Institute of Criminology
Faculty of Law, University of Oslo
Pb. 6872 St.Olavs plass, N-0130 Oslo Norway
Danger is one of the central themes in criminology. Dangerous men and women. Monsters hiding in the shadows, or even more dangerous; living among us camouflaged as ordinary beings. Much energy and ingenuity is spent on identifying these individuals, on changing, eventually neutralising them, and on explanations and understanding of the phenomena of dangerous persons.
What a comfortable, tranquillising perspective on a Globe filled with dangerous states! Dangerous for other states. But also, in what will be my perspective, dangerous for their own citizens.
1. Violent death
I was back from Moscow a few weeks ago, back to life as normal in my little country, back to write this since long overdue article on dangerous people. But there were some problems in concentrating on the scientific agenda. The theme in Moscow had been prison-conditions. I had been there before, so I knew the basic: one million prisoners, that is 685 per 100 000 inhabitants, a prison population roughly similar to the one in the USA, which again means about ten times as many prisoners as in Scandinavia and eight times as many as in most of Western European countries.
What was new, was hunger. After the economic crisis last summer, the Russian State is out of money. At present, the state gives away two thirds of a ruble per day per prisoner. This amount is also for medicine. Twenty rubles is at present equal to one dollar. While the West still is eagerly discussing the Holocaust occurring in Europe 60 years back, a catastrophe is emerging in the East, but quietly, with no serious attention raised in the West.
What is also new, at least in its dimensions, is the tuberculosis.
Among the one million prisoners, 92 000 are estimated to have this disease. Some have received some treatment, but inadequate. Ordinary TB has developed into Multi-Resistant TB among 20 000 of these sick prisoners. A sentence for imprisonment means a sentence with heavily increased risk for TB and death, or in the words of Farmer (1998), this is a situation with "Drug Resistant Tuberculosis as Punishment" Imprisonment before being sentenced is particularly dangerous. The Moscow Centre for Prison Reform (1998) gives this description of the conditions in the prisons for those waiting for trial, - what in Russia is called the SIZO-prisoners:
In the SIZOs of larger populated areas each prisoner is allocated less than 1 sq.m. of space, in some cells it is less than 0,5 sq.m. Prisoners have to sleep in turns. There is no place for all inmates to sit there. Conditions in SIZO cells are extremely harsh: lack of oxygen, dampness, stench. Many inmates have bloody ulcers and legs swollen from long standing, many are infected with scabies and other skin diseases. Their bodies are perspiring and nothing can dry due to the humidity. There is practically no light that enters through the heavily barred window. Two or three-tier beds are fastened to the walls. Any cell, be it for 10 or 100 inmates, has one sink and one toilet(p.31).
I would not have believed it, if I had not been there it myself, seen it, smelled it. The description need only to be combined with our knowledge of Tuberculosis: In the closed and non-ventilated rooms, often for more than 100 prisoners, inevitably some will be among the infected and cough out their tuberculosis.
It is a poor comfort that Western Europe has succeeded with the task of forcing Russia to abolish the use of death-penalty. If Russia and its neighbours does not stop executing their prisoners, the state will not get access to the European Council. Russia has succumbed to that pressure. No one is executed in Russia these days. They just die.
* * *
The United States has the same relative number of prisoners. They have also to some extent rooms filled with 60-80 prisoners living extremely close together. But they have also the other extreme. The Maxi-Maxi electronically governed prisons mean the utmost of isolation. Single room with your own shower, your own toilet, your own balcony for fresh air and exercises, and in addition sufficient food. All this in total isolation from any other human being. A system which gives its prisoners a space in the room of one square meter would by most of us be called violent. But such words might also be used on systems which for years force humans to be completely barred from other human beings. What we have is a different economy of violence, - physical suffering is kept to a minimum, while the mental one is at the maximum.
Death is also a reality in the US prisons, but then a different death. Compared to the Russian, a prolonged one. A sentence for life might mean life until death. Little by little, some of the US-prisons are transformed into geriatric institutions these days. Human beings are sent to prison to die, just at a slower pace than in the Russian ones. But of course, in addition the US system also kills by intention, 500 have been executed since 1977, more than 3000 are on death row. What a pity that the USA is not an applicant for membership in European Council, so we could have forced them to stop their intended use of death.
2. The problem
Hopefully, the contours of my approach are visible by now. A picture of dangerous people must be supplemented with a picture of dangerous states. In foreign policy, the image of the dangerous state is one in much use. But that is the danger for other states. That type of danger is not my theme here. Mine is an essay in criminology. I am interested in the danger that national states represent in their penal law approach towards their own citizens. I look at the State as a potentially dangerous body. We ought to know what sort of states are dangerous to their citizens according to various types of danger, if it is possible to differentiate between states in that regard, and also if it is possible to come up with answers as to how dangerous states might be controlled, eventually changed.
Doing this, I will take the institution of penal law as my central unit for analysis. Penal law has to do with delivery of pain. This pain is said to be necessary to counteract other unwanted phenomena. But we know that unwanted behaviour also can be met with other reactions than the penal ones. And we do also know that modern states vary enormously in volume and forms of punishments. These variations can not be explained by variations in crime. To purify my approach, I will therefore ignore the question of "effects of punishment", and concentrate all attention on the penal system as an instrument creating suffering among the inhabitants.
3. Some major variables in the evaluation of States
There are five general categories which might prove useful in an attempt to describe the amount of danger a state represents to its own citizens.
3.1 Size of the penal system
Since punishment means intended use of pain, it seems sensible to suggest that states with a profile of a large volume of penal law activities come closer to a pattern where they represent an exceptional danger for their citizens than states with a low volume. One major dimension is the sheer volume of control activities linked to punishment. Is the state one which interferes much with punishment in the life of its citizens, or is it a state that is restrictive in its use of punishment? This might be measured by the size of the prison-populations, or by the amount of fines applied each year. Another possible measure might be the total volume of all encounters between the general public and all those working within the framework of the institution of penal law. Still another approach would be to make a count of all persons who worked within the institution of penal law, and compare their number, status, tasks and total costs with those working within alternative institutions as health, social service and education. Some states would show a dominance within the area of penal law, some within the other areas. All these indicators might change over time. A "life-study" of dangerous states can be made.
More suffering is created in big systems than in small by the simple fact that more people are there in this system created for delivery of pain (Christie 1981). A big penal system is therefore more dangerous to a state's population than a small penal system. Russia with one million prisoners, and the USA with one point seven have both close to one percentage of their adult population in prison at any time. Most of these will be relatively young males. Among black and Hispanic males in the USA, 20 percent will be in prison at any time. Among black men between 18 and 30 in cities such as Washington and Baltimore, more than half are at any time in prison or on parole or probation. In other words: If you belong to these categories in the USA, you are in severe danger of being hurt by the state. So is also the case in Russia. If you come from one of the Eastern Republics in the former USSR, you have a heavily increased risk of being in prison.
The penal system is not restricted to use of imprisonment. Probation and parole are important instruments in many countries. Four million inhabitants are under that type of control in the USA these days. If those four millions are added to the prison-figures, and if we again only look at the youngest half of the adult male population, my estimate (Christie 1998) would be that 10 percent of them are under control of the penal apparatus just now.
Size is also of indirect importance. Those close to prisoners might share sorrow and shame, and might also be directly hurt by husbands and partners taken away, - or simply by limited access to find partners. For young black females in Washington or Baltimore, it has created a sort of war situation. They live in a society with a deficit of males. In addition there is the problem that those available might be less attractive due to damage created through earlier stays in prison, by the values and habits imprinted during life in captivity, by later handicaps at the labour-market, and also by health problems acquired during the stay in prison. This last point is of course particularly dominant among a great number of prisoners released from Russian prisons, coming home to the families with open multi-resistant tuberculoses, - if they come home at all.
Size is also of importance in another way: The greater the size of the penal system, the greater are the difficulties in creating personal relationships. In a small prison - and here I talk about small in the Norwegian tradition where 50-100 prisoners is a normal size, and where 350 is the biggest prison we have in the country - in such a prison there are possibilities to preserve at least a minimum of normal standards for interaction. It is difficult (but still possible) not to see the other person as something more than just a prisoner or a guard. In the large systems, the possibilities for monster-creating are considerable. In large prisons, where the inmates are living under degrading physical conditions, where they are so many that they only become numbers to the guards and also to some extent to each other, or where the prisoners are brought in a situation of complete segregation from the guards by the help of all sorts of electronic devices, - in such prisons the conditions created are coming very close to those that back in time made concentration-camps possible.
3.2 Amount of control of growth
But also in another way, prisons, or the whole prison system, might be closed off from the general society. The prison system might become a state within the state. It becomes so big or so important to the general society, that it moves out of control. The Californian prison system is an example of this. The economic contribution from the correctional organisations to the politicians from both major parties become so important that the prison-organisations can influence the size of the prison-system. But California is not alone, as I have described in my book "Crime Control as Industry (Christie 1996) and by Schlosser (1998) in the article on "The Prison Industrial Complex". He tells from upstate New York:
In addition to the more than $ 1.5 billion spent to build correctional facilities, the prisons now bring the North Country about $ 425 million in annual payroll and operating expenditures. That represents an annual subsidy to the region of more than $ 1000 per person. The economic impact of the prisons extend beyond the wages they pay and the local services they b buy. Prisons are labour-intensive institutions, offering year-round employment. They are recession-proof, usually expanding in size during hard times. And they re nonpolluting - an important consideration in rural areas where other forms of development are often blocked by environmentalists. Prisons have brought a stable, steady income to a region long accustomed to a highly seasonal, uncertain economy
The chances for unlimited growth of the prison-system might be increased if the political system is organised in a way that makes it particularly difficult to resist that sort of pressure. Systems where judges as well as prosecutors are up for election every fourth year are of course more vulnerable for all sorts of moral panics than systems where both groups are given their positions for life and where there also exists a sort of cultural acceptance of the independence of these positions. System with back-doors out of the prisons - parole boards with integrity and authority - have also possibilities for keeping growth under control. The Russian system is an example of one where amnesties are one of the few possibilities for keeping numbers under control. But also in Russia, crime is one of the major themes in the media. The Tsars could declare amnesty. In the Duma (the Russian legislature) they have for months discussed a proposed amnesty for 100 000 prisoners, but even facing a pendant hunger-catastrophe among the prisoners, no decision has been made. It is not a popular decision by the electorate.
3.3 Life qualities within the penal institution
At the bottom-line comes the question of physical safety. Is life endangered by being committed to prison? Is that the case with all prisons, or only a few. Is it non-intended danger created by sickness under bad external conditions, or is it, as we also often find, dangers from violence by prison guards or fellow inmates? And again: is this violence a non-intended consequence of prison life, an unwanted result of the organisation of the prison, or is it intended, designed to increase suffering or exhort information? What is the annual ratio of death in prison - or sub-groups of prisons - compared to what we find in similar populations outside of prisons?
Of great importance for the life qualities in prisons are questions such as: who runs the prison, guards or prisoners? If it is the prisoners, is it a terror-regime, a caste system, or one with some minimum of mutual concern? Is it a system where it is possible to keep self-respect, or is it one where most people leave, if they leave at all, as badly hurt human beings? Are the guards placed on external watchtowers, or do they day in and day out mingle with the prisoners, giving both parties possibilities to meet the other as relatively ordinary human beings? For the service as a whole, does it belong to the military system, the ministry of interior, or the minister of justice? It is a reasonable hypothesis that the system will gain more civil qualities the closer it comes to the ministry of justice. The Russian system has just moved from the ministry of interior to the ministry of justice. It gives some hope. Several countries have a circle of military guards around the prisons, but with guards from the ministry of interior or ministry of justice inside. What are the consequences for life and health of these various arrangements?
3.4 Permeability of the system
It is a general experience from cases of violence in the family, that such perpetrators attempt to isolate the family. The man, and it is nearly always a man, tries to keep the wife at home, break up her contact with relatives and friends, restrict her to the intimate system where he can establish the standards for acceptable behaviour. Cry quietly, so the neighbours are not disturbed!
Penal systems often attempt to do the same. Penal institutions are closed institutions, closed so insiders can not come out, physically or by their oral or written messages. But they are also to a large extent closed for outsiders. Visitors are screened, those with records, who will often be those close to the prisoners, might be kept out. So will also journalists, persons from human right organisations, or dissidents of various sorts. Prisons built in remote areas are also well protected against being confronted with the surprised eye of the ordinary citizen. So are also prisons with a reputation for containing exceptionally dangerous inmates, - "sorry, of concern for your own safety you can not get access to this prison, or to this part of the prison". Private prisons might create a particular problem, - they might claim that what happens inside their walls is a business-secret.
In the evaluation of permeability, some questions become essential. Particularly, is it possible for prisoners to complain, and, if so, to whom? Is their mail censured? Does there exist an "ombudsman" for the prison or for the system as a whole? What sort of contact to the external world exists? Do the prisoners know who the guards are, do the guards wear name-tags?
The more the prison becomes a closed arena, the more dangerous this arena becomes for the inmates. Prisons are by definition a place with extreme differences in power between guards and inmates. The more secluded, the less restrictions on the use of that power. It is therefore of utmost importance to open these systems for inspection; by prison-ombudsmen, by journalists and human rights organisations, by university-teachers and their students, and by the most ordinary among ordinary visitors. As in cases of family-violence: the more visible and therefore vulnerable the potential perpetrator is, the more protected are the other family-members.
3.5 Degree of Civility
Much of the above reasoning can be captured in the term civility. But that demands a tolerance for the challenges of words with multiple meanings. Of the twenty definitions of civility in Oxford dictionary (1973), what comes most close to my intentions is number twelve with the simple statement: "polite or courteous in behaviour to others", and number thirteen: "Since civil: connotes what pertains to the citizen in his ordinary capacity, it is distinguished from various words expressing specific departments and thus often opposed to these as a negative term." Austin, the nineteenth century legal philosopher, is here quoted in his use of the term as saying "the word ... is applied to all manner of objects which are perfectly disparate. As opposed to criminal, it means all law not criminal. As opposed to ecclesiastical it means all law not ecclesiastical; as opposed to military it means all law not military, and so on."
The prison system exemplifies organisations where civil elements are not dominant. Encounters of civility can be found, moments of friendship or at least mutual respect between the person in authority and the person under suspicion or the prisoner. But often the persons do not come close enough to establish such sorts of relationships, and if they come close, the meeting is far from civil in basic character. In many countries, military men are literally running the whole penal system. In some, the material conditions are so far below standards due to hunger, sickness and lack of possibilities for presenting oneself as an ordinary decent person - that any thought of civility is out of concern. Appearing from cages with one square meter per prisoner - that is exactly the minimum established for each fox in Norwegian animal farms - the conditions are not there for presenting oneself as an ordinary human being.
Another measure of civility - closely related to the question of permeability - has to do with the amount of rights the prisoner has within the prison. Particularly: is she or he stripped of all civil rights? What about the right to vote? Many countries permit persons in prison to vote. This is the case in countries as diverse as the Czech Republic, Denmark, France, Israel, Poland and Zimbabwe. (The Sentencing Project 1998, p.18). Other countries let categories of prisoners loose their votes for life. The Sentencing Project estimates that 3.9 million US citizens are disenfranchised, including one million who have fully completed their sentences.
Recent trends in modern industrialised countries do not move in the direction of physical atrocities, or in any military direction. Recent trends are more a reflection of business-culture, a trend towards managerial dominance of the crime control systems (Feeley and Simon1992). But again, this is not a civil system. A managerial system is based on rationality and accountability, it is a system of strict planning, one with clear lines of command, and where the small cogs in the system are treated as objects by the big ones at the top. In its managerial character, this system is also one with little room for ordinary human interaction, civil interaction. But at the same time, it is a strong system as exemplified in the Maxi-Maxi prisons. This is, in modern times, the system with the most total control over the individual captive person isolated from all other humans, and at the same time also with the least amount of contact between guards and the captive ever invented. This is the anti-pole of civility.
The question of civility is also of relevance within other areas of the institution of penal law. Are the police leaning toward civil standards, or military ones? Indicators here might be how police-activities are symbolised; in uniforms and equipment. Do the police people walk, use bicycles or do they use cars, eventually armoured cars? Do they carry arms, - always, sometimes, or only on exceptional occasions? How difficult is it for the police-person to get a permission to bring a gun, and particularly to use that gun, if that at all is possible? How much reporting - paper-work - is needed after a gun has been used? What sort of evaluation is carried out if a person is killed by the police? In what sort of moral climate does the police operate, - one of war against crime, one of zero-tolerance, one appreciating the model of an officer of peace? How is the recruitment to the police, from the general population or from military circles? How "ordinary", that is, representative for the general population, is the police. What is the quota of females recruited each year? How close to the citizens do policemen- and women live? How vulnerable are they, in cases of counter-control from the general public?
Similar questions might follow at the court-level; from where comes the judges, are they close to the population in general, or only to certain segments? If the judges are legally trained, are they recruited from the general universe of law trained people or from selected subgroups; politically, with regard to class, ethnicity or geography. What is their independence vis a vis state power; are they elected by the voting population, by leading politicians, or by their peers? Is it a job for life, or for election-periods? Is the judge equal in power to the prosecution? Has the judge a wide range of alternatives when it comes to punishment, or is it all predetermined by parliament, with highly specified minimum- and maximum-punishments, seen most clearly in the so called sentencing tables which convert the judge to a secretary for the law-makers?
Questions can also be raised on the position of the defendant. How much is she or he a participant, - how much an object in contrast to a subject? How long did the accused have to wait before the case came before the court, how well prepared is the person, in knowledge of the case, in having had time and space for sleep, for cleaning and dressing as an ordinary being, for presenting her-him-self before the judges as an ordinary being deserving an ordinary evaluation? And then to the defence; how strong is the position of the defending side compared to prosecution, in education, in prestige, in education, in wealth? Is it possible to get a defender at any stage of the proceedings, and how free is the prisoner to interact with that person?
4. On the control of dangerous States
Once more we might look at our experience of dangerous people. Three major problems dominate the criminological/penological debate on these persons.
First, it is the question of the concept of danger. In some penal-law systems, danger is seen as the danger of committing any offence, independent of the character of that offence. In some systems, the concept of danger is limited to recidivism, but then recidivism to all sorts of offences. At the other extreme - and this has gradually come to be the most accepted use - the concept of danger is reserved to more serious acts, often serious violent or sexual acts. A dangerous person is here one dangerous for other peoples life, eventually life and body.
A second major question is that of prediction. If we only look at serious acts, is it then possible to identify the perpetrators before they have committed their unwanted serious acts, eventually to predict who will recidivate to such acts? The general view seems to be that rare acts are difficult to predict, and that the number of false positives - those predicted to do the acts, but who would not have done it if they had not been interfered with - will be very high (vonHirsch 1972, Mathiesen 1998). So, the ethical problem is great if one attempts to sentence people on the basis of prediction.
The third major theme has to do with type of sanction: is the goal of the operation to keep the supposed dangerous person out of circulation for ever or for a pre-determined time, or should the result of treatment or education be used for deciding on release of the supposed dangerous person?
Let us turn to States.
As to the first variable, the definition of the dangerous act, it seems sensible to say that a dangerous state is one that operates with a concept of dangerous individuals that is all-inclusive. It is a state preoccupied with crime in general, rather than the danger of some individuals selected due to their peculiarly dangerous crimes. Dangerous states are those where mass-incarceration is based on triviality, seven bottles of milk, two grams of some sort of drugs, a fist-fight between drunkards, and where extraordinary danger is seen as exhibited through recidivism to such acts. Such a view on dangerous criminals creates an enormous volume of state-interference. States become dangerous to their citizens by equalising all they call crimes to danger and all individuals committing them to dangerous individuals.
With this statement, we have an opening for a cure of the situation. A way of reducing the danger in the dangerous state is to force upon the state a serious discussion of the borders of the crime concept. If high incarcerators are seen as a potentially dangerous states, the first step is to slim them, make this tendency a less dominant one. Of course, there are also other reasons than the protection of milk-bottles and the prevention of drug-use behind criminalization of these acts in the high incarcerating states. But a discussion of the dangers in the expanding system might bring the hidden agenda to the surface. We will - with some good luck - get a discussion of alternative ways of controlling the under-class, rather than undifferentiated opinions in favour of crime-control.
The second variable, prediction, raises a whole set of other questions when we move to the State-level. First, is it possible to predict State-dangers, to predict which states will turn particular dangerous to their citizens? As we saw from the individual level, problems are great with false positives as well as negatives. And the problems at State-level are even more complex. If Russia makes a break with the present attempts to adapt to the market-economy, what will then happen to their prison-population? It is far from certain that the numbers will keep stable. The economic situation might worsen, but pride in being a Russian might get increased value. That pride might make crime less dominant in defining the other person. "You made an idiotic and deplorable act while you were drunk last Saturday, but you are nonetheless a Russian, one of us. That remains more important than your bad act." Nationality becomes such an important attribute that the crime-label does not stick. Pride of being a Russian might become so strong a category that it suppresses the distinction between "Russians" and "criminals". Prison figures might shrink to the level of the Tsar-time, which means they would come down to the ordinary European level with 80-90 per 100 000 inhabitants. Maybe. But another scenario is also possible; Russia is filled with minorities. With increased nationalism, prisons would feel as a more natural place to contain these outsiders.
Developments in the USA are no more easy to predict. As Russia, the USA represents today a dangerous State to large segments of its population. But who would 15 years back have predicted that the USA should have developed into a society with such an enormous reliance of imprisonment, they have tripled their prison-population during the last fifteen years, and this phenomenal growth just continues. Will this increase continue, or come to a stop, - or in the far distance, can we think of a substantial reduction in these figures? The answer is clearly related to the general features of the USA-society. With the monolithic position of concern for trade and money, it is difficult to envisage great changes, particularly the establishment of alternative arenas for those not succeeding in the present system. Without such alternatives, the losers become many, and the winners scared by the prospect of losing what they gained in the monolith. But who knows? Concern for money might create concern for the cost of a bulging prison-population. Zero-tolerance in New York city has increased their prison population from 6-7 000 inmates in 1980 to between 18-21 000 in 1997. The costs have in the same period gone up from $150 millions to $800. At the same time, because of all the drug arrests being made in the city, "kids in New York Schools have to attend classes with ninety other kids."(Massing1998). Another possibility for reduction in the numbers would be more social upheavals among the more suppressed parts of the population. There are already black protests against the drug policy which, rightly, is seen as targeted more against black in the ghettos than against white in the suburbs. More might come, both of incarceration and of protests. But again, unexpected variables might appear. Who would have predicted that Winston Churchill would have been the very person that already in the early twentieth Century in Britain trigged off a dramatic decrease in the number of British prisoners? It was not right, said this conservative Secretary for the Home Office, to meet poverty with imprisonment. (Downes 1988)
Then to the last variable: Can States be influenced, eventually how? Particularly, can they be influenced by those of us working with problems as raised in this chapter?
The answer to this question depend on the thrust in cultural activities, thrust in the intellectual scrutinising of these matters. If we believe in the value of analysis, new concepts, attempts of clarification, attempts to let our societies look at themselves from unexpected angels rather than being so busy looking at their dangerous criminals, then, maybe, we are able to give the development some little push in a direction more in accordance with our knowledge and values. As for intellectuals, there are no other alternatives.
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Downes, David (1988)Contrasts in Tolerance. Post-war Penal Policy in The Netherlands and England and Wales. Oxford: Claredon Press.
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