Robert P Weiss. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
In other times, the police served an economic system that needed abundant docile labor. The justice system punished vagrants by forcing them into factories at bayonet point. That’s how European society industrialized the peasantry and managed to impose the work ethic in its cities. But today the question is how to impose the unemployment ethic. What mandatory obedience techniques are there to manage the growing multitudes who have no work or hope of ever getting any? What can be done to keep all those who have fallen overboard from trying to climb back in and capsizing the ship?
—Eduardo Galeano (2000, p. 91)
This chapter surveys the history of transnational correctional concern (TNCC) from the birth of the penitentiary to the present, with special attention given to the role of the United States as a key actor. In a display of Enlightenment-like reflexivity, the Philadelphia Society for Alleviating the Miseries of Public Prisons was founded in 1787—only 3 years after the construction of the Walnut Street Jail. International interest in penal reform took hold soon after the Walnut Street jail added a penitentiary house in 1790, and by 1846, an international conference of prison reformers had gathered in Germany to discuss the purpose of imprisonment and consider resolutions regarding separate confinement, education, labor, and religious instruction. Using the activity of international congresses devoted to prison reform as a measure of TNCC and considering legislative achievements and policy decisions influenced by their recommendations, four periods of intense TNCC can be identified:
- Anticolonial—from the opening of the world’s first penitentiary at the Walnut Street Jail, to the first international penal reform congress, at London, in 1872
- Western imperialist—extending from 1878 Stockholm Congress to the 1910 meetings in Washington, during which Brazil, Argentina, Japan, and China adopted the penitentiary design as symbols of modernity and entry into the world economy
Period 2 was followed by an interwar period of relative inactivity and lack of accomplishment.
- A postcolonial period that began at the end of World War II with the efforts of the United Nations and extended through the prisoners’ rights movement of the 1960s and early 1970s
- Since the 1980s, a neocolonial period of reactionary crime control policies and extreme penal severity
From its inception in the late 18th century, concern for the welfare of prisoners was linked to the rise of national citizenship based on democratic inclusion. Anticolonial and postcolonial refer to discourses, ideologies, constructs, and practices that expose, reject, and condemn domination, oppression, and exploitation. Colonial and imperial refer to domination, oppression, and coercion of—and hegemony over—individuals, groups, countries, or regions. Colonialism can take the form of one nation or bloc of nations dominating another; colonialism can also be exercised within nations (“internal colonialism”).
It is very clear from the outset that the lofty ideas discussed at the international penal meetings seldom connected with the action of governments. The concept of reformative incarceration was the intellectual product of several 18th-century cultures, and the idea of the penitentiary traveled widely around the world over the next century. Correctional concern was transnational from the beginning, and international congresses tried to establish an international standard of treatment. But each country that adopted the penitentiary did so as an amalgam of Western and indigenous ideas. They established systems of social control that reflected their own social structural realities, many of which were authoritarian, and penitentiary reform was adopted in countries that were neither industrializing nor capitalistic (Dikötter, 2002; Salvatore & Aguirre, 1996). There is, however, at least one constant and universal penal characteristic, regardless of social structure: The welfare of prisoners has been contingent on the general welfare of free society, particularly in regard to labor rights. Everywhere, social, economic, and cultural conditions external to the prison set limits to benevolence and determined the specific meaning of the penitentiary as social control. One common denominator could be expressed as Jeremy Bentham’s “less eligibility” principle. Less eligibility shaped penality everywhere. In industrializing economies, the welfare of prisoners was strongly influenced by the vicissitudes of the labor market and swings in the business cycle. Thus, a sound assessment of correctional reform activity must temper the history of ideas with the realities of political economy. A high international standard of penal treatment requires widespread economic security, the prospects of which seem to be dimming with the advent of “neoliberal globalization.”
The high point of a progressive TNCC came after World War II. The postwar political economy of “corporate liberalism” and the management ideology of “Fordism” reduced inequality and stabilized the (comparatively) low U.S. imprisonment rate of the 1950s and 1960s. Forced by the Great Depression to develop “import substitution” and develop state-protected enterprises and placate urban unions, Latin America entered a period of relative prosperity and low crime and imprisonment rates. All of those gains began reversing in the last quarter of the 20th century, with the class divide everywhere widening to a chasm: Fully entitled citizens at one social extreme today confront a large marginalized contingent workforce with diminished citizenship. Increasing inequality in Brazil, China, the Middle East, Africa, and the countries of the former Soviet Union have generated an enormous alienated population surviving outside the legitimate labor market, many of whom circulate through the world’s prison systems. Eager to obtain global capital investment, developing nations are pressured by business interests to privatize, deregulate, and impose stringent fiscal austerity to compete for foreign investment. At the same time, neoliberal states must be viewed as “safe” from crime and revolutionary activity, so they turn increasingly to physical repression to maintain social order. In many countries around the world, official repression has popular support, and vigilantism is common. The fearful emulate their oppressors, supporting “polyarchies,” “coercive democracies,” and “illiberal democracies,” all of which mock liberal democracy with their oppressive penal systems as abusive as any of the fin-de-siècle imperial empires.
Four Periods of Transnational Correctional Concern
Anticolonial Beginnings: From Revolution to Frustration
The formative period of TNCC commences with the birth of the modern prison in the late 18th century and extends through a series of international congresses from the 1840s through the 1872 meeting of the First International Penal and Penitentiary Congress (IPPC). The founding inspiration for the IPPC and the chief organizer for the 1872 meetings in London was Enoch C. Wines, who attended the event with a U.S. government commission tendered to him by President Grant. Later congresses reported that national penal codes were reformed and prison discipline eased as a result of the London Congress. We have designated this period “anticolonial,” in that the penitentiary movement was strongly associated with revolution in France and America, and its spread elsewhere in the world was connected to revolution and the rise of the nation-state and modernization. The modern prison first appeared in France after its 1789 revolution; the fall of the Bastille was its preeminent symbol. In the wake of revolutionary political changes in America in 1790, intellectual and social elites of the 19th and early 20th centuries spread the idea of reformative incarceration to Russia in 1863, Brazil in 1834, Japan in 1868, and China in 1905.
The Quakers of Pennsylvania extended human rights to convicts by creating a merciful and proportionate alternative to capital and corporal punishments. The penitentiary was a reformative sanction based on a faith in human equality. Although the penitentiary sprang from humanitarian sentiments, it had materialist underpinnings: Prisoners were expected to help defray the costs of their incarceration, and prisoners were an economic resource in labor-hungry industrializing America. Citizenship in a democracy was predicated on gainful employment. Prison labor was the essence and ultimate justification of reformative incarceration, so at Cherry Hill, handicraft work was a central feature of the solitary regime. The architectural antithesis, New York’s Auburn congregate prison, created a factory model prison industry designed to inculcate labor discipline in its immigrant wards. The rival Auburn and Pennsylvania models of the American penitentiary gained immediate international attention and passionate debate among wardens, chaplains, judges, lawyers, and humanitarians of the early 19th century. The Cherry Hill and Auburn designs inspired 19th- and early 20th-century penitentiary architecture in Europe, Latin America, China, India, Russia, and Japan, albeit with regional and national variations in penal discourse and practice (Grünhut, 1972; Teeters, 1946). A coterie of reformers encouraged international standards of treatment, making punishment one of the oldest major social problems to gain international attention. Beginning in 1816, Elizabeth Fry visited women confined in Newgate Prison in London and established an association to improve the treatment of children, which inspired reform societies in Canada. In 1866, the Howard League for Penal Reform was established, an organization active today on behalf of penal reform internationally. Through the indefatigable efforts of Dr. Enoch Cobb Wines, the dream of a world organization to promote the reformation of criminals in an ideal prison inspired American and European colleagues to establish a lasting world organization to improve penal conditions.
The first National Conference on Penitentiary and Reformatory Discipline in the United States met in Cincinnati, Ohio, in 1870 to discuss reformation and building self-respect through education, religion, and industrial training. Under the presidency of Governor Rutherford B. Hayes of Ohio, more than 130 delegates from 24 countries attended, including representatives from Canada and South America. Zebulon Brockway presented an address urging nonpolitical governance of prisons and the creation of intermediate reformatories for young men and women. The “Declaration of Principles” they adopted renounced vindictiveness in favor of reformation based on rewarding good conduct and self-discipline. Special training, religion, and education are the vital forces inspiring self-respect, the declaration held. At Cincinnati, Wines gathered charter members to the newly created National Prison Association, and the conferees adopted a resolution to invite the nations of the world to an international congress on prison reform to meet in London in 1872 (Wines, 1871). Twenty-two nations sent 400 delegates to their first opportunity to meet professional counterparts from around the world, creating a stimulating interchange of ideas. But reformers were soon frustrated, their resolutions and proclamations overwhelmed by political turbulence and labor strife surrounding the international depression of the mid-1870s that left legislatures in little mood to reform prison policy. This was to be a pattern: The lofty ideas presented at the 100 or so international prison congresses since 1846 have failed to have much impact on policy.
The second period of TNCC commenced with the 1878 meetings of the Second IPPC and extended through the Eighth IPPC in 1910, during which the focal concerns of the congressional delegates shifted from the nature of punishment and the discipline of hard labor regimes to the indeterminate sentence and reformation through education and religion. But the theories and reports and legislative recommendations rarely translated into penal practice, in the United States and elsewhere. The penitentiary form was adopted abroad, but a stubborn localism changed the spirit of reform. In Latin America, prison reform was “predicated upon nondemocratic conceptions of the political order,” and was employed to marginalize the Indian population even more. The penitentiary served as “an instrument of social differentiation and control” in Latin America (Salvatore & Aguirre, 1996, p. 2). Although American reformers—led by Wines and Brockway—were early leaders in global penal reform, the U.S. Congress refused to endorse any of the many penal resolutions passed by the international congresses, for fear that they would be binding. This is a difference between an anticolonial power and a growing imperial power. Federal interest lay dormant for over 20 years after Wines’s 1872 presidential commission, finally revived with the appointment of Samuel J. Barrows as the U.S. commissioner of the Fifth International Prison Commission of 1895 in Paris. One of the most contentious issues debated at the Paris conference concerned the right of prisoners to a wage (Teeters, 1949). At the behest of the United States, the congress resolved that prisoners had no right to a wage—even though wages were accepted practice in much of Europe at the time. China preferred to call their system of compensation “pecuniary reward” (as Japan would later). The congress nevertheless concluded, “It was seen that the concession of the prisoners’ rights to wages would carry with it a good many other rights which the Congress was not prepared to concede and which it might be dangerous to affirm.” Among the rights implied (but they dared not express) was prisoner unionization. After all, back in the United States, free workers themselves had few labor rights by law and, in practice, workers were in a fierce battle with state and private police over fair wages and unionization.
By the 1880s and early 1890s, IPPC delegates were emphasizing classification for special treatment approaches and indeterminate sentencing. Although these reforms had progressive potential, not much materialized in practice—and what did, for example, in the United States, was in the service of separating children and other categories of the “competent” from the “born criminal” and “moral and mental defectives,” with a large concentration of low-class immigrants in the latter category. Progressive Era reforms of parole, probation, juvenile court, and indeterminate sentencing were U.S. innovations that gained international interest, but they also had the effect of net widening. Parole and probation expanded social control more than they substituted for imprisonment, and prisons and jails greatly increased their populations between 1880 and the early 1920s. Europeans favored the indeterminate sentence only for the youthful offender and “moral degenerates,” the latter case so they could incarcerate indefinitely those “criminal by nature.” The Progressive aspiration to individualize and democratize the prison did move most institutions away from the Auburn-style lockstep conformity and regimentation, but the prevalence of custody overcame the rehabilitative programs envisioned by reformers. The European laboring classes experienced vast improvements in living standards with the expansion of industry during the imperialist era. Increasing prosperity from the last quarter of the 19th century until World War I coincided with decreasing crime and declining imprisonment rates on the Continent (Rusche & Kirchheimer, 2003, pp. 138-155). For their part, prisoners during this period enjoyed a substantial improvement in their treatment because the threshold of less-eligibility had been raised.
The depression of the 1890s led to a globalization backlash in the United States that lasted from 1914 to 1975, during which organized labor forced protectionist measures and was able to restrict foreign immigration. Heightened international competition required greater within-nation interdependence, which took hold during the Progressive Era. At the start of the 20th century, the recently renamed American Prison Association (changed from National Prison Association in 1908) set out to promote reformatory ideology abroad. Buoyed by a period of moderate, although uneven prosperity and diminishing inequality, Progressive Era penal reformers advocated a spirit of “compassionateness,” urging the Germans, for instance, to discard the old Auburn regime in favor of rehabilitation through education (McKelvey, 1977, p. 237). But there was much debate over the merits of American principles promoting the reformatory versus the Italian, German, and French deterministic theories of crime causation. Few nations adopted the American program, including the reformatory; actually, these reforms were petering out in the United States, except for the short-lived but dramatic experiment in inmate self-government at Auburn in 1913 and Sing Sing in 1914 by Thomas Mott Osborne. The Europeans placed their belief in the born criminal. “Yankee Imperialism” had greater effect elsewhere, notably in China and with the Meiji reformers in Japan, who undertook the modernization of its social and legal institutions to strengthen its capacity to resist Western imperialism. Japan’s penitentiary was based on the French version of the Auburn model. Japan’s treaties of 1902 and 1903 with the United States and Britain supported legal reforms. The Penal Code of 1907, based on the German model, reflected this cultural borrowing and adaptation to avoid extraterritoriality.
The former Central and Allied Powers confronted many serious social problems in the post-World War I decade. Rising crime and juvenile delinquency overcrowded their deteriorated prisons. In the United States, black incarceration increased dramatically, particularly in midwestern state prisons. Blacks were migrating en masse from the South to the northern ghettos, replenishing the low-wage labor pool drained by the termination of foreign immigration after World War I. As free labor battled capital in one of the most intense eras of anti-union warfare (called the “Age of Industrial Violence”), workers were able to exert sufficient political pressure to abolish the contract system of prison industry in most states. This was a symbolic victory against capital inasmuch as private contracting had been waning anyway. The diminution of prison industry left the mass of prisoners idle, and the loss of revenue led to program reduction and cuts in education. Prison violence increased, with the 1920s ending in a dozen major prison riots. Not surprisingly, the inter-war years were fallow to regressive in terms of prison reform globally. The rise in recidivism and the growing failure of treatment programs discouraged even the hard-core idealist (McKelvey, 1977, p. 267). Many of the disillusioned penologists from the United States were attracted to neoclassical theory and “soft determinism,” closing somewhat the earlier split with Europe on the issue of free will. Interwar bright spots in prison reform include Howard Gill’s Norfolk Prison Colony in Massachusetts, in the late 1920s and early 1930s, based on individualized treatment, and the League of Nations. The U.S. Congress failed to ratify the League of Nations, but the League’s model rules influenced republican China, which adopted the League’s 1934 minimum standards for the treatment of prisoners, including health, clothing, and corporal punishment provisions (Dikötter, 2002, pp. 226-227). The two IPPCs that met in the interwar years were reactionary. The most notable achievement of the 1930 Prague Congress was to vote for the inclusion of the word, penal, in the name of the commission. The next congress met in Berlin in 1935 and, not surprisingly, it was outright fascist— preoccupied with draconian and barbaric anticrime measures. Called by its contemporary critics, the “Congress in Chains,” 425 Nazi delegates dominated the voting and passed a measure approving the castration of criminals (Teeters, 1944, pp. 98-99).
The Human Rights Era and American Hegemony
Period 3 began toward the end of World War II, with the formation of the United Nations to promote peace, security, and economic development. The treatment of prisoners would obviously be a central concern to an organization that tries to foster and safeguard “fundamental human rights.” This would be a tough assignment, because the basic nature of imprisonment—the routine application of legitimated force on dehumanized subjects— invites abuse in even the most democratic and egalitarian of countries. The rules and principles of humane treatment are in practice subject to the less-eligibility principle, and the postwar economy and polity were favorable to the prisoner. The working class enjoyed a new balance of power in its relations to capital. Immigration was throttled, and an enormous consumer demand had built up during the war. The United States emerged from war with a strong and undamaged industrial infrastructure. Oligopolistic enterprises—led by the auto, steel, glass, and tire industries and home appliance manufacturers—were willing to grant the wage-and-hour demands of union bosses in exchange for the latter’s guarantee of a disciplined rank and file. Corporations in the monopoly sector were able to pass the cost of wage-and-benefit increases on to the increasingly affluent consumer. And the federal government, following Keynesian principles, intervened aggressively to avert postwar depression and high unemployment among returning war veterans. The GI Bill of Rights, passed by Congress in 1944, subsidized the education and training of war veterans in a massive program that sent 2.25 million veterans to college, 3.5 million to other schools, and 1.5 million to job training. Home and business loans were also federally guaranteed for GIs. The New Deal Welfare State was in place to help the poor. And blue-collar wages were high enough to finance a great expansion of the middle class. Western European nations strengthened their welfare states. Strong worker protections were brokered. Throughout the Western world, conditions were favorable for an extremely progressive agenda of correctional concern and general human rights. Elsewhere after the war, colonial possessions were gaining independence, and many of the new governments turned immediately to revamping their legal and criminal justice systems.
The human rights era was led by the United Nations, whose 1945 charter reaffirmed faith in “human rights” and the dignity of all persons. The Section on Social Defense was dedicated to eradicating fascist penal policy and creating punishment that emphasized rehabilitative justice, with greater rights of the individual. The Universal Declaration of Human Rights in 1948 specifically addressed the treatment of prisoners, establishing minimum standards for their treatment. Decolonization and the experience of the Holocaust inspired the United Nations to issue a series of documents seeking to outline humane principles and prohibitions of prisoner mistreatment, including rules concerning women, juveniles, medical care, outside contact, and work (the latter ignited considerable controversy), backed with international monitoring and complaint mechanisms. One result was the Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955, by the U.N.’s First United Nations Congress on the Prevention of Crime and the Treatment of Offenders. U.N. rules were not intended as a detailed model system of penal institutions; rather, they were to be essential elements for an “adequate” system meeting general consensus. They did not expect the same standard of progress on even the standard minimum rules that called for registering, identifying, and providing reasons for commitment; and classification on the basis of age, sex, criminal record, and nature of sentence. U.N. rules further specified the essential physical accommodations and hygiene requirements and set rules concerning food, clothing, and exercise.
The drafters of the U.N. rules understood the challenge, given the “great variety of legal, social, economic and geographical conditions of the world.” U.N. officials say that these rules had considerable influence among African nations and in Asia. Others are not so sanguine. Although the international community embraced the new rules in theory, Human Rights Watch (2003) notes that U.N. members failed to adopt U.N. standards in practice because they were not bound by treaty. To this day, the rules have been largely ignored by the United States, China, and Japan. But there are reform optimists. The Tenth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, meeting at Vienna in April 2000, endorsed treatment approaches based on restorative justice “accountability and fairness to offenders and victims in the justice process” (p. 2).
Regional Instruments and NGOs
In May of 1949, one of the first examples of regional associations dedicated to human rights was created, the Council of Europe, with representatives from France, Belgium, Denmark, Italy, Ireland, Norway, Sweden, and the Netherlands. In 1950, the European Convention for the Protection of Human Rights and Fundamental Freedoms was established, which today has 40 countries as signatories. Its European Prison Rules were modeled after the United Nations but reflected the better treatment accorded Western European nations. The rules are now proving problematic for countries of the former Soviet bloc, however (Morgan, 2001). The council also has the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Council of Europe has been a reasonably effective mechanism of enforcing humane standards in a large and diverse array of countries (Maguire, Vagg, & Margan, 1985). In the Americas, there is the American Convention on Human Rights, under the auspices of the Organization of American States, which is far less accomplished. The African (Banjul) Charter on Human and Peoples’ Rights, adopted by the Organization of African Unity in June of 1981, is an extensive but general listing of articles regarding the “freedom, equality, justice and dignity” for all African people. This is a valiant effort to establish basic humane penal policy in extremely difficult material and political circumstances.
Nongovernmental organizations (NGOs) have been the most aggressive in pursuit of humane treatment of prisoners worldwide. Perhaps most well-known is Amnesty International, founded in 1961. Their 1999 Report, “Brazil: No One Here Sleeps,” is typical in its detailed account of human rights violation in prisons—in this case, cataloguing numerous acts of cruelty and indifference to convicts and suspects held in unsanitary and dangerous conditions. Another highly influential NGO is Human Rights Watch (HRW), started in 1978 to monitor Soviet compliance with the 1975 Helsinki Accords, which has played major monitoring functions. With offices in major cities on three continents, the HRW promotes international justice and monitors prisons through its U.S.-based Prison Project, founded in 1987. Its Global Report on Prisons surveys prison conditions and issues an annual World Report that receives considerable press coverage. But while annoying to officials in Washington, the various reports placing the United States on lists of human rights violators appear to have had little practical effect at the state and federal levels. HRWs April 1999 Report on Human Rights Violations in the United States, “Red Onion State Prison” reports of the extensive use of unnecessary and excessive force and degrading treatment at Virginia’s new “supermax” prison. Isolated 23 hours a day, prisoners are denied all treatment, educational, vocational, work, and religious programs.
Physicians for Human Rights investigates human rights abuses, especially those regarding the medical profession. They occasionally team up with other human rights organizations, as in the report undertaken with HRW in the publication of the monograph Cold Storage: Super-Maximum Security Confinement in Indiana. This is a detailed study of two Indiana prisons—typical of scores of others nationwide—that engage in degrading and cruel treatment of emotionally disturbed, low-IQ, and mentally ill prisoners. Studies this exhaustive can be financed only with private money from small donors and from foundations such as the Edna McConnell Clark Foundation and the Open Society Institute. In addition, university-based organizations monitor prison conditions, most notably the International Center for Prison Studies at King’s College, University of London. The United Kingdom has been a most important origin for TNCC organizations, including Penal Reform International, founded in London in 1989, and the Howard League for Penal Reform, founded in 1866.
Discussion of postwar human rights and prison reform would not be complete without mention of the prisoners’ rights movement, which originated in the United States in the early 1960s and, during its apogee, spread throughout the West and to Australia and New Zealand. Prior to the 1960s, prisoners had practically no rights in law (the Thirteenth Amendment makes them slaves of the state), and courts would not intervene on the basis of the “hands-off” doctrine. In a few isolated and extreme cases, the Eighth Amendment’s prohibition of cruel and unusual punishment formed the basis for a handful of decisions in the 1940s and 1950s, such as the Johnson v. Dye (1949) decision involving a Georgia chain gang. Prisoners used two main legal devices: the writ of habeas corpus and the Civil Rights Act. The group most responsible for the expansion of prisoners’ rights in the early years was the Black Muslims. As the prisoners’ movement joined the black liberation and civil rights movements, the scope of legal rights expanded to cover medical treatment, mail censorship, disciplinary procedures, visitation, and proper use of force. Prisoners’ rights were part of a general postwar democratization involving numerous other marginalized groups, notably gays, women, children, blacks, and the mentally ill, all of whom pressed for admission to full citizenship. Prisoners’ rights was promoted in academic and policy circles in Western Europe, Australia, Canada, as well as in the United States by a school subscribing to the “justice-as-fairness” model (Fogel, 1975) that rejected the prevailing “coercive cure” of the rehabilitative ethic. The advocates of the justice model pursued the “normalization” of prison environments and rejected the rehabilitation school of the 1950s and 1960s (Richardson, 1985). According to this view, prisoners are rational decision makers who should retain most of the rights of free individuals and be entitled to have the greatest liberty as consonant with prison safety.
Postcolonialism and Changing Power Relations
Extending from the late 1940s through the prisoners’ rights movement of the 1960s and early 1970s, we designate the third period of TNCC “postcolonial” in that there was a real expansion of minority rights. At the peak of the black civil rights movement, the United States assumed world leadership in tolerance and respect for the rights of oppressed groups—including prisoners. As in the 1790 to 1830 anticolonial period of reform, the 1960s and early 1970s was an age of optimism and high ideals. Postcolonial reforms of the latter period rode on the crest of 20 years of general prosperity for workers, with upward mobility, shrinking inequality, and expansion of general well-being, reversing a century-and-a-half trend of rising inequality within industrializing countries (Bourguignon & Morrisson, 2002). Capital income shrank relative to labor income, and transfer income increased, leading to a diminution of power differences between the socioeconomic classes and greater democratization. This was a time when the competitive nation-state required interdependency within states and capital depended on organized labor and politicians on average citizens (Wilterdink, 1995, p. 11). Rising labor incomes, full employment, and comprehensive welfare policies decreased inequality, providing the necessary security for increased social cooperation and the lessening of less eligibility.
The downward trend in inequality that began in 1950 reversed sharply after the early 1970s. Rising unemployment, post-Fordist labor policies (“flexible accumulation,” including downsizing, just-in-time manufacturing, outsourcing, and subcontracting), wage freezes, pay cuts, and concerted anti-unionism from Washington shifted power relations fundamentally. The anticolonial and postcolonial periods of correctional concern, separated by a century and a half, were socially inclusive. Today, neoliberal globalization requires intensified transnational relations of interdependence that increase inequality and weaken domestic interdependence. The prison systems of free-market nations are called on today to exclude and marginalize populations made redundant to the postindustrial economy of advanced capitalist nations and to control and contain those millions of dispossessed in second and third world countries attempting to make the transition from state planned and regulated economies to laissez-faire.
Neoliberal Globalization and the Return to Empire
The contemporary period of TNCC could be termed “neocolonial,” as NGOs struggle with government repression and human rights violations in the United States and throughout the world. The United States has abdicated its historical leadership in TNCC. The current unilateralism and move to a permanent warfare state, its contempt for the United Nations and international alliances, its domestic assault on workers and “internal colonialism” directed at the young male African American through massive prison warehousing, coupled with the growing economic inequality within and between nations (Aghion & Williamson, 1998) auger poorly for the future of a progressive and liberal TNCC. While the United Nations and NGOs do what they can in the fight for prisoner rights, President George W. Bush has made clear his opposition to an international court, and his administration denies human rights for “illegal combatants” and others designated as “terrorists.” The U.S. embrace of the death penalty, its infatuation with ultra-high-security prisons devoid of meaningful rehabilitation programs, and the rollback of prisoners’ rights since the 1980s set a deplorable example for developing nations and those countries recently liberated from Soviet domination, many of whom look to the United States for leadership on social, economic, and political issues. Elite transitions in Russia and Poland make repression a natural inclination when confronting the rampant crime generated by the “buccaneer capitalism” that replaced the command economy.
Neoliberal restructuring in Latin America— pushed over the last quarter century by the International Monetary Fund, the World Trade Organization, the World Bank, and the United States—has also greatly aggravated inequality, which in turn has increased crime enormously, undermining civilian democratic governments. The HRW World Report for 2003 reports that internationally recognized labor rights are routinely violated. Brazil, which built the first Latin American penitentiary (in Rio de Janeiro in 1834), today has a horrifically overcrowded and brutal prison system that is the backbone of a grotesque socioeconomic polarity. Argentina, Colombia, Chile, Peru, and Brazil, among other Latin American nations, have been importing U.S.-style “zero-tolerance” policing that has increased “prisoners-without-sentence” (del Olmo, 1998); two thirds of prisoners in Central America are unsentenced, according to Amnesty International’s 2002 World Report. Fortunately, the United Kingdom, Canada, Australia, New Zealand, France, and Denmark have expanded rehabilitation efforts, but they are under unrelenting pressure to adopt the U.S. standard of penal severity.
The turn away from prisoners’ rights and human rights in general is not total and unequivocal, even among advanced capitalist nations. Some penologists see the glass as half-full, and the international impact of regressive U.S. policies is not total. Vivien Stern (1998, 2001, 2002) is one of the optimists. She points to the countertrends in Canada’s redirection and stubborn refusal to join the drug war, American style. The Canadian government has introduced several diversion programs that have reduced its prison population (Stern, 2001, p. 90). Africa has introduced many radical programs promoting reconciliation, most notably in Nigeria and Zimbabwe, especially at the local and village levels. There is much that the West could learn from Africa’s methods of conflict resolution, Stern (2001, p. 101) contends. But most of Africa is far removed from a culture that respects human rights, a situation that would require political stability and economic growth. But the simultaneous introduction of laissez-faire capitalism and universal suffrage is disastrous, according to Amy Chua (2002), because “markets concentrate enormous wealth in the hands of an ‘outsider’ minority, thereby fomenting ethnic envy and hatred among the chronically poor majorities” (p. 63), a situation in which demagogues scapegoat resented minorities in the competition for votes. The human rights prescription advocated by the West, based in liberal democracy and market fundamentalism, is widely associated among African nations with the hypocrisies of Western-driven globalization. Makua Mutua (2002) argues that Africa needs a genuine international human rights corpus that avoids Eurocentric individualism and is a genuine blend of cultural, religious, and legal traditions. In Latin America, where market fundamentalism has been adopted extensively, Stern (2001) points to the case of Chile, where prison alternatives are underway. Several Latin American countries have ratified the International Criminal Court (ICC), which took effect July 1, 2002. But as Galeano (1989) observes, “For five centuries, Latin American history has been a history of continued disjunction between reality and words” (p. 119)—never more than in criminal justice reform. The prison was a cultural importation that faithfully reproduced bourgeois constitutions but without a bourgeois revolution. Rather than incorporate the indigenous people into a mercantile economy as had been the case in 18th- and early 19th-century Europe and America, the penitentiary in Latin America could be used only to marginalize and exploit them further.
Quaker Ideals Betrayed
Conceived in the milieu of political revolution and Enlightenment humanitarianism and informed by the rise of science and the notion of free will, the penitentiary (as the embodiment of correctional concern) was anticolonial in two senses: (a) as a break from English domination (symbolized by its onerous penal traditions) and (b) as a reaffirmation of the equality and “inalienable rights” for all humans (except slaves and the American Indian). This is rhetoric and discourse of a particular era, a concrete historical circumstance, and an argument can be made that Thomas Jefferson and the founding fathers did not mean for political equality and the rights of life, liberty, and the pursuit of happiness to apply to anyone else but themselves. This became apparent as the 19th century unfolded, in the labor wars of the 1870s and 1880s. Immigration helped swell the labor pool and— in concert with technological advances and changes in the organization of production—a formidable reserve army of the unemployed appeared with each deep recession. Soaring post-Civil War inequality pushed prisoners below a humane threshold. In the postbellum South, where voluntary labor was scarce, the neoslavery of the convict lease greatly diminished the moral capital of American delegations to world congresses on penal reform. The American “revolution” was merely a transfer of power from metropolis to colonists, with the ruling elite pursuing the same project of domination against the Indians. As the colonial and imperial empires developed, American delegates to the international congresses between 1870 and 1895 lacked formal diplomatic approval, official instructions, or power to strike universal agreements. America’s own commitment to human rights was not firm and unambiguous: Throughout the 19th century, women, Native Americans, and African Americans did not posses full citizenship. As foreign immigration peaked in the late century, millions of Chinese and poor Eastern and Southern Europeans joined the excluded, foiling the effort to apply enlightened correctional concern to American penal practice. Other nations imitated the penitentiary form but also bent the spirit to fit local needs for social control.
Toward a Universal Standard of Penal Treatment?
The Diplomatic Approach Thwarted by Political and Material Realities
The United States claims to be the world leader in the advancement of human rights, promoting American-style democracy (read: plutocracy) and market fundamentalism as prerequisites. Samuel Huntington (1996, p. 39), however, argues that universalism requires imperialism, either military or cultural, because democracy is inherently local and parochial. Imperialist nations cannot advance an enlightened TNCC. But some versions of imperial order are more liberal than others. The E.U. model of capitalist world order is based on enlightened legal treatment of offenders. Under the Treaty of European Union (Maastricht), member states must abide by a set of fairly progressive conditions regarding criminal justice, meet minimal standards of penal treatment, and disavow the death penalty—all in the service of creating a predictable business environment abroad. As a method to advance neoliberal principles regarding trade and commerce, the E.U.’s “collective world order project” would anchor “the dominance of the richest capitalist countries over the globe for the twenty-first century” (Gowan, 2002, p. 24). The new world order would be coercive, imposing legal and juridical regimes on other nations. But this structure would be legitimated by legal principles and institutional models developed in the postwar liberal corporate capitalist era. When target nations bridle at economic policy goals, E.U. diplomacy can assert that E.U. human rights norms are being violated.
The trouble with the European Union’s seemingly sensible (from the business perspective) version of the new world order is that it clashes head on with the U.S. idea of global dominance; it is a direct threat to U.S. hegemony. In this battle of hegemonies, the “ultra-imperialist” Europeans are pitted against the “super-imperialist” United States (Gowan, 2002, p. 25), which wants Europeans to return to their postwar protectorate status. Also, the E.U. hegemonic concept cannot accommodate the peculiarly American cultural emphases on long, retributive criminal sentences and frequent use of the death penalty. The faction within the Republican Party crucial to Bush’s electoral success is particularly resistant to the prospect of U.S. conformity to E.U. norms. But American punitiveness and vindictiveness are not in the best long-term interests of transnational capital, especially given the growing mass resistance to American-style globalization.
The United States has attacked the creation of the ICC as a standard of international justice by pressing states around the world with diplomatic and economic force to enter into ICC impunity agreements regarding U.S. nationals. Not only would military personnel be exempt from ICC jurisdiction, but Washington is also concerned about the autonomy of private police and military contractors and subcontractors, including Halliburton, Bechtel, and DynCorp. The latter company, a subsidiary of the giant Computer Sciences Corporation, has been charged with developing for Iraq a criminal justice system from whole cloth: new police, courts, and prisons. In the spring of 2003, the U.S. Department of State put out a call for qualified American citizens to apply to DynCorp as sworn police, corrections officers, and “judicial experts” to serve in Iraq at handsome compensation. Under the guise of human rights—but following neoliberal principles that diminish public accountability—Iraq promises to be a template for privatizing control throughout the “arc of instability,” running from the Andean region to Southeast Asia, that contains much of the world’s oil lands.
National security officials and the State Department are split on whether al-Qaeda prisoners in Cuba are covered under the full weight of the Geneva Conventions. A year and a half after September 11, 2001, children as young as 13 were being held gulag-style at Guantanamo Bay without charges or legal representation. In a March 21, 2003, letter to President Bush, Leonard S. Rubenstein, Executive Director of Physicians for Human Rights, complained of a host of interrogation practices against detainees that violate the U.N. Convention Against Torture, ratified by the United States in 1994, including beatings, hours of forced kneeling, sleep deprivation, psychological pressure, withholding medical attention and painkillers to the wounded, and transferring detainees for interrogation to countries that engage in torture, such as Egypt. Much of the rest of the world sees the hypocrisy in U.S. “human rights imperialism.” It is clear that America’s vaunted regard for human rights does not apply to those who are not its allies, most notably the enemies of Israel. Nor can the United States or the United Kingdom promote enlightened penal policies elsewhere when they repress their own citizens, as is developing in Britain’s war on crime and the continued war on drugs in the United States and, now, the War on Terrorism. Throughout Western Europe, legal and illegal immigrant workers (as part of a transnational labor force) are added to homegrown “dangerous groups” as a focus for penal repression.
Neoconservatives emulate the U.S. imperial power of the William McKinley administration at the turn of the 20th century: laissez-faire and corporate dominance domestically and foreign domination for cheap raw materials (today, oil) and labor power. The United States claims American exceptionalism to international agreements. As articulated by Richard Haass, director of policy planning in the State Department under President George W. Bush, Americans should “re-conceive their role from a traditional nation-state to an imperial power,” resembling 19th-century Great Britain, with coercion and force normally a last resort. Twenty-first century imperialism is not colonialism in the McKinley sense, but it is a global capitalist market system requiring increased militarism and repression to cope with and facilitate the growing inequality within and between nations and the disappearance of work everywhere. In the United States, nearly 75 million adults were out of the labor force during April 2003, in addition to the 9 million officially unemployed (Davey & Leonhardt, 2003). Worldwide, the International Labor Organization estimates over 150 million unemployed. But as U.N. Secretary-General Kofi Annan argues, this figure is a gross underestimate because it does not include the large part of the world outside of employment surveys; nor does it include the 1 billion underemployed. In China alone, an estimated 100 million peasants daily roam the countryside in search of work. In some Latin American countries, unemployment has reached half of the adult population.
Sir Leon Radzinowicz’s (in “International Collaboration and Criminal Science”) observation is perhaps more cogent today than when it was pronounced in 1942:
The proper solution of penal problems in all countries alike will not only make for the welfare of each but will also be in a factor in stabilizing international peace. The efficient and enlightened administration of criminal justice is an essential element of social and international security. (quoted in Alpers & Boren, 1972, p. 86)
And the proper solution to penal problems requires a reasonable standard of living for workers in all countries; without this security, the less-eligibility principle will smother enlightened and humane correctional sentiments.