice of crucifixion, which was common amongst not just the Romans but the Jews6 has disappeared from our world.
At the end of the 18th Century, various changes took place in criminal policy. Large prison building projects were undertaken in Europe, particularly in Great Britain. In the British case, it was due to social changes and changes in thinking but also the fact that the war of independence in what would become the USA cut off the possibility of continuing to deport criminals and to populate the colony with felons. So, there was a need for an increase in prisons and the prison would not just function as a temporary point of reclusion before execution, deportation or payment of a fine, debt or tax, but rather prison would be the punishment. Confinement in and of itself was the punishment. Although it seems strange nowadays to think so, but prisons were a progressive measure, the judicial systems aimed to be more than just organisms that rubber stamped vengeance by the state.
One of the most renowned prison architects of the period was John Howard, who saw himself as a prison reformer, and in fact one of the oldest prison reform organisations in that country bears his name, the Howard League. He designed prisons that he thought would contribute to the reform of the person and he introduced a relatively new, though not unknown, concept for the period, the prison cell. The cell for Howard was meant for one prisoner, something which should be borne in mind when we think about modern overcrowding in almost all prison systems in the world and the design of cells for two or more prisoners in various recently built prisons, as is the case in some prisons in Colombia, paid and designed by the US Federal Bureau of Prisons as part of the drugs strategy of Plan Colombia.
Howard was not the only reformer, throughout the 18th Century there were various reformers who published reports and proposals on prisons and what to do with prisoners, amongst them William Blackstone, who believed that punishment should be used to prevent recidivism and reform the criminal,7 a new concept for the period and coincides with various modern proposals and others such as the Italian, Cesare Beccaria who in 1764 supported the idea of using punishment to reduce crime and that it be proportional to the crime committed and selectively applied. His ideas influenced various reformers, including John Howard who travelled throughout Europe on various occasions visiting centres for imprisonment.8 The debate on the suitability of punishment and proportionality i.e. what crimes deserve to be punished and how is not new. It is a clear sign of the slippage we have experienced in the last 30 years, that basic ideas from more than 250 years ago are no longer applied in practice and in many jurisdictions they are questioned and even explicitly rejected as is the case in others such as the USA and other jurisdictions with mandatory sentences.
Athough the rise of the prison was an important advance, as with many developments under capitalism it did not lead to the immediate abolition of cruel practices from the past nor the abolition of the death penalty, which plagues us even today. In fact, in England in “1603 there fifty capital offences but by the early 19th century this number had risen to over 200. Crimes ranging from murder to minor theft were punished by execution.”9 Nowadays there are 35 countries where it is still practised, including the USA and Japan and there are a further 48 where it is on the statute book but no execution has been carried out in the last 10 years, amongst the Russian Federation and Cuba.10
The death penalty wasn’t the only form of punishment, as stated previously there existed a variety of physical punishments throughout history, some of the lethal, but not all of them. Amongst the Jews there were varied punishments and they considered their system of justice to be an enlightened one as they did with their monotheistic belief system when compared to the polytheists that surrounded them.11 It may well be the case, but it is not about measuring a society by our current yardstick, but rather about accepting that all societies justify their punishments as being enlightened ones, blessed, when not ordained by their gods. So, in Europe in the Middle Ages, the use of the Wheel was justified as was the burning of witches. A barbaric practice by any measure, but a normal one that was accepted at the time.
When we look at the various punishments, we that some still exist in various countries and others still exist in the popular imagination as desirable and justifiable and in some cases continue to be meted out to minors, even though in many countries corporal punishment is classified as a crime and child abuse. Whipping was common to almost every society throughout history with a great variety of implements used, some designed not only to inflict pain but also death,12 is used in very few judicial systems nowadays, but there is no lack of supposed human rights defenders in Colombia who do not hesitate in leaving their child red raw with a belt and see no contradiction between their own behaviour and their denunciations of abuse and torture at the hands of state forces and there is no shortage of indigenists who justify that same punishment using the argument of cultural autonomy. The legacy of times gone by is still with us in our culture, something which explains the passivity of society in the face of problems and abuses in our prison systems across the globe.
There are other punishments that have now been consigned to history but were common in many countries such as branding, and the bonfire, used throughout history but particularly against supposed witches in Europe. It is difficult to know how many women were burnt alive, though there are estimates that around 100,000 women perished in this manner over three century period in Europe.13
There was a transition in the types of punishment, as slowly various countries banned torture, Scotland and Prussia (1740), Denmark (1771), Spain (1790), France (1798) and Russia (1801), although as Roth points out torture resurfaced in the colonies, under other guises.14 Though they no longer tortured the sentenced prisoner, they tortured the dead post-execution. Following the Murder Law of 1752, up to 1832 the English courts imposed sentences that called for the post-execution punishment of the corpse.
The modern prison was born in this same period in which such punishments were imposed and the death penalty was common. Although it seems contradictory and senseless, the first prisons were a progressive proposal in relation to other sentences and their designers were penal reformers, who sought the redemption of the prisoner and not just punishment, though in practice the idea of punishment has never been far from the minds of judicial and prison functionaries.
Towards the end of the 19th century various national prisons in Great Britain were closed, partly due to a fall in the number of inmates and changes in judicial policies.15 The new prison act of 1898 explicitly promoted the reform of prisoners and throughout the 20th century new policies were introduced to that end, a policy that was echoed in other parts of the world. In the USA the concept of reform and the education of the prisoner was not such a common policy, prison labour never stopped, the so called chain gangs have been a constant feature, that still exist in some parts, with other types of forced labour within the system.
Forced labour was seen for a long time as a punishment and redemption at the same time and later as a punishment and form of the accumulation of surplus value from the prisoners work. One of the countries that countries that has most taken advantage of prison labour as a means of enrichment is the USA. No sooner had the Civil War ended and slavery abolished there was an increase in the sentencing of blacks with forced labour included. Nine states in the South promoted vagrancy laws applied to blacks and eight allowed for prisoners to be rented out to the plantations where the slaves had formerly been slaves.16 In one state they passed a law where the black population had to show documents confirming that they had work, or if not they were sentenced as vagabonds and sent to work in the plantations.17 However, over the course of the 20th century there was a reduction in the number of prisoners producing for the capitalist market, due in part to legislative changes that restricted the sale of such products, but not their manufacture as such. Further legislation in 1979 began to reverse that tendency.18 Sometimes the economic importance of prison production in the capitalist and penitentiary economies is exaggerated. However, it has an ideological importance. It tells quite clearly that the function of the prison is not to reform the person and help them overcome the conditions that led them to jail and it also tells us something about the role of labour in society. Work is foremost, it is the only thing that counts in society and the generation of profits is the only valid aim for a society. In reality, capitalism has always been like that, but the retreat in the discourse points to a real retreat in the correlation of forces in society. The workers movement has suffered large defeats, not just in terms of struggles but also in ideological terms where a vision that does not praise labour and profits over human dignity is not even put forward.
At the same time, we have seen a massive expansion of the use of prisons for minor crimes, longer sentences and a real explosion in the prison population, particularly in the USA. The increase in that country is due in large part to the policies of the Democratic Party and amongst those with greatest responsibility are Bill Clinton and his wife Hillary Clinton who publicly called for bringing black youths to heel as if it were about punishing dogs and they were jailed in cages like dogs in the new prisons built throughout his presidency, the majority for non-violent crimes related to the consumption of drugs.
Nowadays, we see new changes in the prison system and the concept of punishment in societies. Whilst various countries in Europe have reduced their prison population, that is only to be seen if we exclude another category of prisoner: the migrant. Most of us do not see migrants as criminals and the migrating in what is euphemistically termed in an irregular fashion is not a crime in many countries, but the treatment received by the migrant is punitive and penal. Many countries do this, including the Nordic countries famed for their social security systems, social cohesion etc.
Denmark is not the only country, Great Britain also imprisons migrants, Ireland sends them to a special regime less punitive, but it is still a type of prison (Direct Provision) and in the USA, the Biden government continues with the penal policy in the area of migration.
The migrants are the new debtors, thieves etc., They are seen as something different to decent society, something set apart from us and as has been done for centuries they are punished instead of helped.
- Galvin, A. (2015) Old Sparky: The Electric Chair and the History of the Death Penalty. New York: Carrel Books paras 7.10 y 7.11 (epub format)
2. Roth, M. P. (2014) An Eye for an Eye: A Global History of Crime and Punishment. London. Reaktion Books Ltd. p.11
3. Galvin, A. Op. Cit. para 7.13
4. Roth, M. P. (2014) Op. Cit. p.12
6. Donnelly, M.P. & Diehl, D. (2012) The Big Book of Pain: Torture & Punishment Through History. Gloucestershire. (epub format) para. 12.19
7. Brodie, A. et al (2013) English Prisons: An Architectural History. Swindon. English Heritage (Ebook) p.30
8. Ibid., p.31
9 Ibid., p.18
11 Donnelly, M.P. & Diehl, D. (2012) Op. Cit. para 12.25
12. Ibíd., para 26.1 & ff.
13 Silvia, F (2014) Caliban and the Witch: Women, The Body and Primitive Accumulation. USA. Creative Commons (epub format) para 10.183
14 Roth, M. P. (2014) Op. Cit. p.109
15 Brodie, A. et al (2013) Op. Cit. P.139
16 Alexander, M. (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New York, The New Press. P.28
18 Bair, A. P. (2008) Prison Labor in the United States: An Economic Analysis, New York, Routledge pp. 115 ff